Land and Environment Court of New South Wales CITATION : ATB Engineers Pty Ltd v Wollongong City Council [2008] NSWLEC 1471 APPLICANT ATB Engineers Pty Ltd PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 10662 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- bulky goods store, loss of industrial land. Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Infrastructure) 2007 LEGISLATION CITED: Illawarra Regional Environmental Plan No. 1 Wollongong Local Environmental Plan 2009 Wollongong City Centre Local Environmental Plan 2007 Wollongong Development Control Plan No. 6 - Commercial and Industrial Development DATES OF HEARING: 22/10/2008 and 23/10/2008 DATE OF JUDGMENT: 21 November 2008 APPLICANT Mr I. Hemmings, barrister Instructed by Russell McLelland Brown Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M. Seymour, barrister Instructed by Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 21 November 2008 10662 of 2008 ATB Engineers Pty Ltd v Wollongong City Council JUDGMENT Introduction 1 This appeal under s 97 of the Environmental Planning and Assessment Act 1979 relates to a development application for the modification and use of an existing older style industrial/warehouse building for the purposes of a bulky goods sales room at 1 Bridge Street, Coniston about 2 kilometres south of the Wollongong CBD. The products to be sold in the proposed sales room comprise various goods for babies, ranging from cots and prams to toys and clothes. 2 The almost rectangular site (lot 23 DP 879687) has an area of 6,517 m2. The existing building is positioned towards the centre of the site and is surrounded by concrete paved areas that are available for access, car parking, loading and unloading. 3 The surrounding locality is variously developed with office, industrial, warehouse, and bulky goods sales buildings. Also nearby are a school, a technical college and recreation areas. 4 Central to the appeal is the issue of whether the use of the site would be contrary to the council's studies and strategies of ensuring that lands zoned for industrial purposes are retained for such purposes. For reasons that I provide below I have decided that these recently adopted studies and strategies should attract determinative weight and because the proposed development is inconsistent with these and fails to meet the requirements of Wollongong Local Environmental Plan 1990 it should therefore be refused. Planning controls 5 The site is zoned 4(a) Light Industrial under Wollongong Local Environmental Plan 1990. Being included in category 4, a bulky goods sales room is permissible with development consent after the application has been advertising and provided that it satisfies cl 11 of the LEP. There was no dispute that, in accordance with the definition, the proposal comprises a goods sales room as defined in the LEP. As described below the application has been advertised but as contended by the council it does not satisfy cl 11. 6 Also applicable are: State Environmental Planning Policy (Infrastructure) 2007, Illawarra Regional Environmental Plan No. 1, Wollongong City Centre Local Environmental Plan 2007 and Wollongong Development Control Plan No. 6 - Commercial and Industrial Development. The draft LEP 7 The council has adopted draft Wollongong Local Environmental Plan 2009 and forwarded it to the Department of Planning seeking a certificate under s 65 of the Environmental Planning and Assessment Act 1979. A certificate has not yet been issued. 8 Under the draft LEP the site will be included in the General Industrial zone wherein the subject proposal would comprise bulky goods premises , such premises being prohibited. The draft LEP is intended to implement the planning recommendations of the abovementioned studies and strategies. Advertising and Council's refusal of the application 9 The application was advertised and two letters of objection were received from neighbouring properties. Expressed concerns relate to the use of the property as a retail land use rather than a wholesale outlet, insufficient car parking, increased vehicular traffic and resulting congestion. 10 The application was refused by notice of determination dated 14 August 2008 for reasons essentially because the proposed bulky goods sales room: o Does not satisfy all of the requirements of cl 11 of the LEP, o Does not comply with the objectives of the 4(a) zone, o Would have economic impacts in the locality, o Would be contrary to the public interest because it would be inconsistent and conflict with the Illawarra Regional Strategy, the Port Kembla Land Use Strategy, Wollongong Employment Lands Strategy , and the Department of Planning's Employment Lands Guidelines for the Illawarra, o If approved would set an undesirable precedent for similar inappropriate development. The statement of facts and contentions 11 The statement of facts and contentions identifies the following reasons why the development application must be refused: 1. The proposed development does not satisfy all of the requirements of cl 11 of LEP 1990 and as such consent cannot be granted. 2. The site is in an inappropriate location and is unsuitable for the proposed development because if carried out on the site the proposed development is likely to have an unacceptable adverse economic impact in the locality; and will be contrary to the public interest. The evidence 12 Expert town planning evidence, including a joint report - Exhibit 6 - dealing with these matters was provided by the following: - Miss T Smyth - Exhibit 4 (respondent) - Mr J Bridge - Exhibit 5 (respondent) - Miss E Treglown - Exhibits C & D (applicant) These experts also prepared a joint report (Exhibit 6) Clause 11 of the LEP 13 Clause 11 of the LEP is as follows: 11 Restrictions on granting certain consents (1) This clause applies to the granting of consent to a development application required to be advertised by item 4 of the Table to cl 9 and, pursuant to section 108 (3) of the Act to the granting of consent to a development application made pursuant to Part 5 of the Environmental Planning and Assessment