Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371

Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371

The development application had to be refused because the proposed access over Lots 41 and 42 served the purpose of the resource recovery facility and was part of one integrated and indivisible activity; as that use was prohibited on Lots 41 and 42, there was no permissible access to Lot 2 and the site was unsuitable. The application also warranted refusal because the right turn movement from Springhill Road into Five Islands Road and weaving manoeuvre into the site were potentially unsafe and dangerous, and the proposed Truck Management Plan did not satisfactorily address that risk.

Jurisdiction
Australia
Judgment Date
14 November 2011
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 2009/1636 / Hearing and Determination of Appeal
Outcome
Appeal dismissed; Development Application 2009/1636 refused.
Legal Topics
['resource Recovery Facility' 'permissibility of Development' 'characterisation of Use' 'traffic Access' "director General's Requirements" 'zone Objectives' 'amenity Impacts']
['planning and Environment' 'development Consent' 'land Use'] ['resource Recovery Facility' 'permissibility of Development' 'characterisation of Use' 'traffic Access' "director General's Requirements" 'zone Objectives' 'amenity Impacts']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 2009/1636 / Hearing and Determination of Appeal

Legal Issues

  1. 1 ['Whether the proposed development was permissible where access to Lot 2 was proposed over Lots 41 and 42.' 'Whether traffic access to the site, including right turn and weaving movements from Springhill Road and Five Islands Road, was acceptable or could be managed by a Truck Management Plan and Driver Code of Conduct.' 'Whether the exclusion of a 4,000 sq m area for future council use prevented assessment of cumulative impacts.' "Whether the environmental impact statement adequately analysed feasible alternatives required by the Director-General's Requirements." 'Whether the proposal was inconsistent with the 7(b) zone objectives and whether cl 39 of Wollongong Local Environmental Plan 1990 displaced cl 9(3).' 'Whether amenity impacts including noise, dust and proximity to residential properties and a school justified refusal.']

Ratio Decidendi

The development application had to be refused because the proposed access over Lots 41 and 42 served the purpose of the resource recovery facility and was part of one integrated and indivisible activity; as that use was prohibited on Lots 41 and 42, there was no permissible access to Lot 2 and the site was unsuitable. The application also warranted refusal because the right turn movement from Springhill Road into Five Islands Road and weaving manoeuvre into the site were potentially unsafe and dangerous, and the proposed Truck Management Plan did not satisfactorily address that risk.

Court Disposition

Appeal dismissed; Development Application 2009/1636 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2009/1636 to use part of an existing quarry for a resource recovery facility at 133-141 Five Islands Road, Cringila is refused.' 'The exhibits are returned with the exception of exhibits 2 and 101.']