Parangool Pty Ltd v Botany Bay City Council

Parangool Pty Ltd v Botany Bay City Council - [2009] NSWLEC 1189 - NSWLEC 2009 case summary — Zoe

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37 The existing use rights provisions contained in the Environmental Planning and Assessment Act Division 10 and the accompanying Regulations of 2000 are set out below. Division 10 Existing uses 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use, and (d) in the case of an existing use for the purpose of a place of public entertainment, the conditions to which such a use is to be subject. (2) The provisions (in this section referred to as the incorporated provisions ) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development. 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) The regulations may make provision for or with respect to the conditions on which the use of a building for the purpose of a place of public entertainment may be continued pursuant to this section. 109A Uses unlawfully commenced (1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except: (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained the refor, or (b) the granting of development consent to that use. (2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land. 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act.

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Environmental Planning and Assessment Regulation 2000 Current version for 3 June 2009 to date (accessed 16 June 2009 at 10:06) Part 5 Existing uses 39 Definitions In this Part: relevant date means: (a) in relation to an existing use referred to in section 106 (a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or (b) in relation to an existing use referred to in section 106 (b) of the Act - the date when the building, work or land being used for the existing use was first erected, carried out or so used. 40 Object of Part The object of this Part is to regulate existing uses, and the continuance of the use of buildings for the purposes of places of public entertainment, under sections 108 (1) and 109 (4) of the Act. 41 Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act). (2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use, and (e) relates only to premises that have a floor space of less than 1,000 square metres. (3) In this clause: commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument (Local Environmental Plans) Order 2006 ). light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the Standard Instrument (Local Environmental Plans) Order 2006 ). 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (cf clause 41 of EP&A Regulation 1994) (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 44 Development consent required for rebuilding of buildings and works (cf clause 42 of EP&A Regulation 1994) (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work and for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 45 Development consent required for changes of existing uses Development consent is required: (a) for any change of an existing use to another use, and (b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes. 46 Uses may be changed at the same time as they are altered, extended, enlarged or reb uilt Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45. 46A Conditions applying to existing uses and other lawful uses for the purposes of places of public entertainment The following are subject to the conditions set out in Schedule 3A: (a) an existing use comprising the use of a building for the purpose of a place of public entertainment, (b) the continued use of a building for such a purpose pursuant to section 109 of the Act. 38 It was submitted on behalf of the applicant in reply to the contentions that The appropriate test for characterising an existing use requires the purpose of the use of the land to be described at the level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities as a class have made of the land. The existing use applying to the site is correctly characterised as a general warehouse use. It would be overly restrictive characterised the existing use by reference to the warehousing of one specific product. Although the statement of environmental effects refers to clause 41 (1)(a) of the Regulation as the basis upon which the proposal is permissible, clause 41(1)(b) is equally applicable. As no works to the premises are proposed 'enlarged expanded and extended' are inapplicable and 'intensified' and 'altered' are of relevance. I It is possible that the specific warehouse use to which the premises will be put may be considered more intensive than the previous use (although this appears unlikely, given that the previous use operated between 4 a.m. and midnight seven days per week). It is more likely that the use will in fact be less intensive than the previous warehouse use. What is probable is that the finer details of the activities, transactions or processes will be different from the specific details of the former alcoholic beverage used. The existing use the use therefore will be alter that clause 41(1)(b). The applicant is able to rely upon clauses 41(1)( a) -(b). 39 The applicant further submits that with the conditions the likely environmental, social and economic impacts can be managed by the imposition of conditions to restrict the types of vehicles and vehicle movements compliance with noise criteria designed to ensure residential amenity and delivery times and restriction on goods to be stored to prohibit the storage of dangerous goods.

