Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council

[2009] NSWLEC 1082

Land and Environment Court

of New South Wales

CITATION:

Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1082

PARTIES:

APPLICANT
Citadel Property Group (Sutherland) Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10704 of 2008

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- multi-storey commercial and retail building, provisions of development control plan,traffic generation, site amalgamation, internal layout, floor space ratio.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Development Control Plan 2006

CASES CITED:

Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING:

4,5,6 and 11 February 2009

 
DATE OF JUDGMENT: 

17 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Robson barrister
Instructed by Salim Rutherford

RESPONDENT
Mr J. Cole, solicitor
of HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

17 March 2009

10704 of 2008 Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council

JUDGMENT

Introduction

1 This appeal relates to a development application for a multi-storey commercial and retail building at 686-696 Old Princes Highway and 31 Belmont Street, Sutherland. The building is to comprise six storeys above an eight level basement. The ground floor and the lower ground floor (first basement) are to be used for retail purposes including a supermarket; the first floor is to be utilised for service and loading; the second, third, fourth and fifth floors are to be utilised for commercial purposes and the remaining seven basements will provide 297 car parking spaces. Pedestrian access to the retail floors is to be off the old highway and access to the commercial floors is off Belmont Street. Access to the loading docks and the basement car parking areas is off Belmont Street. There is to be some 4,500 sq m of retail floor space and some 4,400 sq m of commercial floorspace.

2 The site has a northern frontage of 67.3 m to the Old Princes Highway and split eastern frontages (that exclude an existing unnamed lane that projects into the site) of 32.4 m and 15.54 m to Belmont Street. It has an area of 2,737.5 sq m.

3 Situated on the site are several retail/commercial buildings and a dwelling house. These buildings are to be demolished.

4 The site, located at the northern end of the commercial precinct of the Sutherland Town Centre, is within a small service commercial retail strip extending along the old highway between Belmont and Merton Streets and comprising service, retail and warehousing. Residential and commercial development extends from the southern boundary of the site to the south to Stapleton Avenue. Opposite the site in Belmont Street are dwelling houses and on the corner of Stapleton Avenue is the council's library.

5 For the reasons contained in this Judgment I have decided that the proposed development will be inconsistent with and will impede development in accordance with the DCP and on this basis the application should be refused.

Planning controls

6 The site is subject to the provisions of the Sutherland Shire Local Environmental Plan 2006. Under the LEP the site is mainly included in Zone 8-Urban Centre and partly in Zone 23-Road (the unnamed lane off Belmont Street). The proposed development is permissible with consent in Zone 8 but prohibited in Zone 23.

7 However, on 9 January 2009, the LEP was amended by Sutherland Shire Local Environmental Plan 2006 (Amendment 4). This amendment incorporated a savings provision (clause 58) into the LEP that has the effect that any changes that are relevantly applicable to this application should be treated as if they are contained in an exhibited draft LEP. Relevant changes include the rezoning of the unnamed lane off Belmont Street to Zone 8 and a new definition of gross floor area.

8 Clause 35 of the LEP deals with building density and subclause (11) sets a maximum floor space ratio of 3:1

9 Also applicable is the Sutherland Shire Development Control Plan 2006 that was also amended concurrently with the amendment to the LEP. Relevantly applicable provisions of the DCP include Chapters 1, 2, 3, 7 and 10 that variously deal with design principles, locality strategies, urban design, traffic and parking and advertising.

10 The application in its original and amended forms was advertised and a number of submissions, both supporting and objecting to the proposal, were received. Matters of concern to the objectors include:

• The considerable number of cars and trucks that will use this street to access the development will adversely affect the pedestrian friendly nature of Belmont Street.
• The additional traffic, including delivery trucks generated by this development will exacerbate the dangerous traffic conditions at the intersection of Belmont Street and the Old Princes Highway.
• The entrance to the loading dock is in appropriately located adjacent to the entrance to the basement car park.
• The noise generated by plant and equipment including delivery trucks operating at night will adversely affect nearby residential amenity.
• The provision of a supermarket in this location will result in the fragmentation of the Sutherland shopping centre notwithstanding that it would be of benefit to nearby residents.
• Parking demand in the locality is already very high and this development will exacerbate the present car parking deficiency.
• Retail land uses will be out of character with this non-retail area.

