Huntacorp v Cessnock City Council

[2008] NSWLEC 24

Land and Environment Court

of New South Wales

CITATION:	Huntacorp v Cessnock City Council [2008] NSWLEC 24
PARTIES:	APPLICANT Huntacorp Pty Limited RESPONDENT Cessnock City Council
FILE NUMBER(S):	11085 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- Consent Orders - single storey attached dual occupancy development - character - traffic
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Cessnock Local Environmental Plan 1989
DATES OF HEARING:	16/01/08
EX TEMPORE JUDGMENT DATE:	16 January 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G Williams, solicitor SOILICITORS Thompson Norrie Solicitors RESPONDENT Mr R Mallik, solicitor SOLICITORS Mallik Rees Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 January 2008

11085 of 2007 Huntacorp Pty Limited v Cessnock City Council

JUDGMENT

1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to Development Application No 8/2007/410 for the construction of a single storey attached dual occupancy development on 38 O’Shea Circuit Cessnock. While the matter were originally set down as a Court Hearing, the parties agreed that the matter could be heard as an On Site Hearing.

2 In accordance with the Courts Practice Note - Class 1 Development Appeals any objector to the development application may be heard in the Courts consideration of the Consent Orders. In this regard, Ms Kerrie Miller of 40 O’Shea Circuit and Mr Colin McFarlane of 10 Traminer Grove sought to be heard. Ms Miller and Mr McFarlane raised similar issues. They expressed concern that the number of dual occupancy developments in the immediate area was having an adverse impact on the character of the area. They indicated that this was contrary to the basis upon which they purchased their properties. A reference was also made to a s 88B instrument that sought to protect the quality of the residential estate. A number of vacant sites in the immediate area have approvals for dual occupancy development or have development applications before the council.

3 Ms Miller and Mr McFarlane also expressed concern that the number of dual occupancy developments at the intersection of O’Shea Circuit and Traminer Grove is likely to create high levels of traffic movements with a subsequent impact on the safety for pedestrians, particularly children.

4 The site is zoned Residential 2(a) under Cessnock Local Environmental Plan 1989 (LEP 1989). Attached dual occupancy developments are permissible with consent within this zone. The proposed development is also subject to the provisions of Cessnock Development Control Plan 2006 (DCP 2006). DCP 2006 provides requirements for Urban Housing, including dual occupancy developments (Part D.2). The report from the council officer indicates compliance with the provisions of LEP 1989 and the DCP 2006.

5 In considering the submissions of Ms Miller and Mr McFarlane, I am satisfied that the refusal of the development application cannot be substantiated based on their submissions. LEP 1989 and DCP 2006 do not contain any provisions that limit the number of dual occupancy developments within an area. Without any such provision, the development application must be considered on its merits and in accordance with the provisions of DCP 2006. The assessment under DCP 2006 found no basis for the refusal of the development application. Similarly, the s 88B Instrument does not place a limit on the number of dual occupancy developments within an area.

6 I note that the issue of traffic was addressed in the report of the council officer who found that any additional traffic would not be a reason to refuse the development application. In the absence of any evidence to refute this conclusion I accept that increased traffic is not a reason to refuse the development application.

7 There being no reason why development consent should not granted, the following Orders are made, by consent:

1. The appeal is upheld.
2. DA 8/2007/410 for the construction of a dual occupancy development at 38 O’Shea Circuit Cessnock is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.
_____________
G T Brown
Commissioner of the Court