Land and Environment Court of New South Wales CITATION : Huntacorp v Cessnock City Council [2008] NSWLEC 24 APPLICANT Huntacorp Pty Limited PARTIES : RESPONDENT Cessnock City Council FILE NUMBER(S) : 11085 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- Consent Orders - single storey attached dual occupancy development - character - traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Cessnock Local Environmental Plan 1989 DATES OF HEARING: 16/01/08 EX TEMPORE JUDGMENT DATE : 16 January 2008 APPLICANT Mr G Williams, solicitor SOILICITORS Thompson Norrie Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr R Mallik, solicitor SOLICITORS Mallik Rees Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 16 January 2008 11085 of 2007 Huntacorp Pty Limited v Cessnock City Council JUDGMENT 1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to Development Application No 8/2007/410 for the construction of a single storey attached dual occupancy development on 38 O'Shea Circuit Cessnock. While the matter were originally set down as a Court Hearing, the parties agreed that the matter could be heard as an On Site Hearing. 2 In accordance with the Courts Practice Note - Class 1 Development Appeals any objector to the development application may be heard in the Courts consideration of the Consent Orders. In this regard, Ms Kerrie Miller of 40 O'Shea Circuit and Mr Colin McFarlane of 10 Traminer Grove sought to be heard. Ms Miller and Mr McFarlane raised similar issues. They expressed concern that the number of dual occupancy developments in the immediate area was having an adverse impact on the character of the area. They indicated that this was contrary to the basis upon which they purchased their properties. A reference was also made to a s 88B instrument that sought to protect the quality of the residential estate. A number of vacant sites in the immediate area have approvals for dual occupancy development or have development applications before the council. 3 Ms Miller and Mr McFarlane also expressed concern that the number of dual occupancy developments at the intersection of O'Shea Circuit and Traminer Grove is likely to create high levels of traffic movements with a subsequent impact on the safety for pedestrians, particularly children. 4 The site is zoned Residential 2(a) under Cessnock Local Environmental Plan 1989 (LEP 1989). Attached dual occupancy developments are permissible with consent within this zone. The proposed development is also subject to the provisions of Cessnock Development Control Plan 2006 (DCP 2006). DCP 2006 provides requirements for Urban Housing, including dual occupancy developments (Part D.2). The report from the council officer indicates compliance with the provisions of LEP 1989 and the DCP 2006. 5 In considering the submissions of Ms Miller and Mr McFarlane, I am satisfied that the refusal of the development application cannot be substantiated based on their submissions. LEP 1989 and DCP 2006 do not contain any provisions that limit the number of dual occupancy developments within an area. Without any such provision, the development application must be considered on its merits and in accordance with the provisions of DCP 2006. The assessment under DCP 2006 found no basis for the refusal of the development application. Similarly, the s 88B Instrument does not place a limit on the number of dual occupancy developments within an area. 6 I note that the issue of traffic was addressed in the report of the council officer who found that any additional traffic would not be a reason to refuse the development application. In the absence of any evidence to refute this conclusion I accept that increased traffic is not a reason to refuse the development application. 7 There being no reason why development consent should not granted, the following Orders are made, by consent: 1. The appeal is upheld. 2. DA 8/2007/410 for the construction of a dual occupancy development at 38 O'Shea Circuit Cessnock is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. _____________ 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.