Bhat v Hornsby Shire Council [2023] NSWLEC 1424

Bhat v Hornsby Shire Council [2023] NSWLEC 1424

Consent could not be granted because cl 4.6 of Hornsby Local Environmental Plan 2013 was a precondition to approval and the Court was not satisfied that the Applicant’s written request demonstrated sufficient environmental planning grounds to justify contravening the 600m² minimum subdivision lot size in cl 4.1. The asserted benefits either related to the development as a whole rather than the lot size contravention, were not factually established as consistent with the locality, or were not adequately tied to the variation sought. As the cl 4.6 precondition was not satisfied, there was no power to grant consent and the appeal failed.

Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent / Principal Judgment After S 34 Conciliation Conference Was Terminated and the Matter Proceeded to Hearing
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Application Refusal' 'torrens Title Subdivision' 'minimum Subdivision Lot Size' 'clause 4.6 Variation Request' 'environmental Planning Grounds' 'beecroft Cheltenham Heritage Conservation Area']
['environmental Planning and Development' 'land and Environment Court Appeals' 'heritage Conservation'] ['development Application Refusal' 'torrens Title Subdivision' 'minimum Subdivision Lot Size' 'clause 4.6 Variation Request' 'environmental Planning Grounds' 'beecroft Cheltenham Heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent / Principal Judgment After S 34 Conciliation Conference Was Terminated and the Matter Proceeded to Hearing

Legal Issues

  1. 1 ['Whether the written request under cl 4.6 of Hornsby Local Environmental Plan 2013 adequately justified contravention of the minimum subdivision lot size standard in cl 4.1.' 'Whether there were sufficient environmental planning grounds to justify proposed lots below the 600m² minimum subdivision lot size.' 'Whether, for the purposes of cl 4.6, the relevant development was confined to subdivision or included the proposed dwellings as well.' 'Whether the proposed subdivision was consistent with the established and desired streetscape and character within Boronia Place and Castle Howard Road.']

Ratio Decidendi

Consent could not be granted because cl 4.6 of Hornsby Local Environmental Plan 2013 was a precondition to approval and the Court was not satisfied that the Applicant’s written request demonstrated sufficient environmental planning grounds to justify contravening the 600m² minimum subdivision lot size in cl 4.1. The asserted benefits either related to the development as a whole rather than the lot size contravention, were not factually established as consistent with the locality, or were not adequately tied to the variation sought. As the cl 4.6 precondition was not satisfied, there was no power to grant consent and the appeal failed.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development application number DA/628/2022 seeking consent for the demolition of existing structures, Torrens title subdivision of the existing single allotment into two Torrens title allotments and the construction of a new dwelling on each of the proposed lots on the land at 82 Boronia...