Land and Environment Court of New South Wales CITATION : St Peters Mews Pty Ltd v Marrickville Council [2006] NSWLEC 617 APPLICANT St Peters Mews Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10390 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- Floor space ratio, industrial units, zoning provisions, adverse impact on the amenity of surrounding residents, vehicular access from the street, internal vehicle manoeuvring on site, size of industrial units, disable access, loading bays Marrickville Local Environmental Plan 2001 LEGISLATION CITED: Marrickville Council's Code for Industrial Development Marrickville Development Control Plan No. 31 - Equity of Access and Mobility Disability Discrimination Act 1992 DATES OF HEARING: 26/09/2006 EX TEMPORE JUDGMENT DATE : 09/26/2006 APPLICANT Ms J Reid, solicitor SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick RESPONDENT Mr G Christmas, solicitor Of: Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 26 September 2006 10390 of 2006 St Peters Mews Pty Ltd v Marrickville Council JUDGMENT 1 This is a class one appeal No. 10390 of 2006 between St Peters Mews Pty Ltd and Marrickville Council in regard to the refusal of an application for 16 industrial units inside an existing building and 21 car spaces on-site at Nos. 28-40 Hutchinson Street and 45-47 Applebee Street, St Peters. 2 The site had previously been a commercial laundry with 80 employees and laundry trucks coming and going all day. 3 The area is zoned Industrial 4(A) under the Marrickville Local Environmental Plan 2001. It is the most intense industrial zone allowed by the council but does not allow offensive and hazardous industries. The subject locality is in between May Street, Princes Highway and Campbell Street, the latter being the major link road from the highway to the railway overpass to Marrickville. I note for later reference Campbell Street is a narrow two-lane road. 4 The industrial area has industrial uses such as warehousing, car repair, carpenter shops, heavy equipment maintenance, lifting equipment yard, shoe manufacture, and furniture manufacture and warehousing. 5 Amongst these permitted uses are older terrace houses, all non-conforming existing residential uses in the zone. The majority of the houses are in Lackey Street, it is the third street forming a triangular city block between it, Applebee Street and Hutchinson Street. There is a large public park opposite the terraces in Lackey Street. The terraces in Hutchinson Street are also towards the south end of Hutchinson Street opposite the park. 6 Hutchinson Street is a one-way street from Campbell Street northwards past the terraces towards the site. Vehicles can also go via Lackey Street to Applebee Street which is also one-way north and thence to the site. A side street from Princes Highway to Applebee Street is called Short Street and it coincides with the southern boundary of the site. The entrance to the site from Applebee is opposite two (2) other residential terraces on the corner of Short and Applebee Street. 7 All these streets Hutchinson, Applebee, Short and Lackey are narrow one travelling lane wide with one parking lane. There is no parking allowed on one side of each street. This is brought about by the need to manoeuvre cars and trucks in the narrow confines. 8 The development application was amended before the hearing to provide 14 industrial units, 2 truck loading bays for maximum size 6.4 m rigid trucks and 20 on-site car parks plus a space in each industrial unit for the 99%-ile sized vans or utility vehicles. 9 The issues in the appeal were: 1. The majority of the proposed industrial units have gross floor areas of less than 70 sq m, which is an insufficient area to be used for industrial/warehousing purposes in accordance with the zoning provisions applying to the land under Marrickville Local Environmental Plan 2001 ("the LEP"). Such gross floor areas do not comply with the minimum 300 sq m required for industrial units under Marrickville Council's Code for Industrial Development ("the Industrial Development Code"). Particulars: (a) The Industrial Development Code requires each factory unit in a multiple occupancy industrial development to have a minimum area of 300 sq m. Council in the past has approved factory units of smaller size than the minimum 300 sq m in area specified in the Code, however, not to the extent of the size of the majority of units proposed in the subject application. Eleven of the proposed units (Units 2, 3, 4, 5, 6, 7, 9, 10, 11, 12 and 13) have a useable floor area of 70 sq m or less (after allowance is made for the required dimensions of a loading dock of 7.5m x 3.0m). (b) The shell of the existing improvements on the subject site may be capable of supporting between 10 and 12 industrial units subject to other amendments referred to in this Statement 2. The proposed development does not comply with equity of access and mobility requirements under clause 64(1) of the LEP; the Table to Part 3.4 of Marrickville Development Control Plan No. 31 - Equity of Access and Mobility; and the Disability Discrimination Act 1992 . Particulars (a) The proposed location of the communal disabled toilet is too remote and the distance to this facility from the majority of the units is unreasonable. (b) The path of travel to the communal disabled toilet will be blocked/compromised by the movement of vehicles. (c) The mezzanine levels of Units 8 and 14 are inaccessible for persons with a disability. 