Dan Properties Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dan Properties Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1172
Hearing dates:	28-29 November 2019; submissions 21 December 2019; 4 and 14 February 2020
Date of orders:	14 April 2020
Decision date:	14 April 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1)   The appeal is dismissed. (2)   Development application DA 18/1002 for proposed alterations to Bates Drive for a driveway exit from parking level P4, and relocation of approved car wash on parking level P4 as part of the existing Kareela Village Shopping Centre at 1-13 Freya Street, Kareela is refused. (3)   The exhibits other than Exhibits 6 and E are returned.
Catchwords:	DEVELOPMENT APPLICATION –shopping centre – additional point of egress – road hierarchy – safe and convenient access – landscape character
Legislation Cited:	Environmental Planning and Assessment Act 1979 Roads Act 1993 Sutherland Shire Local Environmental Plan 2015
Texts Cited:	Austroads Guide to Road Safety Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Dan Properties Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Cornish (Applicant) J Cole (Solicitor) (Respondent)   Solicitors: Harris & Company (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/102383
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 18/1002) in respect of the property known as the Kareela Village Shopping Centre (the Centre) being Lot 55 in Deposited Plan 1189490 at 1-13 Freya Street, Kareela (the site).

2. The application seeks consent for the modification to the Bates Road frontage to the site to provide for egress in addition to the existing entry. There is also an entry on Siandra Drive and an entry and exit on Freya Street. There are consequential internal changes required as a consequence of providing an exit to Bates Drive, including the relocation of an approved, but as yet unbuilt, car wash on level P4, the level at which the exit to Bates Drive is proposed.

3. There are two principal issues:

1. whether the loss of two trees of high retention value is acceptable having regard to their landscape contribution; and

2. whether the proposed egress is appropriate having regard in particular to the provisions of the Sutherland Shire Development Control Plan 2015 (the DCP) and more specifically whether the proposed egress provides safe and convenient access, supports the defined road hierarchy and fits well within the surrounding streetscape.

4. For the reasons which follow I have determined that the proposed egress is not safe and convenient and does not support the defined road hierarchy and therefore the appeal will be dismissed.

The site and surrounds

5. The site supports a relatively large local shopping centre, is an irregular peninsular shape with frontages to Bates Drive, Freya Street and Siandra Drive. The Centre was originally built in the 1970s but has more recently been refurbished and expanded. It has a four level carpark.

6. The Centre addresses Freya Street from which there is access to and egress from at grade parking which in turn leads to 4 levels of basement parking below.

7. There is a separate exit to Siandra Drive on level P3 which also operates as an entry to the loading dock. There is no entry from Siandra Drive for vehicles seeking to access the car park.

8. There is a separate entrance on Bates Drive which is left hand turn entry only. It has a slip lane for vehicles entering the site. It is this driveway which is sought to be widened to provide for an exit (at level P4 the lowest level of the car park) in addition to the existing entry. The driveway level at Bates Drive is significantly lower than the entry level on Freya Street.

9. A separate driveway on Freya Street south of the principal entrance/exit provides access to a loading dock.

10. Surrounding development is largely residential with at least two health consulting rooms on the opposite side of Freya Street to the east and a small area of bushland to the north.

11. It is worthy of note that the Respondent has a Road Hierarchy Map which shows that of the three roads to which the site has frontage, each is of a different hierarchy. Siandra Drive is of the lowest order (a collector road), Freya Road is next up the hierarchy (a distributor road) whilst Bates Drive is the highest order of hierarchy of the three (an arterial road).

12. Bates Drive is a busy road, in total carrying about 16,000 vehicles per day, in the order of 8,000 in each direction. It is divided by a median strip in the vicinity of the Centre so that it is only possible to enter from Bates Drive by turning left, and, if permitted, to turn left onto Bates Drive when departing.

13. It is the southerly flow of traffic on Bates Drive which is adjacent to the existing entry and proposed exit point. Bates Drive to the north of the site is a single lane road but at about 25 metres or so to the north of the existing entry there is a second lane, branching off to the left of the single lane. That is, Bates Drive widens by adding an additional kerb side lane from about 25 metres north of the access point and then Bates Drive continues as two lanes relevantly as far as its intersection with Box Road about 200 metres to the south.

The statutory context and planning history

14. The site is subject to Sutherland Shire Local Environmental Plan 2015 (SLEP). It is zoned B2 Local Centre in which a shopping centre, as a species of commercial premises is a permissible use.

