Drummond & Rosen Pty Limited v Leichhardt Council

[2007] NSWLEC 375

Land and Environment Court

of New South Wales

CITATION:

Drummond & Rosen Pty Limited v Leichhardt Council [2007] NSWLEC 375

PARTIES:

APPLICANT
Drummond & Rosen Pty Limited

RESPONDENT
Leichhardt Council

FILE NUMBER(S):

11249 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- mixed commercial development, suitability of location, compliance with SEPP 66, traffic, public interest.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
State Environmental and Regional Planning Policy No 11 - Traffic Generating Development;
State Environmental Planning Policy No - Remediation of Land;
State Environmental Planning Policy No 64 - Advertising Signage;
Draft State Environmental Planning Policy No 66 - Integrating Land Use and Transport
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.
Leichhardt Development Control Plan 2000. (DCP).
Development Control Plan No 32 (Design for Activity of Access),
Development Control Plan No 36 (Notifications),
Development Control Plan No 38 (Waste Minimisation, Removal and Storage),
Development Control Plan No 42 (Contaminated Land Management)

CASES CITED:

BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 ;
Terrace Holdings Pty Ltd v Sutherland Shire Council [2003] 129 LGERA 195;
Bonim Stanmore Pty Ltd v Marrickville Council [2006] NSWLEC 771;
Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348

DATES OF HEARING:

7/05/2007 and 8/05/2007

 
DATE OF JUDGMENT: 

28 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Leggatt, SC
Instructed by F. Bourke
for Allens Arthur Robinson

RESPONDENT
Mr J. Ayling, SC
Instructed by J. Walsh
for Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 June 2007

11249 of 2006 Drummond & Rosen Pty Limited v Leichhardt Council

Background.

1 This appeal is against council's refusal of a development application proposing a change of use and building alterations for an existing commercial building located at 7 Darley Road, Leichhardt. These premises are currently used for retailing of outdoor furniture products. The proposed uses include a liquor store, deli/café and offices.

2 A number of issues were identified for the appeal, which can be summarised as follows:

• Contrary to state and local planning policy; in that the proposal provides for ‘general retailing’ in a location that conflicts with longstanding state government planning policy relating to travel demand management and the support of strong business centres.
• Insufficient parking; the development does not provide adequate on-site car parking to cater for customers, staff and other visitors.
• Access and pedestrian safety.
• Traffic impacts of the development; in terms of undue increase in traffic generation and adverse impact on Darley Road and local residential roads.
• Amenity impacts on surrounding dwellings; in terms of traffic, parking and acoustic impacts.
• Advertising signage.
• Public interest.

The site.

3 The subject site is of irregular shape, with a frontage of 230m to Darley Road extending through to James Street and its intersection with City West Link, which forms the rear, northern boundary of the site. The western boundary of the property has a minor frontage of 11.5m to Charles Street.

4 The property comprises 3 allotments described as Lot 1, DP 540008; Lot 1 DP, 531936 and Lot 1, DP 541328. It has a total area of approximately 5589 sq m. The site it is owned by Rail Corporation New South Wales, however the latter 2 allotments constitute ‘leasehold title’ land, which is privately leased until 2018.

5 A part single and part 2-storey brick metal and fibro clad building exists on the site. The building is currently being used as a furniture retail shop. Both the eastern and western ends of the site are used for car parking and access purposes. Four vehicle crossings are currently provided to the site off Darley Road.

6 An open stormwater channel runs through the eastern section of the site.

7 Thirteen trees exist on the site, 12 of which are located on the eastern section of the site.

8 The site is situated within the vicinity of mixed development characterised by single storey dwellings, sporting oval and railway line.

