Public interest
12. Whether, having regard to the circumstances of the case, and the issues raised in submissions, the proposed development is in the public interest?
Particulars
12.1 The issues giving rise to public concern include:
12.1.1 Excessive hours of operation.
12.1.2 Excessive and visually intrusive signage and building facade colours and advertising.
12.1.3 Bulk and scale and visual intrusion of the proposed acoustic fence.
12.1.4 Increase in motor vehicle traffic and associated noise, fumes, car headlights, vehicular movement and safety concerns.
12.1.5 Offsite motor vehicle parking by patrons in surrounding streets.
12.1.6 Noise.
12.1.7 Lighting and glare.
54 The following emerged as the salient issues:
· Consistency with existing and desired future character;
· Amenity;
· Noise emissions;
· Landscaping;
· Traffic & parking;
· Cumulative impacts; and
· Public interest.
The evidence and findings
55 During the course of the hearing, many of the issues were resolved. Mr Nash identified his main residual concerns as relating to the increased activity on the land, the light reflected onto the face of No 60 Maroubra Road, glare and heat load onto the western face of No 60 Maroubra Road and at night headlight glare in the front windows of properties opposite in Maroubra Road.
Impacts resulting from intensification of the use
56 Issue 2 was whether the proposed development would have an unreasonable impact on the amenity of the surrounding residential area by reason of the intensification of the use of the land having regard to the proposed change in the manner and character of the proposed use when compared with the existing use. This was the main issue.
Non-measurable amenity impacts
57 Ms Duggan submitted that the lack of consideration by the applicant to the non-measurable amenity is a problem. She submitted that there is a change of use that would result in increased traffic movements of up to 180vtph (vehicle trips per hour) in the peak hour, lighting, signage and retail activity and all would serve to remind those living nearby that they no longer live in a residential area.
58 Ms Duggan submitted that the non-physical character of the commercial use and increased hours of its operation need to be taken into account in assessing the amenity impacts of the proposal. She submitted that the intensification and the nature of the proposed use would be inconsistent with the area and as a result the application should be refused. She submitted that a s 79C assessment of the application, taking into account the existing use, having regard for the decision in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 per Pain J at para 81would lead the Court to this conclusion, and no conditions can overcome that inconsistency.
59 Ms Duggan also referred the Court to the decision of Lloyd J New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154, para 53-61, where his Honour accepted that the concept of amenity included those of perception and that were non-measurable. She submitted that the concept of amenity is wide ranging and when assessing non-measurable impacts there is a need to consider the expert evidence carefully.
60 Mr Craig, QC, submitted that the activity would be largely screened from view from No 60 Maroubra Road and from the buildings to the rear and as a result the adverse impacts have been mitigated.
61 Having carefully weighed the evidence of the non-measurable impacts relating to the intensification of the use, I am satisfied that given the proposed screening of the activity any non-measurable amenity impacts would be maintained within acceptable limits, such that the proposal would not be refused for this reason.
Traffic, deliveries and plant noise
62 Ms Duggan submitted that the task of assessing this aspect of the proposal is mainly related to the volume of traffic attracted to the use. She submitted that the evidence of the residents is quite compelling and it would be necessary for the Court to determine the existing character and how that character would be changed by the proposal in this regard. She submitted there is a need to consider each and every objection and that the residents have expressed great concern about the introduction of commercial use on the land that they contended would undermine the peaceful nature of the area. She submitted that intense use of the proposed commercial uses including signage, people, hours, noise of use and traffic are objected to.
63 Mr Hewitt the Court-appointed traffic expert was content that the proposal would adequately provide for car parking and loading associated with the proposal.
64 Mr Gross the Court-appointed acoustic expert considered the noise impacts and aural privacy of neighbours due to the use of the car park and of the loading dock at the times proposed. Ms Duggan accepted the evidence of Mr Gross, and that with the erection of the proposed acoustic structure along the eastern boundary, the aural privacy of neighbours would be adequately addressed. Without the acoustic screening Mr Gross had determined that there would be an exceedence of 2dB at front and rear during the day and 7dBA at the front and 3dBA at the rear during the evening. Although the proposed loading dock exceedence was not quantified Ms Duggan submitted that it would probably be around 4dBA when figures are obtained from a different document.
65 Mr Gross concluded, as Ms Duggan submitted, that the mechanical plant noise requires attenuation of around 15dBA to meet his recommendations and can be effectively acoustically treated to meet the required standards.
66 Mr Craig, QC, submitted that customers' cars would enter and leave via the entrance in Maroubra Road seven days a week during the hours of operation, and deliveries would be confined Monday to Friday and limited to six per day and only one would be as large as a 8.8m truck with other deliveries by smaller vans. The trucks would enter from Maroubra Road and leave via Glanfield Street. He submitted that Mr Gross had taken this activity into account.
