Lucas v Pittwater Council [2014] NSWLEC 1137

Land and Environment Court New South Wales

Medium Neutral Citation: Lucas v Pittwater Council [2014] NSWLEC 1137 Hearing dates: 12, 13 and 19 May 2014 Decision date: 20 May 2014 Jurisdiction: Class 1 Before: Dixon C Decision: Orders at [77] Catchwords: DEVELOPMENT APPEAL - Bus depot - Traffic impacts - Amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Draft Pittwater Local Environmental Plan 2013 Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Category: Principal judgment Parties: Kevin and Ann Lucas (Applicants)

Pittwater Council (Respondent) Representation: Mr M Staunton With Mr B Woolf (Applicants)

Mr A M Pickles With Mr M Kirkwood (Respondent) Woolf Associates (Applicants)

King and Wood Mallesons (Respondent) File Number(s): 10692 of 2013

Ex-Tempore Judgment

Introduction 1COMMISSIONER: This is an appeal by the applicants, Kevin and Ann Lucas, under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by the respondent Council, of a development application for the construction of a bus depot at 11 Wirreanda Road, Ingleside (the site). 2The Council refused its consent to the development essentially for three reasons. The first is that the proposed use is inconsistent with the desired future character of the locality as defined in Pittwater Development Control Plan No 21 (DCP 21) and the future zoning of the site under the Draft Pittwater Local Environmental Plan 2013 (Draft LEP 2013). The second is that the development is excessive in site coverage and, the third reason is that the proposed use will generate unacceptable traffic impacts, particularly at the intersection of the local road network with Mona Vale Road. 3I have some familiarity with the evolution of the application because I facilitated the conciliation conference held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). During that conference, the applicants amended their application in an attempt to resolve the matters in dispute. Originally, they had sought consent to develop a bus depot with the capacity to park 95 buses over the entire length of the site. At the conference they agreed to reduce the size of the depot from 95 to 50 buses and to separate the parking bays in two areas within the top half of the site. The amended proposal locates 40 buses on the existing dressage ring in the centre of the site (away from the bushland and creek) and places the remaining 10 buses nearer the entry driveway. The parking bays are to be constructed from a permeable hardstand pavement, which is designed to absorb ground water and run off (Exhibit G). 4The applicants also agreed during the conciliation to further restrict the hours of operation of the depot. The amended application proposes hours from 6.30am to 7.30pm Monday to Friday and 7am to 4pm Saturday. There is to be no operation of the depot on Sunday or public holidays. 5Despite the above amendments the Council did not agree to a resolution of the appeal at the conciliation conference. Therefore, the conciliation was terminated and, at the request of the parties, I have been asked to determine the appeal based on the amended plans following a further hearing in accord with s 34(4)(b)(i) of the LEC Act. 6At the further hearing the Court was assisted by the oral and written evidence of experts. It received town-planning evidence from Mr Chambers on behalf of the Council and Ms Shepherd gave evidence in respect of planning matters for the applicants. Mr Gross, the acoustic expert for the applicants, provided a written report that was not contradicted by any other expert. Traffic evidence was received from Mr Varga and Mr McLaren on behalf of the applicants and Mr Morse on behalf of the Council. 7This judgment relates to the amended application. However, as is often the case, the proposal was further amended during the hearing. It now incorporates to the traffic expert's recommendations for road works and signage and acoustic measures proposed by Mr Gross and most of the Council's draft conditions. As a result of those amendments it is fair to say that the main issue in the hearing concerned the traffic impacts of the development on the local road network and its intersection with Mona Vale Road.