COMMISSIONER: Sydney Tools Pty Ltd (the Applicant) has appealed the refusal by Canterbury-Bankstown Council (the Respondent) of its development application DA 163/2017 seeking consent for its current use of existing premises (the proposed development) at 102 Bonds Road, Riverwood, also identified as Lot 11 in DP 633725 (the Subject Site).
The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Subject Site is located on the south east corner of Bonds Road and Eva Street, and includes two industrial units, referred to during the hearings as Units B and C, configured as follows:
1. Unit B includes a warehouse and distribution spaces, with storage on a first floor level, and two internal loading/unloading bays identified as B1 and B2;
2. Unit C includes a retail outlet on the ground and first floors, along with a warehousing space, and external loading and unloading zones identified as C1 at one end, and C2, C3, and C4 (later reduced to a single zone C2) at the other.
A basement car parking area, capable of accommodating 68 car spaces, is accessed from Bonds Road which forms the Subject Site's western boundary. An 'at grade' external off street parking area with 54 car parking spaces, and the internal loading zones, on the Subject Site are accessed from two driveways on Eva Street, which forms the site's northern boundary. These two driveways provide access to the Subject Site via Gates 1 and 2 for delivery vehicles and retail customer vehicles.
The Subject Site is located in an area that is characterised to its east by other industrial land uses, and to its north by residential dwellings.
The Subject Site is zoned IN2 Light Industrial under the provisions of Canterbury Local Environmental Plan 2012 (CLEP). The proposed development is a permissible form of development within that zone (see below at [30]).
Eva Street provides an interface between the light industrial zoning of the Subject Site, and the low density residential zoning of land on the opposite side of Eva Street. In recognition of this interface, Eva Street has a three tonne vehicle load limit.
The proposed development was lodged with Council on 10 May 2017 and seeks to regularise the Applicant's use of the Subject Site for the purposes of hardware and building supplies, and as a warehouse and distribution centre. The Respondent refused the Applicant's development application on 8 June 2017.
Mr Cottom, for the Respondent, submits, inter alia, that the proposed development represents an unacceptable intensification of the use of the Subject Site, and that the potential impacts of the proposed development are unacceptable.
Mr Galasso, for the Applicant, submits that the findings of Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 are relevant in this regard, and specifically the finding at [35] of that judgment that:
"… in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."
I agree with the Applicant's submission on this point, and note that given that the proposed development is permissible, with consent, on the Subject Site, the questions before the Court in this appeal are, in essence, a merits assessment of the proposed development. Whether that proposed development represents an intensification or not of the Applicant's prior use of the Subject Site, whether within or outside of an existing consent, is less relevant in the appeal than whether the proposed development merits the grant of consent within the context of the statutory and other controls applicable to the Subject Site.
I note that certain matters of relevance in this appeal have been the subject of a recent judgment by His Honour Justice Sheahan within the Class 4 jurisdiction of this Court (see Canterbury-Bankstown Council v Sydney Tools Pty Ltd [2019] NSWLEC 103), and in which His Honour makes reference to the Class 1 appeal proceedings before me at [22].
In that judgment, Sheahan J said at [183] to [185]:
"183 The commencement of these proceedings, and the seeking of urgent relief, had a desirable impact on the Respondents' behaviour, and on the adverse amenity impacts of their operations.
184 They should have paid earlier and closer attention to their planning law situation, but they eventually made unsuccessful applications for DC(s), and a building certificate, and are now involved in a Class 1 appeal.
185 Although I have decided to make no declarations or orders, I make no criticism of Council for bringing these proceedings, in order to achieve a legitimate outcome, and, in all the circumstances, I am satisfied that it should receive its costs."
The appeal before me was the subject of a conciliation conference under the jurisdiction of the Court, pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act), on 21 June 2018. The contentions between the Parties were not resolved during the conciliation conference and the conference was terminated, with the matter being set down for hearing.
The Applicant filed a notice of motion on 12 November 2018 seeking leave to amend the development application, as follows:
1. the inclusion of Unit B in the proposed development;
2. altered car parking and loading zone arrangements designed to facilitate the addition of Unit B to the proposed development;
3. proposed internal changes to the basement of Unit C and its change of use to car parking; and
4. significant landscaping works that were the subject of additional landscape plans.
Following a contested hearing on this motion on 22 November 2018, leave was granted by the Registrar for the Applicant to amend its application.
Subsequently, the Respondent filed a motion seeking that the Court review and reverse, the decision and orders of the Registrar, and to dismiss the Applicant's notice of motion to amend its application. That appeal was heard by Justice Sheahan who dismissed the motion.
The proposed development as it now comes before the Court seeks consent for the following:
1. the use of the premises on the Subject Site as a Sydney Tools Hardware and Building Supplies Store, and as a Warehouse and Distribution Centre;
2. the proposed uses described above at [(1)], to be undertaken in the two industrial Units B and C, as follows:
1. the hardware and building supplies retail component would operate from the ground and mezzanine levels of Unit C;
2. warehousing and distribution activities would be undertaken within both Units B and C;
1. staffing of the proposed operations within Units B and C as follows:
1. nine (9) staff for the retail activities in Unit C;
2. two (2) staff for the warehousing and distribution activities in the Unit C;
3. nine (9) staff for warehousing and distribution activities in Unit B;
1. general hours of operation to be 7am to 6pm Monday to Friday and 7:30am to 4:30pm on Saturdays, with these time to be inclusive of staff arrival/departure, set-up and packing of orders;
2. deliveries to the Subject Site as follows:
1. delivery/loading and unloading hours of 8am to 5pm, Monday to Friday;
2. container loading and unloading to occur within loading zone areas B1 and B2 only;
3. loading and unloading of smaller vehicles to occur within loading zones C2, C3 and C4 (revised to loading zone C2 in the amended plans);
1. maximum vehicular movements as follows:
1. medium rigid vehicles (MRVs): 6 vehicles per day/12 movements per day;
2. articulated vehicles (AVs): 10 vehicles per day/20 movements per day;
3. small utes and vans: 8 vehicles per day/16 movements per day;
1. construction of an acoustic wall at a height of 2.2m on the northern, Eva Street, boundary to the Subject Site; and
2. retention of two business identification signs erected on the northern façade parapet and western façade parapet containing the words "Sydney Tools Industrial".
The Applicant submitted that while the proposed development included some adjustments to building form in relation to the erection of an acoustic fence to mitigate potential noise impacts, and the widening of driveway splays to facilitate entry to, and exit from, the Subject Site, it did not now include:
1. proposals for the erection of any buildings;
2. the movement of any goods between Unit A and Units B & C;
3. the erection of any new external lighting; and
4. the use of any part of the basement of Unit C for the repair of machinery.
The Subject Site has a long history of consents dating from 1984, when the construction of Units B and C was approved, along with the use of Unit C for the manufacturing of pharmaceuticals, and the warehousing of pharmaceuticals, cosmetics and veterinary products with associated offices. The Applicant tendered a bundle of documents that included details of the consents issued since that initial 1984 consent.
