Land and Environment Court of New South Wales CITATION : Seahorse Securities Pty Limited v Warringah Council [2004] NSWLEC 378 APPLICANT: Seahorse Securities Pty Limited PARTIES : ACN 001 192 943 RESPONDENT: Warringah Council FILE NUMBER(S) : 10339 of 2004 CORAM: Lloyd J KEY ISSUES: Development Application :- merit considerations - inconsistency with the locality statement under the relevant environmental planning instrument - traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 Warringah Local Environmental Plan 2002 cl 12(3) CASES CITED: DATES OF HEARING: 15/06/2004; 16/06/2004 and 17/06/2004 EX TEMPORE 06/17/2004 JUDGMENT DATE : APPLICANT: Mr A E Galasso (barrister) SOLICITORS: Cowley Hearne LEGAL REPRESENTATIVES: RESPONDENT: Mr N Howie (solicitor) SOLICITORS: Wilshire Webb JUDGMENT: - 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Murrel C 17 June 2004 LEC No. 10339 of 2004 Seahorse Securitiers Pty Limited v Warringah Council [2004] NSWLEC 378 EX TEMPORE JUDGMENT 1 Lloyd J: This is an appeal under s 97 of the Environmental Planning & Assessment Act 1979 against the deemed refusal of a development application. 2 The appeal has been expedited. It is thus appropriate that a judgment be delivered immediately. It follows that the reasons may not be as complete or as detailed as I would otherwise prefer, but will be sufficient to indicate to the parties the basis of the decision. The Court concludes for the reasons which I will briefly describe that the proposed development should be refused. 3 The proposed development is described in the development application as a business park at No. 279 Mona Vale Road, Terrey Hills. The site has an area of about 1.69 hectares and extends from Mona Vale Road, to which it has a frontage of 41.48 metres, to Myoora Road to which it has a frontage of 71.385 metres. 4 The proposal is for 44 separate units in four buildings of two-storey construction, that is, 22 ground floor units and 22 first floor units, with each unit having a floor space of about 160 square metres. 112 car parking spaces are shown as being provided either at ground level outside the buildings, or in two basement car parking areas. The development application does not nominate any particular uses for the buildings but rather seeks consent for the erection of the buildings with separate development applications to be made for the various uses to be conducted therein. 5 The statement of environmental effects which accompanies the development application does, however, suggest the possible use of the units in a broad sense. It states: Separate uses are proposed on the ground and first floor levels of the building. The ground floor units are proposed as small warehouse/storage spaces and have loading docks providing access for delivery vehicles. Ancillary office space would be provided within the confines of the unit. Warehouses are nominated as a Category 3 use within the Locality. The upper levels are proposed to accommodate small-scale industrial uses with ancillary office space. Industry is likewise nominated as a Category 3 use. Total floor space is 6782m 2 , 3391 m 2 per level representing a floor space ratio of .4:1. 6 The reference to a Category Three use is a reference to the Warringah Local Environmental Plan 2000 ('the LEP") which is the applicable environmental planning instrument to which I now turn. The site is within Locality A4 - Myoora Road under that instrument. In the case of development classified as Category Three, the consent authority must be satisfied before granting consent that the development is consistent with the desired future character described in the relevant locality statement: cl 12(3). There is no doubt that the proposed development in the present case is Category Three development. Category Three development includes such uses as business premises, industries and warehouses. 7 The desired future character of Locality A4 - Myoora Road is relevantly described as follows: The Myoora Road locality will provide an environment for low intensity business, community and leisure uses which do not rely on exposure to passing trade for their continued operation. … 8 It can immediately be seen that the focus is on the use. In this case it calls for a low intensity business use. As previously noted no uses have been nominated for the various units within the development. It is envisaged that further development applications will be made for the particular uses of the various units once they are built. Although the particular uses have not been nominated for the various units within the development, the LEP requires that consideration be given at this stage to the likely intended use of the development. In this respect some assistance has been provided by the applicant. In a submission to a public hearing called to consider the development application the applicant's consultant stated: The subject development is a Category 3 development. It is so because it proposes to erect a number of buildings on the site which are most likely to be used in terms of the definitions of the Warringah LEP 2000 as 'business premises' but which may also be used as 'industry' and 'warehouses'. 9 The relevant definitions of these terms in the LEP are as follows: business premises means a building or place in which an occupation, profession, light industry or trade or banking activities is or are carried on providing a service directly and regularly to the public, but does not include a building or place elsewhere defined in this Dictionary. … industry means: (a) the manufacturing, assembling, altering, formulating, repairing, renovating, finishing, dismantling, transforming, processing or adapting of any goods or articles for commercial gain, or (b) the storing, handling or displaying of items (whether goods or material) which have been produced or manufactured for sale other than retail sale to the public from the building or place, but does not include an extractive industry, potentially hazardous industry or potentially offensive industry. … warehouse means a building or place used for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade. 10 In a report produced for the court by the applicant's consultant town planner, Mr C F Blyth, the following is stated: This development does not however seek consent for particular uses in the subject building, rather it seeks consent to the erection of the buildings in order to create a small business premises within which low intensity business regardless of category might establish in pursuit of the desired future character of A4 Myoora Road. 11 The applicant also suggests that the uses of the units will be similar to those in what is said to be a similar development in Holker Street, Silverwater. That is a development comprising 24 units of similar size to those in the present proposal. The applicant has supplied a list of the uses in that development. 