Rein Warry and Company v Wollondilly Shire Council [2008] NSWLEC 1176

Land and Environment Court of New South Wales

CITATION : Rein Warry and Company v Wollondilly Shire Council [2008] NSWLEC 1176

APPLICANT Rein Warry and Company PARTIES : RESPONDENT Wollondilly Shire Council

FILE NUMBER(S) : 10098 of 2008

CORAM: Hussey C

KEY ISSUES: Development Application :- Subdivision, SEPP1, Objection to minimise lot size

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wollondilly Local Environmental Plan 1991 State Environmental Planning Policy No.1

DATES OF HEARING: 12/05/2008

EX TEMPORE JUDGMENT DATE : 12 May 2008

APPLICANT Ms P. Whitford, solicitor instructed by Mr S.Kondilios of Maddocks lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr D. Baird, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

12 May 2008

10098 of 2008 Rein Warry and Company v Wollondilly Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background 1 Rein Warry lodged this appeal against council's refusal of a development application for a 2- lot subdivision at 50 Nectarbrook Drive, Theresa Park. This lot has an area of 9.546ha and currently comprises 2 separate portions, which are bi-sected by Nectarbrook Drive. There is a brick cottage and shed erected on the eastern lot (Lot 42). 2 The subdivision proposal is to create: o Lot 41; with a road frontage of 171.9m and area of 4.518ha. o Lot 42; with a road frontage of 173.248m and area of 5.028ha. 3 The current controls in the Wollondilly LEP 1991 prescribe a development standard for a minimum lot size of 40ha in this Zone No 1 (b) (Agricultural Landscape Zone). 4 Rein Warry lodged a comprehensive SEPP 1 Objection to this standard in the circumstances of this case. Initially, this was not accepted by council, resulting in the refusal of the application. However, on review the council decided to support the proposal and referred it to the Department of Planning for concurrence. 5 On 20 September 2007 the Department did not provide its concurrence and noted that: o The land is in Wollondilly Shire LEP 1991 Zone No. 1(b) (Agricultural Landscape), and o The standard under clause 12(2)a is a minimum lot size of 40 hectares. The applicant requests that this standard be greatly varied to allow a subdivision resulting in 2 lots with respective areas of 4.518 hectares and 5.028 hectares. o A major argument presented by the applicant to vary the standard by 90% is that the existing property is affected by a road severance. o Immediately adjacent to this property there are 3 other properties dissected by the same road. Along with this, it is likely that there are other properties affected in a similar manner in the Wollondilly LGA. o The report prepared by staff firmly recommends that Council refuse the development application for a number of valid reasons. o The Department has a particular concern that an undesirable precedent for further subdivision within Zone No. 1(b) (Agricultural Landscape) could be established. Planning Controls 6 Wollondilly Local Environmental Plan 1991 . Under this LEP the land is in the Zone No 1(b) (Agriculture Landscape Zone). The zone objectives are: (a) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character; and (b) to allow for the continuation of existing agricultural practices; and (c) to provide for community titles subdivision subject to appropriate controls; and (d) to maintain existing significant stands of indigenous vegetation; and (e) to protect the water quality of receiving streams and to reduce the incidence of land degradation; and (f) to minimise the visual impact of development on the rule landscape. Amendment No. 28-26/6/98) 7 The LEP does not state the objectives for this minimum lot size of 40 ha contained in cl 12.