Terry Street Pty Limited v Leichhardt Municipal Council - [2007] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION: Terry Street Pty Limited v Leichhardt Municipal Council [2007] NSWLEC 131
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Terry Street Pty Limited
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 11464 of 2005

CORAM: Moore C

KEY ISSUES: Contaminated Land - Development Application :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Conveyancing Act 1919

CASES CITED: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

DATES OF HEARING: 22 to 25 May, 1 August 2006, 5, 6, 7, 9 and 14 March 2007

DATE OF JUDGMENT:
30 April 2007

LEGAL REPRESENTATIVES:
APPLICANT
Ms H Irish, barrister
INSTRUCTED BY
Minter Ellison
RESPONDENT
Mr G Green, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

30 April 2007
11464 of 2005 Terry Street Pty Limited v Leichhardt Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal on 22 December 2005, by Leichhardt Council (the Council), of Development Application 2004/632. The Development Application seeks consent to change the use of an existing warehouse building at 120 Terry Street, Rozelle (the site). Two visits were made to the site because of the significant gap between the initial and final phases of the hearings.

2 The Development Application was publicly notified for a period of 14 days from 1 December 2004 until 15 December 2004. 41 submissions were received objecting to the development proposal (including two petitions containing 339 signatures).

The proposal

3 The proposed new uses for the site would be three bulky goods retailing tenancies and undercover parking together with the use of an existing three storey commercial building as a gymnasium. Necessary associated works are proposed to be carried out to the existing buildings to effect their adaptation for these proposed new uses.

4 Car parking for 53 cars is proposed inside the existing warehouse building with a further 111 car parking spaces proposed on the paved area predominantly to the west of the warehouse building.

5 Clause 22(3) of the Leichhardt Local Environmental Plan 2000 (the LEP) renders the proposed uses permissible with consent. In addition, the existing buildings on the site have an FSR of 0.6:1 which complies with the relevant development standard in the LEP.

The Site

6 The site has a lengthy frontage to Terry Street, Rozelle on the northern and western elements of its boundaries. The site also has a rear (southern) boundary to Crystal Street.

7 The site is located within a precinct of industrially zoned land with a mix of industrial and light industrial uses. This is a small precinct bounded by Terry Street, Wellington Street and Victoria Road. Although commercial interests associated with the applicant have proposed a Master Plan for this precinct to the Council, this proposal played no part in these proceedings.

8 The site has an area of ~ 1.4 ha. The site is relatively flat although there are landscaped embankments falling from this flat area to both the Crystal Street frontage and the western element of its Terry Street frontage.

9 The site is the former Carrier Air Conditioning (Carrier) premises. Structures presently on the site are a three-storey former office building (proposed to be the gymnasium) and an attached single storey warehouse building (proposed to be divided into indoor parking and the three retail bulky goods tenancies) which was previously used for the warehousing of air conditioners for Carrier.

10 The site is on the boundary between two zones. Relatively new medium density residential developments are located on the opposite side of Terry Street. As the Council’s Statement of Basic Facts notes, “these developments contain a variety of dwelling types, being predominantly apartments, although there are some terrace-style dwellings fronting Terry Street opposite the site.”

11 Terry Street is the most westerly of the access routes to the Balmain Peninsula. Only left turn movements are permitted (toward the east) from Terry Street at its intersection with Victoria Road. Wellington Street, the first intersecting street on the southern side of Terry Street, is a One Way street in a southerly direction, toward Victoria Road, from its intersection with Terry Street to its junction with Victoria Road. Wellington Street is the most westerly of the egress routes from the Balmain Peninsula.

12 The eastern side of Wellington Street (toward its junction with Victoria Road) comprises the rear frontage of Rozelle Public School.

The issues

13 Although the Council raised a list of issues in the formal Statement of Issues, the matters which require to be addressed by the Court constitute the following:

what should be the restrictions in any consent arising from the lack of knowledge of the contamination history of the site;
whether there should be a requirement for separate development applications for the use of each of the bulky goods units in order to ensure that the proposed use did not generate excessive traffic impacts and parking demand;
whether there is to be adequate provision of parking spaces on the site; and,
finally, what restrictions (if any) should to be imposed on the hours of operation of the proposed gymnasium in order to ensure that there were no unsatisfactory impacts on the residential amenity of those living in Terry Street opposite the site.

