Lonergan v Byron Shire Council - [2010] NSWLEC 1059

Land and Environment Court

of New South Wales

CITATION: Lonergan v Byron Shire Council [2010] NSWLEC 1059

PARTIES:
APPLICANT:
Chris Lonergan
RESPONDENT:
Byron Shire Council

FILE NUMBER(S): 10566 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Community Title Subdivision, minimum lot size, site suitability of building envelopes, impact on vegetation, public interest

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Byron Local Environmental Plan 1988

CASES CITED: Winten Property Group v North Sydney Council (2001) 130 LGERA 79
Wehbe v Pittwater Council [2007] NSWLEC 827
Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING: 25 November 2009, 9 December 2009, 23 December 2009 and 5 February 2010

DATE OF JUDGMENT:
25 March 2010

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I Hemmings (barrister)
SOLICITOR:
Mr P White of
Harris & Co
RESPONDENT:
Ms K Gerathy (solicitor)
SOLICITORS:
HWL Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 March 2010

10566 of 2009 Chris Lonergan v Byron Shire Council
JUDGMENT

1 This appeal was lodged against council’s refusal of a development application for a 4 – lot community title subdivision at No 40 Corkwood Crescent, Suffolk Park. The contentions identified by council for the appeal are summarised as follows:

The site

2 The site is described as Lot 268 in DP 867768 and has a 40m frontage to Corkwood Crescent, Suffolk Park. It is of regular shape with a total area of 6795 sq m.

3 The site slopes from the west at a contour of approximately 65m, down to a contour of approximately 20m at the eastern boundary. The site is transacted by a watercourse, which flows from the northern boundary to the south – eastern corner of the site.

4 This land was created by the subdivision of the adjoining land and a restriction on use was registered on the title of lot 268 to the effect:

“ The burdened lots shall not be further subdivided provided however that Lot 268 may contain strata subdivision within the portion of the lot which is zoned Residential 2(a)”.

The proposal

5 This proposal is for a community title subdivision to create 3 residential lots and 1 community title lot. The proposed Lot 1 is the road frontage lot that contains a significant natural watercourse, over which a variable width drainage easement is to be created. It is proposed to substantially upgrade the native vegetation in this lot in accordance with a Vegetation Management Plan (VMP).

6 The 3 residential lots then gain access via a right-of way (ROW) approximately 5 – 6m wide along the northern boundary of the property. A concrete culvert is to be constructed within the watercourse to enable access to each of these lots.

7 The residential lots (as shown on Attachment AA) comprise:

Lot 2; being the north-western lot…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1059
Decision Date: 25 March 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Chris Lonergan appealed against the Byron Shire Council's refusal of his development application for a 4-lot community title subdivision at No 40 Corkwood Crescent, Suffolk Park. The central issues included the adequacy of the proposed lot sizes, the suitability of the lots for residences, the impact on vegetation, and the public interest. The site, Lot 268 in DP 867768, has a 40m frontage to Corkwood Crescent and slopes from a contour of approximately 65m in the west to about 20m in the east, with a watercourse flowing through it. The proposal aimed to create 3 residential lots and 1 community title lot. The court considered the adequacy of the proposed lot sizes, particularly in light of the State Environment Planning Policy (SEPP) 1 Objection, which argued for a minimum lot size of 40 hectares for the Scenic Escarpment zoned land.

The court examined the objectives of the SEPP 1 Objection and compared them with the applicant's proposal. The SEPP 1 Objection argued that the minimum lot size was necessary to prevent the development from detracting from the visual amenity of the land. However, the applicant contended that the variation would allow for the subdivision of the residentially zoned part of the site, which would optimize the yield of residential land and not prejudice future planning. The court applied the tests identified in Winten Property Group v North Sydney Council to assess the validity of the SEPP 1 Objection. Ultimately, the court found that there was insufficient evidence to support granting consent for the 3 proposed residential allotments. Instead, the court concluded that the optimal subdivision would be 2 residential lots, achieved by consolidating the proposed lots 2 and 3.

The court also considered the impact on vegetation and the potential for adverse flooding, concluding that the proposed drainage improvement works, including the new culvert, were satisfactory. The court further noted that the proposed residential lots would retain the visual integrity of the land and that the zoning objectives could be achieved. Therefore, the court granted consent for a 3-lot subdivision, which incorporated the amalgamation of the proposed lots 2 and 3, subject to settled conditions.

Orders