One Funds Management Ltd ATF Kingsgrove Property Trust v Georges River Council

[2018] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation:	One Funds Management Ltd ATF Kingsgrove Property Trust v Georges River Council [2018] NSWLEC 1508
Hearing dates:	13 – 14 September 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The applicant is granted leave to rely on amended plans. (2) As agreed, pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondents costs thrown away by reason of the amended plans for the agreed amount of $3,140 within 14 days of these orders. (3) The appeal is dismissed (4) Development Application DA/2017/0151 for the removal of seven trees, alterations and additions to an existing industrial building and creation of a new loading dock is refused. (5) The exhibits are returned with the exception of Exhibit 1, E, F and G.
Catchwords:	DEVELOPMENT APPLICATION: Appeal of refusal of consent: alterations to existing industrial unit to provide new dock and loading: tree removal: streetscape impact: impacts balanced against aim to maximise functional industrial space: appeal refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy (Vegetation in Non Rural Areas) 2017
Cases Cited:	Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 461
Texts Cited:	Hurstville Development Control Plan 1
Category:	Principal judgment
Parties:	One Funds Management Ltd ATF Kingsgrove Property Trust (Applicant) Georges River Council (Respondent)
Representation:	Counsel: J Reid (Respondent)   Solicitors: Pikes Verekers Lawyers (Applicant) J Ware, Georges River Council (Respondent)
File Number(s):	2017/309712
Publication restriction:	No

Judgment

Nature of Appeal and Outcome

1. COMMISSIONER: The Applicant appeals against the refusal of Development Application DA 2017/0151 by Georges River Council. The application seeks consent for removal of seven trees, alterations and additions to an existing industrial building and creation of a new drive through truck loading and entry area. The subject site is located on the corner of Vanessa Street and The Crescent in the light industrial area of Kingsgrove.

2. At the commencement of the proceedings the applicant sought and was granted leave to rely on a further amended set of plans. The amendments addressed a previous inconsistency between the architectural and landscape plans in relation to the location of the new loading dock/driveway relative to the existing power lines on Vanessa Street. Leave was not objected to by the Council, subject to the consideration of any costs arising.

3. In the context of the scope of the application the parties agree that the amendments to the application are not minor and costs arise. They have agreed a sum of $3,140.00. I concur with the submission of the parties that the amendments are not minor (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]), and costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (‘the Act’) arise. Accordingly Order 2 is made by consent.

4. Notwithstanding the amendments made the Council maintains the application should be refused on the following grounds:

1. that the proposed loading dock on Vanessa Street has an unacceptable impact on existing significant trees within the street frontage; and

2. that the detrimental environmental impact of the loading dock in Vanessa Street can be avoided by an alternative dock location in The Crescent.

5. I have determined that the proposed development does have an unacceptable impact on the locality and is inconsistent with the provisions of the Hurstville Development Control Plan 1 (“DCP”), in particular s 5.2: Light Industrial and the objectives of the relevant setback provisions at s 5.2.3 (Setbacks). The conclusion of my assessment is that despite the potential positive economic benefits that may arise from the development, on balance they do not outweigh the detrimental impacts. Accordingly the appeal is dismissed and the application refused.

The Site

6. The subject site is identified as Lot 100 in DP 878873 and has a street address of 6 The Crescent, Kingsgrove and 115 Vanessa Street, Kingsgrove. It has a total area of 24,015m2.

7. The site is currently occupied by a part single storey, part two storey industrial warehouse, with a basement car park. Vehicular access is currently provided to the site by six driveway crossings along The Crescent and one driveway crossing on Vanessa Street.

8. The site is currently occupied by a bus depot and a medical supply business. A large amount of the floor space within the development is currently vacant. The industrial warehouse component of the site has historically been occupied and used as a single tenancy (SEMA Operations Pty Ltd) who vacated the site on 30 April 2018 (indicated by the salmon colour below).

9. The streetscape along Vanessa Street is of a light industrial character with single or two storey factory buildings of rendered or face brick and expanses of glazing. Whilst the density of landscaping varies, the majority of the industrial buildings are screened by canopy trees and hedge scale planting in the front setback or in areas that are prominent in the streetscape view (reference Exhibit E).

Planning Controls

10. Hurstville Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned IN2 Light Industrial. The consent authority must have regard to the objectives of the zone when determining a development application (cl. 2.3(2) of LEP 2012). The objectives of the IN2 zone are:

• To provide a wide range of light industrial, warehouse and related land uses.

