Jardine v Campbelltown City Council - [2008] NSWLEC 1504

Land and Environment Court

of New South Wales

CITATION: Jardine v Campbelltown City Council [2008] NSWLEC 1504

PARTIES:
APPLICANT
Ray Jardine
RESPONDENT
Campbelltown City Council

FILE NUMBER(S): 10825 of 2008

CORAM: Murrell C

KEY ISSUES: Section 97 Appeal :- to use an existing industrial building for the purpose of a place of worship and a take-away shop

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Campbelltown Local Environmental Plan (Urban Area) 2002
Campbelltown City Industrial Development Policy

CASES CITED: Newbury District Council v Secretary of State for the Environment [1981] AC 578

DATES OF HEARING: 17/11/2008

EX TEMPORE JUDGMENT DATE: 17 November 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr R. Jardine, litigant in person
RESPONDENT
Mr A. Seton, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

17 November 2008
10825 of 2008 Ray Jardine v Campbelltown City Council

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

JUDGMENT

1 This is an appeal under section 97 of the Environmental Planning and Assessment Act. The applicant in these proceedings is seeking to use an existing industrial building for the purpose of a place of worship and a shop to serve the local industrial area with take-away food and the like.

2 The subject site is on land known as number 2 Somerset Street, Minto being Lot 26 in DP 28853.

3 The subject site is zoned industrial 4(b) under the ‘Campbelltown Local Environmental Plan (Urban Area) 2002’.

4 The proposal is for an addition to be existing industrial building to provide a take-away food shop at the front of the building. It is proposed to demolish the existing plumbing house on the subject site and provide eight car parking spaces at the front of the premises to be accessed via the existing driveway.

5 Council contends that the proposal does not provide for adequate off-street car parking. On the council's requirements there is a need for some 53 car parking spaces on site. This is made up of a need for 40 spaces for the place of assembly/worship and 13 for the shop.

6 The site is located with in an industrial area and to the south of the site there is a lane way of 6 m in width and further to the south there is a council car park with provision for some 140 spaces. Opposite the site is the Minto or railway station with right angle parking for commuters opposite the site. On the other side of the railway line there is a commercial area that is surrounded by residential developments and to the south of the commercial area is ‘Coronation Park’.

7 The proposal is to use the existing industrial building for religious services on a Sunday between the hours of 9 a.m. and 1 p.m. and 6 p.m. to 9 p.m. and for various group meetings on a Wednesday from 6 p.m. to 9 p.m. and Saturdays 9 a.m. to 2 a.m. consent is sought for 80 parishioners. The hours of operation for the shop to serve people employed or occupied in land uses in the industrial zone to provide a range of snacks sandwiches and take-away food. It is proposed that all food foods will be cooked and prepared on the premises and the shop will be operated by the owner for the hours of 6 a.m. to 6 p.m. Monday to Friday and 7 a.m. to 4 p.m. Saturday and 12 noon to 4 p.m. on a Sunday.

8 The statutory planning framework for consideration of the application is Campbelltown LEP. The development control plan is the Campbelltown City Industrial Development Policy.

9 The provisions of the Campbelltown development control plan number 52 for offstreet car parking requires be one space per 35 sq m of gross lettable will area and for the religious establishment one car parking space per 10 seating spaces.

10 The Campbelltown Sustainable City Development Control Plan 2007 was adopted by the Council in October 2008. The section on car parking and access has two objectives: 1) to ensure that sufficient car parking is accommodated on site to meet the traffic demand generated by the development; and 2) to ensure that the layout of car parking spaces is functional and maintains the free flow of traffic into and out of the site. There are a number of design requirements and loading and unloading requirements. The cable for car parking rates requires there to be one space per 35 sq m of lettable floor area and for religious establishment one space per 10 sq m of leaseable floor area. Leaseable floor area means the sum of areas of each floor of a building including storage areas stop. This DCP was effective 21 November 2007.

11 The council prepared a Statement of Facts and Contentions. The contentions are: 1) the proposed development should be refused as it fails to provide sufficient on-site car parking. The council quotes the relevant development control plan for Sustainable City and says that the religious establishment requires to 22 spaces and the cafe 11 spaces. This is on the basis of one space per 10 sq m for the religious establishment and for the cafe 1.5 per 10 sq m.