Prior to the hearing commencing at Court, an on-site view was undertaken, during which the following individuals, all residents of Eva Street, Riverwood, made submissions to the Court in relation to the appeal:
1. Ms Robyn Oxford, who said that she was concerned in relation to truck movements and associated noise and dust impacts arising from the proposed development;
2. Mr Paul Pieris, who expressed the following concerns;
1. the intensity and scale of the proposed use of the Subject Site by the Applicant;
2. the level of traffic associated with the proposed development and the reliability of traffic data and reports based on these data;
3. the hours of operation and whether there would be 24 hour per day operations;
4. the effectiveness of proposed acoustic mitigation measures;
1. Mr Nick Kostakis, who identified the following issues as matters of concern for him:
1. traffic, and in particular truck movements with containers, to and from the Subject Site;
2. the hours of operation of the Sydney Tools business;
3. the scale of the proposed use the Subject Site by the Applicant;
1. Mr Mustapha Bayad, and who said that she held the following concerns:
1. noise and vibration impacts arising from the operations of Sydney Tools on the Subject Site;
2. the scale of the proposed use the Subject Site by the Applicant;
1. Mr Ibrahim Assaad, who endorsed the submissions of other objectors and noted that he and his neighbours were looking for a solution to their concerns in relation to the future operations of the Applicant on the Subject Site;
2. Mr Glenn Rogers, who said that his principal concerns related to:
1. whether the Applicant would operate its business on the Subject Site within the terms of any conditions of this consent, should consent be granted;
2. past impacts of the Applicant's operations on the Subject Site and along the street, including damage to trees on the council verge along Eva Street;
3. the Applicant's use of security cameras at the boundary of the Subject Site;
4. parking on the Subject Site for the purposes of the retail operations of the Applicant;
1. Ms Katerina Bouziotis, who expressed concerns in relation to the safety of truck movements into and out of the Subject Site, including trucks undertake an reversing movements utilising the driveway.
[2]
Environmental Planning and Assessment Act 1979
The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
Section 4.15(3A) of the EP&A Act further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
.
[3]
State Environmental Planning Policy No 64 - Advertising and signage
State Environmental Planning Policy No 64 - Advertising and signage (SEPP 64) has the following aims:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
(b) to regulate signage (but not content) under Part 4 of the Act, and
(c) to provide time-limited consents for the display of certain advertisements, and
(d) to regulate the display of advertisements in transport corridors, and
(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.
The following provision of SEPP 64 are of relevance in this appeal:
1. Clause 11 which requires that:
A person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy.
1. Clause 13(1) which further providers that:
A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires:
(a) is consistent with the objectives of this Policy as set out in clause 3(1)(a); and
(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and
(c) satisfies any other relevant requirements of this Policy.
1. Clause 22, concerning wall advertisements, which provides:
(1) Only one wall advertisement may be displayed per building elevation.
(2) The consent authority may grant consent to a wall advertisement only if:
(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and
(b) for a building having:
(i) an above ground elevation of 200 square metres or more - the advertisement does not exceed 10% of the above ground elevation, and
(ii) an above ground elevation of more than 100 square metres but less than 200 square metres - the advertisement does not exceed 20 square metres, and
(iii) an above ground elevation of 100 square metres or less - the advertisement does not exceed 20% of the above ground elevation, and
(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and
(d) the advertisement does not protrude above the parapet or eaves, and
(e) the advertisement does not extend over a window or other opening, and
(f) the advertisement does not obscure significant architectural elements of the building, and
(g) a building identification sign or business identification sign is not displayed on the building elevation.
(2A) In the case of the display of a wall advertisement on transport corridor land, subclause (2) does not apply and the consent authority may grant consent only if satisfied that the advertisement is consistent with the Guidelines.
(3) In this clause, building elevation means an elevation of a building as commonly shown on building plans.
1. Schedule 1, which provides assessment criteria relating to advertising and signage, in relation to the following:
Character of the area
Special areas
Views and vistas
Streetscapes, setting or landscape
Site and building
Associated devices and logos with advertisements and advertising structures;
Illumination
Safety
[4]
Canterbury Local Environmental Plan 2012
Development on the Subject Site is subject to the provisions of Canterbury Local Environmental Plan 2012 (CLEP), and under the provisions of cl 2.1 of CLEP it is zoned IN2 Light Industrial.
Clause 2.3 of CLEP provides land use objectives and a land use table, and requires under cl 2.3(2) 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 the zone.
The objectives of the IN2 zone are to:
provide a wide range of light industrial, warehouse and related land uses.
encourage employment opportunities and to support the viability of centres.
minimise any adverse effect of industry on other land uses.
enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.
support and protect industrial land for industrial uses.
The Applicant's proposed development includes use of the Subject Site for hardware and building supplies as well as for as a warehouse and distribution centre. These are permissible land use on the Subject Site, with consent.
CLEP includes the following definitions of relevance to the Applicant's proposed development:
hardware and building supplies means a building or place the principal purpose of which is the sale or hire of goods or materials, such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas.
warehouse or distribution centre means a building or place used mainly or exclusively for storing or handling items (whether goods or materials) pending their sale, but from which no retail sales are made.
[5]
Canterbury Development Control Plan 2012
The Canterbury Development Control Plan 2012 (CDCP) was approved by the Council on 22 November 2012, and came into force on 1 January 2013.
Development on the Subject Site is subject to the provisions of CDCP, the purpose of which is to supplement CLEP and provide more detailed objectives and controls to guide the form of development across the former Canterbury Local Government Area (LGA).
The following provisions of CDCP are of relevance in this appeal:
1. Part E1 of CDP provides guidance in relation to industrial development, and has the following general objectives:
O1 To provide for a range of industrial development that generates local employment and appropriate ancillary commercial and retail uses to support the retention of industry.
O2 To ensure that the site has a practical configuration for industrial operations, including space for loading activities and vehicle manoeuvring and access maintained to channelled watercourses.
O3 To provide a streetscape of consistent landscaped setbacks that screen industrial buildings from the public domain, and spaces between industrial buildings to reduce their bulky appearance.
O4 To minimise the impact of industrial land on neighbouring land uses, especially residential properties.
1. Part E1.3.2 provides guidance to industrial developments in relation to storage and handling, and includes the following specific controls that are of relevance in this appeal:
C1 Provide adequate space within buildings for the loading and unloading of vehicles
C5 Site and design security lighting and general building illumination so as not to create glare or nuisance to adjoining residential development
1. Part E1.3.3 provides guidance to industrial development in relation to fencing, and includes the following suite of controls:
C1 Design front fencing to enhance the streetscape and to ensure it is compatible with the design of the building and landscaping.
C2 Solid fencing is restricted to a maximum height of 1m along the primary and secondary street frontages.
C3 Fencing up to 1.8m in height is acceptable where it is of open design that allows mutual surveillance between the development and the public domain.
C4 Avoid the use of chain wire fences or metal sheeting along street frontages.
C5 Provide effective screening of the building, and discourage graffiti, in the design of side and rear fencing.
C6 Provide landscaping alongside and rear fencing to soften the visual appearance, or incorporate decorative elements into the fencing to avoid the effect of a blank wall.