11 The residents who supported the proposal explained that:

• A supermarket in this location would be of benefit to the growing population of residents, including elderly residents who are unable to drive.
• The existing buildings are unattractive and need to be replaced.

12 The application has been considered by the council's Architectural Review Advisory Panel and its Traffic Committee. Whilst the panel was concerned about numerous minor design issues and clumsy elements that are capable of resolution there are also a number of more significant concerns including:

• The amount of floor space devoted to the internal movement of people within this building indicates that the site is not large enough for the intended use. This includes the fragmentation of the retail space that reduces the efficiency of the layout even though this may create a more interesting shopping experience if the building has less of an appearance of a warehouse.
• On the Belmont Street frontage there are services and utilities, which do not enliven the street. The entrance to the commercial foyer is understated.

13 According to the council's Statement of Facts and Contentions, and the following are, in essence, the matters in issue:

• The proposal is unacceptable having regard to the traffic generated by the proposed development, vehicular manoeuvring and insufficient provision for parking and poor design, taking into account relevantly applicable provisions of the LEP and the DCP.
• The proposal is unacceptable because the site has not been amalgamated with the adjoining property at 700-702 Old Princes Highway as required by the DCP.
• The proposal is unacceptable having regard to the design of the proposed development in terms of internal layout, streetscape, visual impacts and signage, taking into account the provisions of the DCP. Also the proposed development has an excessive building density reflected by the non-compliance with the maximum floor space ratio in the LEP.
• The proposed development fails to provide a laneway at the rear of the site consistent with the requirements of the DCP.
• The site is unsuitable for the proposed development taking into account the intensity of the retail use and associated multilevel basement car parking, site configuration and size.
• The proposed development will result in the loss of a significant canopy tree located on adjoining land to the south.
• The various matters raised by objectors and inadequacy of information.

The evidence

14 On behalf of the respondent council expert evidence was provided by Mr K. Nash - town planning and Mr C. McLaren - traffic and parking and behalf of the applicant by Mr M. Ball - town planning and Mr R Nettle - traffic and parking.

15 Having inspected the site and having considered this evidence I have decided that the issues in contention should be dealt with principally in terms of the applicable planning controls.

Floor space ratio

16 In their joint report Mr Nash and Mr Ball considered the floor space ratio question. The table accompanying that consideration provides two different sets of floor space ratio calculations, the first (and relevantly applicable floor space ratio) applying the gross floor area definition as contained in the LEP prior to Amendment 4, the second applying the gross floor area definition as introduced by Amendment 4. In each case Mr Ball's calculation indicates a floor space ratio of just under 3:1 revealing compliance with the applicable development standard. Mr Nash's calculation indicates floor space ratios of 7.53:1 (pre-Amendment 4 floor space ratio) and 3.77:1 (post-Amendment 4) thus exceeding the development standard.

17 The differences between them arise from their different interpretations of the definition of gross floor area and their application to this building. More particularly Mr Nash variously includes basement and lower ground floor, including certain below ground car parking and retail floorspace areas in the calculation that Mr Ball excludes. More particularly Mr Nash includes these levels because he says they comprise, within the meaning of gross floor area, a storey whereas Mr Ball says that they are not storeys but instead are basements.

18 Gross floor area is defined in the LEP's dictionary as follows:

Gross floor area means the sum of the floor area of each storey of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, excluding:
(a) the floor area of lift wells on any level and lift towers, motor rooms and stairwells within a basement or above the roof level, and
(b) so much of the floor area of car parking (including vehicular access to that parking), required to meet any requirements of the consent authority, as does not exceed:
(i) a total of 40 square metres in the case of a dwelling house, or
(ii) a total of 20 square metres per dwelling in the case of a dual occupancy, or
(iii) a total of 20 square metres per parking space in any other case, and
(c) storage areas needed to meet requirements of the consent authority, and
(d) plant rooms, garbage areas, switch rooms or the like within a basement.

19 By limiting gross floor area to the sum of the floor area of each storey of a building, any floor area that does not comprise a storey cannot be included in the floor space ratio calculation. Storey is defined in the LEP's dictionary as follows:

Storey means a space within a building situated between one floor level and the floor level above, or the ceiling or roof above, and includes the space within the following:
(a) foundation areas, garages, workshops, storerooms, basements and the like, whose external walls have a height of more than 1 metre, as measured from the ground level of the lowest point on the site,
(b) an attic within a residential building, but only if:
(i) the roof of the attic is pitched from more than 300mm above the floor of the attic or at an angle of more than 35 degrees, or
(ii) the area of the attic exceeds 60 percent of the floor space of the floor level below.

