Land and Environment Court New South Wales Medium Neutral Citation: Road Surgeons Pty Limited v City of Botany Bay Council (No 2) [2011] NSWLEC 1253 Hearing dates: 25 July 2011 Decision date: 18 August 2011 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal subject of proceedings no. 10180 of 2011 is upheld. (2)The development application number 10/205 submitted to Botany Bay City Council is approved subject to the conditions contained in Annexure A. (3)The appeal subject of proceedings no. 10179 of 2011 is upheld. (4)The Court further directs the Respondent to issue a Building Certificate in accordance with section 149A of the Environmental Planning and Assessment Act 1979 pursuant to the Building Certificate Application made to it by the Applicant on 22 February 2010 within 28 days of receipt of a current Final Fire Safety Certificate. (5)The exhibits may be returned except for A, C, 3, 4, 5, 6. Catchwords: DEVELOPMENT APPLICATION - Industrial development, amenity, traffic and parking impacts, suitability of the site for the scale of development, landscaping Legislation Cited: Botany Local Environmental Plan 1995 Botany Development Control Plan Cases Cited: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Category: Principal judgment Parties: Road Surgeons Pty Limited (Applicant) City of Botany Bay (Respondent) Representation: Solicitors Ms J Reid (Applicant) Mr T O'Connor (Respondent) File Number(s): 10179 of 2011 10180 of 2011 Judgment Background 1These proceedings relate to the use of an industrial property located at 43 Pemberton Street, Botany and involve the following two appeals: * Appeal No 10179/11; an appeal against council's refusal to issue a Building Certificate covering unauthorised works at the premises, and * Appeal No 10180/11; an appeal against the refusal of a development application seeking the change in use of the premises as a tradespersons supply and services store, depot for business vehicles and equipment with associated business identification. 2The parties agreed to the appeals being heard concurrently. Insofar as a number of contentions were raised initially, conferencing by the parties reduced them, with some capable of conditioning, leaving the following contentions: * The suitability of the site for the proposed usage in terms of the amenity of the area and desired future character, * Adequacy of parking and access arrangements * Landscaping, The site 3No. 43 Pemberton Street, Botany is located on the we s tern side of Pemberton Street between Botany Road to the south and Warrana Street to the north. It is described as Lot 2 in DP 235775. The subject land is rectangular in shape with a 12.17 m frontage to Pemberton Street. 4The site is currently occupied by a single-storey brick industrial building with a metal roof built to the northern and southern boundaries . The building forms part of a group of four attached industrial premises with a concrete footpath that runs across the frontage of each of the adjoining industrial units. The building is setback approximately 2.47 m from the front boundary and comprises approximately 200 sq m of factory and office floor area . 5There is a separate parcel of land at the rear of the building that was resumed by C ouncil in 1988 for drainage purposes. As a result of the building being built to the northern, western and southern boundaries , there are no off street car parking spaces on site. The site is surrounding by light industrial and commercial / warehouse type uses . 6The site has single vehicular access point approximately 4 m wide at the eastern boundary to Pemberton Street splaying to 5.25 m at the kerb. 7The site bounded by Botany Road to the south, Stephen Road to the east and the Southern Goods Rail Line to the north . The suburb is made up of a mix of detached and semi-detached dwellings, multi-unit housing and lighter industrial uses are scattered . The land directly opposite the site to the east is zoned 4(b I) - Mixed Industrial ( Restricted) and land beyond that is zoned Residential 2 ( b). 8Immediately to the north of the site are two (2) adjoining industrial units and immediately to the south another adjoining industrial unit. An open yard with an associated industrial building lies adjacent to the group of industrial units directly to the south . 9The surrounding development in the area is characterised by a mixture of warehousing and light industrial uses . Planning controls 10The site is subject to the following planning controls. The main controls are contained in the Botany LEP 1995, under which cl 5(4) specifies the objectives of the plan. The subject site is zoned 4(b) Mixed Industrial pursuant to the zoning map to cl 10, which also provides: (3) The Council may only grant consent to the carrying out of development of land to which this plan applies if the Council is of the opinion that the carrying out of the development is consistent with the primary objective of the zone in which the development is proposed to be carried out. In granting consent, the Council must take into account other relevant objectives of the plan and the zone in which the development is proposed to be carried out. 11Clause 10 then includes the zone objectives for the 4(b) Mixed Industrial zone as follows: The primary objective is to improve the environmental amenity of the locality