Imrie J v Pristine Waters Council (now Coffs Harbour City Council)

[2004] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION:	Imrie J v Pristine Waters Council (now Coffs Harbour City Council) [2004] NSWLEC 139
PARTIES:	APPLICANT Imrie J RESPONDENT Pristine Waters Council (now Coffs Harbour City Council)
FILE NUMBER(S):	10110 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- Erection of a 2-car garage should a second access be allowed streetscape garage in front setback
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ulmarra Shire Local Environmental Plan 1992 Governor of New South Wales Proclamation of 25th February 2004
CASES CITED:
DATES OF HEARING:	25/03/2004
EX TEMPORE JUDGMENT DATE :	04/15/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Imrie, agent RESPONDENT Mr M Hannon, town planner

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10110 of 2004 Hoffman C 25 March 2004

Imrie J
Applicant

v Pristine Waters Council
Respondent Judgment

Introduction

1. This is a class 1 and 2 Appeal No. 10110 of 2004, between John Imrie and Pristine Waters Council in regard to the deemed refusal of a development consent and construction certificate for a 2-car garage at No. 78 Flaherty Street, Red Rock.

2. Pristine Waters Council was recently absorbed by Clarence Valley Council and then by proclamation of 25 February 2004, Coffs Harbour Council was made the consent authority for the Red Rock area.

3. The matter was dealt with by an on-site hearing on 25 March 2004. Attending on-site were:

§ Mr Mark Hannon, project manager development, Coffs Harbour Council,
§ Mr Gregg Spies, manager, assessment and regulatory services, (Pristine Waters Council) Clarence Valley Council,
§ Mr Malcolm Imrie, agent for John Imrie and
§ Mr John Imrie, applicant/owner.

4. During the hearing the parties reached consent orders on an amended plan for the garage setting it 2 m off the front boundary, excavating it into the slope of the site down from the road and using the existing driveway for access instead of creating a new second footpath crossing.

5. The parties also agreed that upon issue of the development consent, the Council would issue the Construction Certificate provided a satisfactory draft certificate was sighted by the applicant before the issue of the Court’s determination.

6. A draft Construction Certificate dated 2 April 2004 was received at Court on 13 April 2004 with a letter of its acceptance by the Applicant dated 30 March 2004.

7. The Court has considered the relevant matters put forward by both parties and has agreed to the Consent Orders.

Orders by consent of the parties

1. The appeal is upheld.

2. Development consent is issued for the erection of a 2-car garage with 150 pitch gable roof with the gable and garage doors facing east to give access via the existing driveway from the street. The garage and access pavement to be in accordance with the plan and specification and elevation and site plan as annotated and stamped with the Court’s seal and attached to this consent, all as further amended by the conditions in Annexure “A” hereto.

3. The exhibits are retained by the Court.

___________
K G Hoffman
Commissioner of the Court
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Annexure “A”

Conditions of Development

IMRIE J . v . PRISTINE WATERS COUNCIL

Development Consent is issued for the construction of a two-car garage with a 150 pitch gable roof with the gable and garage doors facing east to give access via the existing driveway from the street. The garage and access pavement to be in accordance with the plan and specification and elevations and site plan as annotated and stamped with the Court’s seal and attached to this consent, all as amended by the following conditions.


Construction Certificate:

1. No building work is to occur unless a relevant Construction Certificate has been issued.

Construction:

2. Building works are to be carried out in accordance with the provisions of the Building Code of Australia.

3. Roof water to be connected to a rainwater tank.

Use:

4. The building is not to be used for human habitation, industrial or commercial purposes
5. The building not being occupied until the approval of the Principal Certifying Authority has been obtained beforehand.

Setout:

6. The garage is to be setback 2 m from the front boundary of the allotment.

External Finishes:

7. The wall and roof of the garage being ‘mist green’ in colour, the barge being ‘caufield green’ in colour.

Landscape:

8. The area between the garage and the street boundary being planted with a minimum of 2 native shrub species with a minimum growth height of 2-3 m.

9. No trees being removed from the property as part of the construction works, with existing vegetation being protected during construction.

Internal Driveway:

10. The new internal driveway being constructed of porous pavement, comprising of terracotta paving bricks or the like.

Septic Tank:

11. The building works not interfering with the existing on site sewerage management system.

During Construction

12. Two days prior to commencing work, Form 7 under Environmental Planning and Assessment Act Regulations, Notice of Commencement of Building or Subdivision work and Appointment of Principal Certifying Authority is submitted to Council.

13. Before commencement of any work, a sign is to be erected at the front of the boundary of the land clearly identifying the lot number and names of the owner, the builder and licence number and emergency telephone contact numbers.

14. That any conduit through footings be installed to the requirement of Country Energy. Reinforcing mesh in concrete slabs to be earthed to Country Energy requirements.

15. Any damage to Council’s footpath or road caused during construction be restored in accordance with Council’s specifications.

16. That no materials or machinery used in the construction of the building be stored or stacked on Council’s footpath, nature strip or roadway.

17. That there be no burning of waste material, felled trees or other material on site.

18. All vehicle access to the development during construction and there after is via the existing driveway.

19. All excavated and filled areas are battered to a slope of no greater than 450 to the horizontal, or alternatively, retained by a retaining wall.

______________________
K G Hoffman
Commissioner of the Court
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