Marcolongo v Pittwater Council

[2005] NSWLEC 660

Land and Environment Court

of New South Wales

CITATION:

Marcolongo v Pittwater Council [2005] NSWLEC 660

PARTIES:

APPLICANT
Claudio Paul Marcolongo

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10299 of 2005

CORAM:

Hussey C

KEY ISSUES:

Subdivision :- Consent Orders - public interest - access - geotechnical - ecology

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

07/11/2005

EX TEMPORE JUDGMENT DATE:

11/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms Duggan, barrister
Instructed by: Mr G Hartley
Of: Staunton Beattie

RESPONDENT
Mr I Hemmings, barrister
Instructed by: Ms M Astrloue,
Of: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 November 2005

10299 of 2005 Claudio Paul Marcolongo v
Pittwater Council


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



JUDGMENT

Background

1 This appeal concerns a subdivision application to create an additional 2 residential lots from an already approved 2 lot subdivision, i.e. a total of 4 new lots to be created. The subject site is at No. 178-180 Prince Alfred Parade, Newport, and the existing property comprises some 8,840 sq m, and is relatively steep and contains a number of rock shelves together with mature vegetation.

2 The access to the property is via a private right-of-way, which connects to Prince Alfred Parade and transverses through to Hudson Parade. There are a number of properties that have the benefit of this right-of-way for their access. The site has been subject to a previous appeal where the environmental density was assessed and the 2 lot subdivision conditionally approved by the Court.

3 The current lots Lot 2 and 3, DP 1062541 have areas consisting of 4,317 sq m and 4,526 sq m respectively. The lot sizes proposed as part of the subdivision of these Lots 2 and 3 are as follows:

Proposed Lot 21 - 2,248 sq m,
Proposed Lot 22 - 2,069 sq m
Proposed Lot 23 - 2,154 sq m
Proposed Lot 24 - 2,372 sq m

4 Upon each of the proposed lots the applicant has nominated building footprints that will restrict the future use of the allotments (if approved) with respect to built upon area for the purposes of constructing a residential dwelling. The areas of these building footprints are as follows:

Proposed Lot 21 - 249.0 sq m,

Proposed Lot 22 - 250.3 sq m
Proposed Lot 23 - 271.3 sq m
Proposed Lot 24 – 255.5 sq m

5 More details of the proposal together with the planning controls are contained in the Statement of Basic Facts, on which I rely.

6 In terms of the assessment procedure, insofar as the 4 lot subdivision was initially refused by council, on a s 82A review it was then approved. This included a number of conditions with a deferred commencement condition requiring further detailing of the extent of works and the submission of an Environmental Sustainability Plan, (“ESP”) showing bush management works on the site to be undertaken.

7 Subsequently, the appeal was made in relation to some of the conditions of consent. However, further conferencing between the parties has resulted in consent orders being presented.

8 Notwithstanding this, the hearing commenced on-site where a number of objectors were given the opportunity to express their concerns about the development.

9 Firstly, Mr Boffa is one of the property owners who uses the accessway and his concern is that the additional traffic will “overload” the accessway and cause unsafe traffic conditions because of its general use by the general public.

10 However, council’s consulting planner, Mr Haynes, responded that this accessway is on private property and is considered to have sufficient environmental capacity to carry the incremental change in traffic for the 2 additional dwellings.

11 Mr and Mrs Hall reside at No. 41 Mirrabooka Road, which is at the rear of the subject property. They are concerned about any excavation work, which could destabilise their property and they would like some form of indemnity against structural damage. However, I note in Exhibit 5 that as part of the previous subdivision approval there has been extensive geotechnical investigation and works undertaken and that work has been certified as satisfactory by GHD Longmac. That should reasonably address their concerns.

12 Dr Holcombe from No. 174 Prince Alfred Parade expressed a number of concerns because she lives on the neighbouring property. In addition to concerns identified by the other neighbours, her prime concern is the overdevelopment of the site and adverse impact on the ecology of the area; unsatisfactory access arrangements and geotechnical impacts.

13 It is apparent from the documents presented that detailed considerations have been given to this matter resulting in the subdivision approval by the council and then review of the conditions, which have been agreed by the parties.

14 With respect to the accessway, amenity and safety objections, these matters have been assessed previously on the basis that it is private property and its control is in the hands of the various property owners and right of carriageway beneficiaries. However, Mr Haynes council’s town planner confirms that the alignment of this accessway is satisfactory for this proposed development. Whilst I accept that the access way is of a lower standard than a public road, nevertheless its use can be controlled by the property owners. And based on Mr Holcombe’s opinion, I do not consider there is any other substantive evidence presented, which would reasonably overturn council’s decision.

15 With regard to the geotechnical concerns, Exhibit 5 indicates that stabilisation work has been undertaken on the subject land and certified as suitable by the geotechnical consultants GHD Longmac. I rely on this evidence that the initial structural/geotechnical issues have been addressed, and covered by way of the conditions of consent for this subdivision. However, further geotechnical investigation and design will be required for any new dwelling construction on the new lots, when the detailed designs are proposed. I consider this approach reasonable.

16 In addition to these concerns, Dr Holcombe is dissatisfied with the proposal because of its impact on the ecology of the area. However, after hearing her concerns, I am satisfied her expectations for a much lower level of development of this property are unrealistic in terms of the planning controls for this site, which allow the land to be subdivided subject to satisfactory environmental impacts. The planning controls do not provide for the land to be necessarily conserved or contained in larger lots as preferred by Dr Holcombe.

17 The LEP allows subdivision into lots of the proposed order, and the associated assessments indicate that the environment constraints have been fully assessed, so that conditional consent is resonable.

18 There was no detailed technical evidence presented by Dr Holcombe, which in my opinion would result in rejection of these consent orders.

19 I note that the agreed conditions require, by way of a deferred commencement, preparation of an ecological sustainability plan. I anticipate this will require careful removal of the vegetation in the building footprint areas together with clearing and maintaining the environmental protection zone on the higher land at the rear of these properties. It also includes external environmental improvement works on councils reserve. I accept that this represents a reasonable balance between development of this subject area and environmental enhancement of the area.

20 I also note that the drainage issue has been discussed today and clarified. This requires that the drainage of these steeply sloping blocks is to be implemented as part of the subdivision approval and that this work is to be completed before the subdivision certificate is issued. Then if there are other stormwater arrangements for the individual houses, this can transitioned into the overall system, which is disposed of via the easement then is designated Q and G on the development application plan.

21 For these reasons then, I am satisfied that there has been a detailed assessment of the merits of the proposal and the environmental impacts are acceptable based on the information put before the Court. I have had the opportunity to further consider the objections raised by the neighbours but I accept that on the technical evidence presented they are not sufficient to warrant rejection of the application.

22 Therefore I consider the consent orders should be granted as follows:

1. The appeal be upheld.
2 The development application number 692/04 dated 16 September 2004 for the subdivision of two lots into four lots and construction of associated driveways of the land known as 178-180 Prince Alfred Parade Newport being the land comprised in Lots 2 and 3 in deposited plan 1062541 be approved subject to attached conditions marked annexure A.
3 Each party bear its own costs.
4 The exhibits be returned except Exhibits 1, 3, 4, 5, A, B and C.
___________________
R Hussey
Commissioner of the Court
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