Tim Stewart v Sutherland Shire Council [2006] NSWLEC 7

Land and Environment Court of New South Wales

CITATION : Tim Stewart v Sutherland Shire Council [2006] NSWLEC 7

APPLICANT: PARTIES : Tim Stewart RESPONDENT: Sutherland Shire Council

FILE NUMBER(S) : 11031 of 2005

CORAM: Watts C at 1

Development Application :- SEPP1 objection to site area standard KEY ISSUES: Streetscape and character Traffic safety

Sutherland Shire Local Environmental Plan 2000, (SSLEP) LEGISLATION CITED: Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported); CASES CITED: Novara Crescent Pty Limited v Sutherland Shire Council [2004] NSWLEC 403; Winten Property Group Limited -v- North Sydney Council NSWLEC 46, 6 April 2001.

DATES OF HEARING: 16/12/2005

DATE OF JUDGMENT: 01/13/2006

APPLICANT: Mr M Craig, QC, instructed by Ms J L Ware, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Piper Alderman RESPONDENT: Mr C J Leggat, SC, instructed by Mr C Mathieson, solicitor SOLICITORS: N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

13 January 2006

11031 of 2005 - Tim Stewart v Sutherland Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council (the council) to attach certain conditions to development consent to subdivide two existing allotments into three at Lots 92 and 93, DP 36140, being Nos 121 - 123 Novara Crescent, Como. The development application is to be considered afresh by the Court. 2 I visited the land in company with the parties and His Honour Cowdroy J on the morning of the hearing. His Honour decided the question of law posed by the applicant and the Chief Judge concurred in the merit matter being dealt with by the Commissioner. During the site visit, local residents gave evidence. 3 I have concluded when considered under s 79C of the Environmental Planning and Assessment Act 1979, the land may be subdivided as proposed and contrary to the council's contention, Conditions 8 and 9 may be replaced with conditions that relate to vehicular access being obtained from Pavia Road. The land 4 The land is situated on the northwestern side of Novara Crescent; however, no vehicular access is proposed from that street. The land is irregular in shape with a frontage of 40.565 metres to Novara Crescent not including the corner splay, [around 54 metres excluding the splay], a frontage of 40.15 metres to Pavia Road not including the corner splay, [around 57 metres excluding the splay], a side boundary of 38.93 metres and a rear boundary of 28.65 metres and an area of some 1,590.1 square metres. 5 The land slopes down from west to east with a level difference ranging between 4 metres and 9.8 metres. There is also a cross fall of 2.5 metres at the Novara Crescent alignment. The footpath and the level of the eastern Novara Crescent frontage of the land is elevated above the roadway about 1 metre to 1.5 metres. 6 Significant mature trees exist on the land mainly on the western side and on the road reserve of Pavia Road. There are also round boulders or floaters on the western side of the land that are an impressive natural feature. 7 Erected on each existing allotments is a single-storey detached dwelling house. 8 Nearby the residential area is characterised by detached dwellings. Relevant planning controls Sutherland Shire Local Environmental Plan 2000, (SSLEP) 9 Under the provisions of the SSLEP the land is zoned 2(a1) Residential and 'subdivision' is permissible with consent. 10 The objective of the residential zone under the SSLEP is: A residential environment: (a) where the scale, amenity and general character of the area is preserved, and (b) where the streetscape is characterised by detached 1 and 2 storey residential buildings, and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, town house or villa house developments, and (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity.