Flannery v Hornsby Shire Council

[2005] NSWLEC 488

Land and Environment Court

of New South Wales

CITATION:

Flannery v Hornsby Shire Council [2005] NSWLEC 488

PARTIES:

APPLICANT
Reg Flannery

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10948 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Construction of 2-storey dwelling house - waste disposal - view loss - overshadowing - overflow of effluent -

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

31/08/2005

EX TEMPORE JUDGMENT DATE:

08/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Seton, solicitor
SOLICITORS
Marsdens

RESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 August 2005

10948 of 2004 Reg Flannery v Hornsby Shire Council

This decision was given as an extemporanous 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 of 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 website at

JUDGMENT

Background

1 This appeal concerns council’s refusal of a development application for a 2-storey dwelling house at Lot 3, Calabash Point, Berowra Waters. The subject lot has frontage to Berowra Creek, which is its access point.

2 It is apparent from the evidence, that the processing and assessment of the proposal has been lengthy, with a number of amended plans being submitted for council’s consideration.

3 This process has resulted in the amended plans now being acceptable to council so that the parties agree to consent orders. Nevertheless there are two outstanding matters which concern effluent treatment/disposal and public interest matters, that require final resolution.

4 For my assessment of the proposal, I have considered the detailed council executive manager’s report No. PLN 230/05. It contains a complete background of the proposal, together with the relevant controls in the planning framework. In the absence of any challenge to this assessment, I accept that it is reasonable and then appropriate to adopt its conclusion that the application merits conditional consent.

5 However, the issue of effluent disposal has been an ongoing concern and the proposal now incorporates a wet composting system designed by Aqua Ctaras, which the council is satisfied will work satisfactorily, with acceptable environmental limits. Nevertheless, the neighbours expressed some concern about the suitability of the site to accommodate this system.

6 After further consideration of various aspects raised by Mr Pratt, I am satisfied that the effluent disposal concept proposed should work within acceptable environmental limits. However, it seems to me that further detailed site investigation work is necessary to achieve this and enable finalisation of the design.

7 Under these circumstances then, I consider this an appropriate case to impose a deferred commencement condition regarding this issue. Such condition should require a detailed site investigation and design incorporating;

• The size and location of evapo-transpiration trenches.
• Details of overflow arrangements for effluent;
• Any required measures to minimise the impact of overland flows into the area.
• Details of location of any tanks, poles or other structures that restrict the use of the transpiration area.

8 Given the extensive investigations undertaken by the applicant’s representative and council officers, it would seem preferable this effluent design be prepared by a suitably qualified engineer and submitted to council for its approval, prior to the other conditions of consent operating.

9 With respect then to the other objections of overshadowing, and view loss, I consider the agreed conditions of consent reasonably address these concerns to allow to the consent orders to be made.

10 Therefore the orders of the Court are:

1. The appeal be upheld.
2. Deferred commencement development consent pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 be granted to Development Application No. 446/03 received by council on 13 March 2003 as amended, for the construction of a two (2) storey dwelling house upon Lot 3 DP 19920 Calabash Point, Berowra Waters (“the development").
The development shall be carried out in accordance with the drawings prepared by EJE Architecture No. SKAOl Rev C, SKA02 Rev C of October 2004 and subject to the conditions set out in Annexure "A" attached hereto.
3. The exhibits be returned except the following Exhibits 4, 5 and A.
4. No order as to costs.

___________________

R Hussey
Commissioner of the Court

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