Harb v Wyong Shire Council

[2004] NSWLEC 568

Land and Environment Court

of New South Wales

CITATION:	Harb v Wyong Shire Council [2004] NSWLEC 568
PARTIES:	APPLICANT Steven Harb RESPONDENT Wyong Shire Council .
FILE NUMBER(S):	10631 of 2004
CORAM:	Brown C - Moore C
KEY ISSUES:	Development Application :- Absence of height control .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s5 Wyong Local Environmental Plan 1991 Development Control Plan No 81 - Retail Centres Development Control Planning No. 64 - Guidelines to Medium and High Density Residential Development State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development . Environmental Planning and Assessment Act 1979
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Weal v Bathurst City Council [2000] 111 LGERA 181; .
DATES OF HEARING:	30 September and 1 October 2004
DATE OF JUDGMENT:	10/14/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms M-L Taylor, solicitor Norman Waterhouse RESPONDENT Mr J Cole, solicitor Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown
Commissioner T Moore

14 October 2004

10631 of 2004 Steven Harb v Wyong Shire Council

JUDGMENT

1 THE COMMISSIONERS: This is an appeal against the refusal by Wyong Shire Council (the council) of Development Application 2222/03 for the demolition of the existing improvements and erection of a mixed commercial/residential building at 258A - 260 Main Road, Toukley (the site).

2 A view of the site and surrounding area was undertaken on the morning of the first day of the hearing with representatives from both parties. A number of local residents provided their evidence at this time.

The site

3 The site consists of lots 61 and 62 in DP 599585. It is rectangular in shape with a frontage of 24.395 metres to Main Road and Tarrant Lane at the rear and a depth of 32.005 metres, giving a total area of 780.7 square metres.

4 It is located in the centre of the Toukley shopping centre. The site contains two shops, one of which is currently vacant. The buildings fronting Main Road in the vicinity of the site consist totally of single and two storey construction with retail or services in shopfronts. There is no evidence disclosing any “shop top” residential use and we observed none during the site inspection.

The proposed development

5 The proposed development seeks the demolition of all existing structures and the erection of a five-storey commercial and residential building. The building will contain two basement levels of car parking for 24 vehicles, the ground floor will contain two retail spaces with a total area of 185 square metres, nine car parking spaces and a loading area. Access to the basement car park and the loading area is obtained from Tarrant Lane. The first, second and third floors each contain four apartments with the fourth floor containing two apartments. A rooftop terrace is provided for communal open space.

Relevant planning controls

6 The subject site is zoned 3(a)(Business Centre Zone) under Wyong Local Environmental Plan 1991 (the LEP). A "shop" and residential flat buildings attached to other permitted buildings may be carried out with development consent within this zone. Clause 2 provides aims and the objectives for the LEP. Clause 10(3) states that consent must not be granted unless the proposed development is compatible with the objectives of the zone. The objectives are found in the zoning table and are:

( a) to provide for the primary opportunity for the development of retail and commercial activities that are appropriate to the character and needs of individual business centres within the retail hierarchy proposed by a development control plan prepared by the council for the purpose, and
(b) to provide for higher intensity retail and commercial uses, while allowing for low intensity retail and commercial uses in other business zones, and
(c) to enable the Council to provide more detailed guidelines about preferred retail distribution and development issues in a development control plan.

7 The LEP contains no relevant development standards.

8 Development Control Plan No 81 - Retail Centres (DCP 81) also applies to the application. Clause 2.0 sets out the Wyong Retail Centres Hierarchy as Regional, District, Neighbourhood and Local Centres. Clause 5.5 identifies the Toukley shopping centre as one of five District Centres in this hierarchy. Clause 5.5.2 identifies the objectives for the Toukley District Centre. Clause 5.6 sets out a number of tests to be satisfied before any expansion is to be approved in the floor space at the Toukley, The Entrance and Wyong District Centres.

9 DCP 81, although clearly relevant to the proceedings (and substantially so), was not mentioned in any of the council’s reports, any of the expert witness statements, the council’s Statement of Issues or the council’s Statement of Basic Facts. The only reason why DCP 81 came before the Court is as a consequence of Commissioner Moore having sat with Senior Commissioner Roseth in an earlier case involving the council where this development control plan was a matter of substantive debate. That earlier case did not relate to the present site or locality.

