Bongiorno Hawkins Frassetto & Associates v Griffith City Council and ors

Bongiorno Hawkins Frassetto & Associates v Griffith City Council and ors - [2007] NSWLEC 551 - NSWLEC 2007 case summary — Zoe

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10 Vehicle access to the supermarket is proposed as a "left-in" only access from Burrell Place, located approximately midway along the street. A vehicle entry and exit point in the north-western corner of the site at the intersection of Binya Street and Anzac Street is proposed via a proposed new roundabout. A loading dock and manoeuvring area for delivery trucks and service vehicles is proposed on the southern side of the site off Wakaden Street. The proposal includes landscaping to some 15% of the site, predominantly in strips around 1.5 m to 2.0 m in width but with some larger areas around the street frontages. Relevant planning controls 11 The site is within the 2(a) Residential zone under Griffith Local Environmental Plan 2002 (LEP 2002). The proposed use is permissible with consent as a "shop or shopping centre". The Dictionary to LEP 2002 provides the following definition: shop or shopping centre means a building or place used for the purpose of selling, exposing or offering for sale by retail goods, merchandise or materials, but (in the table to clause 10) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary. 12 The site is not located within a Heritage Conservation Area, but is located within the vicinity of a heritage item (St Alban's Church) listed in Sc 6 of LEP 2002. 13 Clause 10(2) provides: (2) Consent may be granted to development (otherwise than as complying development) only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development. 14 The 2(a) Residential zone objectives are: ( a) To set aside land to be used for residential purposes and associated facilities, and (b) To ensure full and efficient use of existing social and physical infrastructure and that the future provision of services and facilities meets any increased demand, and (c) To enable development of land within this zone for residential purposes, and (d) To enable development of land within this zone for tourist, open space and recreation purposes, and (e) To enable the development of a variety of housing types while maintaining the existing character of the residential area throughout the City of Griffith, and (f) To enable development for the purpose of retail, commercial and professional services in locations in residential neighbourhoods where such development is compatible with the amenity of adjoining land in respect of scale, height and type of buildings and traffic generation, and (g) To enable the development of land within this zone for the purpose of land uses that are appropriate within the surrounding urban living area where the scale, height, type and traffic-generating characteristics of the development are compatible with the character and amenity of the surrounding urban living area and with existing or proposed nearby development. 15 Clause 26(3) provides requirements for flood liable land and cll 31 and 37 provide heritage requirements.

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24 Affidavits opposing the proposal were provided from: o Mr William James Lancaster of 99 Binya Street, o Ms Luigina Gaffey of 3/287 Wakaden Street, o Mr Kenneth Ravenshaw Cheers, the operator of the financial and insurance business at 96 Binya Street, o Mr Anthony Arthur Jones, a director of Rossies Supermarket Pty Ltd and operator of a supermarket in Banna Street, o Ms Carolyn Jane White of 65 Binya Street, o Ms Sherene Blumer of 12 Whitton Street and o Mr Fredrick Albert Harrison, the Chief Executive Officer of the Second Respondent. 25 Affidavits supporting the proposal were provided from: o Mr Brian Grandi of 48 Nelson Drive, Citrus Grove Estates o Mr Francesco Battaglia, the proprietor of a hairdressing salon at 451 Banna Street and o Ms Rosanne Graham of 6 Salvanza Crescent. 26 The following residents provided evidence on-site: o The Reverend Robert Harris, the Dean/Rector from St Alban's Anglican Church, o Ms Francine Harding of 101 Binya Street, o Mr Warren Muirhead of 49 McNabb Street, o Ms Adrienne Wilson of 29 Palla Street, o Ms Mary Lancaster of 99 Binya Street, o Mr Alistair Low of 40 Messner Street, o Captain Daniel Ross, Salvation Army, Binya Street, o Ms Diana Ralph of 13 Wade Street, o Ms Jenny Geddes of 102 Binya Street, o Ms Lynette Wilson of 2/293 Wakaden Street, o Mr Reg Erskine of Farm 39 Benerembah, o Mr Frank Zanotto of Farm 1590 Hanwood, o Mr Tom Marriot of 50 Probert Avenue, o Mr Bob Harris of 3/29 Sidlow Road, o Mr Edwin Cheers of 61 Erskine Road, o Mr Frank Lamond of 118 Macarthur Street, o Mr Kevin Knox of 12 Binya Street, o Mr Ian Wolfe, Business Manager Griffith Base Hospital, o Ms Maureen Parker of 32 Hart Street, o Ms Belinda Lane of 58 Jondaryan Avenue, o Mr Frank Violli of Farm 1812 Millinson Road, o Ms Margaret McGregor, Secretary of the Griffith Ratepayers & Residents Association Inc. 27 The concerns expressed by the majority of the residents on-site related to: o traffic congestion, and particularly delay of emergency vehicles, o height, bulk, setbacks, design and materials not appropriate for the locality, o impact on the heritage listed St Alban's Anglican Church, o detrimental amenity impacts, particularly noise from roof plant and loading dock, o the site being inappropriate and not in character with the locality, o concerns about trolley management and litter associated with supermarket, o stormwater management and flooding concerns, o loss of street trees, o loss of property values, o long hours of operation of the supermarket, o proximity of bottle shop to the Salvation Army facility and, o impact of trucks and operation of the loading docks off Wakaden Street. 28 Those residents that supported the proposal stated that the proposal: o should not be responsible for existing traffic problems, o will provide additional employment and o will provide shopping facilities closer to existing residential areas. 29 The First Respondent also tendered copies of the submissions and petitions received by the council during the advertising of the proposed development.

