White v Byron Shire Council

[2010] NSWLEC 1343

Land and Environment Court

of New South Wales

CITATION:	White v Byron Shire Council [2010] NSWLEC 1343
PARTIES:	APPLICANT Greg White RESPONDENT Byron Shire Council
FILE NUMBER(S):	10519 of 2010
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- appeal against condition imposed on approval for subdivision - agreed alternate subdivision layout - consent orders - objector concerns
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Byron Local Environment Plan 1988 State Environmental Planning Policy No 1 Practice Note – Class 1 Development Appeals
DATES OF HEARING:	6 December 2010, additional information 8 December 2010
DATE OF JUDGMENT:	10 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Young, solicitor SOLICITORS McCartney Young Lawyers RESPONDENT Mr A Seton, solicitor LAWYERS Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 December 2010

10519 of 2010 Greg White v Byron Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against a condition imposed by Byron Shire Council (the council) on the approval of DA 10.2009.610.1 for the subdivision of land at 6 Browns Crescent, McLeods Shoot (the site). The site also has a frontage to the Pacific Highway and is made up of 4 lots; being Lot 2 DP 124404 (1.851 ha), Lot 2 DP 1083791 (44.5 ha), Lot 7 DP 631250 (35.08 ha) and Lot 1 DP 1145292 (1.77 ha).

2 The site is zoned part 7(d) Scenic Escarpment and part 1(a) Rural under Byron Local Environment Plan 1988 (LEP 1988). Clause 11 of LEP 1988 provides that the minimum allotment area is 40 ha for both zones.

3 Relevantly, Development Application DA 10.2008.398.1 was granted consent on 29 September 2008 for a 2-lot subdivision of Lot 2 DP 1083791 and Lot 7 DP 631250, creating Lot 1 with an area of 6.3 ha and proposed Lot 2 with an area of 72.97 ha. In approving the application, the council found that an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was well founded. The subdivision remains unregistered.

4 The subject application seeks to subdivide the site into three lots; being Lot 1 (1.1 ha and formally Lot 2 DP 12404), Lot 2 (35.43 ha and part of proposed Lot 2 from DA 10.2008.398.1) and Lot 3 (40 ha and part of proposed Lot 2 from DA 10.2008.398.1, part of Lot 2 DP 124404 and consolidation of Lot 1 DP 1145292 former road reserve). Condition 1 of the council approval requires the subdivision in accordance with the submitted subdivision plan but with changes “shown in red ink on the approved plans or conditions of consent. Boundaries of Proposed Lot 2 delineated in red ink." The effect of the condition is to allow the adjustment of boundaries but to deny the applicant a further dwelling entitlement for the site through the surrender of the consent that created Lot 1 from DA 10.2008.398.1 there by increasing the size of Lot 2 to 42.1 ha.

5 Following the approval of DA 10.2008.398.1, the applicant and council held further discussions that resulted in a further revised subdivision layout that was acceptable to both parties. The further revised subdivision layout provides for the retention of Lot 1 from DA 10.2008.398.1, a new Lot 1 of 4.4 ha (rather than 1.77 ha) and the amalgamation Lots 2 and 3 (with the exclusion of the area required for new Lot 1) to provide an area of 72.1 ha.

6 The council agreed to enter into consent orders on the basis of the further revised subdivision. In accordance with the Practice Note – Class 1 Development Appeals, par 36, provides in part, that:

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taking into account. Additionally, the consent authority will be required to demonstrate that it has given reasons will notice to all persons who were objected to the proposal….

7 The owners of the adjoining property objected to the subdivision of the site, including the further revised subdivision layout for the following reasons:

• bushfire risk,
• loss of views, and
• construction of a track near their common boundary.

8 With the benefit of the site inspection, I am satisfied that the objections cannot substantiate the refusal of the application. The potential bushfire risk has been addressed by the Rural Fire Service and found not to warrant any specific controls on the subdivision, the view loss is created by trees planted on the applicants property and is not a matter that can be addressed as part of the subdivision application and the track in question is used to access the macadamia plantation on the property and based on the evidence of the applicant, is used infrequently and only for the agricultural use of the land.

