Renaldo Plus 3 Pty Limited v Hurstville City Council

Land and Environment Court (NSW)|2005-07-12|Before: Mr P

CITATION : Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

APPLICANT Renaldo Plus 3 Pty Limited PARTIES : RESPONDENT Hurstville City Council

KEY ISSUES: Development Application :- demolition of existing improvements - erection of a mixed commercial/retail and residential development - weight to be given to draft local environmental plan - adequacy of loading dock - Planning Principles for Plan of Management - car parking - tree loss - amenity impacts - impact on character of area

Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994 LEGISLATION CITED: Draft Hurstville Local Environmental Plan 1994 (Amendment No. 60) Draft Hurstville Local Environmental Plan 1994 (Amendment No. 66)

Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289; CASES CITED: Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138 ; Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472

APPLICANT Mr I Hemmings, barrister SOLICITORS Heidtman & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11591 of 2004 Renaldo Plus 3 Pty Limited v Hurstville City Council

JUDGMENT Introduction 1 This is an appeal against the refusal of DA No. 204 0454 by Hurstville City Council (the council) for the demolition of all existing structures and the erection of a mixed commercial/retail and residential development at 47 - 67 Mulga Rd, Oatley (the site).

2 The site and surrounding area was inspected on the first morning of the hearing with representatives from both parties. A number of residents provided their evidence at this time.

3 For reasons set out in the judgement, I have concluded that the appeal should be upheld and development consent granted subject to conditions. The site and surrounding area 4 The site comprises Lots 3 and 4 in DP 224593, Lot Y in DP 39880 and Lots 1 and 2 in DP 501914. It has a frontage of 69.677 metres to Mulga Rd and a depth of 40.235 metres giving a total site area of 2084 square metres.

5 Existing development on the site consists of four single dwelling houses and ancillary structures. The site has a natural fall towards the south eastern corner. A significant tree is located near the Mulga Rd. frontage.

6 The site is within a commercial zoning and immediately to the east and west are retail/commercial buildings with residential uses located above. To the north and south are residential properties generally consisting of single dwelling houses.

7 Further to the west along Mulga Rd is the main retail shopping area that services the Oatley West area. The proposal 8 The proceedings were adjourned on the first day of the hearing to allow the proposal to be amended, readvertised and further considered by the council. The amended proposal still provides for the demolition of the existing dwelling houses and associated outbuildings and the construction of a mixed use commercial/retail and residential development with basement car parking although the loading/unloading arrangements have been amended. ` 9 The residential component is over 2 levels and is located above the retail level and comprises 11 x 2 bedroom townhouses. 10 The commercial/retail component comprises + five office spaces with a combined total floor area of 361 square metres, + a cafe located on the mezzanine level fronting Mulga Rd with an area of 134 square metres, + a large supermarket to be operated by Coles with a sales area of 1890 square metres including ancillary spaces such as offices, cool rooms and preparation areas. 11 Parking is located on two basement levels located off Mulga Rd at the eastern end of the site. The first basement level will consists entirely of public parking and contains 69 spaces. The second level is a mixture of public and residential parking. The residential parking is separated from the public area by a security roller door and intercom system. A total of 20 spaces, 2 visitor spaces and one car wash bay are provided to serve the residential component. A further 48 spaces are provided for the commercial/retail component of the proposal on this level.

12 The loading bay for the supermarket is located off Mulga Rd at the western end of the site. The loading dock is proposed to be one way with all vehicles entering and leaving in a forward direction by way of a turntable located at the rear of the loading bay area. It is proposed that the largest vehicle using the loading dock will be a 11 metre rigid truck. The operation of the loading dock is to be controlled by an Operations Management Plan. Relevant planning controls 13 The site is within the 3(a) - General Business Zone under the provisions of Hurstville Local Environmental Plan 1994 (the LEP). The proposed use is permissible with consent. Clause 8(3) requires that consent may only be granted if the development is consistent with the objectives of the zone. The objectives of the zone are: (a) to provide opportunities for retail and other business development in business centres outside the Hurstville Town Centre, and (b) to provide opportunities for associated development such as parking, service industries and the like, and (c) to preserve the character of neighbourhood business centres by limiting the residential component of development. 14 Clause 13(2) provides requirements for floor space ratios (FSR). There was agreement that the proposed development satisfies the maximum FSR of 1.5: 1. Clause 15A provides height restrictions in certain business zones and cl 22 provides requirements for excavation and filling of land.

15 Draft Hurstville Local Environmental Plan 1994 (Amendment No. 60) (Amendment 60) applies to the proposed development. It seeks to amend cl 15A and the maps associated with this clause to ensure that all areas zoned 3(a) - General Business are restricted to a two storey height limit. The resolution to prepare the draft plan was made by the council on 15 December 2004 and the draft plan was publicly exhibited from 13 January to 9 February 2005. The exhibition attracted 21 submissions supporting the draft plan. On 23 February 2005, the council resolved to proceed with the draft plan.

