Montego Cay Pty Limited v Warringah Council [2005] NSWLEC 288

Land and Environment Court of New South Wales

CITATION : Montego Cay Pty Limited v Warringah Council [2005] NSWLEC 288

APPLICANT Montego Cay Pty Limited

PARTIES : RESPONDENT Warringah Council

FILE NUMBER(S) : 11450 of 2004

CORAM: Brown C

KEY ISSUES: Development Application :- construction of access road - whether consistent with Desired Future Character statement - impact on native vegetation - impact on natural landforms - whether consistent with general principles of development

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Warringah Local Environmental Plan 2000

RSL Veterans' Retirement Villages Limited v Warringah Council [1998] NSWLEC 100; Mackenzie v Warringah Council [2002] NSWLEC 131; CASES CITED: DEM Gillespies Pty Limited v Warringah Council [2002] 124 LGERA 147; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322

DATES OF HEARING: 2, 3/05/05

DATE OF JUDGMENT: 06/03/2005

APPLICANT Mr C Leggat, barrister SOLICITORS Gadens LEGAL REPRESENTATIVES: RESPONDENT Mr B Preston SC SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

3 June 2005

11450 of 2004 Montego Cay Pty Limited v Warringah Council

JUDGMENT Introduction 1 This is an appeal against the refusal of Development Application No. 2004/0460 by Warringah Council (the council) for the construction of an access road to an approved, but not yet constructed, retirement village off Lantana Ave, Wheeler Heights. 2 The approved retirement village forms part of an existing larger retirement village operated by the RSL Veterans' Retirement Villages Limited. 3 The location of the proposed access road was inspected on the morning of the first day of the hearing with representatives from both parties. A number of local residents also provided their evidence at this time. 4 For reasons set out in the judgement I have concluded that the appeal should be dismissed and development consent refused. Background 5 On 28 May 1988, Pearlman CJ upheld an appeal (the 1998 approval) that allowed the construction of a retirement village on land the subject of this appeal (RSL Veterans' Retirement Villages Limited v Warringah Council [1998] NSWLEC 100). The proposal, in part, was described as: The proposed development is a new retirement village (" the new village") to be known as "Greenhaven". It is to contain 130 x 2 bedroom self-care units together with a common clubhouse facility. Access is to be via a connector road which will connect with the existing village. In turn the connector road will connect with Lantana Ave. The emergency access and egress is to be provided via James Wheeler Place. 6 In granting the approval, the Court imposed the following relevant conditions: * The existing road system within the Existing Village, including Snake Gully Crescent, shall be upgraded to a standard commensurate with its function as a connector road for the Development. Such upgrading shall have regard to maintaining the amenity of the existing residents. Details shall be submitted with the civil engineering plans referred to in condition 10.14 (Condition 3 (a)). * Construction access is to be limited to the Site with the access site points to be approved by council (Condition 7.6). * Details of heavy goods movements to the Site to be submitted (Condition 10.11). * Operational details of the emergency access to James Wheeler Place to be submitted (Condition 10.19).