Kirkham v City of Canada Bay
[2013] NSWLEC 1263
•11 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Kirkham v City of Canada Bay [2013] NSWLEC 1263 Hearing dates: 10 and 11 December 2013 Decision date: 11 December 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld.
(2)Development consent is granted to development application DA129/2013 lodged on 15 April 2013 for demolition and extension of the existing outdoor carpark at lot DP860469 and lot 16-19 DP4846, being 13 Bevin Avenue, Five Dock, subject to the conditions in exhibit 3, including the additional condition in respect of a further plan of management.
(3)The exhibits are to be returned, apart from exhibits A and 3 upon written publication of this judgment.
Catchwords: Development application - extension of existing carkpark for a club, development near zone boundaries, permissibility Legislation Cited: Environmental Planning and Assessment Act 1979
Canada Bay Local Environmental Plan 2013
Canada Bay Local Environmental Plan 2008Cases Cited: Gales-Kingscliff Pty Ltd v Tweed Shire Council (2007) 156 LGERA 389 Category: Principal judgment Parties: Douglas Kirkham (Applicant)
City of Canada Bay (Respondent)Representation: Mr A J Thompson
with Mr G L Castellan (Applicant)Mr A Hudson (Respondent)
Wilshire Webb Staunton Beattie (Respondent)
Ritchie & Castellan (Applicant)
File Number(s): 10646 of 2013
Extempore - Judgment
COMMISSIONER: The Canada Bay Club seeks development approval to extend its existing outdoor carpark located at 13 Bevin Avenue Five Dock.
The Proposal
The proposal is to extend the Club's carpark from Lot 1 DP 860469 (13 Bevin Avenue) onto adjoining Lot 18 and 19 in DP 4846 (9 Bevin Avenue) and, Lot 16 and 17 in DP 4846 (11 Bevin Avenue) (the site).
The proposal maintains the existing vehicular access from Bevin Avenue and provides for an additional fifty-two (52) car spaces and thereby a total of 185 car spaces.
The development requires approval to demolish all existing dwellings and structures on the site.
The statutory controls
The development application is subject to the planning controls in Canada Bay Local Environmental Plan 2008 (LEP 2008). The repealed plan applies because the application was filed before the commencement of the Canada Bay Local Environmental Plan 2013 (LEP 2013) and the savings provision in cl 1.8A of LEP 2013 requires that it be dealt with under LEP 2008.
Under LEP 2008 the land at 9 and 11 Bevin Avenue is zoned R2 low residential and the land at 13 Bevin Avenue is zoned R3 medium density residential. The zone boundary follows the cadastral boundaries between 11 and 13 Bevin Avenue. The combined width of the land at 9 and 11 Bevin Avenue is 25 m. It is land that falls within the terms of cl 5.3(2) of LEP 2008.
The land use table for both zones prohibits development for the purpose of a carpark.
However, the land at 13 Bevin Avenue is also listed at Item 1 in Schedule 1 to cl 2.5 of LEP 2008. By operation of these provisions the use of the land at 13 Bevin Avenue for a carpark in conjunction with the existing Canada Bay Club is permissible with development consent. The clause and schedule relevantly provide:
2.5 Additional permitted uses for particular land
(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:
(a) with development consent, or
(b) if the Schedule so provides-without development consent,
in accordance with the conditions (if any) specified in that Schedule in relation to that development.
(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.
Schedule 1 Additional permitted uses
2 Use of certain land at Bevin Avenue, Five Dock
(1) This clause applies to land at Bevin Avenue, Five Dock, being Lot 1, DP 860469 (the Western Suburbs Soccer Sports and Community Club Ltd (known as Canada Bay Club) carpark).
(2) Development for the following purposes is permitted with consent if the use is only in conjunction with the adjoining Canada Bay Club:
(a) car parking,
(b) serviced apartments "
The present development application has been lodged relying upon the provisions of cl 5.3 of LEP 2008. The clause provides:
5.3 Development near zone boundaries
(1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone.
(2) This clause applies to so much of any land that is within the relevant distance of a boundary between any 2 zones. The relevant distance is 25 metres.