16 The draft plan does not contain any savings provisions.

17 Draft Hurstville Local Environmental Plan 1994 (Amendment No. 66) (Amendment 66) applies to the proposed development. It relevantly seeks to: + rename the zone to 3(a) - Neighbourhood Business Zone, + amend the zone objectives to confirm the council intent for development in the zone. The intent is described as accommodating "only small scale, local neighbourhood type retail and business activities", + restrict shops to a maximum of 400 square metres for the display/sales area of the retail activity and + delete the reference to the zone objectives from cl 8(1). 18 The resolution to prepare the draft plan was made by the council on 23 February 2005 and the draft plan was publicly exhibited from 24 March to 20 April 2005. The exhibition attracted 163 submissions supporting the draft plan and 11 submissions objecting to the draft plan. On 27 April 2005, the council resolved to proceed with the draft plan.

19 The draft plan does not contain any savings provisions.

20 Development Control Plan No. 2 - Car Parking (DCP 2) also applies in relation to the provision of off street parking.

The issues 21 The council filed an Amended Statement of Issues containing 13 individual issues. The council did not press issue 3 relating to a breach of the FSR. Issue 13 relating to resident objections is addressed as part of the consideration of the remaining issues. The remaining issues can be grouped into the following main areas: 1) what weight should be given to Amendment 60 (Issue 4)? 2) what weight should be given to Amendment 66 (Issue 5)? 3) whether the proposed loading facility is adequate (Issues 1, 2, 11 and 12), 4) whether adequate off street parking has been provided (Issue 6), 5) whether the removal of a significant tree is justified (Issue 7), 6) whether there are unacceptable amenity impacts (Issue 8 and 10). 7) whether the proposal will have an unacceptable impact on the character of the area (Issue 9). The evidence 22 The parties agreed to the appointment of Mr Gary Shiels as the Court appointed town planning expert, Mr Barry Murray, as the Court appointed acoustic expert and Mr David Ford as the Court appointed arborist.

23 Mr Andrew Darroch, a town planner, Mr Graham Pindar, a traffic engineer, Ms Catriona Mackenzie, an arborist and Mr Reginald Binding, the Feasibility Manager with Coles provided further evidence for the applicant.

24 At the site view on the first morning of the hearing, a number of residents provided their evidence opposing the proposed development. The Court was also provided with a bundle of documents containing the submissions when the application was advertised. A summary of the objections is also contained in Mr Shiels' report.

25 Following the readvertising of the amended proposal, Ms Susan Samonian of 2/32A Mulga Rd, Mr James Dieton of 2/71 Woronora Pde, Mr Peter Martin of 34 Mulga Rd and Mr Ted Cooper of 74 Waratah St provided further evidence opposing the development. Weight to be given to a draft LEP 26 Section 79C(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, Amendment 60 and Amendment 66 are relevant considerations and the Court is required to determine the amount of weight to be placed on their provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft LEP is imminent and certain and also the savings and transitional provisions.

27 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 Limited v Sutherland Shire Council (2003) NSWCA 289, 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 planing controls will be entitled to different levels of consideration and of weight in this respect.

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. 28 In Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138 Pearlman J addressed the question of imminence and certainty. In this case, a development application for attached dwellings was the subject of a draft environmental planning instrument. It was agreed that the proposed development took the form of "carriage development" although the draft environmental planning instrument contained objectives to "avoid carriage development". Her Honour found that this non-compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument. 29 Also relevant are the comments of the Chief Judge in Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (at par 90) where His Honour addresses the weight that should be given to a council policy. He states that the weight will depend on a number of matters including the situation where a policy "was designed to defeat a project which is known to be under consideration by a developer for a particular site". He states that in this scenario, "it may be given little weight". While His Honour was specifically addressing the question of a council policy, there is no reason why the same principle should not apply to the preparation of LEP's and DCP's. Weight to be given to Amendment 60 30 The comprehensive bundle of documents provided by the council on Amendment 60 shows that the draft plan has been forwarded to the Department of Infrastructure Planning and Natural Resources (DIPNR) for making. In reaching this point, I note that the council has exercised its s 65 delegations from DIPNR to exhibit the draft plan. The bundle contained no indication from DIPNR that the draft plan was acceptable or not, in the form proposed by the council. While not contained within the bundle, the Court was advised that the most recent event in the plan making process has been discussions with Parliamentary Counsel, although the outcome of these discussions was not made available to the Court.

