Salameh v Bankstown City Council

Land and Environment Court (NSW)|2013-08-29|Before: Stein J

Judgment 1This is an appeal pursuant to s 97AA of the Environmental Planing and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application under s 96(1A) of the Act to modify a development consent relating to premises at 107 Carrington Street Revesby (the site). 2Development consent DA 243/2012 was granted on 23 April 2013 to authorise the use of existing factory premises for vehicle dismantling and storage of spare parts. Development consent DA 243/2012 approved a change of use and did not authorise any building work. The conditions imposed on the development consent included conditions 4, 7, 9, 10 and 13: 4) Car parking spaces for five (5) vehicles shall be provided on site generally as shown in Sheet 3. If additional paving is required to accommodate the parking spaces such shall be designed and constructed to withstand the anticipated wheel loads. The car parking spaces, driveways and manoeuvring areas are to be used for employees and visitors vehicles only and not for the storage of new or used materials, finished goods or commercial vehicles. 7) All loading and unloading of goods shall take place within the site in a manner that does not interfere with parking areas, driveways or landscaping. 9) All waste materials associated with the use shall be stored in containers located either within the building or behind screen walls in accordance with the approved plans. 10) The use of the premises shall not contravene the Protection of the Environment Operations Act 1997. The operation of the premises shall be carried out in accordance with the requirements of the Department of Environment and Heritage, if applicable. 13) All industrial activities including dismantling of vehicles and storage of car bodies are to be confined within the building or behind the brick wall with roller shutter. The stacking of vehicle body shell or body parts behind the brick wall shall be no higher than 2m. 3The application to modify the development consent DA 243/2012/1 was lodged on 24 October 2012, and sought approval for the erection of racks to permit storage of 12 vehicles in front of the building. The Council refused the application on 16 January 2013.

The site and locality 4The site is located near the intersection with Marigold Street, in an industrial area close to the M5 motorway. Surrounding development consists of single storey factory buildings of varying sizes. The site has a 26.21m frontage to Carrington Street. The side boundaries are 40.38m, and the building is set back approximately 9.08m from the street frontage. There is a mesh wire fence on the street frontage, with planting of Syzygium australe. 5There are two driveways on to the site from Carrington Street. The five car parking spaces required by condition 4 of the development consent are accessed from the driveway on the western side of the site, and are marked on the forecourt area in front of the building. The main part of the building contains an office, loading bay and factory area. The plan identified as Sheet 3 in condition 4 shows a brick wall with roller shutter on the eastern side of the building accessed from the driveway on that side of the site. That plan has an annotation requiring an area on that side of the forecourt identified as "holding area body shell for scrap area 4m x 5m approx 20 sq m max stack 2 high", to be "Relocate behind wall". The part of the site behind the brick wall and roller shutter has been roofed, and is used for processing, and some storage, of vehicles. 6The proposed modification is to install metal racks on both sides of the driveway entrance on the western side of the site. The rack on the western side of the driveway would store six vehicles above ground on the racks, and retain three car parking spaces for visitors underneath. The rack on the eastern side of the driveway would store six vehicles above ground on the racks, and retain two car parking spaces for visitors underneath. The proposed modification would also include a recycling scrap bin in the front forecourt area.

