Buchanan v Penrith City Council [2007] NSWLEC 662

Land and Environment Court of New South Wales

CITATION : Buchanan v Penrith City Council [2007] NSWLEC 662

APPLICANT Christine Buchanan PARTIES : RESPONDENT Penrith City Council

FILE NUMBER(S) : 10355 of 2007

CORAM: Brown C

KEY ISSUES: Development Application :- construction of a dwelling, storage shed and onsite sewerage management system - SEPP 1 objection to minimum lot size

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Penrith Local Environmental Plan 201

DATES OF HEARING: 17/09/07

DATE OF JUDGMENT: 18 September 2007

APPLICANT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister SOLICITORS DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

18 September 2007

10355 of 2007 Christine Buchanan v Penrith City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Penrith City Council (the council) of Development Application No. 05/1750 for the construction of a dwelling, storage shed and onsite sewerage management system on Lot 25 Fourth Avenue, Llandilo (the site). The site 2 The site is Lot 25 in DP 2147. It is rectangular in shape with a frontage of 50.292 metres and a depth of 200.727 metres and an area of 1.01 ha.

3 Currently constructed on the site is a demountable dwelling and a partially opened sided corrugated metal structure. The council submits that the demountable dwelling has no consent. The general area is low-scale rural residential development interspersed with remnant native vegetation. Relevant planning controls 4 The site is within Zone No. 1(a) under Penrith Local Environmental Plan 201 (LEP 201). Clause 9(3) provides that consent must not be granted unless the proposal is consistent with the objectives of the plan and the zone. Clause 11 provides that consent to subdivision of land within zone 1(a) may only occur where the area of each lot is not less than 40 ha. Clause 12(2)(c) however provides that a dwelling house may be erected on "vacant land" within a 1(a) zone if the land is not less than 2 ha and is located in Sch 1 of LEP 201. The site falls within Sch 1 being: All the land within the area bounded by Terrybrook Road, Ninth Avenue, Second Avenue, and Mayo Road, Llandilo .