Several North Manly businesses are being asked to vacate their premises after Northern Beaches Council began enforcing an industrial zoning law following a legal contest with one tenant.
However, there is considerable confusion over why it is being enforced, because one of the businesses has operated at the same venue for 23 years, and other industrial areas along the Northern Beaches allow the same mixed industry that Council is banning in North Manly.
A martial arts training institution, a pole dance academy and a personal fitness gym are among the North Manly businesses facing eviction because they don’t comply with the zoning regulations that cover the premises.
The buildings, at 380 – 384 Pittwater Road, are also among those that were partially submerged by floodwaters from Manly Creek during the intense storms of early 2022.
The tenants, all recovering from the impacts of the Covid-19 Lockdowns, hope Council will rescind these enforcement actions by taking into account their long-term, complaints-free tenancies and modify the zoning regulation. Otherwise, they claim, it could end their livelihoods.
Under NSW legislation, urban land is tabled for its primary usage in six main categories: rural, residential, business, special purpose, recreation, conservation, waterway and industrial. There are two grades of industrial zones: IN1 General Industrial, and IN2 Light Industrial.
Technically, they aren’t allowed
According to the Warringah Local Environmental Plan 2011, the North Manly units are all classed IN2 – Industrial 2 – and intended for “a range of light industry, warehouse or distribution centres and depots”, which doesn’t allow for physical fitness training.
If they were zoned IN1, which permits “a wide range of industrial and warehouse uses including general industry, high technology industries, and industrial training facilities, and depots”, the trainers would be permitted to continue operating.
On paper it appears there is only a slight difference between the two, but that distinction has cost one tenant, Jason Dolan, owner of Reset and Sweat Gym, tens of thousands of dollars in legal fees appealing it.
Although he was unsuccessful, the Land and Environment Court granted him until September 2023 in which to relocate the gym.
Northern Beaches Council confirmed this in a statement to Manly Observer.
“Following complaints and Council investigations, Council issued a stop use order on the operator of ‘Reset & Sweat’ at 2/384 Pittwater Road, North Manly.
“The use of premises for an indoor recreation facility, such as a gym in the zone within which Reset & Sweat operates, is prohibited under the applicable planning controls (Warringah Local Environmental Plan 2011). Council provided 12 months for the operator to comply with the order.
“The operator appealed to the Land and Environment Court. The Court did not revoke the Order but did amend it to give the operator until September 2023 to relocate the business.”
Jason, a decorated former SOCOM (Special Operations Command) soldier who served two tours of duty in the Middle East, has been running the gym for nearly a decade. He employs several coaches and offers additional beach bootcamps, meditation, yoga and personal training.
The gym was founded in July 2013 by a former business partner, with whom he parted ways in October 2020.
Documents show Council received its first anonymous complaint on 27 October 2020 about the use of the Premises as a fitness gym without development consent.
Jason told Manly Observer that he admits he was naïve when he first began operating the gym without checking the zoning regulation.
“It’s an interesting one, the zoning. I didn’t know what DA [Development Application] meant when I moved in because I left the military and went straight into business, not really understanding much, because ever since I was 17 I’ve been jumping out of helicopters and blowing shit up! I didn’t have much business acumen.
“I didn’t know what a DA was until the eviction notice came through.
“So, I fought Council for about a year, but they weren’t budging… After Covid, we got f***ed-over hard. I should have walked away two years ago; the amount of money it’s cost me to try and keep it.
“The only reason I’ve tried to keep it is because it’s like a family to us. All the people that go to the gym, they pretty much saved my life. Leaving the military, I got to walk straight into another family, and some of our members there are my kids’ godparents – that’s how special it is to me and that’s why I’ve tried everything I can to try and keep it. That’s pretty much where we’re at.”
Marshalling consent
On 29 March 1973, Warringah Shire Council issued Land Use Consent 73/55 for the Pittwater Rd units as a “two-storey building with three factories on the premises”. Among the first designations by the then-ruling Warringah Council was “a factory unit for storage and detailing of motor boats”, issued 3 July 1973.
But other businesses have also operated there, including the unit the gym currently occupies: “In or around 1981, Development Consent (81A/44) was granted for the premises to operate as a wholesale warehouse, distributing electrical cables in Unit 3.”
In their statement sent to Manly Observer, Northern Beaches Council confirmed they were pursuing the eviction of other businesses alongside the gym “that may be operating outside of the planning controls.”
“Council has issued a Notice of Intention to Serve an Order at 380 Pittwater Road (Lange’s MMA) which gives the business an opportunity to provide reasons why Council should not proceed to issuing Orders, including providing any development approvals that they are currently operating under. The Notice of Intention foreshadows that an Order may be issued for the business to find alternate premises and that Council would allow 12 months for this to occur…”
Anthony Lange, for over two decades a trainer of distinguished martial arts fighters and himself a global multi-award-winning champion, runs Lange’s MMA (mixed martial arts).