by encouraging the upgrading and redevelopment of properties for light industrial, retail and commercial uses which would not detract from the amenity of the area by reason of the size or type of activity proposed. The secondary objectives are: (a) to ensure that any development which occurs is commensurate with the capacity of the road network in the vicinity, (b) to ensure that development by the nature of its operations does not detrimentally affect the environment or the amenity of adjoining or adjacent residential premises, and (c) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone. 12Clause17(2) also relevantly provides: Before granting consent to any development to be carried out on land within Zone No 4 (b) or Zone No 4 (b1), the Council must be satisfied that: (a) the development provides adequate off-street parking, (b) the development provides an efficient and safe system for the manoeuvring, loading and unloading of vehicles, (d) any goods, plant, equipment and other material resulting from the operations of the development will be stored within a building or wholly within the site and screened suitably from public view, (e) the operation of the development will not have an adverse impact on the surrounding area as a result of traffic movement, the discharge of pollutants, emissions, waste storage, hours of operation and the like, (ga) the development is of a high standard of design, provides a high level of environmental amenity and is compatible with adjoining land uses and development, 13Other controls are contained in the Botany Development Control Plan (DCP) No.1 - Off Street Car Parking , particularly cl 3.3 and cl 4.2 . Also relevant are the controls in the Botany Development Control Plan No. 33 - Industrial Development. 14The controls in DCP 33 support those in the LEP on the basis of the following objectives: 01 To implement the objectives of the Botany Bay Local Environmental Plan 1995. 02 ... 03 ... 04 To improve the environmental and aesthetic amenity of industrial areas for those who visit and/or work in the areas. 05To encourage the development of cleaner,well - landscaped industrial zoned areas with well maintained industrial/commercial buildings and sites. 06... 07 To ensure that development incorporates safe, effective and convenient provision for servicing, parking, pedestrian and vehicular access and movements. 15The site is located within the Botany (Central) Industrial Precinct in the DCP, which includes the following description: Due to the long industrial history of this Precinct, a number of issues have evolved over time that have made the operation of some businesses poor and created ongoing issues with residents and other businesses . These issues include : irregular subdivision pattern, small lots sizes and fragmented landownership, conflicts in traffic and pedestrian access , inadequate off and on street parking facilities and servicing, inadequate space for vehicle manoeuvring , poor onsite storage, noise and odour from operations, inadequate road network (including width of roads) for manoeuvring of trucks, poor built form and public doman . Some industrial sites do not appropriately cater for modern industrial operations or vehicular access (trucks). 16Consequently, the DCP states the following relevant objectives (O) and controls (C) for this precinct: 01 To ensure that development complies with the intent of the Botany south objectives and outcomes . 02 To improve the design standard of developments within the Precinct... 06 To improve the function of existing uses within the Precinct., and C3 The design and operation of development is to reduce any adverse traffic impacts on the surrounding road network. C4 The design of developments shall be of a high architectural quality utilising a variety of materials and decorative colours and finishes. The evidence 17Detailed evidence in this matter was presented in the form of joint engineering and planning reports by: * Mr C Hallam; council's traffic consultant, * Mr R Varga; applicant's traffic consultant, * Ms P Mikhiel; council team leader for DA assessment, * Mr M Swain; applicant's consulting planner. 18It is apparent from the evidence that there is a raft of controls that apply in this industrial precinct area of Botany. These controls recognise the historic development of the area, which has apparently resulted in a lowering of the amenity due to the intensification of development in the area. With the anticipated increase in residential development in the area, the controls then seek to improve the future amenity. 19This applies directly to the subject application. Whilst the business has apparently been operating for some 7 years from the premises on an unauthorised basis, the controls now seek to improve the amenity where any new development applications are lodged for consideration. Traffic access and parking 20Consequently the proposed access and parking arrangements are the main issues in this matter. Mr Varga described the proposed use as involving: * The storage and supply of plant and equipment used in pavement repair and road maintenance, such as bobcats wheelbarrows and other hand operated equipment. * The employment of 4 employees, including manager, most being authorised traffic controllers. * The trucks are usually loaded and depart the site before 7am. Where there is security at the construction site, the vehicle can be left over night. * In circumstances when the trucks return to the site, the 3 or 4 trucks are reversed into the building, under the control of the authorised traffic controller. Then when leaving, they are able to leave in a forward direction. 