Walton v Blacktown City Council (No 2)

[2006] NSWLEC 345

Land and Environment Court

of New South Wales

CITATION:	Walton v Blacktown City Council (No 2) [2006] NSWLEC 345
PARTIES:	APPLICANTS Lance and Linda Walton RESPONDENT Blacktown City Council
FILE NUMBER(S):	11059 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consolidation of conditions
LEGISLATION CITED:	Blacktown Local Environmental Plan 1988 Disability Discrimination Act 1992 Food Act 2003 Building Code of Australia Blacktown Development Control Plan 1992 .
CASES CITED:	Walton v Blacktown City Council [2006] NSWLEC 65; Mison v Randwick City Council (1991) 23 NSWLR 734; .
DATES OF HEARING:	19 April 2006
EX TEMPORE JUDGMENT DATE:	04/19/2006
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr P Kelso, solicitor Norman Waterhose Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

19 April 2006

11059 of 2005 Lance and Linda Walton 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: This matter was originally dealt with by me at an on-site hearing on 8 February 2006, at which time the applicants were represented by Mr C Gough, solicitor of Storey & Gough. At that hearing I was required merely to determine one matter relating to the requirement by the council that a sign be erected next to the front door of the premises which is operated as a bed and breakfast establishment, as defined by the Blacktown Local Environmental Plan 1988 (the LEP), but which are styled by the applicants as the Allawah Street Guest House (see Walton v Blacktown City Council [2006] NSWLEC 65).

2 I determined, on that occasion, that the sign was inappropriate and I directed that consolidated conditions of consent reflecting the matters that were dealt with at the on-site hearing and consolidating the 1992 consent granting the original approval be prepared and filed.

3 Mr and Mrs Walton have dispensed with Mr Gough’s services and have not consented to or accepted those consolidated conditions of consent.

4 As a consequence, it has remained for me today to deal with the proposed conditions of consent one by one and to determine all of the matters disputed by the Waltons.

5 A number of them, after discussion with Mr Walton and Mr Kelso, solicitor for Blacktown City Council (the council), have resulted in agreement.

6 However, a number of changes have been made to the structure of the conditions of consent and I have determined a number of matters on their merit.

7 I turn first to deal with the question of the structure of the conditions of consent. The original proposed consolidated conditions had an advisory note, commencing the conditions, which informed any person examining the conditions that they superseded and consolidated the earlier conditions of consent. There are two other matters contained in the body of the conditions which are of an advisory nature. They are proposed condition 3, dealing with Disability Discrimination Act 1992 issues and proposed condition 10, dealing with the Food Act 2003 and the regulations made there under.

8 I proposed to Mr Kelso (and he agreed) that it would be acceptable to incorporate those also as advisory notes. That will be done in the revised conditions to be filed electronically for the making of Orders in these proceedings.

9 As a consequence of that preliminary agreement, I turn to deal with the remaining conditions.

10 Condition 1, after some discussion with Mr Walton, has been accepted with the alteration that the carparking plan showing three spaces has been dated and initialled by me as January 2006 - in lieu of being an undated plan – thus reflecting the time when Mr Walton prepared the plan.

11 Proposed condition 2 has been agreed to.

12 Proposed condition 4, which requires that the development shall operationally conform with the definition of a bed and breakfast establishment, has been accepted by Mr and Mrs Walton on the clear understanding that, for their own purposes, they are free to describe the premises as being used as a guest house, that being a term not defined by the LEP and having no legal meaning in the context of that plan.

13 Proposed condition 5 related to the installation of devices for detecting fires on the premises. It turned out, after some considerable discussion, that Mr Walton’s objection was to the use of the word “detectors” in lieu of the word “alarms”, the word “alarms” being the word used relevantly in the Building Code of Australia.

14 Mr Kelso accepted an amendment in two places to proposed condition 5 to delete the word “detectors” and substitute the word “alarms”, that condition then becoming acceptable to the Waltons.

15 Condition 6 proposed by the council required an evacuation plan to be provided on the rear of the door of each guest room showing the path of egress in the event of an emergency. Mr Walton opposed this condition on the basis that it was not founded on a requirement in any planning document.

