Head Academy Kung Fu Pty Limited v Leichhardt Council

[2009] NSWLEC 1211

Land and Environment Court

of New South Wales

CITATION:

Head Academy Kung Fu Pty Limited v Leichhardt Council [2009] NSWLEC 1211

PARTIES:

APPLICANT
Head Academy Kung Fu Pty Limited

RESPONDENT
Leichhardt Council

FILE NUMBER(S):

10086 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- allocation of parking for industrial complex

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

24 April 2009
6 May 2009

EX TEMPORE JUDGMENT DATE:

6 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr Staunton (barrister
AGENT
Mr J Leib
Platino Properties

RESPONDENT
Ms J Walsh (Solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

6 May 2009

10086 of 2009 Head Academy Kung Fu Pty Limited v Leichhardt Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Leichhardt Council’s refusal of an application for a change of use for unit No. 6, level 1, 63-75 Lords Road, Leichhardt.

2 By way of background the Court by way of consent, granted approval to a subdivision and stratum of the subject property such that there is a Torrens Title Lot 1 and a Strata Lot 2. The subject premises had alterations and additions proposed in the previous consent however, this is not the subject of these proceedings. In granting consent the Court referred to schedules of plans which included the subdivision plan (A) and subdivision plan (B) and this provides for a parking allocation to the various lots and units contained within the building. It is noted that the subject building is an existing large warehouse on the subject site. As I said, some alterations and additions were previously approved.

3 The Court, in these proceedings, is assessing the changed use of one unit only. That is Unit No. 6 has a car spacing allocation in terms of the previous consent. The applicant is seeking a change of use, that is for the use of this one unit within the complex to be used for Kung Fu classes.

4 On behalf of the applicant, for the traffic engineering car parking Mr Varga provided and Mr Logan provided a statement on behalf of the council aspect of the proposal now before the Court. They also provided joint conferencing and concurrent evidence to assist the Court. During the concurrent evidence Mr Logan was also asked the question about the efficient use of the units and the allocation of car parking and whether, in fact, it is more desirable to have car parking spaces allocated to the various units part lots and he indicated to the Court that he thought it was more appropriate to have parking spaces allocated to individual units and that provided either proximity or an attachment to those units.

5 It is noted that the strata plan also provides for a number of common car parking spaces along the western boundary. That is car parking spaces 1 through to 12. Car parking spaces 13 through to 43 are apportioned to various lots within the complex and they have a part lot shown on each of those parking spaces.

6 The plan known as SD2, the subdivision plan - this is the subdivision plan for Lot 1 and Strata Plan Lot 2 - does show a number of easements and it is noted that there is an easement for after hours parking. It has been brought to the Court’s attention in these proceedings that there is no definition for the after hours parking and that could cause concerns. As such a definition for after hours parking to read, “Following 5pm they would be then common available parking” is agreed to by the applicant.

7 It is noted from Mr Varga’s report that the peak demand for the proposed new use of Kung Fu would be after 5pm when there a are a number of classes conducted. It is proposed that there be a maximum of thirty patrons/clients in the facility at any one time with a maximum number of two staff members.

8 The only works proposed in this development application relate to toilet facilities at the rear of the Unit. Mr Protas a BCA expert, has provided a report on the building code upgrading works and these matters are no longer in issue between the parties.

9 The only issue in these proceedings that I must focus my attention is that of the car parking. Council considers that it is orderly and economic development for the total number of car parking spaces on the western boundary, that is car spaces 1 through to 43, to be common property and not allocated to units as such. On the other hand, the applicant considers that it is appropriate to keep the allocations as shown on the approved plan and for these spaces, 13 through to 43, to be available for the Kung Fu classes of an evening after hours, that is after 5pm.

10 The council considers that it may not be practicable to have an after hours easement despite the fact it was initially approved and shown on the plans as agreed to between the parties, the subject of the previous judgment of 4 July 2008. The issue arose during the proceedings about the cumulative impact and if there are applications made one after each other that call up a greater demand for car parking then that would have implications for the total development and the ability to accommodate the needs of parking demand on site.

