Hely Horne Perry Medcalf Architects v Lake Macquarie City Council

[2004] NSWLEC 360

Land and Environment Court

of New South Wales

CITATION:	Hely Horne Perry Medcalf Architects v Lake Macquarie City Council [2004] NSWLEC 360
PARTIES:	APPLICANT Hely Horne Perry Medcalf Architects RESPONDENT Lake Macquarie City Council .
FILE NUMBER(S):	10074 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 .
CASES CITED:
DATES OF HEARING:	5 July 2004
EX TEMPORE JUDGMENT DATE :	07/05/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor Pike Pike & Fenwick RESPONDENT Mr G Long, solicitor Peter Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

5 July 2004

04/10074 Hely Horne Perry Medcalf Architects v Lake Macquarie City Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Lake Macquarie City Council (the council) of an application to construct 4 dwelling houses at 91 and 93 Ridge Road, Kilaben Bay.

2 The hearing commenced on site with the council clarifying those matters which remained in contention between the parties, the principal one of which was the impact on the views from the neighbouring property at No 89 Ridge Road.

3 As a consequence of having read the expert evidence filed on behalf of the council and tendered in these proceedings, I directed that the parties’ expert planning witnesses and the architects for the applicant confer to see if a redesign of the proposal could be effected which would have the outcome of resolving the matters of impact on the views of the residents of 89 Ridge Road in a fashion satisfactory to those residents.

4 As consequence of that conference, alterations to proposed dwelling No 3 have been agreed to between the council and the residents of No 89, on one hand, and the applicant, on the other, which will have the effect of preserving sufficient of the views across the water for the residents of No 89 to be satisfactory to both the council and those residents whilst at the same time effectively preserving the proposed yield for the applicant from the development.

5 A number of other matters that were of concern to the council have been resolved by changes to design to proposed dwelling No 4 and other minor alterations, to dwelling No 1, also enable that dwelling's issues to be resolved between the parties.

6 As a consequence, the council, subject to seeing the revised plans, does not press any substantive objections to the application.

7 A number of matters remain of concern to residents who gave evidence in these proceedings.

8 Essentially, these relate to the adequacy of the cul-de-sac portion of Ridge Road; parking impacts that may arise from the proposed development and the impact of additional waste disposal.

9 The latter issue relates to bins being left out for street collection by the council's waste disposal contractor – it being an undisputed proposition that the dimensions of the turning circle of the cul-de-sac are insufficient for that truck to turn and all bins, as consequence, are collected from one side of the street with the truck proceeding down the street collecting the waste and then reversing out of street.

10 All of these matters, however, are matters that fall within the general responsibility of the council.

11 Pursuant to the council's planning instruments, the proposal is permissible within the zoning.

12 The proposal meets the council's requirements for on-site parking in a numeric fashion whether that calculation is made either under the previous Development Control Plan (which required 2 parking spaces per dwelling) or under the new Development Control Plan (which requires 1.5 parking spaces for residents per dwelling and .5 parking space per dwelling for visitors). The numerical outcome of either Development Control Plan requires eight parking spaces on-site.

13 Whilst I sympathise with the residents in their concerns about on street parking; the nature of the kerb and guttering and the like, they are not matters that are involved with this application.

14 The application, with the other matters having been resolved, is entirely compliant with the various requirements in the council's planning instruments.

15 As a consequence, I am in the position where there is no possible basis upon which I could refuse to grant consent – subject to the presentation of revised plans. These will need to go through some form of consultation process (whether an abbreviated consultation process or otherwise) and consideration of them by the council.

16 As consequence, I uphold the appeal. I therefore give the following directions:

1. The applicant is to file and serve revised plans by 4 July;
2. The respondent is to file and serve any response to the revised plans by 27 July;
3. The matter is referred to callover before the Registrar on 28 July;
4. Liberty to relist before Moore C on two days notice at 9 AM by either party if required; and
5. If the council and the applicant are able to reach agreement on consent conditions and revised plans prior to the callover date, Orders will be made in Chambers giving effect to those and the mention date will be vacated.

Tim Moore
Commissioner of the Court