Cornish Group No.2 Pty Ltd v Camden Council

[2019] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cornish Group No.2 Pty Ltd v Camden Council [2019] NSWLEC 1250
Hearing dates:	27 May 2019
Date of orders:	27 May 2019
Decision date:	27 May 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application No 2018/941/1 for the subdivision of Lot 5016 DP 1211914 into 4 Torrens title allotments is granted subject to the conditions in Annexure A. (3) The exhibits apart from Exhibits A, B, C, 1 and 4 are returned.
Catchwords:	DEVELOPMENT APPLICATION – subdivision of residue lot – historical access road corridor
Legislation Cited:	State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Texts Cited:	Camden Development Control Plan 2011 Camden Growth Centre Precincts Development Control Plan 2016
Category:	Principal judgment
Parties:	Cornish Group No.2 Pty Ltd (Applicant) Camden Council (Respondent)
Representation:	Solicitors: A Seton, Marsdens Law Group (Applicant) D Loether, Bartier Perry (Respondent)
File Number(s):	2018/314478
Publication restriction:	No

Judgment

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

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA 18/0941/1) for the subdivision of the residual Lot 5016 in DP 1211914 (also known 138-142 Aqueduct Street, Leppington) into four residential lots (site).

2. The Council opposes the application because it contends that the proposed subdivision of the site will negate the opportunity to provide a public road connection to the East Leppington Precinct (Precinct) of the Sydney West Growth Centre. Mindful that the Campbelltown Local Government Area (LGA) adjoins the eastern rear boundary of the site, and noting that the East Leppington Indicative Layout Plan, as shown in Figure 2.1, Schedule Three of the Camden Growth Centre Precincts Development Control Plan 2016, requires the provision of a local road adjoining the boundary of 71 St Andrews Road, Varroville (behind the site), the Council submits that a road connection through Lot 5016 is a logical extension of the Precinct as it achieves the objective of the Camden Development Control Plan 2011 Part C 5.2.1 to “provide a hierarchy of interconnected streets that provide safe, convenient and legible access within and beyond the Camden LGA”.

3. The applicant submits the Council’s opportunity to achieve this public road connection has passed because the Council did not act within time to acquire the applicant‘s site for that purpose. As a consequence, the oversized allotment remains and is ripe for development – including, based on the agreed evidence the proposal before the Court.

4. In that regard, the planning experts, Mr Jeff Mead (applicant) and Mr Ryan Pritchard (Council), have agreed in their joint report (Exhibit 2) that the proposed subdivision is permissible with consent within the R2 Low Density Residential zone under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP) and compliant with the minimum allotment sizes and the other relevant controls related to subdivision.

5. Although the adjoining landowner contends that an approval of this subdivision will restrict the potential access to his site (which is the subject of a Planning Proposal before the Campbelltown LGA) – the planning evidence does not support this outcome. Rather, the planners agree that the proposal, if approved, will not land lock or isolate the property at the eastern boundary at 71 St Andrews Road from future development by not providing a road connection across the site. That is because there is an alternate road connection available by way of extension of St Andrews Road, subject to upgrade of that road.

6. Moreover, the relevance the objector’s Planning Proposal in my assessment of this DA is even more obscure when am told that the proposed spot rezoning has yet to be approved by the Campbelltown Council, and is therefore a long way out from Gateway approval by the Department. As such, the Planning Proposal clearly falls outside s 4.15(1)(a)(ii) of the EPA Act and is simply a background matter. Mr Turisi, the planner who spoke for the objector at the hearing conceded as much when he asked me if he could run through the history of the development of the residue lot. The Council’s Statement of Facts and Contentions has also summarised this planning background. However, as stated, the fact that on 30 July 2015, the Former Sydney West Regional Planning Panel (the Panel) decided to grant development consent for the now developed 213 residential subdivision and provided a potential future road connection to land to the east at 51 – 61 St Andrews Road, Leppington (DA 14/842/1) –which was subsequently varied to the approved Indicative Layout Plan (ILP) under DA 14/842/1 which created the applicant’s residue lot and provided via condition 1.1C a window of opportunity for its acquisition by Camden Council for future road widening upon the payment of $1 (now lapsed) - is simply irrelevant to my assessment of this DA.

Conclusion

7. Accordingly, as the planners have not identified any proper planning basis upon which to refuse consent to this 4 lot subdivision, I have decided after assessment to grant approval to the DA. The applicant accepts the imposition of the Council’s conditions of consent (Exhibit 4), therefore the Court orders:

1. The appeal is upheld.

2. Development Application No 2018/941/1 for the subdivision of Lot 5016 DP 1211914 into 4 Torrens title allotments is granted subject to the conditions in Annexure A.

3. The exhibits apart from Exhibits A, B, C, 1 and 4 are returned.

……………………………

S Dixon

Senior Commissioner of the Court

Annexure A

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Decision last updated: 05 June 2019