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DA No: 07/370 1 The development shall be carried out in accordance with the Statement of Environmental Effects prepared by Don Fox Planning, dated June 2007 (including the plans at appendices B and C) except where amended by the conditions of the Consent. 2 The applicant must prior to the obtainment of the approved plans and specifications pay the following fees:- (a) Development Control Fee $495.00 3 This consent does not permit any physical works on the site except for the construction of the barrier required under condition 10 below. Any other works are to be the subject of a new development application. 4 This consent allows the continued use of the premises as a warehouse with ancillary office subject to the warehouse not involving the storage of or any of the following: (a) Retail sale of any goods (b) Hazardous and/or dangerous goods and materials (c) Recycling materials 5 The warehouse premises shall be used solely as one warehouse use and the warehouse tenancy shall not be divided to create more than one tenancy or otherwise divided into separate sections and used for additional purposes. The office component in the premises may be sublet, but in this event, the maximum number of staff to work on the whole site is not to exceed 80. (Based upon 50 cars) 6 Hours of operation and site access arrangements (a) The operation of the internal warehouse use of the premises is restricted to between 6am and 12 midnight 6 days per week, Monday to Saturday (ie. not Sundays and Public Holidays). (b) There are to be no deliveries, truck movements, or forklift movements on the site outside between the building and Church Avenue before 7am and after 9pm Monday to Saturday. (c) Deliveries to the site from Church Avenue are restricted to between 7am to 6pm Monday to Saturday. The roller shutter doors in the rear of the building (fronting Church Avenue) shall be closed from 9pm to 7am.. Deliveries outside of these hours may only occur via the Gardeners Road entrance (viz. the Gardeners Road entrance may be used for deliveries between 6am and 12 midnight Monday to Saturday). (d) All deliveries made to the premises via Church Avenue shall be made by a Class 9 size vehicle or smaller and no larger. Classification is under the Austroads 94 Vehicle Classification System. (e) At all times all trucks must exit the site via the Gardeners Road exit. No trucks are to exit the site via Church Avenue at any time. 7 The existing landscape beds and plants on the site are to be reinstated and maintained. 8 (a) Council nature strips shall be maintained in a clean and tidy state at all times and shall be suitably repaired and/or replaced in accordance with Council Specifications at the completion of construction works and prior to the issue of an Occupation Certificate at the Applicant's expense. (b) The ongoing maintenance of the nature strips shall then be undertaken by the occupier/owner. Maintenance shall include mowing, the removal of weeds and rubbish and maintaining a good, even coverage of grass at all times. 9 All existing trees and natural landscape features shall be retained except where prior written consent for removal has been obtained in accordance with the Tree Preservation Order. 10 The vehicular crossing to Church Avenue is to have barriers installed at the existing crossing to allow the prescribed type of trucks to enter the site but not exit the site at the Church Avenue access, but allow cars or similarly sized light vehicles to use that exit. Gates must be used to ensure that the Church Avenue access point is secured for the period its use is prohibited by this consent. (a) Prior to the issuing of the Occupation Certificate, all applications associated with works on Council's land must be made at least 7-10 days prior to the programmed completion of works and all construction must be completed and approved by Council.

