Burge v Wollondilly Shire Council [2019] NSWLEC 1499

Land and Environment Court New South Wales

Medium Neutral Citation: Burge v Wollondilly Shire Council [2019] NSWLEC 1499 Hearing dates: 1 October 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application No. 10.2015.284.001 for use of land as a transport depot at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, is determined by the grant of consent, subject to the conditions provided at Annexure 'A' to this judgment. (3) The exhibits are returned, with the exception of Exhibits A and 1. Catchwords: DEVELOPMENT APPLICATION – transport depot – potential visual – dust and noise impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 - Remediation of Land Wollondilly Local Environment Plan 2011 Texts Cited: Wollondilly Development Control Plan 2016 Category: Principal judgment Parties: Robert Burge (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: L Saw (Applicant) A Seton (Solicitor) (Respondent)

Solicitors: Marsdens Law Group (Respondent) File Number(s): 2018/195460 Publication restriction: No

Judgment 1. COMMISSIONER: Robert Burge (the Applicant) has appealed the refusal by Wollondilly Shire Council (the Respondent) of his Development Application No. 10.2015.284.001 for use of land as a transport depot (the Proposed Development) at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, (the Subject Site). 2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction under the Land and Environment Court Act 1979 (LEC Act). It is determined under s 4.16 of the EP&A Act. 3. The Subject Site is zoned RU2 Rural Landscape Zone under the provisions of Wollondilly Local Environment Plan 2011 (WLEP). The proposed development is permissible on the Subject Site, with consent, under the provisions of WLEP as a transport depot. 4. On 17 August 2018 and 5 May 2019, in response to notices of motion filed by the Applicant, the Court granted leave for the Applicant to amend its development application. The Proposed Development, as it comes forward in this appeal, and as amended, proposes: 1. the use of a portion of the Subject Site as a transport depot; 2. the storage of a maximum of 23 "trailers" on the Subject Site in designated parking areas; 3. a maximum of four (4) prime mover vehicle movements into and out of the Subject Site per week between the following periods: 1. from the commencement of August until mid-October each year; and 2. from the commencement of February to mid-April each year. 1. during the periods identified above at [(3)], a maximum of two prime mover vehicle movements into and out of the Subject Site on any one day; 2. outside the periods identified above at [(3)], there will also be a maximum to two prime mover vehicle movements into and out of the Subject Site on any one day, up to a maximum of 15 prime mover vehicle movements within any calendar month; 3. remediation works; 4. construction of an earth bank for drainage; 5. repairs; 6. reshaping and widening of a driveway pavement; 7. road works to widen the pavement on Prices Road; 8. planning of vegetation for screening purposes. 1. An inspection of the Subject Site was undertaken at the commencement of the appeal during which two objectors made submissions in relation to the proposed development as follows: 1. Mr Andrew Imrie of 80 Prices Road, and a resident of that property located adjacent to the Subject Site, who said that he opposed the Applicant's development application for the following reasons: 1. the Subject Site had previously been used for purposes that were not, in his understanding, permitted and approved uses, and which included: 1. storage of large numbers of boats, cars and trucks; 2. wrecking yard operations; 1. the activities which he said had been undertaken by the Applicant on the Subject Site had given rise to a range of impacts including: 1. amenity impacts on his family; 2. traffic impacts arising from the movement of trucks to and from the Subject Site along Prices Road, and the use of narrow approaches to Prices Road along adjoining roads and their bridges; 3. noise impacts on his family, including sleep disturbance impacts as, owing to his work shift worker, he needed to rest during the day; 4. broader environmental impacts, including pollution from the release of plastics, and the unregulated spillage of oils and industrial fluids into the ground, which he said posed a risk to the waters of the Nepean River and, as a consequence, flows to Warragamba Dam. 1. Mr Bruce Azzopardi, of 60 Prices Road, a resident of that property, also located adjacent to the Subject Site, who objected to the Applicant's proposed development for the following reasons: 1. elements of his residence faced towards the Subject Site, including his kitchen, bedroom and verandah, which he said gave rise to visual, dust and noise impacts; 2. traffic impacts generated by vehicle movements into and out of the Subject Site.