Salvation Army v Newcastle City Council

Land and Environment Court (NSW)|2000-03-03|Before: Pearlman J, Mr J

The applicant did not initially characterise the proposed development as an integrated rehabilitation centre. In its development application, it outlined the proposed development as relevantly being "hostel accommodation at 116 Lake Road" and "warehouse and distribution centre at 128 - 136 Lake Road (including ancillary retailing)". However, Mr T P Byrnes, consultant town planner, who gave evidence for the applicant, described the use of the site as being for the purpose of "an integrated rehabilitation centre with components including client accommodation, counselling and group therapy centre, staff accommodation, work therapy and recreation facilities". Not surprisingly, in those circumstances, Mr Maston, appearing for the council, urged the Court to take into account the fact that the applicant itself had not sought development consent for an integrated rehabilitation centre, and that this characterisation was a notion developed by its expert. I accept that the applicant genuinely wishes to combine residence and work in the Bridge Program because it sees that as a desirable therapeutic objective. But here the focus is on the characterisation of the use of the site for planning purposes rather than characterisation of its use in the applicant's rehabilitation programme (cf North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 at 353).

Mr Bingham, for the applicant, did not put its case on the basis that, if the purpose for which No 128 - 136 is to be used is found to be prohibited, then the development application should be severed, and, if the merit issues were satisfactory, development consent should be granted for the hostel accommodation on No 116. Rather the applicant's case was put on the basis that it seeks development consent for the whole of the proposed development, and that, so far as concerns No 128 - 136, it enjoys the benefit of existing use rights. I turn, therefore, to that issue.

The applicant claims that, before the commencement of the LEP, No 128 - 136 was used as a panel beating and spray painting business, and that accordingly the applicant enjoys the benefit of existing use rights in respect of that presently non-conforming use, which may, in accordance with the relevant statutory provisions, be changed to another use and which may be enlarged, expanded or intensified.

The starting point for a consideration of existing use rights are the relevant provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and of the Environmental Planning and Assessment Regulation 1994 ("the Regulation").

Section 107 of the EP&A Act relevantly provides that "… nothing in … an environmental planning instrument prevents the continuance of an existing use". The expression "existing use" is defined by s 106, so far as is relevant to the present case, as follows: 106 In this Division existing use means (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use,

Section 108 provides that the regulations may make provision in particular for the rebuilding of a building used for an existing use, the change of an existing use to another use, and the enlargement or expansion or intensification of an existing use. Relevantly, for the purposes of this case, the Regulation contains the following provisions: 40(1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) … (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

42(1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) … (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

The dictionary to the Regulation defines "the relevant date" as being, in relation to an existing use referred to in s 106(a), the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force.

Clause 43 of the Regulation provides that development consent is required for any change of an existing use to another use.

There is no issue in this case that the "relevant date" is 5 June 1987 being the date of the coming into force of the LEP which prohibited the existing use of No 128 - 136 for the purpose of a panel beating and spray painting business. There is also no issue that development consent was granted by the council prior to that date in relation to use for the purpose of a panel beating and spray painting business, and that that use is an "existing use" in accordance with the definition in s 106(a). The question that arises, however, is whether that existing use extended to the whole or only part of No 128 - 136.

The relevant facts are these. From about 1959 until 1993, the registered proprietor of No 128 - 136 was Mr D Matthews. He gave evidence that, in 1974, he leased one of the buildings on No 128 - 136, which he called a "brooder shed", to Mr J Schinfield for the purpose of operating a panel beating workshop. Mr Matthews' evidence was that Mr Schinfield used the brooder shed for a panel beating and spray painting business continuously from 1974 until about 1980/81. Around 1980/81, Mr Matthews leased the brooder shed to Mr D Black and Mr P Black also for the purpose of operating a panel beating and spray painting business. Mr Matthews said that during the whole of the period that Mr Schinfield and Messrs Black leased "the property" from him he used the remainder of "the land" for the grazing of livestock.

In January 1981, Mr D Black made a development application to the council, and, on 27 April 1981, the council granted development consent subject to conditions. The notice of determination of the development application stated that consent was given to "panel beating and spray painting workshop" relating to land which it described as "Lot Part 4, No. 136 Lake Road, Wallsend".

