Agostino v Blacktown City Council [2017] NSWLEC 1504

Land and Environment Court New South Wales

Medium Neutral Citation: Agostino v Blacktown City Council [2017] NSWLEC 1504 Hearing dates: 17 August 2017 Date of orders: 13 September 2017 Decision date: 13 September 2017 Jurisdiction: Class 1 Before: Bish C Decision: 1. The appeal is dismissed. 2. Development Application No. 16/05340 for subdivision of an existing lot (Lot 82) into two lots (Lots 1 and 2) at 8 Plumpton Road, Plumpton, is refused. 3. The exhibits, except Exhibit 1, are returned Catchwords: DEVELOPMENT APPLICATION: lot subdivisions - minimum subdivision lot size requirement - clause 4.6 variation – character - precedence. Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979, s79C Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Texts Cited: Nil Category: Principal judgment Parties: Sam and Rita Agostino (Applicant) Blacktown City Council (Respondent) Representation: Counsel: Mr P Rigg, Solicitor (Applicant) Mr D Loether, Solicitor (Respondent)

Solicitors: Peter R Rigg (Applicant) Blacktown City Council (Respondent) File Number(s): 2017/135537 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) No. 16/05340 for the subdivision of an existing lot (Lot 82) into two lots (Lots 1 and 2) at 8 Plumpton Road, Plumpton (the site). 2. The subdivision provides for two (2) Torrens title lots of 420 and 450 m2, being Lots 1 and 2, respectively. 3. In hearing this matter, no site visit was undertaken by agreement. 4. The Council states that the application should be refused as the proposed subdivision creates one lot that is of insufficient size to meet the minimum subdivision lot size requirement, pursuant to Clause 4.1, Blacktown Local Environmental Plan 2015; and that the written request, pursuant to cl 4.6, does not support the variation of this requirement. The Council also states that the variation to the minimum lot size requirement is not in the public interest and will establish precedence. 5. The site 6. The site is generally rectangular in shape with a 25.15 m street frontage of Plumpton Road, forming the northern boundary, a rear southern boundary of 25.15 m, a western boundary of 34.6 m, an eastern boundary of 34.6 m, and a total site area of 870 m2. The site is orientated on a north to south axis, and the land has a fall toward the west of approximately 0.5 m across the property. Numerous exotic and native trees and shrubs are located on the site, as well as a grassed area. 7. The site is currently occupied by a single storey detached dwelling along the western boundary, with a garage located to the rear of the property along the southern boundary. Based on the evidence provided to the Court, including aerial photographs, the residential area is a mix of single dwelling houses and dual occupancies.