Coles Myer Limited v Randwick City Council

Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71;; McDonalds Australia Limited v Randwick City Council [2006] NSWLEC 630; CASES CITED: New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; Project Venture Developments v Pittwater Council [2005] NSWLEC 191; Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587

DATES OF HEARING: 02/11/2006 and 03/11/2006, 04/06/2007, 05/06/2007 and 06/06/2007

APPLICANT: Mr M Craig, QC, instructed by Mr J G Taberner, solicitor SOLICITORS: Freehills LEGAL REPRESENTATIVES: RESPONDENT: Ms S Duggan, barrister, instructed by Ms T Litt, solicitor, with Ms A M Bowen, solicitor SOLICITORS: Bowen & Gerathy

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10612 of 2006 - Coles Myer Limited v Randwick City Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Randwick City Council (the council) to refuse a development application to partially demolish the existing building and to alter and add to the existing building and to change of use from a motor showroom and workshop to a retail liquor outlet, at Lots 1 and 2, DP 962347, being Nos 54-58 Maroubra Road, Maroubra. Existing use rights are relied upon. 2 I visited the land in company with the parties on the morning of the first day of the hearing and local residents gave oral evidence. On the second day of proceedings the applicant sought and received an adjournment to allow the plans to be amended to improve amenity impacts. It was expected that the matter would be dealt with at a hearing in January 2007, however delays have ensued. 3 I have concluded that the proposal is satisfactory subject to conditions and may be granted consent under the Act. The land 4 The land is situated on the northern side of Maroubra Road between Royal Street to the west and Hannan Street to the east. The land is rectangular in plan with a southern frontage Maroubra Road of 30.175m, a northern frontage of 30.175m to Glanfield Street and a depth of 67.065m, giving an area of some 2,023.6m2. 5 The land is largely flat with only a slight fall, down from Glanfield Street in the north to Maroubra Road in the south of about 500mm. 6 Glanfield Street is one way westbound with one traffic lane between Hannan Street to the east and Royal Street to the west. 7 Erected on the western portion of the land is a part single-storey and part two-storey brick building used as a car dealership, with sales and service facilities. A driveway and hardstand area used for car display is located on the eastern side of the land. 8 The surrounding land use is predominantly residential with a mix of multi-unit housing and dwelling houses of various architectural styles. 9 Abutting the land to the east at No 60 Maroubra Road is a six-storey face brick multi-unit housing building comprising thirty (30) dwelling units. Along the western side of this land is a driveway, providing access to ground level car parking under the building. 10 Further to the east along Maroubra Road are single-storey houses and residential flat buildings of various heights, with Maroubra Junction Town Centre about 600m to the east. 11 The land to the rear or north in Glanfield Street, development is predominantly in the form of two-storey detached dwelling houses, with Nos 44 and 46 Glanfield Street directly opposite the land and the side fence of No 57 Royal Street further to the south. There is a Celtis australis (Nettle Tree) and Magnolia grandiflora (Bull Bay Magnolia) growing within the nature strip on the northern side of Glanfield Street, in front of 44 Glanfield Street and 57 Royal Street and these together with a line of bollards on the property alignment of No 57 Royal Street restrict the width of the shoulders of Glanfield Street opposite the land. 12 Abutting to the west is part of the original car dealership, comprising a large hardstand used for car display and parking and a two-storey residential flat building at No 63 Royal Street. Across Royal Street to the west are single-storey and two-storey dwellings and a three-storey residential flat building on the corner of Royal and Glanfield Streets. Further to the north on Royal Street are single-storey and two-storey detached dwelling houses. 13 Opposite, on the southern side of Maroubra Road that is a sub-arterial road at this location, is single-storey and two-storey detached and semi-detached dwelling houses. Relevant planning controls Randwick Local Environmental Plan 1998, (RLEP) 14 Under the provisions of the RLEP the land is zoned 2A Residential and the proposal is is only permissible under the existing use rights, (EUR) provision of the Environmental Planning and Assessment Act 1979, (Act) and the Environmental Planning and Assessment Regulation 2000, (Regulations), [Note: Section 108 'existing-use rights' and Reg 41(1)]. 