Johnson v Coffs Harbour City Council [2018] NSWLEC 1094

Johnson v Coffs Harbour City Council [2018] NSWLEC 1094

The proposed subdivision did not fall within Coffs Harbour Local Environmental Plan 2013 cl 4.2D because it was not a subdivision by adjusting the boundary between adjoining lots. Although it aligned better with physical separation on the land, the alteration was too significant to be an 'adjusting', the resulting...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Class 1 Development Appeal Against Refusal of Development Application for Subdivision by Boundary Adjustment / After a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Where No Agreement Was Reached; Parties Agreed to Determination Under S 34(4)(b)
Outcome
Appeal dismissed; development application refused.
Legal Topics
['boundary Adjustment' 'minimum Lot Size' 'coffs Harbour Local Environmental Plan 2013 Cl 4.2 D' 'ru2 Rural Landscape Zone' 'e2 Environmental Conservation Zone' 'public Interest']
['planning and Environment Law' 'development Consent' 'subdivision of Land'] ['boundary Adjustment' 'minimum Lot Size' 'coffs Harbour Local Environmental Plan 2013 Cl 4.2 D' 'ru2 Rural Landscape Zone' 'e2 Environmental Conservation Zone' 'public Interest']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Development Appeal Against Refusal of Development Application for Subdivision by Boundary Adjustment / After a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Where No Agreement Was Reached; Parties Agreed to Determination Under S 34(4)(b)

Legal Issues

  1. 1 ['Whether the proposed subdivision was a subdivision of land by adjusting the boundary between adjoining lots within Coffs Harbour Local Environmental Plan 2013 cl 4.2D' 'Whether the proposal could rely on an exception to the 40 ha minimum lot size development standard' 'Whether the Court had power to grant development consent for the proposed subdivision']

Ratio Decidendi

The proposed subdivision did not fall within Coffs Harbour Local Environmental Plan 2013 cl 4.2D because it was not a subdivision by adjusting the boundary between adjoining lots. Although it aligned better with physical separation on the land, the alteration was too significant to be an 'adjusting', the resulting lots did not bear sufficient resemblance to the existing lots, and Lot 200 would increase from 6.6% to 50% of the total site area. Because the exception to the minimum lot size did not apply and no other basis for permissibility was identified, the Court had no power to grant development consent and was required to refuse the application.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (0795/17DA) for the subdivision of lots 200 and 201 DP 1183461 at 7 Dirty Creek Road, Dirty Creek, is refused.' 'Exhibits A and 3 are returned.']