Land and Environment Court of New South Wales CITATION : Premier Customs Services Pty Limited v Botany Bay City Council [2010] NSWLEC 1052 APPLICANT Premier Customs Services Pty Limited PARTIES : RESPONDENT Botany Bay City Council FILE NUMBER(S) : 10847 of 2007 CORAM: Dixon C KEY ISSUES: DEVELOPMENT APPLICATION :- airfreight forwarder - parking - loading dock - manoeuvring on site - impact on adjoining residential dwelling - impact on amenity of neighbourhood LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Botany Local Environmental Plan 1995 Architectural Properties Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 CASES CITED: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Stockland Development v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373 DATES OF HEARING: 9 November 2009, 10 November 2009 and 11 November 2009 DATE OF JUDGMENT: 15 March 2010 APPLICANT: Ms H P Irish (barrister) instructed by Mr V Conomos Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Mr T S Hale SC instructed by Mr T O'Connor Houston Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C 15 March 2010 10847 of 2007 Premier Customs Services Pty Limited v Botany Bay City Council JUDGMENT Introduction 1 This is an appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 ('the EP&A Act"), against the council's deemed refusal of the applicant's development application (No. 07/393) for consent to construct a two-storey industrial building for use as an "air freight forwarder" at No. 21 Bay Street, Botany. 2 The matter is remitted to this Court for determination in accordance with the Court of Appeal's decision in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 and the issues raised in the amended Statement of Facts and Contentions filed with the Court's leave on 23 September 2009. 3 The central question for determination is whether this site is suitable for the development or the development is an overdevelopment of the site. 4 Following a view of the site and a consideration of the evidence and the relevant matters in section 79C of the EP&A Act I am not satisfied, as is required by section 17(1) of the Botany Local Environmental Plan 1995 (BLEP), that the development provides adequate off street parking or an efficient and safe system for the manoeuvring, loading and unloading of vehicles. The development's reliance on a turntable and a plan of management to facilitate manoeuvring, and unloading supports a conclusion that the development is an overdevelopment of the site. Accordingly, I refuse the application and dismiss the appeal. I set out more fully the reasons for this decision below. The site 5 The site is positioned mid block fronting Bay Street with a frontage of 9.29 metres and a rear boundary of 7.645 metres and an area of 217 square metres. 6 It is constrained by both its allotment size and its location within a mix of existing residential dwellings and industrial buildings and a general industrial zoning, which no longer allows residential development. The aerial photograph at Figure 3 shows the site in its context. 7 On the eastern boundary it adjoins a small residential cottage that has been built to the common boundary and on its southern boundary is a one and two storey office and warehouse building and next to that is another residential cottage. It adjoins on the western boundary a builder's yard then two timber cottages one of which is a heritage item known as No. 19 Bay Street. 8 Directly opposite the site is vacant land with heritage listed verge plantings of Canary Island Date Palms and further along the northern side of Bay Street is Botany Public School. The proposal 9 The agreed facts describe the proposal as: A two storey building approximately 6.85 metres in height with a gross floor area of 179.25 m2 comprising 73.8 m2 of storage area including the loading bay and105.45m2 of first floor office space; Three off-street parking spaces are proposed to service the development and these parking spaces are proposed to be located within the front setback area of the site (and subject to a plan of management which will allow access to the loading bay located in the building). Provision of a vehicle turntable is located within the front setback area of the site to allow all vehicles to leave the site in a forward direction; The proposed building will be setback 5.029 metres from Bay Street, 1.629m from the eastern side boundary, where it has an interface with a residential dwelling house and a zero building setback on the western property boundaries; The rear building setback is 0.985m; The proposal provides at least 10% landscaped area (council calculated 10.4% and the applicant calculated 25.5% in the statement of environmental effects and 40% in its statement of evidence dated February 2008) It is proposed to use the building as an airfreight forwarder for light cargo. 10 Appendix "A" is the applicant's proposed plan of management of the development and it forms part of the proposal. The applicant submits it should be incorporated as a condition of the consent. 11 Figure 1 and Figure 2 are the site plan and northern elevation to Bay Street and show the proposal. 