Stewart v Sutherland Shire Council (No 2)

[2005] NSWLEC 771

Land and Environment Court

of New South Wales

CITATION:

Stewart v Sutherland Shire Council (No 2) [2005] NSWLEC 771
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Tim Stewart

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11031 of 2005

CORAM:

Cowdroy J

KEY ISSUES:

Question of Law - Subdivision :- Whether definition of "internal allotment" applies to land the subject of the applicant's development application

LEGISLATION CITED:

Sutherland Shire Local Environmental Plan 2000 cl 5, cl 37

CASES CITED:

Alan Kirkpatrick v Sutherland Shire Council (unreported, Bannon J, 7 August 1996)

DATES OF HEARING:

16/12/2005

 
DATE OF JUDGMENT: 

12/16/2005

EX TEMPORE JUDGMENT DATE:

12/16/2005

LEGAL REPRESENTATIVES:

APPLICANT
M Craig QC
SOLICITORS
Piper Alderman

RESPONDENT
C Leggatt SC
SOLICITORS
C Mathieson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

16 December 2005

11031 of 2005

TIM STEWART
Applicant

SUTHERLAND SHIRE COUNCIL
Respondent

JUDGMENT

1 Cowdroy J: These proceedings comprise an appeal against the imposition by Sutherland Shire Council (“the Council”) of conditions 8 and 9 to a development consent number 041283 issued by the Council on 18 August 2005 (“the consent”). The development consent relates to the subdivision of land known as 121-123 Novara Crescent, Jannali, New South Wales, being the land known as lot 92 in Deposited Plan 36140 and lot 93 in Deposited Plan 36140.

2 Condition 8 of the consent provided:

Design changes required:

To provide safe and convenient vehicular access to the proposed lots from Novara Crescent the following design changes shall be implemented:

(a) the footpath reserve in Novara Crescent shall be lowered to a 4 per cent grade from the top of the existing kerb including the relocation of the existing services to the satisfaction of all utility authorities, details of these design changes shall be undertaken by council’s engineering division and approved under the Roads Act 1993 prior to the issue of a constructions certificate.

3 Condition 9 set out design and construction of works in the public areas.

4 Conditions 8 and 9 have given rise to a question of law to be determined as a preliminary point. The question of law is stated as follows:

Whether the deletion of conditions 8 and 9 of development consent number 041282 issued by the respondent and the resultant change in access to the development from Pavia Road to Novara Crescent render lots B and C internal allotments within the meaning of the Sutherland Shire Local Environmental Plan 2000”.

5 Lots B and C comprise two of the three lots of the proposed subdivision for which consent was granted. Lot B adjoins lot C to its north and lot A adjoins lot B to its north. The lots will be collectively described hereunder as “the lots”.

6 Novara Crescent generally runs north-south and Pavia Road intersects with Novara Road close to the subdivision.

7 The relevant planning instrument is the Sutherland Shire Local Environmental Plan 2000 (“the LEP”). Clause 5 of the LEP contains the definition of “internal allotment” which gives rise to the question of law. It provides:

An internal allotment means an allotment within a residential zone where there is no practical lawful vehicular access to any existing or proposed building on the allotment or where the only practical lawful vehicular access to any existing or proposed building on the allotment is by way of an access corridor (a hatchet shaped allotment) or a right of carriageway over another allotment.

8 “Standard allotment” is defined in cl 5 of the LEP as follows:

Standard allotment means an allotment within a residential zone where practical lawful vehicular access to any existing or proposed building on the allotment is not reliant on an access corridor (a hatchet shaped allotment) or a right of carriageway over another residential allotment.

9 The Council submits that the lots comprise internal allotments. They refer to the decision of Alan Kirkpatrick v Sutherland Shire Council (unreported, Bannon J, 7 August 1996). In that judgment the Court recognised the distinction between “practical access” and “theoretical access” in the consideration of internal lots within the meaning of the Sutherland Shire Local Environmental Plan 2000.

10 The Council submits as follows:

The DA plan will upon registration create lot B and lot C as allotments that have practical lawful vehicular access by a right of carriageway over another allotment. It is self-evident that in such circumstances lot B and C cannot be ‘standard allotments’ as defined in cl 5 of the LEP because access is gained in such a manner.

11 The Council submits that if the lots are not standard allotments they must be internal allotments. Clause 37 of the LEP envisages that there are only two types of allotments, either internal or standard.

12 The Council submits that the purpose and effect of cl 37(2) is to provide a dispensation (reducing the minimum lot size from 700 square metres to 550 m2) where access is to be obtained from a lot directly onto a public road.

13 The applicant submits that the term “practical lawful vehicular access” contained in the definition is critical for an understanding of the term “internal allotment”.

14 The applicant submits that the words “practical lawful vehicular access” demonstrate the need to consider the specific site and to determine whether the lots referred to would have access satisfying such description to a public street. If so, the applicant submits that the definition of internal allotment is not satisfied with the result that the lot is to be defined as a standard allotment.

15 The Court has inspected the site and had the benefit of a view. That has assisted the Court in the understanding of the configuration of the site and of the lots in question.

16 Each lot has a frontage to Novara Crescent and with minor excavation it would be feasible to install a driveway from each lot directly to that road. Accordingly the lots have frontages to a public street, and vehicular access is practical.

17 Such conclusion has also been recognised by the fact that the Council in the consent has required, by virtue of cl 8 of the consent, the applicant to provide access to the lots via that method.

18 Further, applying the purposive approach to the interpretation of the definition of internal allotment contained in the LEP, the object was to ensure that lots which have only a “battleaxe” type access should be larger to compensate for the lack of practical lawful vehicular access to a public street.

19 In these circumstances the definition of internal allotment is clearly inapplicable. It applies where there is “no practical lawful vehicular access to any existing or proposed building” or where “the only practical lawful vehicular access to any building or proposed building on the allotment is by way of an access corridor”.

20 That is clearly not the position with the land the subject of this appeal. The land possesses practical lawful vehicular access to Novara Crescent. The question is whether another means of access should be made available to it, namely from Pavia Road. But that is a question of merit, not a question of law.

21 Accordingly, the Court determines that the question of law as follows:

Whether the deletion of conditions 8 and 9 of development consent number 041283 issued by the respondent and the resultant change in access to the development from Pavia Road to Novara Crescent does not render lots B and C internal allotments as defined in the Sutherland Shire Local Environmental Plan 2000.

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24/02/2006 - This was an ex tempore judgment, not a reserved decision. - Paragraph(s) Coversheet