Parangool Pty Ltd v Botany Bay City Council

Fatsel Pty Ltd & Anor v ACR Trading Pty Ltd & Anor [No. 3] North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd & Ors CASES CITED: Botany Bay City Council v Workmate Abrasives Pty Ltd Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400 Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14 Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587

APPLICANT Mr N Eastman (Barrister) SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr T O'Connor (Solicitor) SOLICITOR Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11025 of 2008 Parangool Pty Ltd v Botany Bay City Council

JUDGMENT 1 The applicant in these proceedings is seeking consent to use the existing premises known as 619-629 Gardeners Road, Mascot for the purpose of a general warehouse.

2 By way of background the applicant relies on existing use rights. The site was re-zoned in 2002 and the use of warehouse is now prohibited. Approval for warehousing dates back to 1965. It is common ground that the site has been used for warehouse purposes for over four decades.

3 The most recent use of the premises was by Carlton United Breweries (CUB) for the storage and distribution of alcoholic goods, and offices located along the Gardeners Road frontage. The warehouse use was approved in August 2002. At that time the subject site was zoned General Industrial 4(a) under the Botany Local Environmental Plan 1995. In October 2002 the site was re-zoned to mixed uses 10(a) Commercial/Residential wherein the use for warehousing is prohibited.

4 One of the conditions of the 2002 approval limited the period of the consent to two years. This period was extended by way of an approved modification application to allow it to operate until 31 January 2008 and CUB vacated the premises at about this time. Prior to this an application was made to the Council in June 2007 seeking consent for the premises to be used for warehousing.

Proposed Development 5 The development application submitted to the Council describes the proposal as "occupation of the existing warehouse building for general warehouse use". Council refused this application in October 2008 for the following reasons: o The proposed development is prohibited in the mixed uses commercial/residential 10 (a) zone. o Insufficient information has been submitted with the development application to an able and appropriate assessment of the likely environmental, social and economic impacts on both the natural and built environments. o Insufficient information has been submitted… to enable an appropriate assessment of the suitability of the site for the development. o The proposal is contrary to the public interest. o The proposed change of use is prohibited by the provisions of the NSW Environmental Planning and Assessment Regulation, in particular clause 41. 6 The purpose of the application in this appeal to the Court is to allow the premises to be used for general warehouse purposes as opposed to a warehouse for specific goods, requiring separate approval for each new occupant/tenant of the building.

Site and Environs 7 The subject land is Lot 2 in DP 224757 located on the southern side of Gardeners Road between O'Riordan Street and Bourke Street, Mascot. The site also has a boundary to Church Avenue of some 54 metres. The frontage to Gardeners Road is 103 metres with a depth of 210 metres yielding a site area of approximately 2 hectares. Figure 1 is a site location map.

8 Vehicular access is from both Gardeners Road and Church Avenue, adjacent to the eastern boundary of the site. The access from Church Avenue is 15 metres wide while the Gardeners Road access is 9 metres wide and this road is a 6 lane main road. The site accommodates 50 carparking spaces as well as truck loading and unloading areas.

9 To the east of the site is an electricity sub-station and the main southern sewer outfall is to the east of this sub-station. Further to the east is a recently erected residential flat building containing 176 dwellings. Adjoining the site to the west is also a recently constructed residential flat building that has a frontage to Church Avenue. On the southern side of Church Avenue opposite the subject site is a mixed use development currently under construction. Figure 2 shows surrounding land uses.

10 Since the time the land in the vicinity was rezoned in 2002 to permit commercial/residential developments there has been redevelopment of approximately half the land to reflect the current zoning. The subject site is one of the remaining industrial type developments within the area on the southern side of Gardeners Road.

