Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie [2007] NSWLEC 507 | Case summary

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the Council of the City of Lake Macquarie (the council) of a development application to demolish the existing structures and to construct a supermarket, shops and a medical centre with car parking, landscaping and road works at Lots 102 and 103, DP 878303, Lot 1, DP 105127, Lots 31 and 32, DP 732164, being Nos 1 and 3A Alton Road, and Nos 575, 577 and 579 Freeman's Drive, Cooranbong. 2 I visited the land in company with the parties on the morning of the first day of proceedings and heard from local residents and supporters. 3 I have concluded that the application should succeed and conditional approval is granted. The land 4 The 'L'- shaped parcel of land is situated on the northern side of Freeman's Drive. It has a frontage to Alton Road of about 32m and a frontage to Freeman's Drive of about 74m and an area of about 9,365m2. A reciprocal right-of-carriage way is located on Lot 102 and neighbouring land. 5 The land slopes down to the midpoint of the eastern boundary. The topography ranges from about 19.0m AHD at Alton Road down to about 12.5m AHD near the midpoint of the eastern boundary. 6 Most of the land is cleared. However, there are some exotic tree plantings in the front setbacks of the existing dwellings and along the perimeter boundaries. The tree species are both exotic and native. 7 At No 5 Alton Road, to the north of the land, on residentially zoned land there is a single-storey weatherboard cottage that is used as a home occupation as a florist. 8 On the subject land there is a weatherboard cottage known as No 3A Alton Road near No 5 Alton Road. A weatherboard cottage is erected on No 1 Alton Road that has been identified by the council as a provisional heritage item. This cottage after its recording, is to be relocated nearby. There is also a garage and small shed also erected on No 1 Alton Road. 9 On the subject land a single-storey weatherboard medical centre and outbuildings is erected on No 575 Freeman's Drive. On the subject land at No 577 Freeman's Drive there is erected a two-storey brick house and brick garage and on No 579 Freeman's Drive there is a single-storey brick cottage. 10 The subject land is in the village of Cooranbong, which is located on the coastal plain between the western shore of Lake Macquarie to the east and the forested ridges of the Watagans National Park to the west. 11 To the north, east and south of the land are residential dwellings. The existing low-scale Avondale Village Shopping Centre is located on land to the southwest on the corner of Alton Road and Freeman's Drive. Relevant planning controls Lake Macquarie Local Environmental Plan 2004, (LMLEP2004) 12 Under the provisions of the LMLEP2004 was gazetted on 19 March 2004, the land is zoned 3(1) Urban Centre (Core) and the proposal as shops, restaurants, medical centre and commercial premises is permissible with consent. 13 The objectives of the 3(1) zone under the LMLEP2004 are to: (a) provide land for commercial, retail, recreational and housing uses in a central location; and (b) generate viable employment and economic activity; and (c) create urban centres that are safe and vibrant social, cultural and community activity; and (d) create public spaces that are accessible, welcome all people and are a central focus of the community; and (e) provide for sustainable water cycle management. 14 The land to the north, east and south is zoned Residential 2(2) Residential Urban Living. Land to the immediate west is zoned 3(1) Urban Centre core, and beyond this is land zoned 2(2) Residential Urban Living. The proposal and its history 15 Development application No 2676/2006 was lodged with the respondent council on 22 December 2006 to demolish the existing structures and to construct a supermarket, shops and a medical centre with car parking, landscaping and road works on the land. 16 The proposed development would comprise a supermarket of 2,611m2; specialty shops of 928m2; and a medical centre of 160m2. Retail No 5 with 90m2 of floor space was added at the suggestion of the parties' town-planning single-expert to enliven the Freeman's Drive streetscape. Also proposed is a 151-space car parking area, (including 15 staff car parking spaces), located partly at grade and partly in a basement. Loading docks are also proposed. Notification 17 The original application was advertised and notified to neighbours and the council received 164 submissions during the exhibition period. Objections to the first notification were in Exhibit 4: 18 An amended application was further advertised on 9 January 2007. Objections to the second notification were in Exhibit 5. The council's decision 19 When the application was filed the council had not yet determined the matter. However, on 23 April 2007 the council refused the application for the following reasons, [Note: Notice dated 27 April 2007].

