Commonwealth of Australia v Randwick City Council

Commonwealth of Australia v Randwick City Council - [2001] NSWLEC 79 - NSWLEC 1996 case summary — Zoe

[134]

The evidence may be summarised as follows:- (1) Of the three planning experts who dealt with the issue of built form, two consider that control of built form is necessary for allotments smaller than 400 square metres or 450 square metres. Virtually all the allotments are below that size in this proposal. (2) Mr Thalis does not consider it necessary to control built form on small allotments. He cites two reasons for his belief. The first is that there are many allotments around the site which are of comparable size to those proposed. The second is that terrace houses in Paddington are on even smaller sites. These reasons are not persuasive. Almost all the small allotments around the site are developed with semi-detached houses. The subdivision of a semi-detached house is an example of absolute certainty about built form at the time of subdivision. The same is true of Paddington terraces, for which the land was subdivided at the same time as or after the terraces were built. (3) Ms Brown and Mr Ingham agree that, for this proposal, control on built form is necessary. Mr Ingham believes that control can be imposed at some later time, after the subdivision is approved. (4) Neither Mr Thalis nor Mr Ingham can identify a contemporary residential development, successful in their view, in which small lot subdivision occurred without either the houses being designed at the time of subdivision or built form controls being imposed at the time of subdivision. 127. The fundamental question for the Court is whether it is appropriate to approve a subdivision in which the majority of allotments are small and narrow without any knowledge of the built form that will occur on the allotments. In the Court's opinion, it is not appropriate. This is not to say that small allotments are inappropriate for this site. Indeed, they are an appropriate form of development as they are in line with current government policy and sympathetic to the existing development around the site. What is unacceptable is to cut up the land into small parcels without providing the assurance that the houses to be built on them will be coordinated to produce a well designed residential environment.

Parties

Applicant/Plaintiff:

Commonwealth of Australia

Respondent/Defendant:

Randwick City Council

Legislation Cited (1)

Environment Protection (Impact of Proposals) Act 1974(Cth)s 6

Cases Cited (6)

CITATION : Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 APPLICANT: Commonwealth of Australia PARTIES : RESPONDENT: Randwick City Council FILE NUMBER(S) : 10072 of 2000; 10073 of 2000 CORAM: Talbot J KEY ISSUES: Development Application :- whether SIS required - whether inconsistent with master plans - contamination - SEPP 55 and Contaminated Land Management Act - commonsense precaution - urban planning and design for small allotments - provision of public open space - community facilities and buffer zones for threatened species and wetland - presumption about completion of projected works upon which development dependent Commonwealth Constitution s 109 Contaminated Land Management Act 1997 s 81 Electricity Supply Act 1995 s 25 Environmental Planning and Assessment Act 1979 s 5A, s 79C, s 80, s 94, s 112, Pt 4 Environmental Planning and Assessment Regulation 1994 cl 110AA, cl 110DD Environmental Planning and Assessment Regulation 2000 cl 92A LEGISLATION CITED: Environmental Planning and Assessment Amendment (Randwick Master Plans) Regulation 2000 Environment Protection (Impact of Proposals) Act 1974 (Cth) s 6 Land and Environment Court Act 1979 s 39 Rivers and Foreshores Improvement Act 1948 Threatened Species Conservation Act 1995 Pt 6 Div 2 State Environmental Planning Policy No 32 State Environmental Planning Policy No 55 cl 7 Randwick Local Environmental Plan 1998 cl 40A Alumino (Aust) Pty Ltd v Minister Administering the EP&A Act 1979 & Ors (Talbot J, NSWLEC, 20 March 1996, unreported); Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGERA 185; CASES CITED: Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55; Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; R v Tonkin & Anor; Ex parte Federated Ship-Painters' and Dockers' Union of Australia (1954) 92 CLR 526; Silverwater Estate Pty Ltd v Auburn Council and Anor [2001] NSWLEC 60 DATES OF HEARING: 19/02/2001, 20/02/2001, 21/02/2001, 22/02/2001, 23/02/2001, 01/03/2001, 02/03/2001, 05/03/2001, 06/03/2001, 07/03/2001, 08/03/2001, 09/03/2001, 12/03/2001, 13/03/2001, 14/03/2001, 15/03/2001, 19/03/2001, 20/03/2001, 21/03/2001, 23/03/2001, 26/03/2001, 27/03/2001, 28/03/2001, 29/03/2001, 05/04/2001, 09/04/2001 DATE OF JUDGMENT: 04/27/2001

(1994) 84 LGERA 434

(1991) 74 LGERA 185

(1954) 92 CLR 526

[2001] NSWLEC 55

[2001] NSWLEC 60