McDonald's Australia Limited v Wollongong City Council

Issues and submissions

1. The Applicant's position is that the power to grant part of the proposed development and impose appropriate conditions should be exercised. The Applicant prepared a further sketch (drawing SK 01 Issue D) which it is accepted reflected my findings. It is referred to in the draft conditions of consent. The Council says that the DA should be refused.

Council's submissions

1. The Council makes 5 principal submissions: 1. The remaining part of the site is partly zoned B1 and partly zoned R2 and is an irregular shape. As such there is a constraint upon the orderly development of the village centre and thus a constraint on the orderly development of land (cf s 1.3(c) of the EP&A Act) and less apt to deliver a well-ordered outcome. 2. There is an absence of an opportunity for public participation about the Applicant's proposal (giving effect to the reasons) which is inconsistent with the express object of the EP&A Act in s 1.3(j) "to provide for increased opportunity for community participation in environmental planning and assessment". 3. Two of the proposed changes to be imposed by condition have not been assessed for their implications - the southern raised walkway from the riparian area and the raised walkway connection from the McDonalds building to the plaza. There are potential impacts which have not been assessed and therefore the DA should not be approved. 4. the changes suggested by the Court are not necessarily the only way the identified inadequacies might be addressed. A considered and more holistic approach to site re-planning is both available to the Applicant and appropriate. It is appropriate because if the rationale for the site layout in SK01 Issue C has been removed, why, then, it might be asked, would the layout of development remain the same? In evaluating how the Court's powers might be exercised having given that several aspects of the proposed development were unsatisfactory, the opportunity for further considered reflection is likely to be foreclosed by the Applicant's approach. 5. The process of the appeal is not well suited to a re-design of the site, with unassessed implications. The Applicant's approach, which requires further evidence and hearing, represents a departure from the overriding purpose required to be achieved by curial proceedings of a just, cheap and quick disposition of the proceedings.
2. The Council made submissions in relation to proposed conditions in the event I am minded to grant development consent with which I will deal with later.

Applicant's submissions (in reply)

1. The Applicant submits that the findings of the Court with respect to the grant of a partial consent are consistent with the evidence and are appropriate in the circumstances.
2. There are a variety of ways, the Applicant says, in which the residue parcel can be developed as part of the Neighbourhood Centre notwithstanding that it is bisected by the B1 and R2 zone boundary, including the lodgement of a new development application seeking consent for: "(a) a use or uses permissible in both zones under the Wollongong Local Environmental Plan 2009 (LEP). Examples of such uses include a childcare centre, community facility, neighbourhood shops or recreation facilities (indoor); or (b) a use or uses permissible by virtue of clause 5.3 of the LEP which applies to so much of the subject site that is within 20m of the zone boundary between the B1 and R2 zones; or (c) a use in the balance of the B1 zone, and a different use in the R2 zone - consistent with the split zoning of the land."
3. It is not the case that the residue parcel will be sterilised for future development, nor that it cannot be developed in the future in a manner consistent with the applicable environmental planning instruments and controls. Furthermore, there is no obligation on an applicant for development consent to develop a site to the maximum extent of the site area.
4. In response to the Council's second argument the Applicant says: 1. The Proposed Orders would result in the grant of development consent to a subset of the development which was publicly notified - namely, the McDonald's operation, commercial tenancies and communal areas. 2. The proposed built form and layout of the McDonald's operation and commercial tenancies is unchanged from what was publicly notified, with the communal areas remaining in the same location but being enlarged in response to public submissions. 3. The proposed alterations to circulation, pedestrian access and the expansion of the communal areas as identified by the Court are directly responsive to the expert evidence in the proceedings and do not generate any greater impacts. 4. All of the resident objectors who gave evidence at the hearing opposed the development of a child care centre in proximity to the proposed McDonald's operation such that its removal is responsive to those submissions.
5. Responding to the Council's third submission the Applicant submits that there are no unassessed impacts and the changes are based in the evidence already given. I will deal with this in more detail in the consideration of the issue.
6. The Council's fourth submission that "the findings of the Court provide the Applicant with the opportunity to reflect and consider the form of development" the Applicant submits is not a sufficient basis to refuse the grant of consent. The Court has considered the development proposed in the DA and has made findings based upon the expert evidence.
7. Finally, The Applicant rejects the Respondent's fifth submission in circumstances where the findings of the Court are based upon the expert evidence in the proceedings and the grant of a partial consent is within the power of the Court under s 4.16(4) of the EP&A Act. The power of the Court to make the Proposed Orders and issue a partial consent subject to the Proposed Conditions is undisputed.
8. The Applicant also made submissions about conditions which I will deal with separately.

