King Mix Pty Limited v Campbelltown City Council
[2007] NSWLEC 100
•19 February 2007
Land and Environment Court
of New South Wales
CITATION: King Mix Pty Limited v Campbelltown City Council [2007] NSWLEC 100 PARTIES: APPLICANT
RESPONDENT
King Mix Pty Limited
Campbelltown City CouncilFILE NUMBER(S): 10527 of 2006 CORAM: Moore C KEY ISSUES: Development Application :-
Drainage
Visual ImpactLEGISLATION CITED: Campbelltown Urban Area Local Environmental Plan DATES OF HEARING: 19 December 2006 and 19 February 2007 EX TEMPORE JUDGMENT DATE: 19 February 2007 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr C Gough, solicitor
Storey & Gough
Mr A Seton, solicitor
Marsdens Law Group
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Moore C
19 Febraury 2007
JUDGMENT10257 of 2006 King Mix 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 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 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Campbelltown City Council (the Council) on 2 June 2006 of Development Application 336/2006/DA-DE for the erection of a concrete batching plant and factory housing a concrete masonry plant at 16 Kerr Road, Ingleburn, being Lot 16 in Deposited Plan 717203 (the site).
2 Erected on the site, at the present time, is a large structure, the legal status of which might be regarded for the purposes of these proceedings as being partially uncertain, together with a significant portion of the allotment being open and unformed.
3 The site has, along its south-eastern boundary, a short length of private land which separates it from the main southern railway line. However, to all intents and purposes, the visual outlook on that side of the site is across the main southern railway land, the private land and thence into a residential area, the most close residences being in Gordon Street, Ingleburn.
4 During the course of the hearing on 19 December 2006, I had the opportunity of visiting the end of Gordon Street closest to the main southern railway and hearing evidence from a number of the residents about their concerns.
5 A number of those concerns arose out of the present operational behaviour of the proprietor of the present structures on the site and the industrial use that takes place on the site. Those are matters to which I am unable to give weight given the requirement and presumption in proceedings such as these that, if a consent is given to construction and an activity on this site, the person or entity having the benefit of such consent will abide by all conditions which are attached to it.
6 However, during the course of my consideration of the residents’ objections, there are a number of matters which arose which have resulted in significant amendments being made to the plans.
7 The first relates to the treatment of the façade and roof line to the south-eastern end of the proposed development to make it more architecturally interesting and to use materials that will be, for the external vertical cladding, both new materials and broadly consistent in colour and presentation to those of the immediately adjacent building on the Campbelltown side of the site.
8 There is a significant local flooding issue, which will require the creation of a flood drainage canal, structure or depression around the south-eastern perimeter and along the northern perimeter of the site along Henderson Road. That floodway has had its corner chamfered and there will be extensive tree landscaping but no low vegetation planted in that area.
9 In response to a number of matters relating to car parking and visual appearance of the site, the applicant has agreed to the construction of an acoustic barrier along the edge of the south-eastern extremity of the car park between that car park and Gordon Street.
10 That acoustic barrier will be within an area where, in the ordinary course of events, development would be prohibited as a consequence of cl 37 of the Campbelltown Urban Area Local Environmental Plan (the LEP). The LEP does not permit structures, except for the purposes of landscaping, access roads and off-street parking on land in this zone which is within thirty metres of the main southern railway line. There is no doubt that the acoustic barrier would otherwise fall foul of that proscription.
11 However, there are, within the site and along the Henderson Road frontage, proposed to be two loading and unloading areas of activity that will involve significant truck movements, including truck reversing. Immediately adjacent and between those areas and the residents of Gordon Street, is proposed to be erected an internal acoustic wall. I am satisfied that that acoustic wall will have some benefit in shielding the residents from the noise of those activities.
12 As a consequence, there are three possible uses or purposes which the acoustic barrier along the edge of the car parking will satisfy.
13 The first is to provide a light shield from headlamps from vehicles parking nose into that wall from intruding on the residences at the closest end of Gordon Street.
14 The second will be to provide a deal of acoustic shielding for those residences from vehicles using those parking areas.
15 The third will be to act as a supplementary acoustic barrier to the major industrial activities taking place further along the Henderson Street frontage.
16 I am satisfied that the value of the noise shielding from the parking vehicles and the headlight shielding of the parking vehicles is at least equal to and somewhat greater than the supplementary value of the acoustic shielding of the industrial activities further along the Henderson Street frontage.
17 I am, therefore, satisfied that their use is sufficiently related to the off-street parking and as a necessary part of making that off-street parking acceptable, that that is consistent with and satisfies the provisions of cl 37 of the LEP.
