Airlass Pty Limited and Project Capital Pty Ltd v Blacktown City Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Conveyancing Act 1919 Blacktown Local Environmental Plan 1988 Blacktown Development Control Plan 2006

Melissa Grech v Auburn Council [2004] NSWLEC 40 ; CASES CITED: Cornerstone Property Group Pty Ltd v Warringah Council [2004) NSWLEC 189 ; Thiessen Architects v Sutherland Shire Council [2004] NSWLEC 480

APPLICANT Mr M. Fraser, Barrister instructed by Mr P. O'Brien of Harris and Company

LEGAL REPRESENTATIVES: RESPONDENT Mr S. Simington , Solicitor of Lindsay Taylor Lawyers.

INTERVENER: Mr J. Webster SC instructed by Mr O Stichter of Otto Stichter and associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11054 of 2007 Airlass Pty Limited and Project Capital 11055 of 2007 Pty Ltd v Blacktown City Council

JUDGMENT Introduction 1 These two appeals relate to development applications associated with certain industrial lands in John Hines Avenue and William Street Minchinbury, a short distance to the south of the Great Western Highway ("the Highway"). This locality is presently being progressively developed with industrial, warehouse and bulky goods land uses together with other commercial activities adjacent to the Highway. Both appeals relate to the vacant Lot 1 DP 135773 ("the site").

2 The site is hatchet shaped and has an area of 2.07 ha including the relatively narrow accessway that connects it to the highway. It has a western frontage of about 63 metres to William Street (presently unmade) and a depth of about 290 m.

The fill application 3 The first of these appeals (11054 of 2006 - DA 05-3214) relates to a proposal to fill the site to the extent that its finished levels will be consistent with those of surrounding lands to resolve drainage problems and make it suitable for development. The council advised that it had no objection to the granting of consent to this application ("the fill application") if the Court was minded to uphold the appeal and approve the application.

The bulky goods and factory units application 4 The second appeal (11055 of 2006 - DA - 05-3215) involves a proposal to develop the site for the purposes of bulky goods and factory units ("the development application" and "the proposal"). Having accepted the evidence of the Court appointed expert town planner and taken into account the amended plans, the council advised that it did not wish to take any active part in the proceedings, effectively having no objection to this proposal.

The intervener's land 5 Adjoining the site to the south is Lot 2 DP 771150 ("Sargents southern lot"), which has a similar configuration, area and length to the site, also having a relatively narrow accessway connecting it to the highway. Adjoining the site to the north is Lot 2 DP 882674 ("Sargents Lot 2"), which also has a similar configuration and length to the site with a somewhat wider accessway (adjoining and essentially parallel to the site's accessway) connecting it to the highway. However it is much narrower having a frontage of about 16.35 m to William Street and has a frontage of about 216 m to John Hines Avenue. Both of these lots are owned by the intervener in these proceedings-Sargents Pty Ltd.

6 Sargents Lot 2 was created as part of a two lot industrial subdivision pursuant to development consent 15137. This subdivision created the 3-hectare Lot 1 that is presently developed with a large hardware outlet and the east west extension of John Hines Avenue that separates Lots 1 and 2 DP882674. Condition 10 of that consent describes Sargents Lot 2 as a residue lot and contains a condition that this lot is not to be developed before it is resubdivided with adjoining land and an instrument to this effect is created under s 88B of the Conveyancing Act. The s 88B instrument was effected by the registration of DP 882674.

The intervener's contentions 7 In essence the intervener contends that if the development application is approved, Sargents Lot 2 will become isolated and its development in an orderly and economic manner will not be possible. In this context the Court was invited to take into account the following: + Zone objective (f) of the applicable 4 (c) Special Industrial Zone under Blacktown Local Environmental Plan 1988 ("the LEP") which is to ensure that permitted development creates areas which are pleasant to work in and are safe and efficient in terms of transportation and land utilisation. + The difficulty of developing Sargents Lot 2 considering its narrow width and taking into account: the 7.5 m setback requirement for buildings in section E4.2 of the Blacktown Development Control Plan 2006 ("the DCP"); the difficulty of accommodating larger trucks, car parking and landscaping; and aspects of pedestrian and vehicular safety. The likely unsatisfactory visual appearance of any resulting development. + The limitation on development resulting from cl 22 of the LEP that denies access off the highway onto the northern accessway of Sargents Lot 2, absent re-subdivision with the site. + The s 88B instrument that requires Sargents Lot 2 to be re-subdivided with adjoining land before it is developed. + Whether reasonable offers have been made for the purchase and re-subdivision of the site with Sargents Lot 2 and southern Lot 2. Sargents Lot 2 - the concept plan 8 In relation to the question of the ability to develop Sargents Lot 2 a concept plan was prepared showing how the site could be developed with nine warehouses or industrial units each having off-street parking and loading docks with access off John Hines Avenue. The units would have floor areas of about 200 sq m. A three metre setback is provided from John Hines Avenue where landscaping could be provided.

