Pet Carriers International Pty Ltd v Botany Bay Council
[2013] NSWLEC 1077
•03 May 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Pet Carriers International Pty Ltd v Botany Bay Council [2013] NSWLEC 1077 Hearing dates: 21,22 March 2013, written submissions 10 April 2013 Decision date: 03 May 2013 Jurisdiction: Class 1 Before: Brown C Decision: For Appeal No 11006 of 2012 the orders are:
1. The appeal is upheld.
2. Development Application No 10/078 to use the site for a pet transportation business at Unit 4, 16 Beresford Street, Botany is approved subject to conditions in Annexure A.
3. The exhibits are returned.
For Appeal No 10943 of 2012 the orders of the Court are:
1. The appeal is upheld.
2. The order issued under s 121B of the Environmental Planning and Assessment Act 1979 to cease the use at Unit 4, 16 Beresford Street, Botany for a " pet carrier transportation business" is revoked.
Catchwords: APPEALS: appeal against an order cease the use of the site for a " pet carrier transportation business" (10943 of 2012) - appeal against the refusal of development application to use the site for a " pet carrier transportation business" (11006 of 2012) - characterisation of use. Legislation Cited: Botany Local Environmental Plan 1995
Botany Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979Cases Cited: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302
Berowra RSL v Hornsby Shire Council (114 LGERA 345
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114
Egan & Ors v Hawkesbury City Council & Anor (79 LGERA 321
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289
Waugh Hotel v Marrickville Council 2009 171 LGERA 112Category: Principal judgment Parties: Pet Carriers International Pty Ltd (Applicant)
Botany Bay Council (Respondent)Representation: Mr J Van Aalst, barrister (Applicant)
Mr T O'Connor, solicitor (Respondent)
John Hertz and Associates (Applicant)
Houston Dearn O'Connor (Respondent)
File Number(s): 10943 of 2012, 11006 of 2012
Judgment
COMMISSIONER: These are two separate but related appeals in relation to the existing use of the premises at Unit 4, 16 Beresford Street, Botany (the site) for the delivery of companion animals from one location to another.
Appeal No 10943 of 2012 is an appeal against an order issued by Botany Bay Council (the council) under s 121B of the Environmental Planning and Assessment Act 1979 to cease the use of the site for a " pet carrier transportation business".
Appeal No 11006 of 2012 is an appeal against the refusal by the council of Development Application No 10/078 to use the site for a " pet carrier transportation business".
The site
The site has a 20 m frontage to Beresford Street and side setbacks of approximately 42 m giving a total site area of 815 sq m. A single storey industrial building with a mezzanine level is located on the site. Direct vehicular and pedestrian access is available from Beresford Street. Pedestrian access is also available from the common car park located at the rear of the building.
Development in the vicinity of the site comprises largely one and two-storey industrial buildings with some low density residential development to the north. Directly to the north is a similar sized building used as a talent school offering classes in dance, acting and singing.
The proposal
The proposed development is described in the applicant's town planner's report as:
The proposal is to use No. 16 Beresford Street as the head office for Pet Carriers International Pty Ltd. The company organises the delivery of companion animals (pets) from one location to another location. Animals are collected by the company then placed in a travel container and delivered directly to the nominated airline. The company also offers a direct 'house to house' transfer service in the Sydney Metropolitan area.
On occasions, particularly for international flights, an animal may need to stay in the building overnight. When this occurs, the animals will be stored in an acoustically treated pen and provided with sustenance and other requirements.
As the use is commenced, it can be observed that the majority of the ground floor is used for office accommodation. A total of five (5) staff are employed in the organising and administration of pet transportation throughout Australia and overseas. The hours of operation are between 8:30am and 5:30pm Monday to Friday (see Photograph 5).
The remainder of the ground floor will be used for parking of two cars and/or two small vans and a total of six (6) animal accommodation areas will be located in the centre and southern side of the site (see Figure 2). These animal accommodation areas will be acoustically treated.
The mezzanine level is to be partially used for the storage of carrying containers and is identified for future office expansion (see Photograph 6).
The dispute
The council maintains that the development application must be refused as the proposed development is prohibited.
