Bisso & Anor v Fairfield City Council [2016] NSWLEC 1007

Land and Environment Court New South Wales

Medium Neutral Citation: Bisso & Anor v Fairfield City Council [2016] NSWLEC 1007 Hearing dates: 16 December 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: dual occupancy, whether drainage easement should be required Legislation Cited: Fairfield Local Environmental Plan 2013; Land and Environment Court Act 1979 Texts Cited: Fairfield City Wide Development Control Plan 2013 Category: Principal judgment Parties: Nahir and Sally Bisso (Applicants)

Fairfield City Council (Respondent) Representation: Counsel: Mr N Eastman (Applicants)

Solicitors: David Legal (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10746 of 2015

Judgment 1. Mr Bisso lodged Development Application DA No 5.1/2014 on 6 January 2014 with Fairfield City Council seeking consent for a dual occupancy development at 565 The Horsley Drive, Smithfield. The council refused consent and the Bissos are appealing that decision.

The site and its context 1. The site is located on the north east corner of The Horsley Drive and Alt Street Smithfield. It has frontages of 15.24m and 44.75m to each road respectively and site area of 828.4sqm. 2. The land has a consistent fall in gradient from the front property boundary to the rear, northern corner. A single storey 3 bedroom clad cottage stands on the site with its vehicular access of The Horsley Drive. A coloured metal fence runs along the Alt Street frontage of the site and also runs in a north/south direction to the west of the existing dwelling to separate that dwelling from the remainder of the site. It is on the vacant western portion of the site that it is proposed to construct the second dwelling. 3. The site contains a number of trees along the eastern boundary which are proposed to be retained with one tree to be removed along the Alt Street frontage. 4. Development in the vicinity of the site primarily comprises single storey detached dwellings. 5. Prospect Creek is located at the western end of Alt Street. 6. According to a survey filed with the application, the low point of the site is adjacent to an area that was the former location of a shed and that point is RL16.63. 7. The site is subject to mainstream flooding and is located between the 1 in 100 year flood level and the Possible Maximum Flood Level (PMF). Those levels are 15.8 – 15.9 and 18.0 – 18.1 respectively. According to the council's flood information sheet, the site is identified as being within a Low Flood Risk Precinct.