Blue Mountains City Council v Ralph Douglas Williams [2009] NSWLEC 223

Land and Environment Court of New South Wales

CITATION : Blue Mountains City Council v Ralph Douglas Williams [2009] NSWLEC 223

APPELLANT Blue Mountains City Council PARTIES : RESPONDENT Ralph Douglas Williams

FILE NUMBER(S) : 10626 of 2009

CORAM: Preston CJ

KEY ISSUES: APPEAL :- s 56A appeal - appeal against decision of commissioner on question of law - decision on separate questions - whether provisions of local environmental plan are development standards - decision based on agreed facts - agreed facts erroneous on a fundamental matter - error material to decision - parties agree decision should be set aside and matter redetermined on correct facts - direction for separate questions revoked - whole of proceedings fixed for final hearing.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 56A Local Government Act 1919, s 327AA

DATES OF HEARING: 9 December 2009

EX TEMPORE JUDGMENT DATE : 9 December 2009

APPELLANT Mr T I Cork (solicitor)

SOLICITORS McPhee Kelshaw LEGAL REPRESENTATIVES: RESPONDENT Mr F P Hicks (barrister)

SOLICITORS Yates Beaggi Lawyers Pty Ltd

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

9 DECEMBER 2009

10626 OF 2009

BLUE MOUNTAINS CITY COUNCIL V RALPH DOUGLAS WILLIAMS

JUDGMENT 1 HIS HONOUR: The acting registrar made directions under Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that certain questions concerning whether cll 34.1(b) and 34.4(a) and of the Blue Mountains Local Environmental Plan 1991 ("LEP") are development standards under the Environmental Planning and Assessment Act 1979, be decided separately from other questions in the proceedings. 2 Those separate questions were listed for hearing and determination before Commissioner Hussey on 28 July 2009. Commissioner Hussey gave judgment on 7 August 2009. The parties had agreed on certain facts necessary for the determination of the separate questions. These related to the potential lot yield from the lot that was to be subdivided as part of the development proposal. The commissioner determined the separate questions on the basis of these agreed facts. 3 On the hearing of the appeal under s 56A of the Land and Environment Court Act 1979 brought by the Council against Commissioner Hussey's decision it became clear that the facts that the parties had agreed should form the basis of the hearing and determination of the separate questions were erroneous in a fundamental way. The consequence is that the factual basis for the hearing and determination of the separate questions has been undermined. The problem can be seen with a short explanation. 4 Clause 34.1(b) of the LEP provides that: "The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the notional development area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number." 5 Clause 34.4(a) of the LEP provides: