Suresh v Liverpool Council [2008] NSWLEC 1177

Land and Environment Court of New South Wales

CITATION : Suresh v Liverpool Council [2008] NSWLEC 1177

APPLICANT Ram Suresh PARTIES : RESPONDENT Liverpool City Council

FILE NUMBER(S) : 10118 of 2008

CORAM: Hoffman C

Development Application :- BCA compliance on fire resistant construction KEY ISSUES: Zone interface Traffic generation and parking noise

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Liverpool Local Environmental Plan 1997 Draft Liverpool Environmental Plan 2007

DATES OF HEARING: 6 May 2008

DATE OF JUDGMENT: 6 May 2008

APPLICANT Mr R. Creighton, Agent of Australian Planning Consultants Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton of Marsdens, Solicitors

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

6 May 2008

10118 of 2008 Ram Suresh v Liverpool Council

JUDGMENT 1 This is a Class 1 Appeal No. 10118 of 2008 between Suresh and Liverpool Council in regard to the refusal of a proposed extension to the workshops of an existing vehicle transmission repair business at No.1 Passefield Street, Liverpool. 2 The onsite hearing was attended by the Respondents representatives Mr A. Seton, Solicitor; Mr Pizzolato, townplanner and Mr Groz, building surveyor. For the Applicant were Mr R. Creighton, Agent; Mr A. Martin, Town Planner together with the applicant Mr Suresh. 3 Objectors appearing to give evidence onsite was Mr Tony Haj Moussa and Mrs Rosine H. Moussa of No 1/3 Ivy Place, Liverpool and Mr Amal Najh of No. 3B Passefield Street and Mr Barry Hunter of No.2/3 Ivy Place. 4 The site runs through to Ivy Place which is a cul-de-sac at the rear of the subject property. Ivy Place has on its eastern half rear accesses to other businesses in the Business 3(a) zone but they front the Hume highway. On the western half of Ivy place there are houses and townhouses in the Residential 2(a) zone under the Liverpool Local Environmental Plan 1997 . The western boundary of the subject site is the change point between the zones. 5 Since the lodgement of the application Liverpool LEP 2007 has been gazetted and it retains Residential 2(a) zone as it is currently. However it changes the Business 3(a) zone to B6 Enterprise Corridor zone. 6 The classification of vehicle repair station is still permissible with consent in both LEPs. The new LEP has a savings clause that retains LEP 1997 for this development application and considers LEP 2007 as an exhibited draft only. 7 The proposed workshop extension is at the Ivy Place end of the site. There is a drive through onsite from Passefield to Ivy Place, but it is not used as there is a gate in the middle and the Passefield end of the site has a driver training business and the front door to an upper storey dwelling in it. 8 The Council had no record of approval for the driver training business. The two car spaces at the Passefield end of the site are not included by the applicant as part of its six onsite car parking spaces to service, the three hoist service bays that exist. The workshop extension is said to be for a new hoist and the applicant's expert had been instructed that it was to be a fourth hoist. However on the day of the hearing the Applicant said he only wanted three hoists and the new one would replace an existing one. 9 The three existing hoists are located one in an existing rear shed and two in workshops under the main building. The existing hoist in the shed is to be taken out and that bay to be converted into a parking space. Another bay in the existing shed that has a concrete and brick storeroom and transmission oil storage tanks is to be emptied of those and also converted to a car space. 10 This existing rear shed is set back 7.6m from Ivy Place, according to measurements taken onsite at the hearing, along the west boundary adjoining the townhouses at no.3 Ivy Place. There is a dimension on the plans that says 8.1m. 11 The proposal is to come forward into the existing setback at Ivy Place to 3.985m measured on the west boundary as shown on the plans adjoining the townhouses. There is proposed a car space between the workshop extension and the front boundary of the site. The internal dimensions of the extension are fixed for working space reasons, so the error in dimensions means the proposal will have about 3.485m front setback measured along the west boundary. 12 Due to a splay in the front boundary to Ivy Place, and the error in dimensions referred to above, it narrows the front setback at the driveway of the site to 2.3m. The boundary fence and the gate that folds back against the fence reduces the entry to the carspace to less than 2.3m, so that the car space will not be accessible with the reduced width. As a result the onsite carparking will be five. The Applicant agreed to this fact. 13 This has a bearing on the neighbouring residents' evidence that the existing operation has significant impacts on their amenity by dint of: o noise of ratchet air spanners and hammering used to get vehicle transmissions in and out of the cars o together with associated activity of noise and inconvenience due to the unloading of vehicles for repair from trucks in Ivy Place, not onsite. o Also there is overflow parking of vehicles awaiting repair or awaiting pickup by parking in Ivy Place and on neighbouring properties carparks. 14 The trucks stopped in the cul-de-sac to unload are said to be daily and often prevent access in and out of the driveway from No.3 Ivy Place. The Respondent also raised the impact on the streetscape and residents' amenity by further activity resulting from this proposal, and from a new building 4.2m high and built on the western boundary and coming forward into the front setback. The Respondent said the existing building roughly matches the townhouse front setback and therefore provides at least a visual transition of building form between the Business and Residential zones. 15 Another issue raised in the hearing was the shadow diagrams and the architectural diagrams that did not conform to the plan of survey in evidence, in regard to the location of buildings onsite and to No.3 Ivy Place. The survey was shown by onsite measurements to be correct. The result, of correctly locating the buildings would be architectural and shadow plans showing an increased impact of bulk and massing on the streetscape and increased shadow impacts on the neighbours. 16 Turning to the statutes, the Respondent showed that in LEP 1997 Clause 47 applies directly to the situation of this development being on a zone boundary, and requires a number of compatibility tests to be satisfied in order to ensure residential amenity is protected to an acceptable level. Also in Local Environmental Plan 2007, Clause 22B applies and a number of aspects on design requirements are not met to a satisfactory level. 17 It is my conclusion that this proposal should not be approved on the grounds put forward in Mr Pizzolato's evidence and the Respondents It is my conclusion that this proposal should not be approved on the grounds put forward in Mr Pizzolato's evidence and the Respondents' contentions. Therefore the Orders of the Court are: 1. The Appeal is dismissed. 2. The Exhibits are returned to the parties except Exhibits 1, 5 A & B.