Land and Environment Court of New South Wales CITATION : Reece Pty Ltd v Ku-ring-gai Council [2004] NSWLEC 636 APPLICANT Reece Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10379 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- permissible in zone - drainage - public interest LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 13-14/10/2004 EX TEMPORE 10/14/2004 JUDGMENT DATE : APPLICANT Mr D Wilson, barister SOLICITORS Kemp Strang LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 14 October 2004 10379 of 2004 Reece Pty Ltd v Ku-ring-gai Municipal Council JUDGMENT 1 This appeal was lodged against council's refusal of a development application for the construction of a new commercial building at No. 8 West Street, Pymble. The site has an area of 945 m sq and the proposal contains 2 levels, comprising roof top parking for 8 vehicles, ground floor for display, storage and commercial sales of plumbing goods and also a basement area for use as a warehouse and 2 car spaces. 2 The site is zoned Business General (3(b)) under the Ku-ring-gai Planning Scheme Ordinance. 3 For the appeal a number of issues were identified including: - whether the proposal is permissible - drainage - site contamination - building setback 4 However, in the lead up to the appeal, further conferencing has been undertaken with the outstanding issues resolved to council's satisfaction so that the parties agreed to Consent Orders. 5 After consideration of the evidence presented to the Court, I am satisfied: (ii) The proposal for a commercial purposes is permissible in this case because the conditions prevent retail sales. This aspect has been comprehensively assessed by Mr G Goodyer (consulting town planner) Exhibit 1. I accept his analysis and conclusion that the proposed development is "characterised as commercial premises" under the Ku-ring-gai Planning Scheme Ordinance and is permissible with development consent. In this case it is subject to the conditions restricting retail sales. Notwithstanding this, I note alternating the submission that in this 3(b) Business – Commercial Services Zone, under the KPSO , there is a wide discretion for development with consent which allows for "any other purposes which, in the opinion of the council, are consistent with the objectives of this zone. Considering council's support for this proposal and the absence of any conflicting evidence, I am satisfied this form of development is permissible. (ii) Issue is drainage: This issue requires particular attention because the proposal involves the removal of an existing 1050 mm diameter storm water pipe through the property and its replacement with a 1200 mm diameter storm water pipe, then reconnects to the existing downstream 1050 mm pipe. Apparently this issue has been subject to consideration by the respective engineers, who agree with the application concept plan, on this basis the satisfactory conditions of consent can be imposed to address items by way of requiring detailing energy plan at construction engineering stage. It is proposed to do this by way of a deferred consent condition. Such conditions require the detailed drainage design to be undertaken to demolish the enlarged pipe can be relocated as proposed and the appropriate O.S.D arrangements can be incorporated. On this basis then council's agreement to relocate the easement is required. 6 Following the Court's requirements for further clarification of the proposed conditions, the Court is informed that a drainage concept plan No. 342456/0 has been considered by both parties' engineers, who agree that subject to a final design the concept plan indicates that the drainage can be satisfactorily resolved. Council's Development Engineer K Hawken states in the memo of 20 September: A meeting was held on 22 June 2004, attended by Ian Taylor, Robin Howard and Bruce Kenny of AFCE. At that meeting it was agreed in principle that the diversion could be approved, subject to a number of amendments to the design. Because the works involve council infrastructure within the property, it is considered that deferred commencement consent will be the most appropriate. Formal council approval still has to be obtained for the relation of the pipeline, without which the development cannot proceed. The applicant is required to make a written request to council for the relocation works, and pay the appropriate fee for the assessment. The proposed works will then be the subject of a report to council prepared by Technical Services. If approval is given, the relocation works and removal of the existing pipeline must be completed prior to commencement of other development works. 7 Today, the Court is informed that there has been further conferencing and preparation of a revised concept plan ( ……………..) which confirms that the drainage design 8 In addition to this the applicant was originally notified that the proposal attracted one objector, a Mr R Warby from No. 19 Bridge Street. He is partially concerned about traffic amenity and safety. 9 He has been notified of council's agreement to Consent Orders and the conditions and apparently does not wish to make further submissions. 10 In response to this objection, I note there is no technical evidence to indicate that the increased change in traffic resulting from this development is such to warrant rejection of this proposal or substantial change. 11 Under these circumstances I accept that the agreed conditions adequately deal with traffic aspects for this development. 12 In summary then, I note that there have been a number of amendments to the original proposal, which now meet council's requirements. With the clarification of the agreed response to the drainage issues and associated conditions, I consider that the Consent Orders should be granted on the basis of the evidence before the Court. 13 Therefore the orders of the Court are: 1. The appeal is upheld. 2. The development application No. 1572/03 submitted to Ku-ring-gai Council for a two storey commercial development and associated car parking to be used for the wholesale trade of plumbing supplies is approved subject to the conditions contained in Annexure "A". 3. The exhibits with the exception of Exhibits 1, 4, 5, A and B are returned. R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.