JNH Group Pty Ltd v Gosford City Council

[2004] NSWLEC 22

Land and Environment Court

of New South Wales

CITATION:	JNH Group Pty Ltd v Gosford City Council [2004] NSWLEC 22
PARTIES:	JNH Group Pty Ltd Applicant Gosford City Council Respondent
FILE NUMBER(S):	11030 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Planning Instruments :- Question of permissibility
LEGISLATION CITED:
CASES CITED:	Lonergan v Byron Shire LEC No 10497 of 1997, unreported
DATES OF HEARING:	27/01/2004 to 29/01/2004
EX TEMPORE JUDGMENT DATE :	01/29/2004
LEGAL REPRESENTATIVES:	Mr P Clay, barrister Mr M Fraser, barrister

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11030 of 2003

Roseth SC

29 January 2004

JNH Group Pty Ltd

Applicant

v

Gosford City Council

Respondent

Judgment answering two preliminary questions:

Is the proposed development a road transport facility?

Introduction

1 This is an appeal against the refusal by Gosford City Council (the council) of a development application for a road transport facility on lot 12 DP 590280, Pacific Highway, Mount White. The parties agreed that the merit part of the appeal is not ready to proceed and asked me to determine the threshold issue, namely whether or not the proposal is permissible.

The proposal and its history

2 During the course of the hearing the applicant amended the application. The proposal now consists of the following elements:

· A service station/general store of 150m2 with associated parking for 4 cars

· A fruit and vegetable shop of 100m2 with associated parking for 4 cars

· 23 detached accommodation units comprising two bedrooms, living, dining and kitchen with associated parking for 46 cars

· Conversion of an existing dwelling to a restaurant with associated parking for 27 cars.

· Parking for 8 recreational vehicles

· An undefined (and small) area vaguely noted as Bus/Truck parking

· A sewerage treatment plant and effluent disposal areas.

3 Access to the site is from the Pacific Highway near the Mount White exit off the F3 Freeway.

Relevant legislation, planning instruments and policies

4 Interim Development Order No 122 – Gosford (IDO 122) applies to the site and zones the subject land Zone 5- Special Uses (Road Transport Facility). The only relevant permissible use under the zoning is a road transport facility. The objectives of the zone are:

(a) To provide for the development of some miscellaneous public facilities on certain land; and
(b) To provide for other land uses if they do not affect the usefulness of the land for the purpose for which it is zoned.

5 The Gosford Local Environmental Plan 283 (LEP 283) was gazetted in 1991. It effected the subject site’s current zoning. Its aim was “to enable the establishment of an integrated facility for road transport using the F3 freeway”. LEP 283 contained the following definition of road transport facility:

…a building or place used for purposes relating to the transport of freight or passengers by road and includes a building or place used for the following purposes:

· the operation, maintenance, fuelling or repair of motor vehicles;

· the accommodation of road users, including passengers and drivers;

· the function of government departments and authorities relating to the road transport of freight and passengers;

· services such as tourist information centres, banks, newsagencies, chemist shops, milk bars and refreshment rooms providing for employees and customers of the facility;

· any other use ancillary to any of these uses.

6 The Gosford Local Environmental Plan 381 (LEP 381) was gazetted in 2000. It further amended IDO 122 by inserting a new set of definitions. The new definitions do not include road transport facility. As a result, the site is zoned to permit a road transport facility, but the instrument that so zones it does not include a definition of road transport facility.

The question of permissibility

7 It was common ground between the parties that, in seeking an answer to whether or not the proposal is permissible, I should ask myself two questions, ie

· What is a road transport facility?

· Is the proposed development a road transport facility?

8 Apart from the deleted definition quoted above, I had assistance from a guideline of the Roads and Transport Authority of NSW on highway service centres. While highway service centres are different from road transport facilities (mainly because they are accessed directly from a freeway or restricted access highway), they share a common characteristic in that they serve users of a road to which they are adjacent or close. The guideline specifies the following elements of highway service centres:

· Petrol and diesel facilities

· Toilets

· Restaurant facilities

· Adequate parking for cars, buses and trucks

· Limited emergency repair facilities

· Overnight accommodation for truck drivers

· Limited service facilities and spare parts for trucks, where appropriate.

9 The guideline points out that longer-stay or multi-purpose developments are not included, and taverns and hotel-type developments are specifically excluded. It goes on to say that centres that are not directly accessible from a freeway may include additional non-highway-related uses eg accommodation and tourist facilities, though these would most desirably be located near townships.

10 The council’s advocate Mr M Fraser, argued that the proposal was not a road transport facility. First, in zoning the site for its present zoning, LEP 283 had the aim of establishing an integrated facility on the land to which the LEP applied. Mr Fraser submitted that the proposal was not an integrated facility and not on the land to which the LEP applied. I do not accept this submission. I do not know the difference between a facility and an integrated facility, other than that I suspect the draughtsman had a preference for two words where one will do. To integrate means to bring parts together to make a whole. The proposal has parts that together form a whole. Whether the whole is a road transport facility remains to be determined.

