Drawtech Group Pty Limited v Rockdale City Council

[2007] NSWLEC 835

Land and Environment Court

of New South Wales

CITATION:

Drawtech Group Pty Limited v Rockdale City Council [2007] NSWLEC 835

PARTIES:

APPLICANT
Drawtech Group Pty Limited

ROCKDALE
Rockdale City Council

FILE NUMBER(S):

10124 of 2006

CORAM:

Bly C

KEY ISSUES:

Section 96 Application :- consent orders, villa development, deferred commencement and alter conditions, car parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

12/12/2007

EX TEMPORE JUDGMENT DATE:

12 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, barrister

RESPONDENT
Mr M Reilly, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

12 December 2007

10124 of 2006 Drawtech Group Pty Limited v Rockdale City Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 On 3 July 2006, I heard and determined an appeal in relation to the construction of a villa development in Solander Street, Monterey. Orders were issued by consent, granting development consent subject to a number of conditions including deferred commencement conditions. The applicant has now lodged with the council an application pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 to modify that consent.

2 There are three elements to that application. The first is to insert a new condition 2A to read:

Visitor parking spaces for the development and Strata Plan 65404 together be provided in accordance with the landscape plan prepared by TGS Landscape Architects dated 1 November 2007, drawing number 2007.1004 CC1-1 issue D.

3 The landscape plan referred to in the proposed condition 2A is Exhibit A.

4 The second element is that deferred commencement condition (v) be modified so as to insert the words “other than lot 6” after the reference to Strata Plan 65404 therein.

5 The third element provides for the period of the deferred commencement condition to be extended such that it will expire on 31 January 2008.

6 The council has now considered this application and supports the sought modifications, and is prepared to enter into consent orders with the applicant for the amendments as sought.

7 When this hearing began, the owners of Strata Plan 65404 (35-37 Solander Street) applied to become a party to the proceedings, taking into account the relationship of the proposed development at 33 Solander Street with that property, particularly matters of ownership and the operation of a number of proposed car parking spaces situated on the common property of SP 65404. I did not allow the owners of SP 65404 to become a party to the proceedings, instead giving their representative, Mr Kalyk, the opportunity to make submissions in relation to his client’s concerns as to the s 96 application before the Court.

8 I understand that the concerns in a merit sense are that the car parking arrangement at the rear of the site that would result from the applicant’s modification application means that instead of there being three visitor parking spaces there would be two. This is said to be an unsatisfactory outcome. It was also submitted that because the remaining two car spaces were not on the applicant’s land, there was serious doubt that they would be provided at all. In particular, the question was raised as to whether the owners of SP 65404 would agree to that arrangement, particularly when three spaces should be provided.

9 Whilst I recognise the benefit of providing three visitor parking spaces, I acknowledge that the Council’s Development Control Plan No. 34 would, on a mathematical calculation, require two and a quarter car spaces, I accept the council’s position that the provision of two car spaces is a satisfactory response to the DCP requirement. These car spaces, together with the apron adjoining them, have sufficient area for manoeuvring so that they can leave the site in a forward direction.

10 In the circumstances, notwithstanding the objection by the owners of SP 65404, and taking into account that the Council does not oppose the change I am satisfied that on its merits the car parking arrangement for the two developments together is satisfactory.

11 As for the other modification matters, I agree that they should both be approved. There was no argument in relation to extending the time of application for the deferred commencement to 31 January 2008. Also I am satisfied that in relation to the proposed modification to deferred commencement condition (v) by the inclusion of a reference to lot 6, that this change simply makes the condition consistent with the judgment given by the Court on 3 July 2006.

12 In all of these circumstances I have decided to uphold the appeal and amend the consent as sought.

13 During the hearing Mr Kalyk handed up a Notice of Motion seeking referral to the Duty Judge so that the applicant be joined as a party to the proceedings and that the proceedings be dismissed. The notice of motion was subsequently dismissed by Justice Sheahan.

___________________
T A Bly
Commissioner of the Court
Ljr/cc