Planet Warriewood Pty Ltd v Warringah Council

The proposal 7Insofar as the original proposal has been substantially amended, the detailed changes involve:

• Reducing the floor area of the bulky goods premises from 12,794m2 GFA to 6,000m2 GFA;
• Redesigning the bulky goods premises to provide more articulation to the built form;
• Redesigning the turning areas adjacent to the proposed loading docks;
• Reducing the number of on-site car parking spaces from 273 spaces to 223 spaces;
• Relocating the southern cinema screen, the restaurant and internal road alignment to retain the existing flow path of the creek line,
• Reducing the number of access/egress driveways onto Myoora Road from two to one;
• Increasing the provision of landscaped open space to from 59% to 61.4%; and
• The bulky goods premises and the cinema use are proposed to operate at different times to minimise an intensification of use and to achieve compliance with the provision of on-site car parking. 8Consequently the following table shows the numerical compliance of the amended proposal against the original proposal in terms of the built form controls under WLEP 2000: Control Requirement Proposed Amended Compliant Housing Density 1 dwelling/2ha of site area N/A N/A N/A Building Height (Overall) 8.5m 6.5m to 10.0m 6.0m to 8.0m Yes Building Height (Natural ground to topmost ceiling) 7.2m 6.2m to 9.8m 5.8m to 7.8m No (partial) Front setback 30m 33.0m 33.0m Yes Mona Vale Road 20m 21.0m 22m Yes Other Roads Rear Building Setback 7.5m N/A N/A N/A Side Building setback 7.5m 7.5m to 17.0m 15m to 17.5m Yes North 7.5m 15.0m to 17.0m 12.5m to 22.7m Yes South Building Site Coverage 20% (6,382.2m2) 19.7% (6,297m2) 19.5% (6.237m2) Yes Landscaped Open Space 70% (22,337.7m2) 59%(18,827.4m2) 61.4%(19,645m2) No

Planning controls 9The following controls are relevant: (a)Environmental Planning and Assessment Act 1979; (b)Environmental Planning and Assessment Regulation 2000; (c)Water Management Act 2000; (d)Roads Act, 1993; (e)State Environmental Planning Policy No. 55 - Remediation of Land; (f)State Environmental Planning Policy (Infrastructure) 2007; (g)Warringah Local Environment Plan 2000 (WLEP 2000); and (h)Warringah Local Environmental Plan 2011 (WLEP 2011). 10Relevantly, under WLEP 2000 the development is considered consistent with the definitions of 'restaurant', 'bulky goods shop' and 'entertainment facility' and the site is located within the A4 Myoora Road Locality wherein the Desired Future Character Statement provides: The Myoora Road locality will provide an environment for low intensity business, community and leisure uses which do not rely on exposure to passing trade for their continued operation. Along Mona Vale Road a dense bushland buffer will be retained or established. New development or further intensification of existing development will provide safe vehicular access to the satisfaction of the Council and the Roads and Traffic Authority. Only small, non-obtrusive and non-illuminated signs that identify the use of a site are to be visible from Mona Vale Road. Signs that are designed of such size, height or visual appearance so as to attract passing trade will not be permitted. All signs are to be in keeping with the colour and textures of the natural landscape. Articulated building forms, generous landscaped spaces around buildings and building materials that blend with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality. 11Under WLEP 2011, the site is located within the RU4 - Primary Production Small Lots Zone. The proposed development is consistent with the definitions in the dictionary for 'restaurant', 'bulky goods premises' and 'entertainment facility'. Insofar as a restaurant is a permitted use under Schedule 1 - Additional Permitted Uses, a 'bulky goods premises' and an 'entertainment facility' are prohibited uses within the zone. 12However, the savings Clause 1.8A of WLEP 2011 provides: 'If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.'

