Jubilee Avenue Investments Pty Ltd v Pittwater Council

[2008] NSWLEC 59

Land and Environment Court

of New South Wales

CITATION:

Jubilee Avenue Investments Pty Ltd v Pittwater Council [2008] NSWLEC 59

PARTIES:

APPLICANT
Jubilee Avenue Investments Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11246 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Change of two conditions in the development consent, carparking provision on site.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Roads and Traffic Authority Guidelines
Pittwater Local Environmental Plan 1993

DATES OF HEARING:

4/02/2008

 
DATE OF JUDGMENT: 

14 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor and
Mr R. Bennett, solicitor
of Pike Pike and Fenwick

RESPONDENT
Ms M. Carpenter, barrister
Instructed by Ms P. Adraskelas, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

14 February 2008

11246 of 2007 Jubilee Avenue Investments Pty Ltd v Pittwater Council

JUDGMENT

1 This is appeal No. 11246 of 2007 between Jubilee Avenue Investments Pty Ltd v Pittwater Council in respect of two conditions in development consent No. N0007/07, which approved a pharmaceutical warehouse and packaging company development at 18 Jubilee Avenue, Warriewood.

2 The two conditions contested are conditions B24 and B25. They currently state that:

24 That the piling and the pier work on level 1 be constructed in the manner which will allow a 13.5% increase in the constructed carparking area on that level noting that there is no requirements for provision of that additional carparking as part of this development, but provides for future extension should a change in use, warrant an increase.

25 The provision of a minimum 235 carparking spaces on site.
The applicant seeks condition B24 be deleted entirely and condition B25 be amended to read the provision of a total of 214 car spaces on site.

3 There have been a number of negotiations between the parties during the course of this matter, but no agreement has been reached.

4 The basis of the Council’s contention is that the calculation of the floor space should be done having regard to s 5.11 of the Roads and Traffic Authority Guidelines which state in summary:

Parking provision rate is increased when:
1. retailing is permitted on site or
2. Office space component is in excess of 20% of the floor area.
Parking provision is reduced when:
3. a high proportion of local people utilise public transport and employee parking demand is substantially less than the recommended rate.
4. Some types of factory developments may lower parking rate may initially seem appropriate however provision must be made for additional future use by setting aside but not necessarily constructing space for carparking.

5 The applicant has provided in its approved plans provision for 214 car spaces at the ground level and the 13.5% additional would require the provision of a total of 243 car spaces. The provision of 235 car spaces now, with the 13.5% allowance would mean in the future 267 spaces. The difference between the parties is essentially due to their methods of calculation and the requirement for some future possible use of the subject and approved building.

6 The carparking level as I have said is at the ground level and above it is the warehouse level. It is partly supported on piers and partly supported on landfill.

7 The applicant says that the floor loadings of the warehouse are such that the lighter storage areas are placed above the carpark and supported on piers. The heavier loaded warehouse area is placed on the slab on the landfill.

8 There have been recent geotechnical reports on the sub-strata, which indicate that heavier piling is needed for the floor structure and this adds additional piers in the carpark. The building occupies a large proportion of the site having no spare space between it and the boundaries after the provision of truck and car driveways and the required landscaping around the perimeter. The only place to put the additional car spaces is under the heavily loaded section of the warehouse where no piers are required due to the slab on landfill construction. If part of the heavy loaded area has to be on piers, it would involve substantial additional costs.

9 The applicant says that the expert evidence shows that 214 spaces are sufficient for this proposal and most other alternative uses. The only way the council’s provisions could possibly be justified, is if at some time in the future, the approved development is split into two separate uses, one being office space and the other one being a warehouse or some other use that might generate additional carparking. However this would be subject to a separate development application through the council at which time the council could require extra parking. It cannot be justified on the basis of this development in the applicants opinion.

10 Attending the appeal hearing on site which was converted by consent of the parties to an On-site hearing were:

For the applicant:
• Mr G. Green, solicitor
• Mr P. Bennett, solicitor
• Mr J. Coady, traffic engineer and town planner
• Mr I. Edwards, for the applicant company and

11 Attending for the respondent were:

• Ms M. Carpenter, barrister
• Ms P. Adraskelas, solicitor
• Ms K. Munn, senior planner, Pittwater Council
• Mr J. and Mrs S. McGrath, resident objectors representing Warriewood Grove Neighbourhood Association.

