Land and Environment Court New South Wales Medium Neutral Citation: Chan v Bayside Council [2020] NSWLEC 1684 Hearing dates: 2-3 December 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application 2017/1152 for the construction of a three-storey building with a depot, office premises and a caretakers unit, and tree removal on Lot B DP 155707, also known as 5 Luland Street, Botany is refused. (3) The exhibits, except for Exhibits 1, 3, 6, A and B are returned. Catchwords: DEVELOPMENT APPLICATION – depot - office and caretaker unit – permissibility of ancillary uses Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Standard Instrument – Principal Local Environmental Plan State Environmental Planning Policy (Three Ports) 2013 Cases Cited: Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Shire of Perth v O'Keefe (1964) 110 CLR 529 Wym Pty Ltd v Sutherland Shire Council (1990) 69 LGRA 322 Texts Cited: Botany Development Control Plan 2013 Land and Environment Court of New South Wales, 'COVID-19 Pandemic Arrangements Policy' (March 2020) Merriam-Webster Dictionary (online version) Category: Principal judgment Parties: Kristie Chan (Applicant) Bayside Council (Respondent) Representation: Counsel: M Cottom (Applicant) P Brown (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/88124 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 2017/1152 by Bayside Council (hereafter the Council), which as amended seeks the construction of a three storey building with a depot, office premises and a 'caretakers' unit, and tree removal on Lot B DP 155707, also known as 5 Luland Street, Botany (hereafter the site). Background 1. The DA was lodged with Council on 7 September 2017, and subsequently notified to residents, with one (1) submission received in objection, citing issues relating to: accessibility; landscaping; amenity; parking; traffic; and ancillary nature of residential accommodation. 2. The applicant appealed against the deemed refusal of the DA with the Land and Environment Court (the Court), pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The parties agreed to proceed with the hearing of the appeal without a site view, and to rely on observations made by myself as the Commissioner of the (terminated) s34 conciliation held on 9 October 2019. The respondent advised the Court that one resident sought to make oral submission at the hearing, although he did not appear, and therefore the Court relies on the written submission tendered in evidence. 4. The approach taken by the Court in the hearing process is made with the agreement of the parties, consistent with the Court's COVID-19 Pandemic Arrangements Policy. The parties consented to the hearing proceeding remotely using Microsoft Teams software. 5. Evidence before the Court in this hearing relies on amended plans, written and oral expert testimony, relating to planning and acoustic contentions, site observations (from the conciliation conference), together with tendered documents providing context of the development, site and the local area. Written submissions were provided by both parties in summary of their positions in this appeal. 6. Prior to the hearing, the applicant sought leave to rely on amended architectural plans, tendered as Exhibit B. The Court (Registrar) granted leave to rely on these plans on 23 April 2020. In response, the respondent amended their Statement of Facts and Contentions (SoFC), dated 19 June 2020, tendered as Exhibit 5. 7. After the hearing, the parties provided a collated set of draft conditions of consent, which was filed with the Court on 7 December 2020, and becomes Exhibit 6, by agreement of the parties. The site 1. The site is a slightly irregular, rectangular shape, oriented east-west, and covering a total area of 452.3m2. The site is currently occupied by a hardstand area with no permanent structures and minimal vegetation. 2. The site has dual frontage of 12.19m to Luland Street (forming the western and rear boundary) and 16.825m to Hale Street (eastern and front boundary). The site has a lot depth varying between 30.6m and 39.47m. The northern and southern boundaries of the site adjoin existing industrial developments. 3. The proposed development is located within close proximity to Sydney Airport and Port Botany. The contentions before the Court in consideration of this appeal 1. In response to the amended plans and supporting documents relied on for the DA in this appeal, the Council's amended SoFC focuses on the following contentions: * permissibility of the office and residential accommodation (caretakers unit); * parking availability for the residential component of the development; * potential for internal amenity impacts to future residents of the site, particularly from aircraft noise; * potential for constraint to future industrial development, both on the site and within the local area; * precedence for allowing residential development in an industrial area; * sufficiency of proposed landscaping; * potential for construction noise and vibration affecting the industrial area; and * appropriateness of proposed contamination mitigation. 1. The respondent and applicant have each provided written submissions addressing the remaining contentions before the Court, which were filed with the Court on 7 December 2020. Relevant planning controls 1. The requirements of s 4.15(1) of the EPA Act, described below, are relevant for the Court's consideration,: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. The site is located within lands that are subject to the State Environmental Planning Policy (Three Ports) 2013 (hereafter the SEPP), pursuant to cl 5. 