Set aside by Appeal : [2009] NSWCA 226 Land and Environment Court of New South Wales CITATION : Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185 APPLICANT Premier Customs Services PARTIES : RESPONDENT Botany Bay City Council FILE NUMBER(S) : 10847 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- Air freight forwarder, parking, loading and unloading and manoeuvering, residential amenity, landscaping and setbacks. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 15 and 16/04/2008 DATE OF JUDGMENT: 23 May 2008 APPLICANT Miss H. Irish, barrister Instructed by Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr T. O'Connor, solicitor of Houston, Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 23 May 2008 10847 of 2007 Premier Customs Services v Botany Bay City Council JUDGMENT Introduction 1 This appeal relates to a development application for a two-storey industrial style building in botany, not far from Sydney Airport. The development is described as proposed offices and warehouse including on-site parking to be used for a boutique style air freight forwarder involving the import and export of small-scale cargo. 2 The ground floor of the building will mainly comprise a loading dock and storage area and the first floor is to be used for associated office purposes. Three car parking spaces two of which are to be utilised by the delivery vehicles are provided in front of the loading bay with two of these spaces positioned within the building's undercroft. In front of these spaces is a turntable, to enable cars and delivery vehicles to enter and leave the site in a forward direction. Landscape areas of varying widths are provided adjacent to the turntable close to the site's frontage and along much of the eastern boundary. Because the building is positioned on the western boundary of the site, other than the landscaping adjacent to the turntable there is no landscaping along this boundary. 3 The vacant, rectangular shaped site at 21 Bay Street, Botany has an area of 214 square metres and a frontage of 9.29 m to Bay Street. The surrounding area consists of a mixture of older style residential dwellings and industrial/warehouse uses. Adjoining the site to the east is a single storey cottage that is positioned essentially on the common boundary. To the south is a one and two-storey office and warehouse building. To the west is a single storey cottage of heritage significance (on a 16 m wide site) that is positioned more than 10 m to the west of the common boundary. 4 This judgment finds that on its merits the proposed development is satisfactory and can be approved. Planning controls 5 The site is zoned 4(a) - Industrial under Botany Local Environmental Plan 1995. The 4(a) zone is the general industrial zone in the City of Botany Bay permitting a wide range of industrial style uses including bulk stores, car repair stations, container terminals, materials recycling yards, retail plant nurseries, road transport terminals, warehouses, distribution centres and the like together with a number of ancillary and other uses such as child-care centres, community and recreation facilities and convenience shops. The primary objective of the zone is to ensure that development for industrial purposes (presumably the industrial style purposes that are permissible in the zone) is carried out in a manner that contributes to the economic and employment growth of the area. Concurrently there is to be no adverse impact on the environment and amenity is to be improved. 6 Of particular relevance to this application is the fact that in the 4(a) zone an air freight forwarder is a form of development that is particularly identified as being permissible with development consent. Notwithstanding the existence of numerous dwelling houses in the zone residential development is prohibited. 7 Clause 12 of the LEP imposes a maximum floor space ratio of 1:1 in the 4(a) zone and this development standard is comfortably complied with by be proposed building. Clause 17 requires that before granting consent to any development in the 4(a) zone the consent authority must be satisfied as to a number of relevantly applicable matters including: off-street parking; loading and unloading of vehicles; landscaping; height, scale and design; and the amenity of adjoining non industrial uses. 8 Also relevant to the application are the following development control plans: o Development Control Plan No.33 - Industrial Development o Off-Street Parking Development Control Plan 9 Whilst subdivision is not involved, Development Control Plan No 7 - Subdivision provides that any lot created within any industrial zone shall have a minimum area of 1,500 square metres and a minimum frontage of 25 m. plainly, the subject site does not (in common with a number of other lots in Bay Street) meet this standard. Public submissions and council's decision 10 The application was advertised and two letters of objection were received raising concerns involving: o The inappropriateness of having industrial development amongst residential development. o Overshadowing of neighbouring properties. o Unsatisfactory parking and manoeuvring arrangements. o Inappropriate architectural design and incompatibility with the neighbouring heritage item. 11 The appeal is against the council's deemed refusal of the development application. 12 A similar proposal that was refused by the council was the subject of an unsuccessful appeal to the Court (Meriden Freight v Botany Bay Council [2007] NSWLEC 318). The council's contentions 13 In essence the contentions of the council now comprise: o Whether the proposed provision of car parking spaces, the loading dock and the manoeuvring areas is satisfactory. o Whether the proposed landscaping provision is sufficient and satisfactory and whether there is an excess of hard paved areas. o Whether the amenity of adjoining residential development is adversely affected. o 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 o Whether the setbacks of the proposed building from all boundaries meet the requirements of the development control plan. o Whether approval of this application would set an undesirable precedent 14 Before dealing with the contentions/issues I note that the applicant has agreed to the council's without prejudice conditions of consent and a plan of management that contains additional constraints on the manner in which the proposed development can operate. These constraints mainly comprise: o Deliveries to and from the site are to be undertaken using small light commercial vehicles and these are to be limited to 3 to 4 per day. o Delivery vehicles are to enter the site in a forward direction, then be rotated on the turntable so as to reverse into the loading dock. o Delivery vehicles can only be unloaded within the loading dock with no delivery is being permitted from a public place. o Delivery items comprise envelopes and small boxes. 