Land and Environment Court of New South Wales CITATION : Satmell Holdings Pty Ltd v Holroyd City Council [2005] NSWLEC 267 APPLICANT Satmell Holdings Pty Ltd PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 11135 of 2004 CORAM: Hussey C Development Application :- Industrial warehouse - BCA fire access - traffic - amenity impacts KEY ISSUES: Environmental Planning and Assessment Act Holroyd Local Environmental Plan 1991 LEGISLATION CITED: Development Control Plan No. 1 Development Control Plan No. 3 Georges River Original Environmental Plan DATES OF HEARING: 08/03/2005, 20/05/2005 and 25/05/2005 DATE OF JUDGMENT: 05/25/2005 APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 25 May 2005 11135 of 2004 Satmell Holdings Pty Ltd v Holroyd City Council JUDGMENT Background 1 This appeal arises from council's refusal of a development application for the erection of an industrial warehouse and associated office at 219 - 225 Woodpark Road, Smithfield. It was refused for a number of reasons, from which the following issues were identified for the appeal. The issues were subsequently amended and are summarised as follows: * Fire safety, in terms of compliance with the BCA requirements for building of the proposed bulk and size; * Traffic/access, including manoeuvring area for large articulated vehicles; * Amenity impacts, including those raised by the neighbours 2 With regard to the traffic/access issue, the parties agreed to Mr C Hallam being appointed as the Court-appointed expert and he prepared a detailed report, resulting in the parties accepting his recommendations for conditional consent, which resolved this issue. The site 3 The subject site at 219 - 225 Woodpark Road, is described as Lot 1, DP 541087 and has a total area of 11845 sq m. 4 It has a street frontage of approximately 59 m and the depth of approximately 200 m. 5 This site is situated within the Smithfield industrial area, where there are established warehouses/factory units. Along the sites rear (northern) boundary, it adjoins residential properties. The proposal 6 The proposed industrial warehouse has a total floor space of approximately 6036 sq m, including a two-storey office/showroom compartment near the Woodpark Road frontage, comprising 510 sq m. 7 Access to this site is to be via combined ingress/egress driveway in the vicinity of the eastern boundary, which provides connectivity to a long straight roadway, adjacent to parallel vehicle parking spaces. 8 The total warehouse floor space, not including loading areas is approximately 5282 sq m. 9 For the purposes of compliance with the BCA fire access provisions, it is proposed to obtain a 6 m wide access easement over the adjoining property (No. 227 Woodpark Road). Planning controls - Holroyd Local Environmental Plan 1991 - Under which the site is zoned 4(a) Industrial General and the proposal is permissible with consent. - Development Control Plan No. 3 - Industrial Code - Development Control Plan No. 1 - Guidelines for Parking - Georges River Original Environmental Plan The evidence 10 A detailed assessment against the relevant planning controls was undertaken by council's assessment officer, indicating general compliance with the controls, except for the concerns with traffic manoeuvring and fire safety, otherwise the proposal merits consent. 11 The identified traffic issue has been dealt with by Mr C Hallam, an experienced traffic engineer. The acceptance of his conclusions satisfies this issue and it is no longer pursued by council. The remaining technical issue concerns fire safety, which has been dealt with by: - Mr D Fletcher, council's senior building surveyor, - Mr M Harvey, hydraulic and fire protection consultant, - Mr D Ball, building certifier. 12 The fire safety issue arises because of the buildings volume and its necessity to comply with the relevant provisions of the BCA. As the building has an approximate volume of 100,995 cubic metres, section C 2.3 of the BCA applies: C. 2.3 Large Isolated Buildings (NSW variation) states: The size of a fire compartment in a building may exceed that specified in Table C. 2.2 where – (a) the building does not exceed 18000 sq m in floor area nor exceed 108000 cubic metres in volume if - (i) the building is a Class 7 or 8, it contains not more than 2 storeys and is provided with open space complying with C. 2.4(a) not less than 18 m wide around the building; or (ii) the building is a class 5 to 9 and is protected throughout with a sprinkler system complying with Specification E1.5 and perimeter vehicular access complying with C. 2.4 (b) is provided; 13 The building is a Class 7b building and it is assessed on the basis that the building is to be protected by a splinter system complying with Specification E1.5 (given the proposed sprinkler tanks on the site plan). But the proposal does not provide a width of 18 m of open space around the building, instead it relies on the provisions of C. 2.3(a)(ii). 