Appwam Pty Ltd v Ashfield Council

Land and Environment Court (NSW)|2010-12-21|Before: Mr P

1Commissioner : This is a determination of proceedings pursuant to the provisions of s34(4)(b)(ii) of the Land and Environment Court Act 1979 (the LEC Act) . The appeal is made against the refusal of Development Application No. 2010.033.1 (the application) by Ashfield Council (the council) which proposed the demolition of an existing factory building and the construction of a building to be used for the purpose of a warehouse and industry for the storage, assembly and distribution of electronic components including a caretaker's residence to be used in conjunction with the industrial component of that use. 2The proceedings commenced as a s34 conciliation conference where the parties attempted to address the matters which were in contention. This included amendments to the plans and the provision of additional information by the application in relation to use of the premises, drainage and acoustic details. It is those amended plans which are now before the Court. A number of the contentions were resolved through the conciliation process however there are two remaining contentions. In accordance with the provisions of s34(4)(b)(ii) of the LEC Act, the parties agreed that I determine the application on the basis of what had occurred at the conciliation conference.

Background and the proposal 7The proposed development involves the demolition of the existing site improvements and the construction of a new light industrial/warehouse building incorporating basement car parking and ancillary office, retail and caretaker apartment. The proposed use involves the storage, distribution, assembly and co-ordination of electrical components for the trades, reseller and home markets. 8Between 30 and 40 people would be employed once the business is operational. 9The original proposal considered by the council was for a building which provided loading facilities at its southern end and delivery vehicle access around the perimeter of the site in an anti-clockwise direction. Vehicle access to the site would be from the eastern driveway with access from either Kensington Lane or the shared entry off Parramatta Road. The building was erected to the boundary with Kensington Lane and up to the right-of-carriageway. Its height at the rear elevation varied from 13-18.5m and the ridge height was proposed to be built at RL 37.1 which is, at its highest point, some 18.6m above ground level. 10The council refused the application for the following reasons:

The development is excessive in bulk, scale and height.
The development will have an adverse visual impact on adjoining residential properties to the rear.
The development will negatively impact on the character and significance of the heritage items at 83-89 Kensington Road.
The development fails to satisfy Section 4.1 of the Access and Mobility Development Control Plan.
A BASIX Certificate has not been submitted for the caretaker's unit as required under Part 2A of Schedule 1 of the Environmental Planning & Assessment Regulation 2000.
The provision of landscaping is inadequate.
The front building setback is inadequate.
The proposal is not in the public interest.

The planning controls 11The site is within Zone No 4(b) under Ashfield Local Environmental Plan 1985 (the LEP) . The LEP does not incorporate zone objectives however it does have plan objectives. They are: (a)promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment, and (b)retain and enhance the identity of the Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield (now listed as part of the National Estate). 12Dwellings used in conjunction with industries and situated on the same land as the industries; industries (other than certain specified industries) and warehouses are uses that are permitted with consent in Zone 4(b). During the conciliation process, there was discussion whether the caretaker's residence was permitted with consent and, based on information provided, it is agreed that the dwelling would be used in conjunction with the industrial use to be carried out on the site and therefore was a use for which consent could be granted. 13Clause 17 of the LEP allows a maximum floor space ratio (FSR) of 1:1. The plans before the court are for a building with a total floor space of 4714sqm and a FSR of 1:1, thereby complying with the development standard. 14Clause 23 of the LEP applies to setbacks and states: A person shall not erect or use a building on an allotment of land within Zone No 4 (b): (a)for the purposes of any industry-unless the building is not less than 15 metres from the nearest alignment of a main road or county road, or (b)for any other purpose-unless the building is not less than 8 metres from the nearest alignment of a main or county road. The proposed building is to be erected on a varying setback of between 5 and 9.7m which does not comply with the development standard and accordingly, an objection to that standard was submitted with the application pursuant to the provisions of State Environmental Planning Policy No. 1. Whilst an initial reason for refusal, it was agreed during the conciliation conference that the setback proposed is consistent with the adjoining development and the contention was not pressed. 15Clause 24 requires parking to be provided for developments in Zone 4(b) at the rate of either 1 space per 2 employees of 1 space per 46sqm of gross floor area (GFA), whichever is the greater. The plans before the court provide 102 spaces, which satisfies the latter standard. 16Ashfield Development Control Plan 2007 (the DCP) also applies to the site and in relation to parking, the DCP allows consideration of parking allocated on the basis of the use of the floor area. Accordingly, applying the controls under the DCP, only 56 spaces would be provided due to the high proportion of warehouse floor space.