31 In Architects Haywood and Bakker, the draft environmental planning instrument in question was a comprehensive document that covered the whole local government area and by necessity was the subject of consultation with DIPNR (as it is now called). Even though the Minister has the sole discretion to make or not make the plan, DIPNR makes recommendations on the appropriateness of the draft plan. In considering the question of imminence and certainty, an indication on the appropriateness of draft plan from DIPNR is a relevant matter in considering this question. In the absence of any indication from DIPNR on the appropriateness of the draft plan, in my view, it would be difficult to conclude that any draft plan could be seen as imminent and certain.

32 For this reason, Amendment 60 should not be seen as imminent and certain and consequently should not be given any significant weight in the consideration of the development application.

33 Further and considering Amendment 60 against the proposed development, the 2-storey requirement does not overly trouble the proposed development. It was accepted by Mr Shiels that the proposal generally complies with the 2-storey requirement and even if Amendment 60 was gazetted, the opportunity exists to use State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to vary this requirement. I understand Mr Shiels to agree that the use of SEPP 1 could be supportable in this case because of the relatively small area of around 5 square metres of non-compliance and the topography of the site. I concur with this assessment. 34 In relation to the comments of the Chief Justice in Terrace Tower, and for the reasons in the preceding paragraph, I do not accept that the proposed development "would in a substantial way undermine" the objectives of Amendment 60. Similarly, and considering the comments in Architects Haywood and Bakker, I do not accept that the non-compliance is critical. Weight to be given to Amendment 66 35 A similar comprehensive bundle of documents was provided for Amendment 66 as was provided for Amendment 60. Similarly, the council has exercised its s 65 delegations from DIPNR to exhibit the draft plan. The bundle of documents also contained no indication from DIPNR that the draft plan was acceptable or not, in the form proposed by the council. Parliamentary Counsel was also consulted although the outcome of these discussions was not made available to the Court. For the reasons in par 31, I do not accept that Amendment 66 can be seen as certain and imminent and consequently should not be given any significant weight in the consideration of the development application.

36 I have also taken into consideration the comments of the Chief Judge in Stocklands. In this case, the application was lodged with council on 9 July 2004 and refused by the council on 8 December 2004, although recommended for approval by council staff. The appeal was lodged on 17 December 2004. The resolution to prepare Amendment 66 was made on 27 April 2005. In considering this chronology of events, it could be reasonably concluded that Amendment 66 was designed to "defeat" the further consideration of the development application by limiting the size of shops and amending the objectives, even though I acknowledge Amendment 66 has implications beyond the site of this development.

37 This conclusion is supported by the council officers report of 27 April 2005 where it states, in part: Council's intention for the 3(a) General Business Zone gained prominence when a Development Application was lodged in Mulga Rd. for a supermarket. The local community objected strongly to the DA, and Council subsequently resolved to amend the Hurstville LEP 1994 to strengthen the controls for the 3(a) zone to confirm Council's intention that the 3(a) General Business Zone accommodate only small scale, local neighbourhoods type retail and business activities.

38 Even though the council officers report suggests that the amendments to the 3(a) zone seek only to confirm the council's intention of small scale, local neighbourhood type retail and business activities, the 3(a) zone objectives contain no such intention but seek to only promote unspecified retail and other business development in the zone.

39 Some weight must be given to the fact that the development application was lodged, considered and determined without the existence of Amendment 66. Some weight must also be given to the fact that Amendment 66 does not contain any savings provisions. In my view it supports the conclusion that Amendment 66 should not be given any significant weight in the consideration of the development application.

40 In considering Amendment 66 against the proposed development, the proposed development would be inconsistent with the amended objectives and minimum shops size requirements.

41 In Terrace Tower, the Chief Justice states that where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether a not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. The question that needs to be answered is whether the proposed development "would in a substantial way undermine" what is anticipated for the 3(a) zone by Amendment 66. 42 The can be little doubt that Amendment 66 seeks to change the type of development that is permissible within the 3(a) zone. However, Amendment 66 does not seek to amend the physical form of development that can be constructed within the 3(a) zone as no changes are proposed to the FSR requirements in cl 13. The FSR requirement is the only relevant development standard within the LEP. Theoretically, a commercial building could be erected on the site in the same form as proposed in this application however it would need to consist of at least four separate shops and the use of a shops must, in general terms, serve the needs of the surrounding local community. Under this is scenario, I am not convinced that the proposed development "would in a substantial way undermine" what is anticipated for the 3(a) zone although it would clearly be different.

43 In considering the comments of Pearlman J in Architects Haywood and Bakker, the two proposals have some similar characteristics. The proposed buildings do not seek to substantially change their physical form from that contemplated by the draft environmental planning instrument. They are more subtle variations to the anticipated physical form of development. On this basis, the changes could be described as "critical".