11 It is also clear from the Court’s approval, which was a condition the applicant also agreed to, that in fact each and every use of all of the units would require further development consent. As such council has the opportunity in assessing all development applications for each portion of the building or unit within the complex in terms of the demand. It also has the opportunity of assessing those uses against those part portion lots where the car parking allocations are.

12 The table that was provided to the Court in Exhibit A8, also part of the previous consent, shows that the parking provision for each individual unit errs on the low side in terms of council’s development control plan for the total number of spaces allocated to each unit.

13 Clearly, development applications would have to be assessed on their merits in the future and development applications may, in fact, be refused on the basis that there is insufficient car parking. This does not persuade me that all of the car parking spaces should be common property and it should be a first in best dressed scenario.

14 It seems to me that it is more orderly and economic to, allocate car parking spaces which would allow an assessment of each development application against the allocated provision of parking for such a unit. As such it could not then eventuate to a situation where some of the units just could not have any car parking allocated or there would be no parking available because of other uses approved on the subject site.

15 It seems to be appropriate and is common practice that parking spaces be allocated to industrial warehouse type units and I see no reason as to why these parking spaces that have been approved to be apportioned or allocated to individual lots should, in fact, become common property as a result of this development application. In this regard, I also fail to see a nexus between changing what has been already approved in terms of the strata and the plans of subdivision to provide for or change this to common property.

16 The development application before me for use of Unit No. 6 for the Kung Fu facility on the basis of the evidence of the traffic experts, is satisfactory and I see no reason as to why the Court should not approve the application. The experts agreed that the after hours parking could readily be accommodated before and after the strata subdivision of the subject premises.

17 Furthermore, the council was seeking that the consent be a time limited consent until such time as the strata plan is registered. The evidence of the experts is that there is sufficient car parking before and after, therefore that is not considered appropriate.

18 The applicant has provided conditions and the council has provided conditions. At the end of the day the essence of this or the fundamental issue is whether the car parking spaces be common property or benefit from a dual purpose use. That is allocated to units on the one hand during the day and have common usage after 5pm.

19 I am satisfied that this application should be approved and the conditions will be as provided in terms of the applicant’s conditions with the additional requirement that the council has proposed in terms of the additional words:

“The council’s references to (c) and (e) easements shall be deleted from the subdivision plan DASD2F prepared by Revay Architects amended 16 June 2008”.

20 I have decided that the advisory notes will stand. However, they will appear below where the conditions are signed off.

21 Accordingly, the formal Orders of the Court are:

1. The appeal in respect of the property known as unit 6, No. 63-75 Lords Road, Leichhardt is upheld;
2. The development application submitted to Leichhardt Council and as amended is determined by the granting of consent subject to the conditions in Annexure A.
3. The exhibits may be returned with the exception of Exhibits 7, F, 5 and B.

___________________

J S Murrell
Commissioner of the Court
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Annexure ‘A’

Conditions of Consent

Head Academy Kung Fu Pty Limited v Leichhardt Council

1 Development must be carried out in accordance with Development Application No. D/2008/375 and the following plans and supplementary documentation, except where amended by the conditions of this consent.

Plan Reference	Drawn By	Dated
Ground Floor Plan, Drawing 01, Issue B	Revay & Unn	13.10.08
Unit 6 Detailed Plan, Drawing 02, Issue B	Revay & Unn	13.10.08
Document Title	Prepared By	Dated
Traffic and Parking Assessment Report Joint Statement Traffic and Parking Building Code of Australia Fire Upgrading Report	Varga Traffic Planning Pty Ltd Robert Varga and Michael Logan Anthony Protas Consulting	6 March 2009 22 April 2009 2 July 2008

In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail.

2 Pursuant to Section 80A(1)(b) of the Environmental Planning and Assessment Act 1979, Development Consent D2007/397 for subdivision of the whole site shall be modified in the following manner:

An additional condition shall be imposed to the following effect:

51A(i) The carspaces numbered 1 to 75 and 119 to 121 on plan DA2 SP1 Version F prepared by Revay & Unn Architects amended 16 June 2008 shall be available for use by all occupants (and their invitees) of proposed torrens title lot 1 and lot 2 between the hours of 5.00pm each weekday evening until 7.00am the following morning and from 12.00 midday on Saturdays to 7.00am on Mondays. An easement shall be created on title of the affected carspaces to give effect to this condition. An amended Strata Plan showing the easement and Section 88B Instrument required by this condition is to be submitted to and approved by Council prior to the issue of the Strata Subdivision Certificate. Appropriate signage to reflect these requirements shall be placed so as to be visible to users of the car parking spaces.

