Newton Denny Chapelle v Ballina Shire Council

[2014] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:	Newton Denny Chapelle v Ballina Shire Council [2014] NSWLEC 1123
Hearing dates:	6 June 2914
Decision date:	26 June 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Modification of Consent; whether of minimal environmental impact or substantially the same development; visual impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979; Ballina Local Environmental Plan 2012; Ballina Local Environmental Plan 1987; Civil Procedure Act 2005
Cases Cited:	Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280
Category:	Principal judgment
Parties:	Newton Denny Chapelle (Applicant) Ballina Shire Council (Respondent)
Representation:	Mr M Staunton (Respondent) Mr M Young McCartney Young Lawyers (Applicant) Ms C Huegill CH Law
File Number(s):	10911 of 2013

Judgment

1. Newton Denny Chapelle (NDC) lodged an application to modify Development Consent DA 20133/105 (original consent) with Ballina Shire Council on 11 April 2013. The modifications sought proposed to alter the way a scaffold business is operated on the site, primarily through allowing open storage of scaffold equipment.

1. The council refused the application and NDC is appealing that decision.

The site and the locality

1. The site comprises Lot 20 in DP 1051208, known as 1188 Teven Road, Alstonville and has a site area of 3.74ha. It is located in a rural area primarily characterised by macadamia plantations with some rural residential properties and is to the north-east of the Alstonville village.

1. A dwelling house, swimming pool and three sheds are located on the site. The shed that is sited in the south-eastern corner is used for the storage of scaffolding in accordance with the provisions of the original consent. Access to that area and associated hardstand vehicle manoeuvring area is from a common driveway off Teven Road that also services the dwelling.

1. The shed approved for use as a bulk store is located 7.1m from the southern property boundary and 30m from the Teven Road frontage. It has dimensions of 24m x 9m, area of 216sqm and is open on its northern and western sides and metal clad on the eastern and southern faces. A grass buffer is provided to the north and east of the hardstand area and low scale planting has been introduced along the northern end of the grass buffer. That buffer serves as part of the stormwater management for the bulk store area. The area to which the original consent relates is described as the "top paddock" and is identified by open wire fencing. A row of Syzygium 'Cascade' (lilly pillies) has been planted along the northern fence line and has reached a height of approximately 1m however not all of the plants have grown and there were gaps in the hedgerow. That planting was required as conditions of the original consent and forms part of the plans approved with the construction certificate.

The issues

1. The contentions in the case are whether the proposal is of minimal environmental impact or substantially the same and therefore, whether the threshold test for applications under s96 of the Environmental Planning and Assessment Act 1979 (EPA Act) are met and whether the application results in unreasonable visual impacts on the existing rural environment.

The planning controls

1. The site is zoned RU1 - Primary Production under Ballina Local Environmental Plan 2012 (LEP2012). The objectives of the zone are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To encourage diversity in primary industry enterprises and systems appropriate for the area.
• To minimise the fragmentation and alienation of resource lands.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To maintain the rural, cultural and landscape character of the locality.
• To enable development that is compatible with the rural and environmental nature of the land.
• To ensure that there is not unreasonable or uneconomic demands for the provision of public infrastructure.

1. The original consent was approved by the council at its meeting of 26 May 2011 under the provisions of Ballina Local Environmental Plan 1987 (BLEP 1987) as a Bulk Store for a Scaffold Business involving the construction of a shed and vehicular access for the bulk storage of Trucks and Scaffold Equipment. The site was within Zone 1(a1) - Rural (Plateau Lands Agriculture Zone) and a bulk store was a use permissible with consent at that time.

1. A bulk store is now a prohibited use under LEP 2012 and the parties agree that the use relies on existing use rights.

Background

1. The original consent includes a number of conditions that affect the way the site is used. In particular, conditions 1.4, 1.5 and 6.4 are relevant to the application and state:

1.4 The operation and use of the bulk store shall only be undertaken by the occupants of the dwelling house on the site.

1.5 All scaffold equipment and associated materials are to be stored within the confines of the approved shed. No approval is granted for the storage of scaffold equipment and/or materials outside the shed either on the approved hardstand area or any adjacent area.

6.4 All scaffolding materials and associated plant and equipment shall be stored wholly within the building.

1. On 11 April 2013, the applicant lodged an application under s96(1A) of the EPA Act that sought to modify the original consent involving:

• Incorporate an external holding yard;
• Increase the extent of hardstand area and use that area for the bulk store;
• Provide driveway access from Teven Road at a point adjacent to the site's southern property boundary.

1. The council refused that application and also an application for review of the original determination, made under the provisions of Section 96AB of the EPA Act. The extent of hardstand area was reduced on two occasions during the assessment process and the proposed access point from Teven Road was deleted from the latter application.

The proposed modification

1. The application before the Court is that refused in the s96AB review and involves construction of additional hardstand area to a total area of 2,001sqm, an increase in landscaped area to 1,889sqm and deletion of the secondary access point off Teven Road so that all access to the bulk store is via the existing driveway. The area to be used for external storage of scaffolding and equipment is approximately 600sqm with the remainder of the hardstand to be used for vehicle access and manoeuvring. The plans provide for a reduction in width of the northern grass buffer from the 7m approved in the Construction Certificate plans to 5m and supplementary screen planting along the Teven Road and southern property boundaries.