12 The sustainable city DCP has an over arching provision such that where there is an inconsistency between the sustainable city DCP and any other DCP then the sustainable city DCP prevails. This means that the car parking provision contained in the sustainable city DCP is the relevant provision for the assessment of this development application and not DCP 52.

13 On the issue of whether the shop is permissible Council contends that the shop is only permissible if it is intended to serve people employed or occupied in land uses permitted in the industrial zone.

14 On the building code of Australia matters identified council did not press these at the hearing and considered it can be handled by way of condition

15 On behalf of the Council evidence was given by Mr Alan hill senior development engineer and Mr Robert Walker senior development plan.

16 Mr Hill is of the opinion that the development application must be assessed against the sustainable city DCP and this requires a total of 63 spaces. In his opinion departing from the car parking requirement will provide a precedent.

17 Mr Walker is also of the opinion that the proposed development should be refused as it fails to provide sufficient on-site car parking. He is also of the opinion that the applicant has failed to establish that the proposed shop is permissible in the zone.

18 During the course of the hearing this morning the applicant proposed that the size of the shop could be reduced and that's the parking demand for the shop and the religious services is at different times and therefore there is only and need to provide parking for eight vehicles and the shop would be reduced in size accordingly.

19 The applicant advised the Court that there would only be a maximum of 30 worshippers at any one service and that approximately a third of the congregation use public transport. Mr Jardine also indicated that the adjoining council car park is little used of a Sunday when the services are conducted. Mr Jardine further advise the court that if there were more than 30 worshippers that he would conduct more than one service on a Sunday and this would reduce the number of car parking spaces required at any one time.

20 The Court this morning has had the opportunity of inspecting the site and the local area. It is apparent that the size of the existing building on site could be altered to incorporate a shop within the existing floor space as opposed to an extension to increase the footprint of the building. I am satisfied that with the deletion of the shop as shown on the plan and consequential amendments. The windows and entry and additional car parking spaces provided on site.

21 The applicant expressed the view that he was desirous of a decision from the proceedings today. In the circumstances I have decided that the appeal should be upheld in part and the applicant should be given the opportunity to provide an amended plan to show the deletion of the shop and provision for additional parking spaces.

22 The conditions of consent are to be amended to reflect the applicant's intention to have a maximum of 30 worshippers at any one service. In my assessment the ratio of one car parking space per three persons is appropriate as demand on a Sunday in this industrial area means that there is adequate space on the street or in the council car park for any additional parking spaces that may be required.

23 It has been explained to the applicant that if he wishes to proceed with a shop it would be the subject of a new development application it should be within the existing envelope of the industrial building. As such the shop component of the development application before me is deleted and it could be the matter for a future development application for assessment and consideration of the council if the applicant chooses to submit a new development application.

24 Accordingly based on my assessment I am satisfied in the circumstances of this case that a variation to the parking provision contained within the sustainable city DCP is justified having regard to the context of this site the proximity to public transport and the availability of parking within the area on a Sunday when the industrial uses are generally not operating.

25 The formal orders of the court in this matter on the receipt of a amended plan to show additional car parking spaces and the deletion of the shop will be:

1. The appeal in respect of the premises known as No. 2 Somerset Street, Minto is upheld in part.

2. The development application submitted to Campbelltown City Council as amended and shown in the amended plan is approved subject to the conditions contained in Annexure A.

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Ray Jardine v Campbelltown City Council

2 Somerset Street, Minto – DA 763/2008

GENERAL CONDITIONS

The following conditions have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the planning instrument affecting the land.

For the purpose of these conditions, the term ‘applicant’ means any person who has the authority to act on or benefit of the development consent.

Approved Development

a) The development shall take place in accordance with the following approved development plans and all associated documentation submitted with the application, except as modified by any conditions of this consent:

i) The plans annexed hereto and marked “A”, “B”, “C”, “D”, “E” and “F” as filed with the Land and Environment Court in Proceedings No. 10825 of 2008.

b) Consent is not granted for the “future amenities block” as referred to in Plans “C” and “D”.

Building Code of Australia

Building Code of Australia

Building Upgrade

External Finishes

Landscaping

The provision and maintenance of landscaping shall be in accordance with the approved landscape plan, and include the engagement of a suitably qualified landscape consultant / contractor for landscaping works.