The development presents a poor interface between the development and adjoining residential land, including a 2.9 metre high acoustic wall adjoining residential development and a 71-metre long and four to eight metres high blank wall of the supermarket within 1.5 to two metres of the boundary.
The development fails to develop or reinforce the streetscape interface with satisfactory active street frontage.
The mix of customer vehicles, pedestrian movement and delivery vehicles is not adequately resolved.
The relationship of the proposed development on adjoining land has not been adequately considered.
The development fails to adequately integrate with the adjoining commercial/retail development and in fact isolates this existing commercial/retail development.
The location of the pedestrian ramp and traffic access ramp within three metres of a residential boundary is an unsuitable urban design/building response.
The proposal includes works on an adjoining property and no owners' consent has been provided in this regard.
The Regional Traffic Committee object to the proposal raising concern with the proposed access and intersection arrangements on Freemans Drive, and therefore fails to achieve adequate traffic management in accordance with State Environmental Planning Policy Number. 11 (Traffic Generating Development).
The traffic analysis does not consider the ten-year growth projections.
There are inadequate loading facilities for retail shops 2, 3, and 4 and the medical centre.
The stormwater plan appears to make no provision for the collection of stormwater runoff from the ramps to the underground car park.
The proposal fails to adequately respond to the existing heritage building identified on the site. The hearing 20 The appeal had been filed on 28 March 2007 as a deemed refusal. 21 The parties' traffic single-expert was Mr T Keating and the parties' urban design single-expert was Mr S F D McMahon. 22 On-site the Court heard evidence on behalf of the respondent council from local residents: · Ms S Williamson, resident of No 5 Alton Road, Cooranbong; · Ms J Williamson, resident of No 5 Alton Road, Cooranbong; · Mr K H Myers, managing director of 'The Elephant Shop' at No 567 Freeman's Drive, Cooranbong; · Ms Y Fitzpatrick, resident of No 2/78 Balers Road, Cooranbong; · Dr R M Ellison, medical practitioner, of No 9 Clifford Avenue, Cooranbong; · Ms M Reitze, resident of No 14 Clifford Avenue, Cooranbong; · Mr C B Porter, resident of No 52 Alton Road, Cooranbong who was in support; · Mr P Williamson, resident of No 5 Alton Road, Cooranbong. 23 On behalf of the applicant, evidence was given on-site by: · Ms A Balnave, resident of No 112 Cowans Road, Cooranbong, and president of the Cooranbong Chamber of Commerce; · Ms A Lockton, resident of Cooranbong and representative of the Central Coast Community Environment Network; · Mr G Frost, owner of Shop 16 'Optical and Hearing' Avondale Village; and · Mr R Kalaf, resident of No 35 Dandagara Road, Brightwaters, representative of the Avondale Shopping Village and body corporate. 24 Ms K Vincer, Principal Development Planner, Lake Macquarie City Council, prepared the statement of basic facts dated 30 April 2007. The issues 25 The salient issues identified as determinative by Mr Newport, for the council, were: · Traffic concerns on Freeman's Drive; · Internal traffic and pedestrian conflicts; · Adverse streetscape impacts in Alton Road and Freeman's Drive; · Adverse effect on No 5 Alton Road.

