RG Property Eleven Pty Ltd v Fairfield City Council [2017] NSWLEC 1738

Land and Environment Court New South Wales

Medium Neutral Citation: RG Property Eleven Pty Ltd v Fairfield City Council [2017] NSWLEC 1738 Hearing dates: 8 December 2017 Date of orders: 22 December 2017 Decision date: 22 December 2017 Jurisdiction: Class 1 Before: Bish C Decision: See Orders at [70] Catchwords: DEVELOPMENT APPLICATION: service station with food services; application pursuant to s138 of Roads Act 1993 for stormwater drainage in road reserve; whether application for works properly made; whether deferred commencement conditions for easement required. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Real Property Act 1900 No 25 (RPA Act) Roads Act 1993 Cases Cited: Mauro Polleti v Inner West Council [2017] NSWLEC 1325 Tawfils v Hurstville City Council [2012] NSWLEC 1300 Wren Investments Pty Ltd v Willoughby City Council [2011] NSWLEC 1167 Texts Cited: Nil Category: Principal judgment Parties: RG Property Eleven Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: Mr Robert White (Applicant) Mr Adam Seton (Respondent)

Solicitors: Dentons Australia Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 290544 of 2017 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by RG Property Eleven Pty Ltd ('the Applicant') against the deemed refusal of Development Application (DA) No. 825.1/2016 by Fairfield City Council ('the Respondent') for a proposed service station development with food premises at Lot 12D DP407273 and Lot 1 DP514013, also known as 240 Hume Highway, Lansvale ('the site'). 2. The Applicant also seeks consent under the Roads Act 1993 No 33 ('Roads Act') for stormwater drainage works in the road reserve along Cutler Lane. 3. The site is bounded to the north by the Hume Highway, the southeast by Dan Reserve/Park and southwest by a residential dwelling. The eastern and western boundaries are shared with existing light industrial developments. 4. Stormwater drainage from the site is proposed to be connected to Cutler Lane from Dan Reserve, located immediately adjacent to the southern site boundary. The stormwater drainage will traverse Cutler Lane to the Council network, located in Cutler Road. The area of proposed easement is owned by Council. 5. Cutler Lane is a road reserve currently used for pedestrian access between Dan Reserve and Cutler Road. There is no proposed future change in use of Cutler Lane from its current use as a pedestrian access between Dan Reserve and Cutler Road. 6. The need for an easement over Dan Reserve is subject to separate proceedings (File No: 2017/356729) under s 40 of the Land and Environment Court Act 1979 ('Court Act'). The need for an easement over Cutler Lane (if consent is granted under the Roads Act) is subject to a deferred commencement condition in this appeal. 7. The DA was lodged by the Applicant on 18 December 2016 and publically notified by the Respondent on 23 February 2017, with one objection received that related to acoustic and privacy issues. 8. This Class 1 appeal was initiated under s 97(1) of the Environmental Planning and Assessment Act 1979 ('EP&A Act') on 25 September 2017. 9. The appeal was subject to mandatory conciliation on 22 November 2017 in accordance with the s 34 provisions of the Court Act. As no agreement was reached during conciliation phase, the conciliation conference was terminated pursuant to s 34(4) of the Court Act. 10. Subsequent to the s 34 conciliation conference, the Applicant was granted leave to rely on amended plans and documents submitted on 29 November 2017 (Exhibit B). The consequence of the amended plans and documents was: the granting of approval by Roads and Maritime Services (RMS) for works associated with the Hume Highway; and the Respondents satisfaction of contentions related to: permissibility; traffic and manoeuvrability; car parking; landscaping; and food/drink premises. 11. The issues raised by the objector relating to privacy and noise have also been addressed to satisfaction of the Respondent.