Operating Hours

Deleted

Storage of Goods

All works, storage and display of goods, materials and any other item associated with the premises shall be contained wholly within the building.

Security Fencing

All security fencing shall be established behind the required landscape areas and not on the road alignments. No barbed wire style fencing is to be erected in a location that can be seen from a public place.

Graffiti Removal

In accordance with the environmental maintenance objectives of 'Crime Prevention Through Environmental Design', the owner/lessee of the building shall be responsible for the removal of any graffiti which appears on the buildings, fences, signs and other surfaces of the property within 48 hours of its application.

Car Parking Spaces

Eighteen (18) car parking spaces shall be designed, sealed, line marked and made available to all users of the site in accordance with Australian Standards 2890.1 and 2 (as amended).

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions of consent must be complied with prior to the issue of a construction certificate by either Campbelltown City Council or an accredited certifier. All necessary information to comply with the following conditions of consent must be submitted with the application for a construction certificate.

Waste Management Plan

Waste Management Plan

Stormwater Management Plan (Development)

Campbelltown (Sustainable City) DCP 2007 Volume 2.

PRIOR TO THE COMMENCEMENT OF ANY WORKS

The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements. These conditions are to be complied with prior to the commencement of any works on site.

13. Erosion and Sediment Control

Prior to the commencement of any works on the land, adequate/approved erosion and sediment control measures shall be fully installed/implemented.

Erection of Construction Sign

Prior to the commencement of any works on the land, a sign/s must be erected in a prominent position on the site:

a. Showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours;
b. Stating that unauthorised entry to the work site is prohibited; and
c. Pollution warning sign promoting the protection of waterways (issued by Council with the development consent);
d. Stating the approved construction hours in which all works can occur.
e. Showing the name, address and telephone number of the principal certifying authority for the work.

Toilet on Construction Site

Trade Waste

Prior to the commencement of any works on the land, a trade waste facility shall be provided on-site to store all waste pending disposal. The facility shall be screened, regularly cleaned and accessible to collection vehicles.

Vehicular Access During Construction

Public Property

Footpath and Vehicular Crossing Levels

Demolition Works

Demolition works shall be carried out in accordance with the following:

a. Prior to the commencement of any works on the land, a detailed demolition work plan designed in accordance with Clause 1.7.3 of Australian Standard AS 2601-2001 – The Demolition of Structures, prepared by a suitably qualified person with suitable expertise or experience, shall be submitted to and approved by Council and shall include the identification of any hazardous materials, method of demolition, precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

b. Prior to commencement of any works on the land, the demolition Contractor(s) licence details must be provided to Council.

c. The handling or removal of any asbestos product from the building/site must be carried out by a NSW Work Cover licensed contractor irrespective of the size or nature of the works. Under no circumstances shall any asbestos on site be handled or removed by a non-licensed person. The licensed contractor shall carry out all works in accordance with NSW Work Cover requirements.

d. An appropriate fence preventing public access to the site shall be erected for the duration of demolition works

DEVELOPMENT REQUIREMENTS DURING CONSTRUCTION

21. Construction Work Hours

Erosion and Sediment Control

Erosion and sediment control measures shall be provided and maintained throughout the construction period, in accordance with the requirements of the manual – Soils and Construction (2004) (Bluebook), the approved plans, Council specifications and to the satisfaction of the principal certifying authority. The erosion and sedimentation control devices shall remain in place until the site has been stabilised and revegetated.

Note: On the spot penalties up to $1,500 will be issued for any non-compliance with this requirement without any further notification or warning.

Work Zones

All loading, unloading and other activities undertaken during construction shall be accommodated on the development site.

Dust Nuisance

‘Soils and Construction (2004) (Bluebook)

Public Safety

AS 1742.3

Associated Works

Completion of Construction Works

Unless otherwise specified in this consent, all construction works associated with the approved development shall be completed within twelve (12) months of the date of the notice of the intention to commence construction works under Section 81A of the Act.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

The following conditions of consent must be complied with prior to the issue of an occupation certificate by either Campbelltown City Council or an accredited principal certifying authority. All necessary information to comply with the following conditions of consent must be submitted with the application for an occupation certificate.

