De Angelis v Wingecarribee Shire Council

Land and Environment Court (NSW)|2013-07-31

Judgment 1COMMISSIONER: This appeal relates to the refusal by Wingecarribee Shire Council of Development Application LUA 12/0193. The development application proposes:

a discount department store (K Mart) with a gross floor area of 6351.9 sq m;
ground floor retailing including10 specialty stores fronting Moss Vale Road and Bowral Street with a total gross floor area of 581.9 sq m;
4 residential dwellings located above the specialty stores; and
a basement car park with 199 car parking spaces for the retail and residential uses. 2The council opposes the development application on the following grounds:

the proposed development is unacceptable because inadequate off street car parking is provided,
the proposed development is unacceptable because the height, bulk, siting, massing and roofscape will have an adverse impact on the character, visual outlook and amenity of nearby residences,
the proposed development is unacceptable because of the unsympathetic relationship with adjoining and nearby open space, being Maynard Park and Lions Park,
the proposed development is more appropriately located in the Bowral town centre,
the proposed development is unacceptable because it will have an unacceptable impact on the heritage qualities of Bowral, and
the proposed development is unacceptable because it will have an adverse impact on the economic viability of the Bowral town centre. 3The development application attracted considerable public opposition and a number of local residents and operators of businesses in the Bowral town centre provided evidence on the site inspection and by way of submissions when the development application was advertised. Their concerns largely reflect the contentions raised by the council.

The site and surrounding area 4The site comprises four allotments bounded by Bowral Street, Moss Vale Road and Holmhale Street, Bowral. The lots are:

Lot 1 in DP 406617,
Lot 15 in DP 740276,
Lot 6, Sec E, in DP 740276, and
Lot 1 in DP 513337. 5The site has an area of 7816.8 sq m and is generally rectangular in shape but for the excision of Maynard Park located at the south-eastern corner of the intersection of Bowral Street and Moss Vale Road. Maynard Park is generally rectangular and has an area of approximately 635 sq m. The site has frontages of 72.47m to the eastern side of Moss Vale Road, 57.53m to the southern side of Bowral Street and 99.92m to the western side of Holmhale Street and falls approximately 7.9m to the north-west at an approximate grade of 7%. 6The site contains three dwelling houses, a building used in association with a "Gardens R Us" plant nursery and some trees. Across Moss Vale Road to the west is Lions Park. Opposite in Bowral Street to the north of the site is a service station, motor cycles sales yard and a medical centre. The land to the south and east currently contains a mixture of single residences and multi-unit residential complexes.

Relevant planning controls 7The site is within Zone B4 Mixed Use under Wingecarribee Local Environmental Plan 2010 (LEP 2010). The proposed development is permissible in this zone as "commercial premises" of which "shop" and "retail premises" are subsets and "shop top housing". Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 8The objectives of Zone B4 are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To ensure that new development has regard to the character and amenity of adjacent and nearby residential areas. 9Clause 4.3 provides requirements for the height of buildings and states: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to identify maximum heights of buildings, (b) to ensure that the heights of buildings are compatible with the character of the existing development within the surrounding area. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 10It was agreed that the maximum height is 9 m and that the proposed development satisfies this numerical standard. 11Clause 4.4 provides requirements for the floor space ratio (FSR) and states: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to identify maximum floor space ratios in major centres, (b) to ensure that floor space ratios provide development opportunities that are compatible with building heights, (c) to encourage development in locations readily accessible to public transport and services that will provide increased employment opportunities. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 12It was agreed that the FSR is 1.1:1 and that the proposed development satisfies this numerical standard. 13Bowral Town Plan Development Control Plan (the DCP) applies by way of s A1.3. Section 2 provides General Objectives, particularly Urban Function (s A2.2.2) and Visual Amenity (s A2.2.6). Part B addresses Business Zoned Land. Section B1.3 identifies separate business precincts with the site falling within Southern Entrance Precinct (the Precinct). Section B15.2 provides Preferred Development Outcomes for each precinct. The Precinct is divided into three separate areas being "Commercial sub-area", "Residential/Professional sub-area" and "Residential sub-area". The site makes up to the whole of the latter sub-area. The relevant comments in s B15.2 in relation to the "Residential sub-area" (and consequently the site) are: The Residential sub-area is located on the eastern side of Moss Vale Road where medium density development adjoins the area on the east and south. Residential flat buildings are permitted with consent in the adjoining R3 zoned land. Council would encourage redevelopment of this sub-area through site amalgamation and development which integrates with and complements surrounding development. Such development would also provide the opportunity for Landscaped Private Open Space to be integrated with the public parkland currently located there. Because the Residential sub-area has a boundary to Moss Vale Road, any development proposal will need to be referred to the RTA for comment. Therefore the traffic-generation impacts of any development will need to be clearly enunciated in any proposal. It is anticipated that Bowral Street would be the preferred access point for any future redevelopment. 14Section 4 provides requirements for On Site Parking and s 8 provides requirements for Bulky Goods Premises and similar "large footprint" Developments.

