Crown Property Holdings Pty Ltd v Campelltown City Council and George Thomas Hotels (Bradbury) Pty Ltd

[2009] NSWLEC 1170

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Crown Property Holdings Pty Ltd v Campelltown City Council and George Thomas Hotels (Bradbury) Pty Ltd [2009] NSWLEC 1170

PARTIES:
APPLICANT
Crown Property Holdings Pty Ltd

1st RESPONDENT
Campelltown City Council

2nd RESPONDENT
George Thomas Hotels (Bradbury) Pty Ltd

FILE NUMBER(S):
11195 of 2008

CATCHWORDS:
DEEMED REFUSAL :-  to erect a boundary fence and some fixed and some removable bollards, shared use of carpark, traffic, parking, access, security, property management

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Campbelltown (Urban Area) Local Environmental Plan, 2002

CORAM:
Hoffman AC

DATES OF HEARING:
18-19 March 2009, 26-27 March 2009, 16-17 April 2009 and 13 May 2009

JUDGMENT DATE:
29 May 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr T Robertson (SC)
SOLICITOR
Maddocks Lawyers

1st RESPONDENT
Mr A. Seton (solicitor)
SOLICITOR
Marsdens Law Group

2nd RESPONDENT
Mr P Clay (barrister)
SOLICITOR
Bruce Stewart Dimarco Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman AC

29 May 2009.

11195 of 2008                   Crown Property Holdings Pty Ltd v Campelltown City Council and George Thomas Hotels (Bradbury) Pty Ltd

JUDGMENT

1. Commissioner:  This is a Class 1 appeal over the deemed refusal of an application to erect a boundary fence and some fixed and some removable bollards at the Bradbury Shopping Centre, The Parkway and Jacaranda Ave, Bradbury.  The formal address is 69 Jacaranda Ave, Lot 100 DP 618391.

Background

1. A brief history of the site is that it and adjoining properties were originally part of a Lend Lease development in the late 1960’s that established the Bradbury residential area and the shopping centre. 

1. Originally on a single lot were proposed what are now separate properties being the existing hotel and its carpark, the shopping centre with a 200 car carpark, a community hall, and a church school and commercial offices.

1. The original concept envisaged that the same area would contain health facilities, tennis & squash courts, medium density residential, service station and other commercial purposes.  These latter uses were not built.  A large public school was constructed on neighbouring land to the south of the shopping center.  Some medium density flats were built on adjacent land to the north of the hotel and the community hall.

1. Fairly soon after the initial development, in 1970 to be exact, the council approved a subdivision to put the hotel on a separate lot.  And between 1973 and 1975 the other present day uses received their own lots by subdivision, such that the shopping centre and its 200 car carpark had their own separate lot.  It has an access driveway and a pedestrian access off Jacaranda either side of the church school, and a wide frontage and two driveways off The Parkway.

1. The consent for the hotel that was proposed by Civil and Civic Pty Limited included an 85 car carpark on the hotel lot.  It said in part that although the hotel had its own access driveways off The Parkway, the existing arrangement that enabled access through the shopping centre carpark from Jacaranda would remain, and the shopping centre carpark would still have its own 200 car spaces.

1. The council granted consent to the hotel with a condition that it have access to the shopping centre carpark in addition to its on-site parking, even though at the time of subdivision it had not required any easements or Rights of Way across the shops’ carpark in favour of the hotel to give legal status to:

   the use of the shops’ carspaces, or
   the driveway from Jacaranda, or
   another opening in the shops boundary garden that allows vehicles to drive between the shops and the hotel.

2. In addition to this, the council had granted the subdivisions for the community hall and the church school that also had access off the shops’ carpark, and did not require any easements or Rights of Way in favour of them to give legal status to that access.  The school has carparks on its site, but to get to them one drives through the shops’ carpark.

1. The community hall has no carparking of its own, and its front entry faces the shops’ carpark.  The community hall does have land that fronts Jacaranda on which a separate carpark and road access could be built, but that land is currently leased as a playground to the church school.

The proposal

1. Development Application No. 1042/2008 seeks consent for the erection of boundary swim-pool type fencing, alongside the northern property boundary of the 'Bradbury Shopping Centre' site, adjacent to the Bradbury Inn. The proposal also includes three sets of moveable bollards with chains, at the vehicular access points to the site, to enable the after hours closure of the site to vehicular traffic.  Bollards and the fence were also proposed at the connection driveways between the hotel and the shops carparks.

