Land and Environment Court of New South Wales CITATION : Brown v Gosford City Council (No 2) [2009] NSWLEC 1032 APPLICANT Brett Brown PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10968 of 2005 CORAM: Brown C KEY ISSUES: APPEAL :- modfication application - reconfiguring the approved subdivision boundary - conversion of the existing dual occupancy into a single occupancy with an attached non-habitable studio LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 5/02/09 EX TEMPORE JUDGMENT DATE : 5 February 2009 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Ms P Wright, solicitor SOLICITORS PJ Donnellan & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 5 February 2009 10968 of 2005 Brett Brown v Gosford City Council JUDGMENT 1 COMMISSIONER: On 26 September 2006, by consent, the Court granted consent to Development Application No 2747/2005 for the change of use of an existing dual occupancy into a residential flat building and the subdivision of 715 The Scenic Road, McMaster's Beach into two lots with Lot 1 having an area of 4518 sq metres and Lot 2 having an area of 5482 sq m. 2 This appeal relates to an application to modify Development Application No 2747/2005 under s 96AA of the Environmental Planning and Assessment Act 1979 by: o reconfiguring the approved subdivision boundary to provide Lot 1 with an area of 4407 sq m and Lot 2 within area role of 5593 sq m, and o the conversion of the existing dual occupancy on approved Lot 1 into a single occupancy with an attached non-habitable studio. 3 The modification application comes before the Court for consent orders. In accordance with the Practice Note – Class 1 Development Appeals (cll 35 and 36) the "consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account". 4 The previous approval required a State Environmental Planning Policy No 1 - Development Standard objection to the minimum lot size requirement and while the proposed reconfiguration of the approved subdivision boundaries provides Lot 1 with an area that has a greater departure from the development standard, I accept that it is acceptable as the departure from the approved Lot 1 is not significant and importantly, more orderly lots shapes are provided that will allow greater opportunities for the siting of dwellings and potentially greater amenity. I note that when the modification application was advertised, no objections were received. 5 The orders of the Court, by consent, are; 1. The appeal is upheld. 2. The consent granted by the Court on 26 October 2006 to Development Application No 2747/2005 ("the Consent") for the property at 715 The Scenic Road, McMaster's Beach is modified pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 to reconfigure the approved boundary of the two lot subdivision and convert the existing dual occupancy on approved Lot 1 into a single occupancy with an attached non-habitable studio in accordance with the conditions in Annexure A. __________ G T Brown Commissioner of the Court 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.