Land and Environment Court of New South Wales CITATION : Longitude Planning v Sutherland SC [2005] NSWLEC 428 APPLICANT Longitude Planning PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10138 of 2004 CORAM: Murrell C Appeal :- Refusal of subdivision - impact on foreshore and vegetation - cul-de-sac turning circle - adequacy of lot to accommodate dwelling KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 Development Control Plan - Sandy Point DATES OF HEARING: Telephone mentions 26/08/2004, 15/10/2004, 3/12/2004,11/02/2005, 03/03/2005, 18/03/2005, 19/04/2005 - (Hearing dates) 27/07/2004 and 19/07/2005 EX TEMPORE JUDGMENT DATE : 07/19/2005 APPLICANT Mr M. Ball, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr C. Mathieson, solicitor of Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 19 July 2005 10138 of 2004 Longitude Planning v Sutherland Shire Council JUDGMENT 1 This matter has come before me today as consent orders. The appeal was in respect of a refusal by Sutherland Shire Council for a subdivision application of the property known as No. 25 St Georges Crescent, Sandy Point. 2 The matter is one that has since that time progressed in terms of the council's issues that were originally identified in the statement of issues being resolved and this has been due partly to additional land from an adjoining property owner to the north being incorporated in the proposed subdivision. 3 As such the amended subdivision application was advertised and the original objectors to the proposed development were also informed. There were a number of written objections to the original subdivision application and the Court also heard evidence from objectors and the experts on the view that commenced on site on 27 July 2004. 4 The residents from the latest correspondence in terms of the precinct committee are still objecting to the proposed development in that it does not satisfy council's requirement in terms of the minimum allotment size. However, I am satisfied on the basis of the experts' evidence, Ms Debbie Pinfold of Sutherland Shire Council, senior assessment officer; Mr Anderson of Sutherland Shire Council, senior engineer; and Mr Warren Long, the applicant's consultant town planner, that the proposed development satisfies the objectives of the council's requirements in the development control plan for Sandy Point and in terms of the Local Environmental Plan for Sutherland. 5 The proposed subdivision is one that will allow for an extension of the Gambier Place roadway and with the consultation with the adjoining landowner to the north, a turning head can be provided that satisfies the engineer's requirement for waste services and emergency vehicles. 6 The proposed development has been the subject of consideration in terms of the Royal Bushfire Services requirements and there is advice that it is satisfactory to conditions. Also with respect to being within 40 m of a waterway, the Department of Infrastructure Planning and Natural Resources conditions have been sought and the general terms are provided in council's conditions. The DIPNR requirement for a pt 3(a) permit is still required, however, the conditions incorporate the general terms of agreement. 7 The proposal is one that is on the Georges River and it is within an area that is environmentally sensitive. As such the proposed application provides for a level spreader to ensure the water regime to the wetlands below the subject site is maintained by the future development. The conditions also contain a requirement of a s 88(b) instrument to ensure that any dwelling house in terms of its building envelope height and other requirements is in accordance with the indicative plan that has been submitted with the subdivision application. 8 Due to the sensitivity of the area the Court agrees with council that it is necessary and appropriate if subdivision approval is to be granted that it be subject to an 88(b) instrument and those requirements are contained within council's conditions. I also note for the record that the conditions are agreed to by the applicant. 9 When the matter first came before the Court there were a number of issues including: engineering matters in terms and the road; specifications and requirements; the environment; and the minimum allotment size, or more particularly whether a future lot could accommodate an appropriate dwelling. The indicative plan has demonstrated to the council officer's satisfaction, and I agree with her assessment in this regard, that the lot in question is capable of meeting council's objectives. 10 The council has advised the objectors in terms of the practice direction for consent orders on 24 June 2005, and I am satisfied that adequate time has been provided for any objectors to come to court today. It is noted that council's solicitor, Mr Mathieson, has received two calls with respect to the court hearing and none of the objectors have availed themselves of coming to Court, however this does not mean that I have not considered their concerns. I have considered their concerns but I am in agreement with the assessment officer that their concerns are ones that the amended plan, have overcome in terms of the requirements of council. 11 I am satisfied that a reduction in the footpath size from 3 m to 2 m in the circumstances of this case is appropriate and meets the objects of the Act. 12 Amended plans submitted to the Court in respect of the application, as I said, that includes part of the land owner's lot to the north, some 80 sq m, as well as a future subdivision for the turning circle of the Gambier Place cul-de-sac. The council has provided a further bundle of documents to demonstrate the additional information and objections that were received to the proposal and has reassessed the amended proposal. The council has been of great assistance co-operated in terms of its requirement and assessment of the amended proposal and assessed it accordingly, and I am satisfied that the proposed subdivision with the indicative dwelling is one that warrants approval. 13 Therefore on the basis of my assessment, and on the basis of the consent orders that have been entered into between the council and the applicant and the expert evidence that the Court has had the opportunity to hear this morning, the Court orders are: 1. The appeal in respect of the property known as No. 25 St Georges Crescent, Sandy Point is upheld. 2. The subdivision application submitted to Sutherland Shire Council, and as amended is approved subject to the conditions contained in Annexure A. 3. The exhibits except for 19, O, P and T are returned. 4. There is no order as to costs. ___________________ J S Murrell Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.