Robar v Gosford City Council

[2006] NSWLEC 548

Land and Environment Court

of New South Wales

CITATION:	Robar v Gosford City Council [2006] NSWLEC 548
PARTIES:	APPLICANT John Robar RESPONDENT Gosford City Council
FILE NUMBER(S):	11018 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders
DATES OF HEARING:	4 July and 17 August 2006
EX TEMPORE JUDGMENT DATE:	08/17/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister INSTRUCTED BY Oxford Legal (4 July) and macquarielawyers (17 August) RESPONDENT Mr M Fraser, barrister (4 July) INSTRUCTED BY P J Donnellan & Co and Mr R Byrd, solicitor (17 August) P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

17 August 2006

11018 of 2005 John Robar v Gosford City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act1979 against the refusal by Gosford City Council (the council) of Development Application 23077/04 for a proposed residential flat building on Lot 7, Deposited Plan 26617, known as 7 Painters Lane, Terrigal.

2 I had the opportunity of inspecting the site in company with the parties and Mr Chesterman, the Court-appointed expert, on 4 July. During the course of those inspections, I pointed out to the applicant and the applicant’s advisers a number of assumptions I made about what constituted natural ground level on the property. As a consequence of those being accepted by the applicant’s advisers, it was clear that it was not acceptable to have the originally proposed upper level erected on the site and the applicant accepted through his barrister, Mr Clay, that the removal of the upper level was necessary.

3 After discussion between the parties on site – involving Mr Chesterman and Mr Holmes, the proprietor of the property immediately adjacent and further removed from the beachfront fronting Painters Lane (upon which property there is also an approved redevelopment to be carried out) – a number of alterations, in addition to removal of the uppermost level, were proposed for the parapet height of the building to attempt to accommodate retention of the views from Mr Holmes property.

4 The matter has come back to me this morning, supported by oral evidence given by Mr Chesterman, that, with a number of other minor alterations to the plans (which are to be embodied in further revised plans), further improvement will be made to alleviate the potential impact on Mr Holmes’s development.

5 The applicant also accepts a condition concerning the restriction on the height to which landscaping at the Painters Lane frontage of the property and adjacent to Mr Holmes’ site would be restricted so that the landscaping will not to grow to a height that would impede views from the lower level balcony of Mr Holmes’ property.

6 As a consequence, I am faced with a proposal for consent orders subject only to a number of minor amendments to the conditions, including an amendment that I have suggested to the parties to condition 6 to ensure that any satellite dish for television reception purposes will be so located and sized not to impact on the views of any neighbouring property.

7 That being the position, I am satisfied that the development is appropriate to be approved subject to revised plans being filed reflecting the alterations of the parapet and sloping of the roof and that the conditions will need to be revised with respect to the satellite dish and the plantings to which I have adverted.

8 The orders of the Court will be, after those steps are taken that:

1. The appeal will be upheld;
2. Development Application 23077/04 for the erection of a residential flat building at 7 Painters Lane, Terrigal, will be determined by the granting of development consent subject to condition that remain to be filed electronically for the purposes of making orders; and
3. The exhibits will be retained.

9 I give the following directions:

1. The applicant is to file and serve revised plans by 4 pm on Monday 21 August.
2. The respondent is to file and serve revised conditions by the same time, filing of the conditions is to be electronic in accordance with Practice Direction 2 of 2005, with separate e-mail to the Court notifying the filing electronically of the conditions.

Tim Moore
Commissioner of the Court