15 It was not in dispute that the subject land comprises an existing use for the purposes of s 108(3) of the Act and Reg 41(1). These provisions also have the effect that any provision of an environmental planning instrument that would derogate or have the effect of derogating from these provisions has no force or effect. This development application is for the change from one prohibited purpose to another prohibited purpose and was lodged with the council before recent amendments were made to the existing use regulations. As the transitional provisions apply, it was agreed that the application would not be caught by these recent amendments. 16 Subject to the granting of development consent, the relevant provisions of the Act and Regulations would enable the change from the non-conforming existing use of motor showroom and workshop to a retail liquor outlet. The heads of consideration under s 79C of the Act is to be used in assessing the application. State Environmental Planning Policy No 55 - Remediation of land, (SEPP55) 17 Clause 7(1) of SEPP55 requires the consent authority to consider whether the land is contaminated. If contaminated, it must be satisfied that the land is suitable in its contaminated state, or will be suitable, after remediation for the purpose for which the development is proposed. 18 If the land requires remediation to be made suitable for the purpose for which the development is proposed, the consent authority, being the council or the Court on appeal, must be satisfied that the land will be remediated before the land is used for that purpose. Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. Draft State Environmental Planning Policy No 66- Integration of Land Use and Transport, (Draft SEPP66) 19 The Draft SEPP66 aims to ensure that urban structure, building forms, land use locations, development designs, subdivision and street layouts achieve planning objectives by improving accessibility to housing, employment and services by walking, cycling and public transport, improving the choice of transport and reducing dependence solely on cars for travel and supporting the efficient and viable operations of public transport. Randwick Development Control Plan - Parking, (DCPParking) 20 The DCPParking requires on site parking and service delivery vehicle requirements for the proposed land use and design guidelines in regard to the parking layout, driveway access, access and parking for people with a disability and turning circles. Randwick Development Control Plan - Outdoor Advertising, (DCPOutdoor advertising) 21 The DCPOutdoor advertising provides guidelines and controls for siting and design of outdoor advertising. The proposal and its history 22 Development application No 754/2005 was lodged with the respondent council on 22 September 2005, to partially demolish the existing building and to alter and add to the existing building and to change of use from a motor showroom and workshop to a retail liquor outlet on the land. 23 A change in use from the motor showroom and workshop to a retail liquor outlet, that includes ancillary offices, associated signs, car parking, loading area and landscaping is proposed. 24 It is also proposed to partially demolish the northern end of the existing building to facilitate the proposed road widening, in a dedicated 4.57m wide strip of land along the full frontage of Glanfield Street, an 800mm wide landscaped strip and to form a loading area in the northeastern corning of the existing building. 25 Internal alterations, include the removal of the two existing staircases; the provision of a new staircase to the first floor level; removal of internal walls and construction of new internal walls to create a ground floor sales area of about 720m2; cool room of about 50m2; stockroom/loading area of 172m2; ancillary office and amenity space of about 215m2. 26 The development application also includes decommissioning and removal of the existing fuel storage and existing distribution infrastructure located on the land. It also includes the removal of a low brick wall on the Maroubra Road frontage and the line marking of a 800mm wide pedestrian pathway to the proposed entrance. 27 Also included are alterations to the existing hard-stand area on the eastern side of the land to accommodate on-site car parking for twenty-one (21) vehicles, a turning bay and bicycle parking for three (3) bicycles. All vehicles other than trucks and service vehicles are to enter and leave the land from Maroubra Road. All service vehicles are to enter from Maroubra Road and leave by Glanfield Street. 28 A 3.2m high acoustic fence was proposed along the eastern boundary to replace the existing fence. However, during the hearing the proposed fence was incorporated into an acoustic roof structure over the car parking spaces. 29 The proposed hours of operation are: Monday to Wednesday 9am to 8pm ∎ Thursday and Friday 9am to 9pm ∎ Saturday 9am to 8pm ∎ Sunday 10am to 8pm Delivery hours are proposed as: ∎ Monday to Friday only 8am to 3pm

