Fabcot Pty Ltd v Mosman Municipal Council

Case •

[2021] NSWLEC 1665

•

02 November 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: FABCOT PTY LTD v Mosman Municipal Council [2021] NSWLEC 1665
Hearing dates: 5-6 October 2021
Date of orders: 2 November 2021
Decision date: 02 November 2021
Jurisdiction:Class 1
Before: Horton C
Decision:

See directions at [200]

Catchwords:

DEVELOPMENT APPLICATION –Military Road heritage conservation area – Mosman junction Business Centre – traffic and parking impact – assessment of car parking provision – proposed lane widening – acoustic assessment

Legislation Cited:

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Mosman Local Environmental Plan 2015, cll 4.4, 5.10, 6.1, 6.3, 6.4, Sch 5

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Texts Cited:

‘Guide to Traffic generating Developments’ published by Roads and Maritime Services

Australian Standard AS2890.1-2004

Mosman Business Centres Development Control Plan 2012

Category:Principal judgment
Parties: FABCOT PTY LTD (Applicant)
Mosman Municipal Council (Respondent)
Representation:

Counsel:
A Galasso SC (Applicant)
A Pickles SC (Respondent) with M Staunton

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2020/349292
Publication restriction: No

Judgment

  1. COMMISSIONER: A Woolworths Metro supermarket is proposed on sites currently occupied by six Federation and Inter-War style terraces located on Military Road, Mosman.

  2. The development application the subject of these proceedings, DA8.2020.24.1, was refused by the Mosman Local Planning Panel on behalf of Mosman Municipal Council (the Respondent) on 18 November 2020. In broad terms, the development application comprises:

  1. Partial demolition of six existing terraces,

  2. Construction of a part-one, part-two storey development with retention and restoration of existing Military Road facades, and

  3. Use for a Woolworths Metro supermarket and café, at-grade car park, loading area, associated signage and landscaping works.

  1. The Applicant, Fabcot Pty Ltd, now appeals the refusal of the development application under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. On 22 June 2021, the Applicant was granted leave to amend the application and rely upon amended plans and documents, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the EPA Act.

  3. The scope of the dispute as initially contended is recorded in the Amended Statement of Facts and Contentions, prepared by the Respondent and marked Exhibit 1.

  4. However, prior to the hearing, a number of contentions were resolved by the conferring of experts.

  5. At the commencement of the hearing, Mr Pickles SC, counsel for the Respondent, identified the remaining contentions under the following broad topics:

  • Heritage;

  • Parking, traffic, car parking provision and pedestrian safety;

  • Lane widening.

  1. Accordingly, individually and collectively, the contentions represent a site that is unsuited to the proposed development that should be refused.

  2. After considering all of the evidence before the Court, and for the reasons that follow, I find the development application warrants the grant of consent, subject to directions set out at [200].

The site and its context

  1. The site is located on the western side of Military Road, between Gouldsbury Street and Belmont Road, comprising six lots that are legally described as follows:

  • Lot 1 in DP826240, otherwise known as 731 Military Road

  • Lot 2 in DP826240, otherwise known as 733 Military Road

  • Lot 38 in DP80121, otherwise known as 735 Military Road

  • Lot 1 in DP603289, otherwise known as 737 Military Road

  • Lot 2 in DP603289, otherwise known as 739 Military Road

  • Lot 1 in DP784514, otherwise known as 741 Military Road

  1. Together, the lots forming the site present a frontage to Military Road of 39.595m, and comprise a total area of 1,403m2.

  2. The site is accessed from the rear by a cul-de-sac known as Lennon Lane.

  3. Further to the west of Lennon Lane is residential development located within the R3 Medium Density Residential zone.

  4. A pedestrian accessway runs through the site, connecting the footpath on Military Road to Lennon Lane. No’s 731-739 Military Road are located to the north of the pedestrian accessway. No 741 Military Road is located to the south of the pedestrian accessway.

  5. Further to the south of No 741 Military Road is a two-storey commercial building on the corner of Belmont Road and Military Road, occupied by Westpac Bank. Relevantly, on site parking to the rear of this site occupies the land between Lennon Lane and Belmont Road.

  6. A building occupied by the Mosman Returned Servicemen’s League, known as the Mosman Club, adjoins the site to the north.

  7. The site is located within the B2 Local Centre zone, in which commercial premises are permitted with consent, according to the Mosman Local Environmental Plan 2012 (MLEP). The objectives for development in the B2 zone are as follows:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To enhance the viability, vitality and amenity of the local centres.

•  To maintain active uses at street level with a predominance of retail use.

•  To allow the amalgamation and redevelopment of land in Spit Junction.

•  To encourage residential development as part of the mixed use of sites.

  1. The proceedings commenced with an onsite view attended by the legal representatives and a limited number of experts.

  2. The Court’s attention was drawn to certain views and features evident from Military Road, Gouldsbury Street, Belmont Road and Lennon Lane.

  3. The Court was also taken to the private open space of Unit 6/1 Belmont Road to observe the proximity of the proposed development to the east.

  4. Finally, the Court was also taken to Council car parks to the rear of the Mosman IGA, accessed from Raglan Street, and to a car park to the west of Military Road that runs between Raglan Street and Avenue Road.

Public submissions

  1. The development application has been notified on two occasions in accordance with the Respondent’s Community Action Plan dated June 2020.

  2. In response to the first notification, the Respondent received five hundred and thirty eight (538) submissions, including eleven (11) submissions in support of the proposed development.

  3. The development application was notified a second time following amendments to the proposal in June 2021 at which time the Respondent received one hundred and ninety eight (198) submissions.

  4. Written submissions are contained in Exhibit 7, comprising two volumes.

  5. At the commencement of the hearing, six objectors were granted leave to make oral submissions to the Court, including:

  • Mr Peter Abelson, a resident of Wolger Road

  • Mr John Wakefield, representing the Mosman Village Community group

  • Ms Jenny & Mr Ross Heidtman, owners of mixed use premises on Military Road

  • Ms Brooke Johnson, a resident of Belmont Road

  • Ms Susan Lockhart, a resident of Muston Street

  • Mr Peter Twiney, a resident of Cabramatta Road

  1. A consistent theme runs through many of the submissions, both oral and written, briefly summarised as follows:

  • The area is already well served by local shops and services, and a new supermarket such as that proposed is not required.

  • Local traffic is already congested, and subject to peaks from people travelling in cars to destinations such as Balmoral Beach, Taronga Zoo, Clifton Gardens.

  • Failure to provide adequate parking on the subject site will worsen traffic congestion in the laneway, and in surrounding streets, preventing vehicles parked at the rear of other commercial premises in the lane from being able to manoeuvre.

  • Traffic congestion in the lane will result in idling of vehicles, imposing noise and pollution on residents of surrounding properties.

