[2006] NSWLEC 99
Ryde City Council v Echt & Anor (2000) 107 LGERA 317
Source
Original judgment source is linked above.
Catchwords
[2006] NSWLEC 99
Ryde City Council v Echt & Anor (2000) 107 LGERA 317
Judgment (11 paragraphs)
[1]
Judgment
COMMISSIONER: These are two proceedings heard together relating to the same property and arising from the use of the land. The first proceedings 2020/101209 is Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal by Georges River Local Planning Panel on 20 February 2020 of development application No DA2019/0417 lodged by the occupant of the land, SAF Group Pty Ltd seeking development consent for the change of use of an existing factory building approved for processing, manufacturing, storing and distributing sheet metal and rainwater products, to a depot, warehouse, and associated offices (Proposed Development) at 33 Waterview Street, Carlton legally identified as Lot 2 in DP 539830 (the Site). By the conclusion of the hearing the Proposed Development was amended by consent to use of the existing premises as an office premises/business premises and depot and construction of an acoustic wall. I will refer to this appeal as the "DA Appeal" throughout the judgment.
The second proceedings 2020/101221 is a Class 1 - Miscellaneous Appeal pursuant to s 8.18 of the EPA Act being an Appeal against a development control order issued on 26 March 2020 by the Respondent to the owner of the land, 3R Investments Pty Limited, to stop conducting the activity on the Premises of use of existing industrial building as a depot, warehouse and associated offices for a civil, construction and traffic control company (Development Control Order). I will refer to this appeal as the "DCO Appeal" in this judgment.
I will first deal with the DA Appeal and the result of that appeal will ultimately determine the DCO Appeal.
The contentions raised by the Respondent in the DA Appeal are set out in the Statement of Facts and Contentions filed 11 June 2020 (Exhibit 2) and relate to permissible use, traffic and acoustic impacts and how the operation of the enterprise will be managed. This case is about what use is permitted on the Site which is zoned Light Industrial and whether the Proposed Development will have unreasonable adverse impacts in relation to noise, traffic and dust. There was also a jurisdictional prerequisite matter raised by the Respondent on the first day of the hearing regarding the height of building exceeding the maximum height pursuant to clause 4.3 of the Kogarah Local Environmental Plan 2012 (KLEP) and the need for the Applicant to submit a written request pursuant to cl 4.6 of the KLEP to justify the contravention of this development standard.
The Applicant's case is that development consent for the change of use should be granted subject to conditions which would ensure that the impacts of the Proposed Development are minimised for the adjoining neighbours. The proposed use is described in Annexure C to the JER Planning filed 23 November 2020 (Exhibit 6) prepared by Scott Barwick for the Applicant and Clare Brown for the Respondent and the management of the Site is set out in the Plan of Management dated 27 November 2020, Version 2 filed 30 November 2020 (POM). There are three zones of the Site identified and set out in the POM, a document which provides for the use, operation and management of the Site so that the enterprise or business is conducted at all times in a way that is consistent with good management and minimises disturbance to the neighbourhood. The Proposed Development is as set out in the POM which amends the proposal to the extent that all sorting and processing activities are excluded from the Development Application. The three zones can be summarised as follows:
1. Zone 1 - Administration located within the first floor office component of the premises.
2. Zone 2 - Storage and dispatch located within the main building at ground floor level and the storage areas at basement level.
3. Zone 3 - Depot processing yard which is to be used for the storage of a stockpile of clean sand, road base and bitumen cold mix to be utilised as an emergency stockpile for use when these materials have not been able to be directly delivered to a worksite.
Importantly, the Plan of Management expressly provides the following at paragraphs 13 and 14:
"(1) No breaking, crushing or grinding of waste material, such as waste concrete is to take place in the processing yard, or elsewhere on the premises.
(2) No washing down of vehicles with a pressure washer will be undertaken in the rear depot work and processing yard."