• To encourage employment opportunities and to support the viability of centres.

• To minimise any adverse effect of industry on other land uses.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

• To support and protect industrial land for industrial uses.

• To enable industrial development which does not pollute or adversely affect adjoining land, air or water.

• To ensure industrial development creates areas that are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution.

11. The application seeks no use for the currently vacant space within the building itself. However the site has existing approval for the following main uses on the site:

• Factory, warehouse and office (DA/47/1997)

• Transport depot (DA/2015/0016)

(Exhibit 3)

12. The respondent emphasises that, through the operation of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying SEPP), these existing approved uses can be changed to a range of uses either through the exempt provisions (at s 2.20A: Specified Development) or through a complying development certificate (at s 5.3(1): Specified Complying Development).

13. The application was lodged prior to the commencement of State Environmental Planning Policy (Vegetation in Non Rural Areas) 2017 (SEPP Vegetation in Non Rural Areas) on 25 August 2017. However it is agreed by the parties that the effect of this SEPP is that cl 5.9: “Preservation of Trees or Vegetation”, and cl 5.9AA: “Trees or vegetation not prescribed by development control plan”, of the LEP 2012 are repealed.

14. The development is also subject to the requirements of the Hurstville Control Plan 1, Amendment 5 (DCP). The DCP has a series of performance criteria and design solutions for various parameters of development. These terms are defined separately to ‘objectives’ and ‘controls’. The definitions are provided at Section 1.11 of the DCP as follows:

“1.11 Compliance with this Plan

...

Objectives: For each Section or topic of relevance, objectives will clearly state what Council seeks to achieve once the Controls or the Performance Criteria are met.

Controls: Are specific, prescriptive measures required for achieving the desired objectives.

Performance Criteria: Identify how a development should perform so that the desired outcomes can be achieved.

Design Solutions: Indicate how the development can achieve the desired performance and objectives...”

15. The following provisions of the DCP are relevant to the appeal:

1. Section 5.2: Light Industrial. the objectives of the chapter are:

• provide controls for the development of light industrial premises within the City of Hurstville.

• improve the quality of light industrial development within the City of Hurstville.

• ensure the orderly development of light industrial sites to minimise their environmental impact while maximising their functional potential.

• ensure that traffic generated by light industrial development does not adversely affect local or regional traffic movements.

• ensure consideration is given to employee amenity within light industrial buildings, the site, and the locality; and

• encourage aesthetically attractive building forms and streetscapes.

• facilitate the implementation of the aims and objectives of industrial development as set out in Hurstville LEP 2012.

2. Development setbacks:

Performance Criteria 3: Development setbacks

• provide a setback that enhances the streetscape and provides for landscaping

• enhance the streetscape and allow for landscaping and open space at the front and between buildings

• allow for landscape screening to reduce the visual mass of buildings

Design solution:

DS3.1.

A minimum front setback of 4.5 metres is required for all light industrial development, except for the specific areas identified below:

• Depot Road 6m setback

• Durkin Place 6m setback

• Pritchard Place 6m setback

• The Crescent 7.6m setback

• Vanessa Street 7.6m setback.

DS3.2.

Within the front setback area, a minimum of 3 metres is to be landscaped and maintained as open area in order to enhance the streetscape.

This area is not to consist of buildings, storage areas or car parking and manoeuvring areas.

Note: The above clause does not apply to the specific areas identified above (which are required to have the entire front setback area landscaped) or where it can be shown that the use of this front setback area will be of a particular benefit to the site (this will mainly apply to those light industrial sites located within the vicinity of the corner of Stanley and Lorraine Streets, which may use this area for car parking)

DS3.3.

For corner allotments, a minimum setback of 2 metres is required for the secondary frontage.

…

3. Landscaping:

Performance Criteria 5: Landscaping

• provides attractive areas which enhance the street character and the amenity of buildings.

• preserves significant stands of trees and natural vegetation.

• softens the visual impact of the buildings within light industrial areas.

• reflects the scale of the development.

• maximises the number of trees retained on the site.

• softens the impact of buildings, as a screen to visual intrusions and for recreation space.

• predominantly uses indigenous species.

Design Solution

…

DS5.4. Landscaping is to be provided in the front setback area

to soften the appearance of buildings and enhance the streetscape

DS5.5. Landscaping is to be provided where the site abuts access streets, service roads, railway lines or residential development.

DS5.6. Species that will grow to a height consistent with the building are to be included.

