Drummond & Rosen Pty Limited v Leichhardt Council

Drummond & Rosen Pty Limited v Leichhardt Council - [2007] NSWLEC 375 - NSWLEC 2007 case summary — Zoe

[17]

The proposal. 9 The proposal involves: a) A change of use to: i. A new liquor store in the eastern portion of the building comprising 895 sq m of retail floorspace, 314 sq m of storage space, and approximately 115 sq m of ancillary office space. ii. A cafe/delicatessen in the western portion of the building background and mezzanine floor levels. This tenancy consists of 585 sq m of retail area, 190 sq m of storage area and 319 sq m of cafe floorspace located at the mezzanine floor level. iii. Commercial office space with a floor area of 288 sq m at mezzanine floor level. b) Building works to accommodate the new uses including: i. Ground and mezzanine floor levels works, including demolition of existing internal partitioning, new inter- tenancy dividing walls, staircases, an internal lift and WC facilities; ii. Basement floor level alterations to accommodate car parking; iii. External changes to the building, including new entry doors, awning and access ramp from Darley Road, painting of existing face brick and metal sheeting facade, new fire stair exits, and alterations to the loading dock structure of the eastern side of the building to accommodate new air-conditioning plant and roofing. c) New and modified car parking facilities providing the following 65 parking spaces: i. Seventeen parking spaces, including 2 disabled parking spaces, within the basement level beneath the building; ii. Twenty four parking spaces on the western section of the site; and iii. Twenty four car parking spaces on the eastern section the site. d) Road safety works in Darley Road to including painted median islands, pedestrian refuge and ramp and associated line marking. e) Advertising signage; i. A non illuminated pylon sign in the north-eastern corner of the site (facing the City - West Link), measuring 5100mm x 5100mm; ii. An illuminated pylon sign along the western site boundary with dimensions of 3300mm x 3300mm; iii. An illuminated sign (measuring 5000mm x 900mm) on the awning fascia above the main entry to the building; iv. A non-illuminated, wall-mounted sign on the western elevation of the building measuring 8000mm x 2000mm. f) Landscaping works; including the removal of 2 pine trees on the site and 4 trees on councils footpath.

[51]

45 Insofar as, I deal with the traffic and parking impacts subsequently, I am satisfied to rely on Mr Leggatts' following submissions in response to the planning matters: The business zones are not contiguous, allowing business uses to be decentralised in Leichhardt and not concentrated in one particular locality, The fresh rezoning of the site (in part) to a Business Zone in 2000 shows that Leichhardt Council consciously decided the site should be zoned Business, and this evinces a positive intention that the site should not form part of a residential precinct, 'Shops' and 'refreshment rooms' are prohibited development in every zone under the LEP except the Business Zone. That is, the only zone under the LEP in which the proposed development is permissible in the Business Zone. 'Local shops', that is a shop having a gross floor area used for retail purposes not exceeding 60 sq m that is principally for the provision of convenience goods and services for the benefits of occupants of the immediate locality, not including refreshment rooms, are permissible in the Industrial and Residential zones. Clauses 18 and 21 of the LEP, which respectively relate to the description of a residential zone and business zone are akin to a desired future character statement which, relevantly to the site, envisage that the area around the site is and will be further developed as a business centre. The definition of the Industrial Zone is specific and includes bulky goods retailing. The definition does not include a shop. Therefore this shows that the Council has turned its mind to the nature of retail development that it intends to occur in a Business Zone. 46 On the basis of these submissions, I do not accept Ms Laidlaws opinion that the LEP requires subcategories within the business zone to create a hierarchy of business/retailing uses. Taking into account that the proposed development represents a relatively new combination of retailing activities, so as to provide an alternative 'shopping experience' for the community, and that it comfortably complies with the FSR controls, then any associated amenity impacts should be within the bounds envisaged by the sites business zoning.

[55]

51 Having considered this evidence, I am satisfied that the proposal will not generate extraordinary traffic, which exceeds the environmental capacity of the surrounding roads. This includes some patrons car parking in nearby residential streets. I am also satisfied that the traffic safety works in Darley Road, should facilitate convenient and safer access from the residential precincts to the proposed development for pedestrians and bike users. Other patrons have the option of using the bus system. Caselaw 52 In this matter, reference was made to a number of previous cases that the parties consider provide relevant lines of authority. There are competing submissions regarding the application of the following principles outlined by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 : 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 53 Notwithstanding this, I also note the conclusions expressed by the Supreme Court in Mobil Oil Australia Pty Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 to 319; to the effect that the fact that a use is permissible with consent "is really a neutral matter because the ordinance does not give any prima facie or presumptive right to development which comes within column IV".

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Cases Cited (3)