C7 Use solid construction fencing, such as masonry or full brick, on boundaries directly adjoining residential properties or Residential zoned land, to provide visual screening and contribute to noise control.
1. Part E1.4.4 provides guidance to industrial developments in relation to hours of operations, and includes the following suite of controls:
C1 Restricted to 7:30 am to 5:30 pm Monday - Saturday where development adjoins residential zoned land.
C2 No operations on public holidays.
C3 Proposals to operate outside these hours will be required to demonstrate there will be no adverse impacts on adjoining residential uses.
C4 For the purposes of this provision, "adjoining" means any situation where the subject site shares a common boundary with, or is separated from, a Residential zoned site by a road, laneway, alleyway or the like.
C5 Loading and unloading time is not to impact on the amenity of nearby residential areas. Schedules of vehicle movements and their routes are to be provided in the development application.
1. Part E1.6 provides guidance to industrial developments in relation to industrial signage, and includes the following controls:
C1 Refer to Chapter F1 for general signage and advertising controls.
C2 The total advertising area on each site is not to exceed 1m2 per 2m of road or access frontage for premises with a single frontage, and 0.5m2 per 2m for premises with two frontages.
C3 Buildings or sites having multiple occupants are to be identified at the entrance by no more than two signs or directory boards within the front setback, identifying the names and activities of the occupants. Signs for each occupant are to be of a uniform size, shape and presentation.
1. Part F1, concerning signage, and which provides the following controls for signage in industrial zones within Part F1.3.3:
C1 The total signage area on each site is not to exceed 1m2 per 2m of road or access frontage for premises with a single frontage, and 0.5m2 per 2m for premises with two frontages.
C2 Buildings or sites having multiple occupants are to be identified at the entrance by no more than two signs or directory boards within the front setback, identifying the names and activities of the occupants. Signs for each occupant are to be of a uniform size, shape and presentation.
C3 Small shops and other similar uses within the industrial zones are to also comply with the controls for the business zones.
.
[6]
Contentions
At the commencement of the hearing on 27 March 2019, the Parties advised that a contention concerning the adjoining Unit A, at 30-44 Eva Street, and which the Respondent had said should form part of the development application, was no longer pressed. In part this was consequence of the Respondent acknowledging that works had been undertaken by the Applicant to permanently seal a vehicle access pathway between the Subject Site and the lot upon which so-called Unit A was located.
The Applicant said that following further consideration of the potential impacts of articulated vehicles (AVs) moving onto and off the Subject Site, it now sought consent for the movement of articulated vehicles (AVs) of up to 19.0m in length that would be limited to a maximum of 15 AVs in any week, and within this limit no more than 5 AVs per day.
The remaining contentions in the appeal concerned the acceptability, or otherwise, of the proposed development in relation to:
1. the adequacy of the Applicant's proposed internal works required to ensure that:
1. the operations of Units B and C were separate to any operations within Unit A, as the units while located on adjoining lots, are connected physically and via an internal passageway;
2. the safety of staff operating within the units in the Subject Site;
1. the Applicant's proposals with respect to signage and advertising;
2. potential traffic and kerbside parking impacts on Eva Street;
3. potential noise and light spill impacts the amenity of residential developments in Eva Street in relation to noise; and
4. the adequacy of the proposed plan of management to provide a basis for mitigation of potential impacts on residents and residences in Eva Street.
The Parties further advised at the commencement of the hearing that timing and availability constraints had prevented their respective acoustic experts from finalising their joint expert report prior to the commencement of proceedings, and that an adjournment would be required to facilitate completion of their work and their attendance at Court for the purpose of providing oral testimony.
As a consequence, and at the request of the Parties, the Court adjourned the hearing for an extended period of almost two months to enable the completion of reporting by the acoustic experts and to assure their attendance at Court to provide oral evidence.
During the first two days of the hearing on 27 and 28 March 2019, the Court took evidence from the Parties' planning and traffic experts. The evidence of the acoustic experts was taken on 21 May 2019.
Upon resumption of the hearing on 21 May 2019, the Applicant tendered a number of documents that sought to respond to several matters that had arisen during the initial two days of the hearing. These included:
1. further swept path analyses in relation to the movement of AVs on the Subject Site;
2. details of the timing related to the movements of AVs as depicted in the refined swept path analyses;
3. a revised Operational Plan of Management (OPOM) that included:
1. refinements to the number and type of AVs that would access the Subject Site during each week; and
2. the incorporation of information on proposed deliveries, including a proposed delivery 'slot' system;
1. further architectural plans that:
1. corrected references to signage on elevations;
2. included the location of a goods lift in Unit C;
3. confirmed that an internal opening between Unit B, and Unit A on the adjoining lot would be closed;
4. provided detail in relation to the Applicant's proposed western driveway splay in the road reserve;
1. a landscape plan to reflect the further swept path analyses provided.
The Applicant also provided:
1. an extract from the Road Rules 2014 (the Rules) confirming the basis, under cl 104(4) of the Rules, for an exemption available for AVs to access the Subject Site via Eva Street when the weight of the AV exceeds the gross vehicle mass (GVM) limit of three tonnes applicable to that road;
2. confirmation that works had been undertaken in relation to the goods lift in Unit C to ensure that its operations were compliant with relevant operational health and safety requirements; and
3. a BCA performance solution to satisfy the Building Code of Australia (BCA) 2016 - Amendment 1 in relation to Unit C, and access to Level 1 of that Unit by people with disabilities.
The principal questions addressed at the hearing to resolve the remaining contentions between the Parties were as follows:
1. are the Applicant's proposed internal works acceptable in relation to:
1. ensuring that the operations of Units B and C remain separate to any operations within Unit A?
2. assuring the safety of staff operating within Units B and C on the Subject Site?
3. providing access to the first floor for customers with accessibility requirements that might otherwise prevent their use of that level in making retail purchases from the retail outlet in Unit C?
1. are the Applicant's proposals with respect to signage and advertising acceptable?
2. are the Applicant's proposals for mitigation of potential traffic and kerbside parking impacts on Eva Street acceptable?
3. are the Applicant's proposals for mitigation of potential noise and light spill impacts on the amenity of residential developments in Eva Street acceptable?, and
4. is the Applicant's proposed operational plan of management adequate to provide a basis for mitigation of potential impacts on residents and residences in Eva Street?
The Court was assisted in its consideration of these questions by the following expert witnesses:
1. Planning experts: Mr Kerry Nash for the Respondent, and Mr Ali Hammoud, for the Applicant;
2. Traffic experts: Mr Brett Maynard for the Respondent, and Mr Ken Hollyoak, for the Applicant;
3. Acoustic experts: Mr Graham for the Respondent, and Mr Renzo Tonin for the Applicant.
[7]
Are the Applicant's proposed internal works acceptable in relation to ensuring that the operations of Units B and C remain separate to any operations within Unit A?
As noted above at [35], a contention concerning the adjoining Unit A, at 30-44 Eva Street, and which the Respondent had previously contended should form part of the development application, was no longer pressed by the Respondent, in part because works had been undertaken by the Applicant to permanently seal a vehicle access pathway between the Subject Site and the lot upon which so-called Unit A was located.