The conciliation conferences 17The initial conference was held on site when an inspection of the site and its immediate environs was conducted in the company of the parties and their experts. 18Evidence was heard from the owners of a number of residences whose properties adjoin the site and a view of their properties was undertaken in order that their concerns could be demonstrated. Their concerns relate to the noise associated with the trucks which will service the site, the size and scale of the building, the reduction in solar access a building of the height proposed will cause to their backyards and the unacceptable impact the building will cause to their amenity and enjoyment of their yard areas. 19The parties discussed options for alternate building design that would facilitate racking heights within the warehouse but reduce the impact of the development when viewed from the rear yards and dwellings in Kensington Road. Amended plans were prepared in response to the matters agreed at the initial conference. 20Subsequent conferences were held to discuss these amended plans and the contentions of the council were reduced in scope. The amended plans reduced the height of the rear wall of the building adjacent to Kensington Lane to a height similar to that of the existing building i.e. ranging from 5m at the west to 9m in the south-eastern corner. The main high-clearance portion of the building was setback a further 5.45m from the boundary and the height to the ridge reduced to between 11m (western end) and 14.92m (eastern end), an overall reduction in building height of 3.3m. 21The changes were achieved by excavation of the site to provide for basement parking which has the effect of reducing all floor levels within the building. The main warehouse floor level was reduced from RL24.5 to RL21.7. In order that efficient loading dock access can be provided, the docks were relocated from the western end of the building to the central, southern end of the building. 22The original plans did not propose any acoustic attenuation of the docks to protect the amenity of those residents who adjoin the site and have frontage to Liverpool Road however, as the issue of noise was raised by residents of Kensington Road, an acoustic assessment was undertaken and an acoustic wall introduced along part of the site boundary opposite the relocated loading dock. That wall would run along the rear boundaries of Nos. 77, 79 and 81 Kensington Road and would be within the boundary of the subject site where it adjoins Nos. 77 and 79 but partly within Kensington Lane, a public road, where it adjoins No. 81. 23Mr Jackson for the council advised that, as the owner of the road, the council would not give the necessary owner's consent however accepted that the Court is empowered to grant that consent. The parties also acknowledge that an approval under the Roads Act 1993 (the Roads Act) for the construction of that wall within the road reserve is also required, as a separate approval, in the event that development consent is obtained. 24According to the acoustic experts, the wall must be 3.0m minimum height above the finished road level however, in order to provide a visual screen to trucks using the laneway and the difference in level between the site and the adjoining residential properties, the height of the wall shown on the plans is up to 3.9m at a point adjacent to No. 77 Kensington Road. 25Shadow diagrams prepared with the amended plans indicate that the existing dwellings along Kensington Road will maintain solar access to the rear walls of the dwelling at all times during winter. The increased building height will extend the overshadowing of rear yards to some extent however, all properties will received in excess of 3 hours sunlight to their primary open space area. This was deemed by the parties to be acceptable however, was not considered satisfactory by the owners of the properties who maintained the development should have no adverse affect on their amenity. 26The amended plans were renotified and three submissions received, those being from the owners of the properties where the acoustic fence was proposed to the rear boundary of their properties. Two of the submissions received raised objections. Those objections are in relation to overshadowing, the location of the loading dock and the location of the acoustic wall. 27Despite objecting to the proposal, each submission included a request that, if approval is given to the development, the wall be built and it be a minimum 3.5m high, be constructed on the development site and, where access is available to the public laneway, the right of access to that laneway be maintained.