A copy of the development application, which was numbered 019/81, was in evidence. It comprised a completed application form and four accompanying plans. The land the subject of the development application was referred to on the application form as "Lot 4 Portion 9". The application form stated that development consent was sought for "use of existing building as a panel beating shop and spray painting". It also stated "Building all ready (sic) erected - 3 yrs - Jeff Shinfield". By reference to the description of the existing use of the "land", the application form was endorsed with the word "grazing" and, by reference to the existing use of the "building", the application form was endorsed with the words "panel beating".

The four accompanying plans were endorsed with the development application number 019/81. Each one contained the following relevant information:

(1) One plan was a contour map upon which the whole of "Pt 4" was outlined. (2) Another plan showed the owner as "D Mathews" and referred to the "total area" as 1.98 hectares. On that plan, the brooding shed was hatched, and an arrow pointing to it was endorsed with the words "Panel Beating & Spray Painting Shed". Another part of the plan, showing the area located between the brooding shed and Lake Road, was marked with crosses, and the plan noted that part as "parking area". A garage was shown as attached to the brooder shed. The other shed was delineated on the plan without any endorsement, and the house was delineated and marked "W B C". (3) The next plan again showed all three buildings, but against the brooding shed, called "fibro building", the plan contained an arrow with the words "panel beating shed". On this plan, the second shed, called "fibro garage", was delineated and against it was an arrow with the words "dismantling shed". This plan also showed a line running from north to south adjacent to the three buildings across which were printed the words "Part 4". There was some debate during the hearing as to whether this line was meant to show a fence line, thus delineating a separate area for the three buildings and their surroundings, but there was no evidence to show precisely what the line was meant to signify, and I have ignored it. (4) The last plan appears to be a sketch of the brooding shed. It contained the words "Existing building at 136 Lake Road Wallsend . In use and expected continued use as panel beating and spray painting place".

In 1993, Mr Matthews sold No 128 - 136 to Mr M J Jones, who gave evidence that he continues to carry on a smash repair business upon the land, which he described as "Lot 4 in DP 328834".

In Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 at 27, Meagher JA, by reference to three High Court decisions, noted the correct approach to the determination of whether or not existing rights exist at the relevant date in the following passage: It is also clear enough, on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; that land can be used for a lawful purpose without there being an actual physical use of it; that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose …

To this summary of the relevant factors, I would, with respect, add a qualification from the decision of the High Court in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270, where Walsh J stated, at p 278, that "[I]t seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose".

Furthermore, the determination of the existence of existing use rights must be made in the light of the relevant statutory provisions as a whole, as pointed out by Stein J (as he then was) in Mobil Oil Australia Ltd v Ku-ring-gai Municipal Council (1990) 70 LGRA 419 at 422. In that case, a non-conforming use of a service station was being carried out on one part of an allotment of land, although a dwelling house stood on another part of that allotment. In holding that existing use rights for the purpose of a service station applied to the whole of the allotment, Stein J relied upon a regulation which provided that a building or work used for an existing use could be rebuilt, if the rebuilding was "carried out only on the allotment or allotments on which the building or work was erected or carried out immediately before the relevant date". The relevant statutory provision has now changed. As I noted previously, cl 42 of the Regulation now provides that rebuilding must be carried out "only on the land on which the building or work was erected or carried out immediately before the relevant date" , and cl 42, in relation to enlargement, expansion or intensification, has a similar provision.

Another relevant factor to consider is the whether that part of the land which is not actually physically used at the relevant date is held in reserve and intended for future use. That was a relevant fact in Steedman v Baulkham Hills and Mobil v Ku-ring-gai and it was noted by Barwick CJ in Eaton v Warringah in the following passage at p 274: Land which is kept vacant for use as the needs of a business demand is not of necessity properly designated, in my opinion, as land not in existing use, but merely intended for future use. Much will depend on the extent of the integration with land in actual physical use and the nature of the business being conducted.

Turning now to the facts of this case, the determinative matters seem to me to be as follows:

(1) The land on which the existing use of panel beating and spray painting was carried out immediately prior to 5 June 1987 and indeed since 1974 was the land occupied by the brooder shed and its frontage to Lake Road. That was the only land which the owner of the whole of No 128 - 136 leased to the respective tenants for that purpose; (2) The development application sought consent to the use of an existing building for "panel beating and spray painting". That existing building was delineated on the accompanying plans as being the brooder shed and its frontage to Lake Road. The fact that it was an "existing" building was noted twice, once on the development application form and once on one of the accompanying plans; (3) The development for which consent was granted was "panel beating and spray painting workshop". The reference to "workshop" can be understood, having regard to the development application and its accompanying plans, as the brooder shed and its frontage to Lake Road. Despite a general reference to "pt Lot 4", the development consent must be regarded as relating to that part of "pt Lot 4" which comprised the brooder shed and its frontage to Lake Road, since the accompanying plans make it clear that no use of any other part of "pt Lot 4" was contemplated; (4) Consistently with that construction of the development consent, the development application showed that the remainder of No 128 - 136 Lake Road was used for the purpose of grazing, and that fact was confirmed by the evidence of Mr Matthews.

