Rockliff Estate Pty Ltd v Liverpool City Council

Real issues in dispute

1. It is reasonable to take the position, here, that despite an original set of 11 contentions, and a set of other matters concerning insufficient information, as raised by Council (Ex 1), by the time of the reservation of my decision and the filing of otherwise agreed conditions by the parties (filed on 25 October 2023), there were only two remaining issues in dispute.
2. The first and major issue related to the permissibility of the development, which turns on the question of the characterisation of the purpose of what I will henceforth refer to as the "western roadway" which provides access to a part of the proposed industrial and warehouse estate. The western roadway is located on land zoned C2 Environmental Conservation, upon which "industries" and "warehouse or distribution centres" are nominated prohibited uses.
3. The second issue related to a merits and interpretive question concerned with the setback of the development in relation to the land (now) zoned E2 Environmental Conservation, concerning which LDCP has certain provisions.

Setting the scene

1. There is no dispute that, under LLEP:

• Industrial and warehouse estate development of the kind proposed is permissible within the E5 Heavy Industrial zone. The parties seem to agree that the proposal, at least in part, meets the definition of "warehouse and distribution centre", a nominated permissible use in the E5 zone.
• "Roads" is a nominated permissible use within both the C2 Environmental Conservation zone and the E5 Heavy Industrial zone. The applicant argues that the western roadway is appropriately defined as a road, and as such is permissible in both zones.
• Industrial and warehouse estate development of the kind proposed are prohibited in the C2 Environmental Conservation zone.

1. The expression "road" is defined in the Dictionary to Liverpool LEP as follows: road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road.
2. Related definitions in the Dictionary to the Roads Act 1993 (the Roads Act) include: private road means any road that is not a public road. public road means - (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. road includes - (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road.
3. Figure 3 is a reproduction of an attempt to provide an overlay of the site zoning onto the proposed layout. It is sourced from the applicant's amended plan set (Ex O Tab 1 Drawing A.04). Figure 3 - Development layout with zoning overlay (Source: Ex O Tab 1 Drawing A.04)
4. The orientation of the drawing reproduced in Figure 3 would have north pointing up the page. Motor vehicles would enter and leave via Yarrunga Street (to the south). The ingress/egress roadway (off Yarrunga Street) branches almost immediately. One branch heads to the east and involves a ramp up, before realigning in a north-south direction. This roadway provides access for the upper level of the proposed industrial and warehouse building. The other branch would run along and to the west of the proposed industrial and warehouse building. This second branch, which I am calling the western roadway, would be located, for the bulk of its extent by far, within the C2 Environmental Conservation zoned portion of the site. Entirely unintentionally, Drawing A.04 (Ex O Tab 1) is not altogether clear in its depiction, due to the overlaying techniques used (something which could not be remedied in the scanned image reproduced in Figure 3), but both the dark and light tan coloured area in Figure 3 (ie including the area accommodating the western roadway up to and including its turning head) fall within the C2 Environmental Conservation zoned area. While nothing turns on it the original drawing also refers to the earlier zoning provisions with respect to the now E5 zoned land.
5. The applicant also submits that the purpose of the proposed use taking up most of the E5 Heavy Industrial zoned land on the site is as a "warehouse or distribution centre" (Applicant's Written Submissions dated 20 October 2023 (AWS) par 22), a nominate permissible use in the E5 zone. The proposed western roadway is, according to the applicant, properly understood to be a "road" and is distinguishable and separate from the warehouse distribution centre. Insofar as it would be located on land zoned C2 Environmental Conservation, "road" is a permissible use in that zone. In addition, according to the AWS (par 5(g)): "The applicant proposes the road as a private road but if there is any difficulty with that proposal, the applicant is willing to dedicate the road to Council".
6. Notwithstanding this, the applicant submits that it does not matter whether the road is private or public, referencing the findings of Cripps J in Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 (Argyropoulos) (AWS par 21).
7. Council indicates that there is no willingness on Council's part to accept the dedication of the western roadway as a public road (CWS par 80 and oral submissions).
8. Council argues that what it refers to as "the proposed driveway", is located within the C2 Environmental Conservation zone. Council argues that it is not a "road" (under LLEP) but is a driveway "that is ancillary to and for the purpose of, the proposed industrial use of the site and, therefore, is prohibited" (CWS par 21).
9. It seems to be agreed that the central question, in relation to characterisation and the related question of permissibility, is whether the western roadway can be considered as a separate use from the industrial development (eg AWS par 8). If the western roadway's purpose can be characterised as separate from the otherwise proposed industrial development then the western roadway is permissible. If the western roadway's purpose cannot be so characterised, and its purpose is characterised as an industrial use, then it is prohibited.

