Max J Garey v Great Lakes Council

[2007] NSWLEC 874

Land and Environment Court

of New South Wales

CITATION:

Max J Garey & Anor v Great Lakes Council [2007] NSWLEC 874

PARTIES:

APPLICANTS
Max Garey
Kathleen Garey

RESPONDENT
Great Lakes Council

FILE NUMBER(S):

10964 of 2007

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Modification Application for amendment to a condition of consent to delete reference to a s.88B instrument.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

MacDonald v Mosman Council [1999] NSWLEC 215

DATES OF HEARING:

02/11/2007

EX TEMPORE JUDGMENT DATE:

2 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms J. Reid, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr B. Mallik, solicitor
of Mallik Rees Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

2 November 2007

10964 of 2007 Max J Garey & Anor V Great Lakes Council

JUDGMENT

1 This extempore judgment is for an appeal under s 96(6) of the Environmental Planning and Assessment Act against the Council’s refusal for an amendment to conditions of consent. The parties have come here today with consent orders. That is the respondent has agreed to vary condition 1A that is in dispute. The amendment deletes the requirement to place a restriction on title (s 88 instrument).

2 The approved development application is a three storey building containing garages at the lower level and at the rear of the garages a gym, a snooker/pool area directly linked to unit 1 above. There is lift access from garage 2 to dwelling 2, the third level of the building. There is no lift access for dwelling 1. The Council approved the development application 25 February 2003. Since that time there have been other s 96 approvals granted by the Council.

3 The parties have informed the Court that the condition referring to an 88 instrument whereby the subject premises could only be used for two residential dwellings rather than the occupation of three was due to at the time unauthorised works and the installation of kitchen and other facilities that for all intents and purposes made the lower floor level capable of separate occupation. The applicant has deleted such facilities and the parties agree that it is not appropriate in terms of the authorities in this court of MacDonald v Mosman Council a judgment of His Honour Lloyd J in 1999 NSWLEC 215 for the reason that it does not serve a proper planning purpose to impose the 88 instrument.

4 The Council has agreed that an instrument is not necessary but instead the parties agree to an amended condition to be imposed known as 1A. That is, that the lower floor level of the building that is part of unit 1 shown on the approved plans Exhibit A is not to be used or let in separate occupation and that this area is only to be used in conjunction with dwelling unit 1. At no time can the lower floor level be equipped with any kitchen or laundry facilities to facilitate separate occupation.

5 The building is to only contain two residential units, two separate occupations. The amendment would in fact bring it in line with what was the original approval granted by the Council for the residential flat building and with the benefit of condition 1A Council are satisfied it provides them with the comfort that there would not be separate occupation of the lower floor level and is satisfied that this is an appropriate condition to impose on the subject development without the need for an 88 instrument. The Council considered that the amendment is minor and as such is considered under s 96(1)(a) of the Environmental Planning and Assessment Act

6 I am satisfied that the parties have persuaded me that consent orders should not be objected to by the Court and as such the appeal is upheld by consent.

7 On the question of substantially the same development in terms of s 96, clearly if the matter is considered under 96(1)(a) then it is substantially the same development as that originally consented to by the Council.

8 On the receipt of a consolidated set of conditions, and amended plans for to be kept on the Court file, the Court will then issue the formal orders by way of consent. That is this s 96 application appeal be upheld and that the conditions amended to incorporate the new condition referred to in the consent orders at Exhibit 1.

9 The Court will retain the exhibits for its file.

___________________

J S Murrell
Commissioner of the Court
CC