K R Nash and Associates v Liverpool City Council

[2006] NSWLEC 834

Land and Environment Court

of New South Wales

CITATION:

K R Nash and Associates v Liverpool City Council [2006] NSWLEC 834

PARTIES:

APPLICANT
K R Nash and Associates

RESPONDENT
Liverpool City Council

FILE NUMBER(S):

10886 of 2006

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Vehicle Assessing Centre, characterisation of use and whether permissible in zone.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Liverpool Local Environment Plan 1997

CASES CITED:

Gold Star Bakeries Pty Limited v Waverley Municipal Council 1964;
Scott’s Provision Stores Pty Ltd v Sydney City Council 1958

DATES OF HEARING:

24/11/2006 and 4/12/2006

EX TEMPORE JUDGMENT DATE:

12/04/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Griffiths, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr A. Seton, solicitor
of Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

4 December 2006

10886 of 2006 K R Nash and Associates v Liverpool City Council

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

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Liverpool City Council’s refusal of a development application for a vehicle assessing centre at the property known as No. 7 Helles Avenue, Moorebank.

2 The subject site is zoned “Industrial-Business Enterprise” under the 1997 Liverpool Local Environment Plan. (the LEP). The relevant provisions of this plan include the general objectives of the plan and amongst other things:

(c) to facilitate economic activity within the City of Liverpool without adverse social economic or environmental impacts and there are a No. of other objectives that the Court has considered.

3 The objectives of the 4D zone are:

• To provide for industrial and business development that contributes to the economic employment and social growth of the Liverpool LGA.
• Complements the employment role of the Liverpool CBD.
• Does not have an adverse impact on the Liverpool CBD.
• Due to its nature is not considered suitable for the Liverpool CBD.
• To provide for the special requirements of industry and business, particularly in the areas of advanced technology and communications and to cater for the varying needs of employment activities.
• To encourage the development of an industrial and business employment area in a location highly assessable to employees.
• To maximise opportunities for increase use of public transport et cetera.
• Discourage industrial development that is likely to detract from the amenity of the zone for reasons of appearance, noise omissions.
• To make special provisions for industries using and developing advanced technology products and processes.
• To provide facilities to business and industry by allowing development for the purpose of a range of ancillary, commercial, retail, educational or recreational community facilities and other development and activities only where it is associated with an ancillary to activities carried on on the same land and where it serves at a convenient needs of the local work force.
• To provide for the use and development of the area in an orderly, efficient and economic manner.
• To promote a high standard or urban design.

4 Given the issue of characterisation of use the definitions within the LEP are important and I will refer to those further in my judgment. The other relevant DCP No. 3 and the objectives are to ensure that developments meet certain standards for loading and unloading, manoeuvrability, access and parking.

5 The council identified a number of issues as to why the development application should not proceed. The principal, primary and threshold question is couched in terms of issue one is that the proposed development is prohibited in the 4D industrial business enterprise zone pursuant to the Liverpool LEP. In this regard the council considers the proposed development should be defined as business premises, which are prohibited in the 4D. The proposed use in council’s opinion for the storage of motor vehicles and a vehicle inspection centre and detailing service is defined as business premises. Council also considered the proposed development is inconsistent with the desired future development and character of the area and this regard it is unacceptable as the premises will provide a daily service directly and regularly to the public that complements and encourages existing non complying uses in the area being the vehicle repair and vehicle body repair station operating in premises diagonally on the opposite side of the road to the subject site. It was pointed out that the applicant in these proceedings currently conducts the car repair vehicle repair workshop at the premises known as 12 Helles Avenue.

6 The Council advised that the proposed development is not satisfactory in the zone of its permissible. With respect to the issue of adverse amenity impact, council conceded that the proposed development does not cause environmental impact or adverse environmental considerations. Therefore the essence of this appeal is in respect of what I would call a threshold question about the permissibility of the use.