Notwithstanding this, the Respondent had also said that the Applicant had created an internal thoroughfare between Units A and B that could facilitate the movement of workers, equipment and goods between these units.
In the joint report of the expert planners:
1. Mr Nash, the Respondent's expert planner, had said that any movement of goods between Unit A and Units B & C would not be permissible as the activities and uses for which consent is sought in these proceedings relate only to 102 Bonds Road, that is Units B and C. He noted that, in his opinion, any interaction between what he referred to as "the two sites" would only exacerbate the vehicle movements, including forklifts, on Eva Street and the amenity of residents opposite;
2. Mr Hammoud, the Applicant's expert planner, had said that Unit A operated independently of Units B and C, and that Unit A did not rely on Units B and C in order to function.
During the hearing, Mr Nash said that, as noted during the site view at the commencement of these proceedings, the opening between Units A and B could be observed, although it was currently blocked by a stack of pallets. Mr Nash also said that, at least on the Unit B side of the opening, there was a ramp that led up to the opening for the purpose of facilitating the movement of equipment, such as forklifts, between the two units.
Mr Nash proposed that the thoroughfare between Units A and B should be permanently and completely closed through the erection of a masonry wall, which he said would have the added benefit of ensuring that Unit A operated as a separate fire compartment to Units B and C.
Mr Nash also proposed that the requirement for the permanent closure of the thoroughfare between Units A and B should be the subject of a deferred commencement condition.
The Respondent has proposed a condition (Deferred Commencement Condition A1) reflecting the proposal of Mr Nash above at [50], within a revised draft conditions of consent, tendered as evidence at the hearing.
The Applicant opposes the imposition of the Respondent's draft Deferred Commencement Condition A1, but has offered a draft condition (draft Condition 57) within its draft without prejudice conditions of consent, that would require such works to be completed following the grant of consent but before the issue of an occupation certificate to the Applicant.
In response to a question from the Respondent, Mr Nash agreed that the internal movement of people, equipment and goods between the lots accommodating Unit A and Units B and C, would not be possible as a consequence of:
1. the permanent and complete closure of the internal thoroughfare between Units A and B through the construction of a masonry wall; and
2. the Applicant's construction of a masonry wall across the previous external driveway connecting the two lots.
Mr Nash said that his only remaining concern in relation to the Applicant's operations in Unit A, and any link to its operations in Units B and C, was the potential for the movement of goods between Units A and C via Eva Street.
During the hearing Mr Hammoud agreed with a proposition put by the Respondent that Unit A could receive, and hold, similar goods to those held and sold from Unit C. The Applicant also submitted that it was possible, and reasonable, that goods dispatched from Unit A for collection by a customer at one of Sydney Tools' retail outlets might elect to have those goods collected from its retail operation within Unit C.
The Respondent has proposed a draft condition of consent (draft Condition 10) within its draft without prejudice conditions of consent which would require that there be no movement of employees, goods, customers, forklifts or goods vehicles between Unit A and the Subject Site, including through any internal ramp constructed, by the external footpath or by Eva Street. The Applicant had opposed this draft condition, but did state that it would accept a condition requiring that the Applicant's operations on the Subject Site not be undertaken in conjunction with warehousing activities at Unit A.
The Respondent had further proposed that, in addition to the permanent closure of the internal connections between Units A and B, the Applicant should also be required to remove any external ramp that had been used to assist the movement of vehicles between the Subject Site and the lot in which Unit A is located. This was proposed within its draft conditions of consent (proposed Deferred Commencement Condition A2). The Applicant submitted that this proposed Deferred Commencement Condition A2 was unnecessary.
Having considered the submissions of the Parties and the evidence of the expert planners in relation to the Applicant's proposed works to ensure that the operations of Units B and C remain separate from those within Unit A, I have concluded that:
1. the Respondent's draft deferred commencement condition A1 is appropriate to ensure that prior to any consent becoming operational the Applicant's operations of Units B and C are absolutely separated from its operations within Unit A;
2. the Respondent's draft deferred commencement condition A2 is, as submitted by the Applicant, unnecessary because the masonry walls as proposed internally, and in place externally, to separate the operations of Units B and C from operations in Unit A, are sufficient to ensure that the desired outcome is achieved. Further, the removal of the ramps would give rise to significant cost but would provide little additional assurance on this point;
3. as a consequence of my conclusion above at [(2)], the draft condition (proposed Deferred Commencement Condition A2) included within the Applicant's draft conditions of consent is not necessary and should not be included in any final conditions of consent accompanying a grant of consent to the Applicant's development application.
4. the Respondent's draft condition 10 is appropriate to assure the separation of the operations of Units B and C from operations in Unit A. Given the similarity of goods held in Unit A and Unit C, and what would be, in my estimation, the low frequency of an order lodged with Unit A being requested for pickup at Unit C, I do not accept this this would be an unreasonable burden on the Applicant to provide a reasonable assurance to the Respondent, and local residents, that the operations of Units B and C under a consent granted in this appeal did indeed operate separately to the operations of Unit A.
[8]
Are the Applicant's proposed internal works acceptable in relation to assuring the safety of staff operating within Units B and C on the Subject Site?
The proposed development includes the provision of an internal goods lift in Unit C that can use be used to shift goods from the ground floor to and from the first floor of that unit. As noted above at [41(4)(b)], the Applicant's amended plans now include details of the location and dimensions of this lift.
During the site view, the Court sought assurances from the Applicant that the design and operation of that lift was compliant with any relevant occupational health and safety requirements applicable to it.
At the commencement of the hearing, the Applicant noted the Court's enquiry, and undertook to review the OH&S standards applicable to the safe design and operation of the lift. This review was undertaken between the adjournment of the hearing on March and its resumption in May 2019.
Upon resumption of the hearing on 21 May 2019, the Applicant tendered documentation to confirm that:
1. during the hearing adjournment certain safety related design changes had been made to the lift to assure that its operation was both safe and compliant with relevant OH&S standards; and
2. an appropriately qualified individual had certified the works undertaken to be compliant with the relevant provisions of Building Code of Australia (BCA) 2016 - Amendment 1 (BCA 2016 Amdt 1).
As a consequence of the additional works undertaken by the Applicant, and the certification of those works I am satisfied that the design and operation of the goods lift is acceptable and that it meets all relevant statutory requirements in relation to worker OH&S matters.
[9]
Are the Applicant's proposed works acceptable in relation to providing access to the first floor for customers with accessibility requirements that might otherwise prevent their use of that level in making retail purchases from the retail outlet in Unit C?
During the hearing, the Court enquired as to whether there were any accessibility requirements that the Applicant was required to meet in relation to providing access to the first floor of the retail outlet for people of disability.
Following the resumption of the hearing on 21 May 2019 the Applicant confirmed that it had reviewed accessibility requirements for the first floor of the retail outlet.
Further the Applicant provided what it described as an alternative solution, along with an attestation as to its acceptability under the requirements of BCA 2016 Amdt 1 and AS1428.1-2009 in relation to the provision of access to the first floor for people with disabilities. This attestation was provided by AE&D Pty Ltd.