18 In addition, the drainage engineers who have provided significant assistance to the Court and to the parties in these proceedings, have agreed that if there is an acoustic barrier that is somewhat raised so that there is a gap underneath, that wall will not impede the flow of any overtopping flood waters.
19 I am satisfied that the gap at the bottom of the barrier is not sufficiently high to provide any significant diminishing of the acoustical or light shielding purposes that that barrier will serve.
20 That barrier, coupled with the landscaping which is to take place in the drainage channel, will provide significant shielding benefits, both visually and acoustically, for the residents of Gordon Street. The rearranged design to that façade of the building will also be a significant improvement on the present visual presentation to those residents.
21 There are undoubtedly difficulties, which arise for residents who live at what is, in effect, a zone boundary (despite the intervention of the main southern railway) and the measures that have now been proposed to be incorporated in the proposal will provide a significant degree of amelioration.
22 It is, as I am sure the residents would well understand, not possible simply to wish that the industrial area go away and have it disappear.
23 The major matter that had also been in contention between the parties, arises out of the zone objectives of the 4A General Industrial Zone under the LEP, particularly that which is contained in cl 12(2)(c) of the LEP which requires that there be an encouragement of:
- “a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development”.
24 There is no doubt that that standard has to be read in the context of the development being proposed being industrial development. The standard against which I am obliged to test such a development, is whether it is acceptable against that standard and not whether it constitutes the best possible design against that standard.
25 Having said that, I am satisfied that the original comments made by Mr Haskew, the Court-appointed planner in these proceedings, has assisted in a number of revisions to the development that will provide a greater degree of architectural coherence and aesthetic acceptability to the design than had been provided in the original proposal which had been submitted to the Council.
26 There is no doubt that the site will be viewed from Henderson Road - Henderson Road, in its proximity to the site, being significantly elevated by virtue of its bridge over the main southern railway in the vicinity.
27 The landscaping, even when fully established (and I readily accept that there will be some delay in the trees proposed to be planted reaching maturity), will still not completely obscure the site from view from those passing on Henderson Road, and, for a significant period of time until such establishment occurs, the site will be able to be viewed in a largely unadorned fashion.
28 However, there have been a number of significant changes to the building which are described by Mr Haskew in his supplementary statement of evidence, as being the following improvements:
“glazing elements which are logically located and sized, iron rod (metallic finish) cross features in three panels, central to the elevation, wave form exposed truss roof feature, elevated pop-out skylights to roof, circular exhaust pop-outs.” He then concluded that, “combined with the previous proposed middle banding, the fenestration and architectural detail, work well in combination and achieve a built form which is legible and of satisfactory architectural merit, having regard to the visual prominence of the site.”
29 In evidence, Mr Haskew confirmed that that conclusion should be read as him forming the opinion that the development was satisfactory in its present design, even if viewed without any shielding from the proposed landscaping.
30 As a consequence of the adoption of a further amendment to the plans during the course of the final hearing, which will have a lower element on the south-eastern end where the existing structure is located, there will be a further degree of interest and break in the form when viewed from Gordon Street (if the higher roof element, in fact, be able to be viewed from that location).
31 I am satisfied, on the merits of the option now advanced, that the present design coupled with the landscaping that is to be incorporated in the drainage channel, and the landscaping which it has been able to be incorporated in the car parking area at a slightly higher level than the landscape channel as a result of the removal of a number of parking spaces (parking spaces the removal of which does not impact on the otherwise appropriate level of car parking for the site), renders the development overall acceptable and capable of being given a development consent.
32 The consequence of that is that the appeal will be upheld and the development approved, subject to conditions that remain to be finalised between the parties and subject to the filing of some revised plans which will need to achieve two matters:
- clarification of details concerning the south-eastern elevation which were discussed in the course of the proceedings; and
- the provision of a degree of coherence presently lacking from the plan numbering.
33 I therefore give the following directions.
- The applicant is to file and serve revised plans by the close of business on 26 February;
- The respondent is to file and serve revised conditions by the close of business on 28 February;
- I set the matter down for callover before the Registrar on Wednesday 7 March;
- If directions 1 and 2 are complied with, including the conditions being filed electronically in accordance with Practice Direction 2 of 2005 and a separate court email sent advising of that, I will make orders in chambers and vacate the callover; and
- Liberty to re-list on two days’ notice if there are any matters unable to be resolved out of directions 1 and 2.
34 The exhibits, other than Exhibit J, are returned. Exhibit J will be returned when the revised plans have been filed.
Commissioner of the Court
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