Fabcot Pty Limited v North Sydney Council

[2005] NSWLEC 180

Land and Environment Court

of New South Wales

CITATION:

Fabcot Pty Limited v North Sydney Council [2005] NSWLEC 180

PARTIES:

APPLICANT
Fabcot Pty Limited

RESPONDENT
North Sydney Council

FILE NUMBER(S):

11583 and 11584 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Parking
Strata subdivision
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Newbury District Council v Secretary of State for the Environment [1981] AC 578;
Zhang v Canterbury City Council 115 LGERA 373;
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472;
.

DATES OF HEARING:

7, 8 and 12 April 2005

 
DATE OF JUDGMENT: 

04/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr N Hemmings QC, solicitor
Allens Arthur Robinson

RESPONDENT
Mr D Baird, solicitor
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

19 April 2005

04/11583
04/11584 Fabcot Pty Limited v North Sydney Council

JUDGMENT

Summary of conclusions

Permitting Woolworths to open a supermarket at 1 to 7 Rangers Avenue, Neutral Bay is acceptable but only whilst the existing Woolworths’ supermarket at Grosvenor Street, Neutral Bay continues to operate. Therefore, approval of the proposed Rangers Avenue store will be subject to a condition that the consent only remains valid while the Grosvenor Street store continues to operate. A number of additional conditions beyond those sought by the council will also be imposed in response to concerns raised by objectors.

1 Commissioner: These two matters are appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the actual refusal by North Sydney Council (the council) of Development Application 339/04 (Matter No 04/11584) and the deemed refusal by the council of Development Application 343/04 (Matter No 04/11583). These appeals require separate discussion although, procedurally, they were heard together.

The site

2 Both appeals relate to the same premises at 1 to 7 Rangers Avenue, Neutral Bay (the site). The site also fronts Yeo Street to the south and has a frontage to Military Lane on its west. Military Lane is a dead-end street servicing the site and a range of premises with their major frontages being to Military Road.

Matter No 04/11584

3 Relevant to this appeal, the site housed a former retail and commercial complex known as the Neutral Bay Village.

4 The space within the site which was formerly used for retail purposes is largely presently vacant but had previously accommodated 41 specialty shops and a small Franklins supermarket. These had last traded some four or five years ago. The former Franklins supermarket operation, on the evidence before me, was not only much smaller in scale than that envisaged in the application but was also largely confined to grocery goods.

5 The retail purpose space within the site totals 3571 sq m. The site has an existing loading dock which services the retail space. This loading dock is accessed via Military Lane.

6 The commercial space is spread across of three floors and totals 1949.7 sq m. The commercial space has a separate entrance from that to the retail area.

7 There is also a basement car park presently configured to provide 121 parking spaces. Entry to and exit from the car park is via Yeo Street and this is not to be altered by the proposal.

8 Woolworths also presently operates a supermarket at Neutral Bay, which is located in Grosvenor Street to the north of Military Road (the Grosvenor Street store).

Scope of the proposal

9 The application in this appeal proposes the refurbishment of the site and establishment of a new Woolworths’ supermarket in the retail space of the site.

10 The application also envisages elimination of the pedestrian access to the retail area from Yeo Street and a redesign and refurbishing of the entry to the commercial space. This commercial space will remain unaltered in size. It will continue to be accessed via an entrance at the south-western of the site on the corner of Yeo street and Military Lane. The commercial space is presently at least partially occupied. It has generally been so since the original development was constructed following approval in 1985.

11 A Woolworths’ supermarket with a gross area of 3390 sq m and incorporating a small coffee shop are proposed for the retail space. This coffee shop was incorporated to provide a variation to the street frontage treatment to Rangers Avenue as the council and the residents considered a more monolithic or uni-presentational street front was undesirable.

12 In addition, an existing retail liquor outlet will be refurbished and incorporated in the south-eastern corner of the retail space. This will occupy 181 sq m and will have a direct post point of sale entry to the supermarket as well as direct street access to Rangers Avenue.

13 The car park is to be operated on a docket pay management structure whereby a person producing a Woolworths’ shopping docket will be entitled to two hours free parking with payment for times in excess of that. Persons not producing such a docket would be obliged to pay for the totality of their parking.

14 The exit ramp to the car park is to be reconstructed to ensure that its gradient conforms to the relevant Australian Standard.

15 Finally, the entry boom-gate to the car park will be relocated a little further into the car park enabling three vehicles to queue to enter rather than two vehicles as at present.

The issues

16 Although the council filed a formal Statement of Issues in the proceedings, effectively the sole issue put on behalf of the council as warranting refusal of the application was that the provision of parking spaces on the site would lead to a significant shortfall compared to actual demand. The council considered that the result would be to impose an unreasonable, unacceptable and unable to be ameliorated burden on the surrounding community and thus the application should be refused.

17 In addition to their concerns relating to parking and traffic, the council and/or the objectors raised a number of other issues, which they said should lead me to on the conclusion that the application should be refused. These concerns fell into two separate categories. The first of these were of more general nature whilst the second dealt with specific issues relating to particular premises.

18 The general objections related to:

• Whether or not there was a demand for such a supermarket and what might be described as the lack of information about the socio-demographics for any new supermarket, particularly whether it would merely transfer demand from the existing Grosvenor Street Woolworths’ supermarket or it would bring additional demand thus taking customers away from supermarkets in nearby suburbs;
• Whether a smaller Woolworths’ supermarket would be appropriate; and
• The abandonment of shopping trolleys in the surrounding streets.

19 A number of specific objections also arose to be dealt with. These included:

• Whether or not the traffic and parking experts had had regard to other residential developments, of a potentially traffic generating nature, taking place within the vicinity;
• Concerns by the resident of Unit 1/57 Yeo Street, that there would be increased late night light pollution of her bedroom from cars exiting the car park;
• Whether a heritage listed Uniting Church building in Yeo Street would be damaged as a result of vibration from increased heavy vehicle traffic going to the site along Yeo Street;
• Whether the additional heavy vehicle traffic along Yeo Street would result in unacceptable noise levels for pupils in three classrooms fronting Yeo Street at the Neutral Bay Public School;
• Whether the additional truck movements and other traffic along Yeo street would constitute a hazard to the dropping off or picking up of children from the Neutral Bay Public School or the pre-school operated by the Uniting Church;
• Whether the operation of the Fire Station in Yeo Street would be compromised by increased vehicle and truck traffic along Yeo Street so that there would be an unacceptable response to fire emergences caused;
• Parking in Military Lane; and
• The adequacy of the loading dock.

20 I have concluded that, following a consideration of each of those other issues, none of them would, on the evidence before me, would warrant refusal (although a number of them, if held adversely to the applicant, might contribute to a possible refusal of the application), and that they could not collectively add up to warranting a refusal.