  • The proposed pedestrian accessway from Military Road to Lennon Lane will facilitate ease of movement for school children from Mosman High to the youth centre on The Crescent, increasing the risk of conflict with drivers of vehicles in Lennon Lane.

  • An existing fire egress path from the basement carpark of No 1 Belmont Road exits to Lennon Lane, and cannot be compromised by changes arising from the proposal.

Expert evidence

  1. The Court was assisted by experts in the following disciplines:

  • For the Applicant: Mr Steven Copper (acoustics), Ms Jennifer Hill (heritage), Mr Ben Craig (town planning), Mr Tim Rogers (traffic),

  • For the Respondent: Mr Richard Haydon (acoustics), Mr Paul Davies (heritage), Mr Paul Grech (town planning), and Mr Craig McLaren (traffic).

Heritage evidence

  1. The site is located within the Military Road Heritage Conservation Area (Military Road HCA), identified in Schedule 5 of the MLEP. The significance of which is defined at Part 4.3(2) of the Mosman Business Centres Development Control Plan 2012 (MDCP) as follows:

“The historic significance of Military Road is that it formed part of the earliest residential and military development of Mosman. It is associated with the area as a major defence post in Sydney Harbour.

The road influenced the growth of the suburb because it was, and still is, the major traffic route to and from the area. It became the centre of retail and commercial activity in the suburb.

In aesthetic terms, the commercial and retail area of Military Road is a marvellous microcosm of the range of architecture to be found in Mosman, distinctively combining retail and residential uses in a unified, lively and diverse linear and curvilinear streetscape. Its scale is pleasantly moderate and the variety of forms, materials, textures and colours is full of interest. The successful integration of some facades of later and very recent vintage, indicates that good design is an ageless quality. The ‘village’ atmosphere prevails despite some unhappy incursions. Several impressive buildings elevate the generally good aesthetic quality of the Conservation Area to a high level of value.

The social significance of the area lies first in the fact that here can be seen a great many of Mosman’s municipal, commercial and principal educational institutions, as well as stretches of residential development. It is associated with prominent developers who erected speculative ensembles of shops, dwellings and commercial occupancies, and with the sequences of tenants in retail, trade and commerce activities, many of them well-known, identifies past and present in Mosman.”

  1. As the site is within the Military Road HCA, the provisions of cl 5.10 of the MLEP apply. Clause 5.10(2)(a)(iii) requires consent for a building within a heritage conservation area, and cl 5.10(4) requires the consent authority, or the Court on appeal, to consider the effect of the proposed development on the heritage significance of the area concerned.

  2. While not identified as items of heritage significance, existing buildings on the site are identified at Part 4.3(2) of the MDCP as contributing to the Military Road HCA. An excerpt of the relevant map, with the sites identified in red, is re-produced below:

  1. The heritage experts agree that amendments made to the architectural plans, and the Heritage Impact Statement (Exhibit D), are an acceptable outcome, subject to further detail on the execution of their agreed position.

  2. Oral evidence was heard in respect of three matters:

  • The glazed awning to Military Road

  • The glazed awning to the pedestrian accessway

  • The extent of works proposed to No’s 731-733.

  1. The Applicant tendered four 3-dimensional images intended to assist the Court in understanding the arrangement of glazed awnings and the existing buildings, and the two alternatives propounded by the experts in respect of the shopfront at 731-733 Military Road (Exhibit L).

  2. The experts agree that the section of glazed awning proposed to Military Road is appropriate, subject to the final resolution of details. Similarly, the experts agree that the glazed awning proposed to cover the pedestrian accessway is acceptable, subject to further detail to ensure an appropriate junction with an original stained glass entry door that is proposed to be retained.

  3. Additional areas of agreement are marked on plans annexed to the heritage expert joint report, including the retention of an existing window to the south elevation of No 739 Military Road, and use of recycled brick in reconstructing walls to the western façade fronting the proposed car park. Amended plans incorporating these areas of agreement were not before the Court at the close of proceedings.

  4. The Respondent initially proposed a deferred commencement condition for additional detail to be provided to the satisfaction of the Council, as it regards the nature of the outstanding issues to be inappropriate for the satisfaction of a private certifier.

  5. The Applicant considers the deferred commencement condition to be largely addressed by the proposed amendments agreed to by the heritage experts, but for the proposed Condition A1(i) which relates to works proposed by the upper level façade of No’s 731-733 Military Road.

  6. Two aspects of the proposal at No’s 731-733 Military Road are relevant:

  • The ‘indented entry’ to the ground floor shopfront at No 733, and

  • The nature of works proposed to the upper level.

  1. Ms Hill considers the indented entry at No 733 Military Road to be a common feature of shops in the area, that is not an original element and is unremarkable. Furthermore, the property is not a heritage item, just as no property on the site is a heritage item. Instead, the site sits within the Military Road HCA in which the indented entry contributes little.

  2. At most, Ms Hill suggests the entry be interpreted by the addition of a graphic marker on the floor, a similar treatment on the ceiling, and in the glazing to the Military Road shopfront.

  3. Mr Davies is of the view that the feature makes a contribution by recording the former use of the shopfront and is easily integrated into the proposed development.

  4. The properties at No’s 731-733 Military Road are described at Part 4.2 of the MDCP as making a Neutral contribution to the Military Road HCA. A neutral contribution is defined as follows:

“Buildings that are either heavily altered to an extent where the construction period is uncertain, or are from a construction period which falls outside any Key Period of Significance for the HCA, but which reflect the predominant scale and form of other buildings within the HCA, and therefore do not detract from the character of the HCA. This ranking was assigned where the building is either so altered the period and style is no longer evident, or it is a recent building which is of a height, form and scale which is consistent with the streetscape.”

  1. The objective of the MDCP in respect of a building having a neutral contribution is to: ‘Maintain benign affect’.

  2. Part 4.3(2) of the MDCP also contains the planning controls applicable to the Mosman Junction Business Centre that relevantly provide:

“Heritage conservation:

(a) Maintain the Military Road heritage streetscape as Australia’s most significant Federation streetscape.

(b) The ranking of the building within the conservation area must be considered and guide any works.

…

Building form and design:

(d) Encourage development that is compatible with the existing 2 storey Federation streetscape, and the existing scale and rhythm of development. The amenity of the centre is found in the scale, form styles, material and details in the streetscape.

(e) Encourage alterations and additions to be located to the rear of the building and respect the scale, form, proportion of the host building. Infill development should respond and contribute to the existing character of the streetscape.

(f) Encourage awnings and façade colours of a common Federation colour for groups of buildings forming a terrace.

