Card v Maitland City Council

[2006] NSWLEC 600

Land and Environment Court

of New South Wales

CITATION:

Card v Maitland City Council [2006] NSWLEC 600

PARTIES:

APPLICANT
Jaci Card

RESPONDENT
Maitland City Council

FILE NUMBER(S):

11473 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders - subdivision of an existing residential lot into two Torrens Title lots and the erection of a dwelling - objector to proposal

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Maitland Local Environmental Plan 1993

DATES OF HEARING:

31/08/2006

EX TEMPORE JUDGMENT DATE:

08/31/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Long, solicitor
SOLICITORS
Law & Planning

RESPONDENT
Mr G. Williams, solicitor
SOLICITORS
Thompson Norrie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 August 2006

11473 of 2005 Jaci Card v Maitland City Council

JUDGMENT

1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to Development Application No. 05/531 that was originally submitted for the subdivision of land at Lot 51, DP809355, 7, Christine Close, Rutherford (the site). The application was modified to include the erection of a dwelling in addition to the subdivision.

2 The proposal provides for the subdivision of Lot 51 with an area of 9,196.2 sq m into two Torrens titled lots, being lot 511 with an area of 6,788.23 sq m and Lot 512 having an area of 2,417.917 sq m. An existing dwelling is to be retained on Lot 511. The proposed dwelling is to be located on Lot 512.

3 The site is located within an established residential development situated north of the New England Highway on the western approach to the city centre. The site is on the crest of the only prominent elevation in the locality and is immediately surrounded by large residential lots of a similar size that contain detached housing. Land immediately below this area is characterised by residential development consisting predominantly of detached housing on an average lot size of 838.1 sq m.

4 The site falls within the 2(a) Residential Zone of Maitland Local Environment Plan 1993. The subdivision of land and the erection of dwellings are permissible with consent within this zone. The minimum lot size for subdivision is 450 sq m.

5 In accordance with the Court’s Practice Direction, the Court may hear from any objectors who wish to be heard in the consideration of the Consent Orders. In this regard, Mr Stubbs of 5 Christine Close took this opportunity and provided his evidence on site. He opposed the subdivision and proposed dwelling for four main reasons. These being:

1. the entry
2. stormwater
3. overlooking
4. the accuracy of the plans

6 In relation to the entry, Mr Stubbs’ concerns related to the existing driveway encroaching on his property and the location of any proposed service boxes. I note the plans address the encroachment by relocating the driveway off Mr Stubbs property onto the site. In my view, the location of the service boxes is not an issue as sufficient area is available for these to be located near the street frontage without impacting on access to the site or any other property.

7 The question of stormwater is addressed adequately through the imposition of a condition that requires any stormwater to be constructed in accordance with the council’s stormwater designs. I note that an additional agricultural drain is provided along the southern boundary to provide an added protection to Mr Stubbs’ property that is located at a lower level than the proposed dwelling.

8 Mr Greg Vickas, the applicant’s architect, addressed the question of overlooking. He explained the design and how it responded to Mr Stubbs’ overlooking concerns. I accept that more than adequate arrangements have been made to minimise the potential for overlooking to the adjoining property through the design of the proposed dwelling. I also note that there is a considerable distance between the proposed dwelling and Mr Stubb’s dwelling. This area is also proposed to be landscaped so any overlooking will be further minimised.

9 On the question of the accuracy of the plans, Mr Stubbs identified a number of areas however these were relatively minor and did not raise any issues that would warrant further consideration or amendment to the plans.

10 For the reasons mentioned above, I accept that there are no reasons why the Consent Orders should not be made. The Orders are:

1. The appeal is upheld.

2. Development consent is granted in respect of Development Application No. 05/531 for the subdivision of Lot 51 DP 809355, 7 Christine Close, Rutherford into 2 lots and the erection of a dwelling, as amended by the applicant on 1 August 2006, subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibit A.

___________________

G T Brown
Commissioner of the Court
ljr