Tim Shellshear and Associates v Warringah Council and AMP Capital Investors Limited
[2012] NSWLEC 1097
•18 April 2012
Land and Environment Court
New South Wales
Case Title: Tim Shellshear & Associates v Warringah Council & AMP Capital Investors Limited Medium Neutral Citation: [2012] NSWLEC 1097 Hearing Date(s): 15-16 March 2012 Decision Date: 18 April 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION; consistency with desired future character, weight to be applied to planning instrument that has commenced, public interest Legislation Cited: Environmental Planning and Assessment Act 1979;
Standard Instrument-Principal Local Environmental Plan
Warringah Local Environmental Plan 2000;
Warringah Local Environmental Plan 2011;Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279;
Edward Listin Properties v North Sydney Council (2) [2000] NSWLEC 181;
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289
Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181;Texts Cited: Employment Lands for Sydney Study;
Draft North East Sub-Regional Strategy; Metropolitan Plan for Sydney 2036.Category: Principal judgment Parties: Tim Shellshear & Associates (Applicant)
Warringah Council (First Respondent)
AMP Capital Investors Limited (Second Respondent)
Representation - Counsel: Counsel
Mr R Lancaster SC (Applicant)Mr P Tomasetti SC (Second Respondent)
- Solicitors: Solicitors
Freehills (Applicant)Ms J Reid
Wilshire Webb Staunton Beattie (First Respondent)Gadens (Second Respondent)
File number(s): 11198 of 2011
JUDGMENT
This is an appeal against the refusal of DA No. DA2011/0892 by the Sydney East Region Joint Regional Planning Panel (JRPP). The application proposed the demolition of all existing buildings and structures on the site and the construction of a two-storey Medical Centre and Day Surgery Building above a basement carpark and associated landscaping works at 10-12 Dale Street, Brookvale.
AMP Capital Investors Limited had been granted leave by the Court to be joined as a party to the proceedings. Its contentions in the case are the effect of the development being prohibited under Warringah Local Environmental Plan 2011 and whether it is consistent with the objectives of the IN1 General Industrial Zone under that Plan, whether the development complies with the Desired Future Character of the locality pursuant to Warringah Local Environmental Plan 2000, whether the site is suitable for the proposed development, whether the proposal is consistent with the State Government's strategic planning policies and is in the public interest.
Contentions in relation to flooding and traffic and parking had been raised in an earlier conciliation conference however were not pressed in these proceedings.
Background and the proposal
The site is within the Warringah local government area and Warringah Council had recommended approval of the application to the JRPP. That recommendation was not adopted and the application was refused. The applicant lodged the appeal and the Council advised the Department of Planning however it declined defending the Panel's decision. The council did not raise any contentions in the proceedings, did not file any evidence (other than a bundle of planning documents, a Statement of Facts and draft consent conditions) or expert reports and participated primarily as an observer providing assistance to the Court as required. The draft conditions of consent are agreed to be appropriate in the event that consent is granted.
AMP has an interest in the Warringah Mall shopping complex. Shellshear is the architect for a company that currently leases premises within the Mall site as a medical centre and is proposing to relocate its practice to the site the subject of the application.
The original application was lodged with the council on 14 July 2011 and proposed the demolition of all existing buildings and structures on the site and the construction of a two storey medical centre and day surgery building with associated landscaping works with one level of basement car parking.
The development would comprise, according to the Council statement of facts, the following:
·Basement car park, including 41 staff car parking spaces, lift access from that basement to the ground floor level;
·A day surgery comprising two theatres, associated administrative, preparatory, waiting and recovery areas, with access from and Dale Street, 89 car parking spaces and one bicycle parking space, waste storage area, vehicle delivery bays and driveway access at ground level;
·At first floor level the development includes a dental clinic with four surgical rooms, laboratory, sterile room and reception, a physiotherapy clinic with five treatment rooms, a radiology clinic, eye specialist clinics, 21 consulting rooms for general practitioners, a chemist, staffroom, general treatment rooms and an administration area with four waiting room areas.
The day surgery would operate Monday to Sunday from 7 am. to 8 pm. whilst the other users on the first floor level would operate Monday to Sunday from 7 am. to 10 pm.
