Kuhner v Blacktown City Council

[2008] NSWLEC 1305

Land and Environment Court

of New South Wales

CITATION:	Kuhner v Blacktown City Council [2008] NSWLEC 1305
PARTIES:	APPLICANT Scott Kuhner RESPONDENT Blacktown City Council
FILE NUMBER(S):	10338; 10484 of 2008
CORAM:	Brown C
KEY ISSUES:	Building Certificate - Development Application :- approval for a motor vehicle repair workshop on the ground floor and automatic teller machine repairs using part of an mezzanine level of factory unit - unauthorised additions to mezzanine level
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	22/07/08
EX TEMPORE JUDGMENT DATE:	22 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Vergotis, solicitor SOLICITORS Cutler Harris & Hughes RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

22 July 2008

10338 of 2008, Scott Kuhner v Blacktown City Council
10484 of 2008

JUDGMENT

1 COMMISSIONER: The two appeals are separate but both relate to a factory unit at 8/36 Lidco Street, Arndell Park. The appeals were heard as an On Site Hearing and the judgment reflects the documentation available to the Court at the hearing and the findings given on site.

2 The issues raised by the council involve the further building works and the use of an existing mezzanine constructed within the factory unit. Construction of the mezzanine was commenced without approval but not completed. Blacktown City Council (the council) granted approval for the mezzanine on 6 December 2007 that provided for an enclosed 19 sq m office with the remainder of the mezzanine being open storage. The approval required the removal of walls enclosing some of the area of the mezzanine.

3 Appeal No. 10338 of 2008 is an appeal against the refusal by the council of DA-08-293. The development application sought approval for a motor vehicle repair workshop on the ground floor and automatic teller machine (ATM) repairs on part of a mezzanine level. The development application sought approval to use the mezzanine level as constructed and not with the removal of the walls as required by the council’s approval of the mezzanine. This involved the retention of an enclosed office of 10 sq m and an enclosed ATM cleaning and assembly room of 36 sq m. The remaining 31 sq m of the mezzanine is to be retained as open storage.

4 Appeal No. 10484 of 2008 is an appeal against the refusal by the council of Building Certificate Application No 06-400. The building certificate seeks approval for the mezzanine floor as constructed. It was generally agreed that the determination of DA-08-293 would determine the outcome of the appeal for Building Certificate Application No 06-400.

5 Mr Glenn Apps, a town planner employed by the council states that the existing floor space of the factory unit would generate the need for around 2.82 car parking spaces based at a rate of one space 75 sq m of gross floor area (Blacktown Development Control Plan 2006 (DCP 2006), Part E, cl 4.8). When the additional office area of 37.4 sq m located on the mezzanine level is calculated at a rate of one space for every 40 sq m of gross floor area (DCP 2006, Part E, cl 4.8), an additional 0.935 spaces is required. When combined, the total parking generation for the development is 3.755 spaces (or rounded up to 4 spaces). As the factory unit has only 2 car parking spaces allocated to it through the strata subdivision, the development is deficient by 2 spaces. As the applicant is unable to provide the additional 2 car parking spaces, insufficient car parking is provided and as such the development application should be refused.

6 Mr Goldsmith, the town planner for the applicant adopts a different approach to the assessment of car parking spaces. He states that the council has accepted that the allocated 2 car parking spaces are sufficient for the industrial use of the ground floor, the use of the mezzanine for open storage and an office with an area of 17 sq m. In his assessment, any additional parking should be based on the new office on the mezzanine (10 sq m) calculated at a rate of one space for every 40 sq m of gross floor area and the ATM cleaning and assembly room (36 sq m) based at a rate of one space 75 sq m of gross floor area because it is fundamentally an industrial use although utilising high technology components. On this basis, the proposed development would generate the need for 0.73 spaces (being 0.48 and 0.25 spaces respectively).

7 On the issue of the assessment of the additional car parking requirements, I prefer the approach of Mr Goldsmith as it more accurately reflects the additional demand for car parking generated by the proposed development rather than the approach used by Mr Apps that assesses the car parking from first principles when this does not necessarily reflect decisions made in the past for the provision of car parking, such as the allocation of 2 spaces in the strata subdivision when DCP 2006 would require 3 spaces based on the gross floor area.

8 Mr Goldsmith states that the particular characteristics of the operation do not generate an excessive need for car parking. For example, the business could grow to five employees although currently there are only three employees. Even so on most days the maximum number of workers would be three as two part-time workers would usually be offsite at various ATM facilities. Mr Goldsmith also states that there are 5 visitors car parking spaces for the complex that are held in common ownership and these are for the use of all factory units in the complex. Also, the new office is to be used only one day per week for book keeping for the business.

9 I am satisfied that the potential need for additional car parking (that is, 1 additional space rounded up from 0.73 of a space) for the proposed development is minimal considering the characteristics of the proposed operation and would not be a sufficient reason to refuse the development application. There is however, some merit in the argument of Mr Apps that this may not necessarily apply to future occupants of the factory unit particularly considering the council’s exempt development provisions (Blacktown City Council Local Environmental Plan 1988, Amendment 214, pt 33.2) that would allow another permissible use to occupy the factory unit without the need to obtain development consent. To address this potential occurrence the applicant agreed to a condition that if the proposed development ceased operating from the site then the mezzanine would revert back to the form approved by the council, that is a single enclosed 19 sq m office with the remainder of the mezzanine being open storage.

10 For Appeal No. 10338 of 2008, the Orders of the Court are:

1) The appeal is upheld.

2) DA-08-293 for a motor vehicle repair workshop on the ground floor and automatic teller machine repairs on part of a mezzanine level at 8/36 Lidco Street, Arndell Park is approved subject to the conditions in Annexure A.

3) The exhibits are returned with the exception of exhibit A.

11 For Appeal No. 10484 of 2008, consent of the Owners Corporation had not been received in an appropriate form at the time of the hearing although there was no suggestion that it would not be forthcoming. Similarly, a Fire Safety Certificate would need to be provided however there were no reasons why the certificate could not be provided. Subject to the applicant providing this documentation, there were no matters that would stop the building certificate being issued.

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G T Brown
Commissioner of the Court