20 Plainly, the proposed basements comprise spaces within a building situated between one floor level and the floor level above, or the ceiling or roof above. However because the definition provides that such spaces include basements and the like, whose external walls have a height of more than 1 metre, as measured from the ground level of the lowest point on the site, I accept that basements that do not have a height of more than 1 m above ground level do not comprise a storey.

21 It is also relevant to consider the objectives of the floor space ratio development standard in clause 35 that are as follows:

(a to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality,
(c) to minimise the impact of buildings on the amenity of adjoining residential properties,
(d) to ensure, where possible, that non-residential buildings in residential zones are compatible with the scale and character of residential buildings on land in those zones.

22 Broadly speaking these objectives are concerned to ensure that the impact of the building, including its bulk and scale would not adversely impact upon the character and amenity of the surrounding area. In this regard I do not see how applying a floor space ratio to hidden basements is of any assistance in achieving these objectives.

23 Hence I accept Mr Ball's approach of excluding basements, (including the lower ground floor area) in his calculation of gross floor area and floor space ratio. Consequently no issue of non-compliance with floor space ratio arises.

The development control plan

24 It is now well established that in dealing with the merits of a development application the council and the Court have a wide-ranging discretion although that discretion is not unfettered. To this end, a properly prepared development control plan is to be considered as a "fundamental element" in or a "focal point" of the decision making process. (See Zhang v Canterbury City Council [2001] NSWCA 167). Of course this does not mean that failure to comply with the provisions of a development control plan means that a noncompliant development application must be refused. In this regard the circumstances of the case and the provisions of the development control plan can be considered together to determine the weight that should be attached to the development control plan.

25 Many development control plans contain provisions that are generally applicable however in this instance the DCP also contains very detailed controls that are specific and unique to various sites or locations. This is the case for the Sutherland Centre. In these circumstances the DCP should, in the public interest, attract considerable weight.

26 Relevantly applicable instances of general provisions can be found in Chapters 1 and 2 of the DCP. Detailed controls that are variously specific to the site of this development can be found in Chapters 2 and 3.

27 The general design principles in Chapter 1 require that new development should satisfy a number of principles including the reinforcement of streetscape character, compatible scale, a high level of internal amenity, adequate landscaping and open space. The public domain is to be enhanced and development is to have a high architectural quality.

28 Chapter 2 deals with local strategies and, being included in the Sutherland Centre there is a considerable concern for a high-quality public domain. Future development will include the introduction of a large-scale supermarket and discount department store as well as small-scale active retailers to create variety and vitality throughout the centre. The associated aims include the need to improve permeability and connectivity within the centre through an emphasis on the pedestrian environment.

29 The particular detailed controls including specific Projects in Chapter 2 and urban design provisions in Chapter 3 that are directly relevant to the site the subject of this application include:

• The proposed new public lane and superimposed pedestrian route.
• The site amalgamation requirements
• The eight-storey “U” shaped building envelope.
• The setback requirements
• The active and semi-active frontages.

30 In my opinion the particularity of these controls insofar as they apply to this site is such as to indicate that they should attract significant and determinative weight.

Site amalgamation

31 The urban design provisions in Chapter 3 deal with amalgamation and subdivision requirements that are intended to promote the efficient use of land consolidation of certain allotments that allow the development of built forms, which make a positive contribution to the spatial definition of streets as well as protecting the amenity of existing and future residents. The requirements are also intended to ensure that efficient and safe car park and vehicle entry points can be achieved whilst ensuring that there is no isolation or exclusion of land parcels.

32 The associated controls, inter alia provide for the amalgamation of land fronting the Old Pacific Highway between Belmont Street and Merton Street into two roughly equivalent parcels of land described as Sites 8a and 8b in the map series Amalgamation Requirements (see Maps12 and 12g/Map 9.7 - Building Envelopes). The DCP requires that the indicated amalgamation pattern be followed.