1. At the commencement of the hearing the applicant sought to amend the plan of the fences to include some additional bollards at the side of entry driveways to prevent vehicles using the footpaths to enter the carpark.  It also provided a turning bay adjacent the community centre, and wheel stops in carspaces adjacent the fence to prevent cars hitting the fence or vegetation in the garden strips.  In places the fence was moved off the boundary to avoid trees.  Pedestrian gates were included to enable pedestrian access:

   from the carpark to the community centre,
   from the shops carpark to the hotel carpark in two places where vehicle access now exists, and
   an extra gate adjoining the school building.

2. The proposal is to close the pedestrian gates and raise the bollards in the driveways or put a chain across from 9.30pm to 7am the next day.

1. The amended plan was considered and I found it to be substantially the same as the original plan with changes that could have been done by condition of any consent, and therefore the changes are minor and s 97B(2) of the Environmental Planning & Assessment Act 1979 does not apply.

   The Contentions of the 1st Respondent, Campbelltown City Council

   1.The proposed development should be refused as it will compromise the orderly and economic operation of the Bradbury Neighbourhood Centre and community precinct.

   PARTICULARS

   (a) The proposed fence, bollards and chain barriers will restrict the long standing free flowing access of vehicles and pedestrians into and throughout the Bradbury Neighbourhood Centre Precinct and specifically to the Bradbury Inn Hotel and Bradbury Community Centre via the Bradbury Shopping Centre off-street car parking area and via Jacaranda Avenue.

   (b) Visitors to the Bradbury Community Centre arriving by vehicle and on foot are currently dependent upon formed vehicular access via the Bradbury Shopping Centre off-street car parking area. Visitors arriving by vehicle utilise car parking available within the shopping centre off-street car parking area, as no car parking is provided on the Community Centre land.

   (c) Pedestrian gates (proposed to be installed as part of the fence) linking the shopping centre car park and the community centre will be closed during hours when the shopping centre is closed. Consequently, access to the Community Centre via the shopping centre car park will not be available during that time.

   (d) Existing vehicular and pedestrian access between the Bradbury Shopping Centre and Bradbury Inn Hotel properties (off-street car parking areas) will no longer be available as the proposed fence will act as a barrier between the two off-street car parking areas. Consequently, patrons driving to the hotel will not be able to directly access the Bradbury Inn Hotel off-street car parking area via Jacaranda Avenue. Further, the closure of pedestrian gates (to be constructed as part of the fence) separating the Bradbury Inn Hotel site from the shopping centre site (effectively the two off-street car parking areas) at times when the shopping centre is closed, will result in patrons of the hotel not being able to access their vehicles during those hours if they had been parked on the shopping centre off-street car parking area.

   (e) These access arrangements are contrary to long standing vehicle and pedestrian movement patterns within the Bradbury Neighbourhood Centre Precinct and would not appropriately recognise a degree of development interoperability that currently exists for the convenience of the community and the economic well-being of the whole of the neighbourhood centre.

   2. The proposed development should be refused as it will result in the adjoining and existing hotel development being unable to satisfy conditions of development consent relating to the provision of car parking previously issued in respect of the hotel.

   PARTICULARS

   (a) The off-street car parking area located on the subject site and the off-street car parking area located on the land upon which the Bradbury Inn Hotel stands operates conjointly with driveway connections between the two sites with little physical restriction to pedestrian access throughout.

   (b) The original Development Consent issued on 11 March 1970 for the Bradbury Inn Hotel required by way of Condition (b) the following:

   "off-street parking of the adjoining shopping centre be available at all times to patrons of the hotel and a total car spaces of 217 (200 for the hotel and 17 for the existing shops in accordance with Council's Code) are to be constructed prior to the completion of the hotel."

   (c) At the time this Development Consent was issued, both the subject site and the Bradbury Inn Hotel site were located on one parcel of land. Following a subsequent subdivision, the two sites were sold to separate parties and are now under separate ownership, without any formal agreement to accommodate the parking and access arrangements currently and physically shared between the two sites.

   (d) The proposed fence will restrict access to the shopping centre off-street car parking area by vehicles of patrons of the hotel and accordingly, the hotel would not be able to comply with Condition (b) of the Development Consent issued on 11 March 1970.

   3. The proposed development should be refused as it will restrict pedestrian access and result in car parking spaces being made unavailable to the existing adjoining Bradbury Community Centre development.

   PARTICULARS

   (a) Car Parking is not available on the same site upon which the Bradbury Community Centre stands. Visitors to the community centre have for many years continued to rely on off-street car parking provided within the shopping centre car parking area, which adjoins the community centre building. The proposed fence will result in no car parking spaces being available in the immediate vicinity of the community centre (i.e. within the off-street shopping centre car park) at times when the shopping centre is closed.

