Katter v Ku-ring-gai Council

[2006] NSWLEC 361

Land and Environment Court

of New South Wales

CITATION:

Katter v Ku-ring-gai Council [2006] NSWLEC 361

PARTIES:

APPLICANT
Anthony Katter

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11418 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Alterations and additions to service station and workshops, existing use rights, streetscape, vehicular access, impact on adjoining properties

LEGISLATION CITED:

Environmental Planning and Assessment Act
Ku-ring-gai Planning Scheme Ordinance

DATES OF HEARING:

15/05/2006 and 08/06/2006

EX TEMPORE JUDGMENT DATE:

06/08/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Larkin, barrister
SOLICITOR
Steven Klinger

RESPONDENT
Mr C Drury, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

8 June 2006

11418 of 2005 Anthony Katter v Ku-ring-gai Council

JUDGMENT

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

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against Ku-ring-gai Council’s refusal of a development application for a reconfigured entry to the service station car repair station and for the alterations and additions to the building to incorporate a larger office area which would extend over a greater footprint than currently exists on the subject site.

2 The site is Part Lot A DP 412102 known as 544 Pacific Highway, Killara has an area of approximately 940 sq m located on the north western side of the highway. It is generally rectangular in shape although it falls significantly from the highway level towards the Killara Golf Course at the rear. Currently located on the site there is a service station with car repair workshops.

3 It is important to note the subject site enjoys existing use rights and, indeed, existing use rights were a matter that was determined by Bignold J in 1993 whereby he stated that the existing use rights extend to the entire site in terms of a service station and car repair station.

4 By way of background also in 1993, Bignold J determined a development application for the subject site and on its merits he approved the development application and it is important to note what the description of the existing site and the proposal were at that point in time.

“The two level service station car repair building is currently accommodated on the site and ... with a capacity for two vehicles side by side at the north western end, a central office shop and male female toilets. The building is set back approximately ten metres. Access to the mechanical workshops is directly off this service station forecourt area, that is the two on the upper level workshop areas. The lower level of the building faces away from the Pacific Highway and contains mechanical workshops which can accommodate three vehicles side by side. Vehicle access for these workshops is off a rear yard on the lower level and movement between the upper and lower levels of this site is via a right of way along the eastern boundary which also provides access to the rear of the restaurant and shop fronting the Pacific Highway to the west of the subject site. The lower rear yard level is mainly a concrete service used for car parking and storage of vehicles and equipment related to the use.“

5 His Honour further comments:

“The proposed development of the subject premises is a lunch room adjacent to the rear work bays at the eastern end and a new store room … An awning of some 26 metres projecting from the rear of the building beyond the existing work bays and the proposed new lunch room and store area. A canopy some 26 metres long by 5.5 erected along the rear boundary to provide roof protection for nine car spaces.”

6 His Honour granted development consent and stated that:

“I do not think that the grant of consent will lead to any significant increase in business activity at the subject premises... The conditions of development consent will vastly improve every facet of the existing use both in its internal and external impacts producing a much more harmonious relationship between the subject premises and its neighbours than currently exists.”

7 At the end of the hearing the Court requested a copy of all approvals issued for the site and this was subsequently forwarded to the Court with a copy to the applicant. The Court allowed the applicant to make further submissions on the document forwarded, however, no further submissions were received. In this it is noted that there were subsequent approvals by the council. It is also noted that the approval in 1995, appears to provide for four bays and the lunchroom to be relocated into one of the bay areas. It is also noted that the existing use rights applying to the lower level of the subject premises was surrendered and that was signed by the applicant at that time such that:

“The existing use of this portion of the premises shall be carried out only in accordance with the conditions numbered 1 to 21 of the Land and Environment Court’s judgment of the proceedings 10388 of 1992 as ordered 17 December 1993.”

8 It is also noted that there is a statutory declaration dated 10 March 1995:

“With regards to the above development, I declare that the existing use rights applying to the lower level of the subject premises shall be partially surrendered in accordance with the regulations to the intent that the existing use of that portion of the subject premises shall be carried out in accordance with the conditions of the development consent.”

