Ward v Port Stephens Council (No 2)

[2023] NSWLEC 1493

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ward v Port Stephens Council (No 2) [2023] NSWLEC 1493

Hearing dates:

16-17 February 2022; 11 March 2022; 13 April 2022

Date of orders:

31 August 2023

Decision date:

31 August 2023

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application no. 16-2019-135-1, as modified during the course of the proceedings, for the construction of a single-storey dwelling house on an approved flood mound at 1 Swanreach Road, Hinton NSW 2321, is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – single storey dwelling house – refusal – s34AA – no agreement reached between the parties – development application modified to include flood refuge in attic – Court requested changes to draft conditions – amended conditions provided

Legislation Cited:

Conveyancing Act 1919, s 88E

Land and Environment Court Act 1979, s 34AA

Cases Cited:

Ward v Port Stephens Council [2023] NSWLEC 1423

Category:

Principal judgment

Parties:

Neil Andrew Ward (First Applicant)
Bronwyn Patricia Ward (Second Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
H Irish (Respondent)

Solicitors:
Peter Evans & Associates Solicitors (Applicants)
Local Government Legal (Respondent)

File Number(s):

2021/285440

Publication restriction:

Nil

Judgment

1. The Applicants had applied to Port Stephens Council (Council) for development consent to construct a dwelling house at 1 Swanreach Road, Hinton NSW 2321, land legally defined as Lot 51 in DP 1250604. The dwelling house was to be a four bedroom, single-storey building. The Council refused the development application, and the Applicants appealed against the refusal.

2. The matter was allocated by the Court to a conciliation conference under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached between the parties at the conciliation, the matter moved directly to a hearing.

3. In Ward v Port Stephens Council [2023] NSWLEC 1423 (the first judgment), the proposal is described in detail, and the evidence is summarised. (Readers are referred to the first judgment for full details.) I concluded that development consent should be granted but required that there be some changes to the draft conditions of consent which had been proposed. I requested that the parties address the specific conditions that I had identified, and either provide an agreed set of conditions, or if agreement were not reached, each parties’ favoured wording for those conditions which remained in dispute. The parties were able to reach agreement and provided me with an agreed set of conditions.

4. Over time, the original application was amended in a number of ways of which the most important was the provision of a flood refuge in the attic. The refuge was designed to be above the level of the Probable Maximum Flood.

5. The clarifications and amendments that were sought were those in [311]-[331] (first judgment). The proposed/draft conditions agreed between the parties filed on 18 August 2023 have addressed the issues raised to my satisfaction.

6. The changes include in Condition 5.0(9) that a public positive covenant pursuant to s 88E of the Conveyancing Act 1919 in favour of the Court be registered on title requiring compliance with the Flood Emergency Response Plan (FERP) for the life of the development and the inclusion of a new condition as 6.0(3) providing for the ongoing review of the FERP.

7. A new condition 6.0(5) is introduced, which provides that “the approved dwelling must not be used for Short Term Rental”.

Final orders

8. The Court orders:

1. The appeal is upheld.

2. Development application no. 16-2019-135-1, as modified during the course of the proceedings, for the construction of a single-storey dwelling house on an approved flood mound at 1 Swanreach Road, Hinton NSW 2321, is determined by the grant of consent, subject to the conditions in Annexure A.

3. The exhibits are retained.

………………………

P Adam

Acting Commissioner of the Court

Annexure A (212686, pdf)

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