Vigor Master Pty Ltd v Warringah Shire Council

CASES CITED: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

APPLICANT Mr J Hones, solicitor of Hones LA Hood Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms J Hewitt, solicitor of Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11212 of 2007 Vigor Master Pty Ltd v Warringah Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication. Background. 1 Vigor Master has appealed against council's refusal of a development application for the construction of a 2-storey self storage facility at the corner of Linden Ave and Bundeleer St, Belrose North.

2 The issues identified in this matter concern: o Whether the development is consistent with the Desired Future Character of Locality C8 - Belrose North statement. o Unsatisfactory design elements. o Noise amenity. o Traffic impacts. o Public interest. The site. 3 The site is described as Lot 2506, DP 752038 and is situated on the western side of Linden Avenue, to which it has an 85.7m frontage and total area of 1.64 ha.

4 The site has a cross-fall away from the street of approximately 10m from the SE to the NE corner. Vegetation clearing has been undertaken on the land.

5 The surrounding area contains a mix of rural/residential dwellings, nurseries, schools and a quarry. A waste disposal area is located to the west of the subject property. The proposal. 6 This proposal is for: o The construction of a 2-storey precast concrete wall and steel roof building for use as a self storage facility. o The building has a street elevation of approximately 28m, to which it has a 20m setback. The building depth is approximately 40m and it has a side boundary setback of 20m to the neighbouring property (Lot 2410). o The height of the building is 7.2m and it has a pitched roof line. o The total floor area of the building is 2208 square metres, which contains a total of 365 individuals storage spaces ranging in size from 1.2 square metres to 38.5 square metres. o There is an internal loading dock, which is accessed via a roller door in the southern elevation, from the perimeter road. o The perimeter road is in the order of 6.2m wide adjacent to the building and is of a one-way configuration. o The development incorporates a 30000 litre rainwater tank to collect stormwater and overflow drainage is to be directed to Linden Ave. o It is proposed to operate the development in accordance with a Plan of Management (POM). o The proposed hours of operation are:

Monday -Friday; 7.30am to 5.30 pm Saturday; 8 a.m. to 4 p.m. Sunday; 10 a.m. to 4 p.m.

Planning Controls 7 Warringah Local Environmental Plan 2000. The site is located within the Locality C8 -North Belrose. This LEP is based on 'place based locality planning' and the site is located within a 'rural/residential' type area. 8 The LEP provides a raft controls for development including: Part 2: cl 12 detailing matters to be considered before granting consent, and Part 4; contains the "General Principles of Development Control" * SEPP No 55 - Remediation of Land. * Warringah Development Control Plan. * Warringah Section 94A Development Contributions Plan. The evidence. 9 Detailed evidence was presented by: o Ms L Haidari; Council's senior development assessment officer (Ex 3) o Mr S Khoo; Council's development engineer (Ex 4) o Mr A Minto; Consulting town planner o Mr R Varga; Traffic consultant o Acoustic Dynamics; Acoustic assessment. 10 A number of residents expressed written and oral objections against the proposal and these have been considered.

11 It is apparent that the threshold issue concerns the proposals compliance with the DFC. Clause 12 of the LEP requires the consent authority to be satisfied as follows:

12. What matters are considered before consent is granted ? (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with: a) any relevant general principles of development control in Part 4, and b) any relevant State environmental planning policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with: a) the relevant requirements made by Parts 2 and 3, and b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. (3) In addition before granting for development classified as: a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement but nothing in a description on desired future character creates a prohibition on the carrying out of a development. 12 As the site is located in the Locality C8 - Belrose, the following DFC statement applies:

The present character of the Belrose North locality will remain unchanged except in circumstances specifically addressed as follows.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms and buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

Development will be limited to new detached style housing conforming with the housing density set standards set out below and low intensity, low impact uses.

A dense bushland buffer will be retained or established along Forest Way. Fencing is not to detract from the landscape vista of the streetscape.

Development in the locality will not create siltation or pollution of Middle Harbour. 13 This DFC statement provides for this area to basically remain unchanged, except in particular circumstances. It is apparent from the view that currently there is a mix of development comprising dwellings on larger rural/presidential type allotments, various commercial nurseries, schools and other establishments such as the riding school. It is also apparent that this locality is generally well vegetated, with housing and developments screened from the public domain.

