White v Byron Shire Council [2010] NSWLEC 1343

Land and Environment Court of New South Wales

CITATION : White v Byron Shire Council [2010] NSWLEC 1343

APPLICANT Greg White PARTIES : RESPONDENT Byron Shire Council

FILE NUMBER(S) : 10519 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- appeal against condition imposed on approval for subdivision - agreed alternate subdivision layout - consent orders - objector concerns

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Byron Local Environment Plan 1988 State Environmental Planning Policy No 1 Practice Note – Class 1 Development Appeals

DATES OF HEARING: 6 December 2010, additional information 8 December 2010

DATE OF JUDGMENT: 10 December 2010

APPLICANT Mr M Young, solicitor SOLICITORS McCartney Young Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor LAWYERS Marsdens Law Group

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

10 December 2010

10519 of 2010 Greg White v Byron Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal against a condition imposed by Byron Shire Council (the council) on the approval of DA 10.2009.610.1 for the subdivision of land at 6 Browns Crescent, McLeods Shoot (the site). The site also has a frontage to the Pacific Highway and is made up of 4 lots; being Lot 2 DP 124404 (1.851 ha), Lot 2 DP 1083791 (44.5 ha), Lot 7 DP 631250 (35.08 ha) and Lot 1 DP 1145292 (1.77 ha). 2 The site is zoned part 7(d) Scenic Escarpment and part 1(a) Rural under Byron Local Environment Plan 1988 (LEP 1988). Clause 11 of LEP 1988 provides that the minimum allotment area is 40 ha for both zones. 3 Relevantly, Development Application DA 10.2008.398.1 was granted consent on 29 September 2008 for a 2-lot subdivision of Lot 2 DP 1083791 and Lot 7 DP 631250, creating Lot 1 with an area of 6.3 ha and proposed Lot 2 with an area of 72.97 ha. In approving the application, the council found that an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was well founded. The subdivision remains unregistered. 4 The subject application seeks to subdivide the site into three lots; being Lot 1 (1.1 ha and formally Lot 2 DP 12404), Lot 2 (35.43 ha and part of proposed Lot 2 from DA 10.2008.398.1) and Lot 3 (40 ha and part of proposed Lot 2 from DA 10.2008.398.1, part of Lot 2 DP 124404 and consolidation of Lot 1 DP 1145292 former road reserve). Condition 1 of the council approval requires the subdivision in accordance with the submitted subdivision plan but with changes "shown in red ink on the approved plans or conditions of consent. Boundaries of Proposed Lot 2 delineated in red ink." The effect of the condition is to allow the adjustment of boundaries but to deny the applicant a further dwelling entitlement for the site through the surrender of the consent that created Lot 1 from DA 10.2008.398.1 there by increasing the size of Lot 2 to 42.1 ha. 5 Following the approval of DA 10.2008.398.1, the applicant and council held further discussions that resulted in a further revised subdivision layout that was acceptable to both parties. The further revised subdivision layout provides for the retention of Lot 1 from DA 10.2008.398.1, a new Lot 1 of 4.4 ha (rather than 1.77 ha) and the amalgamation Lots 2 and 3 (with the exclusion of the area required for new Lot 1) to provide an area of 72.1 ha. 6 The council agreed to enter into consent orders on the basis of the further revised subdivision. In accordance with the Practice Note – Class 1 Development Appeals, par 36, provides in part, that: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. 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 taking into account. Additionally, the consent authority will be required to demonstrate that it has given reasons will notice to all persons who were objected to the proposal….