Note: For the purpose of this development consent, any reference to "occupation certificate" shall also be taken to mean "interim occupation certificate".

All redundant layback/s shall be reinstated to conventional kerb and gutter to Council's Specification for Construction of Subdivisional Road and Drainage Works (as amended) and with the design requirements of the Campbelltown (Sustainable City) DCP 2007 Volume 2.

Structural Engineering Certificate

SAA Codes

Completion of External Works

Public Utilities

Council Fees and Charges

Prior to the principal certifying authority issuing an Occupation Certificate, the applicant shall obtain written confirmation from Council that all applicable Council fees and charges associated with the development have been paid in full. Written confirmation will be provided to the applicant following Council's final inspection and satisfactory clearance of the public area adjacent the site.

FOOD CONSTRUCTION CONDITIONS

32. – 55. Deleted

ADVISORY NOTES

The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act.

Advice 1. Environmental Planning and Assessment Act 1979 Requirements

The Environmental Planning and Assessment Act 1979 requires you to:

a. Obtain a construction certificate prior to the commencement of any works. Enquiries regarding the issue of a construction certificate can be made to Council’s Customer Service Centre on 4645 4608.

b. Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works.

c. Give Council at least two days notice prior to the commencement of any works.

d. Have mandatory inspections of nominated stages of the construction inspected.

e. Obtain an occupation certificate before occupying any building or commencing the use of the land.

Advice 2. Tree Preservation Order

To ensure the maintenance and protection of the existing natural environment, you are not permitted to ringbark, cut down, top, lop, remove, wilfully injure or destroy a tree outside 3 metres of the building envelope unless you have obtained prior written consent from Council. Fines may be imposed if you choose to contravene Council’s Tree Preservation Order.

A tree is defined as a perennial plant with self supporting stems that are more than 3 metres or has a trunk diameter more than 150mm measured 1 metre above ground level, and excludes any tree declared under the Noxious Weeds Act (NSW).

Advice 3. Disability Discrimination Act

Nothing in this consent is to be taken to imply that the development meets the requirements of the Disability Discrimination Act 1992 (DDA1992). Where a Construction Certificate is required for the approved works, due regard is to be given to the requirements of the Building Code of Australia (BCA). However, your attention is drawn to the existence of the DDA1992 and that compliance with the various requirements of the BCA does not provide automatic compliance with the DDA1992. In this regard it is the sole responsibility of the owner, builder and applicant to ensure compliance with the DDA1992.

Advice 4. Covenants

The land upon which the subject building is to be constructed may be affected by restrictive covenants. Council issues this approval without enquiry as to whether any restrictive covenant affecting the land would be breached by the construction of the building, the subject of this permit. Persons to whom this permit is issued must rely on their own enquiries as to whether or not the building breaches any such covenant.

Advice 5. Inspection Within Public Areas

All works within public areas are required to be inspected at all stages of construction and approved by Council prior to the principal certifying authority releasing the Occupation Certificate.

Advice 6. Adjustment to Public Utilities

Adjustment to any public utilities necessitated by the development is required to be completed prior to the occupation of the premises and in accordance with the requirements of the relevant Authority. Any costs associated with these adjustments are to be borne by the applicant.

Advice 7. Asbestos Warning

Should asbestos or asbestos products be encountered during construction or demolition works you are advised to seek advice and information prior to disturbing the material. It is recommended that a contractor holding an asbestos-handling permit (issued by Work Cover NSW), be engaged to manage the proper disposal and handling of the material. Further information regarding the safe handling and removal of asbestos can be found at:

Alternatively, call Work Cover Asbestos and Demolition Team on 8260 5885

________________________

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CITATION:	Jardine v Campbelltown City Council [2008] NSWLEC 1504
PARTIES:	APPLICANT Ray Jardine RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10825 of 2008
CORAM:	Murrell C
KEY ISSUES:	Section 97 Appeal :- to use an existing industrial building for the purpose of a place of worship and a take-away shop
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Campbelltown Local Environmental Plan (Urban Area) 2002 Campbelltown City Industrial Development Policy
CASES CITED:	Newbury District Council v Secretary of State for the Environment [1981] AC 578
DATES OF HEARING:	17/11/2008
EX TEMPORE JUDGMENT DATE:	17 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R. Jardine, litigant in person RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group