Kells v Auburn Council

CASES CITED: Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 166; Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153

APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is Appeal No. 10598/06 between John Alan Kells and Auburn Council in regard to the refusal of the council to issue a building certificate for an unauthorised building erected at the rear of No. 8 Alban Street, Lidcombe.

2 The site is legally described as Lot 32, DP 5197. It is located on the north-western side of Alban Street within the 4C Industrial Enterprise Zone between Natalie Street East and the Great Western Highway. The site also has a rear frontage to an unnamed laneway. The site is regular in shape with an area of some 611 sq m with 15 m frontages to Alban Street and the lane, and 40 m depth.

3 Erected on the site is a brick and fibro cement roofed industrial building set back approximately 4.8 m from Alban Street and 19.8 m from the rear laneway. The building is constructed directly to the side boundaries. Also erected on the site is the two level subject unauthorised structure.

4 The building is located adjacent to the rear of the existing building. The vehicle access is available to the site from both Alban Street and the rear laneway. On the Alban Street frontage the site has landscaped areas, pedestrian pathways and a driveway. To the rear there is a fence constructed of various materials, previously of wire mesh, now of more solid materials with spikes along the top, approximately 2.1 m high. There is a sliding gate to the rear laneway with a man-door built into it.

5 The parking area contains seven parking spaces located along the northern boundary of the site against the next door neighbouring building which extends for almost the full length of the side boundary.

6 The structure, the subject of this appeal, is constructed over two of the parking spaces, the two closest to the existing building. Inside it are provided two spaces apparently used for detailed examination of vehicles for forensic evidence involved in criminal cases. The other five spaces outside are occupied by crashed vehicles awaiting transport for examination, or after examination.

7 The locality being within the 4C zone consists of a mixture of new and old light industrial properties generally of a scale and type similar to the authorised older building on the subject site. The development generally consists of single and two storey warehouse type development with ancillary office components. Most sites are occupied by a single user or business.

8 On-street parking availability in the area is limited arising from the dense pattern of development and due to the age of many developments that have inadequate off street parking provision.

9 The applicable statutory controls are the Auburn Local Environmental Plan 2000 and the Auburn Development Control Plan for Car parking and Loading. There are also controls for stormwater drainage, a specific control on lanes for industrial areas and provisions for access and mobility.

10 The area does come within the Regional Environmental Plan No 24 Sydney Harbour Catchment 2005, however, no issue arises in respect of that. 11 The issues in the appeal are: 1. Non compliance with the Building Code of Australia 2004, 'Fire Resisting Construction': (a) the external north facing wall does not comply with Pt C 1.1 clause 5.1 Table 5. The external wall is required to have a Fire Resistance Level of 90/90/90; (b) windows on the second storey do not comply with Pt C3 clause 3.2. As the windows are within 1.5 m of the fire source feature being the boundary of the site no openings are permissible and the fire resistant level of Pt C of the BCA must be met. Stormwater Management/Runoff 2. The development is inconsistent with the environmental objectives for development at cll 8(1)(c)(d)(e) of Auburn Local Environmental Plan 2000 as no details of runoff or stormwater management have been provided to Council to enable an assessment of whether the development will adversely impact on river systems or if an effective and efficient means is proposed to dispose of stormwater and the development has not been designed to promote conservation of natural resources and non-renewable energy sources. 3. Insufficient information has been submitted to Council to enable an appropriate assessment of whether the development satisfies the relevant objectives and requirements of a Stormwater Drainage Development Control Plan . Character, Streetscape and Amenity 4. The development is inconsistent with the provisions of the Auburn Local Environmental Plan 2000 . Particulars : (a) the development is inconsistent with the character and amenity objectives for development at cll 8(4)(b) and 8(4)(d) of the LEP as the development will not improve the environmental character and quality of streetscapes in the local government area and will not be in keeping with the character of the local government area; (b) the development is inconsistent with the objective for development within the zone 4(c) Industrial Enterprise Zone at cl 20(1)(a) of the LEP as the development will not recognise the special character of Parramatta Road frontages and surrounding areas; (c) the development is inconsistent with the requirements for development within industrial zones at cll 22(a)(c) and (f) of the LEP as the development is not compatible with the existing and likely future character and amenity of nearby properties in terms of scale, bulk, height and siting and car parking. Insufficient information has been submitted to Council to enable an assessment of the development in regard to stormwater drainage impacts. 5. The development is inconsistent with the Industrial Area's Development Control Plan. Particulars : (a) the development is inconsistent with the streetscape and urban character objectives of the Industrial Areas DCP at Pts 2.0(a) and (b) as the development is not compatible with the existing and intended future character of the locality in which it is located and does not promote industrial development which is both functional and attractive in the context of its local environment through appropriate design; (b) the development is inconsistent with the following provisions of the Industrial Areas Development Control Plan . (i) Pt D2.3 (the design of facades of new building should reflect a style and architecture of adjoining buildings); (ii) Pt D2.4 (architectural features should be included in the design of new buildings to provide for visually interesting industrial areas); (iii) Part D2.5 (new development designed to have compatible size, scale, architectural landscape design with existing buildings within the street); (iv) Part D3.2 (buildings designed to introduce visual interest and horizontal and vertical modulation); (c) the development is not consistent with the building form objectives of the Industrial Areas Development Control Plan at Pt 3.0 (a) and (c) as the form, scale, design and nature of the development does not maintain and enhance the streetscape and visual quality of industrial areas within the Auburn Municipality and does not demonstrate a high standard of environmental design. 6. The development is likely to have an adverse environmental impact in the locality arising from the poor building form and limited architectural character to the development and detrimental effects on the appearance of the streetscape and subject site. Parking and Access 7. The development is inconsistent with the provisions of the Industrial Areas Development Control Plan . Particulars : (a) the development is inconsistent with the access and car parking objectives of the Industrial Areas DCP at parts 4.0(a) and (b) as the development does not ensure an efficient and safe layout to parking and servicing areas and does not ensure adequate provision of off-street parking on the site; (b) the development is inconsistent with the provisions of the Industrial Area's DCP Pt D4.1 (minimum number of off-street parking spaces) and Pt D4.6 (applications to be accompanied by a manoeuvring analysis). 8. The development is consistent with provisions of the Parking and Loading Development Control Plan. Particulars : (a) the development is inconsistent with the off-street parking objectives of the Parking and Loading DCP at Pts 1.0 (a) and (b) as the development does not ensure an acceptable level of parking is provided on site and does not provide for the reasonable parking needs of the business; (b) the development is inconsistent with the design of transport and parking facilities objective of the Parking and Loading DCP at Pt 3.0(c) as the development will not provide convenient and safe access and parking to meet the needs of all visitors; (c) the development is inconsistent with the provisions of the Parking and Loading DCP at Pt D 1.1 (minimum number of off-street parking spaces) Pt D 1.3 (submission of a detailed parking assessment) pt D2.3 (details of service vehicle types) and Pt D3.8 (compliance with Australian Standard 2890). 9. The development is likely to have an adverse environmental impact in the locality arising from the inadequate off street parking provided to the development. Failure to Obtain Development Consent 10. The development has been carried out without first seeking the consent of Council as required for development within the 4(c) Industrial Enterprise Zone at cl 20(3) of Auburn Local Environmental Plan 2000. Circumstances of the Case and the Public Interest 11. The circumstances of the case and the public interest. 12 There was no cross-examination of the expert reports in the appeal which came from a report by Ms M Forwood, Team Leader Development Assessment Auburn Council and Mr Robert Lawrence, Senior Building Surveyor, Fire Safety and Compliance.