14 A number of detailed matters also arise to be determined out of disputed matters in the proposed conditions which would attach to any consent.

15 Residents informally gave evidence during each site inspection and also provided detailed written material in support of the Council’s position.

Contamination

16 State Environmental Planning Policy No 55 – Remediation of Land and Leichhardt Development Control Plan 2000 Development Control Plan No 42 – Land Contamination are both relevant to this proposal. However, for reasons which derive from the following recital of how matters developed during the lengthy period of time between the first hearing in May 2006 and the conclusion of hearings in March 2007, I am satisfied that I do not need to embark upon a detailed consideration of the terms of either document.

17 During the lengthy course of these proceedings, questions relating to the level of contamination which may exist on the site have continued to be addressed by the three contamination experts involved. These experts were Mr Nash on behalf of the applicant, Mr Mohen on behalf of the Council and Mr Neyland as the site auditor.

18 When the matter was first heard, there was inadequate availability of information concerning contamination issues available to the Council and to the Court. Although this was largely outside the then control of the applicant, further information and reports were able to be made available as it became clear that understanding the level of contamination of the site to a sufficient degree to permit proper consideration of its uses, as proposed by the applicant, was not then available.

19 The first inspection of the site had disclosed that there were areas of potential contamination about which sufficient information was not then available.

20 The further information which emerged included a number of contamination assessment reports prepared over several years. These contamination reports enabled the conclusion to be drawn that it was not highly likely that the site suffered from significant contamination levels so as to pose a risk of harm to human health from the past industrial activities on the site

21 However, the information also disclosed, I am satisfied, that a prudent and precautionary approach needs to be taken for any development permitted on the site – including development of the nature proposed by this application.

22 The Council’s own records show a sketchy history of development approvals for the site including approvals which may have applied not merely for activities within the boundaries of the site but also to other land in a then common ownership and also in the vicinity of the site. This history of approvals does not provide any detail as to the specific uses or activities which have taken place on the site in the past.

23 The initial position adopted by the Council, based on such information as was then available, was that the application should be refused by the Court because of the paucity of information about levels of contamination and, consequently, about the acceptability of the proposed uses.

24 The position adopted by the applicant was that a proper precautionary approach was being taken by it in proposing capping [and therefore isolating of any potential contamination] in a fashion which was, in its submission, an acceptable response to the possibility that some greater degree of contamination than the applicant’s expert advisor considered was likely to be present.

25 The involvement of the site auditor and the further joint consideration by the three contamination experts has enabled the Council and the Court to gain a better appreciation of what is able to be known and to make some assessment of the possible dimensions of what remains unknown about the level of contamination on the site.

26 This has caused the Council’s position, on the impact that this issue should have on the prospect of approval for the application to shift from merely outright opposition (on this ground) to a position which advocates that a time limited consent might be appropriate to be granted if a consent were to be granted. The Council continues to resist the possibility of an enduring consent being granted.

27 On the other hand, the applicant adopts the position that imposition of a time limited consent would be unreasonable but says that, if such a time limited consent should be granted, such a consent should be for a period of at least twenty years.

28 In light of the conclusion I have reached that, under the circumstances of the final positions reached by the three contamination experts, an enduring consent would be appropriate, I do not need to reconcile these competing positions.

29 Toward the end of the proceedings, two agreed positions emerged from the considerations by the three contamination experts.

30 The first was that it would be possible to record that there was a degree of uncertainty as to the history of industrial uses of the site and thus of potential sources of contamination on the site. The parties agreed that this recording be made as part of the conditions of any consent which might be granted by these proceedings.

31 The three contamination experts agreed upon the appropriate form of words for such recording. This would take the form of a notation at the commencement of any development consent and be in the following terms:

NOTE TO THIS DEVELOPMENT CONSENT

The site history has been considered in the assessment of contamination. The assessment of the adequacy of the site history has included the acknowledgement of the uncertainty in the previous uses of the site and therefore the potential for contamination to be present in addition to that identified to date.

The uncertainty in the site history and therefore the actual uses of the site and possible contaminants should be noted and described in the EMP that is required for the site.

The details should include a minimum of:

(b) Reference to Exhibit 23 Land and Environment Court File #05/11464 (copy attached as Attachment A) that provides a list of Development Applications for the site.

(c) A description of the relevance of this document (Exhibit 23) to the site, including that it may refer to areas that are adjacent or nearby.