(3) This clause does not apply to:
(a) land in Zone RE1 Public Recreation, Zone El National Parks and Nature Reserves, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone Wl Natural Waterways, or
(b) land within the coastal zone, or
(c) land proposed to be developed for the purpose of sex services or restricted premises.
Note: When this Plan was made it did not include Zone El National Parks and Nature Reserves, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone Wl Natural Waterways.
(4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that:
(a) the development is not inconsistent with the objectives for development in both zones, and
(b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land.
(5) This clause does not prescribe a development standard that may be varied under this Plan.
The applicant contends that the proposed extension of the carpark (associated with the Club) on the adjoining land at 9 and 11 Bevin Avenue is permissible because an investigation of the site and its surroundings reveals that the use enables a more logical and appropriate development of the site in terms of cl 5.3. Thereby the proposal is permissible on the adjoining land based on cl 5.3.
The Council does not accept the applicant's interpretation of cl 5.3. It contends the proposed extension of the carpark onto the adjoining land is not a permissible use and, for that reason, the Court cannot grant development consent to this application. The Council's case is that the existing carpark on 13 Bevin Avenue is only permissible because of its listing in Schedule 1 "Additional permitted uses" which arises under cl 2.5 and, any additional uses permitted under that clause for particular land are separate and distinct from the uses permitted under the zoning of land under LEP 2008. (Statement of Facts and Contentions - (exhibit 1 pp 56).
In short cl 5.3 only extends permissible uses as detailed in the zoning table under the LEP 2008 to adjoining land if the other provisions in cl 5.3 are satisfied.
Legal question
The legal question for determination in these proceedings is whether on the true construction of cl 5.3 of LEP 2008 the proposed development is permissible with development consent.
The legislative framework and facts summarised above against which the legal issue is to be determined are more particularly detailed in exhibit 2 (the second agreed statement) and the parties' competing interpretations of the legislation are set out in their respective written submissions.
Merit considerations
The Council raises no merit concern with the application subject to the imposition of the draft conditions (exhibit 3). It submits that its initial concerns have been resolved by the submission of amended plans which include further landscaping detail and design changes to ensure vehicular circulation widths are compliant with AS 2890.1:2004.
The joint report prepared by the parties' planning experts (Mr Kennan for the applicant and Mr Ardlie council's senior planner) explains how the amended plans have resolved the council's concerns with the original application (exhibit 4). Leaving aside the legal issue of permissibility the planners support an approval of the application subject to the draft conditions of consent after an assessment under s79C of the Environmental planning and Assessment Act 1979. Further support for the approval of this application is found in the council's planning assessment report at folio 301 of the council's bundle (exhibit 5).
The Council's contentions also include the matters raised by the resident objectors. The council report at folios 301 and 302 of exhibit 5 specifically deal with the objectors' concerns. After assessment the report concludes that their objections do not form a basis for the refusal of this application (folio 307 exhibit 5).
Objectors' evidence
The objectors to this application include the residents who reside at 3 and 7 Bevin Avenue. They oppose this application because they believe that an extension of the carpark (closer to their property boundaries) will have a detrimental impact on their existing amenity. If approved they anticipate an unacceptable increase in traffic movements in the street, increased noise and light spillage. They are also concerned that an approval of the development will have an adverse impact on the existing sense of community within their cul de sac and result in depreciation in the value of their homes.
Mr Claudio Di Orazio, who spoke on behalf of his mother who resides at 7 Bevin Avenue, invited the Court to inspect her property, which adjoins the proposed development. During that inspection the planners explained to the Court that after site excavation her land will sit about 2.3 m higher than the carpark hard stand. Furthermore, the proposal is to construct five parallel car spaces along her eastern boundary set back about 1.5 m from her 1.8 m boundary fence. The set back area is to be planted with a landscaping buffer in accordance with the landscaping plan in exhibit D.
The owner of the new residence at 3 Bevin Avenue also addressed the Court hearing. He raised similar concerns about the extension of the carpark but was particularly worried about the development's potential to negatively impact on the value of his new property.
Legal issues - applicant's submissions
I set out below the written submissions of the applicant:
- Clause 5.3 of the LEP specifically addresses the situation where planning zones adjoin one another. The provision aims to relax the application of the planning provisions contained in the Land Use Tables for the R2 and R3 zones which are only relevant in those parts of the zones where they do not adjoin.
