Mg Projects v Canada Bay City Council

[2006] NSWLEC 316

Land and Environment Court

of New South Wales

CITATION:

MG Projects v Canada Bay City Council [2006] NSWLEC 316

PARTIES:

APPLICANT
MG Projects

RESPONDENT
Canada Bay City Council

FILE NUMBER(S):

11336 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- Strata subdivision, storage units, zone objectives, structure plan

LEGISLATION CITED:

Environmental Planning and Assessment Act (1979)
Drummoyne Local Environmental Plan 1986

DATES OF HEARING:

26/04/2006

EX TEMPORE JUDGMENT DATE:

04/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport, barrister
Instructed by: Mrs H Cook, solicitor
Of: Cordato Partners

RESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 April 2005

11336 of 2005 MG Projects v Canada Bay City Council

JUDGMENT

This decision was given extemporaneously

and has been revised and edited prior to publication.

1 This appeal relates to a development application for the 164 lot strata subdivision of the existing building at 21 Bibby Street, Chiswick. The proposed self storage lots will have areas ranging between 2 sq m and 191 sq m. The applicant also proposes in the future, and subject to demand, the lodgement of applications to further subdivide the property.

2 The industrial style two-storey building has a basement and roof-top car park and is presently vacant. It was granted development consent on 9 February 2005, DA424/2004, for use as a self storage facility, being bulk storage as defined in the model provisions. The site inspection revealed the progressive implementation of this consent, there now being in existence a number of storage units and an administrative office. The subject corner site has a second frontage to Blackwall Point Road and has an area of 2504 sq m.

3 The site is zoned 4A Industrial General under Drummoyne Local Environmental Plan 1986 (“the LEP”). A self storage facility (being bulk storage) and strata subdivision are permissible with development consent under the LEP. The objective of the 4A zone is:

to allow the continuation and consolidation of both light and heavy industrial operations and to allow specific uses not suitable in other zones.

4 This objective appears to operate in two ways, first, it seems to be encouraging the continuation and consolidation of light and heavy industrial operations in the zone. Second, it provides for the establishment in the zone of a range of other land use types that are not suitable in other zones.

5 Adjoining land to the south-east and south-west is also zoned 4A and this land is generally developed with industrial style buildings. One of these buildings is vacant and two others are utilised as a dance studio and a lawnmower repair facility. The partly vacant property opposite the site in Bibby Street has recently obtained a development consent for the erection of five residential flat buildings and the refurbishment of an existing heritage building for office purposes based on existing use rights. Adjoining land to the north-west, north and east is variously zoned 2A Residential and 2B Residential and this land is developed with medium and low-density residential developments. The three-storey residential flat buildings opposite the site in Blackwall Point Road contain some commercial uses in the form of a café for lease and offices.

6 The Statement of Issues, leaving aside the particulars, identifies the following issues of concern to the council:

1. The proposed development is inconsistent with the zone objectives for the site.
2. The proposed development is also inconsistent with the objectives for industrial development within the Drummoyne area comprehensive development control plan.
3. The proposed development is inconsistent with council’s city planning framework which provides guidelines for the future development of Canada Bay.
4. The proposal is unsuitable considering the existing development pattern in the locality.
5. The proposal is not in the public interest in that it will not result in the orderly or economic development due to the creation of a large number of privately owned lots within the one site.

7 The Court was assisted by the evidence of Court-appointed town planner, Ms D Laidlaw, and the council’s consultant town planner, Mr D Brindle.

8 Having considered the evidence of these experts and taking into account the submissions of the advocates, the issues for the determination of the Court are essentially twofold. The first is whether the proposed subdivision would be consistent with the objectives of the zone already described. In this context, cl 9(3) of the LEP effectively provides that consent shall not be granted unless the consent authority forms the opinion that the development would be consistent with the objective.

9 The second issue is whether the proposed strata subdivision would prejudice the attainment of the future planning objectives contained in Council’s City Planning Framework Structure Plan 2004 (“the structure plan”).

10 Dealing with the first issue, it seems to me that the objective of the zone is only relevant insofar as it provides for the establishment of specific uses not suitable in other zones. This is because the existing use/consent is for a self storage facility, being bulk storage, rather than a light or heavy industrial operation. In this context and taking into account the evidence of Ms Laidlaw, I accept the logic that the council in granting the self storage facility consent for the site appears to have accepted that the zone and the location are appropriate for this purpose, which is not otherwise suitable in other zones. Clearly, the consent was not about the continuation or consolidation of a light or heavy industrial operation.