12 The parties had agreed on a single joint traffic expert who had prepared reports and gave evidence, Mr T. Rogers of Colston Budd Hunt & Kafes Pty Ltd.

The evidence

13 The council had originally asked for 267 car spaces via its DCP21. But that part of the DCP has been revoked by council and has no role to play in this appeal.

14 The council had required the 235 spaces on the basis of its DCP2007 and the RTA Guidelines as mentioned above.

15 The applicant has 3 facilities that it wishes to combine on the one site at 18-20 Jubilee Ave. It had reports from 3 traffic experts that 207 carspaces is sufficient, but 214 are shown on the approved plans, and it accepts that. Due to the urgency of the project, and the protracted negotiations with council over the original 267 and then the 235 car spaces, the applicant said it had ceased objecting to the draft conditions in order to get a consent issued. But having found the council intransigent on further amendment, and the cost of compliance, it lodged the appeal.

16 These submissions may be relevant to the motivations of the applicant, but in considering this appeal, I have to assess it, and base the decision, on the applicable statutes, controls, the expert reports and the planning and environmental circumstances of the case.

17 The single parties’ traffic expert. Mr Rogers had calculated 211 car spaces needed, and the applicant said that supports the 214 provided.

18 Mr Rogers had also calculated based on the proposed use and DCP2007 and the RTA Guidelines the proposal needed 203 spaces.

19 He had decided the ambiguous part of the RTA cl 5.11 was whether or not, if the office component of a factory exceeds 20% of the floorspace, that the office rate should be applied to the whole of the office area. He concluded that the correct interpretation for this proposal, is to apply the office rate of carpark (1 carspace per 40 sq m) only to the floor area of the office that exceeds 20%. This is justified on the basis that the factory rate of 1 carspace per 77 sq m includes any carparking required for associated offices up to a size that is 20% of the total (factory + office) floor area.

20 He had carried out a survey of one of the applicant’s existing facilities at No. 16 Jubilee Ave to verify his figures. However he did recommend, having regard to the applicable controls and guide, that condition B24 should be amended to require piling foundations for 10% additional spaces to the 214. This gives a total of 235. This would provide for the eventuality of the office floorspace becoming a separate occupancy such that the whole of its floor area is calculated at the 1 carspace per 40 sq m rate.

21 Mr Edwards revealed at the hearing, at one of his existing facilities that the carpark at No. 16 Jubilee is used by some of the staff at his other 2 facilities, because they bundy-on and –off at No. 16. The applicant put that this would inflate the surveys by Mr Rogers, and therefore 214 would be sufficient for nearly all future uses of the building if the applicant vacates it after the 10-year lease.

22 Mr Rogers said he did not know about the other 2 facilities, and did not know what this new information would do to his survey calculations, because he would have needed to survey the floor area and use of the other 2 facilities to arrive at the correct parking demand rate.

23 In any case he had instructed the survey team to report any persons using the carpark and then walking off-site at No. 16, or parking off-site and then walking into No. 16. They did not report any such movements. The survey had been done recently on school days, and not on a Monday or Friday, so that it was not a time when significant numbers of parent/workers of the applicant would be away on holidays or flex-days.

24 The applicant’s advocate submitted that on the day of the hearing we saw at least 10 spare car spaces at No. 16 as seen on the view, and this supported the applicant’s opinion that Mr Roger’s calculations are conservative and that 214 spaces will be more than sufficient for the proposal. The applicant submitted that it wanted to provide ALL parking for staff, visitors, service and delivery vehicles and B-Double trucks on-site so there is no on-street parking demand related to the proposal at Nos 18-20 Jubilee.

25 Mr & Mrs McGrath spoke of their experiences with traffic and parking in the area. At first it seemed strange that residents would have any relevance to an industrial estate. However it became clear that somehow, their relatively recent residential zone has its only road access through the industrial estate, from Mona Vale Road, through Ponderosa Parade, west into Jubilee past Daydream St and then south into Valley Place. Valley Place is a cul-de-sac. New industrial development is being completed in both Valley Place and Daydream St. The industrial estate goes right up to the driveway into “Warriewood Grove” a cluster development of relatively new houses. The McGraths live in the Grove.

26 Their experience in living there for 11 years is that heavy on-street parking demand leaves relatively few spaces, and cars parking close to driveways and narrow driveways makes truck manoeuvring difficult. Regular delays are experienced as trucks reverse or manoeuvre into industrial developments. If the truck is a semi-trailer and other trucks come along in the opposite direction while manoeuvring is going on, it can take 20 minutes for a car to get through, and it is not unusual for they and other residents to “give up” and go home.