1. The reasons for the amendment are detailed in a letter from the applicant to the council dated 9 April 2013 and included in Exhibit A. That states in part:

The initial approval by Council encompassed the storage of all scaffolding equipment within the steel framed open sided shed. This application seeks to provide for the storage of scaffold equipment to the north of the open shed within a defined hardstand area.

The amendment is generated due to the proponents needing to park the scaffolding vehicles within the shed in addition to the need for additional area for storage purposes. As outlined within the original application, management of the scaffold distribution aims to have the scaffold off-site at all times. Hence, scaffold is only required to be transported to the storage site in the event it is unable to be dismantled and delivered directly to another site. However, since the approval was issued a downturn in the building industry has seen an increased need to transport scaffolding back to the site.

With the additional pressure placed on the company to store equipment within the existing shed, issues associated with the safe stacking of gear is also relevant. Accordingly, the volume of equipment required to be stored presents safety issues in respect to the height in which gear may be safely stacked and generates the demand for the open storage area.

Section 96

1. Section 96(1A) is in the following terms:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

1. The parties disagree whether the proposed modification is of minimal environmental impact or if it is substantially the same development as the development for which the consent was originally granted. If the application fails these jurisdictional tests, it must fail, even if I determine the modified proposal merits approval. The council has notified the application and received one submission in relation to the access point. That access no longer forms part of the application and therefore, the Court is satisfied the provisions of s96(1A)(c) and (d) are met.

The evidence

1. Ms K Wiggins is the owner of the site and sole director of the company Wiggins Hire Pty Ltd, the asset holding entity of two of the companies associated with the bulk store use. Ms Wiggins provided evidence in support of her affidavit, Exhibit D. She confirmed the purpose of the application is to provide for the storage of equipment when not in use on building sites. The height of the external storage would vary but would not exceed 2-3m due to the slope of the hardstand area. Equipment within the shed could be stored up to 4m in height in a manner that she considered would be safe with allowance made for access through the building. It is also proposed to store the trucks in the she.

1. The application does not increase the amount of equipment owned by the company, it is to facilitate its storage on site when not hired for use on construction sites. It would also facilitate the various types of equipment to be placed around the site so that it would be arranged in a manner that provides for more efficient collection rather than have to stacks that are rearranged when an order is being selected.

1. Mr D Roberts (council) and Mr D Chapelle (applicant) provided expert planning evidence.

1. Mr Chapelle says that the modification does not alter the approved area of land subject to the original consent, does not incorporate an increase in the volume or tonnage of scaffolding to be stored, does not increase staff or extend the approved operating hours or seek to intensify the land use. The existing consent currently permits the placement of scaffolding external to the shed awaiting its loading/unloading onto the transport trucks and the amendments provide for improved accessibility and storage of the scaffolding and the housing of vehicles within the approved shed.

1. Mr Chapelle says the modification retains the primary characterisation of the development and is therefore substantially the same development for which consent was granted. That is because the amendment relates to the land area within the site that was approved for the purpose of a bulk store and the amendments retain that use solely within the approved area of the site. The use of the subject land is not modified in a manner that enlarges the approved land area or intensifies the land use.

1. Mr Roberts says that the modification involves the increase in storage area from 216sqm to 610sqm and therefore seeks to intensify the land use, which he does not consider to be of minor environmental impact, or to be substantially the same development for which consent was originally granted. The original consent, as detailed in conditions 1.5 and 6.3, prevents the storage of scaffolding external to the shed and he says this also includes temporary storage during loading/unloading operations. He does not agree that the development does not incorporate any increase in the volume or tonnage of scaffolding to be stored on the subject land as it provides additional storage area and the downturn in the economy had created an increase in the volume/amount of scaffolding that required storage.

1. He says the essence of the development is substantially altered by the proposal, the character of the approved use was rural in nature as all scaffolding was to be stored in the shed. The proposal will create an industrial like character due to the external storage of scaffolding, which will alter the essence of the approved development.

1. The experts agree that the implementation of the screen planting plan included as Annexure C to the Joint Report, Exhibit 3, will provide for the effective screening of the development and appropriately address the potential visual impact from the surrounding environment however, Mr Roberts says landscaping should not be relied upon to make a land use suitable for a locality and he is concerned that it may not grow and therefore not assist in screening. Mr Chapelle accepts that there are limitations to landscaping.

1. They also agree that large sheds are consistent with the rural character of the locality. Mr Chapelle says that the additional planting was required to assist in the retention of the rural character rather than screen the development and part of the landscaping proposal relies on plantings within the Teven Road reserve. He agreed that there is a difference between internal and external storage, that it takes on a different character if external to a building and as that storage is currently within the shed it has a rural character. The applicant agreed that if the application were to be approved, there should be limitations imposed on the height of storage and that would be up to a maximum of 3m within the shed and 2m within the designated external storage area.

