Meridian Freight v Botany Bay City Council

Zhang v Canterbury City Council (2001) 115 LGERA 373; CASES CITED: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; Goldin and Anor v The Minister for Transport; Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101

APPLICANT Mr V Conomos, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr T Hale SC INSTRUCTED BY Houston Dearns O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

07/10030 Meridian Freight v Botany Bay City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal against the deemed refusal of an application pursuant to s 82A of the Environmental Planning and Assessment Act 1979 concerning Development Application 06/188. The application sought consent for the construction of a two storey industrial building in Bay Street, Botany (the site).

2 The site, which is a small one (a matter to which I will return later), was the subject of a view by the representatives of parties and those advising and instructing them.

3 During the course of the site inspection, I had the opportunity of inspecting the site, which is currently vacant, and from walking round the block, in Bay Street through McFall Street and into Erith Street, returning to Bay Street.

4 The site, which is 21 Bay Street, is some 214 sq m and has a frontage slightly in excess of 9 m to Bay Street. Bay Street, for the substantial portion of its length on the western side of Botany Road, has development only on the southern side of the street, being the side where the site is located. On the opposite side of the street is located land controlled or owned by Sydney Water.

5 There is a made kerb and gutter along the southern side of the street but along the northern side of the street there is an informal arrangement interspersed with large palm trees, which appear to be Cocos Palms.

6 It is important to note, in the context of consideration of this application, that there is nothing concerning the design of the building, in an aesthetic sense, that would require consideration by the Court. 7 Indeed, Mr Neustein, an expert witness giving evidence on behalf of the Council, in an earlier report described the appearance and design of the structure as being novel and of almost residential scale with an appearance that he assessed as being "acceptable and interesting".

8 The matters that primarily arise for determination in this appeal relate to what, if anything, should be the consequences of a number of non-compliances with the provisions of the relevant development control plan for parking and, in particular, the relevant development control plan controlling industrial development.

9 The site is zoned 4(a) Industrial. There is, specifically enunciated in the zoning table, amongst the categories of development which may be carried out with development consent, development for the purpose of air freight forwarders - that being the nature of the business conducted by the applicant.

10 Indeed, the applicant has indicated a preparedness to accept a condition of consent, if a consent were to be granted, restricting the permitted use of the premises to be for the purposes of an air freight forwarding business and to require that, if any alternative use were proposed in the future either by them or by new owners of the premises, a further development application would be required.

11 The consequence of the foregoing is that the application is consistent with the zoning of the site and is permissible with consent.

12 There are three matters arising from earlier decisions to which I need to have regard that, in my view, provide the fundamental matters to be considered in these proceedings.

13 There is no contest, as a matter of fact that, there is a non-compliance with the front and western side setbacks of the proposal - Mr Neustein conceding that with respect to the western side setbacks that is not a matter of merit determination which should militate against approval of the application.

14 There is, at least on the Council's calculation of parking, a shortfall of at least one parking space and there is also an inability to undertake all turning movements that would be required for operation of the site on the site.

15 Essentially Mr Neustein, in a report he provided to the Council, summarised the single reason why he considered that the application should be refused as being: "This site is too small for the development proposed and should be the subject of an amalgamation with the site to the west, in accordance with Objective 03 of S B3 of DCP 33."

16 He continued, further in the report: "The small size of the site is not sufficient reason to abandon the DCP's requirements. Rather, such small sites should be required to amalgamate with adjoining sites as per Objective 03 of S B3 of DCP 33."

17 There are a number of deficiencies, as I indicated, with the application.

18 In part, they are not matters that are pressed as being determinative in their own right but which, considered in the context of that objective of the development control plan, are ones which the Council says warrant refusal and warrant refusal on the basis of possible deleterious precedent for development in this area.

19 I am satisfied that I should consider this proposal in two separate alternative contexts. They are: 1. The broad context of development dealt with Development Control Plan 33 (DCP 33); and 2. In the context of the specific location of this site within a defined precinct in DCP 33, being the Botany West industrial precinct.

20 Indeed, as is made clear on p 35 of DCP 33, at 2.5(1)(a), the Botany West industrial precinct itself is dealt with as two sub-precincts, those being to the north and to the south of Hale Street.

21 The site is located in the area to the north of Hale Street which, on a rough approximation, comprises perhaps 20% of the area of the precinct and primarily comprises Bay Street and Erith Street and Byrnes Street in the immediate locality.

22 It is clear from the land use table contained in the Local Environmental Plan that the Botany West industrial precinct and this zoning does not envisage new housing being constructed on industrial sites as dwelling houses are not a permissible within the zone (always of course subject to such existing use rights as might exist from site to site).