Characterisation principles

1. There was an indication by the parties of general agreement on characterisation principles. The applicant commenced with recitation of certain principles from the findings of Leeming JA from Jojeni Investments Pty Ltd V Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 (at [74]-[76]). This material is useful and generally applicable. However, for convenience here (and mindful that this matter does not involve an existing use rights case) I will cite Council's summary of the relevant findings of Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell), as follows (CWS par 26): "(a) In planning law, use must be for a purpose. The purpose is the end to which the land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Chamwell at [27]. (b) In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": Chamwell at [28]. (c) The nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still serve the same purpose: Chamwell at [34]. (d) The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Chamwell at [36]. (e) The characterisation of the purpose of development must be done in a common sense and practical way: Chamwell at [45]."
2. Among other authorities, the applicant also drew attention to findings relating to ancillary uses in the Court of Appeal's findings in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 (O'Donnell) at 409-410 (AWS par 11): "Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer instals at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use."
3. Both parties also referenced Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers), where Preston CJ's findings included at [28]: "A use of land can also be for two or more purposes… It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes."
4. Both parties also gave consideration to Argyropoulos, although drawing different conclusions in regard to its findings. The relevant findings were summarised in Chamwell (at [24]) as follows: "… There, Cripps J held that the construction and the use of a road on an access handle could properly be characterised as being for the purpose of a road, notwithstanding that the vehicles using the road could proceed to and leave from land zoned and used for light industry purposes."
5. Reference was also made to the finding of Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49 (Goldberg) at [58]-[60], where findings with some similarities to Argyropoulos were made.
6. Council also made reference to the findings of Pain J in the more recent authority of Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108 (Alramon) at [165] which drew out distinctions from Argyropoulos.

Applicant's arguments

1. While this exercise in synthesis is not without difficulty, it seemed to me that the applicant pressed three principal and related arguments in regard to the proper characterisation of the western roadway.
2. The applicant's first argument, as I present the synthesis, was that the circumstances were distinguishable from Chamwell because the two elements ("road" and "industrial activities") were "not intermingled in a physical sense" (AWS par 21). Instead, the western roadway was a physically, practically, visually and functionally separate element of the development, which can be "delineated from the warehouse" (AWS par 14). For me here, the applicant's argument is also attempting to draw in common sense and practical interpretation, (actually) mindful of Chamwell at [45]. A series of further points of detail which I cite relevantly below at [40] were also produced (AWS par 16).
3. The applicant's second argument, in my construction, relates to Pet Carriers (at [28]) although in an indirect way. In Pet Carriers, the question arose as to "whether the prohibited purpose can be regarded as subsumed in the permissible purpose… or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes". Unlike Pet Carriers, the different zonings evident in this case evoke the question of whether "it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used", according to the applicant (AWS par 13). On this point, the applicant goes on to argue that: "The question to ask is: is the Road independent of the industrial use? The applicant submits that the uses are indeed independent.
4. I include in this second argument the applicant's reference to the question of ancillary development citing O'Donnell (at 409-410). The applicant argues that (AWS par 14): "The use of the road is by its nature and extent capable of being an independent use, and is not deprived of that quality because it is 'ancillary' to or related to or interdependent with, another use being the industrial activity."
5. Finally, I also include in this second argument, the applicant's reference to the potential for a broad range of members of the public to use the western roadway to access a variety of business; and that such businesses may well be permissible in the C2 zone. "Environmental facilities" are cited as a use permissible both in the E5 and the C2 zone which "may be applied for at a later stage" (AWS par 22).
6. The applicant's third argument was that the circumstances in this case were aligned with the circumstances found in Argyropolous (characterising an access handle as a road, see [26]) in that "the elements are physically separate and distinguishable". The findings in Goldberg which called up Argyropolous are also referenced in this argument.
7. Another point argued by the applicant was that there was an example of Council approving a "private access driveway" on C2 zoned land across the road at 55 Yarrunga Street. If the argument were that this decision of Council should assist as a precedent, it is misplaced. The considerable principles from judicial findings are more relevant to me here. Nonetheless I do acknowledge the list of points which distinguish the proposed western roadway from the roadway approved under the relevant DA for 55 Yarrunga Street as indicated by Council (CWS par 75).

Council's arguments

1. The Council's arguments were at odds with the applicant in each respect. I generally agree with Council's position and, to reduce duplication, I will move directly to my consideration of the matter, cross-referencing Council's submissions as appropriate.