7 This hearing commenced as an on-site hearing and the Court had the benefit of viewing the area and having regard to the relationship of the subject site with adjourning premises and in particular it is noticed that the subject site adjourns a recreation or an open space zone that has access to the Georges River. The subject site, as I stated is zoned 4D. Although not a relevant matter for my consideration it was re-zoned from 4C to 4D in 2003.

8 The council’s reasons for refusal were similar to the Statement of Issues. The development application submitted to the council defined the use as the storage of motor vehicles.

9 On behalf of the council Mr Covurn, manager of development assessment, gave evidence to the Court. For the applicant, evidence was given to the Court by Mr Nash, a consultant town planner.

10 Mr Covurn considers that the proposed development is one that should or is categorised most appropriately as business premises because it serves the public in a regular sense. I will go to the definitions shortly.

11 Mr Nash is of the opinion that the use of the site for the storage of vehicles is for the purpose of assessment and quotation of the damage to those vehicles and in the past he noted that it would be considered to be part of a motor repair or a vehicle repair workshop. However, the application in his opinion, provides for a separate activity today and a separate activity is in terms of the increased use of technology in the assessment and quotation of motor vehicles after damage and then assessed in a centre that provides for an appropriate venue, such as lighting to demonstrate where the vehicles have been damaged which can be done by way of video to allow on line quoting. . He also mentioned the fact that there would be a use of a ‘car-o-liner’ that also is used in such a process. Therefore Mr Nash of the opinion that the proposed use is one that falls under the definition of warehouse and distribution centre or an innominate use.

12 It is important to reference the uses that are permissible within the zone. However, firstly cl 9(3) of the LEP states: “development which is not referred to in the table in this clause may be carried out only with consent…” The land use table provides (x and ) crosses and ticks for use within the various zones. Therefore then consent can be given to an application for an innominate use not defined with the consent6 of the council. Sub cl 4 states the Council may grant consent to the development only if the Council has had regard to the following:

(a) the general objectives and other objections of this plan.
(b) the objections of the zone in which it is to be carried out and the other provisions of the plan.

13 In this regard I must go to cl 53AA. 53AA provides for development in zone 4D and consent may be granted for office premises in the 4D zone only if

(a) the premises are ancillary to a permissible use in the zone or
(b) the premises are to be utilised by an organisation that is involved in activities in the Moorebank precinct that are consistent with the objectives of the zone and are not because of the design operation or construction of the premises suitable for other business areas in Liverpool.

14 It is noted that sub cl 2 of 53AA states consent for development to be carried out in the 4D zone may be granted only if the council has taken into consideration any master plan or development control plan applied to the land that has been made or adopted by the Council. The Court was advised that sub cl 2 is not an impediment to the granting of consent if the Council has not prepared such a plan.

15 I note that business premises are prohibited in all industrial zones. Industries, Light industries and office premises are permissible only in the 4D zone. Vehicle body repair workshops are not permissible in the 4D zone but are permissible in the other industrial zones and vehicle repair stations similarly are not permissible. Warehouse or distribution centres are permissible in all the industrial zones.

16 I also note that whilst the 4D zone is to provide for industrial and business development, business development itself is not defined in the LEP.

17 For the purposes of first of all going to the question of whether the proposed development can be defined that falls within the warehouse or distribution centre, this as means “a building or place used for storing, handling or displaying items (whether the goods or materials) which have been produced or manufactured for sale, other than retail sale, to the public from a building or place.”

18 In terms of this definition, I agree with the respondent that the proposed use does not fall into warehouse or distribution centre. It is clear that the proposed use is for the storage of vehicles that are not produced or manufactured for sale as such.

19 The definition of vehicle body repair workshop in the LEP means “a building or place used for the repair of vehicles involving body building, panel beating or spray painting and vehicle repair station means a building or place used for the purpose of carrying out repairs or selling and fitting of accessories to vehicles or agricultural machinery.” Once again, I am of the view that the proposed development does not fall within these definitions.