10 We accept the assurance given to us by Ms Taylor, solicitor for the applicant, that the applicant’s expert urban designer, Professor Toon, had inquired of the council as to whether there was such a development control plan and had been informed by the council’s inquiry staff that there was not. Failure to bring this development control plan to the attention of the Court cannot, in any way, be regarded as being an omission by the applicant.

11 DCP 81 provides no relevant development standards.

12 Development Control Planning No. 64 - Guidelines to Medium and High Density Residential Development (DCP 64) applies to the subject application. DCP 64 applies to dwellings associated with commercial premises and contains a range of development standards.

13 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the subject application. SEPP 65 requires consideration to be given to the design quality principles in Part 2 and the publication Residential Flat Design Code.

The issues

14 The council filed a Statement of Issues containing 11 separate issues and particulars. These can be conveniently grouped into the following main areas:

1) whether the proposed development is compatible with the zone objectives (Issue 2)
2) whether the proposed development will have an adverse affect on the streetscape and surrounding area (Issue 1)
3) whether the design of the proposed development is acceptable (Issues 3, 4, 5, 8, 9 and 10)
4) whether the proposed development creates unacceptable traffic impacts (Issues 6 and 7)

15 Issue 11, dealing with the public interest, is addressed as part of the Courts consideration of the other issues.

16 However, in summary, there are three matters in this case which we consider are issues which are potentially determinative of the application. These are:

• the view of the proposed development in its immediate streetscape context;

• the view of the proposed development from a range of remote locations on the shore of lakes to the north and south of the peninsular which includes the site; and

• whether or not there are of aspects of the design of the building which are unsatisfactory from either an amenity and/or impact on adjoining sites basis.

17 We are satisfied, for reasons set out below, that objectors’ concerns relating to traffic and parking would not warrant refusal. There is also a significant unresolved issue relating to operational waste disposal which would have needed to be resolved to our satisfaction had we otherwise considered that the proposal warranted approval. This is also discussed briefly below.

The immediate streetscape context

18 Currently, there are no buildings fronting Main Road at the Toukley Town Centre which present to the street as being higher than a two-storey form with, in some instances, an additional parapet giving a two-and-a-half storey or so appearance.

19 The present proposal would have, although stepped back above the second storey, five storeys plus an accessible and landscaped roof space. This roof area would, in our view, when observed from both the north and south approaches along Main Road, give a presentation of an additional functional level.

20 The permissible uses within the zone, as earlier noted, allow the construction of a residential flat building if attached to another permitted building such as retail shops.

21 However, the first of the zone objectives requires that the zone will provide the primary opportunity for the development of retail and commercial activities that are appropriate to the character and needs of individual business centres within the retail hierarchy proposed by a development control plan prepared by the council for the purpose.

22 DCP 81 is, clearly relevant, despite its not having been mentioned in the issues raised by or any statements of evidence presented on behalf of the council.

23 Clause 5.5.2 of DCP 81 identifies the objectives for the Toukley District Centre as:

a. The Toukley Town Centre should be maintained as a primary focus for retailing facilities which provide a comprehensive range of convenience goods and a limited range of comparison goods to support the needs of the surrounding population and tourist population.
b. Retailing activity shall be contained within the existing retail area and shall be permitted to develop in a form which contributes to an overall consolidation of the physical and functional role of the centre.
c. All development within the Centre shall integrate with the landscape in streetscape improvement program.

24 As a consequence, we directed that Professor Toon and Ms Morrish, the expert urban design witnesses retained by the applicant and the council respectively, to confer, before the resumption of the hearing on the second day, concerning matters arising from DCP 81 impacting on the present proposal.

25 They agreed on seven initial substantive matters set out in a joint statement of evidence from the joint conference. These matters were:

1. Both experts agree that the DCP is relevant and applicable to the subject site. 2. Both experts agree that the DCP sets relevant objectives, standards and functions for each centre mentioned in the retail hierarchy and it applies to 3(a) Business zoning. 3. Both experts agree that Toukley is identified appropriately as a district centre under the DCP and the definition and description of desirable retailing is appropriate for its role. 4. Both experts agreed that Toukley’s [sic] has a pivotal role as described by the DCP and that this role should remain. 5. Both experts agree that restructuring of the town should reinforce these functions and that this should be encouraged for any new development. 6. Both experts agree Toukley Town Centre should be maintained as a primary focus for retailing facilities and retailing activity should be contained in the existing retail area. 7. Both experts agree that the aim of the council is an increase in leasable floor area in the centre given the sqm target cited in the DCP subject to the qualification that new space does not exacerbate the amount of existing vacant floor space in the centre.