21 The council in its “without prejudice” conditions of consent raised a number of these issues. The applicant contested some of these conditions and these are dealt with later in this decision. In addition, a number of the matters raised by the objectors, whilst not warranting refusal, did warrant the imposition of additional conditions and these are also set out when dealing with the relevant topic.

The evidence

22 I have had the advantage of the assistance from two court-appointed experts in these proceedings. These were Dr Tonin, an acoustic expert, and Mr Morse, a traffic engineer.

23 In addition, the applicant called expert evidence from:

• Mr Rogers, a traffic engineer;
• Mr Cooper, an acoustic expert: and
• Ms Cooper, a town planner.

24 Ms Cooper's evidence was given with respect to a number of the conditions which were in contention between the parties.

25 Mr Thomas, Woolworths’ General Manager – Property, also gave evidence for the applicant.

26 Mr Marshall, a traffic engineer, gave evidence on behalf of the council.

27 The formal Court proceedings were preceded by an inspection of the exterior of the site and into the site’s basement car park together with a walk around the relevant portion of the immediate precinct. The inspection also encompassed an inspection of the exterior of the Grosvenor Street store.

28 The view was undertaken in company with the experts and the legal representatives of the parties. During the course of this view, informal evidence was taken from a number of the objectors to the proposal. Additional evidence was taken from the experts and from objectors during the in-Court hearing.

The traffic and parking evidence

29 The process of evolution of the traffic and parking evidence warrants specific noting. Although Mr Morse was appointed as the court-appointed expert on these matters, I permitted additional expert evidence from each of parties given the determinative nature of the parking issue. This evidence was taken concurrently.

30 As it had become clear that parking capacity and parking impacts from the site were the sole determinative issues in dispute between the applicant and the council (although, as noted above, the objectors also pressed a range of matters in which they considered should cause me to reject the appeal), I considered it appropriate to deal with the parking and traffic material from the experts at the commencement of the court hearings in order that the widest range of objectors who attended the hearing would have an appreciation of that evidence prior to giving them their own evidence.

31 As that evidence unfolded, Mr Marshall produced a number of revisions of a series of calculations which he had undertaken in his assessment of the proposal’s parking impact.

32 In addition, the parking and traffic evidence involved a deal of additional calculating and conferencing between the experts. This was particularly required in light of the commercial operational evidence on the turnover expectations and growth projections for the proposed Rangers Avenue supermarket. This evidence, given by Mr Thomas, was significant for reasons dealt with elsewhere in this decision.

33 As a consequence, at the time of closing submissions, Mr Baird, solicitor for the council, sought to tender a further written statement of submissions from the Neutral Bay Residents Action Group, which statement dealt with material arising out of the Court evidence given by the experts and by Mr Thomas.

34 Although Mr Hemmings QC, solicitor for the applicant, objected to its admission on the ground of its lateness, Mr Baird submitted that admitting it was an appropriate course to follow given the way the traffic evidence had evolved. I accepted this latter submission and admitted this material.

The planning framework

35 The site is zoned Mixed Uses under the North Sydney Local Environment Plan and the proposed uses are permissible with consent. Matters of existing use rights do not arise.

36 North Sydney Development Control Plan 2002 (the DCP) applies to the site and contains, relevantly, in Part 9, the provisions concerning car parking requirements.

Continued trading of the Grosvenor Street Woolworths’ supermarket

37 Acceptance of the proposed Rangers Avenue supermarket can only have any prospect of success if my assessment is undertaken on the basis that the existing Grosvenor Street supermarket will continue to trade.

38 The applicant advanced the proposition, as discussed when considering Mr Thomas’s evidence, that the new supermarket is needed solely to address what it describes as “over-trading” at the Grosvenor Street store.

39 As a consequence, I put to Mr Hemmings that, if I were otherwise satisfied that the proposal should be approved, I would only be prepared to do so if I were able to be satisfied that the Grosvenor Street premises would also continue to trade.

40 Therefore, I asked him if the applicant was prepared to accept a condition to the effect that any approval for the Rangers Avenue premises would only be effective whilst there were a Woolworths’ supermarket continuing to trade at Grosvenor Street.

41 Mr Hemmings informed me that the Woolworths supermarket at Grosvenor Street was subject to a present lease which expires in 2014 with an option for a ten year renewal.

42 He indicated that, subject to consideration of the specific drafting of any condition which linked the life of the consent for Rangers Avenue to continuation of trading of a Woolworths’ supermarket at Grosvenor Street, he was instructed that his client was prepared to accept such a condition.

43 I am satisfied that the imposition of such a condition would meet all three of the tests deriving from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599 and could therefore properly be imposed.

44 I have concluded that the appeal should otherwise be upheld, but it can only be upheld on the basis on the incorporation of such a condition in the consent. I therefore direct the parties to settle the terms of such a condition for incorporation in the conditions of consent.

The applicant’s economic model in support of a second Woolworths’ supermarket in Neutral Bay

45 Mr Thomas gave evidence that the Grosvenor Street store is trading in an unsatisfactory fashion (from a corporate strategic perspective). It is doing this because the Grosvenor Street store is doing what he describes as “over-trading”.

46 His written evidence shows that the Grosvenor Street store has a gross floor area of 3800 sq m and has an annual turnover of $79.2M. This gives a turnover of $20,800 per sq m per annum.

47 Woolworths’ national store average is $9,300 per sq m per annum and its average within New South Wales and the ACT is $10,700 per sq m per annum.

48 It was Mr Thomas’s evidence that the Grosvenor Street store was trading in a fashion that means it had already maximised or, indeed, had over-maximised its trading potential. As a consequence, it was his view that there was no scope for sustained growth in the trading of that store.

49 He gave oral evidence that, if the Rangers Avenue store were to be established, he would expect that the annual turnover for the new store would be between $35M and $40M and that turnover for the existing Grosvenor Street store would reduce to the order of $55M.

50 It was his evidence that the likely total turnover of two stores would be $90M to $95M – an increase of ~ $15M over the present turnover of the Grosvenor Street store. These stores would both then be trading in what he considered was a commercially desirable fashion.

51 In response to a question, he indicated that the highest level that the Rangers Avenue store could possibly achieve at the commencement of its trading would be $45M per annum. He considered this to be entirely improbable of achievement.

52 It was also his expectation that a Rangers Avenue store would grow at a compounding annual rate of between 2% or 3%. Part of this would be price inflation and part would be derived from an increase in real terms in the average size of purchase made by each customer.

Deliveries to the store

53 The applicant has had a Transport Delivery Management Plan (the delivery plan) prepared to set a framework for deliveries to the Rangers Avenue store. It would be adopted as part of the conditions of consent. No such plan exists for the Grosvenor Street store.

54 The delivery plan indicates that the expected number of deliveries generally will be between 20 and 30 per day. The majority of these will be by small trucks and vans.

