Giles Tribe v Willoughby City Council

CASES CITED: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Jonah Pty Limited v Pittwater Council [2006] NSW LEC 99

DATES OF HEARING: 1, 2 June 2009, written submissions 15 June 2009

APPLICANT Mr M Staunton, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11268 of 2008 Giles Tribe Pty Limited t/a Giles Tribe Architects v Willoughby City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA2008/702 by Willoughby City Council (the council) for the use of an existing industrial building for a car repair station at 12 Barcoo Street, Roseville (the site). The proposal 2 The premises are to be used by McCarrolls Motors for the servicing of Hyundai, Alpha, Fiat and Citroen vehicles from their showroom in Artarmon. The premises will be used in conjunction with the adjoining Lexus service centre. The Lexus service centre is immediately to the south of the subject building and shares the same driveway as the proposed car repair station. The driveway consists of a right of carriageway over two separate lots with reciprocal rights of way.

3 Cars for service will be driven to the premises by their owners and left for the day. The owners will either leave in a loan car or be dropped off at the nearby railway station by staff. It is anticipated the centre will service up to 165 vehicles per week. The hours of operation are Monday to Friday, 8 am to 6 pm and Saturday 8 am to noon.

4 Level 1 of the building will be used for the storage of cars only and Level 2 will be used for a customer lounge, office, toilets, 15 work bays and 28 car parking spaces and manoeuvring areas. The exterior of the building and site landscaping will remain unchanged. A total of 53 of the available 95 car parking spaces on the rooftop above the industrial floor (Level 3) will be allocated to the service centre. Relevant planning controls 5 The site is zoned light industrial 4(b) under Willoughby Local Environmental Plan 1985 (LEP 1985). The proposed use is permissible with consent in this zone. Clause 13(3) provides that consent shall not be granted unless the development is consistent with one or more of the aims of the plan and at least one specific objective of the zone.

6 The relevant aims of the plan are: ( c) to control and manage adverse environmental impacts of development, and (d) to maintain and enhance the amenity of residential areas, for example, by protecting these areas from inappropriate development, and (l) to ensure that the intensity of commercial and industrial development does not adversely affect the amenity and safety of adjoining residential areas or the efficiency of the operation of any local or regional traffic network, and 7 The relevant zone objectives are: (b) To accommodate industrial development that produces a range of goods and services and provides employment, without adversely affecting the amenity, health or safety of nearby residents in adjacent areas, and (c) To enable industrial development that does not pollute or adversely affect adjoining land, air or water, and The site and locality 8 The site is within a small industrial area on the eastern side of Barcoo Street. This area adjoins a larger industrial area with access off Eastern Valley Way to the east and Smith Street to the south. There are part 2 and part 3 level industrial buildings to the north and south of the site. Further industrial buildings are located to the rear of the site. The development on the opposite side of Barcoo Street consists of single and two storey dwelling houses and a neighbourhood park. There are also dwelling houses on the same side of Barcoo Street further to the north of the site. The contentions 9 There was agreement between the experts that in the event that the Plan of Management proposed by the applicant could be successfully implemented, the proposed development should not have any significant adverse impacts on the amenity of the area. The council's town planning expert, Mr Sunny Ooi, and the council's traffic expert, Mr Tim Rogers, however doubted whether the Plan of Management could be successfully implemented. The applicant's town planning expert, Mr James Lovell, and traffic expert, Mr Robert Varga, came to the opposite conclusion.

10 The issue in the proceedings was essentially whether the Plan of Management could be successfully implemented to provide a satisfactory level of amenity to nearby residential properties.

11 A number of local residents provided evidence on site and also provided details of the breaches of the council's conditions for the Lexus service centre, operated by the same applicant. These included: o testing vehicles in the local road system, o vehicles turning right out of the site, o the frequency and size of car carriers coming to the site, o deliveries outside prescribed hours, o parking and unloading of cars from car carriers in Barcoo Street, and o car carriers not accessing the site from prescribed streets. 12 In considering the sole issue of whether the Plan of Management could be successfully implemented, the experts relied on the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315. The planning principle states that in considering whether a management plan is appropriate for a particular use and situation the following questions should be considered: 1. Do the requirements in the management plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the management plan be readily identified to allow for any enforcement action? 4. Do the requirements in the management plan require absolute compliance to achieve an acceptable outcome? 5. Can the people, the subject of the management plan, be reasonably expected to know of its requirements? 6. Is the management plan to be enforced as a condition of consent? 7. Does the management plan contain complaint management procedures? 8. Is there a procedure for updating and changing the management plan including the advertising of any changes? 13 There was agreement by the experts that the Plan of Management could adequately address the actions of employees of the operation. The concerns of Mr Ooi and Mr Rogers relate to non-employees such as those persons who need to make deliveries between particular hours, drivers who need to follow a designated route and the use of the existing shared driveway so as not to restrict access for service vehicles if non-employee cars are parked in this area. Other matters relate to the enforcement of the requirements of the Plan of Management and what penalties will apply. Mr Rogers was also concerned that a non-compliance could potentially increase the risk of accidents in Barcoo Street.

14 The concerns of Mr Ooi and Mr Rogers were said to provide unacceptable responses to questions 2, 3, 4 and 5 in Renaldo Plus 3.