9 The proposal involves:

a) A change of use to:
i. A new liquor store in the eastern portion of the building comprising 895 sq m of retail floorspace, 314 sq m of storage space, and approximately 115 sq m of ancillary office space.
ii. A cafe/delicatessen in the western portion of the building background and mezzanine floor levels. This tenancy consists of 585 sq m of retail area, 190 sq m of storage area and 319 sq m of cafe floorspace located at the mezzanine floor level.
iii. Commercial office space with a floor area of 288 sq m at mezzanine floor level.
b) Building works to accommodate the new uses including:
i. Ground and mezzanine floor levels works, including demolition of existing internal partitioning, new inter- tenancy dividing walls, staircases, an internal lift and WC facilities;
ii. Basement floor level alterations to accommodate car parking;
iii. External changes to the building, including new entry doors, awning and access ramp from Darley Road, painting of existing face brick and metal sheeting facade, new fire stair exits, and alterations to the loading dock structure of the eastern side of the building to accommodate new air-conditioning plant and roofing.
c) New and modified car parking facilities providing the following 65 parking spaces:
i. Seventeen parking spaces, including 2 disabled parking spaces, within the basement level beneath the building;
ii. Twenty four parking spaces on the western section of the site; and
iii. Twenty four car parking spaces on the eastern section the site.
d) Road safety works in Darley Road to including painted median islands, pedestrian refuge and ramp and associated line marking.
e) Advertising signage;
i. A non illuminated pylon sign in the north-eastern corner of the site (facing the City - West Link), measuring 5100mm x 5100mm;
ii. An illuminated pylon sign along the western site boundary with dimensions of 3300mm x 3300mm;
iii. An illuminated sign (measuring 5000mm x 900mm) on the awning fascia above the main entry to the building;
iv. A non-illuminated, wall-mounted sign on the western elevation of the building measuring 8000mm x 2000mm.
f) Landscaping works; including the removal of 2 pine trees on the site and 4 trees on councils footpath.

Planning Controls.

10 Leichhardt Local Environmental Plan 2000 (LEP). The majority of the front part of the site adjacent to Darley Road is within the Business zone. As the proposal is for shops, commercial premises and a refreshment room, these uses are permissible development with development consent.

11 However, the remainder of the site backing onto City West Link is uncoloured and comprises unzoned land. Part of the existing building extends into this unzoned land. Approval for the use of this part of the site is required under Part 5 of the Environmental Planning & Assessment Act 1979 from the relevant ‘determining authority’.

12 A small segment in the south- eastern corner of the site, while unzoned, also forms part of the road reservation for Darley Road and is subject to the following provisions of clause 38 of the Leichhardt Local Environmental Plan 2000:

38 Development on Public Roads.
(1) A person must not carry out development on a public road shown uncoloured on the Zoning Map, or part of such a road lawfully closed, without the development consent of the consent authority.
(2) The consent authority may grant its consent under subclause (1) only for a purpose that may be carried out either with or without development consent of land adjoining that road.

13 The site was formerly zoned 5 (B) Railways under Interim Development Order No 27. This IDO 27 was the applicable environmental planning instrument prior to the adoption of LEP 2000.

14 The LEP contains a number of development controls, of which the following are relevant:

• Clause 13 - General Objectives,
• Clause 20 - Employment Objectives,
• Clause 23 - Floor Space Ratio (FSR); where the maximum commercial FSR allowed is 1:1. The proposal has a complying FSR in the order of 0.67 : 1.

15 State Environmental and Regional Planning Policy No 11 - Traffic Generating Development;

16 State Environmental Planning Policy No - Remediation of Land;

17 State Environmental Planning Policy No 64 - Advertising Signage;

18 Draft State Environmental Planning Policy No 66 - Integrating Land Use and Transport; This Policy aims to ensure that urban structure, building forms, land-use locations, development designs, subdivision and street layouts help achieve the following planning objectives:

(a) improving accessibility to housing, employment and services by walking, cycling, and public transport,
(b) improving the choice of transport and reducing dependence solely on cars for travel purposes,
(c) moderating growth in demand for travel and the distances travelled, especially by car,
(d) supporting the efficient and viable operation of public transport services,
(e) providing for the efficient movement of freight.

19 The SEPP applies in the preparation of environmental planning instruments and for the consideration of development applications, where the consent authority must consider the following:

(a) whether carrying out the development will further the aims and the planning objectives of this Policy,
(b) whether the development is consistent with the policy on location specific land use and the general policies in the Integrated Land Use and Transport Policy Package or complies with clause 10,
(c) whether adequate consultation with the Director-General of Transport NSW and any appropriate planning agency, transport agency and transport provider takes place in accordance with clause 11,
(d) whether the transport implications are considered in accordance with clause 12,
(e) whether the development incorporated travel demand management mechanisms and features that will minimise the demand for travel and the use of cars including the following:
i. an urban form and structure that encourage walking, cycling and public transport use,
ii. parking requirements designed to discourage car use in areas with good public transport access,
iii. provision of adequate trip-end facilities for cyclists such as a secure bicycle storage,
iv. …
v. employment or floor space densities in commercial or employment areas that reflect the accessibility of the area by suitable public transport services and facilities,
vi. suitable provision for taxis .