Car parking/traffic 15Expert evidence on car parking and traffic was provided by traffic engineers, Mr Chris Hallam for the council and Mr Dean Brodie for the applicant. The councils contentions raised a number of separate issues however many of the contentions, such as insufficient information, stacked parking, traffic flows and traffic control measures were addressed through additional information or minor amendments to the plans. 16The significant issue of the amount of on site car parking remained in dispute and the issue of safe pedestrian access was not fully settled.

The amount of on site parking 17Mr Hallam and Mr Brodie adopted different approaches for the calculation of parking for K Mart and consequently they calculated that different amounts of car parking were needed. They however agreed on the amount of parking needed for the 4 residential dwellings and the specialty stores. Section s B4.5(c) of the DCP also requires that any on street parking lost through the development should be compensated by providing an equivalent amount on site. The agreed figure was 7 spaces. 18Mr Hallam provides car parking calculations based on firstly, Figure B5.4 of the DCP and secondly, the Guide to Traffic Generating Developments (Roads and Traffic Authority, 2002)(the RTA Guide). The DCP calculations result in the need for 353 spaces (321.9 spaces for a Large Shop (K Mart), 19.4 spaces for Small Shops (the specialty shops), 5 spaces for the residential and 7 spaces lost from kerb parking). The RTA Guide calculations result in the need for 283 spaces (271 spaces based on disaggregated model for Faster Trade (K Mart) and Specialty Shops and 5 spaces for residential). 19Mr Brodie bases his calculation on the average number of transactions and the average length of stay of 26 minutes (made up of 20 minutes stay and 6 minutes to gain access to the car park) from data provided by K Mart on existing K Mart stores. The calculation results in a need for 143 cars. 20The differences in the likely peak parking demand between Mr Hallam and Mr Brodie are significant and result from the different approaches adopted by each expert. While I do not except that the more traditional method used by Mr Hallam should exclude all other methods of calculating peak parking demand, I still prefer the approach of Mr Hallam for a number of reasons. 21First, the data that was obtained directly from K Mart and relied upon totally by Mr Brodie must be viewed with some caution. While I do not suggest that the data is inaccurate or incorrect but that it is only reasonable that its veracity should be able to be tested by the council. This was not possible because of the commercial confidentiality of such data. 22Second, and also because of the commercial confidentiality of the data; the data was not presented in the form that reasonably allows the conclusions made by Mr Brodie to be accepted. The K Mart data relied upon by Mr Brodie was in two sets; NSW Regional Stores and NSW Metropolitan Stores. Individual data for the 14 regional stores and the 29 metropolitan stores was limited to the gross floor area of each store. An average transaction per hour was provided for all regional stores and all metropolitan stores for three separate time periods, 3 p.m. to midnight on Thursdays, 3 p.m. to 6 p.m. on Thursdays and 10 a.m. to 3 p.m. on Saturdays. I do not accept that the spread of data and averaging allows for a proper assessment to be made of the peak parking demand. For example, it could not be reasonably argued that stores of different sizes in different towns, with unknown relationships with other stores, over times that clearly have different demand peaks (3 p.m. to 4 p.m. v 11 p.m. to midnight on Thursdays) is sound and a valid basis for assessing the peak parking demand. 23Third, and accepting that there is no standard approach to assessing the parking demand; the approach of Mr Hallam in first addressing the DCP, secondly addressing the RTA Guide and third, conducting surveys of similar retail premises, if necessary, to support or refute the parking generation rates is a well used and accepted approach to assessing peak parking compared. If it is necessary to abandon this approach in favour another approach, there must be a valid and sound reason for doing so. I do not accept that Mr Brodie provided any explanation why the generally accepted approach was abandoned and the average transaction and averaged stay approach adopted in his assessment. 24Fourth, the difference between Mr Brodie and Mr Hallam in the amount of car parking is large. For this reason alone, and given that Mr Hallam relies on the DCP, that is a mandatory assessment document, I would have expected Mr Brodie to support his approach in some other manner, such as surveys of a similar establishment. Mr Hallam conducted the only additional surveys at the Aldi store in Bowral and the results supported his conclusions rather than those of Mr Brodie. 25Fifth, the sensitivity in the length of stay data adopted by Mr Brodie highlights the need for some certainty in the K Mart data. For example, if the length of stay in the store is extended to 25 minutes then 213 spaces are required under Mr Brodies calculations. If the average time spent in the store was 30 minutes then the car parking required is 240 spaces and so on. 26As the onus of proof rests with the applicant to show that the car parking satisfies the peak demand for the proposed K Mart store, I have little trouble in concluding that this onus has not been discharged and that insufficient on site parking has been provided. 27I agree with Mr Hallam that the deficiency in car parking is sufficient to refuse the development application on this ground alone.

