Homemaker Hub Pty Limited v Strathfield Council (No 2)

[2009] NSWLEC 1318

Land and Environment Court

of New South Wales

CITATION:	Homemaker Hub Pty Limited v Strathfield Council (No 2) [2009] NSWLEC 1318
PARTIES:	APPLICANT Homemaker Hub Pty Limited RESPONDENT Strathfield Council
FILE NUMBER(S):	11199 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- dispute over conditions of consent following preliminary findings on merits
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	Submissions on preliminary findings 25 August 2009
DATE OF JUDGMENT:	29 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC with Mr M Staunton, barrister SOLICITORS Gilbert + Tobin RESPONDENT Mt T Hale SC SOLICITORS Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 September 2009

11199 of 2008 Homemaker Hub Pty Limited v Strathfield Council (No 2)

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 2008/087 by Strathfield Council (the council) for the change of use and alterations and additions to part of an existing building at 1 - 5 Underwood Road, Homebush (the site) to allow for bulky goods retailing and associated car parking.

2 On 10 August 2009, preliminary findings were made that indicated development consent could be granted subject to the amendment of the conditions to reflect the preliminary findings. The following directions were made:

Directions
The findings in the judgement require the preparation of additional conditions and the amendment to the council's draft conditions of approval.
The amendments include:
• the deletion of the applicants conditions providing the requirements for land uses that are deemed as bulky goods uses and their replacement with a condition requiring development consent be granted for all bulky goods tenancies,
• the preparation of a deferred commencement condition requiring the approval of the council for a development application providing for additional parking that provides for a minimum of 1928 spaces, and
• the preparation of a deferred commencement condition to satisfy the RTA requirements for the extended slip lane in Homebush Drive.

  These matters are best left to the parties to provide through discussion rather than being prepared by the Court. Specific directions regarding the filing of conditions that reflect the judgement will be made after discussion with the parties. Liberty will also be granted to the parties to approach the Court on 24 hours notice if there is any disagreement on the preparation of the amended conditions or some clarification is required.

  Following the filing of the conditions, based on this judgement, Final Orders will be issued in chambers and will take the following form:
  
  1. The appeal is upheld.
  2. DA 2008/087 for the change of use and alterations and additions to part of an existing building at 1 - 5 Underwood Road, Homebush to allow for bulky goods retailing and associated car parking is approved subject to the conditions in Annexure A.
  3. The exhibits are returned with the exception of exhibit L.
The conditions

3 The parties provided written submissions on the conditions and there were a number of areas of disagreement. The disagreement related to:

Deferred commencement conditions 1 and 2:

4 The preliminary findings require the parties to provide deferred commencement conditions for the extended slip lane and additional car parking. On the extended slip lane, the significant difference in the wording of the conditions between the parties was the additional inclusion by the council of a requirement for detailed engineering plans for the upgrading of the Underwood Road/Australia Drive intersection in addition to the plan for the extended slip lane.

5 The applicant maintains that the detailed design of the intersection should not be a deferred commencement condition but should be incorporated into the standard conditions of consent as the RTA has provided general terms of approval to the intersection design. The council states that the plans provided to date are not detailed engineering designs that would normally be required to demonstrate compliance with the relevant standards, the land required for the upgrading and details of the infrastructure that may need to be replaced.

6 On this matter, I accept that the detailed design of the intersection should not form part of the deferred commencement condition, largely because it has been considered by the RTA and found to be acceptable but subject to a more detailed design. I accept that this detailed design can be adequately addressed through operational conditions of consent rather than a deferred commencement condition. The extended slip lane has not been the subject of any design, even in the more schematic approach adopted for the intersection upgrading, and it needs to be shown how the extended slip lane will be incorporated into the intersection design. For this reason, the extended slip lane should be subject to a deferred commencement condition. Deferred commencement condition 1 should read:

1. The applicant is to obtain the approval of Auburn Council as Roads Authority (or such other entity as may be the relevant Roads Authority) to the works, including how the additional works are incorporated into the proposed upgrading of the roundabout at Underwood Road/Australia Drive, referred to in the letter from the Roads and Traffic Authority to Gilbert + Tobin Lawyers dated 10 June 2009.

7 While the parties provided different wording for the condition requiring the approval of additional car parking on site, there is nothing substantive in their disagreement. The location of the additional car parking spaces should be left to the applicant when preparing a development application, providing that there is a minimum of 1928 spaces to serve the development. Deferred commencement condition 2 should read:

2. The applicant is to obtain the approval of Strathfield Municipal Council for the provision of a minimum of 1928 car parking spaces on the site for the proposed development.