11 I also do not accept the submission that the proposed development is not on the land to which the LEP applies. While the LEP applies to three parcels of land, and the proposal is located only on one, it is still on the land to which the LEP applies. There is no requirement that the proposal should be spread over all three parcels.

12 Mr Fraser’s second argument was that the accommodation units (which the applicant called cabins) were dwellings. They did not appear to be intended for overnight stay by users of the road because they were too elaborate and comfortable. Motel units would be more in character with a road transport facility. In addition each unit had two parking spaces. This would suggest units used by two families for longer stays. Mr Fraser noted that the applicant proposed a condition that the maximum stay should be two days. He suggested that this made the units suitable for weekends for people who were not users of the road.

13 While I agree with Mr Fraser that the accommodation units are unusually large and well equipped, I find it hard to disqualify them from being a legitimate element of a road transport facility only on the basis that they are too comfortable. If the applicant did not accept the restriction of a maximum stay of two nights, Mr Fraser’s argument would, of course, have much greater force. I agree with Mr Fraser, however, that, if the purpose of the units is to accommodate road users only, two car spaces for each unit are not required and suggest some other hidden purpose.

14 Mr Fraser’s third argument was that the fruit and vegetable shop was inappropriate in a road transport facility. His argument was at least partly based on the applicant’s description of the shop as a Harris Market type outlet. However, the size of the shop is 100m2. While it may sell some of the things found at a Harris Market, it would not compete with a Harris Market outlet.

15 Mr Fraser’s fourth argument was that the applicant’s intention to stage the development was inconsistent with the LEP 283’s aim of an integrated facility. In fact, the applicant intends to establish first the service station/general store, which Mr Fraser accepts would serve the users of the road. I would accept this submission only if Stage 1 consisted of the 23 accommodation units, which, without other elements of the proposal, would not constitute a road transport facility.

16 Mr Fraser’s fifth argument was that the proposal does not provide for trucks and buses. While there is a notation on the plans for bus and truck parking, the parking area is not shown, despite the fact that for cars and recreational vehicles the parking spaces are clearly outlined. In my opinion, this argument is valid.

What is a road transport facility?

17 In the absence of a statutory definition I have to rely on the ordinary meaning of the term, aided by the knowledge of what the council had once considered an appropriate definition and by the RTA’s guidelines for service centres.

18 A road transport facility is a place, building or complex of buildings adjoining or close to a road, highway, freeway or motorway, the purpose of which is to serve the needs of the users of the road, highway, freeway or motorway. The test, whether the facility as a whole constitutes a road transport facility is whether the primary purpose of the whole, or any element of it, is to serve people who travel along the road towards some other destination and for whom a stop at the facility is incidental to their journey. Thus a facility to which people travel as their principal destination, (ie to do their weekly shopping, stay for the weekend or have dinner) only to return to their point of origin, is not a road transport facility.

19 A road transport facility must contain

· Petrol and diesel facilities

· Toilets

· Adequate parking for cars, buses and trucks

20 It may contain

· Restaurant(s)

· Overnight accommodation for car and truck drivers and passengers

· Emergency maintenance and spare parts

· Shops of a size and kind that serve road users and do not compete with nearby shopping centres

· Any other uses catering to the needs of road users.

Is the proposed development a road transport facility?

21 In my opinion, the proposed development in its current form is not a road transport facility, for the following reasons:

· It does not provide toilets for road users;

· It provides too much parking for the accommodation units and inadequately for buses and trucks.

22 I accept that the accommodation units primarily serve road users. The acceptance is subject to the proviso that the parking is reduced to closer to one car per unit, that there is a limit of two nights’ stay in the units, and that the two nights limit is clearly displayed in the reception office and all advertising and promotion of the accommodation. I also accept that the two shops, by virtue of their small size and the provision of only 4 parking spaces for each, are intended to serve road users and not as an alternative shopping centre.

Conclusion

23 I conclude that the application is not a permissible use in its current form. However, a number of relatively minor amendments could make it comply with the above definition of a road transport facility.

24 In response to this finding the applicant undertook to amend the application to comply with the above definition of a road transport facility. The parties agreed to the following orders:

Orders

1. The applicant is to file and serve amended plans and additional information by 5pm 5 March 2004.

2. The matter shall be listed for mention before the Senior Commissioner at 9.30 am 24 March 2004.

3. The matter is referred to the call-over on 30 January 2004 at 9.00 am before the Registrar for the purpose of fixing a date for one day’s further hearing after 8 April 2004.

4. Liberty to restore to the senior Commissioner’s list for a 9.30 am mention at two days’ notice.

_________________

Dr John Roseth
Senior Commissioner