Pedestrian safety 28In their joint report, Mr Hallam and Mr Brodie agree that there are three options for pedestrian access across Bowral Street to the site. First, traffic signals, second, upgrade the existing splitter island and third, construct a new pedestrian refuge. They agree that from a pedestrian access point of view, the second option is preferable although traffic signals provide a safer option but would have a negative impact on traffic flows given the need to remove the roundabout. As no warrant has been established for the traffic signals and also any traffic signals require the approval of the Roads and Maritime Services (RMS), the experts agreed on a deferred commencement condition that effectively provides for consultation with the RMS in relation to traffic lights and if it is found that they are not warranted, the upgrade the existing splitter island. 29While a definitive answer would be preferable, I accept that this is a reasonable approach in the circumstances is acceptable.

The strategic context, character, streetscape and amenity 30Expert evidence on strategic issues, character, streetscape and amenity was provided by, Ms Deborah Laidlaw, a town planner for the council and Mr Nigel Dickson, an architect and urban designer for the applicant. 31Ms Laidlaw and Mr Dickson address the impact of the development firstly, on its strategic context and whether it is appropriately located outside the Bowral town centre and secondly, whether the impact on the character, streetscape and amenity of the adjoining the adjoining and nearby land uses is acceptable. There is a degree of overlap in the contentions relating to the appropriateness of the site for the proposed development and the contention relating to the relationship with the adjoining land uses.

The council evidence 32Ms Laidlaw, while accepting that the applicable planning controls allow for a mixed use development, the location and context of the site indicate that the additional bulk, height and massing needs to be very carefully considered. In her opinion, there are four main considerations to determine whether the development is appropriate in this location. Firstly, the site is within a "transitional zone" between the Bowral centre and the residential areas to the south and east. Second, the site is one of the two important "gateways" to the Bowral centre. Third, the relationship of the site to Maynard Park and Lions Park. Fourth, the proposals unsympathetic character for a location outside the Bowral centre. 33Ms Laidlaw states that a successful "transitional development" needs to provide an appropriate interface with the adjoining residential area in the that it presents attractively to this area but at the same time is designed to protect itself from the impacts of more intensive commercial development on its other sides. Alternatively, it could be a lesser scale commercial development of the type found opposite in Holmhale Street and Bowral Street where professional suites occupy buildings of a residential appearance. Ideally, intensive commercial development should be along Bowral Street reducing in intensity along Moss Vale Road, but with the character of any such development reflecting the site's location at the edge, rather than at the centre of the Bowral town centre. Importantly and with guidance from the DCP, any development should be setback from Maynard Park and in an integrated landscaped setting. 34In her opinion, the proposed development adopts an entirely different approach. It provides for a significant intensity of commercial activity of the type that would more commonly expected in the heart of the Bowral town centre and this is physically expressed on each of its four elevations. For the most part, the building design shows none of the finer grained character that make up of individual building elements and varied roof profiles that is characteristic of the development within the town centre and the southern edge of the centre. 35The fact that the proposed development satisfies the numerical requirements for height and FSR in LEP 2010 does not overcome the need to satisfy the relevant objectives for these development standards. In any event, the height and floor area when considered in conjunction with the massing and roofscape is excessive and out of character but with the immediate streetscape and the Bowral town centre as a whole. 36Ms Laidlaw expresses particular concern as the site adjoins residentially zoned land. She states that the proposed development will introduce the impact of service vehicle deliveries into Holmhale Street, currently a local residential cul-de-sac. While higher traffic levels may come with the B4 zoning, service vehicles in this case, will include large vehicles to service the proposed K Mart. Impacts of noise will be concentrated on the boundary with residential developments. As a result of its height, bulk and lack of articulation, the proposed development will also present as a highly unsympathetic built form that would be, in terms of character, similar to what would be expected in an industrial streetscape. It is inconsistent with the zoning objective that requires " new development has regard to the character and amenity of adjacent and nearby residential areas". Under no circumstances could the interface between the existing residential dwellings and the proposed development be seen as reasonable or an appropriate transitional form of development. 37On the relationship with Maynard Park, Ms Laidlaw states that the wall of the proposed development has a maximum height of around 9 m and is built hard up to the eastern boundary and southeast corner of the park. The remainder of the southern boundary would be interfaced with the wall of the car park, reaching a height above the park of around 2.3 m, and the kiosk with its wall at around 6.8 m, both built either on, or with a negligible setback to the park. 38This overall arrangement is highly insensitive to the landscaped amenity of the park, its cultural significance as a community asset and its role in helping to signify an important gateway to the town. Whereas the park is currently a very pleasant space, with its amenity enhanced by plantings visually merged with those across its boundaries, its identity would, with the proposal, be overwhelmed by high walls and a development that turns its back upon it.