That alternative solution was that the Applicant would provide access to an on-line catalogue of products available within the retail outlet, including products located on the first floor. This on-line catalogue would be accessible on the ground floor of Unit C.
Having considered the Applicant's proposed alternative solution, and having noted the report of AE&D Pty Ltd that this provided an acceptable solution, I am satisfied that the Applicant's proposal is acceptable in relation to providing access for customers with accessibility limitations to the goods available for purchase from first floor of the retail outlet in Unit C.
[10]
Are the Applicant's proposals with respect to signage and advertising acceptable?
The Respondent had contended that consent for signage and advertising had not been sought by the Applicant. However, the Applicant in its Statement of Facts and Contentions in Reply stated that its development application was amended to include the retention of two existing business identification signs erected on the northern façade parapet and the western façade parapet containing the words "Sydney Tools Industrial", and that details of the signs had been provided within the Applicant's Statement of Environmental Effects dated 6 November 2018.
I accept that the Applicant's development application includes an application for installation and use of the two business identification signs.
The acceptability of the Applicant's business identification signs were the subject of testimony from the expert planners. Mr Nash said that, based on the Applicant's plans as they were at the commencement of the appeal, the representation of the signs required amendment to ensure that they were faithfully represented on the Applicant's plans in terms of location and wording.
Mr Nash said that he had not given consideration to the business identification signs in relation to the size controls within CDCP.
The Applicant's two business identification signs have the following dimension:
1. on the Eva Street frontage: 39.59m2; and
2. on the Bond Street frontage: 19.64m2.
The controls under Parts E1.6 and F1.3.3 of CDCP (see above at [34(1)(d)] and [34(2)]) permit a total advertising area on the Subject Site of 0.5m2 per 2m of road or access frontage for premises with two frontages.
The Subject Site has two frontages, with street frontages measuring as follows:
1. on the Eva Street frontage: 148m
2. on the Bonds Road frontage: 49m.
The Applicant's two existing business identification signs have a total area of 59.23m2. Signage of these dimensions would require a road or access frontage of 236.92m in order that in be compliant with the controls in CDCP.
The Subject Site has a combined street frontage to Eva Street and Bonds Road of some 197m, representing a shortfall of some 40m on the required frontage for its business identification signs to be compliant with the relevant provisions of CDCP.
In recognition of this signage exceedance, the Applicant has proposed, and the Respondent has accepted, the following condition of consent:
"Prior to occupation
The Eva Street business identification sign is to be reduced in size to a maximum area of 26.78m2. This reduction may be achieved by reducing the dimensions of the sign to 22m (length) x 1.2m (height). Written evidence confirming that the sign erected on the Eva Street frontage has been reduced in size in accordance with this condition is to be provided to the Council and certifying authority prior to the issue of any occupation certificate."
Having considered the evidence of the experts and the submissions of the Parties, I accept that the Applicant's proposed condition of consent is acceptable and should be included in any conditions attached with a grant of consent for the Applicant's proposed development.
[11]
Are the Applicant's proposals for mitigation of potential traffic and kerbside parking impacts on Eva Street acceptable?
The Applicant has proposed that AV movements into and out of the Subject Site be limited to a maximum of 15 AVs per week and no more than 5 AVs in any one day.
Additionally, the Applicant seeks consent for the movement of AV's with a total length of up to 19.0m, whereas the Respondent seeks to limit the length of vehicles to 15.9m.
The Applicant further proposes, under its amended plans, that:
1. larger AVs of 19.0m length would use loading dock B1; and
2. smaller AVs of either 17.2m or 15.9m could use either loading docks B1 or B2.
The expert planners agreed at the hearing that the matter of greatest concern in relation to trucks and their movements was the number of AVs entering and leaving the Subject Site on a daily basis and within any week. They also agree that the number of containers associated within any AV movement was not material to the consideration of the potential impacts of the proposed development.
Mr Nash proposed, and the Applicant accepted, that these limits on the movement of AVs should be incorporated within a final OPOM adopted by the Applicant, should its proposed development receive consent.
The matters of traffic movement and parking were also the subject of extensive evidence for the expert traffic engineers, Mr Maynard and Mr Hollyoak.
At the commencement of the expert traffic engineering evidence at the hearing, Mr Hollyoak had said that he had produced as series of swept path analyses for vehicles of the maximum length of 19.0m and a 17.2m AV. These swept path analyses were tendered as evidence.
Mr Hollyoak said that these swept paths demonstrated that:
1. manoeuvring a 19.0m AV into and out of loading dock B2 was possible, whether the AV reversed in or entered the dock in a forward direction, but would have the following impacts:
1. two trees would need to be removed;
2. the design of a garden bed adjacent to the gate would require reconfiguration;
3. a fire hydrant would be impacted and would require relocation;
4. the western side of the driveway spay would require extension to facilitate the turning of exiting vehicles onto Eva Street.
1. manoeuvring a 17.2m AV into and out of loading dock B2 was possible, but would have reduced impacts compared to a 19.0m AV in relation to garden beds, trees and the fire hydrant.
In response to a question from the Applicant, Mr Maynard agreed that if the western driveway were widened and the garden beds were modified, the required swept paths could be achieved by a 19.0m long AV.
In response to a question from the Respondent, Mr Maynard confirmed that in his opinion, the loading of two 40-foot containers into loading dock B2 was possible, albeit that the manoeuvre would be tight and may take more time.
The Applicant also tendered as evidence several video clips recorded at the Subject Site that showed a 19.0m AV exiting the Subject Site onto Eva Street in the direction of Bond Street, to confirm that this manoeuvre was achievable.
The Applicant also tendered several videos that showed a 19.0m AV exiting from Eva Street onto Bond Road. These videos showed that AVs exiting Eva Street onto Bonds Road may need to run over the pedestrian refuge at that intersection. However, the Applicant said that the style of refuge installed at that intersection was of a design that facilitated such a turn by a long vehicle and anticipated that such vehicles would need to pass over the flat structure.
Within the joint expert report of the traffic engineering experts, Mr Maynard had stated that a 19.0m AV turning left out of Eva Street and into Bonds Road would require the full width of the Bonds Road carriageway to achieve the manoeuvre. He said that this gave rise to safety concerns arising from potential traffic conflict given the level of motor vehicle usage of Bonds Road which he said was around 9,000 vehicles per day.
Mr Maynard recommended that a restriction be placed on the size of semi-trailers accessing the Subject Site to reduce potential conflicts at the Eva Street intersection with Bonds Road.
In contrast, My Hollyoak had stated that semi-trailers had accessed (and exited) the Subject Site from the Bonds Road and Eva Street intersection historically, and swept paths had been prepared to demonstrate that a 19m AV could successfully execute those manoeuvres.
In relation to parking, it was agreed by the experts that calculations should be made of the likely parking demand associated with staff and customer use of Units B and C. It was agreed that these calculations would be prepared following the adjournment in the proceedings in March 2019 and prior to their resumption on 21 May 2019.
The experts also agreed that the Applicant should revise its plans illustrating the swept paths for AV movements on the Subject Site to ensure that they:
1. removed a 'raster' layer that constrained their interpretation;
2. included in a base plan the final proposals for the layout of parking on the Subject Site and for landscaping works required to accommodate the swept paths provided for AVs; and
3. provide a final design for the driveway cross over, including the final dimensions of the driveway splay and the location of any 'no parking' zone required to ensure the safe exit of AVs from the Subject Site.