(d) Reference to the possible use of the site as a pharmaceutical and chemical laboratory and/or factory by Elliott Brothers, DHA Chemicals and Monsanto from late 1800s to 1960s.

32 The terms of Exhibit 23 [as noted in (c) above] are not reproduced as part of this decision.

33 Having considered the detail of the past contamination history, such as is available, I am satisfied that this recording as a preamble to the conditions of consent will provide sufficient and appropriate notice to any future owner of the uncertainties associated with the site. In addition, of course, the Council may choose to make an additional notation on the site’s s 149(5) certificate register entry to include this notation.

34 The second was an acceptance, on a purely precautionary basis, on the part of the applicant’s expert, that a process which required re-certification to the Council on a five-yearly basis as to the then continuing fitness for use of the site to continue could be required as part of the ongoing Environmental Management Plan for the site.

35 As a consequence, an agreed condition [condition 40B(3)(c)] has been provided as part of the without prejudice conditions of consent to reflect this position. This condition is in the following terms:

(i) A audit of the site is to be undertaken by an auditor accredited under Part 4 of the Contaminated Land Management Act 1997 once every 5 years commencing from the date of issue of any occupation certificate.

(ii) At the completion of the audit, the site auditor is to prepare and provide to the Council a compliance report as to whether:

(A) the EMP has been properly implemented and complied with during the preceding 5 year period; and

(B) all capping systems specified in the RAP and EMP remain in place and have been adequately maintained.

(iii) The compliance report is to contain a record of any breaches and repairs to the capping system during the preceding 5 year period.

36 Absent such an ongoing and precautionary review and certification regime, the Council’s proposition for some degree of time limit on the consent would have been more difficult to resist. However, provided this process of regular review continues to support, by unqualified certification, the present conclusions about fitness for use, it will provide an appropriate basis for ongoing degree of community comfort about the continuing suitability of the site for its proposed uses.

37 There are also settled conditions concerning the Remediation Action Plan and detailed prescriptions for the preparation of an Environmental Management Plan.

38 As a consequence of my consideration of these two elements; the settled conditions concerning the Remediation Action Plan and detailed prescriptions for the preparation of an Environmental Management Plan; the terms of the various investigation reports; the terms of the remediation proposed and the acceptability, as discussed later of the now evolved landscaping proposal for the site – particularly along the bank along the Terry Street frontage, I am satisfied that it would be appropriate, on contamination grounds, to permit the proposed uses to take place and that there should not be a time limit on the consent.

The gymnasium

39 As earlier noted, the proposed three-storey building currently erected on site is to be converted into a gymnasium. As a consequence, the residents of the dwellings on the opposite side of Terry Street have raised a number of concerns with the Council, which supports these concerns, relating to early morning and late evening noise impacts on their residential amenity.

40 These impacts would arise either as a consequence of noise generated by vehicles arriving or departing in the early morning, whether they are the vehicles of staff or early-morning patrons, or from street noises caused by patrons approaching or departing gymnasium on foot.

41 With respect to this latter point, the applicant seeks to draw a distinction between patrons who might be leaving licensed premises on foot and those who would be leaving this proposed gymnasium on foot.

42 Whilst those making noise after visiting licensed premises may do so because of behaviour fuelled by alcohol and those making noise after visiting a gymnasium may do so because of behaviour fuelled by exuberance, the differences in noise and the possibility of sleep disturbance may not differ in substance.

43 In the present instance, the expert noise evidence satisfies me that there are real possibilities of times, particularly in the early morning, when there may be unacceptable impacts on the residents opposite.

44 To deal with these impacts, the Council proposes that the hours of operation for the gymnasium should be shorter than those proposed by the applicant's suggested conditions. The terms of this condition set out below [with the applicant’s proposed times appearing first in each relevant instance]:

and used for the purpose approved within the following hours.

The hours of operation are limited to the following:

Monday to Friday [5.30am] [7:00 am] to [10.00pm] [9:00 pm]

Saturday, Sundays & Public Holidays [7.00am] [8:00 am] to 7:00 pm

Starting times for group classes and individual bookings are required to be staggered at fifteen (15) minute intervals. Not more than 25% of classes and individual bookings to be operating within any one hour shall be commenced at each of the 15 minute intervals.