The Applicant relies on the description of the Proposed Development as contained in paragraph 4 of the POM, namely as follows:
"The use of the Premises is for a office/business premises and depot associated with the undertaking of a civil contracting and traffic management enterprise. The administration functions support the undertaking of civil contracting and traffic management activities managed on various work sites from the premises. The civil contracting activities managed from the premises and for which materials are stored include footpath upgrades and replacement, road repair and reconstruction, stormwater infrastructure repairs and replacement, utility services infrastructure upgrade, replacement, repair and installation."
I will address the permitted use contention later in this judgment.
The Applicant sought leave to rely on the following amended plans and documents during and following the hearing (Transcript page 25 at par 40, page 42 at pars 30 - 50):
1. Tecton Group Drawings DA01 to DA07 Rev A dated 12 November 2020;
2. Wallmark Smart Wall Solutions, 5 sheets dated 11 November 2020;
3. Plan of Management dated 27 November 2020 Version 2, filed 30 November 2020.
The Respondent's case is that development consent should be refused because there remains insufficient information for a proper assessment of the Proposed Development and that the Development Control Order appeal should be dismissed. The substantial reason put by the Respondent is that "the development application lacks important, substantive, information such that the Court cannot be satisfied that the proposed use will not have material negative environmental impacts, primarily concerning traffic and parking." (Respondent's written submissions at par 2).
The parties relied on the expert evidence contained in the following:
1. Joint Expert Report prepared by Consultant Planners Scott Barwick for the Applicant and Clare Brown for the Respondent filed 23 November 2020 (Exhibit 6) (Planning Joint Report).
1. The Consultant Planners also considered the Acoustic and Traffic Joint Expert Reports and prepared and filed a supplementary Planning Report on 27 November 2020 (Exhibit 9) (Supplementary Planning Joint Report).
1. Joint Expert Acoustic Report prepared by Stephen Gauld for the Applicant and Richard Haydon for the Respondent filed 25 November 2020 (Exhibit 4) (Acoustic Joint Report).
1. The Acoustic experts also prepared and filed a Supplementary Acoustic Report on 27 November 2020 (Exhibit 8) (Supplementary Acoustic Joint Report).
1. Joint Export Traffic Report prepared by Robert Varga for the Applicant and Craig McLaren for the Respondent filed 25 November 2020 (Exhibit 5) (Traffic Joint Report).
Directions were made at the conclusion of the hearing for the parties to file and serve written submissions (Applicant's submissions in reply were filed on 5 January 2021) and the following further documents were also filed with the court after the conclusion of the hearing:
1. Plan of Management version 2 dated 27 November 2020 filed 30 November 2020;
2. Proposed/Draft Conditions of Consent filed as follows:
1. 30 November 2020 by the Applicant,
2. 20 January 2021 by the Respondent, and
3. 21 January 2021 by the Applicant.
The hearing commenced with a site view and an inspection from the adjoining neighbours at 137 and 145 Woids Avenue Carlton. In addition to written submissions tendered by the Respondent there were four objectors who gave evidence in the proceedings.
Objector evidence focused primarily on acoustic impacts from the operations on the Site and from the traffic as well as, to a lesser extent, the impact of dust arising from the use of the Site. I accept that the impact of the past use of the Site has been adverse and detrimental to the adjoining neighbours and that since the implementation of the Interim Plan of Management in approximately mid August 2020, there has been improvement to the noise and dust impacts.
The Respondent refers to the decision of Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (Jonah) for the submission that past or current use of the Site is irrelevant to the merit assessment of the development application and that the only occasion that the Court has accepted that past use might be relevant to assessment is if the past use has given rise to unacceptable impacts "in which case the Court can evaluate likely future impacts based upon those past events (Jonah at [38])" (Respondent's written submissions filed 16 December 2020, at par 4). The Respondent seems to rely on Jonah as authority for the proposition that the Court can rely on objector evidence as to past complaints regarding parking (Written Submissions at par 31) but the Court should treat as irrelevant the current use of the rear yard by the trucks (Written submissions at par 37).
The Applicant argues that the Respondent's interpretation of Jonah is incorrect and submits in Submissions in Reply at par 4 as follows:
"The 'likely' impacts considered in Jonah v Pittwater were unacceptable impacts, but it is not authority that only past 'unacceptable' impacts are relevant. When s 4.15(1)(b) is read with [38] of Jonah v Pittwater it is clear that an assessment of past use, whether lawful or unlawful may be relevant to assessing the likely impacts of a prospective use. Indeed, in this case, there is clear evidence from residents that their experience of the development was acceptable when the IPOM had been complied with."
