Gale v Hornsby Shire Council

[2009] NSWLEC 1119

Land and Environment Court

of New South Wales

CITATION:

Gale v Hornsby Shire Council [2009] NSWLEC 1119

PARTIES:

APPLICANT
David Stuart Gale

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11274 of 2008

CORAM:

Murrell C

KEY ISSUES:

CONSENT ORDERS :- Development application to subdivide an existing allotment of land into 2 lots with an existing dwelling erected on each lot. The lots are below the 500 sq m size SEPP1

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994
State Environmental Planning Policy No. 1

CASES CITED:

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING:

09/04/2009

EX TEMPORE JUDGMENT DATE:

9 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of McKees Legal Solutions

RESPONDENT
Mr I. Woodward, solicitor
of Storey & Gough Lawyers

JUDGMENT:

- 2 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

9 April 2009

11274 of 2008 David Stuart Gale v Hornsby Shire Council

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

JUDGMENT

1 The applicant in these proceedings is seeking to subdivide and allotment of land at No. 18 Fairburn Avenue, West Pennant Hills. The total area of the site is 865 sq m and is located on the curve/corner of Fairburn Avenue. The site has a western boundary to Fairburn Avenue of some 47 metres and a northern boundary of about 17 metres behind the corner splay.

2 Currently erected on the site there is a dual occupancy development the original dwelling is located on the northern portion of the site and council subsequently approved a dwelling house to be erected on the rear of the site as a dual occupancy. The second dwelling house is erected with a small setback to the street and is single storey. The original dwelling for all intents and purposes on the corner is proposed to be situated on a lot of 493.4 sq m and the newer dwelling is proposed to be contained on a lot of 371.6 sq m.

3 The matter was conducted as an on-site hearing and the parties agreed to enter into Consent Orders. Today I have the opportunity of viewing the dwelling houses and understanding the sub-division proposed in the application before the Court.

4 The two proposed lots are below the minimum allotment size of 500 sq m required by the Hornsby Local Environmental Plan 1994. The subject site is located within the Residential A(low density zone) and the objectives are:

a. to provide for the housing needs of the population of the Hornsby area.
b. to promote a variety of housing types and other land uses compatible with a low density residential environment.
c. to provide for a development that is within the environmental capacity of a low density residential environment.

5 Clause 14 of the LEP requires 500 sq m for each lot in a subdivision of land within the Residential A zone and a State Environmental Planning Policy No. 1 objection was submitted to vary the minimum allotment size.

6 Clause 15 of the LEP provides for a maximum floor space ratio of 0.4:1. The existing dwelling house on Lot 1 has a floor space ratio of 0.2:1 and for Lot 2 the FSR is 0.31:1.

7 I am satisfied that the council has advised the objectors to the development application of the proceedings on-site this morning, however they have not avail themselves of the opportunity of being heard.

8 One issue that has been raised is that of precedent as the lots are below the minimum allotment size for a low density area. In terms of the judgment of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, the precedent is a relevant matter to take into consideration. However, the circumstances of this case are that there is an existing second dwelling approved by the council on the lot to be subdivided and no change to the physical layout or current environment would result by the proposed subdivision. The council approved the dwelling house with a 3 metre setback from Fairburn Avenue and a rear setback of 5 metres. The reduced setback to the street is inconsistent with the average setback of other dwellings to Fairburn Avenue however, this is not a matter for my consideration in these proceedings.

9 Given the circumstances of the existing two dwellings on the land I am satisfied that there would be no environmental impacts on both the natural or man made environment that would cause me not to agree with the Consent Orders agreed to the parties.

10 Accordingly, the Court orders by consent.

1. The appeal in respect of the property known as No. 18 Fairburn Avenue, West Pennant Hills is upheld.
2. The development application for subdivision of the above property is determined by the granting of consent subject to the condition contained in Annexure ‘A’.

___________________

J S Murrell
Commissioner of the Court
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Annexure ‘A’

Conditions of Consent for two lot subdivision

DAVID GALE v HORNSBY SHIRE COUNCIL

18 FAIRBURN AVENUE, WEST PENNANT HILLS

REQUIREMENTS PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

The following conditions of consent must be complied with prior to the ‘Principal Certifying Authority’ issuing a Subdivision Certificate’

Note: For the purpose of this consent, any reference to ‘occupation certificate’ shall also be taken to mean ‘interim occupation certificate’ unless otherwise stated.

1. Sydney Water – s73 Certificate

A s73 Certificate must be obtained from Sydney Water .

2. Creation of Easements

The following matter(s) must be nominated on the plan of subdivision under s88B of the Conveyancing Act 1919 :-

a. An inter-allotment drainage easement(s) over the burdened lot.

b. The creation of an appropriate "Positive Covenant" and "Restriction as to User" over the constructed on-site detention/retention systems and outlet works, within the lots in favour of Council in accordance with Council’s prescribed wording. The position of the on-site detention system is to be clearly indicated on the title.

c. To register the OSD system, the restriction on the use of land “works-as-executed” details of the on-site-detention system must be submitted verifying that the required storage and discharge rates have been constructed in accordance with the design requirements. The details must show the invert levels of the on site system together with pipe sizes and grades. Any variations to the approved plans must be shown in red on the “works-as-executed” plan and supported by calculations.

Note: Council must be nominated as the authority to release, vary or modify any easement, restriction or covenant.

ADVISORY NOTES

The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant legislation and Council’s policies and specifications. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act.

Subdivision Certificate Requirements

A subdivision certificate application is required to be lodged with Council containing the following information:

a. A surveyor’s certificate certifying that all structures within the subject land comply with the development consent in regard to the setbacks from the new boundaries.

b. A surveyor’s certificate certifying that all services, drainage lines or access are located wholly within the property boundaries. Where services encroach over the new boundaries, easements are to be created.

Note: Council will not issue a subdivision certificate until all conditions of the development consent have been completed.

House Numbering

House numbering can only be authorised by Council. Before proceeding to number each premise in the development, the allocation of numbers is required to be obtained from Council's Planning Division. The authorised numbers are required to be displayed in a clear manner at or near the main entrance to each premise.

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