The evidence 13As noted, after consideration of the substantially amended proposal the parties agree to consent orders. Accordingly, a set of expert reports has been tendered including that of Mr C Hills, the applicant's consulting planner's overview of the revised proposal. Also, a detailed council position paper was tendered by Mr T Collier, council's senior development assessment officer, which addressed all of the contentions and objections from residents, resulting in his support for the conditional approval of the revised development. 14In the absence of any contrary expert challenge to these expert reports, I have considered the details and summarise the following relevant matters from the Mr Collier's position paper. 15Consistency with current and desired future character; Mr Collier's assessment comments are: (a) The proposed, amendments are considered to adequately address the intensity criteria of the Desired Future Character statement for the Locality. The reduction of the floor area of the bulky goods premises and the adjusted operating hours to avoid the overlap of uses, in conjunction with appropriate conditions imposed, will ensure that the development satisfies the intensity criteria of 'size and scale' and the 'extent of activities associated with the proposal' as detailed in the Land and Environment Court judgement Vigor Master P/L v Warringah Council [NSWLEC 1128]. (b) There is no evidence presented with the amended proposal that the bulky goods premises, the restaurant and the entertainment facility will or will not rely on exposure to passing trade for their continued operation. However, given the nature of the goods sold in the bulky goods premises and the nature of the outdoor cinema use, it is considered unlikely that these uses would rely upon the exposure to passing trade for their continued operation. (c) The amended External Colour Schedule (Plan No. A13) indicates that the development will now include colours and materials which are now sympathetic to the natural landscape. The amended plans propose an increase in the provision of landscaped open space from 59% to 61.4%. This represents a shortfall of 8.6%. The revised shortfall is considered to be acceptable in that it now satisfactorily addresses the Objectives of the Built Form Control, the visual impact of the development and the retention of the waterway. 16Watercourse impact; the assessment comments are: (a) The proposal has now been redesigned to avoid artificial relocation and piping of the waterway through the middle of the site. Conditions imposed by the NSW Office of Water and Council's Natural Environment Unit in the draft conditions of consent, will ensure that the development will satisfy the requirements of cl. 56 Retaining Distinctive Environmental Features on Sites of WLEP 2000. (b)The retention of the waterway, with some augmentation works and compliance with conditions imposed by the NSW Office of Water and Council's Natural Environment Unit in the draft conditions of consent, will ensure that the development will satisfy the requirements of Council Policy No. PL 740 Waterways -"Protection of Waterways and Riparian Land Policy' and cl. 60 Watercourses & Aquatic Habitats of WLEP 2000. 17Height and bulk; the assessment comments are: (a) The amended plans (Plan Nos. A06 & A07) indicate that the development will now achieve an overall building height of between 6.0m and 8.0m and a ceiling height of between 5.8m to 7.8m. While the ceiling height does not achieve compliance with the relevant part of the building height built form control, it is acknowledged that it does not have any structural influence on the compliant overall building height non-compliance and which would otherwise result in a visually dominant building form. (b) The amended design satisfactorily addresses this contention. (c) In conjunction with an overall reduction to the proposed building height, the amended design has provided greater articulation to visually relieve the bulk and scale of the Bulky Goods Premises relative to its setting and surrounding development. (d) The amended design represents a significant architectural departure from the previous scheme such that it now proposes a reduced visual bulk and scale which is more consistent with development on adjoining land within the Locality. 18Landscaping adequacy; the assessment comments are: (a) The amended plans propose an increase in the provision of landscaped open space from 59% (18,827.4m2) to 61.4% (19,645m2). This represents a shortfall of 8.6% (2,692.7m2) from the minimum requirement of 70% (22,338.3m2). (b) The amended plans propose an increase in the provision of landscaped open space from 59% to 61.4%. The revised shortfall is considered to be acceptable in that it now satisfactorily addresses the visual impact of the development by the retention of the waterway and the effective provisions of screening vegetation along the side setbacks and the road frontages of Mona Vale Road and Myoora Road. (c) The amended design provides for a balanced scheme which resolves the bulk and scale relationship to it's landscaped setting. (d) The amended landscaping scheme and compliance with conditions imposed by the Council's Natural Environment Unit and Landscape Officer in the draft conditions of consent, will ensure that the development will satisfy the requirements and objectives of cl. 63 'Landscaped Open Space' of WLEP 2000. 