McDonalds Australia Ltd v Randwick City Council

CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Project Venture Developments v Pittwater Council [2005] NSWLEC 191

APPLICANT Mr J Webster, SC Instructed by: Ms B Peatman, solicitor Of: Hunt and Hunt LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, barrister Instructed by: Ms T Litt, solicitor Of: Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10223 of 2006 McDonalds Australia Ltd v Randwick City Council

JUDGMENT Introduction 1 This appeal involves development application No. DA/1/2006 which is for the demolition of existing buildings and the construction of a two-storey McDonalds' restaurant including drive through take-away food service at 54 Maroubra Road and 59-63 Royal Street, Maroubra ("the proposal"). The restaurant is to provide 67 seats with parking for 29 vehicles in a car park having frontages to Maroubra Road and Royal Street. A number of advertising signs including a 6 m high pylon sign 3.6 by 3.6 m are proposed. It will operate between the hours of 6 a.m. to midnight, seven days a week.

2 The rectangular shaped site comprises Lots 1, 2 and 3 in DP 901019 and Lots 10 and 11 in DP 791694. It is bounded by Maroubra Road, Royal Street and Glanfield Street with frontages to these streets of 30 m, 67 m and 30 m respectively and an area of about 2,023 sq m. Existing development on the site comprises a car sales yard and showroom and a two-storey residential flat building. The site is situated approximately 650 m west of the Maroubra Junction Town Centre.

3 The locality generally is mainly developed with a variety of residential uses, including detached dwelling houses and residential flat buildings. It adjoins to the east a motor showroom and car yard that has utilised part of the site for this same purpose. There are other non-residential land uses nearby including an automotive service facility in Glanfield Street.

4 The three-day hearing included an inspection of the site and its environs in the company of the advocates and some of the experts and a number of resident objectors. Statutory controls 5 The site is included in the Residential A Zone under Randwick Local Environmental Plan 1998 ("the LEP") and in this zone the proposal is prohibited. The application was lodged on the basis of existing use rights under s 108 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and the Environmental Planning and Assessment Regulations 2000 ("the EP&A Regulations"). Advertising 6 The application was advertised for a period of 14 days and 34 submissions were received. Those submissions comprise objections to the proposal expressing concerns as follows: + Incompatibility with the character of the existing surrounding residential land use. + More intensive commercial use by comparison with the existing car sales use. + Sufficient fast food outlets in the locality. + Proposed hours of operation are excessive. + Traffic and parking impacts including impacts from delivery trucks utilising Royal Street. + Excessive noise from all on-site activities including vehicle movements, mechanical equipment and unruly patrons. + Odour impacts associated with cooking smells in the surrounding area. + Excessive signage and illumination with light overspill. 7 Eight resident objectors from Maroubra Road, Royal Street and Glanfield Street gave evidence when the hearing began on site, elaborating on the above concerns. Council's decision 8 Council considered the application at its meeting on 9 May 2006 when it decided to refuse the application. The notice of determination refusing the application includes reasons essentially as follows: o Inconsistency with the aims and objectives of the LEP. o The intensity of use of the proposal by comparison with that of the surrounding area. o Adverse impacts on the amenity of the surrounding residential area. o The proposal will be visually bulky and intrusive, adversely affecting the residential amenity. o The inadequacy of the landscaping. o Unreasonable traffic impacts resulting from increased vehicle movements, noise, fumes and light spillage. o The likelihood of patrons loitering and congregating outside the restaurant late at night last affecting residential amenity. o Inadequate information in relation to noise and odour emissions. o The inappropriateness of the proposal in the context of the surrounding residential character. The issues 9 The respondent's Statement of Issues raises the following essential issues: o Whether the proposal would be consistent with the existing and future character of the area. o Whether the proposed built form, height, scale and design would be appropriate. o Whether the impacts on the amenity of the surrounding area in terms of the intensification of the use of the site, noise, odour emissions and signage would be unreasonable. o Whether that management measures to protect the security, safety and amenity of the surrounding residential area would be effective. o Whether the proposed landscaping will be satisfactory. o Whether the arrangements for storage and removal of waste materials would be satisfactory. o Whether the arrangements for the delivery and storage of stock would be satisfactory. o Whether the approval of the proposal would be in the public interest.

The evidence 10 On behalf of the respondent council expert evidence was given by: · Mr K Nash- town planner.

11 On behalf of the applicant expert evidence was given by: o Mr P Altree-Williams- town planner.

12 On behalf of both parties evidence was provided by the following Court-appointed experts: o Mr J. Coady - town planner and traffic engineer. o Mr D Craig - acoustic engineer o Mr N Holmes - air quality engineer.