35 Mr Keating was aware of the need to provide adequately for pedestrian safety having regard to the fact that there is a retirement village opposite the land in Freeman's Drive. Mr Keating had accepted the accuracy of the traffic analysis carried out by the applicant's traffic engineers Thompson Stanbury Associates. 36 The applicant was willing to submit to Condition 20 - Traffic Management that addresses some of the council's concerns in respect of traffic and parking. 37 Mr Robson, SC, took the Court to the 'Local Environmental Study, North Cooranbong', (LES) prepared for the council, dated 1 December 2006, that supports a residential land release to near the subject land at North Cooranbong and refers to the Lake Macquarie Lifestyle 2020 Strategy, [Note: Exhibit O]. The strategy identified the Cooranbong area as an important existing centre, in particular for the purpose of continued education and future residential growth. Addressing roads and transport issues in the light of a subdivision for North Cooranbong the LES stated, [Note: Exhibit O, p 9-8, para 9.6.6]: More detailed traffic modelling [is required] to assess the potential impact on the regional road network, and to identify improvements to the road network that would be required, if development were to proceed at North Cooranbong. There needs to be a review of projected traffic flows and timing of increases in relation to likely development program. As required by the RTA, any DA for subdivision of the subject site would need to provide both pedestrian and cycle networks that are located appropriately and designed to connect with the existing (or otherwise proposed) road networks off site. 38 Mr Robson, SC, also referred to the GHD Johnson Property Group 'Report for North Cooranbong Development', Addendum 2 - 2022, Full Development Scenario for 2500 dwellings, dated June 2007, (GHD Report), [Note: Exhibit 3 Tab F]. (Apparently the number of dwellings has now been reduced to around 2000.) This GHD Report assumed that Alton Road would provide a local street connection into the southwest corner of the subject development being the creation of a living area at North Cooranbong. Under the Link A (Alton Road) heading it is stated: The retention of the existing intersection layout of Freeman's Drive/ Alton Road stopline controlled arrangement should not encourage excessive levels of vehicular usage through this intersection. 39 The GHD Report assessed the 2022 network performance under the headings of intersection strategy; intersection performance; study area intersections; and performance criteria given with and without development scenarios and concluded that the level of service at the Freeman's Drive/ Alton Road intersection would be 'A' without development of North Cooranbong and 'B' in the morning peak and 'C' in the afternoon peak with development, [Note: Exhibit 3, Tab F, pp 16-7]. Levels of service 'B' and 'C' would be normally acceptable and not require significant upgrading. 40 The GHD Report noted in Table 6, 'Comparison of Key Intersection Performance Measures (2022)' that presently in the morning and afternoon peaks the Freeman's Drive/ Alton Road intersection is at a level of service of 'A', [Note: Exhibit 3, Tab F, p 19]. Such a level of service is optimal. 41 The GHD Report assessed the midblock performance of roads in the study area during the morning and evening peaks, both with and without development of the living area at North Cooranbong, and noted the volume to capacity (VR) ratios. Presently the Freeman's Drive between Alton and Deaves Roads the morning peak VR is 36.4% and afternoon peak VR is 39.9%. Deaves Road is to the west of the intersection of Alton Road and Freeman's Drive removed from the subject land but close enough to be useful for traffic management considerations. With the development of North Cooranbong the morning peak VR would be 93.1% and afternoon peak VR would be 95.8% based on a midblock assessment of 1,400 vehicles per traffic lane. These figures show that the present two-lane Freeman's Drive would be of sufficient width for the projected increased flows until around 2022, even with the development of North Cooranbong. Thus, in the summary of findings of the GHD Report with and without development of North Cooranbong living area, the Freeman's Drive/ Alton Road with a stop sign control is expected to operate satisfactorily and no midblock road upgrade of Freeman's Drive would be required in the vicinity of the subject land with full development of North Cooranbong, [Note: Exhibit 3, Tab F, p Addendum 2]. 42 The Statement of Environmental Effects that accompanied the present development application provides a 'Traffic Management Plan and Sight Distance Diagram for the Development of Lots 102-103 (DP 878303), Lots 31-32 (DP 732164) & Lot 1 (DP 105127) Alton Road and Freeman's Drive, Cooranbong,' prepared by Thompson Stanbury Associates, (TS Report) dated November 2006, [Note: Exhibit J, Volume 2, Appendix 1] and shows the traffic control works suggested in Freeman's Drive to accommodate the proposal. These traffic control works are included in Condition 20. 