Land and Environment Court of New South Wales CITATION : James & Anor v Mid-Western Regional Council [2007] NSWLEC 774 APPLICANT Robert James and Maria James PARTIES : RESPONDENT Mid-Western Regional Council FILE NUMBER(S) : 10863 of 2007 CORAM: Bly C KEY ISSUES: Development Consent :- Consent Orders, motel, restaurant, car parking, landscaping LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 19/11/2007 EX TEMPORE JUDGMENT DATE : 19 November 2007 APPLICANT Mr T. Cork, solicitor of McPhee Kelshaw LEGAL REPRESENTATIVES: RESPONDENT Mr P. Clay, solicitor of McIntosh McPhillamy & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 19 November 2007 10863 of 2007 Robert James and Maria James v Mid-Western Regional Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 On 21 June 2006, the Mid-Western Regional Council granted conditional Development Consent No. DA28/2006 for a motel at Spring Flat Road, Spring Flat, a short distance to the south-east of Mudgee. The 4.9 hectare site comprises lot 1 in DP1096525. 2 According to the Statement of Environmental Effects, the approved development involves the demolition of an existing dwelling house and the erection of a motel comprising 32 motel units, including a reception and restaurant building and other ancillary facilities. A car parking area is to be provided, together with landscaping around the perimeter of the site and within the curtilage of the proposed buildings. 3 The applicant subsequently lodged development application DA135/2007 for a similar motel, comprising 56 motel units and on 20 December 2006 the council granted conditional development consent. This appeal is against conditions 2, 6 and 43 of that consent. 4 Condition 2 imposes a levy of 1% of the cost of the development for the purpose of traffic management and roadworks, open space, community facilities and plan administration in accordance with the Mid-Western Regional Council's s 94A Development Contributions Plan. This condition is now no longer opposed by the applicant. 5 Condition 6 requires the provision of a detailed landscaping plan prior to the issue of the construction certificate. This plan is required to incorporate earth-mounding and mass planting, essentially to screen hard surfaces and provide a landscaped setting for the proposed buildings. 6 The applicant has now prepared a landscape plan, Exhibit A, and that plan is now accepted by the council as meeting its requirements for the landscaping of the site. I understand that this plan now provides an appropriate landscaped setting for the development and also provides an appropriate level of screening for the proposed buildings. I have considered this landscape plan in the light of the council's original concerns and in the light of the Statement of Environmental Effects. I am satisfied that the landscaping as now proposed would be satisfactory. 7 Condition 43 requires a covenant on the title of the land to warn any future owners of the motel in relation to activities associated with the adjacent agricultural land uses. I now understand that the council no longer presses this condition, it being unnecessary and possibly unlawful. 8 I agree with the submissions that the condition is unnecessary, noting that the site is zoned 1(A1)(Intensive Agriculture) under the Mudgee Local Environmental Plan, where a motel is permissible with development consent. 9 The parties have now tendered consent orders in exhibit 1 and I so make those orders, noting that order 3 has the effect of retaining exhibits 1 and A. ___________________ T A Bly Commissioner of the Court ljr 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.