Formal Wear Rentals Pty Ltd Trading as Signature Brothers v Fairfield City Council
[2009] NSWLEC 1184
•2 June 2009
Land and Environment Court
of New South Wales
CITATION: Formal Wear Rentals Pty Ltd Trading as Signature Brothers v Fairfield City Council [2009] NSWLEC 1184 PARTIES: APPLICANT
RESPONDENT
Formal Wear Rentals Pty Ltd
Trading as Signature Brothers
Fairfield City CouncilFILE NUMBER(S): 11178 of 2008 and 11179 of 2008 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Issue of Building Certificate, Structural adequacy and BCA fire safety; s96 modification to Use LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Fairfield Local Environmental Plan 1994
Building Code of AustraliaDATES OF HEARING: 29 April 2009, 2 June 2009 EX TEMPORE JUDGMENT DATE: 2 June 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso (SC)
SOLICITOR
Ritchie and CastellaRESPONDENT
Mr C Gough (Solicitor)
SOLICITOR
Storey and Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
11178of 20082June 2009
11179 of 2008 Formal Wear Rentals Pty Ltd T/A Signature Brothers v Fairfield City Council
This decision was given extemporaneously.
It has been revised and edited prior to publication.
JUDGMENT
1 These proceedings comprise the following 2 appeals concerning a formal wear showroom at No 36 Toohey Road, Wetherill Park, which the parties agreed be heard concurrently
- Appeal No 11178/08; an appeal against the refusal to issue a Building Certificate (B/C), in respect of an existing mezzanine floor within the existing factory unit.
- Appeal No 11179/08; an appeal against council’s refusal to allow a s96 application to modify the consent in respect the inclusion of the mezzanine floor and hours of operation.
2 The mezzanine floor has been constructed and the main issue with the B/C appeal concerns compliance with the BCA provisions, in terms of safe exits, various detailing and structural adequacy of the works.
3 Following conferencing between the parties and production of further details the parties agreed to consent orders in the B/C appeal.
4 For the s96 appeal, discussions between the parties resulted in the formulation of questions of law, which they agreed should be determined prior to the determination of the associated merit issue of car parking.
The site
5 This site is described as Cnr Lot 114 DP 747135 and is located on the north-east corner of Toohey Road and Bond Crescent. It is rectangular with a total area of 1260sq m. There is a single storey industrial building erected on the site, together with associate at-grade car parking.
6 The surrounding development to the north, east and west comprises single and 2-storey industrial buildings.
7 The relevant planning control is the Fairfield Local Environmental Plan1994. The subject property is zoned 4(c) Special Industrial Clause and cl 8 outlines the permissible development and objectives of the zone as follows:
- Zone 4 (c) Special Industrial
1 What are the objectives of the zone?
- The objectives of the zone are:
(a) to encourage the establishment of a broad range of light industrial and warehouse activities and a limited range of business and retail activities compatible with nearby residential areas to generate employment and contribute to the economic development of the City of Fairfield,
(b) to allow community uses to serve the needs of the nearby industrial work force, and
(c) to allow retail development only:
- (i) where associated with, and ancillary to, light industrial purposes on the same land,
(ii) for the display and sale of bulky goods,
(iii) where it primarily serves the daily convenience needs of the local industrial work force, or
(iv) for motor orientated activities (that is, the use of a building or place associated with the sale by retail of motor vehicle components or goods, where that building or place has a work bay or area for the fitting of motor vehicle components or goods or a large area for the handling, storage or display of motor vehicle components or goods but not the use of a building or place elsewhere defined in this plan), and only if the proposed development will not detrimentally affect the viability of any nearby business centre.
3 What is permitted only with development consent?
- Any purpose other than a purpose included in item 4.
- Abattoirs, aged and disabled persons' housing, amusement parks, animal establishments, brothels, business premises, camping grounds and caravan parks, dwelling houses (except caretakers' dwelling houses), entertainment facilities, extractive industry, forestry, gaming taverns, generating works, group homes, hazardous industry, hazardous storage establishments, health consulting rooms, helicopter landing sites, heliports, home businesses, hospitals, hostels, hotels, industry, institutions, intensive agriculture, junkyards, medical centres, mines, multi-unit housing, offensive industry, offensive storage establishments, residential flat buildings, roadside stalls, sawmills, serviced apartments, shops (except take-away food shops), stock and sales yards, transport depots
8 The relevant development controls are contained in the Fairfield City-Wide DCP 2006. Chapter 9 contains the controls for industrial development and chapter 12 the controls for car parking, vehicle and access management.