Conclusion and findings

1. For consent to be granted, I must be satisfied that the proposed modification is of minimal environmental impact and is substantially the same development as the development for which the consent was originally granted. From the evidence before me, the first question that I must ask is what is the proposed modification and what was the development to which the consent relates. The original consent authorised use of that part of the site described as the "top paddock" as a bulk store involving the storage of scaffolding and associated equipment with areas available for driveways, truck turning, carparking, stormwater management and landscaping. Of particular relevance is the requirement that all of the equipment must be stored within the shed approved under that consent (condition 1.5).

1. The proposed modification seeks to alter the way in which the scaffolding and equipment is stored on site so that it can be stored both within the shed and also in an open hardstand area to the north of the building that covers an area of some 600sqm. I am satisfied, based on the evidence of Ms Wiggins, that the amount of equipment to be stored on site has not changed since the consent was granted. The nature of the business is such that this will vary depending on economic conditions and in particular, construction works. For that reason, I do not consider the modification involves an intensification of the use.

1. Next, I must be satisfied that the proposed modification is of minimal environmental impact and, according to the council's case, this impact is one of the visual and amenity impacts of the proposal. According to the evidence of the planners, the proposed planting will ultimately address the visual impact of the proposal. I accept Mr Robert's view that a development should not rely on landscaping to make it acceptable however, even without the landscaping, I am satisfied that the visual impact will be minimal in terms of whether that impact was "very small" or "negligible".

1. The external storage would be visible and therefore there is an impact however that impact is to a very small area in the vicinity of the site and is partially screened from Teven Road by existing vegetation. There are no acoustic impacts from the proposal, no change to truck or movements or any identified air water quality impacts as the applicant has agreed that the 7m grassed buffer could be maintained. For these reasons, I am satisfied that the proposed modification is of minimal environmental impact.

1. The next test is whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

1. Guidance on this assessment is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280 where, at paras 55 and 56, Bignold J described the process for consideration of proposed modification of development as follows:

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development.56.The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

1. It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved.

1. A quantitative assessment, based on the evidence of Ms Wiggins, shows that the proposed modification does not change the quantity or tonnage of scaffolding that could be stored at the site. There will be times where there is very little equipment at the site and other times where nearly all of the equipment may not be in use and therefore be stored on site. The consent does not limit the quantity of materials that can be stored, other than by way of reference in condition 1.1 and the physical limitations imposed by the shed and the requirement that all scaffolding and equipment is stored within. That physical constraint establishes the limit of storage that can occur on the site in accordance with the consent.

1. Condition 1.1 is in the following terms:

1.1 Development being carried out generally in accordance with the plans an associated documentation lodged by, or on behalf of, the applicant, including plans prepared by Amy Campbell, Drawing nos. A-01 (Site Plan) and A-02 (Proposed Shed Plan), Revision A, Dated 2 March 2011, and the plan prepared by Wide Span Sheds, Reference No. PB 1102061-1 (Building Layout), Dated 8 February 2011, as amended in red, except as modified by any condition in this consent.

1. The Statement of Environmental Effects lodged with the application and included in the Council's Bundle of Documents, Exhibit 2, states that the "proposal involves the construction of a steel framed shed for the purpose of storing scaffold and trucks and ancillary equipment associated with the proposed land use...All loading activities shall take place within the boundaries of the bulk store footprint...The vehicular manoeuvring area is proposed to be constructed with a gravel hardstand comprising an area of 834sqm...The shed is proposed to contain dimensions of 24 metres x 9 metres with a 4.5 metre clearance height, and 5.96 metre apex height..."

1. In qualitative terms, in Moto at [58], that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified.

1. In this case, the storage of trucks, materials and equipment within the shed was a material and essential physical element of the approved development. It was important to ensure that the development would be conducted in a manner that would maintain the rural character of the area. In accordance with Mr Chapelle's evidence, landscaping, whilst important, was a secondary element of that character.

1. Because the focus of the original consent was that all goods were stored within the shed, this critical element would change if the modification were to be allowed. External storage would result in a material change to that essential feature and therefore, I am not satisfied that the development would be substantially the same development for which the consent was originally granted.

Merit assessment

1. If I am wrong in the conclusion that I have reached on the jurisdictional test arising under s 96(1A), I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.

1. Whilst I have concluded that the external storage area would result in minimal environmental impacts, those impacts are sufficient to require screening of those areas. I agree with Mr Roberts that landscaping should not be relied upon to screen the areas as evidenced during the site view where the plantings undertaken in late 2011 or early 2012 have clearly not grown to the extent necessary to screen the development either from Teven Road or the adjoining properties. A more appropriate form of screening may be possible applying the development options available to the applicant under s 108 of the EPA Act and Regulation thereto. That is for another day.

1. Having found that the proposed development the subject of the application is not substantially the same development to that approved by the consent, the application must be dismissed.

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   The application to modify Development Consent DA 2011/105 is refused.

(3)   The exhibits, other than exhibits A and 1, may be returned.

_________________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 27 June 2014