Polistina v Campbelltown City Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr G Newport, Barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, Solicitor of Mardens Law Group

JUDGMENT:

• 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10032 of 2009 Polistina, Anthony -v- Campbelltown City Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 COMMISSIONER: The applicant in these proceeding is seeking consent to use the rear portion of the site known as No. 12 Memorial Ave Ingleburn for the purposes of outdoor storage of building form work and scaffolding.

2 The Council refused the development applicant in July 2008 and confirmed it's refusal in the S82A review.

3 The matter proceeded today by way of an on-site hearing under S34B of the Land and Environment Court Act. The site inspection was carried with the parties and the Court had the benefit of expert evidence. On behalf of the applicant Mr Craig McLaren consultant traffic engineer and Mr Chris Weston consultant planner gave evidence. For the respondent Council Mr Alan Hill senior development engineer, and Mr Robert Walker senior development planner gave evidence to the Court. 4 The subject site is rectangular in shape with a width 15.24 m and a depth of some 47 m yielding 720 sq m in area. Currently erected on the site is a single storey dwelling that is proposed to be retained in the joint use of the site. The proposal is for the use of the rear portion of the site only that has a large concrete slab and double carport. Access to the rear of the site is via a driveway on the eastern side of the site and this adjoins an unnamed access road to a large area of open space including an oval at the rear. To the east of the laneway is Memorial Park which has frontage to Memorial Avenue. An 1.8 m fence has been erected for approximately half the length of the common boundary with the open space laneway and for the rear boundary that adjoins the open space.

5 The proposal is for an open space storage area of approximately 75 sq m and storage area under the open carport of approximately 27 sq m with a single car parking space within the same carport structure. A large part of the rear portion of the site apart from the storage provides for the manoeuvring of a truck that services the form work business.

6 The subject site is zoned industrial 4(b) under the Campbelltown (Urban Area) Local Environmental Plan 2002. The proposal is permissible with consent being characterised as a warehouse as defined in the LEP. The zone objectives include: (a) to encourage activity that will contribute to economic and employment growth,

(b) to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to near by and adjoining development

(c) and ensure development will not be carried out if the process is to be carried on, the transportation to be involved or the plant, machinery or materials to be used interfere unreasonably with the amenity of the area. Except as otherwise provide by this plan consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

7 The relevant development control plan of 2007 is known as the Campbelltown Sustainable City DCP and part 6 is for industrial development. Car parking and access provisions are contained in 6.4 and the objectives are: - To ensure all required car parking is accommodated on-site - To maintain the free flow and safe movement of traffic into and out of the site - To ensure that on-site car parking does not detract from the visual character of the street scape.

8 The design requirements are that parking and loading be designed in accordance with the Australian Standard AS2890.1 & 2 except as otherwise provided by the DCP subsection E that states "sufficient space shall be provided on site so that no vehicle should be required to make no more than a three point movement to enter and exit the site in a forward direction."

9 The outdoor storage provisions are contained in 6.6 and the objectives are: - To ensure that outdoor storage areas are appropriately accommodated on-site - To reduced the visual impact of outdoor storage areas on the streetscape and surrounding areas. 10 The design requirements provide for storage areas to be adequately screened from public view and that materials stored should not be stacked higher than an approved screening structure that should be of high quality materials.

11 During the course of the hearing this morning the issue of storage and the area required was resolved. This is achieved by the storage of materials within the carport to be no higher than 2.2 m above ground level and for the storage on the open concrete slab at the rear to be no higher than 1.8 m.

12 From the inspection the storage areas were viewed from Memorial Park and from the rear of the site to ascertain the impact on public views of the storage of the form work. Earlier today the applicant proposed that the colourbond boundary fence could be increased in height with the addition of lattice in a metal frame when the storage of materials to 2.2 m in height was proposed. However it could be seen from the plan that the storage area will be larger than the current storage area and the applicant did not press a height of 2.2 m but storage to only 1.8 m with the existing colourbond fence to remain at the current height. It was agreed between the planners storage in the carport area to 2.2 m will not create an unreasonable impact when viewed from the park or public domain. 13 The issues in the proceedings were narrowed and relate to the size of the vehicle that should be used to service the formwork business operation. The Council proposes a condition that the applicant must ensure that no vehicle greater than 8.8 m in length shall enter the site to load or unload any building formwork or scaffolding or any other goods or materials. The Applicant is seeking a vehicle of 9.9 m.

14 The traffic engineers prepared a joint report. Mr Hill is of the opinion that the vehicles should be limited to 8.8 m in length because a greater length would require more than a three point turn on the subject site and this is contrary to Council's DCP that provides for efficient manoeuvring to ensure vehicles enter and exit the site in a forward direction. He is of the opinion that a driver of a longer vehicle would be likely to reverse on to or off the site and this would be contrary to the objective to maintain the free flow and safe movement of traffic into and out of the site from the local road system.

15 Mr McLaren on the other hand is of the opinion that while a seven point turn is required to manoeuvre a 9.9 m vehicle four of these point turns are in the vicinity of approximately 1 m each. In his opinion this is not a difficult manoeuvre and a larger truck on site is be able to enter and exit in a forward direction. Furthermore, only one truck is used to load and unload materials on the site and the driver would therefore be must familiar with the manoeuvring operations required. 16 In my assessment of the development application as required by the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 the Court must give the provisions of the DCP central consideration and a focus for assessment. I have given proper and genuine consideration of the DCP provisions and I am also mindful as set out in Zhang v Canterbury City Council [2001] NSWCA 167 that a DCP is not mandatory but discretionary.

17 In my assessment of the merits of the application I am satisfied that a variation to the DCP guideline control is justified in the circumstances of the case for the reason that it is one truck that services the business operation with a limited number of movements per day and there is no conflict with other vehicles on the site. While a seven point turn is required the manoeuvring is not difficult and would not encourage drivers to reverse on or off the site. Furthermore, there is a condition of consent that requires all vehicles to enter and exit the site in a forward direction and this can be complied with in a reasonable way.

18 While the numeric design requirement in the DCP of a three point turn is not met by the development application I am satisfied that the DCP objectives including "to maintain the free flow and safe movement of traffic into and out of the site" are met by the proposal. An holistic and common sense interpretation of the DCP means the proposed development is satisfactory in my assessment of the evidence and strict adherence to the DCP requirement is not necessary in the circumstances of this case.

19 The issue of precedent was also raised and while this is a relevant matter for my consideration in the circumstances of the case the site is in transition from the previous use of a residential dwelling to an industrial purpose and the applicant is therefore only seeking a consent for a trial period of two years in the event that redevelopment may then take place. I am also satisfied that with a trial period of two years this will allow the Council to assess the operational use of the site and if the applicant sought to continue the use then a fresh application would be required to be made to the Council. On the question of precedent I refer to the judgment of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 and given the circumstances of this case refusal on the basis of precedent is not warranted. 20 In my overall assessment of the merits of the application I have determined there are no issues on impacts that would warrant refusal. The circumstances of the use being transitional also meets the objects of the Act under S5 for orderly and economic development and as such approval for a trial period is appropriate in the circumstances of this case.

21 Accordingly on the basis of my assessment above the formal orders of the Court are:

1. The appeal in respect of the property known as No. 12 Memorial Ave Ingleburn is upheld.

2. The development application submitted to Campbelltown City Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure A.

3. The exhibits are returned with the exception of: exhibit A, the plan, and exhibit 4, the conditions.

      Jan Murrell
      Commissioner of the Court
      ajl

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