20 Clause 12 requires consideration of the transport implications of development and the extent to which any transport study has:

(a) assessed the accessibility of the site by a range of transport modes including public transport, walking and cycling, and

(b) proposed reasonable ways of minimising travel demand especially by car and maximising the share of travel by modes other than the car.

.

21 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

22 Integrated Development; The development comprises ‘Integrated Development’ by virtue of Section 91 of be Environmental Planning and Assessment Act.

23 Leichhardt Development Control Plan 2000. (DCP).

24 Development Control Plan No 32 (Design for Activity of Access),

25 Development Control Plan No 36 (Notifications),

26 Development Control Plan No 38 (Waste Minimisation, Removal and Storage),

27 Development Control Plan No 42 (Contaminated Land Management).

The evidence.

28 In response to the outstanding issues, detailed evidence on the planning matters was presented by Ms D Laidlaw (consulting planner for the council) and Mr S McMahon (consulting planner for the applicant). This resulted in the joint planning report – Exhibit C.

29 The traffic issues were addressed by Mr C Henson (councils traffic engineer) and Mr B Masson (consulting traffic engineer for the applicant). This resulted in the joint traffic report – Exhibit B.

30 A considerable number of written objections were lodged and these have been considered in conjunction with the other objectors’ oral evidence.

31 From the evidence presented to the Court, it is apparent that the main outstanding issues concern the suitability of the site for the development, comprising the somewhat uncommon mix of the liquor outlet, deli/café and offices and associated traffic/access impacts. In this regard, the Court undertook a site inspection of a similar type of new development at Alexandria. These issues then encompass the public interest concerns raised about impacts of the development on the neighbourhood.

SEPP 66

32 The primary issue of the site suitability arises from the provisions of draft SEPP 66, which was released as part of the governments’ integrated Land Use and Transport (ILUT) package in 2001. This policy provides that businesses and services, which generate transport demand should be in locations that offer a choice of transport, and increase opportunities for people to make fewer and shorter trips. This draft policy generally applies to trip generating services that have a gross floor space of 1000 sq m, or more.

33 Whilst this draft policy was promulgated in 2001, it is neither imminent nor certain and would not apply to the proposal due to the savings provisions of cl. 14 (d). Nevertheless, it identifies public interest considerations, which should be relevantly considered in accordance with the line of authority stated in Terrace Holdings Pty Ltdv Sutherland Shire Council [2003] 129 LGERA 195.

34 Accordingly, I have considered the provisions of this draft SEPP 66 in the context of the public interest matters raised. I note that Ms Laidlaw does not consider the site suitable for the proposal because she considers general retailing should be contained within the business centres, so as to limit travel demands to achieve overall community benefits. Her main concerns were that the location of the proposal would increase travel demand, thereby increasing local on-street parking in the adjacent residential neighbourhood and causing safety problems for persons crossing Darley Road.

35 Against this, Mr McMahon supported the proposal on the basis that it contributes to the aims and objectives of the draft SEPP 66 as follows:

1 The proposed scale of the development is not a particular planning interest to the State Government and is not antipathetic to the stated aims and objectives.
2 The convenient location and mix of uses enables the proposed development to provide a significant neighbourhood retail function. Whilst the potential broader catchment of the proposed liquor outlet is acknowledged, it is still likely to provide a significant neighbourhood retail function.
3 The proposed mix of uses, and its convenient proximity to local residents who can access the premises by walking, cycling and public transport, encourages a reduction in car use and trip generation, facilitates public transport use and encourages walking and cycling as a viable transport system.
4 The site enjoys good provision of public transport including four bus routes on Norton Street (no more than 250 metres walking distance), therefore providing greater opportunities for a mix of uses with a greater propensity for residents to use other means than a car to access service.
5 There is no evidence to suggest that the proposed uses will significantly increased trip generation, but rather modify existing trip patterns.
6 The proposed mix of uses, comprising a liquor store, commercial offices and cafe/delicatessen will offer a range of liquor, food, beverage, convenience retail, hospitality and dining opportunities. The commercial offices could accommodate a wide range of professional services including medical, accounting and legal practitioners. All of these uses are complimentary, and not competing, uses that enjoy economic benefits by way of agglomeration of alike activities. This in turn encourages trip sharing, and reduces the potential for single trip journeys that characterise isolated, stand alone mono use development.

