Noujaim v Bankstown City Council [2005] NSWLEC 343

Land and Environment Court of New South Wales

CITATION : Noujaim v Bankstown City Council [2005] NSWLEC 343

APPLICANT Peter and Jeanette Noujaim

PARTIES : RESPONDENT Bankstown City Council

FILE NUMBER(S) : 11180 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Erection of a boatshed

LEGISLATION CITED: Bankstown Local Environmental Plan 2001

DATES OF HEARING: 15/06/2005 EX TEMPORE JUDGMENT DATE : 06/28/2005

APPLICANT Mr P Noujaim, self represented

RESPONDENT Mr P Hudson, solicitor SOLICITORS Marsdens Law Group

LEGAL REPRESENTATIVES:

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

28 June 2005

11180 of 2003 Peter and Jeanette Noujaim v Bankstown City Council

JUDGMENT

1 This was appeal No. 11180 of 2003 between Peter and Jeanette Noujaim v Bankstown City Council in regard to an application for a boatshed to be erected adjoining the waterfront at Lot 2 DP776440 being No. 738 Henry Lawson Drive, Picnic Point.

2 The matter was first heard on 16 August 2004 when consent orders were presented by the parties. At that time the Court was advised that there was a strip of land on the eastern side of the subject property that was zoned Special Uses, Defence Purposes, Zone No. 5 under the Bankstown Local Environmental Plan 2001 . As a result, because part of the proposal intruded onto that zoning, there was no power to grant the consent for the boatshed and driveway associated with the residential use of the subject property.

3 The zoning appeared to have come about due to a mapping error in the zoning maps attached to the statutory instrument whereby the zone overlaps slightly into the residential allotment.

4 The council had a draft amendment No. 22 to the Local Environmental Plan which would adjust the zoning of that strip of land on the subject site to make it Residential 2(a) and the use would therefore become permissible. At the time of the initial hearing the parties had sought in the consent orders that the Court grant deferred commencement consent. However, the Court put to the parties that in fact a deferred commencement consent was a consent under the Act, and, if the Court issued such a consent it would be invalid since there was no power given the existing zoning. The matter was therefore adjourned until the draft Local Environmental Plan amendment could be gazetted or not.

5 There have been three callovers since then, one on 17 December 2004, one on 7 February 2005 and another on 14 March 2005, and it now was returned to me for mention on 15 June 2005. Amendment No. 22 had been gazetted and was in Exhibit 6. The parties had prepared alternate consent orders mainly deleting the need for a deferred commencement consent, and this was signed by the parties and tendered in Exhibit 7.

6 In considering the matter the Court had regard to the planning report in Exhibits 3 and 4 of this appeal wherein the council resolved to support the consent orders, subject to certain conditions which were incorporated into the consent orders. In the report to council of 27 July 2004 and again on 10 August 2004, the council officer's report considered the objections put forward by the adjoining neighbour.

7 The objectors have been advised that consent orders were to be sought by the council and the applicant in August 2004 and also prior to this judgment. The objectors have advised the council that having made representations they did not wish to appear at Court to give any further evidence. The objections were dealt with in detail in the council officer's report and to some extent this resulted in some of the conditions that were imposed in the consent orders in order to ameliorate the visual impact and bulk of the proposal on the foreshore and on the adjoining neighbour's property.

8 Having considered the evidence therefore I find no reason sufficient for refusal of the consent orders that are sought by the parties and therefore propose to approve the development.

9 Therefore the orders of the Court by consent of the parties are: 1. The Appeal is upheld. 2. The Development Application numbered DA 896/2001 lodged with the Respondent for the construction of an outbuilding to the rear of the property at Lot 2 in Deposited Plan 776440 (No.738) Henry Lawson Drive, Picnic Point is approved, as shown in the drawings in Exhibit A being Nos. DA-01, DA-02, DA-03 by CMT Architects, all as amended by and built subject to the conditions in Annexure "A" to these Orders. 3. The exhibits are returned to the parties except Exhibits A, C, 6 and 7. 4. No order as to costs. ________________ K G Hoffman Commmissioner of the Court rjs/ljr

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