Campbelltown-Minto Merchants Association Inc v Campbelltown City Council

CASES CITED: Waverley Council v Hairis Architects [2002] NSWLEC 180

APPLICANT Mr J Ayling (Senior Counsel) Mr R O'Gorman-Hughes (barrister) SOLICITOR Davis Legal LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsden Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11005 of 2008 Campelltown-Minto Merchants Association Inc v Campelltown City Council

JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for the use of the land at 10 Swettenham Road, Minto as a local market. This proposal involved the use of approximately 2/3 of the site for 27 stalls (with 23 being vehicle based) and the provision of 58 customer car parking spaces.

2 A unisex toilet addition is proposed to the existing amenities block in the centre of the site. Signage is also proposed as part of a separate development application.

3 The proposed hours of operation are between 7am and 5pm on Thursdays and between 5am and 5pm on Saturdays.

4 The site has the benefit of a consent that allows for the operation of a landscape supply business on the northern portion and a car sales yard/ parking on the southern part. Consequently the issues for the appeal concern: o The appropriate number of stalls and associated parking. o Compatibility of the markets operating, whilst the landscape supplies and car yard consent remains valid.

The site 5 This site is described as Lot 21 DP 815215. It is rectangular in shape with a 69m road frontage and a total area of 5382sq m. It is situated on the eastern side of Swettenham Road, which is a service road on the eastern side of Campelltown Road, adjacent to industrial and commercial uses.

6 The southern part of the site is currently used for car sales. This use is pursuant to a development consent for the use of the land for the car sales and also for landscape supplies.

7 Adjoining to the north of the site is an approved 'car-boot' markets, (No 14 Swettenham Road) that was granted consent on 17 August 1998. To the north of this is a shopping centre.

Planning controls 8 The following controls apply: o Campbelltown (Urban Area) Local Environmental Plan 2002; under which the site is within the 4(b) - Industrial zone and a "local market", as defined in LEP 2002, as a place for a market by or for a community group or merchants' association, is permissible with consent pursuant to cl 13. o Campbelltown (Sustainable City) Development Control Plan 2007. o Campbelltown Industrial Policy No 5.2.13 o Development Control Plan No 52- Off- street Car Parking.

The evidence 9 In response to the principal issues concerning the number of stalls and associated parking, Mr C Hazell was appointed the single traffic expert and he arranged various surveys to assess the parking impacts of the currently operating unauthorised markets on the site. These surveys were undertaken on: o Saturday, 6 June 2009 (long week-end), and o Saturday, 13 June 2009. 10 From this, he found that on Saturday 6 June, there were 277 vehicles with 116 stalls (based on goods sold) = 2.39 cars/stall. On Saturday 13 June, there were 260 vehicles with 110 stalls (based on goods sold) = 2.36 cars/stall.

11 However, he acknowledged some difficulties in separating the subject market parking from the other parking in the shopping centre and the adjoining 'car-boot' markets. These markets having been approved without any limitation on stall numbers on this site.

12 Nevertheless, he referred to the RTA Land Use Traffic Generation tables for market parking, which identifies a number of factors that need to be considered in assessing parking demand for market customers. Also, in section 5.7.7, the guidelines provide for the minimum and desirable levels of parking of off-street customer car parking as follows: o minimum provision 2 spaces per stall. o desirable provision 2.5 spaces per stall. 13 By reference to the survey results, assessment of the site conditions and application of the RTA rates he supported the proposal for 27 stalls and 58 car parking spaces. This equates to a cars/ stall ratio of 2 for the site.

14 In cross-examination Mr Hazell accepted that the survey yielded consistent results of approximately 2.4 cars/stall. He conceded that if a cautious approach to parking is adopted, relative to the RTA guidelines, then a parking rate of 2.4 cars/stall would be reasonable, in the subject circumstances.

15 However the submissions for council are that because of the unsatisfactory parking arrangements when both markets and the shops are open, then the desirable parking rate of 2.5 cars/stall should be required. In this regard reference was made to Mr Neave's statement, which contained photos of illegal and unsafe parking in the surrounding area on market days.

