Land and Environment Court New South Wales Medium Neutral Citation: Hunter v Byron Shire Council [2017] NSWLEC 1495 Hearing dates: 24 August 2017 Date of orders: 08 September 2017 Decision date: 08 September 2017 Jurisdiction: Class 1 Before: Brown C Decision: See orders pars 36, 47, 50. Catchwords: DEVELOPMENT APPLICATION: two separate applications for same site - storage premises and modification of approval for road transport terminal – consent under Roads Act 1993 – traffic and safety – drainage - flooding - effluent disposal – zone objectives – public interest Legislation Cited: Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Cases Cited: Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451; Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416; Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27) Category: Principal judgment Parties: Alan Hunter (First Applicant) Joan Hunter (Second Applicant) Byron Shire Council (Respondent) Representation: Counsel: Mr A Gadiel, solicitor (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/64945, 2017/125755 Publication restriction: No Judgment 1. COMMISSIONER: These are two separate but related development applications for the property at 31 Pinegroves Road, Myocum (the site). The appeals were considered concurrently. Background 1. On 1 March 2014, the council approved Development Application DA 10.2016.559.1 for the change of use of a farm building to a road transport terminal. The approval was to cease two years after the commencement of operations. While there was no agreement on the commencement of operations, it was generally accepted by both parties that the consent ceases on 4 September 2017. The applications The storage shed appeal – Appeal No 2017/64945 1. Development Application No 10 2016.486.1 seeks consent for the use of three farm buildings as storage premises and the addition of 12 self-storage units relocated from a road transport terminal, that is subject to the time-limited consent (DA 10.2016.559.1). The existing road transport terminal will be removed. 2. One Lilli Pilli tree and a number of bottlebrushes are to be removed to allow for the 12 self-storage units to be relocated from the road transport terminal. Onsite parking will be provided for 12 vehicles. 3. The application proposes that the self-storage facility would operate between 7:00am and 6.00pm Monday to Friday, with no operation on weekends or public holidays. The road transport terminal modification – Appeal No 2017/125755 1. The modification application seeks to modify Development Application DA 10.2016.559.1 for the change of use of a farm building to a road transport terminal by deleting existing condition 1A that states: 1A. This consent ceases two (2) years after the commencement of operations. 1. A new condition 1A is proposed by the applicant that states: 1A. This consent ceases to authorise the Road Transport Terminal upon commencement of operation of the storage facility approved pursuant to development application 10.2016.486.1. 1. The rationale behind the proposed modification is set out in the documentation accompanying the application that states: The road transport terminal should be able to continue, pending commencement of any consent granted for 10.2016.486.1 5.6 The applicants are presently pursuing a development consent for DA 10.2016.486 1 in the Land and Environment Court. 5.7 It is not certain that a development consent will be granted. If a development consent is not granted, the applicants will wish to continue to operate the road transport terminal. 5.8 If a development consent is granted, the applicants cannot be certain as to the precise time in which the applicants will choose to act on it. Generally, the EP&A Act envisages that proponents will have up to five years to commence a development consent. 5.9Accordingly, if a development consent is granted for DA 10.2016.486.1 — but the applicants decide not to commence it immediately — the applicants will wish to continue operating the road transport terminal. 1. The maximum number of truck movements is to remain at 10 trucks per week, Monday to Friday between 7am and 6pm. The site 1. The site is irregular in shape and has an area of 48.9 ha. It is located approximately 300m south of the intersection of Pinegroves Road with Tyagarah Road. The site currently contains: * an approved road transport terminal, constructed from 12 shipping containers, roofed and bolted together, located adjacent to the northern boundary of the property, * an existing dwelling, located towards the southern boundary, * a farm shed/office located to the south-west of the dwelling, * three farm sheds, each constructed from six shipping containers roofed and bolted together, located adjacent to the farm shed, and * a second dwelling located to the east of the main dwelling. 1. The site falls steeply from a contour of approximately 20m AHD at the northern access point. The land rises in the south eastern part of the site to a small ridgeline situated above the 20m AHD contour. A watercourse traverses the south eastern part of the site. 2. Pinegroves Road has a two (2) car wide sealed formation for approximately 250m, culminating in a turning circle approximately 100m north of the site. The road reserve continues to the south to provide access to the site. This part of the road reserve falls steeply from the turning circle and contains a narrow sealed surface for this section. A developed rural residential lot is located on the west of this section and has access from the steep section of the road. Relevant planning controls 1. The site is zoned part R5- Large Lot Residential, part RU1 - Primary Production; part RU2 - Rural Landscape; and part DM - Deferred Matter under the provisions of Byron Local Environmental Plan 2014. The approved "road transport terminal" is located within Zone R5- Large Lot Residential and the proposed "storage facility" is located within Zone RU2 - Rural Landscape. "Storage premises" are a permissible use in the RU2 zone, with consent. 