Mason v City of Sydney Council

[2004] NSWLEC 352

Land and Environment Court

of New South Wales

CITATION:	Mason v City of Sydney Council [2004] NSWLEC 352
PARTIES:	APPLICANT Michael Steven Mason RESPONDENT City of Sydney Council
FILE NUMBER(S):	10293 of 2004
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Automotive workshop consistency with zone objectives compatibility with residential amenity
LEGISLATION CITED:	State Environmental Planning Policy No 1 South Sydney Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	25/06/2004
EX TEMPORE JUDGMENT DATE :	06/25/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Burrell Solicitors Burrell Solicitors RESPONDENT Ms J Jagot Solicitors Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10293 of 2004

Tuor C

25 June 2004



MAYSON
Applicant
v

CITY OF SYDNEY COUNCIL

Respondent

Judgment

Introduction

1 This an appeal against the refusal by the City of Sydney Council (the council) of a development application to continue usage as a mechanical workshop, specialising in automotive computer testing of vehicles and minor servicing at 56 Cope Street Redfern.

Background

2 The premises have operated as in automotive and mechanical workshop since 1997 under a five-year limited consent that has now expired. The previous consent was issued under a different planning instrument and was the subject of a State Environmental Planning Policy No 1 Objection which was upheld on the basis that the use is small scale with a low turnover of vehicles, is located on a street with low traffic flow and is on a site of similar size to the adjacent premises which are also used as a car repair station.

3 The previous approval included a number of conditions that related to the operation of the premises including hours of operation, number of people to be employed and loading and unloading requirements.

4 The current application is essentially the same as that which was previously approved except that detailing of cars has moved off site and that computer diagnosis has increased.

5 The site is zoned mixed-use 10 under the South Sydney Local Environmental Plan 1998 (LEP 1998). Light industry is permissible within this is zone. The objectives of the zone that are of relevance are:

(a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light industrial and industrial development, and
(g) to minimise any adverse impacts on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and
(h) to ensure that the nuisance generated by non residential development, such as that related to operating hours, noise, loss of privacy, vehicle and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.

6 Clause 10 of LEP 1998, states that consent must not be granted unless the proposal is consistent with the objectives of the zone.

7 South Sydney Development Control Plan 1997 (DCP 1997) and South Sydney Development Control Plan No. 11- Transport Guidelines for Development 1996 (DCP 11) are also relevant.

8 The application was advertised and four letters of objection were received and a petition with 23 signatures. The applicant also submitted a petition in support of the proposal. The court heard from three residents who raised concerns about the operation of the existing workshop. In particular, the concerns focused on the impacts of the development that occurred outside the building such as test driving cars at high speed, revving of engines and parking of cars in the street. The residents recognised that the facility itself made noise, but they objected to this noise occurring outside the approved hours of operation, particularly at night and on the weekends. They stated that they had less concern about the adjoining panel beaters as it generally operated within its approved hours of operation although it did park cars on the street but these were generally parked opposite the panel beaters.

9 Mr Burrell, for the applicant, undertook a survey of residents in the street. From this he concluded that impacts on residential amenity resulted from the panel beater and not from the automotive workshop. I do not accept this conclusion, the survey indicates that most residents perceive that there is an impact on their amenity but were not sure whether this results from the panel beaters or the automotive workshop.

10 The key issue in this appeal is whether the proposed operation of the automotive workshop is compatible with the adjoining residential use. Since the previous consent was granted there has been an increase in residential development in the street and the predominant character of the street is residential.

11 From the evidence of the residents on site and Council’s planner, Mr Morgan, I accept that there is an impact on residential amenity resulting from the operation of the automotive workshop. The question is whether this impact is such that it and the surrounding residential use are incompatible.

12 The compatibility of the two uses is dependent on three factors:

Firstly, the intensity of the operation,

Secondly, the physical constraints of the building,

Thirdly, measures that can be undertaken to mitigate impacts, which relies on management.

13 In relation to the intensity of the operation, DCP 11 requires three parking bays for each work bay, which is what is proposed in the application, although there are 4 parking bays. The previous consent limited the number of mechanics to two. As I understand it, this means that the mechanics generally work on the car in the working bay, the car is swapped with other cars waiting for parts or being road tested. Essentially as only one car is worked on at one time, this limits the intensity of the operation and activity is contained within the building.

14 The evidence of the residents and Mr Morgan is that more mechanics have been employed which consequently means that more cars are worked on at the one time which results in cars being parked outside the premises while they wait their turn for service.

15 In relation to the physical constraints of the building, it has a frontage of only about nine metres and the access to the loading dock does not permit servicing by trucks. This means that the collection of garbage, pumping out of oil, deliveries etc must occur partially on the street. The size of the premises also does not permit cars to enter and leave in the forward direction and this could only be achieved if a turntable was provided.

16 In relation to measures that can mitigate the impact of the development, such as hours of operation and number of employees. These measures are reliant on management. The evidence before the Court is that the premises have operated outside their hours of operation and with more than the number of employees.

17 The applicant did not provide any planning advice to support his application or to address the issues of intensity or impact on residential amenity.

18 From the evidence, I am not satisfied that the proposal is compatible with the residential nature of the street. The premises are small, have limited access and appear dependent upon the use of the street for the business to operate. It is unreasonable to expect the operator to conduct a successful business and comply with in the conditions proposed. Which means that there is inherent conflict between the business requirements of the automotive workshop and the amenity of the surrounding residential area. On this basis the application is not consistent with the objectives of the zone and must fail.

Orders

1. The appeal is dismissed.

2. The development application for an automotive workshop at 56 Cope Street, Redfern, is refused.

3. The exhibits may be returned.



____________________
Annelise Tuor
Commissioner of the Court