55 The delivery plan notes that the route expected for vehicles approaching from the west will be for them to turn right from Military Road into Watson Street; turn left from Watson Street into Yeo Street and then left into Military Lane. Those vehicles will include most of the vehicles directly contracted to Woolworths. Some vehicles may be expected to arrive from the east - turning left from Military Road into Rangers Road; then turning right from Rangers Road into Yeo Street and then right into Military Lane.

56 Some small number of vehicles which may have been servicing other facilities in the locality may use some other travel pattern to arrive at Military Lane. All vehicles will need to use part of Yeo Street approaching Military Lane.

57 It is expected that virtually all vehicles departing from the site’s loading dock will turn right into Yeo Street from Military Lane; turn right into Wycombe Road and then left or right at Military Road.

58 As a consequence of these delivery patterns, vehicles are likely to travel past the Neutral Bay Public School and Uniting Church (and its preschool) only when travelling from west to east. This will include the majority of Woolworth’s own contracted vehicles as these vehicles will be instructed to use the identified routes set out above.

59 These delivery patterns are relevant to several issues raised by objectors.

Parking

60 Provisions relevant to car parking on the site are contained in Part 9.2 of the DCP.

61 Until the amendments to the DCP which were adopted by the council on 7 March 2005, there was no specified separate parking requirement for supermarkets other than the general requirement for non-residential uses not otherwise specified which applied to a number of locations including Neutral Bay. This required a maximum of one car parking space per 200 sq m.

62 Following the adoption by the council and the coming into effect of the amendments to the DCP, this provision continued to apply to the commercial space and to the liquor outlet at the site.

63 However, a new requirement for a maximum car parking space calculation was set for supermarkets and, relevant to the site, the rate for such calculation is 4 car parking spaces per 100 sq m.

64 Critical to my consideration of the parking issue is the approach to be taken to the terms of the relevant provisions of the DCP which apply to on-site parking.

65 Three questions lie at the heart of my consideration of these provisions.

66 The first question is what conclusions, if any, should be drawn from the process leading to the recent amendments to the DCP to provide a specific maximum number of car parking spaces required by supermarkets such as that which is the subject of the present application.

67 The second question is whether my assessment of retail parking demand should be based on the survey methodology originally undertaken by Mr Rogers and subject to commentary by Mr Morse and Mr Marshall or whether a preferable approach would be to use the calculations derived from a consideration of Mr Thomas’s commencement trading expectations and future trading growth projections. Having chosen the preferable methodology, it then must be applied to calculate the retail parking demand and be added to the other elements of parking demand arising from the site.

68 The third question is one of interpretation as to what the tests posed by the DCP mean (if I were to accept that significant weight should be given to the recent supermarket parking requirement amendments to the DCP).

69 I turn to the first of these questions.

70 The approach I must take to the DCP is required to be consistent with that prescribed by the Court of Appeal in Zhang v Canterbury City Council 115 LGERA 373.

71 Although this Court has a wide-ranging discretion, that discretion is not at large and is not unfettered and the provisions of this development control plan are to be considered by me as a fundamental element in or a focal point to my decision-making process in this appeal.

72 However, it is also clear from the remarks by Spigelman CJ in Zhang that a provision of a development control plan directly pertinent to the application is entitled to significant weight but it is not in itself determinative.

73 On the other hand, if a proposal does not meet a development control plan’s requirements, the Court may still grant consent in an otherwise appropriate case given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act.

74 Equally applicable are the remarks of McClellan CJ in dealing with the questions of whether or not a plan has been brought into being or an existing plan amended in order to frustrate a specific proposal.

75 Although the paragraph of his decision in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 set out below related to policy documents developed by a council, in my view they are equally applicable to the provisions of a development control plan. Relevantly he said:

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.

76 Mr Hemmings invites me to draw the conclusion from the chronology leading up to the adoption of the supermarket parking provisions of the DCP that the paralleling of these amendments with the council's consideration of the applicant's proposal must inevitably lead me to the conclusion that the amendments were simply designed to defeat the proposal. Therefore, he submits that they should be given negligible weight in my deliberations.

77 Mr Baird, on the other hand, submitted that the adoption of the supermarket provisions arose from a detailed and proper review of the provisions of the DCP and that I should give them the appropriate weight required by Zhang.

78 I satisfied that, from a consideration of the various documents providing an understanding of the chronology of the review and public consultation process leading to the adoption of these provisions that they were not adopted for the purpose of defeating the present application. The consequence of this conclusion is that I must, therefore, give them considerable weight in my deliberations.

79 However, having said that, reaching such a conclusion is, in reality, a two edged sword for the council.

80 The necessary underpinning for such conclusion is that there has, in fact, been a detailed review of the adequacy of the parking provisions contained in the DCP. That review did not propose any change to the parking provision requirements for commercial car parking calculations applicable to the site. Thus it is appropriate for me to conclude that, in addition, the negative inference should be drawn that the council did not see anything unsatisfactory with those commercial car parking space standards. This latter position assumes some importance in my later consideration of how the third of my questions should be answered.

81 Next, I turn to the appropriate methodology for calculation of parking demand and the results of its application to various elements associated with the proposal.

82 The late written evidence which I agreed to accept on behalf of the Neutral Bay Residents Action Group contained a critical analysis of:

• Mr Rogers’ survey based assessment of parking demand for a Rangers Avenue store extrapolating from the existing Grosvenor Street store; and
• The turnover based parking calculations founded on Mr Thomas’s evidence.

83 It was agreed by all three experts that the use of turnover and growth figures was an appropriate, accepted and indeed well understood methodology for ascertaining parking demand for such retail operations.

84 On the other hand, there was considerable disagreement between the experts as to what conclusions should be drawn from the parking survey information derived by Mr Rogers with respect to the Grosvenor Street store. His initial assessment was based on making assumptions as to what would be the trading transfer from the Grosvenor Street store to a Rangers Avenue store. This assumption did not accord with the specific range of expectations arising from Mr Thomas’s evidence.

85 In addition, although Mr Rogers survey was based on interviews with customers within the Grosvenor Street store, the parking serving the Grosvenor Street store is not confined to off-street parking within the premises but also included parking in an adjacent free council car park.

86 As a consequence, there was considerable discussion about (and written statements of evidence tendered concerning) the survey-based evidence. Indeed, Mr Marshall queried the validity of the survey methodology’s assumption as to when might be the peak demand period for parking. This and other queries he raised concerning this approach would have meant that, absent the alternative approach available based on Mr Thomas’s evidence, I would have had a deal of doubt as to whether I had adequate information to assess this issue without extensive further oral evidentiary exploration of this approach.

87 However, I am satisfied that greater precision is likely to be available from analysis based on the uncontradicted evidence of Mr Thomas.

88 Thus, the preferable and significantly more accurate projections for retail parking space demand are those to be derived from consideration of Mr Thomas’s figures.

89 As a result of this application, the basement car parking area is to be reconfigured leading to a reduction of 10 car parking spaces from the number presently available. This will result in 111 car spaces being available in total – of which 90 to be dedicated to the retail operations.

