Land and Environment Court of New South Wales CITATION : Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek [2008] NSWLEC 262 Matter 10708 of 2008 APPLICANT Daniel Bek RESPONDENT Sydney City Council PARTIES : Matter 40627 of 2008 APPLICANT Sydney City Council FIRST RESPONDENT Sydney Tool Supplies Pty Ltd SECOND RESPONDENT Daniel Bek FILE NUMBER(S) : 10708 of 2008; 40627 of 2008 CORAM: Sheahan J KEY ISSUES: Injunctions and Declarations :- development without consent; change of use without consent; unauthorised signage; characterisation of use; primary and ancillary uses; discretion LEGISLATION CITED: South Sydney Local Environmental Plan 1998 ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67 Grace and Another v Thomas Street Café Pty Ltd and Others (2007) 159 LGERA 57 CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Willoughby City Council v Dasco Design and Construction Pty Ltd and Another (2000) 111 LGERA 422 York Developments Pty Ltd and Another v Liverpool City Council (2000) 109 LGERA 305 DATES OF HEARING: 27 and 28 August 2008 DATE OF JUDGMENT: 16 September 2008 Matter No.10708 of 2008 APPLICANT 27 August 2008 Mr R Creighton, Agent 28 August 2008 Mr E Tabchouri, Solicitor of Macquarie Lawyers Burwood Matter No.40627 of 2008 APPLICANT Mr M Wright, Barrister SOLICITORS City Prosecutor's Office, Sydney City Council LEGAL REPRESENTATIVES: Matter No.10708 of 2008 RESPONDENT Mr M Wright, Barrister SOLICITORS City Prosecutor's Office, Sydney City Council Matter No.40627 of 2008 RESPONDENTS 27 August 2008 Mr R Creighton, Agent 28 August 2008 Mr E Tabchouri, Solicitor of Macquarie Lawyers Burwood JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 16 September 2008 10708 of 2008 Daniel Bek v Sydney City Council 40627 of 2008 Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek JUDGMENT The two matters 1 His Honour: Daniel Bek is the principal of Sydney Tool Supplies Pty Ltd, and he and/or the company are currently involved in two separate matters before the Court. 2 The Class 4 proceedings were commenced by Council on 26 June 2008, were granted expedition on 1 August 2008 by Biscoe J, and came on for hearing before me on 27 and 28 August 2008. They concern a commercial operation known as "Sydney's Carwash Café" within the Council's area at Newtown. Sydney Tool Supplies Pty Ltd is the lessee of the subject premises. 3 The Class 1 proceedings were listed at the same time, but only for mention. They concern an appeal by Mr Bek against the refusal of DA 2008/31, lodged on his behalf on 11 January 2008, which DA sought "retrospective approval of new boundary fence, erection of carwash shade cloth, and metal vacuum holders" at a "petrol station" located in King Street Newtown. The Class 1 appeal was filed by Mr Bek's agent, Mr Creighton, on 23 July 2008 following the Council's refusal of that DA, on nine stated grounds, on 14 May 2008. Council's notice of refusal described the proposed development as "alterations and additions to existing service station to provide a car wash facility, café with outdoor timber decking, colourbond fencing on eastern boundary, signage and awnings". 4 In the Class 4 proceedings, which I have now heard, the Council contends that the current use, the stated site works, and the signage, were not approved, and Council seeks appropriate declaratory and injunctive relief detailed in the Class 4 application. 5 This judgment deals primarily with the issues in those Class 4 proceedings, but has relevance to the future of the Class 1 proceedings as well. Background 6 The facts and the relevant history may be briefly described. 7 In about August 2007, Mr Bek decided to explore the possible leasing of a fairly rundown service station at 536A King Street Newtown, on the corner of Angel Street (see aerial photo and area plan in Exhibit C1 and Exhibit C2), adjacent to a block of six townhouses at 1 Iredale Street. 8 Mr Bek made some enquiries of the Council's Redfern offices. Nobody told him he needed consent for his proposal and he decided to proceed, entering into a 5 year + 5 year lease in about August 2007. He also obtained relevant waste water permits from Sydney Water Corporation. The development of the site as a commercial carwash and cafe began in about October 2007, with three out of the five then existing petrol bowsers having been removed. 9 The subject site was, until 1952, part of a larger site comprising horse paddock and stables. On 12 November 1952 the Council of the day approved the change of use of the site to service station and carparking. Then followed a series of approvals for: · Mechanical repairs (1954). · Storage of plumbing materials and plant (1956). · Subdivision of the land (1959). · Repairs to automotive electrical equipment (1962). · Mechanical workshop specialising in electrical repairs (1981). · Underground storage tanks, a canopy and extensions (1991). · Illuminated pylon sign (1996). 