36 For the assessment of these disparate positions, it seems to me that the following elements of the SEPP 66 public interest considerations are relevant:

• the current business zoning, which permits the proposed development,
• access opportunities,
• traffic generating impacts.

36 The business zoning of a relatively large part of the site was confirmed by Council in LEP 2000 and this permits the development. Under these circumstances, it is not an unreasonable expectation for a complying development to obtain development consent. Presumably the access arrangements and options for the site were considered in the zoning decision and no significant evidence was presented to the effect that the development would generate excessive travel demands.

37 Insofar as, I deal with the local planning controls subsequently, I do not consider they support Ms Laidlaws contention that these type of retail activities should be confined to the larger business hub in Norton Street, near Parramatta Road.

38 Furthermore, the site is in proximity to bus stops along Norton Street and to the proposed tramway stop and therefore will have reasonable access to public transport as an alternative the private vehicle travel.

39 Consequently, I am satisfied that the proposal demonstrates reasonable compliance with the planning aspects of SEPP 65, based on the following submissions in respect of Mr McMahon's evidence:

• the proposal is not antipathetic to draft SEPP 66 because no substantive evidence was presented that it will adversely affect the established retail hierarchy and it does provide some integration of land use and transport. It is apparent Council intended from the zoning that retail activities occur on the site,
• the proposal will perform both a significant local neighbourhood function and regional function,
• the proposed development is adjacent to a residential zone which provides opportunities for those residents to access the development by means other than car travel and accordingly reduces car use and trip generation,
• the proposed development is serviced by public transport, being within reasonable walking distance of existing bus routes in Norton Street and adjacent to the proposed light rail station,
• the development is on an established bike route and it will incorporate bike parking and security arrangements to encourage this form of access,
• the proposed mix of uses is likely to encourage trip sharing and reduce trip generation because of its ‘shopping experience’ offered by this development.

40 A detailed traffic study was undertaken for the development based on similar traffic generating uses and the traffic experts agreed that reasonable conditions of consent could be imposed to maintain traffic impacts to acceptable limits.

Local Planning Controls

41 As I have stated previously, the opportunity for this development arises from the provisions of LEP 2000. It has only one ‘Business Zone’ for the overall local government area. In the vicinity of the subject site, this business zone is concentrated along Norton Street (near Parramatta Road) and extends along to the area near City West Link.

42 The LEP 2000 is a relatively recent planning instrument, having been adopted in December 2000, and presumably the implications of maintaining the site zoning for ‘Business’ would have been considered. Such considerations would usually involve the size and business capacity of the site, access and proximity to public transport. The LEP states that:

"The Business Zone applies to land within existing business centres where retail, commercial and associated uses are concentrated".

43 Therefore, the site is classified as part of the business centre and the planning controls do not restrict the type of business development on this site as Ms Laidlaw suggests, whereby she prefers all general retailing to be concentrated in the “established business centre” near Parramatta Road. Then this site could be utilised for less intensive uses such as bulky goods retailing.

44 In support of this opinion, Ms Laidlaw said that the proposal did not represent good planning and would likely result in increased travel and increased disamenity from on-street parking in the neighbouring residential streets. Also, increased safety risks due to customers and persons wanting to cross Darling Road, to access the development.

45 Insofar as, I deal with the traffic and parking impacts subsequently, I am satisfied to rely on Mr Leggatts’ following submissions in response to the planning matters:

The business zones are not contiguous, allowing business uses to be decentralised in Leichhardt and not concentrated in one particular locality,
The fresh rezoning of the site (in part) to a Business Zone in 2000 shows that Leichhardt Council consciously decided the site should be zoned Business, and this evinces a positive intention that the site should not form part of a residential precinct,
‘Shops’ and ‘refreshment rooms’ are prohibited development in every zone under the LEP except the Business Zone. That is, the only zone under the LEP in which the proposed development is permissible in the Business Zone.
‘Local shops’, that is a shop having a gross floor area used for retail purposes not exceeding 60 sq m that is principally for the provision of convenience goods and services for the benefits of occupants of the immediate locality, not including refreshment rooms, are permissible in the Industrial and Residential zones.
Clauses 18 and 21 of the LEP, which respectively relate to the description of a residential zone and business zone are akin to a desired future character statement which, relevantly to the site, envisage that the area around the site is and will be further developed as a business centre.
The definition of the Industrial Zone is specific and includes bulky goods retailing. The definition does not include a shop. Therefore this shows that the Council has turned its mind to the nature of retail development that it intends to occur in a Business Zone.