The statement of environmental effects submitted with the application notes that the medical centre will employ approximately 40 staff on a full-time basis during Monday to Friday, with specialist doctors visiting on a regular basis seven days a week
The site and locality
The site is located on the western side of Dale Street, encompasses four allotments, is known as 10 -12 Dale Street and has a total area of 4046.4 square metres. The site is generally flat with an approximate 1.7 m for along Dale Street towards the south.
The combined site area currently accommodates a one-storey industrial workshop, two storey factory building, storage shed, an at-grade carpark and a vacant allotment at its southern end.
The adjoining developments to the north and south of the site are one and two storey industrial buildings, with a range of light industrial, warehouse, distribution, commercial and retail uses in proximity to the site.
The Court, in the company of the parties and their experts, undertook a view of the subject site and walked around the locality including south to the existing medical Centre within the Warringah Mall shopping complex, returning to the site then proceeding north along Dale Street to Old Pittwater Road, south along Green Street into Cross Street and back to the site. Prior to the view I had driven around the area generally bounded by Pittwater Road, Roger Street and the circuit of Old Pittwater Road in order to gain an understanding of the immediate locality.
In addition to a number of light industrial uses, the site is in proximity to a range of premises used for non-industrial purposes including a nursery, swim school, fruit and vegetable grocer, waste and metal recycling facilities, smash repair and car repair workshops, warehousing, a Salvation Army store and a children's party centre. A recently completed three and part four level building above a two basement level carpark to the north of the site was inspected during the site view. That building is used primarily as office suites. The building comprises a number of separate tenancies, including medical and other professional businesses. That site, 18- 22 Dale St, was developed in accordance with the Council's consent 2001/0283DA which authorised the construction of a three and part four storey industrial, warehouse and office building with two levels of basement car parking and associated landscaping. From the evidence provided to the court in Exhibit A1, it is apparent that that consent had been modified on a number of occasions and that approval has also been granted to the strata subdivision of the building. Of particular relevance to the application is a modification approved by the Council on 15 January 2002, which added condition of number 72 to the consent that condition states:
Occupation of the approved a building for the purpose of an office will not require separate development consent from council provided that the use of any office premises is confined to a maximum of one nominated unit space, as identified in the drawings stated in condition No 1 of this consent
The planning controls
At the time the application was lodged the site was located within the G10 Brookvale Industrial West locality as defined under Warringah Local Environmental Plan 2000 (LEP2000). The desired future character (DFC) statement for this locality is as follows
The Brookvale Industrial West locality will remain an industrial and employment centre incorporating industries, warehouses and ancillary service uses.
New development or significant redevelopment will be designed to incorporate landscaping to soften the visual impact of industrial buildings and their associated parking and other paved areas as viewed from the street.
At the interface of the locality with adjoining and adjacent residential areas, buildings will be sited and designed and the use of land managed to minimise interference with the amenity of such residential areas.
Allotments are to be consolidated where necessary to ensure the development of one allotment will not render an adjoining allotment unsuitable for development.
Category One uses in the locality are industries and warehouses and development for the purposes of brothels, child care centres, community facilities, hire establishments, housing (where used in conjunction with industries or warehouses), motor showrooms, offices, places of worship, recreation facilities, registered clubs, restaurants, shops (those which sell equipment, machinery or materials used by an industry or trade, including builders' supply and hardware establishments, or which sell goods manufactured on the same land as the industry producing them), service stations, vehicle body repair workshops, vehicle repair stations. Other buildings, works, places or land uses that are not prohibited or in Category 1 or 3 are Category 2 development.
The proposed development seeks to operate a medical centre pursuant to the dictionary section of LEP2000 and accordingly would be classified as a category 3 development in this locality.
The G10 locality statement also includes built form controls for building height (maximum 11 metres), front building setbacks (4.5m minimum) and subdivision. General Principles of Development Control are also contained in LEP2011. There is no dispute between the parties that the development satisfies these controls, however, it is noted that the height control is exceeded and has been found by the council to be acceptable. Breach of the height controls in not a contention in these proceedings.
Clause 12 of LEP2000 requires that before granting consent for development, a consent authority must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
(b) any relevant State environmental planning policy described in Schedule 5 (State policies)and will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.In addition, before granting consent to Category 2 and 3 development, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,
A note is included at the end of this clause which states:
Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.
To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality.
Clause 6(2) of LEP2000 clarifies the purpose of the note and states:
Notes, copies of charts and diagrams inserted in this plan, and the list of its contents, are explanatory and do not form part of this local environmental plan. They are provided to assist understanding. However, the Dictionary and Appendices are part of this plan.