21The traffic issue then concerns the adequacy and suitability of parking and manoeuvring arrangements, particularly the likelihood of employees using the restricted on-street spaces or the trucks and trailers being parked on street, albeit temporarily. 22The traffic consultants agree that this development would require 3 on-site car spaces. Whilst, Mr Varga initially considered the applicant would be entitled to 3 "parking credits", this claim was not established. However, he nevertheless considers that the traffic issues can be satisfactorily managed by way of a plan of management (POM) i.e. Exhibit 'C'. 23The POM basically requires employees to arrive within a 15 minutes timeframe and when they park their private cars on-street, they then assist with the coordination of the departing trucks to enable the private cars to be transferred and parked within the building during the day. A reversal of the procedure is proposed in the afternoon. 24Both traffic consultants agree that the size of the building precludes vehicles turning inside so as to enter and leave the building in a forward direction. If however the provisions of the POM are followed and the trucks are reversed into the building under the supervision, then the consultations say that this could work satisfactorily. But Mr Hallam expresses some reservations about the practicality of the POM and that unless there is a high level of adherence to it, then the dual use of the same parking area for trucks and cars is likely to create undesirable external impacts, with employees' cars parked in Pemberton Street. Planning issues 25The joint planning report contains a detailed assessment of the set of controls applying to the site. Ms Mikhiel does not support the proposal because she considers it is inconsistent with the controls that seek to improve the amenity of the area. Her opinion is based on: * The lack of appropriate on-site parking and inability to manoeuvre on-site, which is likely to cause undue nuisance in the public domain, as has apparently occurred in the past. * The need to rely on the detailed provisions of the POM for supervised entry and exit of vehicles to the site, confirms the unsuitability of the site to accommodate the 3 trucks and 3 cars. * The proposal is not consistent with the primary and secondary objectives for the zone. * The proposed landscaping of the setback strip at the front of the property fails to adequately improve the aesthetic amenity of the area. 26Against this, Mr Swain considers that the provisions of the POM adequately address the traffic arrangements. Also, that the proposed landscaping will improve the environmental amenity of the locality and appearance of the development to the streetscape. Conclusion 27Having considered the evidence, the submissions and undertaken a view, it is apparent that the subject site comprises an older form of industrial building that is located within the Botany (Central) Industrial Precinct where the current set of controls are seeking to improve the amenity of the area, particularly parking and traffic flows. I also note that the surrounding area is subject to change with more intense residential developments being allowed nearby to the south of Pemberton Street. 28The evidence indicates to me that the site is not suitable for the proposed scale of development, whereby any approval would result in an improvement in amenity of the area. This is initially confirmed because the front door required widening to approximately 3.6 m to permit the convenient manoeuvring of the 3 x 5 m - 6 m trucks plus trailers into the building. 29More critical however, the size of the building then means that the only appropriate way of parking these vehicles requires some manoeuvring and reversing from Pemberton Street. The Court had the opportunity of viewing this movement during the mid morning period. 30From this, it appears to me that this manoeuvring would be subject to increased difficulty in the afternoon period when there is likely to be more on - street parking and traffic in the street, as indicated by Ms Mikhiel. Whilst strict adherence to the POM might generally minimise inconvenience, nevertheless I do not consider this represents an improvement of the traffic arrangements for the street, as required by the aforementioned set of controls. 31The success of the POM would depend a lot on coordinated timing. In this regard I note that clarification of the number and role of the employees was required. When there are the 3 employees working, they would be required to start practically simultaneously so that the trucks can leave the building and then somehow allow the employee vehicles to be taken inside while the last truck temporarily parks somewhere. 32According to the POM, when the trucks return in the afternoon (generally between 3 and 4 pm), the return is to be spaced at 15-minute intervals with the first truck carrying 2 employees. One of these is to then remove the employees' vehicles and then supervise the reverse parking into the building for the three trucks. It seems to me that this level of arrival would be difficult to regularly achieve considering existing traffic congestion on surrounding roads. 