Those facts would not warrant a finding that the whole of No 128 - 136 was used for the purpose of panel beating and spray painting. The identification of the brooder shed and its frontage to Lake Road as the land to which existing rights attach does not require a detailed investigation and a complicated dispute of facts. Nor could it be said that the whole of No 128 - 136 should be regarded as a unit simply because it formed one allotment of land in a subdivision. The facts are to the contrary. One distinct part of No 128 - 136 was used on the relevant date for the purpose of panel beating and spray painting and another part of No 128 - 136 was used on the relevant date for the purpose of grazing of livestock (as well, of course, as a dwelling house). Furthermore, there is no evidence that the part of No 128 - 136 which was not used for the purpose of panel beating and spray painting was being held in reserve for future expansion. Indeed, to adopt the words of Barwick CJ in Eaton v Warringah at p 273, the total area of No 128 - 136 "was disproportionate to the nature of the business intended to be conducted". It would beggar belief to imagine that the whole of 1.93 hectares was being held in reserve for the future expansion of a panel beating and spray painting operation which had for the previous 13 years been carried out in a single shed.

It follows from the findings I have made that the applicant has failed to establish existing use rights in relation to the whole of No 128 - 136, and that, accordingly, in view of the matters I have mentioned in par 17, development consent must be refused.

My previous findings make it unnecessary for me to deal with the merit issues which arose, but those issues were fully argued and it is appropriate that I express my findings in relation to them.

Clause 12(3) of the LEP provides, in the conventional manner, that development consent shall not be granted unless the council (and the Court on appeal) is of the opinion that the carrying out of the proposed development is consistent with the zone objectives.

The zone objectives are relevantly as follows: (a) to conserve suitable rural land for future urban development;

(b) to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, such as appropriate tourist orientated development and rural industry, provided that it is unlikely -

(i) to lead to the premature and sporadic subdivision of land which would render the economic provision of public utilities and community facilities more difficult or expensive once urban development takes place;

(ii) to inhibit the potential for urban expansion in selected areas, particularly the urban fringe;

(iii) to prejudice the present environmental quality of land within this zone; or

(iv) to generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road;

(c) to ensure that development in rural areas is carried out in a manner that minimizes risks from natural hazards, functions efficiently, does not prejudice other economic development and does not detract from the scenic quality of rural lands;

Mr J M Davies, who is a planner in the employ of the council, pointed out that these objectives are based upon a planning strategy for the future urban expansion of Newcastle. He showed how that strategy was reinforced by subsequent planning policies and instruments, such as the Hunter Regional Environmental Plan 1989, the Newcastle Urban Strategy 1989, the Blue Gum Hills Integrated Local Area Plan 1996, the draft Lake Macquarie Lifestyle 2020 A Strategy for Our Future 1999, and the draft Newcastle Local Environmental Plan 1999.

Under the last mentioned draft plan, the site is to be zoned "Urban Investigation 7(b)", and that zone will have the following objectives:

(1) identify and safeguard land which may be suitable for urban development subject to the appropriate environmental, social and economic assessments being carried out; (2) ensure that land which may be physically suitable for urban purposes is not prematurely developed; (3) ensure that land is not developed in a manner which would prejudice decisions relating to its long term use.

Mr Davies was of the opinion that "the maintenance of this site in a relatively 'undeveloped' state is preferable to the development proposed, from a strategic perspective". He considered that the proposed development was likely to fragment the area, and it generally did not comply with the zone objectives.

Mr Gardner Browne, who is a consulting town planner, gave evidence for the council. His opinion was that the proposed development would "frustrate" the objective of conserving land for future urban development, that it was not a development which required a "rural or isolated location" , that it would inhibit the potential for future urban expansion by inserting "a use into an attractive area of forest which could well serve as public open space in any eventual urban development of the area", that it would generate significant additional traffic, and that it would detract from the scenic quality of the area as rural land.

