Lloyd v Gosford C

[2005] NSWLEC 580

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Lloyd v Gosford C [2005]  NSWLEC 580

PARTIES:
APPLICANT
David Lloyd

RESPONDENT
Gosford City Council

CASE NUMBER:      10229 of        2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance

CORAM:        Hussey C

DATES OF HEARING:          10/10/2005

DECISION DATE:     10/10/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr D. Henderson, solicitor
of Tesoriero Henderson Cotter

RESPONDENT
Mr P. Donnellan, solicitor
of P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 October 2005

10229 of 2005     David Lloyd v Gosford City Council

This decision was given as an extempore decision.  It has been revised and edited prior to publication.

JUDGMENT

Background.

1. The appeal was lodged against council’s refusal of a subdivision application to create 3 lots at No. 120 Carrington Road / No. 15 Glenwood Road, Narara.

1. The background details of the site and surrounds are contained in the Statement of Basic Facts on which I rely.  But in summary the lot has an area of 3736 sq m and it is zoned partly Residential 2(a) and partly Residential 7(a) Conservation and Scenic Protection. The subdivision is permissible with consent.

1. The site has two road frontages with the primary access being from Glenwood Road and the secondary access, which I understand is discouraged, from Carrington Road because it is predominantly unformed.

1. According to the Statement of Basic facts the proposal involves the creation of the following lots:

   - Lot 20 ; is irregular in shape, has an area of 687 sq m, (620 sq m excluding the Right of Accessway) and is zoned Residential  2(a). This allotment is presently vacant and vehicle access is via a proposed Right of Access over proposed Lot 21 and Lot 22 to Glenwood Road,

   - Lot 21 ; is irregular in shape, has a site area of 568 sq m ( 552 sq m excluding the Right of Access) and is zoned Residential 2(a). This allotment is presently vacant and has frontage to Glenwood Road,

   - Lot 22 ; is irregular in shape, has a site area of 2480 sq m and is zoned part Residential 2(a) and part 7(a) Conservation and Scenic Protection (Conservation).  This allotment contains the existing brick residence and an inground pool.  Vehicular access to this allotment is near a proposed Right of Access to the proposed Lot 21 to Glenwood Road.  This lot also has direct frontage to Carrington Street.

2. The site is within an area generally characterised as residential and the subject site is shown as being prone to bushfire and affected by the lower Narara Creek Tributaries – West of Hanlan Street Floodplain Management Plan.

1. For the appeal, the following three issues were initially identified:

   - unsatisfactory lot layout and shape of parcels;

   - inconsistent with the established subdivision patterns in the area;

   - lack of manoeuvring space for vehicles in the existing residence.

2. To address these issues parties have agreed to the appointment of Mr R. Chambers as the Court – appointed expert in planning and he prepared a detailed report, which concluded that conditional consent should be granted to this development proposal.

1. After further consideration of Mr Chambers conclusions, the council has now agreed to consent orders, that the application should be approved subject to conditions.

Planning controls.

1. The primary controls for subdivision are contained in the relevant provisions of :

   Gosford Planning Scheme Ordinance ( GPSO) ;and

   Gosford Development Control Plan No. 112 – Residential Subdivision (DCP 112).

2. Clause 30 AAA of the G. P. S. O. provides:

   - a minimum lot size of 450 sq m;

   - not more than 10% of the allotments to be created a to have an area less than 550sq m.

The evidence.

1. The main technical evidence has been presented by Mr Chambers. However in addition to this, a number of written and oral objections were made. I have heard the objections from Mrs Harrison and Mr Dahl and their main concerns are about the traffic parking issues and the level of service in the road. However after consideration of these objections, based on the concept of the environmental capacity of the roads, I consider that acceptable levels of service will be maintained, even though the two new lots will generate some additional traffic. I am reassured in this matter by reference to exhibit B, which shows that this matter has been considered and accepted by the council’s traffic planning engineer whose conclusion is:

   Although it is difficult for two vehicles to pass each other when there are parked cars on both sides on an 8 m carriage way, this restriction provides for traffic calming and discourages drivers from speeding in the street.

2. Insofar as the level of road service expected by residents might higher than that what the council provides here, I am reasonably satisfied to rely on Mr Chambers opinion that the incremental traffic change for this development of 1 additional lot will have minimal, if any effect on the traffic in the street.  Therefore I do not consider that the application should be refused on this basis .

1. The other issue then concerns the irregular lot shape inconsistency with the subdivision pattern.  Nevertheless it complies with the minimum area requirements.  In response to this issue, Mr Chambers says that there is still sufficient room on these blocks to erect a suitable dwelling and provide landscaping consistent with the surrounding.

1. From my consideration of the controls and observations on the view, I now accept Mr Chambers conclusion that conditional consent should be granted.  In addition to this, I also note that in the evidence another detailed planning assessment from Mr Kettle (consulting town planner) was lodged on behalf of the applicant.  I have also considered this detailed assessment and note his conclusion that this application merits consent on planning grounds and I accept that conclusion, which is consistent with Mr Chambers evidence.  Accordingly I am satisfied that the relevant issues have been satisfactorily addressed and consent orders should be granted.

2. The Court orders by consent that:

   1.The appeal is allowed.

   2.Consent is granted to DA No. 23715/2004 for the subdivision of Lot 51 DP 859687 into 3 lots subject to the conditions in Annexure A.

   3.No order as to costs.

   ___________________

   R Hussey
   Commissioner of the Court

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