Alamdo Holdings Pty Limited v The Hills Shire Council

[2012] NSWLEC 1302

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302

Hearing dates:

11 and 12 April 2012 and 18 October 2012

Decision date:

31 October 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

1.The appeal is upheld.

2. Development consent is granted for a change of use of an existing light industrial building to bulky goods premises and internal partitioning works in accordance with DA No 309/2012/HB subject to the conditions in 5 as amended by this judgment.

3. The exhibits are returned except exhibit A, D, F and 5.

Catchwords:

Development Application - change of use from a warehouse/office to bulky goods premises; interpretation of a savings provision requiring a determination of a development application as if the Plan had not commenced

Legislation Cited:

Baulkham Hills Local Environmental Plan 2005
Environmental Planning and Assessment Act 1979
The Hills Local Environmental Plan 2012
The Interpretation Act 1987

Cases Cited:

Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Victorian Stevedoring and General Contracting Co Pty Ltd v Dingnan (1931) 46 CLR 73

Category:

Principal judgment

Parties:

Alamdo Holdings Pty Limited (Applicant)

The Hills Shire Council (Respondent)

Representation:

Counsel
Mr Robertson SC (Applicant)
Mr Galasso SC (Respondent)
Mr T Messanger
HWL Ebsworth (Applicant)
Ms Mort
Hills Shire Council (Respondent)

File Number(s):

11210 of 2011

Judgment

1. After the Court's list clerk had notified the parties by telephone that I was handing down my judgment in this development appeal, the law changed. The Hills Local Environmental Plan 2012 (LEP 2012) was made and commenced on 5 October 2012.

1. At the time of reserving my judgment the prevailing planning instrument had been The Hills Local Environmental Plan 2005 (LEP 2005) and the draft The Hills Local Environmental Plan 2010 (LEP 2010) had been exhibited but not made. As this application is now caught by the savings provision in cl1.8A of LEP 2012 I granted leave, on 18 October 2012, to reopen the hearing to allow the parties an opportunity to address me about the statutory framework against which this application must now be assessed.

1. The answer to that question requires an interpretation of the savings provision in cl1.8A of LEP 2012. In order to understand the parties competing submissions about that issue it is necessary to appreciate that the savings provision as made in cl1.8A of LEP 2012 is different to that proposed in the exhibited draft LEP 2010 in evidence at the earlier hearing. The draft provision directed the Court to determine the application -

"... as if a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced." (Emphasis added)

1. The effect of this type of saving provision is dealt with in the applicant 's written submissions (AWS) dated 18 October 2012 at paragraphs 4 - 7. It states:

"In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129LGERA 195, the Court of Appeal authoritative construed a savings clause to this effect. The savings clause in the Sutherland 2000 LEP provided that, despite the repeal of the 1993 LEP, that LEP applied to pending development applications "as if this Plan had been exhibited but had not been made": [35]. That is, on all fours with proposed cl.1.8A in the proposed 2012 LEP. This kind of savings provision invited consideration of whether the draft Sutherland LEP (as it was then known) was certain and imminent. That question, the Court of Appeal held, was answered by the making of the draft LEP. Once it was certain and imminent, the Court moved to consider whether the proposed development would undermine the objectives of the new LEP: [6], [7], [50]-[57]. The Court of Appeal anchored its decision in the second limb of the savings provision, which has been quoted above: [51] "it remained a draft instrument as far as the proposal was concerned, by virtue of the command in the transitional provision"; "the argument was that none of the LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision or the stream of case law forming the background against which its terms are properly to be construed. The transitional provision requires the LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as 'made'. In other words, the decision was driven by the words in the savings clause that specifically addressed the position of the later LEP: "the application must be determined as if this Plan had been exhibited but had not commenced". That was the direction to which the Court of Appeal referred."