10 The cumulative result of these planning decisions was a traditional style suburban service station on the site. 11 The Council's case is that in or about October 2007 the use of the subject premises changed from "service station" to "commercial carwash café", without consent, but with unauthorised structures on site and unauthorised advertising nearby. The DA the subject of the Class 1 appeal deals with the issues concerning the unauthorised structures, but does not seek development consent for the (continued) use of the premises as a commercial carwash and café. 12 The Council's principal relevant planning instrument is the South Sydney Local Environmental Plan 1998 (Exhibit C4). The premises are zoned Mixed Uses 10 under the plan, and are located in a heritage conservation area. 13 Pursuant to cl.21 of the LEP, use of the subject land as a "service station" is permissible with the consent of the Council, as is use of the premises as "Commercial Premises" or "Shop". Neither "carwash" nor "café" is defined, but the following relevant definitions appear in Schedule 1 to the LEP: "advertisement means a notice, device or representation intended to publicise goods, services, or any other matter, visible from any public place or public reserve or from any navigable water, but does not include a display or notice placed inside a window for the purpose of viewing from outside the premises. advertising structure means a structure used or intended to be used principally for the display of an advertisement . car repair station means a building or place used for carrying out repairs to motor vehicles or agricultural machinery, but not used for: (a) body building, or (b) panel beating involving dismantling, or (c) spray painting (except for touching up). commercial premises means a building or place used as an office or for other business or commercial purposes, but (in Part 3) does not include a building or place elsewhere specifically defined in this clause, or a building or place used for a purpose elsewhere specifically defined in this Schedule. commercial sign means an advertisement which contains only: (a) a reference to the identity or a description of any person residing or carrying out an occupation at a place or premises, or (b) a reference to the identity or a description of a place or premises, or (c) particulars of any occupations carried on at a place or premises, or (d) such directions or cautions as are usual or necessary relating to a place or premises or any occupation carried on at the place or premises, or (e) particulars or notifications required or permitted to be displayed by or under any Act or any Act of the Parliament of the Commonwealth, or (f) particulars relating to the goods, commodities or services dealt with or provided at a place or premises, or (g) a notice that a place or premises is or are for sale or letting, together with particulars of the sale or letting, or (h) particulars of any activities held or to be held at a place or premises. service station means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products, whether or not the building or place is also used for one or more of the following purposes: (a) the hiring of trailers, or (b) the retail selling or the installing of spare parts and accessories for motor vehicles, or (c) the washing and greasing of motor vehicles, or (d) the repairing and servicing of motor vehicles (other than repair or servicing involving body building, panel beating or spray painting), or (e) the retail selling or hiring of small consumer goods. shop means a building or place used for the selling, whether by retail or auction, or for the hiring or for the display for the purpose of selling or hiring, of items (whether goods or materials), but (in Part 3) does not include a building or place defined elsewhere in this Schedule." 14 The zoning controls relevant to Mixed Use Zone 10, as set out in cl.21 include: "(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area." 15 Mr Bek's major problem or challenge appears to be that he does not have any approval, in terms, to conduct the carwash and/or a café on the site, but such uses might be permissible of the site without specific consent if truly subsidiary or ancillary to its use as a service station. Council, however, contends that they are currently the dominant uses of the site, and so do not enjoy consent. Accordingly, the major issues for the Court are characterisation of the site's current use, and, if the operator is not successful on that question, discretion on the question of relief. 16 Mr Bek admits that he has done site works, and erected signage around the immediate area, without the Council's consent, or other required authorisation. Mr Creighton, who appeared on day 1 of the hearing as agent for the Respondents, conceded that a development consent is required for the carwash/café if it were the dominant use, but he asserted that it is only an ancillary use. The DA at the heart of the Class 1 appeal seeks, as noted above, only approval of some of the site works. There is no DA before the Court or the Council seeking consent to a change of use from service station to carwash/café. 17 The Court has extensive affidavit and documentary evidence and has observed and heard many witnesses give oral testimony. The Court has also had the benefit of a view, undertaken at 3pm on a working weekday. The Council's Evidence 18 The following Council officers gave the evidence briefly described: · Council Officer Andrew McMillan, qualified to measure noise, attended the site at 2.40pm on 9 April 2008 to check machinery noise. He assumed, but did not verify, that only one vacuum cleaner was operational at the time, but he measured the machinery noise such as it presented at that time on the site boundary with 1/1 Iredale Street. He recorded noise