MPR Properties No 3 Pty Ltd v Tweed Shire Council - [2017] NSWLEC 1643 - NSWLEC 2017 case summary — Zoe

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MPR Properties No 3 Pty Ltd v Tweed Shire Council

[2017] NSWLEC 1643

Land and Environment Court (NSW)|2017-08-02

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-08-02

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

Judgment

This appeal, brought under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), arises from the refusal of the Tweed Shire Council (the Council) to grant MPR Properties No 3 Pty Ltd (the Applicant) development consent and landowner's consent for a service station involving the demolition of an existing building, erection of the service station and ancillary signage.

[2]

The Site and the Locality

The development which is the subject of this appeal is located at 279 - 283 Tweed Valley Way, Murwillumbah (the Site). The proposed development is a 24 hour, 7 day a week Shell/Coles Express service station and ancillary shop (143m2) offering convenience items for sale. The development will have four fuel bowsers servicing up to eight vehicles at any one time. Ingress will be from Alma Street, and egress for all staff and customers via a new crossover to Tweed Valley Way. The proposed development also requires the consent of the appropriate roads authority under s 138 of the Roads Act 1993 for works to the adjacent road reserves of Alma Street, Hayes Lane and Tweed Valley Way.
The Site has some prominence, located as it is on the corner of Tweed Valley Way and Alma Street, adjacent to a roundabout. It is opposite Budd Park and Tweed River to its north, where the Tourist information Centre and car park are also located. On its southern boundary are commercial operations, including RMS, a fruit and vegetable shop and a café. To the east of the Site is an item of heritage, the Murwillumbah Railway Station and Yard Group (Item 66). Opposite the Site to its west is the Hayes Toyota dealership with mechanical repairs. The nature strip fronting Alma Street contains four mature street trees planted in close proximity to the boundary of the Site. In the background is the World Heritage-listed area, Mt Warning and the caldera.

[3]

Relevant Controls

The Site is located in the B5 Business Development Zone under the Tweed Local Environmental Plan 2014 (Tweed LEP), with land diagonally opposite in Alma Street zoned RE1 Public Recreation. The proposed service station is an innominate permissible use with consent in the zone.
Under cl 2.3 of the Tweed LEP, the Court is to have regard to the objectives for development when determining a development application in respect of land within the B5 zone. Those objectives are

To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
To provide for retailing activities that are not suited to, or desirable in, other business zones or that serve the needs of other businesses in the zone.
To accommodate a wide range of employment generating uses and associated support facilities including light industrial, transport and storage activities.

The Tweed LEP also has requirements with respect to Preservation of Trees and Vegetation (cl 5.9), Flood Planning (cl 7.3) and Stormwater (cl 7.6).
Other relevant planning instruments include: •State Environmental Planning (Infrastructure) 2007. Clause 101 of that instrument provides as follows: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. •State Environmental Planning Policy No 33 - Hazardous and Offensive Industry •State Environmental Planning Policy No 64 - Advertising and Signage
The Tweed Development Control Plan 2008 (Tweed DCP) applies to the Site. It also requires the consent authority to take into account matters listed under s 79C of the EPA Act.
Section A17 of the Tweed DCP applies to Business, Enterprise Corridor and General Industrial Zones. The objectives of the Section include the "[establishment of] a high quality built form character and urban environment through best practice site planning and urban design provisions": section 1.1, Objective 4.
Control C2 of Part 6 of Section 17 of the Tweed DCP requires sensitive urban design and landscaped setting. The need for sensitive urban design is also required by Control C4 of Part 5.4 of Section A17 of the Tweed DCP.
Part 5.4 of Section A17 contains provisions regarding views and visual amenity. Amongst the Objectives to achieve this is the protection of the iconic nature of the Tweed (O2). Controls to achieve this include the following: "the designs of roof forms and use of colour is to have regard to and be comparable with the broader landscape character especially when on exposed locations": (C 4).
Section B22 contains provisions with respect to Murwillumbah Town Centre.
Section 138 of the Roads Act 1993 provides as follows: 138 Works and structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.

