Thomas v Shoalhaven City Council - [2010] NSWLEC 1264

Land and Environment Court

of New South Wales

CITATION: Thomas v Shoalhaven City Council [2010] NSWLEC 1264

PARTIES:
APPLICANT
Helen Thomas
RESPONDENT
Shoalhaven City Council

FILE NUMBER(S): 10388 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- Character, Precedent.

LEGISLATION CITED: Shoalhaven Local Environmental Plan, 1985
State Environmental Planning Policy No 71 – Coastal Protection
Jervis Bay Regional Environmental Plan 1996

CASES CITED: Parrott v Kiama Municipal Council [2004] NSWLEC 77

TEXTS CITED: Building Code of Australia

DATES OF HEARING: 17 September 2010

DATE OF JUDGMENT:
24 September 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Moggach
SOLICITOR
RMB Lawyers
RESPONDENT
Mr A McKelvey
SOLICITOR
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Morris C

24 September 2010

10388 of 2010 Helen Thomas v Shoalhaven City Council
JUDGMENT

1 Commissioner: This is an appeal against the refusal by Shoalhaven City Council of a development application, which proposed the subdivision of an existing lot at number 20 Bayview Ave, Hyams Beach into two lots.

2 Apart from providing the necessary services to each lot and minor roadworks adjacent to the site, no other works were proposed as part of the application.

3 The council refused consent, as it maintains the proposal is not consistent with the objectives of its development control plan and that the subdivision will provide an undesirable precedent for similar inappropriate development and is therefore not in the public interest.

The site and its context

4 Hyams Beach is a small holiday village that comprises 239 lots, most of which contain single dwelling houses however there are a number of holiday flats and a new, medium density development at its southern end. Many of the properties within the village have extensive views over Hyams Beach and Jervis Bay as the land rises from the water to the west towards the Jervis Bay National Park. The national park forms a treed backdrop to the village.

5 Number 20 Bayview Ave (the site) comprises Lot 16 in DP27401 and is a rectangle shaped allotment that has dual frontage to the south, to Bayview Avenue and to the north, to Moonah Road. An elevated dwelling house is erected to the front of the site and the rear yard comprises a grassed sloped area with perimeter tree planting along the western and northern boundaries.

6 Moonah Road, is not formed at the lot's frontage to the carriageway however, the application proposes the construction of gravel roadway within the road reserve. The rear portion of the lot is located at the intersection of Moonah Road with Illowra Lane however, Illowra Lane is not constructed and is in effect, a "paper road" in this location due to the steep topography.

7 The site has considerable fall from the north-west to south-east with a level difference of approximately 14 m across the site. A pedestrian pathway adjoins the site's eastern boundary and links Moonah Road to Bayview Avenue.

The proposal.

8 It is proposed to subdivide lot 16 into…

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 1264
Decision Date: 24 September 2010

CaseChat Overview and Summary

The appeal in Thomas v Shoalhaven City Council [2010] NSWLEC 1264 was brought against the refusal of the Shoalhaven City Council to grant a development application for the subdivision of an existing lot at 20 Bayview Avenue, Hyams Beach, into two lots. The applicant, Helen Thomas, argued that the refusal was inconsistent with the objectives of the council's development control plan, would create an undesirable precedent, and was not in the public interest. The primary legal issues that the court had to decide were whether the proposed subdivision was consistent with the character of Hyams Beach, whether the lot sizes were sufficient, whether the removal of vegetation would adversely impact the landscape character, whether the creation of driveway access would result in unacceptable functionality of the local street network, whether there were cumulative impacts, and whether the proposal was in the public interest.

The court found that the proposed subdivision would be consistent with the aims and objectives of the Shoalhaven Local Environmental Plan, 1985, the State Environmental Planning Policy No 71 – Coastal Protection, and the Jervis Bay Regional Environmental Plan 1996. The court was also satisfied that the dimensions and area of the proposed allotments were sufficient to provide an appropriate area to site a dwelling, any ancillary outbuildings, private open space, and convenient vehicle access and parking. The court found that the design of any house on the northern lot should step down the site across a series of different levels to minimize earthworks and retaining walls. The court also found that the extent of tree removal was not excessive and that both geotechnical and bushfire risks had been addressed. The court determined that the proposed lots provided a suitable area on which to erect a dwelling house, and that the requirements of the Development Control Plan 100 were satisfied. The court found that the construction of an additional dwelling on the land would not be out of character with the area, and that the council's planning documents could ensure that any dwelling proposed on the land took into account the site constraints.

The final orders of the court were that the appeal was upheld, and the development application for the subdivision of Lot 16 DP 27401, No. 20 Bayview Avenue, Hyams Beach, was granted subject to the conditions included in Annexure A to the orders. The exhibits, other than exhibits 3, C, and E, were to be returned.

Orders