Conclusion and findings
54There are primarily four matters that the Court must consider in the determination of the application and they are the weight to be given to the provisions of LEP2011; whether the development is consistent with the DFC and all other relevant provisions of LEP2000; whether the site is suitable for the proposed development and whether the grant of consent would be in the public interest. I am satisfied on the evidence provided that the other relevant considerations under s 79C of the Act are met.
55The fact that LEP2011 has commenced removes any doubt that the plan is both certain and imminent. The essential question is the weight to be given to that plan, and in this regard, guidance is provided in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 where at it states:
6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
56In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
57By dint of c1.8A of LEP2011, the proposed use remains a permissible use, however, in accordance with Blackmore it is necessary to determine whether the aims and objectives of that plan are achieved. Those aims and objectives are found in clauses 1.2 (Aims of the Plan) and the objectives for Zone IN1 as detailed at [25] and [26] above. Clause 2.3(2) requires a consent authority to have regard to the zone objectives when determining a development application.
58In determining whether the proposed development is antipathetic to or does not detract from those objectives or is inconsistent with or accords to the planning controls, I prefer the evidence of Mr Sanders who, whilst adopting a broad approach, has demonstrated that the development would not be contrary to those planning objectives. I do not accept Mr Ingham's opinion that the objectives require what would in effect be the sterilisation of that land for industrial and warehouse uses and ancillary service uses that only service the immediate locality.
59The aims of the LEP include the recognition of the role of Brookvale as a major centre and employment area for the sub-region, providing for a balance of development that caters for, amongst other things the welfare needs of residents and visitors maintaining a diversity of employment and services. It anticipates that development will result in quality urban design and does not have an adverse effect on streetscapes, public places or the natural environment. There is no dispute that the proposal satisfies these requirements and all of the relevant planning controls.
60With regard to the objectives of the IN1 zone, I also agree with Mr Sanders that the objectives are to be read as a whole and do provide for non-industrial land uses and that the objective of supporting and protecting industrial land for industrial purposes does not prohibit non-industrial uses. To do so would not allow the satisfaction of the objective that enables a range of compatible community and leisure uses and the provision of facilities and services to meet the day to day needs of workers in the area.
61Having regard to the aims of LEP2011 and the zone objectives, I find that the proposed development is not antipathetic or inconsistent with those objectives and will not detract from the achievement of those objectives nor undermine the planning intent of the controls contained within that plan. Whilst I give the plan significant weight because it has commenced, and in particular give consideration to the fact that the proposed use would be prohibited, that weight is not determinative in view of the fact that I have found the proposed development to be consistent with the objectives and planning intent for the locality.
62There are no contentions that the provisions of clause 12 are not met, other than whether the development is consistent with the G10 DFC. The State Policies referred to in the second respondent's contentions are not those policies referred to in Schedule 5 of LEP2000. I note that the council had considered the building height control and found the height of the proposed development to be acceptable.
63Mr Ingham says that because his search of the council's consent register has not revealed any approvals for Category 3 uses in Dale and Green Streets and the note to clause 12 states that Category 3 uses are generally inconsistent with the locality, the use is not consistent with the DFC for the locality. In his Expert Report, Exhibit B1, I note that he has left the important word "and" from the first sentence of the DFC so that it reads "The Brookvale Industrial West locality will remain an industrial employment centre......" rather than and "industrial and employment centre" (emphasis added). Much of Mr Ingham's evidence was on the basis of his view being that the area should be used only for industrial or warehouse purposes or for uses, if service uses, that are ancillary to industrial or warehouse uses. I do not agree and accept the opinion of Mr Sanders that the DFC contemplates a wide range of non-industrial uses and this is apparent from the council's planning approach since the adoption of LEP2000. Also, it is important that the note that Mr Ingham relies on does not form part of the plan and, if all Category 3 uses were inconsistent with the DFC then it would not be possible that any of those could be contemplated in a locality under any circumstances. Clearly, this is not the intention of the planning instrument.