11 The question that thus arises is whether the self storage facility that is consistent with the objective of the zone can be strata subdivided as proposed and continue to be consistent with the zone. Mr Brindle was of the opinion that the strata subdivision would be inconsistent with the objective, essentially because it will limit the ability to use the building for other purposes permitted in the zone. It also introduces a considerable degree of inflexibility or sterilisation as a consequence of the limited dimensions of some of the lots as well as the access and parking arrangements. As a consequence, this would inhibit the orderly and economic use of the land for other useful purposes. Ms Laidlaw disagreed with Mr Brindle, arguing that no objection can be taken to the sterilisation of the property when the use for which it is sterilised is one that has been held by the council to be permissible and consistent with the zone intent.

12 Plainly, the strata subdivision of this property will make it more difficult to be redeveloped given the resulting multiplicity of ownerships. However, it will not be impossible, there being various means available to end a strata scheme. Moreover, I accept that at least some of the larger lots in particular would be able to be developed for other purposes, notwithstanding Mr Brindle’s concerns about accessibility.

13 In these circumstances, I do not accept that the inflexibility for future development of the site resulting from this subdivision proposal leads to a conclusion that the zone objective is not met. Conversely, I agree that the existing consent, together with the proposed strata subdivision, will directly meet the specific uses leg of the objective and that cl 9(3) of the LEP is thus met by the proposal.

14 I also note here Ms Laidlaw’s opinion that the self storage facility is a relatively benign land use and, even if surrounding lands were rezoned and developed for residential purposes, a fundamentally incompatible land use outcome would not result. In relation to the second issue, it is to be noted that whilst the structure plan was adopted by the council in August 2004, it has not yet prepared or adopted a draft Local Environmental Plan that might reflect its intent.

15 The structure plan contains locality planning statements and locality planning objectives for various localities. The site is included in the Chiswick locality, which relevantly includes a reference to:

redevelopment of vacant X-industrial sites may occur for either residential or mixed residential uses that are consistent with development scale of the locality .

16 The locality planning objectives in the structure plan relevant to this immediate locality comprise:

develop a new small scale retail facility at the corner of Bibby Street and Blackwall Point Road to serve the retail needs of surrounding residents, redevelop vacant ex-industrial sites to a mixed residential commercial development in accordance with the scale of the surrounding area.

17 Table 7 of the structure plan, which identifies particular sites that were the subject of rezoning submissions to the council, makes reference to “industrial land at Bibby Street, Chiswick” that are sought to be rezoned for “mixed residential” land use. It more particularly makes reference to vacant industrial premises and their constrained potential for industrial development due to poor access and proximity to high density residential areas. It is to be noted here that there is no certainty that the so-called industrial land at Bibby Street, Chiswick, includes the subject land.

18 Mr Brindle believed that the proposal would be inconsistent with the thrust of the structure plan which points to the rezoning of the land for residential purposes and that a determinative degree of weight should be given to it. Ms Laidlaw, whilst accepting that there is a reasonable possibility of rezoning to residential some time in the future, did not agree with Mr Brindle as to the weight that should be given to the structure plan. She explained that it was a broad brush document, bearing in mind that the Department of Planning has indicated that further studies will be required to support a draft local environmental plan. Moreover, she explained, justification will be required to support any rezoning of industrial land in the light of the applicable direction under s 117 of the Environmental Planning and Assessment Act (1979).

19 Taking particularly into account what Ms Laidlaw said, I disagree with Mr Brindle that the structure plan provides clear strategic planning intention on the future zoning of this land. It may be an indication of council’s future intention, but the further studies that are required may lead to a different outcome. Here, I also note that the locality planning statements and objectives appear to have been directly derived from requests by landowners. I was not taken to any other justification in the structure plan for these matters. The structure plan is also at least somewhat ambiguous in relation to this particular locality and cannot be said to provide a positive indication that the land, the subject of this application, will be rezoned or that this proposal would be inappropriate.

20 In all of these circumstances, I cannot possibly give greater weight to a structure plan than might otherwise have been given to a properly exhibited draft local environmental plan. The structure plan may, in the public interest, be an important document for the future development of Canada Bay, but I have decided that it does not attract sufficient weight to justify refusal of the application. It is also relevant in this context to note that the council approved the self storage facility in 2005 after the structure plan was adopted in 2004.

21 The orders of the Court are therefore that:

1. The appeal is upheld.

2. Development application No. 531/05 for the strata subdivision of the existing building at 21 Bibby Street, Chiswick, is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.

3. Exhibits B and 10 are retained.

___________________

T A Bly
Commissioner of the Court
rjs