M & R Civil Pty Ltd v Hornsby Shire Council (No 2)

[2003] NSWLEC 436

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Land and Environment Court

of New South Wales

CITATION:	M & R Civil Pty Ltd v Hornsby Shire Council (No 2) [2003] NSWLEC 436
PARTIES:	APPLICANT M & R Civil Pty Ltd RESPONDENT Hornsby Shire Council .
FILE NUMBER(S):	(1)0381 of 2002
CORAM:	Roseth SC - Moore C
KEY ISSUES:	Development Application :- SEPP 5 development Water supply and sewerage disposal Traffic arrangements .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 5 - Housing for Older People and People with a Disability Hornsby Local Environmental Plan 1994 .
CASES CITED:
DATES OF HEARING:	1 April 2003
EX TEMPORE JUDGMENT DATE :	04/01/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Officer, QC SOLICITORS Maddocks RESPONDENT Mr A Galasso, barrister SOLICITORS Mr I Woodward, council solicitor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

(1)0381 of 2002 Roseth SC
Moore C 1 April 2004

M & R Civil Pty Ltd
Applicant

v Hornsby Shire Council
Respondent Judgment

1. On 11 February, at a mention for this case, we gave a preliminary decision on a number of issues and we indicated that if we received evidence that water and sewerage arrangements are satisfactory to Sydney Water and if no determinative issue arose out of consultation with Baulkham Hills Shire Council and affected residents along Old Northern Road, that is to say, residents who are affected by the proposed traffic arrangements, that we would then give consent to this proposal.

2. At today’s hearing, we therefore discussed the water and sewerage arrangements and the consultation process with affected residents.

3. As regards water and sewerage, SEPP 5 requires the consent authority to be satisfied by written evidence that the proposal will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewerage.

4. The applicant tendered a letter from Sydney Water Corporation indicating that Sydney Water is satisfied with the proposed arrangements. The council agreed that this issue was resolved. However, implementation of the proposal appears to require a number of easements being obtained. The parties agreed that a deferred commencement condition would deal with this requirement.

5. I now turn to the consultation. The RTA has considered the road and ancillary design proposals of the applicant. In a letter of 13 January 2003, it advised Mr T Rogers, the applicant’s traffic consultant, that the proposed traffic arrangements are generally acceptable subject to a number of conditions. These include written evidence of consultation with affected owners including Baulkham Hills Shire Council to identify concerns and amelioration measures proposed to overcome the concerns.

6. On 18 February 2003, the council on its own and on Baulkham Hills Shire Council’s behalf notified residents who might be affected by the changed traffic arrangements. The council and the applicant’s consultants received 15 responses, of which four were specifically related to the traffic arrangements, namely, Flower Power and Nos. 406, 426 and 430 Old Northern Road.

7. Two meetings for the purpose of explaining the changes to the residents took place. Further refinements to the plans were made in response to residents’ concerns. Mr Glendinning gave evidence that changes to the plans overcame the objection to the traffic arrangements from the residents of Nos. 406, 426 and 430 Old Northern Road.

8. The RTA and Baulkham Hills Shire Council have written indicating agreement to the revised design. Mr Alan Knight, the council’s traffic engineer, told the Court that the proposed arrangements would have no effect on Flower Power and might assist Flower Power in seeking similar turning arrangements in the future.

9. Mrs Margaret Shields, the public officer of the Round Corner Village Residents’ Association, gave evidence. She generally opposed the development; specifically in relation to Old Northern Road, she mentioned that it was heavily trafficked and it would be hard for elderly pedestrians to cross it. We have dealt with this issue under Mr Relph’s evidence.

10. Mrs Shields also mentioned that it would be difficult for elderly drivers to make a right turn into and out of the site. We note that Mr Knight said that he was satisfied with the proposed design.

11. Given that all the issues have now been determined or resolved, we conclude that there is no obstacle to the approval of this proposal subject to a deferred commencement condition requiring the necessary easements to be obtained.

12. The appeal is therefore upheld and the formal orders of the Court are:


(1) The appeal is upheld.
(2) Development Application to erect 130 dwellings for older people and people with a disability and associated community facilities on Lot 5 DP 507947 and Lot E DP 4129836 known as 599-601 Old Northern Road, Glenhaven, is given consent subject to the conditions in Annexure A.
(3) The exhibits are returned except Exhibits 13, A, JJ and OO.


Dr John Roseth
Senior Commissioner

Tim Moore
Commissioner of the Court