15. The zone objectives include:

To create an attractive, vibrant and safe public domain that has both a high standard of urban design and public amenity that is designed to cater for the needs of all ages and abilities.

16. It must be accepted that if the proposed egress is not safe then the development would be antipathetic to this objective. The Council does not press this as a separate contention. It says the application should be refused because it fails to meet the relevant tests in the DCP. Necessarily a determination of the tests in the DCP adverse to the Applicant is enough to refuse the application, and resort to the question of the objectives of the zone becomes otiose.

17. The DCP deals with “Vehicular Access Traffic Parking and Bicycles” in Chapter 36. After introductory commentary, the objectives in relation to Vehicular Access and Driveways are set in section 3.1 and relevantly are :

“1.   Maximise safety for residents and visitors to a development.

…

3.   Ensure the safe and orderly movement of traffic, pedestrians and cycling movement (sic).

…

5.   Restrict vehicular access to development sites from arterial roads to optimise traffic flows and public safety, and reduce conflict between vehicles, pedestrians and cyclists.”

18. Clause 3.2 contains the controls. The first control is:

“1.   Where development has two (2) or more road frontages, vehicular access shall be from the lowest order road shown on Sutherland Shire Council’s Road Hierarchy Map.”

19. It will immediately be noticed that adherence to this control would mean that the vehicular access to the Centre would only be from Siandra Drive, the lowest order road to which the Centre has access. The Respondent has of course already approved a number of access or egress points, including from each of the three frontages.

20. The second control operates as a qualification to the first control. It provides:

“2.   Where a site has more than one road frontage, an applicant may make a submission to Council to gain access from the higher order classified road shown on … [the] Road Hierarchy Map. The submission shall demonstrate that the proposed access provides safe and convenient access, supports the defined road hierarchy, that the proposed access location fits well within the surrounding streetscape, and the proposed access location will not have any negative consequences for adjoining owners.”

21. It is the first control, as qualified by the second control which is at the heart of this case. The qualification in the second control effectively sets out the criteria for assessment of an access point which is proposed for a higher order road, which if met would thereby meet the objectives of the controls more generally.

22. This is at the heart of this case – whether the Court is satisfied that the proposed addition point of egress onto Bates Drive:

• is a safe and convenient access;

• supports the defined road hierarchy;

• fits well within the surrounding streetscape;

• will have no negative consequences for adjoining owners

and thereby meets the principal objective of the control to optimise traffic flows and public safety, and reduce [traffic] conflict.

23. The DCP does not provide any guidance as to the manner of determining whether the proposed egress is safe and convenient, or what standards are to be applied. Nor in relation to the question of supporting the defined road hierarchy.

24. It should be pointed out that the only immediately adjoining owner is the Respondent – it is public road adjoining the site at every point of the boundary of the site including Bates Drive. It has been submitted that there are other relevant “adjoining” owners, being properties on the other (western) side of Bates Drive which have their rear boundaries to the large western verge of Bates Drive. It was not pressed that in its capacity as an owner the Respondent will have negative consequences thrust upon it if this application were to be approved. The Council did argue that there were negative consequences to the landowners on the other side of Bates Drive. That is dealt with below.

25. The DCP in Chapter 39 deals with Natural Resource Management. Part 4 of Chapter 39 is concerned with “Tree and Bushland Management” and clause 4.8 described as “Special Considerations for Trees which Contribute to Scenic and Visual Quality” has the following relevant objectives:

“3.   Preserve existing streetscape character.

4.   Preserve trees in areas where trees of a similar type or scale make a strong contribution to neighbourhood character.

5.   Retain trees … which singularly make a positive contribution to the quality of the streetscape or locality.

…

7.   Ensure remnant trees are retained throughout the urban area.”

26. Whilst the Respondent relied upon objective 7, it seems to me that it is directed to trees which are remnant of the original bushland, and the trees here are not such a remnant.

27. What follows in the DCP are “Assessment Principles” which are a form of control. The following principles are relevant :

“4.   Council will not permit the removal of remnant indigenous trees and large scale canopy trees where the existence of such trees creates distinctive local streetscape character.

5.   Council will not permit the removal of a tree that, due to its age, scale, form or species, makes a significant contribution to the character of a streetscape or locality.”

28. There are a number of development consents and Complying Development Certificates which have been granted in recent years. It is unnecessary to set out all of them. The following are relevant.

• 2012   Development consent DA11/1048 for alterations and additions and a new carpark, including a condition requiring upgrades to the surrounding road infrastructure.

