Land and Environment Court of New South Wales CITATION : Lonibin Pty Ltd v Marrickville Council [2006] NSWLEC 367 APPLICANT Lonibin Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 11103 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Alterations to industrial building, land use characterization, signage, car parking and loading facilities, traffic congestion, noise. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Marrickville Local Environmental Plan 2001 Marrickville Development Control Plan No. 19 - Parking Strategy DATES OF HEARING: 16-18/05/2006 DATE OF JUDGMENT: 06/30/2006 APPLICANT Mr G Green, solicitor SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick RESPONDENT Mr G Christmas, principal solicitor Marrickville Council JUDGMENT: - 12 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 30 June 2006 11103 of 2005 Lonibin Pty Ltd v Marrickville Council JUDGMENT Introduction 1 This appeal relates to Development Application No. 200500224 which is for alterations and additions to the existing industrial style building at 2 Albany Road, Stanmore, for and including: · the manufacture and modification of "self-assembly/flatpacks" and "smartpacks" for kitchen and laundry cupboards, wardrobes, etc., including shelving; · associated offices, including a production and design office; · a warehouse storage area; · a loading area and two customer parking spaces; · a showroom for kitchens, laundries etc and associated appliances; · a shop selling associated hardware; and · staff and customer amenities. 2 The applicant presently operates the site for these purposes as the "Builders Bargain Centre" ("the existing facility") without the necessary development consent although not all of the sought alterations have been effected. 3 The site comprises Lot 46, Section AA DP 4705 and is situated at the corner of Albany Road and Bridge Road. It is irregular in shape and has an area of about 638 sq m. The existing building covers the majority of the site with the exception of a set back to Albany Road where vehicular access into the building is available. 4 Bridge Road is mainly developed with light industrial and warehouse type land uses, although three nearby sites have been developed with residential flat buildings. Albany Road, commencing immediately to the west of the site is developed with dwelling houses. Statutory provisions 5 The site is zoned 4B Light Industrial under Marrickville Local Environmental Plan 2001 ("the LEP") in which zone and by reference to cl 16, development other than prohibited development is permissible with development consent. Relevantly prohibited are: · bulky goods sales rooms or showrooms, · commercial premises (other than banks), · industries (other than high-technology industries or light industries), · shops (other than chemists shops, takeaway food bars, fruit shops and newsagents shops). 6 Hence, light industries are permissible, this being the contention of the applicant in relation to the proposal. 7 Notwithstanding the provisions of the 4B zone, cl 40 of the LEP facilitates, in particular circumstances, offices, showrooms and shops by providing that: 40. Despite cll 15 and 16, development for the purpose of offices, showrooms or shops may, with development consent, be carried out on land zoned General Industrial 4(A) or Light Industrial 4(B) if: (a) in relation to development for the purpose of offices or showrooms, or both, the consent authority is satisfied that: (i) use of the office or showroom is ancillary or incidental to a use permissible within the General Industrial 4 (A) or Light Industrial 4(B) zone that is being carried out on the land, and (ii) the area devoted to the office or showroom, or both, does not comprise more than 25 per cent of the gross floor area devoted to that use, and (iii) adequate on-site parking is available to accommodate the parking demands of the office or showroom, or (b) in relation to development for the purpose of shops: (i) use of the shop is ancillary or incidental to an industrial or warehouse use permissible within the zone that is being carried out on the land, and (ii) the gross floor area of the shop is not greater than 100 sq m. 8 The objectives of the 4B zone are: (a) to identify areas suitable for light industrial and warehousing activities, and (b) to permit a range of support and ancillary uses. 9 Also applicable is Marrickville Development Control Plan No 19 - Parking Strategy ("DCP 19"). Advertising and council's decision 10 The application was advertised and as a result 12 objections plus a petition were received. Matters of concern raised in these submissions include: · the retail nature of the use including signage is inappropriate in this locality; · insufficient car parking and inadequate loading and unloading facilities that will worsen traffic congestion; · traffic, including delivery vehicles generated by the development results in an unsafe pedestrian environment; · excessive noise generated by the workshop equipment. 11 The hearing began on-site when seven of the above objectors were given the opportunity to explain these concerns in detail, taking also into account the changes to the proposal particularly in relation to loading and parking. 