Abramovich v Byron Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abramovich v Byron Shire Council [2012] NSWLEC 1149

Hearing dates:

10,11 May 2012

Decision date:

04 June 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is dismissed.

2. DA 10.2010.274.1 for the subdivision of land at 40 Corkwood Crescent Suffolk Park into 4 lots is refused.

3. The exhibits are returned with the exception of exhibit 1.

Catchwords:

DEVELOPMENT APPLICATION; subdivision - whether SEPP 1 objection to minimum lot size of Lots 1 and 2 is well founded -whether Lots 3 and 4 allow the erection of a dwelling - contrary to the Restriction as to User - loss of trees

Legislation Cited:

Byron Local Environmental Plan 1998 Environmental Planning and Assessment Act 1979
State Environment Planning Policy No 1

Cases Cited:

Lonergan v Byron Shire Council [2010] NSWLEC 1059
Parrott v Kiama [2004] NSWLEC 77
Wehbe v Pittwater Council [2007] 156 LGERA 446

Category:

Principal judgment

Parties:

Dr David R Abramovich (Applicant)
Byron Shire Council (Respondent)

Representation:

Mr D Sweet, agent (Applicant)
Ms K Gerathy, solicitor (Respondent)
Solicitors
HWL Ebsworth Lawyers (Respondent)

File Number(s):

10034 of 2012

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Byron Shire Council of DA 10.2010.274.1 for the subdivision of land at 40 Corkwood Crescent Suffolk Park into 4 lots.

1. The contentions raised by the council can be summarised as:

1. Lots 1 and 2 does not satisfy the minimum lot size development standard of 40 ha and the SEPP 1 objection is not well founded,

2. Lots 3 and 4 do not satisfy the minimum lot size of 900 sq m for hatchet shaped lots,

3. inadequate area is available in the designated building envelope for Lots 3 and 4 to allow the construction of a dwelling given the building envelopes and the likely impact on the character with the area,

4. the subdivision is contrary to the Restriction as to User that prohibits the further subdivision of the 2(a) zoned area of the site, and

5. the removal of vegetation.

The site

1. The site is Lot 268 in DP 867786. It is an irregularly shaped lot with a 42.421 m frontage to Corkwood Crescent. It has a northern boundary of 97.525 m and a southern boundary of 127.505 m and a site area of 6,795 sq m. Currently, the site is vacant although civil works associated with an approval granted by the Court in March 2010 (Lonergan v Byron Shire Council [2010] NSWLEC 1059) (the 2010 approval) for a 2 residential lot and single community title lot subdivision have been largely completed.

1. The site slopes steeply from the west with a change in level from the street of approximately 30 m. An easement for drainage purposes of variable width generally follows a watercourse that runs across the site near the Corkwood Crescent frontage. The site is also burdened by a Restriction as to User that prohibits the further subdivision of the site for…