Huntington & MacGillivray v Hurstville City Council and Ors [No 4]

[2006] NSWLEC 455

Land and Environment Court

of New South Wales

CITATION:

Huntington & MacGillivray v Hurstville City Council and Ors [No 4] [2006] NSWLEC 455

PARTIES:

APPLICANT
Huntington & MacGillivray

RESPONDENT
Hurstville City Council and Ors

FILE NUMBER(S):

10873 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- demolition of the existing buildings and the erection of a mixed residential/commercial development - easement for right of carriageway over adjoining property - traffic/access

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:

Huntington & MacGillivray v Hurstville City Council and Ors [2004] NSWLEC 694 ;
Huntington & MacGillivray v Hurstville City Council and Ors [No 2] [2005] NSWLEC 155;
Huntington & MacGillivray v Hurstville City Council and Ors [No 3] [2005] NSWLEC 219;
George Antipas v David & Rosaline Kutcher [2006] NSWLEC 42

DATES OF HEARING:

21/07/06

 
DATE OF JUDGMENT: 

07/31/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

INTERVENOR
Mr D Kutcher

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 July 2006

10873 of 2004 Huntington & MacGillivray v Hurstville City Council and Ors [No 4]

JUDGMENT

1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to DA 20030567 for the demolition of the existing buildings and the erection of a mixed residential/commercial development at No. 35-41A Penshurst Street, Penshurst.

2 The Consent Orders were originally heard on 5 October 2004, but were adjourned because a number of points of law were raised over the use of a right of carriageway over 33A Penshurst Road to gain access to the proposed development. The joint owners of 33A Penshurst Road, Mr and Mrs Kutcher were made parties to the proceedings on 1 October 2004.

3 The points of law were dealt with on two occasions by Pain J (Huntington & MacGillivray v Hurstville City Council and Ors [2004] NSWLEC 694 and Huntington & MacGillivray v Hurstville City Council and Ors [No 2] [2005] NSWLEC 155). Her Honour ultimately found that the merit issues could be considered as a preliminary matter. In the event that the consideration of the merit issues supported the approval of the development application then the matter should be adjourned. In separate proceedings, a judge of the Court could then consider the granting of an easement pursuant to s 40 of the Land and Environment Court Act 1979 (LEC Act). The details of the points of law are set out in some detail in Her Honour’s judgments.

4 Findings on the merits were handed down on 23 June 2005 (Huntington & MacGillivray v Hurstville City Council and Ors [No 3] [2005] NSWLEC 219)

where it was found that "there are no planning reasons why the development should not proceed".

5 Orders, pursuant to s 40 of the LEC Act, granting an easement for a right of carriageway over 33A Penshurst Road were made on 20 April 2006 (George Antipas v David & Rosaline Kutcher [2006] NSWLEC 42).

6 On 21 July 2006 and following the findings on the merits and the granting of an easement for right of carriageway over 33A Penshurst Road, the parties approached the Court for final orders for the demolition of the existing buildings and the erection of the mixed residential/commercial development.

7 The council filed draft conditions, which were acceptable to the applicant however Mr Kutcher raised concern over a number of the conditions and suggested amendments to these conditions. The concerns raised by Mr Kutcher in relation to part condition 3, condition 5 and condition 16 were accepted by the applicant and the conditions amended to reflect Mr Kutcher’s suggested amendments.

8 The conditions in dispute are:

• Part condition 3 and condition 27A - Mr Kutcher’s suggested amendments require the removal of the carport within the proposed right of carriage way and the use of this area prior to the occupation of the proposed building. I agree with the applicant’s submission that the occupation of the building is the appropriate trigger for use of the right of carriage way.
• Part condition 3 - Mr Kutcher’s suggested amendments require the applicant to maintain and also not hinder access on the right of carriage way. I accept the applicant’s submission that these matters are appropriately addressed in the general terms of the right of carriageway.
• Condition 4 - Mr Kutcher’s suggested amendments require the construction of speed humps. As this was not a matter raised by either traffic expert in the earlier merit proceedings the construction cannot be supported.
• Condition 13f(iii) - Mr Kutcher’s suggested amendments require 14 days notice prior to any excavation whereas the condition requires 5 days notice. I find 7 days notice is a reasonable time for notice to be provided.
• Condition 14 - this condition requires compliance with the Building Code of Australia. The condition contains a note stating that the basement does not appear to comply and design amendments will therefore be required. Mr Kutcher raised concern that any changes may impact on his property. As this was not a specific issue raised by council and was seen as appropriately addressed through condition 14, it is likely that any internal changes are minor. In the event that there are changes that potentially impact on Mr Kutcher’s property then he should be advised.
• Condition 15 - Mr Kutcher’s suggested amendments require the dilapidation report required by this condition to be undertaken by his engineer and paid for by the applicant. I accept that the condition is appropriate if amended by adding the words "by an appropriately qualified structural engineer" after the words "dilapidation survey".
• Condition 17(v) - Mr Kutcher’s suggested amendments require that he be provided with a copy of the structural report setting out the method of support adjacent to any adjoining properties. I do not accept this is necessary as a copy of this report should be retained by the council and will be available for inspection.
  

9 Directions were given that the conditions were to be amended by the council to reflect the findings in this judgement and served on both other parties by 4.00 p.m. on 25 July 2006. Any disagreement on the amended conditions are to the filed by 4.00 p.m. on 27 July 2006 with reasons for the disagreement following which final orders will be made in Chambers.

10 As no further documentation has been filed after 4.00 p.m. on 27 July 2006, the orders of the Court are:

1) The appeal is upheld.
2) DA 20030567 for the demolition of the existing buildings and the erection of a mixed residential/commercial development at No. 35-41A Penshurst Street, Penshurst is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits A and 10.
___________
G T Brown
Commissioner of the Court