levels 11.5-13.6dB(A) above background (which he said was 50dB). World Health Guidelines suggest 55dB(A) as the maximum acceptable. · Council Officer Emma Brown, a town planner, was responsible for the assessment of DA 2008/31 and its recommended refusal. She confirmed that Council records include no relevant development consent for the carwash/café use. She admitted that the conclusion in her assessment report that "there is no sale of petrol" at the subject site was drawn from the twelve submissions Council received in response to the DA being notified, and was not the result of any independent investigation with which she was involved. · Council Officer Joseph Pignone visited the subject site on the morning of 3 June 2008, when he admits it was overcast and raining, and took a series of photographs, including some from the elevated landing on the relevant side of the adjacent townhouse development. Only one workshop door is open in the photographs, but the cleaning equipment and a table and chairs are visible in the workshop area. · Council Officer Wing Yee Tse produced the Council's bundle of documents, which was admitted into evidence as Exhibit C3. · Council Officer Adrian Mihaila investigated the subject site on a covert basis at 10.45am on 17 June 2008, finding no fuel available for sale, the bowsers set on zero, and both of the workshop doors closed. He was told by someone on site, in respect of the availability of fuel, "we will get some later in the afternoon". · Council Officer Phillip Motbey visited the subject site on his motorcycle at 3.42pm on the same day, 17 June 2008, and there was still no fuel available for sale. "We won't have any until tomorrow" he was told. He conceded in cross-examination that he was not told "we do not sell petrol". 19 The Council also relied on evidence from Mr Andrew Coogan and Dr John Cass-Verco, who live, respectively, in Units 1 and 5 of the strata townhouse development located at 1 Iredale Street. That complex has a frontage also to Alice Street, and immediately adjoins Mr Bek's operation, with Mr Coogan's unit No.1 being the closest. 20 Mr Coogan moved into unit No.1 on 13 October 2007, just as Mr Bek commenced converting the disused service station. He resides there with his wife and one young child. His rear door and upstairs bathroom window immediately overlook the subject site, and he claims that the bedrooms which front either Alice or Iredale Street(s) are disturbed by direct or reflected light, and an unacceptable level of noise which dominates the usual traffic and other noise from the very busy King Street area nearby. He estimated that his unit, in relation to King Street, would be 50 metres away. He has also experienced occasional water spray onto his premises from the carwash operations on site. He has made several complaints to Council and objected to the development application under appeal. 21 There has been an unfortunate level of unpleasantness between Mr Coogan and Mr Bek, and the police have become involved. I draw no conclusions at all from the competing evidence on the police matter in determining these proceedings apart from noting Mr Bek's general behaviour towards Mr Coogan, who assured the Court his only objective is to achieve a general alleviation of his amenity concerns. 22 Dr Cass-Verco has lived at unit No.5 for approximately seven years, and has observed the changes in use of the subject premises over time. He knew it formerly operated as a taxi changeover and repair centre, but he was never disturbed by the operations on the site until Mr Bek took over. He is now troubled by 24 hour lighting, noise, rubbish, signage obstruction on footpaths, and traffic and parking congestion. He has never observed any delivery of fuel to, or sales of fuel from, the subject premises, and deposes that his wife has never succeeded in buying fuel there. He himself has seen the bowsers set on zero, and told the Court that the neighbourhood noise is "nothing compared with the carwash noise". He has had to move from one bedroom into another within his residence to try and escape the disturbance but with only moderate improvement. The Respondent's case 23 Daniel Bek deposed that he is a director of Sydney Tool Supplies Pty Ltd, and that that company leases the subject site for $2,750 per week. It used to be a "United" petrol station where "carwash" and "detailing centre" signs were displayed at the time of his original inspection in August 2007. The canopy carried a sign "United Petroleum and Car Wash/Mechanical Repairs". The premises were generally in poor condition, including both the fence adjoining No.1 Iredale Street, and the shop. He took three of the five bowsers out and, as carwash activities moved outside onto the tarmac, the workshop area had expanded. He has renovated the shop and installed a coffee machine, etc. He quoted operational hours of the carwash as 8am-5pm Monday-Friday and 9am-5pm Saturday/Sunday; the workshop at the same times, but closed on Sunday; and fuel service 8am-7pm seven days per week. 24 Mr Bek deposed (affidavit par 28) that the operation on site under his stewardship was 45% sale of fuel, 30% workshop, and 25% carwash. 25 He refutes the allegations of unacceptable noise, the odour of chemicals, etc. He agreed he had no development consent for the renovation of the shop, the installation of the shadecloth, the addition of the gantries, the decking in the vicinity of the shop, the replacement metal fence, and "replacement signage". 