33 The subject site comprises the majority, but not all of amalgamation Site 8b (five lots) because it excludes 700-708 Old Princes Highway (the Jax Tyres site) hence it does not comply with the DCP. In this regard it is to be noted that whilst the Jax Tyres site is not included (nor does it include the unused lane off Belmont Street) the site does involve the consolidation of four separate lots (Lot 4 in DP 11650, lot B in DP 357178, Lot 31 in DP 535664 and Lot 6 in DP 11650).

34 However alternatives can be considered if certain assessment principles are addressed and, if an isolated site results, evidence is provided of offers made to the owner of that site for its incorporation into the development proposal. The assessment principles require that if a proposed development does not comply with the amalgamation requirement the following matters need to be considered:

• Does exclusion of the isolated parcel compromise achievement of a plan, objective or standard particularly a design requirement or feature, provision of public open space for pedestrian link?
• Does exclusion of the parcel compromise achievement of relevant planning strategy objective?
• Can these objectives or standards be achieved by modifying the amalgamation pattern?
• Is provision made, practically or in title, for vehicular access (including construction access) loading and unloading and the garbage servicing for the isolated site?

35 According to Mr Ball, the proposal is consistent with the amalgamation objectives taking into account that it will:

• Promote the efficient use of the site and surrounding properties and ensure that a range of development types (as permitted under SSLEP and desired under the DCP) are achievable.
• Will consolidate four of the five existing parcels in Site 8b.
• The proposed amalgamation will allow a built form making a positive contribution to the spatial definition of this corner site and create sufficient amenity for existing and future occupants.
• The efficient and safe parking and entry points are provided in the proposed design.
• The proposed amalgamation does not isolate the lot at No. 700-702 Old Princes Highway.
• No. 700-702 will remain available for amalgamation as part of Site 8a.

36 Mr Ball also considered the above-mentioned alternative amalgamation assessment principles essentially concluding that the objectives of the DCP would be met or at least not inhibited by the proposal's partial failure to achieve amalgamation. He also noted the applicant's unsuccessful attempts to acquire No. 700-702. Also, No. 700-702 can be part of the adjoining amalgamation Site 8a to achieve the aims of the DCP. Together, Sites 8a and 8b can both be physically developed in an orderly and economic manner. Hence the principles for an alternative amalgamation pattern are satisfied.

37 In response Mr Nash stressed the importance of the amalgamation pattern that was prepared in response to extensive public consultation and detailed strategic planning for the Sutherland Centre. Because the proposed building fails to respond to building envelope controls and setbacks (matters that are further discussed later in this judgment) applicable amalgamation objectives are not met. Of particular importance is the 18 m separation between the proposed built forms for Sites 8a and 8b. Because the proposed development provides for no set back from the western boundary this will severely limit future redevelopment opportunities for No. 700-702. Also, for the interrelated reasons involving the failure to provide the setbacks and the laneway as required by the DCP, the failure to fully amalgamate Site 8b the proposal would be contrary to the long-term efficient planning of the area. In this regard he did not accept that the process of communication with the owners of No. 700-702 was satisfactory such that a variation to the amalgamation pattern is justified.

38 Mr Nash also considered the possibility of incorporating No. 700-702 into Site 8a but this would be unsatisfactory because the built form outcome would result in a building 71 m long. This would defeat the building envelope controls and building massing outcomes of the DCP.

39 I accept that the applicant has made legitimate attempts to acquire No. 700-702 and that the proposed substantial amalgamation (four lots) does not necessarily isolate the lot because it could be amalgamated with the adjoining lands in site amalgamation 8a. However I have not been persuaded that the exclusion of this land would not compromise the achievement of the plan for this part of the Sutherland Centre as described by Map 9.7 in the DCP. More particularly I do not understand how the 18 m wide separation between the suggested built forms as shown on this map would be achieved, this being an important element of streetscape character. In this regard I note that the development as proposed, by being built to the boundary, would not make any contribution to an alternative 18 m separation. I also note Mr Nash's concern regarding the blank wall of the proposed building on the boundary between the site and No. 700-702.

The public lane and pedestrian route

40 Project 13 in Chapter 2 involves the provision of a 7 m wide public vehicular lane along the rear of the site between Belmont Street and Merton Street. This lane is to be created from land allocated as part of the development of amalgamated sites 8a and 8b (see Map 9.7 - Building Envelopes (Map12g)). The land for the lane is proposed to replace the above-mentioned unnamed lane and by extending it to the full length of sites 8a and 8b, improved safe access to these sites, as an alternative to using the Old Princes Highway is made possible. Map 9.7 also describes the lane as proposed public accessed space.

