Carantinos v Gosford City Council

[2006] NSWLEC 353

Land and Environment Court

of New South Wales

CITATION:

Carantinos v Gosford City Council [2006] NSWLEC 353

PARTIES:

APPLICANT
Michael and Susan Carantinos

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10750 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Residential subdivision, extent of access road construction, drainage, public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance
Development Control Plan No. 112 - Residential Subdivision
Development Control Plan No. 5 - Narara
Fisheries Management Act 1994 - Section 205
Rivers & Foreshores Improvement Act 1948
Rural Fires Act

DATES OF HEARING:

07/02/2006, 29/03/2006, 08/05/2006, 16/05/2006 and 09/06/2006

 
DATE OF JUDGMENT: 

06/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Frazer, barrister
SOLICITORS
P J Donnellan & Company

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 June 2006

10750 of 2005 Michael and Susan Carantinos v
Gosford City Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a 12 lot residential subdivision at No. 11 Monarchy Way, Narara. The reasons for refusal form the following issues for the appeal:

• adequacy of proposed access road,
• flood liability of part of the land,
• retention of large Sydney Blue Gum trees,
• drainage impacts on adjoining properties,
• public interest.

2 However, conferencing between the parties resulted in their agreement to consent orders, although some fine tuning of the conditions was required. The details of the site, the proposal and planning controls is contained in the Statement of Basic Facts, on which I rely.

The site

3 The site is located at the western end of Research Road and is accessed from Monarchy Way. It is described as Lot 322, DP 811628 and it has a right of carriageway (ROW) over Lot 321, DP 811628. This ROC is currently utilised to gain access to the existing dwelling located on the proposed Lot 3.

4 Lot 322 has an irregular shape containing an area of 13,050 sq m and is traversed by a watercourse along southern boundary, common boundary with the adjoining Lot 321, to the south.

5 The northern end of the site, which includes most of the proposed Lot 12 is zoned Restrictive Development (Flood Prone 9 (a) and is within the 1% AEP.

The proposal

6 This proposal is to subdivide Lot 322 into 12 residential lots with areas varying between 551sq m (Lots 6, 8) and 4601 sq m (Lot 12). Access to the new lots is proposed via the existing partly constructed Monarchy Way and its subsequent extension.

Planning controls

Gosford Planning Scheme Ordinance;

Development Control Plan No. 112 - Residential Subdivision;

Development Control Plan No. 5 – Narara;

Fisheries Management Act 1994 - Section 205;

Rivers & Foreshores Improvement Act 1948;

Rural Fires Act .

The evidence

7 Detailed reports on behalf of council were presented by Mr S Dobbs (senior town planner) and Mr P Coon (senior development assessment engineer). For the applicant, Mr D Kettle provided a detailed planning assessment supporting the proposal. Also detailed engineering information was provided by Mr J Alexander (consulting engineer), regarding the drainage and roadworks. A number of objections were raised by the neighbours concerning possible drainage and amenity impacts on their land.

8 Initially, concerns were raised about the adequacy and safety of the proposed construction works in Monarchy Way, considering its existing partial construction. However further negotiations between the parties, including the adjoining property owners (Mr & Mrs Easson) resulted in agreement for the applicant to undertake additional drainage and roadworks. These agreed construction works then provide for full width construction of the new road and its compliance with the intentions of the development control plan.

9 On the basis of these agreed works, the conditions of consent provide for the conditional arrangements for the construction works being undertaken within a reasonable time framework, prior to the application for a Subdivision Certificate.

10 In addition to this, the conditions of consent or acquire some upgrading and resurfacing of the natural watercourse, which traverses the property, adjacent to the proposed lots 1 and 2. I understand the conditions of consent cover the concerns raised the owners of the neighbouring property.

11 One of other initial issues concerned the restriction on the use of a substantial part of proposed Lot 12 because it is subject to flood inundation. However the revised subdivision layout indicates there is sufficient area to erect a future dwelling on this lot, above the designated flood levels. Conditions 33 is imposed to address this matter.

Conclusions

12 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the agreed amendments undertaken by the applicant, during the course of these proceedings has resulted in an acceptable development, which merits conditional consent. Consequently this has resulted in the parties agreeing to consent orders, which I am satisfied should now be granted. In doing so, I am satisfied that the matters raised by the neighbours have been reasonably addressed.

Court orders

13 The Court orders by consent:

1. The appeal is upheld.

2. Development consent is granted for a 12 lot subdivision at Monarchy Way, Narara, subject to the conditions annexed hereto and marked AA.

3. Exhibits to be returned other than 2, 5, 5A, B, E and H

___________________

R Hussey
Commissioner of the Court
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