215-231 Kingsgrove Road Pty Limited v Hurstville City Council

[2008] NSWLEC 1408

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
215-231 Kingsgrove Road Pty Limited v Hurstville City Council [2008] NSWLEC 1408

PARTIES:
APPLICANT
215-231 Kingsgrove Road Pty Limited

RESPONDENT
Hurstville City Council

FILE NUMBER(S):
10446 of 2008

CATCHWORDS:
Development Application :- Construction of a five-level mixed use development including a supermarket, floor space ratio, vehicular access, traffic, parking and streetscape.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan No 1

CORAM:
Bly C

DATES OF HEARING:
01/10/2008 and 02/10/2008

EX TEMPORE DATE:
2 October 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr P. Clay, barrister
Instructed by Mr T. Breene

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 October 2008

10446 of 2008  215-231 Kingsgrove Road Pty Limited v Hurstville City Council

This decision was given extemporaneously.  It has been revised and edited prior to publication.

JUDGMENT

1. This appeal involves a development application for the demolition of existing buildings and the construction of a five-level mixed use development including a supermarket at 219-231 Kingsgrove Road, Kingsgrove.  The site is located on the corner of Kingsgrove Road and Mashman Avenue and abuts the East Hills, Tempe railway line to the north and a pottery and tile works to the west, that site being known as the Fred Mashman site. 

1. Under Hurstville Local Environmental Plan 1994, the site is included in the business centre zone and in this zone the proposal is permissible with development consent.  The objectives of this zone include the need to maintain a commercial and retail focus whilst allowing for residential development in mixed-use buildings, provided that non-residential uses utilise the ground floor of such development.  Clause 8(3) of the LEP requires that consent can only be granted if the development is consistent with the objectives of the relevantly applicable zone.  In this case, there was no evidence to suggest that this test would not be met by this development.

1. According to the Statement of Facts and Contentions of 29 May 2008, the issues in dispute in essence are:

   exceeding the maximum floor space ratio development standard in cl 13 of the LEP,
   non-compliance with minimum car parking requirements,
   impacts associated with the bulk and scale resulting from the provision of above ground car parking and poor aesthetics associated with three-storey blank walls,
   unsatisfactory amenity for future residents of the proposed dwellings,
   the absence of an active street frontage in both Kingsgrove Road and Mashman Avenue,
   unsatisfactory vehicular access and manoeuvrability in relation to the commercial units facing Kingsgrove Road, and the supermarket.

2. The hearing began as a conciliation conference under s 34 of the Land and Environment Court Act 1979 but, as no agreement could be reached, the conference was terminated.  The conciliation process was nevertheless substantially successful in that all of the issues in dispute, other than traffic and parking, were resolved.  Importantly, as a result of consultations with members of the council's Urban Design Panel, the architecture of the building was transformed from something that was plainly unacceptable to a design that would in my opinion be entirely appropriate and indeed of very good quality in the streetscape. 

3. The remaining traffic and parking matters were then identified as being in dispute and comprising:

   the loss of the taxi rank from the northern side of Mashman Avenue.  The loss of two public car parking spaces from the southern side of Mashman Avenue and the need for a plan of management for the use of the loading dock (this is now agreed and a plan of management has been proffered by the applicant for incorporation into the conditions of consent),
   whether adequate on-site car parking is provided,
   whether the design of the loading dock would result in breaches of the relevant road rules by trucks leaving the site and whether traffic flows in Mashman Avenue and the laneway will be obstructed. 
   These matters were addressed by the traffic engineering experts, Mr C Hallam for the applicant and Mr O Wijayaratna for the council, in their joint experts’ report. 

4. On behalf of the respondent council, Mr Rigg submitted that notwithstanding the above issues, there are two issues that warrant the refusal of the development application: 

   the deficiency of on-site car parking and traffic and safety, especially in relation to the operation of the supermarket’s loading dock.

5. In relation to the provision of on-site parking Mr Wijayaratna said that based upon the relevantly applicable Hurstville Development Control Plan No 1, the Parking Guidelines require a minimum of 95 parking spaces for the proposed shops, including the supermarket.”

