Liu v Hurstville City Council [2004] NSWLEC 631

Land and Environment Court of New South Wales

CITATION : Liu v Hurstville City Council [2004] NSWLEC 631 APPLICANT J Liu PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10733 of 2004 CORAM: Moore C KEY ISSUES: Development Application :- LEGISLATION CITED: Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; CASES CITED: Mison v Randwick City Council (1991) 23 NSWLR 734; . DATES OF HEARING: 6 and 7 October and 11 November 2004 EX TEMPORE 11/11/2004 JUDGMENT DATE :

APPLICANT Mr S Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt, solicitor Michell Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

11 November 2004

04/10733 J Liu v Hurstville City Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Hurstville Council (the council) of Development Application 20030856 for the demolition of an existing dwelling house and construction of a childcare centre at 33 Vine Street, Hurstville (the site). 2 The matter initially proceeded by way of an on-site inspection on 6 October 2004 and was subsequently continued during a brief hearing on 7 October 2004 3 The Court has had the benefit of three Court-appointed expert witnesses in these proceedings: * Ms Laidlaw, the Court-appointed town planning expert; * Ms Harragon, the Court-appointed childcare planning expert; and * Mr Rogers, the Court-appointed traffic expert 4 As a consequence of discussions between the parties, a number of matters raised by those experts were addressed and resolved by amendments to the original plans. 5 During the course of the hearing on site, I heard evidence from a number of resident of objectors and had the opportunity of inspecting the two villa properties located to the west of the site at 1/35 and 2/35 Vine Street. 6 These are properties occupied by Mr Klok in the front villa (1/35) and Mr Yu in the rear villa (2/35). 7 I also inspected the rear yard of the site itself. 8 The resident objectors raised a number of concerns about the proposal that require to be dealt with in these reasons for decision. 9 Firstly, there was objection as to additional traffic volumes and parking generation. I am satisfied on the basis of the expert traffic material put to me that there is no substantive concern warranting refusal or additional conditions arising out of this. 10 I am satisfied that the entrance to the school (which is located at the rear of the site) and as to which some concern was expressed relating to bus parking is sufficiently removed from the site as to not be a concern. 11 I am also satisfied that the width of Vine Street is sufficient to accommodate the traffic that would be generated by this development and that appropriate arrangements have been made on site for setting down and collection of children and for the parking of vehicles. 12 In addition, an objection was raised as that, on the basis of shifting demographics, there will be some form of oversupply of preschool places in the vicinity compared to the demand for then. 13 Although this was expressed as being an objection on general principle, it in fact came from a person representing the proprietors (or himself one of the proprietors) of an existing preschool or childcare centre located in Vine Street - a little to the east of the site. 14 Consistent with the decision of the High Court in Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, it is not appropriate for me to treat, as a planning issue, the issue of economic competition because it is that which is, in effect, underlying this objection. 15 The question of noise generated from the site has been addressed by Mr Marston, a noise consultant retained by the applicant, who undertook noise measurements at the front boundary and also made some recommendations of treatments of the site relevantly, particularly, with respect to the rear outdoor playing area. 16 I am satisfied, on the basis of this uncontradicted expert evidence, that there is no concern relating to noise emission to surrounding properties except the possibility of concern for noise to be transmitted to the Yu premises being villa 2/35 Vine Street – the villa at the rear of that property. 17 Villa 2/35 Vine Street not only shares a common boundary with the site but also shares a common boundary with the existing school to the south of the site and 35 Vine Street. 18 Mr Marston undertook no testing of noise emissions coming from the school. 19 As a consequence, I raised with Mr Yu, on-site, the question of whether, if I were otherwise satisfied that the application should be approved, he wished me consider whether noise treatment measures should be undertaken to his property. 20 Mr Yu indicated that that would not satisfy him. He has, however, through Ms Hewitt, the councils solicitor, indicated to me today that if I were minded to uphold the appeal and permit the development on the basis of the proposed consent orders as a consequence of the day's hearing, he would wish some ameliorative noise treatment to be undertaken to his property to be required by amendment to the conditions.