Consideration

1. I find the Chamwell principles quite analogous to the circumstances of the case before me. Here, I find myself at odds with what I have described as the applicant's first argument. There are a number of reasons for this finding. Firstly, it is difficult to see how it might be perceived as other than the case that the western roadway serves the purpose of providing for access to the warehouse buildings: "the end", to which the land occupied by the western roadway serves, is in every essential way, it seems to me, concerned with the making good of the proposed development: Chamwell at [27]. The provision of the western roadway is essential to enabling the proposed industrial and warehouse estate development. Without the physical act of construction of the western roadway, the development as proposed cannot be achieved: Chamwell at [28], [29] and Alramon at [165].
2. Secondly, differences can be acknowledged in terms of the nature of the use of the western roadway and the nature of the use of the proposed industrial and warehouse estates. The western roadway provides for vehicle (and pedestrian) access to the warehouse and industrial building within which storage or other industrial activities will occur, for example. However, the western roadway has been designed, in its physical configuration particulars, it seems to me, to serve the end of enabling the industrial and warehousing activities to occur. The key point is that the nature of use (in this case the provision of purpose-designed access) is appropriately distinguished from the purpose of the use: Chamwell [33]-[34].
3. Notably, as it happens, there would also be some direct overlap of use between the western roadway (on C2 Environmental Conservation zoned land) and the industrial and warehouse estate beyond the access provision. Here, I refer to the important function of providing for turning paths for Heavy Rigid Vehicles (HRVs) to enable loading and unloading and egress in a forward direction (ie beyond the general access which is only available to some portion of the proposed industrial development from the western roadway). That is, the turning paths for HRVs to allow forward movement out of a site, which might more regularly be provided for within the bounds of industrial and warehouse premises, significantly occupy the western roadway. On this point, I have confirmed the particulars of the submissions from Council (CWS par 71(e)) and note the direct reference to the relevant turning path drawings (Drawings PT 5YSV03 and 5YSV07) in the agreed draft conditions (Condition 1(b)) filed on 25 October 2023.
4. I also cannot agree that this matter can be relevantly (my emphasis) distinguished from Chamwell because of the following reasons cited by the applicant (AWS par 16): "a. The proposed road is clearly identifiable on a plan as a separate physical element of the development. lt will also be clearly identifiable post construction on either an aerial photograph or on the ground, unlike the example in Chamwell where there was an access ramp leading directly from a public road into a building and integrated into that building, the access road has the characteristics of what is ordinarily considered a 'road'; b. The road will be used to reach multiple, separate businesses; c. The road can either be a private road, or dedicated to Council (when it would become a public road)."
5. In relation to point (a), in the quote above, these arguments seem to me to be in the domain of fact and degree and the circumstances of the case (Foodbarn at 409). In my interpretation, instead of being identifiably separate, the western roadway as shown in the DA plans seems to be physically, practically and visually integral to the rest of the development. For me, this is most particularly demonstrated by the configuration of the accessway which abuts the proposed warehouse building, including its various openings and corners (see Ex O Tab 1 Drawing A.06 Level O Site Plan, and also the 3D renders at Drawing A.01 each of which is referenced in draft consent conditions). I reproduce two of the 3D images which are most demonstrative of this point below.
6. This representation of the western roadway does not represent the physical, practical or visual form commonly understood by the term "road", in my experience, and is more akin to the understanding of an internal driveway and hardstand area used in multi-unit warehouse and industrial development. Functionally, again it is hard to see the applicant's argument given that its use, or function would be expected to be almost entirely associated with the rest of the development, including in relation to turning movements of HRVs.
7. I am also not convinced that the applicant's point (b), in the quote at [40] (that the road will be used to reach multiple, separate businesses), is persuasive in regard to the question at hand. In Chamwell at [38] there was the conspicuous finding that the "retail development of the supermarket constitutes one integrated and indivisible business or activity": "38 The retail development of the supermarket constitutes one integrated and indivisible business or activity. It is not capable of subdivision or sectionalisation into the retail section (comprising the supermarket and its associated stockroom and loading dock) and the non-retail section (comprising the parts of the building in Lot D on the ground floor and the basement car park levels that will be used by customers of the retail section) in the manner contended for by the applicant. The parts of the building in Lot D on the ground floor and in the basement car park levels that will be used by the retail customers are integrated with the supermarket."
