DCI NSW Pty Ltd v Wollondilly Shire Council
[2006] NSWLEC 696
•4 July 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: DCI NSW Pty Ltd v Wollondilly Shire Council [2006] NSWLEC 696 PARTIES: APPLICANT
RESPONDENT
DCI NSW Pty Ltd
Wollondilly Shire CouncilFILE NUMBER(S): 11594 of 2005 CORAM: Murrell C KEY ISSUES: Appeal :- Development application for supermarket, traffic, noise, stormwater, adequacy of parking and economic impact LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Wollondilly Local Environmental Plan 1991
State Environmental Planning Policy No. 11DATES OF HEARING: 03-04/07/2006 EX TEMPORE JUDGMENT DATE: 07/04/2006 LEGAL REPRESENTATIVES: APPLICANT
Ms J Reid, solicitor
With Mr G Green, solicitor
SOLICITORS
Pike Pike & FenwickRESPONDENT
Ms P Hudson solicitor
SOLICITORS
Marsdens
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
4 July 2006
JUDGMENT11594 of 2005 DCI NSW Pty Ltd v Wollondilly Shire Council
This determination was given extemporaneously
and it has been edited prior to publication
1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Wollondilly Shire Council of a development application for a supermarket known as ‘Bi-Lo’ in the commercial district known Appin.
2 The subject site is to the south of the existing Appin Hotel and it has frontage to Market Street as well as frontage to Appin Road. The proposal is for an 1800 sq m supermarket retail space with provision of 49 car parking spaces. The vehicle access is from Market Street both for the loading dock and for the car park. A pedestrian access is provided to the Appin Road frontage and the development is set back from the road with a car park in the front of the subject development. The proposal generally complies with council’s controls.
3 The Court met on site with the parties yesterday morning and also heard from the resident objectors and a number of business proprietors who objected to the proposal.
4 The Court heard from the objectors and for the Court record their objections follow. Mrs Mary James of 4 Market Street, who is concerned about the proposed development in terms of traffic and noise and stormwater and the adequacy of parking.
5 Mrs Groven of No. 2 Market Street and Mr Groven are concerned about the small strip of land that they owned adjoining the subject site and shown in development application. This was clarified during the proceedings and the fence would in fact be moved and erected on the boundary with No. 2 Market Street. They are also concerned about the movement of trucks and their turning circles. Mr Coady provided evidence to state that the turning circles could be achieved by trucks manoeuvring with trucks limited to 17.4 m to serve the proposed supermarket.
6 Mr & Mrs Overson of 10 Market Street are concerned about traffic and the pathway, that is children accessing the school on the opposite side of Appin Road. They are also concerned about the stormwater to the stream of creek at the bottom of Market Street and the lack of provision in terms of parking.
7 Mrs Jeffery Fenneck of 6 Market Street is concerned about traffic and the lack of a footpath on the northern side of Market Street.
8 Mr Norman Qu councillor of Wollondilly Shire Council from Lot 90 Church Street also raised concern about the need for a footpath and kerbing and guttering on the northern side of Market Street.
9 Mr Witherby a consultant town planner represents a number of businesses in Appin commercial area, including the butcher, the baker, and the post office. He raised concerns about a strategic approach to the commercial district at Appin. He stated to the Court he considers it to be more appropriate to concentrate the commercial district on the western side of Appin Road and he considered there was insufficient car parking for the proposed development even though it complies with the council’s development control plan.
10 By way of background it is noted a subdivision was approved for the hotel land to be subdivided from the subject site and this was determined by council on 17 November 2004. Subsequently there was a development application submitted to the council for a supermarket.
11 Concerns were expressed by the local residents as to whether the parking would be adequate for both the hotel and the supermarket. At this point I would say that the Court must accept the development application on its merits and the parking for the hotel was a matter for consideration at the subdivision stage when the hotel was subdivided from the larger parcel of land.
