Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie

[2008] NSWLEC 1142

Land and Environment Court

of New South Wales

CITATION:

Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie [2008] NSWLEC 1142

PARTIES:

APPLICANT
Blue Sky Capital Ventures Pty Limited

RESPONDENT
Council of the City of Lake Macquarie

FILE NUMBER(S):

10261 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Urban design, interface with neighbouring properties, streetscape, traffic, public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Lake Macquarie Local Environmental Plan 2004

DATES OF HEARING:

20/02/2008 and 21/02/2008

 
DATE OF JUDGMENT: 

23 April 2008

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr J. Robson, SC
Instructed by Ms A. Spizzo, solicitor
of Herbert Geer Rundle

RESPONDENT:
Mr G. Newport, barrister
Instructed by Mr G. Long, solicitor
of City of Lake Macquarie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

23 April 2008

10261 0f 2007 Blue Sky Capital Ventures Pty Limited v Council of the City of Lake Macquarie

JUDGMENT

Background

1 Blue Sky initially lodged this appeal against council’s refusal of a development application for a shopping centre and associated infrastructure adjacent to the existing neighbourhood centre at the intersection of Freemans Drive and Alton Road, Cooranbong.

2 After the application was granted conditional consent by the Court, it was then remitted for further hearing following a successful s56A appeal. The issues identified for the further hearing concern:

• Urban design, in terms of the streetscape and suitability of the development interface with adjoining residential development.
• Acoustic impacts.
• Public interest.

3 Insofar as traffic was also one of the issues identified for the re-hearing, conferencing between the respective experts resulted in an agreement, enabling conditions of consent to cover this matter.

The Site

4 The site comprises 1 and 3A Alton Road, 575, 577 and 579 Freemans Drive, Cooranbong. It is described as Lots 102 and 103 DP 878303, Lot 1 DP 105127, Lots 31 and 32 DP 732164.

5 The frontage to Alton Road is approximately 32m and the frontage to Freemans Drive is 74m. The total site area is 9365 sq m. There is a reciprocal right of carriageway located over lot 102 and the neighbouring land.

6 The site adjoins the existing neighbourhood centre and the adjoining land to the north and east of the site is residential 2(2) Urban Living, currently occupied by residential dwellings.

7 The development proposes the demolition of all structures on the site and the construction of shops and a medical centre with associated infrastructure including parking, landscaping and roadworks. The proposed development comprises:

• A supermarket of 2611 sq m,
• Specialty shops of 928 sq m,
• A medical centre of 160 sq m,
• The provision of 152 car parking spaces to be located at grade and in a basement carpark.

8 The relevant planning controls are:

• State Environmental Planning Policy 11 – Traffic Generating Developments.
• Hunter Regional Plan 1989
• Lake Macquarie Local Environmental Plan 2004; under which the site is zoned part 3(1) Urban Centre (Core). The land to the north, east and south is zoned 2(2) Residential Urban Living. The development is permissible with consent.
• Lake Macquarie DCP 1 – Principles of Development

The Evidence

9 For the appeal, detailed evidence was presented by:

• Mr S McMahon; Single expert on town planning/urban design issues.
• Mr P Brogan; Council’s traffic engineer.
• Mr G Pindar; Applicant’s traffic engineer.

10 Other evidence was presented from various shop owners and the Chamber of Commerce, who supported the proposal. Objections were lodged by some of the neighbours who were concerned about:

• adverse impacts from the inclusion of a liquor store in the development,
• unsatisfactory traffic arrangements, particularly the turning arrangements at the intersection,
• adequacy of safe pedestrian access, particularly for seniors from the retirement village,
• unsatisfactory drainage,
• impact of the side walls of the development in terms of adverse visual impacts and restriction on the free flow of air.

Urban design, streetscape

11 The threshold issue in the current proceedings concerns the urban design, interface impacts of the development on neighbouring properties. Further consideration was given to this matter and a number of amendments made to the proposal. They include:

• Revision of the staff car park on the north-western corner of the site, adjacent to the dwelling No 5 Alton Road. This involves the removal of 5 staff car parking spaces and replacement with landscaping.
• The acoustic wall adjacent to the common boundary with No 5 amended to improve its aesthetic appearance from No 5. This includes a setback, ‘stepped-design’ incorporating landscaping to compliment the existing vegetation.
• The provision of a setback from the rear boundary of No 5 to the acoustic wall adjacent to the loading and compactus areas. This enables the provision of screen planting within the development site, to mitigate visual impacts of the development.
• Provision of replacement landscaping adjacent to the northern and eastern boundaries. This incorporates an acoustic wall adjacent to the vehicular ramp.
• The wall of the ‘Retail 4 Space’ being offset, primarily to provide adequate sight distance.