19Traffic and parking; the assessment comments are: (a) The restaurant is the smallest generator on the site. Based on the traffic generation rates specified in the RMS guide it will add one vehicle-movement to the peak generated by the bulky goods. The peak for the restaurant as a stand alone use occurs outside regular business hours and will not have an adverse affect on the surrounding road network The 408m2 area will still generate 20 trips based on a stand alone restaurant rather than a facility which is an ancillary use to the cinema. This matter has been satisfactorily addressed by the applicant. (b) Due to the reduced scale of the bulky goods store it will now generate 142 vehicles per hour during the Thursday peak (4pm-5pm), 347 vehicle movements during the Saturday peak between 12pm - 1pm. I agree with the volumes in the applicant's traffic report. Rather than effectively doubling the traffic on Myoora Road this development will now add approximately 50% of the existing traffic volumes. This matter has been satisfactorily addressed by the applicant (c) The capacity of the cinema has not altered substantially from the original proposal Although the number of cinemas has changed it was stated by the applicant that that only 350 patrons maximum would be accommodated at any one time. The significant change is that it is no longer proposed to operate the bulky goods and cinema concurrently. As such the parking requirements and traffic generation do not have a cumulative affect. This matter has been satisfactorily addressed by the applicant. (d) The traffic on Myoora Road is no longer doubled. It will still result in an additional 50% of traffic being added There are measures in the conditions to improve the conditions to accommodate the additional traffic. This matter has been satisfactorily addressed by the applicant . (e) This development provides improvements in the existing road network to mitigate the impact of traffic generated by this development These improvements include upgrades to criticalintersections, localised road widening and access off Mona Vale Road. This matter has been satisfactorily addressed by the applicant. (f) By limiting the hours of operation for the cinema the parking requirements for the bulky goods and the cinema no longer have to be accommodated simultaneously. This has led to a substantial reduction in the parking requirements This development now provides a surplus of parking spaces. This matter has been satisfactorily addressed by the applicant. Note: The amended scheme will require a total of 293 car spaces if all the uses are operating at the same time. This will result in a parking shortfall of 70 spaces as illustrated in the updated table below. 20Insofar as the amended scheme would require 293 car spaces if all uses operated concurrently and there is a shortfall, this is addressed by the conditions, which only permit the various components of the development to operate at different times. 21Public interest considerations; the assessment comments are: (a) The proposal is now considered to be consistent with the Desired Future Character Statement for the A4 Myoora Road Locality under Warringah Local Environment Plan 2000 for the reasons provided in the relevant Contentions above. (b) With exception to the Landscaped open space built form control and a minor non-compliance to the ceiling height requirement under the Building height built form control, the amended development now complies with the relevant controls of the WLEP 2000 for the reasons provided in the relevant contentions above. 22Public submissions. Following the public exhibition of the amended plans a number of submissions were received. A summary of the relative assessment comments is as follows: 23Desired Future Character consistency in terms of "low intensity business"; assessment comment: (a) The term "low intensity" is not specifically defined in WLEP 2000. In this regard, the matter of intensity is considered under Vigor Master P/L v Warringah Council [NSWLEC 1128], where Commissioner Hussey gave weight to the evidence of the Council Planner who sought to give meaning and understanding to the terms "intensity" and "impact". In this regard, in terms of intensity which is called up in the Statement, the following characterisation was given: "Intensity: is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore, "low intensity" would constitute a development which has a low level of activities associated with it." Size and scale With exception to the landscaped open space and internal ceiling height components of the built form controls under WLEP 2000, the amended development now achieves compliance with the built form controls. The non-compliances with the landscaped open space and internal ceiling height component of the