Applicant's comment : The Applicant objects to the staggering of class commencement times. There is no evidentiary basis justifying such a requirement.

Council's comment

premises may operate from

7.00am and 9.00pm to 10.00pm

8am

For a trial period of [12] [24] months from the date of commencement of these extended hours. The gymnasium operator shall inform the Council in writing of the date upon which these extended hours commence within seven (7) days of the commencement of the extended hours of operation.

Any application for extension of the trial period or application to implement the hours of the trial period permanently shall be accompanied by information confirming the number of members using the gymnasium and projection of gymnasium member numbers. Any additional period may be subject to a limit on the number of members permitted.

Applicant's comment : ALTERNATIVE TIME PERIOD FOR TRIAL PERIOD

The Applicant opposes a trial period but submits that if the Court is minded to grant a trial period it be for a period of 12 months only. Twenty four months is onerous and provides less certainty for the gymnasium operator. Trial periods are ordinarily 12 months which is sufficient time to take into account seasonal variations.

Also, the Applicant submits that any trial period in the morning should be for the period 5.30 – 6.00am only. The Balmain Fitness gymnasium in Roberts Street, Balmain opens at 6.00am on weekdays and is also adjacent to residential development.

The Applicant also objects to the requirement to provide information concerning the number of members of the gymnasium and any limitation on numbers in any application for an extension of the trial period or for permanent hours. There is no evidentiary basis for such a requirement.

Council's comment : The Applicant has had the opportunity to make submissions on this matter and has not raised this. Notwithstanding, the Council says that on this particularly zone interface, the trial period should relate to the sensitive hours.

45 Two significant elements required to be considered out of these alternative positions. The first is whether or not there should be a trial period rather than a decision, simpliciter, about the hours of operation of the gymnasium. The second is the times to which a trial should attach and the length of the trial itself.

46 In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, Bly C set out the principles concerning development at zone interfaces. He said:

25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. ……………….. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

47 It is appropriate to have regard to those principles to the present case.

48 These principles would impose constraints on both the applicant’s and the residents’ positions.

49 However, in the present instance, I am satisfied that a position which would also arise from an ordinary consideration of such a gymnasium proposal would not add any extra burden in these circumstances.

50 The possibility of early morning noise impacts has been addressed to a considerable extent by the requirement for parking for such activities to be undercover and with direct access to the gymnasium from that car park. However, there is still a distinct possibility that there will be local participants who will visit the gymnasium premises on foot for early morning or later evening exercise purposes.

51 Noise from such persons cannot be entirely excluded from consideration – even in light of the proposed measures contained in the Good Neighbour Gymnasium Management Plan which is to be part of the conditions of consent. Even accepting these endeavours, the risk cannot be entirely eliminated – the purpose of a trial being, therefore, to enable an assessment of actual performance.

52 As a consequence, I am satisfied that it would be reasonable to impose a trial period on the activities of the gymnasium prior to 7 a.m. Such a trial period should operate for 12 months from the date of commencement of the gymnasium activities. The distinction between the Council and the applicant on the length of the trial period is, in fact, an illusory argument as it will be open to the Council, should it wish to do so (and have valid reasons for doing so), to consider whether or not some further trial period extension should occur at the expiry of that 12 months.

53 The Council also proposes an additional hour be added to the morning trial period on Saturdays, Sundays and public holidays. Although no specific submissions were made to draw a distinction between these days and general weekday activities, I am satisfied that some allowance should be made on these days.

54 The additional hour trial period should be provided for as proposed by the Council. Whilst Saturdays, Sundays and public holidays are increasingly being regarded as ordinary work days in modern industrial relations regimes, I am not satisfied that this is so universal as to reject more traditional attitudes to weekends and holidays as being community periods of rest.

55 As to the evening hours, as the likelihood of noise impacts on nearby residences may well arise after the time at which the gymnasium closes, it is also not unreasonable to impose a trial period after 9 p.m. in the evenings. Had there been no trial period between 9 p.m. and 10 p.m., then questions of immediately post 10 p.m. noise and behaviours would not be in the balance when assessing the permanent hours of operation on some future application.

56 Providing the supervision of a trial period during these hours is consistent with the approach taken by the EPA's Industrial Noise Policy for protection of residential premises from commercial and industrial activities.