• 2014 Development consent DA13/0646 for additional retail and new carpark entry of Bates Drive

• 2019 Complying Development Certificate CDC18/0534 for carpark line marking, including provision of two way traffic to the proposed point of existing access and proposed egress at Bates Drive.

The proposal

29. The development application (DA) is described in the Statement of Environmental Effects (SEE) at page 1 as:

“Proposed alterations to Bates Drive for a driveway exit from parking level P4, and relocation of approved car wash on parking level P4 as part of the existing Kareela Village Shopping Centre.”

30. The DA is also described on p 5 of the SEE thus:

“The proposed development involves minor alterations to the existing Kareela Village Shopping Centre including:

1.   Modifications to the Bates Drive frontage so as to accommodate a driveway exit out of Parking level P4 for customers (sic) cars; and

2.   Relocation of the approved car wash bays as shown (no changes are to the approved use or operational matters in DA 17/0486).”

31. This is an accurate description of the proposed development because most of the work to enable egress onto Bates Drive is on the road reserve. There is no application under the Roads Act 1993 before me but the draft conditions include a condition requiring Roads Act consent for the work and any related signage.

32. The work to create the egress involves excavation, the construction of a retaining wall and creating a concrete apron and driveway of approximately double the present apron leading to a total exit driveway width at the edge of the road formation of about 6 metres, in addition to the entry width of about 10 metres.

33. The driveway has a generally level gradient. At the point at which the driveway meets the roadway, the gradient of the road is about 10%-12%. That is, after leaving the Centre vehicles will immediately begin a relatively steep ascent to the top of Bates Drive to its intersection with Box Road which has traffic lights.

The evidence – traffic

34. The Court heard from Mr Vince Doan and Mr Damien Chee on behalf of the Applicant and Mr Zoran Bakovic on behalf of the Respondent. Each of them is a traffic engineer. Both Mr Chee and Mr Bakovic are road safety auditors. Mr Dean’s principal contribution was in traffic counts and modelling, whilst Mr Chee gave most of the evidence for the Applicant.

35. Much of the debate between the experts concerned the correct approach to determining whether the tests in the DCP were satisfied. There was however agreement that the peak hour should be considered as the relevant period to satisfy the tests, and also on the base traffic figures in the peak hour as follows:

“677 vehicles per hour traveling south along Bates Drive

55 vehicles leaving the proposed new exit onto Bates Drive

58kph-60kph assumed speed of the vehicles on Bates Drive as they approach and pass the new exit”

36. In relation to road safety I accept that each of Mr Chee and Mr Bakovic are appropriately qualified and experienced to give their evidence. Mr Bakovic initially understood that the southerly traffic on Bates Drive was about 16000 vehicles per day, but in cross-examination accepted that he was mistaken and that the 16,000 vehicles he as asked to assume was in fact two-way traffic rather than just the traffic passing the proposed exit. In the end that did not change the approach to consider the peak hour traffic numbers identified in [33].

37. Mr Bakovic relied upon the risk assessment matrix in Austroads Guide to Road Safety (Austroads Guide) Table 4.1 in Part 6A and assessed the resulting level as unacceptable. That did involve the application of his professional experience. Mr Chee utilized the “check list” of matters in the Austroads Guide, again exercising his professional judgment also with reference to AS/NZ 2890.1 and the desirable minimum gap sight distance with which the proposal complies. He considered the proposal acceptable.

38. In oral evidence all experts agreed that traffic in Bates Drive was likely to be required to slow down as vehicles exited the new exit. Mr Bakovic said he was concerned about vehicles crossing to the kerbside lane on approach to the exit, largely not visible to the traffic leaving the Centre and itself not aware of the traffic leaving the Centre. He was also concerned about vehicles leaving the Centre and then attempting to cross to the right lane in order to turn right into Box Road at the top of the hill. Mr Bakovic also identified what he said was an impact on the traffic movement in Bates Drive leading to a potential slowing or queueing contrary to its use as an arterial road.

39. Mr Chee did not accept those concerns.

40. There were elements of the oral evidence which are worthy of noting, in particular where exploring the approach to the assessment of the appropriateness of the proposed exit:

“COMMISSIONER: Let me come back to an objective of the traffic. Should the intersection work such as a vehicle on Bates Drive doesn't have to slow down as a matter of principle?

WITNESS CHEE: Yes. Ideally, yes. Yes, it should.

COMMISSIONER: We'd all agree on that, wouldn't we?

