Road Surgeons Pty Limited v City of Botany Bay Council

Conclusion 27Having considered the evidence, the submissions and undertaken a view, it is apparent that the subject site comprises an older form of industrial building that is located within the Botany (Central) Industrial Precinct where the current set of controls are seeking to improve the amenity of the area, particularly parking and traffic flows. I also note that the surrounding area is subject to change with more intense residential developments being allowed nearby to the south of Pemberton Street. 28The evidence indicates to me that the site is not suitable for the proposed scale of development, whereby any approval would result in an improvement in amenity of the area. This is initially confirmed because the front door required widening to approximately 3.6 m to permit the convenient manoeuvring of the 3 x 5 m - 6 m trucks plus trailers into the building. 29More critical however, the size of the building then means that the only appropriate way of parking these vehicles requires some manoeuvring and reversing from Pemberton Street. The Court had the opportunity of viewing this movement during the mid morning period. 30From this, it appears to me that this manoeuvring would be subject to increased difficulty in the afternoon period when there is likely to be more on - street parking and traffic in the street, as indicated by Ms Mikhiel. Whilst strict adherence to the POM might generally minimise inconvenience, nevertheless I do not consider this represents an improvement of the traffic arrangements for the street, as required by the aforementioned set of controls. 31The success of the POM would depend a lot on coordinated timing. In this regard I note that clarification of the number and role of the employees was required. When there are the 3 employees working, they would be required to start practically simultaneously so that the trucks can leave the building and then somehow allow the employee vehicles to be taken inside while the last truck temporarily parks somewhere. 32According to the POM, when the trucks return in the afternoon (generally between 3 and 4 pm), the return is to be spaced at 15-minute intervals with the first truck carrying 2 employees. One of these is to then remove the employees' vehicles and then supervise the reverse parking into the building for the three trucks. It seems to me that this level of arrival would be difficult to regularly achieve considering existing traffic congestion on surrounding roads. 33Whilst I also have some uncertainty about the number of employees operating from the site and therefore the associated number of cars, I consider the proposed parking arrangements quite inconvenient as a regular operating procedure with the strong likelihood of either the trucks or employees vehicles utilising the limited on -street parking spaces. This would be inconsistent with the parking controls that require the provision of adequate and usable parking spaces. 34Consequently, I do not consider the application satisfies the requirements of cl 17(2) (a), (b) and (e). In this regard I have considered the submissions for the applicant concerning the planning principles in the matter of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 where Brown C in at para 31 said: 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
Is the Management Plan to be enforced as a condition of consent?
Does the Management Plan contain complaint management procedures?
Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 35As I have indicated previously, I consider the proposed POM somewhat idealistic and difficult to implement considering the restricted and reasonably strict time constraints required to shuffle all the vehicles on a daily basis so as to achieve and acceptable outcome. It seems to me that any breaches of the POM would be difficult to enforce, should it not work satisfactorily. Therefore I have significant reservations with relying on the POM in the circumstances of this matter. 36The other significant contention concerns the aesthetic impacts relative to the controls objectives to require landscaping to improve the visual quality of the existing industrial area. In this regard, I have considered the applicant's response that a landscaping strip could be provided in the front set back area. Whilst there was some argument about the adequacy of this, it is apparent that landscaping improvements for the individual industrial buildings are limited in the absence of any overall landscaping strategy. However the proposed upgrading would be an improvement over the current situation. 37In summary then, I do not consider this proposal reasonably satisfies the current controls for an unlimited consent because the site is too small to provide adequate on - site parking and therefore unsuitable for the scale of the proposed vehicle usage to achieve the required amenity outcome. However I note that section 2.6 of DCP 33 states that: Council in partnership with Planning NSW are researching opportunities and implementing actions to revitalise the Botany south area. The Botany south area refers to land in Botany bound by Botany Rd, Wilson St, Warrana St, Kurnell St, Aylesbury St, Tenterden Rd, Fabry St, Cranbrook St and Hastings St . The Botany (Central) Industrial Precinct is part of this area and project . The main focus of the project is to enhance the attractiveness, liveability and overall amenity of the neighbou r hood, as well as reducing the conflicts, which arise between industry and residents. A task of the Botany south project is to undertake a planning framework to guide future change and improvements, examining issues such as transport and pedestrian access, parking, landscaping, land uses and built form. This will then lead to changes to existing development and planning controls relating to the Botany south area (both residential and industrial uses). As a result this will update t he planning and development controls for the Botany (Central) Industrial Precinct . As an interim measure until the Botany south project is complete and new planning/development controls specific to the Botany (Central) Industrial Precinct are adopted by Counci l , this DCP will apply and be used to assess Development Applications . 38Given that the controls are implemented on an interim basis and with existing development in the area likely to take some time to achieve the transformation envisaged, I consider that in these circumstances then it may be appropriate to allow a time limited consent (say 4 or 5 years) so as to allow the applicant the opportunity for an orderly review of the future use of the premises. This review could include the scale of the vehicle usage and testing the effectiveness of the POM. 39Prior to making final orders, the parties are invited to make further submissions on my findings as to whether it is appropriate to grant a time limited consent. Also, what orders would be appropriate to finalise the Building Certificate appeal. 40The Court orders that: (1)The appeal subject of proceedings no. 10180 of 2011 is upheld. (2)The development application number 10/205 submitted to Botany Bay City Council is approved subject to the conditions contained in Annexure A. (3)The appeal subject of proceedings no. 10179 of 2011 is upheld. (4)The Court further directs the Respondent to issue a Building Certificate in accordance with section 149A of the Environmental Planning and Assessment Act 1979 pursuant to the Building Certificate Application made to it by the Applicant on 22 February 2010 within 28 days of receipt of a current Final Fire Safety Certificate. (5)The exhibits may be returned except for A, C, 3, 4, 5, 6. R Hussey Commissioner of the Court ANNEXURE A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2011

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