9 The council’s consent of 1995 stated, included Condition No.3:

“All repairs, maintenance and servicing or the like of vehicles to be prohibited from designated car parking spaces adjoining the storage enclosure.”

10 As I stated, there are also plans within the document that show the configuration or layout of the proposal.

11 By way of background, it is also noted that a development application was submitted to council and refused and subsequently determined by the Court as appeal No. 10293 of 2005, wherein it was approved with the imposition of a condition that there be a stacker provided at the basement level for four vehicles to allow for additional parking. The applicant has not acted upon that consent at this point in time.

12 The application before the Court, (and indeed it was in the statement of basic facts) referred to an existing ten bays on the site for ten workshops – (when I say bays I mean workshop bays) - and for the parking of three vehicles on site and the reconfiguration of the access off the Pacific Highway to provide for greater sight lines. This would have the consequential effect of removing what is currently informal car parking spaces that adjoin the property known as No. 542 Pacific Highway.

13 For the purpose of these proceedings, I accept that existing use rights with a deed of agreement apply also to the triangular portion of the land at the front of No. 542 the subject site. The respondent has not challenged this or raised it as a legal point in these proceedings. Therefore for the purposes of my assessment, I have assumed that existing use rights for the triangular portion of the site the subject of this development application. It is proposed this land will provide greater access to the car repair service station. Number 542 the highway is a one and two storey brick residence and it has more recently been rezoned as residential 2D(3) which permits medium density or higher medium density development on the subject site.

14 The council officer who gave evidence to the proceedings was Mr T Southwell and it was considered that the residential streetscape would not be enhanced by the proposed development in terms of the construction of a retaining wall required and also the potential impact for the future development of No. 542. In the Court’s assessment it is noted that 542, being part of the new 2D(3) zone, may be amalgamated with adjoining sites to gain vehicular access from a side street rather than from the Pacific Highway.

15 Mr Larkin on behalf of the applicant, described the application as an enlargement and expansion but not an intensification of the activities on the subject site. The council officer disagreed and considered that with the new signage and the increased ease of access there would be a commercial expectation for an increase in business. The additional office area would also provide for an intensification of use on the premises.

16 Mr Kumina the development engineer for the council, also gave evidence to the Court. He acknowledges that the site enjoys existing use right and therefore intensification/expansion can be considered in terms of the relevant sections of the Environmental Planning and Assessment Act and the regulations.

17 Therefore the council’s planning controls do not apply. However, in terms of council’s DCP six spaces per workshop bay are required which would equate to 60 parking spaces if this was a new development requiring consent in accordance with its zone. Currently on the site there are three spaces provided.

18 Mr Larkin submits on behalf of the applicant that the new proposed access point being further to the south off the Pacific Highway provides for greater sight lines and there would be a public benefit in terms of the ease of access to the site on what is an extremely busy arterial road. He submitted that the increase in the depth of the triangular parcel of land at the front of No. 542 would have a miniscule or a minimal impact on that property which could also gain its access from the same driveway if it was redeveloped in its own right in the future.

19 The council raised a number of issues in its statement of issues, and in particular it maintains that the streetscape in terms of the residential character of the area generally in this locality would not be enhanced by the proposed development and it would have a negative impact on the potential for No. 542.

20 The subject site together with a number of properties to the north enjoy existing use rights, one being a restaurant and another commercial premises on the northern side of the access way this also provides vehicle access to the Killara Golf Course and club house.

21 The council also raised as an issue inaccurate information provided with the plan but further details were provided subsequently. However, it is noted that the north arrow on the plan is still incorrectly shown.

22 The council considers that the proposed development would result in an intensification and that the encroachment of the commercial use onto the residential site at No. 542 would have negative impacts for the future amenity of that property, whether developed singularly or amalgamated with adjoining properties.

