Lammas Investments Pty Limited v Auburn Council [2007] NSWLEC 82

Land and Environment Court of New South Wales

CITATION : Lammas Investments Pty Limited v Auburn Council [2007] NSWLEC 82

APPLICANT Lammas Investments Pty Limited PARTIES : RESPONDENT Auburn Council

FILE NUMBER(S) : 10876 of 2006

CORAM: Moore C

KEY ISSUES: Development Application :-

DATES OF HEARING: 8 February 2007

EX TEMPORE JUDGMENT DATE : 8 February 2007

APPLICANT Mr A Galasso SC INSTRUCTEDF BY LEGAL REPRESENTATIVES: Andresakis and Associates

RESPONDENT Mr D Baird, solicitor Maddocks Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Moore C

8 February 2007

10876 of 2006 Lammas Investments Pty Limited v Auburn Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Auburn Council (the Council) on 3 May 2006 of Development Application 170/2005 for the demolition of two existing dwellings at 38 and 40 Regent Street, Regents Park (the site) and to construct in their place a single-storey childcare centre to accommodate 39 children. There is proposed to be at grade car parking, landscaping and drainage works conducted on the site. 2 As part of the applicant's application process to the Council, a variety of reports were provided including a report from Day Design Pty Limited dealing with acoustic issues (the Day Design report) and by Planning Project Associates, a then extant traffic consultancy. 3 The Day Design report dealt with acoustic issues, particularly the question of noise impacts at a property immediately to the west, being a property known as 1 Michel Court.

4 The proprietors of that property, Mr and Ms Amores, have lodged several objections to the proposal. Those objections are, in essence, noise impacts on their property, traffic impacts in the vicinity and, in a second and subsequent objection in December 2006, a concern about the separation of traffic departing from the site on the original plans from the pedestrian crossing immediately to the north.

5 Two other persons also lodged objections to the proposals. They are the proprietors of the property immediately to the south and the proprietor of a property, which has a battleaxe entry, immediately to the north of the site. 6 During the course of this morning's inspection with the legal representatives of the parties, I had the opportunity to inspect the matters raised by each of those objectors, even though the matter was proposed to be resolved by consent orders.

7 The three objectors, I am satisfied, have been notified by the solicitors for the Council, by letter dated 11 January 2007 in each instance, that the Council proposed to enter into consent orders, providing each of the objectors with a copy of the amended plans and providing a copy of the conditions that were proposed be presented by the Council to this hearing. 8 I am satisfied that each of those notifications is in accordance with the requirements of the Consolidated Practice Direction for the purposes of enabling objectors to be informed of the terms of proposed consent orders and the time and place of the hearing associated with them. None of the objectors indicated to the Council's solicitors that they wished to be heard concerning their objections. 9 Despite the fact that they did not wish to be heard, as I indicated, I inspected each of the matters that were involved.

10 With respect to the property immediately to the south, there being no objection from the Council, the applicant has agreed to erect a Colorbond fence two metres high along that boundary from a point commencing at the building line (provided the proprietor of the property immediately to the south continues to express a wish that that occur). 11 With respect to matters of noise to the property at the west, the Day Design Report, coupled with the internal assessment of the relevant officer of the Council, concludes that relevant noise guidelines will only be complied with at the bedroom window of 1 Michel Court if a noise attenuation barrier is erected along that boundary.

12 The original design of the noise attenuation barrier was not considered acceptable for reasons of overshadowing.

13 The application now involves the erection of a masonry wall to 1.8 metres along that boundary with an appropriately thick Perspex barrier a further one metre high above that. That is compliant with the technical information contained in the Day Design report as reducing the noise at the appropriate receptor locations to levels within the EPA's guidelines. I am satisfied that that is an appropriate response both to the acoustic and visual impacts of that element. 14 The final matter which has warranted some consideration is the matter relating to the location of the exit point from the development and its proximity to the pedestrian crossing serving the school on the other side of the road, immediately to the north of the property.

15 Having inspected the site, I was concerned that vehicles exiting in close proximity to the pedestrian crossing and turning left towards the crossing would have their drivers distracted significantly by looking to the right to see if there was traffic approaching which would potentially collide with that vehicle rather than to the left and observing whether or not any pedestrians were endangered. 16 As a consequence of that matter being raised by Mr and Ms Amores and my concern on the view, informal evidence was taken by telephone from Mr John Coady, the author of the applicant's traffic report. Mr Coady indicated that an acceptable alternative design would have, in lieu of the exit to the north and the entry to the south, a reversal of the traffic flow movements within the site with a left turn inward only at the entrance point and turns both to the north and the south at the exit point.

17 I am satisfied that that is an appropriate response to what would otherwise be a significant and otherwise unsatisfactory potential risk of collision with children on the pedestrian crossing. 18 In addition to that, as a result of discussions this morning, the applicant has agreed to a condition that will require the insertion of a number of striped lane divider bars immediately in front of the driveway which will be the access to the pre-school so as to provide some physical discouragement to drivers travelling in a southerly direction making an unauthorised right-hand turn into the site. 19 The remaining matter of objection which is raised by the proprietor of the battleaxe allotment concerns matters of demand for pre-school places and his own unsuccessful endeavours to date with Council to approve a pre-school development he is proposing for that site.

20 It is long settled that matters of economic competition and the like are not appropriate matters for consideration in the making of planning determinations in this Court and I decline to take any regard to that objection on that ground. 21 As a consequence of that, having considered all of the objections and the matters now incorporated to respond to them, I am satisfied that, by consent, the appeal should be upheld and Development Application 170/2005 for the demolition of two existing houses and the construction of a single-storey childcare centre with associated parking and landscaping can be determined by the granting of development consent subject to the conditions proposed with the minor amendments that will be required to them. I note that the parties have agreed that there should be no order for costs. Exhibits A and 2 will be retained.

Tim Moore Commissioner of the Court

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