14 Accordingly the following C. 2.4(b) applies: C. 2.4 (b) - Vehicular access required by this Part – (i) must be capable of providing emergency vehicle access and passage from a public road; and (ii) must have a minimum unobstructed width of 6 m with no part of its further is boundary more than 18 m from the building and in no part of the 6 m be built upon or used for any purpose other than vehicular or pedestrian movement; and (iii) must provide reasonable pedestrian access from the vehicular access to the building; and (iv) must have a load bearing capacity and unobstructed height to permit the operation and passage of fire brigade vehicles; and (v) where a public road complies with (i), (ii), (iii), and (iv) may serve as the vehicular access or part thereof. 15 The applicant has sought to comply with this by providing the required unobstructed 6 m access way around the eastern and northern sides of the building, within the subject property. 16 However, along the western side, it relies on a 6 m wide easement over the adjoining property to facilitate emergency vehicle/pedestrian access. Apart from this, the requisite entry/egress doors and evacuation path are provided within the site along the western boundary. 17 But Mr Fletcher expresses dissatisfaction with this proposal because of: (i) the unsatisfactory access arrangements from the easement during a fire emergency, considering the practical problem of passing over the stored machinery ("junk") on No. 227 Woodpark Road, between the easement and the common boundary. (ii) constraints imposed by the common boundary fence, which restricts emergency access, (ii) the location of the fire hydrants. 18 The applicant has responded to these matters by the provision of gates in the common boundary fence to facilitate emergency access. Also the position of the hydrants along the western side have been altered and shown in Exhibit L, which complies with the BCA (40 m max.) access requirements. 19 The applicant also relies to some extent on the initial NSWFB advice, which indicated acceptance of perimeter access road plan. However the council points out that this acceptance lacks qualification in terms of removal of the "junk" and may have been given without an adequate site inspection. 20 Notwithstanding this, the parties agreed to further conferencing by the respective fire control experts, including a representative from the NSWFB. This has resulted in the joint fire expert report (Exhibit N), whereby these experts now agree that the fire safety issue can be covered by appropriate conditions of consent. But the actual wording of the conditions is not agreed and is subsequently discussed. 21 The other issue concerns the amenity impacts to the neighbouring residential properties and these objections are contained in council's bundle of documents and have been considered. Oral evidence was given by Mr and Mrs Needham who own the residential property at the rear of the subject development. They expressed concerns about the amenity impacts from the operations of the vehicles using the site. 22 However they agree that the provision of the vegetative earth mound, at the rear of the property in the No Development Zone, together with landscaping incorporating some mature species, would reasonably address their concerns. The applicant agrees to this and I consider these concerns can then be reasonably covered by appropriate conditions of consent. 23 In summary then, I accept that the conferencing between the respective experts, including Mr M Castelli from the NSWFB, has resolved the fire risk issue and therefore the development can be granted conditional consent. Conditions 24 I note that the format of a number of the draft conditions is disputed, and alternate conditions provided by the applicant in order to achieve the desirable outcome for this development. By reference to council's revised draft conditions in Exhibit 9, I consider it reasonable to incorporate the following requirements into the final conditions: * Introductory note: specific attention should be drawn to the fact that this is a Deferred Commencement Consent, whereby the consent does not fully operate until all matters listed in Schedule A have been complied with. * Schedule A: this consent is dependent on satisfactory compliance with the BCA provisions, particularly the fire protection access requirements. In this case the size of the warehouse precludes complete perimeter road access, within the subject property. Therefore it is reliant on this additional access along the western side of the building, via a 6 m easement, over the neighbouring property (No. 227 Woodpark Road). In addition, the fire experts agree that there should be 2x1 m dedicated, pathway strips from the 6 m easement to the subject property, to provide unobstructed, practical access in emergencies. In my assessment, these are fundamental matters that should be resolved, prior to the other aspects of the development preceding and should therefore reasonably be covered by way of the Deferred Commencement conditions. However, on the basis of the applicant's submissions, I allow a period of 2 years, to satisfy this, considering that the overall period for the development consent is 5 years. 