Planning controls 7The site is zoned 4(a) General Industrial under the Bankstown Local Environmental Plan 2001 (the LEP). Clause 11(3) of the LEP provides: (3) The consent authority may grant consent to development only if it has had regard to: (a) the general objectives of this plan, and (b) the objectives of the zone in which it is proposed to be carried out, and (c) the other provisions of this plan. 8The objectives of the LEP are provided in cl 2, and relevantly include "(a) to regulate development in accordance with the following principles: (i) new buildings should be designed to achieve: (A) good urban design, and 9The objectives of the 4(a) General Industrial zone are specified in cl 51: (1) The objectives of Zone 4 (a) are: (a) to permit primarily industrial uses or uses which are inappropriate in other zones, and (b) to limit retail development, except where: (i) it is ancillary to an industrial use of land, or (ii) it services the daily convenience needs of the local workforce and does not have an adverse impact on the viability of the business areas of the City of Bankstown, and (c) to promote a high standard of: (i) building design (particularly along arterial roads), and (ii) environmental management, energy efficiency and resource conservation, and (d) to allow bulky goods salesrooms or showrooms only where they will not have an adverse impact on the viability of the business areas of the City of Bankstown. 10Clause 52 of the LEP relevantly provides: 52 Development in the Industrial zones (1) This clause applies to land within Zone 4 (a) or 4 (b). (2) Before granting consent for development on land to which this clause applies, the consent authority must take into consideration the following matters: (a) whether the proposed development will provide adequate off-street parking, relative to the demand for parking likely to be generated, (b) whether the site of the proposed development will be suitably landscaped, particularly between any buildings and the street alignment, (c) whether the proposed development will contribute to the maintenance or improvement of the character and appearance of the locality, (d) whether access to the proposed development will be available by means other than a residential street but, if no other means of practical access is available, the consent authority must have regard to a written statement that: (i) illustrates that no alternative access is available otherwise than by means of a residential street, and (ii) demonstrates that consideration has been given to the effect of traffic generated from the site and the likely impact on surrounding residential areas, and (iii) identifies appropriate traffic management schemes which would mitigate potential impacts of the traffic generated from the development on any residential environment, (e) whether goods, plant, equipment and other material used in carrying out the proposed development will be suitably stored or screened, (f) whether the proposed development will detract from the amenity of any residential area in the vicinity, (g) whether the proposed development adopts energy efficiency and resource conservation measures related to its design, construction and operation. 11The Bankstown Development Control Plan 2005 (the DCP) applies to the site, and relevant provisions are contained in Part D6-Industrial Zones and Part D8-Parking. 12The Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment (GMREP 2) applies to the site.

Issues 13The Council contends that the modification cannot be approved because the development as proposed to be modified is not of minimal environmental impact as required by s 96(1A)(a) of the Act, and because the development as modified in not substantially the same as the development for which development consent was originally granted, as required by s 96(1A)(b) of the Act. The Council further contends than even if approval could be granted, it should be refused because it has not been demonstrated that car parking can be provided under the proposed storage racks; the development is inconsistent with the objectives of the LEP, the objectives of the 4(a) General Industrial Zone, and the requirements of cl 52 of the LEP; the proposed storage racks forward of the building line will have an unacceptable visual impact on the streetscape; and the proposed development is not in the public interest and would create an undesirable precedent. 14The Council's Statement of Facts and Contentions included a contention that insufficient information had been provided to enable the proposal to be implemented if approved with certainty, namely that the submitted drawings were not to scale and lacked sufficient dimensions for accurate assessment, and that insufficient information had been provided to demonstrate that the car parking spaces proposed under the storage racks would satisfy the design requirements under AS 2890.1:2004. The applicant provided additional drawings on the day before the hearing (exhibit A).

Evidence 15The hearing commenced on site with a view of the site, and included Carrington Street to the intersection of Fitzpatrick Street and part of Fitzpatrick Street. At the invitation of the parties, after leaving the site at the conclusion of the view, I observed the continuation of Carrington Street to Violet Street and then Gordon Parker Street as far as Queen Street. 16Expert planning evidence was provided on behalf of the applicant by Mr Kerry Nash and on behalf of the Council by Mr Sindhu Kaphle. Mr Nash and Mr Kaphle prepared a joint report (exhibit 4) and gave oral evidence. 17The applicant in this appeal, Mr Nameh Salameh, gave evidence on site as to the operation of the business. His evidence was that vehicles are kept on the forecourt at the front of the site until they are photographed and documented; then they are taken into the area behind the roller shutter where oils and other liquids are drained, and parts and items of value are removed. After this processing, the vehicles are presently stored on the front forecourt awaiting collection by scrap metal operators, who collect usually once or twice a day. The intention is that vehicles will not be stored on the racks until after they have been drained of oils and other liquids.

