Abernethy Developments P/L v Cessnock City Council [2011] NSWLEC 1123

Land and Environment Court New South Wales

Medium Neutral Citation: Abernethy Developments P/L v Cessnock City Council [2011] NSWLEC 1123 Hearing dates: 18 April 2011 Decision date: 23 May 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal dismissed Catchwords: Subdivision application; phasing of development Legislation Cited: EP&A Act 1979 Cessnock LEP 1989 Draft Cessnock LEP Cases Cited: Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106 Category: Principal judgment Parties: Abernethy Developments Pty Ltd (Applicant) Cessnock City Council (Respondent) Representation: Mr G McKee (Applicant) Mr R Mallick (Respondent) File Number(s): 10914 of 2010

Judgment

Background 1This appeal arises from council's refusal to support a s96 application to modify a consent granted by the Court in Appeal No 10679 of 2008 for an 11 lot subdivision (Refer to Attachment A) at Munn Street Abernethy. The consent was granted on 13 March 2009 (consent) and allowed the creation Lot 1 with an area of 6.32ha, which effectively excised the rural component of the site. The subdivision of the remaining land in the village zone is to create 10 lots with areas in the order of 2000sq m. The conditions of consent require the provision of a range of infrastructure, including road upgrading, stormwater drainage improvements and contributions towards the extension of the town water supply. 2The modification now is to undertake the subdivision in the following phases: The first phase (subject application) is to create two lots, with Lot 1 effectively excising the portion zoned Rural A from the area approved in the Village 2(b) portion for the 10 residential lots. This first phase effectively consolidates the ten residential lots into a residue Lot 2. Access to Lot 1 is to be via a 5m right of access over Lot 2. Presumably the second phase or subsequent phases will result in the subdivision of the residue Lot 2 into the initially approved ten lot configuration. 3The subject land contains an existing dwelling and ancillary buildings (racing kennels) that have been in existence for about 40 years. The original consent required the removal of this dwelling, partly because it encroached on the proposed new lot boundaries. 4Subsequent to the granting of the original consent, a further development application was made. This resulted in consent being granted for the erection of a new dwelling within the proposed Lot 1. A condition of this consent also required the demolition of the existing dwelling within 90 days of the issue of an occupation certificate, so that there would not be two dwellings on the one (original) lot. 5The applicant now submits that there has been a change of circumstances, particularly the GFC, which now necessitates the subdivision being undertaken on a 'phased basis' to achieve the ultimate eleven lot outcome. Accordingly, the applicant has provided a separation of the overall conditions for the two phases. 6However, council opposes this modification of the development on the basis of a number of contentions, which are summarised as follows: Whether it is appropriate to allow the modification to undertake the development in 2 phases when this effective staging of the subdivision was not pursued in the initial development application stage. Suitability of the proposed interim access arrangements. Removal of the existing dwelling in terms of the adequacy of the existing structure, wastewater disposal arrangements and bushfire risk. Public interest matters raised by residents, including water supply provision, increased runoff impacts and access road upgrading. 7The matter commenced by way of a s34 Conference and there being no agreement reached, the parties consented to Hussey C determining the matter.