Alexander and Dwyer Group v Warringah Council

[2006] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION:	Alexander & Dwyer Group v Warringah Council [2006] NSWLEC 43
PARTIES:	APPLICANT Alexander & Dwyer Group RESPONDENT Warringah Council
FILE NUMBER(S):	10042 of 2005
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Alterations and extension to Flower Market - waste water - building materials colour
LEGISLATION CITED:	Environmental Planning and Assessment Act
DATES OF HEARING:	31/01/2006
EX TEMPORE JUDGMENT DATE:	01/31/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr O'Gorman Hughes, solicitor SOLICITORS Minter Ellison RESPONDENT Mr D Bird, solicitor SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 January 2006

10042 of 2005 Alexander & Dwyer Group v
Warringah Council
JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

1 This appeal was lodged against council’s deemed refusal of a development application for alterations and extensions to the Terry Hills Flower Market building and ancillary buildings at 287 Mona Vale Road, Terry Hills and today the parties agreed that the appeal be heard by way of an on-site hearing. The full details of the site, the proposed development and planning controls are contained within the Statement of Basic Facts, on which I rely.

2 Insofar as the number of issues were identified initially, further conferencing between the parties during the appeal processes resulted in extensive amendments by the applicant in response to the remaining issues.

3 The description of the final amended proposal and its compliance with the controls is contained in the detailed assessment report of Don Fox Planning which is Exhibit B. As a result of the amendments, council now agree to Consent Orders, subject to resolution of conditions relating to waste water treatment and the material specification for the roof extension.

4 However, there were a number of objectors to the development and they were notified on today’s hearing. In particular, Mr P Addison expressed some concerns about the efficiency of the proposed waste water system and his preference for connection of the waste water to the sewerage system. Other objectors supported his concern about potential pollution and offensive odour.

5 The other outstanding issue concerns the colour of the roof, which council prefers to be of a more recessive colour than the lighter colour bond roof, proposed to match the existing roof.

6 Having the considered the various submissions put before the Court and undertaken a view, I consider it appropriate to grant the consent orders with the further amendments as agreed at today’s on-site hearing. They deal with the method and frequency of the effluent water quality monitoring. Having heard Mr Naji’s evidence, who is a water quality expert, I am satisfied that the waste water system complies with current practice and the conditions requiring periodically monitoring, with major review of the frequency of monitoring within the first three years, is reasonable in the circumstances so that any risk of pollution is minimised and within acceptable limits.

7 With respect to the objections, I understand that the proposal complies with council’s current policy, which does not require redevelopment to connect to the sewer where alternatives such as on-site waste water treatment systems may be acceptable. I rely on council’s submissions in this regard, that the proposal meets its policy requirements for waste water treatment and will ensure satisfactory environmental outcome.

8 The issue about the roof colour involves a subjective assessment. I am satisfied with the agreement reached by the parties for the extension of part of the roof in the matching colour to the existing, together with contrasting darker colour elements, represents a reasonable compromise to achieve the appearance and the architectural integrity of the proposal whilst reasonably achieving council’s objective to make the roof appear recessive. Accordingly I accept the architects and the planner’s resolution of this matter.

9 By reference to the Don Fox Report, I am satisfied that the relevant controls have been reasonably complied with so the following consent orders should be made:

1. The appeal is upheld.

2. Development Application No. 2004/1012 proposing alterations and additions to the Hills Flower Market site at 287 Mona Vale Road, Terry Hills, is determined by the granting of development consent subject to the conditions in Annexure “A”.

3. The exhibits be retained on file.

10 The Court notes the parties agreement to no order as to costs.

___________________
R Hussey
Commissioner of the Court
rjs