Soligo v Fairfield City Council [2018] NSWLEC 1484

Soligo v Fairfield City Council [2018] NSWLEC 1484

The Court upheld the clause 4.6 written request and approved the subdivision because the request adequately demonstrated that strict compliance with the 2000m2 minimum lot size standard was unreasonable or unnecessary, the proposed subdivision achieved the relevant objectives of the standard, sufficient environmental planning grounds existed due to uncontested geotechnical evidence that landslide risk was very low and no longer justified applying the larger minimum lot size to the site, the proposal was consistent with the R2 Low Density Residential zone objectives, and there was no State significance or public benefit requiring maintenance of the standard in this instance.

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application for Torrens Title Subdivision' 'clause 4.6 Variation Request' 'minimum Subdivision Lot Size Development Standard' 'r2 Low Density Residential Zone' 'landslide Risk' 'public Interest']
['environmental Planning and Assessment' 'land and Environment' 'development Consent'] ['development Application for Torrens Title Subdivision' 'clause 4.6 Variation Request' 'minimum Subdivision Lot Size Development Standard' 'r2 Low Density Residential Zone' 'landslide Risk' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the written request under clause 4.6 of Fairfield Local Environmental Plan 2013 adequately addressed why compliance with the 2000m2 minimum lot size development standard was unreasonable or unnecessary.' 'Whether the written request demonstrated sufficient environmental planning grounds to justify contravening the minimum lot size development standard.' 'Whether the proposed subdivision was in the public interest because it was consistent with the objectives of the minimum lot size standard and the R2 Low Density Residential zone.' 'Whether concurrence matters under clause 4.6(5) of Fairfield Local Environmental Plan 2013 gave any reason not to approve the contravention.' 'Whether other considerations, including precedent, tree retention and site disturbance, warranted refusal.']

Ratio Decidendi

The Court upheld the clause 4.6 written request and approved the subdivision because the request adequately demonstrated that strict compliance with the 2000m2 minimum lot size standard was unreasonable or unnecessary, the proposed subdivision achieved the relevant objectives of the standard, sufficient environmental planning grounds existed due to uncontested geotechnical evidence that landslide risk was very low and no longer justified applying the larger minimum lot size to the site, the proposal was consistent with the R2 Low Density Residential zone objectives, and there was no State significance or public benefit requiring maintenance of the standard in this instance.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The written request made, pursuant to clause 4.6 of Fairfield Local Environmental Plan 2013, to vary the minimum lot size standard prepared by Haskew de Chalain Planning, dated August 2018 is upheld.' 'The appeal is upheld.' 'Development Application No. 428.1/2016 to subdivide an existing allotment into two...