90 Twenty-one of the proposed 111 car parking spaces in the basement car park are to be dedicated, during normal business hours, for use by the tenants of the commercial occupancies. Although there is a dispute as to the operative time, it has been agreed that, outside normal commercial usage times, these 21 parking spaces should be available for customers of the retail facilities. These car parking spaces are separated from the main bulk of the car park and accessed by a pass operated boom-gate. The boom will be fixed in a raised position during the hours when the spaces are to be available for retail customers.

91 Two new disabled car parking spaces are to be created outside the site on Rangers Avenue. The three experts agreed that it was appropriate that, as these disabled spaces would be created by the development, they should be credited to the total of parking created by the development – despite the fact that they were not within the controlled car parking area.

92 As noted earlier, the DCP has a formula for parking requirements for the commercial space on the site. The required number of parking spaces for the commercial space, at the time of the initial approval and that now required by the DCP, is the same. This requires the provision of 11 car parking spaces for the commercial space thus revealing, on the basis of that which was and is to remain provided, a surplus of 10 spaces being allocated to the commercial tenancies.

93 However, Mr Marshall has applied differing bases for calculation of the parking demand for the commercial space at the time that the initial consent was granted in 1985 and that which he considers appropriate to be applied at the present time.

94 He does this by taking the gross floor area of the commercial space and applying a parking demand calculation based on Roads and Traffic Authority (RTA) information for persons travelling to work by vehicle in the localities he considers the appropriate catchment for employees of tenants of the commercial premises.

95 Applying the 1985 formula to the gross commercial floor area leads to 51 car spaces being required and applying this approach but using the current revised RTA formula would mean that, for the present application, 42 commercial car spaces were now required.

96 I asked the three experts to undertake parking calculations based on the turnover position postulated by Mr Thomas as being the maximum (but unlikely) trading figure for the initial turnover of a Rangers Avenue store coupled with the application of his maximum rate of growth for that turnover compounded over a 10-year period.

97 Approaching such calculations by adopting the most optimistic commercial position based on Mr Thomas's evidence also means adopting the most disadvantageous position to the applicant concerning parking demand calculations.

98 The consequence of doing that – that is adopting a $45M per annum initial turnover and compounding growth of that figure at 3% per annum for 10 years – led the three experts to an agreed set of calculations on what will be maximum retail (supermarket and liquor store) parking demand at the commencement of trading of a Rangers Avenue store and after 10 years of operation.

99 As a result of these calculations, the experts agree that, including the liquor store trading expectations, the first year total parking demand for customers of the retail space would be 79 car parking spaces with that that growing to 90 parking spaces at the end of 10 years.

100 It will also agreed between the three experts that, for the Woolworths’ supermarket and liquor store, demand would be generated for staff for a total of 15 car parking spaces. It was also Mr Thomas's evidence that this was unlikely to change over the 10-year period. It was Mr Thomas's evidence that the company did not provide any parking for its staff at such premises.

101 It was the combined position of Mr Morse and Mr Rogers that, under the consideration of the previous retail trading of specialty shops and the smaller Franklins operation, there would have been a staff parking demand of 16 car parking spaces – all of which would be expected to used parking offsite and not to have paid for their parking.

102 Mr Marshall agreed with the calculations concerning parking demand for the former use but disagreed as to the number who would have parked off-site. It was his expectation that approximately one half of the 16 people, therefore requiring ~8 car spaces, would have parked on-site and thus there were would be an increase in offsite parking demand for staff purposes of 7 car spaces if the proposal were to go ahead.

103 I was not directed by any of the experts to any study that would cause me to have some independent basis for preferring one calculation to the other. As a consequence, I am obliged to determine which position I should accept without any external reference material to guide me.

104 All three witnesses are established and recognised experts in this field. Although it is a matter of very fine balance, I accept the joint position of Mr Morse and Mr Rogers in preference to that of Mr Marshall on this point.

105 I do so not merely because it is a case of two experts to one but also because Mr Marshall's evidence, coming as it did over a number of days, was modified, from time to time, as the evidence unfolded.

106 Specifically, Mr Marshall's concerns about the number of parking spaces which may have been paid for in the earlier operating retail regime came as an additional and later response after he had indicated his concurrence in the agreed calculation of such demand numbers.

107 Although he was confident that there would be would have been some paid parking on-site under the former operating retail regime by proprietors or staff of specialty shops, he was less confident as to precisely how many would been so paying – expressing the opinion that it might have been “about half”.

108 A consequence of the way the discussion on this point went, I am satisfied with my acceptance of the agreed position of all three experts as to the demand numbers but I am satisfied that I should, on balance, prefer the evidence of Mr Morse and Mr Rogers that the old operating retail regime numbers would have been for offsite car spaces as will be all those under the proposed retail structure. Thus, if looked at in crude numerical terms, there would have been 16 off-site car spaces used under the old trading arrangements and there would be 15 off-site car spaces used under the new trading arrangements.

109 In summary, as a consequence of my consideration of the various agreed and disagreed positions of the traffic and parking experts, I have determined that I should:

• use Mr Marshall's formula for the commercial office parking demand and not reduce it for any further future public transport shift (contrary to the shift in the RTA calculation basis acknowledged by Mr Marshall since 1985);
• use the turnover basis as the preferable method for calculation of the car parking demand for the retail portion of the site; and
• interpret the evidence concerning present and past staff parking demand and whether it would be on or off the premises as reflecting no change between the past and proposed retail operating regimes

110 I am left with the following two positions.

111 The position arising for an initial full 12 month trading period for a Rangers Avenue supermarket and liquorstore is:

Commercial car space demand 42
Retail car space demand 79
On street staff car space demand 15

112 The corresponding position at the end of 10 years, on the basis of the most optimistic trading data postulated by Mr Thomas for the applicant (hence the worst parking position), would be:

Commercial car space demand 42
Retail car space demand 90
On street staff car space demand 15

113 Finally, I turn to the way to apply the tests in the DCP as to the adequacy of parking provisions.

114 First, in doing so, I note that Mr Hemmings submitted that I should only have regard to the assessed presently impacts of the proposal rather than trying to deal with it on the basis of the projected demand 10 years in the future.

115 I considered it appropriate to test the application against the projected demand in 10 years time as, if the proposal were to be acceptable on the proper interpretation of the tests on this basis, there is no question arising its acceptability on the present day parking assumptions.

116 The objective of Part 9.2 of the DCP is set out in 9.2.a and reads:

Reduce on-site car parking due to the proximity of public transport. Contain traffic congestion and facilitate use of public and alternative transport modes including walking and cycling.

117 The tests relating to the adequacy or otherwise of car parking provided for the site arise from cl 9.2.a.vii. I note that the version of the DCP tendered includes two separate provisions numbered as cl 9.2.a.vii. This decision treats the first as being “the real thing” and ignores the second. The provision reads:

On-site car parking provision significantly below maximum rates specified above, will generally not be accepted due to the impact that additional vehicle parking may have on surrounding residential streets.