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11 Parking on site (a) The occupier shall ensure that any person employed on the premises that they shall park their vehicle, if any, in the employee parking area provided. (b) Parking spaces shall not be used for the storage of waste, goods, materials and plant or equipment under any circumstances. (c) Parking shall not be permitted within the loading dock to the building. All parking spaces are to be clearly labelled. Parking spaces are to be freely available at all times during business hours for all users of the premises. (d) All loading and unloading of vehicles in relation to the use of the premises shall take place wholly within the dedicated loading dock/area, which is wholly within the building. (e) All activities associated with the use shall be confined to the internal buildings as shown on the plans submitted, with the rear truck waiting and turning area not being used for any other purpose than for the parking and manoeuvring of vehicles at all times. (f) No shipping/maritime or airfreight containers shall be stored externally to the buildings. (g) No deliveries to the premises shall be made direct from a public place or street. (h) No motor vehicles associated with the use shall be stored, parked, or otherwise permitted to stand in a public street. All such vehicles shall be accommodated within the site. (i) All vehicles shall enter and exit the premises in a forward direction. (j) No vehicles shall be washed at the premises without a further development application being submitted to and approved by Council for this purpose. 12 Signage (a) No signs which require consent shall be installed or displayed at the premises without a development application being lodged with Council and consent thereto being given by Council in accordance with Council's guidelines; and (b) All redundant signage existing on the building is to be removed. 13 (A) Noise The use of the premises shall not give rise to any of the following when measured or assessed at "sensitive" positions within any other property. These "sensitive" positions should be selected to reflect the typical use of a property (ie any outdoor areas for day and evening but closer to the façade at night time), unless other positions can be shown to be more relevant. (a) 'offensive noise' as defined in the Protection of the Environment Operations Act 1997 (b) transmission of vibration to any place of different occupancy above the requirements of AS2670 (c) a sound pressure LAeq,period at any noise sensitive position of any other premises or occupancy greater than the recommended amenity noise criteria detailed in the Department of Environment and Conservation, New South Wales (EPA) Industrial Noise Policy . (d) a sound pressure LAeq,15min at any noise sensitive position greater than the intrusiveness criteria determined in accordance with the Department of Environment and Conservation, New South Wales (EPA) Industrial Noise Policy and does not contain any tones, low frequency or impulsive factors as defined in the Department of Environment and Conservation, New South Wales (EPA) Industrial Noise Policy table 4.1 (e) the following additional criteria: (i) The operation of all plant and equipment (including trucks and forklift trucks) shall not give rise to an equivalent continuous (LAeq) sound pressure level at any point on any residential property greater than 5dB(A) above the existing background LA90 level (in the absence of the noise under consideration). (ii) The operation of all plant and equipment (including trucks and forklift trucks) when assessed on any residential property shall not give rise to a sound pressure level that exceeds LAeq 50dB(A) day time and LAeq 40 dB(A) night time. (iii) The operation of all plant and equipment (including trucks and forklift trucks)when assessed on any neighbouring commercial/industrial premises shall not give rise to a sound pressure level that exceeds LAeq 65dB(A) day time/night time. (iv) The operation of all plant and equipment (including trucks and forklift trucks shall not give rise to a LA1,1min sound pressure greater than 15dBA above the LA90 background level between 10:00pm and 7:00am (Monday the Saturday) and 10:00pm to 8:00am Sunday (Sunday morning) and Public Holidays when assessed outside a bedroom window. For assessment purposes, the above LAeq sound levels shall be assessed over a period of 10-15 minutes and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content where necessary. For parts (ii) and (iii) of this clause day time is 7:00am to 10:00pm and night time is 10:00pm to 7:00am. For the subject site the above noise limits are to be assessed as equivalent internal noise levels, based on the assumption residential buildings are constructed in accordance with DA conditions. (f) Road traffic generated by the site shall not give rise to noise exceeding the recommended noise levels set out in Table 1 of the EPA's Environmental Criteria for Road Traffic Noise (ECRTN) document. 13(B) Acoustic report and Operational Noise Management Plan Prior to the issue of an Occupation Certificate an acoustic compliance/design report must be submitted to Council confirming that the proposal will comply with the conditions of consent. Such a report will identify noise emission sources, noise attenuation/noise controls implemented into the development to achieve acoustic compliance. The acoustic compliance/design report must include an Operational Noise Management Plan, and this is to consider noise impacts from reversing alarms and beeping horns and how this can be minimised where practicable. A new acoustic compliance/design report and Operational Noise Management Plan must be submitted to Council prior to any new tenancy. 13 (C) Compliance testing Within 3 months of occupation (including any new tenancy) of the premises an acoustic compliance test shall be carried out to ascertain compliance with the conditions of consent. If any matters of non-compliance are identified, noise control measures to achieve acoustic compliance must be implemented within 30 days and the operation reassessed with a Certificate of Acoustic Compliance being issued to Council. 14 The development shall be conducted in a manner, which does not pollute waters as defined by the Protection of the Environment Operations Act 1997 . 15 The operation of the premises shall be conducted in such a manner as not to interfere with or materially affect the amenity of the neighbourhood by reason of noise, vibration, odour, fumes, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise. 16 Should the external fabric of the building(s), walls to landscaped areas and like constructions be subject to graffiti or like vandalism, then within seven (7) days of this occurrence, the graffiti must be removed and the affected surface(s) returned to a condition it was in before defilement. 17 Any intruder alarm at the premises shall be fitted with a timing device in accordance with the requirements of section 53 of the Protection of the Environment Operations (Noise Control) Regulation 2000. 18 Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads, and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting . 19 The applicant being informed that this approval shall be regarded as being otherwise in accordance with the information and particulars set out and described in the Development Application registered in Council's records as Development Application No. 07/370 12 June 2007 and that any alteration, variation, or extension to the use, for which approval has been given, would require further approval from Council.

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Judgment (72 paragraphs)

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