Clark v Gosford City Council

[2010] NSWLEC 1218

Land and Environment Court

of New South Wales

CITATION:

Clark & Anor v Gosford City Council [2010] NSWLEC 1218

PARTIES:

APPLICANT
Clark & Anor

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10313 of 2010

CORAM:

Murrell C

KEY ISSUES:

APPEAL :- Appeal against Order under s.121B of the Environment Planning and Assessment Act 1979
Consent Orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

25 June 2010

EX TEMPORE JUDGMENT DATE:

25 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Tipple (solicitor)
SOLICITOR
Brennan Tipple Partners

RESPONDENT
Mr M Everingham (solicitor)
SOLICITOR
Gosford City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

25 June 2010

10313 of 2010 Clark & Anor v Gosford City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This matter has come before me today as Consent Orders. The applicant had appealed against an Order under s 121B of the Environmental Planning and Assessment Act 1979 issued by Gosford City Council.

2 The applicant has agreed to certain works and the council is satisfied and has no outstanding issues. As such, the parties have agreed to enter into Consent Orders.

3 By way of background the terms of the Order issued state:

On 17th day of January 2000 Gosford City Council granted an approval ("the development consent') to Development Application numbered 6352 of 1999 pursuant to Part IV of the Environmental Planning and Assessment Act 1979 for a "proposed multi level dwelling house and freestanding caravan port" subject to conditions of the development consent.

Condition 13 of the development consent required "the existing dwelling (barn) is not to be used as a second occupancy and for this purpose the kitchen and laundry are to be removed prior to occupation of the new dwelling."

The development consent is not being complied with in that a kitchen and laundry are established in the barn and persons are occupying the barn.

Reasons for Order:

Council is concerned that failure to comply with the conditions of the development consent has increased the traffic movements to and from this residential Lot affecting the amenity of adjacent residences served by the same driveway.

Council has decided in the circumstances to issue this Order as the most effective method to bring about compliance with the development consent.
This Order Requires:

That you comply with the development consent by removing from the barn all the kitchen and laundry facilities including but not limited to:

• From the kitchen, the fridge, hot plate and range hood, dishwasher and associated cupboards and draws, pantry, and breakfast bar and associated cupboards and draws.
• From the laundry, the sink, associated cupboards and benches, washing machine, dryer and linen cupboard.
  
Further that the barn is not used as a second occupancy. Compliance with the terms of the Order by: 31 May 2010.

4 The parties have agreed to delineate more narrowly than what the Order sought as originally issued.

5 I am satisfied given that there are no objectors and given that both parties have consented to the terms of the amended Order for there is no reason as to why the Court should not agree to the Consent Orders signed and as handed up today.

6 Accordingly, for the record, the Court agrees to the Consent Orders agreed to between the parties as follows:

1. By consent, the appeal is upheld.

2. The applicant is to carry out works pursuant to Environmental Planning and Assessment Act section 121B, order 15; on Lot 17 DP 1037430 Lea Avenue, Wamberal as modified by this Order.

3. Remove from the barn, the kitchen and laundry facilities including plumbing but limited to: from the kitchen; the fridge, hotplate and dishwasher, from the laundry; the sink, washing machine and dryer.

4 The work to be completed by 9 July 2010.

___________________

J S Murrell
Commissioner of the Court
DJ