26 Having stated those areas of agreement, the experts then disagreed as to whether or not the proposal satisfied and was consistent with those agreed matters. Ms Morrish concluded that it did not and Professor Toon concluded that it did.

27 There were, however, several other relevant matters of agreement. These were, first:

10. Both experts agree the future development should be contributing to the viability of the centre and that the provision of residential dwellings on the site will work towards this main.

28 Second, that:

15. Both experts agree that the appearance of the development when viewed from Main Road is very important as is the view from adjoining properties and other places. Both agree that 3 storeys is the appropriate street frontage height for the site.

29 Although the application was twice referred to the Central Coast SEPP 65 Design Review Panel for consideration, it does not appear that DCP 81 was drawn to their attention. As a consequence, given the conclusions that we have reached, we do not consider it necessary to deal with the Panel’s reasons for its recommendation of refusal. We do, however, note that there is nothing in the Panel's opinions which is inconsistent with or contrary to the conclusions which we have reached.

30 In this context, a statement of evidence was admitted from Mr J Luke, a strategic land use planner employed by the council. The statement of evidence was described as being in response to Professor Toon’s report and, although generally dealing with Professor Toon’s report, his report further dealt with future planning for the Toukley Town Centre. This statement of evidence, too, made no mention of DCP 81.

31 Although there was debate, during the view, between the various witnesses as to likely height restrictions in the 2(d) zoned areas in proximity to the 3(a) zoned area within which the site is located, we do not consider it is necessary to deal with these at length as the appropriate matters to consider concerning the height issue arise from the 3(a) zone objectives and the relevant provisions of DCP 81.

32 The potentially relevant matters from Mr Luke’s statement are:

• A Toukley planning study was been commenced by the council in the first quarter of 2002.
• Although this study appears to have proceeded somewhat fitfully, part of its brief is to review the appropriateness of the existing zones across the Toukley peninsular.
• A final working draft of this study was completed in October 2003 but has not been presented to the council, as there has not been an extensive public consultation process.
• In August 2004, the council's Strategic Planning Department proposed that an external consultant prepare an interim DCP for Toukley.

33 Mr Luke’s written evidence concluded by noting that:

The work completed to date in the TPS [Toukley planning study] supports the down zoning to the 2(d) zoned areas to limit height therein to 3 storeys and indicates that the maximum height in the Toukley town centre be limited to 3-4 storeys. Of particular importance is the need to restrict the height of development on the north of Main Road and to the north of the village green in the Town Centre to limit the effect of overshadowing during winter months.

34 As a result, he concluded that a development proposing five stories on the site was inconsistent with these planning directions and runs the risk of pre-empting the comprehensive planning for the Toukley area.

35 With respect to the preparation of an interim DCP for Toukley, we are not persuaded that it would be appropriate for us to regard the preparation of such a document, even if demonstrably imminent (which may or may not be the case), as an appropriate reason to refuse the present application (see McCellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at paras 87 to 91 especially para 91 – the reasoning concerning policies coming into existence when an application is known would, in our view, apply equally to a DCP so coming into existence).

36 Having set out the relevant framework for our decision on this issue, we turn to consider whether, as a matter of general planning principle, the five-storey building with additional usable landscape roof space is appropriate on the site.

37 As to the emphasis we should give to DCP 81, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent.

38 From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge which are relevant to this appeal.

• First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.
• Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process.
• Third, a provision directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

39 However, if a proposal does not meet a DCP’s requirements, the Court is not precluded in appropriate cases from granting consent, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

40 The objectives of DCP 81 for Toukley town centre specifically provide the primary focus is for retailing facilities in the context described therein.

41 Although permissible within the zoning - a zoning which applies to various business centres within the council area, no mention is made of shop top housing as an objective for Toukley in contrast to the specific provision of such an objective for the Wyong District Centre and one for tourism accommodation and shop top housing for The Entrance district centre. Toukley, The Entrance and Wyong District Centres are three of the five district centres identified in DCP 81.

42 The provisions of cl 5.6 in DCP 81 for increases in floor space at Wyong, Toukley and The Entrance pose three tests about which the council is required to be satisfied prior to approving such floor space. These are:

• The proposed new floor space does not exacerbate the amount of existing vacant floor space currently available at the centre.
• The proposed development contributes to the overall viability of the district centre and diversifies the range of services available within the trading catchment;
• The proposed development serves to reinforce the identified role of the centre.

