For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant.
52 Mr Wright submits that
The Council does not rely upon the unlawfulness of the past or present use of the site. The Applicant claims that the proposed use is to be a continuation of the present use of the site. The Council therefore relies upon evidence of the present use to demonstrate that the impacts of a continuation of that use will be of similar character, extent and intensity and will have unacceptable adverse impacts…. it is appropriate to consider the past operation of the car wash on the site and its unacceptable impacts on residential amenity.
53 Mr Gough submits that:
The proposed use is not of a similar character, extent or intensity to the previous unauthorised use. The evidence of the surrounding residents indicates that vehicles were being washed and vacuumed throughout the site and external to the mechanics bays. The proposed development does not seek approval to wash or vacuum vehicles outside the mechanics bays and seeks to construct an awning and acoustic wall on the eastern boundary. The impacts associated with the prior use of the property are not similar or comparable to the proposed use of the site. The past conduct of the operator is therefore not a relevant planning consideration.
54 Consistent with the decision of Preston CJ in Jonah, the illegal actions of past, present and future owners/operators are an irrelevant enquiry in the consideration of the merits of the application. It must be assumed that an owner/operator will comply with the consent and its conditions.
55 The past unauthorised use of the site, as a car wash is, however, a relevant consideration to assist in the assessment of the likely impacts of the proposal and how these can be mitigated. I acknowledge the concerns of the residents and the submissions of council that a proposal for a car wash that is of similar character, extent or intensity to the previous unauthorised use would be unacceptable. However, the application does not seek approval for the 'continuation of the present use of the site' as a commercial car wash. Rather, it seeks to continue the approved service station use and use the internal mechanical bays for washing of vehicles as shown on the amended plans.
56 I do not accept the evidence of Mr Wise or the submission of Mr Wright that there is inadequate information to assess the application or to determine whether the primary use of the site will remain as a service station. This submission may have been correct in relation to the original application, however, the adjournments, amended plans and further information now provide sufficient detail. While there are some matter which require further resolution, including the PoM, these are not beyond what can appropriately be conditioned as part of any development consent.
57 Mr Wright submits that the threshold question is whether the use is consistent with what is applied for in the development application. He emphasises that the application seeks to 'continue the existing service station use' and that the evidence of the residents is that the site is not now used as a service station. I accept that this is the case which is also the conclusion drawn by Sheahan J. However, I do not understand that the application is seeking to continue the unauthorised use of the site. The approved use of the site is for a service station and the application is seeking to continue this approved use including the washing of cars.
58 Both 'service station' and 'car wash' are permissible uses in the Mixed Use zone under LEP1998. However, the application is not seeking approval for a car wash or for a car wash and service station as two separate uses. To be consistent with what is applied for in the development application, I must be satisfied that the application adequately demonstrates that the service station use will remain the dominant use of the site and that the car wash will not operate as a separate, independent use.
59 Parts of the site will be used for access to the carwash bays and three parking spaces will be provided for cars waiting to be washed. The plans indicate four fuel pumps that can be utilised by eight cars. The evidence of the traffic experts is that the operation of the car wash will not restrict access to or the use of the fuel pumps. The fuelling of motor vehicles must occur on the site for it to be a service station use under the definition in LEP 1998. I am satisfied that the plans indicate that this can feasibly occur. The PoM and conditions specify that the car wash cannot operate unless the service station use is operating, whereas the service station can operate without the car wash. I accept that the proposal, if operated in accordance with the plans, the PoM and the conditions of consent will be a continuation of the service station use and that the car wash will be ancillary to this use.
60 Mr Gough submits that the purpose of the application is to 'enable vehicles to be washed upon the property without having to use the petrol fuelling services'. The definition of 'service station' in LEP 1998 requires the site to be used for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products but also allows for the washing… of motor vehicles. I do not interpret this to mean that a car can only be washed if it has also used the petrol fuelling services. Therefore, the need to apply for approval for the washing of vehicles on the site is not clear as this can occur under the existing consent, provided it is not a dominant, separate or independent use.