Anthony told Manly Observer that he set up his training studio at the Pittwater Rd address 10 years before the Warringah Local Environmental Plan 2011 that informs the current zoning regulation was implemented.
“We opened up here in 1999 – last century! .. I’ve now been at these single premises for 23 years. It was an electrical sign place before us.
“At present we can’t get a lease. Everything is in the air. The building owner wants us here, their real estate wants us here – it’s only the Council that don’t want us here.
“After I argued with them for four months, seeking a Grandfather Clause to take into account I’ve been here for 23 years with no complaints, Council issued me with a 28 day notice to provide an excuse to remain. They’ve basically issued me a notice to say that they intend to issue me with another notice to vacate within 12 months. But as yet I’ve not received the latter.
“When the big storm hit us we got flooded out. The downstairs studio got destroyed because it was 200 millimetres deep in floodwater, wrecking the wall pads and the floor mats, which is what the gym consists if. But I couldn’t rebuild because of the uncertainty lingering over our future. So I’ve had to half my business.
“If we move, we have to move to Brookvale, which is Industrial 1, but there’s already 10 other gyms in that area, so we won’t be serving the public as we have done here for 23 years. Fitness and health is for the well-being of the community. It’s crazy that Council are not letting us do it.
“Most of our students walk or cycle here or catch the bus and get off at the bus stop right outside. So, for us to move, it’s a death knell.”
What is his tactic: wait in the hope Council may change the zoning; move to an area where he’ll lose his clientele; or fold the business?
“The fine for refusing to move is a million dollars, or $10,000 a month if you’ve failed to move. You can’t ignore it!”
Anthony revealed that there are recreational businesses, including gyms, occupying IN2 industrial units north of Narrabeen, where Northern Beaches Council haven’t enforced zoning regulations… yet.
“At the moment, with Industrial 2 zones, if I cross the Narrabeen Bridge, it’s legal for me to operate on the northern side,” Anthony continued. “But it’s in the same council district – Northern Beaches Council. However, on this southern side of the bridge, we’re not legal!
“This is because before the three previous councils, Manly, Warringah and Pittwater, amalgamated in May 2016, it was legal to operate retail businesses in Industrial 2 areas under the former Pittwater Council. Northern Beaches Council haven’t updated that split zoning yet…
“I think it’s very easy for Council to retroactively change the zoning, so the entire Northern Beaches is unified and ourselves and other non-industrial businesses can continue operating in light industrial zones. I think officials could do that, including the mayor – it’s within their grasp.”
Poles apart
Michelle Shimmy, owner of the Pole Dance Academy studio above the gym and adjacent to Lange’s MMA, is also facing eviction after several years on the premises. Much of that time was spent enduring the coronavirus lockdowns, with classes halted due to social distancing regulations.
“We’ve had a terrible couple of years with COVID,” she revealed. “We finally emerged from COVID thinking, ‘thank God, as a small business, we survived it’, only to face a shut-down by Council!
“We’ve not received a formal notice to leave yet, but I spoke to the guy in Council who’s been allocated this case and he told me that it was coming and that they’d probably give us enough time to find other premises.
“But I’m just really hoping it’s not going to come to that because, I don’t know, it’s the whole thing just seems so strange to me. I don’t understand why they’re doing it… We’ve never had any complaints from neighbours.”
Michelle admitted she was also naïve in establishing her business without inspecting the existing zoning regulation for the building.
“We’ve been there, I think, since 2018, or maybe earlier. And before we were there, it was another pole dancing and yoga studio…
“I knew that it was a light industrial venue but when I saw that it was a commercial area, I didn’t look at the zoning. It just never occurred to me that it would only mean things like waste aquaculture and boat repairs and stuff… Plus there was a gym and a martial arts place next door, so I just assumed that the zoning was okay…
“If council was to follow this through to its natural conclusion, they would have to shut down half the businesses in the area. Our place upstairs, where the studio and the mixed martial arts are, you can’t get boats up there to fix them… It would just mean that those properties would lie unused and vacant. And we would just have to rip everything up and find another property, which is just so wasteful…
“We’re hoping to push it out as long as we can and hopefully in that time Council will see reason and rezone the area, because there’s been talk about rezoning anyway.
“I mean look at it on a practical level: if you’ve got the zoning the way that they have it and hardly anybody in the local area is actually using these commercial premises for those reasons, then it tends to suggest that there’s not that big a demand for those industrial purposes. So why not take that as an opportunity to update the zoning?
“It’s like this ridiculous scenario where you’ve got these like bureaucrats trying to shut down successful businesses at a time when small businesses have suffered a lot over the last couple of years.
“If all of us were to shut up shop and move out it would cause harm to the community, because the three fitness studios service hundreds and hundreds of people – I’d say 1000s – all in the local area.
We employ people from the local area too. And if we all shut up and leave, I don’t think the landlords will be able to find new tenants. So, there’ll just be unused premises – and there’s no public interest in that.”
