Land and Environment Court of New South Wales CITATION : Antoniou v Marrickville Council [2008] NSWLEC 1412 APPLICANT Anthony Antoniou PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10323 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- Demolition of existing industrial buildings and the construction of a new multi-unit industrial development comprising 27 industrial style units, plus a café with car parking Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2001 Marrickville Development Control Plan No. 19 - Parking Strategy DATES OF HEARING: 02/10/2008 and 03/10/2008 EX TEMPORE JUDGMENT DATE : 3 October 2008 APPLICANT Mr G. Green, solicitor with Ms N. Lowe, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr I. Hemmings, barrister Instructed by Mr G. Christmas Of Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 3 October 2008 10323 of 2003 Anthony Antoniou v Marrickville Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 According to the Class 1 appeal this development application is for the demolition of existing industrial buildings and the construction of a new multi-unit industrial development comprising 27 industrial style units, plus a café with car parking for 60 vehicles at 49 Carrington Road, Marrickville. 2 The units will have areas of around 200 sq m and will each have a loading dock and a mezzanine floor. Vehicular access is to be provided off Carrington Road and Renwick Street. Strata subdivision is also proposed. 3 The site is situated on the western side of Carrington Road extending between Renwick Street and Warren Road. It comprises five separate lots with a total area of just over 8,000 sq m. It has frontages of 92 m to Renwick Street, 84 m to Carrington Road, and 83 m to Warren Road. The site has accesses off all three roads, although these accesses are not being used for this development. There are a number of significant trees in the road reserves along all three frontages of the site. 4 The site is located in an industrial precinct generally developed with one and two-storey industrial buildings. Adjoining the site to the west is a stormwater channel, and beyond this in Warren Road and Renwick Street is residential development. The site is included in the 4(B) Light Industrial Zone under Marrickville Local Environmental Plan 2001, and in this zone industrial and warehouse development is permissible with development consent. 5 In addition cl 40 of the LEP permits with development consent: Offices, showrooms or shops provided that these uses are ancillary or incidental to an industrial or warehouse use that is carried out on the land. 6 Other than the proposed café no particular land uses are identified for 27 Units and separate development consents for each of these will be required. Also identified as being relevant is Marrickville Development Control Plan No. 19 - Parking Strategy, and the Marrickville Code for Industrial Development. 7 The application was advertised and more than 50 submissions were received objecting to the proposal. Matters of concern include: + The impacts of additional traffic in terms of parking, safety and the amenity of the residents who live in Renwick Street and Warren Road; + Amenity impacts on nearby residential properties including hours of operation, noise and fumes; + there are too many units proposed indicating an excessive bulk and scale and an overdevelopment of the site; + the trees along the frontages of the site would be adversely affected and should instead be protected. 8 When the hearing began on site as a conciliation conference under s 34(2) of the Land and Environment Court Act 1979 I had heard from a number of residents who were able to explain the above concerns in detail. Whilst there is some question that I can take into account matters that I heard during the conciliation conference, I understand there is no objection to my taking these concerns into account, bearing in mind that they are reiterated in the documentary evidence that was tendered during the hearing. 9 Subsequent conferences were unsuccessful and the conference was terminated with the parties agreeing that I should hear the matter in accordance with s 34(4)(b) of the Courts Act. The application was considered by the Local Traffic Planning and Advisory Committee that raised no objection to the development, subject to the imposition of a number of conditions including the need for all vehicles to enter and depart the site in a forward direction, and heavy vehicle access being limited to medium rigid trucks. The application has, since the initial conciliation conference, been amended in a number of ways and the applicant has now agreed that there be a condition to the effect of restricting access to medium rigid trucks. 10 The council now contends that the application should be refused for the following reasons: + The proposed development should provide vehicular ingress and egress from Carrington Road utilising the existing driveway closest to the intersection with Renwick Street; + The proposed development provides an insufficient number of onsite parking spaces. 11 The council contends that should development consent be granted it should be subject to a condition that access to the site be limited to maximum sized medium rigid trucks, a matter to which I have already referred. 12 In relation to vehicular ingress and egress from Carrington Road onto the site, the council contends that the existing driveway closest to the intersection with Renwick Street should be used. There was no dispute that it is physically able to be utilised for this purpose, instead the applicant proposes that there be two ingress/egress driveways, one off Carrington Road towards Warren Road, and the other off Renwick Street. 13 The traffic engineers, Mr C Hallam for the council and Mr J Coady for the applicant, did not contend any adverse traffic consequences by having two rather than one driveway. Mr Coady went further, saying that there would be benefits in terms of access and egress flexibility, and greater opportunities for traffic to disperse from the site. 14 The town planners, Mr J Lidis for the council and Mr L Fletcher for the applicant, also agreed that there was no planning reason why there could not be two access/egress driveways. Despite this Mr Lidis thought that the access/egress driveway in Renwick Street could have an impact on the residential amenity of properties to the west in that street. Mr Fletcher disagreed, and I agree with him, accepting that the likely changes would not be significant. I have reached this conclusion taking into account the inevitable generation of traffic from a site such as this irrespective of where the driveways would be. 15 Despite these matters the council contends that by utilising the existing driveway off Carrington Road for the sole ingress/egress to the site, any impacts on Renwick Street would be avoided and importantly there would be no need for the removal of an existing tree. 16 In Carrington Road there are eight Hills weeping fig trees located in the nature strip. One of these trees, tree 12, is to be removed to enable the construction of the new ingress/egress off Carrington Road, and this matter was discussed at length in the joint report of the two tree experts, Ms S Hobley for the applicant and Ms L Durland for the respondent. 