2. Clause 2.3(2) provides that the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone" The zone objectives are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality. • To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality. The storage unit application 1. The proposed development, as described in the report to the council on 15 December 2016, states: The development application proposes to remove the shipping containers currently approved for use as a road transport terminal from the north of the site and add them to the three farm sheds currently located toward the southern boundary. Each of the sheds would then comprise ten individual units, proposed to be used as 'self-storage'. Each of the existing three sheds has an area of 87.6m2. When the road transport terminal is dismantled, and four storage units are added to each shed, they will each have an area of 150m2. The total area proposed for self-storage units is therefore 450m2. The application proposes the use of the existing office in the farm shed to manage the storage premises. The individual units (i.e. shipping containers) measure 6.0 by 2.4m, with the combined structure having a finished height of 2.5m. One of the units will be fitted with a toilet facility, with the existing composting toilet at the road transport terminal to be relocated. Hours of operation are proposed as 7.00 am to 6.00 pm Monday to Friday, with no weekend operations. No access to the site will be allowed after 6.00 pm. One Lilli Pilli is proposed to be removed from the western-most shed, to allow for the addition of the two units. An adjacent Bronze Currajong is proposed to have one branch lopped. At the northern end of the middle shed, one bottle brush will be removed. All of this vegetation was planted by the land owner. 1. The appeal was subject of a conciliation conference on 25 July 2017 under s 34 of the Land and Environment Court Act 1979 however as no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). As part of the discussion at the conciliation conference and after, the respective experts discussed the contentions and the joint reports at the hearing provided agreement on the contentions. The original contentions identified by the council raised the following matters as reasons for refusing the application: * traffic and parking, * effluent disposal, * flooding, * character and zone objectives, * insufficient and inadequate information, * precedent, and * public interest. 1. Following the preparation of the expert joint reports in the areas of flooding, town planning and traffic there was no disagreement from the opposing experts on any of the contentions. The experts concluded that there was no basis to refuse the application from their respective areas of expertise. 2. Mr Seton, for the council, submits that, notwithstanding the agreement of the experts, the Court should refuse the application on the basis of the evidence of the residents that live along Pinegroves Road and their observations of the operation of the approved trucking depot. A number of residents provided evidence to the Court and their concerns could be summarised as: * numerous breaches of conditions of consent restricting hours and days of operation, * unauthorised use of farm sheds for storage purposes, * poor road alignment and grades, * amenity impacts from cars/trucks using the steep access, * unsuitability of the site for a storage facility, * renters of the storage units will likely want to access on weekends, and * additional traffic dangerous for local koala population. 1. On those matters raised by the residents; I am not satisfied that there is sufficient reason to refuse the application based on these concerns and the evidence of the experts who prepared reports for the hearing and also the submissions of Mr Gadiel, for the applicant. 2. Mr Gadiel submits it is not appropriate rely on any past breaches (if they were established) to support the refusal of another application. In Jonah Pty Limited v Pittwater Council [2006] NSW LEC 99, Preston CJ [at 35] states: Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. 1. I also accept that the proposed development will have the benefit of a Plan of Management and while I accept that the council enforcement of the conditions of consent may be problematic at times based on the evidence from the residents, the uncertainty in the enforcement of conditions of consent is not a reason to refuse the application. 2. The traffic matters raised by the residents were addressed by Mr McLaren for the council and Mr Brooke, for the applicant. They agree that; * the traffic surveys were valid in relation to the survey period and duration, * the proposed development will generate approximately 8 vehicles per day, and * sufficient parking is provided. 1. Mr McLaren and Mr Brooke also agreed on additional conditions of consent regarding line marking, vegetation clearing for better sight distance, road widening (on the steep part of the road reserve) and road repairs address those concerns over traffic expressed by the residents In the absence of any contradictory expert evidence I accept the conclusions of Mr McLaren and Mr Brooke that road alignment and grades and any impacts from cars/trucks using the steep access have been satisfactorily addressed and there are no traffic reasons why the application should be refused. 