DS5.7. Buildings, driveways and service trenches are to have a minimum setback of 4 metres from trees and groups of trees which have been assessed as significant.

…

4. Vehicle Access and Parking:

Performance Criteria 6: Vehicle Access and Parking

• is safe, efficient and direct.

• is sufficient for user needs and is convenient.

• include on-site facilities for loading and unloading of goods.

• are adequately sign posted and where required, provide parking for people with a disability

Design Solution

…

DS6.3. Where possible, parking is to be provided to the rear of buildings or below ground level.

…

16. Appendix 1 to the DCP at Section 9 addresses “Preservation of Trees and Vegetation”. The primary aims of the section are:

• Ensure that vegetation management is consistent with clause 5.9 (Preservation of trees and vegetation) of the Hurstville LEP 2012.

• Encourage the planting and preservation/conservation of suitable trees and other vegetation which will contribute positively to the City’s visual amenity, environmental heritage, habitat connectivity and ecological sustainability.

• Establish procedures for the proper management of trees in order to minimise the unnecessary loss of significant vegetation resources.

• Facilitate the removal of undesirable exotics, noxious weeds, dangerous trees and other inappropriate plantings.

• Ensure that site planning, design, development, construction and operation of any new development takes into account and maximises the protection of existing vegetation.

17. It is agreed between the parties that the effect of cl. 26(1) of SEPP Vegetation in Non Rural Areas, is that the reference to cll 5.9 and 5.9AA in the above aims of Section 9 are repealed. As such the first aim is not applicable to the assessment of the proposed development.

Expert Evidence

18. The Registrar made Directions regarding expert evidence on 21 July 2018. Prior to the hearing the nominated experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention.

19. The Court heard expert traffic engineering evidence from Mr. John Coady, for the applicant, and Mr Tim Rogers for the Council. The experts prepared a joint report which was tendered as Exhibit 4.

20. The Court heard expert planning evidence from Mr. John Coady, for the applicant, and Mr Peter Nelson for the Council. The experts prepared a joint report which was tendered as Exhibit 5.

21. The Court heard expert evidence in relation to the landscape contentions from Mr. Matthew Taylor, for the applicant, and Mr Jason Dalgleish for the Council. The experts prepared a joint report which was tendered as Exhibit 6.

22. In addition to the above experts the Applicant relies on a statement from Mr John Dalley, the current property manager for the Kingsgrove Property Trust who is the owner of the property. His statement is Exhibit H.

23. Ms Reid argues that the weight given to Mr Dalley’s statement should be tempered by his involvement in the Trust, who is the applicant in the proceedings.

24. The applicant relies on Mr Dalley’s statement to establish the basis of the application. Mr Dalley argues that there is no longer a market demand for a single tenant to occupy the office and warehousing space vacated by SEMA and that the vacant space can only be optimised if it can be modified to accommodate a number of smaller tenancies. The relevant space is identified in Exhibit H as: 7,358 sqm of warehouse and amenities and 2.244 sqm of first floor office space.

25. In his statement Mr Dalley argues, at [18]:

“The building, in my view, is obsolete in its current state as any tenant requiring 7,000 to 10,000 sqm would not be attracted to this property. Even though the location is favourable, the building configuration does not suit a larger user who will require better loading and unloading facilities, better access to and from the loading areas to the warehouse areas and much higher roof heights of around 12m for better efficiencies of storage and logistics.”

(Exhibit H)

26. Further it is Mr Dalley’s view that:

“Due to the significant decline in manufacturing activities in Australia over recent years, it would be virtually impossible to find a manufacturing tenant for this property of the current size. The only prospect of leasing the property is to provide at least two smaller warehouses with their own accesses and loading facilities.”

(Exhibit H, emphasis added)

27. His statement also makes the following assertions:

1. the property was acquired by the Trust in 2013 from SEMA Pty Ltd (SEMA) who had owned and occupied the site since the early 1980s.

2. the Trust has been aware for two years that the lease (in whole) would not be renewed by SEMA.

3. the applicant has been marketing the property for lease since 2016. There has been no ‘serious’ interest in leasing the building as a whole.

28. It is Mr Dalley view that a loading dock of The Crescent is less viable and less desirable that the proposed location of Vanessa Street on the following reasoning:

(a)    A second entry from The Crescent on the west side will require the entry to the first floor office area to be completely reconfigured and relocated to Vanessa Street on the south side as the truck access and egress from the property would traverse the current office entry.

