George v Palerang Council - [2010] NSWLEC 1189

Land and Environment Court

of New South Wales

CITATION: George v Palerang Council [2010] NSWLEC 1189

PARTIES:
APPLICANT
A George
RESPONDENT
Palerang Council

FILE NUMBER(S): 10866 of 2009

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION :-

LEGISLATION CITED: Yarrowlumla Local Environmental Plan 2002
Development Control Plan Yarrowlumla LEP 2002 2(v) Village Zone 2009
Development Control Plan Yarrowlumla LEP 2002 2(v) Village Zone 2005

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
GHD Pty Limited v Palerang Council [2009] NSWLEC 1342

DATES OF HEARING: 31May and 4 June 2010

EX TEMPORE JUDGMENT DATE: 4 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr R O'Gorman Hughes, barrister
INSTRUCTED BY
Elrington Boardman Allport Lawyers
RESPONDENT
Mr I Hemmings, barrister
INSTRUCTED BY
Williams Love & Nicol

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

4 June 2010

09/10866 George v Palerang Council
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 SENIOR COMMISSIONER: 2 Modbury Street, Bungendore, is a vacant allotment of a little more than 14,400 square metres, located on the northern edge of the eastern element of Precinct 2 of the village. It is located on the corner of Turallo Terrace and Modbury Street and is generally regular in shape but has a slight extension giving it a minor L-shaped element in its south eastern corner.

2 The present proposal seeks development consent for the construction of 23 x three-bedroom single-storey detached dwellings to form a multi unit housing development that will be serviced, for vehicle access purposes, by a loop driveway with both entrances from Modbury Street. A number of dwellings, on the northern side of the allotment, will have their rear boundaries to an unmade portion of Turallo Terrace that runs between Modbury Street at the west and Mecca Lane towards the east. There is a made gravelled portion of Turallo Terrace that runs further to the north-west, along the boundaries of the houses to the west of Modbury Street.

3 There are a number of matters that I am asked to consider in these proceedings – including a number of disputes about construction of numerical controls and the like that arise out of the Development Control Plan and a number of matters of consistency or otherwise that are raised with respect to the provisions of the Yarrowlumla Local Environmental Plan 2002 (the LEP).

4 There are two development control plans that have been put before me that relate to development within the 2(v) village zone being the zone within which 2 Modbury Street is located. The first is Development Control Plan Yarrowlumla LEP 2002 2(v) Village Zone 2009 (the 2009 DCP). The 2009 DCP was adopted after this application was lodged with the council. The terms of the council's resolution that adopted that development control plan (at a council meeting held on either 7 or 14 May - not known with precision because the minutes of the council meeting…

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: [2010] NSWLEC 1189
Decision Date: 4 June 2010

CaseChat Overview and Summary

In George v Palerang Council, the applicant sought development consent for the construction of 23 three-bedroom single-storey detached dwellings on a 14,400 square metre vacant allotment at Bungendore. The application was considered under the Yarrowlumla Local Environmental Plan 2002 and its associated Development Control Plan. The primary legal issues involved the consistency of the proposed development with the objectives of the LEP and the 2005 Development Control Plan, particularly in terms of residential amenity and consistency with nearby development. The court had to determine whether the proposed development met the objectives of providing flexibility in residential living styles and increased urban amenity, and if it was consistent with nearby development patterns.

The court concluded that the proposed development failed to provide adequate residential amenity. Experts agreed that the dwellings could be oriented to achieve better solar access and residential amenity if they were accessed from Turallo Terrace rather than Modbury Street. The applicant's proposal would result in some dwellings having limited solar access during winter and living areas predominantly oriented to the south and south-west, contrary to best design practices. Additionally, the proposed driveways would cause significant headlight impact on neighbouring properties. The court also found that the proposed development did not comply with the nearby development pattern, as it would not present dwellings fronting Modbury Street. This inconsistency with nearby development, coupled with the inadequate residential amenity, led the court to refuse the development consent.

The court dismissed the appeal and refused the development consent, noting that a future development proposal accessed from Turallo Terrace with better urban design and residential amenity could be considered. The exhibits, except for two specific ones, were returned to the applicant.

Orders