Brecon Builders Pty Limited v Campbelltown City Council
[2005] NSWLEC 385
•07/14/2005
Land and Environment Court
of New South Wales
CITATION: Brecon Builders Pty Limited v Campbelltown City Council [2005] NSWLEC 385
PARTIES: APPLICANT:
Brecon Builders Pty Limited
RESPONDENT:
Campbelltown City CouncilFILE NUMBER(S): 10318 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Industrial development
The suitability of landscaping and the western setbacks
The extent of cut and fill
The relationship of the proposal to Lot 1012 to the east particularly in respect of the proposed access ramp
The provision of car parkingLEGISLATION CITED: State Environmental Planning Policy No 11 - Traffic Generating Developments, (SEPP11)
Campbelltown (Urban Area) Local Environmental Plan 2002, (UALEP)
Development Control Plan No 52 - Off Street Car Parking Policy, (DCP52)
Council Industrial Development Policy No 5.2.13, (Industrial Policy)
Environmental Planning and Assessment Act 1979 ss 79C and 97DATES OF HEARING: 12/07/2005, 14/07/2005 EX TEMPORE JUDGMENT DATE: 07/14/2005
LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr P C Tomasetti, barrister instructed by
Mr B Phillips, solicitor
SOLICITORS:
Macedone Christie Willis
Mr A J Seton, solicitor
SOLICITORS:
Marsdens
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
14 July 2005
10318 of 2005 - Brecon Builders Pty Limited v Campbelltown City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Campbelltown City Council (the council) of a development application to erect fifty-nine (59) industrial factory units at Lot 1011, DP 1064899, being No 7 Hepher Road, Campbelltown.
2 I visited the land in company with the parties on the morning of the hearing.
3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979, having regard for the evidence of the Court-appointed experts and certain amendments made to the application in fulfilment of the outstanding issues.
The land
4 The land is situated on the northern side of Hepher Road, about 100m west of Johnson Road.
5 The land is irregular in shape, has a 36.465m frontage to Hepher Road and an 80.11m rear boundary to the F5 Motorway (Hume Highway) and an area of some 1.8 hectares.
6 The land abuts the elevated Hume Highway at the rear. The rear boundary is about 20m above the front street level. There is an existing building platform constructed on the land, with battering down towards the street front. The land is predominantly grassed.
7 A concrete crossing gives vehicular egress and access to Hepher Road.
8 The land is located within an industrial subdivision between the Hume Highway to the north, Badgally Road to the east, Johnson Road to the south and a drainage reserve to the west. A recently constructed document storage warehouse (Grace) has been erected on the allotment abutting to the west. The allotment abutting to the east is currently vacant and has the benefit of a right of carriageway over the subject land from Hepher Road.
Relevant planning controls
State Environmental Planning Policy No 11 - Traffic Generating Developments, (SEPP11)
9 Under SEPP11 Schedule 2 Development - Clauses (f) and (q) are relevant.
Campbelltown (Urban Area) Local Environmental Plan 2002, (UALEP)
10 Under the provisions of the land is zoned Zone 4(a) General Industry and the proposal as ‘industry and warehouse’ is permissible with consent. Clauses 2, 12, 37 and 39 of the UALEP are relevant.
Development Control Plan No 52 - Off Street Car Parking Policy, (DCP52)
11 Under the provisions of DCP52, the objectives 1 and 2, and cll 2(i), 2(ii), 6(1), 6(3), 9, 10, 12 and Schedule 1 – ‘Industrial and warehouse buildings, bulk stores and factory units’ are relevant.
Council Industrial Development Policy No 5.2.13, (IDP)
12 Under the IDP the objectives (a), (b), (c), cll 4.1, 4.2, 5.1, 5.2, 6.2, 6.3, and 7 are relevant.
The proposal and its history
13 Development application No 5272/2004/DA-1 was lodged with the respondent council on 10 November 2004, to erect fifty-nine (59) industrial factory units, associated earthworks, car parking, driveways and landscaping at the land.
14 The proposal includes:
· Seven building blocks over 3 levels;
· 59 industrial units with separate loading docks and internal mezzanine levels;
· Unit sizes ranging from 121m2 to around 362m2;
· Total gross floor area of 10,452m2, comprising 8,477m2 of industrial floor space and 1,990m2 of mezzanine office space;
· Provision on-site of 177 car spaces;
· Ramped vehicular access from Hepher Road, continuing along the north-eastern boundary and partly within the adjoining Lot 1012 in DP 1064899; and
· Landscaping within the front and rear boundary setbacks.
The council’s decision
15 By letter dated 8 April 2005 the council advised the applicant that that application is not in a form that could be supported by Council, and the council requested additional and revised information.