The applicants' evidence 39Mr Dickson states that the B4 zone is a business zone, that is, by its very name and definition predominantly to be of a business character. The proposed development is consistent with and compatible to the objectives of the zone. He notes that the development satisfies the height and FSR requirements in LEP 2010. In determining an appropriate transition, the relevant planning principle for determining compatibility is found in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. Project Venture asks: Are the proposals physical impacts on surrounding development acceptable? Is the proposal's appearance in harmony with the buildings around it and the character of the street? 40Project Venture also relevantly states that For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment... ... the most important contributor to urban character is the relationship of the form to surroundings space, a relationship that is created by building height, the setbacks and landscaping. In special areas such as conservation areas, architectural style and materials are also contributors to character... 41Mr Dickson then proceeds to test the compatibility of the proposed development against surrounding development. On the opposite side of Bowral Street, the land is within Zone B2 where the permissible height is 10 m and the permissible FSR is 1.5:1. The existing development consists of a petrol station and garage, which are below the available height and FSR. It is likely that these uses are transitional uses and these sites will be redeveloped to more intensive uses in the future. These sites also have minimal landscaping. This needs be compared to the proposed Bowral Street elevation where there is a single storey wall with a veranda on the street and a two-storey element setback from the street. In his opinion, the proposal provides a transition down from the greater heights and FSR permitted in Zone B2. 42Towards the corner with Holmhale Street, the land despite being within Zone B2 has a height limit of 9 m and FSR of 1.1:1 (identical to the site). The existing development in this area is commercial but with small landscaped front setbacks, large areas of surface parking and front setback landscaping. The height and articulation of the proposed building is similar in architectural treatment to the buildings in the adjoining Zone B2. The proposed development has a two-storey street wall with a single storey pitched veranda form to the street. The proposed development employees a small street setback with landscaping together with additional street planting. Further towards the corner, the development has a two-storey facade and the large setback of approximately 3.8 m to Bowral Street creating an overall setback of approximately 7.5 m. 43Where the site adjoins residential development Mr Dickson states that the proposed development creates a transition through a combination of strategies. These include the placement of the shop top housing part of the development adjoining 446 Moss Vale Road, the generous setbacks and building separation, the provision of landscaping, the absence of any privacy impacts, the maintenance of solar access, outlooks and views, the transitional setback of the development with the adjoining residential property and the articulation of the building on the Moss Vale Road frontage. 44Mr Dickson states that the Holmhale Street frontage includes an articulated form, which is stepped with a landscape setback and a 2-storey parapet. The wall reduces in height above street level as it moves towards the south where the height is approximately 6 m. Mr Dickson also states that further modifications could be made to the form and facade treatment in this location to be more compatible with the forms of residential dwellings to the south, if considered appropriate by the Court. 45On the question of the impact on Maynard Park, Mr Dickson states that the proposed development has a lower scale than the park, in that the park maintains its visual prominence at the corner as the proposed development remains below the established tree canopy of Maynard Park. The creation of a stepped terrace with setback entrance to the K Mart store together with the stepped shop top housing and smaller retail tenancies, establishes a recessive character to the proposed development at this frontage. The proposed western entrance includes landscaping in planters, consistent with its business zoning. The proposed steps within the site address the park and create an additional area for people to enjoy the park.

