Land and Environment Court of New South Wales CITATION : Monaghan v Holroyd City Council [2008] NSWLEC 1353 APPLICANT Peter Francis Monaghan PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 11315 of 2007 and 11316 of 2007 CORAM: Hoffman C KEY ISSUES: Appeal :- non-compliance with Conditions of Consent, Orders under s121(B), streetscape, landscaped area, driveway access, private open space, non-compliance with development controls. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Holroyd Local Environmental Plan 1991 Holroyd Development Control Plan 2007 DATES OF HEARING: 17/07/2008 DATE OF JUDGMENT: 29 August 2008 APPLICANT Mr M. Turnbull, solicitor of Mark Turnbull & Co. LEGAL REPRESENTATIVES: RESPONDENT Mr G. McKee, solicitor of McKees Legal Solutions. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 29 August 2008 11315 of 2007 Peter Francis Monaghan v Holroyd City 11316 of 2007 Council JUDGMENT 1 These appeals were heard in conjunction with Appeals 10574 and 10575 of 2008 between Peter Francis Monaghan v Holroyd City Council in regard to two properties at No. 192 and 194 Girraween Avenue, Greystanes. 2 Appeals 10574 and 10575 were in regard to refusal by council of two s 96 applications in respect of the above properties for changes to landscaping and paving within the front setbacks. The subject appeals in this judgment Nos. 11315 and 11316 of 2007 are in regard to orders issued by the council in respect to each property. The orders are the same in each case mainly: "To comply with development consent and remove all fill, retaining and concrete works which are not in accordance with the approved plans. In this regard the approved plans show only a double width concrete driveway from the front boundary widening to a double garage and a new dwelling. No additional filling retaining and concrete works are shown to the front or side access areas." 3 Appeal 11315 relates to No. 194 Girraween Road and development consent 2005/562. Appeal 11316 relates to No. 192 Girraween Road and development consent 2005/561. The orders under s 121(B) were issued on the 30 November 2007. Arising out of those orders the applicant filed the s 96 amendment applications which had been subsequently refused. 4 In my judgment on 24 July 2008, the appeals against those refusals were dismissed and the parties were directed to consider orders that might be issued in regard to Appeals 11315 and 11316 within 30 days from 24 July 2008 and that any submissions in regard to the subject appeals and orders could be made in writing within the same 30 days. 5 Since that time the Court has received filed on 25 August 2008, draft orders in both matters from the respondent together with submissions in support of those orders. Nothing was received from the Applicant until 28 August 2008. The Council has not sought full compliance with the original consent but rather put into effect a reasonable compromise solution which achieves a good environmental outcome and substantial compliance with the Council Controls. 6 Attached to the Orders are marked up plans showing council's requirements and making quite clear the intention of the orders in each case. They involve removal of substantial areas of the concrete paving shown in yellow colour in the front and side yards in order to provide the landscape area requirements and streetscape presentation. The original consent conditions of the vehicle footpath crossings, giving direct access to the new garages as built are required to avoid the impractical manoeuvring that the applicant had sought in the s 96 applications. 7 The necessary drainage works are also covered together with amended landscape requirements. 8 The re-location of a power pole affected by one vehicle crossing is required. The retention of the existing retaining wall running parallel to the southern boundary of No. 192 Girraween Road is permitted, but removing the pavement beside the retaining wall to provide boundary landscape area between the two allotments. 9 The Orders in each case also provide time limit performance requirements to complete the works and to produce works-as-executed drawings. 10 The applicant in its submission provided a rough sketch and requested the driveways be slightly changed compared to the respondents submitted plans. In front of No. 192 the applicant plans means the removal of a street tree and the retention of another shown for removal in the respondents plan. Also the relocation of the drive in No. 192 will reduce the driveway gradients necessary so I agree to that as an alternative location. 11 The minor relocation of the drive to No. 194 may avoid the relocation of the power pole according to the applicant. If this is so I agree to that as an alternative location. I have marked the respondents plans in Red to reflect the above. 12 The applicant also asks for paving to be retained at the corners of the two garages to retain pathways around the north side of No. 194 and the south side of No. 192. The respondents plan shows existing paving removed at these corners of the two garages. It is reasonable to allow a spay corner of the pavement as marked by me with a Red line on the respondent's plans. 