Nicholas & Anor v Wingecarribee Shire Council
[2007] NSWLEC 152
•16 March 2007
Land and Environment Court
of New South Wales
CITATION: Nicholas & Anor v Wingecarribee Shire Council [2007] NSWLEC 152 PARTIES: APPLICANT
RESPONDENT
Leslie George Nicholas and Marilyn Nicholas
Wingecarribee Shire CouncilFILE NUMBER(S): 11114 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Truck parking in rural zone, impact on scenic qualities, noise, landscaping. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Wingecarribee Local Environmental Plan 1989DATES OF HEARING: 16/03/2007 EX TEMPORE JUDGMENT DATE: 16 March 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Moggah, solicitor
of Kearns & GarsideRESPONDENT
Mr B. Bilinsky, solicitor
of B. Bilinsky & Co.
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
11114 of 2006 Leslie George Nicholas and Marilyn Nicholas v Wingecarribee Shire Council16 March 2007
This decision was given extemporaneously.
It has been revised and edited prior to publication.
JUDGMENT
Background.
1 This appeal was lodged against council's refusal of a development application seeking consent for "truck parking" for 4 trucks at Lot 9 Old Hume Highway, Yerrinbool.
2 The subject site has an area of 2 ha, with a road frontage of 80 m. It contains a single storey brick dwelling, that is located approximately 30 m from the road. A 6 m wide gravel driveway, fenced on both sides provides vehicular access to the rear of the dwelling, where there is a carport/garage and shed.
3 The proposed truck parking area is located behind the existing dwelling and is partly screened by existing vegetation.
4 The surrounding locality has a rural residential character with dwelling houses and ancillary structures, generally on landscaped 2 ha lots.
Planning Controls.
5 Wingecarribee Local Environmental Plan 1989 (LEP); under which the site is zoned No 1(c) (Rural Smallholdings). The use of the land for truck parking is subject to the following definitions:
- "truck parking" means the parking of more than one transport vehicle on a site but does not involve the loading, unloading or storage of those goods laden on the vehicle or the servicing of the vehicle on the site.
- "road transport depot" means a building or place, used for parking of not more than three transport vehicles at any one time, which are used for the purpose of a road transport undertaking, and where servicing or repair of vehicles undertaken on the site is of a minor nature.
- "road transport terminal" means a building or place used for the principal purpose of the bulk handling of goods for transport by road, including facilities for the loading and unloading of vehicles used to transport those goods and parking, servicing and repair of those vehicles.
6 The zone objectives are:
(a) to accommodate demands for rural residential use, rural retreats and hobby farms and confine those forms of development generally to areas not being of prime crop and pastoral potential or where existing services are available or maybe reasonably extended;
(b) to ensure development is carried out in a manner that minimises risks from natural hazards, particularly bushfire and flooding, and does not detract from the scenic quality of the rural area;
(c) to provide for such community uses as are necessary to meet community needs in the zone;
(d) to specify, by means of a development control plan, minimum lot sizes for areas within the zone; and
(e) to ensure that small holdings zones are not sited in localities that have been identified for future residential expansion.
7 A number of issues were identified for the appeal, which can be summarised as follows:
- whether the proposal is compatible with the objectives of the No 1 (c) (Rural Smallholdings) zone,
- whether the development is suitable for the particular site in terms of the truck parking compatibility with the land uses on adjoining properties,
- whether the proposal is permissible within the 1 ( c) zone,
- public interest considerations.
The evidence.
8 A detailed planning assessment of this proposal was presented by Mr P Malloy in exhibit 3. Having clarified that the intended use was for truck parking only and not involving any loading, unloading or servicing of the vehicles of the site, Mr Malloy's outstanding concerns were that this use would not be consistent with the scenic quality considerations for this area and disamenity could arise from noise generated from truck activity in the night time period.
9 Insofar as there was some uncertainty about the number of trucks proposed to be parked in the designated area, the applicant clarified that the proposal was for 4 “semi- trailers”, which have flat, open trays. The trucks are to be parked in parallel, with the trays adjacent to the common boundary fence.
10 Apparently, a number of these trucks have been parked on the site in the past, which has given the neighbours the opportunity to assess any impacts on their properties. There are three neighbouring properties and no objections have been lodged from them, following notification of the development proposal.
Conclusions
11 At the on-site hearing, the applicant clarified details of the development proposal. This included the definition of the area where the trucks are proposed to be parked, with the maximum number of trucks being 4. Also, details were submitted, confirming that the servicing of the trucks is undertaken at an external location and no loading or unloading is undertaken on the subject site.
12 Accordingly, I am satisfied that the proposed use of the land is for "truck parking", which is a permitted use, subject to council's consent.
13 With respect then to the merits of the proposal, I note initially that the proposed parking area is substantially screened from the public domain by the existing house, a 1.8m high Colourbond fence and surrounding mature vegetation.
14 As the proposal is to restrict the type of trucks parking to flat topped trailers or trucks with no trailers and their parking arrangements, I consider the impact on scenic amenity in this residential area can be controlled to a reasonable level by the imposition of conditions consent.
15 In this regard, I have taken into consideration that the applicant is permitted to park 1 truck on the property without consent. Therefore, the visual character of this area is likely to include visibility of a number of trucks on the various larger, rural-residential lots. Of significance in this case however, I consider that type of trucks/flat top trailers proposed to be parked on the subject land, as shown in the photos in exhibit D, confirms that they can be satisfactorily screened, without undue adverse impact on scenic qualities of the area. Other types of trucks, particularly those with high, enclosed trailers, would most likely have a more significant impact on the scenic quality and therefore be undesirable.
16 The other associated issue concerns noise disamenity. This concern arises with the possibility of the 4 trucks entering, manoeuvring and leaving the property during night time hours. In response to this concern, the applicant accepts a condition that there be a maximum of 2 truck movements during the period of 9.00pm to 6.00am, 7 days per week. Considering that the applicant is allowed to move 1 truck during this period, Mr Malloy generally agreed that the incremental change to allow 1 additional truck movement in this period would be acceptable.
17 The issue of landscape screening was also considered and the applicant agreed to supplement the existing trees along the northern boundary of the area use for truck parking to complete existing landscaping in this area. I am satisfied that this is a reasonable condition to impose in the circumstances of this case.
18 For these reasons then, I am satisfied that this proposal for the parking of 4 trucks satisfies the relevant zone objectives, particularly 1 (b) to merit conditional consent.
1. The appeal is upheld.
2. Development consent is granted to DA 06/0180, for the parking of four (4) trucks on Lot 9, Old Hume Highway, Yerrinbool, in accordance with conditions in Annexure A.
3. The exhibit to be returned except for 3, 7, A, B and D.
___________________
- R Hussey
Commissioner of the Court
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