(ii) The references to “C” and “E”, easements shall be deleted from subdivision plan DA2 SD2F prepared by Revay & Unn Architects amended 16 June 2008.

The amendment to consent D/2007/397 shall be in accordance with Clause 90(7) of the Regulations.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

3 DELETED

4 The following requirements are to be provided prior to the issue of the Construction Certificate:

a) Water saving devices must be fitted to all showers and dual flush cisterns installed within the proposed new shower and accessible WC / sanitary facility to reduce ongoing water consumption.

b) No rainforest timbers or timbers cut from old growth forests are to be used in the construction of the development. Timbers to be used are to be limited to any plantation, regrowth or recycled timbers, or timbers grown on Australian Farms or State Forest Plantations.

c) Where a solar hot water service, heat pump or instantaneous gas hot water service system is proposed, it must achieve a minimum five (5) energy star rating and must be installed where it is not visible from the street frontage. Where a pump is used to circulate water between tank and remote panel, any noise associated with the pump must not exceed 5dB at the property boundary.

5 Pursuant to clause 94 of the environmental planning and assessment regulation 2000, Unit 6 will be upgraded to comply with the requirements of the Building Code of Australia as follows:

Compliance with items 1 to 6 and 8 of the Protas report of 2 July 2008 (which is exhibit “E”) where applicable to Unit 6.

6 DELETED

7 DELETED

8 A flood evacuation strategy for Unit 6 shall be provided prior to issue of a construction certificate. The strategy shall have regard to the Stormwater Management Report prepared by Patterson Britton & partners Pty Ltd and dated August 2007.

9 In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 construction works approved by this consent must not commence until:

a) A Construction Certificate has been issued by Council or an Accredited Certifier. Either Council or an Accredited Certifier can act as the “Certifying Authority.”

b) A Principal Certifying Authority has been appointed and Council has been notified in writing of the appointment.

c) At least two days notice, in writing has been given to Council of the intention to commence work.

The documentation required under this condition must show that the new building works in this proposal complies with all Development Consent conditions, the Building Code of Australia and the relevant Australian Standards.

10 Consent is granted for the partial demolition of structures currently existing on the property, subject to strict compliance with the following conditions where relevant:

a) The developer is to notify adjoining residents seven (7) working days prior to demolition. Such notification is to be clearly written on A4 size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side, immediately at the rear of and directly opposite the demolition site.

b) Written notice is to be given to Council / Certifying Authority for inspection prior to demolition. Such written notice is to include the date when demolition will commence and details of the name, address, business hours and contact telephone number and licence number of the demolisher. The following building inspections must be undertaken by Council / Certifying Authority:

i) A pre commencement inspection when all the site works are installed on the site and prior to demolition commencing.

ii) A final inspection when the demolition works have been completed.

NOTE: Council requires 24 hours notice to carry out inspections. Arrangement for inspections can be made by phoning 9367 9222.

c) Prior to demolition, the applicant must erect a sign at the front of the property with the demolisher’s name, licence number, contact phone number and site address.

d) Prior to demolition, the applicant must erect a 2.4m high temporary fence, hoarding between the work site and any public property (footpaths, roads, reserves etc). Access to the site must be restricted to authorised persons only and the site must be secured against unauthorised entry when work is not in progress or the site is otherwise unoccupied.

e) The demolition plans must be submitted to the appropriate Sydney Water Office, to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the plans will be stamped indicating that no further requirements are necessary.

f) Demolition is to be carried out in accordance with the relevant provisions of Australian Standard 2601:2001: Demolition of structures.

g) The hours of demolition work are limited to between 7:00am and 6:00pm on weekdays. No demolition work is to be carried out on Saturdays, Sundays and public holidays.

