Gowing Bros Ltd v Coffs Harbour City Council

Setting

1. The site is at the north-east edge of the local shopping centre which accommodates the "Moonee Market Place", the "Moonee Beach Tavern" and various other shops and services. The shopping centre can be seen in Figure 1. This is a practical point to reproduce the applicable part of the site zoning map from Coffs Harbour Local Environmental Plan 2013 ('LEP'). See Figure 2. The site falls within the B2 Local Centre zone. The block immediately to the south-east of the site, across Sullivans Road, is zoned B4 Mixed Use, and it was agreed in the hearing that the area most adjacent to the site within it had been earmarked for community purposes. Land across Moonee Beach Road is lower density residential and is generally occupied by detached residences. The Pacific Highway, including a full interchange, is adjacent to and west of the B2 zoned land, shown as zone SP2 Classified Road, and is accessible to the site via Moonee Beach Road. Figure 2 - Zoning and site location (approx. only)

The proposal

1. In the course of the hearing, the applicant sought and was granted leave to amend the application. The proposal before the court can be summarised as development and land use consent for:

• a service station (eight fuelling positions under a canopy) with storage via a 135kL underground tank for petroleum and a 39kL tank for diesel.
• an associated retail building with external dimensions 9.56m x 14.28m.
• site access via an entry-only driveway off Sullivans Road and exit-only driveway off Moonee Beach Road (Ex 1).
• nine parking spaces.
• site signage including a pylon sign adjacent to the Moonee Beach Road frontage in the northern corner of the site.
• trading hours from 6am to 9pm.
• all associated infrastructure.
• landscaping.

Statutory framework

1. The proposal is "permissible with consent" in the B2 zone. The zone objectives are reproduced below: Objectives of zone • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To facilitate the development of facilities and services at a sub-regional scale that do not detract from the core commercial functions of the Coffs Harbour central business district. • To ensure that new commercial buildings make a positive contribution to the streetscape and contribute to a safe public domain.
2. The proposal does not contravene any development standards contained in the LEP.
3. A pertinent LEP provision is that concerned with "design excellence" (cl 7.12) which comes up for attention below.
4. State Environmental Planning Policy No 33 - Hazardous and Offensive Development is also an environmental planning instrument which was considered in evidence.
5. The proposal is subject to various provisions of Coffs Harbour Development Control Plan 2015 ('DCP').

Lay submissions

1. The hearing commenced with a site view during which lay submissions were heard. This proposal had been subject to objections following public notification as evidenced in tendered material (Ex 3 and 7). Six parties made oral presentations to the Court during the view, all objecting to the proposal. There was some coordination among the first four speakers who spoke on what they saw as the proposal's unsuitability in this community and district setting. The final two submissions were heard from adjacent properties (residence across Moonee Beach Road from the service station site, and child care centre to the immediate west of the site) where submissions were made in regard to potential direct adverse effects on these properties.