Streetscape, amenity and access:

(g) Extend the network of shopfront promenades, laneways and through-site arcades to improve pedestrian accessibility, safety and amenity. This includes:

i. through-site arcades between Military Road and rear lanes/carparks;

ii. lane widening in Lennon Lane, Martens Lane, Post Office Lane, and Ritchie Lane; and

iii. other opportunities for improved pedestrian circulation through the centre.

…

Advertising and signage:

(j) Maintain limited advertisements and business signs in keeping with Federation themes.

(k) Restrict advertisements and business signs to the awning fascia, under the awning, or behind the shop window at street level. Above awning advertisements and business signs are to be restricted to lettering on the glazed areas only.

…”

  1. Where business centres comprise traditional shopfront terraces, Part 5.2 of the MDCP sets out objectives and controls dealing with Height, floor space ratio (FSR) and building setback, and with Architectural features and façade treatment.

  2. As the properties at No’s 731-733 are not themselves identified as items of local heritage significance, I am guided by the neutral ranking of the building within the Military Road HCA to give weight to Ms Hill’s evidence that the properties are so altered that the period and style of the original is no longer evident.

  3. The indented entry does not currently intersect with the ceiling of the existing shopfront. It is not original, nor is it identified as having social, technical, aesthetic or other cultural significance.

  4. On this basis, I accept Ms Hill’s evidence and conclude that retaining the idented entry as depicted in Exhibit L may well be regarded as an isolated and curious gesture in the context of new works surrounding it.

  5. Accordingly, I find it appropriate to direct that the Conditions of consent requiring the idented entry to be retained should be struck.

  6. The second aspect of the proposal at No’s 731-733 that is arguably of greater prominence is in respect of the nature of works proposed to the upper level facades visible above the awnings to Military Road.

  7. As documented in the proposed Schedule of Conservation works (Exhibit D, p  27), the heritage experts agree that the proposed development should:

“Reconstruct original Federation façade features”

  1. On first reading, this scope of work appears consistent with the deferred commencement condition proposed by the Respondent, and Condition 35(b) (Exhibit 9) which seek detailed plans for the reconstruction of the first-floor façade of 731-733 Military Road to be based on a photograph at figure 3.8 of the Heritage Impact Statement.

  2. Figure 3.8 depicts the properties at No’s 731-733 with a gable-like presentation to Military Road, and perhaps two vertical windows where today, each property has one large window opening within an arched recess.

  3. While this may appear the logical conclusion to be drawn from the evidence, the experts agree that the outcome settled upon by them at the conclusion of the joint expert conference, is that it is unnecessary to replicate the features evident in Figure 3.8, and that it is acceptable in heritage terms for the modified façade evident today to be retained, repaired and refurbished.

  4. The conclusion reached in the Statement of Heritage Impact (p 34), with which Mr Davies does not disagree, is as follows:

“Based on the detailed review and assessment of the proposal we have concluded that the proposed works will not only be sympathetic to the character of the area but will in fact enhance the streetscape and restore the appearance of the buildings, back to their former conditions. In doing so, the proposed development will have a positive impact on the Military Road streetscape and the conservation area.”

  1. At the conclusion of the hearing, the Applicant advised that detailed drawings of the elements set out in the proposed deferred commencement condition were being prepared.

  1. I do not consider the resolution of those details to be of such consequence as to be determinative, but so as to completely and finally determine all matters in controversy between the parties, I consider it appropriate for the Court to make directions at [200] that the details settled upon by the heritage experts be incorporated into final documents.

Traffic evidence

Provision of car parking on the site

  1. The Respondent acknowledges in submissions that the proposed development achieves the objectives and planning controls for the provision of transport, access and parking facilities at Part 6.11 of the MDCP, but for the parking rates adopted by the Applicant.

  2. The parties agree Objective O3 at Part 6.11 of the MDCP, and Planning Controls P8 and P9 to be the most relevant to determining appropriate car parking rates on the site.

  3. Objective O3 is in the following terms:

“To have adequate on site car parking provided so that development does not generate additional on street parking demand.”

  1. Planning Controls P8 and P9 are as follows:

“P8. Refer to the table below for car parking rates.

P9. A Traffic and Parking Impact Study (TPIS) that provides a comprehensive assessment of the traffic and parking impacts a development proposal may have on the surrounding road network may be required to be submitted with the development application.”

  1. Car parking rates are set out in the table contained in Part 6.11 of the MDCP and provides, relevantly:

“For retail premises, 1 space/16m2 gross floor area

…

For take away food or drink premises—1 space per 16m2 gross floor area

…

For restaurants—1 space / 7m2 gross floor area or 1 space per 3 seats (whichever is the greater), including any outdoor seating area.”

  1. For Retail premises and Neighbourhood shops, the Table at Part 6.11 of the MDCP notes the following:

“Traffic and Parking Impact Study required for new developments in excess of 500sqm gross floor area.”

  1. As the proposed development has a gross floor area in excess of 500m2, a Traffic and Parking Impact Study (TPIS) was undertaken by Colston Budd Rogers & Kafes (CBRK) (Exhibit E, Tab 7).

  2. The TPIS includes an assessment of traffic flows on the road network in the immediate area, intersection operations and public transport services.

  3. To determine parking requirements for the proposed development, the TPIS identifies sites at Rozelle and Newtown IGA that are said to be similar due to their location on main streets in ‘urban villages’; their size, limited capacity for on-site parking where street parking is in high demand, are highly accessible and, in the case of Rozelle, where levels of household car ownership are comparable. Results of surveys undertaken at Rozelle and Newtown IGA’s are attached to the TPIS.

  4. The TPIS is supported by an Economic Needs Analysis prepared by Location IQ dated January 2020 (Exhibit E, Tab 14), and a letter of the same author dated 17 June 2020 (Location IQ Letter) (Exhibit E, Tab 18) stating the proposed development is comparable to the Rozelle IGA based on the catchment population, average income levels, car ownership and household structure.

  5. In response to the Respondent’s request for further information (Exhibit E, Tab 15 and Exhibit 7, Tab 13), Mr Rogers provided additional traffic information (Exhibit G), that ultimately satisfied independent consultants engaged by the Respondent, Cardno (Exhibit 7, Tab 26), and Council officers (Tab 25).

  6. Put simply, the Respondent considers the Rozelle IGA to be an inappropriate comparison; the Applicant’s efforts to survey the traffic and parking behaviours of the Mosman community to be inadequate, and the translation of local resident behaviour into its methodology for determining sufficient parking numbers to be flawed.

  7. Absent efforts by the Applicant to do so, Mr McLaren commissioned two surveys of the Mosman IGA. The first was undertaken on Friday 26 March, Saturday 27 March and Monday 30 March 2021. The second was undertaken on Friday 30 March, Saturday 1 May and Monday 3 May 2021. Survey results appear at Annexure D of the joint expert report.

  8. Survey results average the percentage of drivers for whom a visit to Mosman IGA was a primary purpose, or was not the primary purpose, or was one of a number of destinations.

