ACM Landmark Pty Ltd v Cessnock City Council

[2006] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION:

ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 163

PARTIES:

APPLICANT
ACM Landmark Pty Ltd

RESPONDENT
Cessnock City Council

FILE NUMBER(S):

11580 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Subdivision of land, overdevelopment, drainage/flooding, adequate road access, unsatisfactory local park access, adequacy of social infrastructure.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989
Hunter Regional Environmental Plan 1989

DATES OF HEARING:

03/04/2006

 
DATE OF JUDGMENT: 

04/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Williams, solicitor
SOLICITORS
Thompson Norrie

RESPONDENT
Mr R Mallik, solicitor
SOLICITORS
Cleaves Mallik Gibbs

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

3 April 2006

Cessnock City Council

JUDGMENT

This decision was given extemporaneously and has been revised and edited prior to publication

1 This appeal was lodged against council's refusal of development application to subdivide lots in a recently approved residential subdivision of 53 lots, to create an additional 7 lots. The subdivision is situated adjacent to Hillview Street and Dalwood Road, East Branxton.

2 Subsequent to the refusal, the applicant amended the proposal so as to increase the number of lots by 3, i.e. a total yield of 56 lots. These amendments proposed to add 2 additional lots to Franks Close and 1 additional Lot 2 Redgrove Court. The lot sizes range in area from 517 sq m to 975.5 sq m.

3 Following consideration of these amendments, council agreed to enter consent orders for the conditional approval of the subdivision. A number of objectors were notified of this and given the opportunity to attend the view, where the parties agreed that the matter could be completed by way of an on-site hearing.

4 The full details of the proposal, its environs and the relevant statutory planning framework are contained in the Statement of Basic Facts, on which I rely.

5 However, the site is within the Residential 2(a) zone and the subdivision is permissible with consent. The lots comfortably comply with the minimum lot size of 450 sq m.

6 A number of residents expressed their objections to the proposal, which can be summarised as follows:

• over-development of the area;
• drainage/flooding;
• adequate road access;
• unsatisfactory local park access;
• adequacy of social infrastructure.

7 The principal concern about overdevelopment arises because a number of multi-unit development applications have been made in respect of some of the recently completed 53 lots. The residents consider this a significant change of character, which is contrary to the original intent of the controls, that this new residential area be of a low-density character.

8 In response to this concern, the Court was informed that the existing controls do allow for a mix of residential development in the zone. The distribution of any mixed unit development within the subdivision is considered on its merits. It therefore seems to me that the incremental change for the additional 3 lots (albeit marginally smaller in area), still retains the low density residential character of the area. These lots also allow the construction of single residential dwellings, as permitted by the controls and therefore I do not consider this objection warrants the rejection of the proposal before the Court.

9 Associated with this concern about overdevelopment, the residents say that increased flooding will occur. But council’s engineer Mr Wood, said that the original 53 lot subdivision provided for a drainage system incorporating a detention basin, to control downstream flows. He says that this drainage detention system has adequate capacity to cope with any marginal change of stormwater discharge from the 3 additional lots. Also, when multi-unit development applications are approved, they are required to provide additional on-site detention to further control outflows, so as to manage drainage within acceptable levels of risk.

10 I rely on Mr Wood’s evidence that the recently constructed drainage system is adequate to cope with the any increase runoff from development on the 3 additional lots, within acceptable limits of risk. Therefore I do not consider the application should be rejected on the grounds of this objection.

11 The next objection concerned inadequacy of the road system, due to traffic from the three additional lots. However Mr Woods responded that any additional traffic generated from the 3 lots would be marginal terms of overall traffic generation, which can be comfortably handled within the environmental capacity of the new subdivision road system. I accept this evidence and do not consider this sufficient grounds for rejection of the proposal.

12 The other objections seem to deal with matters outside the scope of this particular appeal. The dissatisfaction with the nearby local park because of its likely enclosure by high fencing and narrow access, creating unsafe conditions is outside the subject land and is a matter that would be considered by council, when a detailed development application is lodged for the adjoining development.

13 The other objections concern the provision of general social infrastructure such as medical services. Again, this is outside the scope of the subject planning appeal, although I note that the applicant has agreed to the current s 94 contributions for the relevant infrastructure improvements, contained in the conditions consent.

14 Having considered the evidence and undertaken a view, I am satisfied that consent orders allowing for the 3 additional allotments, within the existing 53 lot subdivision should be granted.

1. The appeal is upheld.
2. The application for development consent No. 8/2005/685/1 as shown in the amended plan numbered 0471-114 dated January 2006, 1 sheet, drawn by ACM Landmark Pty Ltd is approved subject to the conditions contained in Annexure “A” hereof.
3. The exhibits may be returned except for Exhibits 1, A and B.

The Court notes the parties’ agreement to pay their own costs.

___________________
R Hussey
Commissioner of the Court
rjs