13 In reaching conclusions on the matter parties agreed during the hearing that the Building Code of Australia Works needed for the building to comply with structural and fire safety requirements could be carried out but the respondent says more matters are relevant considerations, having reference to the test case Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 166.

14 The applicant put that a later decision by Payne J in Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153 indicated that in considering a building certificate matter, there was no need to undertake any merit or factual assessment other than those matters involved in the actual building works and compliance with BCA and fire regulations.

15 Having considered those two cases I find that since there is no development application before the Court, and in fact since it is an already erected building, there could only be a development application for permission to use the building and that the Taipan Holdings case is the appropriate one to follow.

16 It is true there may be a future application for the use of the building as part of an overall use of the site or as a separate use to that in the older building.

17 The existing development consent for a motor repair station on the subject site requires seven car spaces and a carwash bay on the subject premises. As previously mentioned, the new building occupies two of the car parking spaces. The older building is currently unused.

18 The towing business and storage of vehicles utilises the four outside car parking spaces for crashed vehicles, the inside parking spaces are also used by the towing business. The inside car spaces are apparently used by delivering the crashed vehicles to the door, unloading them onto jacks that enable them to be manoeuvred into position. The respondent put that the car spaces were not available for other uses in conjunction with the currently approved motor repair station.

19 The applicant put that the motor repair station was not currently being used and therefore there was ample parking for what was occurring on site and that any future re-use of the building would require that new use to obtain approval.

20 I put it to the parties that the existing motor repair station consent was current, and evidence was tendered by the respondent with letters from the applicant's lawyer and from the applicant's planning consultant of very recent date, indicating that the owner was currently seeking new tenancies for the motor repair station. In that case the seven spaces would once again be required and must be considered as being part of that use until that consent is abandoned.

21 The respondent said the 2 car spaces inside the subject building could not be used except by the manoeuvring jack system. It seemed from observation during the view that if the towing business ceased then the two spaces inside the unauthorised building could be used as there appeared to be sufficient manoeuvring space to place two cars within, if they were under their own power. There were no swept path templates produced to prove that assumption.

22 There was agreement however between the parties that the primary matters in this appeal, other than the Building Code of Australia and fire requirements were those of streetscape and the existing and future character provisions of the statutes and the development control plan, and whether or not the building as built, would be satisfactory bearing those matters in mind.

23 I was taken in the Auburn Local Environmental Plan 2000 to cl 8(4) in regard to the specific objectives of the plan in relation to character and amenity of the Local Government area and directed to subclause A the necessity to recognise the special character and function of individual areas within the Local Government area.