Clause 15 is particularly relevant to the application and relates to category three development. This clause states:
(1) Consent may be granted to development classified as Category Three only if the consent authority has considered a statement of environmental effects that includes the items listed in Schedule 15.
(2) The consent authority must not grant consent to an application that includes development classified as Category Three unless the consent authority has considered the findings and recommendations of an independent public hearing into the application, including reasons for its recommendations.
(3) The independent public hearing is to be convened by the Council or its delegate. The purpose of the independent public hearing is:(a) to provide a forum for allowing interested parties an opportunity to be heard openly by an independent panel, and
(b) to undertake an independent assessment of the proposed development classified as Category Three.(4) An independent public hearing is to be convened and conducted, and make findings and recommendations, in accordance with such procedures as may be determined by the Council.
(5) Nothing in this clause affects any right of appeal conferred by section 97 of the Act.Warringah Local Environmental Plan 2011(LEP2011) was gazetted on 9 December 2011 and has commenced. Clause 1.8A provides a savings clause which states:
If a development application has been made before the commencement of this Plan in relation to land to which the Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan has not commenced.
Relevant aims of LEP2011 are:
(b) to recognise the role of Dee Why and Brookvale as the major centres and employment areas for the sub-region,
(c) to maintain and enhance the existing amenity and quality of life of the local community by providing for a balance of development that caters for the housing, employment, entertainment, cultural, welfare and recreational needs of residents and visitors,
(e) in relation to non-residential development, to:(i) ensure that non-residential development does not have an adverse effect on the amenity of residential properties and public places, and
(ii) maintain a diversity of employment, services, cultural and recreational facilities,(f) in relation to environmental quality, to:
(i) achieve development outcomes of quality urban design, and
(ii) encourage development that demonstrates efficient and sustainable use of energy and resources, and
(iii) achieve land use relationships that promote the efficient use of infrastructure, and
(iv) ensure that development does not have an adverse effect on streetscapes and vistas, public places, areas visible from navigable waters or the natural environment, and
(v) protect, conserve and manage biodiversity and the natural environment, and
(vi) manage environmental constraints to development including acid sulfate soils, land slip risk, flood and tidal inundation, coastal erosion and biodiversity,(g) in relation to environmental heritage, to recognise, protect and conserve items and areas of natural, indigenous and built heritage that contribute to the environmental and cultural heritage of Warringah,
(h) in relation to community well-being, to:(i) ensure good management of public assets and promote opportunities for social, cultural and community activities, and
(ii) ensure that the social and economic effects of development are appropriate.The site is zoned IN1 General Industrial under LEP2011 and a medical centre (a type of health services facility) is prohibited in that zone. The objectives of the IN1 zone are:
•To provide a wide range of industrial and warehouse land uses.
•To encourage employment opportunities.
•To minimise any adverse effect of industry on other land uses.
•To support and protect industrial land for industrial uses.
•To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
•To enable a range of compatible community and leisure uses.
•To maintain the industrial character of the land in landscaped settings.
The issues
The contentions in the case, all of which are raised by the second respondent, are:
(1)The proposed development is prohibited development pursuant to Warringah Local Environmental Plan 2011;
(2)The proposed development is inconsistent with the objectives of the IN1 general industrial zone pursuant to Warringah Local Environmental Plan 2011;
(3)The proposed development does not comply with the desired future character of the locality pursuant to the Warringah Local Environmental Plan 2000;
(4)The site is unsuitable for the proposed development pursuant to s 79C(1)(c) of the Environmental Planning and Assessment Act;
(5)The public interest is not served by the proposed development.
The evidence
Expert planning evidence was heard from Mr Sanders for the applicant and Mr Ingham for the second respondent.
Contention 1
Mr Ingham said that because there is no uncertainty as to the imminence and certainty of the making of Warringah LEP2011 and that the proposed use is now prohibited under the provisions of that plan the weight to be applied to that fact should have regard to Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, and in particular determination of whether the use as a medical centre would be antipathetic with the aims and objectives of that Plan. It is Mr Ingham's opinion that the proposed medical centre will be antipathetic to the existing and proposed development in the Brookvale Industrial G10 locality, that the facility is of a significant sub-regional scale and is not suited to the industrial zone. He says such developments are generally located in residential or commercial zones because they are not compatible with the noise, vibration, dust, fumes, odours, grit, oil and heavy vehicle traffic generated by uses in industrial zones. With reference to Edward Listin Properties v North Sydney Council (2) [2000] NSWLEC 181 and Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181, he concludes that the making of Warringah LEP2011 is both certain and imminent and that the proposal, being prohibited, if approved will undermine the expressed future planning objectives of the IN1 zone.