118 The matters which arise to be determined from this provision, in my view, are as follows:

• What is the maximum rate for each element in the proposal?
• Is the on-site car parking provided for such element significantly below that required?
• If on-site car parking is significantly below these maximum rates, will this result in unacceptable additional vehicle parking on surrounding residential streets?
• Are these tests to be applied in some cumulative fashion or should they be applied sequentially?

119 In this case, in addition to the parking rates specified in the DCP, the council urges that I should adopt two other bases for calculation of what additional vehicle parking may be transferred to the surrounding residential streets.

120 These, it is submitted, should be based on my acceptance of the validity of and thus my agreement to rely on Mr Marshall's calculations concerning parking demand for the commercial occupancies on the site and what he regards as the transferred off-site parking for staff servicing the retail areas of the site.

121 There is no doubt that the car parking provided for the commercial space is nearly double that required by the DCP’s provisions in cl 9.2.a.v. Indeed, there is a surplus of 10 car parking spaces in this regard.

122 With respect to the retail component, application of the supermarket rate in the Schedule linked to cl 9.2.a.iii of the DCP and the rate in cl 9.2.a.v to the liquor outlet requires the provision of 137 car spaces.

123 Critical to the last test is the use of the words “rates” in cl 9.2.a.vii rather than some other formulation of words. The range of rates in 9.2 envisages, amongst other things, mixed developments of varying commercial types or of mixed residential/commercial composition. The provision does not say “the total of the maximum rates for a site” which would lead to an aggregation of consideration of parking impacts rather than separate consideration of each type of impact.

124 As a consequence, I consider it appropriate to test the adequacy of each of the elements of parking generated by the site, separately, against the tests to whether an element will transfer additional vehicle parking which will have an adverse impact on surrounding residential streets.

125 The first matter, therefore, was the issue of the adequacy of the commercial car parking spaces. I note that these spaces are more than sufficient to comply with the requirements of the DCP.

126 There was disagreement between the experts as to whether or not Mr Marshall's calculation of a significantly higher level of demand than that required by the DCP was appropriate. However, if adequate on some basis when tested against these numbers, this disagreement is rendered irrelevant.

127 I note that the RTA guidelines calculations at the time of the original consent, when the same council parking requirements applied, is significantly higher, by 9 car spaces, than that which would apply from the present RTA guideline calculations undertaken by Mr Marshall.

128 As a consequence, I am satisfied that, even if compliance with the DCP numbers were not sufficient (which I consider it is), the commercial based parking spaces more than satisfies the requirements of cl 9.2.a.vii. I have so concluded because of the fact that the generated demand on the alternative calculations on the 1985 and the 2005 RTA guidelines demonstrates that there is, on those calculations, as a result broader public policy application (consistent with objective contained in cl 9.2.a), a reduction in the requirement for commercial car parking spaces on the site.

129 As a result, nothing arises from the commercial car parking spaces which would warrant rejection of the application.

130 With respect to be retail parking provision, there is, on the basis of the calculations set out above earlier in this decision, a shortfall of 47 car spaces.

131 There is no doubt that this is significantly below the relevant maximum rate to rise from application of cl 9.2.a.iii and the Schedule referred to therein. However, I am satisfied that the simple numerical calculations are not the end of the matter. What is necessary, for the reasons set out above, is to test whether, as a matter of fact, acceptance of such a shortfall would result in unacceptable additional vehicle parking impacts on surrounding residential streets.

132 In this regard, the agreed parking calculations derived from Mr Thomas’s evidence are critical. They demonstrate that, at commencement of operation of the Rangers Avenue supermarket, there would be a demand for 79 car spaces for servicing the entire retail area. This is 11 car spaces less than the 90 that will be available.

133 The available 11space surplus also does not make any allowance for the disabled car parking spaces on Rangers Avenue or the availability during evenings at least after 6 p.m. of the 17 commercial car spaces.

134 Accepting the calculations based on the commercially best (and parking worst) outcome for the applicant in 10 years time, the totality of the car parking demand is that 90 spaces will be required. This also does not take into account the other additional availability is noted above.

135 As a consequence, although ordinarily I accept that one would only test acceptability on a present case basis, I satisfied that, in 10 years time, there will be satisfactory on-site parking for retail customer servicing.

136 Whilst I do not have any information as to the cycle of parking demand, it is not unreasonable to assume that some element of that is able to be absorbed by the two disabled car parking spaces and, in the evenings, by the availability of the freed-up commercial car parking spaces.

137 In addition, it was the agreement of the experts that I should base my assessment on these numbers as being representative of the actual demand.

138 I am therefore satisfied that there will not be an additional (or any) unacceptable impact caused to surrounding residential streets of the shortfall from the maximum rate of car space provision for the supermarket and liquor component of the proposal.

139 As to staff parking, I have concluded, for the reasons set out earlier, that I should prefer the evidence of Mr Morse and Mr Rogers on this point. As a consequence, there is at least an equal impact of the prior retail uses compared to that of the proposed uses. In favour of the applicant, it is possible that there may be a decrease of one off-site car space demand to service the parking the staff of the proposal compared to the proprietor and staff parking demands under the previous retail uses.

140 This issue, without doubt, should, however, be regarded as neutral. It certainly does not create any additional adverse vehicle parking impacts on surrounding residential streets.

141 In total, therefore, I have concluded that on any proper construction of cl 9.2.a.vii, it is appropriate to accept the provision of car spaces on the site as envisaged by the application as there will be no additional adverse vehicle parking impacts on surrounding residential streets as a consequence of the application either at present time or 10 years hence.

Consideration of the remaining issues

142 Prior to considering the detail of the various issues which I am required to determine, I record that the objectors’ fears of adverse impacts, no matter how genuinely felt, are relevant only to the extent that there is a reasonable probability that the feared impacts will eventuate. Whether there is such a probability is to be assessed not merely on the basis of the evidence of the objectors as to the foundation of the fear but also on what expert evidence (if any) is available on the issue.

A smaller store than that proposed?

143 The council and the objectors raised the issue as to whether or not a smaller scale Woolworths store would still be an appropriate and economically viable operation on the Rangers Avenue site without imposing what the council and the objectors considered to be unacceptable parking demands spilling out from the basement car park into surrounding streets.

144 The model offered by the council is one based on a smaller store at Potts Point. Mr Thomas gave evidence as to why the company did not consider that this smaller scale model was appropriate.

