Premier Customs Services Pty Ltd v Botany Bay City Council

[2008] NSWLEC 269

Set aside by Appeal: [2009] NSWCA 226

Land and Environment Court

of New South Wales

CITATION:

Premier Customs Services Pty Ltd v Botany Bay City Council [2008] NSWLEC 269

PARTIES:

APPLICANT:
Premier Customs Services Pty Limited

RESPONDENT:
Botany Bay City Council

FILE NUMBER(S):

10847 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Appeal :- on question of law from decision of a Commissioner - whether Commissioner failed to give proper, genuine and realistic consideration to provisions of a development control plan - the approach to examining decisions of Commissioners - the concept of proper, genuine and realistic consideration.

LEGISLATION CITED:

Botany Local Environmental Plan 1995
Environmental Planning and Assessment Act 1979 (NSW), ss 74C(1)(a), 79C
Land and Environment Court Act 1979 (NSW), ss 12, 39(2), 56A

CASES CITED:

Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Coles v Woollahra Municipal Council (1986) 59 LGRA 133
Farnworth Holdings Pty Ltd v Botany Bay City Council [2003] NSWLEC 177
Hewitt v Hurstville Council (2001) 119 LGERA 152
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Maygood Australia Ltd v City of Sydney Council [2007] NSWLEC 388
Perpetual Trustees (Australia) Ltd v Chief Commissioner of State Revenue [2001] NSWLEC 285
Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185
Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 295
Randwick Municipal Council v Crawley (1986) 60 LGRA 277
Roggiero v Valuer General (2008) 159 LGERA 411
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Toth v Campbelltown City Council (2002) 127 LGERA 1
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING:

10 September 2008

 
DATE OF JUDGMENT: 

25 September 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Ms H. Irish
SOLICITORS
Pikes Lawyers

RESPONDENT:
Mr T. Hale SC
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 September 2008

10847 of 2007

PREMIER CUSTOMS SERVICES PTY LTD v BOTANY BAY CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This is an appeal by Botany Bay City Council against a decision of a Commissioner of this Court. Such an appeal is limited to questions of law: s 56A Land and Environment Court Act 1979. The Commissioner allowed a merit appeal by Premier Customs Services Pty Ltd (Premier) against the council’s deemed refusal of Premier’s development application for a two storey industrial style building at 21 Bay Street, Botany, not far from Sydney Airport: Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185. The application described the development as “proposed offices and warehouse including on-site parking” to be used for a “boutique style air freight forwarder” involving the import and export of small-scale cargo.

2 In allowing the appeal, the Commissioner made the following order:

Development application No. 07/393 for a two-storey building for the purposes of an air freight forwarder (for the assembly, storage or land transport of air freight) at 21 Bay Street, Botany is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3 The single ground of appeal is that:

The Commissioner erred in failing to give proper, genuine and realistic consideration to the provisions of Development Control Plan No. 33 – Industrial Development ( DCP ) as required by s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 ( EPA Act ).

4 The approved development breaches the DCP in several respects. The Commissioner addressed the breaches. Nevertheless, the council’s complaint is that in approving the development notwithstanding the breaches, the Commissioner failed to give proper, genuine and realistic consideration to the DCP. The council’s primary focus is on the breaches of the DCP’s side setback controls of 3 metres on the eastern side (where the development adjoins a residential use) and 2 metres on the western side (where it adjoins a non-residential use).

The land

5 Compliance with the side setback requirements presents a problem for industrial development on this site because the site is narrow. It has a frontage of only 9.29 metres, a depth of 25.3 metres and an area of 214 square metres. The surrounding area consists of a mixture of older style residential dwellings and industrial/warehouse uses. Adjoining the site to the east is a single storey cottage that is positioned essentially on the common boundary: it has a residential use. To the south is a one and two-storey office and warehouse building. To the west is a single storey cottage of heritage significance (on a 16 metre wide site) that is positioned more than 10 metres to the west of the common boundary: it has a non-residential use.

The approved development

6 The ground floor of the proposed building will mainly comprise a loading dock and storage area. The first floor is to be used for associated office purposes. There are three car parking spaces: two are to be utilised by delivery vehicles and are in front of the loading bay; two are within the building's undercroft. In front of these spaces is a turntable to enable cars and delivery vehicles to enter and leave the site in a forward direction. Landscaped areas of varying widths are provided adjacent to the turntable close to the site's frontage and along much of the eastern boundary. Because the building is positioned on the western boundary of the site, there is no landscaping along this boundary other than the landscaping adjacent to the turntable.