Upon resumption of the hearing on 21 May 2019, the Applicant tendered:
1. revised swept paths for AV movements on the Subject Site that confirmed that only AVs of a 17.2m length could adequately manoeuvre into and out of loading dock B2;
2. revised landscaping plans illustrating the works required to garden beds adjacent to loading docks B1 and B2 to facilitate the swept path movements of AVs on the Subject Site;
3. additional video clips illustrating that the vehicles proposed for use of loading docks B1 and B2 could complete the required manoeuvres to enter and exit those docks;
4. confirmation that the parking proposed to be provided on the Subject Site, both at grade and within the Unit C basement car park, was adequate to meet the projected demands of staff and customers;
5. an amended OPOM that included details of the proposed number and frequency of AV movements during any day or week;
6. pictures of the kerb area on Eva Street illustrating that no tree roots would be impacted in relation to the proposed works required to widen the driveway splay;
7. plans illustrating the Applicant's proposal that street parking signage would be installed on the western side of the driveway splay requiring that there be 'No Stopping' along an 11.725m length of the kerbside in that location during the hours of 8am to 5pm, Mondays to Fridays;
8. revised Applicant's proposed conditions of consent to reflect the above amendments as required.
The Applicant also submitted that, should its proposed development be the subject of a grant of consent, the restriction on the use of loading dock B2 to AVs of 17.2m or less only should be the subject of a condition of consent, and the final OPOM should also reflect this requirement.
Having considered the evidence of the experts and the submissions of the Applicant, including the amended and revised plans provided following the resumption of the hearing on 21 May 2019, I am satisfied that:
1. the Applicant's proposed level of AV use of the Subject Site is acceptable;
2. the Applicant's proposed size, frequency and management arrangements for the movement of AVs onto and away from the Subject Site are acceptable, including their use of Eva Street, and their entry and exit via the intersection of Bonds Road and Eva Street.
3. the Applicant's amended OPOM, landscaping plans and plans for the driveway splay and no stopping area to the west of that splay are acceptable for the management of those vehicle movements:
1. including their manoeuvring on the Subject Site, and their safe entry onto and departure from the Subject Site;
2. other than in respect to the restriction on the use of loading dock B2 by AVs of 17.2m or less, which should be the Subject of a condition of consent;
[12]
Are the Applicant's proposals for mitigation of potential noise and light spill impacts on the amenity of residential developments in Eva Street acceptable?
The Applicant has proposed that potential noise impacts arising from its use of the Subject Site be mitigated through the erection of an acoustic fence, and the Applicant's amended plans within Exhibit R confirmed details of the proposed location and design of that acoustic fencing.
The location and design of the Applicant's proposed acoustic fence were based on recommendations contained within an expert witness report of Dr Renzo Tonin, which was tendered as evidence at the hearing along with a joint report of the acoustic engineering experts:
1. Mr Graham Atkins, for the Respondent; and
2. Dr Renzon Tonin for the Applicant.
The Applicant's proposed acoustic fence would be 2.2m high, and would be constructed as a lapped and capped timber structure to be attached to the existing metal fence along the boundary of the Subject Site.
Dr Tonin's expert report had concluded that, based on the Applicant's adoption of all reasonable and feasible noise mitigation measures, the proposed development's calculated exceedances of noise criteria by up to 2dB were acceptable as these would not be discernible to the average listener. The feasible and reasonable noise mitigation measures adopted by the Applicant within the proposed development are:
1. construction of the proposed 2.2m high acoustic fence;
2. limitations on the number of deliveries by AVs to the Subject Site;
3. limitations on the days and times of deliveries to the Subject Site (8am to 5pm; Mondays to Fridays);
4. all containers are to be loaded and unloaded within the confines of Unit B and with the roller doors to the loading bays closed;
5. no forklifts are to be used on the hard stand areas external to Units B and C; and
6. vehicles delivering to Unit C will be loaded and unloaded manually.
Dr Tonin had also said in his report that the potential noise impacts of garbage collection at a frequency of not more than once per day, on no more than two days per week, and between the hours of 9am and 3pm, would be minor and inconsequential.
Finally, Dr Tonin had undertaken a road noise assessment of the proposed development, and had concluded that all scenarios concerning road traffic noise generation complied with the NSW Road Noise Policy (RNP) criterion for noise generation to provide no more than a 2dB increase in noise levels above the RNP's stated criteria for road noise.
The acoustic engineering experts provided oral testimony at the hearing to complement the evidence contained in their joint report. During the testimony the acoustic engineering experts addressed the following matters:
1. the basis for establishing background noise levels in relation to the assessment of potential acoustic impacts of the proposed development;
2. the adequacy of the Applicant's proposed acoustic fence to mitigate the potential noise impacts of the proposed development;
3. the contents of the Applicant's proposed OPOM, and its adequacy with respect to further mitigating potential acoustic impacts of the proposed development;
4. the use of the Applicant's OPOM with respect to mitigating potential acoustic impacts of the proposed development;
5. the Respondent's and the Applicant's proposed draft conditions of consent.
As concerns the background noise levels:
1. Dr Tonin and Mr Atkins agreed that the calculation of the rating background noise level (RBL) should be based on noise measurements obtained by monitors placed at two locations on each of the relevant sensitive receiver properties opposite the Subject Site on Eva Street, and that these should be located:
1. at a distance of one metre from the façade of residences on those properties to measure noise generated by passing vehicles; and
2. within the front yard of each property to establish the RBL for each location.
1. Dr Tonin explained that:
1. he was advised that permission had been sought from the owners of the relevant properties by the Applicant to place noise monitoring equipment on the relevant properties to establish the relevant RBL for assessment of the proposed development, but that this had not been granted;
2. in the absence of access to the relevant properties, he had taken measurements from public areas outside of those properties and adjusted these to establish an estimated RBL for the purpose of assessing the potential impact of the proposed development; and
3. the use of the approach described above at [b], is normal practice in circumstances where access to relevant properties is not available.
I accept the testimony of Dr Tonin and also accept that the RBLs calculated by him for the purposes of assessing the potential noise impacts of the proposed development are reasonable.
As concerns the adequacy of the Applicant's proposed acoustic fence to mitigate the potential noise impacts of the proposed development:
1. Mr Atkins agreed with the Respondent that:
1. Units B and C has been used for industrial purposes since their construction in 1984, and prior to the use of the Subject Site by the Applicant;
2. the Applicant's proposed acoustic fencing would represent an improvement to the noise impacts experienced by residents living opposite the Subject Site on Eva Street, and that it would mitigate potential noise impacts of the proposed development on residents, including noise generated by reversing vehicles on the Subject Site;
3. the Applicant's proposed use of the Subject Site would be restrained, and its potential noise impacts reduced, by its proposed OPOM and proposed conditions of consent, and that these were positive aspects of the proposed development in relation to potential noise impacts on residents in Eva Street;
1. Mr Atkins also recommended that the following works should be the subject of conditions of consent should the proposed development be approved:
1. the tracks carrying the gates at entries to the Subject Site on Eva Street should be lowered such that they would be level with, or below, the driveway at that point, and
2. rubber matting should be installed within the container unloading areas in loading bays B1 and B2.