57 Two matters of detail arise with respect to the conditions relating to the gymnasium as proposed by the Council. The first is the requirement that:

Starting times for group classes and individual bookings are required to be staggered at fifteen (15) minute intervals. Not more than 25% of classes and individual bookings to be operating within any one hour shall be commenced at each of the 15 minute intervals.

58 As the applicant has submitted, there is no evidentiary basis for such a requirement. In addition, there is nothing from the face of the requirement, on a first principles basis, which would require its incorporation. This proposition is therefore rejected.

59 The second matter of detail is the proposal by the Council that:

Any application for extension of the trial period or application to implement the hours of the trial period permanently shall be accompanied by information confirming the number of members using the gymnasium and projection of gymnasium member numbers. Any additional period may be subject to a limit on the number of members permitted.

60 I have no evidence which would demonstrate that some absolute number of members of a gymnasium will be the determining factor in noise generation at the hours which are to be the subject of a trial period for this gymnasium.

61 It may well be that, if the Council has concerns about the noise impacts during the hours which are the subject of a trial period, on any application for permanency or extension of the trial, the Council might have a basis for seeking details of patronage numbers during those hours.

62 However, to impose such a requirement on the basis of the material before the Court on this application would be to respond to speculation rather than evidence.

63 This requirement is, therefore, rejected.

Parking and traffic matters

64 I have obtained a transcript of the evidence given by Mr Masson and Coady on 6 and 7 March concerning parking issues. I have considered whether or not I should be include significant and lengthy extracts from this transcript in these reasons for decision.

65 I have concluded, despite the fact that there is significant disagreement between these witnesses, that the fundamental question which arises as to whether or not accept the totality of the parking calculations set out by Mr Masson in his analysis or the evidence of Mr Coady can be determined from a very narrow point arising from the competing evidence concerning Saturday morning parking demand calculations.

66 On Saturday morning parking demand, Mr Coady conceded that there was a degree of overlap of demand and he particularly conceded, in a Supplementary Statement ff Evidence, that it was unlikely that the peak parking demand of the gymnasium and the bulky goods retail outlets would coincide on Saturday mornings.

67 In this Supplementary Statement of Evidence, he proposed that there was a concept he called “effective capacity” for the car park and that I should have regard to this.

68 If I accepted such a concept, its adoption would involve accepting a 90% calculation regime for the availability of car parking spaces rather than the number of spaces actually provided.

69 Mr Coady also considered that this car park was one which was difficult to use because of its layout and thus also not likely to be used to its full potential.

70 When questioned concerning the concept of effective capacity, he acknowledged that there was no standard, guideline or any other basis in the professional literature for its adoption. Mr Masson offered no comfort or support for this proposition of an effective capacity - a concept of which he said he had no knowledge.

71 In this regard, I have reluctantly concluded that Mr Coady's evidence has, unfortunately, been clouded by a concept for which there appears to be no general professional basis for consideration.

72 I am left in a position where, in extensive evidence over a considerable period of time and a considerable volume of written material, I am obliged to choose between reliability and acceptability of this competing evidence.

73 In this instance, Mr Coady's pressing of an unknown concept together with his broader acknowledgement that, absent adoption of such a concept, Mr Masson's calculations are accurate on that point, leads me to prefer, on balance, Mr Masson’s overall evidence.

74 Having reached that conclusion, it necessarily follows that, on the basis of consideration of the various matters concerning parking, the parking proposed, on the revised parking layout, should be regarded as acceptable.

75 Against the outside possibility that this might not be the case because of a specific retail user becoming the tenant of the largest of the three bulky goods retail spaces, as discussed below, an additional safeguard can be provided by requiring specific consent for this use.

76 A minor residual matter remains to be determined concerning parking which related to the loss of parking spaces on Wellington Street and the need for a restricted period of hours during which parking would be banned in three spaces on the eastern side of Wellington Street in the vicinity of Victoria Road.

77 Residents raised concerns at the loss of these parking spaces and the availability of these spaces for picking up children from Rozelle primary school.

78 Mr Masson and Mr Coady agreed that restrictions would be needed at this location but disagreed on a period of time for which they should operate in the afternoons.

79 Mr Masson's position would provide an additional half an hour closer to school termination time and I am satisfied that, balancing the possible needs of the school against traffic flow matters that Mr Masson's position should be preferred.

