Isler v Gosford City Council

[2005] NSWLEC 561

Land and Environment Court

of New South Wales

CITATION:

Isler v Gosford City Council [2005] NSWLEC 561

PARTIES:

APPLICANT
Mustafa Isler & Elmas Isler

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10703 of 2005

CORAM:

Brown C

KEY ISSUES:

Appeal :- Modification of development consent - consent orders - right-of -carriageway - public access

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

05/10/05

EX TEMPORE JUDGMENT DATE:

10/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hancock, agent

RESPONDENT
Mr P Donnellan, solicitor
SOLICITORS
P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 October 2005

10703 of 2005 Mustafa Isler & Elmas Isler v Gosford City Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify Development Application No. 1594/98 granted by Gosford City Council on 13 September 1999 for the erection of a residential flat building comprising three dwellings at 33 Wilson Rd. Terrigal.

2 The conditions in dispute are:

Condition 20: Side and rear boundary fences being provided. The rear boundary fencing not to extend over any part of the right-of-way.

Condition 28: Access along the existing right-of-way on the northern boundary of the property is not to be restricted in any way by the erection of any fences or gates.

3 The applicant proposed the deletion of condition 28 and the amendment of condition 20 to read:

Condition 20: Side and rear boundary fencing to be provided. Permanent access to and from Lot 12 DP 541502, No. 15 Miller Rd is to be provided in the form of a gate in the existing right-of-way.

4 The central issue between the parties related to the continued use of the right-of-way along the northern boundary of the subject site and the beneficiaries of the right-of-way. The applicant maintained that the only beneficiaries were the owners of No. 15 Miller Rd whereas the council maintained that additional residents in the Miller Rd area were entitled to use the right-of-way. The matter came to the attention of the council when the applicant installed a gate and lock across the right-of-way thereby denying access to anyone but No. 15 Miller Rd.

5 The matter was conducted as an On-Site Hearing and the parties agreed to the appointment of Mr Doug Sneddon as the Court appointed town planning expert. He prepared a report that proposed the deletion of condition 28 and the replacement of condition 20 with the following:

Condition 20: Side and rear boundary fencing to be provided. Permanent pedestrian access through the rear boundary fence and along the right-of-way burdening Lot 12 DP 541502, No. 33 Wilson Rd, is to be provided in the form of an unlocked, self closing gate. Signage is to be posted indicating that the path is not a public pathway and is for authorised use only.

6 Prior to the hearing, the council advised the Court that it was willing to enter into Consent Orders based on the suggested condition of Mr Sneddon. Following further discussions at the hearing the applicant also agreed to the condition proposed by Mr Sneddon. In accordance with the Court’s Practice Direction, objectors to the application were invited to comment however there was agreement on the condition proposed by Mr Sneddon, subject to a minor change to the wording that was not opposed by either party.

7 As the proceedings were not to determine who is entitled to use the right-of-way, I agree that the condition proposed by Mr Sneddon is a suitable compromise in the circumstances.

8 The Orders of the Court, by consent, are:

1) The appeal is upheld.
2) Condition 28 of Development Application No. 1594/98 is deleted.
3) Condition 20 of Development Application No. 1594/98 is deleted and replaced with following condition:
Condition 20: Side and rear boundary fencing to be provided. Permanent pedestrian access through the rear boundary fence and along the right-of-way burdening Lot 12 DP 541502, No. 33 Wilson Rd, is to be provided in the form of an unlockable, self closing gate. Signage is to be posted indicating that the path is not a public pathway and is authorised for use only.
_____________
G T Brown
Commissioner of the Court