Johnson v Coffs Harbour City Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Johnson v Coffs Harbour City Council [2018] NSWLEC 1094
Hearing dates:	25 January 2018, written submissions received on 2 and 12 February 2018
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	(1) The appeal is dismissed. (2) The development application (0795/17DA) for the subdivision of lots 200 and 201 DP 1183461 at 7 Dirty Creek Road, Dirty Creek, is refused. (3) Exhibits A and 3 are returned.
Catchwords:	DEVELOPMENT APPEAL - Sub-division of two lots by adjusting the boundary – existing irregular lot configuration – alteration sought to boundary to align with physical characteristics of land - whether the alteration constitutes a boundary adjustment
Legislation Cited:	Coffs Harbour Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 ss 79, 97 Land and Environment Court Act 1979 s 34
Cases Cited:	Barnes v Dungog Shire Council [2012] NSWLEC 1021 McCabe & Others v Blue Mountains City Council (2006) 145 LGERA 86; [2006] NSWLEC 176 Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4
Category:	Principal judgment
Parties:	Coral Jean Johnson (Applicant) Coffs Harbour City Council (Respondent)
Representation:	Counsel: Mr R Fox, Solicitor (Applicant) Mr M Winram, Solicitor (Respondent)   Solicitors: Fishburn Watson O’Brien (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2017/266514
Publication restriction:	No

Judgment

1. COMMISSIONER: About 45km north of Coffs Harbour, Ms Johnson owns two lots of land at 7 Dirty Creek Road, Dirty Creek, legally identified as Lots 200 and 201 in DP 1183461. Presently, Lot 201 is divided into 3 parcels of land separated by road and by Lot 200. She seeks development consent to change the boundaries of the two lots so that they reflect the physical separation of Lot 200 and the northern parts of Lot 201 by Solitary Islands Way from the southern part of Lots 201. Her development application was refused by Coffs Harbour City Council (“the Council”) on 18 August 2017. Ms Johnson appeals against that decision pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (“LEC Act”), which commenced with a site view on 25 January 2018. The parties were unable to reach an agreement at the conciliation, but agreed to me disposing of the proceedings on the basis of what occurred at the conciliation pursuant to s 34(4)(b) of the LEC Act. Both parties also made further submissions following the site view.

3. The current configuration of lots 200 and 201 is depicted in Figure 1, and Figure 2 depicts the new boundaries that are sought in the development application.

4. The consequence of the applicable planning framework, which is set out below, is that the only way in which the proposal is permissible with…