[4]

Background to the Application and Draft Conditions

The Applicant initially applied for development consent on 25 January 2016. The Application was notified, a number of objections were received, and amendments were made by the Applicant. While a recommendation to approve the Application (subject to conditions) was made by Council officers, on 17 November 2016 the Council resolved to refuse development consent, and landowner's consent. In short, the reasons for refusal were that the proposal: had an unacceptable impact on the built environment, including traffic impact; was unsuitable for the site, detracting from visual appeal and streetscape; and was not in the public interest, given public concern about conflicts with land use amenity and traffic and pedestrian safety.
This appeal was filed on 3 April 2017. As a result of further discussion and ongoing negotiation between the parties, on 2 June 2017 leave was sought and granted for the amendment of plans. The layout of the proposed development was changed by adding a pedestrian path from Tweed Valley Way; relocating the fuel tanks, price sign, vents and spill collector and adding a rollover kerb section.
At the commencement of this hearing, application was again made for amendment of the plans for which consent is sought, as the plans had been changed in response to recommendations from the experts. The Council did not oppose the application nor submit that a cost order was required, given the nature of the changes. Leave was duly granted for the amended plans to be relied upon. These plans form Exhibit J.
Prior to the hearing, the Applicant continued to seek confirmation of matters which remained in dispute between the parties, as the experts appeared to have reached agreement on most matters. On 31 July 2017 - the day before the hearing - a document entitled "Supplementary Draft Without Prejudice Conditions of Consent" [Ex 8] was served by the Council on the Applicant. That document contained a number of further proposed draft conditions said by the Council to be responsive to the further work undertaken jointly by the experts. Further proposed draft Conditions of Consent were filed with the Court after the conclusion of the hearing. These draft conditions are agreed save for the condition identified as Deferred Commencement Condition number 2, which reads as follows: The applicant must provide an amended schedule of materials and finishes which exhibits the following changes to the written satisfaction of the Council: (a) Subdued, earthy colours have been adopted to minimise the visual impact of the proposal; (b) Shell and Coles corporate colours are used for the business' logos only.
During the hearing the Applicant challenged whether the new draft conditions ought to be considered as part of the hearing. Council's response was that the conditions were responsive to the amended plans prepared by the Applicant.
Ultimately, notwithstanding the late notice I allowed the draft conditions to be tendered, as the experts were available in Court and in a position to express their opinion on them.

[5]

Site Inspection and Objector Evidence

This case commenced with a site visit on 1 August 2017. It was attended by the parties, their legal advisers and experts. In addition, a number of objectors attended and gave evidence.
In the course of that inspection, I was shown the location of the proposed elements of the service station, the location of proposed traffic management arrangements and also the proposed location of pedestrian access. In addition, the location of the trees which had been the subject of one of the Council's contentions (and objectors' concerns) was also pointed out. The town planner for the Applicant pointed out the estimated height of the canopy of the service station relative to the height of the current building occupying the Site, and the Applicant's visual expert indicated in general terms where additional views would be opened up by demolition of the existing building and replacement with the service station canopy.
We walked across Tweed Valley Way and observed the Site from the east and from a northern aspect, looking in a southerly direction back towards Mount Warning and the Wollumbin range. Dr Lamb for the Applicant described the proposed development aided by the photo montage he had prepared and which was annexed to the joint expert report [Ex 5].
Evidence was taken on site from a number of objectors. The matters raised by the objectors included the following:

The "gateway" and high visibility nature of the Site, making it unsuitable for a service station.
Scenic value of the Site.
Concern about the health of mature trees.
Traffic, including the capacity of Hayes Lane to accommodate petrol tankers, and concerns about congestion particularly at the intersection of Tweed Valley Way and Alma Street.
Unsuitability of use, due to flood-prone nature of the Site.
Site is more suited to a tourist-related use/negative impact on tourism.