Issues

1. Nine contentions were listed in Ex 1, with agreement reached on one of these (related to a local bus stop) in the course of the exchange of evidence during the hearing. It seems to me the issues before the Court can be relevantly summarised as comprising four distinct items. Below I provide an introduction to each: 1. Traffic and road safety: There were differences of view among the traffic experts in regard to the traffic generation potential of the development, and the proposed site access arrangements more generally. But the core issue, in my interpretation, was in regard to the proposed ingress arrangements off Sullivans Road and in particular proximity of this ingress to the Moonee Beach Road / Moonee Creek Drive / Sullivans Road roundabout (which I will forthwith refer to simply as 'the roundabout'). 2. The LEP's design excellence provisions: which raise a jurisdictional test. 3. Unreasonable risks to the adjacent 51 place child care centre: The key concerns raised in submissions by the "nominated supervisor" of the centre were in regard to health and safety risks to children in care, and consequential reduced opportunities for "free play". Chemical fumes, odours, ground water and run-off effects from the service station operations would, according to the submission, increase the risk of children "eating, touching and smelling…chemicals and waste products". Easterly sea breezes and the downhill location of the centre exacerbated the problem. Storage of flammable goods was also a concern. Council's aligned evidence, and submissions, were less that the proposal does not satisfy regular standards in regard to such matters (it seemed to be generally agreed that it did), but that more stringent controls should apply due to the particular sensitivities associated with the land use relationship. Council also raised what it saw as incongruities in regard to certain planning standards and pleaded that a precautionary approach was required. The applicant's case on this matter was that there was clear and generally uncontested compliance (or capacity to comply) with all the required standards which relevantly included consideration of land use relationships with nearby child care centres and other more sensitive land uses. The applicant argued that the technical expert evidence went all one way. The applicant also submitted that there were failings in regard to procedural aspects of the pleadings on this issue (Applicant's Closing Submission filed 8 October 2019 ('ACS') [30]-[33] and Applicant's Closing Reply Submission ('ACRS') filed 15 October 2019 [11]-[12]). 4. Other potential impacts: these included lay submissions in regard to light spill, traffic and noise, but also wider district concerns including in regard to the downstream impacts on the natural environment as a consequence of potential spills or tanking failures; but also a concern that the service station would be a fore runner for undesirable local change to what was seen today as a distinctive and harmonious local area. A factor raised on this point was that patronage of the adjacent child care centre would drop off as a consequence of the service station, among other things costing local jobs.
2. The experts providing evidence in regard to the issues are indicated in the table below. Expert Expertise For S Carroll Planning Applicant J Sneyd Planning Respondent J Coady Traffic Applicant M McCarthy Traffic Respondent A Todoroski Air quality Applicant G Graham Air quality Respondent

1. I would mention here as well, at the introduction to the issues, that there was some attention in the hearing given, particularly by Council, to whether an alternative configuration of development might provide a better outcome. One aspect of this was whether changes to vehicle entrance and exit arrangements, which would in turn require a reconfiguration of the overall service station layout, would provide result in safer access. Another was whether other land within the larger Lot 301 should be incorporated into the site to help address perceived land use impacts. In accordance with the findings of the Preston CJ in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158, at [81], it is the obligation of the consent authority "to consider and determine the development application that has been made for the identified development on the identified land." In turn in this judgement my consideration is to the application as presented by the applicant.

Traffic and road safety

1. There were three key concerns in regard to traffic and road safety impacts. These were: 1. proximity of major site vehicular entrance (a right turn movement into the site from Sullivans Road) to the roundabout; 2. the potential for major site vehicular exit movement (a right turn out of the site onto Moonee Beach Road) to be blocked during peak hours (at some time in the future), and; 3. fuel tanker access. There was also a dispute among the experts in regard to traffic generation particulars. This related especially to site exit (ie point (2) above) and will be addressed under that heading. I will deal with these issues in reverse order to the listing above.

Fuel tanker access

1. In their joint report, the traffic experts gave consideration to a 19m long articulated tanker servicing the site (Joint Expert Traffic Report, Ex 6, p16) with Mr McCarthy providing evidence that a tanker of this size would not be able to appropriately negotiate the roundabout, and I accept his evidence based on the graphic material presented in Court. In further evidence, the experts also differed in regard to the ability of a 17.4m tanker to safely access the site. Council's without prejudice conditions referenced a 15.2m tanker. I note that while the applicant believes a 17.4m tanker is satisfactory, Mr Staunton submitted that Council's requirement should be imposed rather than refusal of the application being warranted in regard to tanker access (ACS, [15]).

Major site vehicular exit movement: right turn onto Moonee Beach Road eastbound

1. Council's concern here was whether vehicles queueing on Moonee Beach Road on the eastbound approach to the roundabout during the PM peak would queue back past the proposed site exit point, compromising right turn movements out of the service station onto Moonee Beach Road.
2. There was considerable evidence on traffic projections for roads in the immediate site environs reaching out to the year 2029 presented by the experts. As might not be unexpected, there was some significant variation in the findings from these projections ten years into the future. The differences relate principally to different projections of residential growth within the service station catchment. In an attempt to capture it briefly here, because it will be seen I do not find that a lot turns on it, the applicant argues that Mr McCarthy includes in his projections new housing which is unlikely to be developed by 2029. The varying conclusions of the experts found Mr Coady adopting a development rate of 44 dwellings per annum in the catchment, and Mr McCarthy adopting a rate of 75 dwellings per annum. There were different primary sources for the positions adopted by the experts, albeit both sources originating from data, it seems, generated from within Council. In general I prefer Mr Coady's approach which seemed to have a greater sensitivity to the localised development potential over the target 10 year horizon.
3. But in any event I accept the position submitted by Mr Staunton that, were traffic flow or safety problems to arise within (or beyond) the ten year period, there is: (1) a capacity for a road authority to construct a centreline median to prevent a right turn exit movement from the service station onto Moonee Beach Road, and (2) a fallback alternative opportunity for exiting traffic to make a left turn out of the site and use the quite nearby motorway roundabout to travel to the east. This is a manageable issue.

