Minton v Shoalhaven City Council [2024] NSWLEC 1548

Land and Environment Court New South Wales

Medium Neutral Citation: Minton v Shoalhaven City Council [2024] NSWLEC 1548 Hearing dates: 12 and 13 June 2024 Date of orders: 6 September 2024 Decision date: 06 September 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The written request pursuant to cl 4.6 to justify the contravention of development standard in cl 4.2D of Shoalhaven Local Environmental Plan 2014 is upheld. (2) The appeal is upheld. (3) Development consent is granted to development application DA22/2325 for the construction of a two storey dwelling house with a detached garage and driveway and access road upgrade at 232 Duffys Lane, Budgong legally described as Lot 201 DP 751255 and 222 Duffys Lane, Budgong legally described as Lot 217 DP 751255 subject to the conditions of consent in Annexure A. (4) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – residential development – justification of minimum lot size for dwelling house development standard – bushfire protection measures and performance solution for access to firefighters – whether there is insufficient information to determine the development application – certainty of condition of consent – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 8.14, 9.45, 10.3, Div 6.7, 9.3, 9.5, 9.6 Pt 4, 6, 9 Land and Environment Court Act 1979, ss 34AA, 39 Local Government Act 1993, s 68 Biodiversity Conservation Regulation 2017 Environmental Planning and Assessment Regulation 2021, 38 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021, s 77 Shoalhaven Local Environmental Plan 1985, cll 14, 15 Shoalhaven Local Environmental Plan 2014, cll 2.3, 4.2D, 4.6, 5.9, 5.16, 7.5, 7.6, 7.11 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, s 135 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 235 LGERA 256; [2018] NSWLEC 118 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Lake Illawarra Park Pty Limited v Wollongong City Council [2024] NSWLEC 1027 PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: NSW Department of Planning, Industry and Environment, Illawarra Shoalhaven Regional Plan 2041, May 2021 Planning for Bush Fire Protection 2019 Shoalhaven City Council, Shoalhaven 2040: Our Strategic Land-use Planning Statement, 29 September 2020 Category: Principal judgment Parties: Tracey Minton (First Applicant) Mark Minton (Second Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: N Eastman SC (Applicants) A Seton (Solicitor)(Respondent)