Young v Newcastle City Council (No.2)

[2007] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION:

Young v Newcastle City Council (No.2) [2007] NSWLEC 57

PARTIES:

APPLICANT
Bonnie Alissandra Young

RESPONDENT
Newcastle City Council

FILE NUMBER(S):

10328 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Multi-unit housing, s 40 drainage easement, flooding,

LEGISLATION CITED:

Environment Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2003

CASES CITED:

Property Partnerships Pacific v Woollahra Council [2005] NSWLEC 669

DATES OF HEARING:

06/03/2007

EX TEMPORE JUDGMENT DATE:

6 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Williams, solicitor
Of: Thompson Norrie Solicitors

RESPONDENT
Mr P Jayne, solicitor
of: Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 March 2007

10328 of 2006 Bonnie Alissandra Young v
Newcastle City Council
JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

1 In this matter, my findings were published on 31 January 2007 following the view, hearing of the objections, evidence and submissions.

2 The findings indicated that the alternative "lower-level option" for the 3 x unit dwelling development application was environmentally more acceptable, subject to the acquisition of a downstream drainage easement.

3 Consequently, the applicant withdrew the "high-level alternative" and pursued this lower-level option as now contained in Exhibit M. The parties have further considered this option and agree to consent orders, which includes conditions requiring the acquisition of the downstream drainage easement.

4 Having reviewed these alternative "lower-level" option plans, I am satisfied they satisfactorily respond to the relevant development controls and to the objections raised by the neighbours. In particular, the implementation of the revised drainage system should improve the current nuisance flooding situation experienced in this neighbourhood.

5 I note, the submissions in regard to the line of authority concerning drainage easements, as expressed in Property Partnerships Pacific v Woollahra Council [2005] NSWLEC 669, where the Senior Commissioner considered the procedures for acquisition of a drainage easement under s 40 of the Court Act.

6 From this, the matters for considerations are whether:

• the application is worthy of approval in all respects (including the physical arrangements for the drainage system), other than the drainage easement;

• the easement is reasonably necessary for the development.

7 Applying these considerations to the subject application, I accept that the revised application is worthy of approval in all respects, including the detailed drainage concept. Furthermore, that the drainage easement is reasonably necessary for the development and conditions of consent are imposed accordingly.

8 Apart from this, I note that the objectors were informed of today's consent orders hearing and no further submissions on their behalf have been made. As I have stated, this "lower-level" option is responsive to the matters raised by the objectors in my assessment, so as to enable the consent orders to be made.

Court orders

9 By consent the orders of the Court are:

1. The appeal is upheld.
2. Development Application No. 03/0444, submitted to Newcastle City Council is approved subject to conditions contained in Annexure ‘A’.
3. The exhibits may be returned except for 4 and M.

R Hussey
Commissioner of the Court
rjs