(b)   If this occurred, seven visitor and the disabled car parks on the west side would be lost and could not be relocated to be accessible. This area would be required for the relocated office entry on the south side.

(c)   There is a high number of internal columns on the west side of the building (supporting the first floor offices) at the face of the building and internally which would make normal warehousing activities very problematic and unattractive for prospective tenants.

(d)   The internal roof height on the western side is 5.4m which is lower than on the south side being 6.3m. The difference is critical because the external level is approximately 1.2m higher than the internal floor area and this difference in level has to be dealt with by way of internal ramps and lifts to transport goods from outside to inside and vice versa.

(e)    The convenient subdivision of the internal space inside the building is best achieved from a second access on the south side.

(f)    Having the second access on the south side will allow two tenants to share the current amenities area …

(Exhibit H)

The Evidence

Traffic

29. Mr Coady argues the existing building has a need for an additional loading facility, and the dock location in Vanessa Street is preferred, on the following grounds:

- The northern part of the warehouse, which is currently leased to Transdev and Mediflex, is served by loading facilities with vehicular access off The Crescent

- The central and western part of the warehouse which was formerly leased to SEMA is served by another loading facility with vehicular access off The Crescent. It is anticipated that these arrangements will be retained to serve a future tenant of the warehouse storage area…

- It is not practicable for those existing loading facilities which have vehicular access off The Crescent to also serve warehouse storage areas in the southern and eastern part of the warehouse level because of loading dock capacity and proximity issues.

- part of the warehouse floor area on the Western side (ie. The Crescent side) of the warehouse floor area has a large number of columns which restrict the transfer of goods between [a] new loading dock with access of The Crescent.

(Exhibit D)

30. Mr Coady confirms that the proposed drive through loading dock allows for the unloading of an articulated vehicle, with an additional 5m wide area beside it. He argues that this will allow forklifts to undertake loading and unloading off both sides of the truck increasing the functionality of the dock (Exhibit D).

31. Further it is Mr Coady’s evidence that a loading dock off The Crescent, designated as Option 2 (attached to Exhibit 4), is not viable. His reasoning is:

1. the Vanessa Street loading dock has a greater capacity and allows for an articulated vehicle to be at the dock and provides a space for a smaller truck to stand off the street;

2. the Vanessa Street dock achieves sufficient width to allow forklifts to undertake loading and unloading off both sides of the truck. That width is unable to be provided on The Crescent without significant, and probably structural, alterations to the building.

1. the loading dock off The Crescent, as detailed in Option 2, relies on a combined driveway for truck access and for vehicles (including visitors) to enter and egress the basement car park. It is Mr Coady’s evidence that such a combined access “represents poor design in that this arrangement is likely to result in numerous conflicting traffic movements such that it does not represent an acceptable access arrangement for a new loading dock to be provided off The Crescent” (Exhibit 4); and

2. the reliance on a single driveway for the basement car park and the loading dock is impractical as on entry the trucks would occupy the entire driveway;

3. A loading dock off The Crescent would involve the loss of 11-12 on street parking spaces and the need to relocate the current visitor parking spaces to the basement.

32. It is Mr Roger’s evidence that the amended plans prepared by the applicant satisfy safe and efficient vehicular access to the proposed loading dock in Vanessa Street. However he notes in the Joint Report a preference for any loading dock for the site to be located in The Crescent. His reasoning is as follows:

“TR notes that loading docks are generally access from lower order streets where trucks accessing the dock are likely to have less impact on through traffic movements and minimise the number of driveways on higher order roads.”

(Exhibit D)

33. Mr Rogers raises concern that without knowing the future uses that will occupy the site following the further subdivision of the vacant warehouse space ‘it is not possible to determine whether it would have adequate capacity to service multiple tenancies’ (Exhibit 4).

34. Further it is Mr Roger’s evidence that the use of a single driveway to access the existing basement and a new loading dock off The Crescent is feasible. he notes:

“With respect to trucks using the combined carpark driveway to access the loading dock on The Crescent, trucks entering and cars exiting the site would do so at low speed with adequate sight lines to see each other. Furthermore traffic flow to/from the carpark would be tidal with the majority of vehicles entering in the morning and departing in the afternoon. With most deliveries occurring in the morning and the middle of the day, there would be minimal potential for a truck to enter when a car is exiting.”

