Betts & anor v Sutherland Shire Council [2012] NSWLEC 1334

Land and Environment Court New South Wales

Medium Neutral Citation: Betts & anor v Sutherland Shire Council [2012] NSWLEC 1334 Hearing dates: 26 November 2012 Decision date: 05 December 2012 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION; Subdivision; SEPP 1 objections - lot area and width; environmental impacts Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006 Threatened Species Conservation Act 1995 Cases Cited: Parrott v Kiama [2004] NSWLEC 77 Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Daryl & Judith Betts (Applicants) Sutherland Shire Council (Respondent) Representation: Mr H El-Hage (Barrister) (Applicant) Ms J Amy (Solicitor) (Respondent) Solicitors Lander & Rogers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10753 of 2012

Judgment 1COMMISSIONER: In February 2012, Sutherland Shire Council refused development application (DA11/1219) for the Torrens Title subdivision of Lot 6 DP 1155637, also known as 53 Seabrook Avenue Grays Point, into two lots. 2The applicants are appealing this decision under s 97 of the Environmental Planning and Assessment Act 1979 (the Act).

The site and its locality 3The site is located at the south-western end of Seabrook Avenue, Grays Point. The street ends in a cul-de-sac and the site is on the upper side of the street. 4The existing allotment has an area of 1,752 m2. It is generally rectilinear in shape however the northern side boundary is irregular. The street frontage or eastern boundary is 30.99 metres wide. 5The site is a vacant lot with remnant bushland, some of which has been disturbed by the dozing of a fire/access trail and the construction of a concrete right of way and associated retaining walls. The site contains 13 trees including two large hollow-bearing Eucalyptus pilularis (Blackbutt). The site is characterised by sandstone outcrops and floaters. 6The site slopes steeply from the street up a sandstone scarp to an area that has been partially levelled and graded and then continues up a series of embankments. The western boundary of the site adjoins the eastern boundary of several vacant and vegetated lots of a sub-division on the eastern side of Greenhaven Road. The eastern portions of these lots are steeply sloping. Greenhaven Road runs along the top of the ridge; The Royal National Park is on the western side of Greenhaven Road and about 65 m from the site. 7The western side of Seabrook Avenue is characterised by large two storey dwellings at street level with bushland at the rear on the steeper portions of the lots. On the south-eastern side are a number of similarly large two storey dwellings which step down the slope. 8To the south of the site are two large and long sites which are heavily vegetated and contain dwellings at their North West Arm Road end. 9The outlook is generally to the east to the headwaters of the North-West Arm of the Hacking River.