Waite v Blacktown City Council

[2008] NSWLEC 1529

Land and Environment Court

of New South Wales

CITATION:	Waite v Blacktown City Council [2008] NSWLEC 1529
PARTIES:	APPLICANT David Waite RESPONDENT Blacktown City Council
FILE NUMBER(S):	10695 of 2008
CORAM:	Moore C
KEY ISSUES:	Development Application :-
CASES CITED:	Pallas Newco Pty Limited v Votraint No 1066 Pty Limited and Others [2003] NSWLEC 232
DATES OF HEARING:	27 November 2008
EX TEMPORE JUDGMENT DATE:	27 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr D Williams, solicitor Whitehead Cooper Williams RESPONDENT Mr T O'Connor, solicitor Houston Dearns O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 November 2008

10695 of 2008 David Waite v Blacktown City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: Mr Waite owns premises at 879 Richmond Road Marsden Park, a comparatively large rural allotment for which he has a variety of development consents of differing natures. He currently conducts an extensive retail produce facility on site which includes, as I am aware from earlier proceedings, sales of water tanks and the like. He also has a consent for the establishment of a heritage or mini railway on the rear of the site.

2 The present proposal seeks consent for:

• demolition or removal of a building in the south-western corner at the front of the lot:
• the construction of a visitor information centre behind the footprint of that building;
• fencing off of the miniature railway;
• fencing off of the existing Waite residence to create a residential compound for the family; and
• the establishment of a kiosk/ticket office facility some six metres by six metres in the south-western corner of the existing produce store building, partially under a current awning and partially extending into the walkway that currently serves as both a pedestrian and vehicular access to the rear of the property.

3 The Statement of Environmental Effects that accompanies the application describes the proposed uses of this building (known as the kiosk) as to serve as the entry point to the museums, to sell tickets for rides on the mini railway and refreshments including ice creams, cold drinks, hot chips and the like will be available. It will also house a closed circuit surveillance security camera system. As a result of discussions that took place both before the hearing and during the course of the site view this morning, amendments were proposed to the plans and not opposed by the council.

4 To the extent that they have been amended, the only matter which I raised with the parties during the course of consideration was a concern that I had that the proposed 1 m high picket fence separating the operational part of the railway from the public parking area was of inadequate height. As the parties have not addressed me on that point, having been invited to do so if they demurred from the position I proposed to them that that fence should have a minimum height of 1.5 metres, I propose to require that that fence have such a minimum height for reasons of public safety.

5 All other matters have been resolved between the parties, save whether or not it is permissible to allow the refreshment-selling aspect of the proposed ticket office and kiosk at the location where it is proposed. The position advanced by the council is that the use is impermissible within the zone as it is in fact not a use ancillary to the use of the elements that comprise the tourist facility (which are the subject to the application and the matters that the council accepts also fall within the definitions within the Blacktown Local Environmental Plan of a recreation area which is the basis upon which the council accepts that the relocation of the doll museum and doll collection to the proposed information centre is acceptable).

6 The council’s position is that such refreshment-selling activities should be sufficiently incorporated in the tourist or recreation facility activities and structures to ensure that they are not used widely by the general public as a shop – “shop” is a use which is not permitted in this zone.

7 Mr Williams, solicitor for Mr Waite, invites me to conclude that the use is one which is purely ancillary to the tourist facility activities because of the proximity of the proposed kiosk/ticket office to the entry to the information centre and the fact that there will be passing pedestrian traffic into the areas of the engine sheds which are not proposed to be controlled except by gated access but do not require a ticket for inspection.

8 During the course of his submissions in reply, I asked Mr Williams whether it would be appropriate to have regard to the layout of the proposed facilities. He indicated that he considered it was so appropriate.

9 I have paid careful attention as part of my understanding of how I should characterise the activities to take place in the proposed kiosk to the orientation and layout of the internal structures depicted on the floor plan at plan 1 of exhibit A. It shows a number of elements in support of the refreshment-selling aspects of the application. These include:

• a cooking bench;
• a number of counters that appear to have windows or roller shutters opening to the outer area that would enable customers to approach the facility to purchase products;
• two drinks fridges;
• an ice cream freezer;
• an area described as a cooking bench; and
• a smaller internal area that is described as a washing-up area.

10 The two roller shutter counters available to the public are of differing dimensions. One is approximately 50% longer than the other and is oriented toward the main public car park of the premises. The drinks cabinets are both oriented to that counter and the proposed cooking bench area is readily accessible from and oriented toward the roller shutter area serving the existing car park portion of the premises.

11 Part of the matters that were discussed on site this morning were the nature of the fencing in order to separate the tourist facility activities from the general public. Virtually all of the tourist facilities, except for the opportunity to stand outside the fence and look at the railway, will require entry through either a gate in a fence or transiting through the proposed visitor information centre. The tourist facilities, except for the ticket office and kiosk, are entirely enclosed within perimeter structures.

12 The orientation of the proposed kiosk/ticket office (and particularly the internal orientation of the refreshment-selling facilities within it) do not permit me to conclude that their orientation is designed to be ancillary to the operation of the tourist facility. In addition, the fact that they are somewhat removed from that activity (almost but not entirely to the same extent as is the distance from the entry to the other produce-selling activities in the main part of the building operated by Mr Waite) – that is the two entrances are effectively approximately equidistant from the kiosk/ticket centre – I could not be confident that the activities of refreshment selling being conducted from the proposed kiosk/ticket facility would truly be ancillary to the activities being conducted in that tourist facility.

13 Because I am not able to reach the conclusion that they are genuinely ancillary and that there is a significant and real probability that there will be direct sales to the public, a concern which is reinforced by the orientation of the facilities within the proposed kiosk, I consider that, as a matter of fact, I must logically conclude that there will also be an element of selling to the general public likely to occur in addition to such sales as might take place to persons accessing the tourist facilities.

14 As a consequence, I am satisfied, as there would be two uses existing on the site; that is, one which is ancillary to the tourist facility and another one which is the selling of foodstuffs to the general public, that I could not be satisfied on the layout and orientation of the building that it is such that the sale of foodstuffs to the general public would be so small and insignificant as to either be de minimis or capable of being set aside.

15 As a result of that, consistent with the decision of Talbot J in Pallas Newco Pty Limited v Votraint No 1066 Pty Limited and Others [2003] NSWLEC 232, there are two uses existing side by side, one of which is not capable of being set aside for the purposes of this consideration; that that is impermissible as a shop and, as a consequence, the use of the structure for that purpose is itself impermissible. The consequence of that is, given the position put by Mr Williams earlier on behalf of his client, that rather than refusing that structure at that location what should be restricted is the use of that structure at that location so that it does not permit the selling of any refreshments of any nature or the storage in or distribution of foodstuffs from that building.

16 The consequence of that is that I will uphold the appeal to the extent that it permits the remainder of the structures and uses subject to the modifications to conditions that have been discussed concerning the doll activities in the visitor information centre but I will leave the parties to settle the terms of appropriate conditions of restriction on the use of the kiosk. When that has been done - and I will discuss with the advocates shortly a timetable for that - the orders of the Court will be that the appeal is upheld in the circumstances of the decision and a development consent will be given to plans as revised in light of this decision and subject to the conditions that are to be revised.

Tim Moore
Commissioner of the Court