Land and Environment Court of New South Wales CITATION : Blaxland Park v Blue Mountains City Council [2006] NSWLEC 679 Applicant: Blaxland Park Pty Ltd PARTIES : Respondent: Blue Mountains City Council FILE NUMBER(S) : 10033 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- DATES OF HEARING: 30/10/2006 EX TEMPORE JUDGMENT DATE : 10/30/2006 Applicant: LEGAL REPRESENTATIVES: Mr A Galasso, barrister instructed by Pricewaterhouse Cooper Legal Respondent: Mr T Cork of McPhee Kelshaw solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 30 October 2006 10033 of 2004 Blaxland Park Pty Ltd v Blue Mountains City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by the Blue Mountains City Council (the council) of a development application to develop lot 3 DP 876012, known as 60 Winnicoopa Road, Blaxland for a cluster housing development, subdivided under Community title, for 20 dwellings and a community lot. The parties have come to an agreement and now seek consent orders from the Court. Before agreeing to the consent orders the Court heard three objectors who wished to give evidence. . 2 Mr M Kersivian, who lives at 5 Morse Place, asked for physical separation between his property and the subject land so that future residents cannot walk through his driveway. He would like a landscaped mound rather than a fence. The draft conditions of consent propose a fence along the boundary, the details of which will be determined by the council when a separate application is made. This will provide the separation Mr Kersivian desires, though not in the form of a mound, which would occupy a sizable strip of the applicant's property. (I assume that Mr Kersivian wants the mound to be on the applicant's land, rather than his own.) 3 Mr W Trevena, who lives at 3 Morse Place, adjoining Mr Kersivian's property to the north, said that he was satisfied with the condition requiring a fence. Mr M Joyce, who lives at 35 Winnicoopa Road, also adjoining the subject land to the west, said that he has a pump-out septic tank, of which the pump occasionally fails. He asked the Court to impose a condition requiring the applicant to grant him an easement on the applicant's land through which he could drain his sewage by gravity to the sewer line. I do not think that such a condition would meet the "Newbury" test because it does not relate to the application. Nor would it be reasonable to impose the burden on the applicant on the basis that Mr Joyce's pump might fail occasionally. I have no power to impose the condition. 4 The relevant planning instrument is Local Environmental Plan 1991 (LEP 91), of which the most relevant clauses are cls 10 and 34. The LEP contains definitions of cluster housing as well as of development excluded land. The council accepts that the proposal complies with the definition of cluster housing. Clause 34(1)(d) provides that The Council may consent to subdivision of any land for the purpose of cluster housing development only if it is satisfied that: (i) all development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development, and (ii) all development ordinarily incidental and ancillary to a dwelling house, is not to be located on any development excluded land governs subdivision, and provides, among other things, that there shall be no development on development excluded land. 5 Part of the site on which buildings are proposed falls under the definition of development excluded land because it contains the rare species of flora Lomandra Brevis. The applicant has lodged an Objection under SEPP 1 to justify placing development on development excluded land on the basis that the population of Lomandra Brevis on the whole site will be enhanced as a result of the development. The council agrees that the Objection is sound and should be upheld. I accept the council's assessment. 6 Clause 10 of LEP 91 sets out development criteria. The council accepts that the plan before the Court meets these criteria sufficiently to justify consent. 7 Given the above evidence, there is no reason for the Court not to accede to the parties' request for consent orders. Consent orders 1. The appeal is upheld. 2. Development application for a cluster housing development comprising 20 dwellings and a community lot, subdivided under Community title on lot 3 DP 876012, known as 60 Winnicoopa Road, Blaxland is determined by the grant of consent subject to the conditions in annexure A 3. The exhibits are returned except Exhibits A and 4. __________________ Dr John Roseth Senior Commissioner - 3 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.