12 The Court has considerable doubts, however, as to whether it can be said that the proposed development will attract similar uses to those in Holker Street. Firstly, the Holker Street development is known to be in an established industrial area which is much closer to the geographic centre of the metropolitan area than Terrey Hills which is on the fringe of the metropolitan area. Secondly, the Holker Street development does not have, as the Court understands it, separate upper storey units such as those in the present proposal. It is likely that the use of the upper storey units in the proposed development, which has generated much debate in the present case, will not necessarily be linked to those in the lower units. This appears to be confirmed by the statement of environmental effects to which I have referred. Moreover, access to the upper units is somewhat removed from the parking areas and those units can only be accessed by stairs. It seems to the court that that makes them less attractive for industrial or warehouse uses and more likely to be used for either small industrial purposes or as offices on their own. 13 It is said on behalf of the applicant that because the proposed units are relatively small in size they are likely to lead to low intensity uses. Both the town planning experts who gave evidence, Mr C F Blyth for the applicant, and Mr L Hunt for the respondent, appear to accept, however, that smaller units will not necessarily result in a lower intensity of use. The relatively small size of the units suggests that they are not suitable for bulk storage or bulk warehouse uses. Mr Hunt in particular stated that he would not contemplate a great deal of warehousing in these units. Moreover, given the absence of any goods access to the first floor units it is Mr Hunt's opinion that those units are more likely to be used for offices for accountants, surveyors, architects and the like, resulting in a high density of employees and a higher intensity of use. Having regard to the means of access to the upper units the Court is inclined to the view that Mr Hunt's observations are self-evident. 14 Similarly, Mr J Rudd, the traffic engineer called for the respondent, said that smaller units as proposed, and which would deal with smaller goods, does not necessarily result in fewer employees or less traffic generation. Again this seems to be a self-evident proposition. 15 The Court has thus concluded that it is not satisfied as required by cl 12(3) of the LEP that the proposed development of 44 units with 112 car spaces as proposed is consistent with the provision of an environment for low intensity business uses. In the Court's view this kind of development is more appropriate for an industrial area, the designed future character of which is defined in the LEP "industrial and employment centre incorporating warehouses and ancillary services uses", as distinct from the desired future character of the subject area. Such an area exists in Locality A3 - Terrey Hills Village, in Tepko Road, Terrey Hills. 16 This is sufficient to dispose of the appeal, but the Court is also uncomfortable about the proposal in the light of the submissions made by objectors to the proposed development. The Court heard from a number of objectors. Those objectors include the principal of Terrey Hills Public School. The only access to the proposed development would be from Myoora Road. Terrey Hills Public School is on the opposite side of Myoora Road. Both sides of Myoora Road are extensively used for parking by parents dropping off or picking up school children. A bus stop is also located adjacent to the school and another on the same side of the road as the subject land although a little to the north. The school principal expressed a concern, which the Court accepts, about increased traffic flow in the proximity of the school and at times which may coincide with peak traffic generation at the school. In particular there would be a need to provide a "no stopping" restriction on either side of the access driveway to the proposed development for some distance to allow for sight distances. 17 The applicant's traffic engineer, Mr C Hutchinson, suggests that "no stopping" restrictions ten metres on either of the proposed access driveway would be satisfactory. Mr Rudd says, however, that the sight distances, and hence the "no stopping" restrictions, should comply with the relevant Australian standard. Mr Rudd says that this requires that there should be "no stopping" restrictions for 39 metres south and 52 metres north of the proposed entrance driveway. Mr Hutchinson says that this would virtually eliminate all kerb side parking if applied generally to all entrance driveways. However, not all entrance driveways accommodate 112 vehicles. In any event there will be a loss of considerable kerb side parking which is at present heavily used by the parents of school children. 18 The Court notes that there is a previous consent for another use of the subject site but is unaware of whether or not it is intended to utilise that previous consent. The Court is only concerned with this appeal. I should add that the traffic considerations are not determinative in this appeal. The determinative factor in this appeal is the fact that the Court has not been satisfied as required by cl 12(3) of the LEP as to consistency with the locality statement. 19 It follows that the formal order of the court is that the appeal is dismissed. The exhibits may be returned. I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate 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.