Major site vehicular entry movement: right turn from Sullivan Road southbound lane into the site

1. Mr McCarthy's evidence included road safety and traffic flow efficiency concerns associated with the proposed Sullivans Road site entry being located within "close proximity" to the roundabout: (Ex 6, p4). "The proposed entry driveway facilitating right turn entry into the site would result in vehicles waiting in Sullivans Road, blocking vehicles travelling south-westerly along Sullivans Road. Vehicles travelling south-westerly from the roundabout intersection along Sullivans Road are unlikely expecting to stop suddenly within such short proximity to the roundabout. This has the potential for "rear end" and "lane changing collisions". The particular concerning traffic movements associated with the rear end crash are vehicles turning left from Moonee Beach Road (south-east leg) into Sullivans Road, as they would be concentrating on the roundabout and looking to the north-east as they circulate / drive through the roundabout. Further, vehicles turning right from Moonee Beach Road (north-west leg) would indicate to turn right into Sullivans Road and then must indicate to turn right into the service station entry driveway. Following vehicles may disregard the additional indicator into the service station resulting in rear end collisions (note based upon the SIDRA from JC, the right movement accounts for 505 vehicles during the PM peak hour period). Vehicles accessing the service station from Moonee Creek Drive may fail to indicate into the service station or indicate late as a result of the driveway proximity to the roundabout, such that following vehicles have the potential to rear end a right turning vehicle."
2. Mr Coady believed the prospects of flow efficiency and traffic safety problems near the site entry were exaggerated. He pointed to what he saw as relatively lower order traffic generation potential of the site, suggesting that with projected traffic growth to 2029 the right turn movement from Sullivans Road into the site at the (most significant) PM peak as "likely to be slightly less than 75 vtph" (explained in Mr Coady's traffic report at Ex 6, Annexure B, p144), a belief that most visitors would be local and familiar with the arrangement, and that the location of the access driveway off Sullivans Road does not trouble Clause 3.2.3 Figure 3.1 "Prohibited Locations of Access Driveways" near intersections in AS/NZS 2890.1:2004. As a reference point, Mr Coady referred to the existing access arrangements to Moonee Market Shopping Centre's car parking area (located further south along Sullivan's Road), as paraphrased: "Southbound vehicles on Sullivans Road entering the access driveway which serves the Moonee Market Shopping Centre tend to make a right-turn movement from the centre of the Sullivans Road carriageway. Although the southbound carriageway of Sullivans Road is not linemarked to segregate those right-turning vehicles from southbound through traffic flows on Sullivans Road, this is what typically occurs, with the consequence that lane changing, delays to southbound through traffic and the potential for rear-end collisions are minimised. There is no reason why the same would not occur on the southbound approach in Sullivans Road to the entry only driveway serving the proposed service station/convenience store development. Indeed, if considered necessary additional linemarking could be installed in the section of the southbound carriageway of Sullivans Road between the roundabout exit and the entry driveway serving the proposed service station development. That additional linemarking could make provision for 2 x 2.75m wide southbound traffic lanes in this section of Sullivans Road. Alternatively, because the roundabout at the Moonee Beach Road/Sullivans Road/Moonee Creek Road intersection is a single lane roundabout, traffic entering the roundabout by travelling northbound on Sullivans Road does so in one traffic lane. Accordingly, the potential is available to reduce the width of the northbound carriageway of Sullivans Road between the entry only driveway serving the proposed service station/convenience store and the roundabout to 5m enabling each of the 2 southbound carriageways on this section of Sullivans Road to be 3.0m wide Road (or even linemark the southbound carriageway to provide 1 x 3.5m + 1 x 3.0m traffic lanes, and the northbound carriageway as 1 x 4.5m traffic lane)…This type of modified traffic lane arrangement is not unusual and, in fact, has been implemented in Moonee Beach Road."
3. While not seeing it as necessarily beneficial from a traffic safety point of view, in his oral evidence and after observations on site, Mr Coady indicated that the provision of a "modified traffic lane arrangement" similar to that described above, in terms of site ingress would operate "far more efficiently and … with greater certainty" (for drivers as I understood), than would be the case with the access arrangements as currently proposed (Ex B). Mr Coady provided a drawing of the proposed "modified traffic lane arrangement" at Ex 6 Annexure I. There was some examination of the requirement for consequential changes to the road configuration in the evidence, in particular, the requirement for a decrease in the width of Sullivan Road's northbound lane. As I understood it Mr McCarthy agreed that there was a practicality to this occurring, although certain processes would need to be followed prior to fine detailing. For the purposes of the analysis here, I am assuming the modified traffic lane arrangement as able to be provided. Figure 3 - Excerpt from drawing described in evidence as indicative of "modified traffic lane arrangement" (Ex 6 Annexure I)
4. Mr Coady believed drivers are well equipped to leave the intersection and move to a selected lane in Sullivan Road. He indicated in oral evidence that the line-marking in Sullivan Road would be visible from about 35m from the stop point for turns into the service station (ie visibility started well within the roundabout) and then drivers would be able to "diverge naturally if they're going to turn right into the service station". According to Mr Coady, relatively low traffic speeds and the fact that service station users would use right turn indicators, and brake lights would display, also decreased any safety risks.
5. On the other hand Mr McCarthy believed that significant risks remained even with the line-marking. He did not deny the visibility of line-marking in Sullivan Road from within the roundabout. His concern was that drivers wouldn't respond to the line-marking early due to the need to focus on other factors, as indicated above [22]. I can mention here that both parties agreed that the SIDRA modelling indicated queuing for the right turn movement at one vehicle only during the PM peak.