The council also originally maintained that even if the proposed development was permissible it was unacceptable because of noise and car parking issues. However following further consideration by the experts it was agreed that noise could be addressed by a condition requiring the animal accommodation area to be acoustically treated to achieve a specific noise goal and on-site car parking could be addressed through the existing allocated 2 car parking at the rear of the site and 2 spaces within the existing building.
Relevant planning controls
The site is currently within Zone IN2 Light Industrial under Botany Local Environmental Plan 2012 (LEP 2012). Commercial premises are a prohibited use in this zone. The zone objectives are:
1 Objectives of zone
· 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.
Even though the site is currently zoned under LEP 2012, the development application was lodged and not determined prior to the coming into effect of LEP 2012 and as such cl 1.8A of LEP 2012 is relevant. This clause states:
1.8A Savings provision relating to development applications
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The planning instrument prior to be coming into effect of LEP 2012 was
Botany Local Environmental Plan 1995 (LEP 1995). The site was within Zone No 4(b) under LEP 1995. The zone objectives are:
Objectives of the zone
The primary objective is to ensure that development for industrial purposes is carried out in a manner which contributes to the economic and employment growth of the area and, in so doing, improves amenity and does not affect adversely the environment or give rise to unacceptable levels of risk in the area.
The secondary objectives are:
(a) to encourage development which does not affect adversely the efficient operation of the local and regional road system,
(b) to improve the environmental quality of the local government area by ensuring that industries conform to strict environmental and hazard reduction guidelines,
(c) to provide for retail and non-residential development which provides direct services to the industrial activities and their workforce, and
(d) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone.
Clause 10(3) states:
(3) The Council may only grant consent to the carrying out of development of land to which this plan applies if the Council is of the opinion that the carrying out of the development is consistent with the primary objective of the zone in which the development is proposed to be carried out. In granting consent, the Council must take into account other relevant objectives of the plan and the zone in which the development is proposed to be carried out.
If the use of the site is characterised as an "airport-related land use", it is an innominate use and is prohibited in the zone. An "airport-related land use" is defined in the Definitions as:
airport-related land use means a building or place used as an office or for other business or commercial purposes or industry related to Sydney (Kingsford Smith) Airport, and includes a building or place used for the provision of:
(a) services related to any of the following uses carried out at Sydney (Kingsford Smith) Airport:
(i) the assembly, storage or land transport of air freight,
(ii) the accommodation or transportation of air passengers by air or land,
(iii) the operation, maintenance or repair of aircraft or aircraft components,
(iv) the administrative functions associated with the airport, such as airport management and security,
(v) the functions of government departments and authorities related to air passengers and air freight, and
(b) services provided for hotel or motel guests, including banking, dry cleaning, hairdressing and the like, that are located within the confines of the hotel or motel building.
If the use of the site is categorised as "commercial premises", it is a use that is permissible, with consent, in the 4(b) zone. The definition of "commercial premises" is adopted from the Model Provisions by cl 6 of LEP 1995 and means:
"commercial premises" means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause.
The council submissions
Mr O'Connor submits that the use of these premises is for a commercial purpose related to Sydney (Kingsford Smith) Airport. There is a clear connection between the use, being the transportation of animals intrastate, interstate and overseas, and the airport, namely the collection of these animals and their transport principally to and through Sydney (Kingsford Smith) Airport. It is thus a commercial use related to Sydney (Kingsford Smith) Airport and is prohibited under the 4(a) zone. As the use is for the specifically defined purpose of an airport-related land use it is therefore not for the purpose of commercial premises
In the alternative, if the use could be seen as both for an airport-related land use and for commercial premises, consent can be granted if there is, in the plan and context, some appropriately compelling consideration for the departure from the ordinary and natural meaning of the terms (Egan & Ors v Hawkesbury City Council & Anor (79 LGERA 321 at 329). In Berowra RSL v Hornsby Shire Council (114 LGERA 345) under the Hornsby LEP 1994, "recreation areas" were listed as permissible with consent and all other purposes, which included "registered clubs", were prohibited. Justice Pearlman found that the use fell within both the definitions of recreation areas and registered clubs and went on to
find (at 30) there was no compelling consideration for departing from the ordinary and actual meaning of the defined terms. The use was found to be prohibited.