9 The council provided a comprehensive bundle documents detailing the subdivision of the site in recent times. I note that no objection was raised, in general terms, to the subdivision of the site by the Department of Planning, the Rural Fire Service and the Department of Industry and Investment in relation to the maintenance of the existing agricultural pursuits on the property. The council also raised no issues in relation to matters such as access, provision of water, sewage disposal, zone objectives and the non-compliance with the minimum lot requirements in LEP 1998.

10 The proposed new lots are both dually zoned 7(d) Scenic Escarpment and 1(a) Rural under LEP 1988 and consequently do not satisfy the minimum lot size development standards in cl 11 so an SEPP 1 objection is required. At the hearing, which was conducted on 6 December 2010 on site with the agreement of the parties, it was found that an amended SEPP 1 objection had not been preparedfor the further revised subdivision layout so the proceedings were adjourned to allow the SEPP 1 objection to be prepared and submitted to the Court. The SEPP 1 objection was provided on 8 December 2010 and having reviewed the document, I accept that it is well founded and that strict compliance with the development standards within cl 11 of LEP 1998 is unreasonable or unnecessary in this case because the further revised subdivision layout does not create any additional dwelling entitlements, and in fact reduces the number of lots from 3 to 2 and protects the agricultural activities currently being carried out on the site.

11 There being no reason why the consent orders should not be granted, the orders of the Court, by consent, are:

1. The appeal is upheld.
2. DA 10.2009.610.1 for a boundary adjustment creating two (2) lots on the land known as Lot 2 DP 124404, Lot 1 DP 11145292 and Lot 2 DP 1155112, 6 Browns Crescent, McLeod's Shoot is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of Exhibit A.

__________
G T Brown
Commissioner of the Court

Annexure “A”

CONDITIONS OF CONSENT:

DA 10.2009.610.1 FOR SUBDIVISION OF LAND AT 6 BROWNS CRESCENT AND PACIFIC HIGHWAY McLEODS SHOOT

PARAMETERS OF THIS CONSENT

1) Development is to be in accordance with approved plans

The development is to be in accordance with plans listed below:

Plan No. Description Prepared by Dated:
Ref 633g Subdivision Plan Ken Chelsworth 25/8/2010

The development is also to be in accordance with the following conditions of consent.

The approved plans and related documents must be kept on site at all times while work is being undertaken.

The following conditions must be complied with prior to issue of a Subdivision Certificate

2) Subdivision Certificate application required

An application for a Subdivision Certificate must be made on the approved form. The Subdivision Certificate fees, in accordance with Council's adopted schedule of fees and charges, must accompany such application.

The following is to be submitted to Council:

a) Seven (7) copies of the plan of subdivision, in accordance with the approved, are to be submitted with the application for a subdivision certificate.

b) The location of all existing buildings and/or other permanent improvements including fences and internal access roads must also be indicated on 1 of the copies.

c) Any encroachments must be removed or relocated wholly within the allotment.

The location of the existing road formation and fences in relation to the property boundaries are to be shown on a survey plan to be submitted to Council. Any encroachments onto the property are to be dedicated as “Road Widening” at no cost to Council.

A Section 88B Instrument and 1 copy are to be submitted with the application for a subdivision certificate. The final plan of subdivision and accompanying Section 88B Instrument are to provide for:

a) Easement for Electricity


The creation of any necessary easements for electricity purposes as required by the electricity supply authority.

The submission of a certificate from a registered surveyor certifying that all pipelines, structures, access driveways and/or services are located wholly within the relevant easements.

Section 100B of the Rural Fires Act 1997

A Bushfire Safety Authority has been issued by the Rural Fire Service without any specific conditions.

NOTES

Protection of the Environment Operations Act 1997:

It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice (“on-the-spot fine”) or prosecution.

_______________
G T Brown
Commissioner of the Court