12 The owner of No 5 expressed her concern about the appearance and height of the boundary walls surrounding her property. The concerns include visual impact, possible shadowing and loss of amenity due to interruption of natural airflow conditions.

13 These matters have been addressed by Mr McMahon – the Court appointed single expert on planning/urban design. With regard to the airflow matter, Mr McMahon reviewed various documents, including Bureau of Meteorology information on prevailing wind conditions. From this, he concluded:

“that the acoustic wall will not generate any unreasonable additional wind shadow on No 5 Alton Road on account of the direction of the prevailing winds, existing wind shadow cast by existing buildings to the south and the potential for wind shadow to be generated from the south by any other potential development within the shopping centre site.”

14 Accordingly, I am satisfied to rely on this evidence that the proposal will not generate unreasonable wind conditions. Likewise, I am satisfied the development will not create unreasonable shadowing to warrant refusal.

15 Mr McMahon initially addressed the visual impacts of the acoustic screen adjacent to No 5 and provided further input into the aforementioned amendments, particularly the staff car park revision. He considers these amendments result in a satisfactory streetscape in Alton Road and amenity for No 5.

16 The other significant matter concerns the visual impact of the northern and eastern elevations of the new building. When this was originally assessed by Mr McMahon, he considered the context of the area where the adjoining property to the north comprises large, undeveloped open areas that could potentially be developed for medium density residential in accordance with the zoning. Accordingly, he preferred the tilt slab walls to have some articulation to break the visual appearance of the 70m long, side wall. He considered that conditions of consent could adequately cover this.

17 This matter was further examined during the hearing, with discussions on various options to provide articulation, colours and particular planting to mitigate the visual effects of the side walls as required by section 3.3 of the DCP. This resulted in condition 37, which refers to the northern wall and requires:

37. Northern & Eastern Walls
In addition to the landscape treatment shown on the approved Landscape Plan, the northern wall of the supermarket shall be designed and treated as follows:
(a) At various lengths, the wall shall be setback a minimum of 100mm from the setback shown on the site plan.
(b) Each length of wall shall have a minimum horizontal separation of 5.0 metre centres and maximum 10.0 metre.
(c) Adjoining each recessed wall element there shall be placed a hardwood timber screen or galvanized screen.
(d) The screens identified in (c) above shall project from the original wall alignment shown on the site plan (the building setback) by a minimum of 100mm.
(e) The screen height shall extend to a minimum 60% of the height of wall in that location.
(f) The heights of the top of the screens shall be varied to avoid repetition in height.
(g) Planting shall comprise native, low maintenance, climbing species.
(h) Planting and screens shall be maintained in good condition for the life of the building.
(i) Colours shall comprise “earthy/natural” tones and palettes. Dark, bright, fluorescent and primary colours shall be avoided.

18 Mr McMahon considers these conditions will result in a satisfactory interface relationship with the adjoining residential properties and I rely on his expert opinion that this achieves the stated objectives. However I think that the final detailing of this work should be incorporated with the Construction Certificate plans.

Traffic

19 The traffic issue was the main reason for the matter being remitted for further hearing. However further conferencing by the parties resulted in a number of significant amendments to the road and pedestrian arrangements, this resulted in their agreement on this issue. Nevertheless, a considerable number of concerns were raised by the residents regarding vehicular and pedestrian to the shopping centre. In particular, the difficulty for seniors from the retirement village on the eastern side of Freemans Drive accessing the centre.

20 The amendments address these concerns by:

• Modifying the Freemans Drive/Alton Road intersection to allow safer entry and exit to the centre parking areas.
• This intersection revision includes a pedestrian crossing in Freemans Drive, a pedestrian crossing in Alton road and additional footpath along Alton Toad.

21 I understand that the respective traffic engineers are satisfied with the extent of this proposed upgrading works and the associated conditions of consent, which require council’s approval to detailed engineering plans for the works. It seems to me that these works reasonably address the incremental changes to traffic arising from the development and also improve pedestrian convenience and safe access to the shopping centre.

22 The matter of drainage disposal was raised by downstream neighbours and this was inspected at the view. However, the development incorporates on-site detention and subsequent discharge into council’s road drainage system, which council is satisfied with. In these circumstances, it is apparent that this system will intercept much of the water that currently flows overland and likely contributes to some inundation problems downstream. The drainage experts agree that the proposed drainage systems will improve stormwater runoff and I am therefore satisfied that the conditions of consent can adequately address this concern.