2. The site is zoned IN1 – General Industrial, pursuant to cl 14 of the SEPP, with the zone objectives described below (emphasis added) of consideration by the Court to grant consent to the DA under appeal: Zone IN1 General Industrial 1 Objectives of zone • To provide a wide range of industrial and warehouse land uses. • To encourage employment opportunities. • To minimise any adverse effect of industry on other land uses. • To facilitate and encourage port related industries that will contribute to the growth and diversification of trade through the port. • To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries. • To encourage ecologically sustainable development. 1. Depots are permissible by consent in the IN1 zone, and pursuant to cl 21 of the SEPP, office premises are also permitted if deemed in association with and ancillary to the (dominant) industrial use (being the depot in the proposed development). 2. In consideration of the DA under appeal, the parties draw the Court's attention to the controls of the Botany Development Control Plan 2013 (BDCP), and specifically the following sections: car parking (Part 3A); access and mobility (Part 3C); landscaping (Part 3L); and aircraft noise (Part 3J). 3. The parties specifically refer to the provisions of the BDCP with regards to the proposed caretakers unit, because the SEPP does not establish any relevant controls for residential accommodation in the local area. The parties however, recognise that the BDCP does not specifically apply to the site, pursuant to cl 6(1) of the SEPP. Evidence 1. The Court heard from the following experts in written and oral evidence at the hearing: * Planning – Ms Angela Lazaridis for the respondent. * Acoustic – Mr George Wei for the applicant; and Mr Graham Atkins for the respondent. Is the proposed development permissible? 1. The contention, as posed by Council, primarily relates to the proposed residential accommodation, referred to as a caretakers unit (the unit), and also to the office premises, which are prohibited, pursuant to cl 14 of the SEPP in the IN1 zone, as described below: Zone IN1 General Industrial 1 Objectives of zone • To provide a wide range of industrial and warehouse land uses. • To encourage employment opportunities. • To minimise any adverse effect of industry on other land uses. • To facilitate and encourage port related industries that will contribute to the growth and diversification of trade through the port. • To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries. • To encourage ecologically sustainable development. 2 Permitted without consent Environmental protection works 3 Permitted with consent Boat building and repair facilities; Business premises; Depots; Food and drink premises; Freight transport facilities; General industries; Jetties; Light industries (other than artisan food and drink industries); Neighbourhood shops; Office premises; Roads; Signage; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste or resource management facilities 4 Prohibited Any development not specified in item 2 or 3. 1. There is no dispute between the parties that the proposed depot component of the development is permitted with consent in this zone, and should be considered as the 'dominant' use. 2. It is well established that a consent authority, being the Court on appeal, when exercising the functions of a consent authority, can only grant development consent to development that is permissible, and not prohibited, under the applicable environmental planning instrument, being the SEPP for this DA. 3. The Court's approach to assessing whether a 'prohibited' development may be 'legitimised' as an ancillary use to become permissible , as proposed by the applicant, is described in Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 (Botany Bay judgement), where Preston CJ at [28] explains that: [28] 'A use of land can also be for two or more purposes. The purposes may or may not be conflicting. Non conflicting purposes have similarities in character. An example of non conflicting purposes are those which have a genus-species relationship: one purpose is a genus (such as "industries") and the other purpose is a species falling within that genus (a particular kind of industry such as "extractive industry" or "rural industry"). Conflicting purposes are different in character. Where land is used for two conflicting purposes, difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes.' 1. As relied on by the parties, in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at [160] (the Foodbarn judgement), Glass JA explores the requirements for the Court to consider a 'subservient' part of the development, as referred to in this DA as the 'ancillary use', as follows: [160] 'It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts ... Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed (at 161).' 1. The Court therefore considers there are two potentially prohibited components of the proposed development that must be assessed to determine the permissibility of the whole development that forms the DA, being: the proposed office premises; and the proposed (residential/caretakers) unit. The Court must determine whether the office and unit are subordinate (ancillary use) to the depot, which is the agreed dominant use. 2. Both the proposed office and unit are located on the (uppermost) first floor of the proposed development, which is directly above the depot, as shown in the amended plans (Exhibit B). The unit and the office share an adjoining wall and access stairway, although have a separate hallway entrance. 