1. Dr Tonin, in response to questions from the Applicant, said that:
1. notwithstanding variations in the times taken to manoeuvre AVs on the Subject Site, and based on his estimated RBLs, the proposed acoustic fence would mitigate the potential noise impacts of the proposed development such that these would be acceptable, and consistent with noise criteria applicable to the proposed development contained within the NSW EPA's Noise Policy for Industry (NPfI).
1. Dr Tonin also said that:
1. he agreed that the lowering of the gate tracks as proposed by Mr Atkins had utility in relation to mitigating potential noise impacts on residents opposite the Subject Suite on Eva Street, notably in relation to noise generated by vehicles hitting the track bump as they entered or left the site; and
2. he did not agree with Mr Atkin's proposal in relation to the installation of rubber matting within loading bays B1 and B2, because the doors to these loading bays would be closed when the vehicles were being unloaded and there would be no noise generated that would be audible to a receiver external to the those loading bays.
Having considered the submissions of the Parties, and the evidence of the acoustic engineering experts, I am satisfied that:
1. the Applicant's proposed design and location of the acoustic fence is acceptable;
2. Mr Atkins' recommendation, supported by Dr Tonin, that the tracks upon which the Eva Street gates to the Subject Site operate, should be lowered to be at or below the level of the driveway at those points in the fence should be required as part of any consent granted to the Applicant; and
3. Dr Tonin's evidence that rubber matting is not required within the B1 and B2 loading bays, because the doors to those loading bays would be closed, should be accepted. I note that the requirement for the doors of loading bays B1 and B2 to be closed is included within the Applicant's final draft OPOM tendered as evidence at the hearing.
As concerns the draft conditions of consent tendered as evidence at the hearing, and their adequacy with respect to mitigating potential acoustic impacts of the proposed development,:
1. Mr Atkins said that, in his opinion,:
1. draft Condition 14 should be amended to specify that containers should also not be loaded or unloaded in areas external to Units B and C;
2. draft Condition 17, should require that all truck drivers delivering goods to and taken materials away from, the Subject Site, including the drivers of waste collection trucks, should be inducted onto the Subject Site by a certified Sydney Tools representative;
3. draft Condition 49 should include a reference to the availability of basement car parking; and
4. draft Condition 51 should require that the basement car park should be used for visitor/customer parking.
1. Dr Tonin, in response, said that:
1. he accepted Mr Atkins recommendations in relation to draft Conditions 14 and 17;
2. he accepted Mr Atkins recommendations in relation to draft Condition 49; and
3. he disagreed with Mr Atkins' recommendation that draft Condition 51 require that the basement carpark should be used for visitor/customer parking, as this would be difficult to enforce, and would present potential difficulties to customers in terms of transferring purchases made at the retail outlet in Unit C to their vehicles.
Having considered the testimony of the acoustic experts:
1. I accept the agreement of the experts in relation to draft Conditions 14, 17, and 49;
2. I prefer the submission of Dr Tonin concerning the potential use of the basement carpark by visitors/customers and do not accept that this should be a required condition of consent.
As concerns the Applicant's proposed OPOM, and its adequacy with respect to mitigating potential acoustic impacts of the proposed development, the experts agreed, and I accept, that the requirements of proposed Conditions 14 and 17, as discussed above at [111(1)(a)] and [111(1)(b)], should be included within the Applicant's OPOM.
Finally, as noted below at [117(7)], the Applicant's revised OPOM has included restrictions on the use of lighting on the Subject Site, and I am satisfied that these are sufficient to mitigate any potential amenity impacts arising from light spill from the Subject Site.
[13]
Is the Applicant's proposed operational plan of management adequate to provide a basis for mitigation of potential impacts on residents and residences in Eva Street?
At the hearing, the Respondent said that the Applicant's proposed OPOM was inadequate in relation to its proposed management of traffic to and from the Subject Site, and in relation to the management of potential noise impacts from the proposed development. It had also contended that the OPOM should be submitted to the Respondent Council every twelve months for review to ensure that the Applicant's use of the Subject Site, and amenity impacts arising therefrom, were managed appropriately.
These concerns were further ventilated at the hearing during the testimony of the expert planners, traffic engineers and noise experts, as discussed above in this judgment.
Further, following the adjournment, and upon resumption of the hearing on 21 May 2019, the Applicant tendered a revised OPOM which included:
1. proposed arrangements for the management of traffic to and from the Subject Site, including in relation to the number and frequency of AV movements;
2. arrangements for coordinating the planned arrival and departure of AVs from the Subject Site to mitigate the risk of vehicle conflict in Eva Street and at the intersection of Eva Street and Bonds Road;
3. arrangements for the loading and unloading of AVs within the Subject Site, including in relation to the use of loading bays B1 and B2;
4. further details in relation to the management of parking on the Subject Site, including parking by staff in the basement car park;
5. requirements for the induction of drivers of trucks coming into and leaving the Subject Site, including drivers of waste vehicles;
6. the inclusion of procedures for complaints management, record keeping and reporting;
7. restrictions on lighting use; and
8. details on arrangements for review and amendment of the OPOM.
Having considered the matters raised by the Applicant in relation to the Respondent's draft OPOM and having reviewed the Applicant's revised OPOM tendered at the hearing, I am satisfied that the Applicant's OPOM in its draft form tendered at the hearing (Exhibit U) is acceptable, and reflects the agreements of the experts who gave evidence at the hearing, and my conclusions above in this judgment in relation to that evidence.
[14]
Conclusions
Having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that:
1. the Applicant's proposed and completed internal works to Units B and C to close of the internal connection between Unit B and Unit A, and in relation to the goods lift in Unit C, are acceptable;
2. based on the Applicant's proposed conditions of consent requiring amendment to the signage on Eva Street, the Applicant's proposed business signage is acceptable;
3. the swept paths provided by the Mr Hollyoak on behalf of the Applicant confirm that the Applicant's proposed use of loading docks B1 and B2, including the restriction on use of B2 to AVs of no more than 17.2m in length is acceptable;
4. that AVs exiting the Subject Site onto Eva Street and thereafter onto Bonds Road can do so in a manner that is reasonable in terms of manoeuvrability and safety of both residents and vehicles;
5. the Applicant's proposed number of AV movements on a daily and weekly basis is acceptable, and can be adequately coordinated in the manner proposed within the Applicant's OPOM;
6. the potential noise impacts of the proposed development are acceptable, based on the Applicant's proposed installation of a 2.2m high acoustic fence to mitigate those potential noise impacts, and other measures specified within the proposed conditions of consent;
7. the Applicant's further revised OPOM, as amended and tendered at the hearing, reflects the conclusions in this judgment and is acceptable. I am satisfied that it responds adequately to the questions concerning the appropriateness of a plan of management identified by former Commissioner Brown in Renaldo Plus 3 Pty Limited v Hurstville Council [2005] NSWLEC 315.