Conclusions

23 Having considered the evidence, the submissions and undertaken a view, I am satisfied this amended proposal is permissible in this ‘Urban Centre’ zone site and it reasonably satisfies the objectives of the zone to merit conditional consent.

24 Following the initial assessment of the proposal, it was granted conditional consent. When the application was referred for further hearing, the outstanding issues identified for the Court concerned the urban design considerations relative to the interface of the development and adjoining properties. Also, other public interest matters raised by the objectors. The traffic issue was resolved by the parties, following amendments to the proposal, conferencing and agreement by the traffic experts.

25 Mr Newport’s submission is that the interface of the new building with the adjoining residential properties is inadequate and does not satisfy the DCP controls in section 3.3 – Acceptable Solutions A1.3. This occurs because of the location and height of the northern wall location of the loading dock, which necessitates the construction of a relatively high acoustic fence adjacent to No 5 Alto Street.

26 Section A1.3 Facades and Elevations provides:

The length or uniform treatment of walls without variation or articulation is not more than 10 metres.

A variety of methods should be used to achieve vertical and horizontal articulation, including materials, colour, depth changes and window treatments, among others.

27 I rely on Mr McMahon’s opinion that compliance with the detailing required by condition 37, should reasonably achieve these design objectives. This requires some setbacks and wall colouring to relieve the apparent bulk of the side wall. Also, the installation of the wooden or aluminium screens with plantings, contributes to the satisfaction of this requirement because it will provide reasonable visual relief to the exposed masonary wall, in my assessment.

28 Submissions were also made regarding the Lifestyle 2020 Strategy, wherein section 5.3.2 deals with future amenity expectations:

“ that development of a greater density than adjoining development respects existing character and amenity, by incorporating a transition area at the interface.”

29 In this regard, I am satisfied that the proposed variable side setbacks, incorporating complimentary landscaping achieve a reasonable transition to the existing undeveloped open space areas. Furthermore, I note the redevelopment opportunities for this land and consider that future medium density development can be designed for compatibility with the current proposal.

30 In any case it seems to me that the ‘urban core zoning’ of the land envisages significant changes in the form of commercial buildings on the site, compared to the neighbouring residential dwellings. Under these circumstances it must be expected that there will be some observation of the commercial buildings from some of the residential properties. The amended plans and associated conditions achieve this to a reasonable extent, in my assessment of the evidence.

31 Notwithstanding this, I accept that No 5 is impacted on more than other neighbouring properties due to its proximity to the staff car park and loading dock. However, I am satisfied to rely on Mr McMahon’s opinion that the amended setbacks and landscaping along the side and rear boundaries of No 5 are within reasonable expectations for a property adjoining a local shopping centre.

32 The higher fencing is mainly required at the interface to provide an acceptable acoustic environment from noise generated from the shopping centre activities and the loading dock. As it achieves acceptable criteria, I rely on Mr McMahon’s opinion that it represents an acceptable balance and I do not consider the amended application should be refused on urban design grounds of unsatisfactory impacts on neighbouring properties.

33 The other concern in this regard is the streetscape impacts along Freemans Drive near the medical centre and the ‘elephant shop’. Having considered the evidence and observed this area at the view, I am satisfied the proposal is satisfactorily integrated with these existing uses and does not warrant refusal on the basis of unsatisfactory impacts on the streetscape. No specific streetscape issues in this regard were identified by Mr McMahon, which would result in the refusal of the application.

34 As I have noted, the traffic issue was reviewed by the respective experts, resulting in agreed amendments to the intersection and improved access to the shopping centre for pedestrians, than currently exists. I am satisfied these proposals are reasonable in terms of the incremental changes arising out of this development. If the community expectation is for a higher level of service, this would be a separate consideration by council.

35 Having considered the other objections, I do not consider they are of sufficient weight to refuse the application. Instead I am satisfied they can be addressed by the conditions of consent.

Court Orders

1 The appeal is upheld.

2 Development consent is granted to DA 2676/2006 for the demolition of existing structures and construction of a shopping centre, car parking, landscaping and associated works at Lots 102 and 103 DP 878303. Lot 1 DP 105127, Lots 31 and 32 DP 732164, Freemans Drive Cooranbong, subject to the conditions in Annexure A.

3 Exhibits 1, 8, 11, A and B be retained.

___________________

R. Hussey
Commissioner of the Court
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