Christmas Australia Pty Limited v Sydney City Council

[2007] NSWLEC 250

Land and Environment Court

of New South Wales

CITATION:

Christmas Australia Pty Limited v Sydney City Council [2007] NSWLEC 250

PARTIES:

APPLICANT
Christmas Australia Pty Limited

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10068 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Christmas supplies retail, limited time consent, access conditions, compliance with BCA.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998

DATES OF HEARING:

04/05/2007

 
DATE OF JUDGMENT: 

22 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date 22 May 2007

10068 of 2007 Christmas Australia Pty Limited v Sydney City Council

JUDGMENT

Background.

1 This appeal is against several conditions of consent imposed on a retail/commercial development for the sale of Christmas supplies, equipment and decorations from premises located at 201 - 211 Botany Road, Waterloo. Included in the appeal conditions is the term of the development, which expired on 31 January 2007. The applicant contends that this time period should be 5 years, whereas the respondent contends the maximum period should be 2 years. Also, other conditions relating to access to the premises and building upgrading to BCA requirements should be amended, according to the applicant.

The Site.

2 The site is located on 2 titles comprising Lot 71 DP 786275 and Lot 2 DP 1086862. The combined site has its main frontage to Botany Road and secondary frontages to Allen Street and James Street.

3 The ground floor of 201 - 211 Botany Road is used for the retailing of Christmas products. The first floor of these premises is used for administration offices and warehousing of Christmas products. No 3 Allen Street is also used for the warehousing of Christmas products and 5 Allen Street is used for car parking. The 2-storey (northern part) of 3-5 Allen Street, which is known as 4 James Street is used for car parking on the eastern part of the ground floor. The western half of the ground floor and all of the first floor is used for a separate business.

4 The sites have vehicular and pedestrian access from Allen Street and James Street and pedestrian access only from Botany Road.

5 In the front of the site on Botany Road is a strip of land 5.5m wide, which is a road widening area resumed by the RTA in 1978 and subsequently vested in Council. Car parking bays have been marked on this area of the pavement.

6 The main pedestrian access from Botany Road is by a set of steps located outside the premises, on the subject road widening.

Planning Controls.

7 South Sydney Local Environmental Plan 1998 (SSLEP); under which the site is zoned Mixed Uses – Amendment No 2 Green Square. Clause 10 requires the consent authority to be satisfied that the proposal is consistent with the objectives of the zone. Clause 21C contains the objectives for Zone No 10 (c), from which the following are relevant:

(d) to ensure through the design of a high-quality public domain that a higher level of amenity is provided for pedestrians, shoppers and workers within the zone, and

South Sydney Development Control Plan 1997 (SSDCP).

South Sydney Development Control Plan No 11 (DCP 11) - Transport Guidelines for Development.

City of Sydney Notification of Planning and Development Applications Development Control Plan (Notification DCP).

The evidence.

8 Detailed evidence on behalf of Council was presented by Ms C Edney, town planner with council. Mr G Green, consulting architect presented evidence for the applicant and these witnesses presented a joint planning report (Exhibit 3).

9 Mr Hefner, owner of neighbouring properties to the north, expressed concern about future traffic disamenity, which is likely to arise as a result of traffic exiting the site onto James Street and mixing with other traffic. He preferred all traffic for the subject development to enter and exit onto Allen Street.

10 Following the site inspection, further conferencing was undertaken by the parties resulting in their agreement to most of the disputed conditions. In summary, this includes:

• the steps in Botany Road being removed and relocated inside the premises;
• the car spaces in the Botany Bay road widening strip being deleted;
• restrictions on bus/coach access to the premises;
• provision of the internal parking spaces;
• the operating hours being 9 a.m. and 5 p.m., for 7 days.
• "assisted access" being provided at the Allen Street entrance;
• completion of outstanding works to achieve BCA compliance.

11 The unresolved condition concerns the length of time for the consent. In this regard Ms Edney contends that the maximum time period should be 2 years. This is consistent with the series of past time limited consents granted by Council. She considers that the period of the consent should be limited due to the history of the use, particularly complaints about parking and the evolving character of the area, which is changing to residential in accordance with the Green Square provisions.

12 Against this, the applicant contends that the consent should be for 5 years and due consideration should be given to the improved traffic arrangements, including the provision of on site car parking and the associated cost implications (in the order of $300,000) of the agreed works required by the amended conditions.

Findings.

13 Having considered the evidence, the submissions and undertaken a view I am satisfied that the agreed conditions satisfactorily respond to the relevant planning controls, including the zone objectives. Notwithstanding this, the length of any consent is not agreed.

14 In regard to Ms Edneys concern about the changing character of this area, I consider due allowance should be given to the subject sites location on Botany Road, adjacent to other existing commercial premises, which is unlikely to interfere with nearby residential development, in the near future. Also, the proximity of other nearby sites capable of residential redevelopment to the Green Square station, should limit to a reasonable degree any traffic conflicts, again in the near future - up to 5 years, arising from the operation of the proposal.

15 The other outstanding concern raised by Ms Edney relates to a series of traffic problems in the area that have arisen over the past 6 years. However it appears to me from the evidence that this problem has been mainly caused by the attendance and presence of buses because there is insufficient parking space to accommodate these larger vehicles in the environs of the subject property. In this regard, I note the applicant's agreement to conditions, which excludes bus/coach tours to the property.

16 The associated component of the traffic issue concerns traffic flows into the adjoining streets, particularly in the peak business periods. This concern was expressed by Mr Hefner based on his experience of traffic flows into James Street. I accept this matter is of concern and have therefore given further consideration to the applicant's response, to address this matter by way of the additional on site car parking spaces and conditions requiring the preparation and implementation of an effective ‘ traffic management plan’ (TMP).

17 The draft conditions require such TMP to be prepared within 3 months and address relevant matters including:

(i) Traffic entry and direction of the traffic through the car park;
(ii) Arrangements for manoeuvring in the car park;
(iii) Provision for exiting onto James Street; and
(iv) Recommendations and procedures to be at adopted for the carpark traffic and flow management during peak operating times.

18 It seems to me that taking into account the location of the premises at the intersection of Botany Road and Allen Street, then effective traffic-control devices or traffic monitors can be utilised to direct traffic along Allen Street or away from the premises, when the car park is full. This should also allow for orderly exiting arrangements from the car park into James Street.

19 Taking into account also that there are only 2 peak sales periods i.e. July and December, that the operating hours are 9 a.m. to 5 p.m. and buses/coaches are excluded, I am satisfied that appropriate traffic control measures can be incorporated into the TMP to achieve the zone objectives to reasonably control any nuisance arising from the operation of this development.

20 However, I also consider it reasonable that the provisions of the TMP be reviewed annually by a qualified traffic expert, so that any recommended traffic-control measures, particularly during peak periods are effectively implemented to minimise any nuisance arising from this development. This review mechanism can be incorporated into the conditions of consent.

1. The appeal is allowed.
2. The development consent for D/2006/357 for the retailing and warehousing of Christmas products at 201 - 211 Botany Road and 3 - 5 Allen Street, Waterloo is granted, subject to conditions in Annexure A.
3. The exhibits may be returned except for 2, 3, 4 and B.

___________________

R Hussey
Commissioner of the Court
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