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.