30 Between 10 and 12 staff are likely to be employed, with six to eight staff working at the proposed retail liquor outlet at any one time. 31 Brick infills are proposed to most of the existing windows and openings on the western side of the building and to a number of windows and openings on the eastern side. Also proposed are new powder-coated louvred screens to the northern and eastern sides of the first floor balcony, with air conditioning and refrigeration plant located on that balcony. 32 The building is to be painted in neutral colours 'Moss Vale Sands' with a blue stripe (Taubman's CMLG Blue) on the Maroubra Road awning and the eastern façade. The proposal would involve the provision of seven (7) signs on the Maroubra Road frontage including the replacement of the message in the existing signs. The proposal would also involve the erection of three (3) traffic signs on the Maroubra Road frontage. Existing signs shall be variously removed, replaced or recycled. 33 It is also proposed to remove the existing awning on the eastern elevation of the building and to replace it with a new awning at a higher level than existing over the new eastern entry. The additional height is required to provide access along the driveway for service vehicles. 34 It is also proposed to erect new boundary fencing and gates to control access to the land after the approved hours of operation and to screen the loading area from public view. As part of the security measures CCTV cameras and car park lighting are to be installed. 35 Landscaping is proposed on the frontage of: · Maroubra Road: A landscaped planter 2.8m x 2m in the southeastern corner of the land where there is an existing pylon sign; · Glanfield Street: Two (2) 800mm wide landscaped strips adjoining the acoustic fence and building. Notification 36 The application was notified between 12 and 26 October 2005 and was re-notified between 2 to 16 November 2006, (to identify the relevant Lot and DP numbers), to nearby owners and occupants and the council received sixty (60) original letters of objection and twenty-five (25) form letters. In addition all neighbours were notified of the application by an advertisement in The Southern Courier. 37 On 14 October 2005, the applicant was requested by the council to address acoustic and flooding issues. 38 A further letter from the council was sent to the applicant on 31 October 2005 and required the applicant to address a number of other issues, including the need for coloured drawings to show the extent of the proposed building alterations, outstanding matters pertaining to existing use rights, truck manoeuvring diagrams and a road widening dedication along the full site frontage of Glanfield Street. 39 In response to these council requests, the applicant submitted on 2 November 2005, coloured drawings of the proposed changes to the building fabric and on 7 November 2005 a supplementary acoustic report and a flood study. 40 On 24 November 2005, the council received from the applicant a letter in response to existing use rights, an amended traffic report and manoeuvring diagrams. 41 On 1 December 2005, the application was referred to Maroubra Police for comment in accordance with a protocol for the Review of Development Applications established with the NSW Police Force and Randwick City Council. 42 On 31 January 2006, a meeting with representatives of the applicant, the applicant's consultants and council officers was held to discuss any outstanding development issues, including acoustic matters, traffic and road widening, flooding, lighting and security and signs. A letter confirming the issues discussed was sent to the applicant by the council on 1 February 2006. 43 On 21 February 2006 amended plans were received by the council showing a road widening dedication of 4.57m to Glanfield Street and a revised car park layout with all customer traffic entering and exiting via Maroubra Road. As well, a revised traffic report, a revised acoustic report, a car park lighting report and a revised signage schedule were submitted. 44 The amended proposal was re-notified until 22 March 2006. As a result of this re-notification and further advertising of the original and amended proposal, over 190 submissions were received, with some objectors providing more than one submission. 45 A report by the council's Director of City Planning was submitted to the Health, Building and Planning Committee of the council on 9 May 2006 that recommended approval of the application, subject to appropriate conditions of consent. 46 At the Health, Building and Planning Committee on 9 May 2006, the council resolved to refuse the application. The council's decision 47 By notice dated 12 May 2006 the council refused the application for the following reasons:

1. The proposed development is inconsistent with the aims and objectives of the Randwick Local Environmental Plan 1998, ('the Randwick LEP').
2. The proposal will be a more intensive use than the existing uses on the subject site and result in adverse impacts on the amenity of the surrounding residential area including noise, safety, lighting and glare.
3. The proposed acoustic fence will be visually bulky and intrusive and therefore will adversely affect the visual amenity of the locality and be overbearing when viewed from the adjoining residential property.
4. The proposed development does not provide adequate and satisfactory landscaping to soften the visual impact of the development.
5. The signage for the proposed development will compromise the visual amenity of the surrounding residential area.
6. The proposed development will result in an increase in vehicular traffic in surrounding streets, in particular heavy vehicular traffic in Glanfield and Royal Streets, which is considered unreasonable and unacceptable because the amenity of residents living on these streets will suffer as a result of the high and increased frequency of vehicular movements in and out of the site, and its attendant impacts including safety, noise and fumes.
7. The proposal provides insufficient car parking on-site to adequate for staff and customer parking.
8. The proposed development will adversely affect the character and amenity of adjoining and surrounding properties and the locality in terms of increased traffic, noise, lighting and glare, safety and security, signs and hours of operation.
9. The proposed development is not in the public interest. The hearing 48 The appeal was filed on 17 July 2006. 49 At the hearing the court heard evidence on behalf of the respondent council from: · Mr R Spicer, resident of No 57 Royal Street, whose letters of objection are Exhibit 5, Fols 60-3; · Mr R Sheather, resident of No 60 Maroubra Road, whose letters of objection are in Exhibit 5, Fols 38-45; · Ms M Seaton, resident of No 44 Maroubra Road, whose letter is at Exhibit 5, Fol 71; · Ms M Kwok, resident of No 48 Glanfield Street, whose letter of objection is at Exhibit 5, Fols 85-9; · Mr P Moyes, resident of No 25/60 Maroubra Road, whose letter of objection was provided on site; · Mr N Bible, resident of No 62 Glanfield Street, whose letter of objection is at Exhibit 5, Fols 163-4; · Ms K Cirillo, resident of No 49 Wild Street, whose letter of objection is at Exhibit 5, Fols 105-7; · Mr B Ryan, resident of No 47 Maroubra Road, whose letter of objection is a Exhbit 5, fols 55-6 and F6; and · Mr K Nash, consultant town planner. 50 On behalf of the applicant Ms J Cooper, consultant town planner; gave evidence; 51 Mr J Hewitt was the Court-appointed traffic consultant; and Mr N Gross was the Court-appointed acoustic expert. 52 Mr D Pirie, Senior Assessment Planner of Randwick City Council, prepared the statement of basic facts dated 16 August 2006, that was used as a framework of this judgment. The issues 53 On 28 September 2006 the council filed an amended statement of issues. Consistency with existing and desired future character

Amenity 2. Whether the proposed development will have an unreasonable impact on the amenity of the surrounding residential area by reason of the intensification of the use of the site having regard to the change in the manner and character of the proposed development from the existing use. Particulars 2.1 The proposed development will have a spread and duration of hours of operation that will significantly exceed those applicable to the existing use. 2.2 The proposed development will attract a greater number of patrons at a faster turn around time of service than the existing use. 2.3 The amount of vehicular traffic generation from the proposed development will be higher than that of the existing use. 2.4 Notwithstanding that the proposed development includes onsite parking, some patrons can be expected to park their vehicles off site in the surrounding streets. 2.5 The proposed development will require the operation of mechanical plant comprising of air-conditioning equipment, refrigeration equipment and exhaust fans that are not required for the existing use. 3. Whether the proposed development will adversely affect the character and amenity of adjoining and surrounding properties and the locality in terms of increased traffic, off-site parking, noise, lighting and glare, safety and security, signs, building colours and hours of operation? Particulars 3.1 Excessive number, size, type and illumination of signs will make the building stand out from the surrounding residential character and add to the visual complexity of the streetscape. 3.2 Painting the building in bright corporate colours of blue and red will make the building stand out from the surrounding residential character and add to the visual complexity of the streetscape. 3.3 Increase in illumination levels from signs and five (5) external car park lights, either mounted on the eastern wall of the building 4m above ground level or pole mounted 4m above ground level will be visually obtrusive to surrounding properties and to the street. 3.4 Anti-social behaviour of people consuming liquor in the vicinity of the proposed development site to the detriment and property security and safety of adjoining and local residents and the general public. 3.5 Noise from increased traffic generated by the proposed development, including patrons' cars and service delivery vehicles and glare from vehicle headlights, as well as noise from plant and equipment associated with the use will detrimentally impact on the amenity of surrounding residents and the locality. 3.6 Off-site parking of vehicles by patrons in surrounding streets may inconvenience residents not only with regard to the presence of vehicles but the noise and headlight illumination from the coming and going of those vehicles. 3.7 Hours of operation significantly exceed those of the existing use and as such work in conjunction with the operation of lights, illumination of signs and noise from plant and equipment to the detriment of surrounding residents and the locality. 4. Whether the signage for the proposed development will compromise the visual amenity of the surrounding residential area? Particulars 4.1 The new signage proposed in the predominantly residential area will cause adverse visual impact to surrounding residents. 4.2 Outdoor advertising should not obscure architecturally decorative details or features of buildings or dominate building facades. The application proposes 22 signs related to the proposed development use and two traffic directional signs. The proposed outdoor advertising will be out of character with the existing residential development to the north, east and south of the subject site and the number and size of signage proposed will substantially exceed that of the existing use. 4.3 The visual amenity of the adjoining and surrounding residential area will be compromised by the number, size, nature and illumination of the signs proposed. 5. Whether the proposed acoustic fence will be visually bulky and intrusive and therefore will adversely affect the visual amenity of the locality and be overbearing when viewed from the adjoining residential flat building at 60 Maroubra Road? Particulars 5.1 A 3.2m high acoustic fence is proposed to replace the existing fence along the eastern boundary of the site. The multi-unit housing building on the adjoining property to the east has ground level parking provided under the building with the first residential level approximately 3.1m above the car park level.