17 Due to management issues relating to the species of their size being planted in this environment, these experts agreed that all of the trees are considered to be in either moderate, or poor, or very poor condition. They have been "gully pruned" to obtained clearance for the overhead power lines. It was nevertheless agreed that tree 12 is in good health and has dense green foliage compared to some of the other trees in the group. Despite this the tree has many physical wounds to its roots, stem and branches, and that some of these wounds are sites of decay and potential infection. They also noted that tree 12 is only in moderate condition due to ongoing management impacts, damage to its roots, bark, stem and branches. Also, variously, all of the trees are lifting and/or cracking the concrete structures of the public footpath. 18 In all of these circumstances Ms Hobley was of the opinion that the removal of tree 12 can be justified, especially as the problems associated with it cannot be rectified and ongoing damage to the tree will occur, in order to maintain the clearance of the overhead power lines and maintenance of the footpath. Conversely Ms Durland believed that all that was required was management and monitoring, and that removal of the tree was not justified. 19 Ms Hobley was also of the opinion that as a result of the removal of tree 12 there would only be at most a minor impact on the visual amenity of the road trees when viewed from afar. When viewed from close by she said that the trees were very unsightly due to the heavy pruning for clearance of wires that affects their form, and leaves large wounds that take time to heal. The tree's damaged and girdle roots add to the lack of appeal; conversely Ms Durland said that the tree is a major contributor to the block of green vegetation and its removal would leave a gap in the plantings, but would otherwise have little impact in terms of reduction of the already limited amenity of the trees either side of it. 20 Both experts agreed that many of the trees are unattractive individually, in very poor to moderate condition, and generally in moderate to good health. Unfortunately this condition cannot be greatly improved because it is the result of past management practices that have permanently affected the trees' growth and development. Ms Hobley said that there is now an opportunity to address the entrenched problems by allowing their removal, and requiring suitable replacement plantings that can be well managed to achieve the vision of the council's tree strategy. 21 Mr Lidis said that the removal of the tree was unnecessary because the development could be redesigned so as to utilise the existing driveway off Carrington Road. Mr Fletcher acknowledged that the loss of the tree would be regrettable but was necessary in order to allow for the proposed development. He perhaps reached this conclusion on the understanding that, The tree is significant as part of a group of street trees because of the heritage listing, but argued that it could be removed because the trees have been heavily compromised by the pruning required to maintain electricity lines. I do not understand that the trees are heritage listed and expect that had Mr Fletcher been aware of this he may not have been quite so concerned. 22 In all of the circumstances I am inclined to agree with the evidence presented on behalf of the applicant that whilst the removal of tree 12 would have an impact on the streetscape its impact would not be so great as to warrant refusal of the application. In reaching this conclusion I have taken into account the fact that this development provides new buildings in a landscaped setting that was not the subject of any criticism, and will of itself make a positive contribution to the streetscape. 23 In essence, the disagreement between the parties as to the number of car parking spaces required for this development involves the question of whether DCP 19 should prevail over the Roads and Traffic Authorities Guide to Traffic Generating Developments. 24 The council contends, relying on the evidence of Mr Hallam and Mr Lidis that having regard to the Land Use Table for the 4(B) Zone, and the range of uses likely to occupy the development, the appropriate car parking standard to apply is that of a business park, as defined in cl 5.11.4 of the RTA Guide. More particularly this is because despite the application being described as being for multi-unit industrial development the units will, subject to the requirements of the LEP and the obtaining of development consent, be able to be used for a range of purposes. Whilst some of these purposes would include industry, warehouses and bulk stores, other uses are permissible that according to DCP 19 require a higher rate of parking by comparison with those uses. 25 The Guide describes a business park as a development that permits a range of land use types in an integrated complex. Such developments typically include industrial, manufacturing, research, warehousing, office space, retail, commercial, refreshment and recreational activities. Uses such as office space, retail and recreational activities are examples of land uses that would require a higher rate of parking by comparison with an industrial use. 26 The Guide suggests that new business parks on undeveloped sites should provide onsite parking for all vehicles used by employees. In the case of wholly redeveloped sites, each site should be treated on its merits. The recommended minimum number of off-street parking spaces should generally be assessed in an aggregated fashion as either, 1.5 spaces per 100 square metres of total gross lease-able area or, when office/showroom and factory/warehouse components of the development area are available, it is desirable to use the following disaggregated off-street parking rate: 1.8 spaces per 100 sq m of gross lease-able office/showroom area, plus 1.2 spaces per 100 sq m of gross lease-able factory/warehouse area. 27 The Guide also notes that these requirements can be reduced when alternative public parking is available close to the proposed development. In this regard I understand that there are some 25 on-street car parking spaces available along the frontages of the site. 28 On the basis of the aggregated rate, 77 car spaces would be required. On the basis of the disaggregated rate preferred by Mr Hallam, and assuming that the office component will be 25% of the lease-able floor area, 70 car spaces would be required. This is to be compared with the 60 parking spaces that have been provided. As for the office component, there was some concern that the mezzanine floors that have areas in excess of 25% of the lease-able floor area would be used for office purposes, and therefore additional car parking would be required. 