Misko v Hornsby Shire Council

[2006] NSWLEC 253

Land and Environment Court

of New South Wales

CITATION:

Misko v Hornsby Shire Council [2006] NSWLEC 253

PARTIES:

APPLICANT
Emil Misko

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10914 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Multi unit housing
Consent orders
Non compliance with the minimum site width requirement

LEGISLATION CITED:

Medium density multi unit development control plan

DATES OF HEARING:

23 March 2006

EX TEMPORE JUDGMENT DATE:

03/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
of McKees Legal Solutions

RESPONDENT
Mr A simpson, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

23 March 2006

10914 of 2005 Emil Misko v Hornsby Shire Council

JUDGMENT

1 This is an appeal against Hornsby Shire Council’s (the council) refusal of a development application and for a multi-unit housing development comprising two dwellings at 25 Forbes Street, Hornsby (the site). The issues between the parties have been resolved and they are seeking consent orders from the Court.

2 A description of the site, its context, the history of the application and the planning controls are in the statement of basic facts.

3 The Court visited the site and heard from the adjoining neighbours, Mr Dale of 27 Forbes Street and Mr Basha of 23 Forbes Street, as well as from his solicitor, Mr Thompson. The Court heard expert evidence from Mr Neil Kennan, the Court appointed town planner.

4 The key issue is the proposal’s non compliance with the minimum site width requirement of 30 m in the Medium Density Multi Unit Housing Development Control Plan (the DCP).

5 The objective of the control in the DCP is:

To promote quality design that contributes to the character of the surrounding area.

6 The prescriptive measure states that the minimum development site, should be 30 m, measured at all points within the property to enable an efficient centrally located driveway system and improved open design.

7 As part of his assessment, Mr Kennan researched the purpose of the 30 m control and concluded that its purpose is to enable a centrally located driveway to service medium density development thus avoiding numerous gun barrel style driveways which might otherwise eventuate and to enable better urban design for medium density development than would necessarily occur if narrow allotments were developed with a driveway located along one side of those allotments.

8 Mr Kennan noted that attempts had been made by the applicant to amalgamate the site with the adjoining allotment at No. 23 but had been unsuccessful. The applicant has agreed to a right of carriageway in favour of No. 23 that would enable shared access to this property if it were to be developed in the future. Subject to such a condition Mr Kennan concluded that the vehicular access way as now proposed with a suitable right of carriageway in favour of No. 23 Forbes Street would be a satisfactory solution to the issue of the 30 m minimum lot frontage.

9 I am of the view that if the owner of No. 23 Forbes Street, at a later time wished to redevelop that land, then a suitable design could be provided which would integrate with the now proposed development such that the objectives of the 30 m minimum width control could be achieved.

10 Mr Basha raised no objections to the proposed development provided that the right of carriageway and the driveway levels did not place any unreasonable restrictions on the development of his site. Mr Kennan reviewed the levels on site and he concluded that the proposed levels could integrate with any future development of No. 23.

11 The concerns of Mr Dale were addressed by proposed conditions. The only further disagreement was whether the right of way condition should be a deferred commencement condition. On the basis that the right of way is fundamental and a pre condition to the development of the subject site I accept that it should be a deferred commencement condition.

12 I accept that the issues between the parties have been resolved and that the consent orders may be approved.

Orders

13 The orders by consent are:

1. The appeal is upheld.

2. Development application for multi unit housing comprising two dwellings at 25 Forbes Street, Hornsby, is approved subject to the conditions in Annexure A.

3. The exhibits, except exhibits A, 1, 2 and 4 may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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