15 In essence it was submitted on behalf of the council that the application should be treated as a development comprising an office and warehouse building that is to be used as an air freight forwarder and if I understand this submission correctly this means that the requirements of the planning controls (particularly the controls for car parking and loading/unloading facilities) insofar as they apply to offices and warehouses should be imposed. 16 However taking into account that an air freight forwarder is a separately identified form of development in the LEP (together with the agreed conditions of consent that incorporate the plan of management), I am of the opinion that the application should be dealt with as one comprising the construction of a building to be used for the purpose of an air freight forwarder. Car parking and loading dock 17 The design quality principles and requirements in the development control plans relevantly include the need for an efficient and safe on site system for manoeuvring, loading and unloading, and parking of vehicles including the provision of adequate off-street parking. The associated objectives require that these facilities be integrated with the proposed buildings and that they be suitably designed and landscaped to minimise large expanses of hard paving. Parking and service areas are to be located behind buildings away from street frontages. All vehicles are required to be able to enter and leave the site in a forward direction. The off-street parking DCP requires that the parking requirements for air freight forwarders are to be assessed on merit and should be supported by a traffic study. 18 The two traffic consultants (Mr. C. Hallam for the council and Mr. R Varga for the applicant) considered at length the issue of car parking, the loading dock and the associated manoeuvring areas including the vehicle turntable. Mr. Varga explained that in response to the parking DCP's requirement he had prepared a merit assessment of parking needs for air freight forwarders. This assessment identified the need for three parking spaces, including loading/delivery vehicles (together with the proposed loading dock) and that these have been provided in the proposal. Whilst Mr. Hallam considered that the proposed parking and loading/unloading arrangement would probably work (subject to the conditions described in the plan of management) it would be preferable for four off-street car parking spaces and a separately accessible loading dock to be provided in accordance with the requirements for factories and warehouses. 19 Mr. A Bas (the council's town planning expert) essentially agreed with Mr Hallam particularly in relation to the need for the building and the parking and a loading dock facilities to be able to be used for other land uses. Mr A Beetros (the applicant's town planning consultant) did not agree, explaining that it would be possible for the building and the parking arrangement to be utilised for other purposes permissible in the zone. It would also be possible for the site to be amalgamated at some future time with a neighbouring property and for a more comprehensive redevelopment to take place, utilising the (then) existing building. 20 As I have already indicated it is appropriate to deal with this application as an air freight forwarder and taking into account the conclusions reached by the traffic experts I am satisfied that the parking, loading and access arrangements as proposed would be satisfactory. Whilst I accept that it would be very difficult to utilise this development for industrial, warehousing or similar purposes (for failure to comply with for example the DCP requirements in relation to car parking), I do not accept that this is a reason to refuse this application for the reasons given by Mr Betros. I am also satisfied that although the car spaces are not located behind the building they are sufficiently integrated into the building. I also accept that the access driveway and manoeuvring areas are not unreasonably large, can be used as intended and, taking into account the proposed landscaping, the arrangement is satisfactory. Amenity and street presentation 21 The design quality principles in DCP 33 relevantly include, the protection of the amenity of residential areas by the provision of buffer zones to protect the amenity of adjoining residential and non-residential land uses. One purpose of the setback requirements is to enable the provision of landscaping and buffers so that where new development adjoins a non-industrial use impacts are minimised. The DCP also requires that landscaping, including canopy trees, be provided to reduce the impact of car parking areas. 22 The relevantly applicable front setback (or building alignment) requirement is 9 m (including the landscape setback) for a new building. This control takes into account the existence of residential development in the 4(a) zone and allows lesser setbacks if the prevailing setback is closer than 9 metres. In this regard the proposed building is set back a little over 5.5 m at the second level. At the ground floor level it is set back a little over 12 m, (creating the car parking undercroft). In this context I note that there are other industrial developments further to the west that have 6 - 9 m setbacks. Residential developments to the east and west have setbacks of 2 – 3 m. 23 Mr Bas was concerned that because this was to be the first substantive determination to be made in Bay Street regarding setbacks, the applicable 9 m setback requirement should be imposed. Whilst he acknowledged the much smaller setbacks of neighbouring residential properties, these should not be used, notwithstanding the provisions of the DCP, to excuse a setback less than 9 m. He also argued that the existing industrial development in Bay Street that had setbacks as small as 6 m were indicative of unsatisfactory outcomes where the standard is not complied with, particularly in terms of providing landscaped areas. 