43 Consistent with the GHD Report the TS Report concludes that, [Note: Exhibit J, Volume 2, p 25]: The junction of Freeman's Drive and Alton Road is projected to continue to operate with an overall intersection level of service 'A' incorporating the subject development. The provision of exclusive left and right turn lanes exiting Alton Road and the proposed 'seagull' junction treatment is projected to result in a reduction in the average vehicular delays existing Alton Road notwithstanding the additional traffic projected to be generate by the subject development (and future residential subdivision. Whilst minor increases in the average vehicular delay and the degree of saturation are projected at the junction of Freeman's Drive and Central Avenue as a result of the additional traffic, the junction is projected to continue to operate with an overall level of service of 'B' - representing good operating conditions. 44 The TS Report concluded, [Note: Exhibit J, Volume 2, p 27]: …there are no traffic related issues associated with the proposed development which would present this Practice from recommending the proposal for Council approval. 45 Having regard to the traffic related evidence before me, I am satisfied that the present application should not be refused for reason of inadequate traffic management in accordance with State Environmental Planning Policy Number 11 (Traffic Generating Development) or that the applicant did not adequately consider the ten-year growth projections. On the contrary, I consider that the applicant has appropriately considered the proposed vehicular access and intersection arrangements on Freeman's Drive. Should Freeman's Drive reach capacity in the future, I am satisfied that the proposed traffic control works associated with the present proposal would not preclude the RTA from upgrading this local arterial road. 46 I note that the council has not adopted a Section 94 contribution plan and no contribution is sought for upgrading the road system in the future. As part of the planning process this is the most appropriate method of ensuring funds are provided for infrastructure works. Internal traffic and pedestrian conflicts 47 The HRDC and the council was also concerned that there would be conflict between entering and leaving cars at the Freeman's Drive entry and that inadequate loading facilities had been provided. Since the committee's concerns were expressed the applicant has amended its plans. Three loading areas are now proposed. One loading dock is proposed near Alton Road to service the proposed 'Coles' supermarket. 48 However, Mr Newport, barrister for the council, submitted that there were still concerns relating to the movement of delivery trucks and customers' cars near the Alton Road access point and there is no evidence that the templates have been provided to support these movements. He submitted that there would be likely to be conflict between pedestrians and manoeuvring vehicles near the Alton Road access point. 49 Ms J Williamson gave evidence of concerns for the safety of residents if more traffic were encouraged into the area by the development of the land. 50 Ms S Williamson, who resides with her mother at No 5 Alton Road, expressed concern for the lack of infrastructure in the area of the proposed supermarket and that elderly residents in particular would be exposed to danger when crossing nearby roads. 51 Mr Keating of TPK & Associates Pty Limited, the single-expert accepted the analysis prepared by Thompson Stanbury Associates commissioned by the applicants and stated that "…the conflict between parked vehicles and delivery trips appears to have been minimised under the strategies submitted", [Note: Exhibit 10, p 11]. 52 Mr Keating took into account the turn path templates for critical manoeuvres of the delivery vehicle trip path on Drawing No 7807 DA3, Issue O [now Revision R] and the fact that car parking in the manoeuvring area would be allocated to staff vehicles. Presumably staff would be familiar with the loading dock arrangements and could assist in the loading process by moving their cars when necessary. 53 I accept the evidence of Mr Keating and I would not refuse the application for this reason. I also consider that the mixing of pedestrians and vehicles in the area of the car park close to the Alton Road access point is not such as to warrant refusal of the application. Some mixing of cars and pedestrians is to be expected within a supermarket car park. However, it would be expected that at the construction certificate stage greater detail of pedestrian accessways would be provided. Adverse streetscape impacts in Alton Road and Freeman's Drive and the adverse effect on No 5 Alton Road in particular 54 Mr Newport submitted that under the provisions of DCP1, Part 2.7.1 - Streetscape and Local Character would require an attractive, pleasant and safe streetscape. Under DCP1, Part 3.3.1 - Urban Centre Development, he submitted that quality urban design with active streetscapes is sought and to this end the council had adopted prescriptive measures, [Note: Exhibit 3, Tab C, p 15 (P1)]. He submitted that the proposal would not satisfy the intent of DCP1 in this regard. He submitted that the applicant had attempted to improve the streetscape in Freeman's Drive; however, the council would seek further improvements to the façade to better respond to its streetscape context. 