12 The application has been advertised (twice) and letters of objection were received. They raise objection to: the inadequate site area, the vehicle turntable forward of the front setback, overshadowing, and non-compliance with council's policies and the architectural design. The current owners of the adjoining residential cottage at No. 23 Bay Street attended the hearing and addressed the Court and explained that they were concerned about the proximity of the development to their boundary and they were fearful that they would lose both sunlight and privacy from their kitchen windows and rear yard. The owner of the dwelling at the rear has concerns about the impact of the development on her rear boundary which presents as a solid dominant wall. A number of other local residents also attended the onsite inspection and in their evidence raised similar concerns about the development. 13 In addition to the evidence of the residents the Court received written and oral expert evidence from Mr Varga (for the applicant) and Mr Hallam (for the council) in respect of the traffic issues and from Mr Betros (for the applicant) and Mr Bas (for the council) in relation to town planning matters. The court also had the benefit of comprehensive written submissions from the parties' legal representatives. The Council's contentions 14 The contentions between the parties, particularised in the amended Statement of Facts and Contentions filed on 23 September 2009 and refined by the hearing may be summarised as: i. Whether the proposed car spaces, the loading dock and manoeuvring area is satisfactory. ii. Whether the proposed landscaping is sufficient and satisfactory and whether there is an excess of hard paved area. iii. Whether the amenity of adjoining residential development is adversely affected. iv. Whether the development would be out of character with the desired future character of the area taking into account the industrial zoning of the land and the existence of close by residential development. v. Whether the setbacks of the proposed building from all boundaries meet the requirements of the development control plan. vi. Whether approval of this application would set an undesirable precedent. The Statutory Controls 15 The statutory controls identified in the amended Statement of Facts and Contentions include: Botany Local Environmental Plan 1995 - clauses 17(a), (b), (e), (f), (g), (h), (i) and (j) and clause 22. Botany Development Control Plan No. 33 - Industrial Development (2005) (DCP No. 33) - Section 3.0 - General Design Elements B9, B3, B7, C1, C2 and C4. Botany Development Control Plan No. 1 - Off Street Car Parking (1993) (DCP No. 1) - clauses 3.3 and 4.2. Botany Development Control Plan No. 32 –Landscape (2003) ((DCP No. 32) - Part 1 and Part 3 and appendices, Botany Subdivision Development Control Plan. 16 The site is zoned 4(a) Industrial under Botany Local Environmental Plan 1995 (BLEP). It is a general industrial zone that permits a wide range of industrial uses including an "air freight forwarder". 17 The primary objective of the zone is: " ... to ensure that development for industrial purposes is carried out in a manner that contributes to the economic and employment growth of the area and, in so doing, improves amenity and does not adversely affect the environment or give rise to unacceptable levels of risk ." 18 Before granting consent to any development to be carried out on the site I must be satisfied about the matters in clause 17(1) of the BLEP. Council contends the relevant matters are subclauses (a), (b), (e) (i) and (j) of clause 17(1) which require that: "(a) the development provides adequate off street parking, (b) the development provides an efficient and safe system for the manoeuvring, loading and unloading of cars, ... (e) there is sufficient area onsite for the storage and parking of vehicles associated with the operation of the development ... (i) the design and operation of the development will protect the visual and aural amenity of adjoining non- industrial uses. (j) any noise generated from the operation of the development is minimised." 19 Located within the Botany (West) Industrial Precinct under Section 2.5 of Botany Development Control Plan No 33- Industrial Development (DCP No. 33) the site is described in subsection (1)(a) as "The area north of Hale Street". This means that the development falls within "new construction and new uses" and Sections 1.0 - Introduction, 2.0 - Design Quality Principles and Precinct Controls and 3.0 - General Design Elements of the DCP No. 33 apply. 20 Although the site adjoins a residential cottage it is not (according to Map 6 Botany (West) Industrial Precinct) a zone interface between industrial and residential zones. The Council contends the DCP No. 33 "prescribes" the controls for appropriate design of industrial development on this site between existing residential and adjoining industrial development. The DCP No. 33 controls the size, landscaping, functioning, and presentation of the new industrial development to the street and regulates the relationship between the existing and the new development and thereby the suitability of the new industrial development. The written and oral submissions of each party address the relevant planning controls, particularly the weight I should give to the planning controls in the DCP No. 33 in the light of the Court of Appeal's decision. Contentions Insufficient parking 21 I will deal with the evidence in respect of the contentions raised by council, which relate to the adequacy of parking onsite, and the adequacy of the loading facilities and manoeuvring area. 22 Mr Varga, the applicant's traffic expert considers that "the proposed development is ideally suited to the specific needs of the applicant, in that it can fully accommodate the parking and delivery needs of the Applicant within the site" (Para 9 of the Joint traffic report Exhibit 11). 