For the purpose of determining whether past or current use of the Site by the Applicant is relevant and should be considered in my assessment I have referred to the decision in Jonah and I note the relevant paragraphs [35], [37] and [38] below in full:
"35 Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully…
37 The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however, that past use - without any consideration of its unlawfulness - cannot ever be relevant.
38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant."
The past use of the Site was noted by Ms Brown in the Planning Joint Report at par 25 as follows:
"The Applicant's draft PoM provided at Appendix B describes how the enterprise is proposed to operate. CB notes that the enterprise prior to the adoption of and at times during the operation of the Interim PoM did not comply with the terms of the Interim PoM in terms of hours of operation, waste processing or parking and storage of vehicles on the site."
Part of the factual context of these proceedings refers to an Interim Plan of Management (IPOM) which was implemented some time in mid August 2020 via proceedings 2020/101221 DCO Appeal (JER Planning Ex 6 at par 13). It is common ground and agreed by the parties that since the introduction of the IPOM in mid August 2020 the 'unacceptable' past impacts on the adjoining neighbours have markedly improved. I accept that this is a relevant consideration in my assessment of the contentions raised by the Respondent in the SOFAC which predominantly deal with impacts of the Proposed Development. I also accept the Applicant's submission that when Jonah is read together with s 4.15(1)(b) of the EPA Act it is appropriate to consider past use of this Site when assessing the likely impacts of the Proposed Development.
In relation to the acoustic impact contention, the parties raised this with the Court at the outset of the hearing. To address the acoustics impact, the parties sought a direction from the Court for the acoustic experts to prepare a supplementary report on the basis that there might be a proposed condition to remove all processing of material on the Site and whether or not that change impacts on their conclusions and their agreement in relation to the contentions. The Respondent explains that the reason for the further supplementary report by the acoustic experts is that "there would be a large degree of agreement between them and anything in dispute would probably relate to conditions, as opposed to anything pertaining to their discipline." (Transcript p 2, par 30).
I will address the conditions of consent at the end of this judgment following my assessment of the DA Appeal.
[2]
Permitted Use of the Site
The Respondent states in opening that "there is a way of construing the land use as a mixture of office premises and depot, both of which are permissible." (Transcript p 34, par 21).
The Site is Zoned IN2 Light Industrial under the provisions of the KLEP and is located on the northern eastern corner and on the edge of the Carlton Industrial Area (under Part D3 of the Kogarah Development Control Plan 2013 (KDCP)). The Carlton Industrial Area is surrounded by land zoned R2 - Low Density Residential.
Land use table in the KLEP provides as follows:
Zone IN2 Light Industrial
1 Objectives of zone
• To provide a wide range of light industrial, warehouse and related land uses.
• To encourage employment opportunities and to support the viability of centres.
• To minimise any adverse effect of industry on other land uses.
• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
• To support and protect industrial land for industrial uses.
• To support and encourage a range of local services that provide for the needs of the local community.
2 Permitted without consent
Nil
3 Permitted with consent
Depots; Garden centres; Hardware and building supplies; Industrial training facilities; Light industries; Neighbourhood shops; Oyster aquaculture; Places of public worship; Roads; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 4
4 Prohibited
Amusement centres; Eco-tourist facilities; Educational establishments; Electricity generating works; Function centres; General industries; Heavy industrial storage establishments; Heavy industries; Home-based child care; Home businesses; Home occupations; Home occupations (sex services); Hospitals; Kiosks; Pond-based aquaculture Pubs; Residential accommodation; Shops; Tourist and visitor accommodation
I am required pursuant to cl 3.2 of the KLEP to consider the objectives on the zone which are listed above at [24].
The Applicant agrees to a condition of consent which limits the use of the Site so that it is not used for the storage, sorting or separating of waste material from work sites being serviced by the business operating from the Site. The Applicant gave an undertaking to the Council to remove any waste material from the Land at the conclusion of the evidence and advises in written submissions filed 8 December 2021 that this undertaking has been complied with.