12 That being said the Court has considered the concerns of the local residents with respect to car parking generally in the area and the Court has also considered the issue of safety of children and the need for a pedestrian path on the northern side of Market Street to ensure as far as possible separation for children from the activities on the subject site and the hotel site as well.
13 The applicant has agreed to the provision of a footpath on the northern side of Market Street and in the Court’s assessment this would be an appropriate community benefit of the development. The council has requested that there be line marking for parking on the northern side of Market Street opposite the subject site and in the circumstances of the case, having regard to the history, it is considered appropriate that there be line marking provided such that the parking spaces that will be lost by the proposed development on the southern side of Market Street would then assist in the demand for parking not just for the hotel but also for the community uses of the open space area at the oval opposite the subject site.
14 The subject site as I stated is zoned under the Wollondilly Local Environmental Plan 1991 – as Commercial 3(a). Clause 10 of the LEP requires that the objectives of the zone must be taken into consideration when consent is granted. “The council shall not grant consent to the carrying out of the development unless it is of the opinion the development is consistent with the objectives of the zone”. The objectives of the 3A Business Zone are to:
a) To focus and consolidate retail and business development in accessible locations
b) To promote the amenity and efficiency of business commercial centres and
c) To ensure there is adequate provision for car parking facilities in the vicinity of the commercial centres.
15 On other relevant provisions in the LEP are contained at cl 29 - development along arterial roads. The other relevant control for development on arterial roads is State Environmental Planning Policy No. 11, in particular cll 2 and 7 and in this regard the concurrence of the RTA was obtained by the council and their letter is provided to the Court in these proceedings.
16 The subject site is also adjacent or adjoining a heritage item and therefore triggers cl 31 of the LEP, “council must not grant consent to carry out development in the vicinity of a heritage item unless it has made an assessment of the effect of the carrying out of the development on the heritage significance”. The Court-appointed expert to the proceedings for heritage is Mr Mark Robinson who made a number of comments and recommendations and at the end of the day the proposed development as shown in the amended plan is satisfactory and there is no reason why consent should not be granted in terms of the heritage impact of the development.
17 The council’s planning regime also includes the DCP No. 7 for car parking. The car parking provided on the subject site is some 49 spaces. The DCP requires one space per 35 sq m which would equate to 46 spaces therefore adequate provision for car parking is provided.
18 Other planning provisions referred to include SEPP 64 relating to advertising. It is noted that there are now appropriate conditions with respect to advertising. The proposal rationalises the advertising for the subject development site and provides for an appropriate identification for the site in terms of patrons or clients/customers to the supermarket.
19 It was originally proposed that there be a 1.8 m hedge provided in front of the site however on further consideration during the inspection, the more appropriate landscape is for garden beds and canopy trees to reinforce those trees on the opposite side of Appin Road to create an avenue effect for the Appin Commercial Area.
20 Mr Witherby provided evidence about the economic impact of the proposed development on the existing businesses within Appin. The role of the Court is not to look at competition between uses. Clearly the subject site is zoned for commercial purposes and from the zoning map that has been provided to the Court it can be seen that approximately half of the commercial zone is on each side of Appin Road and it would be inappropriate for the Court to disregard council’s zoning provisions in terms of where commercial development is envisaged for the Appin commercial area. I do not agree with Mr Witherby that the Court should restrict development to the western side of Appin Road as this is inconsistent with council’s zoning provisions.
21 The applicant provided a number of statements to accompany the development application, one of these is from Hill PDA on the economic impact of the proposal. The economic impact report identified that the development would have a positive benefit for the Appin Commercial Area and in the Court’s assessment there is no reason as to why consent should not be granted to the development application. I also quote from the report: “it would be of positive benefit to the community and the economic benefits would be such that there would be a multiplier effect by the proposed development”.
22 The Court has had regard to the relationship of the proposal in terms of the heritage significance and as I stated there is no reason as to why the development application with the materials and finishes provided in the schedule should not be approved and indeed the experts agreed that it was satisfactory in this regard.