Detailed evidence was given on site by Mr Hayes, the proprietor of Hayes Toyota. His chief concern was the risk and impact of flooding. He took the Court, the parties' legal advisers and experts on an inspection of his Toyota dealership, and indicated the extent of the flood which had significantly impacted his premises on 30 - 31 March 2017. Copies of photographs that he took of this event were tendered into evidence and form Ex 9.

[8]

Town Planning and Visual Impact

There was significant agreement between each of the Applicant's town planning and visual experts, and the expert on these matters for the Council. The two expert reports dealing with town planning and visual impact significantly overlap.
Each of the experts, Dr Lamb, Mr Hollyoak and Ms Gordon, agrees that the Site adjoins a Gateway to Murwillumbah as defined in Fig 3.1 "Urban Structure Plan" of Section B 22 of Tweed DCP, and given this, and the mountain backdrop of the Site, it warrants a sensitive urban design: Ex 5, 2.1.1 and Ex 6, 2.1.1.
The changes which were reflected in the amended plans (such as increased setback of plant enclosure; reduction in height of the proposed freestanding pylon sign so that it does not project above the canopy of the service station; and updated landscape design) resolve the outstanding visual impact contentions.
The visual impact and town planning experts agreed [in Ex 5 and Ex 6] that provided changes were made to the proposed colours in accordance with the photomontage attached to Ex 5, the visual impact of the proposal would be acceptable. Specifically, the visual impact experts agreed that "a change in the colour proposed for the service station building from predominantly red, to a combination of red and white as shown in the photomontage at Attachment 2, would result in an acceptable mix of colours and materials for the Site as viewed from all street frontages": Ex 5, 2.1.6.
The experts further stated that such modifications would result in an acceptable urban design and landscape setting for the Site: Ex 5, 2.1.7.
In oral evidence, Dr Lamb (for the Applicant) in responding to a question as to his opinion on the proposed wording of deferred commencement condition number 2 (set out above at [18]), stated that he did not believe that the proposed condition was necessary, as the Applicant should be able to "promote its own product". Moreover, given that the wording requires submission of an amended schedule of materials and finishes "to the written satisfaction of the Council", Dr Lamb stated that in his opinion this amounted to a constructive refusal of the application, as Council may never be satisfied.
In cross-examination by Ms Gerathy for the Council, Dr Lamb agreed that there was an objective to protect the Tweed, and that Control C4 of Part 5.4 requires the use of colour to be compatible with the broader landscape character.
Dr Lamb did not concede that a built form which reflected "natural hues" would be compatible with the broader landscape. If natural hues were included, in Dr Lamb's opinion the development would be unrecognisable as a service station. Dr Lamb also rejected the characterisation of "earthy" colours as "subdued", using the soil colour of the Pilbarra as an example of an earthy colour which is not subdued. His evidence was that surrounding landscape colour viewed from a distance is mostly blue, or a combination of red and blue.
What followed was a lengthy series of questions put to each of Ms Gordon (for the Council) and Mr Halcrow (for the Applicant) by the Council. These questions sought agreement from the experts as to the elements of the broader landscape character contemplated by cl 5.4, characterised by Ms Gerathy as the approach to the Site; the World Heritage Area; the park opposite the Site; the Tweed River and the existing landscape. She then asked whether the development would remain legible as a service station if the logo components were maintained on the pylon, canopy signs and convenience store, but the balance of the built form incorporated colours which were compatible with the locality.
Ms Gordon agreed with the Council that a materials palette could be designed which was compatible with the elements, maintained the corporate logos, and resulted in the built form being recognisable as a service station. Mr Halcrow also agreed, but stated that he did not have any objection to the use of colours as proposed by the Applicant in the location.
Mr Halcrow also took issue with the Council's contention that the proposal failed when assessed against the requirements for corner buildings in Part 4.9 of section B22 Murwillumbah Town Centre, as the Site is not a corner building as defined.

