Fourth Avenue Developments v Hornsby Shire Council [2004] NSWLEC 746

Land and Environment Court of New South Wales

CITATION : Fourth Avenue Developments v Hornsby Shire Council [2004] NSWLEC 746 APPLICANT PARTIES : Fourth Avenue Developments RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10859 of 2004 CORAM: Hoffman C KEY ISSUES: Subdivision :- Community title subdivision - endangered threatened species vegetation - high voltage power lines - potential electrolysis and acoustic impacts from railway - drainage detention system - bushfire potential - heritage woodland adjacent LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994 CASES CITED: DATES OF HEARING: 04/11/2004 and 02/12/2004 EX TEMPORE 12/02/2004 JUDGMENT DATE :

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions

LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

2 December 2004

10859 of 2004 Fourth Avenue Developments Pty Ltd v Hornsby Shire Council

JUDGMENT

1 This was a class one appeal, No. 10859 of 2004, between Fourth Avenue Developments and Hornsby Shire Council. The site is 113-115 Wongala Crescent which are described as Lots 11 and 11A DP10463, Lot E DP364743, Lot G DP381455 and Lot K DP389793, and also No. 9A Boundary Road, Pennant Hills, which is described as Lot B in DP710428. The site has an area of 14,868 sq m, and forms a large internal site bounded by existing allotments with frontages to Boundary Road, Wongala Crescent and Lilla Road. 2 The site has an average gradient of 20% to a creek across the southern part of the site. The site is traversed east west by a high voltage power line along a 30 m wide easement. 3 There is an existing tennis court, stables and rural structures ancillary to the existing dwelling at 113 - 115 Wongala Crescent. The latter buildings are sited on the northern part of the site generally in the location of the proposed allotments and access road. 4 The site is surrounded by low density residential development. It adjoins existing dwellings which front Boundary Road, Lilla Road and Wongala Crescent. The main northern rail line is situated directly opposite the site to its eastern frontage on Wongala Crescent. The commercial and retail centre of Pennant Hills including the railway station and bus interchange is located some 500 m from the site. 5 The subject site is zoned Residential AS (low density, sensitive lands) under Hornsby Shire Local Environmental Plan 1994. The proposed use is defined as subdivision and is permitted with consent within this zone. 6 Clause 7(2) of the LEP requires that the objectives of the zone are to be taken into account before development consent is given to the carrying out of development within that zone. Under cl 14(2) of the LEP there is a minimum lot size of 600 sq m in the Residential AS (low density, sensitive lands) zone. 7 The site is located within the Beecroft Cheltenham Heritage Conservation area as shown in Sch E of the Hornsby LEP. Schedule D of the LEP also lists the bushland beside the railway line on the eastern side of Wongala Crescent as a heritage item of local significance. 8 Under cl 18(5) of the LEP regard must be had to the likely effect of the proposed development on the heritage significance of the heritage item and its setting, or on the heritage significance of the heritage conservation area. When determining an application for consent to carry out development on land in its vicinity this must be assessed. Council's heritage committee considered the proposed application and resolved to raise no objections to the proposed development on heritage grounds. 9 The proposed development is also subject to the relative requirements of the following Development Control Plans: · the Residential Subdivision Development Control Plan, · the Byalls Creek Development Control Plan, · the Heritage Development Control Plan and · the Sustainable Water Development Control Plan.