Representation of the applicant 18The Class 1 application to the Court was filed on 5 July 2013 by Mr Ross Creighton, who provided a document signed by Mr Salameh consenting to Mr Creighton acting as agent in the appeal and stating that he had been provided with information referred in rule 7.7(1) of the Land and Environment Court Rules 2000 (the LEC Rules). By letter dated 8 July 2013 addressed to the Registrar Mr Creighton sought leave pursuant to s 63(2) of the Land and Environment Court Act 1979 (the Court Act) "to appear at all Court dates from the first Directions Hearing to the final Hearing of this matter". 19On 2 August 2013, at the first Directions Hearing, the Acting Registrar granted leave for Mr Creighton to appear as an agent up to the date of the hearing. The note on the file cover records that the Acting Registrar advised Mr Creighton that "he would need to make further application at hearing and that leave can be revoked at any time". The Acting Registrar made orders in accordance with the short minutes of order filed in Court setting the matter for hearing on 28 August 2013, and making directions relating to expert and other evidence. 20By letter dated 16 August 2013 addressed to the Registrar Mr Creighton sought leave "to appear in the above matter from the hearing listed for 28 August 2013 until finalisation of this matter, including the instruction of experts and Counsel and the taking of any steps in between all court dates from the date of hearing until finalisation of this matter". The letter continued: I note that a town planning expert for the applicant was briefed in this matter prior to my engagement as agent by the applicant. Counsel was briefed in this matter following my engagement as agent by the applicant and prior to the filing of the Class 1 Appeal Application commencing proceedings in this matter. 21The letter went on to state that Mr Creighton had provided the applicant with information as specified in rule 7.7(1)(a)-(g). 22On 21 August 2013 the Assistant Registrar wrote to Mr Creighton advising that he could renew his application for leave to appear as an agent at the commencement of the hearing before the Commissioner. 23Mr Creighton was present at the site view, as were Ms Lee-May Saw, barrister, and Mr Kerry Nash. At the commencement of the hearing in Court after the site view Ms Saw confirmed that she has been directly engaged by the applicant, with a brief provided by Mr Creighton. I invited Mr Creighton to address his application for leave to act as agent as foreshadowed in his letter of 16 August 2013. Mr Creighton stated that he had provided the information required by rule 7.7(1)(a)-(g), that he understood the obligations imposed by s 56 of the Civil Procedure Act 2005 including the requirements to participate in the court processes and comply with the court's orders, and that he had experience in Land and Environment Court matters over many years. When asked what he would contribute to the conduct of the hearing and the proceedings, given the representation of the applicant by a barrister with experience in this jurisdiction and with the assistance of expert evidence provided by Mr Nash, Mr Creighton stated that he could add nothing further than his letter of 16 August 2013. 24I refused leave for Mr Creighton to appear as an agent for the applicant and advised that I would provide my reasons for doing so in my judgment determining the appeal. My reasons are as follows. 25Section 63(2) of the Court Act provides that a person may not appear before the Court by an agent except with the leave of the Court. Section 63(3) provides: (3) In determining whether to grant leave for a person to appear by an agent the Court is to consider: (a) whether the agent has provided the person with the information required by the rules, and (b) whether granting leave is in the best interests of the person. 26Mr Creighton's letter of 16 August 2013 states that he has provided the applicant with the information which rule 7.7(1) states is required to be provided by an agent to the person for whom the agent wishes to appear. That information is: (a) that the person is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court, (b) that the person is under a duty to take reasonable steps to resolve or narrow the issues in the proceedings, (c) that the agent must not, by the agent's conduct, cause the person to be in breach of a duty referred to in paragraph (a) or (b), (d) that the Court may take into account any failure to comply with a duty referred to in paragraph (a), (b) or (c) in exercising a discretion with respect to costs, (e) that the Court may make a costs order against the person in proceedings to which rule 3.7 applies if the Court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful, (f) the knowledge and experience of the agent with respect to the type of matter that is the subject of the proceedings, (g) whether the agent proposes to charge for the agent's services and, if so, the agent's proposed written costs agreement, a written estimate of the likely total of the agent's charges and the likely disbursements to be incurred by the person. 27Whether the agent has provided this information is one of the matters which the Court is required to consider. Section 63(3)(b) also requires the Court to consider whether granting leave is in the best interests of the person. 28In Davies v Penrith City Council [2013] NSWLEC 1141 the Senior Commissioner discussed the amendment to s 63 of the Court Act that introduced the requirement for leave, and commented: 21 In my view, the matters mandated to be considered by s 63(3) do not constitute some limiting codification of the proper range of matters permitted to be taken into account in any s 63(2) determination of whether or not to grant leave. 22 For example, it would be relevant in any proceedings where such leave was sought, in my view, for any person constituting the Court to consider not only the competence of the proposed agent but also whether or not the Court could trust what was being put to it by that proposed agent. A further example would be whether permitting such an agency would further the overriding purpose for civil litigation contained in s 56 of the Civil Procedure Act 2005 (the Civil Procedure Act) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 29In my view it is not necessary to decide whether or not the matters listed in s 63(3) of the Court Act are exhaustive, or if not, what might be the limits of relevant considerations for the purposes of s 63(2) of the Court Act. The present circumstances are different to those considered by the Senior Commissioner in Davies. In these proceedings, Mr Creighton has had leave to appear as agent up to the date of the hearing, which includes compliance with the directions made on 2 August 2013. The applicant now has representation by a legal practitioner who has experience in this jurisdiction for the conduct of the hearing itself, including examination and cross examination of expert witnesses and the making of submissions. Mr Creighton could not identify how he would be able to add anything further to the conduct of the hearing, given the appearance of Ms Saw, and the participation of Mr Nash to provide expert evidence. In those circumstances, to permit Mr Creighton to appear would, in my view, simply add to the costs incurred by the applicant, for no apparent gain in terms of the conduct of the hearing so as to ensure the just, quick and cheap resolution of the issues raised by the appeal. I am not satisfied that granting leave is in the best interests of the applicant, and accordingly it is not appropriate to grant leave for Mr Creighton to appear as Mr Salameh's agent for the hearing until finalisation of the matter.

