Cluster Housing Accessways Not Prohibited Under Clause 34.1(d)

The Land and Environment Court determined that accessways within a cluster housing development are not considered developments for the purpose of any dwelling house under clause 34.1(d) of the LEP, thus allowing development consent for the amended proposal.

Reported Decision : 142 LGERA 359

Land and [ADDRESS] of New South Wales

CITATION : [COMPANY] v [NAME] & Anor. [2005] NSWLEC 631

APPLICANT: [redacted] PARTIES : RESPONDENTS: [redacted]

FILE NUMBER(S) : 10033 of 2004

CORAM: Bignold J

KEY ISSUES: Question of Law :- development application for cluster housing subdivision—whether private accessway on development site is "development for the purpose of any dwelling-house"

Interpretation Act 1987 LEGISLATION CITED: s 33 Blue Mountains Local Environmental Plan 1991

Burwood Municipal Council v [COMPANY] (1964) 10 LGRA 414; Canterbury Municipal Council v [COMPANY] (1982) 47 LGRA 135; [NAME] v [COMPANY] (1990) 170 CLR 249; CASES CITED: [NAME] v [COMPANY] (1987) 11 NSWLR 404; Warringah Shire Council v Jackson (1970) 21 LGRA 204; Warringah Shire Council v Raffles (1978) 38 LGRA 306

DATES OF HEARING: 05/08/2005; 04/11/2005

DATE OF JUDGMENT: 09/11/2005

APPLICANT: [redacted]

SOLICITORS [NAME]

FIRST RESPONDENT: [redacted] SECOND RESPONDENT: [redacted]

SOLICITORS

FIRST RESPONDENT [NAME] RESPONDENT [NAME]

JUDGMENT:

that accords with the interpretation that was collectively contended for by the Applicant and the Council and generally accords with the reasons advanced in their supporting arguments. (For these reasons, it is not necessary for me to elaborate on the detail of the respective arguments advanced by the Applicant and the Council.)

51 For all of the foregoing reasons, I would answer both questions 1 and 2 in the negative.

52 Having arrived at the true meaning of cl 34.1(d), it follows that it is open to the Council (and hence to this Court, on appeal) to grant development consent pursuant to that provision for the amended proposal for the subdivision of the development for the purpose of the cluster housing development.

53 It further follows that Questions 3 and 4 (which are predicated upon the adoption of a different meaning of cl 34.1(d) from that which I have adopted) are not required to be answered.

D. CONCLUSIONS AND ORDERS

54 For all of the foregoing reasons, I made the following orders:

1. Determine that the Questions of Law raised by the second Respondent be answered as follows: Question 1: Are accessways within the "development "development for the purpose of any dwelling house proposed to be erected as part of the cluster housing development" within the meaning of clause 34.1(d) of the LEP? Answer: No; Question 2: Are accessways within the development located on development excluded land contrary to clause 34.1(d)(i)? Answer: The location of parts of the proposed accessways on "development excluded land" is not contrary to s 34.1(d); Question 3: Is clause 34.1(d) a prohibition or a development standard? Answer: In view of the answers to questions 1 and 2 this question is not required to be answered. Question 4: If clause 34.1(d) is a development standard, is variation of it under SEPP 1 or exhibited draft SEPP 1 (Amendment No. 4) to permit the proposed accessways not capable of promoting the underlying purpose of the development standard or being consistent with the aims or objectives of LEP? Answer: In view of the answers to questions 1 and 2 this question is not required to be answered.

2. Proceedings be stood over to the Registrar's callover on 15 November 2005 for the purpose of allocating a hearing date.

3. Question of costs be reserved.

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