Greenbank v Sutherland Shire Council

[2004] NSWLEC 380

Land and Environment Court

of New South Wales

CITATION:

Greenbank v Sutherland Shire Council [2004] NSWLEC 380

PARTIES:

APPLICANT
Donald Greenbank

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11636 of 2003

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Subdivision of land

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

13/05/2004

EX TEMPORE
JUDGMENT DATE :

05/13/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Greenbank, self represented

RESPONDENT
Mr C Matheison, solilcitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

13 May 2004

11636 of 2003 Donald Greenbank v Sutherland Shire Council

JUDGMENT

1 This is an application that has come before the Court commencing as an on-site hearing in terms of an appeal against the council’s refusal of a development application for the subdivision of land located at 1389 Princes Highway, Heathcote.

2 The proposal was originally considered on-site and the council raised a number of relevant issues for the subdivision of the land, one being that Council needed to be satisfied that a reasonable size dwelling house in terms of future expectations of a future purchaser of the subject subdivided lot could expect and also the impacts on the adjoining property to the south which is within a medium density development.

3 The Court adjoined the proceedings on-site to allow the applicant the opportunity to prepare an indicative plan so that it could be assessed in terms of whether a dwelling house of a reasonable size without undue or unreasonable impacts on the adjoining property which also has access from the rear lane could be achieved.

4 By way of description, this is a residential area and has a rear lane access to the properties that also front the Princes Highway. The area is described as generally of single dwelling houses with a number of more recent multi-unit developments but still of a relatively low density.

5 The issue for the Court is whether a subdivision of the subject site that does not satisfy council’s minimum lot requirements could be achieved for the subject land. With the benefit now of the indicative plans for a dwelling house a further assessment has been carried out. Council has also made an assessment of the dwelling house and potential impacts and is satisfied that the impacts are reasonable on the adjoining property to the south. The approval is subject to a covenant or restrictive instrument being imposed on the subdivision that would run with the land to alert potential purchasers of the subject lot of the restriction of the size of the dwelling ensuring the Court is also satisfied that with the covenant there is no reason why the subdivision should not proceed.

6 The council has indicated that it requires a number of conditions to be attached to the subdivision and one condition includes a requirement for drainage. This is a standard condition council imposes at the sub-division stage and not just at the stage of the construction of a dwelling. The Court is of the opinion that there is no reason why this standard practice of council’s should be varied in this instance. The applicant has the benefit of a subdivision of the subject property and it should ensure that the stormwater drainage system is not unduly impacted and the condition is to satisfy this requirement and is not unreasonable to impose at this stage.

7 On the basis of the council’s assessment report and the evidence to the Court including the site inspection, I am satisfied that there is no reason why consent should not be granted to the proposed subdivision.

8 Accordingly the orders of the Court are:

1. The appeal in respect of the property known as 1389 Princes Highway, Heathcote, is upheld.
2. The development application for the subdivision of the above land submitted to Sutherland Shire Council, and as amended, is approved, subject to the conditions contained in Annexure ‘A’.
3. The exhibits, except for the proposed subdivision plan prepared by V.W. Cochrane and Associates Pty Ltd and the draft conditions are returned.

Nmc/rjs/ljr