The remaining contentions 28Of the eight reasons for refusal, the amended plans and documents received during the conciliation process have reduced the number of matters in contention. The introduction of the acoustic wall has added a matter which must be considered in the assessment of the application. The matters that remain in contention are: ·Whether consent should be granted for the construction of the acoustic wall within the public road, Kensington Lane and whether such construction would be in the public interest; ·Whether approval under the Roads Act should be granted and if such approval would be consistent with the objectives of the Act; ·The impact of the acoustic wall on the amenity of adjacent residents. 29The relevant objects of the Roads Act are: (a)to set out the rights of members of the public to pass along public roads, and (b)to set out the rights of persons who own land adjoining a public road to have access to the public road, and (h)to regulate the carrying out of various activities on public roads. Section 6 of the Roads Act relates to object (b), Right of access to public road by owners of adjoining land and states: (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law. 30Mr Jackson, for the respondent argues that the construction of the acoustic wall, the purpose of which is to ameliorate the impacts of the development, on public land is contrary to the objects of the Roads Act and not in the public interest. He contends that the wall should be built within the site and that its proposed location would not provide the right of access to No. 81 Kensington Road in accordance with the objects of that Act. 31Mr Pickles for the applicant advises that the acoustic fence can be designed in such a way that it can incorporate an opening now or in the future in any location that would facilitate access. He says that s138 of the Roads Act allows consent to the granted under that Act for the construction of the wall. That section specifies that consent is required to erect a structure or carry out a work in, on or over a public road. Such consent is a separate approval to a development consent issued pursuant to the provisions of the Environmental Planning and Assessment Act 1979. 32I accept that a separate approval is required and refer to Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4 ) [2009] NSWLEC 226 where Preston J makes it clear that the Roads Act and the Act require separate approvals for development within a road reserve. There is no impediment to the Court granting separate approval to the application pursuant to the provisions of both Acts. 33With regard to the objects of the Roads Act, Mr Pickles is of the opinion that the proposed acoustic wall is no different to the existing boundary fence on the boundary with the lane and that it would not hinder the rights of persons to pass along the road nor would it deny access to that road should it be required. For those reasons, he says it would be consistent with the objects and consent under that Act could be granted.

The evidence 34Expert town planning evidence was heard from Mr McNamara for the council and Mr Williams for the applicant. These experts agree that the reduction in height of the southern boundary wall and the building as a whole, the setback of the high clearance warehouse space and the detailing of the building as indicated on the amended plans has addressed the concerns of bulk and scale. I agree that the details indicated on plan, Drawing No. OPT3-06B is appropriate in terms of scale and materials. 35Mr Williams considers that the height of the acoustic wall along the rear boundary with the adjacent residential properties is appropriate and can be related to the building height plane setback a further 6m from the wall. He considers the wall is a considerable distance from the dwellings on the land and that separation results in an acceptable scale, size and visual impact. He also considers that the wall will provide an improved acoustic environment to those residents due to the reduction of traffic noise from Parramatta Road. Mr McNamara considers the height of the wall, being some two to three times higher than the typical 1.8m high dividing fence, to be excessive and that is would be visually intrusive when viewed from the residential properties. 36Mr Jackson raised the council's objection to the acoustic fence on the basis that the fence, being constructed on land under the control of the council, would become the responsibility of the council for any approval to carry out works to the fence and any liability that may arise in the event of any damage caused to or from it. Mr Pickles advised that a condition of consent could be imposed which burdens the owners of the site with the responsibility, liability and maintenance of the wall and argued that the Roads Act provides sufficient protection to the council to require the maintenance of the fence, including the ability to direct the beneficiary to remedy damage.

