Evewall v Cessnock City Council [2009] NSWLEC 1448

Evewall v Cessnock City Council [2009] NSWLEC 1448

The modified application is substantially the same development as originally approved, but unrestricted vehicle access from Dover Street is not necessary, would cause unacceptable loss of residential amenity, and connectivity is adequately provided by pedestrian and cycleway access. Consequently, unrestricted vehicle access from Dover Street is refused except for construction-related demolition and emergency vehicles.

Parties
Applicant: Evewall; Respondent: Cessnock City Council
Jurisdiction
Australia
Judgment Date
21 December 2009
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Appeal upheld in part
Legal Topics
Modification of Development Consent, Traffic and Amenity Impacts, Connectivity in Planning Approval, Conditions of Consent
Planning Law Environmental Law Modification of Development Consent Traffic and Amenity Impacts Connectivity in Planning Approval Conditions of Consent

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Parties

Evewall

Applicant

Cessnock City Council

Respondent

Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 Whether the amended development application for unrestricted vehicle access from Dover Street is substantially the same development as originally approved
  2. 2 Whether it is acceptable to amend the conditions of consent to allow unrestricted vehicle access from Dover Street

Ratio Decidendi

The modified application is substantially the same development as originally approved, but unrestricted vehicle access from Dover Street is not necessary, would cause unacceptable loss of residential amenity, and connectivity is adequately provided by pedestrian and cycleway access. Consequently, unrestricted vehicle access from Dover Street is refused except for construction-related demolition and emergency vehicles.

Court Disposition

Appeal upheld in part

Orders

  • The appeal is upheld in part.
  • The parties are directed to file draft conditions reflecting the judgment, including adopting the proposed condition 74 in Exhibit C with the concept plan and amended condition 80 with the deletion of the last line and the exhibits returned apart from Exhibit C and the Facts and Contentions.