145 Mr Thomas described, in his written evidence, what he considered were the commercial risks to the company, in constructing or operating anything less than a supermarket of what he described as a full-service model. In his written evidence he said:

Woolworths have attempted, at the request of council, to evaluate the likely performance level of the proposed store if a smaller module were established, with this store being augmented by other external facing (e.g. streetfront) or internalised specialty stores space. Essentially, our conclusions are that:

• There would be no need reduction in generative demand in the areas of car parking or traffic i.e. specialty space would drive demand load in these areas in the same manner as the equivalent space within a larger supermarket
• There would be a significant risk of not solving the problem that we are trying to address (the overtrading that exists at Grosvenor Street) as
• If the proposed Neutral Bay Village store is reduced in size, the offer to customers is reduced
• Departments are sacrificed in a smaller footprint e.g. bakery, meat, deli, grocery range becomes smaller
• Customers expect Woolworths brand to offer a one stop shop convenience as offered as Grosvenor Street
• It is extremely likely that customers would try the Neutral Bay Village store once or twice then revert to the larger full range Grosvenor Street compared to compromised/partial offer Neutral Bay Village store

146 This position was explored more fully in his oral evidence but to the same conclusions.

147 The objectors put the position that there has been no proper (or any) demand survey or projections undertaken as to Mr Thomas’s assumptions on the level of business that will be transferred from the Grosvenor Street store nor as to what additional business might be attracted from other smaller IGA supermarkets in neighbouring suburbs. The consequence of this, it was put to me, was that it would be inappropriate to approve the present proposal unless such data were to be provided.

148 I have set out, earlier, in some detail, the applicant's economic expectations of a second Woolworths’ supermarket in Neutral Bay. That model is, as earlier discussed, predicated on the proposition that the combined turnover of a supermarket at Grosvenor Street and one at Rangers Avenue would be modestly greater than the combined total turnover of the existing Grosvenor Street store. That proposition necessarily implies that there will be some additional customers attracted to the two Woolworths’ supermarkets compared to that presently attracted to the sole supermarket at Grosvenor Street.

149 As I have determined the parking issue on the assumption that the least advantageous to the applicant's position (from a parking perspective) would apply to my assessment, I am satisfied that it would also be reasonable to assume that such a position would comprehend the worst position, from the objectors’ point of view, of the attraction of additional patrons to the two stores and, thus, additional patrons to the Rangers Avenue store beyond those merely transferring their patronage from Grosvenor Street store.

150 Although it is true that I do not have detailed demand surveys, I do have the uncontested evidence of Mr Thomas on this point. It is entirely appropriate for me to accept that his opinions were offered from the basis of his considerable established experience in supermarket retailing not merely with Woolworths but also with Franklins.

151 In the absence of any alternative expert evidence and using, as I do, the worst position for the applicant for my assessment of the sole single determinative issue and the proposal not failing on that issue, I consider that it would be wrong for me to determine that some smaller Woolworths’ supermarket would be appropriate.

152 In doing so, I note that it was Mr Thomas’s uncontested written evidence that:

There would be no need reduction in generative demand in the areas of car parking or traffic i.e. specialty space would drive demand load in these areas in the same manner as the equivalent space within a larger supermarket

153 As a consequence, even had there been any evidentiary basis for the conclusion that there might be some social benefit in requiring a smaller Woolworths’ supermarket, I am satisfied that, in practical terms, there would be no parking demand benefit in my doing so.

Were all traffic generating developments considered?

154 Several of the objectors, in their written objections as well as in their oral evidence, raised the issue as to whether or not the traffic and parking experts had considered any cumulative impact of other proposed developments such as the combined retail/residential development proposed for 203 Military Road and 4 Rangers Road – being a development approved by the council in ~ 2003 but not yet constructed.

155 All three of the experts, when asked to deal with this issue, indicated that, having taken account of those developments, they were satisfied that any additional traffic generated by those developments would not alter their assessment of the present proposal. In the absence of any expert evidence to the contrary, I accept this position and, therefore, no matters warranting refusal or contributing to the warranting of refusal arise from this issue.

Impact on the Uniting Church in Yeo Street

156 Rev Trevor Jennings, Minister of St Johns Uniting Church at 49A Yeo Street raised concerns, on behalf of the Church, that increased heavy truck traffic passing the church in Yeo Street to the site might have an adverse impact on the foundations of the church building as the church building is, I was informed, heritage listed by the council.

157 Mr Jennings gave evidence that, some years ago, the foundations of the church building needed to be stabilised and renovated in order to ensure the stability of the building. His written submission requested that the council undertake a structural impact study on the effects of heavy vehicles may have a common church before deciding to grant approval to this application.

158 I raised with Mr Hemmings the issue of what attitude the applicant would take to a condition requiring a dilapidation report to be prepared, at the applicant's expense, on the church building to ensure that, if there were any subsequent dispute relating to what impact, if any, heavy vehicle traffic generated by the proposal might be having on the church, an appropriate factual basis for such discussion would exist. Mr Hemmings indicated that, although the applicant did not consider that such a report was necessary, it would not oppose a condition requiring such a report.

159 As I have uncontested evidence that stabilisation works were necessary to the heritage listed building at some stage in the past and that approval of the application would result in a number of large delivery vehicles passing the front of church when accessing the site from the west, it would be appropriate to require preparation of such a dilapidation report. The parties are, therefore, directed to settle a condition giving effect to this requirement.

Pupil drop-off and collection at the Uniting Church pre-school and at Neutral Bay Public School

160 Pupil drop-off and collection for the Uniting Church preschool takes place outside the preschool in Yeo Street. Pupil drop-off and collection for the Neutral Bay Public School takes place in Bydown Street to the south of Yeo Street. Concern was expressed on behalf of the parents of both facilities that the increase in traffic in Yeo Street would increase the risk to parents and pupils of the two facilities.

161 I asked the three traffic and parking experts to consider whether there was any merit in prohibition being imposed, as part of the delivery plan, on deliveries to the site during the morning and afternoon times when pupil drop-off and collection might be expected.

162 In their assessment, given that there are not to be heavy vehicle movements westward along Yeo Street beyond Wycombe Road as a consequence of the proposal, there would be negligible (if any increase) in the risks for parents and pupils from approval of the application. In the absence of any expert evidence to the contrary, I have concluded that there is nothing associated with this issue warranting refusal or contributing to the warranting of refusal nor requiring the imposition of any restriction on delivery hours.

Noise impact on classrooms at Neutral Bay Public School

163 The submission and oral evidence on the half of the Parents and Citizens Association of the Neutral Bay Public School raised the issue of noise levels impacting on pupils in the demountable classroom within the school grounds at corner of Yeo Street and Bydown Street and possible noise impacts on pupils in the two classrooms contained in the brick building in the grounds near the corner of Yeo Street and Ben Boyd Road.

164 It was the evidence of the noise experts that there was not likely to be any noise impact on any of those classrooms which would warrant noise amelioration treatments being undertaken to them. However, the calculations undertaken by Dr Tonin made it clear that this position was marginal and, on my assessment, possibly within the statistical sampling error range.