25 With respect to the Schedule B conditions: - Condition 17 is deleted, - Condition 18 is deleted; rely on a condition requiring a positive covered for the maintenance of the OSD, - Condition 28: retain so that there is an obvious physical barrier to the No Development Zone, which also assists in protecting the new landscaping, - Condition 58: delete (d) - (g), irrelevant in this matter, - Condition 70: delete reference to all common in planted areas, - Condition 74: delete, matter to be dealt with when further use application made and internal layout determined, - Condition 80: retain to ensure the developer and all subsequent owners/occupiers are aware of the obligation to maintain the OSD, - Condition 82: full width vehicular crossing to be provided, in accordance with details approved by Council, - Condition 94: 76 car spaces to be provided in accordance with the approved plan, - Condition 99: paths of travel to refer to emergency exits, - Condition 103: this condition deals with the fire water containment and was notified late into the proceedings. Insofar as the objective appears worthwhile, nevertheless there are obvious policy implications from such a condition, which have not been adequately addressed in this appeal. If and when the relevant policy is made, then its reasonableness in the circumstances of the case can be assessed. - I do not consider it reasonable to impose this draft condition in the subject circumstances. Instead it seems reasonable to require the 150 mm boundary, barrier kerb and further consideration be given to fire water runoff containment, within the proposed site drainage system. 26 In addition to these conditions, the applicant's conditions contained in Exhibits O and P, should be incorporated, except condition 4. Accordingly development consent is granted on the basis of the agreed conditions in Exhibit 10. Costs application 27 The respondent makes a cost application for $4198.50, in respect of additional costs incurred after the close of the proceedings on 8 March 2005. The applicant opposes these costs. 28 I accept that some additional costs have been incurred by the parties , due to the applicant being allowed to reopen its case. This occurred primarily from my final concerns regarding the adequacy and security of the practical access arrangements from the 6m external easement, to the subject property, in fire fighting situations. 29 According to the respondent submissions, this concern was raised earlier and the opportunity available for the applicant to address it, rather than reopen its case. 30 However the applicant submits it placed a high degree of reliance on the NSWFB advice, which supported the application, without qualifications on the standard of practical access over the stored material (junk), in the designated car park area of No. 227 Woodpark Road. 31 In my assessment, the resolution of the practical fire access arrangements is a critical issue in this significant warehouse development, which otherwise complies with the relevant controls. Therefore I consider the resolution of this matter in the public interest, rather than rejecting the application on these grounds and then considerable resources being subsequently required to assess a likely similar development application, dealing with this issue. 32 This fire access issue was satisfactorily resolved to both parties satisfaction, by a joint conference with the respective experts, together with a NSWFB officer. In my opinion this was an efficient way to deal with the differences between the parties on the interpretation of the initial NSWFB advice, considering neither party obtained this clarification beforehand. Accordingly, I consider this process has involved an efficient use of resources to resolve this critical issue, resulting in an acceptable community outcome. Therefore I consider each party should bear its own costs and the cost application is dismissed. Court orders 1. The appeal is upheld. 2. Development consent is granted to DA 2004/539 for the erection of an industrial warehouse building and associated office at 219 - 225 Woodpark Road, Smithfield, subject to the conditions in Annexure A. 3. The exhibits may be returned except for Exhibits 6, 7, 9, 10, A, B, C, M, N, O and P. 4. Costs application is dismissed. __________________ R Hussey Commissioner of the Court rjs 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.