GLDN Pty Ltd v Cessnock City Council - [2006] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION: GLDN Pty Ltd v Cessnock City Council [2006] NSWLEC 186

PARTIES:
APPLICANT
GLDN Pty Ltd
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 10767 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Useable open space, streetscape, solar access to private courtyards and living rooms, vehicle manoeuvring, visual privacy of living rooms, visual and acoustic privacy of bedrooms

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989

CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313

DATES OF HEARING: 23/01/2006

DATE OF JUDGMENT:
04/18/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr P Sladen, agent
RESPONDENT
Mr R Mallik, solicitor
SOLICITORS
Cleaves Mallik Gibbs

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

18 April 2006
10767 of 2005 GLDN Pty Ltd v

Cessnock City Council

JUDGMENT

1. This is a class one appeal No. 10767 of 2005 between GLDN Pty Ltd and Cessnock City Council in regard to the deemed refusal of a proposal to demolish an existing house and erect four villa units at No. 30 Rawson Street, Aberdare.

2. The locality is one of wide streets up to 30 m road reservation with grass table drains and verges and centre sealed road. The next city block west on Rawson Street from the site has a local school. Down hill one city block are local shops, a hotel, bowling club and another block down playing fields.

3. The locality is predominantly detached houses with some newer medium density single storey villa developments on individual lots similar to the proposal. The site is 1,012 sq m in area with 20.1 m frontage and 50.2 m depth to a laneway at the rear. The site rises about 2 m from Rawson Street to the lane. The lot has a north-south orientation with Rawson Street at the south end.

4. The council opposes access of the rear laneway to new medium density development and none is proposed in this application.

5. The design has a driveway on the entire western boundary with the four villas about along the centreline of the allotment. There is a single visitor’s car space at the end of the driveway near the lane. There is a drainage easement along the rear boundary.

6. The villas are arranged with private courtyards on the eastern boundary separated in most cases by garages and laundries that project through to the eastern boundary. This also creates recesses in the western elevation to allow turning spaces for cars into and out of the garages.

7. The courtyards of Units 2 and 3 are separated by a fence.

8. The single car garages for each unit are located between Units 3 and 4 at the north end of the site. The garage to Unit 2 is between it and Unit 1. The latter has a separate driveway direct off Rawson Street to its garage.

9. There is a laundry in each villa at the rear of each garage. In Units…

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: [2006] NSWLEC 186
Decision Date: 04/18/2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of GLDN Pty Ltd v Cessnock City Council dealt with an appeal regarding the refusal of a proposal to demolish an existing house and construct four villa units at 30 Rawson Street, Aberdare. The central issues were whether the proposal met the requirements of the Environmental Planning and Assessment Act 1979 and the Cessnock Local Environmental Plan 1989, specifically focusing on useable open space, solar access, vehicle manoeuvring, and privacy. The court examined various aspects of the proposal, including the provision of useable open space, solar access to courtyards and living rooms, vehicle manoeuvring, visual privacy of living rooms, and visual and acoustic privacy of bedrooms.

The applicant argued that their proposal, which included a communal open space in front of the units, provided sufficient useable open space, solar access, and privacy. However, the court found that the proposal failed to meet several requirements under the Cessnock Development Control Plan No. 22. These deficiencies included inadequate useable open space, poor solar access to courtyards and living rooms, inadequate privacy measures, and problematic vehicle manoeuvring spaces. The court also noted that the proposed amendments to address these issues either failed to resolve the problems or created additional issues, such as compromised vehicle manoeuvring and reduced daylight in living rooms.

In dismissing the appeal, the court concluded that the proposal did not meet the statutory and planning requirements for medium density residential development. The court emphasized the importance of adhering to planning controls to ensure reasonable amenity and usability of dwellings. The decision highlighted the need for future developments to improve design and sustainability in line with planning policies and emerging requirements, such as BASIX at the state level. The court ultimately found the proposal to be deficient in multiple areas and not in line with the planning objectives and performance criteria set forth in the applicable development control plans.

Orders