John Watts v Mid Coast Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

John Watts v Mid Coast Council [2018] NSWLEC 1012

Hearing dates:

4-5 December 2017

Date of orders:

06 March 2018

Decision date:

16 January 2018

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The orders of the Court are:

(1)       The applicant is granted leave to rely on amended plans at Annexure A;

(2)       The appeal is upheld;

(3)       Consent is granted to Development Application No. DA/60/2014 for subdivision of the land known as Lot 214 DP 22434 (6 The Lakes Way, Elizabeth Beach) into two allotments subject to conditions in Annexure B;

(4)       The exhibits are returned with the exception of the subdivision plan in Annexure A, the conditions in Annexure B and Exhibit A.

Catchwords:

DEVELOPMENT APPEAL: Subdivision application – whether the access to the new allotments is safe and consistent with the relevant planning controls – does the site have legal access over right of carriageway.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy 71- Coastal Protection

Cases Cited:

Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156
Ali v Liverpool City Council [2009] NSWLEC 1327

Category:

Principal judgment

Parties:

John Watts (Applicant)
Mid Coast Council (Respondent)

Representation:

Counsel:
Ms. L Saw (Applicant)
Solicitors:
Mr. A Pickup, Local Government Legal (Respondent)
Mr R Creighton (Agent) (Applicant)

File Number(s):

2017/00214401

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal has been lodged by the applicant in response to the refusal by Mid Coast Council of consent for the subdivision. The application seeks approval for the subdivision of land known as 6 The Lakes Way, Elizabeth Beach into two allotments. The new allotments proposed to be created are:

• Lot 1 with an area of 570m²; and

• Lot 2 with an area of 524m².

2. The Council maintains the application should be refused for the following reasons:

1. Vehicular access to and from proposed Lot 1 across a right of carriageway (‘ROC’) from Lakeside Crescent is considered to be unsafe; and

2. The proposed access arrangements for the subdivision are inconsistent with Council planning policies.

3. During the proceedings Council also argued that the subject land does not have a legal right to ROC that provides access to proposed Lot 1.

4. During Council’s assessment of the application the proposal was notified and no submissions were received by members of the public.

The site and its context

5. The site is legally described as Lot 214 in Deposited Plan 22434 and has an area of 1,094m². The site is presently vacant with a number of trees and a managed understorey. There is a fall of approximately 11 metres from the western boundary to the eastern boundary of the site. The eastern boundary of the site adjoins the ROC.

6. The subject site is located to the eastern and higher side of The Lakes Way, between…