Meehan Properties v Holroyd Council

[2007] NSWLEC 570

Land and Environment Court

of New South Wales

CITATION:	Meehan Properties v Holroyd Council [2007] NSWLEC 570
PARTIES:	Applicant: Meehan Properties Pty Ltd Respondent: Holroyd Council
FILE NUMBER(S):	10377 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	04/09/2007 and 05/09/2007
EX TEMPORE JUDGMENT DATE:	5 September 2007
LEGAL REPRESENTATIVES:	Applicant: Mr N Howie, solicitor of Wilshire Webb & Staunton Mr R Graham, solicitor of HWL Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

5 September 2007

10377 of 2007 Meehan Properties Pty Ltd v Holroyd Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Holroyd Council (the council) of a development application for a building containing a motor showroom, offices, vehicle servicing and sales and associated parking on lot 1 DP 805291, lot 38 section 4 DP 69348 and lot 1 DP 1102293, known as 306 Church Street and 10-12 Meehan Street, Granville.

The site

2 The site is at the corner of Church and Meehan Streets. Its area is 4,588m2. On the western boundary is No 14 Meehan Street, a heritage-listed cottage, of which Mr and Mrs Pearce are the owner occupants.

The proposal

3 The applicant proposes to develop the site for a motor showroom, offices, vehicle servicing and sales and associated parking.

Relevant planning instruments and policies

4 The Holroyd Local Environmental Plan 1991 zones 306 Church Street 3(c) and 10-12 Meehan Street 2(c). The proposal is permissible pursuant to cl 36 and Schedule 4 of the LEP, which permits car parking associated with an adjoining car dealership at 10-12 Meehan Street.

Matters in contention

5 The council submitted its Statement of Contentions containing eleven matters. During a conciliation conference pursuant to s34(3)(a) of the Land and Environment Court Act 1979, the parties narrowed the issues to four, namely:

· Whether a 1.5m wide setback for road widening of Meehan Street is justified.

· Whether the impact on the amenity and heritage significance of 14 Meehan Street is acceptable.

· Whether the appearance to Church Street is acceptable.

· Traffic-related issues concerning the impact on Meehan Street, the design of the carpark, the number of driveways (whether three or four) and the size of delivery vehicles.

6 During the hearing that followed the conference the parties reached agreement on all but two minor matters. The first concerned the deletion of a driveway that is proposed for the driving away of customers’ cars. It would be used two to three times a day. The council’s traffic engineer, Mr Leo Chow, told the Court that the existence of this driveway would encourage parking by trucks delivering new cars in the area in front of the site where parking is prohibited. In my opinion, this is an unlikely event that would occur, if at all, very infrequently. It does not justify imposing a condition that would require the applicant to depart from its normal practice of carrying out its business.

7 The second matter concerned the height of a fence, the dispute being between a height of 1.8m and 900mm. The applicant prefers a fence of 1.8m for security reasons. Given that the fence is recessed from the street and there is landscaping in front of it, I see no reason not to agree to the height desired by the applicant.

8 The dispute about the impact on No 14 was resolved to the council’s satisfaction because the applicant moved the upper floor a further 1.5m from the common boundary. During the view of the site I visited No 14 Meehan Street and discussed the proposal with Mr and Mrs Pearce who are objectors to the application. Their main concern is the overshadowing of their north-facing windows and the size of the building that is proposed near their northern boundary. With the further setback of the top floor, the north-facing window to the dining room will be free of shadow a little after 10 am at midwinter, while the north-facing window of the kitchen will be free of shadow by 11 am. Given that the widows face towards a side boundary and are therefore vulnerable to overshadowing, this is probably a better outcome than would occur if a two-storey house were built next door. As regards the outlook from No 14, this will be to a landscaped strip along the common boundary. While the outlook will change due to a larger building, the impact does not justify refusal.

Orders

1. The appeal is upheld.

2. Development application for a building containing a motor showroom, offices, vehicle servicing and sales and associated parking on lot 1 DP 805291, lot 38 section 4 DP 69348 and lot 1 DP 1102293, known as 306 Church Street and 10-12 Meehan Street, Granville is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 2, A and E.

_________________
Dr John Roseth
Senior Commissioner