Consideration

1. I do not accept that the suggested constraint upon the balance of the site (that part which is excluded from approval) is a reason for refusal. I have already found that the form of the development, in the absence of the childcare centre and with the conditions is an acceptable form of development. The balance of the site is capable of development in a number of ways as the Applicant has submitted.
2. A development application for the balance of the site must of course take into account the development which has been approved. It inevitably must be in compliance with the relevant planning instruments, and may stand alone, or indeed seek to modify the approved development. There are a range of possibilities for development and there is no constraint upon the balance of the site which renders it incapable of being developed in an orderly manner having regard to that which is approved.
3. As to the second submission there is no statutory obligation for public participation prior to the exercise of the powers under s 4.16(4) and s 4.17(1)(g) of the EP&A Act. It is difficult to understand how such participation can be required in these circumstances based only upon an objective of the EP&A Act. The EPA Act provides a complete regime for public participation and none is required prior to the exercise of the powers available here.
4. In any event there has been significant public participation to date in the assessment and determination of the DA and what is proposed to be approved is a sub-set of the development which was publicly notified, as the Applicant submitted. The buildings, other than the childcare centre and general layout of what is to be approved are unchanged from that which was publicly notified. The improvements required to pedestrian access and the public spaces are consistent with the evidence from the Council at the first hearing.
5. The relationship between the public plaza at the north west of the site and the childcare centre was also criticised and my reason for not approving the childcare centre is based on that criticism as well as the access point adjacent to the childcare centre.
6. In my view there is no statutory obligation for further public participation, and to the extent that whether any utility would be served by further public participation, I observe that the public participation to date has been extensive and has dealt with all the issues the subject of the first judgment and these reasons.
7. The Council is in a sense the guardian of the public interest including the interests of members of the public who have made or may make submissions to it or the Court. There is no suggestion from the Council that notification to the public may elicit a submission which it has not made or has not anticipated in the formulation of its submissions to the Court.
8. I reject the submission that the absence of further public participation is a reason for refusal of the DA.
9. The Council points to two changes to be proposed by condition which it says need to be, and have not been, assessed.
10. As to the southern raised walkway from the riparian area, the Council submits that its impacts need to be assessed because there are likely impacts. It first points to the potential for queuing of traffic entering the site and the consequential effect on the signalised intersection with West Dapto Road.
11. A crossing at that location was always proposed and the only change is that there is a raised crossing which has the effect of prioritising pedestrian movement across the driveway. The Council submission assumes that there will be sufficient slowing of traffic giving way to pedestrians crossing with the benefit of a marked and raised crossing that there will be a queuing of vehicles and a disruption to the signalised intersection.
12. I do not agree. First, the vehicles in that location, some 30m from the entrance are moving slowly in any event (Rogers, Traffic joint report at [9]). The degree of further slowing, whilst enabling the evident prioritisation of pedestrian movement will only be marginal. It is the obligation of motorists in any event to give way to pedestrians and common sense suggests that motorists in this location would be slowing further for any crossing pedestrians in any event. The raised crossing makes it clear and obvious that pedestrians are prioritised.
13. Second, the number of pedestrians utilising that crossing is going to be comparatively low. It is not at any time likely to be a steady or constant stream of pedestrians which will cause such a disruption to movement of vehicles as to create difficulties at the intersection.
14. Third, as the Applicant submitted, there was no evidence at the hearing that what was proposed with the crossing at that time created an issue at the intersection. The effect of the raised crossing is marginal and will have no measurable additional impact.
15. Fourth, as Mr Rogers said in his expert traffic evidence, without demur from Mr McLaren, the phasing of the lights at the intersection will be required to take into account pedestrian movement. The phasing will ultimately be determined by Transport for NSW after consideration of all traffic and pedestrian movements related to, or having an impact on, the intersection.
16. I do not accept that a new merit issue is raised by the requirement that the existing crossing some 30m from the entrance be a raised crossing in order to make it clear and obvious that pedestrians have priority.
17. Next the Council submits there may be a safety issue with vehicles needing to reverse over the raised walkway when entering or leaving a car space. I do not understand how this can be the case. The reversing movement is unchanged in itself, but vehicles leaving or entering the two adjacent parking spaces may need to go over the "hump" during the course of than manoeuvre.
18. I do not regard this as a reason for refusal. It is not absolutely necessary for the vehicles to manoeuvre over the "hump" as they can enter and leave the spaces without doing so. And such "humps" are not uncommon in parking areas and will regularly be negotiated by motorists if required. There is not an additional safety issue which needs assessment.
19. The Council also submits that there is an unassessed safety question with the new crossing from the McDonald's building to the south-east plaza. I reject that submission:

• The possibility of such an access was raised by the Court with the urban design experts during the hearing and it was addressed by both experts. The Council did not suggest that a safety issue would arise if such access was provided.
• The proposed access is a raised walkway of the type which the Council's traffic expert described: "It's a raised platform that has priority to pedestrians, so it's actually - it's more than just a speed hump, it's actually quite a good device for managing traffic at the interface with pedestrians, yeah." Tcpt 27 July 2021 p 97(17-19) (See first judgment at paragraph [158] The raised walkway proposed to link McDonald's and the plaza self-evidently will operate to manage the interface with pedestrians and give priority to pedestrians. There is no basis to consider there is an unassessed safety issue.