26 The Respondents also relied upon affidavit evidence from the following: · Mr Bek's partner Mary Sarkis, who is employed by the company on the sale side of the business. · Ms Linda Murphy, who has lived in No.4 Iredale Street for the last 5 years (Exhibit C1 and Exhibit C2 would appear to indicate that her premises front Iredale Street at its hairpin intersection with Alice Street and completely to the east of and across Iredale Street from the 6 units). She testifies that there is no noise coming from the site greater than that generated by the traffic and occasional airplanes, and that the operation is "a vast improvement" over the previous operation. · Scott Davidson is an audio engineer who has lived at No.1/532 King Street for the last 2 ½ years. His front door accesses Angel Street, directly opposite the carwash, and he has no complaints. · Fred Hudson, who lives in Marrickville and works as a courier driver, patronises both the fuel sales and carwash components of the operation. He usually buys approximately $90 worth of fuel on a Monday, and the only time he has been unable to obtain fuel was during the Easter period 2008 (the Court notes Easter was 21-24 March 2008). 27 Mr Bek, apart from providing his comprehensive affidavit and submitting to cross-examination, also purported to comply with a notice to produce, which required the Respondents to produce for inspection the following documents: " 1. Copies of all documents relating to the operation of the business at 536A King Street, Newtown ('the premises') required to be kept by service station operators pursuant to section 19 of the Fuel Quality Standards Act 2000 (Cth); 2. Copies of all documents relating to the operation of the business at the premises to be kept by service station operators pursuant to regulation 28 of the Fuel Quality Standards Regulations 2001 (Cth). 3. Copies of all records relating to the supply and delivery of fuel to the premises. 4. Copies of all documents evidencing an agreement or agreements for the supply of fuel to the premises. 5. All documents relating to the repair and servicing of vehicles by the business operating at the premises in the period from 1 July 2007 to 30 June 2008. 6. Copy of each quarterly business activity statement relating to the operation of the business at the premises prepared in the period between 1 July, 2007 to 30 June 2008. 7. Copy of the tax return for the period 1 July, 2007 to 30 June, 2008 for the business operating at the premises." 28 He claims that he produced everything he had that was specified in the notice, and the following came into evidence: · Fuel records, including reconciliation (Exhibit R1). · Receipts for $11,000 odd worth of bowser repairs in February 2008 (Exhibit R2). · Purchase on 5 February 2008 of approximately $17,000 worth of fuel (Exhibit R3). · A dangerous goods acknowledgement from the WorkCover Authority current to September 2008 (Exhibit R4). · Invoice for servicing of the oil separator on 11 September 2007 (Exhibit R5). · Invoices in respect of the checking of fuel tanks on 7 April and 15 May (Exhibit R6). · Papers relevant to his membership of the Service Station Association (from an unspecified date) (Exhibit R9). 29 Exhibit R7 comprises "duplicate" bank records from National Australia Bank covering the period from the opening of the relevant account in the name "Sydney's Carwash Café" on 2 November 2007 until 11 August 2008. It would appear that in that period deposits totalling $250,000 were made. 30 Exhibit R8 is an order book for the mechanical workshop component of the operation. It apparently trades under the name "Newtown Mechanics", but that business name may not be registered. In the order book there are 98 jobs recorded between 29 November 2007 and 20 August 2008. He said that the order book was a comprehensive record of that part of the business. On a cursory check it would appear that the face value of the invoices would amount to $18,000 over that nine-month period. Discussion 31 Mr Bek conceded in his oral evidence that he did not consider the workshop activity viable and had attempted to lease it. Exhibit C5 indicates an attempt by L J Hooker Newtown to lease the workshop space as "an ideal opportunity for a laundry/dry cleaning business (STCA) or just extra storage". It was offered as vacant possession at a rental of $41,600 pa. Mr Bek denied that he authorised the advertising of his property specifically for a laundry/dry cleaning business purpose, but he did concede that he asked the agent to do the best he could to find a tenant when it was not possible to lease it as a going concern. 32 A cursory examination of the reconciliation, fuel sales and delivery records (in Exhibit R1) would indicate that in the seven completed months recorded from January to the end of July 2008, an average of 10,000 litres per month may have been sold. One of the photos in evidence indicates an advertised sale price of 149.9 cents per litre, but the reconciliation of sales, storage and deliveries was unsatisfactorily explained in the evidence. 33 Clearly these materials do not corroborate the estimate in Mr Bek's affidavit (par 28), which apportions the relative contribution of the three elements of the business to its takings (as noted in par [24] above, 45% fuel, 30% workshop, 25% carwash). 