Regulation 2000 . (1A) Any development that is the subject of a development application to which this clause applies is advertised development for the purposes of the Act. (2) The Council shall not grant consent to a development application to which this clause applies unless it is satisfied that: (a) the development is consistent with one or more of the objectives of the zone in which it is proposed that it be carried out, (b) the development is necessary for any one of the following reasons: (i) it provides a service primarily for the area, (ii) it meets an urgent community need, (iii) it comprises an owner-occupier operated small scale tourist related development, (iv) the most exceptional circumstances apply, (c) no more appropriately zoned site or (if appropriate) accommodation is available in reasonable proximity to the proposed development or the proposed development constitutes a change from an existing use, within the meaning of Division 10 of Part 4 of the Act, (d) adequate car parking (if relevant) can be provided and any increase in traffic will be small compared to existing traffic, (e) there will be minimal interference with the amenity of the area, (f) the development is generally in character with the scale and ambience of the immediate area, and (g) if the development will provide a service, there is a clear need for the service in the area. 14 The effect of cl 11(2) of the LEP on this development application is that before the granting of development consent I must be satisfied that each of sub cll (a) – (g) is complied with. The failure to comply with any one of these sub clauses means that the application must be refused. Clause 11(2)(a) of the LEP 15 Clause 11(2)(a) of the LEP requires consistency with one or more of the objectives of the 4(a) zone that are: a. To cater for a wide range of manufacturing and service activities that will not interfere with the amenity of nearby residents, and b. To allow some diversity of activities that will not prejudice achievement of the objective referred to in paragraph (a) or significantly detract from the operation of existing or proposed manufacturing and service industries or the amenity of nearby residents. 16 Coincidentally, cl 9 (3) of the LEP similarly provides that consent shall not be granted unless the development is consistent with the objectives of the zone. 17 The town planning experts agreed that, not being a manufacturing or service activity, only objective (b) is directly applicable to this application. Despite this, given the obvious inter-relationship between the two objectives they must both be considered. 18 Plainly the proposal is responsive to and thus satisfies the introductory part of objective (b), that being to allow ... some diversity of activities . However the council's experts argued, taking into account the size of the site, that by reducing the availability of land for … a wide range of manufacturing and service activities, the proposal would … significantly detract from the operation of existing or proposed manufacturing and service industries ... Miss Treglown disagreed, contending that the proposal is consistent with both of the zone objectives and particularly demonstrates consistency with objective (a). The studies and the strategies 19 In dealing with this issue the following studies and strategies are of particular importance as is the draft LEP: o Wollongong Local Government Area Employment Lands Strategy (adopted September 2006) (Exhibit 2 Folio 314), o Employment Lands Guidelines for the Illawarra (February 2008) (Exhibit 2 Folio 529), o Wollongong Retail Centre Study (adopted March 2005) (Exhibit 2 Folio 206), o Port Kembla Land Use Strategy (adopted March 2007) (Exhibit 2 Folio 456), o Illawarra Regional Strategy 2006-31 (January 2007) (Exhibit 2 Folio 448). 20 The Employment Lands Strategy includes the site in Precinct 16 and recommends that it remain as a light industrial zone, taking into account the precinct's area and present employment. It is a defined area that is easily accessed, with surrounding land uses that are compatible with light industry. The close by Port Kembla and Spring Hill heavy industrial areas are of regional significance to the economy. Importantly: Wollongong consists of only a limited supply of 4(a) zone land (5.75 ha), which is a further reason to ensure that the existing supply is preserved for employment use. Preserving this zone as light industrial will act as a buffer to the heavy industrial zoned land in Port Kembla to the south. The land uses are highly incompatible with residential uses. The precinct is well segregated from any residential area and is well contained with strong geographic boundaries. 21 The Employment Lands Strategy also recommends that bulky goods retail should be recognized as retail and not an industrial use. As such they should be located within existing commercial centres or in identified bulky goods clusters to promote their retail activity. Section 4.4 identifies the criteria for light industrial zones and recommends that bulky goods development not be permitted in such zones. 22 The Illawarra Regional Strategy requires that councils (in the Illawarra region) maintain the supply and protect regionally significant employment lands including the Port Kembla precinct. Specific and significant employment areas such as the port of Port Kembla need to be protected and supported to attract investment. Section 3 includes the site of this development in the Port Kembla Precinct that is identified as key employment lands for the purpose the of ensuring an adequate supply of strategically located land to support economic and employment growth. 23 The Port Kembla Land Use Strategy includes the site in Precinct 4 and recommends the rezoning of the precinct to General Industrial to permit a range of uses including port related development and to: Actively discourage competing land uses such as bulky goods retailing through appropriate controls under Port Kembla LEP and through promotion/marketing of the area for port related development. 