23 Based on Mr Varga 's traffic survey and assessment of the parking needs of an airfreight forwarder on this site (as provided by the Off Street Parking DCP) he identifies that this development generates a need for three car spaces. He says that this development provides three spaces at a width of 2.4 metres which is short of the recommended minimum width set out in the DCP No. 33 but compliant with AS2890.1 for long stay employee parking. In addition to the spaces provided onsite, Mr Varga's evidence is that there is ample spare on street parking capacity readily available in the immediate vicinity of the site. 24 The three parking spaces are to be constructed within the front set back as indicated on DA:0510-02 Revision C dated 20 February 2008 and the vehicular access to the site is to be provided via a single 5.1m driveway to be located in Bay Street. To ensure compliance with council's control of forward entry and exit to the site the development proposes a turntable to access the parking, it is to be located between the building alignment and the front setback and compliance with a plan of management for the movement of vehicles. 25 Mr Varga's evidence is that the proposed parking is sufficient, the hard paving is not large and the Court would be satisfied that clause 17(1)(a)-(j) of BLEP 1995 are met, and that in the particular circumstances of this case it is not appropriate to apply the DCP No. 33 requirements in Section 3.0 - General Design Elements: B7 - Setbacks and C1 - Landscape or (if it applies) C4 - Residential/Non-Residential Interface. 26 Mr Betros, the applicant's planner supports Mr Varga's evidence. Mr Betros says, despite a breach of General Design Element B9 - Parking and Vehicle Access (objective O1 and guideline G5) in DCP No. 33 which requires off street parking to be set behind the building alignment away from the street frontage, the parking and loading is integrated with the form and arrangement of the building on the site and is located away from the street frontage and the turntable is set one metre from the front property boundary and screened by planting and in the circumstances of the case this is acceptable . 27 Mr Hallam, council's traffic expert, is of the opinion that this development provides insufficient parking, loading and manoeuvring onsite and does not satisfy the requirements of clauses 17(1)(a)(b) and (e) of the BLEP and therefore the development can not be approved. 28 In Mr Hallam's expert opinion it would have been prudent for the applicant to provide car parking in line with the requirements of the Council's Off Street Parking DCP for factories/warehouses and to provide a separate and individually accessible loading dock. In his expert opinion, the development's numerical compliance with the parking need identified in the traffic study carried out by the applicant does not result in satisfactory or sufficient parking for this development. Mr Hallam assesses that practically only 2 car spaces are provided onsite for this development because one of the nominated car spaces needs to be kept free to allow access to the loading bay located inside the building. In his assessment the development does not satisfy clause 17(1) of the BLEP or the Off Street Parking DCP adopted by General Design Element B9 - Parking and Vehicle Access of the DCP No. 33. 29 Mr Hallam does not support the siting of the parking forward of the building within the front setback and agrees with Mr Bas' evidence that it demonstrates that the site is too small to accommodate this development. 30 Mr Hallam is also critical of the ceiling height of the ground floor to first floor of the loading dock because it will only accommodate a vehicle of up to 2.6 metres to 2.7 metres in height. He says this height will restrict the type of vehicle accessing the loading dock. The applicant's answer to this issue is to incorporate a plan of management into the conditions of consent to dictate the type of vehicles to be used in the development. The suggested constraint is: " 2. All deliveries to/from the site are to be undertaken using light commercial vehicles such as the company owned Holden Rodeo Utilities " 31 A plan of management proposed by the applicant to prescribe many aspects of the use of this development including the size and make of the vehicle delivery truck, but also the number of deliveries, and the movements of all vehicles onsite it states: " 6. All vehicles shall enter the site whilst travelling in a forward direction only… 7. Upon arrival at the site all deliveries shall be driven onto the turntable. The delivery vehicle shall be rotated on the turntable to enable it to be reversed into the proposed loading dock " 32 The applicant's evidence is that the plan of management ideally suits the applicant's business and it should be imposed as a condition of the consent. Mr Varga also suggests that "Any change to a different Air Freight Forwarder occupant would be subject to the same consent conditions and Plan of management that will apply to the current Applicant" (para 15 Exhibit 11). 