29 However, I accept that the agreed condition of consent to this effect would be complied with, and bearing in mind Mr Fletcher's evidence that those areas in excess of 25% would be able to be used for appropriate purposes other than office, notwithstanding that they need to be accessed via a flight of stairs. 30 In relation to the utilisation of on-street car parking spaces to make up the deficiency that they contend, Mr Hallam and Mr Lidis believed that the amount to be relied upon is excessive. Mr Coady did not accept that this development comprises a business park, mainly because the majority of business parks surveyed by the RTA for the purpose of determining associated car parking requirements had floor areas substantially greater than that of the proposed development. Both he and Mr Fletcher contend that DCP 19 contains the relevantly applicable car parking standard, it requires the provision of one car parking space per 90 square metres of gross floor area for industry, bulk stores and warehouses that would account for the various uses of the proposed units. One car parking space per 45 square metres of gross floor area is required for restaurants, and takeaway food shops. According to Mr Coady, application of these standards to this development results in a requirement of 60 parking spaces, this being the actual number provided, although Mr Hallam suggests that based on his recalculation of gross floor space 58 spaces would be required. 31 It is now well established that a properly prepared and adopted development control plan where relevant must be a focus of consideration, and accordingly must take precedence over, in this case, the RTA's guidelines. Despite this Mr Hemmings submitted in effect that because the DCP does not provide a car parking rate for the kind of development here proposed, that this is intended to facilitate a range of different land uses that generate different parking rates. As already discussed one can, as anticipated by the DCP, read them in conjunction and thus look to them for assistance. This assistance is provided by the inclusion in the guidelines of the land use category of a business park. 32 However, in my opinion I have not been persuaded that it is necessary to categorise this development as a "Business Park", and apply the car parking standards for such a use. I have reached this conclusion because I accept what are essentially the contentions of Mr Coady and Mr Fletcher, that the land use categories as contained in the DCP of industry, bulk stores and warehouses is sufficient to cover the likely majority of uses for this development. Similarly, I have not been persuaded that there is any ambiguity in the provisions of the DCP such that they cannot, or should not, be applied to this development application. 33 I am thus satisfied that the proposal complies with the car parking requirements of DCP 19. As a test however, the RTA's Guidelines can be considered, and based upon the above analysis I accept that there would be a deficiency of car parking spaces. However, bearing in mind that the guidelines specifically allow a reduction in the so calculated number of spaces when on-street parking is available as is the case here, I do not find this deficiency critical, particularly when the requirements of DCP 19 have been met. Also to be taken into account is the fact that each of the units cannot be used until such time as development consent for that use has been granted, and car parking can be expected to be given particular consideration at that time. Absent sufficient car parking, any application for the use of one of these units that does not meet the particular requirements of the DCP would be expected to be refused. 34 In the circumstances I find the car parking provision of this development to be satisfactory. 35 Consequently, having decided that the two fundamental issues of concern to the council do not amount to a basis for the refusal of the application, it is unnecessary to consider the flooding aspect. However, I do note that there is a likelihood that as a result of anticipated flooding in Carrington Road, that from time to time any egress via that road is likely to be affected to some degree, and that there would be some benefit from having an alternate egress from the site, as is to be provided in Renwick Street. Similarly, I can accept that having two separate ingress/egress points can be of benefit for traffic in terms of flexibility and dispersability. 36 In all of the circumstances I have decided that the appeal should be upheld and conditional development consent granted. As for the conditions of consent in Exhibit 15, I have decided to delete Deferred commencement condition 5, and replace it as an operative condition in the form of the applicant's condition in Exhibit F, relying on the evidence of the applicant's expert accessibility consultant, Mr M Relf. I will delete condition 8 that effectively requires all vehicles to enter and depart the site via the Carrington Road driveway because I have not been persuaded by the traffic or town planning evidence that this is necessary. 37 Also, I have not been persuaded that it is necessary for the Management Office to be included as common property, and the reference to this shall be deleted from condition 94, that is otherwise agreed. 38 Finally, the agreed tree protection condition in Exhibit 12 will be included in the consent. Exhibits A, F, 12 and 15 will be retained. ___________________ 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. 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