Bennette v Byron Shire Council
[2001] NSWLEC 157
•04/26/2001
Land and Environment Court
of New South Wales
CITATION: Bennette v Byron Shire Council [2001] NSWLEC 157 PARTIES: APPLICANT:
RESPONDENT:
Jerry Lee Bennette
Byron Shire CouncilFILE NUMBER(S): 10318 of 2000 CORAM: Talbot J KEY ISSUES: Development Application :- subdivision - consent granted. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6/2/01, 7/2/01, 16/2/01, 26/4/01 EX TEMPORE
JUDGMENT DATE :
04/26/2001LEGAL REPRESENTATIVES:
APPLICANT:
Mr J J Webster (Barrister)
SOLICITORS:
Stacks the Law Firm with
Halliday & StainlayRESPONDENT:
Mr T F Robertson (Barrister) (06/2/01)
with Mr K E Webber (Solicitor)
SOLICITORS:
Wilshire Webb
JUDGMENT:
IN THE LAND AND Matter No. 10318 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 26 April 2001
Respondent
1. This matter has a long, disjointed history. During the course of the hearing the plans were largely re-drawn and presented in a form which is principally designed to meet the fundamental objections raised by the council and to a large extent deal with issues raised by the residents of Suffolk Park, both through their formal organisation and as individuals.
2. The Court has the benefit of evidence from individual residents of Suffolk Park and other areas in the immediate vicinity. A significant part of the concerns expressed by the residents are in relation to the original plans proposed by the applicant. When the amended plans were generated the residents were given an opportunity to give further consideration to the proposal. On both occasions they were afforded time to explain to the Court whether their difficulties had been resolved.
3. There have been further discussions between the council officers, the applicant, the applicant’s representatives and expert witnesses. These discussions have resulted in an extension of the area to be dedicated as public reserve and a reconfiguration of the subdivision to meet the objectives of the relevant Development Control Plan and to take account of the ecological issues that arise as a consequence of this land being adjacent to Tallow Creek and the low lying areas of wetland associated with that creek network.
4. The proposal for the development of this land has generated a considerable amount of anxiety and interest on the part of the residents. The council and the applicant appear to have reached a situation where the Court can be satisfied that a responsible approach is being taken in the development of this area. The matters raised by the council in the first place and by the residents have been taken into account.
5. The land is already destined to be filled to 2.6 AHD pursuant to an earlier development consent. That did not occur. The proposed fill will be above the relevant one in 100 year flood level. It is proposed that there be a condition that requires the filling take place. Otherwise, having regard to the inundation which currently occurs, there could be significant problems.
6. Following consultation between the applicant’s consultant, Mr Patterson, and council officers the Court is satisfied that the flooding issue is now resolved. They have settled on conditions of consent which will, in the Court’s view, satisfactorily address this issue. The flooding and collection of water which presently occurs will be remedied by the future fill as a consequence of the conditions of the earlier development consent confirmed in the conditions of consent now proposed.
7. It must be remembered that the extent of the development has been reduced from that which was originally proposed. It was the extent of the development which, to a certain degree, heightened the level of anxiety of the residents who raised objections.
8. The Court is now satisfied that issues of traffic have been resolved satisfactorily. The local streets will have the capacity to deal with the reduced amount of traffic generated as a consequence of the modified development. The increase of traffic at a critical intersection between Broken Head Road and Clifford Street is, according to Mr Ray Sergeant, the applicant’s traffic consultant, negligible. Accordingly, there will be no significant impact on traffic operations and on the through traffic capacity of Broken Head Road.
9. The residents entered into debate about whether the amenity to be provided by the lots would be satisfactory having regard to the range of lot sizes proposed. The Byron Shire Council Development Control Plan 9 (“the DCP”) for the Suffolk Park precinct has provisions in relation to the dispersal of small lots. They are generally defined as being 400 square metres. There is further provision in respect of the percentage of lots which should have a frontage of more than 15 metres and an area in excess of 400 square metres.
10. The criteria of the DCP is now satisfied in terms of its objectives. Mr Webster submits for the applicant, and Mr Webber is not heard to disagree on behalf of the council, that the development now fits the criteria. One of the resident witnesses was particularly concerned about this aspect. However, he agreed in cross-examination that if the changes were made in the manner now proposed his concerns in that respect could be satisfied.
11. Some of the residents expressed concern about lack of provision for playing fields in the area that is to be set aside for public use. The fact is that the open space areas shown in the relevant Development Control Plan for playing fields will be dedicated as a public reserve as a consequence of the approval of this subdivision. Mr Webster points out that when part of this area was originally designated for playing fields in the DCP, different ecological conditions prevailed. Subsequent changes that have occurred mean that this area may not be a satisfactory site for that type of activity. However, that is not a matter which can be resolved in these proceedings. The land is to be dedicated to the council and what follows from that is a matter between the council, its advisors and the ratepayers in due course.
12. A concern about the provision of emergency access to the area appears to have been resolved by the applicant’s agreement to construct an emergency access to the north, through Alcorn Street.
13. An issue was raised by the residents that the proposed neighbourhood lot would be held under what they described as a Torrens Title. This objection is made on the basis that under the arrangements proposed the neighbourhood lot would be used as a private access with right of way to each of the five lots in Precinct 2. This, the residents feared, would have the effect of creating a private estate to which the public would not have access. Given the dedication of what was to be part of a neighbourhood lot in Precinct 2 and the provision for access to the public lands off the existing roads and proposed roads, the Court is not now concerned that the area designated as a neighbourhood lot will not be a public road. Indeed the council is not seeking to have that land dedicated as a road. It therefore is regarded as nothing more than a shared private access to the five lots in the northern part of Precinct 2.
14. Concerns about stormwater and the management thereof, apart from the flooding issues referred to above, have been the subject of consultation between Mr Patterson and council officers. They have now developed a satisfactory stormwater management plan in order to account for the impact of the discharge of stormwater into the open space areas. This has also been done in consultation with Mr Milledge, who gave evidence about environmental concerns in respect of the public reserve area.
15. There are a number of peripheral issues which are more a reflection of concerns by the residents as to whether the land should be developed at all. The Court’s responsibility is to see that where land is appropriately zoned for development, that any development proposed does not have an impact which is unacceptable in environmental terms.
16. This land is zoned for the purpose for which it is now proposed. Given that the physical impacts of the development can, and will be, controlled by appropriate conditions of consent, about which there is now a consensus between the council and the applicant, the Court is satisfied that it is appropriate for consent to be granted.
17. The issues between the council and the applicant have been resolved by negotiation. These negotiations have resulted in a set of amended plans. Through the adoption of the conditions the council has indicated that it now has no issues to raise in relation to the proposed subdivision, apart from the matters raised by the residents. The council in that latter regard has left those matters to be determined by the Court.
18. The Court is satisfied that the concerns of the residents have been properly and adequately taken into account. A number of the impacts that they foreshadowed, either will not now occur as a consequence of the amendments or will not be such that their concerns are justified. Some issues raised go beyond the ambit of this development application given the zoning and other controls which recognise the prospect of this development taking place.
19. Having regard to all the circumstances, the Court proposes to uphold the appeal and to grant development consent subject to the agreed conditions of consent.
1. Appeal upheld.20. The Court makes the following formal orders:-
- 2. Development application number 99/0943 for the proposed subdivision of part Lot 65, DP 1001135 Precinct 1 and 2 Suffolk Park for residential purposes is determined by the granting of consent subject to the conditions attached hereto in the form of Exhibit S.
3. The exhibits apart from Exhibits S and G may be returned.
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