14 The road access in this area is via 2-lane rural type roads, with unsealed shoulders, which contributes to the rural/residential character.

15 Accordingly, the controls indicate that this character of development is likely to remain and that any new development should be limited to detached style housing (with a density of 1 dwelling/20 ha), and/or other low intensity, low impact uses. Whilst there was some discussion that the construction of the DFC statement could infer the 'low intensity, low impact uses' may be connected with the stated 'new detached housing', I consider it can allow an appropriate, separate and independent use. Notwithstanding this, the control is very restrictive on the density of development envisaged.

16 The Court was informed that this land has the benefit of consent for a detached house, which has been partly enacted by clearing part of the property. The Council and resident's submissions are that this is the residential form appropriate type of development, to achieve consistency with character statement.

17 However, the proposal is classified as Category 2 development, and permissible providing it is "low intensity and low impact" and consistent with the DFC. Insofar as Ms Haidari does not consider the proposal is consistent with the DFC, this is based on her understanding of the following terms: Intensity - is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore "low intensity" would constitute a development which has a low level of activities associated with it.

Impact - is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape privacy, solar access etc. Therefore ' low impact' would constitute a magnitude of impacts such that was minimal, minor or negligible level and unlikely to significantly change the amenity of the locality. 18 Mr Minto also considered these terms and says that "in this instance reference to the term intensity of use relates to matters such as its nature, its scale and general extent of activities associated with it, while the term impact relates to its relationship to its surroundings." From his assessment, Mr Minto concludes that proposal will not result in any unreasonable impacts upon the amenity of adjoining properties or character of the surrounding areas, it satisfies the numerical development controls, and as the traffic generation is low intensity, then the proposal merits consent. 19 Relevantly, cl 18 of the LEP provides: 18 How will the built form of development be controlled ? (1) Built form will be controlled in accordance with the general principals of development control, the desired future character of the locality and the development standards set out in the Locality Statement. ( 2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality. (3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.

20 Consequently, any development proposal must also satisfy a qualitative assessment as well as the quantitative controls, so as to achieve a reasonable degree of consistency with the DFC for the locality. In this regard the Court was taken to a number of authorities by Ms Hewitt, whose submission was that the most relevant was the determination of His Honour Bignold J in Dem Gillespies v Warringah Council [2002] NSWLEC 224, when dealing with Locality Statements, said:

77. For the foregoing reasons, I am quite unable to accept that Applicant's argument that the word "consistent in its context in cl 12 (3) (b) means "not antipathetic". Rather I would hold that it has its ordinary and natural meaning (eg as in the Macquarie Dictionary: 1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc). 21 In this regard, reference was also made to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where the Senior Commissioner said:

24. Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. + Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. + Is the proposal's appearance in harmony with the buildings around it and the character of the street. 22 Accordingly, the DFC statement indicates to me that the consistency/compatibility requirement is best achieved by the preferred development that is limited to new detached style housing, which has a density in the order of 1 dwelling/ 20 ha, or other forms of low impact/intensity development. Whilst I accept that there are few, if any 20 ha lots in the locality, nevertheless this gives an indication of the type of low density residential development envisaged to minimise vegetation disturbance and blend with the landscape. It is apparent to me that higher priority is given to natural form over built form in this locality, so as to achieve 'low impact/intensity development'.

23 On this basis then, I am not satisfied that the proposal represents a 'low intensity, low impact use.' One of the critical factors in this case is the bulk and scale of the proposal and the resultant impact. I consider its 2-storey form will have significant visual impacts on the streetscape and not present as a low intensity use. In this regard, I accept and rely on Ms Haidari's following assessment;

The proposal will present as a large single mass of buildings when viewed from the public domain and the adjoining properties and the design is best described as a rectangular box with a shallow pitched roof and garage doors which dominate all facades. The building facades lack any significant articulation or modulation apart from windows and roller shutter doors. The unrelieved wall lengths are 28 and 40 metres respectively which are excessive and out of character with the locality. In my opinion the building resembles an industrial or warehouse building and would fit comfortably within the Brookvale Industrial area. The proposal also involves a significant amount of hard surfaces in the form of a road which encircles the building is not characteristic of uses which are intended to blend with the surrounding natural landscape 24 Ms Haidari concluded that:

