Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649

Land and Environment Court New South Wales

Medium Neutral Citation: Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649 Hearing dates: 6 and 7 September 2021 Date of orders: 12 November 2021 Decision date: 12 November 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed; (2) Development Application 492.1/2019 seeking consent for subdivision of one lot into two lots, associated internal fencing, landscape and stormwater works is determined by way of refusal; (3) The exhibits are returned, with the exception of Exhibits A, B, C and 1. Catchwords: DEVELOPMENT APPLICATION – subdivision of land – Prospect Creek floodplain – high risk flood precinct – whether site is suitable for future residential development – compatibility with the flood risk and flood hazard of land – whether cl 6.3 of Fairfield Local Environmental Plan applies – whether proposal is a reasonable alternative solution that achieves objectives of DCP controls Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 7 Fairfield Local Environment Plan 2013 cll 2.3, 4.1, 5.21, 6.3 Land and Environment Court Act 1979, ss 34, 34C Standard Instrument (Local Environmental Plans) Order 2006, cl 8 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021, Sch1 State Environmental Planning Policy Amendment (Flood Planning) 2021, Sch 1 Cases Cited: IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Texts Cited: Australian Rainfall and Runoff: A Guide to Flood Estimation, Commonwealth of Australia, 2019 Department of Infrastructure, Planning and Natural Resources, Floodplain Development Manual 2005 Fairfield Citywide Development Control Plan 2013 Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Rothshire Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) A Seton (Solicitor) (Respondent)