   (b) The erection of the proposed fence (and pedestrian gate to be constructed as part thereof) will prevent pedestrian access to the community centre which is currently via a sealed driveway accessed through the shopping centre car parking area, in that the pedestrian gate is proposed to be closed at times when the shopping centre is closed.

   4.The proposed development is considered to be contrary to the public interest .

   PARTICULARS

   (a) The proposed development will:

   i.      Compromise the orderly and economic operation of the Bradbury Neighbourhood Centre Precinct, and

   ii.      Is not in the public interest in so far as it will limit and reduce the availability of access to parking for patrons of the Bradbury Inn Hotel (thereby placing the hotel development in breach of its development consent) and the Bradbury Community Centre.

   The Contentions of the 2nd Respondent, George Thomas Hotels (Bradbury) Pty Ltd.

   The first four issues raises by the 2nd Respondent are the same as those raised by the 1st Respondent.  Issues 5 and 6 and 7 are as follows:

   5.The proposed development should be refused as it would result in on-street car parking within close proximity of existing residences.

   PARTICULARS

   (a)The proposal will restrict the ability of hotel patrons and community centre patrons to access the available car parking within the shopping centre and thus result in those patrons parking along Jacaranda Avenue and the Parkway within close proximity to existing residences which will result in a loss of amenity to those persons.

   (b)No traffic and parking study has been provided to justify the impact of the proposal on adjoining development and the surrounding area.

   6.The development should be refused because it will introduce additional vehicle/vehicle and vehicle/pedestrian conflicts on the adjacent public road network.

   PARTICULARS

   (a)persons who have parked on the shopping centre land wishing to access the bottle shop on the hotel land must turn right into The Parkway from the shopping centre and then turn right into the hotel site from The Parkway.

   (i)both of these right turning manoeuvres introduce conflicts with other vehicles travelling along The Parkway, and

   (ii)     both of these right turn movements introduce conflicts with pedestrians walking along the footpath located on the eastern side of The Parkway.

   (b)Persons who have parked on the hotel land wishing to travel to residential premises located to the east of Jacaranda Avenue must turn right or left into The Parkway and negotiate additional intersections in either Campbellfield Avenue or St Johns Road to reach their destination.

   (c)All of these vehicle/vehicle and vehicle/pedestrian conflicts are additional and unnecessary, and arise because the interoperability intended by the original design layout of the local neighbourhood precinct (with car parking and access driveways shared by several facilities) would be disrupted by the proposed barriers.

   7.   The proposed development should be refused as it is unreasonable and unnecessary as inadequate information has been provided to justify the need for it.

   PARTICULARS

   (a)inadequate information has been provided by the applicant to justify the need for the proposal

   (b)Taking into account the likely impact of the proposal and the lack of a report on existing security and safety issues to demonstrate the need for the proposal the application should be refused.

The statutory controls:

1. Campbelltown (Urban Area) Local Environmental Plan, 2002

   Zone: 10(c) - Local Comprehensive Centre

   Use: The fence and the bollards are permissible with consent (ancillary to approved shopping centre site)

2. It is a matter of fact, not contested by the parties that the zoning prohibits hotels on the shopping centre site.

The Evidence and Findings

1. The 1st respondent’s evidence was heard from Mr M J Brown town planner.

1. The 2nd respondent’s evidence was heard from Mr J Lidis, town planner; Mr R Varga traffic engineer; Mr D Scicluna general manager of Thomas Hotels.

1. The applicant’s evidence was heard from Ms J A Connor town planner; Mr M A Brechney real estate agent and property manager for the Bradbury shopping centre;  Mr A Maldonado contract cleaner of the Bradbury shopping centre who works there late at night; Mr T Rogers traffic engineer; Mr B Johnson owner of CPS Security the contractor for the shopping centre.  Some objectors were also heard on site, their concerns were mainly about retaining ability to access the hotel from Jacaranda Ave.

1. Mr Maldonado is on on-site most nights 2am - 4am.  He said the sort of vandalism he has to repair is graffiti, smashed mirrors in the toilets, damaged partitions, trolley stands bent, signs pulled down, broken bottles, vomit, litter, urination and items or garbage dumped near the skip bins.  He sees groups 4 to 7 persons “hanging out” in the carparks, cars using it as a short cut from Jacaranda to The Parkway.  Syringes and pill packets are amongst the litter.  Most late night arrivals in the carpark are in vehicles, some walk.  He has seen people obviously intoxicated come from the hotel and get into cars in the shops carpark.  He sees people parking in the shops carpark and go to the pub.  He has done a course in the responsible service of alcohol so he can assess if persons are intoxicated.