44 In balancing the matters in the preceding paragraphs, I do not accept that the comments in Architects Haywood and Bakker outweigh or are a sufficient reason to overturn the conclusions in the other paragraphs and consequently no significant weight should be given to Amendment 66 in consideration of the development application. The loading dock 45 The operation of the loading dock was a significant issue in the proceedings. The applicant relied on an Operation Management Plan to control deliveries to the proposed supermarket in a manner that minimised any potential impact on Mulga Rd and adjoining residential areas. The council took the view that the Operation Management Plan could not be relied upon and it was likely that there would the impacts on Mulga Rd and adjoining residential areas.

46 The Operation Management Plan provides a series of restrictions and delivery constraints to be imposed on all vehicles delivering to the Coles supermarket. The major components of the Operation Management Plan are: + the loading dock operating hours are 7.00 a.m. to 10.00 p.m., Monday to Saturday and 8.00.a.m. to 10.00 p.m., Sundays and Public Holidays, + the establishment of maximum loading dock capacity, + truck deliveries are to be limited to 10 trucks over 10 metres (maximum of 11 metres) and 20 small delivery vehicles per day, + the Stockroom Manager is responsible for the effective management of the loading dock and stockrooms, + the loading dock door is to be closed at all times except for trucks entering and leaving, + drivers must contact the Stockroom Manager by mobile phone or radio when the driver is within five minutes from the site, + a red light on the outside of the building will indicate to approaching trucks that the loading dock is full. In this situation, drivers are not permitted to wait in the vicinity of the site, + deliveries from warehouses controlled by Coles are to the supervised by the Stockroom Manager, in conjunction with the Store Manager, + direct deliveries from other suppliers are to be coordinated by the Store Manager to ensure that they agree and adhere to a daily delivery time that does not conflict with regular warehouse deliveries, + every direct delivery service provider and Coles driver are to be provided with a copy of the Operation Management Plan, + the establishment of a complaint management procedure. 47 Mr Binding states that his role with Coles involved the assessment of the new store sites, the refurbishment and the extension of existing stores. He has been involved in the design of loading docks in 30 new supermarket sites although his experience was limited to one other site with a loading dock using a turntable. He described the use of loading docks with turntables as not unusual.

48 Mr Binding also provided indicative delivery volumes for a 2000 square metre supermarket. The quantity and frequency of delivery in the indicative delivery volumes were accommodated within the parameters of the Operation Management Plan.

49 Mr Pindar states that loading arrangements are satisfactory having regard to the Operation Management Plan and the frequency of deliveries. The supermarket is expected to generate an average of 27 truck arrivals on a typical week day. Of these truck arrivals, on average 8 will be large trucks (i.e., maximum of 11 metres). These deliveries are scheduled by the Store Manager and are able to be accurately scheduled to an agreed daily delivery time. There will be an average of 19 small truck deliveries per day. Given an average time of 10 minutes to unload, the loading dock can service 6 trucks per hour. On this basis, and having regard to the randomness of arrivals, Mr Pindar states the worst-case scenario would be the need to accommodate one large truck and two small trucks simultaneously within the loading dock area. Even in this unlikely event, sufficient capacity is available. 50 Mr Shiels, who has qualifications in traffic engineering, also addressed the operation of the loading dock and agreed that it would be acceptable if operated in accordance with the Operation Management Plan.

51 Ms Samonian and Mr Dieton expressed concerns over trucks entering and leaving the loading dock, specifically in relation to noise and safety.

52 In considering the range of evidence on the suitability of the loading dock, the general consensus of the experts was that if the loading dock were operated in accordance with the Operation Management Plan, it would operate in an acceptable manner. This raises the important question of whether the Operation Management Plan can be relied upon to provide some certainty in its operations and consequently provide a reasonable level of amenity and safety for adjoining residents and other people using the Mulga Rd shops.

53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law (Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.

54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 55 It is appropriate that each of these questions are addressed individually. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 56 There is nothing in the Operation Management Plan that is inconsistent with, or does not complement the proposed use. The terms of the Operation Management Plan seek to provide operating guidelines for the loading dock of the proposed supermarket, considering the particular locational characteristics and surrounding land uses. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 57 The Operation Management Plan places an obligation on truck drivers to notify the supermarket 5 minutes prior to their arrival and if the red light is indicating that the loading dock cannot be accessed, to make other arrangements for the delivery of the goods. The Operation Management Plan also places an obligation on the Stockroom Manager and/or the Store Manager to monitor the operation of the loading dock and to arrange for the coordinated delivery of goods.

