Hong Hang v Holroyd City Council

[2006] NSWLEC 804

Land and Environment Court

of New South Wales

CITATION:

Hong Hang v Holroyd City Council [2006] NSWLEC 804

PARTIES:

APPLICANT
Hong Hang

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

10024 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Section 96 Modification, deferred commencement conditions on drainage, disabled access provisions, BCA

LEGISLATION CITED:

Environmental Planning and Assessment Act
Holroyd Local Environmental Plan 1991

DATES OF HEARING:

23/10/2006, 04/12/2006 and 13/12/2006

EX TEMPORE JUDGMENT DATE:

12/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKees Legal Solutions

RESPONDENT
Mr R Creighton, agent and
Mr J Boers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hussey

13 December 2006

10024 of 2005 Hong Hang -v- Holroyd City Council

JUDGMENT

This decision was given as an extempore decision.

It has been revised and edited prior to publication.

1 This s 96 modification application was made in respect of a development consent that was granted for adjoining properties at No.178 and No.179 Military Road, Guildford. It is a staged consent whereby stage 1 envisages the maintenance with some improvements to an existing cottage on No. 178 as a temporary brothel for 12 months, to be used pending the construction of a purpose-built brothel at No. 179, the adjoining property.

2 The original consent imposed deferred commencement conditions. The main condition in this regard related to the provision of downstream stormwater drainage and that required on the acquisition of an easement over downstream properties.

3 The s 96 modification application was made by Mr Creighton and it was filed on 10 July 2006. It is a general application against conditions of consent, which lacks specificity.

4 The appeal commenced by way of an on-site hearing and that was on 23 October 2006 where there was a detailed site inspection. Arising out of that site inspection, Directions were made requiring the applicant to clarify details of the site, particularly the arrangements for the disabled access to the cottage at No.178, so there would be consistency with the other conditions of consent requiring compliance with the BCA provisions. Those Directions specified that a minimum width of 3.6 m was required for the disabled car space.

5 The matter was then adjourned and resumed on 4 December 2006. The final plans were still not in an acceptable position on resumption. At that hearing there was some confusion about the representation of the applicant at the appeal and the modified plans, in my view, were not in a position to be approved. Even though an access ramp at the rear of the dwelling had been tentatively located, there was no certainty that it was workable and complied with existing site levels and constraints such as the position of existing buildings.

6 The matter was again adjourned and a further 5 Directions made, requiring provision of adequate details to enable proper assessment of the merits of the modifications. The first Direction required a number of things, including accurate positions of the buildings on the site, spot levels, definitions of car spaces, window treatments and amendment dates on the plans. I expected from those Directions that there would be at this stage today, an accurate and workable plan to show how the BCA requirements could be satisfied.

7 The resulting plan is Exhibit ‘ME’, which shows a ramp at the rear of the house with 4 rest platforms and about 30 m of ramp to achieve the 1:14 gradients. Taking into account the circumstances of the site in the vicinity of the ramp, it is my opinion that the ramp is poorly located and the because of the necessary travel paths, is unlikely to be attractive for disabled patrons due to its inconvenient connection to the designated client car parking space, which on this plan is still shown to have a width of 2.5 m. This is less than the previously determined 3.6 m and whilst there is some space adjacent to this, any widening of that car space to achieve 3.6 m interferes unreasonably with the access to the front or side door for the main entry into these premises.

8 In summary then, I am not satisfied that the level of detailing of these plans is sufficient to reasonably determine that the s 96 modification works properly, particularly that the disabled access provisions of the BCA can be complied with. Therefore, I accept Mr McKees submissions that the applicant has been given ample opportunity to satisfy the Court on the proposed s96 Modifications but has failed to do so and accordingly the appeal should be dismissed. This is mainly due to the inability to comply with the BCA requirements, although I note that some other matters have been discussed during this appeal and the applicant has an indication that some modifications of other conditions may be appropriate, but that has to be considered in the context of the overall consent.

1 The appeal is dismissed.

2 The section 96 Modification application is refused.

___________________

R Hussey
Commissioner of the Court
As/rjs