Zoning

7 The site is zoned 4(a) - Industrial under the BotanyLocal Environmental Plan 1995. The 4(a) zone is the general industrial zone in the City of Botany Bay permitting, with development consent, a wide range of industrial uses. The primary objective of the zone is to ensure that development for industrial purposes is carried out in a manner that contributes to the economic and employment growth of the area. Concurrently, there is to be no adverse impact on the environment and amenity is to be improved. Notwithstanding the existence of numerous dwelling houses in the zone, residential development is prohibited.

The DCP

8 A planning authority may make a development control plan if it considers it necessary or desirable to (among other things) make more detailed provision with respect to development to achieve the purpose of an applicable planning instrument: s 74C(1)(a) EPA Act. In the present case the applicable planning instrument is the Botany Local Environmental Plan 1995.

9 The DCP, which came into force in 2003, applies to all development in the 4(a) industrial zone. The DCP states that it has been prepared in response to a number of issues which have arisen with industrial development within the City of Botany Bay. These issues include the interface between industrial and residential land uses.

10 Table 1 lists the five sections of the DCP and comments on each section. The comments on Section 3 – General Design Elements – include the following:

Guidelines – outlines the criteria that must be met by the development, although the means to achieve the criteria is to be determined by the applicant.

Controls – outlines the mandatory requirements that must be met by the development.

11 Among the objectives of the DCP are:

O3 To allow Council to guide the nature, scale and quality of development in the industrial areas.

O6 To minimise the impact of industrial development on residential areas.

12 Section 2 defines five precincts and makes provision for precinct controls. Table 1 includes the following comments on the precincts:

Each industrial precinct has a distinct character resulting from the physical characteristics, built form elements, land use activities as well as the allotment sizes within the precinct.

The issues of each precinct as well as the desired character of each precinct is outlined and any new developments, including alterations and additions to existing buildings shall as far as practical, enhance or be in keeping with the positive characteristics of the precinct

13 The subject land is in the Botany (West) Industrial Precinct. This precinct is in turn divided further for the purposes of analysing and identifying characteristics. The subject land is in the area described as “The area to the north of Hale Street”. That area, which includes Bay Street, is relatively small and is described as follows:

This area is characterised by industrial uses on single and relatively small (residential size) allotments, interspersed with residential uses.

Residential uses are located mainly along Bay and Erith Streets. Industrial uses include manufacturing and warehousing in industrial complexes. The streets are also generally narrow in width.

14 Each precinct has its own objectives and controls. The objectives of the Botany (West) Industrial Precinct include:

O5 To ensure that the industrial uses are compatible with adjoining residential areas.

The controls for this precinct include:
C4 Development is not to adversely impact on the surrounding residential areas.

There is then a box which refers to Section 3 of the DCP, “ particularly General Design Elements C4 – Residential/Non-residential Interface…” . That reference contains the following description:
The residential/non-residential interface is one of the major issues within the City of Botany Bay. Consideration needs to be given to the interface along side and rear boundaries in terms of privacy and amenity, especially where outdoor living spaces (balconies) are located along side and rear balconies.

The objective is stated as:
O1 To reduce the landuse conflict between residential and non-residential uses

15 Specific DCP controls breached by the proposed development are addressed below at [21] and following.

16 A Commissioner’s duty to give reasons is no less onerous than that of a judge: Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 at [11]; Roggiero v Valuer General (2008) 159 LGERA 411. However, it is wrong to examine a decision of a lay Commissioner as if it were written by a lawyer: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368 per Kirby P (McHugh JA agreeing). That is because under the legislative scheme Commissioners can be and mostly are – and in the present case was – appointed on the basis of their knowledge and experience in disciplines outside the law, such as town planning: s 12 Land and Environment Court Act 1979. Once upon a time Commissioners were described in that Act as “conciliation and technical assessors”. In Brimbella at 368 Kirby P (McHugh JA agreeing) held:

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament.

17 In Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138 Stein J quoted that passage in support of his opinion that: “what I call the “fine-tooth comb” approach should not be employed when examining the decisions of technical assessors for errors of law”. This “fine-tooth comb” proposition has been repeated many times in decisions of judges of this Court on appeals from decisions of Commissioners: e.g. Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Perpetual Trustees (Australia) Ltd v Chief Commissioner of State Revenue [2001] NSWLEC 285 at [6]; Hewitt v Hurstville Council (2001) 119 LGERA 152 at [29]; Toth v Campbelltown City Council (2002) 127 LGERA 1 at [17]; Farnworth Holdings Pty Ltd v Botany Bay City Council [2003] NSWLEC 177 at [17]; Randall Pty Ltd v Willoughby City Council [2004] NSWLEC 295 at [17]; Maygood Australia Ltd v City of Sydney Council [2007] NSWLEC 388 at [24].