WITNESS CHEE: Yep.

COMMISSIONER: Mr Bakovic, do you agree with that?

WITNESS BAKOVIC: I agree with that principle.

…….

COMMISSIONER: What I want to know is where's the analysis to prove that's the case. Not the theoretical case, but the reality on the ground at the gradient, the speed, the distance et cetera. Where can I be satisfied from this material that a vehicle travelling on Bates Drive doesn't have to slow down

WITNESS CHEE: I don't think you can.

……..

CORNISH: Is the purpose of a five second gap to establish a minimum safe time for a diver to enter?

WITNESS CHEE: Yeah. I would probably phrase that as a minimum reasonable time to come out, to make an entry.

COMMISSIONER: Which may or may not result in the vehicle coming up the hill slowing down?

WITNESS CHEE: Yes. That's a fair statement.

……….

WITNESS BAKOVIC: "Austroads 2010 Guide to Road Design part 4A, Unsignalised and Signalised Intersections."

……

WITNESS BAKOVIC: Yeah. A very useful document, I believe, for this discussion. In table 3.4, "Critical acceptance gaps and pull up ... (not transcribable)…". For exact situation as we have sorry, lefthand turn, they said in these documents it's five seconds acceptable gap, but under condition, that that requires the vehicle on the main road to slow down, that's very important, or if not interfering with vehicle on the main road, is 14 to 40 seconds.

COLE: I said: if you assume you've got a five second gap, would you agree with me that that will result in traffic slowing down? You heard the quote, 40 seconds, if they're not going to slow down. You know how fast they're going. Would you agree with me that they've got to slow down, "Yes" or "No"?

WITNESS CHEE: Not necessarily, because I just said, like, several minutes ago, that this five seconds could be seven seconds, it could be three seconds, it to be five seconds, it could be whatever. It's situation based, so no one in the world could say that this five seconds will guarantee a safe exit with no need to slow down at all. It's a parameter that's been a line that has been drawn in the sand, that's what it is.

COLE: The 40 second gap is the one that's been identified as you don't slow down, hasn't it?

WITNESS CHEE: For intersections. Yes, for intersections, so it's applicable to intersections.

COLE: You say this road where this entrance is going to intersect with this road, that's not an intersection?

WITNESS CHEE: It is, but we're not bound to use that because it's a driveway, and this is a, for suppose for want of a better term, the hierarchy document.

……………..

COLE: I'm saying would you assume that with a five second gap, you will have slowing down of traffic?

WITNESS CHEE: At times, yeah. At times, yeah.

COLE: When it happens?

WITNESS CHEE: Yeah.

COLE: When somebody wants to get out there?

WITNESS CHEE: Yeah.”

(Emphasis added)

41. It should be recalled that all experts agreed that traffic on Bates Drive was likely to have to slow down to allow vehicles leaving the Centre to achieve the general traffic speed on Bates Drive and avoid a collision.

42. Mr Chee in his written evidence said that “the egress driveway is satisfactory and does not present any discernible road safety risks over and above that of other reasonably designed commercial property egress driveways”.

Submissions on traffic issue

43. The submissions echoed the evidence of the respective experts and each party was critical of the evidence of the other party’s experts.

43. The Applicant submitted there were benefits to the surrounding public by a reduction in traffic in the lower order streets where all the traffic goes at present and additional convenience to the users of the Centre by the additional point of egress.

44. The Applicant further submitted that the proposed egress had a reasonable level of safety and convenience because it met the safe sight distance and that the fact that traffic on Bates Drive may have to slow down is not otherwise than inherent in an ordinary urban environment. It argued that on the evidence there was no unreasonable interference with the proper functioning of Bates Drive and therefore the road hierarchy was supported. It rejected the Respondent’s supposed “high bar” to require an elimination of risk.

45. The Respondent submitted that there is a “high bar” to vary the “standard” of no access from an arterial road. That it was inappropriate to create a situation where Bates Drive traffic was required to slow, both creating an unnecessary risk and failing to respect the road hierarchy by adversely affecting the operation of Bates Drive.

Discussion

47. It is scarcely uncommon that any relevant control or guideline does not deal with the specific circumstances of a particular development application. However, this is again such a case. Nevertheless, the DCP is the guiding document and it is to be applied flexibly in accordance with its terms and the EPA Act.

48. The provisions of the DCP about vehicular access assume the establishment of a development but must be applied to an existing development. The provisions of the DCP assume that a single point of access and egress is to be created for the proposed development. It does not deal with the question of the creation of a third point of egress.