The Respondent submits in written submissions at pars 8 and 9 that the amended Proposed Development "involves the use of the Site for office premises (as defined at Ex 1 page 86) and, associated with that "existing undertaking", use as a depot (as defined at Ex 1 page 69). These are permissible uses under the Land Use Table for the IN2 Light Industrial Zone…". For these reasons, and on the basis that storage, sorting or separating of waste material is to be expressly excluded, I am satisfied that the Proposed Development is permissible.
[3]
Contravention of the Height of Building development standard which requires a cl 4.6 written request.
The Respondent identifies that the height of the existing building on the Site exceeds the maximum building height development standard of 10m pursuant to cl 4.3 and the Height of Buildings Map of the KLEP, and submits that a satisfactory cl 4.6 written request to justify the contravention of the development standard is required as a jurisdictional prerequisite. The original development assessment report in the Respondent's bundle of documents includes a table of compliance which notes the maximum building height of 10 m and the existing building to be 11.6 m. The Respondent concedes that, as the building is an existing building and as the Proposed Development seeks approval for change of use, the cl 4.6 written request should be relatively non-contentious and that it should be a straightforward exercise in justifying the contravention of the building height development standard on the basis that it is unreasonable.
The Applicant submits that cl 4.6 of the KLEP is not enlivened by the Proposed Development however has tendered a written request pursuant to cl 4.6 prepared by SJB Planning dated 27 November 2020 (Exhibit F) providing justification for the contravention of the building height development standard in cl 4.3 of the KLEP. I note that Exhibit F identifies the actual height of the existing building measured at the south western corner is 13.27m and that variation of the height of building from the development standard to be 3.27m or 32.7% (at par 2.9).
I have considered the amended Proposed Development which now includes some elements of construction in addition to the change of use of the existing building and I am satisfied that a cl 4.6 written request justifying the contravention of the development standard in cl 4.3 of the KLEP is a jurisdictional prerequisite for the determination of this matter.
I have read the cl 4.6 written request and I am satisfied that pursuant to cl 4.6(4)(a)(i) of the KLEP the written request adequately addresses the matters required by cl 4.6(3) by demonstrating that:
1. Compliance is unreasonable or unnecessary because the building is an existing building and there is no change proposed to the building and detailed reasons are articulated at par 3.2 of the written request.
2. There are sufficient environmental and planning grounds to justify contravening the development which are detailed at par 3.3 of the written request, including the non-compliant elements of the building have been in existence for at least 40 years and the continued use of the building and its embedded resources limits the unnecessary use of further resources through the construction of a numerically compliant building whilst continuing the economic land use for employment generating purposes.
I have also formed an opinion of satisfaction under cl 4.6(4)(a)(ii) of the KLEP that the Proposed Development will be in the public interest because it is consistent with the objectives of the relevant development standard cl 4.3 and the objectives of the IN2 Light Industrial zone.
For these reasons, I find that the cl 4.6 written request is adequate and I have formed the requisite states of satisfaction that the contravention of the height of building standard is justified in this matter.
[4]
Acoustic Impact - operations on site
The next issue I will deal with is one of the main acoustic impact concerns, being whether there is sufficient detail of the operations on the Site which demonstrate that the Proposed Development will not unreasonably impact on the acoustic amenity of the adjacent residential properties and the surrounding environment (Statement of Facts and Contentions, Exhibit 2). I will then deal with the acoustic concern regarding the traffic generated noise.
At page 13, Planning Joint Report:
"The identified adverse impacts broadly relate to, hours of operation, the activities undertaken within the rear work yard, vehicle storage, traffic movements and traffic volumes and parking."
At page 5, Planning Joint Report:
"CB has identified that in terms of the operation of the premises the element of the use which causes a substantial amenity impact relates to the occasions where material from project sites is brought to the premises and not disposed of directly to an approved and licensed waste disposal facility. It is identified by CB that the sorting of the material brought to the site necessitating the use of the shaker bucket which contributes to noise, vibration and dust is the source of much of the adverse amenity impacts relating to the use."