1. The applicant submits however, that the above position must be contrasted with the savings provision expressed in cl1.8A of LEP 2012, which states:

"If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced" (Emphasis added)

1. I set out below the terms of s 79C of the Environmental Planning and Assessment Act1979 (the Act). The section details the matters for consideration when determining a development application on appeal under s 97 (1) of the Act.

"79C Evaluation

(1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest."

1. It is the applicant's submission that the savings provision found in cl1.8A directs the Court not to consider the LEP 2012 in its determination of the present development application. In acknowledging that the 2012 LEP has been made under s 59 (2) of the Act at the date of determination the applicant asks the Court to accept that the made LEP ceases to be a proposed instrument within s 79C (1) (a)(ii) of the Act. In directing the consent authority to treat it as not having been commenced for the purposes of this application the applicant contends that LEP 2012 cannot be considered as an environmental planning instrument under s 79C (1) (a)(i) of the Act. Therefore, it contends that the Court has no authority to take it into account in its assessment under s 79C (1)(a)(i) or (ii). While the applicant concedes that the 2012 LEP is relevant as an aspect of the public interest under s 79c(1)(e), it submits that by its terms cl 1.8A speaks against the instrument operating to prohibit the present application.

1. The applicant submits that in contrast with the earlier draft of the savings provision (which mirrored the terms considered by the Court in Terrace Towers) cl1.8A as made does not direct the Court to ignore the making of the LEP and treat it as an exhibited draft. On the contrary cl1. 8A acknowledges the fact that LEP 2012 is made but directs the Court to treat it as if it had not commenced. If it is not commenced then according to the applicant it has not repealed the LEP 2005, which must then continue to operate. In support of this submission the applicant relies on s 29 of the Interpretation Act1987, a repealing provision does not take effect until the provision substituting for them commences.

1. It is the applicant's case that the savings provision in the LEP 2012 seeks to ensure that there is no prejudice to a pending development application caught by cl1.8A. It directs that LEP 2012 is to be treated as if it is not in force or effect.

1. The applicant submits its interpretation of the savings provision is consistent with the fundamental legal principle that a law that is said to not commence has no operation, (subject to the Interpretation Act 1987 provisions, which enable an instrument to be made under that law, to take effect when the law itself commences). It refers the Court to the decision of Victorian Stevedoring and General Contracting Co Pty Ltd v Dingnan (1931) 46 CLR 73 and the principle that a law which has been repealed is taken never to have operated.

1. The applicant relies on the fundamental distinction between the draft and the final versions of the LEP to submit that the only applicable instrument in this case by dint of the saving provision is the LEP 2005. The applicant submits that in omitting the direction to consider the LEP 2012 "as if it had been exhibited but not made" from the savings clause there is an express intention that the law as declared in Terrace Towers should not apply.

1. By directing the Court to have regard to its making but to treat it as not having commenced the applicant contends that LEP 2012 simply has no legal status or application to this case under s79C (a) (i) and (ii) and is of no determinative weight under the public interest.

1. The applicant invites the Court to recognize the fundamental distinction between the making of an LEP and its commencement as observed in the Interpretation Act 1987. At paragraphs 11 - 12 of the applicant's written submissions it deals with this issue. It submits under s 39 of the Interpretation Act, a statutory rule may be commenced after it has been made and parts of a statutory rule may be commenced at different times. Under s 29, a repealing provision does not take effect until the provision substituting them commences. The applicant contends that the same can be said for the making of LEPS under s 33A of the Act. The terminology refers to the making of the instrument and s 34 (5) refers to the commencement upon publication on the NSW legislation website or on a later date specified in the LEP. An LEP is not deemed to be made on the date on which it is published rather it is when the Minister makes it: s 53 (1); s 59 (2).

1. Clause 1.8A does not refer to the making of the LEP by directing that it be considered as an exhibited draft as was the case in Terrace Towers. On the contrary cl1.8A acknowledges that the LEP 2012 is made but not to have commenced for the purposes of this pending development application.