Existing use rights 13 It was not in dispute that the subject site comprises an existing use for the purposes of s 108(3) of the EP&A Act and Regulation 41(1) of the EP&A Regulations. These provisions also have the effect that any provision of an environmental planning instrument that would derogate or have the effect of derogating from these provisions has no force or effect. This development application is for the change from one prohibited purpose to another prohibited purpose and it was agreed that the application is not affected by the recent amendments to the existing use provisions in the EP&A Regulations because the transitional provisions contained therein are applicable in this instance.

14 Subject to the granting of development consent, the applicable provisions of the EP&A Act and Regulations thus enable the existing non-conforming use of the site to be changed to another use, otherwise prohibited by the LEP, in this case a the proposed restaurant and drive through take away food facility. Section 79C of the EP&A Act is nevertheless applicable, setting out a range of merit matters, subject to relevance, for consideration in dealing with the application. Issues for determination 15 Having considered all of the evidence and the submissions of the advocates, I have decided that there are two fundamental issues in this case that fall within the ambit of s 79C of the EP&A Act and require the determination of the Court: 1. Whether the proposal will have an adverse impact on the streetscape and the existing and likely future character of the area. This issue requires an examination of the physical and operational character of the proposal taking into account the existing land uses in Maroubra Road, Royal Street and Glanfield Street and the locality generally. 2. Whether the proposal will have any adverse impacts on the amenity of existing residential development in the vicinity of the site. This issue requires an examination of matters such as noise, odour, appearance and traffic. Planning principles 16 The determination of these issues is assisted by the principles articulated in two decisions of the Court. In Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 Roseth SC identified four questions that usually arise in the assessment of existing use rights. Two of those questions are relevant to the issues in this case: How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessments. What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.

17 In relation to the matter of the relationship of new development to its existing and likely future context as referred to in the first of the above two questions, in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Roseth SC said (at par 24): Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street?

Streetscape and character 18 The first of the principles in Fodor deals predominantly with bulk and scale and provides for the relationship of new development to its existing and likely future context to be considered. This aspect of the principal should be interpreted as requiring the consideration of whether a proposal will have an adverse impact on the streetscape and the existing and likely future character of the area. The principle in Project Venture also does this by reference to aspects of physical and visual impacts in the context of the compatibility between a building and its surroundings and by asking whether the proposal's appearance would be in harmony with the buildings around it and with the character of the street.

19 In the context of bulk and scale, Mr Altree-Williams explained that the proposed building complies with the height, floor space and setback requirements that would normally be applicable to the surrounding area with the exception of a minor variation to wall height. Taking this into account together with the landscaping as proposed and the appropriate architectural style of the building he was of the opinion that the intent of the planning principle in Fodor is achieved. Plainly what he says in relation to bulk and scale is, by itself largely correct but this is only part of the necessary analysis because in dealing with character and streetscape other matters including architectural style and land use need to be considered.

20 These matters were discussed by Mr Nash and form the basis for his conclusions as to the unacceptability of the proposal. The first of his concerns involves the scale and inappropriate architectural style of the building in its residential context. Of particular concern is the unsatisfactory form and presentation of the building to Royal and Glanfield Streets resulting from its blandness and absence of articulation together with the 3.5 m high acoustic fence. Compounding these concerns is the illumination of the site at night and the advertising signs and the open car parking lot presentation to Maroubra Road and part of Royal Street. These factors, even taking into account the proposed landscaping, are indicative of a development that would be out of character with the surrounding residential area, both now and in the future. He concluded that when considered together these matters reveal a significant and detrimental impact on the visual amenity of the area and streetscapes of Maroubra Road, Royal Street and Glanfield Street. Mr Altree-Williams disagreed with these conclusions but considered together I find the residents' concerns and Mr Nash's reasoning persuasive.

21 The surrounding lands are zoned for residential purposes and predominantly utilised as such. Existing surrounding development includes detached dwelling houses with landscaped setbacks and other forms of residential development. Whilst other forms of development exist it is this residential development that must attract the strongest consideration in dealing with streetscape and character. Also in dealing with likely future character the residential zoning of surrounding lands that is indicative of continuing residential use must be given significant weight.

22 Despite the provision of perimeter landscaping, the commercial character of the proposal results from the building's built form, and its signage and its night-time illumination. Whilst building heights and setbacks are not of concern, the relatively large car park would make a significant contribution to this commercial character. McDonalds developments have their own character, which derives from a combination of built form, colour scheme and advertising signage and simply because this building is different this does not make it unacceptable. However, I have decided that its character, especially its commercial characteristics would make it inappropriate on this site, especially being so fundamentally different to the character of existing and likely future surrounding development.