41 There is also a 2 m separation or set back between the public lane and the depicted building envelopes. The lane is also identified on Map 5 - Connectivity & the Public Domain (Map16) as a New or Improved Pedestrian Route. There is no provision in the planning controls for the acquisition of this land, which plainly is intended for public ownership.

42 Mr Nash explained that the proposed laneway is to be provided to facilitate the servicing of new development on each of amalgamation Sites 8a and 8b, away from the principal street frontages. If this development is approved the opportunity for such servicing will be denied to the disadvantage of Belmont Street and Old Princes Highway where active street frontages are to be encouraged and vehicular access for car parking and loading is discouraged. By failing to provide the laneway, this development provides all of its vehicular servicing off Belmont Street to the disadvantage of the streetscape. Also the redevelopment of No. 700-702 would be required to be serviced of Old Princes Highway contrary to the requirements of the DCP. He also pointed out that there is now no obstacle to the inclusion of this unused laneway into the site, which would provide the design benefit of a more regular shaped development site.

43 According to Mr Ball a 7 m wide public lane would be too narrow to meet the council's DCP requirements for the lowest order public road reservation of 14.5 m with a carriageway of 7.5 m. Hence it would be difficult to provide a vehicular carriageway and a pedestrian route within the indicated width. Whilst he accepts that such a laneway would-be for a valid planning purpose it does not fairly and reasonably relate to the proposal. This is because the proposal does not require it nor would it obtain any benefit in terms of vehicular access. Also whilst such a lane would provide a beneficial pedestrian route, as a vehicular route it would cause significant impacts on the adjoining commercial development to the south of the site.

44 Mr Ball also explained that should this development proceed as proposed, a laneway beside Site 8a ending in a cul-de-sac could provide access to that site and to the Jax Tyres site.

45 Whilst I understand Mr Ball's concerns regarding the width of the proposed lane, I expect that these concerns could be resolved in a detailed design (that might for example involve one-way traffic) that could be developed in conjunction with a different design for the site. Despite there being no provisions in the planning controls for the acquisition of lands such as this I expect that this could be resolved by sensible negotiations between the parties. This could perhaps include a land swap with the unused lane that, as explained by Mr Nash, would provide the benefit of a more regular shaped site that, in turn would facilitate simpler more efficient floor layouts.

46 In my opinion the failure to provide for the lane as required by the DCP is a significant flaw in the development.

The building envelope and setback requirements

47 Chapter 3 also deals with street setbacks and these are relevantly indicated on Map 9.7. The objectives of setbacks include the provision of visual and acoustic privacy as well as reinforcing the desired spatial character of an area in terms of openness and density. Side and rear setbacks indicated on Map 9.7 are: 5 m from the Old Princes Highway; 9 m (ie 18/2m) from the proposed boundary between amalgamation Sites 8a and 8b; and 2 m from the proposed public lane. Map 9.7 also indicates a proposed single-storey building envelope consistent with these setbacks but with an eight storey “U” shaped envelope above the ground floor that opens onto the proposed lane at the rear.

48 According to Mr Nash the proposed development ignores the building envelope requirement. It also ignores the setback requirements from the proposed lane. It also ignores the setback requirement from the proposed boundary between amalgamation Sites 8a and 8b with a consequence that the proposed 18 m separation between the proposed building envelopes on these sites will be difficult to achieve. Also problematical is the proposed western wall of the building that need not be blank if it were to have an appropriate set back. Mr Ball disagreed with Mr Nash. He explained that the proposal appropriately defines the boundaries of the site and relates to its corner position.

49 In terms of streetscape generally, I accept that the proposed building would, when viewed from Old Princes Highway and Belmont Street, be largely responsive to the building envelope as depicted in Map 9.7, notwithstanding that the proposed separation between the building and the neighbouring Kirkby House to the south would not achieve the separation and openness that would result if the proposed lane were to be provided. Despite this I agree with Mr Nash regarding the absence of a setback on the western boundary of the site. This severely limits any opportunity to provide any substantive architectural interest.

