Hawkins v Pittwater Council

[2005] NSWLEC 734

Land and Environment Court

of New South Wales

CITATION:

Hawkins v Pittwater Council [2005] NSWLEC 734

PARTIES:

APPLICANT
David Charles Hawkins
RESPONDENT
Pittwater Council

FILE NUMBER(S):

10774 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Dual occupancy

LEGISLATION CITED:

Environmental Planning and Assessment Act
Pittwater Local Environmental Plan 1993

DATES OF HEARING:

07/12/2005

EX TEMPORE JUDGMENT DATE:

12/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Hawkins, self represented

RESPONDENT
Ms E Duenow, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 December 2005

10774 of 2005 David Charles Hawkins v
Pittwater Council
JUDGMENT

1 This matter has come before me this morning as consent orders.

2 A s 97 appeal under the Environmental Planning and Assessment Act was lodged with the Court against the council’s determination of a development application for an attached dual occupancy on the property known as No. 77 Bardo Road, Newport.

3 Following the appeal the applicant has amended the development application to have regard to many of council’s concerns with the result that the applicant and the council now appear before the Court this morning with consent orders.

4 The development application has been assessed by the council officers and, to assist the Court in its understanding to ensure that all the issues raised by the council initially and all the matters referred to in the letters of objection have been addressed, they have provided oral evidence to the Court as well as their written assessment in the council’s bundle of documents.

5 Mr Salvatera, council’s civil engineer, gave evidence to the Court as did Ms Sarah Winnacott, council’s town planning assessment officer, for the subject development application.

6 The development application is for the development of the land for a dual occupancy although no subdivision of the dual occupancy or separate title is allowed under council’s relevant planning instrument.

7 The subject site is zoned Residential ‘A’ under the Pittwater Local Environmental Plan 1993.

8 The site has a rear access to Princes Lane which is the frontage for one of the dwellings and the main frontage is to Bardo Road which would provide the access to the front dwelling.

9 The property is 1180 sq m and to assist the Court an aerial photograph has been provided to understand in particular the drainage catchments and the resolution of the stormwater drainage for the subject property.

10 The objectors I am satisfied have been advised in accordance with the Court’s practice direction of today’s proceedings and none of the objectors availed themselves of the opportunity to be heard in Court.

11 Nonetheless, in my assessment of the application I have considered of their objections including the setback from Princes Lane and I am satisfied with the benefit of Ms Winnacott’s evidence the setback is satisfactory. Furthermore, there is a condition requiring the setback for the fencing to Princes Lane.

12 The site coverage of the building, that is whether it is an overdevelopment of the site, the application has been amended such that there is a maximum site coverage to allow approximately 50 per cent of the site to be soft landscaped area in accordance with council’s controls.

13 The other issues raised by objectors relate to the removal of the asbestos of the original dwelling and there are conditions I am satisfied which deal with the demolition and the removal of asbestos in an appropriate way.

14 There was another objection raised regarding the Norfolk Island pine tree. Council does not oppose the removal of the tree and from the evidence to the Court it is clearly within the footprint of any dwelling being approximately in the middle of the site. Council is also satisfied that habitat such as the swamp mahogany will be replaced on the subject site to provide for habitat for wildlife and also the amended conditions discussed today would allow for the movement of wildlife through the property.

15 The council, initially raised a number of issues and Ms Deunow has addressed these and there are either conditions to address such matters or the amended plans satisfy many of the issues originally raised by the council. This includes a pipe for drainage through the property for stormwater.

16 On the basis of the evidence to the Court and with the benefit of hearing from council’s experts I am satisfied there is no reason as to why the Court should not agree to the consent orders as proposed by the parties today. Therefore the formal orders of the Court are:

1. The appeal in respect of the property known as 77 Bardo Road, Newport, is upheld.

2. The development application submitted to Pittwater Council as amended and shown in the plans Issue E prepared by Ian Farrelly, Architect, is approved subject to the conditions contained in Annexure A.

3. There is no order to costs as the parties have agreed to pay their own costs.

4. The exhibits, except for 2, 3 and 4 are returned.
___________________
J S Murrell
Commissioner of the Court
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