Based on these considerations, I have concluded that:
1. the proposed development is in the public interest;
2. the Applicant's development application DA 163/2017 for use of Units B and C for warehousing and distribution of goods, and for sale of goods through a retail outlet in Unit C, at 102 Bonds Road, Riverwood, should be determined by approval, subject to conditions.
During the hearing the Parties provided alternate versions of draft conditions of consent, which I have considered in the context of the above judgment and the submissions of the Parties at the hearing, and based on these considerations I have concluded that:
1. in relation to the Respondent's proposed Deferred Commencement Condition A, which the Applicant sought to have deleted and replaced, in part, with operational conditions of consent:
1. draft Condition A1 is retained, as the complete and assured physical separation of Unit A from Units B and C is, in my assessment, a reasonable requirement prior to the grant of consent being operational;
2. draft Condition A2 is deleted, as I agree with the Applicant that it is unnecessary due to the construction of a masonry wall which is already completed;
3. all other deferred commencement conditions within section A (ie draft Conditions A3 through to A8) are deleted, and are replaced with operational conditions of consent as proposed by the Applicant within its draft without prejudice conditions of consent tendered as evidence at the hearing (Exhibit Z); and
4. draft Condition B is retained, because it now relates only to draft Condition A1, and in my opinion it is reasonable that the works required under this condition can and should be completed within the specified timeframes.
1. in relation to the remaining draft conditions of consent:
1. draft Condition 4, concerning the relevant plans applicable to the consent, as drafted by the Applicant, is adopted;
2. draft Condition 5, concerning the portion of the acoustic fence fronting Bonds Road, is deleted, as I agree with the Applicant that the need for this is superseded by the Applicant's amended plans and the following proposed condition of consent;
3. draft Condition 6, concerning the acoustic fence along Eva Street and the Plan numbered '1.5', is deleted and replaced with the Applicant's amended condition to become the new Condition 5;
4. draft Condition 11, concerning the operation of the Subject Site and its separation warehousing activities at the adjacent Unit A, is retained in full, and becomes new Condition 10. The Applicant's proposed deletion of part of its proposed Condition 10 is not adopted;
5. draft Condition 14 (Applicant's proposed Condition 13) is adopted including the Applicant's proposed replacement of the maximum vehicle length to read 19.0m. The Respondent's proposed limitation of vehicles to a maximum of 15.39m is not adopted, as I am satisfied that the Applicant has demonstrated that a maximum vehicle length of 19.0m is acceptable and can manoeuvre on the Subject Site within the limits it proposes within its OPOM;
6. draft Condition 16 (Applicant's proposed Condition 15), concerning business identification, is adopted including the Applicant's proposed amended wording, but is to be made subject to a new Condition 15a to reflect the findings in the judgment concerning the size of signage fronting Eva Street (see above at [78]). That new Condition 15a will be as follows;
"Prior to occupation
The Eva Street business identification sign is to be reduced in size to a maximum area of 26.78m2. This reduction may be achieved by reducing the dimensions of the sign to 22m (length) x 1.2m (height). Written evidence confirming that the sign erected on the Eva Street frontage has been reduced in size in accordance with this condition is to be provided to the Council and certifying authority prior to the issue of any occupation certificate."
1. draft Condition 17 (Applicant's proposed Condition 16) concerning the relevant version of the OPOM, is adopted, but should be amended to reflect the final version number and date of the OPOM to be adopted in respect of the grant of consent;
2. draft Condition 22 is deleted, as proposed by the Applicant, as I agree that it is redundant for the purposes of the grant of consent;
3. draft Condition 26a, concerning further conditions, is deleted as proposed by the Parties;
4. draft Condition 32 (Applicant's proposed Condition 32), concerning landscaping is adopted:
1. with the addition proposed by the Applicant; and
2. retaining the draft Condition 34b as proposed by the Respondent, as, in my assessment, the requirement imposed by that condition is reasonable and not onerous;
1. draft Condition 37, concerning the pre-ordering of plant stock, which the Applicant had sought to be deleted, is retained, as, in my assessment, it has utility in ensuring the timely implementation of other conditions concerning the implementation of proposed landscaping works;
2. the Applicant's proposed draft Condition 41 through to draft Condition 46 (inclusive) are generally adopted, as these reflect the matters resolved above at [(1)(c)] concerning the deletion of draft Conditions A3 through to A8, with the following additions:
1. draft Condition 42a, concerning the tracks carrying gates fronting Eva Street, is retained, consistent with the agreed evidence of the acoustic experts, and is to be worded as follows:
(a) Any raised tracks carrying gates fronting Eva Street are to be lowered and made flush with the grade of the driveway surface at those gates.
1. draft Condition 42b, concerning the proposed installation of rubber mats, is deleted, consistent with my findings above at [110(3)];
1. draft Condition 49 is deleted, as proposed by the Parties;
2. the heading 'Environmental Health' and associated text are deleted, as proposed by the Parties;
3. the Applicant's draft Condition 55, concerning widening of the western driveway, is not adopted as its purpose is already fulfilled through the adoption of the Applicant's proposed Condition 41, and proposed Condition 53 (Applicant's proposed Condition 59);
4. the Applicant's proposed Condition 56 is not adopted, as its requirements are satisfied by the retention of draft Condition A1;
5. the Applicant's proposed Condition 57, concerning the development of a noise management plan, is adopted, as it reflects outcomes of the hearing agreed by the Parties. Several typographical errors in the text of the draft condition submitted by the Parties at the hearing should be corrected in the final version of the Conditions to be prepared by the Parties.
[15]
Directions
The Court directs that:
1. the Parties are to file with the Court, by no later than Friday 23 August 2019, the following documents, following which final orders will be made:
1. a further revised, and agreed, OPOM to reflect the findings and conclusions in this judgment;
2. final agreed conditions of consent, reflecting the findings in this judgment, including the conclusions above at [121];
1. the matter is listed for mention at 4:15pm on Tuesday 27 August 2019, by telephone;
2. should the Parties comply with direction (1) above, the mention on Tuesday 27 August 2019 will be vacated;
3. the Parties are granted liberty to restore on 3 days' notice.
[16]
Addendum made on 30 August 2019
The final orders of the Court are:
1. The Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans;
2. The appeal is upheld;
3. Development application 163/2017, as amended, for the use of existing premises as a 'Sydney Tools Hardware and Building Supplies Store and Warehouse and Distribution Centre', is determined by the grant of consent, subject to the conditions attached at Annexure 'A';
4. The exhibits are returned, except Exhibits A, B, J and 2.
……………………….
Michael Chilcott
Commissioner of the Court
Annexure A (145 KB)
[17]
Amendments
30 August 2019 - Addendum made on 30 August 2019
The final orders of the Court are:
(1) The Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans;
(2) The appeal is upheld;
(3) Development application 163/2017, as amended, for the use of existing premises as a 'Sydney Tools Hardware and Building Supplies Store and Warehouse and Distribution Centre', is determined by the grant of consent, subject to the conditions attached at Annexure 'A';
(4) The exhibits are returned, except Exhibits A, B, J and 2.
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Decision last updated: 30 August 2019