46 On the basis of these submissions, I do not accept Ms Laidlaws opinion that the LEP requires subcategories within the business zone to create a hierarchy of business/retailing uses. Taking into account that the proposed development represents a relatively new combination of retailing activities, so as to provide an alternative ‘shopping experience’ for the community, and that it comfortably complies with the FSR controls, then any associated amenity impacts should be within the bounds envisaged by the sites business zoning.

47 Furthermore, as there are no planning controls restricting business activities in respect of proximity to bus stops, I consider the objections raised to the proposal in these respects should be given diminished weight. In any case, the site is within 250m of bus stops in Norton Street and in reasonable proximity to the proposed light rail station and I do not consider that this warrants rejection of the proposal.

Traffic

48 The main reasons for Ms Laidlaws’ opposition to the proposal were the potential traffic, safety and parking impacts on the neighbourhood. However these issues have been fully assessed by the traffic engineers, who agree that subject to compliance with conditions of consent, any amenity impacts can be controlled to acceptable levels. Their conclusions do not support Ms Laidlaws concerns.

49 The traffic study was prepared by Mr Masson and it involved surveys of the traffic generation from other similar liquor and deli/cafe developments to enable comparisons of traffic and parking generation in respect of the subject site. From his assessment of the survey details, Mr Masson believes the site is satisfactory in terms of the state and local transport accessibilty policies because:

• It is adjacent to a major arterial road;
• Nearly 1200 persons live within 400m of the site;
• About 270 buses per weekday operate on routes (Norton Street) within about 400m of the site; and
• There is a bicycle route past site.

50 The traffic experts agreed that:

(i) A condition be imposed limiting the hours of operation for the delicatessen/cafe from 10 a.m. to 6 p.m., so as to avoid the potential for evening impacts from the delicatessen/café;
(ii) The survey data indicated that the probable parking demand can be accommodated for most of the time on-site. When drivers choose to park on-street rather than on-site for their own convenience, this demand can be accommodated in Darley Road if bays are free, or some practical overspill of parking into adjacent residential streets is possible;
(iii) Designation of the proposed on-site car parking spaces, in accordance with AS 2890.1 2004, to allow the car parks to operate satisfactorily;
(iv) The incremental changes to traffic flows in Darley Road from the proposed development would be minimal, so that site accesses and road intersections near the site would operate satisfactorily under the forecast traffic loads;
(v) The requirement for the provision of a roundabout at the Charles Street intersection and left in/left out arrangements at the site access, should satisfactorily address concerns about impacts of vehicle queuing in Darley Road;
(vi) Traffic/pedestrian safety measures should be implemented in Darley Road to the RTA requirements.

51 Having considered this evidence, I am satisfied that the proposal will not generate extraordinary traffic, which exceeds the environmental capacity of the surrounding roads. This includes some patrons car parking in nearby residential streets. I am also satisfied that the traffic safety works in Darley Road, should facilitate convenient and safer access from the residential precincts to the proposed development for pedestrians and bike users. Other patrons have the option of using the bus system.

Caselaw

52 In this matter, reference was made to a number of previous cases that the parties consider provide relevant lines of authority. There are competing submissions regarding the application of the following principles outlined by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 :

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

53 Notwithstanding this, I also note the conclusions expressed by the Supreme Court in Mobil Oil Australia Pty Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 to 319; to the effect that the fact that a use is permissible with consent "is really a neutral matter because the ordinance does not give any prima facie or presumptive right to development which comes within column IV”.

54 In the circumstances of the subject case, I am satisfied that this proposal is a complying development with the relatively recent zoning provisions and that after a merit consideration, the environmental impacts can be reasonably covered by conditions of consent.

55 In the matter of Bonim Stanmore Pty Ltd v Marrickville Council [2006] NSWLEC 771, Hoffman C refused a development application for the demolition of a club and construction of a supermarket, based partly on the traffic impacts and associated provisions of draft SEPP 66. He concluded at paragraph 64 that:

"it is obvious from the government documents that good planning would require locations for new supermarkets within existing centres or designated new centres, or on the edges of such centres such as the consolidation of the centre might occur."

56 However, that matter is clearly distinguished from subject matter because the development was not within a designated existing centre, it was zoned residential and located with in a predominantly residential area. The subject proposal is within a recently approved business centre.