Proper, genuine and realistic consideration

18 The council’s complaint is that the Commissioner did not give proper, genuine and realistic consideration to the DCP.

19 In considering a development application, a consent authority is obliged to take into consideration a range of matters as are of relevance to the development, prescribed by s 79C of the EPA Act, including any development control plan. So too is a Commissioner of the Court on a merit appeal, for the Commissioner then stands in the shoes of the consent authority: s 39(2) Land and Environment Court Act 1979. Mere advertence to a matter required to be taken into consideration is insufficient. The consideration must be “proper, genuine and realistic”; the leading case is Zhang v Canterbury City Council (2001) 51 NSWLR 589 (CA) at 601 [62], [64]. Whether proper, genuine and realistic consideration has been given is a question of law. However, the principle of ”proper, genuine and realistic” consideration stands perilously close to the precipice of merit review, which is impermissible in an appeal on a question of law such as this. Care must be taken not to topple into the precipice: cf Zhang at 601 [62]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 (CA) at 298 [79].

20 In Zhang, one of the objectives of a development control plan was to ensure that a brothel was located at a reasonable distance from sensitive land uses. One of its standards was that a brothel should not be located within 200 metres from a place of worship or a school. A development application for a brothel breached that standard. The council refused the application. A Commissioner of this Court allowed the applicant’s merit appeal. An appeal on a question of law was upheld by a judge of this Court, whose decision was affirmed in that respect by the Court of Appeal. Spigelman CJ (Meagher and Beazley JJA agreeing) held at 602-603 [75] – [77]:

75 The consent authority has a wide ranging discretion — one of the matters required to be taken into account is the public interest — but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a fundamental element in or a focal point of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.

76 In my opinion, the Commissioner did not take into consideration the standard contained in cl 4.0 of DCP 23. Rather, he substituted for the statutory requirement a different approach. The Commissioner posed the issue for his determination to be: The appropriateness of the location taking into account the proximity to the adjoining church, local schools and hotel . He resolved this issue on the basis that adverse impact upon land affected by the presence of a brothel had to be demonstrated in the legal proceedings before him. This approach could only be supported if the discretion was entirely at large, that is, that there were no standards of any character which the decision maker had to take into account. By adopting this approach, the Commissioner, in my opinion, proceeded on an impermissible basis.

77 There was a relevant and applicable standard which he was obliged to take into consideration . It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive standard in this way.

21 Breaches of the DCP’s side setback controls are the main focus of the council’s challenge on this appeal. Table 2: Setbacks and Section 3 Control C6 (under the heading “Environmental Amenity”) require:

(a) a 3 metre landscaped setback on the eastern side of the development, where it adjoins a residential use. This requirement is not met under the approved development. The Commissioner found that the actual setback of the building on the eastern side varies between 1.69 metres (for just over about half of the rear part of the building) and 3.21 metres;

(b) a 2 metre setback on the western side of the development where it adjoins a non-residential use. This requirement is not met under the approved development because the actual setback of the building on the western side is zero.

22 The council submits that:

(a) in accordance with Zhang , the Commissioner’s discretion was not at large and not unfettered. The DCP had to be considered as a fundamental element or as a focal point of the decision making process. The DCP had to be given significant weight: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254;
(b) in granting consent notwithstanding the breach of the 3 metre side setback to the east, the Commissioner did not take into consideration the DCP side setback standard. Rather, he “ substituted for the statutory requirement a different approach ” which “ could only be supported if the discretion was entirely at large, that is, there were no “standards” of any character which a decision-maker had to take into account ”: Zhang at [76]. This is not a case in which the Commissioner formed the view that little weight should be given to the DCP: Stockland at [92] – [93]. Rather, he simply disagreed with the DCP controls and standards, and so decided not to apply them;
(c) the Commissioner’s approach to the side setback control on the western boundary was similar. He exercised his discretion as if it were entirely at large. He dismissed the 2 metre side setback requirement because he did not accept it as a matter for concern: at [31] of the judgment. He did not agree with that standard. The relevance of the second sentence of [31] is far from clear.