12 By notice of determination dated 7 September 2005 the application was refused for nine reasons which in essence comprise: · the proposed use is prohibited in the 4B zone, · insufficient on-site parking and unloading facilities, · adverse impacts on the amenity of the neighbourhood, · the non provision of appropriate disabled access, · excessive and inappropriate advertising, · inadequate provision for waste disposal, · the overwhelming public opposition. The evidence 13 Town planning evidence was given on behalf of the respondent by Ms N Butler and on behalf of the applicant by Ms A McCabe. Traffic evidence was given on behalf of the applicant by Mr R Varga on behalf of the respondent by Ms Butler. The owner and manager of the existing facility Mr M Caminer also gave evidence. The issues 14 Having considered all of the evidence and the submissions of the advocates the issues for the determination of the Court are: · Whether the proposal should be characterised as light industry, taking into account the relationship between the manufacturing area the shop and the showroom. · Whether there is to be provided sufficient on-site car parking and facilities for unloading and loading of vehicles and whether there would be unreasonable resulting traffic congestion and unsafe condition is for pedestrians. Land use characterisation 15 In relation to the land use characterisation issue the respondent submits that the dominant use of the building is not for light industrial purposes but instead, taking into account the particular characteristics of the existing/proposed use, comprises that of a shop and/or showroom. The definition of a shop in the LEP refers to a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials and it is contended that the proposal falls within this definition. More particularly the actual use of the site in terms of floor area used and intensity of development mean that any manufacturing use is ancillary to the dominant retail use. 16 Conversely the applicant submits that the dominant use is light industrial, that use comprising the manufacture or modification of flatpacks and the cutting edging and drilling of materials being an industrial process. Also, the design of flatpacks on the premises is ancillary to this process. Similarly the display of assembled kitchens etc., and the sale of products associated with the assembly and installation of the flatpacks is also ancillary to the dominant use. The applicant also submits that even if these non-manufacturing uses were not found to be ancillary then cl 40 of the LEP would indicate that they are nevertheless permissible, subject to compliance with the particular requirements of the clause. 17 As I understand it the use of the site is as follows. Customers who wish to obtain a flatpack attend the production and design office within the building where the computer aided design process is conducted. Examples of completed kitchens, laundries and offices can be inspected in the showroom. Following the design process, 50% of all flatpacks are totally manufactured on the site. The other 50% of the flatpacks are manufactured elsewhere and brought to the site. Of the flatpacks brought to the site 80% of these are customised. Hence, 90% of all flatpacks are subject to an on-site industrial process. The completed flatpacks are then available for either collection by the customer or delivery. 18 The other aspect of the use of the premises involves the manufacture of shelving by cutting sheets of particleboard to size and the associated application of laminates. 19 Stoves and sinks etc., as well as various hardware items such as hinges, door handles screws and glues etc., can be inspected and purchased from the premises. Most of these items seem to have a practical relationship to the assembly and installation of flatpacks although they can and have been purchased independently. According to Ms Butler, her analysis of recorded sales for the month of September 2005 reveals that 24% of all transactions were for amounts of $30 or less with some being for as little as $1 or $2. This she asserted means that the sale of small hardware items was occurring in a manner unrelated to the manufacture and sale of flatpacks. 20 Whilst I understand her scepticism there are two reasons why these conclusions should not be determinative. First there was no evidence to suggest that a manufactured shelf could not cost less than $30 or that the small sales were all unrelated to a previously purchased flatpack. Second, if the majority of the remaining sales relate to the 90% of flatpacks referred to above and this is certainly possible, together with manufactured shelving the predominance of sales would relate to the manufacturing process. In this regard I prefer the evidence of Ms McCabe as to her interpretation of the recorded sales. 21 There was an unconcluded dispute between the town planners as to the areas utilised for the different uses within the building. It is nevertheless obvious that, excluding the amenities area, the showroom and the storage area (which is largely utilised for the storage of products that are not part of the flatpacks themselves), significantly exceed the areas set aside for manufacturing, production and design. In this context I accept that the production and design office is ancillary to the manufacture of flatpacks. Also an indeterminate part of the storage area needs to be considered as being ancillary to the manufacturing process. 