The proposal would generate activities (i.e. vehicle, trucks, and trailer movements, loading and unloading, people activity movement of large and small equipments for commercial business and domestic use, etc) which are inconsistent with the requirement that can be defined as 'low intensity, low impact' use for them to suitable for the area;

The noise impact associated with the proposal will be far greater then what would be anticipated from a use which could reasonable be described as having a low level of intensity

The visual and streetscape impact of the proposal development is not considered to be 'low impact' in terms of the impact when viewed from the street, surrounding dwellings and distant public spaces;

Also based on the nature of self storage facilities that operate 7 days per week, such a use is neither suitable nor appropriate development for the non-urban locality. A search of the location and siting of similar development on the Northern Beaches, North Shore highlights the fact that such a use is compatible with an industrial locality, where the character, noise, traffic movement and other activities that are normally conducted at such premises are not going to have a significant impact on the amenity of the character of the area and the surrounding development 25 This assessment is consistent with the evidence of the existing residents of the area, who also consider the proposal not consistent with the DFC requirement for this locality. In this regard, I give reduced weight to the applicants submissions that due regard should be given to the intensity and impact of the nearby school and other "commercial type activities", because while they are part of the present character that will remain, they are not the form of the future development objectives, in my assessment of the DFC.

Design Features 26 The Part 4 Principles of Development Controls prescribe a number of relevant controls to achieve the stated objectives. Whilst the application demonstrates substantial compliance with these controls, nevertheless, I do not consider it is an appropriate form in its locational context. It proposes substantial bulk and scale due to its 2-storey form with front wall of 28m and side walls of 40m, which have little articulation. Whilst it complies with the maximum height control of 8.5m, this over the substantial building area of some 2000 sq m, which I do not consider represents a low visual impact or intensity of building, notwithstanding surrounding landscaping.

Traffic 27 The applicant presented expert evidence from Mr Varga that the proposed development could be assumed to generate 20 vehicles/hour during peak periods (noting that this is higher than the traffic generation rates identified by the Self-Storage Association of Australasia). Accordingly, he says that this is minimal and will not have any unacceptable traffic impacts in terms of road network capacity.

28 Whilst I accept this evidence, it still seems to me that this traffic generation to probably service 365 storage units represents a significant increase in traffic over than anticipated by a low-density residential use, in the rural/residential context. I consider this a neutral aspect of the proposal and not one, which would not result in its refusal, considered alone.

29 However, the proposal incorporates 10 designated, on-site carparking spaces, which I do not consider is a feature of a low intensity development. 30 An associated concern is the adjacent roadworks. Council contends that the road shoulder and drainage needs to be constructed to provide appropriate access and parking. Whilst I have reservations about the extent of this requirement, nevertheless an appropriate access/driveway is required to safely accommodate the commercial customers and I consider that substantial upgrading of the road character to an industrial / collector type specification (ie with 13m carriageway and K &G) this is not a preferred feature of the rural residential zone.

Noise 31 The applicant undertook noise assessment and concluded that as the proposed operating hours are essentially 'day-time' the proposal would comply with accepted noise criteria. I accept conditions of consent could cover this and do not consider this issue results in the refusal of the application.

Glare/Lights 32 The proposal incorporates perimeter security lighting on the building. Whilst this is to have a down focus, nevertheless I accept the concerns expressed that permanent night-time lighting will be apparent and this is not a desirable feature of the rural residential area. This permanent security lighting is required because there are no boundary/security fences proposed. I consider the proposed lighting would make a negative contribution to the character of the area. Conclusions. 33 Having considered the evidence, the submissions and undertaken a view, I am not satisfied that this development merits consent. In my assessment, it does not demonstrate reasonable compliance with the provisions of cl 12 of the LEP requiring development to be consistent with the desired future character of the locality.

34 I rely on the evidence of councils planner Ms Haidari, that this proposal is of excessive bulk and scale and does not represent a low impact, low intensity development, which is a major objective for future development in this locality. For the reasons stated, I consider this application should be refused.

Court Orders

1. The appeal is dismissed.
2. Development consent for DA 2007/520 for a self storage facility at Lot 2506 DP 75038 Linden Ave/Bundaleer Street, Belrose is refused.
3. The exhibits may be returned except for 1, 3 and A.

      R. Hussey
      Commissioner of the Court
      ljr

28/04/2008 - Correction of Legal Representatives on Cover Sheet - Paragraph(s) Cover sheet

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.