At the outset, the parties anticipated the acoustic issues summarised in the Planning Joint Report quoted above, to be either entirely or largely resolved following the proposal by the Applicant to agree to a condition that would remove the processing of all material from zone 3. The Acoustic Experts were directed to confer and prepare a supplementary report and the Planners similarly considered the Acoustic supplementary report and prepared a Planning supplementary report (Exhibits 8 and 9 respectively).
The Supplementary Acoustic Joint Report states the parameters of the further joint conference as follows at par 1.3:
"Further to the site view on the morning on 26 November 2020, and the commencement of the hearing proceedings, the experts were asked to consider the noise impact from an amended proposal proffered by the applicant, as follows:
The rear service yard is not to be used for the storage, sorting or separating of material from work sites being serviced by the business operating from the premises.
No spoil, broken concrete or similar material is to be brought to the yard and sorted for storage in the stockpile bays within the rear service yard."
The agreement reached between the acoustic experts is set out at par 2.24 in Exhibit 8 and they agree that "the 8.1m high acoustic barrier proposed in the joint acoustic report dated 24 November 2020 in Paragraphs 3.42 to 3.49 will be required to be constructed to achieve the calculated noise levels" and they make a number of other recommendations which have been adopted by the Applicant and incorporated either in the conditions of consent or the Plan of Management. The acoustic experts agree that the acoustic impacts (with the proposed acoustic barrier and the POM) are acceptable.
The acoustic experts and the planning experts were not cross examined by the parties.
I accept that the provision of the acoustic barrier will have the benefit of providing a barrier to the industrial zone from the residential dwellings with visual and acoustic attenuation of the industrial zone (Par 22, Planning supplementary report Exhibit 9).
I note that the Planning experts agreed in their Planning supplementary report (Exhibit 9) that arising from the Acoustic supplementary report is consideration of the KDCP in particular Part D3 control 7(6) relating to the provision of a landscape buffer. Mr Barwick recommends that if the barrier were to be approved it should be setback a distance of 1.0m inside of the property boundary and the setback area planted with climbing vegetation that could create a visual green wall. In relation to the KDCP Mr Barwick refers to the control in 7(6) which states "This buffer is to be a minimum of 3 metres." I accept Mr Barwick's evidence that the objectives of section 7 Landscaping could be summarised to ensure that landscaping should screen development and provide landscaping to residential interfaces and he concludes that the provision of a 3.0m setback is unwarranted in the circumstances for a number of reasons including, relevantly, that the acoustic wall provides an acoustic mitigation that would not be delivered by a 3.0m wide landscape buffer. I also note relevantly that the existing building on the Site has a rear vehicle exit roller door which would be blocked should the acoustic wall be made to comply with the 3.0m wide landscape buffer.
The Applicant rightly submits in reply that s 4.15(3A) of the EPA requires the KDCP controls to be applied flexibly. I am satisfied that the objective of the 3.0m landscape buffer control is achieved and that the recommendations of Mr Barwick to setback the acoustic barrier a distance of 1.0m inside of the property boundary and the setback are planted with climbing vegetation is appropriate in the circumstances of acoustic mitigation and the constraints of the existing building. I note that in the Supplementary Planning Joint Report at par 33 Mr Barwick states:
"I agree with CB that should the wall be approved at the 1.0m setback and the setback landscaped there should be a maintenance point. Instead of disrupting the integrity of the acoustic wall the access could be installed via a new door adjacent to the rear roller door…"
In relation to the landscaping Mr Barwick provides his opinion at par 35 in the Supplementary Planning Joint Report as follows:
"In addition to an access point, a condition should be imposed requiring the installation of an automatic watering system to support the vitality of any vegetation provided to screen the acoustic wall such as Lilli Pilli or suitable climbing plants that could utilise the acoustic wall as a medium to support their growth."
