Marroun v Liverpool City Council

[2008] NSWLEC 1172

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Marroun v Liverpool City Council [2008] NSWLEC 1172

PARTIES:
APPLICANT
Michael and Koakab Marroun

RESPONDENT
Liverpool City Council

FILE NUMBER(S):
11021 of 2007

CATCHWORDS:
Development Application :- construction of a six-storey plus basement commercial building; gazetting resumption of the subject land

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Liverpool City Centre Local Environmental Plan 2007

CORAM:
Bly C

DATES OF HEARING:
22/04/2008

JUDGMENT DATE:
15 May 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr A. Hyam
Instructed by Ms F. Khalil
of Fay Rose Legal

RESPONDENT
Mr T. Neal, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 May 2008

11021 of 2007                 Michael and Koakab Marroun v Liverpool City Council

JUDGMENT

1. This appeal relates to a development application for the construction of a six-storey plus basement commercial building at 304-308 Hume Highway Liverpool.

1. The site is zoned Mixed Use under Liverpool City Centre Local Environmental Plan 2007 and the proposal is permissible with development consent.  The application was refused by the respondent council for reasons including advice from the Roads and Traffic Authority that it did not support the application for reasons relating to the widening of the Hume Highway in this location.  The applicant subsequently appealed to the Court against the refusal.

1. On 21 December 2007 Roseth SC adjourned a s 34 conference noting that the only issue is the RTA's delay in gazetting resumption of the subject land.  the parties were directed to obtain a further hearing date and to advise the RTA.

1. On the 26th February 2008 the RTA advised that action has commenced to seek a Road Widening Order for a road reconstruction proposal which will include the whole of the subject property.  Given the procedure involved and without pre-emptying the Minister's approval it is anticipated that it will be approximately six months before the Road Widening Border is gazetted.

1. On 14 April 2008 the council advised the RTA that the matter was listed for hearing on 22 April 2008 and that should the gazettal of the Road Widening Order not be provided before the hearing date, we have been instructed to enter into Consent Orders to approve the development.

1. On 21 April 2008 the council advised that it submits to the orders of the Court, save as to costs.

1. On 22 April 2008 the s 34 conference resumed on site before me and I was advised that no further advice had been received from the RTA.  There was no appearance by the RTA at the conference.

1. At the rear of the site there is a paper laneway that the applicant proposes with the agreement of the council to construct so as to provide vehicular access to the site, thus avoiding the need for access of the Hume Highway.  At the conference the neighbouring property owner expressed concern that the proposed levels of the laneway would be such as to cause difficulties for vehicular access to their site.  The applicant has discussed with the neighbour and council engineering staff a redesign of the laneway such that access to both properties can be obtained. A condition of consent to this effect together with a cost sharing arrangement is now proposed.

1. On the basis that there is no issue in dispute between the parties and taking into account that the neighbour objection in relation to the laneway is capable of being dealt with by a condition of consent, I advised the parties on site that I proposed to uphold the appeal (for the reasons given in this judgment) and grant the consent as sought, subject to providing the RTA an opportunity to comment.  The RTA was advised of this by letter dated 22 April 2008 and there has been no response.

2. I understand that any granting of consent will not affect the RTA’s ability to proceed, if it so decides, with the Road Widening Order.

1. Conditions of consent have now been agreed between the applicant, the neighbour and the council.  I have therefore decided that the appeal should be upheld and conditional development consent granted.

   ___________________

   T A Bly
   Commissioner of the Court

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