24 Mr Betros disagreed explaining that the setback as proposed was entirely appropriate and indeed responsive to the provisions of the DCP. In this regard the prevailing building alignment for the existing dwellings to the west and the east of the site is approximately 2 m and because the building (including the parking and loading dock) is set back 5.5 m this is an appropriate outcome. The need for any additional setback is unnecessary given the satisfactory landscape arrangements that are proposed. 25 The landscape plan shows that about 25% of site area is available for landscaping, well in excess of the 10% required. It includes two canopy trees (Golden Rain Wattle trees 5 – 9 m), one close to the frontage and one halfway down the site. Other plantings in the front setback area and along the side boundary include mass plantings of dwarf Lily Pilly shrubs. The car parking and access areas are to be provided with turf/paving. The plans do not provide for any plantings along the rear setback area. 26 Because the proposal exceeds what I accept to be the prevailing setbacks of the site's more immediate neighbours (around 2 - 3 m), the front setback of 5.5 m is satisfactory. In reaching this conclusion I have also taken into consideration the landscaping that will soften the appearance of the vehicular entrance to the site and the proposed building. 27 The side setback requirement is 2 metres but because the site adjoins a residential use (to the east) the requirement is 3 m. This requirement not met because the actual set back of the building varies between 1.69 m (for just over about half of the rear part of the building) and 3.21 m. Taking into account the neighbour's objection it was submitted that the proposed two-storey building positioned close to the southwest corner of the site would adversely affect the existing residential property at 12 Erith Street. Whilst the building is set back slightly less than 1 m from the rear boundary, there is no set back from the western boundary resulting in the two-storey built form hemming in that property. 28 Mr Bas essentially concluded that these setbacks insufficient and cause unsatisfactory impacts on the residential neighbours to the south and the east. These impacts are compounded because there is insufficient landscaping and the scale of the building is excessive. 29 Mr. Betros disagreed, explaining that the landscaped area far exceeds what is required and the proposed building, considering its low floor space ratio and its form and presentation would have an appropriately sympathetic relationship with its neighbours. This is to be a relatively benign land use, taking into account traffic generation and hours of operation. In his opinion there are no adverse consequences resulting from the non-compliance with the side setback requirement. 30 Any objective that seeks to protect the amenity of existing residential development must be considered in the light of the fact that the site and surrounding lands are zoned for industrial development. Whilst the site adjoins existing residential development, this is not (according to Map 6 Botany (West) Industrial Precinct) a zone interface between industrial and residential zones. Hence the same level of amenity that existing residential development can expect in a residential zone cannot be expected in an industrial zone. In this context, I have been persuaded by the evidence of Mr Betros that no unreasonable impacts, particularly involving presentation, noise and privacy arise. 31 As for the zero setback on the western boundary I do not accept that this is a matter of concern. The building/site could, in time and if necessary, be consolidated with a possible redevelopment of the adjoining site that could include a new building that would abut/extend the proposed building. 32 In my opinion, taking into account that this is the general industrial zone, the proposed arrangement of built form, car parking and landscaping is a reasonable outcome and in terms of streetscape, the proposal will be appropriate. Conclusions 33 I am satisfied that this development is responsive to the objectives of the 4(a) zone in relation to economic and employment growth and the need to limit impacts on the environment and amenity. It is also responsive to the general objectives in DCP 33 that seek improvements in the environmental and aesthetic amenity of industrial areas and the minimisation of impacts from industrial development on residential development. 34 There can be no doubt, given the size of the site that this is a tight design but it nevertheless works and all of the proposed operations can be conducted on site. The streetscape presentation will be satisfactory. The proposed building will be seen from surrounding residential properties but any impacts will be within reason, taking into account that this is an area that is, in response to its zoning, expected to be progressively developed for industrial purposes. I recognize that the site area is less than would be required if subdivision were involved however, I have concluded that it is not too small for this particular proposal and in these circumstances; the issue of site consolidation does not arise. 35 Concerns were expressed that should this air freight forwarder fail, an expectation would arise to the effect that the building would be able to be used for other industrial purposes without complying with relevantly applicable standards. In my opinion, this is not a reason for refusal because any use of the site and building for a different purpose would require a development application that must be determined on its merits. In this regard I expect that an application for the use of this proposed building and its parking/loading arrangements for more conventional industrial purposes would, most likely, be unsuccessful because of its failure to comply with the associated parking/loading requirements. This is a risk that the owner/applicant takes by proceeding with the subject proposal. 36 Concerns were also expressed that if the appeal were to be upheld this would set an inappropriate precedent. However having decided that, on its merits, this development warrants approval I do not accept that any adverse precedent arises. 37 In all of the circumstances I am satisfied that the proposal meets the requirements of cl 17 of the LEP and for the above reasons I have decided that the appeal should be upheld and conditional development consent granted. ___________________________ T A Bly Commissioner of the Court ljr 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.