Noise emissions 6. Whether noise and vibration emissions from the proposed development comply with the relevant provisions of the Protection of the Environment Operations Act 1997, and the NSW Environmental and Protection Authority Noise Control Manual & Industrial Noise Policy. Particulars 6.1 The Acoustic Report submitted with the application is deficient in that: 6.1.1 The acoustic report is based on background noise data from a location distant from the subject site, thereby not accurately reflecting the background noise environment relative to the residential properties at 44 and 46 Glanfield Street. 6.1.2 It has not adequately considered the transient and intermittent nature of outdoor activities from private motor vehicles, the prolonged manoeuvring and reversing required by trucks entering the loading dock and patrons in the carpark. 6.1.3 It has not considered the cumulative impacts of noise from the proposed McDonald's Restaurant / Take-away food/ 'Drive-Thru' outlet on the adjoining site.

Landscaping 7. Whether the proposed development provides adequate and satisfactory landscaping to soften the visual impact of the development? Particulars 7.1 Appropriate landscaping has not been provided to enhance the appearance, operation and amenity of the carparking area. 7.2 The amount of landscaped area proposed for the development, as calculated from the site plan, amounts to approximately 6m2(0.3% of the site area). 7.3 The proposal will provide a hard-stand area of approximately 744m2 (37% of the site area) along the eastern side of the site for carparking. This hardstand area will be large, extensive and visually dominant and will not have the benefit of any landscaping or the planting of canopy trees. 7.4 The comparatively small percentage of proposed landscaped area (0.3%) compared to that of hardstand area (37%) will not 'soften' the visual impact of the hardstand area.