Jurisdictional issues 30The Council's first contention was that the Court has no jurisdiction to uphold the appeal and must refuse the modification application because the Court would not be satisfied that the development as proposed is of minimal environmental impact as required by s 96(1A)(a) of the Act. 31At the hearing, the Council accepted that the Court has power to consider the application in accordance with s 96(2) of the Act if it is not satisfied that the proposed modification is not of minimal environmental impact. The applicant's position was that the proposed modification is of minimal environmental impact, however, if required, he would seek to amend the application so that it is made under s 96(2) of the Act; that was not opposed by the Council. It was common ground that consideration under s 96(2) would raise not additional requirements, for example notification or consultation. 32Whether the consideration of this appeal is under s 96(1A) or 96(2), there are two central issues: first, whether as contended by the Council the development as modified is not substantially the same as the development for which consent was granted; and secondly, if it is substantially the same, whether, having regard to the relevant s 79C(1) matters as required by s 96(3), the modification should be approved. 33The second jurisdictional issue raised by the Council in its contentions is that the development to which the modification relates is not substantially the same development as the development for which consent was originally granted. 34The Council submits that the modification represents a significant increase in the number of vehicles that are stored on the site, and location of the waste bin in front of the building. The combination of the effect on visitor parking by the movement of vehicles in and out of the racks, the storage of waste in the outside bin, and the increased throughput because of the greater capacity to store vehicles, mean that the modified development is not substantially the same as that for which consent was originally granted. The applicant submits that all that is changing is that vehicle shells will be stored outside the building in the front setback rather than inside the building. 35Consideration of this issue requires both qualitative and quantitative comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. The test of whether the development is substantially the same requires assessment of whether the modification "does not radically transform the originally approved development": Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. The word "substantially" means "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992); North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. 36The consent as originally granted approved the use of the premises for "vehicle dismantling and storage of spare parts", and specified in condition 13 where the storage of car bodies as part of the process of vehicle dismantling was to take place. The planners observed on their inspection of the premises that 14 vehicle wrecks were stored within the premises, 12 were stored within the front setback area, and two were stored on the street (exhibit 4, 2.1). It was apparent on the view that the area behind the roller shutter originally intended for storage is primarily being used for processing of vehicles, and that the front setback area is used for storage of vehicle wrecks. The consent as originally granted did not permit storage of cars in front of the building; the proposed modification would permit that. The relevant comparison is between the consent as originally granted and the proposed modification, and not a comparison with the present operation contrary to condition 13. By permitting the storage of car bodies on the front setback area, the proposal increases the number of car shells that can be stored on the premises before and after processing. The modification would thereby increase the capacity of the site for vehicle processing when compared with how it would operate if in accordance with the conditions of the consent which required all storage of vehicles to be located within the building or behind the brick wall. 37On balance, I do not regard the change in location of the storage, the change in location of the storage bin, or the increase in number of cars that can be processed as a result of the increased storage capacity, as representing a radical transformation of the original consent, either quantitatively or qualitatively. While there is a change in the external appearance of the development, the change is not as extensive as that in Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244, relied upon by Mr Kaphle, where Talbot J held that the fact that the aesthetic or external appearance of the building would change at a significant point, namely at street level, and the characterisation of the use at that level would also undergo radical change, meant that the development as modified was not substantially the same as that originally approved. I am satisfied that the development to which the consent as modified relates is substantially the same as that for which the consent was originally granted, and there is power to approve the modification. Whether or not the effect on visitor parking, and the impact on visual amenity and streetscape, are acceptable, is a matter for consideration on the merits.