1. For the reasons I set above in dealing with the Council's first submission, I do not accept that the further appropriate development of the site is foreclosed by granting consent in the manner proposed by the Applicant.
2. The Council's final argument is predicated on the assumption that further evidence is required. For the reasons I have articulated no further evidence is required. The submission is rejected.
3. It follows that I have concluded that it is appropriate to grant development consent subject to conditions. There are however some conditions in dispute.

Conditions

1. The Applicant tendered further draft conditions in "mark-up" format which were the subject of debate at the first hearing and/or the second hearing. It will be necessary for a final document to be prepared capable of lodgement on the NSW Planning Portal having regard to the following. The Applicant accepts for the most part the amendments proposed by the Council in recent times and those conditions must be amended (if not already done so). What I understand may be in issue I deal with below.

Approval of signalisation by Transport for NSW

1. The Applicant opposes this condition as a deferred commencement condition and accepts condition A(i)(a) as an operative condition.
2. The Council submits that there is insufficient certainty about the likely phasing of the signals such that there may be consequences for the development and so says it should be approved by Transport for NSW prior to the consent becoming operative. In my opinion the evidence does not support that proposition. I accept Mr Rogers' evidence that there will be the capacity for the signals to be appropriately phased and that there is no real risk that the development could not proceed on that basis.
3. The Council also seeks a detailed traffic assessment and analysis of the proposed signalised intersection for the same reason. In my view that is not necessary. Transport for NSW will determine the phasing and I accept the evidence that the intersection is well capable of dealing with the traffic to the site and that the phasing can be appropriately managed.
4. Deferred commencement condition A should be deleted and condition 56A retained as the operative condition reflective of condition A(i)(a).

Condition 12 - timing of movement of power poles

1. I do not see the need that they be relocated prior to the issue of a construction certificate. The poles should be relocated prior to the grant of an occupation certificate.

Condition 18 - signage

1. It does not appear that there is an issue, but for certainty I observe that the McDonalds sign on West Dapto Road should not exceed 6m in height and condition 18f is to be deleted as it relates to the childcare centre.

Condition 39B - Loading/unloading

1. The condition can be deleted as the subject matter is dealt with in conditions 110 and 113.

Condition 43 - West Dapto Road

1. The work should be carried out prior to occupation certificate in the event the Council has not carried out the work in the meantime. Condition is deleted and replaced by proposed condition 98B.

Condition 64 - construction access

1. The Applicant's amendment is acceptable so that during the course of construction different points of access are used so long as there is only one point of access used during any stage of construction.

Condition 113B - management of loading dock

1. I note the agreement that there needs to be a condition providing for the preparation and approval by Council of an Operational Loading Dock Management Plan. Condition 113B will need to be amended so as to be consistent with Condition 113D.

Condition 113D - Service vehicles hours of operation

1. The Applicant proposes that service vehicles be limited to 7am - 8pm weekdays and 8am - 8pm on weekends and public holidays. The Council seeks to limit the hours to 7am - 9am and 5pm - 7pm. The hours suggested by Council are the hours the Applicant nominated for servicing of the retail/commercial tenancies.
2. The Council submits there is the potential noise and other impacts and so access for McDonalds should be restricted. The Applicant says there is no evidence to support the Council's proposition. It further says the hours meet the known needs of McDonalds whereas the more limited hours were nominated for the other uses because they are not presently known, and so more limited hours are the starting point.
3. There is undoubtedly the potential for acoustic impacts from the movement of large vehicles including waste disposal vehicles. Neither party pointed to any evidence concerning the acoustic impacts which may arise.
4. However, at tab F of Exhibit D is the acoustic report of Muller Acoustic Consulting dated 14 May 2021. Council must have been satisfied as to the contents of the report because there was no acoustic issue raised by Council at the hearing.
5. At paragraph [2.4.1] (p10) of the report Mr Muller sets out the assumptions he made in his acoustic assessment. He assumed that there would be "Truck Consumable Deliveries/Waste Collection" between 7am and 6pm on any day. That is, it was assumed that there would be no "Truck Consumable Deliveries/Waste Collection" after 6pm. This assumption was one of a number of assumptions made which led Mr Muller to conclude, after analysis and modelling, that the acoustic impacts were satisfactory.
6. It follows that the condition of consent relating to hours of access for service vehicles should be consistent with the assumption made by Mr Muller. There is no basis to limit the hours to those sought by the Council, and similarly there is no basis to allow all of the hours sought by McDonald's. The condition must be amended.

Conclusion

1. Development consent will be granted subject to conditions consistent with these reasons and the first judgment. Upon provision of the agreed conditions orders will be made in chambers. If I have inadvertently overlooked any condition in dispute, the parties have liberty to draw that to my attention when complying with the direction below.
2. I make the following direction: 1. Within 2 business days the Council is to file in a form suitable for lodgement on the Planning NSW Portal an agreed set of conditions reflective of these reasons and the reasons given on 20 October 2021.

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: 08 December 2021