8. The parallel point for me, when I relate the above to the matter before me, is somewhat the opposite to my understanding of the applicant's point. It is that the proposed industrial and warehouse estate, which is the subject of the DA before me, itself should be considered as an integrated whole. That is, that the western roadway, which will be used in a day-to-day sense by those accessing the site, is integrated with the rest of the proposed industrial and warehouse estate.
9. On point (c) in this part of the applicant's argument outlined at [40], I note that the Council has indicated it is not willing to accept the dedication of the road, although I do not see this (whether the western roadway were to be dedicated to Council as public road, or not) as a key point in relation to the characterisation question, noting the related findings of Argyropolous (at 205).
10. I now turn to what I have termed the applicant's second argument (summarised at [31]-[32]) which went, particularly, to some further detail on the western roadway's argued independence from the proposed industrial and warehouse estate, having regard to findings of principle Pet Carriers and O'Donnell. There was also the suggestion that some ultimate uses which are taken up within the proposed industrial and warehouse building may be permissible uses in the C2 land.
11. In relation to Pet Carriers, I understand the applicant to be mindful of the finding that use of land can be for two purposes and that if, as indicated in Pet Carriers at [28], a question can arise as to whether (my emphasis) a prohibited purpose might be "subsumed" in the permissible purpose, then the opposite can also be the case. That is, that one purpose (in this case a road, as argued by the applicant) can be assumed to be independent of the other purpose, even if it is ancillary to that purpose mindful of O'Donnell (at 409), which I cite more selectively than previously, as follows: "… it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. …"
12. It does not directly follow that the above finding makes way for the applicant's argument on the independence of the western roadway. That is to say a fallacy relating to "automatic preclusion" does not mean automatic acceptance, so to speak. The reference in O'Donnell, above, to "question of fact and degree in all the circumstances of the case" has some alignment with the reference in Pet Carriers (at [28]) to questions of the details of the case at hand ("[it] may be necessary to ascertain, having regard to the character, extent and other features of the uses, …"). As indicated in my earlier findings, the particulars of this case direct me to the view that the proposed western roadway is integral to, rather than independent from, the proposed industrial and warehouse estate development. Insofar as the particulars of future uses are relevant to the matter before me now, I cannot see that it is reasonable to factor in a take-up, of the proposed industrial and warehouse building, by uses permissible within the C2 zone, to the extent that it changes the character of the purpose of the western roadway. In turn and having regard to this second line of argument by the applicant, it seems to me the character of the western roadway's purpose is as for the proposed industrial and warehouse estate development.
13. I now turn to what I have suggested as the applicant's third argument. The argument here seeks to find alignment with the findings in Argyropolous and Goldberg which found an independent use of road, with respect to, respectively: (1) an access handle on land zoned residential, leading to land zoned light industrial, and (2) roadway construction on land zoned open space but within a "road" within the meaning of the Roads Act.
14. Having read Argyropolous, it seems to me that the circumstances at hand are very different. The two reasons cited as points of difference in Chamwell also apply in the matter before me (Chamwell at [49]): "…There, the access handle was constructed and used as a road within the ordinary meaning of that word. The access handle was separate to the land on which the light industrial use was carried on. …"
15. In the case before me, the western roadway is a proposed feature, on the same parcel and integral to the proposed industrial and warehouse estate development. On point for me is that when considering the relevance of Argyropoulos, in Alramon (at [165], Pain J found: "…In fact, the only reason why the proposition of road is being put forward is not because of some existing use but rather, because it is asserted the "vehicular egress is development for the purposes of a 'road.'" The corollary is that one must look at first, in the case of use of land for the purpose of a child care development, the fact that that purpose can only be achieved by the physical acts of constructing not only the space in which the childcare will take place but also the spaces for the associated activities, such as parking and vehicular access. The physical acts involved in the erection of the childcare centre including the construction of the car park, driveways and access ways are the means by which the land is made to serve the child care purpose. The child care could not function on the land without the car park, driveways and access ways: Chamwell at [30]. The end to which the right of carriageway is to serve is not a road and as such, is integrated and indivisible from that of the child care centre."
16. I find similarly with respect to Goldberg, particularly noting the differing status of the separate land upon which the "road" was proposed: (1) defined as "a road within the meaning of the Roads Act": at [51]; and (2) already providing pedestrian access to the land and two other properties: at [3]. Of some relevance perhaps to the first sentence of the quote from Alramon above, I do acknowledge the numerous references in Council's submissions to suggest the subject DA did not include a proposal for a "road" (CWS par 68-72).