[11]

Flooding

There is no contest as to the zoning of the Site or its location in Flood Liable Land. The reality for development in proximity to the Tweed River is that much of the area is located in the flood zone. This is not a reason to prohibit development in those areas, but the consent authority must ensure that appropriate mitigating measures are put in place to respond to a flood event, as required by the Tweed LEP and Tweed DCP. The Tweed DCP at section A3 contains requirements for flood liable land. Amongst other things, a development proposed for such land requires a detailed flood assessment.
The Applicant prepared a fine grained site specific flood model as part of its application. The assessment undertaken by the Council concluded that there is negligible change in the duration of inundation due to the proposed development: Ex 2, Tab 50, p. 802. As far as the flood in March 2017 is concerned about which Mr Hayes gave detailed evidence, the Council submitted that this was the biggest flood in the area in 60 years. On any view, the photographs displayed an event which was very significant.
The Council is satisfied as to the measures that are required to be taken by the Applicant to attend to and mitigate appropriately the flood risk. The Council's assessment report [Ex 2 Tab 50] concludes that from a flood perspective, there are no constraints that would prohibit the current proposal. The report further recommends the inclusion of standard and specific conditions, which are included at draft condition 17.
Further, the Council withdrew its contention regarding potential environmental impacts due to contamination as a result of use of the Site including flood following the Applicant's provision of a further report, the Management of Dispensing and Storage of Petroleum Products prepared by TRG and dated 18 April 2017 [Ex B, document 10]. (It is noteworthy that this report, and the Council's satisfaction in respect of it, were dated after the significant flood event of March 2017 about which Mr Hayes gave his evidence.)
As far as flooding is concerned, I am satisfied by the expert assessment undertaken by the Council, and the evidence provided by the experts. In being so satisfied, I note that the Applicant will be committing to a series of steps and a detailed regime as set out in its management plan.

[12]

Visual Impact and Site Suitability

During the hearing the Council pressed its objections regarding the visual impact of the proposal, specifically the need for a sensitive urban design as required by Control C4 of part 5.4 of Section A 17 of the Tweed DCP; its concern that the design of the service station shop and its location, together with its proposed colour scheme, detract from the attractive site location and mountain backdrop when approaching the site from the north; and the excessive use of Coles corporate colours, particularly red, as being inappropriate in the context of a gateway site, and is therefore inconsistent with objective O2 [Ex 1, B1.2(a), (c) and (e)].
Council's response to this concern is its proposed deferred commencement condition 2. This condition is not accepted by the Applicant. The Applicant also submitted that s 79C (3A) of the EPA Act requires a liberal interpretation to be taken to the requirements of the Tweed DCP.
In the course of hearing from the experts, including the Council's own town planning expert, Ms Gerathy put the proposition to the witnesses set out above at [41]. Each witness agreed with that proposition, save for Dr Lamb, as set out above.
As far as the Council's proposal for subdued, earthy colours is concerned, the experts did not change their position as expressed in their reports. Dr Lamb opined that white is a subdued colour, with which point Ms Gordon agreed.
The Council's submission with respect to proposed deferred condition 2 was specific: it was put that were the Court to decide not to order the inclusion of that condition, that decision would not found a basis for refusal of consent. In other words, the Council did not consider that the failure of this condition to be included ought to be fatal to the application. Given the totality of the evidence, I decline to impose deferred commencement condition number 2.
I concur with Dr Lamb's criticism of the proposed deferred commencement condition number 2, that the subdued colour palette to be submitted to the Council to its written satisfaction, may not receive the requisite approval. Leaving aside the question of whether or not inclusion of this condition would amount to a constructive approval, I am satisfied on the evidence of the experts for both parties that the amended design, as demonstrated in Attachment 2 to Ex 5 and Ex 6, represents an acceptable design outcome. I also note that there is no prescription contained in the Controls mandating the use of subdued colours. I also note the Council's concession that the Site is not a "Gateway" site as defined in the DCP, but is nonetheless a prominent corner site.
I am content to accept the experts' opinion in this case with respect to the visual impact of the proposal, and make my finding based on that and my own inspection of the Site. While I do not seek to assert my own aesthetic view on the proceedings, I hold reservations that a development which had "corporate colours" for certain elements of the development, and "subdued earthy hues" for the remainder, would potentially appear as an unhappy visual compromise.