20 It is important to note that the definition of industry means “the manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling processing or adapting of any goods, articles, materials, liquids or gases for commercial purposes.” And in the table in Cl 9 states this does not include a land use elsewhere defined. Light industry means “an industry in which the processes carried on or the transportation involved with the machinery or material used, do not interfere unreasonable with the amenity of the neighbourhood” and in the table to cl 9 this does not include an industry elsewhere defined.

21 Business premises means “a building or place in which there is carried on an occupation profession service, light industry or trade which provides a services directly and regularly to the public.” In the table to cl 9 this does not include a building or elsewhere defined in this clause.

22 I will say at this point in my judgment, given that it is a verbal judgment that I have considered that the proposed use which can be generally described as a place or point where vehicles are delivered to a site, generally by tow truck, after a motor vehicle accident and stored with the activity of an assessment in terms of car assessment of the damage to vehicles being carried out on the site and that the vehicles are also stored after they have been repaired. It is important in these proceedings to understand that the proposed use has the activities as I have just defined and does not include smash repair activities, vehicle repair activities.

23 The Court has the benefit of judgments referred to by both the respondent and the applicant. The respondent referred to the matter of Gold Star Bakeries Pty Limited v Waverley Municipal Council 1964, a judgment of Hardy J. I note that in this particular case his Honour was of the opinion that the appellant’s business constituted one integrated and indivisible business or activity not capable of subdivision or sectionalised in the manner contended by the applicant. In that particular case it is noted that an adjoining site to an existing use was to be used for the loading and unloading purposes and for the parking of vehicles. In that particular case it was considered that the activities were an indivisible business and not capable of sectionalisation.

24 The applicant refered the Court to the case of Scott’s Provision Stores Pty Ltd v Sydney City Council 1958 of his Honour Sugarman J. In this particular case it was considered that certain activities can be discrete or sectionalised.

25 In terms of my assessment in this matter, I have decided that the uses are severable in terms that there are quite discrete elements uses and the activities/use to be carried out on the subject site are self contained and are not reliant on the car repair/smash repair business opposite. It is clear that the activities on this site could be limited to the defined discrete uses and in this regard I have decided that the appeal should be upheld.

26 The threshold question is whether in fact it falls within one of the definitions under the LEP in terms of what are described as the permissible uses demonstrated by a tick in the land use table. In my assessment I am of the opinion that the proposed development is an ‘innominate use’ and in that regard the provisions of cl 9 sub-cl 3 are relevant. That is, the proposal is a development not referred to in the table and is not defined in the land use table and therefore is an innominate use.

27 As pointed out by the respondent in characterising the purpose for which a premises is used, the tasks should not be approached through a meticulous examination of the details but rather what is required to be described is the purpose of the use of a site at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on. I have undertaken this task and the proposed use is one that I consider does not fall within the definitions and could not be construed as falling within the definitions in the LEP. I do not consider that the business premises definition characterises on the facts of this development application what is to be carried on the subject site because business premises means a service which provides a service directly and regularly to the public. In this regard I do not consider that the definition of business premises adequately defines the processes or activities to be carried out on the site.

28 The evidence of the applicant is that whilst any member of the public it was conceded could access the site and seek quotations for damage to motor vehicles, the majority, some 90% of the business is to be assessment for insurance companies and corporate repairs. That is not to say there would not be members of the public that walk to the facility or activity from time to time and this was conceded to by the applicant. But I am satisfied that this does not provide a service directly and regularly to the public and generally it will be an indirect service or there will be an intermediary or an agent and not be straight and direct to the public for most assessments.

29 In defining uses, it is important to have regard to, as submitted by the Council, the overall activity, but in this instance the task of characterisation is such that I do not consider it falls within the definitions of the scheme and thus cl 9(3) is operative. The activities on the site provide for the assessment of damaged vehicles.

