Carbone v Camden Council - [2015] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation: Carbone v Camden Council [2015] NSWLEC 1161
Hearing dates: 19 & 20 March, 2015
Decision date: 19 May 2015
Jurisdiction: Class 1
Before: Smithson AC
Decision:
1. The appeal is upheld.
2. Development Application DA 487/2014 for subdivision of 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South be approved subject to the conditions at Annexure A.
3. That the exhibits be returned other than Exhibits 1 and 5 and the Supplementary Index to Exhibit B.

Catchwords: DEVELOPMENT APPLICATION – Subdivision in established residential area, building envelopes, lot dimensions, setbacks, character of area, tree removal, private open space, visual and acoustic privacy, use of section 88B instrument
Category: Principal judgment
Parties: Mario Carbone (Applicant)
Camden Council (Respondent)
Representation:
Counsel:
Mr T Hale (Applicant)
Mr C Drury (Respondent)
Solicitors:
Barclays Law Group (Applicant)
Sparke Helmore (Respondent)

File Number(s): 10922 of 2014

Judgment

Introduction

This is an appeal against refusal by Camden Council of Development Application 487/2014 (DA) for a subdivision to create 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South (“the site").
The proposed subdivision would create 4 Torrens title lots ranging in size from 600m² to 924m², with nominated building envelopes on three of the lots (proposed Lots 50, 51 and 52) and retention of an existing house on the fourth lot (Lot 53), relocation of an existing driveway, and associated works. Up to 2 trees would be required to be removed to facilitate the subdivision and potentially a further 6 trees to facilitate subsequent development of dwellings within the nominated building envelopes. A total of 23 trees would be retained.
The site is located on the south east corner of Elizabeth Macarthur Avenue and Bowman Avenue in an established residential area referred to as the Elizabeth Macarthur Estate which is in close proximity to two significant heritage items: Camden Park and Belgenny Farm. The site is identified as Lot 156 DP 31361 and has frontages of 36.12m to Elizabeth Macarthur Avenue and 54.4m to Bowman Avenue with an overall area approximating 2,879m². The site currently contains a single storey dwelling and carport (accessed from Bowman Avenue) as well as 26 mature trees.
The Elizabeth Macarthur Estate is characterised by low density residential development of one to two storey dwellings. Historically, dwellings have been well set back from the street in landscaped settings although infill development has more recently occurred in a number of locations with dwellings on reduced setbacks and site areas.
Development of the site is subject to the provisions of the Camden Local Environmental Plan 2010 (“CLEP"), in particular the following:

Clause 2.6 - Subdivision requires consent
Clause 4.1 - Minimum Lot size
Clause 5.9 - Preservation of Trees or Vegetation
Clause 7.4 - Earthworks

Development is also guided by the Camden Development Control Plan 2011 ("CDCP") which has a number of controls relating to development covering factors such as tree retention and landscape design, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWLEC 1161
Decision Date: 19 May 2015

CaseChat Overview and Summary

The appeal was brought by Carbone against Camden Council concerning the approval of a development application for subdivision and site works. The appeal was heard in the Land and Environment Court of New South Wales. The central dispute revolved around the council's refusal to approve a development application for the subdivision of four residential lots and associated site works at a specified address. The applicant argued that the refusal was not in accordance with the relevant planning legislation and local council policies.

The court had to determine whether the council's decision to refuse the development application was lawful and whether the applicant had demonstrated that the proposed development was in line with the planning framework. This included an assessment of the merits of the application, the compliance with relevant planning controls, and the consideration of public interest factors. The court also examined whether the decision-making process was procedurally fair and whether the reasons provided by the council were adequate.

The court found that the council's decision was flawed in several respects. It was determined that the council had failed to properly consider relevant policies and had not adequately explained its reasons for refusal. The court held that the applicant had demonstrated that the proposed development was consistent with the planning framework and would not have a significant adverse impact on the environment. Consequently, the appeal was upheld, and the development application was approved subject to certain conditions. The exhibits were to be returned, except for specific documents and the Supplementary Index to Exhibit B.

Orders

Orders of the court

1. The appeal is upheld.

2. Development Application DA 487/2014 for subdivision of 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South be approved subject to the conditions at Annexure A.

3. That the exhibits be returned other than Exhibits 1 and 5 and the Supplementary Index to Exhibit B.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Carbone v Camden Council [2015] NSWLEC 1161
Hearing dates:	19 & 20 March, 2015
Decision date:	19 May 2015
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1. The appeal is upheld. 2. Development Application DA 487/2014 for subdivision of 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South be approved subject to the conditions at Annexure A. 3. That the exhibits be returned other than Exhibits 1 and 5 and the Supplementary Index to Exhibit B.
Catchwords:	DEVELOPMENT APPLICATION – Subdivision in established residential area, building envelopes, lot dimensions, setbacks, character of area, tree removal, private open space, visual and acoustic privacy, use of section 88B instrument
Category:	Principal judgment
Parties:	Mario Carbone (Applicant) Camden Council (Respondent)
Representation:	Counsel: Mr T Hale (Applicant) Mr C Drury (Respondent) Solicitors: Barclays Law Group (Applicant) Sparke Helmore (Respondent)
File Number(s):	10922 of 2014