1. Mr Johnson personally does late night patrols of the centre every second weekend and would be on-site about 4 times a night.  He attested to seeing hotel patrons in the carpark some stumbling, some obviously drunk, some getting into cars having difficulty inserting keys in the car locks, some elderly with mobility problems.  He also saw groups of young people some with cars using the carpark as a meeting place to “hang out” late at night, drinking in the group and dropping litter.  He had furnished incident reports on the matters he was briefed to report.  He said he had seen people ripping out plants in the gardens, urinating in the gardens, and until the garbage area was secured even fridges had been dumped there.

1. Mr Scicluna said the hotel staff were trained in responsible service of alchohol, but said groups of young people had been seen by his staff in the shops carpark drinking and littering.  He doubted they would have obtained liquor glasses or bottles from the hotel, although he stated “hotel patrons devise cunning means to defy this requirement”.  The hotel security staff did patrol the area to assist in limiting vandalism etc.  As recently as 21 March 2009, his staff had broken up a fight outside a function at the community center and called the police.  Also the serving staff are trained not to serve intoxicated persons so such persons in the carpark may not have come from the hotel.  Mr Scicluna had photos of shopping centre gates and rubbish bin areas open late at night when they were supposed to be locked.

1. By the end of the hearing several of the issues were resolved to the 1st respondent’s satisfaction by the provision of the pedestrian gates in the fence and the 24 hour pedestrian access through the shops carpark from The Parkway to Jacaranda Ave.  The applicant accepted the council’s condition that the existing southern fence of the community centre be removed and its east and west fences be extended southwards to connect with the proposed carpark fence on the common boundary.  The applicant also accepted a condition that part of the fence adjoining the school building be removed.  This is to avoid the creation of a “trap” if a person is being pursued from Jacaranda Ave into the community hall property.

1. The dispute remaining between the first respondent and the applicant was the prevention of shared use of the carpark and the time of locking the gates and the raising of the driveway bollards or their chains.  The applicant said 9.30pm, the 1st respondent wanted 10.30pm.

1. The applicant’s reason is that the main part of the shopping centre closes at 9pm and they have security personnel there to lock up as customers leave, and the last job security do is to lock the gates and raise the bollards and chains.  To do that at 10.30pm means a second visit by the security or remaining on site for a much longer period.

2. The 1st respondent’s concern is that it has granted consent to a shop in the development to open up to 10.30pm and another shop has no time limit and the community centre has functions until 10.30pm.

1. The applicant said that it had been sued over an incident on its carpark by a woman attending the community centre.  The use of the carpark by others is a fundamental matter of security and insurance for the applicant.

1. In the case of the community centre no development or building consent has been found for it.

1. The 2nd respondent’s concern is that it has a condition of its original consent a requirement for access to the 200 carspaces of the shops.  The original development included two openings in the common boundary garden beds that allow vehicles to move between the hotel and the shops carparks. 

1. But the evidence of the applicant is clear that at the time of granting the consent for the hotel it was for the allotment the hotel stands on, not the previous allotment that embraced the whole precinct.  In any case the hotel was quickly sold off to a Toohey’s brewery entity.

1. The evidence was that a later consent for extension to the hotel fixed the number of hotel on-site carspaces at 102.  A small lot adjacent the community hall was added to the hotel carpark to enable this number.  The hotel is not large, one cannot conceive it ever needed the shops carpark for its operation even if it was a condition of original consent.  In my opinion the subsequent six (6) development consents for alterations and additions to the hotel that included consideration of carparking needs have superseded the original.

1. In any case a calculation of the hotel requirement under Campbelltown Sustainable City DCP 2007 shows 96 car spaces currently needed.  Since the original consent 30-odd years ago there has been Random breath Testing, longer hotel opening hours that spreads the patrons numbers out, public transport, the hotel has a shuttle bus for the local area, and groups of patrons select a designated driver, so except for special events such as grand final sports or New Year’s it is unlikely overflow of the hotel carpark would occur.

1. The evidence shows that in the concept of the precinct in the 1960’s there was an element of all the existing uses in the precinct and some other uses forming a “town centre” and having the efficiency of all using the same carpark.  It was and would still be a good planning concept for a new suburban centre. 