Findings - strategic context 46I accept the evidence of Ms Laidlaw that there are benefits of a "transition" between two different zones and a design that provides a "gateway" to a town centre however there is nothing explicit in LEP 2010 or the DCP that identifies what is required to achieve these outcomes. While the DCP describes the site as "a transition zone between the R3 Medium Density Residential zone further south and the B2 Local Centre zone to the north" the DCP is silent on how this is to be achieved. Similarly, LEP 2010 and the DCP make no mention of any "gateway" treatment for the site. The Preferred Development Outcomes are also largely silent on the preferred form of development. While identifying the site as the "Residential sub-area" there is no direction on the location or extent of the residential component beyond stating that "development would also provide the opportunity for Landscape Open Space to be integrated with the public parkland currently located there". 47What can be gleaned from LEP 2010 and the DCP is that shops are permissible and that there are no restrictions on the size of retail floor plates. In this case, the proposal satisfies the numerical requirements for height and FSR although it ultimately has been found to be unsuitable because of its unacceptable impact on adjoining residential development and lack of parking. This unsuitability is more a function of the need for a specific floor plate and the limited size of the site rather than the type of retail development proposed in this application. For these reasons, LEP 2010 and the DCP do not dictate that the K Mart should be located in the B2 zone although I would acknowledge that there good planning reasons why this should occur. 48Even though some guidance would have been helpful, I agree with Ms Laidlaw that the proposed development does not create a "transition" between the two zones because of its bulk and massing created by the long walls with little effective articulation and inability to provide any substantial landscaping. 49Similarly, if a "gateway" is to provide a welcoming entrance to the Bowral town centre that showcases the particular qualities of the town centre then I also agree with Ms Laidlaw that the proposal fails this outcome.

Findings - character, streetscape and amenity 50Clause 2.3(2) requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The relevant objective is; · To ensure that new development has regard to the character and amenity of adjacent and nearby residential areas. 51Also cll 4.3 and 4.4 that deal with height and FSR respectively, have specific objectives relating to character, streetscape and amenity. It was agreed that strict compliance with the numerical requirements of the clauses did not necessarily mean that any concerns over height and FSR were automatically addressed as consideration must also be given to the objectives. The relevant objective for height is: (b) to ensure that the heights of buildings are compatible with the character of the existing development within the surrounding area. 52The relevant objective for FSR is: (b) to ensure that floor space ratios provide development opportunities that are compatible with building heights,