34 The evidence also indicates that when flyers are put in letterboxes and on motor vehicles in the neighbourhood, there is no emphasis placed at all on the availability of fuel, or mechanical repairs, and the Court concludes that while some fuel sales do occur, some fuel is stored on the site, and some minor mechanical services have been provided, the overwhelming evidence is that this particular site is currently operating primarily as a carwash café and not in compliance with the definition of "service station" in the LEP. 35 For the carwash and café activities to be regarded as truly ancillary to the consent for a service station, it needs to be established that the dominant or primary purpose of the operation is "the fuelling of motor vehicles involving the sale by retail of petrol, or other petroleum products". See York Developments Pty Ltd and Another v Liverpool City Council (2000) 109 LGERA 305. 36 The sale of petrol by retail at this site undoubtedly occurs, but it is certainly not the primary purpose of the business, and it was obvious on the view that there is virtually no "oil or other petroleum products", indeed nothing relevant to the care and use of motor vehicles, available for sale in what used to be the service station's shop. The workshop use is clearly minor in ambit. 37 Changing the use from service station to a commercial carwash and café is not a natural evolution of the use (such as is noted in some of the authorities), but a fundamental change to the previous use of the premises, so requiring development consent. See Grace and Another v Thomas Street Café Pty Ltd and Others (2007) 159 LGERA 57. 38 I find that it is clearly established by the evidence before me that the primary or dominant use of the premises at present is as a carwash/café, which is having significant adverse impacts on the amenity of the adjoining owners most immediately affected. I accept the evidence of Mr Coogan and Dr Cass-Verco on these impacts. A consent authority has a duty to assess and consider such impacts before granting a consent. 39 When coupled with the frank admissions so readily made by the Respondents' agent, Mr Creighton, the evidence clearly establishes all the breaches of the relevant law alleged by the Council. Discretion 40 Counsel for the Council submits that the impact of this change in operation is very real, as demonstrated by the contested evidence of Mr Coogan and Mr Cass-Verco, which I have accepted. Also the general conduct of the Respondents should be considered. Willoughby City Council v Dasco Design and Construction Pty Ltd and Another (2000) 111 LGERA 422. Counsel for the Council also submitted that there has been little attempt to prosecute the Class 1 appeal to rectify the lack of consent for works, albeit that there has been no attempt to rectify the lack of consent for actual use. 41 On the other hand, Mr Tabchouri, who appeared for the Respondents, but only on day 2 of the hearing, submitted that Daniel Bek and Mary Sarkis are a "battling young couple" who have improved the appearance and operation of the site, creating new employment opportunities. (The Statement of Environmental Effects filed in the Class 1 proceedings speaks of three employees in the carwash, one in the service station, and two in the workshop). He also asked the Court to consider that the operation could well enjoy "existing use rights" as a service station where cars are washed. 42 While the Court is always concerned to see that justice is done to a poorly represented party, but cannot speculate about what might have been put before it if that party had adequate representation, I can see nothing at all in the material before me to justify my declining, in the Court's discretion, to grant the relief sought. Coming into the case in such difficult circumstances on such short notice, when the matter was mid-hearing, Mr Tabchouri put his clients' position as well as could possibly be expected. 43 I am not persuaded that the relief sought by Council should be diminished in any way in the Court's final orders. See Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67. Conclusion 44 Accordingly, I will make the two declarations and such of the eight orders (some of which are expressed in the alternative) as the Council requires to implement this decision. The Council should bring in Short Minutes of Order identifying precisely which of those orders it requires (limited to those formulated in the Class 4 application dated 26 June 2008). The question of interlocutory relief does not now arise. 45 I was asked to reserve the question of costs, and I will do so, but I make the obvious point that the Council has been entirely successful in the Class 4 proceedings and would normally anticipate an order in its favour. 46 The Class 1 matter should return to the Registrar's call-over list for further case management. 47 All the exhibits may be returned. Orders 48 The orders of the Court will be: Matter No.40627 of 2008 1. The Council is directed to bring in Short Minutes of Order to reflect these reasons. 2. The question of costs is reserved. 3. The Exhibits are returned. Matter No.10708 of 2008 This matter is stood over to the Registrar's call-over scheduled for Thursday 25 September 2008. 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.