3. The ground and mezzanine levels of the proposed development contain the depot, which includes space for loading/unloading materials and the car parking spaces (on the ground floor only). The access to the depot is either from the driveway off Luland Street or the stairway accessed off Hale Street, which is has a shared entry and stairway with the office and unit above. 4. The parties agree that the office premises are prohibited, pursuant to cl 14 of the SEPP. However, they also agree that the office may consented to as part of the proposed development, that is form part of a permissible development, if it is assessed as directly supporting the depot, pursuant to satisfying cl 21, below: 21 Business premises and office premises in Zone IN1 Development consent must not be granted for development for the purposes of business premises or office premises on land within Zone IN1 General Industrial unless the consent authority is satisfied that the development is associated with, and ancillary to, port facilities or industrial uses of land. 1. Ms Lazaridis however considers that the proposed office does not satisfy the requirements of cl 21 of the SEPP to form part of a permissible development because the depot is neither a port facility nor an industrial use. She also considers that the separate entry of the office, which permits access without traversing the depot, makes the office a potentially separate use and due to its proposed size (14% area of the proposed development), it cannot be considered as ancillary. Therefore, cl 21 of the SEPP is not satisfied. 2. The applicant did not provide a planning expert that the Court could address on this issue. Mr Cottom states that the office space is not a separate identity and is associated with the depot. The depot accounts for the entirety of the development proposed on this site (dominant), and the other proposed spaces for the office and unit, will appear as ancillary in size. 3. The parties have not made very detailed submissions to the Court with regards to the permissibility of the office as part of the proposed development, as their focus appears to be on the permissibility of the proposed unit. 4. There is no definition of 'industrial' in the SEPP. The applicant however refers to the Dictionary in the Standard Instrument – Principal Local Environmental Plan (the LEP) for relevant definitions. To better understand the uses that relate to the industrial definition, I also turn to this same document for the definition of 'industry', which I apply in the context of the proposed development, as follows: industry means any of the following— (a) general industry, (b) heavy industry, (c) light industry, 1. The LEP also provides a definition of 'depot', that is not found in any other relevant regulatory documents. It defines a depot, as: depot means a building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building. 1. The parties agree, and I concur that the depot is permitted with consent in the IN1 zone. Based on the zone description in cl 14 of the DEPP, the depot is a permitted general industry use, and therefore is consistent with the 'industrial use of the land', as described in cl 21 of the SEPP. The depot is an industrial use, therefore, I find that cl 21 of the SEPP is relevant for consideration of the proposed development, and that an office premise can be assessed to form part of the development on the site, provided it satisfies the other requirements of cl 21. 2. None of the referenced regulatory documents provide a definition for 'ancillary' or 'associated'. Therefore, the Court refers to the Merriam-Webster Dictionary 9online version), as follows: "Ancillary: 'Subordinate or subsidiary; … providing aid or support in a way that supplements something else. In particular, the word often describes something that is in a position of secondary importance …' Associated: 'joined together often in a working relationship; related, connected, or combined together'" 1. In assessing whether the office premises are subordinate to the proposed (depot) development, as provided for in cl 21 of the SEPP, the Court must be satisfied of two tests, being that the proposed office premises are: associated with the depot; and ancillary to the depot. I accept that the depot is the dominant use proposed on the site. 2. I am not satisfied that there is insufficient evidence before the Court to determine how the office will function in support of and in association with the depot, or as Glass JA explains in the Foodbarn judgement 'inspires the use of' the depot. I cannot be satisfied, based on the evidence before me, that the office is directly associated with and functions ancillary to the depot. It appears, in design, as disconnected from the depot. The proposed development does not therefore satisfy cl 21 of the SEPP. I provide my reasons below. 3. I do not find that condition 80 in Exhibit 6 is sufficient to rely on to satisfy me that the office is and will remain in the future, both associated with and ancillary to the depot. The uncertainty that arises for the ancillary use of the office, held by the both respondent and the Court, cannot be addressed by a condition, particularly when the amended plans support doubt on the connectively of the office in direct function with the depot. 4. The stated intention of the applicant is to use the office (and the unit) as ancillary functions to the depot. However, intention is not enough to satisfy the Court, as explained by the Chief Justice Preston in the Botany Bay judgement at [25], '…The purpose of a development is objective in the sense that it is the end which is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534'. 