Barnes v Dungog Shire Council [2012] NSWLEC 1021

Barnes v Dungog Shire Council [2012] NSWLEC 1021

The proposed development was not subdivision for the purpose of a boundary adjustment within cl 28(6) of Dungog Local Environmental Plan 2006. The proposed lots bore no resemblance to the existing lots, the new boundary had no relationship to the existing boundary, there would be a real physical change in conditions...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 February 2012
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application Under the Environmental Planning and Assessment Act 1979 / Preliminary Issue Determined on Written Submissions; Principal Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['permissibility of Subdivision' 'boundary Adjustment' 'rural Workers Dwellings' 'rural 1(a) Zone' 'dwelling Entitlements' 'development Application Refusal']
['planning and Environment Law' 'local Government' 'development Consent' 'subdivision'] ['permissibility of Subdivision' 'boundary Adjustment' 'rural Workers Dwellings' 'rural 1(a) Zone' 'dwelling Entitlements' 'development Application Refusal']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application Under the Environmental Planning and Assessment Act 1979 / Preliminary Issue Determined on Written Submissions; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed subdivision was for the purpose of a boundary adjustment under cl 28(6) of Dungog Local Environmental Plan 2006.' 'Whether the proposed subdivision would create no additional lots and no additional dwelling entitlements under cl 28(6) of Dungog Local Environmental Plan 2006.' 'Whether the development application was permissible and capable of approval.']

Ratio Decidendi

The proposed development was not subdivision for the purpose of a boundary adjustment within cl 28(6) of Dungog Local Environmental Plan 2006. The proposed lots bore no resemblance to the existing lots, the new boundary had no relationship to the existing boundary, there would be a real physical change in conditions by altering Chichester River frontage, and the proposal was properly characterised as consolidation of Lot 182 DP 1156558 and Lot 4 DP 1033689 followed by subdivision into two lots. It was also unclear whether no additional dwelling entitlements would be created. The development application was therefore not permissible under cl 28(6), had to be refused, and the appeal dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application for Lot 182 DP 1156558 and Lot 4 DP1033689 located at 1507 Chichester Dam Road and 75 Wangat Trig Road Brandon Grove, is refused.']