Assessment of the merits 38The Court is required, in determining the application, to consider any s 79C(1) matters that are relevant to the development. Clause 11(3) of the LEP requires consideration of the objectives of the LEP, the objectives of the 4(a) General Industrial zone, and the other provisions of the LEP, which includes the considerations required under cl 52 of the LEP.

Car parking 39The first of the issues raised in the Council's contentions relates to the provision of car parking on the site. The Council contends that it has not been demonstrated that the required car parking for the development can be provided underneath the proposed storage racks, and that the Court cannot be satisfied that the proposal provides adequate on-site car parking spaces in accordance with cl 52(2)(a) of the LEP. 40It was common ground that five car parking spaces are required for the development in accordance with the DCP, and that the five car parking spaces marked on the forecourt at 2.5m wide comply with the relevant requirements of AS 2890.1:2004 and the Council's DCP. The issue is whether there would be adequate clearance within and underneath the racks to retain the five car spaces required by condition 4. The applicant submits that the five car parking spaces are retained in the proposal. The Council submits that the evidence is that the proposed structure would not provide five parking spaces that comply with AS 2890.1:2004, and that the proposal for narrow spaces underneath and surrounded by wrecked cars would not in any event be used by visitors, thus not achieving adequate car parking. 41Details of the proposed racking are provided in a letter from XS Racking Pty Ltd 19 October 2012 (exhibit C). The racks are to be 4267mm high, with overall depth of 2440mm, and each bay being 2591mm "clear entry" to give a total width of 8160mm. The materials are "a combination of hot dipped galvanised beams and Cold Rolled galvanised uprights". The letter notes that the existing ground coverage is a mixture of cement and bitumen, and four concrete plinths would be needed to support the frames. 42Based on the dimensioned drawing provided by the applicant on the day before the hearing (exhibit A), Mr Kaphle provided a plan showing the area that needs to be clear of any columns, walls etc to comply with Fig 5.2 of AS 2890.1:2004 (exhibit 5). Mr Kaphle's evidence was that the space between the upright columns would need to be 3m wide to provide a design envelope for structural elements to be clear of all four side doors of a parked vehicle. Mr Nash did not dispute Mr Kaphle's application of AS 2890.1:2004, however in his opinion vehicles would be able to manoeuvre safely under the racks. He has telephoned the supplier, who has informed him that racks with 2.743m clearance are available. There are also racks 3.810m wide, however they would not fit on the site. 43The applicant submits that the evidence of Mr Nash should be accepted, on the basis that he has considered this particular development; however if the Court is not satisfied that the clearance of 2.591m is adequate, the applicant would consider adopting the 2.743 wide racks. 44The evidence before me does not provide any basis for departing from the requirement in Section 2 of Part D8 of the DCP, reflected in condition 4 of the development consent, to provide five car parking spaces. Neither the proposed 2.591m nor alternative 2.743m wide racks comply with the 3m design envelope specified in Figure 5.2 of AS 2890.1:2004. Section 5 Additional Requirements for Car Parking Structures in AS 2890.1:2004, as stated in 5.1, "specifies particular requirements for the design of car parks in structures". The general principle is stated (at 5.2) to be that the design envelope around a parked vehicle which is to be kept clear of "columns, walls or other obstructions". The reference to "other obstructions" would clearly include the metal upright posts, some on concrete plinths, contemplated in this application. The DCP incorporates the design envelope provided in Figure 5.2 of AS 2890.1:2004 in Part D8 cl 5.5 and Appendix 6. I am not persuaded that the evidence before the Court provides a justification for departure from these provisions. Whether or not it might be physically possible for a vehicle to be manoeuvred safely in and out of the car parking spaces underneath the racks, on the minimal information provided and in the absence of detailed plans and confirmation by swept path diagrams, I am not satisfied that the proposed modification can provide five car parking spaces on the site. That conclusion makes it unnecessary to determine whether, as a practical matter, visitors to the site would be prepared to park their vehicles underneath stored car bodies. I am not satisfied that the development as modified would provide adequate off street parking, in accordance with the consideration in cl 52(2)(a) of the LEP.