57 Mr Ayling made submissions that the development application should be refused for its failure, in the public interest, to meet the requirements of the draft Policy and maintain consistency with the findings in Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348. This was an appeal against refusal of development consent for the construction of a bulky goods retail establishment at Kellyville Ridge. The site was zoned 3(d) Special Business and the proposed use was permissible in the zone.

58 A number of regional and State planning policies applied to the proposal considered in that case. Chief among these was Sydney Regional Environmental Plan No 19: Rouse Hill Development Area (SREP 19) which provides a framework for co-ordinated planning and decision making in relation to the Rouse Hill Development Area. Additionally, the Rouse Hill Regional Centre (RHRC) is identified in draft SEPP 66 itself as a major urban centre. That Minister intervened in the proceedings in support of the refusal of consent.

59 Pain J found that the proposed development would have an adverse impact on the RHRC taking into account the myriad of regional and State planning policies and instruments that supported the RHRC’s development. Also, that it was realistic and appropriate that bulky goods retailing should be part of the RHRC rather than creating another separate area to accommodate that use.

60 Mr Leggat’s following response to these submissions is that the circumstances in Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348 are quite different because;

• Pain J considered that the development proposal in Stadurn was likely to have an adverse impact on a planned regional centre which was of considerable regional and state planning significance. In contrast, in relation to the subject development, Ms Laidlaw agreed with Mr McMahon’s opinion that the proposed development would not derogate from an existing retail centre or interfere with existing retail hierarchies.
• The proposed bulky goods retailing in Stadurn could have been, and such a land use was in fact intended to be accommodated in the RHRC. The subject proposal differs from traditional retail development. It is a new type of development which is a "shopping experience" which Ms Laidlaw conceded in the oral evidence could not be accommodated in the Leichhardt Market Place or in the business centre at the southern end of Norton Street.

61 I accept these reasons distinguish the subject application from the findings in Stadurn and do not consider it reasonable to reject the proposal on the basis of those findings.

Objections

62 A number of objections to the proposal were lodged, in both written and oral form and these have been considered. In summary, these objections concern the impact of the traffic flows in Darley Road and surrounding usage of residential streets, together with concerns for pedestrian safety and amenity issues.

63 Insofar as the proposal is likely to increase traffic to the site, as compared to the relatively low use of the existing outdoor furniture store, nevertheless this traffic generation/attraction has been assessed by the traffic engineers, who agree that the traffic impacts can be satisfactorily managed. This requires the construction of traffic facilities (subject to RTA approval), which will result in marginal, if any change to the level of service currently provided by Darley Road, arising out of the development.

64 Whilst there may be some parking spill-over into the nearby residential streets, there was no substantive evidence presented to show that this would cause significant disamenity to the residents. It seems to me that the matters raised by the objectors can be covered by conditions of consent to provide reasonable levels of public safety and amenity. These conditions include:

• The installation of a roundabout on the corner of Darley Road and Charles Street to facilitate improved traffic flows and allow better access for vehicle entry from Hubert, Francis and Charles Streets. This should also in improve safety for pedestrians.
• The provision of a pedestrian refuge In Darley Road to facilitate safer crossing,
• Restrictions being imposed to prevent service vehicles accessing the subject site, via the nearby residential streets.

65 Other objections were lodged on the basis that there are currently 8 liquor licenses in Leichhardt, so that the area is well served by alcohol outlets. This use, combined with the cafe and delicatessen will generate the need for extensive parking, and is likely to cause disamenity from patrons leaving the premises, if the hours of operation are permitted to midnight. However, taking into account the expert opinions from both the planners and traffic engineers, I am satisfied that these concerns can be covered by conditions of consent.

Conditions

66 A number of the draft conditions remain under resolved and I consider further submissions appropriate, prior to the granting of any consent. These conditions relate to the following matters.

67 Footpath; the applicant objects to providing a footpath along the entire Darley Road frontage. Even though there is a concrete footpath on the opposite side of Darley Road, I am satisfied that the proposed development creates the need for a similar footpath adjacent to the premises. Such footpath will facilitate safe pedestrian movement from car parks and for pedestrians accessing the development from the residential neighbourhood.

68 Signage; the application includes the provision of a number of advertising signs for the development. The planners agreed to most of the proposed signs, except that easternmost sign near the intersection of City West Link and James Street, Mr McMahon supports a sign with dimensions of 5.5 sq m but Ms Laidlaw considers the maximum sign dimensions should be 3 sq m.

