The Shire of Hornsby
Executive Manager's Report No. PLN123/07
Planning Division
Date of Meeting : 05/16/2007



Item No: Subject:
14LOT 2 DP 938772 (NO. 1455) OLD NORTHERN ROAD, GLENORIE AND LOT 1 DP 938772 (NOS. 1457 - 1465) OLD NORTHERN ROAD, GLENORIE- UNLAWFUL USE OF A MATERIALS RECYCLING FACILITY


EXECUTIVE SUMMARY

The premises is currently being utilised for the purpose of a “materials recycling facility” as defined by the Hornsby Shire Local Environmental Plan 1994. Subject to Clause 7 of the Hornsby Shire Local Environmental Plan 1994, this use is prohibited.

On 30 August 1976, Development Consent No. 121/1976 was granted for the use of the premises 1455 Old Northern Road, Glenorie for the purpose of a workshop and garage – stockpile area pursuant to the provisions of “home occupation” as defined by the Hornsby Planning Scheme Ordinance and conditions were applied to restrict the size of the development within the premises.

Investigations undertaken by Council have revealed that the premises is not being utilised in accordance with Development Consent No. 121/1976 that the current use of the premises is prohibited, and has extended onto 1457-1463 Old Northern Road, Glenorie. Council has sought legal advice in relation to this matter and as a result, the commencement of legal action is recommended.

PURPOSE/OBJECTIVE

This report provides information relating to the prohibited use of premises 1455-1465 Old Northern Road, Glenorie for the purpose of a “materials recycling facility” as defined in Hornsby Shire Local Environmental Plan 1994.

Pursuant to Clause 7 of the Hornsby Shire Local Environmental Plan 1994, the use of the premises for the purpose of a “materials recycling facility” is prohibited. Development Consent No. 121/76 granting the use of premises 1455 Old Northern Road, Glenorie for the purpose of “home occupation” as defined by the Hornsby Planning Scheme Ordinance is not being complied with. As a result, legal advice was sought by Council in order to bring the use of the premises into compliance with the Development Consent.

This report considers the legal advice received by Council in relation to the current use of the premises.

BACKGROUND/HISTORY

August 1976 Development Application No. 121/1976 was lodged for the “use of premises 1455 Old Northern Road, Glenorie for the purpose of a workshop and garage – stockpile area”.

30 August 1976 Development Consent No. 121/1976 was granted for the use of the premises as a “home occupation” as defined by the Hornsby Planning Scheme Ordinance.

Development Consent No. 121/1976 restricted the use to the following conditions:

February 1977 An application was made by the owner of the premises requesting the installation of storage petrol tanks. Council that the conditions of Development Consent No. 121/76 had not been complied with and resolved that:

“the applicant be advised that Council will not grant any further approvals in respect to the property unless and until the use of the site does comply with Council’s consent and that unless the property and its use does comply strictly with the terms and conditions of consent within three (3) months Council will seek an injunction to terminate the use.”

21 June 1977 The application for the installation of storage petrol tanks was refused by Council and the owner advised that he is required to comply with the conditions of his consent, otherwise injunction proceeding would commence.

10 October 1977 Town Planning report (No. 371/77) was presented to Council advising that the company intended using the site for the purpose of a workshop and garage and to stockpile a small amount of material however report noted that once having occupation of this site, the owner then had this operation blossom into a full scale transport depot with a fleet of vehicles, full time mechanics and office of staff.

29 May 1979 A letter was forwarded by the Shire Clerk to Caladet Pty Ltd (company owned by the owner of the premises) advising that they had been provided with opportunity in which to relocate the business and gave reasonable time in which to show cause as to why legal proceedings should not be commenced.

May – August 1979 Various correspondence occurred between the owner of the property and Council in relation to the non-compliance issues relating to the property. During this time, the owner of the premises gave indications of his intention to relocate his business to a suitable site.

3 August 1979 The Deputy Shire Clerk wrote to the owner of the premises advising him that the use being carried out at the premises was prohibited and of Council’s decision to commence legal proceedings should he not relocate his business within a ten (10) day period.

9 August 1979 A letter was received from Elliot & Gilchrist Solicitors acting on behalf of the owner of the premises. That letter:

August 1979 A further inspection by Council Officers determined that the premises was being used other than in accordance with the home occupation requirements.

23 October 1979 Council forwarded a letter to the owner’s solicitors advising that assurances had been given by the Owner that submissions to the Council would be made and that he would endeavour to achieve some form of approval to avert legal action and to comply with Development Consent No. 121/1976, but that no such compliance had been achieved.

October 1979 – Correspondence occurred between legal representatives acting on
March 1980 behalf of the owner of the premises and Council in relation to outstanding non-compliance matters. No resolution was reached during this period.

21 May 1981 Council resolved that quite a number of requirements needed to be met in order to bring the use of the premises into accordance with Council’s definition of a “home industry” which could then have regularised the use of the premises, presumably through a Development Application process.