1. The applicant relevantly asks what is the consequence for s 79C considerations?

1. Section 79C(1)(a)(ii) requires consideration of "any proposed instrument". The LEP 2012 does not fall within this category because at the date of my determination the LEP 2012 is made. Under s 79C (1)(a)(i) the Court is required to take into account the provisions of any environmental planning instrument. If the Court takes into account the LEP 2012 then those provisions include the savings provision in cl1.8A and they clearly direct that for this application the LEP 2012 is to be treated as having not been commenced and therefore of no legal effect.

1. The Council disagrees. It contends that the Court must adopt a practical approach to the interpretation of cl1.8A and accept that the clause directs the LEP 2012 to be treated as an exhibited proposed instrument, which is imminent and certain. It submits that the clause should be interpreted in line with the authority in Terrace Towers and be given significant weight under s 79C (1)(a)(ii).

1. It argues it falls squarely within the Court of Appeal's reasoning in Terrace Towers. The Council affirmed it's reliance on the evidence given during the hearing and does not seek to call any other additional evidence in the event that I adopt the applicant's interpretation of cl1.8A.

Finding on the interpretation of the savings provision in cl1.8A.

1. I accept the applicant's interpretation of the savings provision in cl1.8A of LEP 2012 for the reasons outlined above.

1. The transitional provision in cl1.8A requires the LEP 2012 to be taken into consideration under s 79C(I) of the Act as if the Plan had been made but not commenced. The words in the savings clause under review in this case are different to those considered by the Court of Appeal in Terrace Towers. Therefore, the case at hand can be distinguished from reasoning of the Court of Appeal in Terrace Towers. I accept the applicant's submission that there must have been a purpose in the drafter of the clause removing the words "had been exhibited" from the final Plan as made. If I accept the Council's interpretation of the clause then it is irrelevant that the words "had been exhibited" were removed from the final version of cl1.8A.

1. The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.

1. If I am wrong in my interpretation of cl1.8A I have also considered the matter based on the Council's interpretation of the cl1.8A and dealt with LEP2021 as a proposed instrument under s79C (1)(a)(ii) and (e) of the Act. However, my decision to approve the application is affirmed on both interpretations; albeit for different reasons. I set out below my judgment on both basis and start with a description of the proposal and the evidence.

Background

1. This case is about a change of use. The applicant, Alamdo Holdings Pty Limited, wants to use part of an existing building in a light industrial complex known as Lot 10 in DP 105117, at 6 - 8 Hudson Avenue, Castle Hill, as bulky goods premises.

1. The proposal involves the construction of dividing walls within existing buildings to create separate tenancies. An area of 6,335 m2 is intended to accommodate bulky goods floor space leaving 1,900 m2 for warehousing floor space and 1,187 m2 for office floor space. Each tenant will need to lodge a separate development application for occupation of the approved premises. The site will provide 202 off street parking spaces and vehicular access is to remain from Hudson Avenue.

1. The amended application specifies the bulky goods to be sold. They will be in the nature of furniture, white goods, electrical equipment, bedding and manchester, lighting, automotive parts, camping and outdoor equipment, tools, building materials, DIY, homemaker products, bulky sporting goods, office equipment (bulky goods uses as defined under the Baulkham Hills Local Environmental Plan 2005).

1. The site is within the Castle Hill Trading Zone, between the Norwest Business Park and Castle Hill Town Centre. The area is known as the Castle Hill Light Industrial Area. According to the evidence the area is well connected to the regional road network and to strategic bus corridors.

1. It is located on the western side of Hudson Avenue and extends through to Windsor Road. The land has an area of 1,983 ha and contains two separate industrial buildings, which are approved for use as a warehouse with ancillary office space. Within the immediate area of Hudson Ave, there are a number of nonindustrial uses including leisure and recreational uses, approved bulky goods developments (at no 4 and no 11 Hudson Ave) and a Hotel (the Hills Lodge). It is fair to say that the locality consists of a mix of light industrial buildings, motels, pubs and some bulky goods uses. It is outside the B5 Business Development zone and within industrial zoned land. It has no direct relationship with the B5 Business zone along the spine of Victoria Avenue.

