NSW Caselaw
Reported Decision : 150 LGERA 130
New South Wales Court of Appeal
CITATION: BLUE MOUNTAINS CITY COUNCIL v LAURENCE BROWNING PTY LTD [2006] NSWCA 331
HEARING DATE(S): 31 October 2006
JUDGMENT DATE: 27 November 2006
JUDGMENT OF: Ipp JA at 1; Tobias JA at 28; Basten JA at 59
DECISION: (1) Grant leave to Blue Mountains City Council to appeal from the judgment of the Land and Environment Court given on 27 February 2006; (2) Allow the appeal and set aside the judgment below; (3) In lieu thereof, answer the separate question as follows:; Question: Is clause 29.2 [of the Blue Mountains Local Environmental Plan 1991] a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) and thus amenable to the application of State Environmental Planning Policy No. 1 – Development Standards?; Answer: No; (4) Order the Opponent/Respondent, Laurence Browning Pty Ltd, to pay the Council's costs of the proceedings in this Court; (5) Grant the Opponent/Respondent a certificate under the Suitor's Fund Act 1951, if not disqualified pursuant to s 6(7) of that Act.
CATCHWORDS: ENVIRONMENTAL PLANNING – definition of "development standards" – Environmental Planning and Assessment Act 1979 (NSW) s 4(1) – whether the zoning subscript, referred to as a consolidation requirement, in the local environment plan was a "development standard". - STATUTORY CONSTRUCTION – "development standards" – application of definition to planning instruments via a planning policy.
Conveyancing Act 1919 (NSW), s 195 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), ss 4, 4B, 25, 26, 76A, 79C, 85, 85A, 97, 121B, Schedule 6 Land and Environment Court Act 1979 (NSW), ss 57
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Goodrich v Paisner (1957) AC 65 Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 CASES CITED: McCabe v Blue Mountains City Council [2006] 145 LGERA 86 North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425 Woollahra Municipal Council v Carr (1987) 62 LGRA 263
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