Land and Environment Court of New South Wales CITATION : Waite v Blacktown City Council [2008] NSWLEC 1156 APPLICANT D Waite PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 11304 & 11306 of 2007 CORAM: Moore C Development Application :- KEY ISSUES: Prohibited use Compatibility with Growth Cetres plan Visual impact LEGISLATION CITED: Blacktown Local Environment Plan 1988 SEPP Sydney Region Growth Centres 2006 CASES CITED: Waite v Blacktown City Council 2004 NSWLEC 157 DATES OF HEARING: 26 March 2008 EX TEMPORE JUDGMENT DATE : 26 March 2008 APPLICANT Mr D Williams, solicitor Whitehead Cooper Williams LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor Houston Dearns O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 26 March 2008 07/11304 & 07/11306 Waite v Blacktown City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: Mr Waite owns a property of a little less thn 3 ha in size located at the 879 Richmond Rd, Marsden Park. 2 On the site he operates the number of enterprises, the primary ones of which are located within a large shed and awning structure on the north-western corner of the site. He conducts a variety of activities including nursery products and animals food products sales as well as a large fruit and vegetable sales area. 3 In Waite v Blacktown City Council 2004 NSWLEC 157, Lloyd J held that a proposal for a fruit and vegetable products market on the site would be a prohibited use being inconsistent with the provisions of the Blacktown Local Environment Plan 1988. However, a necessary corollary of Lloyd J's decision is that the produce store and pet food activities are permitted - being uses which fall squarely within or ancillary to activities within the definition of produce stall contained in the Local Environment Plan. 4 Mr Waite now seeks to extend in two aspects, through the two development applications which are the subject of these proceedings, that large shed like structure in the north-western corner of his site. First, he seeks to add a storage area for water tanks, irrigation pipes and the like in the north-eastern corner of the structure. 5 Although the initial application in Development Application 07/1093 was for a fully enclosed shed 6 m wide and 30 m long added to the existing structure, it was the evidence of Mr Apps, a senior planner on behalf of the council, that such a protective structure as proposed would be acceptable if it were merely an awning with some landscape planting provided in the space between the outer edge of that storage area and the northern boundary of Mr Waite's property. 6 Mr Waite has accepted that alteration as an appropriate response to his needs in that portion of the site. As a consequence of his acceptance and of my physical inspection of the area, I am satisfied that such an awning would be appropriate – provided there were amendments to the plans to reflect it and an attendant requirement for the planting of landscape screening trees which would reach a height at maturity of at least 6 m along that portion of the property boundary some 2 or 3 m in from that boundary. 7 As a consequence of accepting that and of Mr Apps' evidence, the proceedings concerning Development Application 07/1093 will result in that appeal being upheld subject to the submission of revised plans and conditions to give effect to the matters earlier discussed. 8 I now turn to Development Application 07/1094 concerning a proposed 12 m by 9 m extension to provide a storage area for pallets of garden supplies such under an awning. Such awning, if constructed, would effectively complete the overall rectangular shape of the structure which would be approved on the site. 9 The position advanced by Mr O'Connor, solicitor for the council, is that such a development extends beyond that which is reasonably necessary for the conduct of Mr Waite's business and is generally antithetical to the long-term goals for this area identified in the Structure Plan for the Northwest Growth Centre being an area within which the site falls. As a consequence of the site falling within the compass of SEPP Sydney Region Growth Centres 2006, a number of provisions, to which Mr O'Connor has taken me, apply – particularly the provisions of cl 16 dealing with consideration of development applications within the growth centre until there is a finalised precinct plan covering the land. 10 I am obliged to have regard, as a consequence of cl 16(1)(a) and (b): o first, whether the proposed development will preclude future urban and employment development land uses identified in the relevant growth centre structure plan; and o second, whether the extent of the investment in an operational and economic life of the proposed development will result in the effective alienation of the land from those future uses. 11 Those provisions, of necessity, take me to consideration of what future use was identified for this site in the north-west structure plan. 12 It is clear from the table which identifies the structure plan elements that Richmond Road, at Marsden Park, is identified as a future mixed use employment corridor. Further in the plan, it is specifically noted that mixed use employment corridors including that along Richmond Road, Marsden Park, are to provide an opportunity for a variety of commercial and industrial uses to take advantage of high levels of passing trade. 13 There is no doubt that Mr Waite's land, his present commercial uses and his proposed commercial uses are designed to take advantage of the high traffic volumes that past along Richmond Road. 14 I am satisfied, as was submitted by Mr Williams, solicitor on behalf of Mr Waite, that Mr Waite's present commercial development and the proposed extensions to it are entirely consistent with that aspiration stated in the Growth Centre Structure Plan. Therefore, I am satisfied that there is nothing that would inhibit me from granting consent to the proposed element in the southeastern corner on the basis of the SEPP Growth Centre Structure Plan. 15 However, Mr Apps also contends that there is no need for this additional area and that sufficient area would be available elsewhere in Mr Waite's complex if he were to cease what the council says is the prohibited activity being undertaken of selling fruit and vegetables. 16 This question is to be considered in the context where Mr Apps concedes that there is effectively little or no visual impact of this proposed extra structure when viewed from Richmond Road. 17 I am satisfied, from my walk around the property, that there would also be little or no visual impact of the accumulation of that element with the remainder of that which is already approved when viewed from the neighbouring property to the south. The distance to the neighbouring property to the west is sufficient that any viewing from it would be trifling. 18 It is not my role, in this Class of the Court's jurisdiction, to deal with the enforcement of any prohibition on the conduct of a fruit and vegetable sale operation on the site. That is a matter for the council to consider and, if necessary, the Court to determine in other Classes of the Court's jurisdiction. Whether or not there is a "need" is a matter entirely for Mr Waite's commercial assessment and judgment. 19 I am not satisfied that there is any overall aggregated impact that would render this element unacceptable. It may be that, had the council taken enforcement action to require the cessation of the fruit and vegetable sales activity, there would have been sufficient space elsewhere within the existing building for this additional activity to take place. However, that would also have been a matter for Mr Waite's commercial judgment rather than being a planning decision. 20 I am satisfied that, as a general planning proposition, there is no appropriate basis upon which I could refuse the south-eastern awning extension proposed by Mr Waite. However, it is also appropriate to consider that use in the context of the other uses which Mr Waite has proposed for what he says are appropriate and valid occupational health and safety reasons. These concerns require rearrangement of his business along the southern face of the large shed – being uses that are related to the use that is proposed for the additional awning area. 21 During the course of the hearing, Mr Waite indicated that he would be happy to accept a deferred commitment condition that construction of that additional awning not commence until after the rearrangement proposed along the southern side of the shed involving the removal of the various storage elements presently located there (being the cool room presently located there and some of the other storages) in order to reflect the uses set out on the two sheets of Exhibit B which will be reproduced as part of and appended to my position. 22 I am satisfied that it would be appropriate both to require that the use of those areas as depicted, by tidying and removing of the elements presently located upon there, should be a deferred commencement condition to be satisfied prior to construction of the awning being undertaken and that continuing use of that area consistent with the uses noted on the two sheets of Exhibit B are themselves appropriate to be conditioned as necessary and ancillary to the granting of development consent for this link use of storages of pallets of gardens supplies. 23 As a consequence, the appeal with respect to the awning will also be upheld and development consent granted for the awning subject to those changes of conditions – both a deferred commencement condition for rearrangement of this area and an ongoing use condition for the adjacent area. Tim Moore Commissioner of the Court 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.