1. The office is located on a different level, with a separate and potentially independent access. There is a physical disconnect between the office on the top level of the building and the operation of the depot on the lower levels. There is no surveillance capability of the depot from/to the office, i.e. no windows that could serve this purpose, and no obvious physical or operational connectivity between the office to the depot, except by a doorway through the common stairwell. The proposed design of the office does not 'inspire' or support the functioning of the depot, and is therefore not in association with the depot. 2. There is a clear physical separation of the office to the depot, that does not present as a distinctive association with each other. It is not sufficient to rely on the fact that because the office is located above the depot, and can be accessed from the depot by a doorway (via the common stairway). The association with the proposed industrial use of the site is not established. It is shown on the amended plans that the office has a separate entrance, is located on a separate level and has no physical, trafficable connection to the depot. The need for the office to be located on the top level of the building and separated from the depot operation was not explained to the Court. The office could have been located within the two levels that relate to the depot. The proposed design suggests that the office could equally operate independently from the depot, without any undue impact to the function of the depot, because it is physically separated. This creates further doubt in the mind of the Court as to the direct association of the office with the depot and its functionality as an ancillary use. 3. I am not satisfied that the proposed office premises are associated with or an ancillary use to the depot (industrial use), as required in cl 21 of the SEPP. I find that the proposed office premises that forms part of the proposed development on the site is therefore not permissible in the IN1 zone, pursuant to cl 14. I also find that the proposed office premises does not satisfy the objectives of the zone, and in particular 'To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries (emphasis added).' 4. The parties refer to Bignold J's judgement in Wym Pty Ltd v Sutherland Shire Council (1990) 69 LGRA 322 to consider the permissibility of the residential accommodation (the unit) on the site and within the IN1 zone. 5. The parties rely solely on case law to assess the subordinate relationship of the unit, as an ancillary use to the depot. They agree that, pursuant to cl 14 of the SEPP, the proposed unit as residential accommodation is not permissible in the IN1 zone. Also, that there is no separate provision for legitimizing the residential accommodation, such provided in cl 21 of the SEPP for the office premises, as assessed above. 6. The parties agree that the SEPP makes no provision for residential accommodation. The parties also agree that relevant controls to assess the planning, amenity and design aspects of a residential accommodation are found in the BDCP. They also accept that the BDCP is not a required regulatory tool for assessment on this site, and therefore is of limited weight in assessment of the DA under appeal, pursuant to s 4.15(1) of the EPA Act. 7. The question that remains before the Court is whether the proposed unit is subordinate in the proposed development and an ancillary use to the depot (which is agreed as the dominant use), and therefore forms part of a permissible development. 8. Ms Lazaridis claims that the unit is not subordinate or an ancillary use to the depot due to its size (35% of entire development), location in the building (being on the uppermost level) and by its design (spacious with excessive private open space for a caretaker). Further to this, as the applicant proposes to house the caretaker and family in the unit, she consider the unit will likely have an 'independent use' as a dwelling separate from the functioning of the depot. 9. Mr Cottom contends that the unit is ancillary (use) to the depot because it will serve to house the caretaker, whom owns and works on the site, provides onsite security to the depot, and also that the size of the unit is irrelevant to assess the ancillary nature of the unit to the depot. The unit is proposed as a one bedroom with a study, parking located within the depot and the size is proportional to the proposed depot. The space and design of the unit and the potential (family) for other occupants does not render it by design an independent use to the depot. 10. It appears to the Court that the unit has necessarily been designed to be isolated from the functioning of the depot, possibly to protect the amenity of future residents. This results in the unit being physically disconnected from the depot, both in appearance and by function. There is no perception, in plan or evidence, that supports the concept that the unit inspires or is ancillary to the use of the depot. 11. I also consider that the unit is a conflicting use to the dominant use of the depot, as described in [24]. The very presence of the unit on the site may in time result in constraints placed on the operation of the depot and other surrounding industrial developments to protect the health of the residents of the unit, such as from industrial; related noise, which was a contention heard before the Court. 