Visual and streetscape impacts 45The Council contends that the proposed storage racks forward of the building line will have an unacceptable visual impact on the streetscape, and that it is inconsistent with the objectives of the LEP, the 4(a) General Industrial zone, and cl 52(2) of the LEP. 46The site is one of a group of four buildings on Carrington Street which it was agreed were built at approximately the same time, in the 1950s or 1960s, in similar style, and with similar front setbacks. Based on the view, which extended along Carrington Street to the east, I do not agree with Mr Nash that the streetscape can be described as poor quality with no redeeming features. I accept the evidence of Mr Kaphle, which was consistent with the view, that that part of Carrington Street before it becomes Gordon Parker Street, on its northern side, is relatively consistent in terms of heights and style of buildings and front setback distances. There are some mature trees, and some grassed areas, and generally, other than the two buildings on the southern side of Carrington Street opposite the site, little landscaping. There was a diversity as to uses of front setbacks, with some being used primarily for car parking while others were used for storage purposes. However, none of sites seen on the view had structures or uses occupying the whole or substantial parts of the front setback area, or to the height contemplated in the present application. Mr Nash included in his assessment of street character the site on the corner of Carrington Street and Fitzpatrick Street, on which there are several shipping containers stored, some stacked. Mr Kaphle's evidence was that that storage of containers appears to be contrary to a staged development consent granted for that site. 47I am satisfied that for the purposes of assessment of the character and appearance of the locality under cl 52(2)(c) of the LEP, the relevant locality to consider is that constituted by that part of Carrington Street on which the site is located to the intersection of Fitzpatrick Street; beyond that intersection, there is a significant contrast with those sites fronting Gordon Parker Street, being, on the evidence of Mr Kaphle, predominantly secondary frontages for sites fronting Daisy and Violet Streets, and attributable to the creation of Gordon Parker Street when the M5 Motorway was built and Carrington Street was split. 48Part D6- Industrial Zones of the DCP includes Section 5 - Urban Design. The objectives include (b) "to encourage building facades and corner allotments to add visual interest to the streetscape"; and (d) "to have façade designs and building footprints that integrate into the overall building form and enhance the desired contemporary street character". 49The planners agreed that height of the proposed racks would be approximately 4.2m, and if the vehicle on top were a 4 wheel drive that would reach a height of approximately 5.6m, which is approximately the level at which the façade of the building steps down. Based on that evidence and the plans in exhibit A, I am satisfied that given the height, and depth of the stacks, they would occupy the substantial part of the front setback. Once car bodies are stored on the racks, based on the photograph provided in attachment C to the planners' joint report, much of the front façade of the building will be obscured. That is in significant contrast to the appearance of other premises in the locality, where the front setbacks were generally used for car parking or minor storage purposes, and provide an open zone between the building and the street, and where there are no similarly large structures as close to the street frontage. 50Mr Nash's evidence was that the proposed racking system would "introduce a point of visual interest when filled with car bodies that would not be distracting or disturbing to a viewer" (3.4.2.13, exhibit 4). In oral evidence Mr Nash maintained his opinion that the storage of wrecks would add visual interest, on the basis that each wreck has a story, and there is different damage to each vehicle. I prefer the evidence of Mr Kaphle, which is supported by the photograph in attachment C and is consistent with the view, that the proposed racking structure is not integrated with the overall building design, and would present poorly to the street (3.4.2.15, exhibit 4). 51In the context of the height and depth of the proposed structure, its dominance of the front setback area, and its intended use of storage for vehicle bodies, I am not satisfied that the proposed development would contribute to the maintenance or improvement of the character and appearance of the locality, as identified in cl 52(2)(c) of the LEP. 52The applicant relies on the screening provided by the planting of Syzygium australe along the street frontage, based on information provided for that species indicating that it should reach a screen height of 2-5m, and screen width of 1-2m, and would "grow to 8m if left untrimmed" (exhibit B). Mr Nash's evidence was that these trees are traditionally used in hedges and as a landscape screen and that the growth since they were planted in 2012 has been significant (3.4.2.12, exhibit 4). The planners agreed that the planting on the street frontage would provide landscaping, consistent with cl 52(2)(b) of the LEP. However, it is not clear that the planting would provide sufficient screening to overcome the significant adverse visual impact of the proposed structure and storage, given the height and depth of the proposed structures. At best it would, as submitted by the applicant, soften or serve as a barrier for some of the visual impact on the streetscape. 53Clause 52(2)(e) of the LEP requires consideration of whether goods and other material carrying out the proposed development will be suitably stored or screened. Having regard to the visual impact of the storage of car bodies at the front of the building, in the number, and at the height and depth, attainable by the proposed racks, I am not persuaded that even with some screening provided by the landscaping that it can be said that the goods and material used in the development will be suitably stored or screened.

