Morrissey v Port Stephens Council [2018] NSWLEC 1282

Land and Environment Court New South Wales

Medium Neutral Citation: Morrissey v Port Stephens Council [2018] NSWLEC 1282 Hearing dates: 7 June 2018 Date of orders: 13 June 2018 Decision date: 13 June 2018 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 16-2016-862-1 for the construction of a shed and the Torrens Title subdivision into two allotments of 111 South Street, Medowie, is refused. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: subdivision of land, inconsistent with the draft amending local environment plan, streetscape character. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Category: Principal judgment Parties: Meagan Morrissey (First Applicant) Andrew Morrissey (Second Applicant) Port Stephens Council (Respondent) Representation: Counsel: Dr J Smith (Applicants)

Solicitors: A Pickup, Local Government Legal (Respondent) File Number(s): 2017/383421 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 16-2016-862-1 for the construction of a shed and the Torrens Title subdivision into two allotments (the proposal) of 111 South Street, Medowie (the site) by Port Stephens Council (the Council). 2. The proceedings were set down for mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated following the evidence of the resident objectors as the parties advised that there was no prospect of reaching an agreement and a hearing was held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. 3. Leave was granted by the Court on 1 June 2018 for the applicant to rely on an amended proposal, which adjusted the position of the proposed boundary between the two lots to increase the frontage of the second lot from 15m to 20m.