Consideration

1. Mr Coady referred to what he saw as comparable traffic management arrangements which supported the proposal. Mr Coady referred to the existing configuration for right turn access to Moonee Market Shopping Centre as a supportive example (Ex 6, p3). However I did not find this example sufficiently comparable as there is no immediately preceding roundabout. Mr Coady also referred to cars leaving the subject roundabout and entering Moonee Beach Road (westbound). I understood Mr Coady to be suggesting he saw, during the site view, an immediate reaction from drivers of cars exiting the roundabout wherein they took the "signal" of the line marking further down Moonee Beach Road to shift towards the centre of that road quickly out of the roundabout. This (with respect) anecdotal commentary in regard to a different configuration (evidencing a longer transition and clearer line marking to signal the approaching two lane arrangement out of the roundabout) was not probative. I also note Mr Coady's reference to AS/NZS 2890.1:2004. Parking facilities Part 1: Off-street car parking, and in particular cl 3.2.3 and Fig 3.1 "Prohibited Locations of Access Driveways". However, I did not see this provision as sufficiently on point to, for me, the applicable question here of turning movements immediately following roundabouts.
2. I am more persuaded by Mr McCarthy's evidence. There are risks and uncertainties with the arrangements as now proposed (albeit that the modified traffic lane arrangements improve things when compared to the plans at Ex C). While it will be the case that often this roundabout is and will be very quiet, when the proposed right turn into the site would bring no risk at all, there will be occasions during peak times when things are more hectic given roundabout traffic activity during the projected peak and particularly the right turn movement into Sullivan Road, principally to access Moonee Market Place Shopping Centre. As indicated by Mr McCarthy, drivers will need to concentrate on other events, such as new vehicles entering, anticipation of the movement of vehicles ahead and interpretation of the right turn indicators and brakes, and from time to time pedestrians waiting near the point where they leave the roundabout. I agree with Mr McCarthy that the risk of drivers, as they move out of the intersection, not anticipating, and registering too late that a car in front of them is turning right into the service station, is significant. The provision of linemarking assists but could be picked up too late by drivers out of the roundabout.
3. In the evidence there was reference to commentary from both Roads and Maritime Services ('RMS') and internal Coffs Harbour City Council traffic expertise in regard to the access arrangements. Council's internal traffic advice was generally accepting of the proposal with conditions which I have noted, but do not see this written commentary as providing determinative evidence to a hearing involving the examination of accepted traffic experts. Both parties used RMS advice to support their case. In the absence of the opportunity to examine the RMS advice during the hearing, I was not prepared to give this commentary significant weight.
4. The site's principal vehicular entry arrangement is substandard. As a consequence of its proximity to the roundabout, the right turn vehicle entry from Sullivan Road - a relatively busy road during peak times and a main access to the locality's major shopping hub - would bring a traffic safety risk and element of uncertainty for drivers and a negative effect on traffic flow efficiency. This land use setting of a new service station development on the approach to a significant shopping area warrants a good standard of access rather than something substandard, and therefore the proposed arrangement is unacceptable, all other things being equal.
5. The provision of improved access to the services offered from a service station would bring local benefits. If the need for such services was of a particularly high order, then there may be a need to balance this, substandard access arrangement, against benefits offered. However I was not convinced that this was the case here, including having regard to the evidence from local residents. In this case this unsatisfactory access would be reasonably seen as a determinative issue in regards to the merits of the proposal. However, it is necessary to consider firstly whether there is jurisdiction to go to the merits in any event. As indicated above, cl 7.12 of the LEP raises a jurisdictional question in regard to design excellence, which will now be considered.