49. It does no disservice to the experts to observe that each was required to exercise their professional judgment in reaching their conclusions. But that professional judgment needs to be anchored in the provisions of the DCP.

50. Objective 4 starts with what is in reality a control – restrict vehicular access to development sites from arterial roads. It then identifies the objective – optimise traffic flows and public safety, and reduce conflict between vehicles, pedestrians and cyclists. It creates an optimal situation for traffic flow and safety if there is no access to an arterial road.

51. The specific control on clause 3.2.1 is to require that access is from the lowest order road, that is, in this case, not from or to Bates Drive.

52. The DCP in clause 3.2.2 recognises that in identified circumstances access may be gained from the higher order road. It does not refer to an additional point of access, but assumes it is the point of access for a development. Those criteria are – safe and convenient access; support for the defined road hierarchy; fit well within streetscape; no negative consequences for adjoining landowners.

53. There is a level of risk in the creation of any additional point of access or egress. I do not accept that it is appropriate to require an elimination of risk, that simply is not possible. Nor do I accept that there should be no impact on traffic on Bates Drive. Planning including traffic planning is not a science of absolutes. The question is the level of risk which is acceptable, and the level of impact which is acceptable.

54. In my opinion the question is not whether the creation of this egress creates risks or has impacts “over and above that of other reasonably designed commercial property egress driveways” as Mr Chee opined. To apply that test would be to give effectively no weight to the provisions of the DCP intended to avoid the use of access onto an arterial road in the circumstances of this case.

55. The DCP seeks to optimise traffic flows and reduce conflict. One way of doing that is to prevent access to the arterial road or achieve certain outcomes which are not simply an acceptable outcome. The use of language such as “optimise”, “support” rather than not unreasonably impact, fit “well” rather than “no unreasonable impact” on the streetscape, and no “negative consequences” are consistent with an approach which suggest the acceptable level of risk may be less than merely the risk of a point of egress similar to other commercial property egress driveways. I repeat, that is not to say that risk has to be eliminated – that too defies the operation of the DCP which allows for the creation of an access point on an arterial road.

56. I approach the assessment therefore on the basis that the Council has prescribed that the risk occasioned by an additional point of egress here is to be less than simply the creation of a point of access serving commercial property development.

57. I am not satisfied that the proposed egress is safe and convenient. The difficulty arises with the common position that the goal of the intersection is to avoid vehicles on Bates drive from slowing, so as to reduce the risk of collision (and to allow unimpeded flow on Bates Drive). Mr Chee, very frankly, accepted there was no particular answer to the required “’gap” and that it was a matter of judgment. Here in my view the risk is unacceptable on an arterial road with over 650 vehicles in the peak and nearly 60 vehicles attempting to join that flow of traffic generally traveling at 60 kph or so.

58. Vehicles traveling at speed will from time to time need to slow to avoid colliding with a vehicle entering from a relatively unexpected location. It is not unreasonable to expect that not all drivers will be sufficiently alert to the presence of the entering traffic and there is therefore a real, not remote, possibility of collision.

59. I do not accept Mr Bakovic’s evidence that the consequences of such a collision could be catastrophic, but nevertheless it is likely to be a serious collision having regard to the speed of the traffic on Bates Drive.

60. The configuration of the road leads to the difficulty identified by Mr Bakovic – vehicles behind other vehicles changing lanes to the kerbside lane when it appears and leading to surprise for both the drivers in Bates Drive and the driver exiting the Centre.

61. Having regard to the risk posed by, and consequences of, the need for traffic on Bates Drive to slow down, in my opinion the access is not safe and convenient.

62. Whilst the other circumstance identified by Mr Bakovic – vehicles changing lanes between the exit and the intersection with Box Road – has a theoretical risk, there is no evidence of the likely number of vehicles which may attempt that manoeuvre. It is certainly not obvious that it will be a common manoeuvre and in order to find that the risk is unacceptable there would need to be evidence that there is some degree of likelihood that vehicles will attempt to cross into the right lane in a short distance with some regularity. Therefore, I am not satisfied that the access is not safe and convenient on that basis.

63. There is also the question of support for the defined road hierarchy. The road hierarchy determines that the priority for Bates Drive, an arterial road, is to serve a mobility function – concerned with the movement of through traffic and focussed on the efficient movement of people and freight (see Austroads Guide).