55 Reason No 1 of the council's refusal of the proposal states that the development presents a poor interface with the adjoining residential land. In particular the council was concerned that by including a 2.9m-high acoustic wall, around the staff car parking and loading area, No 5 Alton Road would be adversely impacted upon. 56 Mr Newport submitted that in respect of the interface with No 5 Alton Road the proposal demonstrates a "…lack of recognition of the integrity of that residential property" and one that has been poorly treated. He submitted that there was no brief for 2.9m-high wall, 1.5m off the boundary. He submitted the visual amenity of the proposal would not be acceptable in this respect. He submitted that it is not appropriate to remind the occupants of No 5 Alton Road that they could have a residential property next door with a similar bulk. He submitted that a dwelling on the subject land would not wrap around No 5 Alton Road in the manner proposed and the effect could not be compared to a dwelling. He submitted that the proposal would be 'insensitive' and the proposed landscaping would ameliorate the effect only slightly. 57 Ms J Williamson gave evidence that the visual impact of the proposal and its likely noise pollution would affect the amenity of her property at No 5 Alton Road. 58 Mr McMahon supported the second amended plans of the proposal and suggested conditions be imposed for the construction of the loading dock acoustic wall so that: · Materials, colour and design on both faces of the wall would match the adjoining walls of the proposed supermarket in order to maintain the character of the development. · Landscaping along the edge of the wall, include climbing plants and a permanent and robust trellis to which the plants can attach in order to soften the visual appearance of the wall in the shopping centre car park. · A setback of the western edge of the wall from Alton Road to a point behind the setback of the front façade of the adjoining florist building (including the veranda) so that the wall does not project into the streetscape. 59 Mr Robson, SC, submitted that McMahon considered the proposal to be an acceptable and appropriate response to the zoning of the subject land. He submitted that the proposal would meet the requirements of the local environmental plan, [Note: Exhibit 3, Tab B, LMLEP2004 Urban Centre Core Zone p 12 of 119]. He submitted the aims of the LMLEP2004 would be met and a range of development is permitted in an urban centre. He submitted that the immediately abutting zone 2(2) provides for medium and high-density housing and is not the traditional residential urban living zone, [Note: Exhibit 3, Tab B pp 11 and 12]. He submitted that the design ensured that neighbours would not be overshadowed or overwhelmed by development. 60 Mr Robson, SC, conceded that there might be some adverse effects on the amenity of No 5 Alton Road as there would be a building and bulk that is not there now. However, he submitted the application is fully compliant and the applicant has addressed the impacts. He submitted the applicant would be willing to submit to a condition requiring appropriate articulation of the wall as suggested by Mr McMahon. The acoustic wall would be appropriately landscaped and despite the residents being deprived of a view presently enjoyed, the bulk would be a natural consequence of commercial development. The applicant he submitted has addressed, noise, overshadowing, bulk, and visual impacts. 61 I am satisfied that with the proposed conditions imposed, that complying development would not be such as to warrant refusal of the application. The acoustic wall although more extensive than a wall of a dwelling, would have a similar height. If the treatment recommended by Mr McMahon were applied to both faces of the wall, I am satisfied that the wall would not be seen as a foreign element in the streetscape. I note that the proposed acoustic wall would be slightly higher than the existing dwelling at No 1 Alton Road on the subject land and than the shed to the rear of the Alton Street lot. So presently there are structures of similar height to that which is proposed. To achieve the screening effect for noise and activity, the wall must be continuous around No 5 Alton Road. If the wall were screened by vegetation, both trees and vines, I consider, from a planning viewpoint, its benefits in reducing noise impacts would outweigh its adverse visual impacts. In addition, the proposed acoustic wall is near the boundary of the zone interface and some differences in building form might have been expected by residents living nearby. 62 Mr Newport submitted that the council was also concerned the proposed 71m long, four to eight metres high blank wall of the supermarket within 1.5m to two metres of the northern boundary would adversely impact on other properties to the north and east. 63 When asked by Mr Newport about the requirements for the design and treatment of the northern wall of the proposed supermarket, Mr McMahon stated that he was "…trying to avoid a plain tilt up concrete wall". He said that if relief of between 5mm and 20mm depth were cast in the face of the panels, it would create visual interest in the wall. He also suggested that different coloured panels be employed to break up and soften the visual impact of the proposed supermarket wall. Mr McMahon recommendations for the treatment of the northern wall are included in Exhibit 9, p 6, Item 5 and incorporated in draft Condition 37. 