Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 407

Land and Environment Court

of New South Wales

CITATION:

Stasia Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 407

PARTIES:

APPLICANT
Stasia Pty Limited

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

11000 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- car service centre,
bulk and scale, and height of the proposal,
impact on conservation area
impact on views of advertising sign

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

DATES OF HEARING:

23/06/2006 and 13/10/2006

EX TEMPORE JUDGMENT DATE:

10/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. McEwen, SC
Instructed by
Mr M. Staunton
of Staunton Beattie

RESPONDENT
Ms E. Ranken, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

13 October 2006

11000 of 2005 Stasia Pty Limited v Leichhardt Municipal Council

JUDGMENT

1 This is an appeal against the refusal by Leichhardt Municipal Council (the council) of the development application under the Environmental Planning and Assessment Act 1979 for a car service centre at 75 Victoria Road, Rozelle (the site).

2 The site is located on the northern side of Victoria Road, between Evans Street and Mackenzie Street. It was previously used as a petrol station, but is currently vacant.

3 Development to the north of the site is residential and the adjoining house (34 Mackenzie Street) is single storey at a significantly lower level to the site. Development along Victoria Road is a mixture of commercial development.

4 To the east of the site is 71 Victoria Road, which is a commercial building with an advertising sign. The owner, Mr Broomhead, has objected to the application on the basis that the height of the proposal would impact on the views of this sign.

5 The site is zoned Industrial under Leichhardt Local Environmental Plan 2000 (LEP 2000). The proposal is permissible within this zone. Adjoining land to the north is zoned Residential. The site and the adjoining residential land are within a conservation area.

6 The Court visited the site on 23 June 2006 and heard evidence from Mr Broomhead and Mr Smith, the Court-Appointed planning expert. In response to this evidence and the issues raised by council, the applicant sought leave to prepare amended plans, which was granted. I issued Directions as to the required amendments and the process to be followed. These Directions have been complied with and the hearing resumed on 13 October 2006.

7 The Court heard further evidence from Mr Broomhead, who suggested changes to the proposal should be made to further reduce its height and impact on the views of his sign. Mr Smith assessed the impact on these views and considers that it results from the height of the office area, rather than from the workshop. Mr Smith stated that the views of the sign would remain, although there would be some reduction. He considered this impact to be reasonable, given that the height of the proposal was below the height limit and the envelope set by the planning controls. Nonetheless, the applicant has agreed to further reduce the height of the office area by 350 mm to further ameliorate the impact on views.

8 In relation to bulk and scale of the proposal and its impact on 34 Mackenzie Street and the conservation area, Mr Smith was of the opinion that the height of the proposal is consistent with that of other buildings along Victoria Avenue. In relation to its impact on 34 Mackenzie Street, the existing change in level between the site and this dwelling means that any development of this site will potentially impact on this property. The northern wall of the proposal has been reduced to the minimum height that is feasible while allowing the functional requirements of the operation of the proposal to occur.

9 The rest of the proposal will not be visible due to the sightlines from 34 Mackenzie Street, and I accept that the treatment of the wall and its reduction in height results in an acceptable impact on this property and also on the conservation area. Council has indicated that it agrees that the proposal has been reduced to the minimum height feasible for the proposed use to occur.

10 In relation to the Roads and Traffic Authority (RTA) letter, as I understand it the RTA had previously responded to the application raising concerns about access to Victoria Road. Its latest letter, dated 12 October, raises similar concerns and suggests that the driveway access be off Mackenzie Street. Council has not raised the RTA’s concerns, either previously or in its current form, as an issue in the case and the applicant’s traffic consultant has assessed the impacts of the proposal and considers them to be acceptable. In addition, the proposal will result in less traffic than the previous use of the site as a petrol station, and I accept that the proposed access to Victoria Road is acceptable.

11 The orders of the Court are therefore:

1. That the appeal is upheld.
2. The development application for a car service centre (incorporating minor vehicle repair and a car washing service) at 75 Victoria Road, Rozelle is approved, subject to conditions in Annexure A.
3. The exhibits except Exhibits 2, 4, F, H, K, L, M, N and P may be returned.

___________________

Annelise Tuor
Commissioner of the Court