Issues 11 Since the time of Council's determination to refuse consent the question of whether the proposal can rely on existing use rights is raised. The contentions of the Council on appeal are generally as follows: 1. The applicant has not established that existing use rights provisions are applicable which is necessary because the proposed development is prohibited in the mixed use zone. 2. Insufficient information has been submitted to allow an assessment of the likely environment social and economic impacts on both the natural and built environments. It is contended that the impact would depend on the nature of the use in terms of traffic generation noise impact and hours of operation etc. 3. The council contends that the suitability of the site may only be determined when the particular uses are known, potential employee numbers, carparking demand is known as all car parking and truck manoeuvring areas must be on site. 4. The proposal is contrary to the public interest because of more residential developments occurring and increase in residential densities means that it is inappropriate to allow a warehousing activity on the subject site. 5. Clause 41 of the EPA regulations does not empower the consent authority to grant approval to this application. Evidence and Submissions 12 On behalf of the respondent evidence was given to the Court by Mr Richard Smyth, consultant town planner and Mr Graham Atkins, consultant acoustic engineer. For the applicant evidence was given by Mr Paul Grech, consultant town planner and Mr Stephen Cooper, consultant acoustic engineer. A site inspection of the area was carried out with the parties on the first morning of the hearing.

13 The planners prepared a joint report and gave concurrent evidence to the proceedings. They agree that subject to the issue of existing use rights the remaining contentions do not represent planning grounds that would warrant refusal of the application subject to the imposition of appropriate conditions.

14 While Mr Smyth supports the imposition of a time limited consent he accepts that this could derogate from existing use rights provisions. He stated that "although one can accept that the building in its current form and historically has been a warehouse the actual use has always been the subject of a consent.. and to ensure the use is and remains compatible to adjoining uses even though those uses may change".

15 On the other hand Mr Grech considers that this condition should be deleted as "it in effect attempts to redefine the rights and limitations that apply to existing uses through the EP & A legislation. In his opinion "the ultimate abandonment of the existing use and pursuance of a development consistent with the current zoning is part of the normal process that occurs over time in association of redevelopment of such areas. This transitional process can be managed...the redevelopment of the site will be dictated by market forces."

16 Mr Smyth considers that if the warehouse use continues then there is a need for road widening. However the best solution would be for all truck traffic to be confined to the Gardeners Road access point with only cars and light vehicles permitted to use the Church Avenue access. 17 Contrary to the above Mr Grech considers: "this condition should be deleted as the continued use of the subject premises for a warehouse does not give rise to a need for the road widening. This need is one which appears to relate to the redevelopment of the area for mixed use purposes. The potential of appropriate planning mechanisms to deal with this would be through a developer contributions scheme or on a future application to redevelopment the site. Alternatively council could resume the land and undertake the works from its general funding sources." 18 On the question of the hours of operation Mr Smyth considers that "the time restrictions are essential as they will give the local residents greater certainty than the usual environmental management controls... in this instance the actual use the premises will be put to is unknown and the time constraints are put forward as more of a precaution than anything else."

19 Mr Grech on the other hand considers that this condition should be amended to delete the time restrictions on the internal use of the warehouse as it is not needed for environmental management purposes. However, he accepts that the existing restrictions for truck movements should not be relaxed and that The site provides a large truck manoeuvring area on the Church Avenue side of the building and the proposed restrictions are likely to require trucks to turn around in this area and travel back through the building to exit via Gardeners Road which would lead to potential site usage conflicts and inefficiencies. 20 Mr Grech supports the conditions attached to the previous consent that required: o All B Double (Class 10) trucks to enter and exit via Gardeners Road (Monday-Saturday 4am-10pm) and o All other trucks to enter from either Gardeners Road (Monday-Saturday 4am-10pm) or Church Avenue (Monday-Saturday 7am-8pm) but exit only to Gardeners Road. 21 The condition requiring removal of the kerb crossing in Church Avenue in Mr Grech's opinion is effectively a means of physically enforcing a condition and such works would be an inefficient use of resources when there is no evidence of the condition being breached in the past and eventually in the long term on redevelopment the kerb would be appropriately treated.

22 Mr Smyth considers that a consent for six days Monday to Saturday 6am to midnight is appropriate and for the premises to be closed on a Sunday. Mr Grech considers that noise criteria can be set in the Plan of Management and that the impacts can be controlled such that it is a matter of amenity and acoustics and that cars leaving the parking area should be restricted to Gardeners Road after 10pm. Mr Smyth is of the opinion that between 7pm to 7am there should be no access to Church Avenue because of the residential developments in the vicinity. He agreed that 9pm may be appropriate but not 10pm.