building height built form controls are supported in that they do not undermine, or result in a significant departure from, the objectives of each respective control as detailed in the Warringah Design Guidelines (adopted August 2001) which should be read in association to the WLEP 2000. Extent of the activities associated with the proposal The extent of activity may be gauged by the patronage and traffic generated by the development. A condition is imposed which will minimise the extent of the activities on the site to a level which is considered to be acceptable in terms of patronage and, as noted by Council's Traffic Engineer, traffic generation. (b) The development has been assessed by the RMS and Council's Traffic Engineer who have each respectively imposed conditions in support of the proposal to ensure safe vehicular access (refer to Deferred Commencement Condition Nos. 2 & 3 and Condition Nos. 13, 32, 35). (c) No signs are proposed as part of this development. A condition is imposed which requires that the applicant is to lodge a separate development application for signage (refer to Condition No. 8). (d) The amended design of the bulky goods premises now includes a significantly greater level of articulation to the built form. This, in conjunction with the sloping topography of the site, the density of landscaping along the Mona Vale Road and Myoora Road frontages, and the use of sympathetic colours and finishes minimises the visual impact of development on long distance views of the locality. Therefore, the amended development is considered to be consistent with the Desired Future Character of the locality 24Undesirable precedent; assessment comments: The development application is subject to the savings provisions under cl. 1.8A of WLEP 2011 which requires that "if a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced". The development application was lodged under WLEP 2000 and before the commencement of WLEP 2011 and has not, to date, been finally determined. Therefore, the development application must be determined as if WLEP 2011 had not commenced. With regards to the creation of an undesirable precedent, it is noted that the bulky goods premises and entertainment facility are now classified as prohibited uses in the RU4 Primary Production Small Lots zone and would not be supported by Council in the form of a development application. Rather, any proposal would be subject to a planning proposal to rezone any respective land under the relevant criteria of Division 4 of the Environmental Planning and Assessment Act, 1979. 25Traffic volume increase in Myoora Road; assessment comment: • Council's Traffic Engineer has assessed this component of the amended application and advises that the traffic on Myoora Road is no longer doubled. Rather, it will now result in an additional 50% of traffic being added. In this respect, it is considered that the measures imposed in the agreed conditions to improve the road network conditions will satisfactorily accommodate the additional traffic (refer to Condition Nos. 2, 3 and 32). • Council's Traffic Engineer has imposed a condition which requires the developer/applicant to provide road widening across the full width of the property boundary on Myoora Road. This, in conjunction with an additional condition which requires the construction of a 12.5m wide vehicle crossing, will enable sufficient manoeuvrability for trucks entering and leaving the site without causing unreasonable disruption to the local road network (refer to Condition Nos. 32 and 35). 26Watercourse impact; assessment comment: The amended development now retains the existing alignment and open character of the waterway which cuts across the site in a north-east to south-west direction. The NSW Office of Water and Council's Natural Environment Unit have imposed conditions which will ensure that any augmentation works to the waterway will be carried out in a sensitive and appropriate manner (refer to Condition Nos. 12, 15, 16, 17, 36, 38, 64, 74, 75 and 105 to 126). 27Sewer connection; assessment comments: This matter has been assessed by Council's Environmental Health Officer who has imposed appropriate Deferred Commencement condition to ensure that the developer/applicant to obtain agreement from Sydney Water and other property owners for a full engineering design prior to the consent becoming operational (refer to Deferred Commencement Condition No. 1 and Condition Nos. 66 and 70). The amended proposal includes a Wastewater Management Plan which is based upon the proposed future sewer connection which is considered to be appropriate given the matter under consideration. The Plan also includes a letter from Sydney Water dated 6 August 2012 which provides in-principle approval subject to conditions being satisfied. This letter, and additional conditions imposed by Council Environmental Health Officer (refer to Condition Nos. 1, 7, 66 and 70), will ensure that the development is capable of connecting to an Sydney Water sewer system prior to the consent becoming operational and that connection is made prior to the issue of an Occupation Certificate. ... the conditions included in the letter provided by Sydney Water dated 6 August 2012, and additional conditions imposed by Council Environmental Health Officer (refer to Condition Nos. 1, 7, 66 and 70), will ensure that the development is capable of connecting to an Sydney Water sewer system prior to the consent becoming operational and that connection is made prior to the issue of an Occupation Certificate. Additionally, separate conditions have been imposed (refer to Condition Nos. 5, 15, 18, 19, 23, 25, 28, 54 and 74) seek to protect the waterway (is protected) during storm events. 