2. The question of whether the site is unsuitable for a storage facility is addressed partly by the permissibility of this use in the RU2 zone and partly in the decision of In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClelland CJ relevantly states (at par 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 1. While permissibility does not guarantee an approval, no expert evidence was provided that suggested that any impacts could not be addressed. 2. The potential impact on the local koala population was addressed in the council report of 15 December 2016 where it states that "the development will not directly impact koalas. Indirect impacts would be associated with additional traffic movement on local network. As indicated above, the traffic generated by the use of the shed as self-storage will be less than that generated by a new dwelling". There was no evidence to suggest that this conclusion is incorrect. 3. There was agreement provided by Mr McLaren and Mr Brooke on the five measures required to be provided external to the site (Exhibit, p 6, 7) to address traffic and safety. These are: 1). The applicant shall prepare detailed engineering plans of the proposed upgraded roadworks, as outlined in the Bitzios Consulting concept plan number P3042-001 for both the "Driveway Widening" dated 28 July 2017 for works at the crest within Pinegroves Road and the "Intersection Line Marking Plan" dated 27 July 2017 for works at the intersection of Tyagarah Road and Pinegroves Road, inclusive of all required pavement works, line marking, sign posting, relocation works and any associated ancillary works that are required as a consequence of detailed investigations. 2).The works at the intersection of Tyagarah Road and Pinegroves Road shall include any necessary pavement patching or upgrade to facilitate the required line marking with the design based upon achieving the required swept path of a Heavy Rigid Vehicle (HRV), in accordance with AS2890.2-2002, turning left into Pinegroves Road from Tyagarah Road so as to not cross the centreline of Pinegroves Road. Under the Road Rules 2014, it is permitted under Regulation 28 (2) that a vehicle larger than 7.5m in length can turn from the second lane when turning left at a public road intersection. Overhanging vegetation on the left turn from Tyagarah Road to Pinegroves Road shall be trimmed to a height of at least 4.5m for the design HRV. Council shall be engaged to undertake the required vegetation clearing works. 3) The applicant shall liaise with Council with respect to the extent of vegetation clearing to the west along the southern side of Tyagarah Road to assist in providing improved sight distance for a truck driver seeking to turn right into Tyagarah Road from Pinegroves Road in accordance with the "Technical Note P3042.01T- Pinegroves Road Tyagarah Road Intersection Sight Distance" prepared by Bitzios Consulting, dated 28th July 2017. The truck driver height is measured as 1.8m from the pavement. As a minimum the clearing should be more than MGSD (i.e. 125m), and desirably up to SISD (225m), to maintain acceptable intersection sigh distance and that Council shall be engaged to undertake the required vegetation clearing works. 4). The detailed engineering plans listed above shall be submitted to Council for its consideration and subsequent approval prior to any external roadworks being undertaken. Council are to be consulted and road opening permits being granted prior to any external roadworks being undertaken. 5.) The engineering plans and specifications are to be designed by a qualified practising Civil engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. Such plans and specifications must be approved as part of the Construction Certificate. 1. Notwithstanding the agreement in the joint report that the above five matters were "Agreed Conditions of Consent", Mr Brooke, in his oral evidence, appeared to move away from the need to impose these conditions on the basis that they were not needed to address the traffic implications of the proposed development. Mr Brooke stated that there are already existing issues of safety on the roads and intersections nearby and the number of vehicles generated by the proposed development was not enough to warrant the conditions agreed to in the joint report. Mr McLaren was adamant that the development should not be approved without the agreed conditions and also that the development should not commence without the works required by the agreed conditions being completed. Conditions 1. The conditions in dispute are: 2. Condition 9(b): this condition relates to vegetation clearing in the road reserve to provide increased sight distances for motorists. The council maintains that the last sentence of 9(b) condition should read: Approval of the Council must be obtained for carrying out the required vegetation clearing works and such work must be undertaken by a person or contractor approved by the Council. 1. The applicant proposes the last sentence for condition 9(b) to read: Approval of the Council must be obtained for carrying out the required vegetation clearing works and such work must be undertaken by a person or contractor selected by the proponent, from a pre-approved Council list. 1. I accept the council's version of condition 9(b). There was little evidence on the "pre-approved Council list" and I agree that the council should have the right to approve the contractor given that it is within land controlled by the council. 