h) Hazardous or intractable wastes arising from the demolition process must be removed and disposed of in accordance with the requirements of WorkCover New South Wales and the Department of Environment and Climate Change NSW.

i) Demolition procedures must maximise the reuse and recycling of demolished materials in order to reduce the environmental impacts of waste disposal.

j) During demolition, public property (footpaths, roads, reserves etc) must be clear at all times and must not be obstructed by any demolished material or vehicles. The footpaths and roads must be swept (not hosed) clean of any material, including clay, soil and sand. On the spot fines may be levied by Council against the demolisher and/or owner for failure to comply with this condition.

k) All vehicles leaving the site with demolition materials must have their loads covered and vehicles must not track soil and other materials onto public property (footpaths, roads, reserves etc) and the footpaths must be suitably protected against damage when plant and vehicles access the site.

l) The burning of any demolished material on site is not permitted and offenders will be prosecuted.

m) Care must be taken during demolition to ensure that existing services on the site (ie, sewer, electricity, gas, phone) are not damaged. Any damage caused to existing services must be repaired by the relevant authority at the applicant’s expense.

n) Suitable erosion and sediment control measures in accordance with the Soil and Water Management Plan must be erected prior to the commencement of demolition works and must be maintained at all times.

o) Prior to demolition, a Work Plan must be prepared and submitted to Council / Certifying Authority in accordance with the relevant provisions of Australian Standard 2601:2001 Demolition of structures by a person with suitable expertise and experience. The Work Plan must identify hazardous materials including surfaces coated with lead paint, method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

p) If the property was built prior to 1987 an asbestos survey prepared by a qualified occupational hygienist is to be undertaken. If asbestos is present then:

i) A WorkCover licensed contractor must undertake removal of all asbestos.

ii) During the asbestos removal a sign “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400 mm x 300 mm is to be erected in a visible position on the site to the satisfaction of Council.

iii) Waste disposal receipts must be provided to Council / Certifying Authority as proof of correct disposal of asbestos laden waste.

iv) All removal of asbestos must comply with the requirements of WorkCover and Leichhardt Council.

v) An asbestos clearance certificate prepared by a qualified occupation hygienist must be provided at the completion of the demolition works.

11 DELETED

12 In accordance with Section 34 of the Building and ConstructionIndustry Long Service Payments Act 1986, the applicant must pay a long service levy at the prescribed rate of 0.0035 of the total cost of the work to either the Long Service Payments Corporation or Council for any work costing $25,000 or more. The Long Service Levy is payable prior to the issue of a Construction Certificate.

13 DELETED

14 A Waste Management Plan is to be provided prior to the issue of a Construction Certificate. The Waste Management Plan is to be prepared in accordance with Council’s Development Control Plan No 38 – Avoid, Reuse, Recycle. The plan must address all issues identified in Development Control Plan No 38 including but not limited to:

a) Estimated quantities of materials that are reused, recycled, removed from site.

b) On site material storage areas during construction.

c) Materials and methods used during construction to minimise waste.

d) Nomination of end location of all waste generated.

All requirements of the approved Waste Management Plan must be implemented during the construction of the development.

PRIOR TO THE COMMENCEMENT OF WORKS

15 The site (being Unit 6) must be secured prior to works commencing. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons on public property.

Any hoarding is to be removed when the work is completed.

16 DELETED

17 At least forty-eight (48) hours prior to the commencement of works, a notice of commencement form and details of the appointed Principal Certifying Authority shall be submitted to Council.

18 Prior to the commencement of works, a sign must be erected in a prominent position on the site on which the erection or demolition of a building is being carried out. The sign must state:

a) Unauthorised entry to the work site is prohibited.

b) The name of the principal contractor (or person in charge of the site) and a telephone number at which that person may be contacted at any time for business purposes and outside working hours.

c) The name, address and telephone number of the Certifying Authority for the work.

Any such sign must be maintained while the work is being carried out, but must be removed when the work has been completed.

19 DELETED

DURING WORKS

20 The development site must be inspected at the following stages during construction:

a) At the commencement of the building work, and

b) After the building work has been completed and prior to any occupation certificate being issued in relation to the building.