1. However, the council must have consciously or implicitly abandoned the concept when it granted subdivisions so soon after Lend Lease built the first stage of development, and the subdivisions had no provisions for Rights of Way or easements for adjoining properties to use the shops carpark.  There are easements for utility services across the shops carpark, but not otherwise.

1. Another possibility, if council had not consciously or implicitly abandoned the “town centre” concept, would have been for the council to require dedication of the carpark as a public carpark at the time of granting subdivision, or purchasing it from Lend Lease.  Another option could have been a s.88B instrument in title to require licences be given to adjoining allotments to allow parking on the shops carpark.  None of these things occurred.  And since that time, a number of development consents for works on the shopping centre have been granted, and there were never any conditions about adjoining properties having access to the shops carpark, except for the hotel in its original consent.  It is my opinion that the condition in the original consent for the hotel to have access to the shops carpark is unenforceable on the applicant, and it does not stand up to any test of being reasonable and is irrelevant now.

2. As for pedestrians, they can still walk through the shops carpark 24 hours a day by going out the hotel entrance to The Parkway and walking through the bollards to Jacaranda Ave.

1. The shops carpark still has 48 more spaces than it needs for its floorspace under the current carparking requirements so there is no shortage of on-site carparking on either the shops or hotel carpark that would require sharing.

1. The hotel still wants to have vehicle access through the shops carpark and the ability for its customers to park there whenever the hotel is open.  Some nights of the week it opens until 3 or 4am and its licence is for 24 hour operation.

1. The applicant says it is content with hotel patrons using the shops carpark when that carpark is open.  The pedestrian gates will enable access between the shops and hotel.  However its witnesses told the Hearing of occasions that hotel patrons have been seen obviously intoxicated in the carpark, sometimes littering or ill, getting into cars etc.  It is an insurance and a security liability that the applicant currently bears to the benefit of the hotel. 

1. The other reasons and probably the more important is to restrict access to the shops carpark by persons in vehicles who currently cause vandalism, littering, potentially break and enter, and ram raids.  Although there has not been a ram raid for two (2) years it has occurred in the past, and there have been major break and enter crimes in the past 2 years that required vehicles on site to carry the stolen goods away. 

1. The applicant has carried out a refurbishing of the shopping centre in 2006 and an upgrade of security with after-hours security gates and bollards on the buildings.  But this has not stopped the vandalism and the littering or the late night use of the carpark that the applicant now wishes to prevent.  The applicant’s witnesses say that observation of these things has shown that the persons involved usually arrive by a vehicle.

1. It is not possible to exclude that anti-social behaviour without also excluding hotel patrons’ cars.  There will be signs erected to inform drivers of the opening hours of the carpark, and telephone numbers to call if a car is locked in.

1. The applicant already has a licence agreement with the church for access to its carparks.  Although the church normally does not need night time access the applicant will make appropriate arrangements on those occasions.

1. The applicant says it does not intend to exclude community centre users from getting access via the carpark, and the gate in the fence opposite the main entrance of the hall shows that.  However, once again it is not possible to exclude cars from the shops carpark after 9.30pm without also excluding community hall patrons cars. 

1. The applicant had obtained a list of functions for which the hall is used and found that it is perhaps only one night a month that it is used beyond 9.30pm.  The applicant says it would be willing to enter into a suitable licence agreement with the council for vehicle access.  If that does not suit the council then it has the option of using the community centre land that fronts Jacaranda Ave to get vehicle access and parking of its own, or kerbside on Jacaranda Avenue.

2. In the case of the hotel, as I have mentioned before, there have been six (6) subsequent consents for works on the hotel that all considered carparking including re-arrangements and numbers, the latest fixing the hotels needs in toto at 102 spaces on-site, and the hotel site has that capacity even if it has not been constructed to quite that number.

1. One matter the hotel raises is that the current arrangement enables its patrons to leave by other routes than the hotels northern driveway onto The Parkway.  The hotel closes this northern driveway late at night to protect the nearby flats from traffic noise.  However the hotel still has its southern driveway by which patrons can leave, even if minor changes to linemarking are needed for guidance of drivers.  The southern hotel driveway is next to the shops carpark, and the west side of The Parkway opposite the hotel is all parkland, so at least those areas do not give rise to nuisance to residents from late night vehicles.

1. It occurs to me also that late at night due to the closure of the shopping centre, and the absence of development on the parkland opposite, there would be ample on street parking away from any residential area, and close to the hotel, on the few occasions per year when its own parking may be insufficient.

1. The traffic engineers agreed that the existing unrestricted access to parking between the hotel and the shops may have some benefits to traffic movement compared to the proposal.  But the only potential traffic issue in this appeal is that the closure of vehicle access between the two carparks may increase the number of turning movements in and out of their driveways when a driver wants to move a car from one to the other for some reason.  This means more activity on The Parkway. 