58 In my view, these requirements do not place an unreasonable obligation on the truck drivers or the Stockroom Manager or the Store Manager. While the need to contact the supermarket prior to the delivery is likely to be an additional task for truck drivers, I have little doubt that it will become simply second nature over time for drivers delivering to the site. In the event that deliveries cannot may be made at a specific time, I accept that the Operation Management Plan can adequately deal with this event although I am of the view that the Operation Management Plan should be amended to provide for suitable locations where trucks may park in situations where the rescheduling of the delivery is not appropriate or unnecessary. These locations should not potentially impact on the amenity of any residential area. 59 The obligation on the Stockroom Manager and/or the Store Manager to monitor the operation of the loading dock and to arrange for the coordinated delivery of goods is little different to that required as part of their normal duties except possibly for a higher level of vigilance because of the particular constraints of the site. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 60 Putting aside the Complaint Management Procedures in the Operation Management Plan, and if deemed necessary any breaches can be enforced through proceedings in the Land and Environment Court.

61 Importantly, compliance with the requirements of the Operation Management Plan rests with the operator of the supermarket. Additionally, and if any action needs to be instigated for breaches of the Operation Management Plan, it is likely that the person responsible for the breach can be identified either through visual observations or through records associated with the supermarket.

Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 62 For a Management Plan to be effective, a single breach or small number of breaches should not create a situation where there is unacceptable impact. In this case, the potential impact relates largely to potential noise impacts.

63 Mr Murray states that the proposed development can comply with reasonable noise criteria for the loading dock, truck movements on the premises, trucks along Mulga Rd, mechanical plant noise and garbage compactor and collection subject to a number of conditions. These conditions include compliance with the Operation Management Plan and particularly the requirement for the loading dock door to be opened only for trucks entering and leaving.

64 When asked to assess the potential noise impacts if the loading dock was left open, Mr Murray stated that it would depend on the types of trucks using the loading dock at the time however around 80% of the vehicles using the loading dock would not create an unacceptable noise impact. He further stated that smaller vehicles could manoeuvre within the loading dock without any noise impacts. Potential noise impacts would only occur with larger diesel vehicles and refrigerated trucks. While reversing alarms would create unacceptable noise impacts the Operation Management Plan requires all trucks to enter and leave in a forward direction. 65 Mr Shiels recommended that the operating hours for the loading dock should be amended to provide for a closing time of 8.00 p.m. on Sundays and Public Holidays. I concur with this recommendation and the Operation Management Plan should be amended accordingly.

66 Also on the hours of operation, Mr Binding states that while the applicant was seeking a 10.00 p.m. closing time for the loading dock, no deliveries were programmed after 7.00 p.m. on any night. He indicated that the additional time was required for emergencies or one-off deliveries. In my view it would be appropriate for the Operation Management Plan to reflect Mr Bindings evidence that no deliveries are programmed after 7.00 p.m. on any night.

67 Based on Mr Murray's evidence, I accept that absolute compliance with the requirements of the Operation Management Plan is not necessary to achieve an acceptable noise environment for local residents. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 68 The people the subject of the Operation Management Plan are the truck drivers and Stockroom Manager and the Store Manager. The Operation Management Plan provides for these people to be advised of the specific requirements of the Operation Management Plan. Importantly, these people have a link to the supermarket either as employees, through contractual arrangements with the warehouse supplier or through individual supply arrangements. In this case, these links provide incentives to comply with the requirements of the Operation Management Plan or potentially face some form of sanction.

Is the Management Plan to be enforced as a condition of consent? 69 Condition 103 requires compliance with the Operation Management Plan at all times. Does the Management Plan contain complaint management procedures? 70 Yes.

Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 71 The Operation Management Plan does not contain any procedure for updating or changing its requirements. As other amendments to the Operation Management Plan are required, additional provisions addressing this matter can be included with the other amendments.

72 Based on the answers to the preceding questions there is no reason why the Operation Management Plan cannot be relied upon to provide for the efficient operation of the loading dock and an acceptable level of protection to the surrounding residential areas. In coming to this conclusion I have relied on the evidence of Mr Binding and his knowledge of the operation of similar loading facilities and with his general experience with the operation of similar supermarkets.

73 Mr Rigg, the councils advocate, put to Mr Pindar a number of different scenarios on the arrival of trucks at the loading dock that could conflict with the requirements of the Operation Management Plan. While I accept that this could potentially occur, the likelihood is remote based on the frequency of trucks arriving at the site and the ability to be able to program deliveries. On this basis, these scenarios should be given little weight in the Courts consideration of the effectiveness of the loading dock.

74 In terms of safety, there was no dispute that Mulga Rd. could accommodate the traffic generated by the proposed development. Under the Hurstville City Council Road Hierarchy Mulga Rd is classified as a collector road. 75 The movement of delivery vehicles across the footpath was a matter raised by a number of residents. Mr Pindar states that traffic volumes to the loading dock are not high and that the movement of delivery vehicles across a footpath is commonplace and can be performed in a safe manner on the expectation that drivers and pedestrians will exercise all due care. With some minor modifications the proposed development will operate in a satisfactory manner and in compliance with the relevant Australian standards.