61 However, the existing consent does not regulate with any specificity the service station use of the site with ancillary car wash activities, which can occur on the site without any further approval. The application includes physical measures such as the acoustic fence and awning as well as management measures proposed through the conditions and a PoM which regulate the washing of cars and the service station use.
62 In circumstances where washing of cars can occur on the site, the measures proposed mitigate impacts that could occur under the existing consent. The question is therefore whether these measure mitigate the impacts to an acceptable level.
63 Both Mr Wright and Mr Gough referred to the decision of Bly C in Seaside Properties v Wyong Shire Council [2004] NSWLEC 117 as an appropriate framework to consider the potential impacts from the proposal given its location at the interface of the mixed use and a residential zone. At [25] Bly C states:
As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
64 The amenity expectations of the residents must recognise their location adjoining an existing service station and a mixed use zone. Conversely, the development expectations of the service station must recognise its sensitive location adjoining existing residential development in a residential zone. Within this context the evidence is that the proposal will not result in noise or traffic impacts that are unreasonable. The proposal is therefore consistent with the objectives of the Mixed Use 10 Zone in LEP 1998 and the relevant requirements of DCP 1997.
Noise
65 I acknowledge that the acoustic fence and the plexiglass barrier will have a degree of visual impact when viewed from adjoining properties. However, I do not consider that of itself this would warrant refusal of the application. There is currently an unauthorised corrugated iron fence along the boundary with 15-17 Iredale Street that is unsightly which the acoustic fence will replace. The acoustic fence is about 3m high and is not uncharacteristic of a mixed use zone. Although it is higher than a boundary fence in a residential zone it adjoins the onsite parking area of the flats at 15-17 Iredale Street and would have an acceptable visual impact from this area and is unlikely to impact on the outlook from these units from which no objections were received.
66 The plexiglass barrier on the existing wall is angled away from the open space at 1/1 Iredale Street which is at a higher level than the site. Therefore the height and visual impact of the barrier is lessened to an acceptable level.
67 The proposed acoustic fence and plexiglass are acceptable given that they will mitigate noise impacts of the service station which would occur to some extent even if this application were not approved.
68 The issues about the structural adequacy and location of the existing boundary wall to 1 Iredale Street and maintenance of the plexiglass are matters which can be dealt with by conditions and would not warrant refusal of the application.
Traffic
69 Council contends that the traffic generated by the proposed car wash and existing service station will adversely affect the amenity for surrounding residential properties. Mr Wright submits that the issues of manoeuvring and management of cars, the potential queuing on Angel street, access to the parking bays and the greasing and servicing of vehicles demonstrate that the traffic and parking implications have not been adequately assessed and will result in adverse impacts on the amenity of neighbours.
70 Mr Gough submits that the evidence of the traffic experts is that proposal:
…. will not adversely affect the amenity of the surrounding residential area, will provide an acceptable amount of on-site parking, will have sufficient area to enable vehicles to safely manoeuvre and will not affect the performance of the King Street/Angel Street intersection, given that the additional traffic flows from the car wash are statistically insignificant.
71 Angel Street is not a through road and there is no direct vehicular access along Angel Street between the site and the adjoining properties at 1 Iredale or 15-17 Iredale Street and the surrounding residential area. There is therefore limited opportunity for resident cars accessing their properties to be in direct conflict with cars using the service station. However, queuing of cars in Angel Street for long periods could impact on the amenity of pedestrian and the occupants of nearby dwellings and would be unacceptable. The increase in car movements to and from the service station from the car wash is not significant and the traffic experts are satisfied that the cars wash, if operated in accordance with the conditions of approval and the PoM, will not adversely affect the amenity of surrounding residential properties.
72 The applicant would accept a condition for parallel rather than angled parking bays which the traffic experts agree would resolve any potential conflict. The applicant has also proposed a condition to require that the greasing and servicing of vehicles shall not occur on the property. This is consistent with the premise that the traffic experts assessed the use of the internal workshop area only for washing of cars and therefore removes any potential conflict or need for additional parking.