- The objective of clause 5.3 is found in subclause 1. The aim of the objective may be stated as follows:
(i) to provide flexibility;
(i) to allow a use allowed on the other side of a zone boundary;
(iii) to enable a more logical and appropriate development of the site; and
(iv) that the use would be compatible with the planning objectives and land uses permitted in the adjoining zone.
- Clause 2.5 and Item 2 of Schedule 1 to the LEP is the operative part of the LEP which permitted development consent for the carpark used in conjunction with the adjoining Canada Bay Club on Lot 1, DP 860469.
- To extend the carpark onto 9 and 11 Bevin Avenue, Five Dock allows for a more logical and appropriate development of the site as it will benefit the residents using the Canada Bay Club.
- On the question of whether it is compatible with the planning objectives, Preston CJ said in Gales-Kingscliff Pty Ltd v Tweed Shire Council (2007) 156 LGERA 389 at [33]:
"Compatibility of uses refers to the capability of the uses to exist together in harmony".
- So far as the planning objectives are concerned, it is submitted that the use would be permitted with the third objective of the R3 zone which states:
"To enable other land uses that provides facilities or services to meet the day-to-day needs of residents".
- It is submitted that it is not necessary to comply with all of the planning objectives for the R3 zone, but as stated in Gales-Kingscliff Pty Ltd, supra, the proposed use would "exist in harmony" with the permitted land use for the zone which is a carpark serving the Canada Bay Club, which is also an approved land use.
- For these reasons, it is submitted that clause 5.3 should be construed in accordance with its ordinary and grammatical meaning as stated in Cooper Brookes, supra. Alternatively, a purposive approach to the provision would lend itself to the same construction of clause 5.3, the purpose being to provide flexibility where logical and appropriate.
- Further, this interpretation is consist with clause 1.2(b), (d), (ii), (f) and (j) of the LEP, the Aims of the Plan.
- Subclause 4 of clause 5.3 then requires two further matters which need to be satisfied before development consent can be granted under this clause, namely -
(i) the development is not inconsistent with the objectives for development in both zones,
(ii) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land.
- So far as the first test is concerned, it has submitted upon that the development is not inconsistent with the objectives of the R2 zone which are also the same objectives for the R3 zone in accordance with the principle laid down in Schaffer Corporation Limited v Hawkesbury City Council (1992) 11 LGRA 21 where Pearlman CJ said:
"the guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible."
In this instance, it is submitted that the proposed development does satisfy the second objective for the R2 zone and the fourth objective in the R3 zone, both of which are in identical terms. Further, the development is compatible in the sense that it is harmonious with the existing carpark.
- So far as the second requirement under subclause 4 is concerned, it is submitted that the use would be desirable as it will be compatible with the land uses planning permitted in the adjoining zone, it will add to the infrastructure capacity for parking in the area and the proposal is otherwise acceptable within recognised planning principles such as clause 1.2. It will also result in the efficient and timely development of the land in a way which is compatible and therefore consistent with the flexibility contained in clause 5.3.
- This interpretation is consistent with the requirements of section 33 of the Interpretation Act 1987 referred to in paragraph 8 above. It is submitted it would be inconsistent to read the provision down in a way argued for by the Council. The Court should follow the ratio adopted in Unicomb at [24] and give clause 5.3 its full effect rather than reading it subject to clause 2.3 and the Land Use Table for no proper justification. To read it down would defeat the purpose of providing flexibility in developing land which straddles a zone boundary ".
- The applicant submits that the question should be answered in the affirmative.
Legal issues - council submissions
I set out below the Council's written submissions:
The Structure of the CB LEP 2008
5. CB LEP 2008 is a standard instrument LEP (in terms of section 33A of the Environmental Planning & Assessment Act 1979 and the Standard Instrument (Local Environmental Plans) Order 2006 which means it follows the set format of the Standard Instrument- Principal Local Environmental plan.
6. Part 2 is headed "Permitted or prohibited development. Clause 2.1 sets out the relevant land use zones under the plan. Clause 2.2 is a reference to the land zoning map which specifies the zones for the land in the local government area. Clause 2.3 refers to the "Land Use Table" which specifies for each zone the objectives for development, development that may be carried out without development consent, development that may be carried out with development consent and development that is prohibited.
