Domain Group NSW Pty Limited v Hornsby Shire Council & Anor [2004] NSWLEC 345

Land and Environment Court of New South Wales

CITATION : Domain Group NSW Pty Limited v Hornsby Shire Council & Anor [2004] NSWLEC 345 APPLICANT: Domain Group NSW Pty Limited

PARTIES : FIRST RESPONDENT: Hornsby Shire Council

SECOND RESPONDENT: Peter Baynie FILE NUMBER(S) : 10203 of 2004 CORAM: Lloyd J KEY ISSUES: Development Application :- appeal against refusal of development application - merit considerations LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 CASES CITED: DATES OF HEARING: 04/06/2004 EX TEMPORE 06/04/2004 JUDGMENT DATE :

APPLICANT: Mr G B Newport (barrister) SOLICITORS: N/A

FIRST RESPONDENT: Mr J A Ayling SC LEGAL REPRESENTATIVES: SOLICITORS: Ian Woodward

SECOND RESPONDENT: Mr P R Clay (barrister) SOLICITORS: McKees Solicitors

JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J

Friday, 4 June 2004

10203 of 2004

DOMAIN GROUP NSW PTY LIMITED Applicant

- v - HORNSBY SHIRE COUNCIL First Respondent PETER BAYNIE Second Respondent EX TEMPORE JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of a development application for a two storey building comprising an Officeworks store at ground floor level with office space at the first floor level, a separate two storey commercial office building and two levels of car parking below ground at a property being Nos. 295-299 Pennant Hills Road, Thornleigh. 2 The property comprises six allotments having frontages to Pennant Hills Road and Thornleigh Street and also access to Station Street via a right of carriageway over an adjoining allotment. 3 The development application was refused by the council, but the council has now decided to support the development application and raises no objection to consent orders being made granting development consent subject to conditions. 4 When the matter was first set down for hearing there were a number of issues raised including a point of law, namely whether or not the owner of the land, being the servient tenement over which the right of carriageway passes, was required to signify his consent to the lodgement of the development application. Since no works are now proposed within that right of carriageway it is clear that such consent is not required. 5 Nevertheless, the owner of the property over which the right of carriageway passes, being No. 293 Pennant Hills Road, Thornleigh, has been granted leave to appear as a party and to be heard in relation to the merit issues. That person is Mr Peter Baynie who is represented by Mr P R Clay. As I have said the merit issues between the applicant and the council have been largely resolved; and to the extent that they may not have fully been resolved they are adequately covered by proposed conditions of consent. 6 The Court has heard evidence from Mr Baynie and from another resident, Mr Ziaiter, the owner of an adjoining property in Thornleigh Street, being No. 5 Thornleigh Street, both of whom maintain their objections to the development. 7 It must also be mentioned that the development application was advertised and submissions were made to the council by a number of people. Six submissions were received: four were objections to the proposal and two expressed support to the proposal. As I have said, two of those persons objecting have given evidence before me. 8 The development site is within a Business A (General) zone under the Hornsby Local Environmental Plan 1994. The proposed development is permissible with consent in that zone. Mr Clay submits, however, that the development does not meet objective (b) of the zone, namely, to accommodate the retail, commercial and social needs of the community. Mr Clay refers to an existing car parking area to which the right of carriageway over No. 293 Pennant Hills Road provides access. That car parking area is now part of the development site and has hitherto been used by vehicles for parking of up to ten vehicles and has been used as a public car park. The loss of ten car parking spaces would, it is submitted, be contrary to the zone objective of accommodating the retail, commercial and social needs of the community. 9 The loss of the ten car parking spaces, however, is met by the provision of ten public car parking spaces within the development. It is true that access from the proposed public car parking spaces to number No. 293 Pennant Hills Road will not be as direct or as convenient as the present arrangements. It must be remembered, however, that the land including the land upon which the car parking presently exists is not owned by Mr Baynie but is owned by a corporation which is associated with the applicant for development consent. 10 The question nevertheless remains as to whether the changed parking arrangements for the public will meet the retail, commercial and social needs of the community, as expressed in the objectives of the zone. 11 The proposal includes the provision of a stairway giving direct access from the proposed public car park within the development to the existing right of carriageway. In addition, during business hours access to Pennant Hills Road and both Station Street and Thornleigh Street would be available through the proposed Officeworks building itself. 12 These parking arrangements will obviously involve a less convenient and less direct path of travel from the car park to Mr Baynie's property, but the distance is not so great in my opinion as to justify a refusal of the application on that ground. 13 It remains to deal with the objection of Mr Ziaiter. His chief concerns seem to be twofold. Firstly, the height of the wall supporting the driveway at the proposed development which will abut his property boundary and secondly, a concern about noise from delivery trucks using the right of carriageway as I understood his objection. 14 The wall which will abut the common boundary is to support a driveway giving access to a loading bay, to be used by approximately eight large rigid trucks per week. That level of use will be enforced by way of a condition, namely condition 13, imposing a maximum of eight large rigid truck deliveries per week and no more than two small van deliveries per day. That is the only use which will be made of the driveway to which Mr Ziaiter objects. Accordingly, the noise will be somewhat infrequent and, having regard to the fact that the subject land is within a business zone, I do not think that it is sufficient to refuse the application. As to the height of the wall on the boundary, the maximum height is 2.2 metres reducing to somewhere near grade which again, in my opinion, is not so excessive as to amount to a reason to refuse the development application. 15 In all the circumstances I am satisfied that on merit the development application may be approved. I should observe that at a late stage of the proceedings the second respondent, Mr Baynie through his counsel, sought to raise a further legal issue which neither of the other parties were able to meet in the short time available. Accordingly I refused leave to allow this late issue to be raised, but it remains open to Mr Baynie to bring other proceedings if he so wishes to assert that the development is otherwise unlawful. 16 The formal orders of the Court therefore are: 1. The appeal is allowed. 2. Development application No. 2187/02 for the demolition of all existing structures, the erection of a combined retail and commercial development on Lot 2, DP 561409, Lots 23 & 24, DP 1854, Lots 24, 25, 26 & part 27, DP 263535, No. 6x Station Street, Nos. 1 & 3, Thornleigh Street and Nos. 295-299 Pennant Hills Road, Thornleigh is determined by the grant of development consent subject to conditions as set out in annexure "A". 3. The exhibits, except for Exhibit A and Exhibit 3, may be returned.