43 The expansion tests for the other two district centres are in different terms and do not pose the same tests.

44 Although the space involved in the tests for Wyong, Toukley and The Entrance necessarily relates to leasable commercial/retail space, these tests are relevant to the extent that residential development necessarily precludes additional leasable commercial/retail space on the site.

45 In the present instance, the proposal is not inconsistent with the first or second tests.

46 However, in addition to precluding additional leasable commercial/retail space on the site, the proposed development, being predominantly residential, is contrary to the third test as it does not reinforce the identified role of the centre which is to be a primary focus for retailing facilities which provide a comprehensive range of convenience goods and a limited range of comparison goods to support the needs of the surrounding population and tourist population.

47 Thus, in terms of our consideration of DCP 81, we are satisfied that what is proposed it is not consistent with the objectives for the Toukley town centre nor does it satisfy the relevant test required for the expansion of floors space in that centre.

48 While it might well be (there is an implied agreement between the urban design experts for the parties on this point) that some degree of residential accommodation may be appropriate in the future for the Toukley town centre, the present planning regime does not provide an appropriate basis for presuming this, generally.

49 The specific development is sufficiently out of scale with the existing nature of development in the precinct that it would be inappropriate for us to approve it given its inconsistency with the stated objectives of DCP 81 and the absence of any other document or policy which is appropriate for us to consider (and give weight) which would evidence an alternative acceptable framework which the proposal fitted.

50 As a consequence, the proposal is incompatible with the first of the LEP’s objectives for the zone – as set out in (6) above.

The view of the proposal from remote locations

51 Although not specifically raised in the statement of issues, it was put to us on behalf of the council, by Mr Cole, solicitor for the council, that to be consistent with general coastal policy objectives, the development ought not be significantly observable when viewed from foreshore locations around the lake system. In this context, he submit that, in the council’s opinion, as the council believed that the proposed development would breach the tree line when observed from such locations, it was not contextually appropriate.

52 As a consequence, we were invited to inspect the long-distance perspectives of the site from various vantage points around the lake system. We observed the tree line of the site from locations at San Remo, Buff Point and immediately to the west of the Toukley Bridge on Budgewoi Lake and from the North Entrance Reserve on Tuggerah Lake.

53 With respect to the North Entrance observation point, it was clear that the skyline behind the ridge on which the site is located is dominated by the view of the Lake Munmorah power station to the north west. Although this power station is many kilometres away across all three lakes of the Tuggerah Lakes system, the upper structures of its processing building together with its twin emission stacks renders any building height above the tree line of the intervening development proposal irrelevant from the vantage point which we were taken.

54 In addition, although as one might approach the site on the lake from the south, any building height above the tree line might become more obvious, its impact would also diminish as a consequence of the perspective foreshortening caused by the intervening tree canopy. A similar position would apply to any approach by water from the north.

55 Although we had survey evidence produced by the council giving some indication of the tree canopy, we are satisfied that the longer views of the site, if the development were to be permitted, would not be such as to cause us to consider that any exceedance, if it were to occur, should be such an intrusion as to require refusal of the application. In this regard, we note that there is a degree of uncertainty as the question of the precise location of the site and the height of the proposed development with respect to the tree line is contested.

56 Professor Toon's evidence is that he does not consider that there would be any breach of the tree line when observed from any of the more remote locations. Although we do not accept this evidence unreservedly, this evidence coupled with the opinions which we have reached as to the negligible impact of such building height above the tree line (if there be any building height above the tree line) leads us to the conclusion that, from consideration of any distant viewing impact, there is no reason to refuse the proposal.

57 Only one viewing point concerned us somewhat – this is the view from the foreshore at a small park on the western side of Budgewoi Lake immediately across the Toukley Bridge.

58 However, although we are of the opinion that the likely view of the proposal from this point would possibly (indeed, perhaps probably) be above the intervening tree line, nonetheless, it be would significantly softened by the substantial stand of trees further up the west /east running ridge line toward the community centre of the top of the hill behind the site.

59 Whilst we are unable to say with any precision and whether or not the proposal would breach in this tree canopy when viewed from this location, we are similarly satisfied that any breach, if it occurred, would be of negligible impact.