23 The Commissioner addressed the side (and rear) setbacks at [21] and [27] – [31] of his judgment:

21 The design quality principles in DCP 33 relevantly include, the protection of the amenity of residential areas by the provision of buffer zones to protect the amenity of adjoining residential and non-residential land uses. One purpose of the setback requirements is to enable the provision of landscaping and buffers so that where new development adjoins a non-industrial use impacts are minimised. The DCP also requires that landscaping, including canopy trees, be provided to reduce the impact of car parking areas.

…

27 The side setback requirement is 2 metres but because the site adjoins a residential use (to the east) the requirement is 3 m. This requirement [is] not met because the actual set back of the building varies between 1.69 m (for just over about half of the rear part of the building) and 3.21 m. Taking into account the neighbour's objection it was submitted that the proposed two-storey building positioned close to the southwest corner of the site would adversely affect the existing residential property at 12 Erith Street. Whilst the building is set back slightly less than 1 m from the rear boundary, there is no set back from the western boundary resulting in the two-storey built form hemming in that property.

28 Mr Bas essentially concluded that these setbacks [were] insufficient and cause unsatisfactory impacts on the residential neighbours to the south and the east. These impacts are compounded because there is insufficient landscaping and the scale of the building is excessive.

29 Mr. Betros disagreed, explaining that the landscaped area far exceeds what is required and the proposed building, considering its low floor space ratio and its form and presentation would have an appropriately sympathetic relationship with its neighbours. This is to be a relatively benign land use, taking into account traffic generation and hours of operation. In his opinion there are no adverse consequences resulting from the non-compliance with the side setback requirement.

30 Any objective that seeks to protect the amenity of existing residential development must be considered in the light of the fact that the site and surrounding lands are zoned for industrial development. Whilst the site adjoins existing residential development, this is not (according to Map 6 Botany (West) Industrial Precinct ) a zone interface between industrial and residential zones. Hence the same level of amenity that existing residential development can expect in a residential zone cannot be expected in an industrial zone. In this context, I have been persuaded by the evidence of Mr Betros that no unreasonable impacts, particularly involving presentation, noise and privacy arise.

31 As for the zero setback on the western boundary I do not accept that this is a matter of concern. The building/site could, in time and if necessary, be consolidated with a possible redevelopment of the adjoining site that could include a new building that would abut/extend the proposed building.

24 In his conclusions at [33] – [35] the Commissioner wrote:

33 I am satisfied that this development is responsive to the objectives of the 4(a) zone in relation to economic and employment growth and the need to limit impacts on the environment and amenity. It is also responsive to the general objectives in DCP 33 that seek improvements in the environmental and aesthetic amenity of industrial areas and the minimisation of impacts from industrial development on residential development.

34 There can be no doubt, given the size of the site that this is a tight design but it nevertheless works and all of the proposed operations can be conducted on site. The streetscape presentation will be satisfactory. The proposed building will be seen from surrounding residential properties but any impacts will be within reason, taking into account that this is an area that is, in response to its zoning, expected to be progressively developed for industrial purposes. I recognize that the site area is less than would be required if subdivision were involved however, I have concluded that it is not too small for this particular proposal and in these circumstances; the issue of site consolidation does not arise.

35 Concerns were expressed that should this air freight forwarder fail, an expectation would arise to the effect that the building would be able to be used for other industrial purposes without complying with relevantly applicable standards. In my opinion, this is not a reason for refusal because any use of the site and building for a different purpose would require a development application that must be determined on its merits. In this regard I expect that an application for the use of this proposed building and its parking/loading arrangements for more conventional industrial purposes would, most likely, be unsuccessful because of its failure to comply with the associated parking/loading requirements. This is a risk that the owner/applicant takes by proceeding with the subject proposal.

25 The council’s criticisms tend, I think, to read [30] and [31] of the Commissioner’s judgment in isolation. In my view, they should be read in context adopting the approach described in [16] – [17] above. The judgment from [27] to [31] is concerned with the side and rear setbacks. The Commissioner considered the evidence of the council’s planner Mr Bas and the evidence of Premier’s planner Mr Betros and was persuaded by the latter. Mr Bas expressed concern about the impacts on residential neighbours to the south and east, but did not identify any impacts on the west. Mr Betros took a more holistic view of the proposed development, as did the Commissioner (including in his conclusions). Mr Betros explained that the landscaped area far exceeded what was required; the proposed building, considering its low floor space ratio and form and presentation, had an appropriately sympathetic relationship with its neighbours; and the land use was relatively benign (i.e. that of an air freight forwarder compared with many other industrial uses permitted in this zone by the DCP). In preferring Mr Betros’ competing view, the Commissioner did not fall into an error of law. As to the council’s criticism that the second sentence of [31] lacks clarity, that sentence is not inconsistent with DCP objective (O3 of B3 set out at [36] below) and, although it may not be particularly weighty, it shows no error of law. The council also criticises the third sentence of [30] but it seems to me to be factually correct and, in any event, to disclose no error of law.