80 Although the loss of three parking spaces in this locality is a detriment to residents, that detriment is not sufficient, in itself, to warrant refusal of the application and, absent other factors which would contribute significantly to such refusal, cannot lead to such refusal.

81 Finally, on traffic matters, although the residents were concerned about delays in time to transit the Wellington Street egress from the Balmain Peninsula, although I am satisfied that there are likely to the increases in intersection transit period, I am not satisfied that there is any technical evidence to indicate that these will be rendered sufficiently unacceptable to make any major contribution to consideration of refusal of the proposal.

Terry Street landscaping

82 For completeness, I record that the applicant originally proposed that the embankment along the western portion of the Terry Street streetscape should be landscaped using a synthetic turf cover. In face of continuing opposition to such a proposal from the Council and a first instance doubt raised by the Court as to the acceptability of such treatment, a revised Terry Street frontage landscape plan was prepared.

83 The landscaping in this portion of Terry Street is now to involve retention of the existing trees together with a tiered embankment to be constructed and planted in a fashion so as to ensure that there will be no disturbance of any potential contaminants located in this area.

84 I am satisfied that this is an appropriate streetscape and contamination response to this portion of the site.

Deferred commencement

85 The Council proposes that there be a deferred commitment condition dealing with a number of matters. As dealt with in the traffic and gymnasium use sections of this decision, I am satisfied that the matters proposed to be subject to be deferred commencement condition can be dealt with in the substantive body of the conditions of consent. There is, therefore, no need for a deferred commitment provision to apply.

86 As I have also concluded that an enduring development consent should be granted, proposed condition 2 requiring the surrender of the existing development consent dated 26 March 1984 is not opposed by the applicant. Therefore the requirement for such surrender is to be included in the conditions of consent.

87 Also, as I have concluded that an enduring development consent for the premises should be granted and as the issues relating to possible impacts of the amenity of residents caused by the use of the gymnasium are to be addressed by the imposition of a trial period covering the hours when unreasonable impacts may be occasioned by the gymnasium’s use, condition 3 imposing a time limit of the use of that gymnasium is also unnecessary.

88 With respect to the proposed Council condition requiring separate approvals for the use of each of the individual retail bulky goods units prior to be used for that purpose, I am satisfied that the applicant’s position should be preferred.

89 I have reached this conclusion in light of my earlier rejection of the position advanced by Mr Coady that I should have regard to what he describes as an effective capacity basis of calculation for the car park. I accept the evidence that it is possible that the nature of the retailer which leases the largest of the three spaces may, potentially, have some degree of impact, including a potentially significant impact, on parking demand and hence the adequacy of the proposed parking provision on the site.

90 Under these circumstances, it is not unreasonable to require an assessment of this possible use in case there are such potential adverse parking impacts likely to be realised.

91 In addition, the Council proposed that the number of detail requirements be specified for the smaller retail tenancies if they were not to have their uses approved by the Council prior to commencement. Those requirements were:

The final uses chosen by the person having the benefit of this consent for the smaller units shall not generate a parking demand greater than 4.3 spaces per 100m2 of Gross Lettable Floor Area. The final uses shall be such that they do not require deliveries from trucks which are larger than an HRV (12.5 metres long truck) or an SRV (6.4 metres long truck). The uses must also demonstrate that they do not generate a requirement for staff parking than would be greater than that available on the site and will generate waste that can be accommodated in the on site waste area prior to collection.
Details of the use nominated uses and assessment of the parking and loading requirements shall be submitted to the Council prior to commencement of the use.

92 I am satisfied that, in general terms, apart from be restriction on the largest of the three retail premises, it is not appropriate or supported by the traffic evidence to impose these additional conditions.

93 Nothing was said during the course of the evidence given by Mr Coady, for example, that matters of staff parking for these smaller retail outlets should be of concern.

94 The question of waste generation of these outlets was not canvassed in any fashion whatsoever.

Hours of operation of the bulky goods retail outlets

95 The Council proposes a later starting time on Monday, Tuesday and Wednesday mornings. I cannot accept that there is any special reason why these three mornings warrant special starting times. The applicant’s starting times of 9 a.m. are accepted.

Access to the gymnasium

96 During the course of the hearing, as discussed with respect to residential amenity, concerns about noise impacts on the occupants of neighbouring properties of the opposite side of Terry Street were to be addressed, in part, by the provision of parking for early morning gymnasium users and early morning arriving staff in the undercover parking area.