9 This concept plan was considered, inter alia, in the council officer's report that recommended approval of the development application. That report concluded that notwithstanding the narrow nature of Sargents Lot 2, it is considered to have a reasonable level of development potential and will not be sterilised as a result of the proposed industrial development on the site. The report also noted that the development shown on the concept plan would involve council granting a setback variation from the typical 7.5 m front setback as required by the DCP. The reduced setback would nevertheless facilitate suitable landscaping.

10 This plan was also considered by Mr N Ingham the Court appointed town planning expert and Mr K Mackay the intervener's consultant town planner in relation to implications of the development application for the isolation of Sargents Lot 2.

11 Mr Mackay was of the opinion that the warehouse proposal as depicted on the concept plan was inappropriate and unacceptable on planning and economic grounds. The units would be too small for bulky goods retailing which is one of the predominant purposes of the zone. Whilst he acknowledged that they could be utilised for some industrial purposes the restriction on the range of permissible land uses would be unreasonable. There is a limited number of car parking spaces and the tight manoeuvring spaces available between the buildings restricts service vehicle access such that access for even a small rigid vehicle would be difficult. On-site queuing of vehicles is likely. Also, vehicle and pedestrian sight distances would limit landscaping opportunities in the three-metre setback area thus denying opportunities to screen unarticulated blank concrete walls. As a consequence of these matters this proposal would not have an appropriate urban form with an acceptable level of amenity, would not be consistent with the applicable planning controls and should thus not be approved.

12 Because development of Sargents Lot 2 is not feasible, Mr Mackay concluded that this lot would become isolated if the proposal were to proceed. Taking also into account the council's approach of encouraging the consolidation of smaller parcels of land into larger allotments it was his opinion that the approval of the development application would prevent the orderly and economic development of Sargents Lot 2.

13 Mr Ingham dealt with this question in a similar manner. By reference to the object of the Environmental Planning and Assessment Act, 1979 ("the Act") to encourage the promotion and coordination of the orderly and economic use and development of land, pointed out that this does not mean that every parcel of land must be able to be developed to its maximum capacity. In relation to Sargents Lot 2 he was of the opinion that this lot would not become isolated as a consequence of the proposal because it is able to be developed in a manner that takes into account the applicable statutory provisions. He recognised that the concept plan may not be indicative of an optimum form of development but the lot can nevertheless be developed to a satisfactory degree, taking into account its constraints. He rejected Mr Mackay's criticisms of the design explaining how it could be readily adjusted to accommodate possibly fewer slightly larger buildings with improved access arrangements, including sight distances, that would accommodate heavy vehicles of the kind likely to attend such premises.

14 Objective (b) of the 4(c) zone provides for the development and accommodation of and the innovation in, sources of economic growth. In this regard and in the context of the orderly and economic development of Sargents Lot 2, Mr Mackay was of the opinion that the form of development of this land as indicated by the concept plan would not be efficient in terms of transportation or land utilisation. Whilst he recognised that some development of this land would be possible and that it was not necessary for every parcel of land to be developed to its maximum capacity there is a reasonable expectation that land will be developed to its optimum extent as anticipated by applicable planning controls. Also, although he was not in a position to ascertain the likely financial return resulting from the development of this land it was his opinion that the returns would be likely to be significantly less than for a large-scale warehouse or bulky goods retail establishments.

15 In response Mr Ingham pointed out that economic viability of land is affected by its constraints, including its configuration and planning controls, which limit the extent to which it can be developed. Because of its constraints Sargents Lot 2 does not have the same development potential as other land in this locality. Hence although it has less value than other land in the vicinity this does not make it economically unviable.

Court's consideration 16 Apart from minimum subdivision sizes there are no standards in the planning controls that specify minimum lot sizes for the form of development contemplated by the concept plan. Nor are there any controls that require site amalgamations to achieve minimum lot sizes for such development. The above-mentioned setback requirements are contained in Part 4 of the DCP and such areas are required to be landscaped and maintained as open areas only, so as to enhance the streetscape appearance of industrial development. These requirements recognise that in the case of corner allotments, the secondary frontage setback for collector roads is to be 5 m and 3 m on all other roads provided that the building presents a satisfactory facade to the street with good design (blank walls are unsatisfactory) and landscaping elements. Variations to these standards are permissible in the existing industrial areas fronting major roads where each case will be considered on its merits.

17 Although the concept plan shows little detail in relation to the architectural quality of the built forms or the nature of the landscaping, I agree with Mr Ingham that the tests of good design and quality landscaping would be able to be met by a development essentially of the kind envisaged. This of course requires a reduction in the setback requirement for John Hines Avenue but I see no reason why the 3 m setback as envisaged would not be sufficient, (notwithstanding the necessary breaks for access) to create an appropriate landscape setting in this industrial context, thus meeting the intent of the DCP. As for the built form I again see no reason why a competent architect could not produce an appropriate design for what are likely to be relatively simple one or two-storey buildings. Hence, to the extent that the development of Sargents Lot 2 might be considered to be infill development I am satisfied that the intent of the DCP is capable of being met.

