Land and Environment Court of New South Wales CITATION : R & N Superfund Pty Ltd v Hunters Hill Council [2008] NSWLEC 1460 APPLICANT R & N Superfund Pty Ltd PARTIES : RESPONDENT R & N Superfund Pty Ltd FILE NUMBER(S) : 10379 of 2008; 10380 of 2008; 10381 of 2008 CORAM: Tuor C Development Application :- change of use KEY ISSUES: conditions of consent, s94 contribution for carparking, provision of loading dock and garbage facility building certificate for work done without consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 7/10/2008 EX TEMPORE JUDGMENT DATE : 8 October 2008 APPLICANT Mr P Brown, solicitor HWL Ebsworth Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister instructed by C Renner of Gadens Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES TUOR C 8 October 2008 10379 of 2008 R & N Superfund Pty Ltd v 10380 of 2008 Hunters Hill Council 10381 of 2008 JUDGMENT 1 These are three appeals relating to 225-227 Victoria Road Gladesville (the premises). 2 Appeal 10379 of 2008 relates to a development consent (D07-1055) under the Environmental Planning and Assessment Act 1979 (the EPA Act) granted by Hunters Hill Council (the council) on 10 June 2008 for a change of use from roof space to office at Level 1 of the premises. 3 The appeal seeks to delete a number of conditions of consent. Some conditions have been agreed by the parties and those which remain in dispute are condition 3, relating to the amount of the contribution under s 94 of the EPA Act to be paid in lieu of the provision of car parking spaces and conditions 6 and 7 which require the provision of a loading dock and garbage facility. 4 Appeal 10380 of 2008 is against council's deemed refusal of an application for a building certificate for works carried out without consent to convert the roof space to office, including instillation of a floor, internal partitioning, kitchen, bathroom and access stairs. The parties have agreed that, subject to works being undertaken to ensure compliance with the Building Code of Australia (BCA), the building certificate may be approved and the appeal upheld. 5 Appeal 10381 of 2008 is against the council's deemed refusal of a development application (D07/1052) for change of use of a storage/ garbage area to a pizza shop/garbage area at the lower ground level of the premises. 6 The parties agreed that the appeals could be heard together. The court visited the premises and heard expert planning evidence from Mr G Shiels, for the applicant, and Mr M Adamson, for the council. Appeal 10379 of 2008 Car parking and s94 contribution 7 The key difference of opinion between the parties is the demand for car parking that will be generated by the development and, as no parking is to be provided on site, the amount of s 94 contribution payable. 8 The purpose set out in Part G of Hunters Hill Developer Contribution Plan (the Contributions Plan) includes: allow Council to accept the payment of monetary contributions in lieu of the provision of on site car parking where the Council considers it appropriate. 9 To establish the nexus, Part G of the Contributions Plan provides that the need for car parking generated by the development must be considered. Hunters Hill Development Control Plan No 21 (DCP 21) sets out the standards for developments regarding the provision of off street car parking. 10 Part G of the Contributions Plan recognises that in some cases it may not be possible or practical to provide car parking on site and that "Council may accept the payment of a contribution towards the provision of car parking in an alternate location in lieu of on site car parking". The contribution rate is set at $29,480 per space. 11 Part 8 of DCP 21 includes the objective: to provide sufficient off street parking for employees, customers, residents and visitors. 12 Part 8 of DCP 21 requires that: o a minimum of one car space shall be provided for each 25 sqm of net retail area and 30 sqm of net commercial area. o comply with the requirements of the RTA Guide to Traffic Generating Development and Standards Australia. 13 The experts disagreed on the meaning of 'net commercial area'. The term is not defined in DCP 21. Mr Adamson considered it included the total commercial area of 188 sqm, which would require six car spaces. Mr Shiels considered a net figure would exclude areas other than office space that would not generate a demand for car parking such as kitchen, toilets, hallway. He assessed the number of car spaces to be five. 14 Mr Shiels referred to s 5.6 of the RTA Guidelines, which recommends car parking, for commercial use, at the rate of one space/40 sqm of gross floor area. In an unrestrained situation this would generate a demand for five spaces. The RTA Guidelines assume a mean employee density of 4.75 employees/100 sqm gross floor area (nine employees for this development). The applicant has agreed to a condition that would limit the number of staff to six. Findings 15 In determining the amount of s 94 the key factor is the demand for car parking likely to be generated by the development. The Contributions Plan relies on DCP 21 to establish the provision of car parking. This requires one car space/30 sqm of net commercial space. The term 'net commercial space' is ambiguous. DCP 21 also requires compliance with the RTA Guidelines, which can assist in informing the likely demand for parking generated by the development. Based on the RTA Guidelines five car spaces would be required to provide parking for up to nine staff. The applicant has agreed to limit the staff to six. I accept that five spaces would be adequate to meet the demand for parking for this particular development given the circumstances of this case. Condition 3 is therefore amended to require a s 94 contribution of $147,400. Loading dock 16 The key difference of opinion between the experts was whether this development of itself generated the need for a loading dock. The experts agreed that there is no evidence that confirms the approved use of the lower floor of the building. Mr Brown, for the council, advised that the council records had been destroyed in a fire. There is anecdotal evidence that the area has been used for storage and loading. 