67 Mr Craig, QC, submitted that Mr Gross had calculated the additional noise created by vehicles entering and leaving and of door closing and noise associated with vehicles using the car park; and these are now satisfactorily addressed by the acoustic structure along the eastern side of the land. Also, Mr Craig, QC, submitted that Mr Gross had identified the amenity impacts and assessed the application against the intrusive noise criterion and after applying that more stringent amenity criterion he had concluded the amenity of nearby residential properties, including No 60 Maroubra Road, would be acceptable.
68 I am satisfied that noise associated with the movements of vehicles within the car parking area during the hours of operation can be appropriately treated by the acoustic structure proposed along the eastern side of the proposal. Also the mechanical plant may be conditioned to ensure any noise is appropriately attenuated. Thus, I would not refuse the application for reason of noise impacts.
Lighting and hours of operation
69 Mr Craig, QC, submitted that there is no relevant change to lighting resulting from the proposed use when compared with the existing. He submitted that the lighting associated with the existing motor showroom with its signage is presently lit at night and does take on the character of a non-residential use. He also submitted that to the extent that the proposed lighting is different to that which exists it is intended only to meet the security needs and to minimise the impact on adjacent residential uses including No 60 Maroubra Road.
70 Mr Craig, QC, submitted the illuminated signage would be extinguished at closing time around 8pm or 9pm depending on the day and the general lighting would be switched of one hour after closing. The only remaining lighting would be under awning or affixed to the western fascia of the acoustic structure directed at the building for security purposes. He submitted that this site-lighting is designed to minimise spillage to the east and back onto the face of the residential building at No 60 Maroubra Road and after closing would be limited to 1.9lux which is a very low level of light and not so detrimental or foreign that the development would be condemned on this count.
71 Ms Duggan submitted that presently a 'benign' use is located on the land with limited to hours of operation and generally within normal business hours and the use is one that does not generate huge volumes of traffic or intense periods of activity. She submitted that the present hours coincide with commercial endeavours and only movements are people coming to collect cars or the shuffling of cars as per the evidence of Ms Cooper. This benign use she submitted would be replaced with one that operates seven days per week including holidays and extends into hours of respite.
72 She submitted that Mr Sheather had said, "…when I come home from work I am looking for the comfort of home, and the present uses close or are closing when I come home."
73 She submitted that the proposed uses would stay open until 8pm Monday to Wednesday and on 9pm on Thursday and Friday and 8.00pm at other times. She submitted this is not early evening. At this time people would have put their children to bed and they are likely to take a walk around the neighbourhood when the showroom lights and the pylon sign would be lit up. There is no screening of the proposed commercial use and as a result she submitted that use would be lit with display shelves visible and people would be coming and going from the car park via Maroubra Road at the rate during the peak hour of 180vtph, (vehicle trips per hour). She submitted that there is no evidence to suggest that that the present use had ever approached that level of activity. That difference in the intensity of use would be clearly perceptible would not be discrete and would scream retail, she submitted. The use would not be benign with around 90 people per hour entering the store. She submitted that even those living in Glanfield Street would see the premises lit up until closing. After that the car park will be illuminated with the level of light maintained for CCTV pictures and to attract attention to it. The object of the applicant is to make itself visible and as a result it would not be benign. The lights would be on seven days a week and this would be screaming inconsistency with what presently exists on the land. She submitted that it would be lit up at night and does not speak beneficially of the proposed use.
74 She submitted the council embraced the proposal to remove the pylon sign and that would not go near to making the proposal acceptable. Even if a tree or pair of trees were planted in its place this would not diminish the "…in-your-face impact of the proposal."
75 I am satisfied that the activity associated with the car parking and pedestrian entrance on the eastern side of the proposal would be satisfactorily shielded from view by the proposed acoustic structure and the lighting and the hours of operation would not be such as to warrant the refusal of the application.
Landscaping
76 Ms Duggan submitted the proposed landscaping would be 'token'. The only landscaping proposed is that in the strip on the Royal Street side of the building and vacant lot and the strip at the rear in Glanfield Street and in the planter box adjacent to the first car parking space.
77 I am satisfied that the landscaping augmented by a new canopy tree in place of the pylon sign would be appropriate in the circumstances.
Headlight glare
78 Mr Nash was concerned that the headlight glare likely to be generated by cars leaving the car park at night would adversely impact on the houses opposite the land in the vicinity of Nos 77 and 85 Maroubra Road. Maroubra Road at the land is 30m wide and the houses are setback around 5m. Given this distance across a busy arterial road I am satisfied that headlight glare would not be such as to warrant refusal of the application. If there were any residual concerns, the applicant might be willing in consultation with the council, to plant screening shrubs in the verge of the houses opposite.
Pylon sign
79 Mr Nash was critical of maintaining the existing pylon sign in Maroubra Road. He agreed that it would be appropriate to maintain the over-awning sign, however, he sought by condition that the pylon sign be removed and replaced with canopy trees in order to protect the residential environment.
80 Mr Craig, QC, submitted that were the Court to conclude that the pylon sign in that location were inappropriate the applicant would be prepared to abide by a condition requiring its removal.
