Kennards Self Storage Pty Limited v Leichhardt Municipal Council

[2007] NSWLEC 661

Land and Environment Court

of New South Wales

CITATION:	Kennards Self Storage Pty Limited v Leichhardt Municipal Council [2007] NSWLEC 661
PARTIES:	APPLICANT Kennards Self Storage Pty Limited RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	10345 of 2007
CORAM:	Moore C
KEY ISSUES:	Deemed Refusal - Development Application :- Noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	6 and 24 September 2007
EX TEMPORE JUDGMENT DATE:	24 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister INSTRUCTED BY Gadens Lawyers RESPONDENT Ms R McCulloch, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

24 September 2007

07/10345 Kennards Self Storage Pty Limited v Leichhardt Municipal Council

JUDGMENT

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 grant of development consent subject to detailed conditions. 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

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Leichhardt Municipal Council (the Council) of Development Application D/2006/564 seeking an extension to the scope and hours of operation of the existing Kennards Self Storage facility at an address known as 1-19 Booth Street Camperdown (the site). The site is bounded on three sides by street frontages being Booth Street (generally to the north-east), Guihen Street (to the south-east) and Chester Street (to the south-west). The northern boundary of the site runs along the drainage canal known as Whites Creek.

2 A number of residences are on the north-western side of the drainage canal and their outlook to the south-east is dominated by the high concrete external walls of the structure. The primary access driveway to the present storage activities conducted on levels 1 and 2 of the site is along this north-western side. The application proposes the addition of two storeys to the facility and 24 hour 7 day a week trading access for storage for those levels.

3 The application was originally opposed by the Council primarily because of the unresolved matters relating to noise impacts on the residences to the north-west caused by the existing operations of levels 1 and 2 – particularly the driveway – and concerns expressed by the residents about what the residents said were breaches of the hours of operation of the facility.

4 Whilst, in many respects, the matters which are subject to the residents’ complaints did not originally properly fall within the scope of the application originally contested in these proceedings, during the course of the on-site view on 6 September, discussions with the residents, the Council and representatives of the applicant made it clear that these various issues were capable of being resolved – particularly in light of the acoustic experts' evidence that was then available.

5 The consequence of those discussions is, I am satisfied, that the amended plans which now deal with the totality of the applicant’s operations on the site, bundled together, accompanied by a design for an acoustic wall along the north-western side of the driveway (a wall which has been designed to be more acoustically and aesthetically responsive to the needs of the residents than that which was originally proposed prior to the site inspection) renders those existing problems resolved as well as any possible issues relating to the extension of the activities and the construction of the new proposed fourth level.

6 As a consequence of those changes, the parties now come before me with an agreed position indicating that, by consent, the applicant now seeks to substitute revised plans which enable the incorporation of the amendments to the proposed acoustic wall and the bundling together of all of the activities of the applicant on the site into a single development consent.

7 The overall result is that there is to be now a proper plan of management for the facility which will be incorporated in the conditions of consent and, as a further consequence of the agreement between the parties, there is a deferred commencement condition which will enable, once the Court’s orders are formalised and issued, the applicant to surrender the existing consent so that there will be in fact one consent and a common plan of management encompassing the totality of the operations over all four levels.

8 I am satisfied that that is both a sensible and commendable outcome. As a consequence, the orders of the Court will be that:

1. The appeal is upheld;
2. Development Application D/2006/564 is determined by the granting of development consent subject to the conditions which will be annexed to the orders; and
3. The exhibits, other than Exhibits 6, 8, 9 and B, are returned.

Tim Moore

Commissioner of the Court