FKP Residential Developments Pty Limited v Singleton Council

[2007] NSWLEC 620

Land and Environment Court

of New South Wales

CITATION:

FKP Residential Developments Pty Limited v Singleton Council [2007] NSWLEC 620

PARTIES:

APPLICANT
FKP Residential Developments Pty Limited

RESPONDENT
Singleton Council

FILE NUMBER(S):

10312 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- 3 lot rural residential subdivision, impact on neighbours, character, bushfire, acoustics

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Singleton Local Environmental Plan 1996
Hunter Regional Plan 1989

DATES OF HEARING:

20/08/2007

EX TEMPORE JUDGMENT DATE:

20 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Drury, solicitor
of DLA Phillips Fox

RESPONDENT
Ms N. Simmon, solicitor
of Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 August 2007

10312 of 2007 FKP Residential Developments Pty Limited v Singleton Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background

1 This appeal was lodged initially against council’s refusal of a development application for a 4 lot subdivision at Lot 69 DP872749 Lakes Folly Drive, Branxton. Then the application was subsequently amended to create 3 lots with areas of approximately 1.18 hectare, 1.01 hectare, 9878 square metres. The full details of the proposals and the planning controls are contained in the statement of facts on which I rely.

2 Following a detailed assessment of the amended 3 lot subdivision, the parties have agreed to enter consent orders, which includes a number of conditions covering the various contentions that have been raised. Those issues concerned proposals non-compliance with the objectives of the zone, inadequate bushfire protection and the development being considered not in the public interest.

The Site

3 The subject site is Lot 69 DP 872749, Lakes Folly Drive, Branxton, and it has an approximate area of 3.176 ha. The lot is presently undeveloped and has a gentle slope towards the rear of the property. There is one existing sewer connection point to the land.

Planning Controls

4 The land is zoned 1(d) Rural Small Holdings under the Singleton LEP 1996. It is also subject to the provisions of the Hunter Regional Plan 1989. The proposed subdivision is permitted with consent.

5 The objectives of the Rural 1 (d) Small Holdings Zone in the LEP are:

(a) to facilitate and provide for residential development in appropriate locations, taking into account natural constraints,
(b) to maintain and enhance the amenity and landscape quality,
(c) to provide adequate sufficient and orderly servicing.

6 The proposed development is also subject to the provisions of the Singleton Council Erosion and Sediment Control DCP, which requires erosion and sediment control measures to implement any subdivision works.

The Evidence

7 For the appeal, the bush fire issue was addressed in a joint conference by Mr S Shackleton from the Rural Fire Service and Mr B Edie, a bush fire consultant. They agree that the proposal is suitable for conditional consent, subject to compliance with the provisions of the Planning for Bushfires Protection Requirement 2001 and also the provision of water tanks associated with any new dwellings. Accordingly, conditions have been agreed to satisfied this issue and I rely on this agreement. She

8 The other planning issues have been assessed in a joint conference by Mr G Warnes, consulting town planner for council and Mr C Marler, consulting town planner for the applicant. They undertook a detailed assessment in terms of the proposals compliance with the relevant LEP and DCP provisions, concluding that conditional consent was reasonable.

9 There has also been a detailed assessment of the proposal by council planners that is contained in the council’s bundle of documents, which I have considered and I note that assessment also supports this proposal.

10 Apart from this, a number of objections were originally lodged and the objectors were notified of today’s consent orders hearing and they have had the opportunity to participate at the view and at this hearing. Mr Kedwell presented a further summary of the neighbour’s objections in Exhibit 8, which I have also considered.

11 My conclusions are that having considered the evidence, the submissions and undertaken a view, I am satisfied that it is reasonable to grant the consent orders. The proposed 3 lot subdivision comfortably complies with the minimum lot area of 8,000 square metres, which is contained in the development standards in the LEP.

12 For this rural 1(d) zone, I am satisfied from the evidence that the proposal also satisfies the provisions of cl 16 of the LEP in terms of the requirements of the zone objectives, particularly1 (a) and (c).

13 Importantly, I note that this is a subdivision application. The purpose of this subdivision application is to create suitable lots on which dwellings can be erected in the future. On these relatively large rural residential lots, I am satisfied that there is a reasonable choice of building platforms that will enable new residential buildings to be erected, as indicated by the notional footprint locations. However those new buildings will be subject to detailed development applications and assessment when lodged.

14 In terms of the matters raised by the objectors and the proposed conditions of consent, I consider it reasonable that the accessway, via the combined right of carriageway including the sealed pavement, should be widened to a minimum of 7 m wide, that incorporates the agreed 5 m sealed driveway to council’s requirements. This should then allow at least a 1m minimum setback from the common boundary with existing rural residential properties and enable planting of appropriate boundary species.

15 The landscape conditions should be revised to cover the indiscriminate removal of trees and vegetation and also require the provision of supplementary vegetation to endeavour to maintain the character of this area.

16 The effluent disposal from lots 2 and 3 is conditioned to comply with the relevant Australian Standard, which I understand then meets the current requirements. I also rely on the evidence that these lots have sufficient area to comfortably satisfy the requirement for effluent disposal or irrigation beds, as detailed in the joint planning report. This requirement however, is subject to future detailed assessment when the location of any dwellings has been determined on these new lots and would be subject to final assessment and approval at that stage.

17 In terms of the objections raised about storm water run off, there are conditions in the consent, which endeavour to prevent the concentration of storm water run off from the rural residential lots and those conditions primarily restrict any alterations to the natural levels on the site without council’s approval. The main concern is likely to arise when the access driveway is constructed and that will require the submission of detailed engineering designs for the construction certificate. Presumably good practice will ensure that there will not be nuisance caused by run off from this rural area.

18 There were some other objections raised including unauthorised vegetation removal and apparently some previous commitments that the subject land would not be more intensively developed. However, it seems to me that those objections are outside the relevant s 79(c) merit considerations and I give them little weight.

19 In the ultimate, I am satisfied to rely on the detailed planning and the bush fire expert’s report that this 3 lot subdivision merits conditional consent and therefore the Court makes the following consent orders.

1. The appeal is upheld.

2. Development Application No. DA 375/2005 submitted Singleton Council for the subdivision of Lot 69 DP 872 749 into three lots is approved subject to conditions contained in Annexure ‘A’.

3. The exhibits may be returned except for Exhibits 2, 3, 7, A and B.

Note : The Court notes the parties agreement to pay their own costs.

___________________

R Hussey
Commissioner of the Court
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