Having considered the evidence of the acoustic experts and the planning experts together with the proposed conditions of consent and the POM, I find that the Applicant has demonstrated that the Proposed Development will not unreasonably impact on the acoustic amenity of the adjacent residential properties and the surrounding environment. In the context of the removal from the Proposed Development of any processing, grinding, sorting etc of concrete or other waste materials, I am satisfied that the air pollution and dust concerns raised by the Respondent and by the objectors will also be significantly mitigated if not entirely resolved. In that regard, I note that the POM prohibits breaking, crushing or grinding of waste material (pars 13 and 31) and at par 33 there is the requirement that the storage bunkers be covered and secured by a purpose-built cover of fine mesh shade cloth or geofabric which covers the entire material in the storage bunker and further, if conditions are windy, the stockpiled fine-grained materials are to be wet down with a mist or spray hose to minimise dust.
[5]
Acoustic Impact - traffic
This contention essentially concerns detail provided by the Applicant in order to assess the likely traffic impacts. The Court heard evidence from resident objectors regarding the past impacts of truck and vehicle movements at various hours and along the residential streets thereby having an adverse impact on the amenity of the residential neighbours. Parking is relevant to traffic and I deal with parking below.
As I have already noted above, I accept that the objectors generally agreed that in the period between the introduction of the Interim Plan of Management in mid August 2020 and the date of the hearing, the traffic impacts have improved.
The Applicant submits further that since the contention was raised, the following has been submitted by the Applicant:
1. A detailed description of use (Annexure C, Planning Joint Report);
2. POM;
3. A survey of traffic and parking (Annexures 6 and 7, Traffic Joint Report);
4. Swept path diagrams (Annexure 8, Traffic Joint Report); and
5. A vehicle and plant register of the fleet (Annexure 9, Traffic Joint Report).
On the basis of the POM relied on by the Applicant, I am satisfied that the acoustic impact of traffic concern has been resolved and addressed by imposing the following management obligations on the Applicant in the POM:
"23 All vehicles entering and exiting the Premises will do so only in a left turn in and right turn out manoeuvre to avoid accessing the adjacent residential street network.
24 No vehicles external to the building are to be left idling on the Premises or surrounding streets […] Vehicles owned and operated by the enterprise are to be fitted with 'squawker' reversing alarms."
[6]
Parking
The concern as submitted by the Respondent relates to the provision for parking of vehicles on the Site and whether there ought to be provisions for 100% of storage of trucks and vehicles within the fleet owned and managed by the Applicant. The Applicant submits that the fleet identified by Mr McLaren in par 45 on page 7 of the Traffic Joint Report (Exhibit 5) is not accurate and does not reflect a list of vehicles that the Applicant stores on site. In opening the Applicant submits that
"vehicles typically go home with the employees and they only come to the Site when they need additional supplies. It's not correct to say that the vehicles never come to the Site, but they don't have a permanent place there. The proposal is that they come in, pick up what they need to and then go away. There are some vehicles that are stored on the Site and they have been identified by Mr Varga and it's on that basis that the applicant says that there is sufficient accommodation on the Site for the vehicles proposed as part of the business as it operates at 33 Waterview Road." (Transcript page 38 at pars 22-29)
The Applicant, in written submissions states that the operation of the business is such that there is never a time that all plant and equipment is stored on the Site. Council's case is that there should be a detailed vehicle allocation parking plan whereas the Applicant seeks reasonable flexibility and asks the Court to accept the POM and the conditions of consent as providing sufficient enforceable certainty in the operation of the enterprise from the Site.
The Applicant relies on s 4.15(3A) of the EPA Act which requires the Court to apply the KDCP controls flexibly if there are reasonable alternative solutions that achieve the objects of those standards in relation to parking in industrial zones. The relevant general objective (e) identified in Part D3 of the KCDP states as follows:
"(e) Ensure that adequate off-street parking is provided to satisfy the demands generated by the industrial activities and that the location and design of driveways, parking spaces and loading/ unloading areas are efficient, safe, sufficient and suitably landscaped."
Then at Part D3-8 "Vehicle access and Parking" the objectives provide as follows:
"Objectives
(a) Provide sufficient and convenient on-site parking for employees, visitors and associated vehicles.
(b) Minimise the adverse impact of vehicles on the amenity of the development, streetscape and surrounding neighbourhoods.
(c) Ensure that appropriate on-site parking is provided for people with a disability and is consistent with the design requirements of the Building Code of Australia and the relevant Australian Standards.