Mr Sanders disagreed and remains of the view that it is incorrect to assert that the proposed development is prohibited under Warringah LEP2011 in the context of the savings provision of clause 1.8A.
Contention 2
Mr Ingham says that the proposed use is not an industrial or warehouse land use and therefore, whilst the objectives do not prohibit other land uses in the IN1 zone, there is a concentration of uses in the locality that are clearly industrial and warehouse uses and the fact that the use is prohibited, indicates that it is not a use seen as being appropriate in that zone. Whilst acknowledging that the use would generate employment, he says that it has not been demonstrated that it will generate any more employment than a conforming use and in his opinion objective 2 must be read in conjunction with the other objectives of the zone and if this is done, will be seen that encouraging employment opportunities is effected by the development of permissible uses.
Mr Sanders disagreed and is of the view that the proposed development is not inconsistent with the objectives of the IN1 General Industrial zone and says a key component of the underlying planning objectives is to provide employment opportunities in appropriate locations to, amongst other things, minimise the need for people to have to travel long distances to work and to promote a diversity of employment opportunities. In this context, he says the proposed development may be described as an employment based, non-residential use rather than as other non-industrial or warehouse uses. In this broader employment context, it will encourage a mix of highly skilled medical specialists, together with associated administrative staff, creating opportunities for employment in a range of industry sectors. He also considers it pertinent to note that the employment in question is generated in a specific sector, which achieves strategic and local objectives relating to employment generation in a manner that does not involve land uses such as commercial or retail, which might otherwise compromise other relevant land use planning objectives.
Mr Ingham says that it is foreseeable that there would be an adverse effect of industry, either existing or potential, on the proposed health services facility. He cited the range of uses in the Dale Street, which include panel beating, spray painting, waste transfer and recycling centres and says that these uses are not compatible with a use where patients will be having day surgery and surgical procedures. Mr Sanders' view is the nature of the operation is such that will not generate any adverse noise or odour impact unlike some industrial businesses, and it would not have any adverse impacts on any industrial or other land use. In his view the operation of the proposed medical centre will not be compromised by existing and likely future land uses in the vicinity of the site
Mr Ingham says that the approval of the proposed use would not "support and protect" the industrial land for industrial uses, and will take up land intended to be used for industrial purposes and potentially make it more difficult for industrial uses to develop in the area. He says this is contrary to be Employment Lands for Sydney Study, the draft North East Sub-Regional Strategy and the Metropolitan Plan for Sydney 2036. He says, the exclusion of a number of uses, which were permissible within the G10 localities from being permissible when LEP2011 was made, lends weight to the conclusion that the Minister for Planning and Warringah Council were implementing the policy directions set out in those strategic planning documents.
Mr Sanders notes at a range of non-industrial uses permissible with consent in the IN1 zone, include freight transport facility, hardware and building supplies, place of public worship, recreation facility (indoor), self storage units, storage premises, telecommunications facility, timber yard, transport depot, truck depot, vehicle sale or hire premises, warehouse distribution centre and wholesale supplies and accordingly, it his view that this objective must be considered having regard to the wider provisions of the plans and its overall objectives. Furthermore, he notes the subject site represents only 0.4% of the total of 103.7 ha of land is zoned General Industrial IN1 in the Brookvale area.
Mr Ingham acknowledged that the General Industrial zone allows uses other than industry and warehousing to be developed where they " provide facilities or services to meet the needs of workers in the area". He said a sandwich shop or refreshment room would meet such needs however, a major supermarket or a large health services facility (which would service the whole Manly/Warringah Peninsula and beyond) is not to provide such a facility other than in coincidental way. That is because the development would not be providing a service to meet the needs of workers in the area, although a worker who coincidentally worked nearby may visit a doctor there but so too workers and non-workers alike from all over the subregion would come to the facility. Mr Sanders notes that the proposed development will provide day surgery, general medical and specialist facilities and would provide an essential medical service to the workers in the area.