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Juradowitch evidence 33 Mr Juradowitch comes to the opposite conclusion to Mr Shiels. He states that objectives (f) and (g) are the primary objectives for a commercial development. In relation to objective (f), Mr Juradowitch states that the proposed building will for most part have an overall height generally consistent with a medium density development. He acknowledges the proposal is larger in scale than the previous club building and adjoining buildings and is of a different type. The proposal is also a greater traffic generator however this in itself does not mean that it is in conflict with the objective. The relevant test in objective (f) is whether those features of the building render it incompatible with the amenity of adjoining land. Mr Juradowitch states that the following matters are relevant considerations: o the height is compatible with a two-storey scale development consistent with the zoning, o there are number of large buildings near the site, o very large setbacks are provided with the exception of the southwest corner, o extensive landscaping to the side boundaries is provided, o a dense landscaping screen is provided along the western boundary, o the building incorporates articulation to the walls and roof and the building finishes and colour add visual interest, o the site is situated on the northern edge of the Griffith CBD, o the planning controls envisage future medium density buildings of at least two storeys for the site, o existing roads are relatively busy arterial or important collector roads, and o any assessment of character and amenity impacts should include the former bowling club on the site. 34 Mr Juradowitch states that the primary amenity issues include visual outlook, noise, privacy, light spill, solar access and traffic. The visual outlook from the great majority of neighbouring residential properties will not be greatly different from that which existed when the site contained a bowling club. In his opinion, the amenity issues are not that significant or can be addressed through conditions of consent to the point where the proposal achieves a satisfactory compliance with the zone objective (f).

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35 According to Mr Juradowitch the proposed development accords with zone objective (g). In his opinion the relationship of the proposal to the surrounding urban living area and associated amenity is satisfactory. Issues such as truck movements, traffic generation and congestion, the need for intersection improvements, reduced parking to neighbouring land uses, noise and illumination from the open parking area and roof plant, movement of patrons in the parking area, signage, deliveries and shopping trolley collection are not matters that unacceptably impact on the amenity of the surrounding urban living area as the issues are not that significant or can be addressed through conditions of consent. 36 Mr Juradowitch notes that the site is not located in a quiet residential area. Customer and staff vehicles will access from relatively busy collector roads, with truck access restricted to Wakaden Street which, is an arterial road that carries substantial traffic flows, including trucks. It must be remembered that the previous bowling club generated traffic to the site in the evenings, which is a time that is more sensitive in terms of residential amenity. Findings - zone objectives The assessment approach 37 Clause 10(2) provides that consent may be granted to development only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development. There was some disagreement on the weight the Court should give the objectives. Mr Griffiths, for the First Respondent, submitted that the objectives are important and while not a "pre-condition" are a stop to the admissibility or suitability of the development. Mr Ayling SC, for the Second Respondent, submitted that the objectives are fundamental and pivotal to assessment of the application. Mr Robson SC, for the applicant, submitted that the objectives must be genuinely considered, however the First Respondent and Second Respondent overstate the status of the objectives. The compliance with the objectives is not a prerequisite to the grant of approval nor are the relevant objectives equivalent to an enabling clause such that development is only permissible "subject to" compliance with the objective.