64. The phrase “support for road hierarchy” means that an egress onto Bates Drive should not interfere with the function of Bates Drive as an arterial road. Again, this is not a matter of requiring no impact at all because any additional movement onto Bates Drive has an impact. Rather there must be something more than a negligible impact, because the control requires “support”.

65. The evidence here is that vehicles on Bates Drive are likely to have to slow to allow traffic to join Bates Drive. There are assumed to be 55 additional vehicles joining the 677 vehicles on Bates Drive in the peak hour, an increase in the order of 8 per cent.

66. In my view those two factors do not support the road hierarchy because they reduce the efficiency of movement on Bates Drive, particularly at the critical time of peak hour when it is most important that an arterial road operates efficiently. Vehicles slowing down where otherwise they would not is self-evidently a reduction in efficiency – the fewer interruptions to the flow of traffic the more efficient that movement becomes. The number of vehicles joining Bates Drive is not negligible. Whilst that may not of itself reduce the efficiency of Bates Drive, it is a sufficient number which together with the speed environments increases the prospect of vehicles on Bates Drive being required to slow down.

67. The reduction in efficiency of Bates Drive is real, and so the proposal does not support the road hierarchy.

68. It is on these two bases that the proposal fails to comply with the controls and objectives of the DCP and for those reasons the appeal must fail.

69. The Respondent also submitted that there were negative consequences for adjoining landowners, those residents of properties backing onto Bates Drive on the other side of Bates Drive. I reject that submission on two bases. First, those properties are not “adjoining” for the purposes of the provision in the DCP – they are distant from the proposed point of egress, their residents cannot see the proposed point of egress and the properties do not address Bates Drive.

70. Whilst the intervention of a road may not mean that properties are nevertheless “adjoining”, that judgment is made having regard to the particular control being considered. There is insufficient proximity of those properties for them to be adjoining the proposal here.

71. Second, there is no evidence of any negative consequence. It is not enough to simply submit that there are additional traffic movements in a particular location – there must be evidence of what occurs as a consequence. I am not satisfied that there are any negative consequences for adjoining owners.

72. I should observe that the Applicant submitted that there were certain benefits to the proposal, by way of lessening impacts on some residential properties and increased efficiency of the carpark itself. The Applicant did not submit that any benefits are such that the proposal should be approved even if I was not satisfied the proposal met the tests in the DCP. Whilst it is not necessary to deal with the purported benefits, I do accept that an additional exit point would have some increased convenience to the users of the carpark, albeit to an unknown extent. There was however no planning or acoustic evidence as to the supposed benefits to surrounding residential properties by a reduction in traffic movements. Whilst in theory one can conclude that fewer vehicles passing by is a reduced impact and therefore a benefit, to actually so conclude for this development requires something more than the exposition of theoretical benefit. If it had been required I would not have concluded that there were any measurable or significant benefits from the proposal other than a more convenient exit for some users of the Centre.

Landscape – loss of trees

73. Having determined that the proposal is unsatisfactory on traffic grounds, I do not need to deal with the separate issue relied upon by the Respondent that the appeal should be dismissed because of the loss of two trees of high retention value, and the related landscape value/streetscape issue. I will deal with it very briefly.

74. I agree with the Applicant that whilst there is commendable landscaping and large trees in this part of Bates Drive, the large shopping centre building is the dominant component to the passer-by. It was accepted by the experts – Ms Hughes for the Applicant and Mr Paroissien for the Respondent – that landscaping was capable of keeping or maintaining a bushland appearance and that the two large trees to be removed would be replaced. Mr Paroissien did not support the loss of the two trees because the replacements would take about twenty years or so to grow to the height of the trees removed.

75. If the proposal was otherwise acceptable, I would not have refused it on the basis of the loss of the two trees. There are still large trees in the road reserve and the new landscaping would provide a satisfactory outcome – a large shopping centre building with landscaping in front of it facing Bates Drive. The replacement trees would eventually replicate those being lost but would grow in an appropriate landscaped context in the meantime.

Conclusion

76. The proposed additional egress does not meet the tests in the DCP. Accordingly the appeal must fail.

77. The Court orders that:

1. The appeal is dismissed.

2. Development application DA 18/1002 for proposed alterations to Bates Drive for a driveway exit from parking level P4, and relocation of approved car wash on parking level P4 as part of the existing Kareela Village Shopping Centre at 1-13 Freya Street, Kareela is refused.

3. The exhibits other than Exhibits 6 and E are returned.

……………………..

P Clay

Acting Commissioner of the Court

**********

Decision last updated: 14 April 2020