Le v Fairfield City Council

[2007] NSWLEC 80

Land and Environment Court

of New South Wales

CITATION:

Le v Fairfield City Council [2007] NSWLEC 80

PARTIES:

APPLICANT
Quan Than Le

RESPONDENT
Fairfield City Council

FILE NUMBER(S):

10984 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Battle-axe subdivision, width of allotment, width of access corridor

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Fairfield Local Environmental Plan 1994

DATES OF HEARING:

19/02/2007

 
DATE OF JUDGMENT: 

2 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr G. Castellan, solicitor
of Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 March 2007

10984 of 2006 Quang Than Le v Fairfield City Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for a 2 lot residential subdivision at No. 42 Curtin Street, Cabramatta. The subject site has a total area of 1012 sq m and a street frontage of 13.485m.

2 There is any existing single storey clad and tiled roof dwelling, garage and shed on the subject land. It has a large rear yard, which is currently vacant.

3 The proposed subdivision is described as:

• Lot 1; the frontage lot with an area of 527.47 sq m and street frontage of 12.695 m. This lot is subject to a 2.5 m wide right-of-way (ROW), which facilitates access to the rear lot,
• Lot 2; which is the rear hatchet-shaped lot with an area of 450 sq m, excluding the right-of-way. It includes a 1 m wide right-of-way handle, to connect No. 2 Curtin Street.

4 The main issues concern on the area of the road frontage allotment and the width and utility of the effective battleaxe handle to the rear lot.

Planning Controls

Fairfield Local Environmental Plan 1994 ;
Under which the site is zoned 2 (a), Residential and the proposed subdivision is permissible with consent, subject to the provisions of clause 22A, which are of 450 sqm for each new allotment.
Fairfield City Wide Development Control Plan 2006;
This DCP contains the detailed controls for subdivision, including:
• Lot sizes, where the objectives are to;
• Ensure privacy is maximised for neighbours of the development and those who occupy the single dwelling.
• Provide space for private recreation purposes.
• Provide space for landscaping.
• Front, side and rear setback controls,
• Dwelling positions,
• Off-street parking,
• Privacy.
DCP Subdivision Chapter ;
This control provides minor changes to the City Wide DCP. Of relevance in this matter it stipulates that the proposed control for battleaxe handle width is 4 m (increased from 3.5 m), to comply with the recommendations of the NSW Fire Brigades Policy for Minor Residential Developments Revision 3.

The evidence.

5 Detailed evidence on behalf of council was presented by Mr G Lucas (council's coordinator engineering assessment) and Mr G Milienou (council town planner).

6 Mr R McGuiness (consulting town planner) provided evidence on behalf of the applicant.

7 A joint planning conference was undertaken Mr McGuiness and Mr Lucas.

8 However, in response to the issues raised the applicant submitted amended plans at the on-site hearing. These amended plans comprise ‘ Treatment 1’, which provides for an effective 4 m wide right of carriageway for the rear allotment, together with alteration to the side boundary of the existing dwelling. ‘ Treatment 2’ provides for a similar 4 m access handle, together with removal of approximately a 1 m of design or of the existing dwelling and replacement with a fire rated, new cavity brick wall. It also included alterations to the front (northern) elevation of the dwelling, to maintain a reasonable level of symmetry for existing dwelling.

9 After consideration of these amended plans, both Mr Lucas and Mr Milienou were satisfied that the ‘ Treatment 2’ plans reasonably satisfied that planning controls, to merit conditional consent.

Conclusion.

10 Having considered the evidence and undertaken a view I am satisfied that these amended ‘ Treatment 2’ plans merit consent. In the first instance, both lots exceed the minimum lot area of 450 sq m, as provided for in the DCP. It is apparent that there is sufficient unconstrained land to unable the construction of a new dwelling on the rear hatchet shaped lot.

11 This also appears to be the case with a number of the adjoining properties, which have large undeveloped rear yard areas. However, in the absence of any plans to coordinate access to these rear yard areas to facilitate more orderly subdivision and development, inevitably this is to be achieved by a series of battleaxe lots.

12 Under these circumstances, the amended plan now provides the minimum access corridor of 4 m, albeit with a 1m wide legal handle for Lot 2, together with a 3 m right of carriageway over front Lot 1, which complies with councils requirements.

13 This proposal also satisfies the on-site parking provisions and the requirements for services to the rear allotment, according to the evidence put before the Court.

14 In the absence of any significant challenge to this amended proposal, I accept that conditional consent should now be granted. The conditions should provide for the designated alterations to the existing dwelling house and provision of the access driveway, service corridor and landscaping arranges, prior to release of the Subdivision Certificate.

Court Orders

1. The appeal is upheld.
2. Development consent is granted to DA 733/2006 for a 2 lot subdivision of No. 42 Curtin Street, Cabramatta subject to the conditions in Annexure A.
3. Exhibits may be returned except for 3,A, D, F and G.

___________________

R Hussey
Commissioner of the Court
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