Conclusion in regard to characterisation question

1. When I consider the submissions of the parties including the authorities cited and the physical evidence, and for the reasons outlined above, the case has not been made out that the characterisation of the purpose of the western roadway is as a separate use of road. On the material before me, the end to which the western roadway would serve is not a road but is integral and indivisible from the purpose of the proposed industrial and warehouse estate development. Insofar as the western roadway is located on land zoned C2 Environmental Conservation, it is not permissible under the provisions of LLEP. As the proposal when considered in its totality is not permissible, there is no power to grant consent to the application before me.

Setback of the development

1. I will attend to the second issue in dispute briefly.
2. The town planning experts were as follows: A Darroch (appointed by the applicant) and M Brown (appointed by Council). The experts disagree on the suitability of the western setback of the development. Of particular relevance is that the experts disagree on the interpretation of the following provision (Clause 4 of Part 7 of the LDCP (Ex 2, Vol 1, Tab 2(b), folio 220)): "Setbacks from Cabramatta Creek in Prestons All development shall be set back from any land in the E2 Environmental Conservation zone along Cabramatta Creek in Prestons on the subject or adjoining properties by a minimum of 10m."
3. Clause 4 of Part 7 of LDCP, which goes under the heading "Setbacks", indicates the following objective: "To ensure buildings do not adversely dominate the streetscape environment of industrial areas."
4. Mr Brown measures the 10m setback requirement from the eastern boundary of the C2 zone (accounting for the name change to the E2 zone referred to in the provision itself). Rather than being setback from, Mr Brown finds the proposed development (in particular the western roadway) as encroaching within the C2 zone, and the proposed industrial and warehouse built form itself abutting the C2 zone. Mr Brown does not see the nominated objective to setback controls (which related to streetscape) as applicable. He opines (Ex 4 par 3.9): "… the assumed underlying objective of the 10m setback is to protect and minimize impact on the environmental conservation values of the C2 zone and in turn, the adjacent Cabramatta Creek."
5. Mr Brown suggested a "more appropriate outcome" for the development, with respect to this LDCP control, would see the western roadway within the 10m setback area under LDCP, however the western roadway would need to be relocated to within the E5 Heavy Industrial zoned land (Ex 4 par 3.5). That is to say, the "setback" area would be occupied by the western roadway.
6. Mr Darroch seemed to measure the 10m setback requirement from the eastern boundary of Cabramatta Creek or the western side of the C2 zoned land and finds that the western roadway (as the westernmost element of the development) would have an offset of 18m-26m (ie well in excess of the nominated 10m) (Ex 4 par 2.14).

Consideration

1. While the line of thinking was not clear to me, an explanation for Mr Darroch's interpretation might have related to the heading of the provision: "Setbacks from Cabramatta Creek in Prestons". However, the heading is not the provision. In this case it seems to me that this heading was an abbreviated attempt to get to the point of setbacks relating to the environs of Cabramatta Creek. This is made clear in the wording of the provision, which provides that development be setback "from any land in the (now C2 zoned area) along Cabramatta Creek…". In this instance, this means that development would be setback 10m to the east of the eastern boundary of the C2 zoned area. It follows that I agree with Mr Brown's opinion that the development is at odds with this provision. I also accept his point in relation to what he indicates to be the "assumed/underlying objective" of this control. Mr Brown's assumed/underlying objective aligns with Objective (c) to Part 7 of LDCP (ie relating to Industrial Development more generally) which is: "To provide design requirements to ensure development in the industrial zones are compatible with the natural environment."
2. While Mr Brown's inference in relation to a "more appropriate outcome" (at [58]) may make sense, it is not the application before me. The proposal incorporates a significant breach of the setback control at Clause 4 of Part 7 of the LDCP relating to the C2 Environmental Conservation zone along Cabramatta Creek. On the basis of the material before me, the granting of consent would be inappropriate on this point alone.

Conclusion

1. In accordance with my findings on the characterisation of the purpose of the western roadway element of the proposal, the proposed industrial and warehouse development is in part located on land zoned C2 Environmental Conservation. Such a use is not permissible under the provisions of LLEP. As the proposal is not permissible, there is no power to grant consent to the application before me.
2. To the extent that it is relevant, based on the material before me, I also find that the proposal involves a significant and determinative breach of LDCP relating to setbacks from C2 Environmental Conservation zoned land along Cabramatta Creek.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No DA-699/2022 for certain industrial and related development at 50 Yarrunga Street, Prestons is determined by the refusal of consent. 3. The exhibits are returned except Exhibits 1, A and O, which are retained.

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