D-Studio Architects Pty Ltd v Canterbury City Council [2014] NSWLEC 1272

Land and Environment Court New South Wales

Medium Neutral Citation: D-Studio Architects Pty Ltd v Canterbury City Council [2014] NSWLEC 1272 Hearing dates: 11 December 2014 Date of orders: 11 December 2014 Decision date: 11 December 2014 Jurisdiction: Class 1 Before: Moore SC Decision: See (13) and (14) Catchwords: DEVELOPMENT APPLICATION: Consent orders; traffic Category: Principal judgment Parties: D-Studio Architects Pty Ltd (Applicant) Canterbury City Council (Respondent) Representation: Counsel: Mr V Conomos, solicitor (Applicant) Mr A Seton, solicitor (Respondent)

Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 10478 of 2014

EXTEMPORE Judgment 1. SENIOR COMMISSIONER: Timothy Lane at Belmore is a short, comparatively narrow dead end laneway, running parallel to Canterbury Road. It serves a limited number of premises at the present time, but is intended in the fullness of time with the redevelopment of the site at its end diagonally to the south, to the north east, to be extended by the council from its present end point through to the street immediately to the east thus creating a through laneway. 2. The application in these proceedings is for the construction of a mixed use development at the eastern end of the existing laneway on its northern side, having a frontage to, and an address known as 702 to 704 Canterbury Road. Initially the matter was the subject to an appeal, dealt with pursuant to a conciliation conference conducted by me. The parties were unable to reach agreement during the course of the conciliation conference, but at its conclusion agreed to the conference being terminated and the matter being dealt with by me for determination. 3. During the period since that conciliation conference, the parties have continued to conduct fruitful discussions that have resulted in the proposed consent orders and attached conditions that are exhibit A in these proceedings. As a consequence of that consent orders' process, the various objectors to the original proposal were advised of the intention to not proceed to a contested hearing today and tomorrow, but for the matter to be by way of consent orders and a consent orders hearing. 4. In response to that, the owner of the property immediately to the west, Mr Swavley, who conducts and has conducted for some 37 years, a smash repair business on that site, instructed Mr Hones of Hones La Hood Lawyers, to seek to be joined as a party pursuant to s 39A of the Land and Environment Court Act, or in the alternative what is known as a Double Bay Marina order, to provide a more limited basis for participation in the proceedings. 5. That motion came on for hearing before me on short notice on the afternoon of Wednesday 10 December. 6. As it appeared from the matters that were discussed during those proceedings that it was possible that the issues that were of concern to Mr Swavley of a functional nature might well be able to be resolved by discussion between traffic engineers he had through Mr Hones recently instructed, and the traffic engineer engaged on behalf of the applicant with the participation of the council's traffic engineer, I adjourned the notice of motion to the site hearing and inspection to take place this morning. 7. I also postponed the commencement of the site inspection to enable sufficient time for that conferencing to take place. As a result of that conferencing, I was informed, when I arrived at the site, that an agreement had been reached between the traffic engineers on two further conditions that have now been incorporated in the proposed consent orders and appended conditions. They result in there being no matters contended by the traffic engineers as requiring further change to or adaption of the proposal. 8. As a consequence of that, Mr Hones indicated that the application for intervention was no longer pressed, and I will make formal orders dismissing the application for intervention. 9. However, Mr Swavley still wished to be heard on the matters that were of concern to him. It is my view that those concerns, to the extent that they remain potentially engaged, are matters that have been addressed by the task engineers (to the extent that they are functionally able to be addressed) whilst, at the same time but in the longer term, the matters that are of concern to him will be resolved when Timothy Lane is constructed as a through road - a position that has been facilitated by a proposed voluntary planning agreement to be entered in to by the applicant and the council that will dedicate a portion of the applicant's land that would otherwise have needed to be acquired by the council for the purposes of that through road connection. 10. The matters that were raised by Ms Trewin, the President of the Belmore South Public School Parents and Citizens Association, reflected those matters that were raised by Mr Swavley in his correspondence, but also related particularly to the risk of conflict between pupils at the beginning of the school day or at the end of the school day with construction traffic, general traffic movements associated with the development post construction, and, in particular, post construction movements of the garbage contractor who will be engaged to remove waste on the site. 11. I am satisfied on the basis of the traffic engineering evidence that I have read that the general concern about traffic and the passage of parents and students across the mouth of Timothy Lane, is not likely to be of any significant problem. However, I note that, in response to the P&C's concerns, the applicant this morning accepted the concept of requiring a construction traffic plan, and that that plan will incorporate a requirement that there be no heavy construction vehicle movements during the morning and afternoon school hour drop off and pick up periods on school days. A similar condition is incorporated concerning the operation of the waste collection vehicles so its activities will not occur during the drop off and pick up hours of the school. 12. I am satisfied on those bases that there is no impediment to my granting the consent orders in the terms that have now been sought. 13. As a consequence, the order of the Court, by consent, is, first, that: 1. The application by Robert Swavley to be joined as a party pursuant to s39A of the Land and Environment Court Act 1979 is dismissed. 1. Second, in the substantive matter, the orders of the Court, by consent, are that: 1. The appeal is upheld; 2. Development Application DA559/2013 for the demolition of existing structures and construction of a mixed use development comprising 16 residential apartments, two commercial tenancies, basement car parking and associated strata subdivision on the land known as lot 7 and 8 in deposited plan 452879 at the street address of 702 to 704 Canterbury Road, Belmore, is approved subject to the conditions that are contained in Annexure A; and 3. The exhibits, other than Exhibits A, B, C, D, 3 and 8, are returned. Tim Moore Senior Commissioner