(Exhibit 4)

Planning

35. The evidence of the planning experts focussed on the question of whether the environmental impact of the proposed development (tree removal) is justified in circumstances where an alternative approach to developing an additional loading dock in The Crescent is available to the applicant.

36. Mr Nelson argues that the environmental impact arising from the development is unjustified on the following grounds:

1. a new loading dock and associated driveway is possible from both Vanessa Street and The Crescent.

2. as no use for the manufacturing/ warehouse space, either as a whole or as subdivided, has been nominated Mr Nelson is “unconvinced that l loading dock from the Crescent cannot work for a future potential user.” (Exhibit 6)

3. a modified design that provided loading off The Crescent would have “a lesser environmental impact in terms of the removal of trees and landscaping than would the option proposed from Vanessa Street which would result in the removal of significant amounts of turf, groundcover and 7 significant canopy trees” (Exhibit 6).

37. Mr Nelson concludes that the replacement planting proposed for Vanessa Street is insufficient to: offset the canopy tree removal; the visual impact of the provision of a working dock in the front façade of the building; and the detrimental cumulative impacts to the streetscape.

38. In the alternative it was Mr Coady’s evidence that the provision of a new loading dock off Vanessa Street is justified by: logistical and operational reasons, which are outlined in his Statement of Evidence (Exhibit D) and the statement prepared by Mr Dalley (Exhibit H); and his conclusion that the alternative of a loading dock off The Crescent is not viable (detailed at paragraph [31].

39. In response to Mr Nelson’s concerns about the detrimental impacts arising from the canopy tree removal, and the proposed dock in the Vanessa Street frontage, Mr Coady argues:   

1. the development is “entirely consistent with the established streetscape of the northern frontage of the section of Vanessa Street between Beverly Hills Park and Commercial Road..” (Exhibit 5);

2. the development is appropriate in the context of satisfying the function requirements of development in an industrial zone;

3. the development is a relatively minor modification to an existing industrial development to ensure its viability;

4. the new landscaping treatment proposed will effectively screen the dock and break up the visual mass of the building.

40. The experts disagree whether the development proposed represents a variation to the setback controls applicable in the DCP. Mr Coady argues that The Crescent represents the front of the building, with Vanessa Street a side elevation or secondary frontage. On this reasoning the side setback requirement of the DCP is 2m, which is provided by the application.

41. In the alternative Mr Nelson argues that Vanessa Street is the primary frontage of the building and that the current development already displays a reduced setback to The Crescent. He argues that the application seeks an unwarranted variation to the requirement for a 7.6m setback in circumstances where the application does not meet the objectives of the setback control.

42. Mr Nelson has provided an assessment of the characteristics of the Vanessa Street frontage in the vicinity of the site. He concludes that the proposed development is inconsistent with the streetscape and detracts from it:

“My opinion is that the common feature will all these properties in terms of streetscape is that all provide driveway crossings perpendicular to the fronting providing direct vehicular access to loading areas behind the 7.6m front building alignment; none provide loading docks within the 7.6m front building setback; all with the exception of 105A provide in excess of the required front boundary setback for the majority of the built form and; all provide landscaping for at least 56.6% of the Vanessa Street frontage up to a maximum of 86.4% of the frontage.

The proposal is not consistent with, and will detract from, the existing streetscape in that it provides a loading area within the front setback; and provides only minimal replacement planting. The proposal demonstrably fails to improve the quality of the streetscape and in fact will actively detract from the existing established streetscape.”

(Exhibit 5)

Landscape

43. The landscape experts note in their joint report the following areas of agreement:

1. Trees T7, T8, T9, T10, T11, T12 and T13 require consent for removal.

2. That T7, T8, T9 are Eucalyptus botryoides and T11, T12 and T13 are Melaleuca quinquenervia.

3. All the trees proposed for removal are healthy, in good condition and contribute to the amenity of the locality.

4. The trees for removal range in height from 10-17 metres and are approximately 40 years old.

44. In their oral evidence the landscape experts also agreed that it was appropriate for Tree 6 to be removed due to its growth being impacted by its location in proximity to other trees (Mr Taylor noted that T07 has supressed its growth) and ongoing pruning to maintain clearance to the electricity wires.

45. The difference between the landscape experts centres on the comparative effectiveness of the screening provided by the existing trees, and the proposed landscape plantings.

46. It is Mr Taylor’s evidence that: “the (existing) trees provide a limited contribution to the urban tree canopy as a result of the broken nature of the tree canopy. The lack of established underplanting, shrubs, groundcovers restricts the ecological value of the trees as they are not aligned with a stratum of underplanting that would provide further ecological habitat for native fauna” (Exhibit 6).