12. To address the potential for amenity impacts to residents, there is a disconnection of the unit in character, design and function with the depot. The unit presents as an independent component of the development, and is not an ancillary use to the depot. The unit's separate entrance and floor level, lack of passive surveillance (of the depot) and the design supports independence of living, and does not suggest that the unit is subservient or subordinate to the depot. The common stairway and parking are the only points of connection between the unit and the depot, which do not sufficiently support an ancillary use. The unit does not complement in design or character to the depot. The unit appears as a separate and conflicting use to the proposed depot on the site, and likely within the (industrial) zone. 13. I find the proposed residential accommodation in this zone is not consistent with the objectives of the IN1 zone. There are no zone objectives that refer to residential accommodation, only to those that ensure the use of the industrial zone is complimentary and functional. The proposed unit is a conflicting use. Therefore, the zone objectives are not achieved by the p[proposed unit. 14. I do not consider the presence of an existing unit (described as a 'caretakers unit') that was previously approved by Council on a nearby development, at 1-3 Luland Street, is sufficient to be considered as a precedence for residential dwellings in this zone. I find that the intent of the IN1 zone objectives is to preserve the area for industrial uses including those that compliment it in association, and that a residential use on the site does not achieve this. 15. The SEPP makes it clear, by its provisions and objectives, that the industrial area surrounding the site is planned and designed for existing and future industrial uses. The lack of any provisions in the SEPP that relate to residential accommodation is a testament to this. The parties agree, and I concur, that the BDCP, which provides controls for planning of residential development, provides little to no weight in the assessment of the proposed unit on the site. 16. I find that there is a direct (planning) conflict between the proposed residential accommodation on the site and the industrial use in the zone, which corresponds with the uses not permitted in cl 14 of the SEPP. The evidence that supports the DA under appeal does not address/mitigate this conflict of the proposed residential use to the depot. 17. For similar reasons as expressed above in assessment of the office premises, I find that the proposed condition 81 in Exhibit 6 does not sufficiently overcome my concerns with regards to ensuring an ancillary use of the unit to the depot, particularly as I have already determined that the unit is not subordinate to the depot, and can potentially function independently without obvious changes to the layout of the development. 18. Based on my assessment of the evidence before me, I am not satisfied that the proposed unit and office premises, are either associated with, ancillary to or subordinate to the proposed depot. Therefore, the proposed development is not permissible in the IN1 zone, pursuant to cl 14 of the SEPP. 19. After consideration of the relevant matters, I am not satisfied that the provisions of the SEPP are sufficiently addressed, and therefore s 4.15(1)(a)(i) of the EPA Act is not demonstrated to grant consent to the DA under appeal. I am also not satisfied that the proposed residential accommodation component of the development is appropriate for the site, being located in a industrial area and the IN1 zone, and therefore I find that the proposed development is not suitable for the site, pursuant to s 4.15(1)(c). Conclusion 1. The proposed development has been assessed, based on the evidence before me, including the DA's (amended) supporting plans, documents, draft conditions of consent, expert reports and written submissions. 2. In determining this application, I find that the DA does not satisfy the requirements of the relevant instruments for assessment, namely the SEPP. After consideration of the matters relevant to s 4.15(1) of the EPA Act, I am not satisfied that the DA under appeal has addressed the relevant requirements of s 4.15(1)(a)(i), and that the proposed development, specifically the residential accommodation is suitable for the site, pursuant to s 4.15(1)(c). The reasons for my determination are principally because the proposed development, with respect to the office and residential accommodation are not associated with or ancillary to the depot, as the agreed dominant use. Therefore, the proposed development is not permissible in the IN1 zone. I also find that the relevant objectives of the IN1 zone are not achieved by the proposed development. 3. I have not dealt with the remaining contentions as posed in the amended SoFC, as I am not required to after finding the proposed development is not permissible. Permissibility is a fundamental test that has been failed to grant consent to a DA. Further to this, the contentions that remain unresolved relate directly to the proposed residential accommodation (the unit), which I find is not permissible in this zone. 4. Therefore, DA 2017/1152 is refused, pursuant to s 4.16(1)(b) of the EPA Act. Orders 1. The orders of the Court are as follows: 1. The appeal is dismissed. 2. Development Application 2017/1152 for the construction of a three-storey building with a depot, office premises and a 'caretakers' unit, and tree removal on Lot B DP 155707, also known as 5 Luland Street, Botany is refused. 3. The exhibits, except for Exhibits 1, 3, 6, A and B are returned. ……………………. Sarah Bish 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: 24 December 2020