Abernethy Developments Pty Ltd v Cessnock City Council [2009] NSWLEC 1079

Abernethy Developments Pty Ltd v Cessnock City Council [2009] NSWLEC 1079

The consent orders should be granted because the subdivision was a form of development envisaged by the relevant planning controls, the SEPP 1 objection to the minimum lot size in clause 12 of the LEP was acceptable, Hunter Water and on-site tank arrangements could provide adequate interim water supply, effluent disposal and stormwater impacts could be addressed by conditions, visual and amenity impacts could be mitigated by separation and landscaping, and bushfire risk had been assessed under Planning for Bush Fire Protection 2006 with conditional approval from the Rural Fire Service and accepted conditions.

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Development Appeal Against Council Refusal of a Development Application for Subdivision / Consent Orders After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['subdivision' 'bushfire Risk' 'adequacy of Services' 'stormwater Drainage and Flooding' 'on Site Effluent Disposal' 'visual and Heritage Amenity Impacts' 'public Interest' 'sepp 1 Objection']
['environmental Planning and Assessment' 'development Control' 'land Subdivision'] ['subdivision' 'bushfire Risk' 'adequacy of Services' 'stormwater Drainage and Flooding' 'on Site Effluent Disposal' 'visual and Heritage Amenity Impacts' 'public Interest' 'sepp 1 Objection']

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Procedural Posture

Development Appeal Against Council Refusal of a Development Application for Subdivision / Consent Orders After Hearing

Legal Issues

  1. 1 ['Whether development consent should be granted for demolition of an existing dwelling and an 11 lot subdivision at 83 Ferguson Street, Abernethy.' 'Whether the subdivision was permissible and suitable under the Cessnock Local Environmental Plan 1989 and Cessnock Development Control Plan 2006, including the SEPP 1 objection to minimum lot size for the residue rural lot.' 'Whether bushfire risks on bush fire prone land were adequately addressed through assessment under Planning for Bush Fire Protection 2006 and Rural Fire Service conditions.' 'Whether adequate interim water supply, fire fighting water, effluent disposal, drainage and access arrangements could be made.' 'Whether the proposal would cause unacceptable visual, heritage, amenity, flooding or environmental impacts and whether approval was in the public interest.']

Ratio Decidendi

The consent orders should be granted because the subdivision was a form of development envisaged by the relevant planning controls, the SEPP 1 objection to the minimum lot size in clause 12 of the LEP was acceptable, Hunter Water and on-site tank arrangements could provide adequate interim water supply, effluent disposal and stormwater impacts could be addressed by conditions, visual and amenity impacts could be mitigated by separation and landscaping, and bushfire risk had been assessed under Planning for Bush Fire Protection 2006 with conditional approval from the Rural Fire Service and accepted conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application 8/2006/455/1 for the demolition of an existing dwelling and a 11 lot subdivision on land being lot 2 DP 840845 known as 83 Ferguson Street Abernethy, subject to the conditions on Annexure "A" (Schedule 1 and 2).' 'The exhibits may be...