13 Otherwise the orders must comply with the respondents submissions and plans. I note the applicant complains about the time frame for compliance but offers no alternative. Therefore, I adopt the respondents time frames with adjusted dates relating the hand-down of this judgment. 14 Having read the draft orders and submissions I have concluded that the respondent's Orders are appropriate with amendments as referred to above and therefore I adopt them as Orders of the Court to be issued as a result of this judgment. Orders A. The Orders of the Court for Appeal No. 11315 of 2007 are: 1(a) The Applicant is to remove excess concrete within the front yard to create a landscaped area that complies with the plan which is described as Site Plan, Lot 1, 194 Girraween Road, Girraween prepared by Domaine Homes Pty Ltd annotated by Council and the Court which is Annexure 'A 194" to these Orders and as shown in yellow for the purposes of landscaping within 8 weeks, being 24 October 2008. (b) Remove excess concrete to the north of the dwelling adjoining the common boundary to create a boundary landscaping strip as shown in yellow on Annexure "A 194" within 8 weeks, being 24 October 2008. 2(a) The Applicant is to provide an amended landscape plan which identifies the required shrub and tree planting in both the front setback and the boundary landscaping proposed within 2 weeks, being 12 September 2008. (b) The Applicant is to prepare a works as executed (as-built) drawing which is to be submitted to Council within 4 weeks of all works being completed in accordance with these Orders. The works as executed drawing is to show as constructed drainage including surface levels of concrete, landscape areas and pit locations. 3. The Applicant to comply with Development Consent 562\2005 specifically conditions 20, 47 and 48. (a) Condition 20 Any works requiring levels within the road reserve will require the submission of Council's Vehicle Crossing Application Form, along with a fee payment of $108.90 fee for the design, specifications and inspection by Council of the vehicular crossing prior to placement of concrete. The vehicle crossing application is available on Council's website or customer services. The Applicant is to make application to Council's engineering services department for street levels in order to implement vehicular access from Girraween Road to the garage within seven (7) days, being 5 September 2008. (b) Condition 47 The Applicant is to comply with condition 49, namely, plant two (2) blueberry ash trees. One in the front and one in the rear yard. The trees are to each have a minimum pot size of 25 litres and are to be planted as per Council's Tree Planting Guidelines so as not to affect existing services. The trees are to be planted within 2 weeks of the concrete removal works having been completed. (c) Condition 48 The Applicant is to construct a full width residential duty vehicular crossing opposite the vehicular entrance to the site as per the approved drawings, with a maximum width of 5.0 metres and a minimum width of 3.0 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the Applicant's expense and shall be in accordance with Council's issued drawings and level sheets. The Applicant is to comply with condition 50 and ensure that the vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling. These works are to be completed within 60 days of the concrete removal works having been completed as referred to in Order 1(a), being 24 December 2008. 4. The Applicant shall carry out the following remedial actions and works within 6 weeks, being 10 October 2008: - (a) Removal of any redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter. These works shall be carried out by a licensed construction contractor at the Applicant's expense and shall be in accordance with Council's standard requirements. (b) The developer shall arrange with Integral Energy for the relocation of a power pole if affected by the proposed vehicular crossing. The vehicular crossing shall be a minimum 1.0m clear from the power pole. (c) The Applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the Applicant's cost. (d) A Traffic Management Plan shall be lodged with Council for any road and drainage works to be carried out within public road reserves in strict compliance with the requirements of Australia Standard 1742.3 (Traffic Control Devices for Works on Roads). (e) Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard As 1742.3, "Part 3 - Traffic controls devices for works on roads". (f) The retention of existing concrete (or if necessary reconstruction) of the internal driveway in accordance with the plan annexed to this Order. B The Orders of the Court for Appeal No. 11316 of 2007 are: 1(a) The Applicant is to remove excess concrete in the front yard to create a planted landscaped area that complies with the plan which is described as Site Plan, Lot 2, No. 192 Girraween Road, Girraween prepared by Domaine Homes Pty Ltd annotated by Council and the Court which is Annexure "A 192" to these Orders and as shown in yellow for the purposes of landscaping within 8 weeks, being 24 October 2008. (b) Remove excess concrete to the south of the dwelling adjoining the common boundary with 194 Girraween Road (to the south of the existing retaining wall) as shown in yellow on annexure "A 192" for the purposes of boundary landscaping within 8 weeks, being 24 October 2008. 