Davidson v Council of Sydney of Sydney

[2008] NSWLEC 73

Land and Environment Court

of New South Wales

CITATION:

Davidson v Council of Sydney of Sydney [2008] NSWLEC 73
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Stephen Davidson

RESPONDENT
Council of City of Sydney

FILE NUMBER(S):

10915 of 2007

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- Limited time consent for car wash, part of land required for future road and parking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 55
South Sydney Local Environment Plan 1998

DATES OF HEARING:

21/12/2008

 
DATE OF JUDGMENT: 

20 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms H. Irish, barrister
instructed by Mr B.T. Goldsmith
of B T G Planning

RESPONDENT
Mr S. Kondilios, solicitor
with Ms N. Johnson, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 February 2008

10915 of 2007 Stephen Davidson v Council of Sydney City

JUDGMENT

Background.

1 Mr Davidson has lodged an appeal against condition 10 of Council’s development consent for a car wash facility at 19-21 Lachlan Street, Waterloo. This condition restricts the car wash operation to a 3 year period. Mr Davidson contends that a reasonable time period is 9 years. Consequently the only issue in these proceedings concerns the time period limitation for this consent, because all the other conditions are agreed by the parties.

2 The development involves:

• Demolition of existing buildings and structures with the exception of the rear wall.
• Construction of a car wash, associated cafe, shade sail structures, a recycling equipment room, staff amenities and storerooms.
• The cafe proposes indoor and outdoor seating for 76 people.
• Proposed hours of operation; Monday to Friday 7 a.m. to 7 p.m., Saturday 8 a.m. to 5:30 p.m. and Sunday 9 a.m. to 5 p.m.

The site.

3 The site is known as Lot 18 DP 610311. It has an area of 1500 sq m with its main frontage of 24.58m to Lachlan Street and secondary frontage of 33.3m to Murray Street.

4 The site was previously used as a timber yard and is currently vacant.

5 Directly to the east of the site are a brick substation building, a kitchen and floor showroom, a workshop and three terrace houses. To the east of Amelia Street are recently completed residential apartments and some under construction. Directly to the west of the site is a large factory building, occupied by HPM. To the south across Murray Street is metal scrap yard and to the north of the site, across Lachlan Street is the former ACI site, which now contains a number of residential high-rise buildings.

• South Sydney Local Environment Plan 1998: Under which the site is predominantly located in the Mixed Uses 10 (b) Zone and the northern portion of the site is affected by and Arterial Road Reservation 9 (a) Zone. The development is permissible with consent.
• South Sydney Development Control Plan 1997 - Urban Design:
• South Sydney Development Control Plan No 11 - Transport Guidelines for Development, 1996.

6 Detailed evidence was presented by:

• Ms C Edney, Town planner with City of Sydney,
• Mr B Goldsmith, Consulting town planner for applicant,
• Mr S Davidson, Applicant,
• Mr D Royal, Owner of neighbouring property.
  

7 The question posed for the Court concerns the appropriate time period for the car wash to operate. Insofar as a number of other planning issues were canvassed, no substantive submissions were made that the consent be set aside or other conditions amended.

8 The Councils submissions are that the 3 year period is appropriate, although it may be extended to 5 years in some circumstances.

9 The applicant accepts that a limited time consent is appropriate and contends that the viability of the car wash is dependent on a 9 year period. However, a 7 year could be marginal.

10 Opposing the extended time period, Ms Edney says that:

• The car wash is located within the Mixed Uses 10 (b) zone where the objective is to allow up to 25% of the floor space for non-residential uses.
• As the car wash is 100% non-residential use and is situated near surrounding residential development, then the consent should be restricted to a short period so the orderly development of this area is not impeded and the residents of new developments are not exposed to undesirable disamenity.
• The site is affected by a proposed roadway and open space restriction, which will ultimately limit the area of the site available for development. These roadworks and open space will form a link to Potter Street and Gadigal Avenue.
  

11 Mr Goldsmith supported the extension of the time period to enable the car wash to operate on the basis of an interim use until detailed plans and programmes are available for the acquisition of the part of the land required. He says that the applicant has made offers to Council to purchase the land, but has received no reply. Also, plans were provided to Council to demonstrate that the car wash could be adjusted without prejudice to the future roadworks.

Conclusions

12 The intent of the current planning controls is that part of the subject site is subject to a future road reservation. When this occurs, the proposed car wash would require alterations and likely closure. Also, the controls provide that up to 25% of the site should be residential and the proposal does not comply with this.

13 It is apparent however that this area is in a planning transition phase where the conversion of older industrial developments is slowly occurring and this requires an upgrade of infrastructure. However, there are no detailed plans or programmes for the acquisition and implementation of the proposed road and parkway system that affect the subject land. They are not works shown in any relevant s 94 Contribution Plan, where a common programme period is 5 years.

14 Accordingly, it appears to me that the subject roadworks and parkway are of low priority at this stage and unlikely to occur within 5 years. It is also common in programming public works for additional items to be identified in subsequent 5 years (or other appropriate period) programs. Again, the subject roadworks are not identified.

15 Therefore, taking into account the rate of development in this area and the low priority for acquisition of this land, it seems reasonable to me for the applicant to use the land, as approved by Council, on an interim basis for 7 years. In my assessment, this allows the use over the common 5 year programming period, plus a further 2 years, during which time the priority for these works can be determined, without affecting the orderly development of the land and surrounding area.

16 Whilst this is less than the applicants 9 year claim, nevertheless this time period can be reviewed in the future by way of a s96 modification. This would then be assessed on in its merits, subject to the prevailing circumstances at that time.

1. The appeal is upheld.
2. Condition 10 of development consent No D/2006/1419 is amended to allow a time period of 7 years for the carwash use.
3. The exhibits may be returned.

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05/03/2008 - Additions to paragraph 1 - Paragraph(s) 1