Airport related and uses are permissible with consent in zone 4(d) Industrial Special - Airport Related and zone 4(c2) Industrial Special - Airport Related - Restricted under LEP 1995 but are prohibited in any other zone. Other indicia are as follows:
- Clause 5(1)(f) of LEP 1995 that states:
(f) to provide for an appropriate balance and distribution of land for residential, commercial, retail, industrial, advanced technology enterprises, tourism, port-related and airport-related development and recreation, entertainment and community facilities.
- The primary objective of the 4(d) Industrial Special - Airport Related zone is "to permit the development of a wide range of uses which have a relationship to Sydney (Kingsford Smith) Airport.").
- The secondary objectives (a) and (b) of zone 4(d) that state:
(a) to ensure that any development which occurs is commensurate with the capacity of the road network in the vicinity,
(b) to ensure that development by the nature of its operations does not detrimentally affect the environment or the amenity of adjoining or adjacent residential premises, and
- The primary objective of the 4(c2) Industrial Special - Airport Related -Restricted zone is to provide for a range of development and land use activities that predominately have a relationship with Sydney (Kingsford Smith) Airport, together with encouraging other non-airport related uses.
- The secondary objective (a) objective of the 4(c2) Industrial Special - Airport Related -Restricted zone that states:
(a) to encourage airport-related land uses,
The proposed use is an airport-related use and is prohibited within zone 4(b).
If the Court disagrees, then the Court has to consider LEP 2012. The Court must determine the application as if the plan had not commenced but must afford weight to it as being imminent and certain. Mr O'Connor submits that it is imminent and certain having been gazetted and that considerable weight should be given to LEP 2012. The proposed use for these premises would come within the terms of "business premises" as defined in LEP 2012 being a service provided directly to members of the public on a regular basis. As such it is a "commercial premises" and is a prohibited use and the appeal should be dismissed.
The applicant's submissions
Mr Van Aalst submits that the various services described in the sub-clauses (a) (i) to (v) of the definition of airport-related land use have no relevance to the services provided by the applicant to its customers.
Further, the meaning of the words "related to" where it first appears in the definition should be understood in the context of the objectives of LEP 1995 and in particular the objectives of the zone No (4b) Mixed Industrial.
When properly understood and applied to the evidence in this case the purpose for which the applicant uses the premises does not fall within the prohibited use of an airport-related land use. In Waugh Hotel v Marrickville Council 2009 171 LGERA 112 at page 124 [50]) the phrase "in respect of and "in connection with" can have a meaning indicating any type of connection or relation between the two subject matters to which they refer. It was found that the precise meaning of the phrase in that case "relates to" when used in a statute "must be gathered from the context in which it is used."
The council relies on a tenuous connection between the purposes for which the applicant uses the premises to divine a relationship or connection with the Sydney airport so as to attempt to demonstrate the use by the applicant is prohibited. That connection being the instances when the applicant provides the service to its customers in Sydney of delivering pets in transport kennels or other suitable containers to the cargo agents at the airport. That service is not altogether different from a taxi or hire car in response to a radio booking delivering a passenger with luggage to that airport for a departure flight.
Mr Van Aalst submits that the business the applicant has conducted and intends to continue to conduct in the premises was and is as an office in which it respond to email or telephone inquiries from potential customers from anywhere in Australia or from overseas about arrangements which the applicant could make for the transportation by air of their pets either to destinations within Australia or to destinations overseas or to be exported to Australia from a foreign country. The applicant processes those inquiries and provides by email quotations and details about the transportation of pets to the required domestic or international destinations, from appropriate airports which could be anywhere in Australia, not specifically Sydney airport. Upon the applicant's quotation being accepted by the potential customer the applicant then makes the appropriate arrangements for the transportation of the pet(s) which are usually domestic dogs or cats.