Mr Ingham says the proposed development is not a community or leisure use, and therefore that objective is irrelevant to the present appeal. However, the fact that a health services facility is prohibited in the IN1 General Industrial zone is a clear indication that its objective is not referring to this type of use. Mr Sanders says that the proposed development will provide an important community service that is compatible with the existing land use and built form along Dale Street and, in his view, is in the public interest that a facility providing care to the local community as well as others further afield is able to continue operating in the area. He says it is also in the public interest that the proposed development be approved because, while it would not provide an emergency service, the medical centre will see a number of patients who may otherwise require treatment in hospital emergency departments so he says the proposed use represents a compatible form of community use.
Mr Ingham says the proposed development does not maintain the industrial character of land and is antipathetic to any intention of maintaining industrial uses, and that whilst it will provide some landscaping the primary objective is " to maintain the industrial character of the land". In Mr Sanders' view the proposed building has a visual character and scale that is consistent with modern industrial settings and that an appropriate landscape setting will be provided.
Mr Ingham concludes that the proposed development does not satisfy the objectives of the IN1 zone and while it may be possible to suggest that providing employment satisfies the second objective, in his opinion, it must be read in conjunction with the uses that are permissible in the zone. It is Mr Sanders' view that it is also important to consider the broad objectives of LEP2011, and in this context and in the context of the other matters addressed in his Statement of Evidence (Exhibit C) he concludes that the proposed development is not inconsistent with the relevantly applicable broader objectives of that plan.
Contention 3
In assessing the DFC for the G10 locality, Mr Ingham says that the proposed use is not consistent with the expressed strategic planning position as it is not an industry, warehouse or an ancillary service use and whilst he contemplates circumstances where a use other than those discrete uses could be considered compatible, he does not see such a circumstance applying which could justify the proposed medical centre being within this zone on this site. He says "incorporating " could be translated as "embodying" or "combining into one body" those uses and that it is not intended that a health services facility can be added to those uses which are specified.
Taking a contrary view, Mr Sanders notes that the land use table in LEP2000 for Locality G10 permits a wide range of employment-based and industrial-based uses which are not necessarily ancillary to industry or warehouse uses such as offices and vehicle body repair shops (Category 2) and animal boarding establishments and retail plant nurseries (Category 3). He also contends that the proposed medical centre will meet the healthcare needs of the wider community in an appropriate and convenient location, which is well served by public transport. He says, the fact that the medical centre could also be used by patients outside locality G10 does not mean that it is prohibited development, and in his opinion, is consistent with the DFC.
To the extent that the proposed development will involve the formal consolidation of four separate but adjoining allotments, it is Mr Sanders' understanding that such consolidation will not bring any adjoining allotments unsuitable for development. He also notes that there is presently no landscaping on the site, and that the proposed development incorporates extensive landscaping within the front building setback on Dale Street in accordance with the DFC. It is his opinion that the proposed contemporary building and the landscaping will improve the existing interface between the public domain on the site and that the development is consistent with the objective of ensuring that the area continues as an employment centre.
The experts have different opinions in relation to the range of uses that are appropriate within the G10 locality with Mr Ingham taking a more narrow view where as Mr Sanders said that uses other than industry, warehousing and ancillary service uses are clearly contemplated in the Brookvale Industrial West locality in that a number of land uses that fall outside those parameters are nominated as Category 2 or Category 3 uses in the locality statement for that locality. He says this is consistent with the locality being an employment centre as well as an industrial centre in which industries warehouses and ancillary land uses are a part (i.e. incorporated), and not to be found in the locality only to the exclusion of all other land uses.
Contention 4
S 79C(1)(c) of the Environmental Planning and Assessment Act 1979 (the Act) requires a consent authority, in determining a development application, to take into consideration the suitability of the site for the development. Mr Ingham says that one indication of the unsuitability of the site to accommodate the proposed development is the fact that the use is now a prohibited use under LEP2011. In addition, he says the fact that industrial uses, such as those existing in Dale Street, create noise and other impacts, which are not consistent with a health services facility and that the general suitability of the locality for industry and warehouse would be distinguished by the existence of the proposed development. Mr Ingham says the proposed use is one which, if approved, would be likely to inhibit the redevelopment of other sites, would immediately be a " non-conforming" use and would be likely, for that reason, to be part of Dale Street for a very long time and being a nonconforming use, it would have only restricted ability for a change of use under the Act and Regulations. He say the fact that LEP2000 included a note that Category 3 development is generally inconsistent with the DFC of the locality provides sufficient warning to consenting to such use.
