Leaney v Blue Mountains City Council [2012] NSWLEC 1090

Land and Environment Court New South Wales

Medium Neutral Citation: Leaney v Blue Mountains City Council [2012] NSWLEC 1090 Hearing dates: 13, 14 March 2012 Decision date: 04 April 2012 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION; Subdivision; development excluded land Legislation Cited: Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 2005 Environmental Protection and Biodiversity Conservation Act 1999 Threatened Species Conservation Act 1995 Rural Fires Act 1997 State Environmental Planning Policy No 1 - Development Standards Cases Cited: Project Blue Sky v ABA [1998] HCA 28 Cranbrook School v Woollahra Council [2006] NSWCA 155 Category: Principal judgment Parties: Mr Justin Leaney (Applicant) Blue Mountains City Council (Respondent) Representation: Applicant: Mr G McKee (Solicitor) Respondent: Mr A Seton (Solicitor) Applicant: McKees Legal Solutions Respondent: Marsdens Law group File Number(s): 11117 of 2011

Judgment 1COMMISSIONER:This is an appeal against the refusal by Blue Mountains City Council of a three lot Torrens Title subdivision of Lot 12 DP 255826, 9 Bellata Court (also known as 4 Turella Street) Glenbrook. 2The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act).

The site and its locality 3The site is an irregularly shaped lot on the north-western side of Turella Street. Turella Street is a narrow sealed cul-de-sac servicing 2-3 dwellings. On the other side of the street is Lapstone Reserve (Tunnel Gully Reserve), a bushland reserve zoned Recreation - Environment Protection under the (previous) Blue Mountains Local Environmental Plan 1991 (BMLEP 1991). 4To the north and the west of the site is another public bushland reserve, locally known as Bellata Reserve. A watercourse is located within this reserve. This reserve is zoned Environment Protection - Open Space in Blue Mountains Local Environmental Plan 2005 (BMLEP 2005/ BMLEP). Residential properties in Explorers Road adjoin the site to the south. 5The existing Lot has an area of 6,421 m2. An existing dwelling is located on proposed Lot 3. 6With the exception of the immediate vicinity of the existing dwelling and its associated driveway, pool and so on, the site is reasonably described as a 'bush block'. The site slopes gradually downhill from the street towards the gully at the rear of the site. However, the steepness increases along the edge of a small sandstone scarp through which the creek has cut. This north-western boundary of the site is identified and mapped in BMLEP as a Protected Area comprising Slope Constraint Area and Ecological Buffer Area. The Ecological Buffer Area overlaps the Slope Constraint Area but extends slightly beyond it to the southeast. 7Along the street frontage of proposed lots 1 and 2 there are scattered groups of trees. There are patches of cleared vegetation generally along the upper section of the site with the vegetation increasing in density towards the gully at the rear. With the exception of a weedy patch on the southern boundary, the site contains Shale Sandstone Transition Forest (SSTF). This is listed as an Endangered Ecological Community (EEC) under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 and the NSW Threatened Species Conservation Act 1995 (TSC Act). It is also listed as a Significant Vegetation Community in Schedule 5 of BMLEP. 8The entire site is mapped as 'bush fire prone land' as defined in s 4 of the EP&A Act; part of the site is Category 1 Vegetation, and partly Vegetation Buffer. The Vegetation Buffer area is effectively the area around and including the existing dwelling and ancillary structures, and the weedy area on the southern side of the site at the rear of the dwellings in Explorers Road. The majority of the site is Vegetation Category 1.