Allen and anor v Cessnock City Council [2010] NSWLEC 1179

Land and Environment Court of New South Wales

CITATION : Allen and anor v Cessnock City Council [2010] NSWLEC 1179

APPLICANTS N & K Allen PARTIES : RESPONDENT Cessnock City Council

FILE NUMBER(S) : 10072 of 2010

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS - SUBDIVISION :- Non-compliance with minimum allotment size

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Cessnock Local Environmental Plan 1989 State Environment Planning Policy No 1

CASES CITED: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446

DATES OF HEARING: 28 May 2010

EX TEMPORE JUDGMENT DATE : 28 May 2010

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr A McKelvey, solicitor Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

28 May 2010

10/10072 N & K Allen v Cessnock City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: By Development Application 8/2008/824/1, Mr and Mrs Allen sought consent from Cessnock City Council (the council) to subdivide Lot 1154 in Deposited Plan 785691 into two allotments. The present lot is some 21.5 ha in area with dual frontages to Richmond Vale Road, Mulbring – a small rural area between Cessnock City and the main Sydney to North Coast Freeway. 2 The proposal seeks to create an allotment of some 19.6 ha that would include the present residence and machinery shed and a new allotment (using the smaller and south-western arm of the frontage to Richmond Vale Road) of 2 ha. 3 The reason for the unusual configuration of the road frontages and the present allotment is a consequence of the subdivision, some 25 years or so ago, of a 2 ha concessional allotment under the then provisions of the then Cessnock Local Environmental Plan. 4 The present proposal and has been rejected by the council on a number of bases – the principal ones arise from the terms of the Cessnock Local Environmental Plan 1989 (the LEP) and the objectives of the Rural 1(a) zone within which the land is located coupled with the minimum allotment size specified by cl 12 of the LEP. This clause requires that the land in the zone shall not be subdivided unless each allotment to be created has an area of not less than 40 ha. 5 The applicants have submitted an objection pursuant to State Environment Planning Policy No 1 (SEPP 1) to compliance with the development standard contained in that provision of the LEP. 6 If the applicants surmount that hurdle, a matter to which I will return, the council then submits, through its solicitor, Mr McKelvey, that as a consequence of cl 9(3) of the LEP, I would not be satisfied that the development is consistent with the objectives of the zone and that, unless I am able to form that opinion as required by that clause, on the merits I must refuse the application. 7 If Mr and Mrs Allen surmount both those hurdles, there are a number of minor matters that are put as impediments by the council – the principal one of which, on my understanding of the council's Statement of Facts and Contentions, is the potential unavailability of electricity supply to the land. 8 I indicate at this point that it if the application surmounts the earlier more formidable hurdles, I have reached the conclusion that the question of electricity supply is capable of being dealt with by deferred commencement of condition and does not stand as an impediment. Any other minor concerns are also able to be dealt with by condition. 9 There are no other substantial merit matters, at least as I understand it, concerning access to the road, other services and the like that stand as impediments to the proposal. 10 It is appropriate, at this point, to record the objectives of the Rural 1(a) zone from the zoning table in the LEP. These are: (a) to enable the continuation of existing forms of agricultural land use and occupation, (b) to ensure that potentially productive land is not withdrawn from production, (c) to encourage new forms of agricultural land use, (d) to enable other forms of development which are associated with rural activity and which require an isolated location, or which support tourism and recreation, and (e) to ensure that the type and intensity of development is appropriate in relation to: (i) the rural capability and suitability of the land, (ii) the preservation of the agricultural, mineral and extractive production potential of the land, (iii) the rural environment (including scenic resources), and (iv) the costs of providing public services and amenities.