1. However it cannot be said any of the driveways lack safe sight distances or have geometry or have traffic volumes that would make turning movements unsafe for vehicles or pedestrians provided the driver is competent.  Also the walking distance between the shops and the hotel is only 35-40m from the nearest shops covered walkway to the bottleshop entry.  That route will still be open to pedestrians during the shops trading hours and up to 9.30pm and may be unlikely to cause drivers to move their parking spot unless they intend to stay at the hotel for some time.

1. Mr Varga was concerned that the extra traffic on The Parkway may encounter conflicts at the intersections with Camberfield Ave and St John’s Rd for vehicles travelling to and from houses east of the site.  However there was no expert evidence from accident statistics or traffic volumes to justify such a conclusion, and Mr Rogers said the intersections and roads appeared to be quite wide suburban roads with good sight lines.

1. Mr Varga also had concerns about on-street parking but there was no survey of parking demand to justify that concern, or any record from the hotel manager Mr Nellies who was not called.  There is only the expectation that on a few special days per year there may be more than the hotel carpark can hold.

1. The 2nd respondent tendered Exhibit 2R7 showing the driveway from Jacaranda Ave remaining open with bollards guiding drivers past the community hall and into the hotel carpark.  It submitted that the bollards preventing access to the main shops carpark off the Jacaranda driveway and The Parkway driveways be erected at midnight and that could be co-ordinated with the second visit to the site by security personnel.  The driveway from Jacaranda past the hall and into the hotel carpark would remain open 24 hours.

1. The applicant said that all this did was to create a “rat run” through its carpark 24 hours a day plus uncontrolled use of the carspaces adjacent the community hall with all the attendant security and insurance and maintenance liabilities.

1. Also if the shops main carpark remains open to midnight after the shops are closed, and it is used by others, that increases the same liabilities for the applicant. 

1. Drivers who might be at the hotel and find their car locked in after midnight may be much unhappier and find it much less convenient obtaining release of their cars in the early hours of the morning, than at 9.30pm.  Also it means the carpark is open to other vehicle borne persons between 9.30pm and midnight that the applicant is seeking to exclude for the reasons already given.

1. The planning reasons for the fence and bollards are:

   To limit the use of the carpark to the purpose for which it was approved viz. a carpark for the shops.
   To demarcate the land use zone boundary where the subject site does not permit a hotel use.
   To create a visible line to prevent potential social impacts such that parents at the shops can say to their kids “Don’t go past the fence” because the hotel is not permitted to have unescorted minors.  This could also apply to functions at the community centre when minors are present.
   To prevent the traffic “rat run” through the site especially late at night.
   To prevent drivers and discourage hotel patrons in the carpark late at night who may be intoxicated and represent a risk to themselves and others and a liability to the applicant as previously mentioned.
   To identify the carpark as private land and not a council public carpark as some currently perceive it.
   The security systems of gates and bollards on the buildings and CCTV approved in 2006 have had some success, and this proposal is an attempt to further reduce the incidence of theft, vandalism etc at the shopping centre.  It will make it easier to control for security staff.

Final Conclusions

1. In reaching a final conclusion on this appeal I have formed the opinion that Issues 1 and 3 have some weight in that there will be less convenience for shoppers and hotel and community centre patrons due to the exclusion of direct vehicle access between the hotel and the shops carpark, and for community centre functions that go after 9.30pm. 

2. Whilst the Chinese takeaway in the shopping center is approved to trade until 10.30pm and the video shop has unlimited trading hours, they are tenants of the applicant, and have not raised an objection to the proposal, so presumably their actual trading hours will fit into the 9.30pm closure.

1. However the inconvenience of closing the shops carpark at 9.30pm is not sufficient to justify refusal of the fence given the pedestrian access provided by the gates during shopping hours and by the bollards during 24 hours a day and due to the ample provision of parking on-site at the hotel and kerbside in The Parkway where there are few adjacent residences.  In Jacaranda Ave there is kerbside parking directly outside the hall and church/school and commercial offices that could be used for the few occasions the community hall is used after 9.30pm.

1. The applicant has reasonable cause to require fencing of its property for insurance liability and for security and the protection of its tenants, the minimising of graffiti, littering, cleaning and vandalism and loitering and for improved management of the site.  I accept that any reference to site access remaining as existing in the 2006 development application for the shops refurbishing is a reference to street accesses only of the shops not the driveways between the hotel and shops carparks.