3. The proposed development provides inadequate and poorly arranged loading and unloading facilities to cater for the range of uses which may occupy the units. Particulars: (a) The loading bays for Units 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14 do not cater for the exit manoeuvre of a 6.4m Small Rigid Truck ("SRV") in accordance with clause 5.3.4 and Fig 5.1 of Australian Standard AS 2890.2 Off-Street Commercial Vehicle Facilities ("the Australian Standard"). (b) One common loading bay which permits access for a SRV in accordance with the Australian Standard is insufficient to cater for the likely demand for loading and unloading facilities for the development. (c) The loading bays for Units 1 and 2 have insufficient height to cater for a SRV in accordance with Section 4 Table 4.1 of the Australian Standard. (d) The loading bay for Unit 1 and the vehicular entry to Unit 8 on Hutchinson Street are located too close to the street frontage and are likely to result in queuing of trucks, obstruction of the footpath and will require truck drivers to undertake the dangerous and unacceptable practice of reversing into or out of Hutchinson Street to enter and exit the site. If consent is to be granted, the Council will seek to impose conditions requiring that all loading and unloading for Units 1 and 8 be undertaken from within the building and that there be no vehicular access directly from Hutchinson Street and that the existing vehicular crossings on Hutchinson Street be removed. 4. Deleted. 5. The proposed development is likely to adversely impact on the amenity of the surrounding residents having regard to the likely intensity of development and the unsatisfactory loading and unloading facilities for the proposed units. 10 Attending the on-site hearing for the council were: + Mr G Christmas, solicitor + Mr J Betacco, development engineer + Mr S Faridy, town planner 11 The resident objectors were: + Ms J Killen, 55 Hutchinson Street + Mr K Jones, 83 Princes Highway on the corner of Short Street + Ms G Merry, 11 Lackey Street + Mr J Patterson, 62 Applebee Street + Ms H Palavi, 48 Hutchinson Street + Mr C Fesel, 50 Hutchinson Street 12 Appearing for the applicant were: + Ms J Reid, solicitor + Mr C King, town planner + Mr A Morse, traffic expert + Mr P Evison, representative of the applicant 13 The residents' evidence is, and I did it see such incidents on the day of the hearing, of illegal car parking close to corners and drive entries. This is caused by the extreme demand for parking by residents, employees, commuters, delivery trucks, etc. 14 The illegal parking close to a corner in one instance caused a truck to reverse the length of Lackey Street as it could not make the corner into Applebee. Another truck simply stopped in the carriageway of Hutchinson Street and unloaded holding up all other traffic, apparently causing one driver to go around the block and come the wrong way southwards in Hutchinson to reach its premises. Parking too close to drive entries also encouraged trucks to stop partly on the footpath and partly on the road, or double park because they could not turn into properties via the narrow gap. 15 Photos of numerous other instances of loading and unloading in the street, on footpaths, etc. were in evidence. 16 The residents understood the zone allowed industrial and said their main concerns were: a) on-site parking of 20 cars for 14 units is inadequate b) 14 units is an intensification of the site that was previously a single use. c) the proposal will not reduce the current parking and amenity problems of the locality d) the council by laws inspectors and development monitoring staff are overloaded and cannot police parking regulations or out of hours activity in the existing industrial uses. e) that there needed to be a balance to make residents and employment uses reasonably compatible. 17 The council experts had recommended refusal of the proposal originally, not because it was inherently incompatible with the locality, but because the industrial bays and internal driveways were too small and the loading bays in each unit could not be manoeuvred into by a small rigid truck. 18 The applicant's expert said that council's parking requirements for employees on-site was 14 cars and 20 were proposed. The small size of the units would encourage small scale uses such as self employed tradesman, laboratory and medical equipment suppliers, graphic design studios, electrical/electronic equipment assembly and servicing, etc. This would result in fewer people on site than the previous 80 employees. 19 The proposed expected tenants or owners of industrial units would usually be serviced by the 99%-ile sized vehicles such as vans or utility vehicles that could access the loading bays in each unit. Having the smallest sized loading bays would restrict sale of the units to persons who only needed those size vehicles. 20 The proposal includes strata title subdivision so the purchasers of the units would be controlled by the Body Corporate By-Laws that could include adequate controls on vehicle sizes and other aspects. 21 Fourteen small industrial units are unlikely to intensify the previous commercial laundry use on-site. It is unlikely to have 80 employees because 500 sq m of previous floor space is to be used for driveways and small units would probably only have 1 or 2 employees. Bringing all delivery vehicles on-site in a one-way direction from Applebee to Hutchinson Streets would mean, if Short Street is used, the majority of houses would not be subject to on-site traffic at all. If vehicles used Hutchinson Street to Applebee Street, the smaller size of vehicles should result in less congestion. But Short Street would appear to be the preferred access. All loading and unloading would be on-site contrary to all the other industrial uses in the locality. 22 The instance was put about delivery trucks having clients all over Sydney and dropping an order off at the site possibly using a semi-trailer. The applicant said the Strata By-laws could require occupants on-site to advice suppliers only a maximum 6.4 m rigid truck could be used. The By-laws to a large extent would be self policing overcoming the inability of council's staff to be on-site when the existing non-compliances of other industrial developments occur. 