The Land and Environment Court has upheld Warringah Council's refusal of a development application which sought approval for a subdivision. The decision of the Court, per Commissioner Morris, Sternhell v Warringah Council (2014) NSWLEC 1168, can be found at the link below:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173645
The site that was the subject of the development proposal is located in the Wheeler Heights locality and comprises a total land area of 2,481 square metres. The site borders a Council-owned bushland reserve and is mapped as bushfire prone. The section of the reserve closest to the subdivision site consists of an opened grassed area that is regularly mowed by local residents, with denser vegetation situated farther from the property.
The application proposed subdivision of the property into 4 separate allotments. All of the new lots were smaller than the minimum lot size of 600 square metres allowed under the relevant council controls. This shortfall was due in part to the fact that some of the land was required for vehicular access ways which could not be included in the calculation of lot sizes under the Council's Development Control Plan. Therefore, the applicant sought a variation of the minimum lot size requirement, contending that this requirement was unnecessary and unreasonable in the circumstances.
The other major difficulty presented by the proposal was that it called for use of a portion of the mowed open grassland portion of the Council-owned reserve as an asset protection zone for bushfire purposes, and did not make provision for an asset protection zone within the land area covered by the subdivision itself. The applicant suggested during the proceedings that it would be prepared to seek to acquire an easement over the land proposed to be used as an asset protection zone for the purpose of carrying out vegetation management works. However, the Council indicated that it was disinclined to grant any easement over the reserve lands.
The Court concluded that it was not appropriate in the circumstances of the case to allow a variation of the minimum lot size standard. The Court found that allowing such a departure would result in frustration of the objective of promoting subdivisions consistent with the pattern, size and configuration of the lots in the surrounding locality. The proposal was determined to be inconsistent with the previous subdivision pattern, because the great majority of those earlier subdivisions involved only the creation of 2 or 3, and not 4 lots, and the majority of the lots created by those subdivisions met the minimum size requirement.
The Court also determined that the application was unworthy of approval because it did not make provision for an inclusion of an asset protection zone within the site. The Court found that it was unsatisfactory and inconsistent with the requirements of the applicable controls for the proposal to rely on use of the Council-owned reserve land, especially since a subdivision design approach was available (namely, limiting the subdivision proposal to 2 or 3 lots) that would have enabled inclusion of the asset protection zone within the site.
While it is understandable that a developer would seek to maximise the development potential of a property, the result in this case illustrates that that economic objective might not be achievable in every case. Constraints, such as a preexisting subdivision pattern in the locality, may limit the financial potential that may be realised from a property. The lesson that can be taken from this case is that comprehensive due diligence will enable any such constraints to be identified at an early stage, and for the prospective developer to frame their subdivision plans accordingly.
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