Marshall Scott v Cessnock City Council

[2006] NSWLEC 614

Land and Environment Court

of New South Wales

CITATION:

Marshall Scott v Cessnock City Council [2006] NSWLEC 614

PARTIES:

APPLICANT
Marshall Scott Pty Limited

RESPONDENT
Cessnock City Council

FILE NUMBER(S):

10455 of 2006

CORAM:

Brown C

KEY ISSUES:

Development Application :- consent orders - subdivision of property into 2 lots

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989

DATES OF HEARING:

06/09/2006

EX TEMPORE JUDGMENT DATE:

09/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Williams, solicitor
SOLICITORS
Thompson Norrie

RESPONDENT
Mr R. Mallik
SOLICITORS
Mallik Rees Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 September 2006

10455 of 2006 Marshall Scott Pty Limited v Cessnock City Council

JUDGMENT

1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to Development Application 8/2004/10651/1 for the subdivision of the property at 6 Lake Road, Kearsley, into two lots.

2 The site consists of a single allotment that is described as Lot 20, Section 4 in DP 758555. The allotment is rectangular in shape with a width of 50.3 m and a depth of 20.1 m giving a total area of 1009 sq m. A single storey freestanding dwelling, including attached garage, occupies the site. The dwelling is constructed of brick with a tiled roof.

3 The site abuts residential properties to the northwest, undeveloped Crown residential land to the south and vacant Crown rural land to the southeast. Topographically, the site has a regular slope from north to south. The housing in the locality is of mixed ages but predominantly single storey detached houses.

4 The proposal provides for the subject site to be divided into two lots being lots 200 and 201. Lot 200 will have a frontage to Lake Road of 27.5 m and an area of 552 sq m and Lot 201 will have a frontage to Lake Road of 19.8 m and an area of 457 sq m. The existing dwelling will be located on proposed Lot 200.

5 The site is zoned 2(b) - Village Zone under Cessnock Local Environmental Plan 1989. Subdivision is permissible with consent. The surrounding land is similarly zoned except for the area of land that is to the southeast and east of the site, which is zoned 1(a) Rural under LEP 1989.

6 Development Control Plan No 35 - Subdivision Guidelines (DCP 35) also applies. The proposed development satisfies the minimum area requirements in DCP 35.

7 In accordance with the Court’s Practice Direction for Consent Orders, objectors to a proposed development may seek to be heard in relation to the Court’s consideration of the Consent Orders. In this regard, Mr Ron Watkins of 4 Lake Road and Mr and Mrs Ritchie of 1 Lake Road were heard on site. Their concerns related to:

• the potential future subdivision of land surrounding the site that may be brought on by the subdivision of the site;
• sewerage disposal;
• the impact on the character of the area and
• the potential traffic problems associated with access from the property.

8 On the potential subdivision of land surrounding the site, the Court’s attention was drawn to the area behind the site that consists of undeveloped land, although subject to a paper subdivision. I accept the council’s submission that they have no knowledge of any future development of this land.

9 The question of sewerage disposal from the site is addressed by pumping sewerage to a reticulated sewerage system under the control of the Hunter Water Corporation. I accept this has been adequately addressed through the conditions.

10 Mr Watkins and Mr and Mrs Ritchie raised the question of character as a significant issue. In addressing this concern, the Court should give consideration to the council’s planning controls that dictate the character envisaged within the particular zone. I note that the proposed development satisfies the of 450 sq m minimum lot requirements for the 2(b) zone. For this reason, I accept that the proposed development could not be seen to be out of character with that envisaged by the particular zoning.

11 I also note that the proposal seeks only the subdivision of the land and, to a large extent, any potential impact on the character will be determined by the future dwelling that is erected on the proposed new lot.

12 On the question of traffic, I note that the RTA and the council’s traffic engineer found that the potential impact on Lake Road is acceptable having considered considering traffic speeds, sight distances and road widths. I accept that the potential traffic implications have been satisfactorily addressed.

13 The orders of the Court are:

(1) The appeal is upheld.
(2) The application for development consent 8/2004/1065/1 as shown in plan of subdivision reference 17162PROP dated 11/04/2003 and drawn by Marshall Scott Surveying and Land Development Consultants for 6 Lake Road, Kearsley is approved subject to the conditions in Annexure A.

(3) The exhibits are returned with the exception of exhibit A.

___________________

G T Brown
Commissioner of the Court