28Noise impact; assessment comment: The amended application is accompanied by a Noise Emission Assessment (Revision 2 dated 19/2/2013) as prepared by Acoustic Logic Consultancy Pty Ltd. This assessment concludes that the development will comply with the relevant acoustic criteria which will ensure that no unacceptable noise impact will occur on surrounding properties, subject to recommendations. The assessment, which includes noise attenuation recommendations, is included as a condition (Refer to Condition No. 6, 64 and 80). 29Crime prevention; assessment comment: The amended application does not include any details with respect to the provision of on-site security. However, a condition (refer to Condition No. 64) requires an Operational Management Plan to be submitted to Council which includes site security. With respect to crime in the local area, this is covered under the jurisdiction of the NSW Police Force and any matters which arise in the public domain should be addressed to the police accordingly. 30Waste storage; assessment comment: As the development consists of commercial uses, the pick up of waste is managed by a private contractor appointed by the operator of each use. However, a condition (refer to Condition No. 64) requires an Operational Management Plan to be submitted to Council which includes waste management. Additionally, Condition No. 75 requires inspections of the waterway to occur at the end of each cinema session and to remove any rubbish found in the waterway and disposed of appropriately 31Operating hours limitation; assessment comments: The suggested condition was reviewed by Council's Traffic Engineer with respect to any foreseen impact upon the local road network through the combined operation of the bulky goods premises/restaurant and the outdoor cinema/restaurant. It was considered that the restaurant use does not generate a significant amount of traffic such that it would exacerbate the traffic volume on the local road network generated by the bulky goods premises and the outdoor cinema uses respectively. Therefore, and given the compliant provision of on-site car parking with this combination of uses, it was considered that there was no necessity to impose a more restrictive time frame for the restaurant use.

Conclusion 32In determining these consent orders, I have carefully considered the expert evidence, the submissions and the objections for my determination of this amended application, I accept that WLEP 2000 is the prevailing planning instrument in this matter because of the savings clause in cl 1.8A of WLEP 2011, which provides that "...the application must be determined as if this Plan had not commenced". 33Accordingly, this raises the question as to what weight should be given to WLEP 2011. Mr Galasso submits that consideration could be given to the findings of Dixon C in Alambo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 wherein she stated: The only interpretation of the savings clause, which I can accept on the evidence and submissions is that proposed by the applicant. It is simply illogical to adopt the legal reasoning of the Court of Appeal in Terrace Towers with respect to the savings clause under consideration in this case. The words, which underline the reasoning of the Court in Terrace Towers, "as if the Plan had been exhibited ", are purposively removed from cl1.8A of LEP 2012. Accordingly, it must follow that the prevailing planning instrument remains the LEP 2005 for this application by dint of the savings provision in cl1.8 A of LEP 2012. It also follows that LEP 2012 is not a relevant consideration under s 79C (1)(a) (i) and (ii) because I am directed to determine the application as if the Plan had not been commenced. I agree with the applicant that it has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration. 