Findings 15 In considering the competing evidence of the experts on whether the Plan of Management could be successfully implemented I am satisfied that a Plan of Management can adequately address the operation of the proposed development, including those people not directly involved in the proposed operation.

16 As a starting point, and in response to concerns raised by the council and residents, the past activities of the Lexus centre are not a relevant consideration in this case. In Jonah Pty Limited v Pittwater Council [2006] NSW LEC 99, Preston CJ (at 35) states: Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. 17 In my view, the Plan of Management can adequately control deliveries to the site to ensure compliance with the conditions of consent, the requirements of the Plan of Management and consequently satisfy the requirements of cl 13(3) of LEP 1985 (see condition 10 of the Plan of Management). While this will require procedures to be established by the operators of the facility these procedures are not likely, in my view, to be so onerous or difficult that non-compliance could be expected.

18 The greatest impact on the adjoining residential area is likely to come from car trailers using Barcoo Street for loading and unloading. Some priority should be given to ensuring that this activity does not occur as Mr Rogers' concerns over safety are likely to be realised. Based on the evidence of Mr Varga I accept that the loading and unloading of vehicles on car trailers can occur within the confines of the proposed building (see condition 3 of the Plan of Management).

19 I accept the concerns of the council over the use of the right of way for vehicle parking and the resultant impact on vehicle movements within this area (see condition 5 of the Plan of Management).. Any impacts, however, are more likely to be felt by the proposed and adjoining development than the adjoining residential properties. I am satisfied that the existing restrictions imposed by the rights of way are sufficient and need not be embellished because of the proposed use as suggested by the council (see proposed deferred commencement condition C).

20 In terms of enforcement there are a number of ways of ensuring compliance if needed. Notwithstanding the evidence of the local residents over the inactivity of the operator to address any non compliances, the evidence provided by the applicant indicates that the proprietor has taken action to address non compliances in the past. The Plan of Management provides satisfactory complaint handling procedures to ensure that any complaints are logged, addressed and then the complainant advised of any action taken (see condition 12 of the Plan of Management).. Opportunities are also available to the council to take action if necessary through the Environmental Planning and Assessment Act 1979 for any breaches of consent including breaches of the Plan of Management.

21 When assessed against the questions asked in Renaldo Plus 3 there are no matters that would lead to a conclusion that the Plan of Management could not be enforced so that there are no significant adverse impacts on the amenity of the nearby residential area. Conditions 22 Of the conditions in dispute that were discussed at the hearing, I agree with the applicant's submissions that deferred commencement condition A can be made an operational condition. The provisions of the Facility Management Plan (deferred commencement condition B) should, where possible, be included in the Plan of Management and the s 88E registration required by deferred commencement condition C be deleted (see par 19). Also, the trial period (condition 2) can be deleted based on my findings on the Plan of Management (see pars 17 and 18).

23 At the conclusion of the hearing on 2 June 2009 findings on the contentions were given extemporaneously. A number of small issues over conditions remained and leave was granted for the parties to further discuss the potential agreement on these conditions. In the event that no agreement was reached the parties were to provide short written submissions on their preferred conditions. Written submissions were received until 15 June 2009 and Final Orders were made in Chambers on 25 June 2009.

25 Condition 30: the applicant seeks to allow loading and unloading of cars from car carriers from the ramp entering the building (while not inhibiting traffic flow in the right of carriage way area) rather than totally within the building. The council opposes the applicant's amendment as it would be dangerous. There is no practical reason why loading and unloading of cars could not be undertaken in the manner suggested by the applicant provided care is taken as the grade of the ramp is not excessive.

26 Condition 55 and Plan of Management condition 3.6: these conditions require car carriers to enter and leave the site in a forward direction. The dispute between the parties appears to relate to car carriers reversing into the building although there is no objection to this movement. The conditions can be simply be amended to reflect the agreed position.

27 Condition 58(1), 58(2) and Plan of Management condition 7.4: these conditions relate to a trial period for storing vehicles on the Level 1 roof by turning right from the entry to the site. This is a movement prohibited by other another condition of consent. It also requires the logging of the vehicle movements to assess whether it can be made permanent after the trial period. The council requires 4 spaces in the building rather than the use of Level 1. I am unsure as to the difference between the parties based on the submissions however, as previously directed there should be a trial period of 12 months with associated monitoring of vehicles to determine whether the movement of vehicles is unacceptable. I agree with the applicants submission is that it is not necessary to allocate the 4 spaces in the building during the trial period.

28 Condition 59 and Plan of Management condition 9.1: these conditions place limits on the number of vehicles to be serviced during operating hours. There was agreement that there can be a maximum of 165 vehicles services per week and a maximum of 32 vehicle services on any weekday. The applicant, in accordance with the council's traffic engineer's evidence, places no restrictions on the number of vehicles services on Saturday. The council now seeks to provide a maximum of 15 vehicle services on Saturday, being commensurate with the half day operating times. While this was not fully addressed at the hearing, I accept the council's restriction on vehicle servicing on Saturday given that it is the weekend and the proximity to residential properties. Orders 29 The Orders of the Court are: 1. The appeal is upheld. 2. DA2008/702 for the use of an existing industrial building for a car repair station at 12 Barcoo Street, Roseville is approved subject to the conditions in Annexure A. 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

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