23 The applicant said the other concerns of the council and the objectors could be dealt with by conditions: a) disabled access toilets would be put in each industrial unit b) a second commercial loading bay for 6.4 m rigid trucks could be provided c) the problem of Unit 2 having a low ceiling in its loading bay could be resolved by putting the bay outside its door which had its own entry drive and allocating two adjacent car spaces to Unit 2 thus causing no conflict with other on-site traffic. d) Units 1, 3 and 8 having existing roller doors to Hutchinson Street can have internal loading bays and remove the roller doors thus eliminating the potential of on-street for loading delivery vehicles. e) The concern of residents in Short Street of difficult and noisy manoeuvring by trucks around the corner onto Applebee and then a zigzag turn into the site could be resolved by using the existing footpath crossing to the site and a change in the shape of the proposed garden on site to enable direct entry from the intersection of Short Street. 24 The applicant had prepared new plans to reflect these changes but they were opposed by the respondent. The respondent preferred deferred commencement conditions which would enable council staff to oversee the changes. 25 After seeing the plans that incorporated changes in items a) to e) above, I accepted it into evidence. 26 The council also opposed the second 6.4 m truck bay between Units 7 and 14 in the lay-by formation parallel to the main driveway through the property. The respondent felt that it was impractical and said the loading bay should be in the location of Units 13 and 14 to allow a more conventional layout similar to the proposed bay between Units 4 and 5. 27 The council engineer when cross-examined preferred the above solution, but agreed if the truck parking space in the lay-by bay was made parallel to the side boundary wall and the personnel door into industrial Unit No. 14 was moved away from the truck bay, then it would work. 28 The council's option of deleting Units 13 and 14 tied in with the council's town planner's opinion that the bays were too small, and providing the loading bay in that location would reduce the number of bays to approximately 12 and allow the other units to be slightly expanded. There was some debate between the experts in regard to the size of the units. There was general agreement while some large units nearly 300 sq m, most of the units were in the vicinity of 70 sq m in area, and that this is about equivalent to a 4 car garage. 29 The council had an industrial code, that had not been adopted as a development control plan, requiring 300 sq m industrial units as a minimum. It was put by the applicant that this code had been formulated as far back as 1966 and there was no objective of the condition in the code. Therefore it could only be taken as a matter of opinion that the proposed bays were too small. The respondent's town planner said that in looking at other industrial bay developments, 150 sq m was probably the minimum to allow space for a loading bay, an entry area and office, and a storage room plus a toilet. 30 The applicant put that, in fact, industrial bays as proposed, would be quite useful to a self-employed tradesman or a small operator who mainly used the facility for some on-site manufacturing process and storage, and that the majority work would be done elsewhere. The research by the applicant had shown that there was deficiency of this type of accommodation in the locality. 31 In considering this debate between the experts and considering the particular constraints of this locality, it seems to me that the proposal would, by having a small industrial units have a greater chance of reducing its impact on the local streets and the residents in the locality than a larger industrial use that might require semi-trailers or other vehicles larger than the 6.4 m rigid truck. 32 I could see no reason therefore to put the second loading bay where Units 13 and 14 are located. The lay-by bay as amended by the council engineer is acceptable. 33 In seeing the amount of traffic and parking conflict in the local streets, I asked council if in view of the Industrial 4(A) zone being the most intensive industrial use in Marrickville, was there a council control plan to widen in the streets in the future, possibly by dedication by condition of consent as new development applications came in. I noted the narrow 2 lane Campbell Street, a major link road past the industrial area had road widening zonings. I was told several of the road widening zones for it had been deleted, and the widening was not scheduled in the foreseeable future. I was told there was no such development control plan to widen streets in the industrial area. 34 The applicant asked if therefore the area was unsuitable for industrial zoning. The council staff said the zoning was suitable because it was advantageously located next to the Illawarra rail line, the Princes Highway, close to the Airport and the port of Botany Bay, and for that matter the F5 Freeway was not far distant. It was really a question of management of the permitted uses in the industrial zone. 35 Overall I come to the conclusion that the proposal does respond to the particular constraints of this locality in ways that give it the best chance of being an acceptable planning outcome in this mixed industrial and residential use area. The council would have the further opportunity of control of individual uses of each industrial unit by future development applications. 36 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to 14 Industrial Units in the existing buildings plus two truck loading bays and 20 car park spaces on site with strata subdivision at Nos. 28-40 Hutchinson Street and 45-47 Applebee Street, St Peters, as shown on Drawings 1 to 5 Job 896 by Nautilus Design Group all amended to 19/09/06 and all as further amended by and built in accordance with the conditions in Annexure 'A' hereto. 3. The exhibits are returned to the parties except Exhibits B, C, E, F, 1, 3, 5, 6, 10, and 11. 4. Electronic versions of the draft conditions to be forwarded to the Court within 5 days hereof. ___________________ K G Hoffman 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.