Mr Byrnes took a contrary view of the consistency of the proposed development with the zone objectives. His opinion was that the proposed development would accord with objective (a), "to the extent that it has a quasi urban component in an equally quasi urban setting". He considered that the character of the site and its surroundings, which I have earlier described, are not predominantly rural, and the proposed development would be suitably located in the area. He also considered that the proposed development, being "urban in character" , would not inhibit the potential of the site for future urban expansion, but would rather "complement the proposed future urban character". In his view, the proposed development would not have a significant traffic impact, nor would it prejudice the environmental quality of the site, or prejudice other economic development.

On the whole, I accept Mr Byrnes' evidence on this issue. Whilst his assessment of the consistency of the proposed development with the zone objectives was to some extent based on his characterisation of it as an integrated rehabilitation centre, I think that overall his assessment is more detailed and more specific on this issue than the assessments of both Mr Davies and Mr Browne. In preferring Mr Byrnes' evidence, I have taken particular note that the zone objectives do not require the site to remain in its undeveloped state - some type of development is contemplated by those objectives. I agree that the proposed development is itself urban in character, and I do not think it is antipathetic to an objective of conserving suitable rural land for future urban development. It retains the allotments without subdivision, and it does not seem to me, to adopt the language of the objectives of the 7(b) zone in the draft Newcastle Local Environmental Plan, that the proposed development "would prejudice decisions relating to (the site's) long term use".

For these reasons, I would not refuse development consent on this ground.

In terms of public interest, the proposed development has exposed two diametrically opposing views. Broadly speaking, the applicant, as an undoubtedly respected charitable organisation, claims that the proposed development will fulfil a real community need by implementing a desirable and worthwhile rehabilitation programme, and that it will have no negative social impact. On the other hand, there is considerable community opposition to the development, based on a concern, again broadly speaking, that it will increase criminal and anti-social activity in the community.

255 submissions opposing the proposed development were received by the council. Of those, the vast majority, some 234 submissions, were comprised of identical form letters setting out identical grounds of opposition, although some of the senders took the opportunity of adding concerns more specific to them at the foot of the letter. 21 letters were not form letters, but individual letters opposing the proposed development.

The opportunity for community consultation during the assessment of the development application may not have been well handled by either the applicant or the council. Ms T Postma, who is a social planner in the employ of the council, gave evidence about the process which was undertaken. Her evidence was that the process did raise negative and positive social impacts of the proposed development and provided a forum for the applicant to respond to community concerns, but the process did not, in her view, "result in a rationale, comprehensive analysis of the positive and negative impacts".

However, the Court was furnished with evidence from both sides about this issue. On behalf of the applicant, evidence was given by Major Sanz, by Major B F Watters, who is the chairman of the Australian National Council on Drugs, and by Mr T J Sams, a participant in the Bridge Program.

Major Sanz explained how it was intended to run the rehabilitation programme. There would be rules which the participants would be obliged to observe, and he furnished a copy of the rules which currently operate at the applicant's residential accommodation at Bridge House, Wickham and Carrington in Newcastle. In particular, the rules require participants to remain within the confines of the site, and they will be obliged to obtain permission to leave the site. He said that participants would leave the site to go to work which is off-site, or to attend remedial programmes, such as Alcoholics Anonymous or Narcotics Anonymous. Breach of the rules, and, in particular, reversion to the addictive behaviour, would require the offending participant's discharge from the programme. In such a case, the participant is assisted, by money and transport, to return to his home or other alternative accommodation.

Major Watters gave evidence that, in his experience, rehabilitation centres operated by the applicant have not had negative impacts, and in fact have generated testimonials from local communities and immediate neighbours. That kind of support was also the subject of a bundle of letters tendered by the applicant. One of those letters was from immediate business neighbours of the applicant's centre at Wickham who stated that they had never had any problems, and a similar letter was furnished by the local area commander of the Police Service, who, in relation to the applicant's rehabilitation centre at Morisset, stated that he was not aware of the Morisset or Toronto Police "ever being called upon to investigate offences committed within the community of Morisset by clients from these centres". There were also letters of support from local churches and church or related groups. One letter of importance was from immediate neighbours residing in Lake Road who said that, whilst they had initially objected to the proposed development, they decided to express their support after further consideration and after obtaining more information from the applicant.

Finally, Mr Sams gave evidence of his participation in the Bridge Program, and how it had enabled him to rehabilitate himself from an alcohol addiction and return to the workforce.