50 Of relevance to the proposal is Map 13 - Active Frontages (Map 18). The frontage of the site to the Old Princes Highway is depicted as an Active Frontage - Retail/Commercial where:

• Active frontages are characterised by visually and physically accessible shopfronts and commercial areas. Doors and windows provide for a direct link to the activities within.
• The site's Belmont Street frontage is depicted as a Semi Active Frontage where:
• Semi Active Frontages are characterised only by their visually and accessible shopfronts and commercial areas. Generally the shopfront windows provide for the visual link to the activities within.

51 Mr Nash was concerned that the proposal does not satisfy the DCP requirements for active frontages in respect of both of the site's frontages. In this regard he was concerned that the proposed design is problematical because the Old Princes Highway facade is dominated by utilities and services with only one point of pedestrian access to the retail area. Similarly the Belmont Street facade is dominated by driveways with access to loading and parking with a narrow point of entry to the commercial foyer and a glass facade adjacent to the travelators within. The solid corner element and the substation at the north-eastern corner of the building contribute to this problem.

52 Mr Ball disagreed pointing to the extent (I estimate less than two thirds) of the active (glazed/transparent) retail frontage for the Old Princes Highway. As for Belmont Street where a semi-active frontage is required, people using the travelators will be visible through the glazing. This frontage is further activated by their existence of the entry to the commercial floors.

53 The concept of active frontages is made clear by the reference in the DCP to the provision of doors and shop front windows that provide a visual link between the street and the activities within the building. Plainly, visual links are provided and whilst it would be unreasonable to require that the entirety of the building's frontages be transparent, I am inclined to agree with Mr Nash that the extent to which this is provided is insufficient.

Building layout including car parking

54 Mr Nash says that the layout of the two levels of the supermarket is severely compromised by the penetration of the two travelators and by the configuration of the site through the exclusion of the existing laneway and the access driveways to basement car parking and the first floor loading area. Pedestrian access from the basement levels is inadequate.

55 Mr Ball says that because the retail parking is at the upper two basement levels, which are accessible by travelator and that generally one lift to the other floors is adequate. As for concerns that the supermarket extends over two levels he said that the proposed operator was satisfied with this arrangement pointed to other examples of two level supermarkets.

56 Mr Nash says that because there is no obstacle to its inclusion in the site, the incorporation of the unnamed laneway would result in a more regular shaped site resulting in better site planning and an opportunity to enable a new laneway as proposed by the DCP. Similarly, whilst Mr Neville thought the vehicle manoeuvring arrangements in the basement would be satisfactory Mr McLaren disagreed, expressing concerns about convenience for retail users and the inefficient/inconvenient car-parking layout.

57 In relation to these concerns I generally agree with Mr Nash and Mr McLaren. Whilst, none of these matters is fatal to the application they nevertheless contribute to the unacceptability of this development. Of particular significance are the awkward floor plans particularly at the lower levels that could have been better designed had the unused lane been incorporated into the site.

Traffic

58 Having decided that the application should be refused it is unnecessary for me to consider traffic consequences in any detail. It is nevertheless clear that main concern involves traffic volumes in Belmont Street and the effect that these would have on the amenity of that Street. If I understand his evidence correctly Mr McLaren's concerns arise as a result of the size of the supermarket in this development.

59 As a means of resolving this issue the applicant suggested that exiting traffic be limited to left turn only. I expect that this would be correct although the consequences of channelling all exiting traffic into Belmont Street and which would then be required to turn left into Old Princes Highway and proceed in a westerly direction needs to be further analysed.

Conclusion

60 In my opinion there can be little doubt that, taking into account the range of land uses permissible in this zone that a commercial building of approximately this size can be anticipated on this corner of Old Princes Highway and Belmont Street. I also accept that, taking into account the retailing component of the Sutherland Centre strategy that anticipates a large-scale supermarket, conceptually a supermarket would be appropriate here. Whilst I recognize that this is a major retail/commercial development that would make a significant economic and social contribution to the Sutherland centre, this is not enough to overcome the legitimate concerns raised by the council, especially in relation to the requirements of the DCP.

61 In my opinion, the proposed development fails to sufficiently recognise the significance of the provisions of the DCP and give them appropriate weight and should, for the reasons contained in this judgment, be refused.

62 The orders of the Court are therefore:

1. The appeal is dismissed.
2. The development application (DA 08/0238) for a multi-storey commercial and retail building at 686-696 Old Princes Highway and 31 Belmont Street, Sutherland is determined by the refusal of the application.
3. Exhibit A is retained.

________________
T A Bly
Commissioner of the Court