16 When the appeal was filed the council had not determined the application and the applicant filed an appeal under deemed refusal provisions.
17 The development application was referred to the NSW Police Service on 18 November 2004.
18 The council has now prepared a planning report, which recommended refusal of the application, [Note: Exhibit 5]. Apparently, the main reason for so recommending was the lack of owner’s consent to construct a ramp on Lot 1012, abutting to the east. This has now been provided.
The hearing
19 The appeal was filed on 6 April 2005 prior to the council determining the application.
20 At the hearing, the Court-appointed experts, Mr S Layman, gave evidence on town planning matters and Mr C Hazell on the traffic implications of the development. On behalf of the respondent council from Mr J Burton, Senior Development Officer of Campbelltown City Council gave evidence.
21 For the applicant Mr Crane gave evidence.
22 Mr J Burton also prepared the statement of basic facts.
The issues
23 On 13 May 2005 the council filed a statement of issues.
1. The proposed development will have an unacceptable adverse impact on the amenity of the area by reason of traffic generation.
- Particulars
(a) Clause 12(1)(e) of Campbelltown (Urban Area) Local Environmental Plan 2002 ("LEP 2002"), being an objective of the Plan, seeks to ensure development will not be carried out unless the consent authority is satisfied (amongst other things) that the transportation to be involved, does not interfere unreasonably with the amenity of the area. The turning and manoeuvring areas for large rigid vehicles to access loading docks are unacceptable and conflict with off-street car parking spaces.
(b) The routes that are likely to be used by traffic generated by the development pass through nearby residential areas and will impact upon those areas in terms of noise generation and traffic congestion. The potential impacts have not been dealt with adequately in the information submitted by the Applicant.
- Particulars
i. Clause 4 of Campbelltown Industrial Development Policy No. 5.2.13 ("Campbelltown IDP") requires one (1) space per 80 sq. m. of gross floor area for factory units, with a minimum of three (3) spaces per unit.
ii. Clause 2(i) of Campbelltown Development Control Plan 52 - Off Street Car Parking Policy ("DCP 52"), being an objective of the Plan, seeks to ensure the provision of off-street car parking facilities to satisfy the parking requirements generated by a development.
iii. Schedule 1 of DCP 52 requires one (1) car parking space per 80 sq. m. of gross floor area, plus one (1) space per 35 sq. m. of office space with a minimum of three (3) spaces per industrial unit.
iv. Clause 9 of DCP 52 requires the layout of off-street parking spaces to comply with Australian Standard 2890.1 - 1993, and the diagrams and tables marked "Annexure C" to DCP 52.
v. Based upon the minimum requirements of three (3) car parking spaces per unit, the development is required to be provided with 177 car parking spaces.
vi. The Applicant has submitted plans, which indicate that 175 off-street car parking spaces will be provided.
vii. The turning and manoeuvring areas for large rigid vehicles to access loading docks are unacceptable and conflict with off-street car parking spaces.
viii. The size, number and layout of the units suggests that manufacturing and car repair activities are likely to occur, and will generate a demand for a larger number of spaces than are provided.
ix. The submitted plans that show an internal driveway, earthworks and car parking areas encroaching onto the adjoining Lot 1012.
x. The provision of parking on site is unlikely to satisfactorily accommodate likely traffic and parking demand generated by 59 separate industrial tenancies.
- Particulars
i. The proposed development does not permit for passive surveillance from the street and affords numerous concealment opportunities for persons wishing to engage in crime.
- Particulars
(d) Clause 2 of Campbelltown IDP, being an objective of the Plan, seeks to provide guidelines to encourage a high landscape quality in industrial areas.
(e) Clause 6 of Campbelltown IDP requires 15 metres of landscaping for that part of the land, which fronts the South Western Expressway, and 4.5 metres of landscaping along the property's side boundary.
(f) The proposal fails to provide landscaping along the property's side boundaries or throughout the site (see plan no. 1157LP/01).
(g) The proposal intrudes upon the 15 metre rear landscaping strip by reason of vehicle manoeuvring areas (see plan no. 1157LP/01).
- Particulars
(a) Clause 39(2)(a) of LEP 2002, requires that a consent must not be granted to the filling of land, unless the consent authority is satisfied that the landfill is required for the reasonable economic use of the land or for the provision of any utility service.
(b) The proposal involves an excessive amount of cut (approximately 6.5 metres) and filling of the site.
(c) The Applicant has failed to provide sufficient detail with respect to the volume of excavated material and the method of disposal, if not re-used as compacted fill on the subject site.
