GLDN Pty Ltd v Cessnock City Council

Land and Environment Court (NSW)|2006-04-18|Before: Mr P

The applicant complained that it had spent 12 months negotiation with council staff and provided several amended plans, only to be told at the end that a total redesign is necessary.

In submissions the applicant and in Mr Joyce's evidence it was said that the locality is not an up-market area and the other medium density developments nearby are similar to the proposal. The proposal would satisfy the market, they said, that is looking for budget priced villa units in Cessnock.

The applicant felt the most likely purchasers would be retired persons, or "empty-nesters", or singles, or couples without children who would be less likely to have activity that might disturb other residents.

The respondent said the convenience to the schools, shops, and sports fields may well make it attractive to parents with children.

I do not think the Council statutes and controls distinguish between types of potential occupants of dwellings, except in the provision of seniors living and disable persons' access developments. The statutes and controls are aimed at giving all persons living in medium density development reasonable amenity and practical and useable dwellings and facilities.
In respect of the time spent negotiating with council staff, it is a circumstance of the case, however my role is to look at the current plans de novo as if it is a fresh application just received and determine on fact and merit if it is worthy of approval under the applicable statutes and controls. To a large extent the previous plans and what negotiations occurred do not carry a lot of weight in a determination of whether or not the current and subject plans are a worthy proposal or not.

I was taken to look at nearby medium density developments and approved plans of 18 Rawson Street and 100 Rawson Street were shown to me. There was another villa development in Aberdare Road I was taken to. There are apparent non-compliances with development control requirements in them, and some compliances that are not so in the subject proposal. I do not see them as being good examples of the DCP22, DCP2, or DCP48 requirements as I understand them, and they should not be accepted as a precedent for future developments. The intent of the Council policies is obviously to improve the design of future proposals. Indeed the advent of the BASIX requirements at State Government level indicates better design and sustainability that is the direction of planning practice.

My conclusions are that there are a cumulative number of deficiencies in the proposal viz.: · Inadequate amount of useable open space under the applicable definition.

· Inadequate amount of useable private open space in the courtyards of 3 of the 4 units.

· Poor acoustic amenity, privacy and security in respect of all bedrooms in Units 2, 3 and 4.

· Potentially poor acoustic amenity for both bedrooms of Unit 1 if the front setback is to be communal recreational open space.

· Poor direct sunlight exposure in mid-winter to the private courtyards and living rooms of 3 of the 4 units.

· Poor separation distances between living/family room windows of adjacent units creating visual and acoustic privacy impacts. · The applicant's proposed conditions to ameliorate these deficiencies are either insufficient or create co-lateral impacts that add to the conclusion that the proposal is not good design. 77. Therefore the Orders of the Court are: 1. The appeal is dismissed.

The exhibits are returned to the parties except Exhibits 1, 2, 3, 6, 7, A, B, D and E. _______________ K G Hoffman Commissioner of the Court rjs

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : GLDN Pty Ltd v Cessnock City Council [2006] NSWLEC 186

CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313

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