26 The Commissioner did not forgive compliance with the DCP because he disagreed with it. The DCP was entitled to significant weight but its controls were not determinative. The Commissioner focused on the DCP side setback controls. He was entitled to have regard to the evidence as to actual effects of the proposed development and did not give determinative weight to the DCP side setback controls. Rather, he weighed up the DCP controls against other factors and concluded that the development was reasonable and should be approved notwithstanding that the DCP controls were not met. Unlike the Commissioner in Zhang, he did not resolve the issue on the basis that the development’s adverse impact upon land had to be demonstrated. Nor can I see that in any other way he approached the issue as if his discretion was entirely at large. I can see no error of law.

27 Accordingly, this ground of appeal fails.

28 The council’s submissions place less emphasis on other breaches of the DCP. Nevertheless, the council submits that the Commissioner also approached them as if his discretion was at large, as indicated in his judgment at [32] where he said:

In my opinion, taking into account that this is the general industrial zone, the proposed arrangement of built form, car parking and landscaping is a reasonable outcome and in terms of streetscape, the proposal will be appropriate.

29 The Commissioner addressed each of these other breaches in some detail elsewhere in his judgment.

30 The first of these breaches relates to a landscaping setback to the road. It is described in the council’s submissions as follows:

Bay Street is a non designated road. Table 2 requires that there be a landscaping setback of 3 metres to the road. C6 requires A continuous landscaped buffer strip shall be provided between the driveway and side boundaries. The buffer strip shall be a minimum of 2 metres, increasing to 3 metres where adjoining a residential land use. The buffer strip shall contain tall screen planting that retains foliage to the ground. Driveways central to the side shall be planted with avenue trees . The parking spaces and the turntable prevent this

31 The Commissioner addressed this breach in his judgment at [22] and [25]:

22 The relevantly applicable front setback (or building alignment) requirement is 9 m (including the landscape setback) for a new building. This control takes into account the existence of residential development in the 4(a) zone and allows lesser setbacks if the prevailing setback is closer than 9 metres . In this regard the proposed building is set back a little over 5.5 m at the second level. At the ground floor level it is set back a little over 12 m, (creating the car parking undercroft). In this context I note that there are other industrial developments further to the west that have 6 - 9 m setbacks. Residential developments to the east and west have setbacks of 2 – 3 m.
...

25 The landscape plan shows that about 25% of site area is available for landscaping, well in excess of the 10% required. It includes two canopy trees (Golden Rain Wattle trees 5 – 9 m), one close to the frontage and one halfway down the site. Other plantings in the front setback area and along the side boundary include mass plantings of dwarf Lily Pilly shrubs. The car parking and access areas are to be provided with turf/paving. The plans do not provide for any plantings along the rear setback area.

32 The next two breaches are described in the council’s submissions as follows:

(a) The car parking is at the front of the building and not, as required by the DCP, behind the buildings or at the side of the buildings and away from street frontages: B9, G5, B4;

(b) The unloading and loading is not at the rear and not separated from parking: B9, G4, B4.

33 As paragraph B4 of the DCP was not the subject of any contention or issue before the Commissioner, I do not propose to take it into consideration. Otherwise, these provisions of the DCP are as follows:

B9 Parking and Vehicular Access

Description
Industrial traffic has a great impact on residential areas within the City of Botany Bay. It is important that all servicing, loading/unloading and parking are provided on site for new development, and that with any change of use external impacts (such as traffic and car parking impact on the road networks) are minimised.

Objectives
O1 To encourage the provision of parking, vehicular access and servicing areas that are:
- integrated with the form and arrangement of buildings on site;
- suitably designed and landscaped to minimise large expanses of hard paving;
- pleasant, safe and provide shared working environment.


O2 To provide disabled parking where appropriate in accordance with the Council’s Access Development Control Plan.

O3 To provide opportunities for large developments to integrate with public transport services where appropriate.

Guidelines
…
G4 Separation is provided between service areas (loading/unloading) and parking.

