Land and Environment Court New South Wales Medium Neutral Citation: Campbell v Sutherland Shire Council [2018] NSWLEC 1621 Hearing dates: 5 November 2018 Date of orders: 06 November 2018 Decision date: 06 November 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: The appeal is dismissed. Catchwords: SUBDIVISION: development application for 2 lot subdivision – minimum lot size – hatchet-shaped allotment Legislation Cited: Sutherland Shire Local Environment Plan 2015 Cases Cited: Kelly v Sutherland Shire Council [2006] NSWLEC 735 Category: Principal judgment Parties: Chris Campbell (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) Solicitors: Planning Law Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/134995 Publication restriction: No Ex TEMPORE Judgment COMMISSIONER 1. The applicant, Chris Campbell, seeks development consent to subdivide his property at 58 Boundary Road, Heathcote into two Torrens title allotments (the Site). 2. The application (DA 17/1473) can be understood from the plan prepared by Cooper & Richards Surveyors dated 21 March 2017 and the aerial photograph below. 1. They show Proposed Lot 1 (with a land size of 550m2) accessed from Lunar Avenue and Proposed Lot 2 (with a land size of 513m2) accessed from Boundary Road. 2. The site is located within the E4 Environmental Living zone under the Sutherland Local Environmental Plan 2015 (LEP). Subdivision is permissible within the E4 zone provided there is compliance with the minimum lot size provisions of the LEP. The sole Issue 1. The Council contends that an approval of this subdivision would result in two lots of less than the minimum area specified for such lots by a development standard. 2. Therefore, cl 4.6(6) of the LEP prevents the Court from granting consent to this application. 3. The applicant contends that development, if approved, would result in only one undersized lot. Proposed Lot 1 is compliant with the minimum lot size prescribed by the LEP. It is not, as the Council contends, an "internal lot" which requires a greater land area. 4. Proposed Lot 2 is undersized. However, the applicant relies upon the cl 4.6 written request prepared by Planning Ingenuity dated 29 October 2018 to vary the minimum lot size development standard in respect of Lot 2 to allow an approval of the application. Conclusion 1. For the reasons that follow, I agree with the Council. Proposed Lot 1 is an internal lot and is undersized. Lot 2 is also undersized. 2. As the 2 lots are less than the minimum area specified for such lots by a development standard, cl 4.6(6)(a) does not permit me to approve of the subdivision in this case. 3. Accordingly, I have no jurisdiction to entertain this appeal. Agreed Facts 1. Clause 4.1(3) of the LEP prescribes minimum lot sizes for lots created by subdivision in the relevant Local Government Area. In the case of an internal lot, the minimum lot size is greater than for other lots. 2. In the area in which the site is located the minimum lot size increases from 550m2 to 700m2 for an internal lot (cl 4.1(3A) of the LEP). Noting, that if a lot is an internal lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size (cl 4.1(3B)). 3. An "internal lot" is defined in the Dictionary to the LEP as a lot: to which the only practicable means of vehicular access is by way of: (a) an access corridor (in the case of a hatchet-shaped lot) … 1. For present purposes, the parties agree that to be an internal lot, the lot must be both "hatchet-shaped" and have its vehicular access via an "access corridor". 2. Both these terms are undefined in the LEP and the parties have relied upon different meanings in the Macquarie Dictionary to support their respective positions. Consideration 1. The Council contends on the facts that Lot 1 is an internal lot as defined in the LEP Dictionary subparagraph (a) because it is a hatchet-shaped lot and is accessed via an access corridor. 2. Adopting the definition of "access corridor" to mean "a passageway or narrow track of land", the Council submits that the land satisfies this feature. The access corridor is only wide enough for a car and pedestrian access. It is 3.5m wide (when measured at the perpendicular to the boundaries) and 7.5m long on one side and 8.03m on the other side. The Council's DCP Chapter 36 Part 3, 3.4.4 requires access handles to be 3.65 in width – the access to Lot 1 is akin to a driveway. 3. The access to Lot 1 could not accommodate anything more than a car. 4. It resembles a battle axe block. 5. In summary, the Council contends that the development fails because Lot 1 is an internal lot (as defined in the LEP) and must have a land area of 700m2 (excluding the access handle). As proposed, Lot 1 has an area of 550m2 and is thereby less than the minimum land area as prescribed by the development standard in cll 4.1(3A), (3B) of the LEP. And, because both lots are separately less than the prescribed minimum lot area of 550m2 and 700m2, cl 4.6(6) of the LEP precludes any variation of the standard to overcome the deficiency in area and non-compliance with the development standard. 6. Having had opportunity to consider the evidence and the parties competing submissions, I have decided that Lot 1 is an internal lot as defined by the LEP in subpar (3A). 7. In short, in the absence of a definition of the words "access corridor", I accept the Council's submission that the vehicular access to Lot 1 is via an access corridor as defined in the dictionaries before the Court. In fact, Lot 1 does not have any other frontage to Lunar Avenue but for that access corridor some 3.5m wide. I also accept that the lot is sufficiently close to a hatchet shape with an access corridor, such as to fall within the definition of the internal lot. 8. The case of Kelly v Sutherland Shire Council [2006] NSWLEC 735 ("Kelly") makes it plain that the fact of the general form of the hatchet lot should be read in context, the context of the particular site that is. I have considered carefully the aerial photographs and the subdivision plan before the Court in context and believe that the proposed allotment, that is Lot 1, is the hatchet form referred to in the LEP definition. As such, it is my view that I have no power to approve of the subdivision in the form proposed. 9. I wish to add that I also do not accept as contended by the applicant that an approval of the subdivision would be reflective of the existing subdivision pattern on neighbouring lots which have houses fronting both Boundary Road and Lunar Avenue. Rather, it is clear from the evidence before me that the access corridor, an anomaly in my view in the area, is the most narrow frontage width in Lunar Avenue and entirely taken up by a driveway. Should the adjoining owner, that is, of Lot 101, seek to put a dividing fence between the land and the applicant's land, then, as the Council submits, it will be clearly evident that access is via a narrow passage of land from the street to Lot 1. The length of the corridor is irrelevant as discussed by Commissioner Brown in the decision of Kelly. 10. Clause 4.1 of the LEP mandates a minimum lot area of 550m2 and a minimum lot area of 700m2 for this site. The applicant fails to achieve the minimum land size on both counts as the subdivision results in an internal lot; it must have an area of 700m2 in respect of Lot 1. 11. As both lots are less than the minimum lot area, cl 4.6 cannot be used to overcome the deficiencies on this E4 zoned land. 12. Accordingly, the appeal is dismissed. ………………………….. S Dixon Senior Commissioner of the Court ********** Amendments 04 December 2018 - Correction to a heading and [27] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2018