Monaghan v Holroyd City Council - [2008] NSWLEC 1300

Land and Environment Court

of New South Wales

CITATION: Monaghan v Holroyd City Council [2008] NSWLEC 1300

PARTIES:
APPLICANT
Peter Francis Monaghan
RESPONDENT
Holroyd City Council

FILE NUMBER(S): 10574 of 2008 and 10575 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Consent - Section 96 Application :- Orders under s 121(B), changes to landscaping and paving in the front setbacks, stormwater drainage, side yard paving, new retaining wall and lack of landscaped area and private open space as required by the 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:
24 July 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

24 July 2008

10574 of 2008 Peter Francis Monaghan v Holroyd City
10575 of 2008 Council
JUDGMENT

1 This is four Class 1 Appeals in regard to s 96 amendments and appeals against orders under s 121(B) of the Environmental Planning and Assessment Act 1979 in regard to two properties at 192 and 194 Girraween Avenue, Greystanes.

2 Appeals 10574 and 10575 of 2008 are 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.

3 Appeals 11315 and 11316 of 2007 are in regard to orders issued by the Council in respect of each property the orders being the same namely:

“To comply with development consent and remove all fill retaining and concrete works which are not in accordance with the approved plans. 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”.

4 Appeal 11315 of 2007 relates to No. 194 Girraween Road and development consent 2005/562. Appeal 11316 of 2007 relates to No. 192 Girraween Road and development consent 2005/561. The orders under s 121(B) were issued on the 30th November 2007.

5 Arising out of those orders the applicant filed the s 96 amendment applications which had been subsequently refused. Appeal 10574 of 2008 relates to No. 194 Girraween Road and Appeal 10575 of 2008 relates to 192 Girraween Road.

6 I might note that in this case the council is the principle certifying authority for both developments. Therefore the council is in the interesting position of being unable to issue an occupation certificate to the dwellings, although they are currently occupied, because of the constructions not in accordance with the development consents. At the same time the council is having to act as the Local Government Authority and prosecute the applicant for those non compliances. In addition council has the role of considering the s 96 applications which seek to overcome the…

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 1300
Case: [2008] NSWLEC 1300
Decision Date: 24 July 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard four appeals brought by Peter Francis Monaghan against Holroyd City Council concerning changes to landscaping and paving within the front setbacks of two properties at 192 and 194 Girraween Avenue, Greystanes. The appeals pertained to the council's refusal of two section 96 applications and orders issued under section 121(B) of the Environmental Planning and Assessment Act 1979. The central legal issues revolved around compliance with the development controls, specifically the requirements for landscaping, stormwater drainage, and vehicle access. The court had to determine whether the proposed changes adhered to the approved plans and the Development Control Plan.

The court found that the applicant's proposals did not comply with the approved development consents and the Development Control Plan. The council argued that the proposed changes would result in an unsatisfactory streetscape, excessive paved areas, and impractical vehicle access. The applicant's plans for planter boxes and masonry walls atop existing concrete did not sufficiently address the landscaped area requirements. Moreover, the proposed vehicle access arrangements were deemed difficult and unsafe. The court also noted concerns about stormwater drainage and the lack of a proper connection to the street. The applicant's evidence and plans were considered insufficient to demonstrate compliance with the development consents.

Consequently, the court dismissed the section 96 applications, concluding that the proposals did not meet the requirements of the applicable planning instruments. The court deferred decisions on the appeals against the orders under section 121(B) to allow the parties to negotiate amended conditions. The court ordered that the parties must either agree on wording for amended conditions or submit written submissions within 30 days for the court's consideration. This decision ensures that any future works will comply with the planning controls and the character of the residential locality.

Orders