Andrews v Singleton Council

[2010] NSWLEC 1357

Land and Environment Court

of New South Wales

CITATION:

Andrews v Singleton Council [2010] NSWLEC 1357

PARTIES:

APPLICANT
William Andrews

RESPONDENT
Singleton Council

FILE NUMBER(S):

10007 of 2010

CORAM:

Tuor C

KEY ISSUES:

CONSENT ORDERS - DEVELOPMENT APPLICATION - SUBDIVISION :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993
Singleton Local Environmental Plan 1996

DATES OF HEARING:

8 October 2010

EX TEMPORE JUDGMENT DATE:

8 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, barrister
instructed by Mr R Mallik
of Mallik Rees Lawyers

RESPONDENT
Mr P Jayne, solicitor
of Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 October 2010

10007 of 2010 Andrews v Singleton Shire Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal against the refusal by Singleton Shire Council (council) of a development application (DA170/2009) under the Environmental Planning and Assessment Act 1979 (EPA Act) to subdivide lot 56 DP 864398, known as 9 Coachmans Drive, Whittingham (site) into five rural residential allotments.

2 The proposed allotments are:

· Lot 561 (10,068 square metres);

· Lot 562 (9,520 square metres);

· Lot 563 (16,914 square metres);

· Lot 564 (9,252 square metres); and

· Lot 565 (9,457 square metres).

3 The issues between the parties have been resolved and the parties are seeking consent orders from the Court.

4 In accordance with the Court's practice direction all the objectors were notified of the consent orders hearing.

5 Mr P McLoughlin, a nearby resident, provided evidence to the Court. His principal concerns are that the proposed subdivision is an overdevelopment which will change the rural character and adversely impact on the amenity of the area.

6 Mr McLoughlin considered that the increase in traffic, generated by the proposal, would exacerbate the already poor condition of the roads. He stated that the existing water supply is not reliable and inadequate to service an increased number of allotments. He was also concerned that the approval of this subdivision would establish a precedent for other subdivisions in the area. Mr McLoughlin questioned whether the Department of Defence had been consulted in relation to the proposal and its impact on their adjoining land.

7 Mr McLoughlin’s concerns reflect the concerns of a number of other residents who lodged objections in response to the notification of the application. These objections were provided to the Court (Exhibit 1). An additional issue in relation to the impact of the proposal on the heritage significance of Minimbah House was also raised by a number of objectors.

8 Expert evidence by Ms Walkom, planner for the council, Mr Winnacott, planner for the applicant, Mr Sullivan, engineer for the council, and Mr Lyle Marshall, engineer for the applicant, was tendered. These experts were not required for cross-examination.

9 The site, its locality, the history of the proposal and the planning controls are set out in the Statement of Facts and Contentions. The site is within the 1(d) Rural Small Holdings zone under Singleton Local Environmental Plan 1996 (LEP 1996). Clause 14 permits subdivision with a minimum lot size of 8,000 square metres. Clause 16 requires that the development be consistent with at least one objective of the zone. The parties agree that the proposal meets these requirements of LEP 1996.

10 The Rural Land Strategy 2008 states that the Whittingham area is not suitable for further subdivision due to low pressure water supply at the limit of its capacity. Council initially raised the water supply issue as a contention in the proceedings. However, this has been addressed through council's commitment to prepare a technical services plan to provide a high level reservoir and upgrading, if necessary, of the existing gravitation main and fittings to provide town water supply.

11 Headworks funding will come from charges under s 64 of the Local Government Act applicable to all existing lots in the 1(d) water supply area based on the estimated lot yield created by the subdivision.

12 A condition (condition 1b) is proposed which requires a s 64 contribution to be paid by the applicant. Further conditions (conditions 7 and 8) require the preparation of a water supply study and the applicant to undertake the works required by the study prior to the release of the subdivision certificate. The applicant's agreement to these conditions has addressed council's concerns regarding the provision of water supply to the site.

13 In relation to the other concerns raised by the objectors, principally the change to the rural character of the area, council is satisfied that the land is zoned to permit the subdivision proposed. Inevitably, this will result in a change of character with increased density of development and resultant increase in traffic. However, the proposal is consistent with what is envisaged by the planning controls. The subdivision will provide opportunities for smaller rural allotments in close proximity to the town. There are no constraints or characteristics of the particular site that have been identified which would render it unsuitable for the purpose for which it is zoned.

14 Similarly, in regard to precedent, it is not unreasonable that other sites within the 1(d) zone may seek to be subdivided consistent with the zoning. Each application will need to be considered on its merits.

15 Council did not raise issues with the increase in traffic movements generated by the proposal or the effect on the existing roads or amenity impacts, such as noise. The Department of Defence has been consulted and raises no objections to the subdivision, other than requesting a notation on the s 149 certificate.

16 Council also considered the impact on the State heritage listed Minimbah House to be acceptable, given that it is some 700 metres from the site and is not within its direct visual curtilage.

17 I am, therefore, satisfied that the issues between the parties and those raised by the objectors have been adequately addressed and that the consent orders sought by the parties may be granted.

18 The Court orders by consent that:

(1) The appeal is upheld.

(2) Development consent is granted to development application 170/2009 subject to the conditions contained in Annexure A.

(3) The exhibits, except Exhibits 2, 5, 6 and A, may be returned.

______________________
Annelise Tuor
Commissioner of the Court