(d) Ensure that there is adequate space on-site for easy, convenient and safe circulation of vehicles.
(e) Car parking areas and loading areas should be designed to ensure ease of ingress and egress to and from the site.
(f) Provide safe pedestrian access through car parking areas without interference of vehicular movement.
(g) Vehicular movements to and from the site should be designed to reduce potential conflict with street traffic and pedestrians."
I acknowledge the reservations expressed by Mr McLaren as to compliance with the flexible approach proposed by the Applicant. I have referred to the swept path drawings at Annexure 8 of the Traffic Joint Report and am satisfied that together with the evidence of Mr Varga and the detailed provisions of the POM, the nature and manner of operation of the business of the Applicant on the Site requires a reasonable degree of flexibility as to parking of vehicles on-site and that a rigid parking allocation regime is not strictly required in order to achieve the objects of the KDCP stated above.
I find that there is sufficient information provided by the Applicant in order to be satisfied that the alternate solutions as set out in the POM are adequate and will minimise the adverse impact of vehicles on the amenity of the development, streetscape and surrounding neighbourhoods.
[7]
Conditions of consent
The Parties filed multiple Proposed/Draft Conditions of Consent and I accept that the evidence was still being prepared and submitted during the hearing and that this created constraints for the parties to draft and potentially agree on a set of draft conditions of consent. As a result, there are competing Proposed/Draft Conditions of Consent where the primary dispute revolves around whether there should be deferred commencement conditions as sought by the Respondent.
The Respondent seeks Deferred Commencement Conditions, which is not agreed to by the Applicant, in order to "address the failures in the supply of sufficient information." (Respondent's Written Submissions at par 39). However, the Respondent does concede at par 39 that if the Court does consider the information sufficient, all conditions are supported by the evidence.
The Applicant in submissions in reply, submits that there is no need for the deferred commencement conditions proposed by Council. At par 16 and 17, the Applicant submits as follows:
"16. […] The plans show the areas in which the use will be carried out and the location and form of the acoustic barrier. The volumes of materials to be stored will be limited by the size of the bays on the plans. There is no need for the information required by Council.
17. The [acoustic] wall is sufficiently detailed in the plans and should be approved as condition 1. Construction details will be submitted in the usual course of a construction certificate application and there is sufficient detail in the approved plans and conditions that would satisfy the court that the outcome is certain."
Firstly, in relation to the volume of material to be stored on the Site, I have referred to the POM and at par 32 the POM provides that "The back up supply of clean sand and cold bitumen mix is to be stored within the storage bunkers to height at least 500mm below the top of the storage bunker walls." For this reason, I accept the Applicant's submissions and I am satisfied that the provisions of the POM will limit the volume of material stored on the Site and the volume of materials is also restricted by the size of the existing storage bunkers.
Secondly, in relation to the acoustic wall.
1. The Applicant's Proposed/Draft Conditions of consent filed 21 January 2021 includes a document which was not tendered into evidence, namely Acoustic Barrier Design - 33 Waterview Street, Carlton ref No. 6997-1.2L dated 13 November 2020 prepared by Day Design Pty Ltd. This document is from Stephen Gauld, Principal Acoustical Engineer of Day Design Pty Ltd addressed to the solicitor for the Applicant and attached the Wallmark Smar Wall Solutions drawings dated 11 November 2020. As noted above leave was sought by the Applicant to rely on the Wallmark drawings consisting of the same 5 sheets as attached to this document. I note also that sheet 4 of 5 appears at Annexure F to the Acoustic Joint Report and that there is no mention or reference to the 13 November 2020 letter. Further, the 13 November 2020 letter includes a summary of the activities on the Site which are no longer part of the Proposed Development such as storage and sorting of waste material. Finally, the Acoustic Joint Report and the Supplementary Acoustic Joint Report both post date this 13 November 2020 letter and neither Mr Haydon nor Mr Gauld make reference to it in either report in evidence in these proceedings. For these reasons, I do not accept that this 13 November 2020 letter included in the Applicant's Proposed/Draft Conditions of Consent filed 21 January 2021 should form part of the consent for the Proposed Development.