23 As noted by Mr Smyth the applicant is seeking a general approval that will allow any warehouse use except those excluded by virtue of the conditions. He states that the applicant is therefore seeking conditions that allow maximum flexibility in the choice of tenants, however, he notes that when formulating those conditions Council must have regard to the changing uses in the precinct and as such are a worst-case scenario. Mr Smyth notes that in previous consents that conditions have been tailored for specific uses constraining the use to minimise the impact on neighbours and others. If the use is unknown then conditions must cover any possible type of warehouse. Mr Smyth is of the opinion that in the event there is a new user with minimal impact then the user, by way of a section 96 application, could seek relaxation of the conditions imposed on the general warehouse use.

24 Mr Cooper and Mr Atkins prepared reports and provided concurrent evidence to the Court. Mr Cooper is of the opinion that the acoustic environment is controlled by Gardeners Road not Church Avenue whereas Mr Atkins considers Church Avenue as a local road is appropriate to assess the development against. Mr Cooper is of the opinion that there can be noise readings carried out post operation of a new use and that the noise monitoring would be to achieve acoustic compliance.

25 Mr Atkins considers that reversing alarms of forklifts are an unacceptable noise nuisance for residential buildings in the vicinity and that by condition they should be required to be replaced by flashing lights. Mr Cooper does not agree with this condition as there would be no reversing in the rear yard at night in any event and that flashing lights may not be appropriate during the day for safety reasons.

26 Mr Cooper pointed out that all the buildings in the vicinity of the subject site must have noise attenuation measures. He stated Mr Atkins on two previous occasions considered the warehouse operation of the site appropriate with the awareness of the new apartment buildings. The EPA guidelines require the noise attenuation and the noise measurements to be measured inside not outside the apartments to ameliorate the noise from the surrounding urban environment/road system.

27 Mr Atkins is concerned that the rear yard while it may not be used for truck movements there could be other activities which would interfere with the residential amenity of the surrounding lots.

28 The applicant is prepared to accept an amended condition that there be no refrigeration or other machinery that may emit noise in order to comply with the spirit of the condition to limit noise and be consistent with the fact there is to be no use of the rear of the site on Church Avenue at night.

29 To assist in an assessment of the noise the Court was referred to the EPA's publication entitled 'Environmental Criteria for Road Traffic Noise'. This document establishes functional categories for roads. For new residential land use developments affected by free way/arterial collector traffic noise where criteria are already exceeded the document states; o where it is feasible and reasonable existing noise levels should be reduced to meet the noise criteria by judicious design and construction of the development. o locations, internal layouts, building materials and construction should be chosen so as to minimise noise impacts. 30 For new residential developments affected by traffic noise from local roads the document reiterates the first dot point and then states: Relevant strategies will include optimum location and orientation of buildings on the site; planning internal layouts carefully; choosing the most appropriate building materials; and using good construction techniques. 31 The document provides criteria for daytime that is 7 a.m. to 10 p.m. and night time 10 p.m. to 7 a.m. It also states that where there is a new residential development that can be affected by noise from existing roads, it is expected that developers will be able to use a number of noise control options to mitigate traffic noise.

32 The applicant tended the consent granted for the mixed use multiunit residential commercial development at 3 to 9 Church Ave Mascot and this contains conditions of consent for the building plans: to comply with the required acoustic measures for aircraft noise on dwellings, road traffic noise, mechanical noise and vibration; development is to be constructed to meet the requirements of details in the acoustic report; and after completion of the works a report from a qualified practising acoustic engineer is required certifying that the works have been undertaken to meet the design criteria.

33 The above residential development application was accompanied by an acoustic report prepared by Heggies Australia. This report notes that to the north of the site are several industrial uses and vacant land and to the south mixed commercial light industrial land uses with the Kingsford Smith International Airport approximately 1 km to the south. To the west of the site there are mixed light industrial and commercial land uses. The report states that the noise environment at the site was contributed to by: o Aggregate 'urban hum' o Road traffic noise from nearby arterial roads o Road traffic noise from Church Street o Nearby light industrial activities o Aircraft flyovers o Construction activities It is noted that some noise sources contributing to the daytime noise levels may not be present when the residential development is constructed. However, it is likely that the night-time noise levels are the limiting criteria when noise emission from the development and these are not affected by the transient noise sources. It is also likely that maximum noise levels from aircraft flyovers will control design for noise intrusion into the development during the daytime period and this noise source will remain when the development is constructed.

