Transbuilt Engineering Pty Ltd v Kogarah Municipal Council

[2004] NSWLEC 377

Land and Environment Court

of New South Wales

CITATION:	Transbuilt Engineering Pty Ltd v Kogarah Municipal Council [2004] NSWLEC 377
PARTIES:	APPLICANT Transbuilt Engineering Pty Ltd RESPONDENT Kogarah Municipal Council
FILE NUMBER(S):	11429 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- construction of 34 units with 49 basement carparking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	21/04/2004
EX TEMPORE JUDGMENT DATE :	04/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M W Sneddon, barrister instructed by Maclarens Solicitors RESPONDENT Mrs L Finn, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

22 April 2004

11429 of 2003 Transbuilt Engineering Pty Ltd v Kogarah Municipal Council

JUDGMENT

1 This matter has come before me as consent orders. The proposal is for 34 units with 49 underground carparking spaces at the property known as 6-14 Hogben Street, Kogarah. The proposed development is one that will result in an isolated lot. The isolated lot will be on the corner of Hogben Street and Bank Lane which is to the east of the subject site.

2 Council has a Development Control Plan that requires site amalgamations. Council has been satisfied by the evidence provided on behalf of the applicant and also on the basis of an independent valuation that all reasonable attempts have been made to incorporate the isolated lot on the corner, No. 4, into the proposed development and offers have been made to the owner of the subject property. The owner, Mrs Harris, has been advised of today’s proceedings and does not wish to appear and in fact I have been advised by the council’s solicitor that she in fact withdraws her objection because she is now satisfied in terms of an easement being provided over the adjoining site to provide access to the subject property and the conditions of consent provide for an 88B instrument over the subject land to provide such access in the event of any redevelopment of No. 4 Hogben Street.

3 It was recommended to the council that approval be granted and council has decided or resolved to enter into consent orders subject to the resolution of an access to No. 4 which has been achieved and subject to satisfaction that all reasonable attempts have been made and an offer provided to Mrs Harris for incorporation of that site into the subject development.

4 I am satisfied that whilst No. 4 will be isolated in terms of development it is on a corner and in fact has three streets surrounding it on the north, east and south with the subject site to the west. I am satisfied on the basis of the reports to the council that it has development potential commensurate with the development potential of the subject sites that the Court is now assessing.

5 The development application is one that has had amendments and modifications. It has been to the Design Review Panel of the council and the Design Review Panel in terms of SEPP 65, their comments have been taken into consideration and the Court has also understood the Design Panel’s requirements which have been incorporated into the development. The development provides for the accommodation of, as I stated, 34 units. It has materials and finishes that are appropriate in council’s opinion and there is an accompanying landscape plan to provide street trees to the development.

6 There are a number of conditions in terms of amendments to the plans which have now been incorporated in a deferred commencement condition such that a final set of plans is to be approved by the council incorporating such amendments before a construction certificate could be issued. The Court in this matter has to be satisfied that the objector to the proposal has been given every opportunity to appear before the Court and in fact I am satisfied in that regard.

7 The Court sees no reason why the consent orders should not be entered into on the basis of the information that has been furnished to the Court. Therefore on the basis of this information and the evidence to the Court the consent orders are not opposed by the Court.

8 Accordingly the orders of the Court are:

1. The appeal in respect of the property known as 6 to 14 Hogben Street, Kogarah is upheld.
2. The development application submitted to Kogarah council, and as amended, for a residential flat building containing 34 units is approved subject to the conditions contained in Annexure ‘A’.
3. The exhibits except for Exhibits A, B, C and 6 are returned.


_____________________
Commissioner of the Court
Rjs/ljr