  9. Relevantly, when averaged, 63.9% of customers in the Mosman IGA reported that their visit was the primary purpose of their trip. In real terms, the number of customers varied from 15 customers on Friday 26 March, to 50 customers on Monday 29 March 2021.

  10. This contrasts with Location IQ advice (Exhibit E, Tab 18) that around 80% of visitors to Rozelle IGA arrive by walking.

  11. According to Mr McLaren, parking rates applicable to the Rozelle IGA are substantially different to those applicable in the Mosman local government area, and the Respondent considers local characteristics such as topography to distinguish the subject site from the Rozelle IGA site.

  12. Applying the parking rates in the MDCP requires 56 car spaces serving the proposed development. Furthermore, reference to the Roads and Maritime Services (RMS) ‘Guide to Traffic generating Developments’ (RMS Guide) instructs that factors such as seasonal fluctuation determine the 85th percentile parking demand which is best derived from data taken across the year, and not on the basis of survey results as Mr Rogers has done.

  13. According to the Applicant, the surveys commissioned by Mr McLaren show Mosman IGA relies on either 1 car space/15m2, in the case of the first survey, or 1 car space/18m2, in the case of the second survey.

  14. Applying these rates to the customer-accessible area of the Mosman IGA, 28 car spaces are extrapolated from the results of the first survey, and 23 car spaces are extrapolated by the results of the second survey.

  15. Adopting the same rates, but discounting by the figure of 64% derived from [73], and further extrapolating these results to the larger customer-accessible area of 420m2 at the subject site, 18 car spaces are required if the results of the first survey are relied upon, and 15 car spaces are required if the results of the second survey are relied upon.

  16. Additional to this, 2 car spaces are proposed for the 8 staff identified in the Plan of Management (Attachment C, Exhibit 6), while a total of 13 to 14 staff are identified by the surveys commissioned by Mr McLaren at the Mosman IGA, resulting in 7 to 8 car spaces being required.

  17. The experts are also at odds in calculating traffic generated. Mr McLaren, at pars 60-62 of the joint report, derives a figure of between 78-84 peak hours trips, but was unable in his oral evidence to explain the number of 39 customer cars used to arrive at that figure. Nonetheless, it is Mr McLaren’s view that underlying high parking demand in the area and the proposed café will generate increased demand, and construction of a new parking facility will attract greater use.

  18. Mr Rogers relies upon SIDRA modelling prepared in support of the development application to suggest an increase in traffic resulting from the development of around 1% along Military Road.

  19. The Applicant submits that a distinct difference between Mosman IGA and the proposed development is that no on-site parking is provided at Mosman IGA. Instead, a Council carpark accessed off Raglan Street provides common parking, from which Mosman IGA derives a benefit, while the Applicant seeks to provide parking on its site.

  20. Applying Council’s parking rates to commercial premises utilising parking in, or off, Lennon Lane, according to the method at par 39 of the joint report, suggests an existing parking shortfall of 41 spaces.

  21. Finally, the Applicant relies upon Location IQ advice (Exhibit E, Tab 18) that, unlike large supermarkets that attract customers from a wider catchment at peak times such as Christmas, Metro supermarkets offer a smaller range, in smaller quantities, do not provide large trolleys and so do not experience seasonal fluctuations.

Use of Lennon Lane to access the car park

  1. Lennon Lane is accessed off Gouldsbury Street. While the lane is initially a wide area that provides public parking to the west, and access to on site parking for properties fronting Military Road to the east, the lane narrows behind the Mosman Club to a width of around 4.8m.

  2. This width is narrowed further by the addition of a 1500mm wide footpath to the west of Lennon Lane, proposed at Attachment L, Exhibit 6.

  3. The Respondent submits that the constrained nature of the site, accessed by a narrow lane that is single-lane for a distance of 25m, is unsuited to the demand likely to result from the development that will result in queuing and congestion in Lennon Lane and Gouldsbury Street.

  4. Mr McLaren’s queuing analysis is at Annexure J of the joint expert traffic report.

  5. To manage demand in the lane, the Applicant proposes a one-way clockwise direction of traffic, a dynamic signage system to alert drivers seeking a parking space as to availability (Exhibit 6, Attachment E), and notes constrained lane width is not uncommon in the area, evident in traffic calming installations in Cabramatta Road.

  6. Mr Pickles SC, counsel for the Respondent, submits that alerting a driver to a vacant space is of no practical benefit if congestion in the lane means cars ahead in the queue occupy the vacant space after the driver has already committed to entering the lane that is congested, requiring a round trip that compounds the problem.

  7. According to Mr McLaren, the issue is somewhat cured by extending Lennon Lane to intersect with Belmont Road to allow a one-way flow of traffic.

  8. Part 7.6 of the MDCP provides objectives and planning controls in respect of Lane and Access Widening. Lennon Lane is identified as subject to lane widening.

  9. The planning experts agree the proposed development facilitates the widening of the road reserve in Lennon lane, and the extension of the lane to Belmont Road (Exhibit 2, pars 7-8).

  10. On the evidence before the Court, it would appear that lane widening is also a like term for lane extension. Figure 1 (Exhibit 2) is titled ‘Lane Widening as per Council’s Resolutions’ and indicates road dedication is pending to the two lots that currently prevent extension of Lennon Lane in the direction of Belmont Road.

  11. Additionally, par 9 of the joint expert planning report directs my attention to the assessment made by Council officers on lane widening under Part 7.6 of the MDCP, which also refers to lane extension as follows (Exhibit 7, folio 314):

“Lennon Lane is subject to Council’s lane widening program. The road dedication for a portion of 741 Military Road remains pending as does a portion of the adjoining land at 743 Military Road. The intention is that on dedication of both 741 and 743 Military Road, Lennon Lane will be extended through to Belmont Road.

…”

  1. The Respondent acknowledges that the proposed development includes an offer from the Applicant to dedicate a portion of the southernmost lot for the purposes of extending the lane to intersect with Belmont Road, and that the design and siting of buildings has considered the land identified for widening, consistent with the relevant planning control P2 at Part 7.6 of the MDCP.

  2. Mr Rogers cites the requirement of Australian Standard AS2890.1-2004 for one lane sections of road that accommodate more than 30 vehicles/hour to provide passing opportunities every 30m, and considers the one lane section to the rear of the Mosman Club to satisfy this requirement.

  3. Furthermore, the sightlines in Lennon Lane are good, and vehicle speeds and volumes are low.

  4. Mr McLaren considers the Applicant’s own traffic generation to exceed the terms of AS2890.1 and, given the proximity of the pedestrian footpath that will likely be used by school children, the risk of pedestrian/car conflict is high.

