Mirvac Homes (Nsw) Pty Ltd - V - Parramatta City Council [1999] NSWLEC 38 - NSWLEC 1999 case summary

Land and Environment Court (NSW)|1999-10-02|Before: Lloyd J

The applicant sought to resolve this problem during the hearing by incorporating a turning area in road 8 adjacent to house 18. In my view, however, it is likely that the turning area will be utilised in practice for the parking of visitors' vehicles. I am not confident that the turning area will thus be available for use by large service vehicles. The solution suggested by Mr Hallam of providing a connection between roads 7 and 8 should be employed. As noted by Mr Hallam, this would involve changing the layout, including possibly reducing the number of dwellings by 1 or 2.

The third issue relates to the need for traffic signals at the intersection of Marsden Road and Mobbs Lane. Both of the traffic engineers who gave evidence agree that there is a present need for traffic signals at that intersection. The present need does not arise as a result of the proposed development. Nevertheless, the respondent seeks a monetary contribution from the applicant to meet the whole of the cost of the installation of traffic lights at that intersection on the basis that the additional traffic to be generated by the development will impose a threshold change.

It does not seem reasonable to me, however, to require the applicant to pay the full cost of the installation of traffic signals at the intersection. Traffic signals are needed at the intersection at the present time, absent the proposed development. In these circumstances it is appropriate that the applicant pay only a proportion of the cost, related to the proportion of traffic making use of the intersection which will be generated by the development. This is in the order of 10% of the total traffic flow and thus a contribution should be in the order of 10% of the cost of the installation of traffic signals at that intersection.

Finally, I note that agreement was generally reached by Mr Hallam and Mr Colston on the width of the roads within the development and the number of parking spaces provided for residents and visitors, thus satisfying the criticisms of Mr Smith in this respect.

Mr Smith states that the proposed subdivision of Lot 1 DP739215 is not appropriate. He accepts that the subdivision entails no works so that, of itself, it would not affect the character of the site. The real impact of the proposed subdivision is it implied that the two lots to be created would pass into different ownerships. According to Mr Smith, the integrity of the Dalmar Children's Home site - a listed heritage item of regional significance - would be, at the least, eroded, although he defers to the opinion of Mr Moore on this question.

In Mr Smith's opinion, the existing buildings on the proposed lot 12, together with the trees around them, constitute part of the visual character of the site and the locality. According to Mr Smith the problem is that once the first step of subdivision is taken, it could be exceedingly difficult, if not impossible, to halt the process that is thus commenced, leading to the partial destruction of an item of heritage significance. In Mr Smith's view it would be desirable to ensure that the totality of what might be considered to be the "minimum desirable heritage curtilage" of the Dalmar Children's Home be retained in the same ownership. The issue is not so much one of whether or not the land should be subdivided but one of whether or not the line of subdivision is appropriate.

The concerns of Mr Smith, however, can be met by the creation of a positive covenant over the proposed Lot 12 preventing the erection of any structure on or the use of any land lying within 35 metres of the centre of the circular driveway in front of the main Dalmar building. That would ensure that there will be in place a "minimum desirable heritage curtilage" to the main Dalmar building and its circular driveway. I have previously concluded, in the discussion under the heritage issue, that the existing buildings within the proposed Lot 12 are not of such significance that they must be retained. It follows that the proposed subdivision may be approved, subject to appropriate conditions.

For the abovementioned reasons I make the following orders.

Development consent is granted for the subdivision of Lot 1 in DP 739215 into two lots in accordance with drawing No DA/8679DA (A3) dated 18 March 1998 prepared by Asher McNeill Niall, subject to the following conditions:

(b) Proposed Lot 12 of the subdivision of Lot 1, DP 7138215

in favour of proposed Lot 11 of the subdivision of Lot 1, DP 739215, at least 1.8 metres wide, adjacent to the boundaries of Lot 2, DP 739213 (Sunny Brook) for the purpose of conducting stormwater in pipes and by over land flow from Proposed Lot 11 to Freeman Place and Cottee Drive respectively.

The creation of a positive covenant over Proposed Lot 12 - binding in perpetuity or alternatively in the event that a Community Plan of Subdivision is approved, the Community Management Statement is to include a By-Law preventing the erection of any structure on or the use (other than for grassed lawn and landscaping approved by Councl) of, any land lying within 35 metres of the centre of the circular driveway in front of the main building of the Dalmar Children's Home.

Section 94 contribution for open space recreation and community facilities payable on the basis of $5834 per additional created lot. The contribution shall be paid prior to the release of the Linen Plans of Subdivision.

The exhibits, other than Exhibit "A", may be returned.

I certify that this and the preceding 34 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.

Land and Environment Court of New South Wales CITATION: Mirvac Homes (Nsw) Pty Ltd - V - Parramatta City Council [1999] NSWLEC 38

Mirvac Homes (Nsw) Pty Ltd - V - Parramatta City Council [1999] NSWLEC 38

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