16 Consequently, the layout of the proposal was reviewed because the 27 stalls comprised 23 sites, including the stallholder's vehicle and the remaining 3 stalls having separate parking spaces. The review involved a rationalisation of the overall site area and a reduction to 24 sites, all including the stallholder's vehicle. The applicant then requested that consent be granted for this reduced number of stalls and associated parking.

17 According to Mr Hazell, the revised 24-site market would result in a customer parking rate of 2.4 cars/stall, which is consistent with that observed from the survey. This outcome can be achieved on the available site area. Compliance with the stated RTA 'desirable rate' would result in a further reduction of 1 site, allowing 23 sites overall. Taking into account the various limitations and qualifications made by the RTA, including "guides are not meant to be standards that are rigidly applied", it seems to me that with a reasonable level of parking surveillance, as already apparently occurs, then the additional stall (i.e. 24 total) is unlikely to have any material effect on the parking in the area.

Existing consent 18 The other substantive contention concerns the effect of the existing consent for the landscape supplies and the car sales yard that was granted in 1993. Reference to the approved plan, 93041-01 shows the car yard extending over a much wider frontage than that area currently occupied by the car sales yard, adjacent to the southern boundary.

19 Condition 5 of that consent required the provision of 21 off-street car parking spaces to be constructed, paved, line-marked and signposted. The approved car sales area and associated car parking are inconsistent with the current proposal because the markets are located within the approved car sales area.

20 Council's submission is that this needs to be rationalised and this should be achieved by the imposition of a condition requiring surrender of the original consent. Alternatively, the car yard should not be permitted to operate at the same time as the markets.

21 The applicant does not consider this reasonable or necessary, relying on the authority in Waverley Council v Hairis Architects [2002] NSWLEC 180, where His Honour Talbot J said: 30. There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site. Section 80A(1)(b) of the EP&A Act provides a facility for the consent authority to insist on the surrender of an existing development consent. It follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time. The legislature has left the option or election whether to require surrender of an existing consent to the consent authority. There is no warrant to read the power to modify in s 80A(1)(b) as being akin to or in the context of a surrender as Mr Ayling suggests. Just because the result may be little or no different in some cases does not necessarily lead to the conclusion that the power to modify is always to be construed in such a constrained way. 22 Considering these competing positions, it does seem to me that in seeking orderly planning outcomes, it is highly desirable to review the operation of competing consents, so there can be some accountability for compliance with the conditions of consent. In this case, the existing car yard appears to operate on a much smaller area of the site than shown on the approved plan. Presumably this would reduce its car parking requirements.

23 However, from the view it then seems that the concurrent operation of both the new markets and the smaller car yard are capable of co-existence. But I consider the conditions of consent should plainly reflect the relative conditions appropriate to each component. This is required in the interests of orderly development, which I consider should be determined prior to the granting of a partially conflicting consent. Findings 24 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the revised application for a 24 stall market and associated parking demonstrates reasonable compliance with the RTA 'desirable' customer car parking guidelines and is consistent with the survey information.

25 It seems that while there are a number of uncertainties generally when both markets and the shopping centre operate, the conditions of consent can control the subject proposed market to a reasonable extent. I do not consider its size should be further restricted to address any parking uncertainties arising from the adjoining market.

26 Another issue concerns the visual amenity of the proposal, whereby the applicant intends to leave certain materials on the site on non-market days. The council accepts this can occur if these materials are stored in the existing sheds and screened. This outcome also seems reasonable on the basis that appropriate gates are placed on the sheds to both contain and screen the materials from the street.

27 Insofar as the revised application merits conditional consent, I consider that this needs to be rationalised in terms of the existing consent for the overall landscape supplies market and the car sales yard. Otherwise, I think there is merit in restricting the car yard operations on days when the market is also allowed to operate.

28 These findings are made on the basis that the parties can make further submissions on any appropriate conditions that should be imposed regarding the overlapping consents and also those that would apply to the revised market stall layout and shed screening. 29 The parties are directed to E-Court on 8 July 2009 to make any arrangements for further submissions.

      R Hussey
      Commissioner of the Court
      ljr

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