24 Whilst this is an overarching objective of the Local Environmental Plan it needs clarification by reference to the objectives of the specific zone which were found in cl 20(1)(A) which is to recognise the special character of Parramatta Road frontages and surrounding areas. The latter area is the relevant one in this case since the unauthorised building can only be seen from the rear service laneway of the site.

25 One must then turn for further clarification to the Industrial Areas Development Control Plan, in particular cl 2 objective: (a) to ensure that all new development is compatible with the existing and intended future character of the locality in which it is located; (b) to promote industrial development which is both functional and attractive in the context of its local environment through appropriate design. 26 In the development standards under those objectives, objective D 2.4 said architectural features should be included in the design of new buildings to provide for more visually interesting industrial areas, including elements which punctuate the skyline, distinctive parapets or roof forms, visually interesting facades, architectural emphasis on the built form and a variety of window patterns. Building Form Clause 3 - Objectives are: a) to ensure that the form, scale, design and nature of the development maintains and enhances the streetscape and visual quality of industrial areas within the Auburn Municipality; (b) to ensure that the scale of any new industrial development is compatible with surrounding industrial buildings; (c) to encourage a high standard of environmental design with new and existing industrial areas. 27 In regard to cl 4 Access and Car parking, it was shown that due to the office built on the second storey of the unauthorised building, if all of the site was used it would require one additional car park, which could not be provided. So even if the applicant does rely on the existing consent, the subject building would place the currently approved use of land for a motor repair station unable to comply.

28 Turning to the streetscape aspects. The evidence of Ms Forwood was that: "the proposed structure is considered to be an awkward building form and does not relate well to the existing building located on the site or to other development in the locality generally. The structure appears tacked onto the existing building on the site as an afterthought rather than being the subject of a careful integrated design concept. Little emphasis appears to have been given to the external appearance of the structure in terms of the provision of any interesting or innovative architectural elements in the features or to the external material selected. The structure does not present attractively to the rear lane frontage of the site and does not improve the environmental character of the streetscape. Further, the structure is not of a type that is characteristic of the Parramatta Road precinct within which the site is located." 29 On seeing the structure I was told, and it was clearly observable, that the office on the second storey is actually a prefabricated building with windows on the side facing the northern neighbour. These have been sealed up with sheet metal covers that would not constitute an appropriate compliance with the BCA. The building is apparently metal sheathed on the outside, it has windows to the west facing over the remaining four car parks and to the south overlooking the timber deck at that level. The deck is built over the rest of the garage. On the east of the prefab building facing the existing building there is a sealed up opening for apparently an air conditioning unit.

30 The timber deck at the first floor level has on it a fabricated balustrade made out of rectangular chain welded mesh fencing attached to a roughly welded set of stanchions. This is accessed by a stairway in fabricated steel up the side of the building. The risers of the stair are so high that they do not comply with the BCA and present a safety hazard of a foot or leg being able to slip through the gap. This gap has to be blocked off.

31 The balustrade to the stair likewise had what appeared to be an original railing which was a single rail and later on, a makeshift balustrade has been welded in between in order to achieve some compliance with balustrade requirements.

32 At the ground floor level against the northern side boundary there is a masonry wall of light weight masonry that apparently would comply with the fire requirements. The other side walls are in metal sheeting. There is a roller shutter into the car park.

33 The upper level of this building is obvious from the laneway at the rear as seen over the constructed metal sheeted back fence. Its roof is simply a single sheet somehow attached to the top of the prefabricated building with wide eaves and no gutters. The roof of the garage likewise has no gutters and is sheet metal overlaid with a timber deck to provide a trafficable surface. There are two advertising signs facing towards the rear laneway.

34 The applicant submitted that the rear laneway is no great beauty as a piece of streetscape and I suppose in that there is some truth. There are some new additions to existing industrial buildings that might be described as simple and clean architectural or geometric shapes. There are older buildings that are suffering from lack of repair or maintenance which could be said to be detracting from the general industrial appearance of the lane.

35 However, it is my opinion that the subject structure largely conforms to the description given to it by Ms Forwood that it is an awkward building form, it does not relate well to anything and certainly did not enhance the lane. It does rather detract from the streetscape, as does the roughly put together fence structure erected on the boundary. This fence appears to be a new structure because the existing consent shows a chain mesh fence with a recessed bay for gates into the car parking area. The fence is currently solid panelled as I mentioned, with a sliding gate on the laneway boundary with no recess.

36 Therefore it seems to me that issuing a building certificate for this building would be contrary to the intentions of both the Local Environmental Plan and the relevant Development Control Plan as referred to in Issues 4, 5 and 6 of the appeal, character, streetscape and amenity, and therefore it would also not be in the public interest under issue 11.

37 Therefore, the orders of the Court are: 1. The appeal is dismissed 2. The exhibits are returned to the parties except Exhibits 2, 9, 10, 11 and A. ___________________ K G Hoffman Commissioner of the Court rjs

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