1. The land is within the Light Industrial 4(b) zone under LEP 2005. Bulky goods premises are a permissible development within that zone.

1. The site is also subject to the controls in the Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River and the Baulkham Hills Development Control Plan - Part C s 9 - Light Industry, D s 1 - parking and Part D s 3 - landscaping.

1. The site is zoned Light Industrial (IN2) under the LEP 2012. Bulky goods are categorized as "commercial premises" and are prohibited in the IN2 zone. However, this application was lodged on 15 September 2011 and accordingly benefits from the savings provision in cl1.8A of the LEP 2012, which was gazetted on 5 October 2012.

1. For the reasons stated cl1.8A saves this application and requires me to determine this application as if the Plan (LEP2012) had not commenced.

Evidence

1. The appeal commenced with a view of the site and surrounding area and resumed in Court. Mr Harding gave town-planning evidence for the Council. Mr Blythe gave town-planning evidence for the applicant. Their joint report is exhibit 4 and their statements of evidence are exhibit 3 and B respectively. The applicant also relied on strategic town planning evidence from Mr Leyshon. His statement of evidence is exhibit C.

1. I have relied on the facts as outlined in the Council's amended statement of facts and contentions dated 17 February 2012 and the applicant's statement in reply dated 14 March 2012. I have also had the benefit of reading the transcript of these proceedings, which was available to me in July and September 2012 and considered the evidence and submissions received on 18 October 2012.

LEP 2005

1. The Baulkham Hills Local Environmental Plan2005 (as amended) is the prevailing planning instrument for this application by dint of the savings provision in cl1.8A of LEP2012. Clause 13(2) of the LEP 2005 provides:

13 Zone objectives and zoning controls

(1) The objectives of a zone are set out in the Table to this clause under the heading

"Objectives of zone" appearing in the matter relating to the zone.

(2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the proposed development:

(a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and

(b) is not contrary to achieving the objectives of the zone within which it will be carried out.

Note.

The aims and the objectives for development of this plan are set out in clause2. The objectives of zones are set out in the Table to this clause.

1. Clause 2(1) of the LEP 2005 sets out the aims of the plan and objectives for development. It states:

(1) The aims of this plan are:

(a) with respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills for present and future generations, and

(b) with respect to the community of that area, to encourage a strong sense of community identity and economic well being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and

(c) with respect to use of resources within that area, to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity, and

(d) with respect to flexibility, to create a broad framework of controls and allow the opportunity for more detailed provisions relating to matters of local significance to be contained in development control plans.

(2) The objectives for development of this plan are:

(a) with respect to the natural and built environment of the Baulkham Hills

local government area, that development should:

(i) recognise and implement the principles of ecologically sustainable development, and

(ii) protect and enhance the area's biodiversity, and

(iii) ensure that environmentally sensitive areas are suitably protected, and

(iv) address all natural hazard concerns, including flooding, landslip, subsidence, salinity, tidal inundation, land contamination and acid sulfate soils, and

(v) respect, improve and integrate with the local character of the locality in which it is carried out, and

(vi) rehabilitate the natural environment where damaged by previous activities, and

(vii) have regard to the land uses that form the rural and urban

environment of the Shire, and

(viii) minimise the use of non-renewable resources and maximise the use of renewable resources, and

(ix) incorporate energy saving mechanisms and water saving

mechanisms, and

(x) minimise waste and pollution, and

(xi) promote buildings designed for adaptive re-use, and

(xii) conserve the heritage significance of existing significant fabric,

relics, settings and views associated with the heritage significance of heritage items and heritage conservation areas, and

(xiii) conserve and enhance the natural, cultural and environmental

heritage of the area, and

(xiv) positively contribute to the retention and maintenance of items of indigenous and non-indigenous heritage, and

(b) with respect to the community of that area, that development should:

(i) integrate land use and improve access to open space, employment

opportunities, public transport, community facilities and commercial

services, and

(ii) reinforce the retail and commercial centres hierarchy within the

area, and

(iii) provide opportunities for tourism and recreational development in appropriate locations, and

(iv) provide for home-based activities that are compatible with the

character and amenity of the neighbourhood or place in which they

are to be located, and

(v) maximise positive social impacts and minimise potentially

detrimental social impacts, and

(vi) provide informal surveillance of public spaces, and

(vii) optimise the shared use of streets and parking facilities, while

improving or creating an efficient pedestrian environment, and

(c) with respect to use of resources within that area, development should:

(i) protect localities from inappropriate development and ensure that local amenity is maintained and enhanced, and

(ii) provide choice in housing for residents, and

(iii) ensure that urban housing type varies and is designed and

constructed in a manner that can accommodate (or be adapted to the needs of) a variety of household types, and

(iv) contribute to the synergy between land use activities. (emphasis added)

1. The aims and objectives highlighted in bold are considered to be relevant to this application.

1. The 4(b) zone objectives are as follows:

Zone 4 (b) (Light Industry 4 (b) Zone)

1 Objectives of zone

The objectives are:

(a) to allow a wide range of industrial, warehousing and manufacturing activities,

that will contribute to economic and employment growth in the local government area, requiring a range of floor areas, together with ancillary uses, the opportunity to locate within that area, and

(b) to provide for associated uses to service the convenience needs of the local workforce, and

(c) to encourage a high standard of industrial development that is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development, and

(d) to protect the viability of commercial centres by enabling development for the purpose of commercial offices only where it is associated with and ancillary to industrial, manufacturing, warehousing or like land uses on the same land, and

(e) to permit generally large-scale retail and display activities that require extensive site areas, and that generate a low return per unit of floor area or that require a relatively free-standing location to facilitate the loading and unloading of goods, but only if such activities cannot appropriately be located in, or do not adversely affect the viability of, services offered in Zone 3 (a), and

(f) to encourage innovative and imaginative design with particular emphasis on the integration of buildings and landscaped areas, and

(g) to support the business zones of the local government area

1. The planners agree that objective (e) and (g) are relevant to this application.

1. The term "bulky goods" is defined in the LEP 2005 as :

bulky goods premises means a building or place used primarily for the sale by

retail, wholesale or auction of (or for the hire or display of) goods that are of such

size or weight as to require:

(a) a large area for handling, display or storage, or

(b) direct vehicular access to the site of the building or place by members of the

public for the purpose of loading or unloading such goods into or from

their vehicles after purchase or hire, but does not include a building or place

used for the sale of foodstuffs

The Council's planning evidence

1. The Council's amended statement of facts and contentions dated 17 February 2012 raises one contention; "...The proposed use is for a purpose that is a prohibited use under the Draft LEP 2010". However, during the hearing two further issues emerged from the evidence.

1. The first being that the proposed use is out of character with the area. This contention is based on the fact that the site is located on the eastern side of Hudson Avenue and does not have a direct relationship with the B5 Business Development Zone, which permits bulky goods premises.

1. In addressing this issue Mr Harding's gave evidence that the area has a particular character of industrial park appearance. In his assessment the area and the visual catchment around the site, has a distinctly different "industrial park" character to that in the development around the Victoria Avenue precinct. He believed the application would encourage intrusive signs, which in turn would be out of character with the area. However, in expressing this view he conceded that the change of use would utilize the existing build structures that they were readily adaptable for bulky goods retail. He also agreed that an approval of the proposed use would require no change to the built form or any major change to the general building appearance from Hudson Avenue.

1. The other issue raised by the evidence concerned the nature of the bulky goods use. Mr Harding was of the opinion that without precise detail about the end users the Court could not assess whether the proposal was contrary to achieving the objectives of the zone as required by cl13 (2)(b) of the LEP 2005. He agreed however, that if the applicant accepted the imposition of draft condition 13 B on the consent that the assessment required under cl13 (2)(b) could be undertaken.