Traffic & Parking 8. Whether the proposed vehicular access arrangements to the proposed development off Maroubra Road should be permitted on traffic safety grounds. Particulars 8.1 The proposed development makes provision for vehicles travelling west on Maroubra Road to turn right into the site. The traffic study in support of the application, as amended, estimates 45 vehicles per afternoon peak hour will turn right into the site. The proposal for a dedicated right turn bay to accommodate such turning movement would be contrary to good traffic safety practice. 9. Whether the motor vehicle traffic generated by the proposed development, in particular heavy vehicular traffic in Glanfield and Royal Street, will have reasonable and acceptable impacts? Particulars 9.1 The increase in the number of motor vehicles travelling to and from the proposed development will cause adverse impacts: particularly amenity impacts of additional motor vehicles parking in streets surrounding the proposed development site, resultant noise, vehicle fumes and headlight glare. 9.2 Service delivery vehicles will cause adverse impacts, particularly to residents in Glanfield Street opposite and in proximity to the site and in Royal Street. 9.2.1 The proposed development provides for service delivery vehicles to enter the site from Maroubra Road and to exit the site via Glanfield Street. Glanfield Street has one-way traffic westbound. The proposed development incorporates a 4.5m wide dedication of land along the full width of the site frontage to Glanfield Street to provide a 10m wide carriageway. The section of the site between the site and its intersection with Royal Street (approximately 35m) is approximately only 6m in width as the adjacent site is yet to dedicate land for road widening. Due to the narrow carriageway in the undedicated portion of Glanfield Street, manoeuvrability of the large service vehicles will be difficult. Additionally turning of these vehicles into Royal Street will also be restricted by the narrow width of the intersection which raises safety concerns for o pedestrians and parked cars in Glanfield Street; o whether turning heavy vehicles can exit Glanfield Street left into Royal Street without crossing onto the wrong side of the road; o the safety of parents and children attending the Family Day Care facility at 57 Royal Street (on the corner of Glanfield Street). 9.2.2 It would be unacceptable for service delivery vehicles exiting Glanfield Street to either continue across Royal Street or turn north into Royal Street as these are local residential streets. This necessitates southbound turns into Royal Street, which will be difficult given the intersection's dimensions. 9.2.3 Royal Street between Glanfield Street and Maroubra Road is only approximately 9m in width, with two-way traffic flow and kerbside parking. Accordingly there are potential safety hazards with service delivery vehicles manoeuvring around local traffic, parked vehicles and pedestrians in Royal Street. 9.3 The multifunctional use of the proposed car park by service delivery vehicles and personnel, and customer vehicles and patrons is a potential safety hazard. 9.4 Patrons arriving to the site without a car also have to enter the shop via the car park, which makes no provision in the amended plans for a separate path of travel for pedestrians entering and leaving the site. 10. Whether the proposed car parking provision of 21 car spaces is adequate to accommodate demand generated by the activity on the site and the potential for traffic queuing in Maroubra Road and kerbside parking in surrounding residential streets.

Cumulative impacts 11. Whether the impact of the proposed development is acceptable having regard to the cumulative effects of this development when viewed in conjunction with the likely impacts of any development on adjoining land known as 48-52 Maroubra Road and 59-63 Royal Street, Maroubra and in particular the use, if any, of that land for the proposed use in DA1/2006. Particulars 11.1 Acoustic impacts; 11.2 Traffic impacts; 11.3 Visual amenity; 11.4 Intensity of use; 11.5 Signage; 11.6 Hours of operation; 11.7 Anti-social behaviour; and 11.8 Illumination.

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?

95 The constraints on development on No 60 Maroubra Road are such that it is likely to remain for the foreseeable future. It is a large building and unlikely to be demolished. The sites to the west are likely to be reused for car sales or similar commercial use. The sites to the north are likely to remain of the scale of dwellings either single-storey or two-storey. The sites to the south across Maroubra Road are likely to remain single detached or attached dwellings. Again as it is proposed to reuse the existing building I am satisfied that the proposal would be compatible with its surroundings both in terms of physical and visual impact. The applicant's acceptance of a condition to remove the existing pylon sign would also assist in improving the residential environment for No 60 Maroubra Road. 96 I would not refuse the application for reason of non-compliance with the relevant principles of Project Venture. 97 Similarly, the principles in Randall Pty Limited v Leichhardt Council would be adequately addressed by the proposal such that I would not refuse the application. 98 For the above reasons, the appeal is upheld. Conditions 99 The amended draft conditions are those in Exhibit 27 as amended during the hearing. Mr Hewitt commented on the draft conditions by letter dated 30 May 2007 in Exhibit 26. His comments have been incorporated in the conditions.

Orders 100 My orders are:

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

2. Development application No 754/2005 lodged with the respondent council on 22 September 2005, to partially demolish the existing building and to alter and add to the existing building and to change of use from a motor showroom and workshop to a retail liquor outlet, at Lots 1 and 2, DP 962347, being Nos 54-58 Maroubra Road, Maroubra, is approved subject to Conditions 1 to 144 in Annexure A.

3. The exhibits except for Exhibits A, B, D, J, K, L, M, N, R, S, 3, 4, 13 and 27 are returned.

S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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