76 Optimally, delivery vehicles using the footpath for access and pedestrians should be segregated however site constraints do not always allow this to happen. In this case, attempts to gain access off Woronora Rd created unacceptable impacts on adjoining residential properties and it is likely that any redevelopment of the site would need to use Mulga Rd for access for deliveries and off street parking.

77 I agree with Mr Pindar that with the frequency of deliveries and with a reasonable level of care by drivers and pedestrians, pedestrian safety should not be an issue. Off street parking 78 Mr Shiels, Mr Darroch and Mr Pindar differed on a number of areas associated with the provision of off street car parking. There was agreement on the floor area calculations but disagreement on the appropriate ratio for determining the amount of car parking.

79 In relation to the car parking required for the townhouses, Mr Shiels considered that the study in townhouses 2, 3, 4, 5, and 8 were capable of adaption to a third bedroom and as such car parking should be provided for a 3 bedroom townhouse i.e., 2 spaces. Using DCP 2, Mr Shiels calculates 1 space is required for each of the 6 x 2 bedroom townhouses and 2 spaces for each of the 5 x 3 bedroom townhouses thereby requiring a total of 16 spaces.

80 Mr Darroch disagrees and states that the studies identified by Mr Shiels are designed as studies and cannot readily be converted to bedrooms. These rooms adjoin the stair from the lower level and are not fully enclosed making them unsuitable for a bedroom. On this basis Mr Darroch states that 1 space is required for each of the 11 x 2 bedroom townhouses thereby requiring a total of 11 spaces.

81 On this matter, I agree with Mr Darroch. While it is always possible that the rooms could be converted in the manner suggested by Mr Shiels, the plans before the Court do not suggest that this could be done without a reasonable degree of modification. In any event, the dedicated residential car park provides for 20 spaces and 2 visitors spaces and can satisfy Mr Shiels higher rate of parking although I do not consider it necessary.

82 In relation to the car parking for the commercial office component of the development, Mr Pindar acknowledges that the combined area of 360.9 square metres will attract a requirement for 9 spaces based on DCP 2. He notes that this is consistent with the RTA Guidelines. He states however, that this does not take into account the fact that visitors to these offices can make use of the extensive retail parking that is available and that will have extensive parking capacity at times when the offices are likely to generate a demand for visitors. On this basis, he considers that 6 spaces are appropriate for use by the office tenants with the balance of 3 spaces making use of the shared retail spaces. 83 The proposed cafe has an area of 134 square metres and a 38 seat capacity. Based on DCP 2, this would generate the need for 20 spaces based on the floor area and 13 spaces based on the number of seats. DCP 2 requires the maximum level of these two calculations to be adopted. Mr Pindar states that it would be appropriate to reduce the car parking by up to 50% because the cafe will draw much of its patronage from supermarket staff and shoppers, from the office tenants and their visitors and from people who may reside in the area and may walk to the site. He nominates the provision of 10 dedicated spaces for the cafe.

84 The proposed supermarket has an area of 1890 square metres based on DCP 2 and 113 spaces would be required at the rate of 6 spaces/100 square metres. Mr Pindar notes this is also consistent with the RTA Guidelines for "shopping centres" but not for "supermarkets". The RTA Guidelines for "supermarkets" provide for 74 spaces, based on 1756 square metres of gross lettable floor area at a rate of 4.2 spaces/100 square metres.

85 Mr Pindar places some considerable weight on the RTA Guidelines because they are based on extensive research even though somewhat dated. Considering the recent change where shopping is spread over a greater time and recent research undertaken by Mr Pindar for a similar sized supermarkets in the Engadine area, he concludes that the RTA requirement for "supermarkets" should be the maximum parking provision for the proposed supermarket.

86 Another component of this issue is the loss of street parking brought about by the access points to the car parking, loading dock and the need to provide clear turning paths for vehicles using the loading dock. Mr Shiels states that 12 spaces are likely to be lost whereas Mr Pindar states that 8 spaces will be lost.

87 As I understand there is no issue with the residential parking as it satisfies the requirements of DCP 2 (even accepting Mr Shiels' approach) and is effectively separated from the commercial and retail parking. 88 In relation to the commercial and retail parking, strict compliance with DCP 2 requires 143 spaces. Mr Pindar, in his assessment, using the RTA Guidelines and his expertise in this area, concludes that 103 spaces are appropriate. These figures are to be compared to the 117 spaces provided for the commercial and retail uses over the two basement car parking levels.

89 In balancing the requirements of DCP 2 against Mr Pindar's assessment, I accept that the approach of Mr Pindar has some merit. In my view, it would be inappropriate to apply the general retail car parking rate for the supermarket when the evidence suggests that this use has a lower parking generation rate. Additionally, I accept that it is likely that customers of the supermarket will use the cafe, in addition to local residents who would walk to the site. To a lesser extent the same argument can be used for the proposed offices.