1. The balance of the Council's evidence addressed the proposed LEP 2012, which I have decided, is not relevant in this appeal apart from being a consideration under the public interest which I will deal with in due course.

The Applicant's planning evidence

1. Mr Blythe evidence is that the conversion from part industrial and commercial use to bulky goods use will not affect the established character and land use of the precinct. The larger more well known bulky goods retailers (generally accommodated in Victoria Street in newly constructed developments) will not be impacted upon by the use of this smaller scale development by smaller bulky goods operators. In his assessment the site promotes economic opportunities for smaller scale operators to be established within recognized clusters of bulky goods premises consistent with the aim in cl2 (1)(b) of the LEP 2005 to encourage local businesses to be established in the Shire.

1. In his opinion the Castle Hill Trading Zone comprises a diverse mix of land uses and urban support services and is not homogenously industrial in nature.

1. Mr Blythe discusses the objectives to the Light Industry 4(b) zone in paragraph 38 of the joint report (exhibit B). Mr Blythe considers zone objectives (e) and (a) to be relevant. In his assessment the premises will involve the retail and display of large-scale items within a freestanding location and provide efficient and direct on site loading/unloading facilities for customers. The use on this site provides an opportunity for smaller bulky goods operators to establish within an existing activity cluster of bulky goods premises. Based on the economic assessment by URBIS submitted with the application, the use will not adversely affect the viability of the nearest 3(a) zone land being the Castle Hill Town Centre he also relies on Leyshon's evidence about this issue and agrees that this bulky goods use will not be competitive with the Castle Hills Centre.

1. In relation to the remaining zone objectives Mr Blythe states that the proposed development will not be contrary to those zone objectives for the reasons articulated in paragraphs 40 and 41 of the exhibit B.

1. The applicant submits that the development application is permissible under LEP 2005 and not contrary to achieving the relevant zone objectives. The applicant contends the area around the site is already proliferated with non-industrial uses. It relies on the Court's view of the immediate area to support its submission that there are a number of non-industrial uses in the area of the site including recently approved bulky goods developments. These recent approvals it submits are evidence of the compatibility of the proposed use with the existing character. The approved bulky good premises include:

(a)   The adjoining property at 4 Hudson Avenue, which was approved for bulky goods use on 3 May 2011.

(b)   2/10 Salisbury Road was approved for bulky goods use on 21st of April 2011.

(c)   11 Hudson Avenue, which was approved for bulky goods use on 7 February 2012.

1. Mr Blythe's evidence is that the number of relatively large scale development approvals for bulky goods granted by the Council in the 4(b) zone indicates that a bulky goods use on this site is not a completive threat to the viability of services in the zone 3(a).

Consideration

1. This case is different to others because there are really no merit arguments against the development, but for the rezoning under proposed LEP 2012.

1. As discussed at the outset this development application benefits from the savings provision in cl1.8 A of the LEP 2012. My primary position is that the LEP 2012 is not a relevant consideration under s 79C (1)(a)(ii).

1. After consideration of LEP 2012 as a circumstance under s 79C (1) (e) its provisions do not justify a refusal of this application because I must have regard to the terms of cl1.8A.

1. LEP 2005 is the prevailing planning instrument for this application. Under that instrument the site is zoned 4(b) Light industrial and bulky goods premises are a permissible use with development consent.

1. Development consent cannot be granted for this proposal unless I am satisfied under cl13 (2) that the proposed development is consistent with one or more of the aims of LEP 2005 and any relevant objectives for development; and, is not contrary to achieving the objectives of the 4 (b) zone.

1. The planners agree in exhibit 4 that the development satisfies Cl13 (2)(a) and I accept their evidence. In respect of the relevant zone objectives they agree that there are a range of objectives under the 4(b) zone. Their evidence is that objective (a) seeks to allow for a wide range of industrial activities, while objective (e) seeks to accommodate bulky goods premises. The experts initially had different opinions as to whether the application lodged with the Court was capable of allowing the assessment required by zone objective (e). Mr Harding was of the opinion that the assessment required identification of the end users. To address his concern the applicant accepted condition13B of the proposed conditions.