The residential interface 53The rear elevation adjoins two residential properties, being 450 Moss Vale Road and 15 Holmhale Street. Both properties are zoned R3 Residential under LEP 2010 with the former used as a physiotherapist practice in conjunction with the residential occupation by the operator. The latter is used solely for residential purposes. Residential development extends further in a south -west direction. 54The proposed development provides a one-way driveway from Holmhale Street to Moss Vale Road to be used only for access to the loading dock for K Mart. This one-way driveway directly adjoins the boundary of the two residential properties. The driveway has a maximum cut of around 3m and is at grade at the entry and exit points. A 1.8 m high fence is required along the boundary for acoustic purposes together with further acoustic treatment to 2.3 m in height from the Holmhale Street frontage to the rear of the house on the property. A small amount of landscaping is provided at both street frontages at the driveway level. The building opposite the boundary is located some 9.5 m from the dwelling at 45 Holmhale Street at the lower level and some 14.5 m at the mezzanine level. The dwelling at 450 Moss Vale Road adjoins that part of the development that contains the ground floor retail and first floor residential development with a separation of some 21.76m. 55The opposite side of Holmhale Street is zoned R3 Residential under LEP 2010. There are two dwellings in Holmhale Street, one facing the street and the other facing Moss Vale Road. The latter is used as a residence but the owner runs a health practice in a room on the north western side of the residence. The proposed building opposite provides for a continuous wall some 80 m in length that is located on the boundary or set back around 1.5 m. The height is below the maximum 9 m numerical height requirement. 56With the benefit of the site inspection, I agree with the conclusions of Ms Laidlaw. While Mr Eastman, for the applicant, questioned Ms Laidlaw on the objective aspects of the development identified in Project Venture, such as overshadowing and loss of privacy, I do not accept that a reliance on the objective aspects of the development fully addresses the issues in this case. In my view, Ms Laidlaw honestly conceded that these factors were not an issue in the proceedings but relied on more subjective factors for her opposition to the proposal. It is not an unusual event for subjective matters to be determinative in planning appeals, particularly when amenity considerations are in issue. 57While the Court was taken to the planning principles in Project Venture, Veloshin v Randwick Council [2007] NSWLEC 428 and Pafburn v North Sydney Council [2005] NSWLEC 91 some care needs to be used in placing too much emphasis on these planning principles when comparing developments in two significantly different zones that contemplate two different forms of development. In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, the matter of development at the interface of two different zones is addressed and relevantly states: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 58In this case, the proposal directly adjoins residentially zoned land where the potential for unacceptable amenity based impacts is greater than for say, residentially zoned land but with different densities, as was the case in Seaside Property. 59In my view, the impact on 450 Moss Vale Road and 15 Holmhale Street are sufficient to refuse the application. The proposal shows little respect for the residential properties through the use of the area directly adjoining the common boundary for the loading dock and access way. This concentrates noise at the worst possible location on the site. To address the potential noise impacts, a 2.3 m acoustic fence is required along the boundary from the Holmhale Street frontage to the rear of the house on the property. This can only be described as an imposing and overpowering feature on the amenity of the resident at 15 Holmhale Street. As stated in Seaside Property "any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone". I do not accept that because a residential property adjoins a business zone that their amenity should be so severely impacted. There is no ability to landscape the proposed development on the site of the development as there is a vertical cut and retaining wall on the boundary. The proposed areas of landscaping provide no substantive benefits given their relatively small size and location. 60The property at 450 Moss Vale Road is marginally better in terms of potential amenity impacts but only through the existence of landscaping on the residential property and the adjoining residential part of the development. While the acoustic report provided by the applicant did not recommend any acoustic treatment to the1.8 m fence on the common boundary with this property I am sceptical that no treatment is required given that it is not dissimilar to the entry from Holmhale Street where the trucks enter and leave at grade. Potentially, noise could be greater when leaving the site because trucks would need to accelerate up the slope to Moss Vale Road. If the development were to be approved then further acoustic evidence would be required to address this, together with suitable operating times for the loading dock. 61From the residential properties on the opposite side of Holmhale Street, I also do not accept that the development is acceptable having regard to the character and amenity of the residential properties. The impact of the service vehicle deliveries into Holmhale Street will bring higher traffic levels particularly large vehicles to service the proposed Kmart. While this may be expected as part of the B4 zoning of the site, the problematic location of the loading dock and access exacerbates the additional traffic in Holmhale Street. 62From a streetscape perspective, I also agree with Ms Laidlaw that even though more recent modifications to the Holmhale Street façade have made improvements to the presentation of the building the street, I do not accept that the minimal 1.5m setbacks and glass panels in the façade sufficiently address the bulk and massing of a continuous wall some 80 m in length. The inability to provide any significant landscaping further exacerbates the visual expanse of this elevation. There is also some merit in the comments of Ms Laidlaw where she describes the appearance of the mezzanine level from Holmhale Street as a highly unsympathetic built form that would be, in terms of character, similar to what would be expected in an industrial streetscape. Mr Dickson suggested some modifications to the mezzanine area along the loading dock access however the modifications do not significantly improve the streetscape from Holmhale Street. 63Having regard to the zone objective that seeks to "ensure that new development has regard to the character and amenity of adjacent and nearby residential areas" I am satisfied that the impact is so substantial that the development could be refused for this reason alone as it will introduce many features that unacceptably impact on the character and amenity of adjacent and nearby residential areas.

The open space interface 64I agree with Ms Laidlaw that the interface with Maynard Park is unacceptable. Even putting aside the historical and "gateway" aspects of Maynard Park, I am satisfied that the proposed building effectively isolates Maynard Park rather than integrating the park into any development, as required by s B15.2 of the DCP. While reference is made to integrating Landscaped Private Open Space into the public open space in this clause, I see no reason why any form of development should not have regard to public open space in its design. Maynard Park is a public asset and should be protected from insensitive development irrespective of any specific controls. The height of the walls on the boundary of the park will be overbearing when viewed from the park and will create an unwelcoming atmosphere for the public.