7. Part 2 also contains the standard clause (clause 2.3(2)) relating to the regard to be had to objectives for development a zone when determining a development application.
8. The Land Use Table is then contained at the end of this Part 2 with the standard zones and the four paragraphs under each zone setting out the objectives and what uses are permissible without consent, permissible with consent and prohibited.
Clause 5.3 of CB LEP 2008
9. The fundamental proposition of the Council is that clause 5.3 is to be construed in terms of the permissible uses in the Land Use Table for the relevant zoning.
10. There are a number of references in clause 5.3 that support this interpretation.
11. The first reference is the key and operative words of clause 5.3(4) which state "for any purpose that may be carried out in the adjoining zone". Determining what can be carried out in the adjoining zone is determined by reference to the Land Use Table.
12. The second reference is in the opening words of clause 5.3 which refers to the provisions of the LEP "relating to the purposes for which development may be carried out". Again the Land Use Table sets out the purposes for which development may be carried out.
13. Thirdly, once it is determined that a use is permissible in the adjoining zone the first merit criteria for the Council to be satisfied about under clause 5.3(4)(a) is that the development is "not inconsistent with the objectives for the development in both zones". The objectives for the zone are contained within Land Use Table.
14. Fourthly clause 5.3 contains an objective in subclause 5.3(1). In this subclause there is a reference "a use allowed on the other side of a zone boundary" and there is a reference to compatibility with planning objectives and "land uses for the adjoining zone". Again uses allowed on the other side of the zone boundary and land uses for the adjoining zone are contained within the Land Use Table."
Clause 2.5- Additional permitted uses for particular land
15. The land the subject of the development application has the benefit of clause 2.5 listing in schedule 1 of CB LEP 2008 (and CB LEP 2013).
16. The purpose of clause 2.5 is to permit development "on particular land" that would otherwise be prohibited under the land use table. Critical to the operation of this clause is clause 2.5(2) which states:
"This clause has effect despite anything to the contrary in the Land Use Table or other provision of this plan"
17.This clause operates for particular identified land, outside and contrary to the Land Use Table.
18. Returning to the four matters identified earlier in clause 5.3 which reference the adjoining zone, when the zoning, the Land Use Table and the operation of clause 2.5 and schedule 1 is considered within the structure of the CB LEP 2008, it is apparent that the meaning of the operative words in clause 5.3(4) "for any purpose that may be carried out in the adjoining zone" is confined to those purposes that are permissible without consent or with consent as identified in the Land Use Table for the relevant adjoining zone.
19. This interpretation is consistent with the language and purpose of the provisions of the CB LEP 2008 (and CB LEP 2013)
Implications of the Applicants Interpretation
20. If CB LEP 2008 is unclear then the Council's interpretation gives it a more practical effect in terms of the structure and intent of the LEP2. If the Applicants interpretation is accepted then the result is that a number of prohibited uses become permissible with consent in large 25m tracts of land within the local government area where those uses would otherwise be prohibited under the Land Use Table. This would be an extraordinary or irrational interpretation which would detract from the legislative intent of the structure of the CB LEP 2008.
21. While clause 5.3 is an optional clause under the standard instrument it is largely adopted by standard instrument LEPs. A determination in favour of the Applicants interpretation means that it would apply to all those LEPs that contain the same clause throughout NSW.
22.The Applicants interpretation of the clause 5.3 will mean that there are a number of additional uses that would be permissible with consent on the site. Further these additional uses would be permissible on any R2 Low Density Residential zoned land that is within 25 metres of any R3 Medium Density Residential zoned land.
23. The Applicants interpretation is that car parking is a "purpose that may be carried out in the adjoining zone". The fact that the land to which the Schedule 1 listing relates is adjoining the development site is only coincidental. The Applicants argument is that the adjoining site with its schedule 1 listing is within the R3 zone which is the adjoining zone so clause 5.3 is activated. It is irrelevant to the Applicants argument that the site is physically adjoining the development site. The connection is that the site is in the adjoining zone.
24. Therefore it must follow that any additional Schedule 1 permitted use in the R3 zone is a permissible use in any 25 metre strip of R2 zone land which adjoins any R3 zone in CB LEP 2008 (or CB LEP 2013).