Noise intrusion into the residential development from external sources should be assessed in order to provide amenity to the residences. The external noise sources considered to 3-9 Church Ave are road traffic noise intrusion and aircraft noise intrusion.

Appropriate noise criteria have been established based on DCP No. 35 for multiunit housing and residential flat buildings':

All buildings shall be designed and constructed taking into full account of the requirements for effective sound installation against external road traffic noise in accordance with the following design criteria The Laeq (1 hour) noise level in sleeping and living areas shall be less than 40 dBA with the doors and windows closed and…less than 50 dBA with the doors and windows open. 34 Mr Atkins prepared an acoustic report in 2004 for continued use of the site by CUB and he states: The assessment has confirmed that the ambient noise in the area is controlled by Road traffic on gardeners Road, and influenced by nor is it from the existing industry local traffic and airport operations. The assessment also confirmed that approvals for new residential development in the area have been conditioned by counsel for noise amelioration to control the intrusion of existing external noise sources. Accordingly the residential sites on gardeners Road, Reardon Street and Church Avenue should have considered nor is from existing premises including Carlton and United. The assessment has shown that with the proposed hours of operation, truck movements and site activities noise emanating from the Carlton and United operations will not increase and can be controlled to satisfy the recommended equivalent in internal noise goals. The assessment has also shown that considering the proposed building a noise controls and the DA conditions of the nearby residential developments the predicted internal noise levels from Carlton and United activities satisfy the equivalent in internal noise goals established in accordance with COBB and DEC noise assessment procedures.

Assessment and Findings 35 I have considered all the evidence and submissions to the Court on both the question of existing use rights and the merits of the application and I have concluded development consent should be granted subject to conditions.

36 The power of the Court on the existing use rights issue I must consider first.

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.

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.

40 There is no issue between parties as it is agreed that the existing use has not been abandoned as the development application was lodged in June 2007, seven months before CUB vacated the premises.

41 The fundamental difference between the parties is that the respondent argues that the court does not have power under the existing use rights provisions because the proposal does not 'fit' with the regulations and therefore the source of power fails.

42 It was submitted on behalf of the respondent that the application before the Court for general warehouse use constitutes a 'change of use' and the applicant cannot rely on the existing use rights for warehousing and distribution of alcoholic goods. It was further submitted by the respondent that the proper test is to look at the consent for the previous purpose /use as contained in the consent and this is not a case that requires characterisation of the use because it is described.

43 It was submitted on behalf of the applicant that the task is one of proper characterisation and that the use is not determined on the face of the application and there is no need to descend to that level of the specificity, and that existing rights have been liberally construed in the past. It was further submitted for the applicant that the proposal is not a 'change of use' but a change in nature to a more general use to continue to use the existing premises for the purpose of a warehouse not limited to alcoholic goods.

44 While not directly on point, and the facts in these circumstances differ, the parties referred to the Court to a number of judgements to assist with the existing use rights question.

45 I accept that it is not necessary to carry out a characterisation of the use(s) and that it is informative to refer to the notice of determination for the 2002 wherein the proposed development was described as follows "use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods". Similarly, and not in issue, the test is not that there have been warehousing activities on the site for over 40 years but the above use becomes the lawful use for the purposes of existing use rights. In terms of s106 of the Act the above use is a lawful purpose.

46 Section 108 refers to the regulations and of particular relevance to this case is subsection 1(c) "the enlargement or expansion or intensification of an existing use". Turning to clause 41 (1)(a) of the Regulations an existing use may "be enlarged, expanded or intensified". Clause 42 requires development consent for "any enlargement, expansion or intensification of an existing use". Subclause (2) requires this must be for the existing use and no other use and must be carried out only on the land of the existing use.

47 Having regard to the facts in this case with the above construction I am satisfied that the court has power to consider the development application and carry out a merits assessment. 48 I am satisfied that the description of the use in the 2002 consent can be enlarged or expanded by deleting the type of goods that may be stored and distributed, that is alcoholic goods, and that this does not constitute a 'change of use'. But rather an enlargement or expansion because of the increased range of goods that may potentially be stored for warehouse and distribution purposes from the existing premises on the subject site.