Another reason Mr Ingham says the site is not suitable is the cumulative impact of taking up industrial land for other non-compatible use, as the co-location of industry is important and if uses other than industrial and warehouse uses take up industrial land, the long-term impact may be a lessening of the benefit of being located adjacent to complementary uses, or uses which can operate in harmony with each other. He also says the proposal does not encourage the promotion and coordination of the orderly and economic use and development of land in accordance with the Objects of the Act found in s 5.
Taking a contrary view, Mr Sanders says the Dale Street site displays no features or characteristics that would render it unsuitable for the proposed development because the usual array matters that will determine the suitability of the site are environmental other features of the site and whether it is the subject to any natural hazards. He said the proposed use would not inhibit the redevelopment of other sites, and in considering development application for any future uses, the consent authority would have to have regard to the external impact including impact of the public domain which would be equally sensitive, if not more so, to such impacts as will the subject development.
This contention also raises strategic planning policies and Mr Ingham maintains that the use of the land or non-industrial purposes is contrary to the relevant strategic planning document referred to in [34] and concludes that LEP2011 had regard to the significance of employment land, provided for the protection of the land used for industry and warehousing, such as is found in the Brookvale G10 locality, and that in prohibiting the proposed health services facility within the IN1 General Industrial zone, LEP2011 gave effect to the Metropolitan Plan. For those reasons he says that approval of the proposed use would undermine the policy directions which have found their way into LEP2011, and with the subject site being on land which is " to be retained for industrial purposes" and being on land with no " potential for investigation for alternative uses" the proposed use can be seen to be in direct conflict with the intentions for the IN1 zone and contrary to the character sought for this locality
In Mr Sanders' view, none of the relevant, applicable provisions of those strategic planning documents would militate in a deterministic manner against the granting of consent for the proposed development, because, he says the proposed development is broadly consistent with the strategic planning objective to focus activity in centres such as the Brookvale-Dee Why Centres, in one of which the site of the proposed development is located, noting that one of the future directions of that centre is to " improve the structure of Brookvale as an integrated retail, office, employment and service centre, exploiting major North-South and East-West bus links which he says, would clearly assist the achievement of this important strategic planning direction. He concludes that a range of non-industrial land uses are permissible with consent in the IN1 zone, which reinforces his view that the retention of all the future use of all properties within all the land is zoned for industrial purposes in LEP2011 simply for "industrial" use is not the direct object of town planning objectives at either the strategic or local level.
Both experts agree that if consent was given, it may be possible to modify the building for some type of industrial or warehouse use at a future time in the event that the use of the medical centre ceased. Mr Sanders suggested it could be used for high-tech industrial purposes and agreed that other types of industry or warehouse use could take place however Mr Ingham said that it was unlikely to occur because access through the car park was limited, particularly for trucks.
Contention 5
In Mr Ingham's opinion the strategic metropolitan plans and accompanying documents and LEP2011 reflect the public interest. Because a medical centre is a Category 3 use, a use that he says is generally considered inconsistent with a locality and can only be approved subject to additional information being provided to the consent authority to justify the proposal, and only following an independent public hearing, it is not obvious to him that council had ever considered such uses as appropriate to Dale Street. He does acknowledge that there are a number of uses that would now fall into a Category 3 use however, says they appear to have been in the location for a very long period. He was also aware of a Court approval to allow an "Aldi" supermarket in the G10 locality however distinguished that due to its proximity to Warringah Mall and the fact that a rezoning of the site was under consideration at the time.
He says that if the employment is the only determinant of what is in the public interest in Dale Street, then almost any other use could locate there. He notes that there appears to be no analysis of whether the health services facility would employ more people than a conforming industrial use, and says that the DFC statement, which proposes ancillary service uses as well as industries and warehouses must, in his opinion, serve the local industrial and warehouse community and not attract the majority of its customers from outside the locality. He concludes that the proposed use would be permissible in the B3 Commercial Core zone and the B5 Business Development zone, both zones being in close proximity to Dale Street, and, being a district or southern regional facility, could also be located in many other parts of the Warringah peninsula.