(d) The proposed earthworks are inconsistent with the prepared building platform, and encroach beyond the boundaries of the site onto the adjoining lot 1012.
- Particulars
(a) Clause 5(2) of Campbelltown IDP requires a 4.5 metre side boundary set back, where the site area exceeds 3,000 sq. m.
(b) The Applicant has submitted plans, which indicate that, Block A, B, D and F will be built with a zero setback to the western boundary of the site.
- Particulars
(a) Clause 31 of LEP 2002, being an objective of the Plan, seeks to ensure that outdoor advertising does not lead to visual clutter through the proliferation of signs.
(b) Clause 8(7) of Campbelltown IDP stipulates that no advertising structures are to be erected or advertisements displayed unless an application has been approved of and licensed by the Council.
(c) No details of signage to be erected upon the site have been provided.
- Particulars
(a) Clause 2(2)(b) and (c) of LEP 2002, being objectives of the Plan, seeks to protect areas from inappropriate development and maintain and improve the opportunities for appropriate commercial and industrial development in those parts of the urban area of the City of Campbelltown identified as suitable for those purposes.
(b) Clause 12(2)(b) of LEP 2002, being an objective of the zone, seeks to allow a range of industrial, storage and allied activities, together with ancillary uses, the opportunity to locate within the City of Campbelltown.
(c) Clause 12(2)(d) of LEP 2002, being an objective of the zone, seeks to protect the viability of the commercial centres in the City of Campbelltown by limiting commercial activities to those associated with permitted industrial, storage and allied development.
(d) The proposal provides for 59 industrial units to be constructed upon the site. The size of the factory units suggest that future occupants will seek to engage in retail activities as a substantial component of their overall business.
(e) The development allows for further subdivision of the site and fragmentation of ownership and site management.
(f) The potential for conflict between occupiers in relation to the storage of goods and equipment outside the units and interference with parking / manoeuvring areas has not been satisfactorily addressed in the application.
- Particulars
(a) Clause 12(2)(c) of LEP 2002, being an objective of the zone, seeks to encourage a high standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.
(b) Clause (a) of Campbelltown IDP, being an objective of the plan, seeks to encourage an acceptable standard of design in the layout and physical environment of the industrial areas and the buildings to be developed.
(c) The proposed development will be constructed upon multiple building platforms that result in the entire development being visible from the street and adjoining areas.
(d) The proposed development will be constructed upon the side boundary of the site. The absence of landscaping and architectural features will result in an unacceptable impact upon the surrounding area.
- Particulars
(a) There are inconsistencies in the description of affected land.
(i) The application form describes the land as Lot 1011, DP 1064899, and has only provided owner's consent for this lot.
(ii) The Statement of Environmental Effects describes the land as Lot 101, DP 1056782.
(b) Description of proposal is unclear.
(i) The application form describes the proposal as "factories".
(ii) The Statement of Environmental Effects describes the proposal as "warehouses".
(iii) The Waste Management Plan describes the proposal as "strata title factories".
(c) Site boundaries and encumbrances on land are not accurately depicted.
(i) The site plans (Ref: DA 01 - 30412 and DA 02 - 30412) show incorrect boundaries between Lot 1011, DP 1064899 and Lot 1012 DP 1064899.
(ii) The right of carriageway from Hepher Rd over Lot 1011, DP 1064899 in favour of Lot 1012 DP 1064899 is not shown.
(d) There are discrepancies between plans and statements.
(i) The internal driveway and rear carparking area intrude into Lot 1012, DP 1064899.
(ii) Plan Drawings DA101-30432 (Ground Level Plan) and DA02 - 30432 (Mid Level Plan) show additional warehouse units and development on Lot 1012 DP 1064899, not referred to elsewhere in the application.
(iii) There are discrepancies between the floor areas stated on the plans and the statement of environmental effects.
(iv) The traffic and parking impact assessment refers to 174 car spaces, whereas 175 car spaces are shown on the plans.
11. The Court has no jurisdiction to determine the development application, as the consent of the owner of Lot 1012 in DP 1064899 to the making of the application has not been provided.
24 The salient issues after the owners’ consent was given for the construction on the land to the east, were the suitability of landscaping within the western setbacks, the extent of cut and fill, relationship of the development to Lot 1012 to the east particularly in respect of the proposed access ramp and the provision of car parking.
The evidence and findings
The suitability of landscaping within the western setbacks
25 Mr Layman, the Court-appointed town-planning expert, considered that additional landscaping was required within the western setback particularly in the southern sector of the land. Prior to the hearing the applicant had increased to 4.55m, the western setback of the proposal, near Blocks A and B, which would provide a greater area for substantial planting especially near to the southern frontage of the land, near Hepher Road. Mr Layman considered this landscaping would be necessary to screen the proposal from view in the street and from distant viewpoints and to provide a landscaped buffer between the proposal and Grace the development to the west.