2. Condition 28: this condition relates to the frequency of truck movements to the site. The applicant accepts the limits on the number of trucks but opposes the following additional requirement: The Applicant or person with the benefit of this development consent is to keep a weekly record of the number of trucks using the storage facility to be produced to Byron Shire Council at request. 1. I agree with the inclusion of this sentence as there must be some record of the number of truck movements given that the traffic evidence is based on a specified number of movements. The following additional sentence should also be included: The number of trucks using the storage facility may be electronically recorded and any data captured must be kept for a minimum period of 4 weeks. 1. A further condition (condition 3A) should also be added, consistent with the evidence of Mr McLaren that states" 3A) Prior to the commencement of the use of the approved development, the work on the public road shown in the approved plans must be completed to the satisfaction of council. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No 10 2016.486.1 for the use of three farm buildings as storage premises and the addition of 12 self-storage units relocated from a road transport terminal at 31 Pinegroves Road, Myocum is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and C. The road transport terminal application 1. The existing consent for the road transport terminal is interlinked to the proposed storage unit application and the difference in the conditions sought by each parties outline their respective differences. The conditions in dispute are: 2. Condition 1A: this condition relates to the time consent ceases to operate. The council proposes the following condition: 1A. This consent ceases to operate (12) months from the date of approval of the modification application in relation to development consent 10.2013.599, or upon commencement of operation of the storage facility approved pursuant to development application 10.2016.486.1, whichever is the earlier. 1. The applicant proposes: 1A. This consent ceases to authorise the Road Transport Terminal upon commencement of operation of the storage facility approved pursuant to development application 10.2016.486.1. 1. Of the two variations to condition 1A, the difference is that the council seeks the road transport terminal consent to lapse 12 months from the date of approval of the modification application. Both parties accept that the consent should lapse "upon commencement of operation of the storage facility". I am not satisfied that the consent should cease to operate 12 months from the date of any approval but the consent should cease to operate if an approval under s 138 of the Roads Act 1993 not is obtained within 12 months from the date of approval of the modification application. 2. Having agreed with the conclusions of Mr McLaren that the identified road works are necessary to address the same levels of truck movement (10 trucks per week) for the storage facility it would be unreasonable not apply the same conclusions to the road transport terminal (having the same truck movements), if the storage unit application does not proceed. If the proposed storage facility does not proceed (and this was a matter raised during the hearing), the existing road transport terminal should only operate with the identified road works in place. Consequently, the following version of condition 1A is reasonable. 1A. This consent ceases to operate unless an approval under s 138 of the Roads Act 1993 is obtained within (12) months from the date of approval of the modification application or upon commencement of operation of the storage facility approved pursuant to development application 10.2016.486.1. 1. New council conditions 1B, 1C and 1D 1B. The consent of the Council in its capacity as roads authority must be obtained under section 138 of the Roads Act 1993 to carry out the work on the public road shown in the approved plans (referred to as the "Intersection Line Marking Plan" and "Driveway Widening Plan") and the works approved shall be carried out within 6 months from the date of approval of the modification application in relation to development consent 10.2013.599. 1C. The authorisation of the Council in its capacity as the delegate of Roads and Maritime Services must be obtained for the installation of the prescribed traffic control devices (as defined in the Road Transport Act 2013) as shown in the approved plans (referred to as the "Intersection Line Marking Plan" and "Driveway Widening Plan"), and the works approved shall be carried out within 6 months from the date of approval of the modification application in relation to development consent 10.2013.599. 1D. The existing sign located at the gate to the Road Transport Terminal is to be replaced with a metal sign 0.6m wide x 0.9m deep prepared by a sign writer, and generally in accordance with the design on page 7 of the Addendum to Statement of Environmental Effects prepared by Ray Darney Town Planning dated 28 July 2017." 1. The applicant proposes the following new conditions 1B, 1C, 1D, 1E and 1F: 1B. The proponent is, from the date of approval of the modification application in relation to development consent 10.2013.599, to take all reasonably practicable measures to obtain the final approval of the Council in its capacity as roads authority under section 138 of the Roads Act 1993 (including obtaining any necessary road opening permit) to carry out the work on the public road shown in the approved plans (referred to as the "Intersection Line Marking Plan" and "Driveway Widening Plan"). 