Lonergan v Byron Shire Council - [2008] NSWLEC 1159

Land and Environment Court

of New South Wales

CITATION: Lonergan v Byron Shire Council [2008] NSWLEC 1159

PARTIES:
APPLICANT
Chris Lonergan
RESPONDENT
Byron Shire Council

FILE NUMBER(S): 10011 of 2008

CORAM: Brown C

KEY ISSUES: Development Application :- subdivision - SEPP 1 objection to lot size

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1

CASES CITED: Thompson v His Honour Judge Byrne& Anor 196 CLR 141
Mills v Meeking & Another (1990) 169 CLR 214
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council [2007] 156 LGERA 446

DATES OF HEARING: 17, 24/04/08

DATE OF JUDGMENT:
1 May 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Williams, solicitor
SOLICITORS
Thompson Norrie
RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

1 May 2008

10011 of 2008 Chris Lonergan v Byron Shire Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 10.2007.636.1 by Byron Shire Council (the council) for the subdivision of 24 Balraith Lane, Ewingsdale (the site) into 2 lots.

2 The principal issue in proceedings was whether an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was well founded, as the size of the proposed lots did not satisfy the council’s standards for subdivision in rural areas.

The site and surrounding area

3 The site is Lot 3 in DP 582689. It is an irregular shaped lot with a total area of 2.029 ha. The site is largely cleared of vegetation with the exception of a gully that transects the site and the higher slopes towards the south-western and southern boundaries. The gully has slopes of up to 27% on both sides. The site generally slopes from the southernmost point of the site to Balraith Lane with a slopes varying between 10% and 20%. An existing dwelling is located towards the southern part of the site with access from a sealed driveway from Balraith Lane.

4 The surrounding area is predominantly rural and rural/residential in nature with existing dwellings being located on lots of varying size but ranging upwards from around 2000 sq m.

The proposal

5 The proposal provides for the subdivision of the existing lot into two lots (see Attachment 1). Proposed Lot 1 has a frontage to Balraith Lane and an area role of 0.8897 ha. A building envelope measuring 15 m by 12 m is shown towards the southern boundary of Lot 1. Proposed lot 2 is located at the southern part of the site and has an area of 1.1388 ha. This lot contains the existing dwelling and has access to Balraith Lane by way of a Right of Carriageway over Lot 1.

Relevant planning controls

6 The site is partly within Zone 1(c2)(Small Holdings Zone) and partly within Zone 7(d) (Scenic Escarpment Zone) under Byron Local Environmental Plan 1988 (LEP 1998). The location of the zoning boundary is shown on Attachment 1. Clause 2A(1)…

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: [2008] NSWLEC 1159
Decision Date: 1 May 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Chris Lonergan appealed the Byron Shire Council's refusal to grant a development application for the subdivision of a 2.029-hectare site in Ewingsdale. The site, located at 24 Balraith Lane, was proposed to be divided into two lots. The council's refusal was based on an objection under the State Environmental Planning Policy No 1 - Development Standards (SEPP 1), which stated that the proposed lots did not meet the minimum size requirements for rural subdivision. The primary issue was whether the SEPP 1 objection was valid, given the site's irregular shape and the practical constraints on development.

The court considered the applicant's argument that the subdivision standard should permit rounding up or down to accommodate non-divisible lots, which was rejected as the standard's language did not support such an interpretation. The court applied a purposive approach to statutory interpretation and found that the subdivision standard's intent was to maintain a minimum lot size to preserve rural amenity and character, without any provision for rounding. The court also examined whether the SEPP 1 objection was well founded by assessing whether strict compliance with the development standard would hinder the attainment of the Environmental Planning and Assessment Act's objects or be unreasonable in the circumstances. The court found that the proposed subdivision did not align with the established character of the rural area, particularly regarding lot size and separation between dwellings. The applicant's proposed building platform was deemed inadequate for accommodating a dwelling and ancillary structures typical of the area, potentially leading to adverse impacts on neighboring properties.

Ultimately, the court dismissed the appeal, upholding the council's decision to refuse the development application. The orders included the dismissal of the appeal, the refusal of the development application, and the return of the exhibits. The decision emphasized that strict compliance with the development standard was both reasonable and necessary, and that the SEPP 1 objection was well founded, leading to the refusal of the subdivision proposal.

Orders