Gardiner v Central Coast Council [2020] NSWLEC 1077

Gardiner v Central Coast Council [2020] NSWLEC 1077

Safe evacuation cannot be adequately achieved via the two identified Marathon Street routes due to excessive hazard (H3 category) for children and elderly residents. The creation of an emergency easement over 15 Leppington Street provides a safe evacuation route and satisfies the precondition in cl. 7.2 of the Wyong LEP 2013. Approval is granted subject to deferred commencement requiring registration of the easement within 24 months.

Parties
Applicant: Peter Wesley Gardiner; Applicant: Nicola Jane Gardiner; Respondent: Central Coast Council
Jurisdiction
Australia
Judgment Date
25 February 2020
Procedural Posture
Class 1 Appeal / Final Determination After Conciliation and Hearing
Outcome
Appeal upheld; consent granted subject to conditions
Legal Topics
Development Application, Flood Risk, Evacuation Route, Easement, Subdivision, Deferred Commencement Conditions
Planning and Environment Development Application Flood Risk Evacuation Route Easement Subdivision Deferred Commencement Conditions

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Parties

Peter Wesley Gardiner

Applicant

Nicola Jane Gardiner

Applicant

Central Coast Council

Respondent

Procedural Posture

Class 1 Appeal / Final Determination After Conciliation and Hearing

Legal Issues

  1. 1 Whether development consent should be granted for subdivision of flood-affected land
  2. 2 Whether there is a safe evacuation route as required by local planning instruments
  3. 3 Whether creation of an easement for emergency evacuation is warranted

Ratio Decidendi

Safe evacuation cannot be adequately achieved via the two identified Marathon Street routes due to excessive hazard (H3 category) for children and elderly residents. The creation of an emergency easement over 15 Leppington Street provides a safe evacuation route and satisfies the precondition in cl. 7.2 of the Wyong LEP 2013. Approval is granted subject to deferred commencement requiring registration of the easement within 24 months.

Court Disposition

Appeal upheld; consent granted subject to conditions

Orders

  • The appeal is upheld.
  • Development consent is granted to a two lot residential subdivision, demolition of a garden shed and removal of one tree at 16 Marathon Street, Wyong (Lot 14 Section 2 DP 4361), subject to the conditions in Annexure 'A'.