Operation of the loading dock

  1. The constrained nature of the site and its setting extends to a conflict identified by the Respondent in the swept paths of customer vehicles seeking to use the car park, and the operation of the particular truck identified for use in deliveries to the loading dock, the Hino GH 1828 Medium Long Truck (Hino Truck), specifications of which are contained at Annexure G of the joint expert traffic report.

  2. Mr Rogers’ swept path analysis of this area is at Annexure F of the joint expert traffic report, and Mr McLaren’s is at Annexure I.

  3. While Mr Rogers’ swept path analysis indicates successful execution of manoeuvres, Mr McLaren’s swept paths indicate multiple manoeuvres are required, with superimposition of the vehicle over the pedestrian footpath proposed to the western side of Lennon Lane.

  4. According to the Applicant, this difference in outcome is explained by the particular truck identified for use in deliveries by Woolworths that is slightly shorter than a conventional Medium Rigid Vehicle (MRV).

  5. The Respondent submits that a B99 vehicle, described in submissions as a large four-wheel drive, is only able to pass the Hino Truck if the truck is correctly parked in position.

  6. Furthermore, the Plan of Management (Exhibit 6, Attachment C) proposes a staff member place traffic cones in the path of customer vehicles seeking to use the car park during manoeuvring of the truck into the loading dock, causing further queuing and congestion in Lennon Lane.

  7. The difficulty in manoeuvring fails to make appropriate provision for the safe loading and unloading of vehicles, required by Objective O9 , Part 6.11 of the MDCP, and is contrary to planning control P22, that requires loading and unloading facilities to be provided on site for all developments that are likely to generate a need for such facilities, and planning control P23 insofar as the facility is clearly not appropriate for the land use having regard to the size of trucks to be used.

  8. The parked position of the Hino Truck is agreed to be at, but not inside, the door of the loading dock. This gives rise to related acoustic concerns addressed by acoustic experts.

Acoustic evidence

  1. Mr Richard Haydon and Mr Steven Cooper conferred in the preparation of a joint expert report marked Exhibit 4, in which the experts agreed that contentions could be resolved, subject to appropriate conditions.

  2. In particular, the Respondent proposes a condition responsive to concern at the close proximity of the loading dock to residents of No 1 Belmont Road, and the likelihood of noise impacts caused by trucks making deliveries to the loading dock.

  3. The Respondent proposes Condition 41(n) in the following terms:

“All reverse alarms fitted to delivery vehicles for this site, shall be fitted with broadband reverse alarms only…”

  1. I understand that a broadband reverse alarm is different to a ‘tonal’ reversing alarm that is heard as a ‘beep’, which has the advantage of being, as put by Mr Cooper “distinctively clear in a noisy environment”, which is not the reality in Lennon Lane.

  2. As stated above, the swept path analysis indicates a Hino Truck entering the carpark, and undertaking a reverse swept into the loading dock. Two acoustic concerns flow from this:

  1. Firstly, the noise impact of the reversing alarm on residents of No 1 Belmont Road, and

  2. Secondly, the noise impact of loading and unloading caused by palettes and the operation of plant and equipment within the loading dock.

  1. In support of the development application, Mr Cooper undertook acoustic assessment at the Rozelle IGA (the Acoustic Report) (Exhibit E, Tab 9). Based on the position of the receiver shown in Annexure E1 of the Acoustic Report, Mr Cooper is of the view that the noise level recorded is similar to that likely to be experienced by residents at Unit 6/1 Belmont Road, and so is likely to be within an acceptable noise criteria.

  2. This is due in part to the body of the truck itself acting to shield some of the noise of the reversing alarm, given the reversing alarm is located on the rear of trucks. Once in position at the loading dock, the truck also shields residents from noise associated with loading and unloading.

  3. In a letter prepared by Mr Cooper dated 28 May 2021 (Exhibit H), two assumptions are made that are the subject of submissions. The first assumption is that the truck is able to reverse in to the loading dock (my emphasis), which is not the case. The second assumption is that the level of the loading dock is designed to have direct access into the truck, which it is not.

  4. While both assumptions are incorrect, the Applicant submits that the overriding finding in the Acoustic Report, that the truck engine noise was the controlling factor, is unchanged.

  5. Mr Haydon agrees the noise of reversing alarms received at Unit 6/1 Belmont Road is likely to comply, but as it will be nevertheless be audible, it has the capacity to cause annoyance and a condition to require Broadband alarms is appropriate in the setting, and considering the ease with which such a modification is made.

Planning evidence

  1. Mr Ben Craig and Mr Paul Grech conferred in the preparation of a joint expert planning report marked Exhibit 2 and a supplementary joint expert report at Exhibit 3.

  2. As a result of the joint expert conferencing, the compass of disagreement extended only to the nature of certain signage proposed in the car park identified as ‘Sign 11’ or ‘SN-11’ as indicated on the drawings.

  3. It is Mr Grech’s view that the sign is too large as currently proposed, is inappropriate for it to carry the Woolworths logo, and is likely to be removed in the future given the prospect of the extension of Lennon Lane to intersect with Belmont Road.

  4. Mr Craig accepts that the size of the sign may be reduced, however the function of the Woolworth’s logo as a part of the sign is to clarify that the car park is on private land, is not on Council land and so is not a ‘Council carpark’.

  5. For reasons I set out at [140], I prefer and accept Mr Craig’s evidence, noting the agreement of the experts that sign SN-11 should be reduced in size by 25%.

Parking provision and use of Lennon Lane is acceptable

  1. Both traffic experts rely upon survey data, and describe a methodology used to derive the number of car spaces required for the development. Multiplying factors are applied to distinguish, for example, the number of drivers from the number of customers who may include children who are clearly passengers, and those drivers for whom the Mosman IGA was a primary purpose in their travel.

  2. Mr McLaren’s position is founded primarily on surveys undertaken at Mosman IGA, the results of which are then ‘checked’ against the parking rates in the MDCP, and are said to conform.

  3. Mr Rogers’ position is founded primarily on data provided by Location IQ which compares Mosman with other facilities, including Rozelle IGA, and surveys undertaken by CBRK. His results are then ‘checked’ against his own extrapolation of surveys undertaken at Mosman IGA, and are said to conform.

  4. While initially faced with what appears to be positions of competing, or opposing, certainty, I prefer and accept Mr Roger’s evidence for the reasons that follow:

  1. Firstly, on the basis of the detailed comparison set out at p 3 of the Location IQ letter, there are good grounds, in my view, to consider the proposed development comparable to that of the Rozelle IGA. Similarities in population, income levels, age, housing status, car ownership and family type are marked.

  2. Secondly, while criticism is made of the surveys undertaken by the Applicant at the Rozelle IGA on 20-21 September 2019, the response to Council’s request for additional information, prepared by Mr Rogers at Exhibit G, includes additional survey data from Friday 23 April 2021 at Attachment A, and evidence of trading activity at Attachment B that resulted in survey results being weighted consistent with peak trading times. In other words, notwithstanding the survey being undertaken on a Friday, results were weighted according to the Monday peak.

