CJL Nominess Pty Ltd v Woollahra Municipal Council

[2008] NSWLEC 1480

Land and Environment Court

of New South Wales

CITATION:

CJL Nominess Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1480

PARTIES:

APPLICANT
CJL Nominees Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10817 of 2008

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Change of use, s94 car parking contributions, unresolved condition requiring paint removal.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan

DATES OF HEARING:

26/11/2008

 
DATE OF JUDGMENT: 

3 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Sahade, Barrister

RESPONDENT
Mr P Rigg, Solicitor of Deacons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

3 December 2008

10817 of 2008 CJL Nominees Pty Ltd v Woolahra Municipal Council

JUDGMENT

Background

1 This appeal was lodged against two conditions of consent imposed on a development for the change of use of existing premises located at 779 New South Head Road Rose Bay. The change in use is from a bank to a pharmacy.

2 The two appealed conditions are No 4, regarding the amount of the s94 contribution to parking and condition 27 regarding the removal of paintwork from the exterior of the building.

3 The relevant planning controls identified are:

• Woollahra Municipal Council Section 94 Contributions Plan 2002.
• Development Control Plan for Off-Street Parking Provision and Servicing Facilities.
• Woollahra Municipal Council Development Control Plan Exempt and Complying Development.

The evidence

4 Detailed evidence was presented by A Rowan, council’s consulting planner and Mr M George, the applicant’ planner. Following conferencing by these experts, agreement was reached by the parties that the parking contribution should be reduced from $85,358 + Index to $69,168.12, based on the incremental demand for parking spaces arising from the proposed development

5 I accept this approach to limit the amount of s94 contribution to the increased demand generated by the change of use is appropriate. Furthermore, it is reasonable then to apply this increased demand to the S94 car parking rates, resulting in the reduced contribution.

6 The more contentious issue concerns condition 27. This condition requires the removal of the painted blue, white and black banding on the building parapet and also similar colours on the side wall of the building adjacent to a Shell service station and ‘Crystal Car Wash’

7 The submissions for the council are that the existing painted areas are in colour that represents advertising associated with the neighbouring car wash business ‘Crystal Car Wash’. However there is no specific signage connected to this coloured banding.

8 Notwithstanding this, Mr Rowan refers to the DCP, which defines advertisement as:

‘display by the use of colour, pattern, symbols, messages or other devices for promotional purposes or for conveying information, instruction, directions or the like, whether or not the display includes the erection of a structure or the carrying out of a work.

9 Whilst he acknowledges that the painting of a building appears to be exempt development in non-heritage areas, nevertheless he considers the paintwork on the building comprises the use of colour and pattern that establishes a strong and clear association with the adjacent car wash. Consequently he considers it reasonable to require its removal due to the advertising and its unsatisfactory streetscape impact.

10 Against this, Mr George says the subject painting was not part of the application and has nothing to do with it and is therefore manifestly unreasonable on the following basis:

• Painting the wall is exempt development. Even if the condition was satisfied the Council would be powerless to prevent the repainting of the wall under its exempt development rules.
• The paintwork cannot be properly categorised as an advertisement, as asserted.
• It is not practical to remove the paintwork to present a uniform condition to the streetscape in any event. The potential consequences of the condition are likely to be a section of wall discoloured by paint that has impregnated the bricks and discoloured by removal agents and this is likely to be unattractive.
• In the context of the Rose Bay Centre as a whole and the surrounding land uses, the section of painted wall has no material streetscape or other implications. It presents to a limited field of vision, and in itself does nothing offensive.
Conclusions

11 The applicant’s submissions are that condition 27 is unreasonable in the circumstances of the change of use application and as it does not form part of the application, it should be deleted

12 Mr Rigg’s submission for the council is that imposition of this condition is reasonable based on the Newbury tests because it is for a planning purpose, it fairly and reasonably relates to the development and it is not so unreasonable for the council to impose it.

13 My assessment of this competing evidence and submissions is that the disputed painting on the parapet and sidewall was apparently in existence prior to this change of use application and during the previous occupancy of the bank. Whilst the pharmacy now proposes to use this area, it does not propose any change to the painting, which is not associated with its use.

14 Instead the pharmacy proposes other identification signage, which has been assessed and restrictive conditions imposed. Under these circumstances, I give heightened weight to the control provisions that the painting of a building is exempt development. It seems to me that if the subject painting was to be removed, then replacement painting of unspecified colours could be undertaken.

15 Whilst there may be some association of the colours with the carwash for some people, I am satisfied that this painting does not have any nexus to the proposed pharmacy use and therefore it does not fairly and reasonably relate to the development and it is an unreasonable imposition.

16 Notwithstanding this, I have had regard to the submissions that alternate action has been initiated to serve a Section 121B Order for the paint removal. As the building accommodates several tenants apart from the pharmacy, I am satisfied that approach is more appropriate than maintaining the burden of condition 27 on the subject development.

Court orders

17 The Court orders that:

1 The appeal is upheld.

2 Condition 4 of the Development Consent No 111/2008/1 is amended to require a car parking contribution of $69,168.12. Condition 27 is deleted.

3 The exhibits may be returned.

___________________

R Hussey
Commissioner of the Court