Domestic jobs are those where the pet resides somewhere within Australia to be transported to a destination in Australia. International jobs involve inquiries either from potential customers in Australia or from overseas for the transportation of their pets to destinations in foreign countries. They can also involve inquires about bringing pets into Australia from foreign countries. The evidence demonstrates that only some of its business involves the delivery of pets in travelling kennels or containers by the applicant to Sydney (Kingsford Smith) airport. The applicant concedes that part of its business involves booking flights with various airlines on behalf of customers for either domestic or international jobs but not all of those flights concern using Sydney (Kingsford Smith) airport. It is submitted that the delivery of pets to the airport is only part of the arrangements to the main purpose of the business, which is the processing in the premises of the various arrangements needed to enable a pet to be transported from the appropriate airport, not merely the Sydney (Kingsford Smith) airport to the designated destination.
Mr Van Aalst submits that if the purpose of the use of the premises is found to be the provision to its customers of the services of arranging for the transportation of their pets by air is its primary purpose, and that the additional service concerning delivery to Sydney airport is merely incidental to its primary purpose then having regard to the principles and analysis of construction of the phrase "related to" or "in connection with" in Waugh', the definition of airport-related land use could not apply to the services provide by the applicant to its customers.
For these reasons, the purpose of the use of the premises is commercial premises and is a permissible use under LEP 1995.
The approach to characterisation
The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 for a supermarket. In Chamwell, a development application sought approval for a supermarket. The supermarket building was to be constructed on land that was zoned to permit the supermarket. An access road to the supermarket (and other features) was to be constructed on land with a different zoning that did not permit a supermarket however "roads" were a permissible use in that zone. His Honour found that the access road was part of the supermarket as it was "designed to serve the end of enabling the supermarket to be carried on" and rejected the application. His Honour includes the relevant cases on characterisation and relevantly states (at 27 and 28):
27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.
28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508.
His Honour further states (at 33 to 36 and 45):
33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different.
34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.
35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.
36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.
.
45 The characterisation of the purpose of development must also be done in a common sense and practical way...
The evidence
In determining the purpose of the business, the Court had the benefit of:
- the description in the applicant's town planner's report,
- two affidavits from Ms Soile Gendle, the sole director of the applicant company,
- an affidavit from Mr Kenneth Heikkinen, the general manager of the applicant company,
- an affidavit from Ms Amanda Green, a consultant employed by the applicant, and
- an affidavit from Ms Rebecca Hertz, a consultant employed by the applicant.
Mr Gary Shiels, the applicants town planner, describes the business as (exhibit C, p7):
The company organises the delivery of companion animals (pets) from one location to another location. Animals are collected by the company then placed in a travel container and delivered directly to the nominated airline. The company also offers a direct 'house to house' transfer service in the Sydney Metropolitan area.
The company website (petcarriers.com.au) describes the business as:
Pet Carriers International is an Australian owned & operated business which has been successfully operating for over 10 years in Pet Transport. We pride ourselves in providing the best possible Pet Transport service to your pet whilst travelling in our care. Your pet is guaranteed to be treated as one of our family.
Pet Carriers International are highly recommended for pet transport by many breeders, airlines and travel agents and are known as "the one to use when you want your pet to receive that extra special attention." We use the most direct routes and use only approved boarding kennel and cattery facilities. Pet Carriers International provide the highest possible standard of service for pet transport.
Ms Gendle describes the business as:
3. Pet Carriers' business is making domestic and international travel arrangements for pets. As part of the service it provides to its customers is the collection and delivery of their pets to or from the appropriate domestic or international airport, or to or from any other destinations throughout Australia or overseas as required by its customers (Exhibit A, p2, par 3)
22.The business operated by Pet Carriers is to make arrangements for the transporting of customers pets either throughout Australia, or to international destinations or to be brought to Australia from overseas (Exhibit A, p4, par 22).
Ms Gendle also provided a spreadsheet of all the jobs undertaken by the applicant company between 2 February 2012 and 28 February 2013 (Exhibit H). The spreadsheet indicated the number of jobs undertaken by the applicant company to be 843 for the 13 month period as well as the date of the job, where the pet came from, where the pet was to go, the number of dogs and the time the pet was held in the Sydney office. The analysis of the jobs, and which the parties generally agreed, was that the percentage of departing pets from Sydney (Kingsford Smith) Airport was 43% (and 57% from other locations) with 18% arrival of pets into Sydney (Kingsford Smith) Airport (and 82% from other locations).