81 I consider that given the close proximity of the use to the apartment building at No 60 Maroubra Road, and to other residential uses nearby that it would be appropriate to reduce the amount of signage proposed. I accept the evidence Mr Nash and the applicant's offer and would impose a condition that would require the removal of that sign and its replacement by a canopy tree or trees.
Glare and heat load off acoustic structure roof
82 Mr Nash considered that giving the slight angle and the orientation of the proposed roof of the acoustic structure, the sun might reflect into the lower level apartments of No 60 Maroubra Road. He was also of the opinion that this reflection of the sunlight might also increase the heat load in those affected units. This would be an impact on the amenity of those units that might be avoided if the roof were appropriately treated.
83 Mr Craig, QC, submitted that the applicant was prepared to cover the roof with shade cloth in order to avoid this consequence. This was described in a letter from the architects in Exhibit S. The council to this end proposed condition 20(a). I have also allowed for the shade cloth to be substituted by another more substantial material.
The acoustic structure shall be treated with shadecloth or similar in accordance with the drawing [Exhibit S] prepared by Christiansen O'Brien Architects, with the shadecloth or similar to be affixed to the metal roof sheeting with 25mm timber battens, to minimise potential reflection and heat radiation and to be sympathetic with and compatible with the building and surrounding environment. The shadecloth or similar is to be repaired or renewed as required to maintain it in a reasonable state for the life of the development. The shadecloth fabric or similar shall be AAA grade quality, tested to Australian Standards AS4174-1994 and have a 14-years manufacturer's warranty and the colour shall be in accordance with the colours available from Absolutely Covered, PO Box 529. Cloth or similar details to be submitted to and approved by Council's Director of City Planning prior to the issue of the construction certificate.
84 I do not consider the proposed acoustic structure would be so visually bulky and intrusive as to warrant the refusal of the application under Issue 5. I am also satisfied that the proposed structure would not adversely affect the visual amenity of the locality or be overbearing when viewed from the adjoining residential flat building at No 60 Maroubra Road.
Glanfield Street and truck egress
85 If a vehicle were parked in a specific location within Glanfield Street opposite the truck egress it would not only restrict egress of the 8.8m truck but also the through movement of vehicles along Glanfield Street. Mr Hewitt was asked about a car parked in the location shown in the photographs in Exhibit 22. He placed the turning path templates of the 8.8m truck on the plan in Exhibit 24 and concluded that if a car were parked as shown in the photographs the turning movements of the truck would be restricted but otherwise the truck would have free egress.
86 I am satisfied that if the truck were restricted in its egress manoeuvre then it would be necessary to arrange for the driver of the vehicle restricting that movement to move the vehicle or for the truck to back and fill within Glanfield Street and on the apron to the loading dock until the obstruction were cleared.
87 It might be possible to back out through the subject land into Maroubra Road if no other route were possible. Such a manoeuvre is not ideal and would need to be undertaken with supervision.
88 Mr Craig, QC, submitted that the frequency of undertaking the egress movement is restricted to one truck per day on weekdays. He submitted that the frequency of a vehicle being parked in a position to obstruct the truck movement is few and as Mr Hewitt said on the three occasions he visited the land he had not seen a car parked there so as to inhibit the manoeuvre out of the site. He submitted that the consequences are slight as it is not a daily event as there is simply a low number the trucks making this turn.
89 Given that the number of occasions on which such a manoeuvre would need to be undertaken is likely to be few, I would not refuse the application for this reason. However, if the obstructing vehicle is habitually parked opposite the egress drive it might be necessary to impose a parking restriction on the northern side of Glanfield Street. Those are not warranted at this stage.
Consistency with existing and desired future character
90 Issue 1 was whether the proposal would be compatible with the existing and desired future character for the residential precinct in the context of the 'planning principles' embodied in Fodor Investments v Hornsby Shire Council, Project Venture Developments Pty Limited v Pittwater Council and Randall Pty Limited v Leichhardt Council.
91 In Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71, Roseth SC identified four questions that usually arise in the assessment of existing use rights. Two of those questions are relevant to the issues in this case:
How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessments.
What are the impacts on adjoining land?
The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.
92 Addressing the above principles, I am satisfied that the future character of the area will be maintained much as presently exists. This is because the bulk and scale of the proposal would not be increased markedly as it is proposed to reuse the existing building and along the eastern side of the land the acoustic structure is proposed to be added in order to screen the activity within the car park and at the entry. This acoustic structure would not be excessive of size and would effectively screen from view of the occupants of the apartment building at No 60 Maroubra Road the activity on the eastern side of the proposal.
93 I am also satisfied that the likely amenity impacts on neighbours would be satisfactorily addressed as was discussed above. As a result I am satisfied that the relevant planning principles in Fodor have been adequately addressed.
94 In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Roseth SC said (at par 24):
Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
Is the proposal's appearance in harmony with the buildings around it and the character of the street?