Rodney Stevens

An appeal to the Land and Environment Court over a Palmers Island development application DA has been lost by Clarence Valley Council costing ratepayers $40,047.14 in legal fees.

At its meeting on September 18, 2018, Clarence Valley Council resolved to refuse DA2021/0303 for a house at 5 Carrington Street after considering a report on the following grounds:

1. Non-compliance with Clause 7.6 of the CVC Local Environmental Plan – ‘Development of land subject to riverbank erosion’ and Clause T7.3 of the CVC Residential Development Control Plan.
2. The location and design of the dwelling will have adverse impacts on the privacy and amenity of the two adjoining properties.
3. The location of the proposed dwelling will overshadow the effluent disposal area at 3 Carrington Street and the proposed effluent irrigation area at 5 Carrington Street will be overshadowed by the existing dwelling at 7 Carrington Street.

After this initial refusal, the application was then considered under an application for review of the determination under REV2022/0002.

On June 28, 2022, council resolved to uphold the decision of refusal on the basis that:

1. Previous recommended refusal by Council staff supported by Council
2. Objections by neighbours
3. LEP & DCP (Clause T7 3c) designed to ensure maximum distance from the riverbank in the designated Palmers Island “Erosion Zone”
4. Climate Change issues have intensified locally since this “Erosion Zone” was established.
5. Front setback should better align with others houses in this streetscape and also minimise distance for provision of power and other services.

A Class 1 Appeal Application was lodged in the NSW Land and Environment Court on 28 September 2022, disputing Council’s refusal of DA2021/0303 for a dwelling house at 5 Carrington Street, Palmers Island.

Council, represented by Marsden’s Law Group, obtained expert town planning advice from David Waghorn to assist in its defence and when engineer Gary Blumberg advised he couldn’t support defence of the appeal on engineering grounds, another coastal engineer, Angus Jackson was engaged.

Councils statement of facts and contentions included riverbank erosion, streetscape, privacy, overshadowing and that the development was not in the public interest.

When an on-site conference was held on February 28, 2023, council consented to amending plans to increase the riverside boundary setback of the dwelling house from 5m to 10m, and both parties reached agreement.

On March 14, 2023, Commissioner of the Court, Susan O’Neill made a judgement to uphold the appeal and grant consent, subject to conditions, to a dwelling at 5 Carrington Street, Palmers Island.

At the May 23 CVC meeting, councillors will vote on the officer’s recommendation that council:

1. Note the judgement made by the NSW Land and Environment Court to uphold an appeal (Case No. 2022/00390330) and determine Development Application DA2021/0303 by granting consent subject to conditions.
2. Note the legal costs incurred by Council in relation to this matter total $40,047.14 (including GST).
3. Note the budget variation reported in Monthly Financial Report, tabled as a separate item.

The CV Independent will report on the outcome of the motion in the May 31 edition.