34However, that judgement also referred to other authorities on the question of weigh. From reference to these judgements, I note the findings that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 35If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of the zone. 36In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA185at193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving thedevelopment would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 37In line with these authorities Mr Hill assessed the proposal as to whether the aims and objectives of WLEP 2011 are achieved. He says that: "The aims of WLEP 2011 include providing for a balance of development that caters for, amongst other matters, employment, entertainment, cultural and recreational needs of residents and visitors, and maintaining a diversity of employment and services. It anticipates that development will result in quality urban design and which will not have an adverse effect on streetscapes, public places or the natural environment. It is considered that the proposed bulky goods warehouse, cinema, and restaurant will provide for increased and diversity of employment opportunities within the Warringah Local government area. In addition it could be expected that the proposed cinema and restaurant will contribute to the entertainment, cultural and recreational needs of the local community. In addition, and as indicated previously, the proposed development has been designed to satisfy all of Council's built form controls, as well as the general principles of development control, is of good urban design and as such will not have any adverse impacts on the streetscape, public places or the natural environment. It can therefore be concluded that the proposed development is consistent with the aims of WLEP 2011. Further to the above it is noted that the subject site is now zoned RU 4 Rural Small Holdings, in accordance with WLEP 2011.This zone is quite extensive extending from Mona Vale Road westwards to the edge of the Ku-ring-gai National Park. The zoning objectives for the RU 4 zone are set out in the SEE at page 76. Clause 2.3(2) of WDLEP 2011 provides that: The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. With regard to the objectives of the RU 4 Zone, it is considered that they should be read as a whole, as it is noted that the objective of supporting sustainable primary industry and other compatible uses, encouragement and promotion of diversity of employment opportunities in relation to primary industry enterprises, and maintenance of the rural character of the locality, do not prohibit non -rural type activities. This is also demonstrated by the list of non rural type activities which are permissible with Council consent, particularly those referred to in Schedule 1 of WLEP 2011 and those already in existence and listed previously in this report. It is noted in particular that there is a concentration of uses in the locality that are clearly not related to sustainable primary industry or associated activities. In that regard this report has noted the very broad range of land uses already operating in this locality, and which are also permitted within the RU 4 zone. It is also noted that the subject site represents less than 3% of the total land in this precinct. The objectives of the zone are addressed in the SEE at pages76 Ito 80. The SEE concludes that the proposed development is not antipathetic to or inconsistent with those objectives, and will not detract from the achievement of those objectives or undermine the planning intent of the controls contained within WLEP 2011". 38In the ultimate, the following cl 12 of WLEP 2000 prescribes certain matters that must be considered before consent is granted: 12 What matters are considered before consent is granted? (1) Before granting consent for development the consent authority must be satisfied that the development is consistent with: (a) any relevant general principles of development control in Part 4, and (b) any relevant State environmental planning policy described in Schedule 5 (State policies). (2) Before granting consent for development, the consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. (3) In addition, before granting consent for development classified as: (a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or (b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development. Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act. To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality. 39In this case the bulky goods premises and entertainment facility are classified as Category 3 development. Accordingly, I rely on the aforementioned evidence and resultant agreement of the planners Mr Hill and Mr Collier that was not challenged, that the cl 12 (3) (b) and cl 15 (Category 3 special considerations) provisions are satisfied. 40Consequently, I am satisfied to give determining weight to the provisions of WLEP 2000 and rely on the expert evidence submitted to the Court, which supports the merits of the amended development application for the granting of the conditional consent orders.

Court orders 41The Court orders by consent: (1)The appeal is upheld. (2)Development consent is granted to development application No. DA 2011/1571 for the demolition of a dwelling house and various outbuildings, the removal of certain trees and the redirection of a water course and the construction of a mix of uses including a bulky goods shop, a restaurant and two outdoor cinemas with associated car parking, internal driveways and landscape works on land known as 42 - 44 Myoora Road, Terrey Hills subject to the conditions in Annexure "A". (3)Exhibits 2, 4, G, H and W to be retained. R Hussey 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: 15 April 2013