Ingham Planning v Marrickville Council

[2008] NSWLEC 1329

Land and Environment Court

of New South Wales

CITATION:	Ingham Planning v Marrickville Council [2008] NSWLEC 1329
PARTIES:	Applicant: Ingham Planning Pty Ltd Respondent: Marrickville Council
FILE NUMBER(S):	10341 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- junkyard
DATES OF HEARING:	14 August 2008
EX TEMPORE JUDGMENT DATE:	14 August 2008
LEGAL REPRESENTATIVES:	Applicant: Mr G Green, solicitor of Pike Pike & Fenwick Respondent: Mr G Christmas, solicitor of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

14 August 2008

10341 of 2008 Ingham Planning Pty Ltd v Marrickville Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to use lot 8 and 9 section 5 DP975496, known as 659 King Street, St Peters as a junkyard.

2 The parties have attempted to resolve their differences at a conciliation conference under s34 of the Land and Environment Court Act 197,at which they reached agreement on a number of issues, leaving only three matters to be decided by the Court. Pursuant to s34(4)(b) the parties consented to the Commissioner disposing of the matter on the basis of joint reports prepared by the parties’ planning and traffic experts.

3 The first matter that remains in dispute is whether it is acceptable for the truck collecting the skip once a day and taking about 15 minutes to do it, to protrude from the loading dock into the street. The truck protrudes into the street because the skip is located in the loading dock. It is common ground between the applicant’s traffic expert, Mr John Coady, and the council’s engineer, Mr Joe Bertacco, that it is generally desirable to cater for all loading within the site. Despite this, Mr Coady argues for the relaxation of this principle on the ground that the inconvenience of the truck protruding occurs infrequently and the only solution to the problem, the enlarging of the loading dock, would place an unreasonable burden on the applicant. I accept this reasoning. I am mindful of the fact that the site is zoned General industrial and the building is an existing one. Ideal conditions cannot always be achieved.

4 The second matter that remains in dispute is whether retailing and administration should be allowed on Sundays. The council’s planner, Ms Harjeet Atwal, opposes it; the applicant’s planning expert, Mr Brett Brown, supports it. It seems to me that the only adverse impact of retailing on the nearby residential buildings could be if the visitors to the site used Goodsell Street for parking. There is a large car park across King Street. While there is no assurance that all visitors to the site will use that car park, one can assume that a fair proportion would, thus reducing the disturbance to Goodsell Street. On balance, I do not see the need to restrict retailing on the site on Sundays.

5 The final point in dispute relates to the hours of operation on Saturdays. The applicant wants the hours to be the same as on weekdays, ie 6.30am to 8.00pm, while the council wants to restrict it to 8.00am to 6.00pm. It seems to me that Saturday mornings are different from weekday mornings and a later start in the morning is expected. The hours of operation on Saturday should be 8.00am to 8.00pm.

6 A minor dispute, hardly worthy of the name of dispute, is whether a condition should refer to utility type vehicles or second hand goods removal vehicles. I have accepted the words second hand goods removal vehicles.

Orders

1. The appeal is upheld.

2. Development application to use lot 8 and 9 section 5 DP975496, known as 659 King Street, St Peters as a junkyard is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are retained on the Court’s files.

_______________
Dr John Roseth
Senior Commissioner