Evewall v Cessnock City Council - [2009] NSWLEC 1448

Land and Environment Court

of New South Wales

CITATION: Evewall v Cessnock City Council [2009] NSWLEC 1448

PARTIES:
APPLICANT
Evewall
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 10330 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- Seniors Living Development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Moto Projects (No 2) Pty Limited v North Sydney Municipal Council [1999] NSWLEC 280
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 21 December 2009

EX TEMPORE JUDGMENT DATE: 21 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Williams (solicitor)
SOLICITOR
Thompson Norrie
RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

21 December 2009
10330 of 2009 Evewall v Cessnock City Council

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

JUDGMENT

Introduction

1 The applicant has consent to build a seniors living development on land at 6 Wine Country Road, Nulkaba and 16 Dover Street, Cessnock subject to conditions. This appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 concerns conditions 74, 80 81 and 82 and 83 imposed by Cessnock City Council’s on April 2009 in respect of DA 8/208/537/1 via a modification application DA8/208/537/2.

2 The hearing commenced on site and this enabled a view of the property and surrounding area and an opportunity to hear the residents’ evidence. It continued in Maitland Courthouse until it was adjourned to allow the parties’ single traffic expert, Mr Waugh, time to conduct a further traffic survey and prepare a supplementary traffic report. It resumed today in Sydney for completion of the evidence and submissions.

3 I was assisted during the hearing by the expert evidence of Mr Fielding the applicant’s town planner and Mr Warnes the respondent’s town planner and as I said the parties’ single traffic expert Mr Waugh. I note the evidence of the many local residents who attended the onsite hearing and provided oral and written submissions in respect of their concerns.

4 The agreed facts and issues of this appeal are detailed in the parties’ statements of facts and contentions filed in the proceedings and refined during the hearing. Today, I am advised that the issue in relation to the main access to the site from Wine Country Drive is resolved by an amended condition 74 as shown in the concept plan in Exhibit C. I have also been told that council no longer presses condition 83 of the amended consent.

5 The remaining issues raise the following questions for determination:

6 Following a consideration of the evidence and submissions and the relevant provisions of the Environmental Planning and Assessment…

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: [2009] NSWLEC 1448
Decision Date: 21 December 2009

CaseChat Overview and Summary

The applicant, Evewall, sought an appeal against certain conditions imposed by the Cessnock City Council regarding a seniors living development at 6 Wine Country Road, Nulkaba, and 16 Dover Street, Cessnock. The appeal concerned conditions 74, 80, 81, 82, and 83 imposed on April 2009 via a modification application. The key issues were whether the modified development was substantially the same as that originally approved by the council and whether unrestricted vehicle access from Dover Street was acceptable on merit assessment.

The court had to determine if the modified development, which proposed unrestricted vehicle access from Dover Street, was substantially the same as the development originally approved by the council. The court also needed to decide if, assuming the developments were substantially the same, it was acceptable to amend the conditions to allow such unrestricted vehicle access. The court examined the evidence and submissions from both parties and the relevant planning principles and statutory provisions.

The court found that the modified development was substantially the same as the development approved by the council. However, it was not satisfied that unrestricted vehicle access from Dover Street was acceptable on merit assessment. The court considered the impact on traffic and residential amenity, as well as the connectivity between the development and the adjoining residential area. The court accepted the evidence of local residents and the traffic expert that unrestricted vehicle access from Dover Street would cause an increase in traffic congestion, noise, and a perceived loss of amenity. The court concluded that the approved pedestrian and cycle access provided adequate connectivity and that unrestricted vehicle access was not necessary. Therefore, the court did not approve the modification to allow unrestricted vehicle access from Dover Street except for the purpose of the demolition of dwelling 16 during construction and for emergency vehicles.

The court ordered that the appeal be upheld in part and directed the parties to file draft conditions reflecting the judgment, including adopting the proposed condition 74 in Exhibit C and the amended condition 80 with the deletion of the last line.

Orders