BB Retail Capital Pty Limited v Lake Macquarie City Council

[2009] NSWLEC 1263

Land and Environment Court

of New South Wales

CITATION:

BB Retail Capital Pty Limited v Lake Macquarie City Council [2009] NSWLEC 1263

PARTIES:

APPLICANT
BB Retail Capital Pty Limited

RESPONDENT
Lake Macquarie City Council

FILE NUMBER(S):

10030 of 2009

CORAM:

Tuor C

KEY ISSUES:

CONSENT ORDERS - DEVELOPMENT APPLICATION :- change of use to a fitness centre
provision of on site parking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Lake Macquarie Development Control Plan No. 1 Principles of Development

DATES OF HEARING:

25 May 2009

EX TEMPORE JUDGMENT DATE:

25 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
instructed by Mr A Whealy
of Gadens Lawyers

RESPONDENT
Mr I Hemmings, barrister
instructed by Mr G Long
of Lake Macquarie City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

25 May 2009

10030 of 2009 BB Retail Capital Pty Limited v Lake Macquarie City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal against the refusal by Lake Macquarie City Council (the council) of a development application (217/2008) to use Unit 13, 240 - 260 Hillsborough Road, Warners Bay (the site) as a fitness centre.

2 The key issue between the parties was whether adequate parking would be provided to meet the demand generated by the proposed gym. On the basis of the agreement of the traffic experts, the parties are now seeking consent orders from the Court.

3 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions.

4 The Court visited the site and heard evidence from Mr Reece, who owns and operates a nearby gym. Mr Reece’s main concern was the adequacy of the survey results of other gyms, which in his opinion did not correctly reflect the traffic generation of such facilities. He considered inadequate parking was proposed for the development.

5 The traffic experts, Mr Rogers, for the applicant and Mr Morgan and Mr Brown, for the council, provided joint reports. The experts agreed that parking demand for a gym varies according to the time of day and the day of week. Each expert had undertaken surveys of other gyms in the area. They agreed that if Mr Brown’s parking rates (the highest) are applied to the proposed development, the parking provision of 391 parking spaces, would cater for the parking demand due to the peaks of the uses; being bulky goods, fast food and the gym, occurring at different times for each day of the week.

6 All the experts agreed that on this basis the parking provision is appropriate for the overall development. Unit 13 is approved as part of development consent (2744/2005) for a bulky goods development, which is currently under construction (the original approval). Unit 13 has an area of 1900 sqm and required 50 parking spaces under the original approval, based on the provisions of Lake Macquarie Development Control Plan No. 1 - Principles of Development (the DCP).

7 The original approval, as amended, for the overall development provides 391 spaces (including a credit of 9 spaces for a bus shelter). Part 2.66 of the DCP parking requirement is 1 space/10 sqm for gymnasiums, which would result in a requirement for 190 car spaces. Part 5.9.2 of the RTA guidelines for gymnasiums requires a minimum of 4.5 spaces/100 sqm and a desirable rate of 7.5 spaces/100 sqm, which results in a requirement between 86 to 143 car spaces.

8 The car parking to be provided for the proposed gym, when considered in isolation, was for 50 spaces. However, the gym can share the car parking spaces allocated for the other approved uses on the site. The traffic experts have looked at the usage times and parking demand generated by the different uses of the approved development and agree that the parking provision for the overall development, including the gym, is appropriate. The proposal therefore meets the intent of Part 2.66 of the DCP, to ensure that development is provided with adequate and well designed on site parking.

9 I therefore accept that the consent orders sought by the parties may be granted.

10 By consent the Court orders that:

1. The appeal is upheld.
2. Development Application No. 217/2008 to use unit 13 in 240-260 Hillsborough Road, Warners Bay for a fitness centre is approved in accordance with the conditions in annexure A.
3. Exhibits are returned except for exhibits 5 and A.

___________________

Annelise Tuor
Commissioner of the Court
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