Van Horen Holdings Pty Ltd v Blue Mountains City Council

[2006] NSWLEC 541

Land and Environment Court

of New South Wales

CITATION:

Van Horen Holdings Pty Ltd v Blue Mountains City Council [2006] NSWLEC 541

PARTIES:

APPLICAN
Van Horen Holdings Pty Ltd

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

11504 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Industrial development, drainage, environmental impact

LEGISLATION CITED:

Blue Mountains Local Environmental Plan 2005
Local Environmental Plan No. 4
Better Living Development Control Plan

DATES OF HEARING:

25/08/2006 (OSH)

EX TEMPORE JUDGMENT DATE:

08/25/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. White, solicitor
of Benetatos White

RESPONDENT
Mr T O'Connor, solicitor
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 August 2006

11504 of 2005 Van Horen Holdings Pty Ltd v
Blue Mountains City Council

JUDGMENT

This decision was given extemporaneously.
It has been revised and edited prior to publication

Background

1 This appeal was lodged against council's refusal of a development application for an industrial unit development at 19 John Street, Lawson. The details of the site, proposal and planning controls are contained in the Statement of Basic Facts on which I rely.

2 For the appeal, a number of issues were identified, with the threshold issue comprising the drainage and potential flooding of the site. Other issues concerned environmental impact on a riparian zone, landscaping, car parking and manoeuvring.

3 In response to these issues the applicant provided further details, which the council now finds acceptable, so that the parties agree to enter consent orders.

The site

4 The property at 19 John Street is described as Lots 110 and 111 in DP 883403. It is irregular in shape with a frontage to John Street of approximately 60 m and a frontage to Park Street of 135 m. The total area of the site is approximately 12,600 sq m.

5 The site generally falls from the west (John Street) to the east with a fall of 6 m over the entire length the site. The site has been significantly cleared with small clusters of vegetation across the site as well as a strand of modified bushland along the boundaries of the site.

6 The western Lot 111 contains an existing factory building and car park area, while the eastern Lot 110 has been previously cleared but is currently vacant, except for an access driveway onto the site.

The proposal

7 The proposal consists of alterations to the existing industrial building and construction of factory units and self storage units comprising:

a) conversion of an existing industrial building into 11 factory units.
b) construction of 2 new buildings, 1 to accommodate 7 factory units on an upper level and 31 self storage units on lower-level. The 2nd building is to accommodate 7 self storage units.
c) the development is to include 21 new car parking spaces, manoeuvring areas and access ramps.

8 The completed development will have a gross floor area of 5151 sq m, with the floor space ratio of 0.41:1.

9 The development also involves the construction of an internal drainage system, which discharges into a gross pollutant trap, adjacent to a 7 m wide riparian zone, on the south-eastern corner of the site. This drainage system includes on-site detention.

Planning controls

Blue Mountains Local Environmental Plan 2005

10 Under this LEP, the site is in the "Employment General" zone and "Slope Constraints", protected area.

Local Environmental Plan 4

11 Under this LEP, the site is zoned Industrial General 4(a) and the proposal is permissible with consent.

Better Living Development Control Plan

12 This DCP was adopted by the council on 8 March 2005 and contains detailed development guidelines, including vehicular access, parking and roads.

The evidence

13 In response to the threshold drainage issue Barker Ryan consulting engineers provided further details in their report "Addendum to Easement Flood Study and Site Stormwater Management Strategy - June 2006". The strategy provided details of the catchment area and relevant drainage calculation criteria.

14 According to the details presented to the Court, council’s engineers are now satisfied with the proposed drainage design, so as to enable the development consent to be granted. The overall proposal has been subject to a detailed technical assessment report, prepared by Mr P Cashel, council’s senior town planner. This includes a complete assessment of s 79 C matters, resulting in the following conclusion on the likely environmental impact on the natural and built environments:

"The site is currently developed with a factory building and car parking area. The new buildings are to be located on land that has previously been cleared. There is an area of the site which is steep and this will be retained within the building footprint. The drainage and landscaping plans show that any impacts of construction are ameliorated.

The Department of Natural Resources have issued General Terms of Approval.
Additional traffic can be accommodated within the existing road system.

Noise generated from new industrial uses can be assessed when applications are made for the first use of each new unit."

15 Mr Cashel’s ultimate conclusion is that:

"There are a few issues of concern with the proposal. The proposal is slightly higher than Draft LEP 2002 permits however no adverse impact will result. The proposal does not provide for 20% of the site as impervious, however on-site detention will minimise the impacts of stormwater and the development will still present well to the street with a dense landscape strip to the entire frontage. All other issues are considered to be resolved by way of conditions of consent".

Conclusions

16 Having considered the evidence and undertaken a view, I am satisfied that consent orders should now be granted. It appears that the threshold issue of drainage control has been addressed to council’s satisfaction, for the new development. This includes grading the lots and access ways into the on-site drainage system, which are connected to the on-site detention system and gross pollutant trap. This discharges into the downstream riparian zone, which is to be finally designed in accordance with the requirements of the Department of Natural Resources, as required by the conditions of consent.

Court orders

17 By consent the Court orders:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development Application X/1362/2003 lodged with Blue Mountains City Council for alterations to existing industrial building, new industrial units and self storage units at 19 John Street, Lawson, being the land contained in Lots 110 and 111 in DP 883403 is approved as shown in the plans and documents identified in Condition 1 of Annexure “A” hereto subject to and in accordance with the conditions in Annexure “A”.

___________________

R Hussey
Commissioner of the Court
Rjs/ljr