Fegeta Pty Limited v Campbelltown CC

[2005] NSWLEC 232

Land and Environment Court

of New South Wales

CITATION:

Fegeta Pty Limited v Campbelltown CC [2005] NSWLEC 232

PARTIES:

APPLICANT
Fageta Pty Limited

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

11250 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Consent :-
Modification application
Extension of trading hours of a service station/convenience store
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
.

CASES CITED:

Newbury District Council v Secretary of State for the Environment [1981] AC 578 ;
.

DATES OF HEARING:

7 March and 28 April 2005

EX TEMPORE JUDGMENT DATE:

04/28/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister
INSTRUCTED BY
B J Macree & Co

RESPONDENT
Mr A Seton, solicitor
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

28 April 2005

11250 of 2004 Fageta Pty Limited v Campbelltown City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of an existing development consent which is subject to detailed conditions which have been amended by the orders of the Court in these proceedings.

These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 concerning an application seeking to extend the trading hours of a service station and convenience store located at 104 Lindesay Street, Campbelltown.

2 On 7 March, I inspected the site in company with the legal representatives of the parties; took informal evidence from a number of resident objectors and visited two residences in the vicinity in order to enable me to understand the objections of those residents to the proposal.

3 The site presently trades as a convenience store and service station. It is at the northern end of a small neighbourhood shopping centre and immediately adjacent to the premises and on its southern side is a drive through liquor outlet.

4 It was clear to me that the matters that were raised by the objectors fell into three specific categories.

5 The first category concerns the impacts of headlights departing the premises on the bedrooms at the front of a property slightly to the south of the premises but on the opposite side of Lindesay Street.

6 The second relates to concerns raised by one of the residents as to the behaviour of patrons purchasing products from the convenience store and consuming them nearby, or from the conduct of departing patrons behaving in a fashion that might be described as ‘hooning’ in their motor vehicles.

7 Finally, for residents of the street running in an east-west direction but located to the south of the premises (being McLean Road), concerns that there was an adverse noise impact on their enjoyment of their premises by noise emitted or anticipated to be emitted from patrons accessing the premises on extended trading hours.

8 As a consequence of those matters and my consideration on site with the parties of an initial report by Court appointed planning expert, Mr Michael Brown, I asked Mr Brown to conduct a further examination of a number of possible options. These were:

(1) The re-orientation of the access and egress to the premises so that, in lieu of the present position whereby the premises are primarily accessed from the north and vehicles exit onto Lindesay Street at the southern driveway, to reverse that so that they would exit to the north and as a consequence remove the headlight impacts on 107 and 109 Lindesay Street, ;
(2) As to whether there was any merit in restricting the hours of access to the premises from the third driveway point through Ronald Street;
(3) Whether there was any merit in a noise attenuation fence between the north-eastern wall of the bottle shop driveway and the south-western end of the main building on the site.

9 Mr Brown has provided a supplementary report and, having carefully considered its terms, I am satisfied that any benefit which might accrue to the residents of 107 and 109 Lindesay Street by light impact amelioration from reversing the traffic flow within the site would be more than outweighed by the adverse effect of possible traffic conflict together with the uncertainty as to the impact on rooms in 103A Lindesay Street from headlight sweeping if vehicles were to exit from the northern driveway facing Lindesay Street.

10 I am also satisfied, on the basis of Mr Brown’s reports and my observation of the site, that it is not practicable to reverse the traffic flow and that the impacts on the residences at 107 and 109 Lindesay Street are not such as to warrant refusal of the application to extend the trading hours. That position is supported by the council.

11 With respect to the issue of access from Ronald Street, for the reasons set out in Mr Brown’s supplementary report, it is equally impractical to chain that entrance to the premises to achieve any benefit for surrounding residences.

12 As to behavioural impacts of young people gathering adjacent to the shops, although some may arise from patrons of the premises, I am not satisfied that they all do so nor that they would, in any event, warrant refusal.

13 With respect to the noise impact from “hooning” car use, although I accept that it occurs as recounted by the objector, I am not satisfied that it is at a level which would warrant refusal or contribute to refusal.

14 Mr Brown has proposed, with respect to the third issue, that it would be appropriate to erect a short length of 1.8 m high Colorbond fence, along the top of the retaining wall in the location earlier described, as it would have a potentially beneficial noise consequence for residents in McLean Road – particularly for those at 25 and 23 McLean Road.

15 I am satisfied that, as the applicant does not oppose a requirement that such fence be erected, the erection of such fence meets the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599 and is properly able to be imposed as a consequence of this application. I am satisfied that there is a reasonable probability that it will have a beneficial effect and there is nothing in the applicant’s noise assessment filed with the s 96 modification application to the council that would cause me to conclude otherwise.

16 As a consequence, I have come to the conclusion that the application as amended should be granted and that the hours of operation of the development should be permitted to be from 6am to 9pm Sunday to Wednesday and 6am to 10pm Thursday to Saturday subject to a number of variations to the existing conditions of consent.

17 The first of those will require an alteration to the condition that sets out what is the required signage as to the permitted trading hours of the premises contained in condition 13 of the present consent.

18 The vehicle ingress and egress directional signs will need to be modified in accordance with the amended plans under Mr Brown’s hand which are exhibit A.

19 The noise levels in condition 13 will need to be modified.

20 It would seem to me appropriate, in order to provide certainty to parties relying on the consent in future, that I should direct the council to settle with the applicant revised conditions of consent to give effect to this decision.

21 As the conditions are not extensive, that should be in the form of a consolidated set of conditions with the amended conditions being annotated as having been amended as a consequence of my decision so that a single consolidated set of conditions will be available for inspection by any party wishing to do so.

22 As there will need to be some drafting undertaken by the parties to give effect to this decision, I propose to indicate that the orders of the Court will be:

1. The appeal is upheld;
2. The amended application to extend the trading hours of the premises at 104 Lindesay Street, Campbelltown, will be granted;
3. The exhibits, other than Exhibit A, will be returned.

Those orders will be formalised after the electronic filing by the parties in conformity with Practice Direction 2 of 2005 of a consolidated set of conditions to give effect to this decision.

23 In order to ensure that progress of the matter is retained within the Court, I will set the matter down for callover on 31 May subject to two provisos:

1. Liberty is given to re-list the matter before me at 9am on two days notice if required; and
2. If the revised settled conditions are filed electronically prior to that time, I will issue orders in Chambers to give effect to my decision and arrange for the vacation of the callover.

24 I conclude by noting that it is my express intention, as noted to the parties during the course of an exchange with the bar table, that the erection of the entry signs and exit sign and the erection of the proposed 1.8 m high Colorbond fence are to be required to be completed to the satisfaction of the council prior to the coming into effect of the extended trading hours.

Commissioner of the Court