  3. Thirdly, I accept a smaller-scale store, with a more limited range of stock supports a ‘top-up, convenience-based’ offering that is less exposed to seasonal fluctuations in the same manner as larger supermarkets. Accordingly, I accept that it is not necessary to rely upon data from across an entire year to derive the 85th percentile parking demand, but may be derived from sample data, such as that taken at Rozelle IGA, or even that commissioned by Mr McLaren at Mosman IGA.

  1. Relatedly, I accept the reasons set out by Mr Roger’s at par 10 (Exhibit 6), that Mr McLaren has, in effect, relied upon the 99th percentile to derive parking numbers.

  2. Fourthly, I accept Mr Roger’s logic that while the 85th percentile assists in determining the number of customers to input into the calculation, it is also necessary to weight results to account for those customers for whom the visit was not the primary purpose, and to also factor the number of customers that may have been passengers. Accordingly, I accept Mr Roger’s methodology at par 15 of the joint expert report to derive customer parking demand for the Mosman IGA.

  3. Applying this methodology to the proposed development, Mr Rogers derives a figure of 13 car spaces for customers when survey results from Mosman IGA are input, and 15 car spaces for customers when survey results from Rozelle IGA are input. As I accept Mr Rogers’ logic above, I likewise accept the outcome of his logic.

  4. In addition to customer parking, Mr Rogers confirms two spaces are dedicated for staff use. While Mr McLaren provides data on the basis of staff parking demand generated by Mosman IGA, I accept the Applicant’s submission that no correlation should be drawn between the staff numbers at Mosman IGA and the proposed development, and neither is there a sound basis to question the staffing numbers proposed in the Plan of Management.

  1. The result is a total of 15 car spaces required when survey results from Mosman IGA are input, or a total of 17 car spaces required when survey results from Rozelle IGA are input.

  2. On the basis of the TPIS, and the survey results, whether from Rozelle IGA or Mosman IGA, the twenty car spaces proposed by the Applicant are sufficient.

  3. However, two car spaces are proposed at the rear of No 741 Military Road, described in the plans at Exhibit A to be ‘temporary parking lots’. The parties agree that, should the Court be minded to grant consent, a covenant is to be imposed on the title of land requiring the area shown occupied by the two car spaces to be dedicated to Council at no cost, should the land at the southern end of 743 Military Road be acquired by Council to complete the laneway extension to Belmont Road.

  4. The lane extension would deprive the car park of two car spaces, resulting in eighteen car spaces. Even in this eventuality, eighteen car spaces exceeds the total number of car spaces required by either of the surveys undertaken. Accordingly, I find the car parking provision to be acceptable.

  5. In arriving at this conclusion, I accept the Applicant’s submission that the operation of the café is an extension of the supermarket operations. The number of staff nominated for the site is inclusive of staffing in the café. That said, I also accept Mr McLaren’s evidence that provision of seating in the café, which is the subject of disagreement between the parties, is likely to increase the dwell time of cars occupying spaces in the car park.

  6. Related to the provision of car parking is the access and egress along Lennon Lane to and from the car park. The experts differ as the peak hour traffic generation rate likely in Lennon Lane, however as I do not understand the basis for Mr McLaren’s assertion at par 60 that 39 customer cars will be parked in the proposed car park, it follows that I prefer Mr Rogers’ assessment of traffic generated. I note Mr Rogers’ applies the rate of 2 trips per car space to derive a figure of between 26-36 vehicle trips per hour, which is consistent with both the car parking demand at [128], and with the assessment of traffic in Lennon Lane set out in the TPIS (p 15).

  7. Clearly the function of Lennon Lane as a means of access for pedestrians and drivers of vehicles would be improved by its extension to Belmont Road. The parties agree that, should the lane be extended, the movement of vehicles would be one-way. Entry would occur at Gouldsbury Street, and exit would be via Belmont Road.

  8. This scenario appears contemplated by the Respondent, but is not a factor to be given weight in these proceedings. That said, the Applicant proposes the dedication of land to the rear of No 743 Military Road, involving the removal of two car spaces. As such, the development application is no barrier to the extension of the lane, should that be pursued in the future.

  9. Given the number of car spaces proposed, the likely effect of the dynamic parking system, and provision in the Plan of Management for the receiving and parking of delivery vehicles in the loading dock, I conclude that the volume of traffic generated is likely to be suited to the arrangement of Lennon Lane as proposed.

  10. It is not uncommon for queuing and idling to occur in a car park as those seeking a car space rely on a combination of observation and hope. The exercise is usually undertaken at very low speed.

  11. With appropriate signage, I accept that the short, single lane portion of Lennon Lane is navigable because of the low volume and low speed of traffic.

  12. When the proposed car park is full, the dynamic signage system will indicate that reality on Gouldsbury Street and so act as a disincentive for vehicles to enter the single lane portion of Lennon Lane.

  13. Given the clear sightlines, those vehicles that do enter the single lane portion of Lennon Lane are able to see, and be seen. In this respect, as stated at [123], I prefer Mr Craig’s evidence that addition of the Woolworths logo on the sign, SN-11, visible at this point in Lennon Lane clarifies in the mind of the driver that the car park beyond is not a public car park but one provided on private land, and so particular conditions or constraints on its use may apply.

  14. On the basis of the specification of the Hino truck, and swept path analysis showing a large B99 vehicle passing a delivery truck in a parked position at the loading dock, I find the car park is designed to permit continuity of traffic, and minimise delays. I also note the parties agree conditions of consent that limit the number of delivery vehicles on site to one only, and only one per hour.

  15. Additionally, Section 2.5 of the Plan of Management provides for protocols likely to minimise disruption to traffic in Lennon Lane during deliveries, and the provisions of Condition 41, as proposed by the Respondent, require advice to delivery drivers on appropriate noise management and the correct use of Lennon Lane.

  16. However, as for the manoeuvring of delivery trucks, I accept the Respondent’s submission that Mr Cooper’s application of acoustic levels taken at Rozelle to the setting of Lennon Lane raise sufficient questions to adopt Mr Haydon’s recommendation to safeguard the amenity of adjoining properties.

  17. It is clear from Mr Cooper’s oral evidence that the assessment undertaken by him was absent an understanding of the acoustic role played by the existing built form of the adjoining Mosman Club, and of the particular location of Unit 6/1 Belmont Road.

  18. The properties at No 1 Belmont Road are at the interface between residential development in the R3 zone, and development permissible in the B2 Local Centre zone.

  19. Development permitted with consent in the B2 zone includes Registered Clubs, such as the Mosman Club, emergency services facilities, passenger transport facilities, vehicle repair stations and service stations.