17 The area was previously unenclosed to the street and works have been carried out without consent to enclose it and internally alter the space. The parties agree that a building certificate will be required to rationalise these works if the use of the space as a pizza shop is to be approved. 18 The experts agreed that due to the floor to ceiling height ranging from 2m to 2.3m the use of the space for loading would be limited to cars, station wagons and panel vans. Despite these constraints, Mr Adamson still considered the use of the lower level as a loading dock would be of benefit and would relieve the current use of Victoria Road and the laneway for loading. Further, he considered that larger vehicles would be able to park next to the space and use it for unloading and loading. Mr Adamson considered the commercial development, of itself, generated a requirement for a loading dock. He noted that the EPA Act Model Provisions require a consideration of whether adequate space has been provided for loading. 19 Mr Shiels considered that the constraints of the space would mean that it is unlikely to be regularly used as a loading dock and that the size of the commercial development did not generate a demand for a loading dock. He referred to table 5.1 of the RTA Guidelines, which recommends that for commercial premises the minimum requirement for provision of areas for delivery and service vehicles is one space/ 4000 sqm gross floor area. Findings 20 Clause 13 of the Model Provisions requires that loading facilities be provided to service the needs of a commercial development. DCP 21 does not provide any specific requirements or criteria for loading facilities. The RTA Guidelines therefore provide an appropriate framework. The proposed 188 sqm of commercial floor space is considerably below the 4000 sqm that would generate a demand for one loading space. I therefore accept Mr Shiels' evidence that a loading facility for this development is not required. 21 Further, the constraints of the lower level of the building mean its usefulness as a loading facility would be very limited and provide little benefit. There is no evidence before me that the current loading arrangements are causing problems although a clear identification of a loading area within the laneway would appear to be required. As observed on the site inspection, the bus area and the no standing area are currently being used for this purpose. Conditions 6 and 7 are therefore deleted. Garbage facility 22 Council raised the issue of whether the garbage room was of sufficient size to meet the need of the development and the rest of the building. The applicant submitted a draft waste management plan (Ex N), which proposes twice weekly collection of garbage to meet the needs of the development as a whole. Condition 8 requires approval of a final waste management plan. I therefore accept that there is adequate provision for garbage storage. Appeal 10381 of 2008 23 The only issue in dispute between the parties was whether the lower level should be used for a loading dock. For the reasons given above I have found that a loading dock is not required as a consequence of the commercial development and the area is not suitable for this use. Council did not raise any merit issues with the use of the space for a pizza shop provided that the illegal works were rationalised through a building certificate. The parties have agreed to a deferred commencement condition requiring a building certificate for the works prior to the operation of the consent for the pizza use. Orders 24 The Orders of the Court in relation to Appeal No 10379 of 2008 are: 1. The appeal is upheld. 2. The development application (D07/1055) for a change of use of roof to office space at level 1, 225-227 Victoria Road, Gladesville, is approved subject to the conditions in Annexure 'A'. 3. The exhibits, except Exhibits 2, 4, A, B and D may be returned. 25 In relation to Appeal No 10381 of 2008 the Orders of the Court are: 1. The appeal is upheld. 2. The development application (D07/1052) for a change of use of a storage/garbage area to a pizza/garbage area at the lower ground level at 225-227 Victoria Road, Gladesville, is approved subject to the conditions in Annexure 'A', including a deferred commencement condition requiring a building certificate in respect of existing works shown red in the plans in Attachment B. 3. The exhibits, except Exhibits 6, 8, F, G and H may be returned. 26 In relation to Appeal No 10380 of 2008 the Orders of the Court are: 1. The appeal is upheld. 2. Pursuant to s 149F(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these Orders, the applicant is to: a. install the smoke exhaust system in accordance with the report dated 27 August 2007 by Fire Modelling and Computing. b. provide to the Council certification from a grade 1/level 1, accredited practising certifier/fire engineer in relation to the satisfactory installation and operation of the smoke exhaust system. c. provide to the Council a final fire safety certificate from a grade 1/level 1 accredited practising certifier/fire engineer in relation to level 1 (office space) of the premises known as 225-227 Victoria Road Gladesville. 3. Upon the carrying out of the works and the provision of the certification referred to in order 2, the Council is directed to issue a building certificate in relation to the level 1 (office space) of the premises known as 225-227 Victoria Road Gladesville. ___________________ Annelise Tuor 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.