21 Noise arising from the works must be controlled in accordance with the requirements of the Protection of the Environment Operations Act 1997 and guidelines contained in the New South Wales Environment Protection Authority Environmental Noise Control Manual.

22 A copy of the approved plans must be kept on site for the duration of site works and be made available upon request.

23 DELETED

24 No trees on public property (footpaths, roads, reserves etc) are to be removed or damaged during construction including for the erection of any fences, hoardings or other temporary works unless specifically approved in this consent.

25 Car parking spaces 46-50 and 51-56 are to be line marked in the position shown on Ground Floor Plan No. 01 Issue B amended 13 October 2008.

PRIOR TO THE ISSUE OF AN OCCUPATION CERITFICATE

26 Provision must be made/maintained for access to and within the building (being Unit 6) on the site for persons with a disability in accordance with the provisions of Australian Standard AS 1428.1:2001 Design for access and mobility – General requirements for access – new building work prior to the issue of an Occupation Certificate.

27 An Occupation Certificate must be obtained prior to any use or occupation of unit 6. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.

28 Certification by a qualified practicing Civil Engineer that all aspects of the flood excavation strategy have been implemented must be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

29 A street/tenancy number must be clearly displayed at the ground level frontage of the building prior to the issue of an Occupation Certificate. A separate application must be made to Council if new street numbers or a change to street numbers is required.

30 Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all works have been completed in accordance with the approved Waste Management Plan referred to in this development consent.

ONGOING CONDITIONS OF CONSENT

31 No goods are to be displayed outside the confines of the building, unless separate approval and a licence under the Roads Act 1993 is obtained from Council.

32 All vehicles must enter and exit the site in a forward direction.

33 An annual Fire Safety Statement must be given to Council and the New South Wales Fire Brigade commencing within twelve (12) months after the date on which the initial Interim / Final Fire Safety Certificate is issued.

34 The owner/manager of the site is responsible for the removal of all graffiti from the building and fences within seventy-two (72) hours of its application.

35 All industrial activity in connection with the use of the subject property is to be wholly confined within the building.

The use of the factory unit for retail or other commercial activities is prohibited.

36 DELETED

37 All loading and unloading operations are to be carried out wholly within the site.

38 Driveways and parking spaces must not be used for manufacture, storage or display of goods, materials and equipment. The spaces must be available at all times, for all vehicles associated with the development.

39 No more than 2 employees and 30 patrons shall be present on the premises at any one time.

40 4 parking spaces shall be available on-site in the western (lower level) car park for the use of staff and patrons between the hours of 7.30am and 5.00pm on weekdays and a total of 12 spaces shall be available on-site for the use of staff and patrons when the premises is operating outside those hours.

41 The hours of operation shall be:

7.30am to 8.00pm Monday to Friday

7.30am to 1.00pm Saturday

____________________________

J S Murrell
Commissioner of the Court

ljr

ADVISORY NOTES

A Prior to the issue of the Construction Certificate, the applicant must make contact with all relevant utility providers (such as Sydney Water, Energy Australia etc) whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained.

B Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act 1979 and/or the conditions of this consent may result in the serving of penalty notices or legal action.

C Works or activities other than those approved by this Development Consent will require the submission of a new development application or an application to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979.

D This decision does not ensure compliance with the Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

E This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, such as (if necessary):

a) Application for Approval under Section 68 of the Local Government Act 1993 for any activity under that Act, including any erection of a hoarding.

b) Application for a Construction Certificate under Section 109(1)(B) of the Environmental Planning and Assessment Act 1979 .

c) Application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979 .

d) Application for a Subdivision Certificate under Section 109(C)(1)(d) of the Environmental Planning and Assessment Act1979 if land (including stratum) subdivision of the development site is proposed.

e) Application for Strata Title Subdivision under the Strata Schemes(Freehold Development) Act 1973 , if strata title subdivision of the development is proposed.

f) An application under the Roads Act 1993 for any footpath / public road occupation. A lease fee is payable for all occupations.

F In accordance with section 81A of the Environmental Planning and Assessment Act 1979, the person benefiting from this consent is notified that if Council is engaged as the Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.