Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004
PARTIES:
Lee Parrott Applicant
Kiama Municipal Council Respondent
FILE NUMBER(S):
11149 of 2003
CORAM:
Roseth SC
KEY ISSUES:
Development Application - Subdivision :- Planning principle: subdivision with building envelope
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
12/02/2004
DATE OF JUDGMENT:
03/11/2004
LEGAL REPRESENTATIVES:
Mr M Mantei Kells Lawyers Mr P Moggach Kearns & Garside
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11149 of 2003
Roseth SC
11 March 2004
Lee Parrott
Applicant
v
Kiama Municipal Council
Respondent
Judgment
Introduction
1 This is an appeal against the refusal by Kiama Municipal Council (the council) of a development application to subdivide lot 72 DP 229951 Headland Drive, Gerroa into two allotments.
The site
2 The site is on the southern side of Headland Drive. It has an area of 1,312m2, an average width of about 16m and a depth about 80m. It shares a rear boundary with two allotments that front Stafford Street. An existing house stands on the site. On either side of the site are several other allotments of similar size with houses near Headland Drive and deep open rear yards. The site is very steep with a fall from front to rear of 20m.
The proposal and its history
3 The applicant proposes to subdivide the allotment into two parcels of 703m2 and 608m2, to construct a detention basin and absorption trenches and an elevated driveway to serve the battleaxe allotment,.
4 The applicant lodged the application in October 2002. Following notification, the council received 16 objections. In October 2003 the council accepted the recommendation of it planning staff to refuse the application. The applicant lodged the appeal in September 2003.
Relevant legislation, planning instruments and policies
5 The Kiama Local Environmental Plan 1996 zones the site 2(a). The LEP permits the subdivision. Development Control Plan 32 – Kiama Subdivision Code (DCP 32) controls subdivision and drainage design. Section 5.4.2.2 requires the provision of interallotment drainage pipelines and easements to all lots which cannot reasonably drain to the street to which the lot fronts. The depth of interallotment drainage system shall be designed to be able to service the whole of the area of the lot.
The issues
6 The council submitted a Statement of Issues under three major headings, namely
· unsatisfactory treatment of stormwater;
· unacceptable impact of the elevated driveway;
· unacceptable impact on Stafford Street properties.
Stormwater
7 The Court heard the evidence of Mr R King, an engineer with the council, and Mr G Reilly, an engineer retained by the applicant. They agreed that the proposed system was adequate to deal with stormwater on the site, as long as there was no malfunction. Mr Reilly thought that the imposition of a positive covenant on the title requiring the owner to maintain the detention tank was a sufficient guarantee against failure. Mr King disagreed.
8 Mr King told the Court that the council…
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.
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AGLC
Parrott v Kiama [2004] NSWLEC 77
Case
[2004] NSWLEC 77
Decision Date
CaseChat Overview and Summary
The Land and Environment Court of New South Wales was asked to review a decision by the Kiama Municipal Council to refuse a development application for the subdivision of a property located at lot 72 DP 229951 Headland Drive, Gerroa. The applicant, Lee Parrott, sought to divide the existing property into two smaller allotments, construct a detention basin, absorption trenches, and an elevated driveway. The council's refusal was based on concerns regarding unsatisfactory treatment of stormwater, the unacceptable impact of the elevated driveway, and potential impacts on neighbouring properties on Stafford Street.
The court had to decide whether the applicant's proposal complied with the requirements of the Kiama Local Environmental Plan 1996 and the Kiama Subdivision Code. In particular, the court examined the adequacy of the stormwater management plan and the environmental impact of the proposed elevated driveway. The court also had to consider whether the subdivision application should include constraints on the future buildings to be constructed on the proposed allotments.
The court concluded that the applicant's stormwater management plan was inadequate without an easement providing an overland flow in case of failure. The court also found that the environmental impact of the elevated driveway was unacceptable due to its steepness and height. Furthermore, the court held that the proposed allotments required constraints on future buildings due to their environmentally sensitive nature and the likelihood of significant impacts on neighbouring properties. As a result, the court dismissed the appeal and refused the development application.
The court's final orders included dismissing the appeal, refusing the development application to subdivide the property, and returning the exhibits. The applicant was left with the option to seek an easement either through the Land and Environment Court or the Supreme Court.