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Byron Shire
June 7, 2023

Court upholds subdivision plan

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The NSW Land and Environment Court has upheld an appeal against Byron Shire Council’s refusal for a plan to further subdivide a remnant lot from an old 13-lot subdivision at Coopers Shoot into three smaller blocks.

The ruling handed down this week could lead to increased density in rural areas, especially with smaller lots already subdivided, according to opponents of the bid.

In August, Byron Shire Council refused the bid by Sydney developer Robin Wise to subdivide a 7.6-hectare lot in Prior Drive into three smaller ones around 2.5 hectares on grounds including that it did not comply under current lot-density rules, the site was unsuitable, and that it would impact on the character and amenity of the area.

Mr Wise then appealed to the court.

But at its first meeting after the September election, councillors instead opted to resolve the dispute by offering consent conditions to the subdivision, which were agreed to, but the court still had to assess the case.

Commissioner Sue Morris heard residents’ submissions against the plan last month but this week ruled in favour of the developer. Council’s lawyer told the court consent orders had been agreed to and provided no further evidence in the appeal.

In her judgment, Commissioner Morris said the application did not comply with the Local Environment Plan (LEP) in terms of lot yield, but she was satisfied compliance with the ‘averaging’ development standard in that plan was ‘unreasonable and unnecessary in the circumstances of the case’.

‘The objectives of the standard are met through the creation of three lots, all of which have areas of 2.5ha or more, have sufficient frontage to provide access, maintain rural character and provide appropriate area for the onsite disposal of effluent,’ she said.


‘The council’s evidence is that the lots would have adequate provision of services, are located so as not to jeopardise the efficient and economic future expansion of urban areas, and there will be no significant impact on agricultural activities or production.

‘The provision of small rural holdings in the Coopers Shoot area is contemplated in the BRSS (Byron Rural Settlement Strategy) and there is no evidence that approval will create any adverse impacts.

‘The building envelopes proposed have been determined to be acceptable by the council. While there will be a minor increase to traffic in the area, the impact on the road system is not a reason to refuse the application, nor is the fact that any future dwelling will be visible from adjacent properties.

‘For those reasons, I am satisfied that the grant of consent is consistent with the aims of SEPP1 as set out in Schedule 3 of that policy. The fact that the concurrence of the department has been granted is also an important consideration in this case.’

Commissioner Morris also said the draft LEP currently on exhibition provides for a minimum allotment size for the site of 2.5ha and ‘would abolish the current development standard for lot averaging’.

But she said that should not be given much weight as she had no evidence that plan was ‘either imminent or certain’.

Mr Wise this morning welcomed the court decision, saying it was ‘a good outcome for that piece of land’ as the site was ‘never unsuitable’ for a three-lot subdivision.

He told Echonetdaily that the state planning department, Byron councillors, council engineers and the court had approved it on merit.

He said he was representing a Sydney couple who were friends and wanted to move up and build on one of the three lots.

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