  20. While such development is not now proposed, the type of development permissible in the B2 zone demonstrates the inherent tensions that can arise from development at the interface of zones differing in their objectives. In this case, it is also a ground on which I find the condition proposed by the Respondent at Condition 41 (n) to be warranted.

Public submissions are considered

  1. As stated earlier in this decision, these proceedings are the subject of keen public interest. Notwithstanding restrictions on movement and public gatherings due to COVID-19, the Court ensured that the hearing was accessible via livestream to facilitate participation by the broadest audience, including six residents of the area who sought to make oral submissions.

  2. I have considered the written and oral submissions made in respect of the development the subject of this appeal.

  3. While public submissions consider Mosman to be well served by supermarkets, the evidence before the Court, in both the Economic Needs Analysis prepared by Location IQ on behalf of the Applicant, and the Peer Assessment of the same prepared by Mr Leyshon Consulting Pty Ltd on behalf of the Respondent, suggests otherwise.

  4. In the words of Mr Leyshon (Exhibit 7, folio 507):

“On any measure, therefore, it is clear Mosman LGA at present has a below-average supply of supermarket floorspace.”

  1. Some objections were founded on the ease with which residents of the local area could drive to the existing Woolworths supermarket at Neutral Bay, should they choose. This particular argument only encourages the conclusion, in my mind, that residents who consider a Woolworths in Mosman to be unnecessary because they are able to drive to one in Neutral Bay are likely part of the very traffic congestion of which they, perhaps with good reason, complain.

  2. The traffic assessment undertaken in support of the application was completed using SIDRA modelling that analysed the impact of the proposed development on intersections identified by public submissions, finding the following:

  • The intersection at Military Road/Belmont Road will continue to operate at its existing level of service.

  • The intersection at Military Road and Gouldsbury Street will continue to operate at its existing level of service, and

  • The intersection at Gouldsbury Street and the carpark extending to Lennon Lane will continue to operate at its existing level of service.

  1. As stated earlier in this decision, at [145], No 1 Belmont Road is at the interface between residential development in the R3 Medium Density Residential zone, and development permissible in the B2 Local Centre zone. Some tension is to be expected at such interfaces between zones.

  2. That said, I find the tension to be appropriately managed through the conditions of consent that include:

  • The preparation of a Loading Dock Management Plan

  • Provision of a dynamic signage system facing Gouldsbury Street

  • Procedures for the closing of the car park, management of noise and other aspects that have the potential to adversely impact the amenity of residents adjoining the development.

Conclusion

  1. The proposed development complies with the development standards at cl 4.4 of the MLEP.

  2. The site is not identified as a site of acid sulfate soils (cl 6.1 of the MLEP), is not within the foreshore building line (cl 6.3 of the MLEP), or subject to scenic protection (cl 6.4 of the MLEP).

  3. As the site is, however, within the Military Road HCA, the Court must consider the effect of the proposed development on the heritage conservation area in accordance with cl 5.10(4) of the MLEP. In so doing, I have considered the evidence of the heritage experts at [32]-[57], and I have made findings at [49]-[50].

  4. I note the Applicant’s submission to the effect that detailed drawings are underway to satisfy the requirements otherwise set out in the proposed deferred commencement condition.

  5. I consider it appropriate for the final detailed drawings to be the subject of directions. However, I record here that the purpose of those directions is to facilitate the resolution of conditions that are subject to dispute, and to completely and finally determine all matters in controversy between the parties.

  6. The directions are not in respect of essential matters, and do not go to my consideration of the effect of the proposed development on the Military Road HCA, which I find acceptable, subject to conditions of consent that I consider at [167]-[198].

  7. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the Detailed Site Investigation prepared by JK Environments dated 6 October 2020 (Exhibit E, Tab 31), the Auditor comments on p 8 of the Site Audit Report prepared by Geo-Logix dated October 2020 (Tab 32) and the Site Audit Statement executed on 9 October 2020 (Tab 33), and Condition 72 of the proposed draft without prejudice conditions of consent that requires conformity with the Site Audit Report, I am satisfied that the site is suitable in its current state for the proposed development.

  8. For the reasons set out above, I am minded to grant consent to the development the subject of the development application, subject to the preparation of final detailed drawings, and the resolution of conditions of consent in accordance with s 4.16 of the EPA Act.

  9. However, to provide the parties with an opportunity to settle final conditions in accordance with the Court’s determination on those matters in dispute, I now consider the conditions of consent before making such directions.

Conditions are disputed

  1. During the course of the proceedings, the parties conferred to prepare what was described as a ‘composite’ draft without prejudice conditions of consent, marked Exhibit 9.

  2. A number of conditions are disputed, and Exhibit 9 contains a composite of proposed additions and deletions proffered by both parties, with all changes tracked in coloured text.

Deferred commencement condition – Part A Condition A1

  1. In lieu of detailed drawings showing the means by which the conservation of street facades, external and internal voids, awnings, roofs, interior spaces and all other retained or rebuilt elements is to be achieved, the Respondent submits that the consent should not operate until such drawings and details are provided.

  2. The Applicant submits that:

  1. Condition 1(a)(i) is remedied by deleting the word ‘reconstruction’ to reflect the agreement of the heritage experts.

  2. Condition 1(a)(ii)(A) and (I) are identical, and contingent upon the Court’s decision at [50].

  3. The matters set out at Condition 1(a)(ii)(B)-(H) and (J) are uncontroversial, and indicated that detailed plans were underway.

  1. The parties also acknowledge that the details the subject of the deferred commencement condition, if not resolved by the preparation of detailed plans filed and served while the Court’s decision was reserved, could also be the subject of preliminary directions by the Court. I agree with the parties, and so direct at [200] that detailed plans are preferable so as to remove scope for error or misinterpretation in the terms of the condition proposed at Condition A1.

  2. Relatedly, Condition 11 would require amendment to delete the words “as approved pursuant to the deferred commencement condition in Part A of this consent”, and Condition 35 be amended to adopt the Applicant’s preferred form of wording.

Amended Plans – Signage

  1. For the reasons set out at [140], and as agreed by the town planning experts, Condition 4 is to be amended to read as follows:

“The Construction Certificate plans shall detail the following changes to the signage:

(a) All signs shall be non-illuminated, except for Sign 8 and Sign 12, in the following manner:

(i) Illumination is achieved by soft-lit internal illumination only and does not involve any flashing lights, backlights or external illumination of the signs.

(ii) Signs are allowed to be illuminated during operational hours only, and must be switched off outside of operating hours.

(b) Sign 7 shall be flush with the fascia, be within the perimeter of the fascia or return end of the awning, and must not be illuminated.

(c) Sign 9 shall be flush with the fascia, be within the perimeter of the fascia or return end of the awning, and must not be illuminated.

