Illawong Village Pty Ltd v Sutherland Shire Council
[2004] NSWLEC 108
•04/30/2004
Land and Environment Court
of New South Wales
CITATION: Illawong Village Pty Ltd v Sutherland Shire Council [2004] NSWLEC 108 PARTIES: APPLICANT
Illawong Village Pty LtdRESPONDENT
Sutherland Shire CouncilFILE NUMBER(S): 10243, 10245 and 10903 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- Appeals re proposed extensions and additions to a shopping centre - new loading area - impact on residential amenity - traffic - shoptop housing - restriction on percentage of residential floor space - utility of s 96 application LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96, s97 CASES CITED: DATES OF HEARING: 19-21, 24-25 November 2003; 24 (mention) and 30 March 2004 DATE OF JUDGMENT: 04/30/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr N D Howie, solicitor
SOLICITORS
Wilshire Webb
Mr S Berveling, barrister
SOLICITOR
Mr C Mathieson
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10243, 10245 and 10903 of 2003
Nott C
30 April 2004
Illawong Village Pty Ltd
Applicant
v
Sutherland Shire Council
Respondent
Judgment
OVERVIEW
1. These three appeals relate to proposed retail, commercial and residential extensions and additions to the Illawong Village Shopping Centre, Fowler Road, Illawong.
2. Briefly, Appeal 10243 of 2003 is in respect of a development application lodged with the council on 22 August 2001 for retail extensions and additions, including the relocation of the loading dock of the Coles supermarket and the erection of a new carpark, which could conveniently be referred to as the retail DA.
3. Appeal 10245 of 2003 is in respect of a development application lodged with the council on 6 February 2002 for 12 residential units, a new restaurant and new offices and community centre, together with underground carparking, which the parties referred to as the shoptop housing DA.
4. Appeal 10903 of 2003 is against the deemed refusal of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the s 96 application) to modify a development consent granted to the applicant by Commissioner Watts in appeal 11089 of 2000 on 13 November 2001. This development consent (which has not yet been implemented) is for a four-storey residential flat building comprising 31 units and basement carparking on the north-eastern side of the existing shopping centre. (Further details of the abovementioned proposals will be given later.)
5. Evidence for the applicant was given by: Mr L Hunt, consultant town planner; Mr C Hallam, traffic engineer; Mr J Toon, associate professor in urban and regional planning; Mr G Burnett, landscape architect; Mr M Gross, acoustic engineer. For the council, evidence was given by Mr K Nash, consultant town planner; Mr G Atkins, acoustic engineer; Mr C McLaren, traffic engineer; Mr J Abbott, Mr B McNicol and Mr E Tsimos, who respectively live at 2, 6 and 10 Thompson Avenue, Illawong; and Mrs M Kydd of 9 Brisbane Street, Illawong. Both parties also presented other documentary evidence, and I have had the benefit of viewing the site and locality.
6. As will be seen below, I am not sufficiently satisfied that it is appropriate to uphold the appeals. I have reservations about the proposed relocation of the Coles loading dock area because of its impact on the amenity of residents whose houses are opposite. There is also uncertainty as to whether the changed traffic arrangements would cause unacceptable delays at the intersection of Brisbane Street and Fowler Road during school peak hours. A more detailed consideration of alternatives compared with the present proposal for managing parking and traffic would appear to be desirable.
7. In the absence of consent for the retail DA, the proposed residential floor area of the shoptop housing DA, together with the floor area of the Court-approved residential flat building, would exceed 50% of the total gross floor area of all buildings on the site, contrary to a development standard. In addition, the proposed shoptop housing is in breach of development standards relating to height, and I am not persuaded that there should be a variation to the standards to the extent presently proposed.
8. The proposed s 96 modifications to the Court-approved residential flat development do not enhance that development. In the absence of consent for the shoptop housing DA, the modifications have no utility, and they should not be approved in advance of a possible future development application.
EXISTING SHOPPING CENTRE AND LOCALITY; PHOTO
9. The following is an aerial photo of the shopping centre and immediately surrounding development:
10. The applicant’s shopping centre (including tennis courts) is seen towards the top of the photo, in the area bounded by the northern part of Hobart Place and by Fowler Road. Hobart Place swings around and also forms the western boundary of the applicant’s land.
11. The shopping centre is lot 1 DP 803813, having an area of 15,340 sq m. The shopping centre was originally approved by development consent 229/87 dated 20 July 1987. The development plans referred to in condition 1 of that consent are ex 20. The existing buildings and their layout on the site at the present time appear to correspond to the 20 sheets of “As Built Drawings” dated 13 November 2001 (ex AA). All of the existing buildings are one or two storeys in height.
12. The relatively large supermarket in the shopping centre is leased by Coles. The existing Coles loading bay is located between the supermarket and the tennis Courts, and the access to this loading bay is up a ramp off Hobart Place, shown on the above photo. After driving up the ramp, trucks back into the loading bay. The trucks are driven out in a forward direction through the area marked “Egress” and then across the carpark to the exit into Fowler Road. The Fowler Road exit from the carpark is near the bend in Fowler Road just north of the Uniting Church, which can be seen to the south of the carpark.