16 I accept that it is not founded on any planning requirement. I also, however, accept that it is desirable public policy that these notices be provided, particularly as, on Mr Walton’s own statement, his premises are used from time to time by disadvantaged or distressed persons in the community. I am satisfied that it is a matter of sound public policy and public safety that this be required and I impose the condition as proposed by the council.

17 Condition 7, as originally proposed by the council, required three off-street carparking spaces for residents and guests with two of them to be for guests and one be reserved for the use by permanent residents of the premises and sign posting noting the guest spaces. The draft condition did not take into account the fact that there were two further carparking spaces on site in the garage but that these spaces were being used by Mr and Mrs Walton for storage purposes, a course of events which they wished to continue to have available to them.

18 As a consequence, I proposed that the clause, for the purposes of discussion, should be re-worded to read as follows:

7. A total of three off-street carparking spaces in the open in addition to the two spaces in the garage shall be provided for residents and guests. Two of the spaces in the open shall be allocated to and available for guests and shall be sign posted accordingly. The remaining space in the open shall be reserved for and available for use by permanent residents of the premises.

19 I am satisfied that there is no specific requirement in Part A of the Blacktown Development Control Plan 1992 (the DCP) setting a numerical requirement for premises of this nature in a residential area or generally. The notes to table 5.1 of the DCP say, in the first note:

For activities not specifically mentioned, carparking requirements will be determined on the merits of the application.

20 The 1992 consent required four carparking spaces.

21 Having reviewed Mr and Mrs Walton’s objections to providing that number of spaces in this application, the council has agreed to three spaces being available in a usable form, having considered matters such as the proximity to public transport.

22 Mr Walton’s objection, as I have understood it, is not to the provision of three carparking spaces by itself, although he has raised concerns about that matter in the past, but his principal objection is the reservation of one of the spaces for the use by the permanent residents. I deal with the first matter first.

23 I am satisfied, having regard to the fact that there are four usable guest rooms in the upper level of the premises together with a residence presently occupied by the Walton family on the ground floor, that it would be reasonable to require three off-street parking spaces as a minimum. Indeed, I indicated to Mr Walton that, had the council not indicated a preparedness to accept three spaces, I would have been minded to impose the earlier, higher number.

24 Having concluded that, on the merits of the application, it was appropriate to require three off-street carparking spaces, I turn to consider Mr Walton’s objections to one of those being reserved for the permanent residents.

25 I am satisfied that, as the permanent residents’ vehicle will be that most likely to be constantly parked at the premises, it is appropriate and desirable that it be parked off the street.

26 I am satisfied that if, from time to time, there is overflow parking required and Mr Walton is unable to accommodate that on the site:

• such carparking should be off the street;
• it will be available on the street; but
• the permanent residents’ vehicle should be off the street on a regular basis.

27 I am, therefore, satisfied that the clause as re-worded by me is the appropriate version.

28 The original clause 8 required that all required off-street parking spaces be maintained in a satisfactory, usable manner. I am satisfied that that wording would include an implied conflict with the use of the two spaces in the garage for storage purposes so it should now read “three off-street carparking spaces shall be maintained in a satisfactory, usable manner”.

29 Mr Walton has accepted the wording of condition 9 after I explained to him that the Court of Appeal’s decision in Mison v Randwick City Council (1991) 23 NSWLR 734 required that I impose conditions of certainty and that use of the word “ordinarily” or some similar word in such a condition was inappropriate.

30 Mr Walton also has accepted that proposed condition 11 is appropriate and, indeed, he has indicated to me that he and his wife have already registered the business as a food business.

31 I am therefore satisfied that the orders that should be made in the appeal are as follows:

1. The appeal is upheld;
2. Development application 4643/04 seeking to increase the number of persons capable of occupying rooms at a guest house at 27 Allawah Street, Blacktown, being Lot 2 in deposited plan 571420, is determined by the granting of development consent, subject to the revised conditions which I have dealt with today; and
3. Exhibits A, B and 1 are retained.

32 I direct that:

1. The respondent file revised, consolidated conditions electronically in corrected form by the close of business on 26 April 2006; and
2. The matter is set down for callover on Tuesday 9 May on the basis that, if direction 1 is complied with, I will make orders in Chambers and vacate the callover.

Tim Moore
Commissioner of the Court