49 In my assessment it is only common sense that under existing use rights just because different goods are to be stored and distributed that this would constitute a change of use or a change in the nature of the operation. To illustrate if existing premises were used as a shop for the retail sale of jeans and relied on existing use rights it would be a nonsense to say that the retailing of other articles of clothing would represent a change of use. I am satisfied that the application does not encompass changes in processes, such as from the manufacturing of goods to steel fabrication, but rather the storage of different goods, articles or beverages does not represent a change of use.

50 The descriptor in the 2002 consent of "use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods" is capable of being extended and expanded to allow the storage/warehousing of other goods under existing use rights, except those excluded by the conditions such as hazardous and dangerous good and recycling materials. I note in the Council's officer's report of 4 October 2006 for an extension of the time limited consent for the site it states: At the time the original consent was granted.. the use of the premises for warehousing and distribution was permissible with the appropriate consent of council. However in October 2002 the site was rezoned… and the use of the premises for warehousing and distribution is now prohibited. Accordingly, it is considered that the use of the premises enjoys existing use rights for this purpose. 51 I have concluded that I have power to assess and determine the development application as enlargement, expansion or intensification and this does not require physical works or alterations. The Court relies on s.108(1)c of the Act and clause cl.41(1)(a) as the source of power. 52 It would be nonsensical to provide such a strict interpretation such that a shop with existing use rights used for the retail sale of shirts with the descriptor in the development application that it could not be enlarged expanded or intensified to also retail other clothing. Such an interpretation/construction would undermine the purpose of the existing use rights provisions.

53 I do not rely on cl. 41(1)(b) and cl 43 where it may be argued that physical works are required by alterations and extensions of buildings and works. At the same time it would be nonsensical to say subclause (b) could be satisfied only if physical works such as a staff amenities room was proposed in the development application and then this would provide power for the application to be considered.

54 The applicant should not be denied the opportunity to apply for an extended and expanded range of goods to warehouse. The need to submit a development application for each new tenant or goods to be stored is not consistent with the object of the Act for orderly and economic use of land. This would have the effect of unreasonably terminating existing use rights and premises would remain empty until market demand for the site provides the impetus for redevelopment.

55 I turn now to the merits assessment of the development application. As noted above the planners agree that there are no merit issues that would warrant refusal of the application subject to conditions.

56 Approval of the application is in the broader public interest in my assessment and the conditions will facilitate the continued use of the premises without significant adverse impacts. While the area is in transition and new development is occurring at the same time the legislation recognizes the right to continue existing uses.

57 The attached conditions limit the warehouse operator by the number of employees, noise criteria, and hours of operation. This is seen as a reasonable balance to provide a level of amenity for surrounding properties while allowing use of the premises that can satisfy conditions without sterilising investment and productive use of premises, prior to redevelopment of the site in the future.

58 Occupants of residential units in this area will be aware of the fact that while sites are in transition there are a number of uses that will continue to coexist in the immediate area. Residents would also be aware of their proximity to the CBD, Kingsford Smith Airport and arterial roads and other urban infrasructure. This inner-city location has the advantage of proximity to services and even following the redevelopment of this rezoned island for commercial residential purposes it will continue to be surrounded by the urban infrastructure and the vitality of inner-city living. Figures 2 and 3 show the local and regional context for the area.

59 Based on the facts and evidence I am persuaded by Mr Cooper's evidence that "there is no acoustic reason to reject the application for a generic use as it is entirely appropriate to establish the noise goals for continued use of the site. The provision of an acoustic design report for the specific use would then have to comply with the noise criteria already established. This approach provides a future tenant a basis to assess the acoustic viability of using the subject site." Conditions 60 The conditions include a number of matters for the operation of the premises to mitigate adverse impacts on the surrounding area. Condition 4 does not allow the retail sale of any goods, hazardous and/or dangerous goods and materials, and recycling materials. Condition five requires the premises to be used solely as one warehouse use in one tenancy although the office component may be sub-let but in this event the maximum number of staff to work on the whole site is not to exceed 80, based on 50 cars.