In Mr Sanders' opinion the public interest would be best served by the granting of consent, because it would provide up to date, purpose-built medical facilities meeting the needs of the local community in a manner that would not only have no external adverse impact, but which would also improve the presentation of the site to be public domain.
The parties agree that the prohibition of a health services facility is not a use that is mandated as prohibited in the IN1 General Industrial zone under the Standard Instrument-Principal Local Environmental Plan and was included by the Council in its assessment of the range of uses appropriate in that zone when preparing draft LEP2011. Similarly, the Council added the last three objectives to the IN1 zone and these now form part of LEP2011.
Conclusion and findings
There are primarily four matters that the Court must consider in the determination of the application and they are the weight to be given to the provisions of LEP2011; whether the development is consistent with the DFC and all other relevant provisions of LEP2000; whether the site is suitable for the proposed development and whether the grant of consent would be in the public interest. I am satisfied on the evidence provided that the other relevant considerations under s 79C of the Act are met.
The fact that LEP2011 has commenced removes any doubt that the plan is both certain and imminent. The essential question is the weight to be given to that plan, and in this regard, guidance is provided in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 where at it states:
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.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.
By dint of c1.8A of LEP2011, the proposed use remains a permissible use, however, in accordance with Blackmore it is necessary to determine whether the aims and objectives of that plan are achieved. Those aims and objectives are found in clauses 1.2 (Aims of the Plan) and the objectives for Zone IN1 as detailed at [25] and [26] above. Clause 2.3(2) requires a consent authority to have regard to the zone objectives when determining a development application.
In determining whether the proposed development is antipathetic to or does not detract from those objectives or is inconsistent with or accords to the planning controls, I prefer the evidence of Mr Sanders who, whilst adopting a broad approach, has demonstrated that the development would not be contrary to those planning objectives. I do not accept Mr Ingham's opinion that the objectives require what would in effect be the sterilisation of that land for industrial and warehouse uses and ancillary service uses that only service the immediate locality.
The aims of the LEP include the recognition of the role of Brookvale as a major centre and employment area for the sub-region, providing for a balance of development that caters for, amongst other things the welfare needs of residents and visitors maintaining a diversity of employment and services. It anticipates that development will result in quality urban design and does not have an adverse effect on streetscapes, public places or the natural environment. There is no dispute that the proposal satisfies these requirements and all of the relevant planning controls.
With regard to the objectives of the IN1 zone, I also agree with Mr Sanders that the objectives are to be read as a whole and do provide for non-industrial land uses and that the objective of supporting and protecting industrial land for industrial purposes does not prohibit non-industrial uses. To do so would not allow the satisfaction of the objective that enables a range of compatible community and leisure uses and the provision of facilities and services to meet the day to day needs of workers in the area.
Having regard to the aims of LEP2011 and the zone objectives, I find that the proposed development is not antipathetic or inconsistent with those objectives and will not detract from the achievement of those objectives nor undermine the planning intent of the controls contained within that plan. Whilst I give the plan significant weight because it has commenced, and in particular give consideration to the fact that the proposed use would be prohibited, that weight is not determinative in view of the fact that I have found the proposed development to be consistent with the objectives and planning intent for the locality.
There are no contentions that the provisions of clause 12 are not met, other than whether the development is consistent with the G10 DFC. The State Policies referred to in the second respondent's contentions are not those policies referred to in Schedule 5 of LEP2000. I note that the council had considered the building height control and found the height of the proposed development to be acceptable.
Mr Ingham says that because his search of the council's consent register has not revealed any approvals for Category 3 uses in Dale and Green Streets and the note to clause 12 states that Category 3 uses are generally inconsistent with the locality, the use is not consistent with the DFC for the locality. In his Expert Report, Exhibit B1, I note that he has left the important word "and" from the first sentence of the DFC so that it reads "The Brookvale Industrial West locality will remain an industrial employment centre......" rather than and "industrial and employment centre" (emphasis added). Much of Mr Ingham's evidence was on the basis of his view being that the area should be used only for industrial or warehouse purposes or for uses, if service uses, that are ancillary to industrial or warehouse uses. I do not agree and accept the opinion of Mr Sanders that the DFC contemplates a wide range of non-industrial uses and this is apparent from the council's planning approach since the adoption of LEP2000. Also, it is important that the note that Mr Ingham relies on does not form part of the plan and, if all Category 3 uses were inconsistent with the DFC then it would not be possible that any of those could be contemplated in a locality under any circumstances. Clearly, this is not the intention of the planning instrument.
