Land and Environment Court of New South Wales CITATION : Mudie v Baulkham Hills Shire Council [2006] NSWLEC 189 APPLICANT John Mudie PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11368 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Warehousing of adult products LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005 DATES OF HEARING: 06/04/2006 EX TEMPORE JUDGMENT DATE : 04/06/2006 APPLICANT Mr D Baird, barrister LEGAL REPRESENTATIVES: RESP0NDENT Mr D Thomas, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 6 April 2006 11368 of 2005 John Mudie v Baulkham Hills Shire Council This decision was given extemporaneously (on site) and has been revised and edited prior to publication 1 This appeal relates to Development Application No. 80/06/HA. It involves the use of an existing light industrial unit for the purpose of storage and distribution of adult materials, including books, clothing, toys, games and novelty items. In addition to various changes within the premises a single sign 1.8 m by 550 mm is proposed adjacent to the entrance to the premises. 2 Three carparking spaces are indicated as being available for the proposal. Whilst the original proposal was understood to have included retailing of the abovementioned products, it is now clear that only warehousing activity is involved. 3 The proposed hours of operation are 7:30 am to 6:00 pm Monday to Saturday, there are to be 3 employees. Deliveries are expected approximately 3 to 6 times a week via vans. 4 The subject industrial unit is described as Lot 13, DP35250, and is more generally known as Unit 13 No. 8 Victoria Avenue, Castle Hill. It has an area of 234 sq m and is located within an existing larger light industrial development. 5 This development is located within the Castle Hill Light Industrial Area, which is characterised by warehousing and manufacturing uses as well as bulky goods retailing and uses permitted within Sch 4 of the Baulkham Hills Local Environmental Plan 2005 ("LEP"). 6 Under the LEP the site is zoned Light Industry 4(b) and in this zone the warehouse proposal now before the Court is permitted with development consent. The objectives of the 4(b) zone relevantly provide for a wide range of industrial warehousing and manufacturing activities that will contribute to economic and employment growth in the local government area. 7 The application was notified to the owners of the other units within the surrounding development of which this site comprises one unit. As a consequence seven objections were received, four of those objectors gave evidence at the on-site hearing: o Mr Atkins the owner of Units 9 and 11; o Mr Dalton of Unit 10; o Mr Manion of Unit 11; and o Mr Vermont of Unit 32. 8 These objectors expressed concerns including: insufficient parking, referring to parking problems within the development generally; the devaluation of surrounding industrial units and the likelihood of consequential leasing problems; adverse impacts on women and children who attend close by premises; products available from the premises will be recognisable when being taken from the premises; retail activity as well as wholesale activity is likely to occur; the area in the vicinity of the premises may become unsafe; customers to nearby units may be discouraged; and advertising should be inconspicuous. 9 The application was refused by the Council for reasons relating to the prohibition of retailing in the zone and non-compliance with applicable zone objectives and insufficient provision for carparking. The four issues in the statement of issues are to a similar effect. 10 Expert town planning evidence was provided by Mr J. Boers for the applicant and Mr G. Cherry for the Council. These two experts provided the Court with a Joint Report that considered the issues and concluded, subject to appropriate conditions, that these issues are no longer of concern. This outcome substantially resulted from the clarification that the proposal is for warehousing not for retailing. 11 The conditions of consent as contained in Exhibits 2, 6 and D, are now accepted by the applicant. 12 Having considered the evidence of the objectors and that of the experts I have not been persuaded that there are sufficient concerns of a substantive nature to warrant refusal of the application. 13 Warehousing as is proposed is clearly appropriate in the 4(b) zone and will be consistent with the applicable zone objective. What is here proposed, taking into account the conditions and the nature of the proposal, is warehousing. If it did involve retailing I have no doubt that it would not only be out of character with its environs but also prohibited by the LEP. 14 In this context I have taken into account the proposed conditions that require that there be no retailing from the premises. It is the Court's view that compliance with the conditions is to be anticipated. Should there be any non-compliance with any of the conditions, actions can be taken to rectify such non-compliance. Accepting such compliance I do not anticipate that there will be any significant change to the safety, amenity or character of the area. 15 I have reached this conclusion taking into account the likely manner in which the business will be conducted, including the activities that will occur outside the premises. I do not accept that the goods and the activities that occur within the premises, particularly taking into account that for the most part are not observable from the outside is of any concern. I have also taken into account that the proposed signage will be fairly discreet and that there will be no other external indicators of the nature of the products stored on the premises. There is also to be a condition of consent that requires that the goods being transported from the premises should not be able to be readily identifiable as such. 16 I recognise the concerns that premises of this kind might have commercial impacts but for the reasons that I have given including the limited conspicuousness of the nature of the premises, I do not believe that other persons who conduct business or are involved in attending premises in the vicinity will be so affected that I should reject the application. 17 As I have already noted three carparking spaces are available for the premises and in this regard I note that the applicable development control plan would only require two parking spaces. As a consequence I accept that there is an appropriate provision of carparking. I note that one of the spaces indicated for parking is not a formally allocated space (according to the original consent), being allocated for loading and unloading of goods for the premises. I see no reason why this same space could not be similarly utilised. 18 The orders of the Court will therefore be: 1. The appeal is upheld. 2. Development Application No. 80/06/HA for the use of an existing industrial unit at Lot 13 DP35250 at No. 8 Victoria Avenue, Castle Hill, for the purpose of the wholesale, storage and distribution of adult material including books, videos, games, clothes and novelty items is determined by the granting of development consent subject to the conditions in Annexure "A" hereto. 3. Exhibits 2, 6 and D are retained. ___________________ T A Bly Commissioner of the Court Gbv/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.