30 Having concluded that the use is characterised to store vehicles for the assessment or quotation or assessment of the vehicles and the storage of those vehicles cannot fall within the definition of warehousing and storage in terms of the LEP. I am also satisfied, in terms of the cases referred to me that these activities are severable for other uses including smash repair. In fact, the council and the respondent stated that these premises or this use could be sold separately as a separate entity to the car repair business diagonally opposite the subject site.

31 The respondent provided approvals of vehicle assessment facilities within the area. It is noted that these are in different zones to the subject site that is in the 4A and the 4C zone where other uses are permissible rather than those that are confined in the 4D zone. Nonetheless it can be seen that this demonstrates that the activity is one that is clearly severable in terms of the vehicle repair or smash repair activities that are undertaken on other sites.

32 I must now assess the application in terms of the zone objectives in accordance with cl 9(4) and I am satisfied that the general objectives of the plan and the objectives in particular of the zone are satisfied by the proposed development and the other provisions of the plan are not offended in terms of the development application currently before me.

33 The objectives of the zone include to provide for industrial and business developments and the proposal contributes to the economic employment and social growth of the LGA. It can be said that it compliments the employment role of the CBD and will not adversely impact on the CBD itself and due to the nature of the proposal it is not suitable for location within the CBD or a commercial zone. The application also provides for special requirements of industry and business, particularly in the areas of advanced technology and communications as smash repairers would also be able to quote online because of the facility provided here is a more sophisticated assessment centre for the damage of vehicles and it also makes provision for industries using and developing advanced technology products and processors.

34 I am satisfied the proposed development on its merits is consistent with the zones objectives. There is no reason as to why it should be refused and indeed, council’s case is that there are no environmental impacts in terms of the proposed development. It could be seen by the building on site, which had been granted approval for an extension to the warehouse previously by the Council, that the facility is well shielded or is one that will not be visible from a public open space area. There are high walls constructed around the boundary that adjoins the open space zone and there is a condition requiring that any surface be such that this can be easily cleaned graffiti and it would be the applicant’s responsibility to do so.

35 Turning to the DCP provisions in the Court’s assessment the parking that is provided on site is appropriate and is satisfactory in terms of the proposed use. It is noted that the vehicles are to be within the building itself, clearly when they are delivered on a weekend out of hours, that would be a Saturday afternoon or a Sunday by the tow truck associated with the premises. Then the vehicles may be left in the parking area and they would then be moved to the building itself such that the car parking provided on site is to be accessible by people or persons that may visit the premises and in that regard I am satisfied the amount of car parking and the manoeuvrability is satisfactory and the aisle widths manoeuvring and access are satisfactory

36 At the end of the day, whether the proposal is permissible in the zone the threshold question. The Council may be concerned that the approval of the development may lead to an expansion of the existing use on the property at 12 Helles Avenue. However, it will be clear from my judgment that the approval of the development cannot be inferred or interpreted to allow the site to be used for vehicle body repair workshop or vehicle repair station as defined in the LEP. These uses are clearly prohibited and the activities functions on this site do not include those activities and at the same time as I stated, they are discrete and severable. They are certainly discrete activities which is demonstrated by the fact that there are other activities or other such premises that operate purely for the purpose of the assessment of motor vehicle damage and indeed, this particular business or site could be sold for such a purpose.

37 Therefore having assessed the application and determined that it is permissible in the zone as an innominate use in terms of cl 9(3). Having regard to the provisions of cl 9(4), I am satisfied that the objectives of the LEP and the objectives of the zone are satisfied and the proposal is consistent with same.

38 Accordingly in my overall assessment and having regard to all the provisions of the plan and a holistic reading of same the formal Orders of the Court are:

1. The appeal in respect of the property known as No. 7 Helles Avenue, Moorebank, is upheld.
2. The development application submitted to Liverpool City Council for office premises, an assessment centre for damaged vehicles, and storage and cleaning of vehicles, is approved subject to the conditions contained in Annexure “A”.
3. The exhibits are returned except for Exhibits A, 1 and 2.

___________________

J S Murrell
Commissioner of the Court
ljr