1. I agree with Mr Harding that the identification of the types of bulky good uses in condition 13B allows me to make the assessment required by clause 13(2) (b) of the LEP in regard to zone objective (e). In respect of that matter I accept Mr. Blythe's evidence at paragraph [46] above. I am also of the opinion that the imposition of condition 13A, which requires a separate development application for each tenancy, is appropriate in this case. It will provide the Council with a further opportunity to approve tenancies, which do not adversely affect the viability of the services offered in the 3(a) retail zone. For those reasons I accept the conditions proposed by the Council subject to the inclusion of the applicant's version of conditions 13A and 13B in the document entitled Applicant's Revised Response To Council's Without Prejudice Draft Conditions of Consent.

1. This application is for a change of use. There is no physical development other than partitioning and small amounts of cut and fill for the purpose of making additional car spaces. Based on the evidence before me there is no adverse environmental impact by the carrying out of this development - the physical development or its operation. There may be possible impacts once tenants are found and applications are made for particular kinds of bulky goods uses, but those kinds of impacts can be dealt with at the time and the consent regime presumed by the draft conditions, which the applicant accepts.

1. The view confirmed Mr Harding's evidence that advertising signs can be intrusive, as they are in Victoria Road. In this case the proposed conditions require any advertising sign to have independent development consent. In my assessment this concern about visual impact is satisfactorily addressed by the conditions of consent.

1. Accordingly, I accept Mr Blythe's assessment that there is nothing in LEP 2005- which applies - that this application subject to the conditions does not comply with.

1. While the site is removed from the main axis of the bulky good cluster in Victoria Street under the 4(b) zone the use is permissible. The fact that the Council has assessed and approved other bulky goods uses on land adjoining the site and within the immediate area about the time of lodgement of this application is a factor, which supports an approval of this application. In assessing those other applications the Council did not conclude that approval of bulky goods uses on those sites in the 4(b) zone would alter the character of this part of Hudson Road or be contrary to achieving the objectives of the zone, including objective (e).

1. I am also satisfied that an approval of this application will not alter the character of this part of Hudson Road or be contrary to achieving the zone objectives. This is because the site is set back from the road and the application does not change the footprint of the buildings. The existing buildings are relatively low scale development and landscaped and under the conditions of consent any additional signage can be conditioned to be discrete. The view taken by the Court confirmed the evidence that the character of Hudson Road is altered already by the introduction of a bowling alley and motel further up the road and other bulky goods uses. After an assessment of the relevant matters in s 79C (1) including the "... likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality and; ... the suitability of the site for the development" and the DCP provisions I propose to approve this application.

1. However, as I indicated in the event that I am wrong in my interpretation of the savings provision in cl1.8A I have also considered the application on the basis that the proposed LEP 2012 is relevant under s 79C (1)(a)(ii) and (e). Having undertaken that assessment I also conclude the application is acceptable for the following additional reasons.

1. The Council has relied heavily on strategy papers in Volume 2 of the Council's bundle to submit that the proposed LEP attempts to reinforce the importance of bulky goods retailing occurring in a business zone not an industrial zone, so that industrial land is supported and protected for industrial uses. While the background strategies of the proposed LEP are relevant under s 79C(1)(e) - public interest: Terrace Towers it cannot be ignored that they were in existence when the Council approved the five other development applications for bulky goods outside of Victoria Road spine in the proposed IN2 zone. Each of these decisions was made after the policies were adopted.

1. To the extent that these policies have been translated into the proposed LEP I accept they are relevant - but the focus must be on the actual words of the proposed LEP. After a consideration of the terms of the proposed planning instrument, and having had regard to the relevant zone objectives I am satisfied that this application should be approved after an assessment under s 79C.