This is particularly demonstrated in the consents provided in Exhibit A1 which, in addition to warehousing and industrial uses, have provided for the occupancy of 18-22 Dale Street, the allowance of a Category 3 shop (Salvation Army premises 11 Dale St) and the use of premises for fitness centres, a youth centre, recreation facility and children's party centre within the G10 locality. These uses, whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre. I consider that the proposed medical centre would also be a development that services the locality and, like the recreation facility and the other non-industrial uses described above, would be used by both occupants of the industrial and warehouse developments and other developments within the locality but also draw from a larger catchment. I do not consider the DFC contemplates any constraint on the area from which persons attending any of the businesses within the G10 locality are drawn.
I am satisfied that the design of the development incorporates landscaping that will soften the visual impact of the building. The site is not at an interface with a residential area, the closest residential area being to the north however, the activities to be undertaken will not adversely impact on the amenity of that area. The development would result in the consolidation of four adjacent allotments and there is no evidence that this would render any adjoining allotment unsuitable for development.
Accordingly, I am satisfied that the development would be consistent with and is not antipathetic to the DFC for the G10 Brookvale Industrial West locality.
The fact that it is a Category 3 use under LEP2000 requires additional considerations in accordance with the provisions of clause 15 of that plan. This requires the consent authority to consider a statement of environmental effects that includes the items listed in Schedule 15 of LEP2000 and the findings and recommendations of an independent public hearing into the application, including reasons for its recommendations.
From the evidence provided, the public hearing required was held on 23 November 2011 and the Panel recommended to the JRPP that the application should be approved subject to conditions. In addition, the council's assessment report to the JRPP has considered the relevant matters listed in Schedule 15 of LEP2000. There are no contentions that the proper process of assessment has not been followed. Having regard to the assessment reports contained within the evidence, I am satisfied that proper regard has been given to those provisions and that a Category 3 use could be approved.
The suitability of the site for the proposed development is an area in dispute. Mr Ingham considers that such a use should be in an area with garden surrounds and, if approved, the development is likely to constrain other industrial activities from being located in the IN1 zone. Mr Sanders says that the site is suited to its intended purpose and the design of the development has regard to the adjoining uses and will neither constrain those uses or be impacted by them. I note that there are currently a number of medical uses within the G10 locality and whilst these do not include day surgery operations, I am satisfied that those uses can function appropriately in the locality and will not restrain the achievement of the planning objectives of the industrial zone. The development meets its parking needs, provides for appropriate landscaping and has been designed to have regard to its location and neighbouring properties. There are no environmental constraints that affect the ability to develop the land and accordingly, having regard to the evidence provided, I find the site to be suited to use as a medical centre and, could, in the future, be adapted to industrial use, therefore, not prejudicing the objective of maintaining industrial land.
I agree that the council's planning instruments are documents that must be considered in regard to contentions that concern the public interest. Having found that the development is consistent with the previous plan (LEP2000) and not antipathetic to the current local environmental plan (LEP2011), I also find that the development would be in the public interest. The fact that the development would now be a prohibited use in the IN1 zone is a matter that I have had regard to however, I do not find this fact determinative. Similarly, having regard to the strategic planning documents referred to by Mr Ingham, I consider, for those reasons outlined above, that the development would not be inconsistent with those directions.
I place no weight on the evidence that the relocation of the current practice from the Warringah Mall to the site is a matter of the public interest. The consent that allows this use on that site will continue to run with the land and it is a matter for second respondent whether there are any other medical businesses established there. That is not a matter for the Court.
With regard to the matters not in contention but required to be considered under s 79C of the Act, I rely on the council's assessment report and evidence provided during the hearing. Having regard to the detailed assessment of those matters, the evidence in relation to the contentions and the relevant planning controls, I am of the view that the development should be approved.
Orders
The Orders of the Court are:
(1)The appeal is upheld.
(2)Development Application DA2011/0892 for demolition works and construction of a Medical Centre and Day Surgery Building with associated landscaping works at 10-12 Dale Street, Brookvale is approved subject to the conditions included in Annexure 'A'.
(3)The exhibits, other than exhibits A, B, 1 and C1 are returned.
Sue Morris
Commissioner of the Court
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