Aspects of the design of the building

60 With respect to the issue of amenity and impact on adjoining sites, we do not consider it necessary to deal with all of these matters in any detail. The single matter which we do consider is of significant concern relates to the setback, from the eastern and western side boundaries at the second, third and fourth storeys.

61 The side setback at the second and third levels is proposed to be 3.14 m to the angled windows and 4 m to the walls. Minor increases in these are provided for at the fourth level.

62 As the adjacent properties to both the east and west have the same zoning and, if developed for commercial development to the side boundary and up to a similar height as is proposed on the site, it is clear that there would be significant overshadowing and little ventilation down the north/south oriented recesses in the proposal along the boundary.

63 These recesses were described by the council as canyons. The response of the applicant’s experts, Professor Toon and Mr Phillips, the project’s architect, to this design criticism is twofold.

64 The first element is that, as a consequence of balconies to the north and south of located on each of these units and, as to the possible the restriction on the commercial development of adjacent sites, that it ought be expected that any redevelopment of each of the adjacent sites to be of a similar residential accommodation on top of retail development as proposed for the site.

65 As a consequence, the applicant submits, we should expect that there would be setbacks on the upper residential levels of these redevelopments to the east and west at some stage in the future and, as a further consequence, these would need to be appropriate setbacks for the amenity of those residences. These setbacks would necessarily have the effect of creating appropriate and acceptable separations between the various residential elements of the two buildings coupled with appropriate solar and ventilation access provision.

66 There is no evidence before us, of any strategic planning nature, that would support such a conclusion. The limited evidence before us, which is discussed more extensively with respect to the streetscape issues of the proposal’s height, does not lead to such a conclusion. To the contrary, it is largely silent on this point.

67 In addition, although not raised explicitly, the council’s the position that the proposal would limit the redevelopment opportunities on the adjacent sites necessarily raises for our consideration s 5(a)(ii) of the Act which sets one of the Act’s objectives as the promotion and co-ordination of the orderly and economic use and development of land.

68 We are satisfied that, if this aspect of the design of the proposal were to be rendered acceptable from both a solar access and ventilation perspective, it would be necessary for there to be generally mirroring designed developments to both the east and west as the long-term redevelopment outcomes for those sites.

69 Absent any specific development control plan or strategic policy of the council which would encourage or make probable such an outcome, we are not satisfied that we ought, by this decision, pre-empt the totality of the long-term planning for at least this block if not to the totality of any possible redevelopment of the Toukley Town Centre. To do so, we consider, would be contrary to the objective of the Act cited above.

Traffic and parking

70 Two vehicle related matters arose with respect to the internal operations of the building. The first relates to whether or not the internal ramps of the building should be wide enough for two vehicles to pass whilst travelling in opposite directions and the second was whether or not trucks should be required to enter and depart in a forward direction from the building’s loading dock when delivering goods to the two retail outlets which are proposed on the ground floor.

71 The plans propose that there be single width ramps within the basement car parking – with the operation of those ramps controlled by traffic signals operated by remote sensing so that vehicles would not in opposition to each other when on the ramps if the signals were obeyed. Mr Burch, the council’s traffic engineer, was not satisfied that residents would obey the signals thus rendering the system unsafe.

72 The applicant proposes this signal-based arrangement in preference to a car lift and stacker arrangement on the basis that it is more commercially attractive to have a traditional ramp and car space system. Although the operation of a signalised ramp systems relies heavily on the goodwill and co-operation of those using it, we are satisfied that, given the comparatively low number of units proposed for the building, such a system would not be unreasonable. We have, therefore, concluded that the likelihood of frequent or unsatisfactory internal movement conflicts arising as a result of this is so low as not to constitute a concern.

73 We have reached this conclusion because we are satisfied that, if the building were to be permitted, there would need to be, as part of its communal operation, a high degree of mutual social responsibility – as is usually the case in such multi unit developments.

74 With respect to the loading dock, it was the evidence of Mr Hazell, the applicant's traffic expert, that, even with a cafe operating in the retail premises, it would be unlikely that there would be more than one or two deliveries per day to the loading dock.

75 If the retail premises were tenanted by uses that did not require foodstuffs delivered at that frequency, it was his evidence that one or two deliveries per week per shop would be likely. As to possible conflicts with pedestrians if the through access to the west were re-instated via the bank or any or redeveloped premises on the bank site, we are satisfied, on the applicant’s expert’s uncontradicted evidence, that the number of deliveries would be so low that it would be reasonable to permit a delivery vehicle to enter the loading dock by backing into it and leave in a forward movement.