23 There is a further dimension to the character conflict as identified by Mr Nash. Despite the traffic utilising Maroubra Road this is a relatively quiet residential locality, especially at night. However, the proposal will generate significant activity on the site itself and in the locality. This will occur as a result of vehicular and pedestrian traffic generated by customers as well as service, delivery and restaurant personnel. This activity, especially at night would be in stark contrast to the existing relatively quiet amenity, an important aspect of the area's character.

24 I have thus decided that the proposal would be so out of character with the surrounding environment that it would not achieve the harmony referred to in Project Venture and consequently should not be approved. Amenity impacts 25 Mr Nash was concerned that the proposal would have adverse amenity impacts on neighbouring residential properties especially those in Royal and Glanfield Streets. These concerns are partly based on the intensification of the use of the site and the immediately surrounding area by comparison with the previous relatively benign activity of the motor showroom. They also relate to the proposed built form and associated structures including acoustic fencing and illuminated sign structures that would have a commercial character not compatible with and would thus be likely to compromise the amenity of existing residential land uses. The noise and disturbance from customers and noise and headlight glare from vehicles within the car park and utilising Royal Street were also problematical. It was his opinion that the impacts on the amenity of the surrounding dwellings would be significant and detrimental to the quality of residential living especially in the evenings when the majority of residents are at home.

26 Mr Altree-Williams disagreed with Mr Nash. He did not accept that land use intensification by comparison with the existing motor dealership is the appropriate test because intensification of an existing use is not necessarily prohibited. I agree with this but it is nevertheless of some assistance to compare the two different land uses so as to understand the concerns of the residents. In this regard he nevertheless acknowledged that there would be an increasing patronage manifesting itself in an increasing number of vehicles coming to and leaving the site particularly after 6 p.m. each day. Despite this he concluded that any amenity impacts arising from the proposal would be within reason, taking into account that it would comply with applicable noise and odour requirements and that there would be no unreasonable light overspill.

27 I accept that the traffic generated by the development will be within the capacity of the surrounding streets and that not all traffic will enter and leave the site via Royal Street because alternate access is available off Maroubra Road. I also accept that noise impacts will be largely appropriately controlled, particularly noise from the building itself including that from plant and equipment and from the drive through arrangement. I also expect that odour impacts generally can be appropriately managed.

28 By itself the noise from vehicles and the activities associated with various service vehicles will be within reason but it will nevertheless contribute to the amenity impacts associated with the various on-site and external activities generated by the development. These activities would have a commercial character, that would be conspicuous to residents, thus adversely affecting their amenity. There can be little doubt that the restaurant will be busy in the evenings and that the associated impacts will affect residents who can reasonably expect an appropriate level of evening residential quietness. This is to be contrasted with the infrequent night-time activities generated by the previous use of the site.

29 In addition to these impacts I also accept that the character of the development as a whole would adversely affect the visual amenity of the residents of this locality, essentially for the same reasons given in the above analysis of streetscape and character. Again the landscaping scheme cannot disguise the commercial character of this development, particularly the acoustic walls, the car park, the illumination and the advertising signs. Conclusions 30 It was suggested that this McDonalds' restaurant would benefit the community and the neighbourhood by providing employment and the redevelopment of the site with a high-quality modern building that will be maintained to a high standard and be the subject of appropriate security measures. These matters are undeniable but they are not of such significance as to overcome the more fundamental problems associated with this proposal.

31 The submission that because McDonalds' restaurants are relatively commonplace the appearance of this proposal would not cause surprise nor would many passers-by feel that it is intrusive may, to a degree, be correct. But again, this does not overcome the more fundamental and localized concerns as reflected by the objections of some of the residents. The suggested reduction in operating hours to 6:30 a.m. to 11 p.m. would not make any appreciable difference to what would be a fairly intense commercial activity in a reasonably quiet residential area.

32 The proposal will be fundamentally different to that which has existed on the site for many years, such differences including the physical nature of the development and its associated activities. Differences of this kind do not automatically indicate unacceptability. However in this case, the proposal would be inconsistent with the existing streetscapes and the existing and likely future character of the area.

33 I have therefore decided that the appeal should be dismissed and the development application refused Orders 34 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development application No. DA/1/2006 for the demolition of existing buildings and the construction of a two-storey McDonalds' restaurant including drive through take-away food service at 54 Maroubra Road and 59-63 Royal Street, Maroubra, is determined by the refusal of consent. 3. Exhibit D is retained.

                      T A Bly
                      Commissioner of the Court
                      rjs

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