22 I agree with the submission made on behalf of the applicant that even though the non-manufacturing areas are greater in area than the manufacturing areas this does not lead to a conclusion that the dominant use of the premises is not industrial. 23 I also agree that because there is a display area where completed examples of products can be inspected before order, this does not in principle change the inherent character of the premises. Nor does this mean that it is merely a distribution point for the sale of goods to the general public, although if a significant proportion of sales from the site were not part of the manufacturing process, the converse would probably be true. In this regard I do not accept the respondent's submission that the various uses that will occupy the site if a conditional consent is granted, will necessarily be the same as those conducted by this applicant in its previous premises. If these uses were the same and, for example the majority of flatpacks ordered were manufactured elsewhere and sold unaltered from the premises, plainly such a use would be predominantly retail and thus prohibited. The question that thus arises is whether the Court can accept the evidence of the applicant that a significant majority of products sold have been manufactured on site or been subjected to an on site manufacturing process. 24 On the basis of the above analysis, and accepting that the evidence provided by and on behalf of the applicant in relation to the proposed uses on the site is correct together with the applicant's indication that it would accept conditions that would limit floorspace/usage, I conclude that the dominant use of the premises is manufacturing. 25 In principle I accept the submission that an ancillary use could occupy a larger area than, as in this instance the area set aside for manufacturing, without changing the essential character of the use. However, this should be tempered by the principle that emerges from cl 40 of the LEP. Moreover this principle should still apply, notwithstanding that it could be argued that there is no need to comply with the particular requirements of cl 40 if the proposal as a whole is deemed to comprise light industry. In my opinion significant weight must be given to cl 40, which recognises that offices, showrooms and shops can be conducted in the industrial zone if they are shown to be ancillary or incidental to an otherwise permissible use. 26 As detailed above cl 40 of the LEP requires that an ancillary office or showroom or both must not comprise more than 25% of gross floor area of the use itself. I accept that a showroom containing assembled examples of flatpacks (either manufactured or modified on the site) and a production and design office are ancillary to the manufacturing process and conclude that these publicly accessible floor spaces should meet the 25% requirement. 27 Plainly part of the proposal comprises a shop that sells hardware items notwithstanding that there is no clear indication of the extent of this on the plan. To achieve consistency with cl 40, the area allocated to the shop should not be greater than 100 sq m. Having inspected the premises and understanding the proposal as it has been presented to me (including the fact that only 10% of all flatpacks sold are unmodified and the proposed condition that prevents the retailing of general hardware items), I see no reason why any publicly accessible retail area should exceed 40 sq m. 28 In this context I do not accept the respondent's submission that the Court cannot require appropriate conditions and/or amended plans to reflect and reinforce the intended use of the premises in the context of the development application, notwithstanding that the existing use of the premises may be different. Traffic, loading and parking 29 In relation to the existing car parking and loading facilities, the concerns of the residents as well as those of Miss Butler involving pedestrian safety, parking on the footpath and loading and unloading on the footpath and in the street can be readily understood. I agree that these existing arrangements are inherently unsafe and without significant change would have resulted in the refusal of the application. 30 The amended proposal now provides for a loading area wholly within the site and substantially within the building, close to the Albany Road and Bridge Road intersection. Two customer parking spaces are to be provided wholly within the site and partly within the building, immediately adjacent to the loading area. The loading area and the parking spaces will be accessed off Albany Road. The applicant has now agreed to reverse this arrangement such that the loading area is to be positioned at the western extremity of the site, furthest away from Bridge Road an arrangement supported by Ms Butler although it still needs to be larger to meet the minimum requirements of DCP 19. 31 Whilst DCP 19 requires nine off street parking spaces (if the use of the site is considered to be retail), Mr Varga said that based on his inspection of the business records provided by the owner of the business, Mr Caminer, the provision of two parking spaces would be sufficient. These records indicate an average of less than three customers attending the premises per day although this is now likely to be an average of a little over one customer per hour or about 11 customers per day. Consequently it is highly unlikely that there would be any more than two customers on the premises at any one time. Moreover there would be no net increase in demand by comparison with the previous use of the premises. 