Lonergan v Byron Shire Council [2010] NSWLEC 1059

Land and Environment Court of New South Wales

CITATION : Lonergan v Byron Shire Council [2010] NSWLEC 1059

APPLICANT: Chris Lonergan PARTIES : RESPONDENT: Byron Shire Council

FILE NUMBER(S) : 10566 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Community Title Subdivision, minimum lot size, site suitability of building envelopes, impact on vegetation, public interest

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Byron Local Environmental Plan 1988

Winten Property Group v North Sydney Council (2001) 130 LGERA 79 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING: 25 November 2009, 9 December 2009, 23 December 2009 and 5 February 2010

DATE OF JUDGMENT: 25 March 2010

APPLICANT: Mr I Hemmings (barrister) SOLICITOR: Mr P White of Harris & Co LEGAL REPRESENTATIVES:

RESPONDENT: Ms K Gerathy (solicitor) SOLICITORS: HWL Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

25 March 2010

10566 of 2009 Chris Lonergan v Byron Shire Council

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for a 4 – lot community title subdivision at No 40 Corkwood Crescent, Suffolk Park. The contentions identified by council for the appeal are summarised as follows: Adequacy of the proposed lot sizes, involving the consideration of a SEPP 1 Objection. Suitability of the proposed lots to provide adequate building envelopes to accommodate residences. Impact on vegetation. Public interest, precedent. The site 2 The site is described as Lot 268 in DP 867768 and has a 40m frontage to Corkwood Crescent, Suffolk Park. It is of regular shape with a total area of 6795 sq m. 3 The site slopes from the west at a contour of approximately 65m, down to a contour of approximately 20m at the eastern boundary. The site is transacted by a watercourse, which flows from the northern boundary to the south – eastern corner of the site. 4 This land was created by the subdivision of the adjoining land and a restriction on use was registered on the title of lot 268 to the effect: " The burdened lots shall not be further subdivided provided however that Lot 268 may contain strata subdivision within the portion of the lot which is zoned Residential 2(a)". The proposal 5 This proposal is for a community title subdivision to create 3 residential lots and 1 community title lot. The proposed Lot 1 is the road frontage lot that contains a significant natural watercourse, over which a variable width drainage easement is to be created. It is proposed to substantially upgrade the native vegetation in this lot in accordance with a Vegetation Management Plan (VMP). 6 The 3 residential lots then gain access via a right-of way (ROW) approximately 5 – 6m wide along the northern boundary of the property. A concrete culvert is to be constructed within the watercourse to enable access to each of these lots. 7 The residential lots (as shown on Attachment AA) comprise: Lot 2; being the north-western lot having an area of 1202.2 sq m. An 11.5m x 15m building envelope has been designated. Lot 3; being the south-western lot with an area of 1636.96 sq m. An 11.5m x 15m building envelope has been designated adjacent to the proposed access road. Lot 4; is situated on the lower side of the access road and backs onto the community title Lot 1. It has an area of 1292.46 sq m. This lot is wholly within the residential 2(a) zone and a 12m x 15m building envelope has been indicated. 8 The development also involves ancillary earthworks for the benching of the building envelope sites and the construction of the access way, which incorporates a garbage storage area and 2 visitor car parking spaces near the intersection with Corkwood Crescent. A further 2 visitor spaces are proposed at the south western end of the access road within Lot 1. 9 The proposed crossing of the watercourse involves the construction of a 2 x 900 x 600 (nominal size) reinforced box culvert. The access way is to be supported by rock retaining walls. Planning controls 10 The primary control in this matter is the Byron LEP 1988 under which the site is zoned part 2(a) Residential and part 7(d) Scenic Escarpment. The zoning boundary is parallel to the rear boundary of the property and restricts the lots as follows: Lot 2; with a proposed area of 1202 sq m of which approximately 950 sq m is in the 7(d) zone. Lot 3; with a proposed area of 1678 sq m of which approximately 1110 sq m is in the 7(d) zone. 11 Clause 11(1) provides: "The council shall not consent to the subdivision of land for … a dwelling-house within the zones shown on Column1 of the Table to this clause unless the area of each of the allotments to be created is not less than that shown opposite that zone in Column 2 of the Table, and in the opinion of the council each allotment is of satisfactory shape and has satisfactory frontage."