Withers v Tumut Shire Council

[2005] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Withers v Tumut Shire Council [2005] NSWLEC 55

PARTIES:

Roger and Lynette Withers
Applicant

Tumut Shire Council
Respondent

FILE NUMBER(S):

11360 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Consent :- on-site hearing
s96 application for varying conditions

DATES OF HEARING:

16/02/2005

EX TEMPORE JUDGMENT DATE:

02/16/2005

LEGAL REPRESENTATIVES:

Mr Peter Gain, solicitor

Mr Peter Rigg, solicitor

JUDGMENT:

- 2 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

16 February 2005

11360 of 2004 Roger and Lynette Withers v tumut Shire Council

JUDGMENT (delivered at on-site hearing)

1 Senior Commissioner: This is an appeal against the refusal of a s96 application to delete condition 5 and defer condition 8 of Development Consent 2003/04-197 issued by Tumut Shire Council.

2 Events have overtaken the application to the extent that the parties agree to condition 8 remaining on the basis that the applicant has contracted to the council the provision of the additional hydrant; so in substance the applicant has complied with condition 5.

3 At the beginning of the hearing a dispute remained with respect to condition 5, which requires security fencing to be 7.5m behind the boundary line. However, during the hearing the parties came to an agreement to amend condition 5 as follows:

“Adopting the Snowy Mountains Highway as the east-west axis, the security fence is to be located at a distance of 5m from the boundary to a point where that line intersects with the existing kerbing and within that kerbing to the western gatepost. The security fence east of the gate is to be located at a distance of 5m from the boundary to a point where that line intersects with the existing kerbing and within that kerbing to the eastern gatepost. The applicant may install a low visual impact protective cover on the sewer pump and associated switch control panel.”

4 Since the parties reached agreement, the appeal was upheld by consent.

Orders
The Court orders by consent that

1. The appeal is upheld.

2. Condition 5 of Development Consent 2003/04-197 is deleted and the following condition is inserted in its place:

“Adopting the Snowy Mountains Highway as the east-west axis, the security fence is to be located at a distance of 5m from the boundary to a point where that line intersects with the existing kerbing and within that kerbing to the western gatepost. The security fence east of the gate is to be located at a distance of 5m from the boundary to a point where that line intersects with the existing kerbing and within that kerbing to the eastern gatepost. The applicant may install a low visual impact protective cover on the sewer pump and associated switch control panel.”

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner