Planning Workshop Australia v Maitland City Council

[2005] NSWLEC 382

Land and Environment Court

of New South Wales

CITATION:

Planning Workshop Australia v Maitland City Council [2005] NSWLEC 382

PARTIES:

APPLICANT
Planning Workshop Australia

RESPONDENT
Maitland City Council

FILE NUMBER(S):

10399; 10400 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application - Subdivision :-
Consent orders
Separate assessment of contiguous subdivisions
.

LEGISLATION CITED:

Conveyancing Act 1919 s88B

DATES OF HEARING:

12 July 2005

 
DATE OF JUDGMENT: 

07/12/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Fielding, agent

RESPONDENT
Mr G Williams, solicitor
Thompson Norrie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

12 July 2005

05/10399 & 05/10400 Planning Workshop v Maitland City Council

JUDGMENT

1 COMMISSIONER: These two appeals concern subdivisions in Ashtonfield, a suburb of Maitland. The applicant and Maitland City Council (the council) submit consent orders for approval for each of the proposed subdivisions.

2 Each subdivision proposes the subdivision of three existing allotments into five new allotments making a total of ten new allotments from six existing allotments.

3 The two groups of three existing allotments, which back onto each other, have their principal frontages to Tipperary Drive and Waterford Close respectively. As part of the material shown to me on-site, Mr Fielding, a consultant Town Planner acting as Agent for the applicant in these proceedings, provided a copy of a plan showing an identified building footprint for each of the proposed new allotments. The council’s proposed conditions of consent, in each instance, did not require identification of those building footprints or any control with respect to them other than a front setback control.

4 During the course of my inspection, I heard evidence from Mrs Milne, a resident of Ballidoyle Drive, who lives some 100 m or so to the south of the site. She objected to the proposal on the basis of the proposed subdivision layout being incompatible with the present block sizes in the estate and the creation of additional traffic. Two other objectors who had lodged written submissions had raised similar objections but were unable to be present and give additional material. I carefully considered the objections and the context of the two applications.

5 I should observe, at the outset of my consideration of the merits, that it would have been more appropriate for the council to have required a single application or, if not a single application, have undertaken assessment of the two applications as if they were one as some of the concerns which I held related to the contiguity of the two sites and the combined presentation of the two proposed subdivisions which were, in my view, in reality a single development (although with two street frontages).

6 I considered the applicant's and council's written material and the written material of the objectors as well as the oral evidence of Mrs Milne.

7 I am satisfied that the additional traffic impact of two further residences in each of the streets will be sufficiently small as to not warrant refusal. I have reached this conclusion in light of the fact that the applicant has agreed to a covenant limiting the dwellings to be constructed on each subdivided allotment to a single, single storey dwelling.

8 As a consequence, it is unlikely that there will be more than four additional vehicles, in total, added to each of the two streets. This, in my view, is acceptable.

9 With respect to the question of consistency with the subdivision pattern, the proposed subdivision is consistent with the relevant Development Control Plan provisions and, in fact, modestly exceeds them. Although I am not obliged to accept applications which meet the provisions of the Development Control Plan if there are countervailing concerns, I have concluded that, subject to a number of additional conditions to which the applicant has agreed, the proposals are acceptable in each instance.

10 First, the applicant has agreed to the creation of an instrument made under s 88B of the Conveyancing Act 1919, restricting the houses capable of erection on the site to, effectively, single storey above natural ground level as the habitable level.

11 Although this will lead to dwellings with garaging underneath, in all probability, for the Waterford Close dwellings and rumpus room or similar space underneath at the rear of the Tipperary Drive dwellings, the possibility of large bulky structures will be eliminated by this restriction.

12 Second, the creation of an instrument that will have the effect of designating a rear setback in each of the subdivisions which will provide, in each instance, a significant protection for a number of the existing and important trees on the site thus providing a breaking up of the presentation of the site when viewed uphill from Waterford Close or downhill from Tipperary Drive. This is a matter of some importance as, in my view, the juxtaposition of the two proposed subdivisions might otherwise be of marginal unacceptability rather than marginal acceptability.

13 As the conditions will need to be revised and the applicant will need to prepare a revised survey plan for each of the proposed subdivisions, I therefore give the following directions:

1. The matters are set down for callover before the Registrar on 10 August;
2. If the applicant files revised agreed survey plans and the respondent files revised conditions of consent for each subdivision, doing so electronically pursuant to Practice Direction 2 of 2005, I will make orders, by consent, in chambers and vacate the callover date; and
3. Liberty to re-list before me at 9.00 a.m. on two days notice if required.

Commissioner of the Court