Vigor Master Pty Ltd v Warringah Shire Council - [2008] NSWLEC 1128

Land and Environment Court

of New South Wales

CITATION: Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Vigor Master Pty Ltd
RESPONDENT
Warringah Shire Council

FILE NUMBER(S): 11212 of 2007

CORAM: Hussey C

KEY ISSUES: Development Application :- for Self Storage Facility, consistent with Desired Future Character statement bulk and scale, noise, traffic, public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000
State Environmental Planning Policy No. 55 - Remediation of Land

CASES CITED: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING: 18,19 March 2008

EX TEMPORE JUDGMENT DATE: 20 March 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Hones, solicitor
of Hones LA Hood Lawyers
RESPONDENT
Ms J Hewitt, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 March 2008

11212 of 2007 Vigor Master Pty Ltd v Warringah Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

Background.

1 Vigor Master has appealed against council's refusal of a development application for the construction of a 2-storey self storage facility at the corner of Linden Ave and Bundeleer St, Belrose North.

2 The issues identified in this matter concern:

Whether the development is consistent with the Desired Future Character of Locality C8 - Belrose North statement.
Unsatisfactory design elements.
Noise amenity.
Traffic impacts.
Public interest.

The site.

3 The site is described as Lot 2506, DP 752038 and is situated on the western side of Linden Avenue, to which it has an 85.7m frontage and total area of 1.64 ha.

4 The site has a cross-fall away from the street of approximately 10m from the SE to the NE corner. Vegetation clearing has been undertaken on the land.

5 The surrounding area contains a mix of rural/residential dwellings, nurseries, schools and a quarry. A waste disposal area is located to the west of the subject property.

6 This proposal is for:

The construction of a 2-storey precast concrete wall and steel roof building for use as a self storage facility.
The building has a street elevation of approximately 28m, to which it has a 20m setback. The building depth is approximately 40m and it has a side boundary setback of 20m to the neighbouring property (Lot 2410).
The height of the building is 7.2m and it has a pitched roof line.
The total floor area of the building is 2208 square metres, which contains a total of 365 individuals storage spaces ranging in size from 1.2 square metres to 38.5 square metres.
There is an internal loading dock, which is accessed via a roller door in the southern elevation, from the perimeter road.
The perimeter road is in the order of 6.2m wide adjacent to the building and is of a one-way configuration.
The development incorporates a 30000 litre rainwater tank to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 1128
Decision Date: 20 March 2008

CaseChat Overview and Summary

Vigor Master Pty Ltd has appealed against Warringah Shire Council's refusal of a development application for a self-storage facility in Belrose North, New South Wales. The key issues concern whether the proposed development is consistent with the Desired Future Character (DFC) statement, the design elements, noise amenity, traffic impacts, and the public interest. The site in question is Lot 2506, DP 752038, situated on the western side of Linden Avenue, Belrose North. The proposal is for a 2-storey self-storage facility with a street elevation of approximately 28m, a 20m setback, and a total floor area of 2208 square metres. The site is located within Locality C8 – Belrose North, which is a rural/residential locality.

The court had to determine if the proposal complies with the DFC statement, which indicates that the locality should remain unchanged except in specific circumstances, and that any new development should be limited to detached style housing and low-intensity, low-impact uses. The applicant argued that the proposal was consistent with the DFC statement, while the council and residents considered that the residential form was the appropriate type of development for the locality. The court found that the proposal was not consistent with the DFC statement due to its bulk and scale, which would have significant visual impacts on the streetscape and not present as a low intensity use. The proposal was deemed to be more suitable for an industrial locality.

The court also considered the design features, traffic, and noise aspects of the proposal. The applicant argued that the design complied with the relevant controls and that the traffic generation and noise impact would be minimal. However, the court found that the proposal incorporated a substantial bulk and scale, which would have a significant impact on the locality. The court also found that the proposal would generate more traffic than anticipated by a low-density residential use in the rural/residential context.

The court concluded that the proposal did not demonstrate reasonable compliance with the provisions of cl 12 of the Local Environment Plan, which requires development to be consistent with the desired future character of the locality. The court found that the proposal was of excessive bulk and scale and did not represent a low impact, low intensity development, which is a major objective for future development in this locality.

The court dismissed the appeal and refused development consent for the self-storage facility at Lot 2506, DP 752038, Linden Ave/Bundaleer Street, Belrose. The exhibits may be returned except for 1, 3, and A.

Orders