Sternhell v Warringah Council [2014] NSWLEC 1168

Sternhell v Warringah Council [2014] NSWLEC 1168

The clause 4.6 precondition to granting consent was not met because the Court was not satisfied that compliance with the 600sqm minimum lot size standard was unreasonable or unnecessary or that sufficient environmental planning grounds justified the proposed undersized lots. The proposed four lot subdivision was inconsistent with the pattern, size and configuration of existing lots in the locality and relied on the adjoining public reserve for bushfire protection rather than providing the Asset Protection Zone within the site. The development application therefore had to be refused.

Jurisdiction
Australia
Judgment Date
22 August 2014
Procedural Posture
Class 1 Development Appeal / Appeal Against Refusal of Development Application DA 2013/1382 for Demolition of Existing Structures and Subdivision Into Four Lots
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['subdivision' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'bushfire Prone Land' 'asset Protection Zone' 'public Reserve Adjoining Development']
['environmental Planning and Assessment' 'development Consent' 'bush Fire Safety'] ['subdivision' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'bushfire Prone Land' 'asset Protection Zone' 'public Reserve Adjoining Development']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Refusal of Development Application DA 2013/1382 for Demolition of Existing Structures and Subdivision Into Four Lots

Legal Issues

  1. 1 ['Whether the minimum lot size development standard in Warringah Local Environmental Plan 2011 should be varied under clause 4.6' 'Whether the proposed four lot subdivision was consistent with the pattern, size and configuration of existing lots in the locality' 'Whether appropriate bush fire protection measures could rely on vegetation management within the adjoining Lantana Avenue Reserve' 'Whether the proposal was an overdevelopment of the site and consistent with relevant planning controls']

Ratio Decidendi

The clause 4.6 precondition to granting consent was not met because the Court was not satisfied that compliance with the 600sqm minimum lot size standard was unreasonable or unnecessary or that sufficient environmental planning grounds justified the proposed undersized lots. The proposed four lot subdivision was inconsistent with the pattern, size and configuration of existing lots in the locality and relied on the adjoining public reserve for bushfire protection rather than providing the Asset Protection Zone within the site. The development application therefore had to be refused.

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal is dismissed.' 'Development Application DA 2013/1382 for demolition of existing structures and subdivision of Lot 1 in Deposited Plan 8438, No 87 Lantana Avenue Wheeler Heights into four lots is refused consent.' 'The exhibits, other than exhibits A, H and K, are returned.']