Conclusion on the merits 54Having regard to the visual impact of the proposal on the streetscape and on the character and appearance of the locality, I am not satisfied that the proposal is consistent with the objective of the 4(a) General Industrial zone of promoting "a high standard of ... building design" (cl 51(1)(c)), and it is not consistent with cl 52(2)(c) or (e) of the LEP. The proposal does not provide adequate off street parking (cl 52(2)(a)). I agree with the Council that the inconsistency with the objectives of the LEP, and the unacceptable visual impact of the proposal, are such that the proposed modification should be refused. 55This conclusion makes it unnecessary to consider the Council's contention relating to precedent, other than to note that the risk of establishing a precedent which can be invoked by prospective developers of other land in the vicinity is a valid consideration (see Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75). It is also unnecessary to reach a concluded view on the Council's submission that there is a risk of oils or similar liquids leaking from the car bodies on to the forecourt area, which is not bunded, and contaminated stormwater affecting the Georges River Catchment contrary to the planning principles in the GMREP 2. The evidence before the Court did not establish whether it would be possible to avoid or minimise that risk, for example by way of condition requiring vehicles to be drained before being stored on the racks, and if so, how any such condition could be enforced.

Conclusion 56For the above reasons, the application to modify development consent DA 243/2012 should be refused. The orders of the Court are:

The appeal is dismissed.
Application to modify development consent DA 243/2012/1 relating to premises at 107 Carrington Street Revesby is refused.
The exhibits are returned except for exhibits 1, 3, A and C. Linda Pearson Commissioner of the Court 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: 18 September 2013

(1999) 106 LGERA 298

(2003) 129 LGERA 351

At a glance

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Judgment (12 paragraphs)

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Cases Cited (6)