Monaghan v Holroyd City Council - [2008] NSWLEC 1353

Land and Environment Court

of New South Wales

CITATION: Monaghan v Holroyd City Council [2008] NSWLEC 1353

PARTIES:
APPLICANT
Peter Francis Monaghan
RESPONDENT
Holroyd City Council

FILE NUMBER(S): 11315 of 2007 and 11316 of 2007

CORAM: Hoffman C

KEY ISSUES: Appeal :- non-compliance with Conditions of Consent, Orders under s121(B), streetscape, landscaped area, driveway access, private open space, non-compliance with development controls.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan 1991
Holroyd Development Control Plan 2007

DATES OF HEARING: 17/07/2008

DATE OF JUDGMENT:
29 August 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Turnbull, solicitor
of Mark Turnbull & Co.
RESPONDENT
Mr G. McKee, solicitor
of McKees Legal Solutions.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 August 2008

11315 of 2007 Peter Francis Monaghan v Holroyd City
11316 of 2007 Council
JUDGMENT

1 These appeals were heard in conjunction with Appeals 10574 and 10575 of 2008 between Peter Francis Monaghan v Holroyd City Council in regard to two properties at No. 192 and 194 Girraween Avenue, Greystanes.

2 Appeals 10574 and 10575 were in regard to refusal by council of two s 96 applications in respect of the above properties for changes to landscaping and paving within the front setbacks. The subject appeals in this judgment Nos. 11315 and 11316 of 2007 are in regard to orders issued by the council in respect to each property. The orders are the same in each case mainly:

In this regard the approved plans show only a double width concrete driveway from the front boundary widening to a double garage and a new dwelling. No additional filling retaining and concrete works are shown to the front or side access areas.”

3 Appeal 11315 relates to No. 194 Girraween Road and development consent 2005/562. Appeal 11316 relates to No. 192 Girraween Road and development consent 2005/561. The orders under s 121(B) were issued on the 30 November 2007. Arising out of those orders the applicant filed the s 96 amendment applications which had been subsequently refused.

4 In my judgment on 24 July 2008, the appeals against those refusals were dismissed and the parties were directed to consider orders that might be issued in regard to Appeals 11315 and 11316 within 30 days from 24 July 2008 and that any submissions in regard to the subject appeals and orders could be made in writing within the same 30 days.

5 Since that time the Court has received filed on 25 August 2008, draft orders in both matters from the respondent together with submissions in support of those orders. Nothing was received from the Applicant until 28 August 2008. The Council has not sought full compliance with the original consent but rather put into effect a reasonable compromise solution which achieves a good environmental outcome and substantial compliance with the Council Controls.

6 Attached to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monaghan v Holroyd City Council

Details

AGLC: Monaghan v Holroyd City Council [2008] NSWLEC 1353
Case: [2008] NSWLEC 1353
Decision Date: 29 August 2008

CaseChat Overview and Summary

This case involves an appeal by Peter Francis Monaghan against orders issued by the Holroyd City Council in relation to two properties at No. 192 and 194 Girraween Avenue, Greystanes. The central issue in the case was whether the orders issued by the council were appropriate given the non-compliance with conditions of consent, streetscape, landscaped area, driveway access, private open space, and non-compliance with development controls. The Land and Environment Court of New South Wales was tasked with determining the validity of these orders and making a final decision on the matter.

The court found that the orders issued by the council were, in the main, appropriate, but required some minor adjustments to address the applicant's concerns. The court accepted the council's compromise solution, which achieved a good environmental outcome and substantial compliance with the council controls. The court made amendments to the orders based on submissions from both parties and adjusted the time frames for compliance to reflect the hand-down of the judgment.

Ultimately, the court adopted the council's orders as the orders of the court with the agreed upon amendments. These included removing excess concrete to create landscaped areas, providing amended landscape plans, and complying with specific conditions of the development consent, such as planting trees and constructing vehicular crossings. The court also directed the applicant to carry out certain remedial actions and works within specified time frames, such as removing redundant vehicular crossings, arranging for the relocation of a power pole, and lodging a Traffic Management Plan with the council.

Orders