23 The subject site together with the adjoining properties is zoned residential 2D(3), in a recent amendment to the Ku-ring-gai Planning Scheme Ordinance of May 2004, and this permits residential development in the form of low rise residential flat buildings medium density development.

24 The proposal, as I stated, is for greater ease of access to the subject property and to allow additional office space at ground and first floor level and also a balcony at the first floor level of the proposal. The addition of the floor space for the office area would have the impact of reducing the parking available in that part of the site. The driveway configuration on the evidence of council’s traffic engineer would have the effect of removing what is currently the informal spaces in front of No. 542. It was noted on site there were some five or six vehicles that could be accommodated in this portion of the triangular parcel of land.

25 The Court must assess this application with the benefit of existing use rights. I note that the regulations to existing use rights have been amended such that the use cannot change from one non-conforming use to another, but rather it still allows for intensification. This application was submitted before that change to the regulation and there is a savings provision in respect of applications submitted prior to the regulation being gazetted. Therefore this change has no effect for the application.

26 The Court is of the opinion that the application should be dismissed. Whilst Mr Larkin’s submission is accepted that there does not necessarily have to be an improvement for an existing use in terms of the development application under consideration. However, in the circumstances of this case the proposed alterations and additions in my assessment will exacerbate the already deficient number of parking spaces that exist on the subject site for the ten workshop bays. Whilst there would be an improvement in terms of the sight lines to the subject site, at the same time this will have the effect of removing more informal spaces, together with the removal of one of the formal car parking spaces reducing it from four to three currently on the site. In my overall assessment this means that the application must fail.

27 With the benefit of the better sight lines this would also clearly advantage the business. Whilst it was submitted the greater area of space would only improve the conditions for employees in terms of a lunch room and office etcetera, nonetheless it does provide for greater floor area and I agree with council’s officer that it would lead to an intensification and the three parking spaces for ten workshop bays in the circumstances are adequate. The Court raised the possibility of providing on-site parking. However, Mr Larkin submitted that this was not a matter for the Court’s consideration that some of the area for the workshop bays be deleted to allow for increased on-site parking.

28 It is also noted that there are significant differences between the approval granted previously by the Court, which would ensure that there would be additional car parking spaces by arrangement of a stacker, and the current application also has a further incursion into the site area which would limit parking by one space on the site itself and has the effect of eliminating the informal spaces within the triangular portion of the frontage to No. 542.

29 While it is not a reason for my refusal, from a perusal of the consents in the bundle that the council provided to the Court (and a copy was also provided to the applicant), it would appear that there does not appear to be approval for ten workshop bays which is why I referred at the beginning of this judgment to the previous consents issued by Bignold J and the council in 1993 and 1995 respectively. And the onus is on the applicant to demonstrate existing use rights with approval for the ten workshop bays shown in the current plan.

30 However, this is not a reason for my refusal. I find the application deficient without having to rely on whether there is or is not existing use rights for ten workshop bays. If I was relying on this as a reason for refusal, I would have given the applicant the opportunity to respond. As I stated, at the end of the day it is the deficiency in the parking that would be exacerbated by the proposal and therefore the application does not warrant approval.

31 The subject development application as I stated enjoys existing use rights. However, a merits assessment is required for an expansion and in my assessment a further deficiency in parking is not satisfactory. The expansion, the applicant claims there are ten bays now and there will remain ten workshop bays, but there is a greater area in terms of the office component proposed for in this development application.

32 As I stated, I did assume existing use rights for the triangular parcel of land in front of No. 542 even though the description of the development application was in respect of No. 544 only but I did find this an impediment to allow my merits assessment of the application.

33 Therefore on the basis of my assessment, the orders of the Court are:

(1) The appeal in respect of the property known as 544 Pacific Highway, Killara, is dismissed.
(2) The development application submitted to Ku-ring-gai Council and as amended is determined by the refusal of consent.
(3) The exhibits are returned with the exception of A, 3 and 5.

___________________

J S Murrell
Commissioner of the Court
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