Bonim Stanmore Pty Limited v Marrickville Council

[2007] NSWLEC 497

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Bonim Stanmore Pty Limited  v Marrickville Council [2007]  NSWLEC 497

PARTIES:
APPLICANT
Bonim Stanmore Pty Limited

RESPONDENT
Marrickville Council

FILE NUMBER(S):     11460  of       2005

CATCHWORDS: Appeal :- Remittal of Hearing, [2006] NSWLEC 771

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CASES CITED:

CORAM:        Hoffman C

DATES OF HEARING:          10/07/2007

EX TEMPORE DATE:           10 July 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr I Hemmings, barrister
Instructed by Mr G. Farland
of Landerer and Co.

RESPONDENT
Mr Galasso, SC
Instructed by Mr Christmas
of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

10 July 2007

11460 of 2005                 Bonim Stanmore Pty Limited v Marrickville Council

JUDGMENT

1. This is an appeal No. 11460 of 2005 between Bonim Stanmore Pty Limited with Cavendish Holt Pty Limited v Marrickville Council. The judgment (2006) NSWLEC 771 has been remitted following a s 56A review by his Honour Justice Biscoe in judgment (2007) NSWLEC 286. In that decision his Honour found of the six grounds raised only one error of law had occurred. It related to para 62 of the original judgment which stated,

   “In coming to a conclusion on this matter I bear in mind that the proposal is far in excess of that size and creates a new traffic generator on a main road that carries about 24,000 vehicles per day.  Unlike the club, the supermarket would generate traffic in peak periods, not out of peak.  It would cause through additional turning movements a reduction in the efficiency of the main road that in the future must carry ever more traffic.”

2. The words the subject of error was the last clause, “that in the future must carry ever more traffic.”  His Honour found in his review that whilst part of the Court-appointed traffic expert Mr Pindar’s evidence was,

   “On a matter of public interest it is wrong to put a traffic generator such as the proposal on a main road due to the need to keep such thoroughfares free flowing and as safe as possible.”

3. Included in that paragraph of evidence at the end was the words in contention

   “especially with future growth of traffic in mind.” 

4. There had been later than that statement a joint report in Exhibit G by Mr Pindar and the applicant’s traffic expert, Mr Bertacco, about traffic volumes on Stanmore Road and they had agreed the recent trend of traffic volumes was down, not ever-increasing, although no details on this were tendered.  At this remittance the applicant handed up an affidavit by Mr K W Dobinson showing the source of the expert’s joint statement.  It contained a graph showing traffic volumes on Stanmore Road peaked in 1996 at 29,957 vehicles per day and by 2005 it had declined to 22,969 vehicles per day. 

1. Also, during oral examination in the original hearing Mr Pindar had indicated he had asked the applicant to investigate growth of traffic volumes on Stanmore Road in relation to the proposed traffic lights for vehicles using the basement car park and the results showed there was no growth.

1. Whilst it is true that I wrongly attributed the final evidence to be that Stanmore Road would have increased traffic in the future, I cannot escape the oral evidence Mr Pindar gave at a time after he knew traffic volumes would not increase.  He maintained the principle that traffic generators such as the proposal on a main road is undesirable due to the turning movements affecting the free flow and safety of traffic. 

1. It is true he said in the final determination of whether or not to allow the proposal he would defer to the Roads and Traffic Authority.  The evidence in Exhibit M from the Roads and Traffic Authority was, in part, that ordinarily it would not support a new intersection but in this case the proposal incorporated the relocation of existing pedestrian lights at Holt Street and due to that and other particular circumstances of this case it would agree to the intersection.

1. Whilst the Roads and Traffic Authority has a determining role for approval, or not, of a new intersection on the main road, should the appeal be upheld, Mr Pindar’s own expert opinion to assist the Court remained that the intersection would affect the free flow and safety of traffic on the main road and would be undesirable.  

1. Also, the other matters of good traffic design he gave in evidence and are referred to in para 27 of the judgment (2006) NSWLEC 771 were not the subject of review. I assume that they remain as part of the evidence on which my judgment was based plus local residents’ concerns referred to in paras 28 to 30.

2. In reviewing the matter in this way I find no reason to change the orders in the judgment (2006) NSWLEC 771. The planning issue is determinative in its own right independent of the traffic matters.

1. Therefore the orders of the Court are:

   1.          The appeal is dismissed.

   2.The exhibits handed up are returned to the parties being Exhibits C, D, H, J, K, L, M, N and Exhibit 11.

   ___________________

   K Hoffman
   Commissioner of the Court

   DK