1. In regard to Issue 2, I have given my reasons above for having the opinion that the original consent for the hotel requiring access to the shops carpark is irrelevant to this application and is probably unenforceable on the hotel, and unjustified given the amount of carparking provided on the hotel’s own land.

1. In regard to Issue 4 it is my opinion that with the exception of the community hall, the shops and the hotel have ample on-site carparking for their individual requirements and any impacts of their use has been considered either in this appeal or at the time of council approving the many consents for the hotel and the shops since the 1970’s

1. The concept of an integrated ‘town centre’ for the precinct as a public interest matter was abandoned either consciously or implicitly as far back as 1970, and the ownership pattern currently prevents its complete revival. 

1. The location of the existing uses in the precinct, close to each other, do constitute a neighborhood centre, but not an integrated development.  The applicant has indicated its preparedness to enter into licence agreements for use of the carpark by others subject to appropriate conditions, and therefore the community hall can have vehicle access after 9.30pm when it is necessary approximately once a month currently.  Otherwise the hall can use its own land for parking or Jacaranda Ave.  The church/school has access arrangements with the applicant.  The public school has a pedestrian gate into the shops for convenience of parents and kids.  So there is a flexibility in access arrangements into and through the shops site that can serve the community interest of interoperability of the precinct while protecting the rights of private property.

2. I note that although the council has raised concern for the community hall, there is no objection to the fence raised by whatever committee manages the hall.  Nor has the church/school raised any objection.

1. It seems to me that any public interest matter is satisfied as far as is reasonable.

1. Issue 5 and 6 raised by the 2nd respondent, I have dealt with above in that there are no traffic or parking matters that are sufficient to warrant refusal of the proposal.

1. In regard to Issue 7 raised by the 2nd respondent, whilst there may not have been sufficient information to fully consider the proposal at an earlier time, I am satisfied that during the Hearing there has been sufficient information for an objective assessment.

1. Therefore the Orders of the Court are:

   1.The appeal is upheld.

   2.The development consent is granted for the erection of a fence with gates and bollards along the northern boundary and at three (3) driveway street entries of the Bradbury Shopping Centre at No. 69 Jacaranda Ave, Bradbury, as shown on the Exhibit D plan in this appeal being Project No. 06010A Drawing No. DA 1010 Revision B dated 18 March 2009, and Drawing No. DA 1011 Revision A dated 7 April 2008 by Gardner Wetherill & Associates architects all as amended by the conditions in Annexure A hereto.

   3.The exhibits are returned to the parties except Exhibits 1, 4, 2R3, 2R4, D and P.

   ___________________

   K G Hoffman
   Acting Commissioner of the Court

   ljr

Annexure ‘A’
Conditions of Consent

for boundary fencing and bollards at the Bradbury Shopping Centre
No. 69 Jacaranda Ave, Bradbury
Crown Property Holdings Pty Limited v Campbelltown City Council
and George Thomas Hotels (Bradbury) Pty Limited

GENERAL CONDITIONS
The following conditions have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the planning instrument affecting the land.
For the purpose of these conditions, the term ‘applicant’ means any person who has the authority to act on or benefit of the development consent.

1. Approved Development

   The development shall take place in accordance with the following approved development plans and all associated documentation submitted with the application, except as modified by any conditions of this consent.

1. “Perimeter Fencing & Security Proposals”, Project No 06010A, Drawing No DA1010, Revision B, dated 18 March 2009 prepared by Gardner Wetherill & Associates.

2. “Perimeter Fencing & Security Proposals - Photo”, Project No 06010A, Drawing No DA1011, Revision A, dated 7 April 2008 prepared by Gardner Wetherill & Associates.

2A.If required by Council the developer, at the sole cost of the developer, is to remove the southern portion of the existing Council community hall fence and extend the eastern and western portions of that fence to meet the proposed fence.

1. Amended Layout

   The development is to incorporate the following amendment:

• That part of the proposed fence and gate between the west elevation of the “church and school” building on 61 Jacaranda Avenue and the alignment of the eastern elevation of the existing Council community hall fence is to be deleted.

1. Building Code of Australia

   All building work must be carried out in accordance with the provisions of the Building Code of Australia.  In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application for the relevant construction certificate is made.