18 As indicated above, objective (f) of the 4(c) zone is to ensure that permitted development creates areas, which are pleasant to work in and are safe and efficient in terms of transportation and land utilisation. I heard no evidence to persuade me that this objective could not be met by the development of Sargents Lot 2 in a manner akin to that indicated in the concept plan. Objective (a) provides that the 4(c) zone is to accommodate, in addition to both traditional and modern forms of light industrial, warehousing and like purposes, bulky goods retail establishments. If this site does not provide for bulky goods retail establishments, and I am not so sure that it cannot achieve this, this objective can nevertheless still be met.

19 Taking all of these matters into account and in relation to economic viability I prefer the evidence of Mr Ingham and have been persuaded that Sargents Lot 2 would not be physically isolated in the sense of its reasonable practical development, should the development application be approved. Moreover there was no evidence to suggest that the development of the site in the manner proposed would have any direct consequences that might restrict the development of Sargents Lot 2. Although this land may not, because of its constraints, be able to be developed to the same degree or intensity by comparison with a larger more regular shaped lot, this is not a fundamental impediment to its development. Whilst this conclusion would seem to indicate that this land is less valuable than surrounding lands this does not necessarily mean that its development would be economically unviable in the commercial sense. Nor do I accept that it means that a development of the kind indicated by the concept plan does not represent orderly and economic development.

The isolation cases 20 In Melissa Grech v Auburn Council [2004] NSWLEC 40 Brown C sets out three principles that should be applied to any assessment of a development application where the resultant development would lead to the isolation of adjoining land particularly where the affected property cannot satisfy minimum lot requirements. Those principles deal with negotiations for the acquisition of that adjoining land and its consolidation with the subject land.

21 In Cornerstone Property Group Pty Ltd v Warringah Council [2004) NSWLEC 189 Tuor C extended the principles in Melissa Grech for applications which will result in an isolated site, particularly where the planning controls envisage a greater intensity and size of development than currently exists on the site. In particular consideration needs to be given to the questions of whether the amalgamation of the site is feasible and if not, can orderly and economic development and use of the separate sites be achieved, taking into account the need to consider whether both sites can achieve a development that is consistent with the planning controls. Whilst recognising that variations to the applicable planning controls can be possible, this should be subject to achieving an appropriate urban form and an acceptable level of amenity.

22 In Thiessen Architects v Sutherland Shire Council [2004] NSWLEC 480 Roseth SC applied the principles in Melissa Grech and Cornerstone explaining that an applicant must make genuine efforts to acquire sites where amalgamation would achieve a better planning result or where they are indicated in an amalgamation plan. If an amalgamation plan is not achieved consideration must be given to whether the leftover sites are capable of being developed in accordance with the planning controls.

23 In essence these cases set out the approach to be taken in establishing whether or not a reasonable attempt has been made to acquire and incorporate adjoining land with a development site where, in the absence of such acquisition a satisfactory form of development would not be possible taking into account relevantly applicable planning controls and s.79C of the Act.

24 Having concluded that Sargents Lot 2 is capable of practical development in the light of the applicable planning controls I thus conclude that approval of the development application would not result in isolation of the kind contemplated in the above-mentioned cases. Hence, notwithstanding the attempts to negotiate a consolidation and re-subdivision of the lands, the question of whether or not genuine efforts have been made to acquire Sargents Lot 2 is irrelevant.

25 Notwithstanding this conclusion, and taking into account the evidence of the two town planners it is plain that if the applicant's site were to be amalgamated with Sargents two lots then re-subdivided a better development would result. However, notwithstanding what Roseth SC said about achieving a better planning result, I do not accept that, in the circumstances of this case, that this test should be determinative. Instead, and as I have already concluded, Sargents Lot 2 is not an isolated site, being able to be developed in a manner that is responsive to the applicable planning controls that do not contain any amalgamation requirements.

26 There being no other evidence to suggest that the two development applications should not be approved and taking into account that the council has no longer has any concerns in relation to these applications, accepting as it does the evidence of Mr Ingham, I have decided that the appeals should be upheld and conditional development consents granted.

Conditions 27 The draft without prejudice conditions of consent in relation to the fill application were unopposed and will be incorporated into the orders of the Court.

28 The draft without prejudice conditions of consent for the proposed bulky goods and factory units were unopposed with the exception of a condition requiring the creation of a s. 88B Instrument under the Conveyancing Act 1919 for the undeveloped part of Lot 1 DP 135773, providing that this lot should not be developed except in conjunction with adjoining land. I understand that the extension of John Hones Ave will divide the body of Lot 1 DP 135773 from the access-way leaving an elongated narrow lot with frontages to the extended John Hinds Avenue and the Great Western Highway. However I have decided not to impose this condition because the question of its developability or its consolidation with adjoining land can and will be determined at sometime in the future, probably when John Hinds Avenue is extended, irrespective of such an instrument.

1. Therefore the orders of the Court are that: 2. The appeals are upheld 3. Development Application No. 05-3214 for the filling of Lot 1 DP 135773 is determined by the granting of development consent subject to the conditions in Annexure A hereto. 4. Development Application No.05-3215 for the development of Lot 1 DP 135773 for the purposes of bulky goods and factory units is determined by the granting of development consent subject to the conditions in Annexure B hereto. 5. Exhibit A is retained.

      T A Bly
      Commissioner of the Court
      ljr

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