Design excellence

1. Clause 7.12 of the LEP applies to the site because it falls within the B2 Local Centre zone. The objective of the clause is to ensure that development "exhibits design excellence that contributes to the natural, cultural, visual and built character values of Coffs Harbour". Under subcl (3), development consent must not be granted for development to which the clause applies "unless the consent authority considers that the development exhibits design excellence. In considering whether the development exhibits design excellence, the consent authority is required to have regard to the following matters (cl 7.12(4)): (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) the requirements of the Coffs Harbour DCP, (e) how the development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, solar access, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements, (x) the impact on, and any proposed improvements to, the public domain.
2. Council contended that the proposal fails this test and there is no jurisdiction to approve the development as a result.

Evidence

1. The experts differed in their opinion on the contention. The expert evidence can be characterised as having two dimensions. The first is in regard to how a consent authority should properly consider whether development like a service station exhibits design excellence as a matter of principle. The second is in regard to how the development weighs up against the (relevant) "matters" listed at cl 7.12(4) of the LEP.
2. Mr Carroll's evidence on the proper way to consider design excellence in this case was well summarised by Mr Staunton in the ACS at [64]-[65]: "As Mr Carroll stated in oral evidence, clause 7.12 should be construed in the context of the LEP as a whole. The instrument makes a service station a permissible use in the B2 Local Centre zone, and the clause's application to all land in that zone means that the extent to which a service station demonstrates design excellence must be determined by reference to the purpose and function of such a form of development. In other words "form" follows "function" particularly in relation to a service station where its form serves a particular purpose of mitigating potential impacts."
3. Ms Sneyd disagreed (Ex 5 [17c]): "To limit the application of the design excellence provisions to the function and use of the proposal would defeat the purpose of seeking to achieve a design outcome that can be considered design excellence."
4. In the planners' joint expert report, Mr Carroll worked through the individual matters listed at cl 7.12(4) (Ex 5 [18d]). I summarise his findings on relevant aspects as follows: 1. the distinctive functional parameters for service station design were accommodated with a view to good operations; 2. high quality design, materials and detailing were evident (including in regard to landscaping); 3. the resultant development was in context with the zone and nearby development in particular the large nearby shopping centre and its car park; 4. there was consistency with the requirements of the DCP; 5. the form and external appearance of the development "will not detract from the quality and amenity of the public domain and there are no detrimental impacts on streetscape or on the visual quality of the Moonee Beach locality in general …. (landscaping) proposed to the street frontage will improve the amenity and quality of the public areas along the road frontages" (ibid); 6. there is an appropriate relationship with the child care centre (and other nearby development).
5. Mr Carroll found that (Ex [18c]): "The proposed development - comprising the buildings, site landscaping and forecourt areas of the service station - represents an appropriate design outcome for a facility of this type."
6. Ms Sneyd saw the development as a standard service station and that there were opportunities for an alternative higher level of architectural design involving changing materials and alternate canopy design and further landscaping (Council's bundle of documents (Ex 2) included some graphic material of quite unusual canopy design). Further, according to Ms Sneyd, the development was seen to involve inherent risk ("air quality, soil quality and safety") which was a point of particular note given the adjacent child care centre, and the provisions concerning relationship with neighbouring sites. Ms Sneyd emphasised that simply meeting the purposes of the development (as a service station) and commonly adopted standards is not enough to achieve design excellence.
7. Given the "matters" referred to at cl 12(4)(e)(ix) of the LEP in regard to "pedestrian, cycle, vehicular and service access, circulation and requirements", the traffic experts were also asked to assist the Court in regard to the design excellence test. Mr McCarthy suggested that if the interest is in design excellence there is a need to turn to the "the fundamentals of traffic" and that one should minimise road safety concerns and seek to ensure traffic flow efficiency. Mr McCarthy indicated that in regard to both of these factors as a general rule left turn movements have a less adverse impact than right turn movements (ie movements across traffic lanes). Mr McCarthy also indicated that while there were various "Australian Standards" for design relating to traffic (in particular "internal design and circulation"), these can be considered "minimum requirements". Exceeding these minimums can assist in questions relating to traffic safety and efficiency and thought of as relevant to the question of design excellence.
8. Mr Coady thought that, in regard to the matters at cl 12(4)(e)(ix) of the LEP, design excellence is concerned with whether the design "represents the optimal arrangement", and believed that in this case this had been achieved. Pedestrian and bicycle visitation levels were not likely to be high and were adequately dealt with. Other considerations had already been dealt with in the traffic evidence and Mr Coady believed the proposal exhibited the optimum access arrangement for this form of development. It can be mentioned here that Mr Coady gave weight to the need for developments of this kind to have regard to the design requirements of oil companies or other future service station operators. His point was, I believe, that without such practical regard at the design stage a service station would most likely not proceed.