61 The hours of operation set out in condition no.6 for the internal warehouse use is restricted to between 6 a.m. and 12 mid night six days per week and not on Sundays or public holidays. There are to be no deliveries truck movements or forklift movements on the site outside the building and Church Avenue before 7 a.m. or after 9 p.m. Deliveries to the sites from Church Avenue are restricted to between 7 a.m. and 6 p.m. with the roller shutter rear doors to be closed from 9 p.m. to 7 a.m. this allows deliveries only to occur via gardeners Road between 6 a.m. and midnight. Condition 10 requires barriers to be installed to allow only trucks to enter the site but not exit the site at the Church Avenue access.

62 Following the proceedings the parties submitted amended conditions to include the above matters that are not objected to by the applicant. The conditions for road widening and kerb works are unreasonable as there is no nexus with the subject application and these were deleted.

63 Given the above restrictions for Church Avenue and the fact that all vehicles must exit the site via Gardeners Road in the circumstances I have determined that the maximum size for vehicles as class 9 and that class 3 as pressed by the respondent would be inappropriate for a 2 ha site with a large warehouse facility. Furthermore the site inspection demonstrated that the manoeuvring areas for all vehicles could be accommodated on site and I am satisfied other conditions will ameliorate adverse impacts, such as hours of operation.

64 The other matters requiring my determination are conditions 6 (d) and 13A(v) and whether the relevant assessment criteria should refer to internal or external readings. For the question of whether "reversing and warning alarms operated on the site should not give rise to an audible noise on any residential property". I accept Mr Cooper's evidence and I have decided that this would be an unnecessary condition given the fact that the rear manoeuvring area adjacent to Church Avenue is not to be used between 7 a.m. and 9 p.m. and deliveries to the sites from Church Avenue are restricted to between 7 a.m. and 6 p.m. and noise criteria controls are also imposed. For daytime operations this would also be impractical in my assessment. However, I have decided that condition 13(B) is to have the additional words added for the 'Operational Noise Management Plan' - "to consider noise impacts from reversing and beeping horns and how this can be minimized where practicable". Mr Atkins recommended a similar condition in his Noise Audit Report of August 2006 for the use of the premises for alcoholic beverages.

65 The applicant proposed that the conditions for noise limits should be assessed as equivalent internal noise levels based on the assumption residential buildings are constructed in accordance with DA conditions. With the benefit of the approval for the residential apartments at 3 to 9 Church Ave and accompanying acoustic reports and recommendations for noise attenuation measures in construction and given the location of the subject premises I am satisfied that the noise limits should apply to internal noise levels.

66 For the acoustic compliance testing I have determined that this should be carried out within three months of occupation including any new tenancy of the premises to provide sufficient time to be fully operational before testing is carried out.

67 I do not accept that a time limited consent should be imposed as a condition of consent I note that the assessment report for the warehousing of alcoholic goods gave a two-year time limited consent and this was subsequently extended twice by modification. In the August 2002 report the reason for the time limited consent was to allow council to reassess the appropriateness of the continuation of the use including its operations and operating hours in relation to read development activity with in the eastern side of the Mascot Station precinct. In my assessment such a condition derogates from the existing use rights provisions under the Environmental Planning and Assessment Act. I agree with Mr Grech that the zoning and provisions will facilitate redevelopment of the site in the long term and it is unreasonable to constrain the potential use of the site prior to this time in terms of the object of the Act for orderly and economic development.

68 Accordingly on the basis of my assessment above the formal Orders of the Court are: 1. The appeal in respect of the property known as 619-629 Gardeners Road, Mascot is upheld. 2. The development application submitted to Botany Bay City Council for use of the above premises for warehouse and distribution centre is determined by the granting of consent subject to the conditions in Annexure A. 3. The exhibits are returned to the parties with the exception of, Exhibit 4, Exhibit C and M.

      J S Murrell
      Commissioner of the Court
      ljr

Conditions of Consent for the use of the premises known as No.s 619-629 Gardeners Road Mascot for the purpose of warehouse.

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.

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.

  J S Murrell
  Commissioner of the Court
  ljr

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