9 The EPA & Act Regulations 2000.
10 The Building Code of Australia (BCA).
The evidence
11 Detailed evidence was presented by:
- Mr M Stephenson; Council planner.
- Mr P Green; Council’s fire safety/BCA officer.
- Mr G Turrisi; Consulting planner for the applicant.
- Mr P Rossello; BCA consultant for the applicant.
- Mr V Rouhliadeff; Structural engineer for the applicant.
Appeal No 11178 of 2008
12 The main issues in this appeal concerned the structural adequacy of the constructed mezzanine floor and the BCA fire compliance. Mr Rouhliadeff assessed the first matter. He undertook a site inspection to determine the type and structural capacity of the existing building. From this he concluded that:
- a) The structure is in a satisfactory condition.
b) In the event of fire the mezzanine structure will not cause outward collapse of walls.
`c) The structure has been in place for over 12 years. Load applied to it during that period did not cause damage to date.
d) In accordance the As/NZ 1170.1 imposed floor action of 2kPa falls into A2 type activity with specific use – general areas.
e) The existing mezzanine floor is in a satisfactory condition and is capable of supporting design load as specified.
13 In the absence of any challenge to this conclusion, I accept the existing floor meets acceptable structural requirements.
14 The other issue concerned the compliance with the BCA requirements. After ascertaining the location of the water hydrants, the main concern was the exit arrangements in a fire emergency. Insofar as a number of options were discussed, the applicant agreed to the construction of a new set of fire stairs from the upper level. The experts agreed that this satisfied the BCA requirements.
15 I rely on this agreement by the experts that the parties have now resolved the issues raised in respect of the B/C. On this basis, I am satisfied that the Building Certificate should be issued on the conditional basis agreed by the parties.
Appeal No 11179 of 2008
16 This appeal concerns the s 96 application. Based on the submissions in the attached joint précis on reference of question of law (Attachment C), I accept that it is desirable to determine the following questions of law prior to the determination of the merit issue concerning car parking. Although, further case management was undertaken, indicating that further information is required concerning other similar types of development nearby and the associated car parking condition and arrangements.
17 The applicants questions of law are:
- (a) Whether under IDO10 a Shop included a Showroom or is a Showroom an independent use?
(b) Whether the development consent granted by the Council on 6 April 1990 authorised the use of the subject premises for showroom independently of the wholesale of formal wear?
(c) Whether the development consent granted by the Council on 6 April 1990 authorised the use of the premises for showroom only as ancillary to the warehouse and wholesale of formal wear?
(d) Whether pursuant to Fairfield LEP 1994 the use of the subject land for the purpose of a showroom is a permissible use?
(e) Whether pursuant to Fairfield LEP 1994 the use of the subject land for the purpose of display of goods to customers of retail outlets where the sale takes place at the retail outlet and not on the subject premises is a prohibited use?
18 The council’s question of law are:
- (a) Whether IDO10 permitted in the 4(b) zone the exposing or offering for sale by retail of goods irrespective of whether the retail sale occurred on the subject land?
(b) Whether the development consent granted by the Council on 6 April 1990 authorised the use of the subject premises for showroom independently of the wholesale of formal wear?
(c) Whether the development consent granted by the Council on 6 April 1990 authorised the use of the premises for showroom only as ancillary to the warehouse and wholesale of formal wear?
(d) Whether pursuant to Fairfield LEP 1994 the use of the subject land for the purpose of display of goods for the purpose of retail sale in the absence of the completion of that sale on the subject premises is a prohibited use?
19 On the basis of the agreement of the parties, I refer these questions of law for determination.
Court orders
20 With regard to Appeal No 11178 of 2008 the Court orders by consent:
- 1 Appeal No 11179/08 is upheld.
2 Respondent is ordered to issue a Building Certificate in terms of Attachment A for that part of the first floor identified by cross-hatching in Attachment B at Lot 114 Dp 747135 being 36 Toohey Road, Wetherill Park.
3 The exhibits may be returned except 2, A, D and E.
R Hussey
Commissioner of the Court
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