Land and Environment Court of New South Wales CITATION : Geolyse Pty Limited v Great Lakes Council [2007] NSWLEC 278 APPLICANT Geolyse Pty Limited PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 10060 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- industrial complex, setbacks and landscaping Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Great Lakes Local Environmental Plan 1996 Great Lakes Industrial Code DATES OF HEARING: 15/05/2007 EX TEMPORE JUDGMENT DATE : 15 May 2007 APPLICANT Mr G. McKee, solicitor of McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rees, solicitor of Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 15 May 2007 10060 of 2007 Geolyse Pty Limited v Great Lakes Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to Development Application No. DA96/05, which is for the construction of an industrial complex incorporating six 2-storey industrial units with carparking at grade. 2 The site, which is situated on the corner of Grey Gum Road and Douglas Street, Tuncurry comprises Lots 7 and 8 in DP 261452. In what I understand to be known as the Tuncurry Industrial Area. This area is developed with various forms of industrial and commercial development. 3 The site is included in the 4(a) General Industrial Zone under Great Lakes Local Environmental Plan 1996 ("the LEP"). In this zone the proposed development is permissible with development consent. Clause 8(3) of the LEP requires that consent must not be granted unless the aims of the plan are taken into consideration and that the development is consistent with at least one or more of the objectives of the zone. Relevantly the aims of the LEP seek to protect and enhance the environmental qualities of the area and to facilitate the orderly and economic development of land. More particularly the objectives of the zone are to enable the development of a wide range of industrial and storage activities, which do not have a materially detrimental effect on the amenity of adjoining areas. There was no suggestion that the aims of the LEP or the objectives of the zone would be infringed by this development. 4 Also applicable to the site is the Great Lakes Industrial Development Code ("the code"). This code has been in force for some 30 years and notwithstanding that it is not a development control plan, being an adopted policy of the council it is a relevant matter for consideration. It contains building setback requirements that are not complied with by this proposal. 5 The application was notified and there were no objections. On 24 January 2006 having considered an officer's report the council decided to refuse the application for reasons relating to the non-compliance of the development with the setback requirements of the code as well as concerns regarding precedent and the public interest. 6 Whilst the tendered Statement of Issues contains nine separate issues under four headings the central issue in the proceedings remains essentially the same as the council's reasons for refusal, that being non-compliance with the setback requirements of the code. With the agreement of the respondent the applicant tendered an amended set of drawings that effectively increase the setback of the southern most building referred to as Building 'A', by comparison with the previous proposal. That revised proposal, has at the ground floor level, setbacks of 4.5 m, 3.5 m, 2.5 m and 7.5 m from Grey Gum Road. One element of the building at the first floor level has a projecting element 11 m wide that has a zero setback from Grey Gum Road. Notwithstanding these changes the respondent remained of the view that the proposed development fails to comply with the setback requirements of the code and should be refused. 7 As I have already indicated the code is a matter for consideration in dealing with this application. It is in a form that has remained essentially unchanged for some 30 years, however having been taken on an inspection of this Tuncurry Industrial Area I agree that it has not been consistently applied. Nevertheless one can see the essential requirements of the code emerging in the form of new development and the provision of landscaping in setback areas. In these circumstances the code should be given weight but should not attract determinative weight. 8 The code itself seeks to achieve, in the industrial zone, a pleasantness "that will make industrial areas attractive to employees and the public generally". Plainly to achieve this setbacks and landscaping as well as quality built form are required. More particularly the code provides that: "Building setbacks have been used in this code as the main control to govern landscaping and building spacing. The area between the street and the line of buildings is a particularly important element in appearance of industrial areas. Careful planting in this area will enhance the effect of well designed buildings and lessen the impact of badly designed ones and be a unifying element among buildings of widely different function and appearance. A building line 7.5 m from the street alignment shall be provided and apart from access drives and footpaths only landscaping is permitted in this area. Where a site has frontage to two streets a building line of 4.5 m maybe adopted for the minor street." 9 In the council officer's report to council it is noted that the code requires a setback of 7.5 m from the major street frontage but in the circumstances the council officer agreed to refer to Grey Gum Road as the minor street frontage in a manner similar to nearby industrial development to the west of the site. As a consequence a building setback of 4.5 m should be provided. 10 In my view Grey Gum Road is not the minor street and in normal circumstances I would have understood that a setback requirement of 7.5m should be provided under the code. However given the views of the council officer and taking into account the characteristics of the industrial development to the west of the site and what I have already said about the weight that should be given to the code I can accept that the 4.5 m setback would be appropriate. Notwithstanding this it is my view that Grey Gum Road nevertheless requires that any design of development including setbacks and landscaping should be given very careful consideration in the light of its significance and character as a collector road. In the circumstances I have decided that the 4.5 m setback area should be treated as a minimum and should comprise an area that is predominately landscaped, particularly given the reference in the code to the importance of the setback area as one that is occupied by planting to enhance or mitigate the effect of the buildings. It should be an area which is only occupied by built forms to a very minimal degree (whether at ground level or otherwise). Also I do not accept that a zero setback at the upper level would be able to achieve the landscaping objectives of the code because of the difficult of landscaping such an area. As a consequence I have decided that the development in its present form is not acceptable. 11 I understand that the applicant's architect wishes to have a building which has a presence in the streetscape. I do not accept that this indicative of a need to have portions of the building projecting to the street alignment. I have no doubt that this can be achieved in the manner anticipated by the code by the appropriate architectural design of a building in a landscaped setting. This site is also an important one in terms of the impression visitors and others would have when entering the estate. This is something that is sought by the code and would be better achieved by compliance with the 4.5 m setback which is a reasonable requirement taking into account that if Grey Gum Road were to be deemed a non minor street, a 7.5 m setback would otherwise be required. It would be relatively easy to redesign Building A in such a way that it would have an articulated form giving the kind of presence that the applicant seeks and exhibiting (at body levels) a substantial and at least average compliance over its length with the 4.5 m setback requirement. 12 I note that there are three footpaths extending from the building through the landscaped areas to the street frontage and I would expect that if these areas were about a metre or a metre and a half wide and were covered by some form of structure this would not be inappropriate in the streetscape. 13 As a consequence I have decided the development application should be refused. Whilst there were some other concerns about the proposal, for example the carparking layout I have no problem with this or any other aspect of the development. 14 Were I to have reached the conclusion that the application be refused on the basis of the setbacks from Grey Gum Road it was submitted on behalf of the applicant that I should allow the preparation of amended plans as to overcome any concerns. Such plans would plainly require a reconfiguration of the southern façade of the building. They would also require the preparation of a revised landscape plan and, at the suggestion of the Court, a reconfiguration of floor space at the first floor level in the midst of the site so as to recover, reasonably in my view, the floor space lost as a result of providing increased setbacks. Given the uncertainties of the outcome of such redesign it was submitted on behalf of the respondent that this should be done in the context of a fresh development application. 15 Whilst I would have preferred to have had an opportunity to consider in the context of these proceedings a revised design that would have met the concerns of the respondent. I have been persuaded by the respondent that the changes that are necessary to produce the quality design that is appropriate in the circumstances. I have thus decided that in the context of these proceedings, the preparation of and consideration of amended plans would not be appropriate. I have therefore decided that the appeal should be dismissed and the development application refused. I will retain Exhibits A and B. ___________________ T A Bly Commissioner of the Court Ljr/dlc 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.