Mr Heikkinen describes his role in the business as (Exhibit B, pars 14,15 and 16):
14. My duties as the general manager include supervising the staff of consultants. I organise the purchasing of the containers for the pets, and I also respond to email inquiries from customers about transporting their pets either within to Australia or for international deliveries.
15.I also assist dealing with inquiries from overseas for the importation of pets to Australia and arranging the bookings and the pick-up and delivery of Pets either from or to their owners' homes in the Sydney metropolitan area and deliveries directly to the cargo agents at Kingsford-Smith airport.
16. In addition to the two consultants presently employed we also employ a permanent driver Dan Hansen who drives one of our vans and his duties include collecting pets from the customers' homes, delivering pets if necessary to our premises to prepare them for either their domestic or international flights. He also attends at Sydney airport on the occasions when a pet arrives in Sydney to be delivered to an address in Sydney. Mr Hansen occupies the small office on the ground floor near the entrance from Beresford Street.
Ms Hertz describes her role in the business as (Exhibit E, pars 2,3 and 7):
2. My duties involve responding to inquiries about international transporting of pets to and from Australia and processing the travel arrangements on behalf of clients who request Pet Carriers to provide its services for them. The pets include mainly dogs and cats and sometimes birds.
3. Most of my work involves responding to requests for quotations, providing quotes and information required to be supplied by customers before their pets can be either sent by air travel to destinations overseas or to be imported into Australia.
.
7. In addition, when all of the formalities for the transportation of the pet has been arranged, and the date of departure confirmed by the airline and an airways bill is issued by Hellman's which is the ticket for the flight, I then arrange with the customer whether their pet is to be sent directly to the airport from their home, or if it is necessary for the pet to be brought to our premises to be placed in a travel container for delivery to the appropriate cargo agent at Kingsford-Smith Airport.
Ms Green describes her role in the business as (Exhibit D, pars 2 and 3):
2. My duties involve making arrangements for the transport by air of pets throughout Australia which we refer to as being domestic arrangements to distinguish them from international travel.
3. The usual initial communication with Pet Carriers for domestic travel arrangements is by email or by telephone. To carry put my duties I have allocated to me a desk, a computer and telephone, I also have access to the office printer and fax machine.
Findings - what is the purpose of the activities on the site?
The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose.
Based on the findings in Chamwell and the descriptions of the activities associated with the business, I am satisfied that the purpose of the business is best described as a pet transportation business. Consistent with Chamwell, this is a general description and adopts a commonsense practical approach to the range of activities described by the operators of the business.
Also consistent with Chamwell, a purpose may have different uses and these uses can serve the same purpose. In this case, the uses include the administration and clerical functions, such as dealing with enquiries, preparing quotes, making bookings, transportation of pets, if necessary overnight accommodation of pets and storage of pet containers. These are clearly uses that serve the purpose of a pet transportation business.
While some travel arrangements utilise Sydney (Kingsford Smith) Airport, this is not the only means of transport used by the company. The use of Sydney (Kingsford Smith) Airport is part of one of the different uses that enable the pet transportation business to operate. The samples of activities carried out by the applicant company provided by Ms Gendle indicates that 43% of departing pets utilise Sydney (Kingsford Smith) Airport and only 18% of inbound pets use this airport. The applicant's web site promotes domestic travel, as well as international level, between all states in Australia and not necessarily Sydney (Kingsford Smith) Airport. This is consistent with the sample of the activities carried out by the applicant company.
For the reasons mentioned in the preceding paragraphs, I am satisfied that the purpose of pet transportation business is not an "airport-related land use" but a "commercial premises" under LEP 1995 and as such is a permissible use.
Botany Local Environmental Plan 2012
The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states (at 6 and 7) that:
6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the new zone and whether the proposed development will undermine the objectives of the zone.
In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, how is the proposed development characterised under the draft LEP and whether the proposed use is prohibited or permissible and thirdly, whether the proposal undermines the expressed future planning objectives for the area in the draft LEP.
In this case, LEP 2012 must be imminent and certain as it has been gazetted and consequently should be given significant weight although it does not follow that the application should be automatically refused as "commercial premises" are prohibited within Zone IN2 Light Industrial. To do so would be to give no weight to the savings provisions in cl 1.8A.