47. Further Mr Taylor identifies the following benefits of the proposed planting:

1. they will be advanced plants with a height of between 3 and 4.5m and the time of planting;

2. the number of plants proposed exceeds those removed, and in particular the under planting will provide effective screening. The choice of plant species for the under planting (Acmena smithii “Goodbye Neighbours”) will achieve a dense and substantial screen in three years;

3. that the paperbark species proposed thrives in confined spaces and have been successfully utilised as street trees. Their existing presence on the site is evidence of their suitability. Mr Taylor states he would expect the paperbarks to achieve full growth.

4. the proposed planting has been located so as to allow for truck movements.

48. In his oral evidence Mr Taylor confirmed that the typical cross section depicting the driveway planting is, in his opinion, viable for the variable width of the garden bed (2.2m to 5.5m). He confirmed that in the narrower sections the smaller hedging shrubs would sit between the canopy trees not in front due to the reduced width. It is Mr Taylor view that the proposed under planting will not compete with the canopy trees proposed.

49. In relation to the potential conflict between the canopy plants and the overhead power lines, or delivery vehicles, Mr Taylor’s evidence was:

1. the paperbark species has an upright form, which reduces the spread of branches,

2. due to the change in level between the planting and the lower loading dock clearance will be achieved, and

3. that whilst some pruning will be required during growth, but not sufficient to impact the health and vigour of the trees.

50. In the alternative Mr Dalgleish argues that a “large part of the streetscape amenity on the Vanessa Street frontage will be lost especially with the proposed removal of the 7 mature species” (Exhibit 6). In the joint report Mr Dalgleish places this loss in the broader context of the urban canopy of the Georges River local government area. He concludes that the replacement planting is insufficient to replace the amenity lost and will take some 30 years to reach a similar maturity. He concludes that the proposed tree removal is inconsistent with the landscape objectives in Council’s DCP at PC5 Section 5.2 (refer paragraph 14(3)).

51. In addition to Mr Dalgleish’s impact assessment in the preceding he also raises the following concerns about the feasibility of the planting proposed:

1. The design provides insufficient room to accommodate an appropriate planting space:

The proposed 5 x Melaleuca quinquinervia (Broad Leaf Paperbark) as replacement tree planting is inappropriate for the 2m-4.4m wide garden bed. In order to plant a 200L Paperbark correctly a hole needs to be dug at least 2-3 times its root ball diameter. (Root ball diameter being approximately 1m wide). Therefore requiring at least 2-3m wide planting hole which is greater than the smallest part of the planting bed.

(Exhibit 6)

2. The canopy trees will be impacted by pruning for the driveway and overhead power lines. Mr Dalgleish notes that the canopy width of mature Paperbarks is approximately 7-10m. It is his evidence that: “this canopy will impact on adjacent powerlines and the proposed driveway and will require regular pruning” (Exhibit 6).

3. Mr Dalgleish argues the ‘stunted’ growth of the existing tree T06 indicates the impacts of pruning on the canopy of the tree and his concerns about the species failing to reach maturity due to competition with adjacent trees.

4. That there is potential for the root systems of the proposed plants to cause damage to surrounding infrastructure (driveway, foot path etc). He notes that Paperbark species are known for their invasive root systems.

52. In his oral evidence Mr Dalgleish accepted that a 200L advanced tree could have a root ball closer to 710mm diameter and on that basis a sufficiently sizes planting hole can be accommodated. However he maintained his concerns that the proposed planting will result in the formation of co-dominant canopy and the plants will be unlikely to reach their mature height.

Submissions

53. In his submissions Mr Green emphasises the intent of the application. He submits that the Applicant is wishing to transition the existing building to a more modern and economic use consistent with the Council’s Light Industrial zone objectives. By reference to those zone objectives he argues that approval of the application is consistent with the Council’s intent to: provide for a wide range of light industrial and warehouse uses; protect industrial land for industrial purposes; and assist in maintaining the viability of neighbourhood centres by locating distribution uses in proximity to them.

54. Mr Green argues that the Court should consider the predominately urban design concerns of the Council in the context of the need for the 24,000 square metres of industrially zoned land (the subject site) to continue to be used in an orderly and economic manner. He notes that the final objective of the zone encapsulates this balance: To ensure industrial development creates areas that are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution. He notes that this intent is reinforced in the DCP objectives at 5.2.2 which state that the Council seeks: to ensure the orderly development of light industrial sites to minimise their environmental impact while maximising their functional potential.