76 Evidence was given on site by a number of the local residents and a proprietor of a nearby pharmacy which also has its rear entrance from the lane who were concerned about traffic generation issues and exacerbation of existing parking difficulties in the vicinity of the site.

77 Across the rear lane from the site is a council car park which operates two widths of angled parking from a central carriageway with traffic flow in the car park being in an east-west direction.

78 The car park is accessed from the street to the east, and its in the mid-point along laneway and, effectively opposite the proposed vehicle entrance to the development, there is an entry/exit point to the car park. The evidence of the residents and of the proprietor of the pharmacy, which has a rear entrance to the laneway although its primary shopfront is to Main Road, was that there was considerable traffic movement the laneway including an element of it being used as a rat run to access Main Road through the traffic lights at the intersection of Main Road and Lakeview St .

79 In addition, it was the evidence of the residents that parking was very difficult to find in the vicinity and that there was a high demand for the parking spaces for, amongst other reasons, the use by patients of have a number of nearby health practices.

80 Although it was evident during the view that the carpark was full and that there was a steady demand for spaces as they turned over, the parking spaces to be provided in the proposed development satisfy council numerical requirements for parking spaces as set out in the residential development DCP .

81 The expert evidence, on behalf the applicant is that it would be reasonable to expect a maximum of eight vehicle movements per hour from the proposed development at peak periods and, obviously, a lesser number of movements at other times of the day.

82 Although it is possible that there may be some minor increase in on-street parking demand, the development is compliant the council's requirements for on-site parking.

83 We are satisfied that the additional traffic load which may be generated on the laneway would not be unreasonable in light of the uncontradicted evidence concerning the likely number of vehicle movements at various times of day and as the entry/exit to the laneway has adequate sight-lines.

84 Although there is some potential for a degree of minor conflict between vehicles entering and exiting from the development with those entering and exiting the council's car park, the number of vehicles movements for the development means that the occasions when such a conflict is likely to occur will be comparatively infrequent. In addition, the applicant has proposed that the ramp operating signal system for the basement car parking would have an inherent bias so that it defaulted in favour of vehicles seeking to enter the complex.

85 In light of these factors, given the low number of likely conflicts, we are satisfied that the traffic impacts are acceptable.

Waste management

86 The applicant currently proposes that the residential waste be disposed of in a series of 240 litre bins which will be stored in a waste and recycling room on the ground level at the rear of the car park element.

87 There is no provision on the present plans for these bins to be able to be put out for collection by the councils waste disposal contractor in any fashion other than leaving them in the carriageway of the lane.

88 Although there was some discussion as to whether the internal storage room was capable of accommodating sufficient bins, no concluded position in this respect was put to us.

89 The council’s preference is for a larger container to be used and for there to be on-site collection. This is clearly not possible with the present plans.

90 The council had proposed as part of its without prejudice conditions of consent that an operational waste management plan be provided. Had the application been otherwise capable of approval, we would have granted the applicant an adjournment, subject to an undertaking as to additional costs for the council, to enable the preparation of an operational waste management plan for our consideration. We would have followed this course as we consider that satisfaction concerning an appropriate waste disposal regime for a multiunit development is not something the which is appropriate to be dealt with by condition. We are of the view that in cases such as this, to do so would be contrary to the principles flowing from the decision of the Court of Appeal in Weal v Bathurst City Council [2000] 111 LGERA 181.

Conclusions

91 Although we have concluded that the traffic issues and the appropriateness or otherwise of the development when viewed from a distance do not provide any reason to refuse the appeal, we are satisfied that two matters warrant dismissal of the appeal.

92 The first is that the proposal would place inappropriate constraints on the future redevelopment of adjacent sites in the absence of any express determination by the council as to the appropriate future planning regime for the precinct within which the site is located and, second, the proposal is not consistent with the zone objectives as expanded upon by the relevant provisions of DCP 81.

Orders

93 The orders of the Court, therefore, are:

1. The appeal is dismissed;
2. Development application 2222/03 for the demolition of the existing improvements and erection of a mixed commercial/residential building at 258A - 260 Main Road, Toukley (being Lots 61 and 62 DP 599585) is determined by the refusal of development consent;
3. Costs are reserved; and
4. The exhibits are returned.

Graham Brown

Commissioner of the Court

Commissioner of the Court