64 I am satisfied that the proposed supermarket wall incorporating relief and colour would enhance its visual appeal. I would not refuse the application for this reason. Lack of integration with Avondale Shopping Village 65 Over a number of iterations, the proposals integration with the Avondale Shopping Village has been improved in my opinion. The body corporate of the village and some of the owners and occupants now support the proposal when once they did not. The integration plan prepared by Mr Kalaf, a significant owner of the village, indicates how the proposal and the existing village would relate, [Note: Exhibit E]. 66 I am satisfied that the existing Avondale Shopping Village and the proposal would be well integrated and this would not be a reason to refuse the application. 67 Given the significant number of elderly persons living nearby who would be likely to use the centre when it is completed, I consider it would be appropriate to provide more footpaths and crossings to provide safe access to, from and within the centre. This is proposed and was also the opinion of both Messrs McMahon and Keating. Car parking deficiencies 68 Mr Newport submitted that if the proposal were carried into effect, eight car parking spaces, apparently approved for use with the Avondale Shopping Village would be lost, and as a result the application should be refused. Six car parking spaces would be lost for the truck turning area near Alton Road in the northwestern sector of the land and a further two spaces near the loading dock of the existing village. These spaces are coloured yellow on the plan in Exhibit 6. Mr Newport submitted that the village had been approved with 52 car parking spaces and this would be reduced to 44, if eight spaces were lost. 69 Mr Robson, SC, submitted that six of the lost car parking spaces appeared to be located on the subject land and he queried how these spaces could have been allocated to the village. However, he submitted that under the provisions of DCP1, Part 2.6, Table 4, p 29, for centres greater in area than 5,000m2 the car-parking requirement would be one space per 35m2. If this requirement were applied to the combined 'Coles' supermarket and Avondale Village complex with a floor area of about 5,000m2, 142 spaces would be required. If, to this number, were added, ten more car parking spaces to cater for the demand generated for the medical centre, 152 car parking spaces would be required. He submitted that the proposal, including the 'Coles' supermarket, would provide 152 car parking spaces and if to this the Avondale car parking were added, the total complex would more than comply with the DCP1 car parking requirements. He further submitted that under DCP1, Part 2.6, Table A, p 28, centres greater than 5000m2 are allowed a one-space reduction where bus shelters are provided and by condition the applicant is required to provide shelters. He further submitted that the DCP1 would permit shared use of car parking with the medical centre patrons. He submitted that the proposal would comply despite a reduction of eight car parking spaces, once the old and the new centres were integrated fully. 70 In fact 151 car parking spaces are now proposed and I am satisfied that the number of car parking spaces would comply, particularly if shared use were permitted. I would not refuse the application for this reason. Acoustic impacts 71 At the conclusion of the hearing the issue of acoustic impacts was not strongly pressed and I am satisfied that these impacts have been adequately addressed by Mr Chan the applicant's acoustic expert. Mr Chan examined the amended position of the acoustic wall around the loading dock and stated, [Note: Exhibit N]: · The 2.9m acoustic screen will be generally set back 1.5m from the northern boundary (moved closer to the loading dock) and the section screening the compactor will be set back between 1.125m and 1.735m from the boundary (moved closer to the compactor). The revised location would not reduce the acoustic performance of the acoustic screen as nominated in the acoustic report with reference 2006648/0112A/R2/WC. The acoustic screen will be sufficient in maintaining the acoustic amenity of adjacent properties. · In the acoustic report with reference 2006648/0112A/R2/WC, the loading dock had been assessed taking into account the typical operation of delivery vehicles included in the assessment were manoeuvring, airbrakes, refrigeration equipment, starting, reversing alarms and idling. The proposed acoustic screen will be sufficient in attenuating noise from delivery vehicles to within the nominated acoustic criteria. 72 Despite the concerns expressed by the Williamsons about noise, I would not refuse the application for this reason. 'Back cottage' 73 The council has identified, as a provisional heritage item, the weatherboard cottage at No 1 Alton Road, also known as 'back cottage', as it is behind another weatherboard cottage when viewed from Alton Road. The 'back cottage' is to be relocated in the vicinity. The heritage issue did not loom large in the appeal and if the back cottage is recorded as required by the conditions, I would not refuse the application for this reason. 74 For the above reasons, the appeal is upheld. Conditions 75 The conditions are those in Exhibit 12 as amended by Exhibit L. The conditions in final form were received on 13 August 2007 after the hearing. Orders 76 My orders are:

The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cited By (1)