55. Mr Green submits that the Council’s case, in part, is that the Applicant has a feasible alternative location for the loading dock, either in The Crescent or elsewhere on the site, and therefore the environmental impacts of the proposed dock location are unacceptable. He submits that this is not the test for the Court, he argues:

“The test is, in the circumstances of the controls and the objectives, and the landscape, streetscape and industrial zonings, does the proposal satisfy those objectives when looked at overall and on balance.  It is not to say that there are not impacts with respect to the placement of the loading dock, but that those impacts are generally acceptable in the context of the zoning controls and what we have been able to achieve in terms of the landscaping within the area bounded by the corner of The Crescent and going along 100 metres into Vanessa Street.”

(Transcript, closing submissions at [15])

56. Mr Green notes that the evidence of Mr Coady is that a loading dock off The Crescent is not feasible and both of the traffic experts accept that the Vanessa Street loading dock is acceptable from a traffic and engineering perspective.

57. In relation to the contended variation to Council’s setback control Mr Green argues that the secondary frontage control applies to Vanessa Street. His reasoning is as follows:

1. the front door of the existing building, the street address and visitor parking are all located on The Crescent.

2. the existing building setback complies with the Council’s primary street frontage control

3. the corner landscaping treatment is the most important streetscape attribute and it is retained by the development application.

58. In undertaking the assessment of the merits of the application Mr Green argues that the Court should give weight to the streetscape presentation of the development when the landscaping proposed has reached maturity. He argues, on the evidence of Mr Taylor, that at maturity the under planting proposed will provide a more effective screen to the building than the current vegetation, and that the canopy trees will provide amenity and scale.

59. In the alternative Ms Reid submits that the application should be refused by the Court as, on balance, it is unreasonable to locate the loading dock within the Vanessa Street frontage in circumstances where: the setback controls are required to be varied; the application results in the removal of significant trees; there is a detrimental impact on the Vanessa Street streetscape; and the impacts that will occur from the use of the loading dock are unknown or poorly defined. 

60. Further, citing Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 461, Ms Reid argues that the applicant has not met the persuasive burden to convince the Court of the merits of the application. That decision at [2] states:

“… an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council in the first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

61. Ms Reid submits that when consideration is given to the realistic outcome of the proposed planting it is clear that their vigour and mature height will be impacted by:

• being spatially restricted

• the installation of bollards and the location of the existing hydrant

• ongoing pruning for the overhead power lines; and

• the manoeuvring of trucks into and out of the dock.

62. Ms Reid advocates that these impacts should be considered by the Court in determining the if the landscaping proposed will effectively mitigate the impacts of the tree removal and the insertion of an active loading dock into the front façade of the building.

63. Ms Reid argues that the Court should prefer the evidence of Mr Dalgleish over that of Mr Taylor on the grounds that he is an arborist and better qualified to comment on the likely success of the proposed planting. She notes that his evidence concludes that:

• The proposed plantings will not replace the amenity of the existing trees.

• The growth of the trees will be affected by the pruning for power lines and the driveway, due to the canopy width of seven to 10 metres expected for the paperbark trees and

• importantly, that the paperbarks have an evasive root system that may cause structural damage to the driveway.

64. Ms Reid also argues that the evidence of Mr Taylor in relation to the likely completion between the proposed species of plants is inconsistent. In her closing submission she stated:

“Mr Taylor, who is not an arborist, says that despite his concession in relation to tree 6, and the competition with the eucalyptus, there will be no competition between the plantings in the driveway planter, and he would expect them to achieve full growth.  Mr Taylor conceded that if they did not reach 12 metres, then they would still screen the building.  Mr Taylor did not accept that the trees would be materially impacted by the use of the dock and the pruning for power lines.  That is a position that cannot be logically supported when you look at the canopies proposed on the landscape plan, the turning paths of the articulated vehicles and the distance to the power lines which will necessarily require pruning.”

(Transcript, closing submissions at [2])

65. Ms Reid affirms that it is the Council's position to encourage industrial development while balancing the impacts of that development and making sure that any adverse impacts can be dealt with on the site. She submits that on a site over 25,000 square metres, the Applicant has capacity to contain impacts within their site, which is not achieved by this application. Further on the evidence she argues the proposed development seeks a variation to Council’s DCP in circumstances were the objectives of the controls are not met. She seeks the Court to refuse the application on these grounds.

