Framp v Cabonne Council

[2008] NSWLEC 1234

Land and Environment Court

of New South Wales

CITATION:

Framp and Anor v Cabonne Council [2008] NSWLEC 1234

PARTIES:

APPLICANT
Michael John Framp and
Teresa Marie Spedone

RESPONDENT
Cabonne Council

FILE NUMBER(S):

10172 of 2008

CORAM:

Hussey C

KEY ISSUES:

Development Application :- 2 lot subdivision, minimum lot size, inadequacy of rural road access

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Cabonne Local Environmental Plan 1991

DATES OF HEARING:

28/05/2008

 
DATE OF JUDGMENT: 

28 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Atkin, barrister
Instructed by Cheney & Wilson Solicitors

RESPONDENT
Mr D. Baird, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 May 2008

10172 of 2008 Michael John Framp and Teresa Marie Spedone v Cabonne Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This development application was lodged for a 2-lot subdivision of land situated in Gowan Road, Gowan. The proposed lots to be created are Lot 1 with an area of 100 hectares and Lot 2 with an area of 101.2 hectares.

2 The land is situated in the 1(a) General Rural Zone under the Cabonne Local Environmental Plan (1991) and the development is permissible in the zone, subject to consent. There are a number of zone objectives, which include ‘to promote the proper management and utilisation of the resources by a number of means’.

3 The application was initially refused by the council. However, on reconsideration, the parties have agreed to consent orders. In dealing with the consent orders, I note that there are no objections to this proposal.

4 There were four reasons for refusing the application. The first three reasons primarily relate to the unacceptability of subdividing the land because it would interfere with the primary purpose of using the land for agriculture by conferring a dwelling entitlement on an additional lot. However, this aspect has been considered by the Department of Primary Industries and in their letter of 16 January 2007 they indicate that, firstly, this land is not classified as primary agricultural land. Secondly, there is no impact or concern for fishery considerations. Thirdly, there is no adverse impact in terms of mineral considerations. It would appear from this letter that there are no significant grounds to refuse the application.

5 The other reason for refusing the application concerned the acceptability of the road network providing access to the subdivision in terms of its capability of providing safe transport for the increasing number of road vehicles.

6 By reference to Exhibit 3, it has been marked to show the subject land and its road access. I understand that it is served by a 2-lane rural road that connects to Fremantle Road, a sealed road that provides access to Bathurst. From the subject land to Fremantle Road, there is an unsealed section of 1.5 kilometres, which seems to me satisfactory to safely carry any additional traffic generated by one additional allotment. To the west, Gowan Road continues for a distance of about 11 kilometres to pick up another sealed road that leads to Orange, which is 33 kilometres away.

7 I am satisfied that that fourth reason for refusal has been addressed, in that there is reasonable access to the subject land on the basis of the rural country road standards and incremental change introduced by this application. The additional lot should not result in an undue environmental capacity, taking into consideration the carrying capacity and the safety concerns of the existing access road.

8 I am therefore satisfied that the reasons for refusal have been addressed. I rely on the other satisfactory aspects of the proposal in terms of compliance with the other objectives and controls that were provided in the s 79C assessment in the council officer’s report, which is in exhibit 1.

9 For those reasons then, the Court orders by consent that:

1. The appeal is upheld.

2. Development application No. 2007/117 for the subdivision of land at Lot 2 in DP 775745 (226) Gowan Road, Gowan into two (2) lots is approved subject to the conditions in Annexure A.

___________________

R Hussey
Commissioner of the Court
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