97 In order to remove the necessity for such patrons and early morning arriving staff to go outside the building in order to access the gymnasium facilities proper, the applicant has accepted that it is appropriate to provide an internal path of travel between the on-site parking areas and the gymnasium. A customer entrance and egress to the gymnasium is to be incorporated in the southern elevation of the gymnasium building. This entrance and exit to the gymnasium will enable access and egress direct from the car park for such early morning arriving patrons.

98 In the condition dealing with planned amendments to reflect this and the agreement between the parties that it is not appropriate for residents of the opposite side of Terry Street to look into the operational floors of the gymnasium, a requirement was agreed to that the gymnasium windows were to be treated so that they could not be looked into from outside.

99 In addition, however, the Council proposes that the glass in the gymnasium entry and exit doors also be treated or constructed so as to prevent persons being able to look into the gymnasium.

100 The applicant has submitted that the requirement for treatment to the entry and egress doors is inappropriate for safety reasons. The applicant has submitted:

Persons entering the gymnasium would not be able to see if another person was exiting and this poses a safety risk.

101 On my reading of the plans, the entry and exit doors will either be from the street to a dedicated entrance foyer and reception area or from the undercover parking into the gymnasium at the ground floor rather than to the exercise levels.

102 In light of where I understand that such doors would be located and the apparent complete impossibility of observing any gymnasium activities through these doors, the applicant’s position is accepted.

Asbestos

103 The Council proposes a condition dealing with asbestos in the following terms:

Documentary evidence shall be submitted to the Council for approval of the buildings do not contain asbestos or if asbestos is found that it does not pose a risk to human health.

104 The applicant has provided no detailed comment on this contested condition. It is, prima facie, not unreasonable to require such documentation. There does not seem to be any reason why this should be provided to the Council for approval and as a consequence, this condition is to be included.

Landscape watering – Terry Street embankment

105 As part of the stormwater drainage and management arrangements, the Council has proposed that the watering system to the Terry Street embankment be by a drip irrigation system. The Council's version of the relevant provision would read:

A drip irrigation watering system is to be provided to the Terry Street embankment. Water for this system shall be derived from tank water extracted from roof surfaces of the a [sic] buildings on site.

106 The applicant proposes a version of this clause which would read:

A watering system is to be provided to the Terry Street embankment to be utilised during dry periods. Water for this system shall be derived from tank water extracted from resurfaces of the a [sic] buildings on site.

107 The applicant's submission objects to the requirement that the irrigation system be a drip irrigation system. The applicant submits:

The conditions should just state that a watering system is to be provided. As the water will be derived from a water tank on the buildings on the site, there is no reason why the system must be a drip irrigation system. A spray watering system could be employed during dry periods when irrigation is required.

108 The inclusion of the applicant’s phrase “to be utilised during dry periods” does not appear to contain any novel sentiment and could be regarded as a statement of the obvious. There would be appear to be no reason not to incorporate it and I have no submission from the Council to require its removal. It may be included.

109 The specification of a drip irrigation system (as opposed to a spray watering system) is one without having any detailed submission for or against such concept. However, such a drip system is more likely to be water efficient and therefore, from first principles, environmentally responsible. The requirement for a drip irrigation system is therefore accepted.

Maintenance of the on-site stormwater detention facilities

110 A positive covenant pursuant to s 88E of the Conveyancing Act 1919 is proposed to ensure the maintenance of the on-site stormwater detention facilities.

111 The document incorporating the matters arising out of the conditions which were in contention between the parties deals with this as follows:

The Council shall have the right to enter upon the land referred to above, at all reasonable times to inspect, construct, install, clean, repair and maintain in good working order all pits, pipelines, trench barriers and other structures in or upon the said land which comprise the OSD or which convey stormwater from the said land; and recover the costs of any such works from the proprietor.
The registered proprietor shall indemnify the Council and any adjoining land owners against damage to their land arising from the failure of any component of the OSD, or failure to clean, maintain and repair the OSD.
The proprietor or successor shall bear all costs associated in the preparation of the subject 88E instrument. [This italicised element is not contested]

Applicant's comment

Council's comment

112 With respect to the first of the contested points, it would seem to me to be reasonable that the Council have the right to inspect such facilities at all reasonable times and on reasonable notice.