33 Mr Hallam and Mr Bas do not support the use of a plan of management as a condition of this consent. Both experts express concern that a development consent runs with the land and although this applicant accepts the proposed plan of management as a condition of the consent it may not work for another operator. They also submit it is impractical, unworkable and unenforceable. Short of policing the site 24 hours a day to ensure compliance with the plan of management, Mr Hallam says that based on his experience with such plans of management, it is unlikely to be complied with and if it is not complied with there will be an adverse impact on the amenity of the adjoining residence and public street. For example, if deliveries are unloaded in the car spaces rather than in the loading dock or if cars need to queue on the street to wait for a vehicle to vacate the middle car space to allow entry into the loading dock there will be noise and traffic congestion for the neighbours and the safety of pedestrians including school children will be compromised. His evidence is that the development does not comply with General Design Element B9 - Parking and Vehicular Access (Objective O1, Guideline G5) or clause 4.2 of Council's Off Street parking DCP that seeks to avoid the queuing of vehicles on the public road while the car space to access the loading dock is vacated. In Mr Hallam's opinion these operational deficiencies and breaches cannot be justified. 34 The Council relies on Objective O1 of General Design Element B3 - Site Area and Frontage of the DCP No. 33 that provides: "…the site of new industrial development [is to be] of a sufficient size to provide a functional and efficient area for buildings, vehicle parking and movement, landscaping and the storage of raw materials, finished products, trade waste and recycling bins." Mr Bas and Hallam say in their evidence that this site is not of sufficient size to achieve Objective O1 or Objective O2 that states: "To ensure that all loading and unloading, turning movements, queuing, and parking of vehicles, including delivery vehicles associated with the new development occurs wholly within the site". Mr Bas's evidence is that the way to achieve the DCP No. 33 Objectives 01 and 02 04 is to consolidate this site with an adjoining site as is suggested by Objective O3. 35 Mr Hallam's final assessment is that the onsite traffic arrangements for this development are substandard and while the applicant might be prepared to put up with a "sub –standard site design" that does not justify approval of this application. Finding 36 I accept the applicant's evidence that the identified car parking need for this development is three car spaces. 37 I accept Mr Hallam's assessment that practically this development only provides two car spaces because the third needs to be kept free to enable access to the loading bay. 38 The workability of this use in this development relies upon strict compliance with the plan of management. However, I accept the evidence of Mr Hallam, based on his experience, that it is highly unlikely that there will be strict compliance with the plan of management on a daily basis and if his expert assessment is correct the result will be an adverse impact on the amenity of the adjoining residence and the neighbourhood generally. I agree with council's evidence that it is unlikely that all delivery vehicles or for that matter any vehicle will move according to the plan: "7. Upon arrival at the site all deliveries shall be driven onto the turntable. The delivery vehicle shall be rotated on the turntable to enable it to be reversed into the proposed loading dock". 39 The Court in Renaldo Plus 3 Pty Limited V Hurstville City Council [2005] NSWLEC 315 considered when a plan of management is appropriate and posed a number of questions. The council has invited me to consider that judgement in dealing with this application and the evidence supports a finding that the applicant's proposed plan of management is too prescriptive and requires people to act in a manner that is unlikely and unreasonable. I accept Mr Hallam's and Mr Bas's assessment that in practical terms the plan of management is unenforceable and does not provide a proper planning outcome for this site. I accept that short of 24 hour policing by council the plan of management will not be adhered to. There is no reasonable method of updating the plan of management without a section 96 modifications and that adds to the impracticality of the imposition of such a condition if it is specified in the consent as a condition. 40 Further, the plan of management is specific to this applicant's needs and does not recognise that a consent runs with the land and I do not accept Mr Varga's assessment that another operator could comply will this plan as a condition of consent. It is inappropriate for the Court to impose a condition which is both unreasonable and unenforceable. 41 I accept Mr Hallam's expert assessment that this development provides for "substandard" traffic arrangements and I am not satisfied as required by clause 17(1) of the BLEP that "(a) the development provides adequate off street parking" or "(b) the development provides an efficient and safe system for the manoeuvring, loading and unloading of cars" or "(e) there is sufficient area onsite for the storage and parking of vehicles associated with the operation of the development." The inability of this development to satisfy me that it adequately deals with the parking, loading and manoeuvring provisions in clause 17(1) of the BLEP means that I am not able to grant consent to this development. In terms of section 79C(1)(c) of the EP&A Act the evidence leads me to conclude that the site is not suitable for the development. 42 I will briefly deal with the other contentions which support my decision. Consolidation 43 To achieve the objectives of the DCP No. 33 council refers me to Objective O3 in General Design Element B3 - Site Area and Frontage which encourages small-sized allotments in the established industrial areas to be consolidated. 