The evidence 65Expert evidence on economic impact was provided by Mr Adrian Hack for the council and Mr Peter Leyshon for the applicant. They addressed the council contention of the probable consequences of the proposed development on the Bowral town centre. 66Mr Hack and Mr Leyshon disagreed on the order of impact of K Mart on the Bowral town centre with Mr Leyshon estimating at $2.2 million (or 1.5% of the total centres turnover) in 2013. Mr Hack estimates the impact could be in the order of $6 - 8 million (or 4.5% to 5.3% of the total centres turnover). 67Mr Leyshon states that if Mr Hack's estimates are accepted and an impact of -4% to -5% on the balance of retailing in the Bowral town centre occurs, it would not warrant the refusal of the application. In his opinion, this impact would be in the very low category and would still be acceptable given the competitive benefits the proposed development would bring to the Bowral town centre. Mr Leyshon further states the proposed Kmart will not have a significant impact on retailing in the Bowral town centre because the retailing in the centre is atypical and highly specialised in nature. It is characterised by a significant number of high-quality specialty retail stores, which are rarely located outside the major cities in Australia. There are only a limited number of stores within the Bowral town centre that could be considered directly competitive with a K Mart store by virtue of the types of goods they sell, the pricing and merchandising strategy. These are Target Country and Millers Fashion Club. In his opinion, the proposed Kmart will have only limited effects on one these stores and would be offset by additional retail spending which will occur in Bowral as a result of the introduction of the Kmart store. 68Mr Hack accepts that an impact of -5% loss of trade for existing retailers is not considered to be a significant level however it is important to consider current trading levels and the level of vacancies in the Bowral town centre. Mr Hack generally agrees that Target Country and Millers Fashion Club are the closest competitors to Kmart and that there is some risk of closure of one or both of these stores however there are other specialty retailers that partially complete with Kmart and that most of these specialty retailers have considerably lower levels of competition largely because their markets are different. There are also some like for like items, such as confectionery, that are sold in supermarkets but the impact on the supermarkets will be minimal. 69Mr Leyshon and Mr Hack agree that a near worst-case scenario could be the closure of both Target Country and Millers Fashion Club and the closure of six specialty stores If this were to happen it would result in an increase in vacancy (2650 sq m) and an increase in the vacancy rate from the current level of 11.6% to 17.9% within the business zone. 70Mr Leyshon is sceptical that this scenario would eventuate for a number of reasons. First, there number of examples of centres where a discount department store coexists with Target Country and Millers Fashion. Second, target is a strong brand and generally is regarded as offering a higher quality range of clothing and Kmart. Third, it is unlikely that any existing specialty retailer operating from a prime location in Bong Bong Street would see the subject site as a preferable retail location. Fourth, if any specialty retailers located from the main street, they are likely to be currently located in a fringe or secondary retail area and would not affect the strength of retailing in the core part of Bong Bong Street. Fifth, there is evidence of some renewal in the centre. Sixth, the inclusion of Kmart will improve the overall competitiveness of Bowral as a retail destination and will assist in attracting other retailers to the area. 71Mr Hack accepts that the level of closure could be less than the near worst-case scenario, although putting an estimate on it is difficult. If as much as $8 million is redirected from existing retailers in Bowral, this would translate to 1684 square metres of retail space and would increase the vacancy rate from 11.6% to 15.6% which still remains high.

Findings 72Section 79C(1)(b) states: 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (my emphasis) 73In Fabcot Pty Ltd v Hawkesbury City Council (1977) 93 LGERA 373 (at 378-379) Lloyd J relevantly states on the matter of economic impacts (although referring to a similar provision to s 79C(1)(b)): Similarly, economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(l)(d) is directed. The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) are the appropriate vehicles for regulating economic competition. Neither the Council nor this Court is concerned with the mere threat of economic competition between competing businesses. In an economy such as ours that is a matter to be resolved by market forces, subject to the Trade Practices Act and the Fair Trading Act. It is not part of the assessment of a proposal under the Environmental Planning & Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. Moreover, it is at least arguable from the fact that the Trade Practices Act now applies to local government councils, that if a local council were to refuse or to limit a proposal for development on the ground of competition it could be guilty of anti-competitive conduct contrary to Pt 4 of that Act. It seems to me that the only relevance of the economic impact of a development is its effect in the locality'; that is to say, in the wider sense described in Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 at 687; 40 LGRA 132 at 141 (per Stephen J with whom Mason and Aicken JJ agreed): If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by new competition afforded by that new development. However, the mere threat of competition to existing businesses if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. 74The question to be answered is whether the shopping facilities presently enjoyed by the community in the Bowral town centre will be put in jeopardy by the proposed development and whether any resultant community detriment will not be made good by the proposed development. In my view, this must be answered in the negative. I do not accept that it can reasonably be argued that the viability of the Bowral town centre will be unacceptably impacted on by the proposed development. I agree that Target Country and Millers Fashion may be affected and that one of the stores may close however this will not prejudice the Bowral town centre. I consider the matters raised by Mr Leyshon in establishing his position that the potential vacancy rate suggested by Mr Hack is unlikely to eventuate are valid and that the impact of the proposed development would be in the very low category. There can also be no argument that any community detriment will not be made good by the proposed development itself given the range of goods stocked by K Mart. 75Also relevant are firstly, the proposed development is located in a zone that anticipates shops with no restrictions on floor plates and second, while the DCP contemplates residential development; there is no guidance on the amount of residential or retail development. 76I find that the proposed development could not reasonably be expected to disadvantage or detrimentally affect the life or existence of the Bowral town centre; neither does it give rise to a real chance or possibility that it will have a detrimental impact on the existing or potential function of the town centre.