(d) Sign 11 shall be modified so that it is no more than 1.29m (wide) x 1.95m (high).”

Dilapidation Report – Private Assets

  1. Condition 13 nominates properties to be the subject of dilapidation reports, including properties at No 3 Belmont Road to which the Applicant objects as being too remote.

  2. While no basement works are proposed, given works are proposed to Lennon Lane, there is a nexus between the proposed works and the inclusion of No 3 Belmont Road located in the vicinity of works.

  3. The Respondent’s preferred form of the Condition is adopted.

Acoustic Report and Audit

  1. The parties agree to Condition 27, subject to the following words at Condition 27(C) being deleted:

“That engineer is not to have been involved in the previous testing of the premises by either the Applicant or Council including as required by conditions 27(A) and 27(B).”

Military Road awning

  1. The parties agree to the Respondent’s preferred form of wording for Condition 34.

Loading Dock Management Plan

  1. Condition 41 provides for a Loading Dock Management Plan to be prepared, and sets out constituent parts about which there is some dispute. For the reasons set out at [147], I determine Condition 41(n) is warranted.

  2. The Applicant also seeks amendment to Conditions 41 (p) and (q) that seek training and induction of delivery drivers on appropriate noise management and the correct use of Lennon Lane.

  3. As stated at [141]-[142], the provisions proposed by the Respondent in Condition 41 are factors in my determining the use of Lennon Lane, until, and if, it is extended, is acceptable. I consider it appropriate for delivery drivers to be inducted in the proper use of Lennon Lane and see no reason why it is acceptable, for example, for this training to include such things as the turning off of refrigeration units (Condition 41(h)), and headlights (Condition 41(i)), but not extend to suitable noise management (Condition 41(p)), or that entry to Lennon Lane is only to occur at a scheduled time (Condition 41(q)).

  4. The Respondent’s preferred wording of Condition 41 is adopted. However, as the parties agree that the abbreviation ‘MRV’ may infer a truck other than the Hino Truck, an alternative term agreed by the parties to avoid confusion is to be inserted.

Plan of Management

  1. The parties provide alternative wording for Condition 42 with the primary disagreement being in the number of seats permitted in the café.

  2. While the indicative layout on the architectural plans at Dwg A06.01 Rev 5 (Exhibit A) show only 8 seats, the Applicant seeks to delete the terms proposed by the Respondent prohibiting internal seating in the café, and seeks permission for a maximum of 12 seats, inclusive of 4 seats shown in the pedestrian accessway.

  3. As stated at [132], I accept that the café operations are an extension of the supermarket for staffing purposes. However, I also accept that seating in a café is likely to increase the dwell time of customers, with the consequent increase in the dwell time of a car parked in the car park, in the event the customer has arrived by car.

  4. The indicative layout shows a total of 8 seats. Four seats are within the café, and four seats are shown in the pedestrian accessway. On this basis, I find the form of the condition at Condition 42(h) and, relatedly, Condition 117, should reflect the plans prepared by the Applicant, and so permit a total of 8 seats.

  5. Additionally, I note the town planning experts agree on a methodology for ensuring the timely close of the car park that is reflected in the Respondent’s preferred form of wording in Condition 42(c). Accordingly, it is adopted.

  6. Likewise, agreement between the town planning experts is reflected in the Respondent’s form of wording at Condition 42(j) and so I find it appropriate to adopt.

Easement – Pedestrian Link

  1. The Respondent seeks an easement, at Condition 89, for the pedestrian accessway in accordance with the Conveyancing Act 1919 to benefit the Council for the life of the development to provide for a clear width of 1.5m to be maintained, and for the pedestrian accessway to be kept open at all times.

  2. Such a condition is consistent with Part 5.2 of the MDCP in which Objective 11 states:

“O11 To have improved pedestrian and functional links through the business centres.”

And in which the relevant planning control is in the following terms:

“P36. Where appropriate, sites adjoining lanes or parking areas are to maintain existing or incorporate new through-site arcades and/or shop frontages to improve pedestrian accessibility, safety and amenity.”

  1. Similarly, Part 4.3(2)(g)(i) of the MDCP requires through-site arcades between Military Road and rear lanes/carparks. To this end, the subject site is identified in the figure at Exhibit 7, folio 145, re-produced below:

  1. The Applicant submits there is no means to close off the pedestrian accessway, and the Respondent seeks to effectively acquire land without appropriate compensation.

  2. While there is a clear statement of intent within the MDCP for arcades, laneways and pedestrian links, the intent seeks improved pedestrian accessibility, which is proposed, and does not extend to a statement in respect of easements.

  3. As such, there is no basis for the registering of an easement in favour of the Council.

Land dedication

  1. On the basis of my finding at [132], the Applicant’s preferred form of wording is adopted in Condition 90, and relatedly, Condition 105.

  2. I also record here that I find the 1500mm wide pedestrian footpath proposed to the western side of Lennon Lane, and extending northwards to the carpark fronting Gouldsbury Street to be of a width that adequately provides for pedestrians in a low volume, low speed environment.

  3. While Mr McLaren observes that children tend to walk in groups that may spill on to Lennon lane, I do not consider this potential to be a reason to adopt a footpath that is 1800mm wide.

  4. It appears common practice for external carparks in the local area to operate as shared spaces, negotiated between pedestrians and vehicles, as was evident in the car parks visited during the onsite view.

  5. Provision of a 1500mm wide footpath, as proposed in Attachment L, Exhibit 6, caters for pedestrians to pass, and provides a reasonable width for egress from the fire exit at No 1 Belmont Road.

  6. However, as it was agreed by the parties that the northern extent of the path, in the vicinity of the electrical substation on Gouldsbury Street requires amendment, I consider it appropriate to provide preliminary directions for this, and other amendments, to be prepared in the form of final documents that are the documents to which consent is to be granted, subject conditions responsive to my findings.

  7. While the Respondent opposes the grant of consent, it is my understanding that the Respondent does not oppose the amendment of the application as directed below, notwithstanding that opposition.

Directions

  1. The Court directs that, within 14 days of these orders:

  1. The Applicant is to file and serve final architectural plans incorporating those matters agreed between the heritage experts at Part A Condition A1; an agreed layout and terminating point at the northern extent of the path in the vicinity of the electrical substation on Gouldsbury Street, and other amendments that reflect the findings in this decision.

  2. The parties are to settle, and file, the final form of conditions responsive to my findings at [167]-[198], at which time the Respondent is to confirm in writing whether, as the relevant consent authority, it agrees, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application.

  3. Parties have liberty to restore with 2 days notice.

……………………

T Horton

Commissioner of the Court

**********

Decision last updated: 02 November 2021

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Fabcot Pty Ltd v Mosman Municipal Council (No 2) [2021] NSWLEC 1730
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