44 Council says this small site should be consolidated with an adjoining site to achieve the objectives of the DCP No. 33. I appreciate that Mr Marshall's efforts to date have not achieved consolidation but I am not persuaded this could not occur in the future. There is no evidence before me that a refusal of this application will in any way sterilise this site and I accept Council's submission that the Court has held in Architectural Properties Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 that the fact that an applicant may suffer some temporary financial hardship if it is unable to develop the land until some time it is able to consolidate with other lots does not warrant the approval the development of an unsuitable site. The suitability of the site for the development is a relevant consideration under section 79C(1)(c) of the EP&A Act. 45 In any event, the zoning allows for other development/uses for this site, and the applicant may chose to explore those opportunities. Setbacks 46 Control C4 - Residential/Non-Residential Interface is specific to Botany (West) Industrial Precinct. It provides "development is not to adversely impact on the surrounding residential areas". This site adjoins a residential cottage at No. 23 Bay Street and General Design Element B7 - Setbacks of the DCP No. 33 (inclusive of landscaping setback) requires a three-metre setback from the eastern boundary and a two-metre setback from the west. The eastern boundary of this site has a dog-leg and the evidence is that the setback will be between 1.69 metres and 3.21 metres from the residential cottage which adjoins No. 23 Bay Street. I agree with Council's expert evidence that the landscaping is inadequate in the circumstances of the case and symptomatic of the site being too small for this development. 47 Council submits that his development does not meet the DCP No. 33 design quality principles and the fact it is a small size is not sufficient reason to abandon the relevant planning requirements. 48 According to the evidence of Mr Bas, the Council's town planner, the controls in the DCP No. 33 were adopted after widespread community consultation and should be complied with by this new development. According to his evidence this is one of the first redevelopments in Bay Street under the DCP No. 33 and General Design Elements B3, B7, B9, C1, C2 and C4 which provide for proper development of industrial land including this site. The Council submit it has consistently applied these controls to new developments and consistency of planning is to be promoted. I accept the applicant's submission that each site may justify a variation of those controls in the circumstances of the case and I observed that to be the case on the view. However, in the circumstances of this case the evidence does not support a variation of the relevant controls. 49 I accept the applicant's submission that Section 3.0 - General Design Elements outlines the general requirements which apply to "industrial related development" and that those controls although described as "mandatory requirements that must be met by the development" are not determinative. They are, however, controls which I am required to have as a focal point in my assessment under section 79C of the EP&A Act: Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [75]; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 the Court of Appeal held that it is not open to me to take the view that the controls set by the DCP No. 33 are generally inappropriate but may be varied in the circumstances of the case. 50 However, in this case the evidence does not support a variation of the setback controls on the eastern boundary, or the car parking within the frontage of this development site, or the hard paving in the front setback. Based on the evidence I am not satisfied that this development which sits between 1.69 metres and 3.21 metres from the existing residential cottage at No. 23 Bay Street will, as clause 17(1)(i) of the BLEP requires "…protect the visual and aural amenity of adjoining non industrial use." In my opinion there will be unacceptable amenity issues between the existing and the new if this development is approved. Conclusion and orders 51 In conclusion, based on the evidence I am not satisfied that the development should be approved on a merits assessment under section 79C of the EP&A Act. I accept Mr Hallam's expert assessment that this development provides for "substandard" traffic arrangements and I am not satisfied as required by clause 17(1)(a) of the BLEP that "the development provides adequate off street parking" or (b) "the development provides an efficient and safe system for the manoeuvring, loading and unloading of cars" and (e) there is sufficient area onsite for the storage and parking of vehicles associated with the operation of the development" 52 The inability of this development to satisfy me that it adequately deals with the parking, loading and manoeuvring, provisions in clause 17(1) of the BLEP means that I am not able to grant consent to this development. The evidence discloses that this site is not suitable for the development and it is an overdevelopment of the site. Accordingly, the Court's Orders are 1. The appeal is dismissed. 2. Development Application number 07/393 is refused. 3. The exhibits are returned, except "A", "G", "M", "2" and "2A". ___________________ Susan Dixon Commissioner of the Court Figure 1 Figure 2 Appendix "A" Figure 3 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.