Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council

Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council - [2009] NSWLEC 1082 - NSWLEC 2009 case summary — Zoe

[16]

9 Also applicable is the Sutherland Shire Development Control Plan 2006 that was also amended concurrently with the amendment to the LEP. Relevantly applicable provisions of the DCP include Chapters 1, 2, 3, 7 and 10 that variously deal with design principles, locality strategies, urban design, traffic and parking and advertising. Advertising and public submissions 10 The application in its original and amended forms was advertised and a number of submissions, both supporting and objecting to the proposal, were received. Matters of concern to the objectors include: o The considerable number of cars and trucks that will use this street to access the development will adversely affect the pedestrian friendly nature of Belmont Street. o The additional traffic, including delivery trucks generated by this development will exacerbate the dangerous traffic conditions at the intersection of Belmont Street and the Old Princes Highway. o The entrance to the loading dock is in appropriately located adjacent to the entrance to the basement car park. o The noise generated by plant and equipment including delivery trucks operating at night will adversely affect nearby residential amenity. o The provision of a supermarket in this location will result in the fragmentation of the Sutherland shopping centre notwithstanding that it would be of benefit to nearby residents. o Parking demand in the locality is already very high and this development will exacerbate the present car parking deficiency. o Retail land uses will be out of character with this non-retail area. 11 The residents who supported the proposal explained that: o A supermarket in this location would be of benefit to the growing population of residents, including elderly residents who are unable to drive. o The existing buildings are unattractive and need to be replaced. 12 The application has been considered by the council's Architectural Review Advisory Panel and its Traffic Committee. Whilst the panel was concerned about numerous minor design issues and clumsy elements that are capable of resolution there are also a number of more significant concerns including: o The amount of floor space devoted to the internal movement of people within this building indicates that the site is not large enough for the intended use. This includes the fragmentation of the retail space that reduces the efficiency of the layout even though this may create a more interesting shopping experience if the building has less of an appearance of a warehouse. o On the Belmont Street frontage there are services and utilities, which do not enliven the street. The entrance to the commercial foyer is understated. Contentions 13 According to the council's Statement of Facts and Contentions, and the following are, in essence, the matters in issue: o The proposal is unacceptable having regard to the traffic generated by the proposed development, vehicular manoeuvring and insufficient provision for parking and poor design, taking into account relevantly applicable provisions of the LEP and the DCP. o The proposal is unacceptable because the site has not been amalgamated with the adjoining property at 700-702 Old Princes Highway as required by the DCP. o The proposal is unacceptable having regard to the design of the proposed development in terms of internal layout, streetscape, visual impacts and signage, taking into account the provisions of the DCP. Also the proposed development has an excessive building density reflected by the non-compliance with the maximum floor space ratio in the LEP. o The proposed development fails to provide a laneway at the rear of the site consistent with the requirements of the DCP. o The site is unsuitable for the proposed development taking into account the intensity of the retail use and associated multilevel basement car parking, site configuration and size. o The proposed development will result in the loss of a significant canopy tree located on adjoining land to the south. o The various matters raised by objectors and inadequacy of information. The evidence 14 On behalf of the respondent council expert evidence was provided by Mr K. Nash - town planning and Mr C. McLaren - traffic and parking and behalf of the applicant by Mr M. Ball - town planning and Mr R Nettle - traffic and parking.

[19]

18 Gross floor area is defined in the LEP's dictionary as follows: Gross floor area means the sum of the floor area of each storey of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, excluding: (a) the floor area of lift wells on any level and lift towers, motor rooms and stairwells within a basement or above the roof level, and (b) so much of the floor area of car parking (including vehicular access to that parking), required to meet any requirements of the consent authority, as does not exceed: (i) a total of 40 square metres in the case of a dwelling house, or (ii) a total of 20 square metres per dwelling in the case of a dual occupancy, or (iii) a total of 20 square metres per parking space in any other case, and (c) storage areas needed to meet requirements of the consent authority, and (d) plant rooms, garbage areas, switch rooms or the like within a basement. 19 By limiting gross floor area to the sum of the floor area of each storey of a building, any floor area that does not comprise a storey cannot be included in the floor space ratio calculation. Storey is defined in the LEP's dictionary as follows: Storey means a space within a building situated between one floor level and the floor level above, or the ceiling or roof above, and includes the space within the following: (a) foundation areas, garages, workshops, storerooms, basements and the like, whose external walls have a height of more than 1 metre, as measured from the ground level of the lowest point on the site, (b) an attic within a residential building, but only if: (i) the roof of the attic is pitched from more than 300mm above the floor of the attic or at an angle of more than 35 degrees, or (ii) the area of the attic exceeds 60 percent of the floor space of the floor level below. 20 Plainly, the proposed basements comprise spaces within a building situated between one floor level and the floor level above, or the ceiling or roof above. However because the definition provides that such spaces include basements and the like, whose external walls have a height of more than 1 metre, as measured from the ground level of the lowest point on the site, I accept that basements that do not have a height of more than 1 m above ground level do not comprise a storey.

[29]

34 However alternatives can be considered if certain assessment principles are addressed and, if an isolated site results, evidence is provided of offers made to the owner of that site for its incorporation into the development proposal. The assessment principles require that if a proposed development does not comply with the amalgamation requirement the following matters need to be considered: o Does exclusion of the isolated parcel compromise achievement of a plan, objective or standard particularly a design requirement or feature, provision of public open space for pedestrian link? o Does exclusion of the parcel compromise achievement of relevant planning strategy objective? o Can these objectives or standards be achieved by modifying the amalgamation pattern? o Is provision made, practically or in title, for vehicular access (including construction access) loading and unloading and the garbage servicing for the isolated site? 35 According to Mr Ball, the proposal is consistent with the amalgamation objectives taking into account that it will: o Promote the efficient use of the site and surrounding properties and ensure that a range of development types (as permitted under SSLEP and desired under the DCP) are achievable. o Will consolidate four of the five existing parcels in Site 8b. o The proposed amalgamation will allow a built form making a positive contribution to the spatial definition of this corner site and create sufficient amenity for existing and future occupants. o The efficient and safe parking and entry points are provided in the proposed design. o The proposed amalgamation does not isolate the lot at No. 700-702 Old Princes Highway. o No. 700-702 will remain available for amalgamation as part of Site 8a. 36 Mr Ball also considered the above-mentioned alternative amalgamation assessment principles essentially concluding that the objectives of the DCP would be met or at least not inhibited by the proposal's partial failure to achieve amalgamation. He also noted the applicant's unsuccessful attempts to acquire No. 700-702. Also, No. 700-702 can be part of the adjoining amalgamation Site 8a to achieve the aims of the DCP. Together, Sites 8a and 8b can both be physically developed in an orderly and economic manner. Hence the principles for an alternative amalgamation pattern are satisfied.

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