24 Consistent with the Land Use Strategy, under the draft LEP the site is to be included in the General Industrial zone wherein bulky goods premises are prohibited. 25 The Retail Centre Strategy deals with the current and possible future retail centres hierarchy for the Wollongong local government area and recognizes that there will continue to be significant change in the industry. It recommends that the existing hierarchy of shopping centres be supported. It also recommends that peripheral (bulky goods) retailing be encouraged in specific locations whilst recognizing that the location and site criteria for this form of retailing cannot be easily met in or adjoining existing centres. The strategy also recognizes the growth in demand for products which are more suited to large retail formats. Miss Smyth's evidence 26 In coming to the conclusion that the approval of the proposal would prejudice the achievement of objective (a) of the 4(a) zone, Miss Smyth explained that approval of this proposal would reduce the availability of land for manufacturing and other light industrial activities by reference to the abovementioned studies and strategies (particularly the Employment Lands Strategy and the Regional Strategy ) that were prepared to inform strategic planning for the city. Relevantly these studies identify the limited supply of 4(a) zoned land that needs to be preserved for employment use. 27 She acknowledged that the proposal involves an element of assembly, repair and storage of products but disagreed with Miss Treglown, contending that these activities are ancillary to the bulky goods store that is essentially retail in nature. It thus cannot be described as a service activity that would enable it to meet objective (a) of the 4(a) zone. Mr Bridge's evidence 28 Mr Bridge was of the same opinion, addressing in detail the above-mentioned strategies and studies. He also explained the importance of the Wollongong City Centre Local Environmental Plan , (a joint effort by the Department of Planning and the council) which aims to focus retail growth in the city centre and to provide for supporting businesses such as bulky goods retailing in nearby areas supporting the centre. There are suitably zoned sites in South Wollongong, Coniston and along Flinders Street where development of this type is permissible. 29 As for the Employment Lands Strategy, he was of the opinion that the proposed development is contradictory with its recommendations, particularly the recommendation in Section 4.4 that bulky goods development not be permitted within light industrial zones. The site is included in Precinct 16 and the strategy recommends that it be retained as a light industrial zone taking into account the existing compatible surrounding land uses and the limited supply of such land in Wollongong. In this context he explained that by introducing a land use of a retail nature into the area this would not facilitate the protection of light industrial land that in turn could lead to a continuing erosion of industrial uses within the area. He was also concerned that the bulky goods store would draw retail customers into an industrial area with potential conflict with industrial uses and traffic. 30 As regards the Illawarra Regional Strategy, Mr Bridge noted that in relation to the Port Kembla precinct, the strategy aims to ensure an adequate supply of strategically located land for the manufacturing sector and the protection of such land from inappropriate development. The proposed development would contradict this approach. 31 Similarly the proposal contradicts the Port Kembla Land Use Strategy that seeks to discourage bulky goods retailing in this precinct and instead should promote/market the area for port related development. As for the Employment Lands Guidelines Mr Bridge emphasises the principles that seek to preserve lands for employment generating uses including the need to discourage bulky goods from being located in light industrial zones, these being recognized as retail rather than an industrial use. 32 Finally, Mr Bridge explained that the draft LEP is consistent with and will implement the planning recommendations of the above-mentioned studies. The proposed development is inconsistent with the draft LEP that will prohibit bulky goods stores. He also noted that the studies and strategies that inform the draft LEP have brought about an increased number of refusals under cl 11 of the LEP although other reasons for refusal were also involved. Miss Treglown's evidence 33 Miss Treglown was of the opinion that the proposed bulky goods store is predominantly consistent with objective (b) of the 4(a) zone because it will not detract from the operation of existing or proposed manufacturing or service industries. It will also address objective (a). 34 In her report she explained that the site is eminently suitable for this development given that it has good vehicular access and parking and traffic generated would have little impact on current traffic volumes. It will not cause any amenity impacts due to noise, vibration, smell smoke dust or the like, the nearest residences being some 300 m distant. Also, the building is to be upgraded and its external appearance improved a further benefit to the amenity of the locality. In noting that the surrounding area is developed with a range of land uses including light industry, warehousing, offices, commercial premises and bulky goods sales rooms, she was of the opinion that the proposal will not detract from the operation of existing or proposed manufacturing or service industries on surrounding lands. 35 She also pointed out that in recent years the council has granted consent for a number of land uses other than manufacturing in the Wollongong local government area including a three-year approval in January 2008 for an educational establishment on the adjoining site. She also refers to a number of other non-industrial approvals in various other industrial zones, including bulky goods stores in light industrial zones. 