90 If the DCP 2 requirements are adopted for the commercial offices and café (9 spaces and 20 spaces respectively) 29 spaces are required. With 117 spaces available in basement car park, 88 spaces are available for the supermarket. As this figure is in excess of the RTA Guidelines requirement of 74 spaces, I accept that adequate parking is provided within the site.

91 While Mr Shiels and a number of local residents expressed concern the loss of on street parking I am not convinced that this is a significant issue. It would seem that any redevelopment of the site, and the wider commercial strip along Mulga Rd. would require access from this road because of the narrow nature of the commercial land and its interface with residential properties at the rear. If development was limited to smaller sites, as anticipated by Amendment 66, then it is likely that additional access points will need to be provided along Mulga Rd. with a subsequent loss of street parking.

92 Overall and for the reasons mentioned above, I accept that the proposed development provides adequate off street parking. Tree loss 93 The subject tree is a Eucalyptus pilularis (Blackbutt) and is located 10 metres from the road. It has a height of 16 metres, a canopy spread of approximately 14 metres and an age of around 60 to 80 years.

94 There was general agreement between Mr Ford and Ms Mackenzie that the tree has a life expectancy of around 10 years however the tree exhibited signs of epicormic growth. This indicates some impact on tree health had occurred, probably some 8 to 10 years ago. Epicormic limbs are not well attached and tend to fail and fall. Examples of limbs that had fallen from the tree were observed on site.

95 In terms of safety, Mr Ford indicated that if the site was to continue for residential purposes he would recommend a low frequency of use near the tree, as there would be a significant safety risk if a limb were to fall. He further recommends regular ongoing maintenance, particularly significant pruning every two years. He raised doubt whether the tree could be retained and used in a commercial environment because a distance of the some 10 metres to 12 metres around the tree would be required to quarantine an area to guard against falling limbs.

96 The tree was seen as a significant feature in the streetscape by a number of local residents who maintained that it should be retained.

97 On this issue, I agree that the tree makes a significant contribution to the streetscape of Mulga Rd. however this must be considered in the context of its zoning, the health of tree and its long-term prospects for survival. If considered in this context I accept that the removal of the tree can be justified. 98 In practical terms, it is unlikely that a commercial development could accommodate the tree and maintain a level of development consistent with that envisaged by the councils planning controls. The ongoing problems stemming from the epicormic limbs is a significant safety issue and the area required to protect people from falling limbs would render a significant area of the site are unusable. On the basis of the limited lifespan of the tree, I do not accept that it would be reasonable to require any development to make provision for the retention of the tree. Amenity impacts 99 Mr Cooper's property adjoins the south east portion of the proposed building. His concerns relate to the height of the building when viewed from his rear yard and overlooking. He questions the use of the ground level, as it exists today, as the basis of assessing the height as fill had been placed in this area sometime ago.

100 The natural fall of land is from the site to Mr Cooper's property so the proposed building will be at a higher level than the rear yard of his property. The building will exceed two storeys in height for part of the area joining Mr Cooper's property. In this area the applicant proposes to set the building back 4.15 metres from the common boundary for a distance of 19 metres, of which 14 metres will allow for deep soil planting as part of the proposed landscaping.

101 Commercial offices C4 and C5 and townhouses 8, 9 and 10 have balconies that are orientated towards Mr Cooper's property although I accept that the 4.15 metre setback, boundary fencing, balcony design with raised planters, raised pergola and landscaping provide an acceptable means of minimising overlooking to Mr Cooper's property. I also accept that the proposed landscape treatment with deep soil planting and more mature trees in the general where the building exceeds two storeys in height area is a suitable response. I understand that Mr Shiels generally agreed with these conclusions.

102 The issue of fill raised by Mr Cooper was not an issue that could be pursued with any certainty. Apart from Mr Cooper's recollections, there was no further evidence provided to the Court on this matter.

103 Mr Stanhope lives behind Mr Cooper and shares the same common boundary with the proposed development. Townhouses 6, 7, 8 and 11 have balconies that are orientated towards Mr Stanhope's property however the change in levels between his property and the proposed development is not as significant as Mr Cooper's. In this case I also accept that the setback, boundary fencing, raised pergola and landscaping provide an acceptable means of minimising overlooking. 104 Ms Samonian lives opposite the site in Mulga Rd. and Mr Dieton lives on the corner of Mulga Rd and Woronora Parade. They raise the issues of noise and safety relating to the loading dock in addition to the general concern of the change in character of the area. Mr Martin's concerns relate to the loss of street parking in Mulga Rd. and the change in character of the area. These issues are addressed elsewhere in the judgement and were not found to justify the refusal of the development application. Impact on character of the area 105 This was a matter raised consistently by the local residents when the application was advertised and when the Court visited the site. The resident concerns that the proposal will provide a shopping facility that will attract people beyond the immediate area is a valid concern as it will generate additional traffic and a change to the character of the existing centre that currently provides largely local service needs.

