Titan Property Holdings Pty Ltd v Wyong Shire Council

[2007] NSWLEC 379

Land and Environment Court

of New South Wales

CITATION:

Titan Property Holdings Pty Ltd v Wyong Shire Council [2007] NSWLEC 379

PARTIES:

APPLICANT
Titan Property Holdings Pty Ltd

RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

10139 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- strata subdivision of residential flat building, minimum Lot size.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wyong Local Environmental Plan 1991
State Environmental Planning Policy No. 1 - Development Standards

DATES OF HEARING:

08/06/2007

EX TEMPORE JUDGMENT DATE:

8 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Byrd, solicitor
of P J Donnellan & Co

RESPONDENT
Mr T. Reilly, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 June 2007

10139 of 2007 Titan Property Holdings Pty Ltd v Wyong Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT

1 This appeal relates to Development Application No. 1482/2006, for the strata subdivision of an approved residential flat building into 67 lots at Lot 61 DP 858119, being 708 Pacific Highway, Hamlyn Terrace. The existing development consent was issued by the Court on 3 July 2002 (Matter No. 10962 of 2001).

2 The site is zoned 2(e)-Urban Release Area Zone under the provisions of Wyong Local Environmental Plan 1991 (“the LEP”). The objectives of the 2(e) relevantly include the need to cater for a range of housing types appropriate to a greenfield urban release area, and there was no suggestion that this strata subdivision proposal would be inconsistent with that objective.

3 Relevantly applied, cl 42D of the LEP contains a development standard that requires, for the purposes of the subdivision of land, that lots being created should not have an area of less than 450 sq m. The proposal, having lots within the range of 192 sq m to 319 sq m does not comply with cl 42D. This being a development standard, the applicant has resultantly provided an objection under State Environmental Planning Policy No. 1 (“SEPP”). It was cl 42D of the LEP that formed the basis for the council’s reason for refusal of the application, and thus concluded in the Statement of Issues that was filed in the Court.

4 This matter has now been further reviewed by the council, and as a consequence, the SEPP No. 1 objection is accepted, and there being no other matter of concern to the council, the Court is now invited to make consent orders that uphold the appeal, and grant the development consent as sought.

5 The Court has the benefit of a council officer’s report, which considers the subdivision question and the SEPP No. 1 objection in some detail, acknowledging the non-compliance with cl 42D, but concluding that the intent of the Urban Release Area Zone and other applicable planning controls are maintained as a result of the proposed subdivision. That report also concludes that it would be unreasonable and unnecessary to require compliance with the 450 sq m lot size requirement. Having considered the SEPP No. 1 objection, and the council officer’s report, I am satisfied that the objection is well founded, and that the non-compliance with the development standard should not be a reason to refuse this application.

6 Therefore the orders of the Court by consent are that the Appeal is upheld and development consent granted. Exhibit 1 is retained. The Court notes that the parties have agreed that there be no order as to costs.

___________________

T A Bly
Commissioner of the Court
Ljr/A.K