23 The issue of stormwater is covered by the Stormwater Management Plan, that shows the water to be piped to the creek with a detention basin on-site for the development to ensure that the rate of flow would not impact on the local system. Also, it is noted that there is a sewerage collection and all wastewater would be via the sewerage collection or pump out system until such time as the area is sewered.
24 For the adjoining property at No. 2 Market Street, there was concern expressed about overshadowing. The experts have provided evidence to the Court this morning that the dwelling achieves or more than achieves, the requirements in terms of council’s Residential DCP. The Court is also satisfied that the shadow diagrams with the concurrence of the experts are accurate and that there is minimal overshadowing by the proposed development in terms of in particular the winter solstice between 9 am and 3 pm. There will be some additional overshadowing but this is not a matter that would warrant refusal of the application. Clearly the orientation of dwelling with a northerly aspect provides unimpeded solar access to the front of the dwelling house during the mid-winter period.
25 The residents are concerned about traffic, however, I am satisfied on the advice of the applicant’s traffic engineer and also with the assistance of council’s officers assessment that the issue of traffic would not warrant refusal of the application. There has been further evidence to the Court this morning in terms of the manoeuvring for trucks onto and off the site and also there was evidence to the Court yesterday and for large vehicles having to turn right and then turn at the roundabout this could be achieved by vehicles up to 17.4 m in length.
26 The issue of the additional pedestrian crossing was discussed between the parties and while it is noted that in the RTA’s letter there is a requirement for an additional crossing. Given the provision of a pedestrian or a footpath on the northern side of the road to benefit the community and school children in particular, it is considered that an additional crossing is not required. There is a crossing from Market Street at the corner to the hotel and there is then a crossing to service the school and the commercial area on Appin Road in a northerly direction. It is considered unnecessary that there be another crossing on the other side of the lights in front of the hotel and this is agreed to by the council.
27 For the acoustic issue this is addressed in a report submitted to accompany the development application and there are requirements in the conditions for certain noise levels to be achieved. An acoustic fence is to be erected such that the loading dock will not interfere with the residential amenity of the adjoining properties for the length within the loading dock area and the Court is satisfied that a transparent fence above the 1.8 m fence to a height of 3.2 m will achieve the restricted noise levels and the conditions also restrict the level of noise.
28 The conditions are comprehensive, and include a landscaping plan, stormwater plans, and traffic. A deferred commencement is proposed to ensure the parking spaces will be achieved in terms of manoeuvrability for the development.
29 The proposal is permissible in the zone and I am satisfied that with the conditions that have been agreed to by the applicant that the proposal warrants approval.
30 The experts to the Court as I stated, Mr Mark Robinson, a Court appointed expert, a council senior development assessment officer Mr Geoff Williams also assisted the Court as did council’s urban designer/town planner Ms Jacinta Foster and Mr John Coady the applicant’s traffic town planning expert also provided evidence to the Court. The Court heard from the experts concurrently yesterday afternoon and specifically asked the experts to address all the issues that have been raised by the resident objectors and I am satisfied that there are no outstanding issues as to why the development should not be approved. Often there is either a lack of information or a misunderstanding of a proposal, however, I am satisfied now after the comments provided by the experts including the Court’s experts the issues of the objectors have now been addressed.
31 Therefore, on the basis of the evidence to the Court and with the assistance of the experts to the proceedings having regard to the council’s planning controls and the other relevant planning instruments I am satisfied the proposed development should be approved. As I stated I have given serious consideration to the concerns raised by the residents and indeed there was additional information provided to the Court which satisfies me with the benefit of the experts comments as well that the issues that the residents raised are addressed and would warrant refusal of the application.
32 Accordingly, the formal orders of the Court are:
1. The appeal in respect of the property known as 80-82 Appin Road, Appin, is upheld.
2. The development application submitted to Wollondilly Shire Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure “A”.
3. The exhibits except 3, 14, A, E, G, H and J are returned to the parties.
___________________
J S Murrell
Commissioner of the Court
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