1. The centre is a relatively small centre, having a gross lettable floor area of 1579 sq m and falls into the DCP floor space range of 0 to 10,000 sq m, thus attracting a rate of six car spaces per 100 sq m of floor area.  By comparison, a centre having a gross lettable floor area of 30,000 sq m or more would attract the requirement of four car spaces per 100 sq m of floor area.  Similarly, table 5.2 of the Roads and Traffic Authority Guide to Traffic Generating Developments would recommend the provision of a minimum of 97 car parking spaces.  The proposal is to provide a total of 87 spaces, of which 73 will be available for customers of the shops.  This is a deficiency of 22 or 25 spaces, depending on whether the DCP or the RTA Guidelines is applied. 

2. Whilst the guidelines acknowledge that the availability of public transport may reduce the demand, Mr Wijayaratna does not accept that this justifies the extent of the deficiency.  Also to be taken into account, he suggests, is the fact that there are no major supermarkets in close proximity to this site and as a consequence the supermarket could, despite its size, be used by shoppers for their main weekly shopping.  It would thus be a significant attractor of shoppers.  He also explained that it is even more important to ensure an appropriate provision of parking notwithstanding the close-by railway station because of the very limited availability of public parking in surrounding streets. 

3. Mr Hallam takes a different approach, arguing that the provision of car parking is satisfactory based upon what he described as the disaggregated or indicative model described at pp 5-13 of the Guidelines.  This model, when applied to this development, would require 67 car parking spaces.  Plainly, the car parking provision exceeds this requirement.  He explained that the indicative model is, in his opinion, the best means of calculating peak parking requirements based on his intimate knowledge of the Guidelines and the fact that he is the author of various retail RTA research papers and the Guidelines, and a principal author of the Guidelines themselves.

4. In his evidence, Mr Hallam explained that he is aware of at least one other relatively small shopping centre where the parking arrangement is, in his opinion, satisfactory, and where that parking is in accordance with the model.  Mr Wijayaratna disagreed with Mr Hallam, saying that in his experience it is not common practice to use the model. 

1. At pp 5-13 of the Guidelines, the relationship between the parking recommendations in Table 5.2 and the indicative model is described as follows:

   The parking provisions outlined above are based on aggregated retail categories.  The relative parking demand characteristics of different floor area types can be seen in the following indicative model.

2. The model applies different car parking rates for major department stores, discount department stores and supermarkets, specialty shops, secondary retail, offices and medical.  Whilst it is plain from these Guidelines that there can be different rates of parking for different types of land uses, the model does not appear to take into account the various sizes of shopping centres unlike Table 5.2.  In this regard, I agree with Mr Wijayaratna that because Table 5.2 does take the different sizes of centres into account as does the table in the DCP, that these being very much the same are the relevantly applicable standards.  Indeed, a properly prepared, exhibited and adopted DCP should attract greater weight.

1. I accept his evidence, because I am satisfied that larger shopping centres should attract a lower rate because of the increased likelihood that multiple transactions in different shops are more likely.  Conversely, a higher parking should be applied by comparison for smaller centres as is the case here.  In this context I agree that whilst the indicative model seems to be reflective of the rate per 100 sq m for larger centres in Table 5.2, it does not reflect the significantly higher rate for the smaller centres categories that include the subject development.  Finally, in relation to the model, and with all due respect to Mr Hallam, I expect that if it were intended to be used as an alternative to Table 5.2 for all sizes of shopping centres, it would say this in unambiguous terms.  I also expect that it would explain why there are significantly different requirements for different sizes of centres. 

2. I turn now to the question of traffic and safety in relation to the operation of the supermarket’s loading dock in Mashman Avenue.  The council says that trucks using it should be able to enter the site and leave it in a forward direction.  Instead, what is proposed is for trucks to reverse into the loading dock, undertaking that reversing manoeuvre in Mashman Avenue.  In present circumstances this would not be possible, taking into account the width of Mashman Avenue and the existing on-street car parking arrangements, and the unnamed lane off Mashman Avenue for this manoeuvre to be undertaken.