10 June 1981 The owner of the premises provided a response to Council’s letter dated 21 May, 1981, however the response did not result in the use of the premises being regularised. Therefore, the matter remained unresolved. It is noted from the legal advice provided to Council that there did not appear to be a response from Council following that letter and there is a large gap in correspondence between Council and the owner of the premises.

29 August 2006 An anonymous complaint was received in relation to the unauthorised use of the premises.

28 September 2006 An inspection of the premises was conducted which established that the premises was being used for the purpose of a “materials recycling facility” as defined by the Hornsby Shire Local Environmental Plan 1994. A copy of the file note pertaining to this inspection is attached to this report.

October 2006 A review of the aerial photographs of the premises revealed that the use has extended onto the adjoining premises at No. 1457-1465 Old Northern Road, Glenorie.

The aerial photographs indicate that the business was contained within the boundaries of 1455 Old Northern Road, Glenorie until approximately 1995, at which time the business commenced occupying a small area of land within the adjoining property at No. 1457-1465 Old Northern Road.

By 2003 the use had extended onto No. 1457-1465 Old Northern Road quite extensively in addition to occupying the whole of 1455 Old Northern Road, Glenorie The use occupies an area of approximately 13000 square metres of the adjoining property at No. 1457-1465 Old Northern Road, Glenorie.

Copies of the aerial photographs are attached to this report.

1 April 2007 A complaint was received from Mr G and Mrs N Ashton of 34A Moores Road relating to adverse amenity impacts caused upon Mr and Mrs Ashton as a result of the activities being carried out at 1455 Old Northern Road, Glenorie.

27 April 2007 Legal advice was provided by Storey and Gough Solicitors and Attorneys, which recommends legal proceedings be commenced to restrain the use of the premises.

DISCUSSION

The site is zoned Rural BA (Small Holdings - Agricultural Landscapes).

An inspection of the property revealed that premises No. 1455 Old Northern Road, Glenorie and 1457 – 1465 Old Northern Road, Glenorie are being utilised for the purpose of a “materials recycling facility” as defined by the Hornsby Shire Local Environmental Plan 1994.

Clause 23 Dictionary of Hornsby Shire Local Environmental Plan 1994 provides the following definition of a “materials recycling facility”:

“‘materials recycling facility’ means a building or place used for the collecting, sorting, dismantling, storing, abandoning or recycling of second-hand or scrap materials for the purpose of resale, reuse or transfer”

Pursuant to Clause 7 of Hornsby Shire Local Environmental Plan 1994 a “materials recycling facility” is not a permissible land use within the Rural BA (Small Holdings - Agricultural Landscapes) zone.

The current operation of the site is not being conducted in accordance with the terms and conditions of Development Consent No. 121/76. Council’s Planning Division raises concern in relation to the use of the premises, as follows:

1. Potential contamination of the site resulting from materials being stored on the premises.

2. Visual amenity impacts upon the neighbours and the locality.

3. Acoustic impacts as a result of activities being undertaken on the premises.

4. Dust impacts on adjoining residents and the locality.

5. Suitable environmental protection measures and management practices have not been implemented on the site.

6. The use of the premises for the purposes of a ‘materials recycling facility’ does not comply with the objectives of the Rural BA (Small Holdings - Agricultural Landscapes) zone.

7. Traffic Management measures have not been considered in order to minimise impacts of traffic ingress and egress from the premises.

Council’s Solicitor, Storey and Gough, in correspondence dated 27 April 2007 advised:

“It is recommended that Class 4 proceedings be commenced in order to require the use of the property at Lot 2 DP 938772 (No. 1455) Old Northern Road, Glenorie be ceased for any other purpose other than in accordance with Development Consent No. 121/1976 and additionally, that all materials being stockpiled within the premises and all machinery relating to the current use of the premises be removed.”

A copy of the solicitor’s confidential advice is attached.

BUDGET

There are no budget implications.

POLICY

There are no policy implications.

CONSULTATION

No consultation was required in the preparation of this report.

TRIPLE BOTTOM LINE SUMMARY

Triple Bottom Line is a framework for improving Council decisions by ensuring accountability and transparency on social, environmental and economic factors. It does this by reporting upon Council’s strategic themes.

As this report simply provides Council with information and does not propose any actions which require a sustainability assessment, no Triple Bottom Line considerations apply.

RESPONSIBLE OFFICER

The responsible officer for this report is Kim Greenshields. For further information please telephone the Assessments Team Manager, Peter Fryar on 9847 6731


RECOMMENDATION

THAT Council commence legal proceedings to restrain the prohibited use of premises 1455 Old Northern Road, Glenorie and 1455-1465 Old Northern Road, Glenorie in accordance with the legal advice provided by Mr Ian Woodward of Storey and Gough Solicitors and Attorneys dated 27 April 2007.






PETER HINTON
Executive Manager
Planning Division

KG:RM

Attachments:

1. Draft Letter & Undertaking (4 pages) 123A.pdf

2. File Note (4 pages) 123B.pdf

3. Photographs (14 pages) 123C.pdf 1455oldnorthern.pdf

4. Confidential Legal Advice from Storey & Gough (7 pages)