106 The strength of this concern must however be measured against the character envisaged by the councils planning instruments and the specific impacts of the additional traffic. The council planning instruments are a reflection of the form and type of development that are formulated through planning, exhibition and adoption by the council. In this case, the anticipated character has been complicated to some extent by the council's recent adoption of Amendments 60 and Amendment 66. I have previously found that the weight to be given to Amendments 60 and Amendment 66 should be not be given any significant weight in this case.

107 The impacts of the additional traffic were also not found to be so significant as to warrant the refusal of the development application.

108 On the basis of these findings, the appropriate character is that envisaged by the 3(a) - General Business Zone and reflected in the zone objectives. In consideration of cl 8(3) I find that the development is consistent with the objectives of the zone. The draft conditions 109 The council proposed six deferred commencement conditions. These relate to: o the provision of a 1.5 metre wide easement for drainage (deferred commencement condition A), o a plan defining the arrangements for the storage of waste and recycling bins (deferred commencement condition B), o the provision of a waste storage area (deferred commencement condition C), o visual splays for pedestrian safety to the side of the loading dock driveway and basement car park (deferred commencement condition D), o details of the two adaptable dwelling units (deferred commencement condition F) and o engineering details of the grease arrester traps and on-site detention (deferred commencement condition G). 110 The applicant did not oppose these conditions however it was submitted that the conditions should be operational conditions rather than deferred commencement conditions.

111 In relation to the deferred commencement conditions A and G, I accept the council's position. There was little, if any evidence on these two matters and while it is clearly possible that the provision of an easement and the engineering design for the on-site detention can be achieved the unknown consequences militate against the use of an operational condition.

112 The other deferred commencement conditions are appropriate as operational conditions. Sufficient area is available to provide for a design to accommodate the waste storage and bin areas near the Mulga Rd frontage (deferred commencement conditions B and C) and sufficient evidence was provided to show that the visual splays (deferred commencement condition D) and the design of the adaptable units (deferred commencement condition F) can be achieved through minor modifications to the plans. These conditions can be included within condition 5, being conditions which must be satisfied prior to the issue of any Construction Certificate.

113 Operational conditions 100 and 105 relate to the operation of the roller door. Condition 100 requires the roller door to be kept shut whilst trucks are in the dock and whilst the compactor is in use. Condition 105 requires the roller door to be fitted with an automatic closer.

114 The need to have the roller door closed when the loading dock was in operation was a fundamental factor in the support of Mr Murray and for this reason the requirement should be maintained. It was also a matter offered by the applicant in the Operation Management Plan although it does not make reference to the operation of the compactor. The Operation Management Plan should be amended to reflect this. As the need to have the roller door closed when the loading dock is in operation is included in the Operation Management Plan it is superfluous as a condition of consent and should be deleted. 115 I am less concerned over the requirement for an automatic closer for the roller door. While it may be that such a device may provide a level of efficiency, I am not convinced that it is necessary to mandate such a device. It would seem that the critical matter is the closing of the doors and not necessarily the way it is achieved. For this reason the condition can be deleted.

116 Operational condition 102 seeks to limit delivery times to the loading dock. Based on the evidence of Mr Murray the operating hours proposed by the applicant are acceptable with the modification to Sundays and Public Holidays. The delivery times for the loading dock are contained within the Operation Management Plan and as such, the condition can be deleted.

117 Operational condition 107 provides acoustic levels for all mechanical plant on the premises. The condition nominates the criteria identified by Mr Murray however it does not include the further requirement for a report to be prepared by an accredited acoustic consultants and submitted to council prior to the issue of the Construction Certificate. This additional requirement can be included in operational condition 5.

118 It is necessary for the Operation Management Plan to be amended to reflect the findings in this judgement. Accordingly, I direct the parties to confer and provide an amended Operations Plan of Management within 7 days. Liberty is granted to restore the matter with 48 hours notice if no agreement is reached on the amended Operations Plan of Management.

Orders 119 For the foregoing reasons the Orders of the Court are: 1) The appeal is upheld. 2) DA No. 204 0454 by Hurstville City Council for the demolition of all existing structures and the erection of a mixed commercial/retail and residential development at 47 - 67 Mulga Rd., Oatley is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 10, 16, A and N. 4) Liberty to restore with 48 hours notice if no agreement is reached on the amended Operation Management Plan.

      G T Brown
      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.

At a glance

Court

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Before

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Judgment (91 paragraphs)

Parties

Cases Cited (2)

Cited By (50)