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80 In the absence of more specific details on the delivery requirements for the proposed supermarket such as the number, type, times, characteristics of delivery vehicles and defined routes for trucks it is not possible to assess any impacts. In my opinion, condition 55 lacks certainty and finality and as such is not appropriate as a condition of consent (Mison v Randwick Municipal Council (1991) 73 LGRA 349, Scott v Wollongong City Council (1992) 75 LGRA 112). Conclusions - Objective (f) 81 For reasons mentioned in the preceding paragraphs, I find that the proposed development is incompatible with the amenity of adjoining land in respect of scale, type of buildings and traffic generation. The level of incompatibility, in my view, is so significant that the proposed development warrants refusal for this reason alone. For completeness I will briefly deal with the other issues. Objective ( g) - To enable the development of land within this zone for the purpose of land uses that are appropriate within the surrounding urban living area where the scale, height, type and traffic-generating characteristics of the development are compatible with the character and amenity of the surrounding urban living area and with existing or proposed nearby development. 82 Objective (g) requires consideration of the compatibility of appropriate land uses in relation to scale, height and type of buildings and traffic generation within the surrounding urban living area and with existing or proposed nearby development. Objective (g) differs from objective (f) in that it does not specifically refer to retail development and requires a test of compatibility with "character and amenity of the surrounding urban living area and with existing or proposed nearby development " rather than " the amenity of adjoining land". The compatibility test in objective (g) is a wider test than "adjoining land" by a specific reference to "surrounding urban living area and with existing or proposed nearby development" however the comments in the previous paragraphs on objective (f) are also relevant to the surrounding urban living area.

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88 Mr Leyshon and Mr Dimasi are both qualified and experienced experts in the field of economic analysis of shopping centre developments. They helpfully rely on the same approach to determine whether the additional floor space of the supermarket can be supported. This is: Supportable floor space = Total retail expenditure Turnover per square metre where Total retail expenditure = Total population x Per capita expenditure 89 There was agreement between Mr Leyshon and Mr Dimasi on the extent of the trade area likely to be serviced by the Griffith CBD. Mr Leyshon and Mr Dimasi also agreed that any impact from the proposed development will be almost entirely on the existing and proposed supermarkets in the Griffith town centre rather than on specialty shops. Their disagreement on the other three factors was significant and lead to their opposing conclusions. I will briefly deal with the outstanding differences on these factors. Total population 90 Mr Leyshon states that the 2006 Australian Bureau of Statistics Census Data (ABS data) is released over time and is only partially available for the Griffith trade area. For the period of 2006 - 2016, Mr Leyshon estimates a total average annual growth of 0.58% or a range between 0.4% and 0.7%. The preliminary ABS data indicates an average annual growth of 0.1% between 2001 and 2006. He notes that the achievement of this population growth rate will be dependent to some extent on a recovery in rural conditions in the Murrumbidgee region over the next 10 years. If this does not occur a lesser average annual growth would be more likely to occur. 91 Mr Dimasi states that Mr Leyshon significantly underestimates the average annual growth rate for long term planning. It is important to consider the proposal as a major long-term capital work. In his opinion, the population outlook for Griffith as detailed in the Griffith Council Long Term Strategy represents a more reasonable approach. He estimates a total average annual growth between 1.4% and 1.6%. Total retail expenditure 92 Mr Dimasi relies on data produced by a specialist independent company called Marketinfo. Marketinfo produce economic impact assessments for a wide range of organisations through Australia. The estimated average spending level on retail items for the Griffith trade area in 2005 was calculated at $9,528 per person. This figure is supported by comparison with the ABS Retail Trade Series data estimated on a national basis.

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (5)