G5 Parking and service areas are located behind buildings away from street frontages…

34 The Commissioner addressed these breaches in his judgment at [17] – [20]:

17 The design quality principles and requirements in the development control plans relevantly include the need for an efficient and safe on site system for manoeuvring, loading and unloading, and parking of vehicles including the provision of adequate off-street parking. The associated objectives require that these facilities be integrated with the proposed buildings and that they be suitably designed and landscaped to minimise large expanses of hard paving. Parking and service areas are to be located behind buildings away from street frontages. All vehicles are required to be able to enter and leave the site in a forward direction. The off-street parking DCP requires that the parking requirements for air freight forwarders are to be assessed on merit and should be supported by a traffic study.

18 The two traffic consultants (Mr. C. Hallam for the council and Mr. R Varga for the applicant) considered at length the issue of car parking, the loading dock and the associated manoeuvring areas including the vehicle turntable. Mr. Varga explained that in response to the parking DCP's requirement he had prepared a merit assessment of parking needs for air freight forwarders . This assessment identified the need for three parking spaces, including loading/delivery vehicles (together with the proposed loading dock) and that these have been provided in the proposal. Whilst Mr. Hallam considered that the proposed parking and loading/unloading arrangement would probably work (subject to the conditions described in the plan of management) it would be preferable for four off-street car parking spaces and a separately accessible loading dock to be provided in accordance with the requirements for factories and warehouses.

19 Mr. A Bas (the council's town planning expert) essentially agreed with Mr Hallam particularly in relation to the need for the building and the parking and a loading dock facilities to be able to be used for other land uses. Mr A Beetros (the applicant's town planning consultant) did not agree, explaining that it would be possible for the building and the parking arrangement to be utilised for other purposes permissible in the zone. It would also be possible for the site to be amalgamated at some future time with a neighbouring property and for a more comprehensive redevelopment to take place, utilising the (then) existing building.

20 As I have already indicated it is appropriate to deal with this application as an air freight forwarder and taking into account the conclusions reached by the traffic experts I am satisfied that the parking, loading and access arrangements as proposed would be satisfactory. Whilst I accept that it would be very difficult to utilise this development for industrial, warehousing or similar purposes (for failure to comply with for example the DCP requirements in relation to car parking), I do not accept that this is a reason to refuse this application for the reasons given by Mr Betros. I am also satisfied that although the car spaces are not located behind the building they are sufficiently integrated into the building. I also accept that the access driveway and manoeuvring areas are not unreasonably large, can be used as intended and, taking into account the proposed landscaping, the arrangement is satisfactory.

35 The next breach relates to access and is described in the council’s submissions as follows:

The site is a small sized allotment. It does not provide adequate access for all operations unless limited to the air freight forwarding business prescribed: B3, 01, 02, 03. The Commissioner specifically found this by saying whilst I accept that it would be very difficult to utilise this development for industrial, warehousing or similar purposes… [judgment para 20].

36 These provisions of the DCP are in the following terms:

B3 Site Area and Frontage

Description
There is a need to ensure that development provides adequate area so that all operations can be conducted on site and that any impacts are contained to the site.

Objectives
O1 To ensure that sites of new industrial developments are of a sufficient size to provide a functional and efficient area for building(s), vehicle parking and movement, landscaping and the storage of raw materials, finished products, trade waste and recycling bins;

O2 To ensure that all loading and unloading, turning movements, queuing, and parking of vehicles, including delivery vehicles associated with the new development occurs wholly within the site; and

O3 To encourage the consolidation of small-sized allotments in the established industrial areas so that they can achieve Objectives O1 and O2 above…

37 The Commissioner addressed this breach in his judgment at [34] – [35] (set out at [24] above). The council does not dispute that the small sized allotment provides adequate access for all operations if limited to the air freight forwarding business. The Commissioner’s order, set out at [2] above, limits the development consent to that use.

Decision

38 It can be seen that the Commissioner focused on all these breaches of the DCP and explained why, having regard to competing considerations, he was nevertheless satisfied with the proposal. He did so in a way which, in my opinion, was open to him on a merit review and discloses no error of law.

A general submission

39 The council’s written submissions also state that: “If the policy, objectives, guidelines and controls embodied in the DCP for the Botany (West) Industrial Precinct and as a whole are applied the development would be refused. The development is antipathetic to the DCP”. In my opinion, this submission is too wide and does not add anything.

Conclusion

40 In my opinion, for these reasons the appeal fails. The orders of the Court will be as follows:

1. The appeal is dismissed.

2. The respondent council is to pay the applicant’s costs of the appeal.

3. The exhibits, except Exhibit A before the Commissioner, may be returned.