Operational conditions 1.1 and 1.2

8 Operational conditions 1.1 and 1.2 relate to the staging of the proposed development. Condition 1.1 identifies the staging plans and condition 1.2 provides that the development will be carried out generally in accordance with the staging plans. The applicant seeks the deletion of the identified staging plans and the requirements that the development be carried out in accordance with those plans. The applicant also seeks to include the word "generally" in condition 1.1 to provide that the development shall be completed "generally" in accordance with the approved plans and documents listed in the condition.

9 The council opposes the amendments, stating that it is in inappropriate to include the word "generally" in condition 1.1 and that the deletion of the staging plans is also inappropriate as the staging plans formed part of the application. The amendment provides an open-ended provision for staging plans to be provided prior to the issue of the Construction Certificate and "generally" in accordance with the stage is set out in the Statement of Environmental Effects.

10 I am not satisfied that the deletion of the reference to the specific staging plans from condition 1.1 and the requirement to comply with these staging plans in condition 1.2 is not a significant matter. Staging plans are still required, and there is no valid reason why the applicant should be necessarily bound to those specific staging plans. There is some merit in the argument put by the applicant that the staging plans may need to be amended to reflect the additional car parking spaces required by the deferred commencement condition. Conditions 1.1 and 1.2 can be amended to reflect the submissions of the applicant, including the use of the word “generally”.

Operational conditions 2.1.1, 2.1.2, 2.3 to 2.7

11 The conditions relate to the occupation of the bulky goods tenancies and require an amendment following the interim findings. The council seeks the retention of conditions 2.1.1, which contains the definition of "bulky goods sales and showroom", condition 2.1.2, which identifies further requirements for the occupation of Level 2 tenancies and amendments to condition 2.3 that require a separate development application to be submitted and approved.

12 The applicant proposes the deletion of conditions 2.1.1, 2.1.2, 2.3 to 2.7 and their replacement with the following new condition 2.1:

2.1 This consent does not authorise the use of the individual tenancies within the development. Development consent for use of any tenancy must be obtained prior to use of that tenancy.

13 I am satisfied that the applicant's new condition 2.1 is a satisfactory response to the interim findings. The need to restate the definition of "bulky goods sales and showroom" and other planning requirements is superfluous given the need to submit a development application and show compliance with the definition of "bulky goods sales and showroom".

Additional council conditions

14 The following additional conditions were sought to be imposed by the council but were not included in the applicants conditions:

5.15 A traffic management plan for the works to the Underwood Road/Australia Drive/Homebush Bay Drive intersection shall be submitted to and approved by the RTA and Auburn and Strathfield Council’s traffic engineers to ensure an adequate level of service at the Underwood Road/Australia Drive/Homebush Bay Drive and continued vehicular and pedestrian safety Prior to the issue of a Construction Certificate.

5.16 All works as required, including the dual circulating roundabout and associated slip lane (as detailed in the RTA’s Correspondence of 3 April 2009 and 10 June 2009) to Underwood Road/Australia Drive/Homebush Bay Drive intersection shall be fully constructed in accordance with the approved plans prior to the issue of Occupation Certificate.

8.9 No advertising, corporate colours, logos or decal are to be applied or painted or placed within 1 metre of any shopfront windows so as to be visible from outside without the prior written approval of Council .

15 Council’s condition 5.15 seeks a traffic management plan. I do not accept that this is an appropriate condition, given the evidence from the respective traffic experts and the RTA on the operation of the upgraded intersection and the findings that the intersection was acceptable. Consequently, this condition can be deleted.

16 Council’s condition 5.16 requires the upgraded intersection and associated slip lane to be constructed prior to the issue of occupation of the proposed development. Given the evidence on the additional traffic likely to be generated by the proposed development and the uncontested need for the intersection to be upgraded, the inclusion of this condition is necessary. It is re-numbered condition 5.13 the development consent.

17 Council’s condition 8.9 limits advertising but provides the opportunity to vary the requirements in this condition. The condition can be included in the conditions of consent.

18 Some conditions have been amended to provide greater clarity (for example, condition1.8A) but without changing the intent of the conditions and some conditions re-numbered (for example, council condition 5.14 becomes condition 1.6A).

Orders

19 The Orders of the Court are:

1. The appeal is upheld.
2. DA 2008/087 for the change of use and alterations and additions to part of an existing building at 1 - 5 Underwood Road, Homebush to allow for bulky goods retailing and associated car parking is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit L.

___________
G T Brown
Commissioner of the Court