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[2008] NSWLEC 1162
Land and Environment Court (NSW)
2008-06-11
Mr P
Original judgment source is linked above.
The applicant is to file and serve the amended plans by close of business on 9 May 2008.
The respondent is to file and serve draft conditions of consent and any comments on the amended plans by close of business on 16 May 2008.
Leave is granted for either party to restore the matter on 24 hours notice if there is disagreement on compliance with these Directions.
If leave is not sought to restore the matter, Final Orders will be made in Chambers after 16 May 2008. The amendments 58 In accordance with the Directions the applicant filed amended architectural plans (Exhibit R), an amended landscape plan (Exhibit S), amended fencing details (Exhibit T), and a stormwater assessment (Exhibit U) on 12 May 2008. The respondent filed the amended conditions on 30 May 2008, the applicant provided further submissions on 2 June 2008 and the respondent provided further submissions on 4 June 2008. 59 The amended architectural plans provide the required setback to Links Road by reducing the number of villas by one to 52 (but maintaining the detached configuration of the self-contained dwellings as provided in the original proposal), through the adjustment of setbacks between the villas and the reduction in the number of car parking spaces. The amended landscape plan and fencing details acceptable. The following matters not addressed previously, are still in contention:
Impact on Karrara 60 I am generally satisfied with the reconfiguration of the dwellings except in the area adjoining the rear of Karrara. While accepting that the impact on the rear of Karrara is less important than the Moss Vale Road frontage, the rear of the building nonetheless provides an access point to the building from within the development. The proposed villas effectively surround Karrara and this has not changed with the proposed amendment. The impact on Karrara at the rear was a matter addressed by the applicant when options showing the removal of Villa 31 and 32 (Option A) or the removal of Villa 32 (Option B) were provided (Exhibit Q). The Directions suggested that there were a number of options to deal with that the increase setback and as the applicant has chosen to maintain the individual configurations for the dwellings, it is appropriate that Option B be adopted to minimise the visual presence of the proposed dwellings on Karrara. This amendment can be made as a condition of consent (see condition 1). Condition 52 61 This condition requires the payment of a s 94 contribution towards the construction of stormwater drainage. The applicant maintains that a contribution cannot be justified as the accompanying stormwater assessment report relies on on-site detention and dispersal within the site primarily through detention tanks, recycling by the individual dwellings and landscape irrigation.
62 The stormwater report outlines in detail the proposed treatment of stormwater and models the stormwater flows from the pre-and post-development scenarios in various storm events using two computer models (DRAINS program and MUSIC program). The modelling confirms that the stormwater run-off from the site will be reduced by the proposed development compared to the existing development on the site.
63 The council states that the stormwater report has been considered by the council however it must be accompanied by a report so that the numerical charter and calculations can be interpreted. A Catchment Plan for the DRAINS program and a schematic model for the MUSIC program should be provided.
64 On this condition, I am satisfied that the stormwater report satisfactorily addresses the issue of stormwater flows from the site and on the basis of the post-development stormwater flows being less than the predevelopment stormwater flows, it would be unreasonable to impose a contribution towards stormwater drainage external to the site.
Orders 65 The orders of Court are: 1) The appeal is upheld. 2) Development Application LUA 06/1428 for the demolition of some existing structures and the erection of a seniors living development at the corner of Moss Vale Road and Links Road, Bowral is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits Q, R, S, T and U.
G T Brown
Commissioner of the Court
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.
Terrigal Grosvenor Lodge
Wingecarribee Shire Council
CITATION : Terrigal Grosvenor Lodge v Wingecarribee Shire Council [2008] NSWLEC 1162
Winter Group Architects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 546 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 CASES CITED: Galandon Pty Ltd v Narrabri Shire Council 1983 51 LGRA Campbelltown Golf Club Ltd v Winton and Anor CA40056/96 [1998] NSWSC 257 Inghams Holdings Pty Ltd v Kiera Holdings Pty Ltd 90 LGERA 68
54 The applicant opposed the condition on the basis that it was consistent with the findings in Campbelltown Golf Club Ltd v Winton and Anor CA40056/96 [1998] NSWSC 257 23 June 1998 where it was found that the golf course should adjust its activities so as not to interfere unreasonably with the peaceful enjoyment by residents of their land. The council relies on the findings in Inghams Holdings Pty Ltd v Kiera Holdings Pty Ltd 90 LGERA 68 (at 70) where it was found that there was nothing wrong in a planning authority imposing conditions to alleviate any problems of incompatibility. 55 The potential for miss-hit golf balls from the 18th tee to land amongst the villas on the eastern boundary of the site is a likely occurrence. In my view, it is appropriate for the condition to remain to address this issue for much the same reason as conditions are placed on development consents for new buildings to address noise issues from existing roads or aircraft noise. The obligation to protect the amenity (or in this case, including the safety) of the future residents rests with the applicant.