Rose v The Hills Shire Council [2009] NSWLEC 1266

Rose v The Hills Shire Council [2009] NSWLEC 1266

The appeal was dismissed because the applicant's SEPP 1 objection was not well founded. The proposed subdivision into two 4.65 ha lots did not comply with the 40 ha minimum allotment size in clause 18(1)(a) of the Baulkham Hills Local Environmental Plan 2005, and the applicant did not demonstrate that the proposal...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 August 2009
Procedural Posture
Section 97 Appeal Under the Environmental Planning and Assessment Act, 1979 Against Deemed Refusal of a Development Application / Judgment Determining the Appeal
Outcome
Appeal dismissed; development application refused.
Legal Topics
['sepp 1 Objection' 'minimum Allotment Size Development Standard' 'torrens Title Subdivision' 'change of Use of Rural Workers Dwelling to Dwelling House' 'on Site Sewage Management' 'contaminated Land Assessment']
['planning and Environment Law' 'development Consent' 'subdivision'] ['sepp 1 Objection' 'minimum Allotment Size Development Standard' 'torrens Title Subdivision' 'change of Use of Rural Workers Dwelling to Dwelling House' 'on Site Sewage Management' 'contaminated Land Assessment']

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Procedural Posture

Section 97 Appeal Under the Environmental Planning and Assessment Act, 1979 Against Deemed Refusal of a Development Application / Judgment Determining the Appeal

Legal Issues

  1. 1 ['Whether the SEPP 1 objection to the 40 ha minimum allotment size development standard in clause 18(1)(a) of the Baulkham Hills Local Environmental Plan 2005 was well founded.' 'Whether the proposed subdivision and change of use achieved the objectives of the Rural 1(a) Zone, particularly protection of agricultural land and orderly future urban development.' 'Whether compliance with the development standard would be unreasonable or unnecessary in the circumstances.' 'Whether wastewater management and possible contamination from the former petrol tank required assessment or could be addressed by conditions if consent were otherwise granted.']

Ratio Decidendi

The appeal was dismissed because the applicant's SEPP 1 objection was not well founded. The proposed subdivision into two 4.65 ha lots did not comply with the 40 ha minimum allotment size in clause 18(1)(a) of the Baulkham Hills Local Environmental Plan 2005, and the applicant did not demonstrate that the proposal would still achieve the Rural 1(a) Zone objectives. In particular, the Court was not satisfied that the land lacked existing or potential agricultural productivity, and found that further fragmentation would not assist the proper and orderly future urban development of land identified for growth. Compliance with the development standard was therefore not shown to be unreasonable...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal 10129 of 2009 is refused.' 'The development application No. 723/2009/ZB under section 97 of the Environmental Planning and Assessment Act 1979 for a Torrens Title subdivision into two separate allotments and a change of use of the rural workers dwelling into a dwelling house at 6 Johns Road, Maraylya,...