1C. The works approved shall be carried out within 6 months from the date of final approval (including any necessary road opening permit) being given as described in condition 1B. 1D. The proponent is, from the date of approval of the modification application in relation to development consent 10.2013.599, to take all reasonably practicable measures to obtain the final approval of the Council in its capacity as the delegate of Roads and Maritime Services for the installation of the prescribed traffic control devices (as defined in the Road Transport Act 2013) as shown in the approved plans (referred to as the "Intersection Line Marking Plan" and "Driveway Widening Plan"). 1E. The works approved shall be carried out within 6 months from the date of final approval being given as described in condition 1D. 1F. The existing sign located at the gate to the Road Transport Terminal is to be replaced with a metal sign 0.6m wide x 0.9m deep prepared by a sign writer, and generally in accordance with the design on page 7 of the Addendum to Statement of Environmental Effects prepared by Ray Darney Town Planning dated 28 July 2017. 1G. Where the Council has been unable to issue a final approval, as delegate of Roads Maritime Services, for the installation of prescribed traffic control devices, because of a determination of the Chairperson of the Regional Traffic Committee (under the terms of the delegation made under section 50 of the Transport Administration Act 1988) this consent will cease to authorise the Road Transport Terminal 12 months from the date on which the Council gives written notice of the determination of the Chairperson to the proponent. Reason: To allow the proponent to prepare and pursue a modification application in response to an adverse determination by the chairperson of the Regional Traffic Committee - and if no modification is sought or approved, to provide for the cessation of the land use. 1. These disputed conditions relate principally to the need for consent under s 138 of the Roads Act 1993. There was no dispute that it is a necessary requirement and I see no benefit in including words such as "to take all reasonably practicable measures to obtain the final approval" in a condition when there is a statutory obligation to obtain consent. I accept the council's version of conditions 1B and 1C with the modification that the works approved shall be carried out within 6 months from "approval of the Council in its capacity as roads authority under section 138 of the Roads Act 1993" rather than "the date of approval of the modification application in relation to development consent 10.2013.599", as per the applicants condition 1E. 2. The councils condition 1D and the applicant's condition 1F are identical and can remain. 3. There is no condition that seeks to monitor the frequency of truck movements to the site. I agree that there must be some record of the number of truck movements and the following sentences should be included in condition 13: The Applicant or person with the benefit of this development consent is to keep a weekly record of the number of trucks using the storage facility to be produced to Byron Shire Council at request. The number of trucks using the storage facility may be electronically recorded and any data captured must be kept for a minimum period of 4 weeks. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. The modification application that seeks to modify Development Application DA 10.2016.559.1 for the change of use of a farm building to a road transport terminal at 31 Pinegroves Road, Myocum is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and C. Section 138 Roads Act 1993 consent 1. The power of the Court to exercise the function of a council, as a roads authority, under s 138 of the Roads Act 1993 when disposing of an appeal from a decision of that same council under s 97 of the Environmental Planning and Assessment Act 1979, has been considered on a number of occasions by this Court. In particular, the Court has considered the exercise of that function where the development in question has involved development on private land together with ancillary works on a public road to provide access to the development on private land (see Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451; Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416; Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27). In each case the Court has held that the function of the council under s 138 was a function open to be exercised by the Court pursuant to s 39(2) of the Land and Environment Court Act 1979 when determining a development appeal. 2. The parties agreed on the conditions suitable for a consent under s138 of the Roads Act 1993 Orders 1. The orders are: 1. Consent is granted to the application under s138 of the Roads Act 1993 to "erect a structure or carry out a work in, on or over a public road" in the vicinity of 31 Pinegroves Road, Myocum and identified as "Section 138 Roads Act 1993 consent - 31 Pinegroves Road, Myocum" attached to the judgment. ____________ G Brown Commissioner of the Court Annexure A & B (179 KB, pdf) 64945 and 125755.17 Brown (C) (75.1 KB, pdf) 64945 and 125755.17 Brown (Conditions) (240 KB, pdf) 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: 08 September 2017