25. This means the following additional uses would be permissible with consent on the site under CB LEP 2008 which would normally be prohibited:-
(a) car parking
)
(b) serviced apartments; (only in conjunction with the adjoining Canada Bay Club)
)
)
)
item 2
(c) office premises and associated car parking;
)
)
(d) business premises and associated car parking;
)
)
(e) cellar door premises, food and drink premises, kiosks, markets, roadside stalls, shops and associated car parking;
)
)
)
)
item 4
(f) light industry;
)
(g) mixed use development carried out in a way that it is not detrimental to the amenity of the neighbourhood if the proportion of the floor space to be used for non-residential purposes in the development does not exceed 25%;
)
)
)
)
)
)
)
)
item 7
(h) office premises;
)
(i) restaurants or cafes;
(if consistent with the conservation and preservation of buildings and the amenity of immediate residents)
)
)
)
)
item 12
(j) development for the purpose of business and retail premises on the ground floor of residential buildings in Rhodes West Precinct
)
)
)
)
item 13
26. Under CB LEP 2013 the additional uses that would be permissible on the site are as follows:-
(a) Office premises;
)
item 1
(b) Restaurants or cafes;
)
(c) Retail premises;
)
item 2
(d) Business premises;
)
(e) Commercial premises;
)
(f) Marinas;
)
(g) Carparks;
)
(h) Serviced apartments; (if the use is associated with the adjacent Canada Bay Club)
)
item 11
(i) Light industries;
)
item 13
27. The above uses would also be permissible with consent in any 25 metre strip of R2 zoned land which adjoins any R3 zoned land throughout the Canada Bay local government area.
28. The uses permitted by clause 2.5 and Schedule 1 are uses which are particular to or moulded to the land on which those uses are carried out. The function and purpose of clause 2.5 is to allow uses which are not permissible in the zone because those uses function appropriately on the particular identified land. These are not uses which are generally suitable to the zoning of the land.
29. Further, the Applicants interpretation extends beyond the interface of R2 and R3 zones to any zoning interface for example is item 15 which authorises "vehicular sales or hire premises" on a piece of IN 1 zoned land. There is R2 and R3 zoned land adjoining this area of IN 3 land which means this otherwise prohibited use would now be permissible in any 25 metre strip of R2 or R3 land that adjoins IN 1 land.
30. Acceptance of the Applicants argument is in effect a de-facto amendment to the Land Use Table to allow additional (and otherwise prohibited) uses specified in Schedule 1 in any 25 metre strip on either side of the relevant zoning interface.
31. This would be an impractical, extraordinary or irrational interpretation which would be contrary to the structure, language and purpose of the CB LEP 2008 (and CB LEP 2013).
Findings on the legal issue of permissibility
My findings are as follows. Clause 5.3(1) states at the outset that the objective of the clause is directed to flexibility when investigating development of a site. By subcl (2) the clause applies to so much of any land that is within the relevant distance of a boundary between any two zones, the relevant distance being 25 m. In this case the land for the proposed development complies with subcl (2), it is not land identified in subcl (3).
Clause 5.3(4) deals with the purposes for which development may be carried out. Clause 2.5 deals with development on particular land. Schedule 1 deals with additional permitted uses of certain land. Schedule 1(2) identifies the use of certain land at Bevin Avenue, Five Dock. Subclause (2)(i), car parking associated with the club is a purpose which is permitted with consent on that site under that zone. The effect of that is to add to the possible uses in the R3 zone car parking for the purpose associated with the Club on 13 Bevin Avenue.
In my assessment of the evidence and the parties submissions cl 5.3 adds to the land use table a parking use for this site. The object of cl 5.3 is flexibility when investigating a site by reference to cl 5.3 (2) within 25 m of a site that falls within the R2 zone, number 13. As a consequence, when you apply 5.3 (4) on the land at 9 and 11 Bevin, which it is agreed is within the 25 m you have development for a purpose of car parking associated with the club on the site being investigated. In the context of cll 5.3(3) and (4) development of number 13 is for the purpose of a carpark associated with the Club is a permissible use in the R3 zone by operation of cl 2.5 and Schedule 1. Therefore, cll 5.3 (3) and (4) render the proposed use in the adjoining R2 permissible.