Consideration

1. I agree with the planning experts that there is no objective test, and I would say few principles developed as yet (so far as I am aware, or based on the authorities provided by the parties) to assist in the application of the "design excellence clause" appearing from time to time, and with some variation, in planning instruments. Usefully in Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 ('Aloke') [85], Commissioner Dickson adopted the position that the "listed matters" to have regard to (in this case at cl 7.12(4)) are to be considered as "cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence".
2. Other framing points which I have used to assist me in this case are: 1. The term "excellence" is defined in the online Macquarie Dictionary as follows: "the fact or state of excelling; superiority; eminence" I also find a comment in regard to design excellence from the NSW Government Architect's website emphasising the aspirations to generally lift design quality as on point: "Design Excellence is a term used to describe a variety of requirements intended to lift design quality …" (my emphasis) It follows that the inclusion of the design excellence clause, above regular provisions in standard local environmental plans, and as a jurisdictional test, brings a reasonable expectation that an approvable development would, as a minimum, exhibit design qualities above or superior to standard levels of design. 1. The nominated objective of the applicable design excellence clause provides guidance. While there is no jurisdictional requirement to achieve the objective of the clause (in this case cl 7.12(1) of the LEP which is cited at [32]), it is reasonable to consider the objective in coming to a position on whether a development exhibits design excellence for the purposes of cl 7.12(3) of the LEP. As a point of comparison cl 7.12(1) of the LEP (applicable in this case) is different from the relevant clause in Aloke. Clause 6.21 of Sydney Local Environmental Plan 2012 (applicable to Aloke) indicates the aim of the clause is "to deliver the highest standard of architectural, urban and landscape design". The use of the superlative form suggests a higher order ambition than applies in the case before me (see [32]). Clause 7.12(1) of the LEP also seems to particularly draw in local context, and "contributing" to various "character values of Coffs Harbour". 2. In considering whether development, "as a whole", exhibits design excellence and the "listed matters" in a cumulative manner, as suggested in Aloke, it seems to me reasonable that different weights would apply to different "matters". For example, while a development might exhibit excellence in certain less significant design aspects, this would not necessarily account for inferior design in more significant aspects. The question of "significance" would depend on the circumstances of the case. 3. The consideration of whether a development exhibits design excellence goes beyond working through the individual "listed matters" to which a consent authority must have regard to. The list should not be considered exhaustive, and if design is the point of attention then interrelationships matter.
3. In considering the evidence and the framing points outlined above, I find as follows in regard to the question of whether the development exhibits design excellence:

• I accept that the development complies with LEP development standards and DCP requirements, and that it can be expected that modern environmental standards applying to service stations are much higher than in the past. The proposal can be expected to meet such baseline requirements. It might be assumed there are superior attributes in regard to aspects of engineering or construction and the like (an example mentioned in evidence was in regard to fuel tank vapour capture). However, these would need to be balanced against other design quality considerations.
• The underpinning considerations of Mr Carroll ("form following function") and Mr Coady (whether the design "represents the optimal arrangement") are reasonable matters to give attention to (particularly mindful of cl 7.12(4)(a) of the LEP). Again I would see that this development stacks up well in regard to such matters. Indeed following Mr Coady, it is reasonable to think that the layout, as proposed, would be more attractive to a developer of the service station, with a view to ensuring delivery of the development and maximising its value, than would some of the alternatives entertained by Council. While this question of optimising a site, may not be listed at cl 7.12(4), it does have pertinence in my view. But such considerations may be at odds with other design excellence factors.
• When considering whether there is exhibition of design excellence "as a whole", it seems to me the other significant considerations for this development in this particular locality are: (1) the presentation of the service station in the streetscape, (2) relationship of the development to other development, (3) access, and (4) sustainable development.
• Mindful of the clause objective (cl 7.12(1)) which does point to local context, I am not persuaded particularly that the inclusion of a non-standard canopy design would shift the proposal from exhibiting standard qualities to superior or excellent qualities in streetscape character terms. Linking to cl 7.12(4)(viii) and sustainable development, were submissions to include a creative canopy or building design or even hardstand arrangements that stood out on questions associated with resource efficiency, or otherwise creatively "optimising" environmental interdependencies, then more evidence of design excellence may have been apparent. I agree with Ms Sneyd that the proposed built form and landscaping is only in keeping with what would be the norm for service station developments of this kind.
• The relationship between the service station and the child care centre to the west is a concerning aspect of the proposal with a mind to cl 7.12(4)(e)(iv) of the LEP. The concerns raised by Council in regard to what I would call policy incongruities warrant some attention on this issue. For me these relate to: (1) State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 and in particular the related Child Care Planning Guideline (neither of which are applicable in this assessment of a service station DA) which would together seem to frown on service stations in proximity to child care centres, and (2) benzene exposure policy which seems to embody an odd situation where according to the experts benzene "(has) no safe level of exposure, but (does have) acceptable criteria for exposure", and which the proposal readily meets in regard to the adjacent child care centre (Air Quality Experts Joint Report, Ex Q [12]). Service station developments are not without risk and the fact that there is an existing congregation of young and very young children quite adjacent raises the question of whether there is sufficient likelihood of an increase in child safety risk to warrant a preventative approach (see for example The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218). However cl 7.12 is concerned with design excellence, and while I am not limited to it, cl 7.12(4)(e)(iv) points to aspects like "separation, setbacks, amenity and urban form". In short, I am not sure that there is anything further in design terms that can be done for this development on this site in regard to this child care centre relationship and note the higher order vapour recovery methods which are proposed. This would be better considered as a merits question in DA evaluation terms, and here I note Mr Staunton's concerns that the issue of air quality impacts may not have been properly pleaded.

Conclusion

1. It is my conclusion that this development as a whole does not exhibit design excellence. According to the applicant's experts, the design works well in optimising the development as a commercial service station prospect which relates to its likelihood of eventuating and providing a service to users. But this comes at a cost to a factor more significant in planning terms in the circumstances. This is in regard to site access arrangements which are substandard, and bring a negative effect in regard to local traffic management. This is reasonably seen as a decidedly significant aspect of a service station development given the centrality of its function in attracting and dispersing cars to and from the local road system. This finding means there is no jurisdiction to approve the development in the circumstances, and it is unnecessary to further consider merits aspects of the proposal.
2. The Court orders: 1. The appeal is dismissed. 2. Development application No. 0824/16DA for a service station on part of Lot 301 in DP 1092858 is refused. 3. The exhibits are returned with the exception of Exhibits 2 and A. ………………………… P Walsh 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: 22 January 2020