2. Tree Protection

   All trees on the site shall be retained.  Before any site works begin, a tree protection zone shall be established around each tree on the subject site with located within 5m of the proposed works. The tree protection zone shall cover a minimum area of 2m radius from the base of the tree where this 2m radius is located on the subject property and the following shall be carried out and / or complied with during the entire development phase: -

   (a)A tree protection barrier shall be constructed around the whole perimeter of the tree protection zone.  The tree protection barrier shall be a minimum 1.2m height and constructed of chain mesh fencing so as to preclude pedestrian and vehicular entry into the tree protection zone.

   (b)           No concrete slurry or wash shall enter the tree protection zone.

   (c)No building materials, builders’ rubble, excavation spoil or similar shall be placed or stored within the tree protection zone.  No site sheds or amenities are to be located within the tree protection zone.

   (d)The whole of the tree protection zone shall be mulched to a minimum depth of 75mm.  Mulch shall be organic, free from deleterious and extraneous matter including soil, weeds, rocks, twigs and the like.

   (e)Any pruning works are to be carried out in accordance with AS 4373 - 1996 ‘Pruning of Amenity Trees’.

1. Fence Finish

   The fencing is to be finished black in colour.

2. Management of the Chains and Gates

   (a)The bollards and associated chains or the pedestrian gates, shall remain open between 7.00am and 9.30pm.

   (b)No deliveries intended for the shopping centre loading dock are to be undertaken whilst the bollards and associated chains or the pedestrian gates, are locked into position.

3. Access to Rear of School

   The owner of the property shall, on reasonable terms and conditions, provide a key to the bollards and associated chains to Sherwood Hills Christian School to give the school after-hours access to their on-site car parking, if required, via the Jacaranda Road entrance on the subject site.”

4. Negotiation with Car Park Users

   The owner of the site shall, upon receiving written request, negotiate in good faith with other surrounding owners and organisations whose patrons wish to utilise the shopping centre car park regarding an agreement for this potential ongoing use.

5. Signage

   Signage shall be located in prominent positions on the site detailing an emergency after hours contact telephone number which can be called to have the bollards unlocked and egress provided from the site for vehicles that have been locked in.

10.  Provision of emergency access

Emergency Services including local police commands, fire brigades and ambulance shall be informed of the installation of bollards preventing vehicular access to the site, and the times they will be locked into position. The local police commands, fire brigades and ambulance shall be furnished with a master key or computer access security code to the bollards to provide emergency after hours access to the site.

1. Fence Location

   Where the fence is located within a garden bed, the fence shall be located between the kerb line of the car park and any tree located between the kerb line and the boundary, or between trees, except where shown on the plan.

2. Tree Protection

   To minimise impact on tree root systems, any construction works associated with the fence that are located within 2m of any tree on the site shall be undertaken in consultation with a qualified arborist.

3. Wheel stops

   Wheel stops shall be installed within car parking spaces where necessary adjacent to the fence to prevent vehicles from colliding with the fence.”

DEVELOPMENT REQUIREMENTS DURING CONSTRUCTION
The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements.  These conditions are to be complied with during the construction of the development on site.
14.  Construction Work Hours

All work on site shall only occur between the following hours:

Monday to Friday  7.00am to 6.00pm
Saturday  8.00am to 1.00pm
Sunday and public holidays  No Work.

ADVISORY NOTES
The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act.

Advice 1. Environmental Planning and Assessment Act 1979 Requirements
The Environmental Planning and Assessment Act 1979 requires you to:

a.Obtain a construction certificate prior to the commencement of any works.  Enquiries regarding the issue of a construction certificate can be made to Council’s Customer Service Centre on 4645 4608.

b.Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works.

c.Give Council at least two days notice prior to the commencement of any works.

d.Have mandatory inspections of nominated stages of the construction inspected.

e.Obtain an occupation certificate before occupying any building or commencing the use of the land.

Advice 2.      Tree Preservation Order
To ensure the maintenance and protection of the existing natural environment, you are not permitted to ringbark, cut down, top, lop, remove, wilfully injure or destroy a tree outside 3 metres of the building envelope unless you have obtained prior written consent from Council.  Fines may be imposed if you choose to contravene Council’s Tree Preservation Order.
A tree is defined as a perennial plant with self supporting stems that are more than 3 metres or has a trunk diameter more than 150mm measured 1 metre above ground level, and excludes any tree declared under the Noxious Weeds Act (NSW).
Advice 3.      Covenants
The land upon which the subject building is to be constructed may be affected by restrictive covenants.  Council issues this approval without enquiry as to whether any restrictive covenant affecting the land would be breached by the construction of the building, the subject of this permit.  Persons to whom this permit is issued must rely on their own enquiries as to whether or not the building breaches any such covenant.

_______________________
K G Hoffman
Acting Commissioner of the Court

ljr