Heritage The evidence 77Expert evidence on heritage impact was provided by Dr Peter Kabaila for the council and Mr Robert Staas for the applicant. They addressed the council contention of whether the proposed development will have an unacceptable impact on the heritage qualities of Bowral. 78Dr Kabaila and Mr Robert Staas agree that the site does not contain any heritage items listed in LEP 2010 or that the site is located in a heritage conservation area. The Bowral Conservation Area is located to the east of the site and the nearest heritage item is the former Fire Station at 411-415 Bong Bong Street. 79Mr Staas states that there is no planning on heritage study to suggest that the site forms part of a "gateway" to Bowral. It was simply the transitional area between the commercial town centre and ribbon style medium density development that extends to the south along Moss Vale Road. The uncoordinated placement of the twin parks at either side of the main road may suggest a significant road intersection but it is not, in reality, an entry point to the town nor does it define an area of distinctly different development potential. 80The council, in zoning the land, have created an expectation of compliant development involving demolition of the existing buildings and structures. There is no identification or protection of the existing building environment on the site that would be adversely affected by the proposed development. The council should consider the development on the basis of normal assessment criteria and not elevate the context to a heritage status that it does not have. Any assessment against heritage criteria is erroneous. 81Overall, Mr Staas does not consider that the site presents any significant heritage values, identified or otherwise, that would preclude approval of the current application or have any adverse impact on the town centre of Bowral. 82Dr Kabaila states that the site as a gateway location is well accepted by the community and is valid in its own right and does not necessary require a planning study. He rejects the comment that Maynard Park and Lions Park are uncoordinated as the people of the district accept the site as the southern entrance to Bowral. The site exhibits heritage features in its densely vegetated grounds containing detached single storey Federation period houses. The existing buildings both on and adjoining the development are not heritage listed but tell a story of what traditional Bowral is like. In his opinion, the character of this gateway location will be changed by a building and development totally incompatible with the surrounding locality. The land parcel is treated as a development area, leaving insufficient landscaped areas and while there has then an attempt to reduce the impact on the frontage with a few terrace houses, it is insufficient to properly address the street. The "big box" is apparent on all three street frontages but is possibly the most exposed at the Holmhale Street frontage and the corner of Moss Vale Rd and Bowral Street. 83Dr Kabaila describes the design, scale and massing of the development as monolithic with inadequate areas for landscaping, unsuccessful attempts to lighten the external appearance by depicting some of the wall areas as glazing, inadequate building setbacks and uncertainty over materials profiles, finishes and colours to the exterior. 84On a wider scale, Dr Kabaila maintains that the development will erode the compact and cohesive character of the historic town centre and associated heritage values of Bowral. Findings 85On the question of whether the proposed development will have an unacceptable impact on the heritage qualities of Bowral, I agree with Mr Staas. While there is a broad power in s 79C(1) of the Environmental Planning and Assessment Act 1979 for consideration of development applications, the specific powers to consider heritage impacts are found in cl 5.10 of LEP 2010. The provisions in this clause are only triggered by the existence of heritage items and heritage conservation areas identified in LEP 2010. This effectively means that the heritage provisions do not apply as the site does not contain any heritage items listed in LEP 2010 or that the site is located in a heritage conservation area. I did not understand Dr Kabaila's evidence to relate to cl 5.10(3) where consideration may be given to land that is within the vicinity of a heritage item or heritage conservation area. 86Dr Kabaila's evidence covered a wide range of matters that extend well beyond the heritage considerations contemplated by LEP 2010. In my view, there is a significant difference in an assessment for an area containing heritage items and heritage conservation areas and an area with features that have special characteristics but do not reach the status of heritage items or heritage conservation areas. The latter is ably considered as part of a normal planning assessment, such as cl 2.3(2) where regard has to be given to the zone objectives, and for the B4 zone "the character and amenity of adjacent and nearby residential areas".

Orders 87The orders of the Court are: (1)The appeal is dismissed. (2)Development Application LUA 12/0193 for a retail/residential development at Bowral Street, Moss Vale Road and Holmhale Street, Bowral is refused. (3)The exhibits are returned with the exception of exhibits 1 and A. G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2013

Trade Practices Act 1974(Cth)

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Judgment (17 paragraphs)

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