Chiaverini v Wollongong City Council

[2007] NSWLEC 684

Land and Environment Court

of New South Wales

CITATION:	Chiaverini v Wollongong City Council [2007] NSWLEC 684
PARTIES:	APPLICANTS R & J Chiaverini RESPONDENT Wollongong City Council
FILE NUMBER(S):	10626 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	27 September and 4 October 2007
EX TEMPORE JUDGMENT DATE:	4 October 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr A Seton, solicitor Marsdens Law Group RESPONDENT Mr M Mantei, solicitor Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

4 October 2007

10626 of 2007 R & J Chiaverini v Wollongong City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act1979 (the Act) concerning the refusal by Wollongong City Council (the Council) of Development Application 2005/912 for the construction of a two storey dwelling with basement parking, in-ground swimming pool and tennis court at 62A Wellington Drive, Balgownie, which is lot 92 in Deposited Plan 1012386 (the site).

2 When the matter came before me for consideration of consent orders on the site, although one of the objectors to the original proposal was present and able to be heard, the second and major documentary objectors who resided formerly to the south of the site had sold their property and moved on.

3 However, I was obliged to have regard to all the detailed written objections as there were now proposed to be consent orders between the parties. These documents had not been provided and were not available on the site at that time.

4 As a consequence, I adjourned the hearing to enable the Council to provide me with the bulky range of printed material that had been lodged on behalf of the now-departed objectors. Those materials (which I have now carefully read) raised a number of issues – including impacts of amenity on the dwelling to the south; on the outlook from the dwelling to the south; drainage issues across the property to the south; bushfire issues; and geotechnical support. I do not need to canvas the totality of those issues in detail but I am satisfied, having spent some time on site with the representatives of the applicant and the respondent, and reading all of the material provided both by the applicant and in support of the objections that there is now no basis upon which I should uphold any of those objections raised by the former residents to the south.

5 During the course of the site inspection Mrs Regan, the owner of the property immediately to the north, and her husband accompanied the inspecting party and took part in a wide-ranging discussion about matters of objection. A number of these were able to be addressed during the course of the site inspection by changes to the proposed conditions of consent such as providing greater detail to and process for the dilapidation report associated with the right of carriageway up the lengthy steep driveway which will be the access for the proposed dwelling on the site.

6 The nature of the site is somewhat unusual in that the allotment to accommodate the present proposed dwelling has an extremely long axe-handle, the vast majority of which is a right of carriageway over the Regan property and a small element of which, about 1 m wide, is a freehold axe-handle. At the head of Wellington Drive, the right of carriageway diverts entirely from the axe-handle but the 1 m wide strip continues in a straight line to the head of the cul-de-sac at Wellington Drive.

7 Although issues arose during the course of the site inspection as to how the services were to be taken up the 1 m wide strip and what the impact might be on that on trees that were planted adjacent to the fence along the southern side of the driveway and the two or three lights that were erected in that driveway but supplied with electricity from the Regan residence, it is clear from my consideration of the plan of subdivision that there remains an appropriate legal pathway for the applicant to provide services to the proposed dwelling.

8 In a submission put to the Court by Mr Mantei, solicitor for the Council, Mrs Regan raises, on 29 September following the site inspection, a number of further matters. The first relates to site security matters and the potential dangers to her young children during the construction stage.

9 I am satisfied that the version of the conditions now proposed and the proposed work plan for the construction process will adequately deal with that matter. Condition 67A requires that, prior to any work commencing on site, a work plan must be prepared by a person experienced and suitably qualified in Occupational Health and Safety for management of the access driveway during the construction period of the proposed development. The work plan is required to deal with the safety issues she raises.

10 The other matters which she raises address the question of whether or not the trees, the lights and the very substantial ornamental brick and sandstone fence erected along the frontage to Wellington Drive and returning generally to the south-west to meet up with a Colorbond fence adjacent to the driveway are in fact located on the boundary of the applicant’s property with the property to the south; whether they are on the Reagan’s property; or whether they are some combination of the two.

11 She asks me to require the applicant to obtain a survey, prior to being given any consent, to determine what is the position in this regard. I am satisfied that it is not appropriate to require the applicant to do that. I have considered the plan of subdivision that created the allotment which is the subject of this application and a document entitled Detail and Contour Plan (prepared by Mr Ralph Moses and dated 2 July 2004). These do not identify the location of the fence and other elements Mrs Regan raises. However, I am obliged to proceed on the basis that the applicants know where their own land is and understands that the consent which is to be given to them pursuant to these proposed consent orders authorises them only to undertake activities for which they have proper access and approval, either on their own property or, as is the case with respect to a number of trees to be removed from the council’s property, with the consent of the landowner of that property.

12 On that latter issue, I am satisfied that I have a written letter of authorisation from the General Manager of the Council which authorises, subject to a number of the conditions enumerated in the proposed conditions of consent, the removal of the trees that are necessary to be removed for fire-fighting protection purposes and which trees are located on the Council’s land. As a consequence of all of the foregoing, I am satisfied that it is appropriate that the appeal be upheld by consent and that Development Application 2005/912 for the construction of a two storey dwelling with basement parking, in-ground swimming pool and tennis court at 62A Wellington Drive Balgownie should be granted development consent subject to the conditions agreed between the parties.

Commissioner of the Court