165 Whilst I am not satisfied that there is an established need for works to be offered to be undertaken by the applicant with respect to these classrooms, I do consider that it would be appropriate to take a precautionary position with respect to this issue.

166 I therefore put it to Mr Hemmings that a condition might be appropriate which required the applicant to undertaken noise testing of these classrooms, throughout a school day, within three months of commencement of operations, on an ordinary operating day for the supermarket.

167 I put to him that if such testing disclosed that there was an attributable impact causing, for these classrooms (or any of them), breach of the Department of Environment and Conservation’s Environmental Criteria for Road Traffic Noise, the applicant should be required, in conjunction with the council, the school and its Parents and Citizens Association, to design and undertake appropriate noise attenuation measures.

168 Mr Hemmings agreed that the applicant would accept such a condition and he also agreed that it would be appropriate to require such testing to be undertaken by Dr Tonin as a continuation of his independent expert role with respect to the proposal. I therefore direct the parties to settle the terms of such a condition for incorporation in the conditions of consent.

Traffic volumes in Yeo Street

169 I asked the traffic and parking experts whether there would be any beneficial effect on traffic in the surrounding streets if entry to and exiting from the basement car park onto Yeo Street were to be confined to a “left turn in, left turn out” regime enforced by the erection of a suitable median strip opposite the car park ramps in Yeo Street. It was the agreed position of all the experts that there will be no benefit from imposing this control.

Adequacy of the loading dock

170 The loading dock is designed to cater for one large rigid truck with a maximum length of 12.5 m and one smaller rigid truck to a maximum length of 8.8 m.

171 There is a dispute about the capacity of the loading dock to handle the larger rigid trucks (this being an issue raised by the objectors).

172 The agreed position between the traffic and parking experts that the loading dock is adequate for these larger vehicles. As a consequence, in the absence of any expert evidence to the contrary, I accept that the loading dock is capable of handling the vehicles proposed.

Parking in Military Lane

173 The Neutral Bay Chamber of Commerce raised the issue of the possible impact on parking in Military Lane of using the loading dock for the proposed level of deliveries.

174 Along the western side of Military Lane, there is presently a No Parking restriction. The consequence of this is that there is the possibility of short term stopping for delivery services in any area which is not an existing driveway serving premises on that side of Military Lane.

175 The traffic and parking experts do not raise any issue with this parking and indicated that there appears no impact of use of the loading dock on it.

176 The question as to whether or not the No Parking restrictions should be replaced with some other parking classification such as No Standing or No Stopping is not a matter for my determination in this application.

177 I am satisfied that, on the experts’ evidence as to the present parking classifications (and in the absence of any evidence from the council that it proposes to satisfy the aspirations of the Chamber of Commerce for some footpath construction along the western side of Military Lane) there is nothing associated with this issue warranting refusal or contributing to the warranting of refusal arise from this issue.

Headlight impact on 1/57 Yeo Street

178 As earlier noted, the exit ramp to the car park is to be reconstructed. Although Mr Morse and Mr Rogers did not consider this necessary, it was pressed as desirable by Mr Marshall and agreed to by the applicant.

179 Although this was resolved by agreement, it is related to one of the objectors concerns dealt about the impact on her residence of headlights from vehicles departing from the car park late at night.

180 This objection was contained in the written submission of Ms Edith Petri, an eighty-year-old woman living in 1/57 Yeo Street opposite the car park ramps.

181 I observed the location of her unit during the course of the view. It was subsequently confirmed to me that hers was the western of the ground floor units of these premises. This unit has a lower boundary wall to the Yeo Street frontage than its companion unit to the east.

182 I put to Mr Hemmings that, if requested to do so by Ms Petri and approved by the body corporate of the block of units, it would be appropriate for the applicant to erect a lattice extension to the right hand front boundary wall of these premises ~ 600 mm or so high in order to address any additional headlight impact on Ms Petri’s unit – particularly as the reconstruction of the car park exit ramp might well increase such headlight impacts. He indicated that the applicant would accept such a condition. I therefore direct the parties to settle the terms of such a condition for incorporation in the conditions of consent.

NSW Fire Brigade’s Neutral Bay station

183 A station of the New South Wales Fire Brigade is located on the northern side of Yeo Street between Barry Street and Bydown Street. This engendered concern being raised by objectors as to whether or not any increased traffic congestion in Yeo Street caused by the proposal posed an unacceptable impact on the emergency response ability of the Fire Brigade.

184 This matter was considered by the traffic and parking experts who all agreed that there would be negligible (if any) impact of this nature. As a consequence, I am satisfied that there is nothing associated with this issue warranting refusal or contributing to the warranting of refusal.

Delivery hours

185 With respect to the operating hours of the loading dock, the parties are in agreement as to the hours which should apply Monday to Saturday – that is from 7 am to 10 pm.

186 However, on Sunday, the applicant seeks to operate the loading dock from 8 am to 6 pm whilst the council proposes that the commencing time for the loading dock on Sundays should be 9 am but agrees with the 6 pm concluding time.

187 The council says that, on Sunday, which is the day of the week regarded as a day of rest (whether for theological reasons or otherwise), the later starting time would be appropriate.

188 The applicant did not provide any specific or compelling reason as to why the loss of this single hour of availability of loading dock would be essential or critical to its commercial operation.

189 In the circumstances, I consider it would be reasonable to require the company to adhere to the proposed later starting time on Sundays for the loading dock.

Trading hours

190 The applicant seeks trading hours for the supermarket between 7 am and midnight Monday to Saturday and 8 am to 10 pm on Sundays. The council proposes that the trading hours should be from 7 am to 10 pm Monday to Saturday and 8 am to 6 pm on Sundays.

191 It is, therefore, the agreed position that the terms of the conditions of consent should provide, on an ongoing basis, a consent permitting trading during the hours proposed by the council.

192 The only issues which therefore arises for my determination are whether or not it would be appropriate to permit trading beyond the hours proposed by the council and, if so, whether that should be on a permanent or trial basis.

193 I have concluded that it would be appropriate to permit trading to the later hours proposed the applicant but that it would be unreasonable to do so on a permanent basis and that a 12 month trial period from the commencement of trading of the Rangers Avenue store would be appropriate.

194 This trial will provide the parties with an opportunity to assess whether there are adverse impacts of the later trading hours on surrounding residents and if so whether such impacts warrant discontinuance of the extended period at the conclusion of the 12 month trial.

195 I have reached this conclusion because I have not been given any evidence of adverse impacts apart from the residents’ apprehensions of such adverse impacts. In addition, I have not been given any evidence of adverse impacts, if any, of the trading hours at the Grosvenor Street store.

Sign illumination

196 The question arises, having concluded what should be the trading hours of the Rangers Avenue store, what should be the position with respect to the hours of illumination of the Woolworths’ sign on the Rangers Road frontage.