69 It is apparent from the view that the easternmost point of the site is in a prominent location, adjacent to a variety of other uses. Whilst there is some signage on surrounding buildings, it appears to be of much less scale than that proposed by the applicant. Taking into account the existing trees on this part of the site, whose presence and visual impacts should be maintained, it seems to me that further consideration is required to reduced signage on this part of the site, which is compatible with the desired amenity and visual character of the surrounding area.

70 Allowable times of operation; These should be amended to conform with the recommendation of the planning and traffic experts. Also restrictions should be imposed regarding service vehicle, delivery times and routes.

Conclusions

71 Having considered the evidence, the submissions and undertaken of view, I am satisfied this proposed development merits consent, subject to resolution of appropriate conditions.

72 The proposal represents a relatively uncommon mix of retailing activities, designed to create a ‘shopping experience’ for both the local neighbourhood and on a regional basis. As such, it is of a scale that could not readily be accommodated within the existing business hub, at the southern end of Norton Street.

73 However, the primary planning controls are contained within the Leichhardt LEP 2000, under which the site is within the Business Zone. Notwithstanding the proposals scale and form of development, it is permitted under the LEP 2000 provisions. This LEP is a relatively recent control, having been adopted in December 2000, when the Business zone of the site was confirmed.

74 Even though Ms Laidlaw expressed concerns about the proposed general retailing activities on the site, preferring them to be located in the existing business hub, the planning controls do not provide for any hierarchy of retailing activities. Instead, there is only one business zone where proposed mix of retailing activities is allowed. Therefore, I consider it a reasonable expectation for approval of this complying development, subject to satisfactory environmental outcomes.

75 The vision of the LEP is to:

"Conserve and enhance the quality and diversity (social and physical) of the natural, living, working and leisure environment of the Local Government Area of Leichhardt. The protection of the amenity of residents should be pre-eminent."

76 In my assessment, the proposal is to provide an interesting mix of retailing uses, which is likely to enhance the environment of the area by the introduction of the services, together with substantial environmental upgrading of the existing building and its curtilage, without any significant adverse impacts on the amenity of residents. This assessment is consistent with the opinions of Mr McMahon, on which I rely in concluding that the vision of the LEP is reasonably achieved.

77 I accept that the proposal is likely to change the traffic and access arrangements in the vicinity of the site. However, this issue has been assessed in detail by the traffic experts, who agree that providing certain road infrastructure is implemented, then the level of safety and service for the adjacent road system will be satisfactory. Whilst Darley Road currently experiences traffic delays in peak periods, I understand from the evidence of the traffic experts that any changes occasioned by the proposed development, will have a marginal, it any impact on the current traffic system. Instead, the proposed roundabout and medians and pedestrian refuge are likely to improve traffic and pedestrian movements.

78 In conjunction with the merit assessment of the proposal compliance with the local planning controls, consideration has also been given to the provisions of draft SEPP 66, in particular the public interest impacts. Whilst Ms Laidlaw does not support the proposal because she prefers the site, if developed, be of a less intensive scale and general retailing contained within the southern Norton Street hub, nevertheless this type of retailing hierarchy is not reflected in the planning controls.

79 Consequently, Ms Laidlaw said that the main public interest concerns arising from the proposed development would be traffic and associated amenity and parking impacts on surrounding residential neighbourhood. However, as I have stated, the traffic and parking impacts of the proposal had been subject to detailed assessment by the traffic experts. These experts agreed that the traffic and parking aspects could be addressed in a satisfactory manner by conditions of consent, and I therefore do not consider the proposal warrants refusal on the basis of the concerns raised by Ms Laidlaw.

80 The draft SEPP 66 also endeavours to minimise travel demands and increase opportunities for people to make fewer and shorter trips, preferably use public transport, pedestrian or bicycle movements. According to the evidence presented to the Court, the development is in reasonable proximity to the bus routes in Norton Street and the future light railway. The site is also located on an existing cycle way, which is to be maintained and attractive bike storage facilities are to be incorporated into development. Therefore, I consider the intent of this draft SEPP is reasonably satisfied in this particular, complying development.

81 For these reasons, the Court intends to allow the appeal and grant consent subject to finalisation of the appropriate conditions of consent.

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R Hussey
Commissioner of the Court
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