Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253

Land and Environment Court of New South Wales

CITATION : Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253 APPLICANT Aldi Foods Pty Limited PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10012 of 2004 CORAM: Talbot J KEY ISSUES: Development Application :- land subject to visionary imminent Master Plan in draft LEP and draft DCP - proposed development inconsistent with the Master Plan LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 94 Holroyd Local Environment Plan 1991 CASES CITED: DATES OF HEARING: 03/05/2004, 04/05/2004, 05/05/2004 DATE OF JUDGMENT: 05/24/2004

APPLICANT Mr S B Austin QC with Mr P R Clay (Barrister) SOLICITORS Brophy Bridge & Mirow LEGAL REPRESENTATIVES: RESPONDENT Ms J M Jagot (Barrister) SOLICITORS McKees

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10012 of 2004

Talbot J 24 May 2004 Aldi Foods Pty Limited Applicant v Holroyd City Council Respondent Judgment

Introduction 1 A development application DA 2004/328 was lodged with Holroyd City Council ("the council") on 16 October 2003. The applicant seeks development consent for integrated development as a consequence of the proximity of the site to an adjacent stormwater channel. The application is in respect of a proposed supermarket. 2 The subject land is owned by the local RSL Club. At or about the same time the council finalised a draft Local Environment Plan ("the draft LEP") and a draft Development Control Plan ("the draft DCP") for the Neil Street Precinct in which the site is situated. The development application was exhibited between 29 October 2003 and 12 November 2003 whereas the draft LEP and draft DCP were placed on public exhibition between 12 November 2003 and 12 December 2003. 3 These class 1 proceedings were commenced by filing an application on 7 February 2004. Following an application by the applicant for expedition on 11 February 2004 the matter was referred to Commissioner Watts for case management. The council submitted that there were significant issues of the public interest that were not suited for resolution by adversarial process. Preliminary hearings took place before Commissioner Watts on 25 February 2004, 10 March 2004 and 14 April 2004. During this time, by agreement, the Court appointed David Chesterman as an expert architect/urban designer. Experts, including the Court-appointed expert, attended the preliminary hearings before Commissioner Watts. The applicant signalled an intention to seek to rely on evidence from its own experts after receiving the report by Mr Chesterman. The matter was referred to me on 23 April 2004 as the Court listed to hear the matter with Senior Commissioner Roseth on 3 May 2004. On 23 April 2004 the council objected to the applicant being given leave to rely on the evidence of its own expert but recognised that if the evidence was served within an appropriate time the opposition may not be pursued at the hearing. I made directions facilitating the presentation of further evidence. 4 At the commencement of the hearing the question of leave was not pursued when the Court was informed that apart from a view the only oral evidence would be from the experts having an interest in the significant town planning issues, including the Court appointed expert. I made directions for the town planning experts to confer and an order that their evidence be given concurrently. These experts were furnished with specific questions drafted by the Court and directed to address them in the course of giving concurrent evidence. These will be dealt later in more detail. The town planning experts have reached a consensus in respect of how the subject proposal could be improved in the event that the Master Plan does not proceed. 5 The question now to be determined is whether the applicant be given leave to rely on an amended proposal that purports to respond to the joint opinion of experts. In order to properly consider whether leave should be granted it is first necessary to understand the proposal and its context in the Neil Street Precinct which the council intends to establish through the mechanism of the draft LEP and the draft DCP. The site 6 The site of 5,381m2 is located on the eastern side of Terminal Place, directly to the north of the commuter carpark of Merrylands Railway Station. It is an irregularly and awkwardly shaped parcel. It has a frontage of 33 metres to Terminal Place and 118 metres to the Main Southern Railway Line, which aligns its eastern boundary. It is vacant except for a large metal awning. There are several trees on the site, including 16 lining the entry. The RL's of the site range from 16.2 to 16.5. The 1:100 flood level has been assessed to be RL 17.09. Part of the site has been identified as a floodway. 7 To the north of the site is the Rositano Furniture Store with associated carpark. To the south lies the bus interchange and, beyond the carpark, Merrylands Railway Station.