64This is particularly demonstrated in the consents provided in Exhibit A1 which, in addition to warehousing and industrial uses, have provided for the occupancy of 18-22 Dale Street, the allowance of a Category 3 shop (Salvation Army premises 11 Dale St) and the use of premises for fitness centres, a youth centre, recreation facility and children's party centre within the G10 locality. These uses, whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre. I consider that the proposed medical centre would also be a development that services the locality and, like the recreation facility and the other non-industrial uses described above, would be used by both occupants of the industrial and warehouse developments and other developments within the locality but also draw from a larger catchment. I do not consider the DFC contemplates any constraint on the area from which persons attending any of the businesses within the G10 locality are drawn.
65I am satisfied that the design of the development incorporates landscaping that will soften the visual impact of the building. The site is not at an interface with a residential area, the closest residential area being to the north however, the activities to be undertaken will not adversely impact on the amenity of that area. The development would result in the consolidation of four adjacent allotments and there is no evidence that this would render any adjoining allotment unsuitable for development.
66Accordingly, I am satisfied that the development would be consistent with and is not antipathetic to the DFC for the G10 Brookvale Industrial West locality.
67The fact that it is a Category 3 use under LEP2000 requires additional considerations in accordance with the provisions of clause 15 of that plan. This requires the consent authority to consider a statement of environmental effects that includes the items listed in Schedule 15 of LEP2000 and the findings and recommendations of an independent public hearing into the application, including reasons for its recommendations.
68From the evidence provided, the public hearing required was held on 23 November 2011 and the Panel recommended to the JRPP that the application should be approved subject to conditions. In addition, the council's assessment report to the JRPP has considered the relevant matters listed in Schedule 15 of LEP2000. There are no contentions that the proper process of assessment has not been followed. Having regard to the assessment reports contained within the evidence, I am satisfied that proper regard has been given to those provisions and that a Category 3 use could be approved.
69The suitability of the site for the proposed development is an area in dispute. Mr Ingham considers that such a use should be in an area with garden surrounds and, if approved, the development is likely to constrain other industrial activities from being located in the IN1 zone. Mr Sanders says that the site is suited to its intended purpose and the design of the development has regard to the adjoining uses and will neither constrain those uses or be impacted by them. I note that there are currently a number of medical uses within the G10 locality and whilst these do not include day surgery operations, I am satisfied that those uses can function appropriately in the locality and will not restrain the achievement of the planning objectives of the industrial zone. The development meets its parking needs, provides for appropriate landscaping and has been designed to have regard to its location and neighbouring properties. There are no environmental constraints that affect the ability to develop the land and accordingly, having regard to the evidence provided, I find the site to be suited to use as a medical centre and, could, in the future, be adapted to industrial use, therefore, not prejudicing the objective of maintaining industrial land.
70I agree that the council's planning instruments are documents that must be considered in regard to contentions that concern the public interest. Having found that the development is consistent with the previous plan (LEP2000) and not antipathetic to the current local environmental plan (LEP2011), I also find that the development would be in the public interest. The fact that the development would now be a prohibited use in the IN1 zone is a matter that I have had regard to however, I do not find this fact determinative. Similarly, having regard to the strategic planning documents referred to by Mr Ingham, I consider, for those reasons outlined above, that the development would not be inconsistent with those directions.
71I place no weight on the evidence that the relocation of the current practice from the Warringah Mall to the site is a matter of the public interest. The consent that allows this use on that site will continue to run with the land and it is a matter for second respondent whether there are any other medical businesses established there. That is not a matter for the Court.
72With regard to the matters not in contention but required to be considered under s 79C of the Act, I rely on the council's assessment report and evidence provided during the hearing. Having regard to the detailed assessment of those matters, the evidence in relation to the contentions and the relevant planning controls, I am of the view that the development should be approved.