27 I note that during the view a semi-trailer parked in Jubilee near Valley Place blocked the road such that there was only one moving lane and vehicles had to take turns in opposite directions. Although there were some vacant carspaces on-street, the general impression I received was that most spaces were occupied. As the respondent submitted, in Daydream St it was seen to be completely parked-out.

28 The McGraths in representing the Neighbourhood Association said their major concern is to ensure each new development has enough on-site parking for all its demands, and also it must have drive entries for trucks that have space to avoid the need for on-street manoeuvres. The Association says it is obvious previous approvals and developments do not have adequate parking and manoeuvring facilities, and will continue to cause an unacceptable level of congestion. At least, if new developments have proper vehicle related facilities then the congestion should not get worse.

29 It was put to them that the new development is east of Ponderosa and therefore would not affect the access to their residential cluster. They said having the only road access through the industrial estate means anywhere residents want to go is through one part or other. For example the direct route to the Mona Vale RSL is along Jubilee east of Ponderosa and past the subject site. To go south, through Warriewood to Dee Why, Brookvale and beyond, they have to go along Ponderosa also through the industrial area. As a result the Neighbourhood Association is involved with the whole industrial estate.

Conclusion.

30 In considering the evidence and submissions, I have formed the opinion that the McGrath’s and the association they represent have a valid concern that applies to the whole industrial estate. Although they do not live next to this proposal, they could be affected by it if vehicle facilities are inadequate. The industrial estate itself apparently has traffic and parking congestion and making it worse is undesirable in the public interest.

31 That does not mean the applicant should necessarily be required to “over supply” its on-site parking and manoeuvring areas to compensate somehow for the older developments that have inadequate facilities.

32 The evidence shows that 214 car spaces are sufficient for the proposed use, and the council conditions in the approval require that truck manoeuvring areas be further approved by the submission of detailed plans of road accesses to council. I note the latter conditions are not a subject of this appeal in any case.

33 10% of 214 is 21.4 and that adds up to 235.4 spaces if at some time in the future the office space of the proposal becomes a separate use to the warehouse/packaging area. In considering DCP2007 that requires the application of the RTA Guidelines, the interpretation that Mr Rogers has given both documents is appropriate. Applying that is the only course left to me as it seems his survey cannot be relied upon, and in any case it changes nothing in his report.

34 I don’t think the applicant’s submission about the spare carspaces at No. 16 on the day of the hearing can be given any weight, especially since it was on a Monday and flex-days may apply.

35 The congestion seen on the day of the hearing, assuming it is a typical day in the life of the industrial estate, shows that it is not advisable to apply anything less than a proper interpretation of the DCP2007 and RTA Guide as in Mr Roger’s recommendations. Provision should be made now for alternative use of the floorspaces shown on the approved plans.

36 The applicant said that the test for conditions is that they be reasonable and that they relate to the subject development, the council’s conditions would require 131/2% extra spaces to 235 in the existing condition B25, making the total 267. It seems to me that is an excessive requirement given Mr Rogers evidence

37 Turning to the applicant’s contention that condition B24 be deleted, I have the opinion the cost of some extra piling now for another 21 carspaces is not a relevant consideration for the Court. It would be very difficult to do the extra piling at some time in the future. I was not told if a change to the plans had been considered to provide the extra car spaces other than under the heavy loaded warehouse area, or, a reduction of floorspace somewhere to reduce the parking requirement. Perhaps those options are yet to be explored.

38 In regard to this proposal and the s96 amendments requested, I conclude that the amendments recommended by Mr Rogers be made.

39 Therefore the Orders of the Court are:

1. The appeal is upheld in part.

2. The s 96 application to amend conditions of development consent No. N0007/07 in relation to No. 18 Jubilee Ave, Warriewood is granted as follows:

(a) Condition B24 has existing words deleted and new words inserted as follows: That piling and pier work on level 1 be constructed in a manner which will allow a 10% increase in the constructed parking area on that level. This is for the provision of required car spaces should the office and warehouse components be split into separate tenancies in the future.
(b) Condition B25 has existing words deleted and new words inserted as follows: The provision of a minimum 214 carspaces on-site, with provision made as in condition B24 above for a potential total of 235 spaces.

3. The exhibits are returned to the parties except Exhibits A, 3 and 4.

_______________________
K G Hoffman
Commissioner of the Court
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