36 Miss Treglown also explained that there would be a small component of manufacturing undertaken on the site involving for example the assembly of baby furniture and repair work. In addition there is a warehousing element to the proposal. Hence the development could be described as a service activity that would meet objective (a) of the 4(a) zone. Conclusions - Clause 11(2) of the LEP 37 In relation to objective (a) of the 4(a) zone, I accept the evidence of Miss Smyth that because the proposed bulky goods store does not comprise manufacturing and service activities it cannot meet this objective. In this regard I agree that, taking into account the likely extent of the assembly of baby furniture, repair work and the storage of products that are to be sold from the premises, these activities are ancillary to what is the proposal's principal retail purpose and cannot be described as manufacturing or service activities. 38 In relation to objective (b) of the 4(a) zone, as noted above the proposed bulky goods store would introduce In relation to objective (b) of the 4(a) zone, as noted above the proposed bulky goods store would introduce some diversity of activities into this locality. In this regard I agree that the site is physically suitable for the proposal and that it would have little or no impact on the amenity of the surrounding area including nearby residential development. Despite this I accept the evidence of Miss Smyth and Mr Bridge in preference to that of Miss Treglown, to the effect that the proposal does not meet objective (b) because, not being a manufacturing or service activity, it would reduce the availability of land for … a wide range of manufacturing and service activities. In this context, the size of the site is important. I also accept Miss Smyth's contention that it could detract from the operation of future manufacturing and service industries in the locality, particularly neighbouring properties, although I do not accept that this aspect of the proposal is determinative. 39 Plainly, taking into account that a bulky goods sales room is permissible with consent it is, subject to cl 11 of the LEP, one of the diversity of activities anticipated by objective (b) of the 4(a) zone. Whilst permissibility is a relevant consideration, the important merits question is whether this site should be maintained for industrial uses rather than allowing it to be used for a bulky goods store. In this regard, taking into account the above-mentioned studies, strategies and plans together with the evidence Miss Smyth and Mr Bridge I have been persuaded, that the proposal would, by limiting the availability of land for these purposes, prejudice opportunities for manufacturing and service activities in the 4(a) zone. 40 In reaching this conclusion I have given significant and determinative weight to the common theme of these studies and strategies that seeks to ensure that the availability of industrial lands for employment purposes is maintained, and which effectively culminate in the draft LEP that will prohibit bulky goods stores on this site. I so conclude, notwithstanding that the studies and strategies were adopted by the council without having been advertised and that a s 65 certificate has not been issued for the draft LEP. This is because the measures in these studies and strategies and the draft LEP reveal a consistent approach by the Department of Planning and the council towards the protection of industrial zoned lands for industrial employment purposes over a number of years and this is sufficient for them to attract determinative weight. 41 As a result I find that by not meeting either of the objectives of the 4(a) zone the application fails the tests in cl 9 (3) and cl 11(2)(a) of the LEP and as a consequence it must be refused. In the circumstances it is unnecessary for me to deal with the remaining provisions of cl 11 or the second of the two contentions. I do however wish to make a number of observations regarding these matters. 42 In relation to cl 11(2)(b) of the LEP I accept the evidence of Miss Smyth in relation to the question of the necessity for this development on this particular site. Whilst it would provide a service for the Wollongong community I do not accept that it provides a service primarily for the area in which it is located, as required by the subclause. Similarly whilst there is an undoubted demand for stores of this kind I do not accept that it meets the test of meeting an urgent community need. 43 In dealing with cl 11(2) (c) of the LEP the respondent identified a number of sites that it says would be suitable for the proposed bulky goods store. The Court inspected these sites and I agree that there was probably only one that would have been large enough to meet this applicant's requirements, although it would require significant redevelopment and resolution of flooding problems. 44 As for cll 11(2)(d) and (e) of the LEP it is clear to me that the site would be suitable for the proposed development. Also the traffic and any other impacts generated by the development would cause minimal interference with the amenity of the area. I also anticipate that in relation to cl 11(2)(f) that the development would be generally in character with the scale and ambience of the locality. 45 Finally, I was invited to take into account several development consents that were granted by the council for bulky goods stores in light industrial zones in Fairy Meadow and Spring Hill as recently as August 2007. These decisions not should attract any determinative weight in relation to this application which is in a different location and must be dealt with on its own merits. Also, whilst council's recent approval of non industrial developments in this area is of concern I do not accept that these approvals should affect my decision in this case. Orders 46 For the above reasons, the use of this site for a bulky goods store would be inappropriate and as a consequence the orders of the court will be that the appeal is dismissed and the development application determined by refusal. ___________________ T A Bly Commissioner of the Court ljr - 2 - 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.