197 I am satisfied that it would be appropriate and desirable, for the purpose of enabling a fair assessment of any impacts, if the Rangers Avenue sign were to be illuminated at all evening hours that the Rangers Avenue store is trading.

198 However, as portion of the Rangers Avenue trading hours are to be subject to a 12 month trial period, the operation of the illuminated sign should be on a similar basis.

199 Thus there should be a permanent and ongoing consent for the sign’s illumination during the permanent and ongoing trading hours whilst its illumination during the trial extended trading hours should also be on a trial basis. The parties are to settle the terms of a condition to give effect to parallel operating hours of the sign’s illumination.

Delivery numbers

200 The delivery plan, as earlier noted, envisages between 20 and 30 deliveries per day to the site. The council proposed that this be dealt with by the imposition of a condition setting 30 deliveries per day as the maximum permitted. The applicant proposed, in the alternative, that a degree of flexibility be imported by describing the maximum as typically not exceeding 30 per day.

201 I put to Mr Hemmings that a higher but set maximum number might be appropriate provided that 30 should not be exceeded on a seven day rolling average. He indicated that such a proposal was acceptable to the applicant and, after discussion, the parties agreed to an absolute maximum of 35 on any day.

202 Hence, a revised condition needs to be drafted which incorporates a fixed 35 maximum for deliveries on any day coupled with a daily 30 delivery maximum on a rolling seven-day basis.

Access to the commercial tenants’ car parking spaces

203 The parties agree the presently proposed condition relating to access after normal commercial hours for the 21 parking spaces set aside for the commercial tenancies requires redrafting in order to incorporate a requirement that the boom-gate for this area should be fixed in a raised position from 5pm so that any spaces in this area should be available, if vacant, for use by customers of the retail facilities after that hour.

204 However, it is also proposed by the council that there should be an appropriately imposed enforceable requirement on commercial tenancies that all parking for them should be vacated by a nominated time. The council presses that the nominated time should be 5 pm and that, as a consequence, there would be a practical addition of 17 car parking spaces (being 21 less the inner of each of the 4 tandem spaces) for retail users after that time.

205 The applicant’s position is that 5 pm would be an unreasonably restrictive requirement to vacate the commercial tenants’ car parking spaces but leaves it to me to determine what might be an appropriate time (if any) by which to require that place to be available.

206 I am satisfied that it would be unreasonable to assume that the totality of the commercial operations would cease at 5 pm and all persons parking in the commercial parking area would take to their cars, instantly, and leave the car park.

207 If there were not a modest degree of flexibility in this regard, I think it far more probable that the requirement would be ignored or commercial users who wished to say beyond 5 pm would move their cars into the retail section and adopt some artifice such as making a minor docketed purchase at the supermarket to obtain an additional free period of parking.

208 However, I do consider that it would be reasonable to impose some fixed time by which the spaces were required to be vacated – although, in doing so, I acknowledge that this may well be difficult to enforce.

209 I have determined, on balance, that an appropriate agree of flexibility for the commercial users whilst still providing a significant degree of guaranteed additional parking spaces for the retail premises would require that all commercial users vacate their car parking spaces by 6 pm Monday to Friday and, as envisaged by the present draft condition, there be no exclusive car space use rights for commercial tenants on weekends.

Trolley management

210 The council proposed a condition that would prohibit any shopping trolleys leaving the site and require Woolworths’ management to take steps to ensure that this were enforced.

211 Although I did not inspect the proposed pedestrian exit to Rangers Avenue, I did raise my concerns as to how such a ban would be able to be enforced against persons seeking to use the exit ramp of the basement car park to push a shopping trolley into Yeo Street.

212 Although it was submitted by Mr Baird that this could be achieved by permanent location of security staff at the exits, I am not satisfied that this would be possible.

213 Mr Hemmings noted that it was in the economic interests of the applicant (as well as its corporate social desire) that such trolley removals not occur.

214 I put to the parties that the appropriate way to deal with the matter was not to adopt the council's position (or the applicant's preferred position that a trolley management plan be developed at some future time in conjunction with the council) but that preparation of a trolley management plan acceptable on the council should be prepared prior to the issue of an Occupation Certificate.

215 The parties agreed to this proposal and, as a consequence, a condition reflecting this will need to be incorporated in the conditions of consent.

Conclusions

216 I therefore concluded that there is no basis on either the sole determinative ground proposed by the council (that is the council’s view that there is inadequate parking provided by the site) or on any accumulation of lesser grounds why the appeal should be dismissed.

217 However, permitting Woolworths to open a new supermarket at 1 to 7 Rangers Avenue, Neutral Bay is acceptable only whilst the existing Woolworths’ supermarket at Grosvenor Street, Neutral Bay continues to operate. Therefore, approval of the proposed Rangers Avenue store will be subject to a condition that the consent only remains valid while the Grosvenor Street store continues to operate. A number of additional conditions beyond those sought by the council will also be imposed in response to concerns raised by objectors.

218 In addition, as dealt with individually earlier in this decision, drafting of a number of conditions to be incorporated in the conditions of consent remains to be settled by the parties in light of my reasons for decision.

Proposed Orders in Matter No 04/11584

219 Therefore, I propose that the orders of the Court should be:

1. The appeal be upheld;
2. Development Application 339/04 for the refurbishment and adaptation of premises at Rangers Avenue, Neutral Bay for the purposes of commercial office space, a Woolworths Supermarket and a retail liquor outlet together with off-street car parking for 111 cars and two disabled on-street car parking spaces should be granted development consent subject to conditions which remain to be settled between the parties; and
3. The exhibits, other than Exhibit A Tabs 11 and 12, will be returned.

Directions

220 I therefore direct that:

1. The matter be set down for callover before the Registrar on 31 May 2005 to enable the parties to settle the terms of the conditions of consent in light of the matters determined above;
2. Liberty to re-list before me on two days notice at 9.00am; and
3. If agreed conditions are filed prior to that date, in a form compliant with Practice Direction 2 of 2005 I will make orders in Chambers and vacate the callover date.

Matter No 04/11583

221 The second of the matters which was before me relates to a proposed new strata title arrangement for the premises which are subject to the earlier appeal.

222 Mr Baird indicated that the council’s position was that if I were prepared to uphold the substantive appeal concerning the supermarket use, the council would agree to the new proposed strata titling arrangements.

223 As a consequence, I adjourned those proceedings, at the time of reserving my decision on the first appeal, with that adjournment being until the Registrar’s callover on 31 May 2005. I granted liberty to re-list the matter before me at 9.00am on two days notice if either party so required.

224 Given my decision in the substantive supermarket matter, I indicate that I would take the same course with respect to the new strata subdivision proposal as I have taken with respect to the supermarket proposal.

225 Thus, if the parties agree on proposed orders and conditions for the strata subdivision matter and file those in the appropriate electronic format prior to 31 May 2005, I will make orders in Chambers disposing of that appeal and vacate the callover in that appeal.

Commissioner of the Court