26 During the course of the hearing the applicant agreed to increase the area and to elevate the landscaping to better screen and buffer the proposal. Both parties agreed that these changes would be beneficial and the Court received the Revision D plans showing the ground level changes, retaining walls and landscaping on 14 July 2005. I would not refuse the application for this reason.
The extent of cut and fill
27 During the hearing, the applicant agreed to reduce the extent of cut in the southwestern sector of the land, near the boundary with the Grace development. By this means the existing built-up ground level would be maintained in the front and western side setbacks. This change to the plans also had the benefit of not requiring any change to the security fence to the Grace development abutting to the west and would be likely to improve the screening effect of the proposed landscaping in this area by elevating it. Both parties agreed to these changes, and the Court received the Revision D plans showing the ground level changes, retaining walls and landscaping on 14 July 2005. I would not refuse the application for this reason.
The relationship of the proposal to Lot 1012 to the east particularly in respect of the proposed access ramp
28 The applicant proposed to construct a new vehicular ramp within a right of carriageway that straddles the common boundary of the land and to be partly constructed on Lot 1012 to the east. Owner’s consent had been given for those works however, no development application had been lodged for that abutting land. As development consent is required for the construction of that part of the ramp within Lot 1012, the parties agreed that a development application was required for the ramp on Lot 1012 and that this should be the subject of deferred commencement consent. There was no practical difficulty in constructing such a ramp and by consent the deferred commencement condition “A” set out in para 36 below was imposed.
The provision of car parking
29 The council sought to impose Condition 12, which read in part that the 177 car parking spaces “…shall be marked out and be available at all times to all users of the development.” By this condition the respondent council had sought to place the applicant on notice, that in any strata title application for the industrial development, the council would oppose the allocation of spaces to any particular unit. The council indicated that it would prefer the car parking spaces to be under the control of the owners’ corporation and within common property and available to all who came onto the land. This matter was considered by both parties to be properly dealt with at the strata title application stage. On that basis the respondent was amenable to the above words in draft Condition 12 being deleted.
30 A further sentence in the draft Condition 12 that “Modified plans incorporating the required car parking shall be lodged for approval with the construction certificate application,” was also deleted by consent.
31 The parties agreed that the required 177 car parking spaces could be provided on site and the applicant was given leave to submit an amended car parking layout and landscaping plan that properly addressed this matter. That plan was received on 14 July 2005. No issue in this respect arises that would require me to refuse the application.
Other matters
32 At the hearing there was no dispute between the parties with respect of the size of the industrial units. I accept that a variety of industrial units would be acceptable on the land.
33 On the site inspection, I was shown traffic routes through Blair Athol and other nearby residential areas and Mr Hazell addressed the council’s alleged traffic amenity impacts. He concluded in this respect that an additional 32 and 15 vehicle trips in the morning and evening peak hours, respectively, travelling through Kraal Road is unlikely to have a detrimental effect on the current operation or level of service of intersections in that area. He also considered some consultation with residents might be necessary, later. I would not refuse the application for this reason.
34 Mr Hazell was satisfied that service vehicles would be able to manoeuvre adequately within the development. He was concerned that the car parking spaces under Block A in front of Unit 4, should maintain a clear width of 2.4m to comply with AS 2890.1 as required by the amended Condition 12.
35 For the above reasons, the appeal is upheld.
Conditions
36 The conditions are those in Exhibit 8 as amended during the hearing. In particular a deferred commencement condition was added.
Deferred commencement consent
A. The applicant must produce evidence that development consent has been granted for the construction of the ramp as shown on Drawing No DA 01, Issue D, prepared by Jack Taylor Architects Pty Limited, dated 12 July 2005, to be erected along the common boundary of Lots 1011 and 1012, DP 1064899.This development consent is not to operate until the applicant satisfies the Council of the matter in Condition A hereto:
37 The need for this condition was brought about by there being works proposed on the adjoining site for which no development application had been lodged for that land.
Orders
38 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 5272/2004/DA-1 lodged with the respondent council on 10 November 2004, to erect fifty-nine (59) industrial factory units, associated earthworks, car parking, driveways and landscaping at Lot 1011, DP 1064899, being No 7 Hepher Road, Campbelltown is approved, on a deferred commencement basis, subject to Conditions 1 to 51 in Annexure A.
3. No costs are awarded.
4. The exhibits with the exception of Exhibits A, B, C, D, E, F, 6, 7 and 8 are returned.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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