2. The Applicant's Proposed/Draft Conditions of Consent filed 21 January 2021 requires the construction of the acoustic wall prior to the issue of the Construction Certificate. It is my view that consent conditions numbered 7, 8 and 9 provide sufficient detail and certainty as to the construction of the acoustic barrier/wall which is further supported by consent condition number 30 which requires an acoustic report confirming that the acoustic wall as constructed will allow the operation of the premises in accordance with the consent and that the report shall be submitted to the satisfaction of the Principal Certifying Authority and a copy provided to Council. In addition, consent condition number 31 requires further certification by the acoustic consultant prior to the issue of the Occupation Certificate.
For the reasons contained in this judgment I am satisfied that there is sufficient information supplied by the Applicant in relation to the contentions raised by the Respondent and that the Applicant's Proposed/Draft Conditions of Consent filed 21 January 2021 are supported by the evidence, except for the document listed and referred to as Acoustic Barrier Design - 33 Waterview Street, Carlton ref No. 6997-1.2L dated 13 November 2020 prepared by Day Design Pty Ltd, which should be deleted.
I am satisfied that the Proposed Development minimises the adverse effects and impacts, particularly on surrounding residences as required by the KLEP. Accordingly, I find that deferred commencement conditions are not required.
In relation to the terms of the conditions of consent to which the Proposed Development will be subject, I have reviewed and considered the evidence in this matter together with the written submissions filed by the parties and the evolution of the Proposed/Draft Conditions of Consent and I am satisfied that the Proposed Development should be approved subject to the condition of consent filed by the Applicant on 21 January 2021 which are appropriate and adequately supported by the evidence in these proceedings.
[8]
DCO Appeal - proceedings 2020/101221
The Applicant relied on the decision of Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108 as authority for the proposition that a consent authority doesn't necessarily need to take action in relation to a development control order, even if a breach is identified, for instance, where, if ultimately the Court were to grant consent to the application with appropriate conditions in place and a POM, then the DCO might well be a redundant form that is, therefore revoked.
The Respondent, in opening similarly submitted that the DCO Appeal will inherently be in a sense parasitic upon whatever occurs in the DA Appeal. Ultimately, the parties agree that should development consent be granted in the DA Appeal then the DCO should be revoked pursuant to s 8.18(4)(a) of the EPA Act and I accept that this is the appropriate course.
I find that it will no longer be necessary for the Development Control Order against the owner of the land as a result of the assessment and determination of the DA Appeal and that the DCO Appeal should be upheld.
[9]
Orders
In the Development Application Appeal proceedings 2020/101209 the Court orders that:
1. The Applicant is granted leave to amend Development Application No DA2019/0417 and rely on amended plans prepared by
1. Tecton Group Drawings DA01 to DA07 Rev A dated 12 November 2020; and
2. Wallmark Smart Wall Solutions, 5 sheets dated 11 November 2020,
and rely on amended Plan of Management dated 27 November 2020 Version 2.
1. The Applicant's written request prepared by SJB Planning dated 27 November 2020 made pursuant to clause 4.6 of the Kogarah Local Environmental Plan 2012 to vary the height of buildings development standard at clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld.
2. The appeal is upheld.
3. The Development Application No DA2019/0417 seeking development consent for the change of use of an existing factory building approved for processing, manufacturing, storing and distributing sheet metal and rainwater products, to use of the existing premises as an office premises/business premises and depot and construction of an acoustic wall at 33 Waterview Street, Carlton legally identified as Lot 2 in DP 539830 is approved subject to conditions of consent at annexure 'A'.
4. The Exhibits are returned except exhibits 2, 3, 8 and 9, A, B and F
In the Development Control Order Appeal proceedings 2020/101221 the Court orders that:
1. The appeal is upheld.
2. The Development Control Order dated 26 March 2020 is revoked.
[10]
Commissioner of the Court
Annexure A (259653, pdf)
Plans (3854691, pdf)
Double Panel Cranked Wall (1251640, pdf)
Plan of Management (5247184, pdf)
[11]
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Decision last updated: 11 May 2021