James v Mid-Western Regional Council

[2007] NSWLEC 774

Land and Environment Court

of New South Wales

CITATION:

James & Anor v Mid-Western Regional Council [2007] NSWLEC 774

PARTIES:

APPLICANT
Robert James and Maria James

RESPONDENT
Mid-Western Regional Council

FILE NUMBER(S):

10863 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Consent Orders, motel, restaurant, car parking, landscaping

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

19/11/2007

EX TEMPORE JUDGMENT DATE:

19 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Cork, solicitor
of McPhee Kelshaw

RESPONDENT
Mr P. Clay, solicitor
of McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

19 November 2007

10863 of 2007 Robert James and Maria James v Mid-Western Regional Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 On 21 June 2006, the Mid-Western Regional Council granted conditional Development Consent No. DA28/2006 for a motel at Spring Flat Road, Spring Flat, a short distance to the south-east of Mudgee. The 4.9 hectare site comprises lot 1 in DP1096525.

2 According to the Statement of Environmental Effects, the approved development involves the demolition of an existing dwelling house and the erection of a motel comprising 32 motel units, including a reception and restaurant building and other ancillary facilities. A car parking area is to be provided, together with landscaping around the perimeter of the site and within the curtilage of the proposed buildings.

3 The applicant subsequently lodged development application DA135/2007 for a similar motel, comprising 56 motel units and on 20 December 2006 the council granted conditional development consent. This appeal is against conditions 2, 6 and 43 of that consent.

4 Condition 2 imposes a levy of 1% of the cost of the development for the purpose of traffic management and roadworks, open space, community facilities and plan administration in accordance with the Mid-Western Regional Council’s s 94A Development Contributions Plan. This condition is now no longer opposed by the applicant.

5 Condition 6 requires the provision of a detailed landscaping plan prior to the issue of the construction certificate. This plan is required to incorporate earth-mounding and mass planting, essentially to screen hard surfaces and provide a landscaped setting for the proposed buildings.

6 The applicant has now prepared a landscape plan, Exhibit A, and that plan is now accepted by the council as meeting its requirements for the landscaping of the site. I understand that this plan now provides an appropriate landscaped setting for the development and also provides an appropriate level of screening for the proposed buildings. I have considered this landscape plan in the light of the council’s original concerns and in the light of the Statement of Environmental Effects. I am satisfied that the landscaping as now proposed would be satisfactory.

7 Condition 43 requires a covenant on the title of the land to warn any future owners of the motel in relation to activities associated with the adjacent agricultural land uses. I now understand that the council no longer presses this condition, it being unnecessary and possibly unlawful.

8 I agree with the submissions that the condition is unnecessary, noting that the site is zoned 1(A1)(Intensive Agriculture) under the Mudgee Local Environmental Plan, where a motel is permissible with development consent.

9 The parties have now tendered consent orders in exhibit 1 and I so make those orders, noting that order 3 has the effect of retaining exhibits 1 and A.

___________________

T A Bly
Commissioner of the Court
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