23 During the course of the view I had the opportunity, as earlier indicated, to walk the block with the parties.

24 It is fair to say that the general architectural style of the industrial developments already extant within the Bay Street and Erith Street areas should be described, at its highest, as being eclectic and undistinguished and, at its lowest, as being development that would not be remotely acceptable in a general modern context, let alone when assessed against the provisions of the development control plan.

25 It is also clear from the zoning table that the range of primarily weatherboard workers' cottages on smaller allotments that are located with frontages to Bay Street and to Erith Street are envisaged, over time, to disappear and to be replaced by permitted industrial uses pursuant to the zone use table.

26 That general change is evidenced not merely by the application made for the present site, which formerly contained a house but is now a vacant allotment, but is also evidenced by the proposal (still in discussion stage at pre-DA lodgement with the Council) for the possible consolidation of 17 and 19 Bay Street, being the sites immediately and one further removed to the west of the present site, both of which contain at the present time weatherboard residences of the type typical of this sub-precinct.

27 The particular matter, which Mr Neustein adverted to in DCP 33 is contained on p 66 of this plan under the heading, B3 Site Area and Frontage. It is described as: "There is a need to ensure that the development provides adequate area so that all operations can be conducted on site and that any impacts are contained to the site."

28 There are then four Objectives provided: 1. To ensure that sites of new industrial developments are of a sufficient size to provide a functional and efficient area for buildings, vehicle parking and movement, landscaping and the storage of raw materials, finished products, trade waste and recycling bins. 2. To ensure that all loading and unloading, turning movements, queuing and parking of vehicles, including delivery vehicles associated with the new development, occurs wholly within the site, and 3. To encourage the consolidation of small sized allotments in the established industrial area so that they can achieve objectives 01 and 02 above, and 4. To ensure that landscaping is provided.

29 It is not disputed that Objectives 01 and 02 are not able to be satisfied by the present development.

30 The emphasis that I should give to DCP 33 must necessarily be set by the principles established by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373.

31 From what was said in that case by Spigelman CJ at para 75 on pp 386 and 387, in my view, a number of propositions emerge.

32 First, although the Court has as wide ranging discretion, that discretion is not at large and is not unfettered.

33 Second, the provisions of DCP 33 in this case are to be considered as a fundamental element in or focal point in my consideration of my decision, particularly where there are no issues relating to non-compliances with the Local Environmental Plan.

34 Finally, that a provision in DCP 33 directly pertinent to the application is entitled to significant weight but is not in itself determinative.

35 I am also satisfied on the other hand that a mere fact that a proposal meets the requirements, which is not the case, does not mean that it will be granted nor, if a proposal does not meet DCP 33's requirements, I am not inhibited from granting consent in an appropriate case, given proper and genuine consideration of DCP 33 and having considered all other matters that are relevant under s 79C of the Environmental Planning and Assessment Act 1979.

36 Matters relating to that process and how I should assess the appropriate weight to be given to the development control plan were also considered by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472.

37 At paras 87 and onwards of his Honour's decision, his Honour discusses matters relating to development control plans; the process by which they are developed and then at para 92, whilst not dealing with development control plans but dealing with broader planning policies by the Council, he sets out a number of other matters. They include the extent of research and public consultation in creating the policy, the time it has been in force in any reviews and the extent of any departures and questions of compatibility with relevant planning instruments and, in that case, DCPs.

38 In these proceedings I have had a statement of evidence from Mr Atalay Bas, Senior Development Assessment Planner employed by the Council, who has set out the relevant history of DCP 33 and has done so in a fashion which makes it clear that, although the plan presently involved was adopted in 2003, the four matters which have been determined and for which an approval has resulted have arisen from applications that were not merely assessed pursuant to DCP 33 but were also assessed against the provisions of what one might regard as a co-operating development control plan for a specific precinct, being Development Control Plan 25, Moore and Baker Streets, Banksmeadow (DCP 25), a development control plan dealing with much larger sites having minimum allotment areas of 1,500 sq m.

39 Mr Bas' statement of evidence set out a number of matters that led to the preparation of DCP 33 and, importantly, it is his uncontradicted evidence that there have been no applications determined with an approval (to his knowledge) that have been assessed purely pursuant to DCP 33, despite the fact that it has been in operation for a number of years.

40 I am satisfied that, because of the co-extensive operation of DCP 25 that the four applications determined in the Moore and Baker Streets precinct are of no assistance to me and certainly do not provide any basis for considering that there has been some sort of permissive attitude adopted by the Council to the application of DCP 33.

41 There has been one application in Erith Street to which Mr Bas refers which has resulted in a refusal of an application. I am satisfied, from the range of matters that he has cited as being the Council's reasons for refusing that application (which include, amongst other things, matters of site contamination), that it provides me with no assistance at all in these proceedings.

