Campbelltown-Minto Merchants' Assoc. Inc. v Campbelltown City Council

[2010] NSWLEC 1346

Land and Environment Court

of New South Wales

CITATION:

Campbelltown-Minto Merchants' Assoc. Inc. v Campbelltown City Council [2010] NSWLEC 1346

PARTIES:

APPLICANT
Campbelltown-Minto Merchants Association Inc.

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10865 of 2010

CORAM:

Morris C

KEY ISSUES:

CONSENT ORDERS :- local markets

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Campbelltown (Urban Area) Local Environmental Plan 2002
Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

CASES CITED:

Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 1222

DATES OF HEARING:

14 December 2010

EX TEMPORE JUDGMENT DATE:

14 December 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr O'Gorman Hughes (Barrister)
AGENT
Mr D R George

RESPONDENT
Mr Walker (Town Planner)

JUDGMENT:

The Land and
Environment Court
of New South Wales

Morris C

14 December 2010

10865 of 2010 Campbelltown-Minto Merchants’ Association Inc. v Campbelltown City Council

This determination was given extemporaneously and has been edited prior to publication.

JUDGMENT

1 Commissioner: This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA662/2007 (the consent) issued by the Court on 17 August 2009 which authorised use of the land at No. 10 Swettenham Road Minto (the site) for a local market. Those proceedings were Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 1222.

2 The modification seeks to amend the approved layout of the site by reconfiguring the approved markets across the balance of the land to which the consent applies. That portion of the site was previously used as a car sales yard. It is intended to increase available on site parking and introduce an ancillary mobile food van and seating area to operate when the market is operating.

The site and its context

3 The site is located on the eastern side of Swettenham Road within the Minto industrial area and comprises Lot 21 in DP 8152515. It is zoned 4(b) – Industry B Zone pursuant to the provisions of the Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP) and is a regular shaped allotment with a frontage of 69m and area of 5382sq m.

4 The site is within the Campbelltown Council (the council) local government area and the council does not raise any issues in relation to the application. The modifications to the layout of the site and the introduction of the mobile food van are agreed between the parties and they are seeking consent orders from the Court.

Background

5 The consent issued by the Court authorised use of part of the site for “local markets”. The remainder of the site was used as a car sales yard. Condition 2 of the consent required the surrender of that development consent. That has now occurred.

The proposal

6 The application involves changes to the approved layout as follows:-

• Use of the entire site, rather that the use of a portion of the land;
• Increase the number of on-site carparking spaces from 58 to 95;
• Reconfigure and increase the number of stalls from 24 to 28. Of those stalls, 25 are to include a vehicle as part of the stall;
• Demolition of the former car sales yard office building;
• Provision of an ancillary mobile canteen facility;
• Associated landscaping.

7 The council has submitted a planning assessment report in relation to the application which indicates that the modified layout will comply with all aspects of the relevant controls which are found in the LEP, the Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment, and Campbelltown (Sustainable City) Development Control Plan 2009 (the DCP).

8 A local market is a use that is specifically defined in the Dictionary to the LEP as being “a place used for a market by or for a community group or merchants’ association.” A local market is permissible with consent in Zone 4(b) Industry B Zone. A market is considered by the council to be consistent with the objectives of that zone.

9 The report also concludes that the modification “is generally consistent with the Vision’s (the council’s policy document Campbelltown 2025 Looking Forward) desired outcomes when giving regard to the design and level of impact on adjoining development and the locality.

10 In considering the merit issues of the application, I note that the parking provided exceeds that required by the consent and the plans make appropriate provision for pedestrian movement across the site and allow for effective traffic movements around the carpark which is separated from the stall areas. Subject to completion of landscaping of the setback to Swettenham Road and compliance with the appropriate food regulations, the conditions of consent imposed by the Court have been found by the council to satisfactorily address the operation of the market.

11 The introduction of the food premises and alteration to the site layout requires modification and addition of conditions to the consent and the parties have agreed to those conditions.

Conclusion

12 I am satisfied that the requirements of s96(2) of the Act are met. In consideration, as required by s96(3), of the relevant matters raised by s79C of the Act, I am also satisfied that the modification application should be approved and that the consent orders ought to be made.

13 By consent, the Court orders:

1. The appeal pursuant to s96(8) of the Environmental Planning and Assessment Act 1979 relating to an application to modify development consent DA662/2007 is upheld.
2. The consent granted by the Court on 17 August 2009 for the use of the land at Lot 21 DP 8152515, No. 10 Swettenham Road Minto as a local market is modified as follows:

In accordance with the agreed conditions tendered as Exhibit D,
• modification to condition 1 to amend the approved plans,
• deletion of condition 2,
• modification to conditions 3 and 5 to reflect the increased stall and parking numbers,
• modification of condition 24 regarding the use of concrete blocks to provide barriers within the approved carparking area and
• the addition of what will be conditions 25 to 51 which relate to the food premises, noting that draft condition 45 has been deleted.
The consolidated conditions of consent are to be included as Annexure A to the Orders.

3. The exhibits, other than exhibits A and D are returned.

_____________________

Sue Morris

Commissioner of the Court