2(a) The Applicant is to provide an amended landscape plan which identifies the required shrub and tree planting in both the front setback and the boundary landscaping proposed within 2 weeks, being 12 September 2008. (b) The Applicant's hydraulic engineer is to certify that the following works have been completed: (i) The stormwater outlet from the rain water tank has been constructed up to the front boundary east corner within 2 weeks, being 12 September 2008. (ii) The trench grate draining the driveway area drains to the grated pit connected to the absorption trench within the rear yard within 2 weeks, being 12 September 2008. (iii) The maximum surface runoff draining into that grated drain in front of the garage has not altered from the approved stormwater plan within 2 weeks, being 12 September 2008. (iv) The section of stormwater line from the front boundary across the nature strip and connecting into the Council kerb and gutter (or drainage pit) including the sealed section has been constructed within 4 weeks, being 26 September 2008. (v) A 50mm (minimum) high water tight kerb along the top edge of the retaining wall on 192 Girraween Road is constructed to prevent surface runoff from 194 Girraween Road draining into the main patio area in front of the dining room of 192 Girraween Road within 4 weeks, being 26 September 2008. (c) The Applicant is to prepare a works as executed (as-built) drawing which is to be submitted to Council within 4 weeks of all works being completed in accordance with these Orders. The works as executed drawing is to show as constructed drainage including surface levels of concrete, landscape areas and pit locations. 3. The Applicant is to comply with Development Consent 561\2005 specifically conditions 21, 48, 49 and 50: (a) Condition 21 Any works requiring levels within the road reserve will require the submission of Council's Vehicle Crossing Application Form, along with a fee payment of $108.90 fee for the design, specifications and inspection by Council of the vehicular crossing prior to placement of concrete. The vehicle crossing application is available on Council's website or customer services. The Applicant is to make application to Council's engineering services department for street levels in order to implement vehicular access from Girraween Road to the garage within seven (7) days, being 5 September 2008.(b) Condition 48 The Applicant is required to plant two (2) brush box trees in the Council road reserve to the east of the property. These trees are to have a minimum 25 litre container size and are to be planted as per Council's Tree Planting Guidelines so as not to affect existing services. The trees are to be planted within 2 weeks of the concrete removal works having been completed. (c) Condition 49 The Applicant is to comply with condition 49, namely, plant two (2) blueberry ash trees; one in the front and one in the rear yard. The trees are to each have a minimum pot size of 25 litres and are to be planted so as not to affect existing services. The trees are to be planted within 2 weeks of the concrete removal works having been completed. (d) Condition 50 The Applicant is to construct a full width residential duty vehicular crossing opposite the vehicular entrance to the site as per the approved drawings, with a maximum width of 5.0 metres and a minimum width of 3.0 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the Applicant's expense and shall be in accordance with Council's issued drawings and level sheets. The vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling. These works are to be completed within 60 days of the concrete removal works having been completed as referred to in Order 1(a), being 24 December 2008. 4. The Applicant shall carry out the following remedial actions and works within 6 weeks, being 10 October 2008: - (a) Removal of any redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter. These works shall be carried out by a licensed construction contractor at the Applicant's expense and shall be in accordance with Council's standard requirements. (b) The Applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the Applicant's cost. (c) A Traffic Management Plan shall be lodged with Council for any road and drainage works to be carried out within public road reserves in strict compliance with the requirements of Australia Standard 1742.3 (Traffic Control Devices for Works on Roads). (d) Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard As 1742.3, "Part 3 - Traffic controls devices for works on roads". (e) The retention of existing concrete (or if necessary reconstruction) of the internal driveway in accordance with the plan annexed to this Order. C The exhibits are returned to the parties except exhibits 1 and 2. ___________________ K G Hoffman 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.