42 I am therefore left in the position that this is the first substantive determination to be made, on the evidence before me, on an application to be assessed purely pursuant to DCP 33.

43 It is in the context where the desired future character of at least the Bay and Erith Streets precinct is one where it is intended that the objectives set out in B3 of the DCP should be achieved, as the various existing residential sites (and, from the view, many of the existing industrial sites) would require consolidation.

44 For those objectives to be achieved, the question arises as to whether the permitting of the first application to be determined in that sub-precinct should be one which is non-conforming with a number of the significant objectives of the development control plan.

45 In that regard, Mr Hale, senior counsel for the respondent, took me to the decision of Lloyd J in Goldin and Anor v The Minister for Transport; Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 where, inter alia, at para 28, Lloyd J said: "If the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."

46 The matters that are raised as objectionable with respect to the present application primarily relate to the inability to comply with the objectives for vehicle parking and movement, particularly the carrying out of the totality of those activities on the site.

47 It was clear in a specific discussion concerning the operation of the proposed tandem parking activities on the site that some unloading would be undertaken in the primary unloading area to be provided inside the building as a combined parking spot for a director's vehicle which is an operational vehicle. There is the probability that unloading of that vehicle with the second operational vehicle, also a director's vehicle which would be parked immediately behind it undercover but in the open, also being unloaded in that outdoor space.

48 If the two directors' vehicles needed to change places for the purposes of loading and unloading, that would require the reversing of both vehicles into Bay Street and their shuffling and exchanging of position before re-entering the site. All vehicle movements, as a matter of generality, will require reversing into Bay Street.

49 It was clearly the expert evidence of Mr Varga, a traffic engineer on behalf of the applicant, that that was not in itself a reason for refusal. Mr Neustein concurred in that, saying that there were adequate sight lines and that there was no interference with the present traffic patterns in Bay Street that would warrant refusal on that basis.

50 However, the question arises as to whether, in the overall context of Goldin, that would be an appropriate precedent to permit in this small sub-precinct covered by the provisions of DCP 33.

51 The second matter related to front setbacks where only a tiny portion of the proposal meets the nine metre front setback required by DCP 33. Whilst much of the present development does not do so none of it was assist or permitted pursuant to this plan.

52 DCP 33 must be taken by me to set what amounts to the desired future character for this area.

53 I consider that it is not appropriate to permit the present application to succeed.

54 I am satisfied that the non-compliance with the objective contained in B3 Objective 03 (which effectively means the compliance with objectives 01 and 02 or consolidation to achieve objectives 01 and 02) could be achieved by the consolidation with the sites of the sites at 17 and 19, the subject of a separate likely application to the Council.

55 Although I am satisfied that there may have been some exploration of the possibility of consolidating this site with the redevelopment of 17 and 19, for reasons that are not before me, that has not occurred.

56 However, it was the evidence of the applicant's town planner that, to his knowledge, there had been no discussion of possible amalgamation with the site immediately to the east, There is certainly, from the view, no reason why it would not be possible, at least in a theoretical planning sense, for such consolidation to occur.

57 It would only be if all possibilities of consolidation were functionally impossible that the question of a special indulgence, as discussed by the court in a number of decisions for what would be rendered orphaned sites, might be warranted and might set aside the question of precedent.

58 As a consequence, although none of the individual non-compliances themselves warrant refusal, that being the position agreed by the experts and one with which I see no reason to disagree, I am satisfied that the conclusion that Mr Neustein draws, that is, that the site is too small for what is being sought to achieve for it, is true and that that is fundamentally incompatible with the desired future character of the area as enunciated by the matters contained in B3 of the development control plan.

59 I am therefore satisfied that in the context of the desired future character of the northern part of the Botany West industrial precinct it would be an undesirable precedent if the first application to be determined in that area were to strike down what is, in my assessment, one of the significant underlying objectives of the development control plan.

61 If I be wrong with respect to the implications of precedent merely confined to that precinct of the areas considered by DCP 33, I am also of the view that a similar line of reasoning applies in the more general sense to what is the first decision made on an application assessed pursuant to DCP 33 as a whole over the area covered by it.

62 I am satisfied that if I were to permit, contrary to the exhortation of the Court of Appeal in Zhang, a departure from the development control plan of this nature on those objectives, particularly as the first application, that that would be setting, in the context of his Honour's discussion in Goldin, an unacceptable precedent.

63 I am satisfied, in terms of what his Honour said in Goldin, that the application itself is objectionable when all of the concerns are added together and that applications of a like kind, whether in this sub-precinct in the totality of the West Botany industrial precinct or over the totality of the area of the operation of the development control plan, would be inappropriate.

64 The result is that the orders of the Court must be that: 1. The appeal is dismissed; 2. Development Application 06/188 is determined by the refusal of development consent; and 3. The exhibits are returned.

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