Croft v Gosford City Council - [2012] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation: Croft v Gosford City Council [2012] NSWLEC 1106
Hearing dates: 23 April 2012
Decision date: 01 May 2012
Jurisdiction: Class 1
Before: O'Neill C
Decision:
1. The appeal is upheld.
2. Development Application No 39861/2010 for the subdivision of the existing property into two allotments and the construction of a new dwelling on Lot 2 is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 1, A, B and C.

Catchwords: DEVELOPMENT APPLICATION - Torrens title subdivision, SEPP 1 objection for minimum lot size, desired future character.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Gosford Planning Scheme Ordinance
Cases Cited: Brand v Gosford City Council [2010] NSWLEC 1010
David Kettle Consulting Services v Gosford City Council 10126 of 2002
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Tuite v Wingercarribee Council (No 2) [2008] NSWLEC 321
Texts Cited: Development Control Plan No. 112 Residential Subdivision
Development Control Plan No. 155 Single Dwellings and Ancillary Structures
Development Control Plan No. 159 Character Amendment No. 1
Category: Principal judgment
Parties:
Mrs Margaret Cecele Croft (Applicant)
Gosford City Council (Respondent)
Representation:
Counsel
Mr Philip Clay (Senior Counsel) (Applicant)

Mr Ian Woodward (Solicitor) (Respondent)
Solicitors
Joseph P Saad & Co (Applicant)
Storey & Gough (Respondent)

File Number(s): 10072 of 2012

Judgment

COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Gosford City Council (the Council) of Development Application DA39861/2010 (the application) for a Torrens Title subdivision of the property into two lots and the construction of a new dwelling on the subdivided allotment, at 25 Remembrance Drive, Wamberal, being Lot 13 DP219829 (the site).

The Court, in the company of the parties and experts conducted a viewing of the site and the adjacent area and neighbouring properties along the length of Remembrance Drive and Ocean View Drive. There were no resident objectors to the proposal present at the site inspection.

Issues

The Council's contentions can be summarised as:

Lot Size:
The proposed size of Lot 1, 468.03m2, is unacceptable as it does not comply with the numerical requirements of the planning controls and would be excessively constrained resulting in adverse impacts;
Both lots would have a slope greater than 15% and such allotments are to have an area no less than 650m2;
The undersized allotments will not provide sufficient area to enable the construction of satisfactory dwellings with suitable private open space and parking;
The State Environmental Planning Policy No 1 - Development Standards objection provided by the applicant fails to demonstrate that compliance with the controls is unreasonable and unnecessary.
Character:
The proposed subdivision is inconsistent with the character of the surrounding area and the established subdivision pattern;
The…

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.

Continue reading Croft v Gosford City Council

Details

AGLC: Croft v Gosford City Council [2012] NSWLEC 1106
Case: [2012] NSWLEC 1106
Decision Date: 01 May 2012

CaseChat Overview and Summary

The appellant, Croft, appealed against a decision of the respondent, Gosford City Council, to refuse Development Application No 39861/2010, which proposed the subdivision of an existing property into two allotments and the construction of a new dwelling on Lot 2. The primary judge, Ball J, found that the refusal was unreasonable and the appeal was allowed. The council was directed to approve the development application subject to certain conditions. The legal issues in the case revolved around whether the refusal of the development application was unreasonable, and whether the council had considered all relevant factors in making its decision. The court found that the council had failed to consider all relevant factors, and had given undue weight to some factors while ignoring others. The court also found that the council had not provided sufficient reasons for its decision, and that the decision was therefore unreasonable. The court upheld the appeal and directed the council to approve the development application subject to certain conditions. The exhibits were returned except for exhibits 1, A, B and C.

Orders

Orders of the court

1. The appeal is upheld.

2. Development Application No 39861/2010 for the subdivision of the existing property into two allotments and the construction of a new dwelling on Lot 2 is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 1, A, B and C.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Croft v Gosford City Council [2012] NSWLEC 1106
Hearing dates:	23 April 2012
Decision date:	01 May 2012
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	1. The appeal is upheld. 2. Development Application No 39861/2010 for the subdivision of the existing property into two allotments and the construction of a new dwelling on Lot 2 is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, A, B and C.
Catchwords:	DEVELOPMENT APPLICATION - Torrens title subdivision, SEPP 1 objection for minimum lot size, desired future character.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Gosford Planning Scheme Ordinance
Cases Cited:	Brand v Gosford City Council [2010] NSWLEC 1010 David Kettle Consulting Services v Gosford City Council 10126 of 2002 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Tuite v Wingercarribee Council (No 2) [2008] NSWLEC 321
Texts Cited:	Development Control Plan No. 112 Residential Subdivision Development Control Plan No. 155 Single Dwellings and Ancillary Structures Development Control Plan No. 159 Character Amendment No. 1
Category:	Principal judgment
Parties:	Mrs Margaret Cecele Croft (Applicant) Gosford City Council (Respondent)
Representation:	Counsel Mr Philip Clay (Senior Counsel) (Applicant) Mr Ian Woodward (Solicitor) (Respondent) Solicitors Joseph P Saad & Co (Applicant) Storey & Gough (Respondent)
File Number(s):	10072 of 2012