The question to be answered is whether the proposal undermines the expressed future planning objectives for the area in LEP 2012. While it is unlikely that the proposed development would be consistent with the expressed future planning objectives for the area because it is a prohibited use, I am satisfied that the degree of inconsistency does not support the refusal of the application for a number of reasons . First, the physical appearance of the building is not to be changed and remains industrial in character. Second, some uses associated with the purpose of providing travel arrangements for pets have an industrial character such as the temporary accommodation of pets, transportation of pets and storage of pet containers. Third, the acoustic treatment of the overnight holding areas for pets minimises any adverse effect of industry on other land uses such as the adjoining talent school.
In any event, it has been argued that the words "the application must be determined as if this Plan had not commenced" in cl 1.8A mean that LEP 2012 has no legal status because it directs that LEP 2012 has not been advertised or commenced and as such is not a relevant consideration under s 79C(a)(i) or (ii) under the EPA Act (Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302).
Pursuant to cl 10(3), I am satisfied that the carrying out of the development is consistent with the primary objective of the zone and having taken into account other relevant objectives of the plan and the zone there is no reason why development consent should not be granted.
Conditions
A number of conditions remain in dispute between the parties. These are:
Deferred commencement condition A
This deferred commencement condition requires a kennel design to provide an acoustic enclosure around all pens and an internal corridor, with a single access point into the enclosure. A noise transmission test of the common wall between 14 and 16 Beresford Street is to be conducted (i) and details of all acoustic treatments to the enclosure are to be determined following the wall sound transmission test (ii).
The council maintains that the deferred commencement condition is appropriate, as the transmission test will determine the specific noise attenuation measures whereas the applicant maintains that the acoustic experts have agreed that the acoustic treatment of the kennel can be achieved and that noise transmission test will only determine the design rather than whether it can be achieved. On this basis, an operative condition is appropriate.
I agree with the applicant's position on Deferred commencement condition A but with some minor drafting changes for clarity (see condition 9).
Condition 13
This condition seeks to limit the number of employees to 5 as a greater number of employees will have an unacceptable impact on the amenity of the neighbourhood. The applicant opposes the limit to 5 employees as it would limit any future expansion of the business and be inconsistent with the zone objective to provide employment opportunities. It would also be impractical to lodge a modification application each time a new employee was contemplated. A limit of 8 employees would be acceptable to the applicant.
I agree with the applicant's position on condition 13.
Condition 25(a)
This condition requires all wastewater from the kennels to be disposed of in a Sydney Water approved sewer. The applicant opposes this condition on the basis that it is unnecessary as the average occupancy is 1.2 to 1.5 dogs per week kept overnight. This more akin to a normal domestic situation. The applicant maintains that condition 25(b) that requires all solid wastes are to be double bagged and disposed of by a commercial waste contractor on a regular basis. Is adequate to deal with waste from the kennels.
I agree with the applicant's position on condition 25(a).
Condition 4 was not raised as a disputed condition however I do not accept that it is appropriate in the circumstances of this case.. Condition 4 states:
4. This consent is limited to a twelve (12) month period from the date of issue. A subsequent development application shall be submitted to Council for assessment to continue the use beyond the twelve month period.
While there are times when a time limited consent is appropriate, such as when potential amenity impacts need to be reviewed or there is a likely future significant change to the planning regime affecting a site, I do not understand there to be any substantive reason that could justify a time limited consent in this case. Potential noise impacts are addressed by the acoustic enclosure and the adjoining and nearby land uses are industrial in nature and are likely to stay that way under LEP 2012. As there is no basis for condition 4 it can be deleted.
Orders
The orders of the Court for Appeal No 11006 of 2012 are:
1. The appeal is upheld.
2. Development Application No 10/078 to use the site for a pet transportation business at Unit 4, 16 Beresford Street, Botany is approved subject to conditions in Annexure A.
3. The exhibits are returned.
The orders of the Court for Appeal No 10943 of 2012 are:
1. The appeal is upheld.
2. The order issued by Botany Bay Council under s 121B of the Environmental Planning and Assessment Act 1979 to cease the use of at Unit 4, 16 Beresford Street, Botany for a "pet carrier transportation business" is revoked.
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G T Brown
Commissioner of the Court
Decision last updated: 07 May 2013
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