1. I accept the applicant's submission based on the evidence of Mr Leyshon and Mr Blythe that an approval of this use on this site will not undermine the objective to support and protect industrial land for industrial uses. It will remove a relatively small area (some 6000 m2) available for a warehouse use to allow bulky goods premises that is permissible because of the savings provision in cl1.8A. An approval of this application does not stop the site being used for an industrial use in the future because the use can change back. Consent to this application does not authorize any change to the existing built form apart from some internal partitioning. I agree with the applicant that the market will dictate the ultimate use of this site even if this application for bulky goods is approved. This site is adaptable for either industrial or bulky goods and therefore an approval of this application does not undermine the objectives.

1. I accept Mr Blythe's assessment that an approval of this application achieves the zone objective "to provide a wide range of not just light industrial, but warehouse and related land uses". The site has a warehouse use - which encourages employment opportunities as much as anything else. I also accept Mr Leyshon's evidence that the approval of the application for a bulky goods use will not undermine the objective or the viability of the Centre hierarchy - the closest being the Castle Hill Shopping Centre.

1. The applicant submits that my approval of this area for bulky goods use would not have a significant effect on the strategic direction of the proposed IN2 zone to retain light industrial land for industrial uses. It asks the Court to accept Mr Leyshon's evidence that there is vacant space currently in the Castle Hill industrial area, and, given the "sheer size of the IN2 zone" an approval of this small area for bulky goods premises is insignificant. He states:

...broader industry trends which are referred to in the employment lands direction paper note that there has been for some time a transition of land use occurring in Castle Hill and that is characterised by increasing bulky goods but there are also a range of leisure and recreation type uses which are in this zone but more importantly I think competition from other industrial zones which are cheaper in broad terms especially in land value located to the west and southwest of this site makes it less competitive over time as a traditional industrial location and I know that the policy is the policy but I'm not sure in a number of cases that I've looked at in Sydney that the policy is always reflective of what is actually happening on the ground " (transcript dated 12 April 2012 p28 lines 26- 45).

1. While I understand the Council's policy position I accept Mr Leyson's evidence that the approval of this small area of bulky goods space on this site will not undermine that policy. While the bulky goods use on this site might attract some people outside the local government area I accept Mr Leyshon's and Mr Blythe's evidence that the main users will be the people identified in the URBIS trade centre or the people within the boundaries of the Baulkhan Hills local government area (transcript 12 April 2012 p30 Ll 25 -50). Therefore, it would service, consistent with the IN2 zone objective some "day to day needs of workers in the area". Not unlike the bulky goods use on the premises next door being the bathroom supply and furniture businesses. As Mr Harding concedes the IN2 zone seeks to achieve a number of outcomes. Light industrial is balanced in there with some other ancillary uses. The Castle Hill Trading Centre is currently diverse and (despite the distinction the Council is now trying to make with the B5 and IN2 zones) the range of possible uses in the IN2 zone is diverse too (although it excludes bulky goods uses).

1. This application is saved by cl1.8A and its approval cannot set a precedent for future applications because the use is prohibited in the IN2 zone. Based on the evidence before me an approval of this application does not jeopardise the strategic intent of the proposed LEP 2012. I do not accept after an assessment of the evidence that an approval of this relatively small area for bulky goods premises is antipathetic to the IN2 zone objectives.

1. Accepting the reasoning of the Court of Appeal in Terrace Towers that the proposed LEP should be given significant weight in my assessment under s 79C of the Act; and, after a consideration of the evidence and the parties submissions I have decided to approve this application. I make the following orders:

1.The appeal is upheld.

2. Development consent is granted for a change of use of an existing light industrial building to bulky goods premises and internal partitioning works in accordance with DA No 309/2012/HB subject to the conditions in 5 as amended by this judgment.

3. The exhibits are returned except exhibit A, D, F and 5.

Susan Dixon

Commissioner of the Court

Amendments

01 November 2012 - Typographical Errors amended.

Amended paragraphs: Various

Decision last updated: 01 November 2012