Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 411

Land and Environment Court

of New South Wales

CITATION:

Hang v Holroyd City Council [2006] NSWLEC 411

PARTIES:

APPLICANT
Hong Hang

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

10024 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Section 96 modification, access/parking

LEGISLATION CITED:

Holroyd Local Environmental Plan 1991
Development Control Plan No. 1

DATES OF HEARING:

23/10/2006

EX TEMPORE JUDGMENT DATE:

10/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Creighton, agent

RESPONDENT
Mr G McKee, solicitor
SOLICITORS
McKees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

23 October 2006

10024 of 2005 Hong Hang v Holroyd City Council

JUDGMENT

On Site Hearing - Preliminary Findings

1 This appeal concerns a s 96 Modification to a 2 Stage development granted for a brothel at 178-179 Military Road, Guildford. The appeal was initially lodged against the conditions of consent relating to the necessity for a downstream drainage easement and the conditions for on-site parking.

2 The parties agreed to Mr L Marshall being the Court-appointed expert for traffic/parking and he prepared a detailed report (Exhibit 1) on this issue.

3 As a result of the on-site hearing (OSH), I have had the opportunity of again inspecting the property and hearing the parties’ respective positions. In this regard, the Court was informed that the issue concerning drainage was no longer pursued because the parties had agreed to alternative arrangements.

4 However, the Court was not adequately informed as to how the conditions relating to this should be modified/changed. Furthermore, the Court experienced some difficulties in understanding the applicant's position in terms of what other conditions were requested to be modified, particularly considering the interlocking nature of the conditions.

5 It is obvious that the applicant's position needs to be clarified in terms of its intentions for the staged/deferred commencement consent granted by the Court on 15 September 2005.

6 However, on the basis that the principal contested issue for today's proceedings concerns the parking issue, I note from the evidence that this comprises the following 3 elements:

i) provision of on-site parking for staff,

ii) provision of reasonable access and parking for disabled patrons,
iii) provision of adequate on-site parking for customers.

7 As I have noted previously, there is a degree of interlocking with the conditions, and I have therefore decided to present my preliminary findings on this principal contested issue, so that all appropriate modifications to the conditions and plans can be presented for final determination.

8 The proposed changes to the parking arrangements arises because the applicant has decided to retain the existing sheds/garages at the rear of the property, rather than demolish them and provide the on-site parking and turning areas as originally proposed.

9 Mr Marshall notes that the modification is in respect of the older dwelling, that is to be used on a temporary basis for 12 months, pending construction of the adjoining purpose-built brothel. By reference then to DCP 1, he says that the maximum number of staff on duty would be 3, and it is acceptable in his opinion for the required 2 spaces to be located in the garage. I accept that this is a reasonable outcome for the first element, on the basis of the 12 month temporary period.

10 With respect to the disabled access and parking, I agree with Mr Marshall's revised position, that greater width of the access way should be provided, to facilitate safe and convenient reversing onto Military Road. This then entails revision of the disabled ramp, which the applicant says can be provided to the rear of the existing dwelling. However this requires a detailed plan, to ensure its feasibility. On the basis of this feasibility, I understand the council officer accepts this could be reasonable during the 12 months temporary use period.

11 With regard then to the final element, concerning patrons parking, I accept the DCP requires 2 on-site parking spaces. I also note that this is impractical, considering the applicant's requirement to retain the rear garages temporarily. Mr Marshall considers it reasonable to delete the requirement for this parking, due to the relatively small scale of the development, the availability of adequate on street parking and the fact that it is only to operate for a maximum of 12 months, pending the completion of the adjoining purpose-built brothel, which incorporates complying on-site parking.

12 Under these circumstances, I consider it reasonable to rely on Mr Marshall's assessment and conclusion that the on-site parking requirement for 2 vehicles may be deleted. However, this is on the underlying premise that it is for a maximum 12 month period.

13 In light of these preliminary findings then, further consideration to the amended plans and modified conditions are required and I direct the parties’ intention to these matters in making the following directions.

Directions

1. The applicant is to file/serve final plans identifying the altered disabled access ramp at the rear of the dwelling and removal of the existing ramp to provide a 3.6 m wide access way to the disabled car parking space. Also, the applicant is to provide a response to council’s letter of 1 February 2006. These matters to be undertaken within 7 days.

2. Parties to confer on modified conditions with final draft conditions being filed/served within 28 days.

3. Matter set for telephone mention within 35 days.

___________________

R Hussey
Commissioner of the Court
rjs