Importantly, the provisions of the LEP would not allow an extension of the carpark further up the street because of the fundamental limitation of 25 m from the R3 zone boundary.
Findings on the merit considerations
Accepting the proposal's permissibility the Court must then be satisfied, about the matters raised by cl 5.3 (4) of LEP 2008. It provides:
(4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that:
(a) the development is not inconsistent with the objectives for development in both zones, and
(b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land.
The Objectives of the respective zones are as follows:
Zone R3 - Medium Density Residential
- To provide for the housing needs of the community within a medium density residential environment.
- To provide a variety of housing types within a medium density residential environment.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
- To facilitate public access to and along the foreshore
Zone R2 - Low Density Residential
- To provide for the housing needs of the community within a low density residential environment.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
After a consideration of the objectives for development in both the R2 and R3 zones under LEP2008 and the planning evidence of Mr Ardlie (at folio 303 -305 of exhibit 5) and Mr Kennan (joint report (exhibit 4) I am satisfied that the proposed development is not inconsistent with the zone objectives.
I accept Mr Ardlie's planning assessment that the proposed use will provide facilities and services to meet the day to day needs of residents by providing more offstreet car parking with commensurate increase in the availability of onstreet car parking for residents (at folio 304 of exhibit 5). In addition, the use of the R2 zoned land for car parking is a compatible land use with the existing use of the R3 zoned land applicable to the land for the Club. Nor is there any evidence to support a finding that an approval of this development is inconsistent with the objective to facilitate public access to and along the foreshore.
Furthermore, I accept Mr Ardlie's assessment as Council's senior planner that the proposal is not inconsistent or antipathetic to the provision of low or medium density residential accommodation because it does not provide an alternative land use that is not foreseen within the zone (folio 304 of exhibit 5). It is also the case that the development site could be used for residential purposes in the future.
With respect to subcl (b) I accept Mr Ardlie's planning assessment that the development is desirable from a planning perspective, as the carpark extension will enable more efficient vehicular circulation and parking ancillary to the existing established club. Importantly, an approval of this proposal will not restrict the adjoining sites to the east to be developed in accordance with the desired low-density residential uses (folio 305 exhibit 5).
Having attended the site and considered the objectors' submissions I accept Mr Ardlie's planning assessment that the concerns raised by the objectors are satisfactorily addressed by the amended landscape plan and the agreed conditions of consent (folio 307 exhibit 5).
It is a fact that the Club exist at the end of a residential cul-de-sac. However, the General Manager of the Club, Mr Kirkham, has told me that he is not aware of any recent complaint from local residents about unacceptable noise or traffic arising from members' use of the existing carpark. In an effort to preserve that amenity the Club has agreed to the imposition of a condition requiring the adoption of a plan of management. The plan will set out protocols to direct patrons' behaviour so as to maintain the area's existing amenity and compliant procedures to address residents' concerns as they arise. The Club has also agreed to extend its security patrols to the new carpark area and to provide local residents with a telephone number for use should they need to contact the Club about any issue. These measures in my assessment satisfactorily address the residents' concerns about unacceptable noise, traffic and patron behaviour arising from this application.
The proposal does not provide for additional lighting of the carpark so the objectors' concerns about additional light spillage will not be realised in the event that this development proceeds. With respect to anticipated losses in property values I note that such matters are not generally a relevant consideration under s 79C in class 1 appeals. Moreover, in this case there is no evidence before me establishing that property values would be affected by the proposed development, if implemented.
For the reasons stated I am satisfied that approval of this application will enable a more logical and appropriate development of this site. I find the development to be permissible and acceptable on its merits after assessment under s79C of the Environmental Planning and Assessment Act 1979.
The Court makes the following orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA129/2013 lodged on 15 April 2013 for demolition and extension of the existing outdoor carpark at lot DP860469 and lot 16-19 DP4846, being 13 Bevin Avenue, Five Dock, subject to the conditions in exhibit 3, including the additional condition in respect of a further plan of management.
(3) The exhibits are to be returned, apart from exhibits A and 3 upon written publication of this judgment.
Susan Dixon
Commissioner of the Court
Decision last updated: 25 February 2014
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