Allen v Cessnock City Council - [2010] NSWLEC 1179

Land and Environment Court

of New South Wales

CITATION: Allen and anor v Cessnock City Council [2010] NSWLEC 1179

PARTIES:
APPLICANTS
N & K Allen
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 10072 of 2010

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS - SUBDIVISION :- Non-compliance with minimum allotment size

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989
State Environment Planning Policy No 1

CASES CITED: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446

DATES OF HEARING: 28 May 2010

EX TEMPORE JUDGMENT DATE: 28 May 2010

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENT
Mr A McKelvey, solicitor
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

28 May 2010

10/10072 N & K Allen v Cessnock City Council

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: By Development Application 8/2008/824/1, Mr and Mrs Allen sought consent from Cessnock City Council (the council) to subdivide Lot 1154 in Deposited Plan 785691 into two allotments. The present lot is some 21.5 ha in area with dual frontages to Richmond Vale Road, Mulbring – a small rural area between Cessnock City and the main Sydney to North Coast Freeway.

2 The proposal seeks to create an allotment of some 19.6 ha that would include the present residence and machinery shed and a new allotment (using the smaller and south-western arm of the frontage to Richmond Vale Road) of 2 ha.

3 The reason for the unusual configuration of the road frontages and the present allotment is a consequence of the subdivision, some 25 years or so ago, of a 2 ha concessional allotment under the then provisions of the then Cessnock Local Environmental Plan.

4 The present proposal and has been rejected by the council on a number of bases – the principal ones arise from the terms of the Cessnock Local Environmental Plan 1989 (the LEP) and the objectives of the Rural 1(a) zone within which the land is located coupled with the minimum allotment size specified by cl 12 of the LEP. This clause requires that the land in the zone shall not be subdivided unless each allotment to be created has an area of not less than 40 ha.

5 The applicants have submitted an objection pursuant to State Environment Planning Policy No 1 (SEPP 1) to compliance with the development standard contained in that provision of the LEP.

6 If the applicants surmount that hurdle, a matter to which I will return, the council then submits, through its solicitor, Mr McKelvey, that as a consequence of cl 9(3) of the LEP, I would not be satisfied that the development is consistent with the objectives of the zone and that, unless I am able to form that opinion as required by that clause, on the merits I must refuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1179
Decision Date: 28 May 2010

CaseChat Overview and Summary

The applicants, Mr and Mrs Allen, sought a development application to subdivide their property into two allotments, with the smaller allotment being used for residential purposes. The respondents, Cessnock City Council, rejected the application on the grounds that it did not comply with the minimum allotment size specified by the Cessnock Local Environmental Plan 1989. The applicants submitted an objection to the compliance with the development standard under the State Environment Planning Policy No 1. The primary legal issues were whether the minimum allotment size was a development standard, whether the applicants' objection should be sustained, and whether the proposal was consistent with the objectives of the Rural 1(a) zone. The court concluded that the minimum allotment size was indeed a development standard and that the applicants' objection was not well founded. The court found that the proposed subdivision would not be consistent with the objectives of the Rural 1(a) zone, primarily because it would withdraw potentially productive land from agricultural use. Consequently, the court dismissed the appeal and refused the development application.

Orders