33Whilst I also have some uncertainty about the number of employees operating from the site and therefore the associated number of cars, I consider the proposed parking arrangements quite inconvenient as a regular operating procedure with the strong likelihood of either the trucks or employees vehicles utilising the limited on -street parking spaces. This would be inconsistent with the parking controls that require the provision of adequate and usable parking spaces. 34Consequently, I do not consider the application satisfies the requirements of cl 17(2) (a), (b) and (e). In this regard I have considered the submissions for the applicant concerning the planning principles in the matter of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 where Brown C in at para 31 said: 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 35As I have indicated previously, I consider the proposed POM somewhat idealistic and difficult to implement considering the restricted and reasonably strict time constraints required to shuffle all the vehicles on a daily basis so as to achieve and acceptable outcome. It seems to me that any breaches of the POM would be difficult to enforce, should it not work satisfactorily. Therefore I have significant reservations with relying on the POM in the circumstances of this matter. 36The other significant contention concerns the aesthetic impacts relative to the controls objectives to require landscaping to improve the visual quality of the existing industrial area. In this regard, I have considered the applicant's response that a landscaping strip could be provided in the front set back area. Whilst there was some argument about the adequacy of this, it is apparent that landscaping improvements for the individual industrial buildings are limited in the absence of any overall landscaping strategy. However the proposed upgrading would be an improvement over the current situation. 37In summary then, I do not consider this proposal reasonably satisfies the current controls for an unlimited consent because the site is too small to provide adequate on - site parking and therefore unsuitable for the scale of the proposed vehicle usage to achieve the required amenity outcome. However I note that section 2.6 of DCP 33 states that: Council in partnership with Planning NSW are researching opportunities and implementing actions to revitalise the Botany south area. The Botany south area refers to land in Botany bound by Botany Rd, Wilson St, Warrana St, Kurnell St, Aylesbury St, Tenterden Rd, Fabry St, Cranbrook St and Hastings St . The Botany (Central) Industrial Precinct is part of this area and project . The main focus of the project is to enhance the attractiveness, liveability and overall amenity of the neighbou r hood, as well as reducing the conflicts, which arise between industry and residents. A task of the Botany south project is to undertake a planning framework to guide future change and improvements, examining issues such as transport and pedestrian access, parking, landscaping, land uses and built form. This will then lead to changes to existing development and planning controls relating to the Botany south area (both residential and industrial uses). As a result this will update t he planning and development controls for the Botany (Central) Industrial Precinct . As an interim measure until the Botany south project is complete and new planning/development controls specific to the Botany (Central) Industrial Precinct are adopted by Counci l , this DCP will apply and be used to assess Development Applications . 38Given that the controls are implemented on an interim basis and with existing development in the area likely to take some time to achieve the transformation envisaged, I consider that in these circumstances then it may be appropriate to allow a time limited consent (say 4 or 5 years) so as to allow the applicant the opportunity for an orderly review of the future use of the premises. This review could include the scale of the vehicle usage and testing the effectiveness of the POM. 39Prior to making final orders, the parties are invited to make further submissions on my findings as to whether it is appropriate to grant a time limited consent. Also, what orders would be appropriate to finalise the Building Certificate appeal. 40The Court orders that: (1)The appeal subject of proceedings no. 10180 of 2011 is upheld. (2)The development application number 10/205 submitted to Botany Bay City Council is approved subject to the conditions contained in Annexure A. (3)The appeal subject of proceedings no. 10179 of 2011 is upheld. (4)The Court further directs the Respondent to issue a Building Certificate in accordance with section 149A of the Environmental Planning and Assessment Act 1979 pursuant to the Building Certificate Application made to it by the Applicant on 22 February 2010 within 28 days of receipt of a current Final Fire Safety Certificate. (5)The exhibits may be returned except for A, C, 3, 4, 5, 6. R Hussey Commissioner of the Court ANNEXURE A 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. Decision last updated: 29 August 2011