Consideration

66. It is the Court’s role under s 39 of the Land and Environment Court Act 1979 is to assess and determine the development application before it. I note that during the proceedings the experts and the parties provided evidence and submissions to the Court on the feasibility, benefits and dis-benefits of an alternative dock location in The Crescent. I am satisfied that the applicant has failed to establish that there is no other location within their site that additional loading could be provided. However, I have given weight to the analysis of Mr Coady in regards to the superiority of the proposed dock location in considering the broad objective of the zone and the planning controls to provide functional industrial space. I accept Ms Reid’s submission at paragraph [23] and have given a reduced weight, but not discounted entirely, the evidence of Mr Dalley on those grounds.

66. As noted at paragraph [4] I have determined that the proposed development has an unacceptable impact on the locality, is inconsistent with the provisions of the DCP, in particular Section 5.2: Light Industrial and the objectives of the relevant setback provisions at Section 5.2.3 (Setbacks), and on these grounds the application warrants refusal. Despite the potential positive economic benefits that may arise from the development, I am satisfied that on balance they do not outweigh the detrimental impacts to the streetscape of the locality and accordingly the appeal should be dismissed and the application refused

67. The reasoning supporting that conclusion is as follows:

1. I accept the submission of Mr Green that the objectives of the zone are a relevant consideration in the determination of the merits of the application (cl. 2.3(2) of LEP 2012). Relevantly for the IN2 zone those objectives require a broad consideration of the economic value of the efficient use of industrial land, the need to manage adverse impacts and create amenity.

2. In the relevant local planning controls it is a clear objective of the Council to: “improve light industrial development”, “encourage aesthetically attractive building forms”, and to ensure orderly development whilst maximising functional potential (refer paragraph [14(1)]).

3. I accept the evidence of Mr Nelson and Mr Dalgleish that the replacement planting is insufficient to offset the detrimental impacts of the development. I accept the submissions of Ms Reid at paragraphs [63] and [64] and prefer Mr Dalgleish’s evidence that, due to the siting and density of planting, there are concerns about the feasibility and effectiveness of the planting to screen and offset the detrimental impacts to the streetscape of an active dock in the front setback.

4. I am not satisfied there is certainty that the proposed landscaping will thrive and create an effective screen for the development. The space allocated to it is constrained in size and by and interface with both heavy vehicles and overhead electricity wires. In the absence of substantial and viable screening the detrimental impacts of an active dock to the streetscape and amenity of Vanessa Street is not mitigated.

5. Further the applicant relies on a variation to the applicable standards in the DCP. The consent authority is required to be flexible in considering reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development (s 4.15 3A(b) of the Act).

6. In this case, where a variation to the design solutions are sought by the application, I am satisfied that the performance criteria of the landscaping controls at PC5, in particular “preserves significant stands of trees” and “provides attractive areas which enhance the street character and amenity of buildings” are not achieved by the proposed landscaping or the insertion of an active loading dock in the Vanessa Street frontage. I accept the evidence of Mr Nelson (at paragraph [42]) that such a development is inconsistent with the streetscape of the locality.

7. I am satisfied, by reference to the DCP, at 5.2.3, that it is irrelevant to determine which of Vanessa Street or The Crescent is designated as the primary street frontage. This is because the relevant DCP control requires a specific 7.6m setback to both streets (refer paragraph [14(2)]).

8. The application seeks a variation to the required setback to allow for the structures to be located at a minimum setback of 900mm from the Vanessa Street boundary. On the evidence and my observation on the site view I am satisfied that the performance criteria at PC3: Setbacks is not achieved by the development. I find on the evidence that the proposed development fails to “provide a setback that enhances the streetscape and provides for landscaping” and to “allow for landscape screening to reduce the visual mass of buildings”.

69. Despite the positive economic benefits that may arise from the proposed development, namely the asserted improvement in viability of the existing industrial space, I am not persuaded that they outweigh the detrimental impacts.

Orders

70. The Court orders that:

1. The applicant is granted leave to rely on amended plans;

2. As agreed, pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondents costs thrown away by reason of the amended plans for the agreed amount of $3,140 within 14 days of these orders;

3. The appeal is dismissed;

4. Development Application DA/2017/0151 for the removal of seven trees, alterations and additions to an existing industrial building and creation of a new loading dock is refused;

5. The exhibits are returned with the exception of Exhibit 1, E, F and G.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 02 October 2018