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May 7, 2021

Court to rule on extra-subdivision bid

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Luis Feliu

Residents of a rural hamlet at Coopers Shoot are pinning their hopes on a NSW Land and Environment Court decision to stop a controversial bid to further subdivide a remnant lot from an old 13-lot subdivision into three smaller blocks which they say will have shirewide implications.

The decision expected soon could have a bearing on hundreds of similar small rural allotments in the shire already subdivided, which could be cut up for resale again.

The case has also sparked fears among council planners that it could set a precedent by turning 25-year-old planning rules on their head and changing the density of pre-approved subdivisions.

And in an unprecedented move, the developer is relying on the yet-to-be adopted and contentious draft Byron Local Environment Plan (LEP), which the state government is reviewing, to gain approval.

The decision on the appeal by Sydney developer Robin Wise against Byron Shire Council was reserved last Monday week by Commissioner Sue Morris after a site inspection.

The residents are backing Byron Shire Council’s original decision against the plan to subdivide a remnant 7.6-hectare lot in Prior Drive into three smaller lots of around 2.5 hectares each, which it rejected in August because it did not comply under current lot-density rules.

The developer appealed and the new council at their first meeting in late September opted to try to resolve the dispute by not defending the appeal, instead offering consent conditions to the subdivision, which were agreed to. The court was still required to assess the case and hear residents’ submissions.

Only Crs Duncan Dey and Basil Cameron opposed the move put up by Cr Diane Woods, which was seconded by mayor Simon Richardson.

Council’s decision enraged residents of Baileys Road adjoining the subdivision, who say if given the green light it will destroy the character and amenity of the peaceful rural area.

Cr Dey told Echonetdaily that if approved, the precedent also was ‘enormous for re-subdivision of other such remnants’.

He said such holdings in sites zoned 1(c1) Small Holdings were ‘usually the runts of the litter, with defects such as slope and poor soils that make them unsuitable for dwellings’.

Floodgates

Resident Maurice Spatt says the case, if successful, could be a ‘hornets nest for council and open the floodgates’ to inappropriate subdivisions of small rural lots.

‘It’s mind boggling, the subdivision rules which the original 13 lots came under have been in place for almost 25 years yet this bid tries to retrospectively change all that. It means every subdivision in the shire for the past 25 years will be similarly affected,’ he said.

‘Not all areas can be subdivided into 2.5-hectare lots. It was a 13-lot subdivision when people bought in and around there; now if approved it will go from 13 to 15 lots.

‘You’ll have people in the rest of the shire saying “we’ve got 2.5 hectares, let’s cut it up and sell it off”.

‘I can understand that density is an issue that has to be decided, but you just can’t retrospectively change the density of pre-approved subdivisions, that’s the stupidity of all this.’

He says council and courts have in the past upheld the stand ‘that you can’t change that density’.

Mr Spatt says the remnant lot in Prior Drive at the head of Byron Creek is steep and was originally not meant to be ‘cut up again’, as council planners had deemed the site unsuitable for further subdivision.

Cr Dey said the property was part of the 13-lot subdivision approved in the 1990s, ‘and such remnants cannot be further subdivided under the current LEP 1988, but may be able to be under a new LEP, which is still in draft form and a long way off final adoption’.

He said Mr Wise addressed council on the issue recently, and ‘despite him being the one who took Council to court, pointed out to councillors that we could save money by not defending against his court case’.

Weight

In his report to council in September, council’s chief planner Ray Darney said the land and environment court ‘standing in Council’s shoes’ would, as in the past, have to take into consideration ‘and give significant weight’ to the Byron Rural Settlement Strategy, which has ruled out the site as unsuitable for further subdivision.

Mr Darney said, ‘In effect what the applicant seeks to do by this application is obtain a variation to the current LEP limitations on maximum lot yield now, via the development application process, rather than wait for the outcome of the public consultation processes required prior to adoption of a new LEP’.

‘This is not considered appropriate for a variety of reasons including that it is not a strategic approach to land use planning, it undermines the public consultation processes and could create an onerous ‘spike’ in development applications (because owners of all the other residual lots in 1(c1) and 1(c2) zoned land may also want to secure approvals by variation to the current LEP development standards based on the current draft LEP terms, in case the final LEP terms are different).’

Echonetdaily was unable to contact Mr Wise for comment late yesterday.

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