Wiggins v Pittwater Council

Land and Environment Court

of New South Wales

CITATION:

Wiggins v Pittwater Council [2006] NSWLEC 761

PARTIES:

APPLICANT
James Joseph Kenneth Wiggins

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11476 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Subdivision, gradient of access driveway

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Pittwater 21 Development Control Plan

CASES CITED:

Wiggins v Pittwater Council [2006] NSWLEC 286;
Wiggins v Pittwater Council [2006] NSWLEC 543;
Zhang v Canterbury City Council [2001] 51 NSWLR 589;
Ai v Newcastle City Council [2003] 126 LGERA 194

DATES OF HEARING:

28 November 2006

 
DATE OF JUDGMENT: 

12/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Wiggins, self represented

RESPONDENT
Mr D Miller, barrister
Instructed by Mr M Causer, solicitor
Of: Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 December 2006

11476 of 2005 James Joseph Kenneth Wiggins v
Pittwater Council

JUDGMENT

1 On 11 April 2006 I upheld the appeal in Wiggins v Pittwater Council [2006] NSWLEC 286 and granted conditional development consent in relation to Development Application No. 214/05. This application involves the subdivision of two lots into three lots at Nos. 91 and 93 Powderworks Road, North Narrabeen. The effect of the subdivision is to create one additional vacant lot that will be able to be developed for residential purposes. This additional lot will be accessed via an existing steep accessway, which presently provides access to an existing dwelling house. A second existing dwelling house, which will occupy the third lot, will continue to have access directly off Powderworks Road.

2 The respondent subsequently appealed under s 56A of the Land and Environment Court Act 1979 and Lloyd J. set aside my decision and remitted the application for rehearing and determination in accordance with his judgment in Wiggins v Pittwater Council [2006] NSWLEC 543.

3 In that judgment [at 13] His Honour applied Zhang v Canterbury City Council [2001] 51 NSWLR 589 in so far as it was there held that, in accordance with s 79C of the Environmental Planning and Assessment Act 1979 a development control plan had to be considered as a "fundamental element in", or a "focal point of" the decision-making process. In this case the applicable development control plan is Pittwater 21 Development Control Plan ("the DCP"). The provisions therein relevant to this matter are to be found in cll B6.1 and B6.2, which clauses principally deal with the gradient of access driveways.

4 Having considered the provisions of cll B6.1 and B6.2 of the DCP His Honour held [at 16] that the headings to these clauses are not to be taken to be part of the DCP and that:

Clause B6.1 applies to: new dwellings and additions to an attached dual occupancy and to a detached dual occupancy. It does not apply to land subdivision whereas cl B6.2 applies expressly to land subdivision (inter alia).

Hence because the application comprises the…