Council rejects two-lot subdivision proposal

A proposed two-lot subdivision at Berrima Crescent, Umina, has been refused by Gosford Council.

The matter was referred to a council meeting for determination due to the receipt of 16 submissions and at the request of a councillor.

The application, originally lodged in May 2012, was for the subdivision of Lot 13 DP 8806928 Berrima Crescent into two residential allotments and a sea wall.

The NSW Coastal Panel granted consent to the construction of a beachfront revetment wall on July 18, 2014.

The proposed allotments would have areas of 1913 square metres and 1255 square metres.

However, because some of the land is in the E2 Environmental Conservation zone, the minimum lot size required is 40 hectares.

The other part of the land is zoned R2 Low Density Residential.

The proposed subdivision would be permissible with the consent of council within either zone but is subject to the statutory provisions of the Gosford Local Environment Plan 2014 which sets minimum lot sizes.

As noted in a report prepared for council by its planning department: "The proposal relies upon the provisions of clause 4.6 of the Gosford Local Environment Plan 2014 to facilitate a reduction in the minimum lot size in the E2 Environmental Conservation zone by 99.52 per cent.

Clause 4.6 covers exceptions to development standards.

"Advice received from Gosford Council's special counsel is that under clause 4.6(6)(b) of the Gosford Local Environment Plan 2014 'consent must not be granted' in circumstances where one lot is less than 90 per cent of the minimum specified standard.

"In this proposed subdivision one of the lots is only 0.48 percent of the 40 hectare development standard.

"Accordingly council has no legal power to consent to this application and the only available course of action is either for council to refuse the application or for the applicant to withdraw the application," the report said.

Discussions between the applicant and Gosford Council were ongoing during 2015 regarding the impact of clause 4.6 on the proposal.

"This culminated in council's letter dated August 14, 2015, giving the applicant the options of either withdrawing the application or provision of additional information to further their application," the report to council said.

"On August 21, 2015, the applicant submitted detailed legal advice from their solicitors.

"The applicant's legal advice states that once a standard is breached, it is subsequently a merit assessment including application of the exception to development standard provisions of the Gosford Local Environment Plan, to achieve an outcome.

"The application included a submission under clause 4.6 of the Gosford Local Environment Plan 2014 which is designed to provide for flexibility in the application of planning controls operating by virtue of development standards, particularly in circumstances where strict compliance with these standards would be unreasonable or unnecessary in the circumstances of the proposal."

However, Gosford Council's own legal advice stated that the application could not rely upon the provisions of the Local Environment Plan that provide exceptions to development standards and, as such, council could not grant consent.

"Council's assessment of the application concluded that, as the proposed allotment in the E2 Environmental Conservation Zone was less than 90 per cent of the minimum area, the operation of clause 4.6(6)(b)...was expressly excluded from the operation of clause 4.6(2).

"This conclusion means that council has no legal power to approve the development."

State Environmental Planning Policy (SEPP) 19, Bushland in Urban Areas, would also have a bearing on the proposal because the site adjoins bushland zoned RE1 Public Recreation.

Gosford Council did not assess the proposal against the State Environmental Planning Policy because of the issues relating to minimum lot sizes.

The proposal was found to be consistent with the stated objectives of the R2 zone but inconsistent with the objectives of the E2 Environmental Conservation Zone and inconsistent with the principles of Ecologically Sustainable Development as specified in the Local Government Act of 1993.

"Any future development on proposed Lot 131 within the E2 Environmental Conservation Zone is likely to adversely impact upon the ability to manage and restore the existing area with special ecological and aesthetic values; and is not compatible with the desired future character of the area," the report to council said.

The focus of the majority of public submissions regarding the proposal related to the potential erection of a dwelling house on the proposed lot that would be in the E2 zone.

Gosford Council agenda, GOV.13, 8 Mar 2016