113 With respect to construction, installation, cleaning, repairing and maintenance in good working order of such facilities, I am satisfied that such a provision might be an acceptable last resort measure but should only be available to the Council if it has given notice to the proprietor of the premises that such works were required to be carried out.

114 Such notice should specific a reasonable period of time, having regard to the nature of the deficiency identified during the inspection, within which such works were to be carried out by the proprietor. If, in fact, they were not so carried out under such notice, intervention should be permitted to the Council with its costs able to be recovered by the Council from the proprietor.

115 The parties are to settle a revised version of this wording to reflect this element of my decision.

116 With respect to be second of the contested points, there would appear to be two elements proposed by the Council. The first relates to failure, however occasioned, by any component of the on-site stormwater detention facilities. No concept of fault appears to be incorporated in this element before the proposed indemnity could be called upon. I am not prepared to impose such an open-ended liability.

117 The second deals with failure to clean, maintain and repair the on-site stormwater detention facilities. This appears to import concepts of negligence. If negligence did occur at the hands of some proprietor (and such alleged negligence might well be contested), it does not seem unreasonable that such indemnity would be available. Indeed, if negligence did occur, such a provision might merely be stating what would be the position at law in any event.

118 The parties are also to settle a revised version of this wording to reflect this element of my decision.

119 The proposed condition containing the on-site stormwater detention facilities maintenance provisions discussed above [condition 46] is entitled Approval to use/occupy a building.

120 The Council version incorporates the following (immediately after the positive covenant matters discussed above):

All of the above preconditions together with the following preconditions must be complied with before the issue of an Occupation Certificate.

121 The applicant's comment on this is:

The Council failed to indicate on 14 March 2007 that the above line was in dispute between the parties. The Applicant submits that it should be deleted on the basis that it is unnecessary. The second paragraph of Condition 46 makes it clear that the preconditions have to be complied with before the issue of an interim occupation certificate. It does not need to be repeated in the middle of the condition.

122 However, the second paragraph of Condition 46 merely makes it clear what are the preconditions to be complied with before the issue of an interim occupation certificate. This paragraph, as I understand it, adds other preconditions (which follow this paragraph) which must be complied with before the issue of a final Occupation Certificate.

123 This does not appear to be unreasonable from the terms of the additional requirements.

Terry Street exit sign

124 Given my acceptance that matters proposed to be deferred should not be so deferred, condition 47A, as proposed by the applicant, is appropriate.

Conclusion

125 I have concluded that the appeal should be upheld and that an enduring development consent should be granted subject to conditions to be settled by the parties in light of this decision.

Orders

126 Therefore the orders of the Court will be:

The appeal will be upheld:
Development Application 2004/632 will be determined by the granting of development consent subject to the conditions to be settled by the parties in light of the terms of this decision; and
The exhibits, other than Exhibits C, D, M, P and AO, will be returned.

Directions

127 To enable the finalisation of this matter, I direct that the matter be mentioned before me at 9.15 am on Friday, 4 May, for the parties to hand up a copy of the finalised conditions of consent settled by them in light of this decision. If the parties are unable to settle the drafting of any matter, it will be dealt with and determined at that time.

128 In addition, there may be small differences in wording between the applicant's version and the Council's version of the conditions which have not been covered by the commentary which the parties have provided on the conditions and which may not have been noticed by me. The parties are directed to confer about the detailed conditions and any other matters of disagreement can also be canvassed at the mention. Needed language corrections such as that noted in (105) and (106) [to condition 23(b)(iv) should also be made as discovered during this checking process.

Commissioner of the Court

16/05/2007 - Correction of Development Application number - Paragraph(s) 1 and 126

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Citations

Terry Street Pty Limited v Leichhardt Municipal Council [2007] NSWLEC 131

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

2

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

CITATION:	Terry Street Pty Limited v Leichhardt Municipal Council [2007] NSWLEC 131 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Terry Street Pty Limited RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	11464 of 2005
CORAM:	Moore C
KEY ISSUES:	Contaminated Land - Development Application :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Conveyancing Act 1919
CASES CITED:	Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
DATES OF HEARING:	22 to 25 May, 1 August 2006, 5, 6, 7, 9 and 14 March 2007
DATE OF JUDGMENT:	30 April 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms H Irish, barrister INSTRUCTED BY Minter Ellison RESPONDENT Mr G Green, solicitor Pike Pike & Fenwick