32 Miss Butler argued that there is likely to be about 18 customers per day and on this basis accepted that the provision of two car parking spaces would be adequate for these customers. However she explained that, given the retail use of the site, the nine parking space requirement would indicate a parking deficiency, particularly taking into account that no parking spaces are available for employees. 33 In my opinion, giving some weight to the absence of off-street parking for the previous use and taking into account Mr Varga's conclusions as to the reasonable availability of on-street parking and the number of vehicle trips likely to be generated, the two proposed parking spaces should be sufficient. Also, the provision of a single loading and unloading facility, subject to meeting the dimensional requirements of DCP 19 should also be sufficient. 34 As for the concerns about vehicles manoeuvring to and from the site close to where Albany Road intersects with Bridge Road, with the relocation of the loading area I do not find this to be so unsatisfactory as to require the refusal of the application. In this regard I note that whilst Bridge Road carries a reasonably significant number of vehicles, Albany Road is not nearly so busy and manoeuvring vehicles should not cause any unreasonable congestion taking into account the provision of parking and loading facilities. 35 Conditions of consent should require that no materials or products are delivered to the site other than by the use of the loading area and that all collections should be encouraged by and with the assistance of the staff to take place within the premises. Similarly signs are to be provided prohibiting the parking or standing of vehicles at any time on the public footpath and staff are to be required to actively police this requirement. 36 More generally, whilst I recognise the concerns of the residents especially regarding pedestrian safety it must also be recognised that the site is zoned for industrial purposes and that in principle at least a light industrial use with associated warehousing, showroom and office can be anticipated in this location. Conclusions 37 In all of the circumstances I have been persuaded that subject to compliance with appropriate conditions the subject proposal is a light industrial use involving a manufacturing process together with ancillary storage, office, showroom and shop. Hence there is no conflict with the objectives of the 4B zone. 38 Taking into account the modifications to the parking and loading facilities and the conditions relating to sales of hardware items, signage and noise I am now satisfied that concerns in relation to amenity and traffic impacts are sufficiently resolved. 39 Subject to appropriate conditions and the provision of appropriate plans I have concluded that the proposal should be approved. Amended plans are to be provided to the Court and the council showing: · a shop with an area of no more than 40 sq m with associated partitions that prevent public access to any manufacturing or warehouse or storage areas; · showroom, office (including production and design) areas having an area of 146 sq m, being less than 25% of the total ground floor area with associated partitions that prevent public access to any manufacturing or warehouse or storage areas; · the loading area and the customer car parking spaces are to be reversed in position and the loading area is to comply with the requirements of DCP 19. · the remaining floor areas are to be shown as interconnected manufacturing and storage (recognising that this may require the provision of new internal wall openings) and marked as no public access. 40 An amended consolidated version of the conditions (Exhibit 17 as amended) is to be provided with the following new conditions: · All staff are to be instructed to actively discourage any unlawful or inappropriate parking or manoeuvering of customers vehicles and delivery vehicles in Albany Road. · There are to be no advertising signs on the premises or advertising generally for the sale of general hardware from the premises. · The areas on the plan shown as manufacturing and associated storage are only to be used for these purposes and not for shop or showroom purposes, including associated purposes such as storage. Orders 41 Upon receipt of satisfactorily amended conditions and plans the orders of the Court will be that: 1. The appeal is upheld. 2. Development Application No. 200500224 for alterations and additions to the existing building at 2 Albany Road, Stanmore for the purpose of: · the manufacture and modification of "self-assembly/flatpacks" and "smartpacks" for kitchen and laundry cupboards, wardrobes etc., including shelving; · associated offices, including a production and design office; · a loading area and two customer parking spaces; · a showroom for kitchens, laundries etc. (ie assembled versions of smartpacks/flatpacks); · a shop selling hardware associated with the assembly and installation of products manufactured on premises; and · staff and customer amenities; is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits (the revised plans and conditions) are retained. ___________________ T A Bly 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.