Conclusion and findings 37The redevelopment of land, which is zoned for industrial purposes at the interface with a residential area, presents design challenges to ensure that the different uses can function without adverse impacts being caused to the amenity of residents of those areas whilst maintaining efficient operations for the industrial business. These constraints can mean that it is not always possible to optimise the development controls that apply to such an industrial site and not adversely affect the amenity of adjacent residents. 38This case is such an example where the applicant is seeking to develop the site to the maximum FSR allowed and to increase significantly the height of the building from that which is currently on the site. The consequences of this approach have, in my opinion, led to unsatisfactory impacts on the amenity of the adjoining property and in particular the need to erect an acoustic wall up to 3.9m in height on the boundary of those residential properties and within a public road. I do not consider that it is appropriate that the applicant rely on constructing ameliorative measures within the public realm and consider that all such measures should be fully contained within the site. 39Whilst I accept that the Road Act allows the construction of structures within the council road reserve and that s142 provides provision for the council to require certain works to be carried out, this is a burden that does not currently exist and to enforce this provision in the case provides no public benefit. 40I am not satisfied that the liability for consequential damage that may arise from the construction of the fence on public land can be transferred to the owners of the site. The decision of Cowdroy J in Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151, supports this view. This decision, and the earlier decision of McClelland J in Galandon Pty Ltd Narrabri Shire Council (1983) 51 LGRA 5, support the conclusion that a condition requiring an indemnity would not have a basis in any of the matters set out in s79C of the Act and therefore could not be imposed. 41I agree with the planning experts that the scale of the building as proposed is now appropriate however, I do not consider the construction of a 3.9m high acoustic wall across the rear boundaries of the adjoining residential properties is appropriate, nor is reliance on public land to benefit private development reasonable in the circumstances of this case. All mitigating work should be carried out wholly within the site. 42I consider that the amended plans provide for a development, apart from the acoustic wall, that would not have an adverse impact on the adjacent heritage items in Kensington Road. 43To ensure that the development provides a proper interface with the residential area, further amendments to the design could potentially address these concerns. 44This would require the following changes to be made: ·relocate the acoustic wall to the northern side of Kensington Lane and the private laneway; ·relocate the vehicle accessway and loading docks to the north of that wall. I note that this would necessitate the reduction in width of the building by whatever width is necessary to allow vehicles to manoeuvre into the relocated loading bay. The reduction in width would be no more than the width of the laneway i.e. 6.095m. ·Construction of the 3.0m high acoustic wall along and within the southern boundary of the site where it adjoins Kensington Lane and to the north or the right-of-way at the extension of that lane. 45These changes would affect the layout of the basement carpark and may either reduce the number of spaces available or the clearance for those spaces depending on levels below the roadway and how that new roadway is constructed however, due to the reduction in floor space and the surplus number of spaces available when the DCP provisions are applied, such reduction can be supported. 46No further changes would be required to the building as the driveway could be constructed to similar levels as the existing lane. 47Redesign of the development in this manner would delete the necessity to obtain separate approval under the Roads Act, significantly improve the amenity of residents in Kensington Road and provide an appropriate interface between the industrial and residential zones. 48I am satisfied that these changes will reduce the impact of the proposal to an acceptable level and not result in the proposal being so markedly different as to require a further development application. 49I acknowledge that the changes will reduce the floorspace of the proposed building however, it is the low-rise space that is affected and it is this area that the applicant, throughout the conciliation conference was seeking to minimise. As these changes were not discussed in any detail with the applicant during the hearing, it is appropriate to allow the applicant time to consider the implications of the decision and for the council to determine whether the draft consent conditions require amendment to reflect those changes. 50If the applicant chooses not to amend the application as outline above, Orders will be issued in Chambers dismissing the appeal. 51If the applicant chooses to adopt the proposed changes, Orders will be issues in Chambers upholding the appeal once the amended plans, and conditions, which reflect this decision, are finalised.

Directions

The applicant is to advise the Court by ecourt by 21 January 2011 whether it intends to amend the application to reflect this decision. If so, the applicant is to file and serve sketch plans which incorporate the changes by 28 January 2011.
Agreed conditions, in RTF format, reflecting the amendments are to be filed by ecourt by 1 February 2011.
Liberty to relist the matter on two days notice.

Sue Morris Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2011

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Judgment (9 paragraphs)

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Cases Cited (2)