Asquith v Clarence Valley Council [2011] NSWLEC 1246

Land and Environment Court New South Wales

Medium Neutral Citation: Asquith v Clarence Valley Council [2011] NSWLEC 1246 Hearing dates: 14 July 2011 Decision date: 19 August 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - dwelling house - consolidation of lots - whether existing parcel Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Copmanhurst Local Environmental Plan 1990 Copmanhurst Shire Council Interim Development Order No 1 State Environmental Planning Policy No 1 - Development Standards Cases Cited: Atkins v Maitland City Council [2010] NSWLEC 36 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: Catherine Asquith (Applicant) Clarence Valley Council (Respondent) Representation: Mr A McInerney (Respondent) Mr P Asquith (agent) (Applicant) Mr P Roland, Foott, Law & Co (Respondent) File Number(s): 10231 of 2011

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application DA2010/0428 for the erection of a dwelling on lots 7-19 and 41-50 of Section 3, DP1882 at Mountain View (the proposed development site). 2The proposed development site comprises 23 lots, each of approximately 1,000sqm, and has a total area of 2.75 ha. The applicant proposes to consolidate those 23 lots into one allotment. The proposed development site is part of an area of land of approximately 15ha held by the applicant (the applicant's land), which comprises lots 1-55 in Section 3, lots 1-16 in Section 4, lots 1-26 in Section 5, and part of former Section 6, in DP1882, which was created by registration in 1887. Section 6 was subdivided into what is now lots 61 and 62, and the applicant no longer owns lot 62. The lots making up the applicant's land, and the proposed development site, are shown below: 3The applicant's land is approximately 15km north of Grafton, in an area of generally open rural land, which slopes towards the Clarence River. The applicant's land has frontage to Red Lane, Summerland Way and Clarence Way, which are made roads. The proposed development site fronts Clarence Way. On the opposite side of Clarence Way (to the north east) there are a number of rural residential lots. To the south are a car breaking yard (on Boneyard Lane) and a former power station. 4The applicant lodged the development application seeking consent to "erect dwelling on subject land" on 23 June 2010, following meetings with staff of the respondent's Development Management Unit on 10 March 2010 and 7 April 2010. On 6 July 2010 the respondent requested further information, including a request for an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP No 1). On 13 July 2010 the applicant advised that the further information would not be provided, and requested that the Council "determine the DA as made". The respondent refused the application on 29 July 2010 and the applicant requested a review under s82A of the Act. On 13 December 2010 the applicant was advised that the review had been unsuccessful, and lodged the application to the Court on 15 March 2011.