1. Hence, the applicant proposes an adjustment to the existing taxi rank on the north side and the removal of three car parking spaces on the south side of Mashman Avenue.  If this is done, I accept that the reversing manoeuvre can physically take place utilising both of the traffic lanes that would thus be available as a result of the removal of the three on-street parking spaces.  The applicant also proposes to provide a management plan that will require approaching trucks to notify the supermarket of their impending arrival so that RTA trained supervisors can be available to manage the manoeuvre, including the directing of traffic and pedestrians that might otherwise be affected.  In this context, the management plan will require that trucks only approach the loading dock outside busy periods via the unnamed lane.  This is to avoid the possibility of trucks entering Mashman Avenue off Kingsgrove Road and thus being unable to enter the loading dock without unlawfully entering the unnamed lane.

2. The applicant has also agreed to install at its cost any appropriate signs, possibly in connection with the existing stop signs at the end of the unnamed lane, to advise approaching motorists of possible truck manoeuvring associated with the loading dock.  The applicant points out that this is a low-speed, low-traffic volume environment and that the consequences of up to six truck manoeuvres in this location would not cause unreasonable delays.  This point is made notwithstanding Mr Hallam’s contention that the existing situation in Mashman Avenue is unsafe.  In this regard it must be acknowledged that Mr Hallam’s concern was based on the fact that taking into account the taxi rank and the on-street parking in Mashman Avenue, only a single lane is available to accommodate the existing eighty vehicles per hour that use this street.  The Applicant’s proposal would effectively make two traffic lanes available for this traffic other than, of course, when trucks are manoeuvring.

3. Taking into account the traffic conditions at the intersection with Kingsgrove Road, which is controlled by traffic lights, the provision of an additional traffic lane would plainly be of benefit.  Whilst Mr Hallam accepts that reversing into a loading dock from a public road is not ideal, he contends that in the circumstances of this site including traffic and road conditions, and the short time that it would take to execute the manoeuvre, it is not unacceptable.  Given the width of Mashman Avenue, little else can be done.  Also, the site is not of sufficient size to easily accommodate a service area that allows a large truck to turnaround on site.  Mr Wijayaratna explained that the proposed manoeuvre for trucks would occupy the whole intersection, obstructing traffic flow in Mashman Avenue, the unnamed lane, and the entrance to the existing commercial development on the Fred Mashman site to the west.  He agreed that with all of the measures proposed by the applicant, vehicular and pedestrian conflicts can be reduced, but all of this could be avoided with an arrangement that allows trucks to enter and leave the site in a forward direction.  In this regard, he pointed out that the DCP requires that all service vehicles enter and leave land use developments in a forward direction to ensure safety of pedestrians, cyclists, and other road users.

4. I understand that the Fred Mashman site, the entrance to which is immediately adjacent to the loading dock, is the subject of a draft local environmental plan and a draft development control plan that will facilitate significant mixed-use developments up to five storeys in height.  Plainly, this will generate significant traffic volumes in Mashman Avenue.  In dealing with the proposal, this should be given significant weight in that it can reasonably be anticipated that Mashman Avenue will in time have significantly greater traffic volumes than is presently the case.  Plainly, Mashman Avenue will inevitably need to be upgraded as the Fred Mashman site is developed, but this will be constrained by its width.  Perhaps what will happen to accommodate the increased traffic will be something like the arrangement proposed by the applicant including the removal of on-street parking and the taxi rank.

5. Drawing all of these circumstances together, and giving appropriate weight to the DCP, I agree with the submissions made on behalf of the council that the loading dock arrangement here proposed would be inappropriate. 

1. In conclusion, and notwithstanding that this development would in an architectural and urban design sense make a positive contribution to this locality that is unquestionably in need of redevelopment, I have decided that for the above reasons the appeal should be dismissed, and the development application refused.  With the exception of Exhibit B, the exhibits are returned. 

   ___________________

   T A Bly
   Commissioner of the Court

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