[13]

Traffic and Road Matters

In cases where development is on land which has a frontage to a classified road, cl 101(2)(a) requires consideration to be given to whether, where practicable, vehicular access to the land is provided by a road other than a classified road. There are other considerations for a consent authority as well, going to matters of safety, efficiency and the ongoing operation of the classified road, which the Council contends is in play here, and considerations with respect to noise or vehicle emissions.
In their first joint report the experts disagree (at Ex 3 p. 5) with the Council's contention (as stated in its Amended Statement of Facts and Contentions, Ex 1) that the proposed design adversely affects the safety, efficiency and operation of Tweed Valley Way, Gazetted Road No 679. The traffic experts have confirmed that there is no matter specified in cl 101 of SEPP (Infrastructure) which would prohibit the granting of consent. The Council is satisfied with the experts' conclusions, noting also that while ingress to the Site will be via Hayes Lane from Alma Street, only egress will be permitted from the Site to Tweed Valley Way with the driveway to be splayed north to disallow vehicle entry from Tweed Valley Way.
The test to be applied with respect to the requirements imposed by cl 101 was considered by Preston CJ in Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 at [42]. In that case, his Honour held that the "consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable…. the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road".
Applying that test to these facts, there is no reason why consent ought not to be granted, having regard to the objectives of that clause of the SEPP (set out above at [8]), as well as the matters about which I am required to be satisfied. In addition to the Council being satisfied, these matters were comprehensively addressed by the traffic experts. I adopt their conclusions.
The detailed matters which are required to be undertaken by the Applicant in respect of an application under s 138 of the Roads Act are set out at draft condition 18.

[15]

Concluding Remarks

There was vigorous argument as to the breadth of the dispute between the parties. The Council pressed upon the Court the need for account to be taken of the entirety of the evidence, comprising the site visit; the objector evidence; and the expert evidence. In addition, the Court is to have regard to the submissions made by the parties. These matters have been considered in this decision.
I am satisfied that the matters in contention between the parties have been resolved, and for the reasons set out above, I am satisfied with the conclusions and resolutions reached by the experts. In particular, I am satisfied that the proposed colour scheme for the development is acceptable.
I have had regard to the objectives for development, as set out in Tweed LEP and reproduced at [6] above, am satisfied that they are achieved by the proposed development.
As required by cl 101(2) of SEPP (Infrastructure), I am satisfied as to the matters specified in that clause for the reasons set out above.
I accept the evidence of the Applicant's town planning expert Mr Halcrow, that the demolition of the existing building and the construction of the service station canopy will result in greater view lines from Tweed Valley Way across Alma Street to the Tweed River and Barr Park.
I also accept the evidence that the future use as a service station will be less intensive than its current use as a bottle shop, with a smaller footprint, and the proposed development will make little difference to what is presently on the Site in the event of a flood.
Given my findings in relation to visual impact, traffic and pedestrian safety, I find that the development is not contrary to the public interest. I further find that the objectors' evidence is not of such a nature as to prevent the granting of approval.
For the reasons set out above, having considered the evidence and heard both parties' submissions, I find that there are no matters which prevent the granting of the development consent for the development on the terms set out in the attached conditions. Likewise I find that it is appropriate to grant landowner's consent for the works in the road reserves connected with the development.
Finally, it appears that there is at least one typographical error (or transposing error) contained within the proposed agreed draft Conditions of Consent which were filed after the conclusion of the hearing. Draft condition 101 refers to the "approved Flood Plan of Management required by condition 19", when condition 19 does not deal with flood management. Further, on the assumption that condition 19 should be a reference to condition 91, that condition requires the preparation of a Flood Plan of Management in accordance with the recommendations of the TRG Report of April 2017, but no mechanism is provided for such a plan to be approved (presumably by Council). These are matters which require correction.
I propose to grant development consent and landowner's consent subject to conditions in accordance with the conditions filed on 18 August 2017, provided the corrections set out at [77] are made, and draft deferred commencement condition number 2 is deleted.