The opposing point of view was the subject of testimony from eight members of the local community, Mr M P Roberts, Ms J A Noonan, Ms K T Peterson, Mr G J King (who is the principal of the nearby Macquarie College), Mr R W Tew, Mr H Pallister, Miss J M Piercy (who is an executive of the Committee of the Elermore Vale Wallsend Resident Action Group) and Ms C E Morris.

I mean no disrespect to them when I summarise their concerns rather than setting them out individually, but I do so because they had common themes. They all felt that the proposed development would be likely to result in the following adverse impacts:

· a decrease in the quality of life of the neighbouring residents; · an increase in anti-social behaviour in the community perpetrated by participants in the rehabilitation programme; · an increase in criminal activity in the community (such as break-ins), also perpetrated by the participants in the rehabilitation programme. In this connection, they were particularly concerned that some participants would be undergoing the programme voluntarily in lieu of receiving a gaol sentence, and some participants would have already served time in gaol; · a decrease in property values by reason of proximity of the proposed development; · a threat to the safety of the elderly and young children (this being, in particular, a community of retirees and young families); · a development which would be out of character with the area, particularly because the surrounding development is residential; and · a development which would itself provide a danger to its participants by reason of its proximity to hotels and clubs.

I can understand these concerns, and I accept them as being genuine and real. I do not accept that these concerns show extreme prejudice or simply a "NIMBY" syndrome. The persons who gave this evidence all did so in a rational and reasonable way, except Mr Roberts, who, I thought, made exaggerated and unjustified claims, although I accept that his concerns were fundamentally genuine and real.

I would, however, not be prepared to refuse the development application solely on the grounds which have been put forward by these residents. Their concerns are not borne out by the evidence. In particular, many of their concerns relate to a fear of the consequences of participants in the programme circulating generally in their community, but the evidence is that participants are not free to come and go as they please but are likely only to leave the site only in pursuance of particular appointments or obligations, or en route to their homes after being discharged from the programme. Furthermore, there is no evidence to show that the crime rate or incidents of anti-social behaviour will increase. The evidence put forward by the applicant is to the contrary and I would accept it. In addition I put some weight on the fact that no objections were made by the occupants of properties in the immediate surroundings of the site, but rather were made by persons whose residences, although in the neighbourhood, are separated from the site by a major roadway.

I have concluded that the development application should be refused on the grounds, in summary, that, properly characterised, the use of the site is for two independent purposes, one of hostel accommodation, and one of warehouses, and that the latter is a prohibited use in relation to which the applicant does not enjoy the benefit of existing use rights over the whole of No 128 - 136 Lake Road.

(1) The appeal is dismissed. (2) Development application No 98/2342 for hostel accommodation at No 116 Lake Road, Wallsend and warehouse and distribution centre (including ancillary retailing) at No 128 - 136 Lake Road, Wallsend, is determined by the refusal of consent. (3) The exhibits may be returned.

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48. 255 submissions opposing the proposed development were received by the council. Of those, the vast majority, some 234 submissions, were comprised of identical form letters setting out identical grounds of opposition, although some of the senders took the opportunity of adding concerns more specific to them at the foot of the letter. 21 letters were not form letters, but individual letters opposing the proposed development.

49. The opportunity for community consultation during the assessment of the development application may not have been well handled by either the applicant or the council. Ms T Postma, who is a social planner in the employ of the council, gave evidence about the process which was undertaken. Her evidence was that the process did raise negative and positive social impacts of the proposed development and provided a forum for the applicant to respond to community concerns, but the process did not, in her view, "result in a rationale, comprehensive analysis of the positive and negative impacts".

50. However, the Court was furnished with evidence from both sides about this issue. On behalf of the applicant, evidence was given by Major Sanz, by Major B F Watters, who is the chairman of the Australian National Council on Drugs, and by Mr T J Sams, a participant in the Bridge Program.

51. Major Sanz explained how it was intended to run the rehabilitation programme. There would be rules which the participants would be obliged to observe, and he furnished a copy of the rules which currently operate at the applicant's residential accommodation at Bridge House, Wickham and Carrington in Newcastle. In particular, the rules require participants to remain within the confines of the site, and they will be obliged to obtain permission to leave the site. He said that participants would leave the site to go to work which is off-site, or to attend remedial programmes, such as Alcoholics Anonymous or Narcotics Anonymous. Breach of the rules, and, in particular, reversion to the addictive behaviour, would require the offending participant's discharge from the programme. In such a case, the participant is assisted, by money and transport, to return to his home or other alternative accommodation.

52. Major Watters gave evidence that, in his experience, rehabilitation centres operated by the applicant have not had negative impacts, and in fact have generated testimonials from local communities and immediate neighbours. That kind of support was also the subject of a bundle of letters tendered by the applicant. One of those letters was from immediate business neighbours of the applicant's centre at Wickham who stated that they had never had any problems, and a similar letter was furnished by the local area commander of the Police Service, who, in relation to the applicant's rehabilitation centre at Morisset, stated that he was not aware of the Morisset or Toronto Police "ever being called upon to investigate offences committed within the community of Morisset by clients from these centres". There were also letters of support from local churches and church or related groups. One letter of importance was from immediate neighbours residing in Lake Road who said that, whilst they had initially objected to the proposed development, they decided to express their support after further consideration and after obtaining more information from the applicant.

53. Finally, Mr Sams gave evidence of his participation in the Bridge Program, and how it had enabled him to rehabilitate himself from an alcohol addiction and return to the workforce.

54. The opposing point of view was the subject of testimony from eight members of the local community, Mr M P Roberts, Ms J A Noonan, Ms K T Peterson, Mr G J King (who is the principal of the nearby Macquarie College), Mr R W Tew, Mr H Pallister, Miss J M Piercy (who is an executive of the Committee of the Elermore Vale Wallsend Resident Action Group) and Ms C E Morris.

55. I mean no disrespect to them when I summarise their concerns rather than setting them out individually, but I do so because they had common themes. They all felt that the proposed development would be likely to result in the following adverse impacts:

· a decrease in the quality of life of the neighbouring residents;

· an increase in anti-social behaviour in the community perpetrated by participants in the rehabilitation programme;

· an increase in criminal activity in the community (such as break-ins), also perpetrated by the participants in the rehabilitation programme. In this connection, they were particularly concerned that some participants would be undergoing the programme voluntarily in lieu of receiving a gaol sentence, and some participants would have already served time in gaol;

· a decrease in property values by reason of proximity of the proposed development;

· a threat to the safety of the elderly and young children (this being, in particular, a community of retirees and young families);

· a development which would be out of character with the area, particularly because the surrounding development is residential; and

· a development which would itself provide a danger to its participants by reason of its proximity to hotels and clubs.

56. I can understand these concerns, and I accept them as being genuine and real. I do not accept that these concerns show extreme prejudice or simply a "NIMBY" syndrome. The persons who gave this evidence all did so in a rational and reasonable way, except Mr Roberts, who, I thought, made exaggerated and unjustified claims, although I accept that his concerns were fundamentally genuine and real.

57. I would, however, not be prepared to refuse the development application solely on the grounds which have been put forward by these residents. Their concerns are not borne out by the evidence. In particular, many of their concerns relate to a fear of the consequences of participants in the programme circulating generally in their community, but the evidence is that participants are not free to come and go as they please but are likely only to leave the site only in pursuance of particular appointments or obligations, or en route to their homes after being discharged from the programme. Furthermore, there is no evidence to show that the crime rate or incidents of anti-social behaviour will increase. The evidence put forward by the applicant is to the contrary and I would accept it. In addition I put some weight on the fact that no objections were made by the occupants of properties in the immediate surroundings of the site, but rather were made by persons whose residences, although in the neighbourhood, are separated from the site by a major roadway.

58. I have concluded that the development application should be refused on the grounds, in summary, that, properly characterised, the use of the site is for two independent purposes, one of hostel accommodation, and one of warehouses, and that the latter is a prohibited use in relation to which the applicant does not enjoy the benefit of existing use rights over the whole of No 128 - 136 Lake Road.

(2) Development application No 98/2342 for hostel accommodation at No 116 Lake Road, Wallsend and warehouse and distribution centre (including ancillary retailing) at No 128 - 136 Lake Road, Wallsend, is determined by the refusal of consent.

Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 1994

CITATION : Salvation Army v Newcastle City Council [2000] NSWLEC 36 APPLICANT Salvation Army PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10624 of 1999 CORAM: Pearlman J KEY ISSUES: Development :- characterisation - existing use rights - consistency with zone objectives - public interest Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 Newcastle Local Environmental Plan 1987 Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270; Macquarie International Health Clinic Pty Ltd v University of Sydney and Anor (1998) 98 LGERA 218; CASES CITED: Mobil Oil Australia Ltd v Ku-ring-gai Municipal Council (1990) 70 LGRA 419; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344; Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 DATES OF HEARING: 14/12/99, 15/12/99, 16/12/99 DATE OF JUDGMENT: 03/03/2000

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