13. On the southern side of buildings (B) to (E) there is a large carpark, but it is to be noted that not all the land in this carpark is owned by the applicant. In fact, part of the carpark is a dead-end public road reserve 20 m wide, extending westward from Fowler Road proper for a distance of about 80 m. The southern or side boundary of this road reserve is the whole of the northern boundary of the Uniting Church and part of the northern boundary of a group of townhouses. The road reserve within the shopping centre carpark is indicated by a faint line around the area where the word “Carpark” appears (on the photo at par 9 above) immediately to the north of the Uniting Church. In this road reserve, there is a driveway that serves the shopping centre and the Uniting Church and there are currently 45 carparking spaces. Outside the road reserve, there are at present 93 spaces on the applicant’s land to the south of buildings (B) to (E).
14. The applicant has not yet commenced to erect the 31 units of the Court-approved residential flat building. The erection of this building would result in the elimination of the tennis courts, the demolition of building (F) and the loss of the carparks in front of and behind that building. Building (F) at present contains two storeys: a medical centre and restaurant at the upper level and a hardware store at the lower.
PLANNING CONTROLS
LEP 2000
15. The subject land is zoned 3(b) Neighbourhood Business under Sutherland Shire Local Environmental Plan 2000 (LEP 2000) and is within a foreshore scenic protection area. The more relevant provisions of the LEP 2000 include:
43 What height limits apply in business zones?
- (1) Except where a maximum height is specified in a development control plan, the maximum height for a building in a business zone is:
- (a) 7.2 metres to any point on the uppermost ceiling, and
(b) 9 metres to the highest point on the roof.
44 What floorspace ratios apply in business zones?
- (1) Except where a maximum floorspace ratio is specified in a development control plan, the maximum floorspace ratio for buildings in a business zone is:
- (a) 2:1 in the 3 (a) General Business zone, and
(b) 1:1 in the 3 (b) Neighbourhood Business zone.
45 What controls apply to residential development in the business zones?
- (1) Except where a development control plan specifies a maximum amount of residential floor space for a site area, the residential floorspace of any buildings on a site area must not exceed 50% of the total gross floor area of the buildings on that site area.
(2) The consent authority must consider any maximum amount of residential floor space specified in any development control plan applying to the land.
16. The objectives of the 3(b) zone, set out in the table to cl 47 of LEP 2000, are:
- (a) Appropriately located land for the provision of small scale retail and business activities that principally aim to serve the day to day needs of the surrounding local community.
(b) Business centres with integrated public transport and pedestrian networks.
(c) Viable neighbourhood centres supported by appropriate forms of residential development.
17. In accordance with the table to cl 47 of LEP 2000, development that is permissible with consent in the 3(b) zone includes: business premises; dwellings only in buildings subject to another permitted use; residential flats, only in buildings subject to another permitted use; restaurants; shops. Subject to the other provisions of the LEP, the proposed development is thus permissible with consent. There is no current development control plan relating to the erection of buildings in the business zone.
18. As seen in the above photo (par 9) the shopping centre site is surrounded by residential development, by a childcare centre and a school. The full extent of the residential development can be seen in the current extract from the zoning map (ex 2). The adjoining land to the north-west and west is zoned 2(e), and the land to the north-east and south-west is zoned 2(a1).
Draft LEP 2004
19. There was brief oral evidence to the effect that there was a draft LEP in the course of preparation but its gazettal was not imminent. Having reviewed all the evidence and before finalising my judgment, I considered it desirable to have the parties inform me as to whether there any recent changes to the draft LEP and, if so, to put before me the relevant draft documents. The appeals were accordingly mentioned before me on 24 and 30 March 2003, when Mr Mathieson (solicitor for the council) tendered a voluminous folder called the “Peoples Plan” (ex 24) containing:
- (1) Sutherland Structure Plan 2003
(2) Sutherland Shire Local Environmental Plan 2004 (which I will refer to as “ draft LEP 2004 ”)
(3) Sutherland Shire Environmental Policy .
(4) Sutherland Shire Environmental Specifications.
20. Draft LEP 2004 and its accompanying environmental policy do contain detailed provisions which (if gazetted) would change the current planning provisions relating to the proposed development. Among the more important provisions of draft LEP 2004 are the following:
(1) The subject land is zoned local centre , as shown on the draft zoning map (ex 25) .
(2) Clause 8.4 deals with building height and contains objectives and specifies a maximum height for a residential flat building and for all other development in the local centre zone of three storeys (an alternative height limit is not mentioned in the maps referred to in that clause), but there is no limitation on how high a storey can be.
(3) Clause 8.5 contains objectives relating to building density and specifies (as a development standard) a maximum floor space ratio for all development in the local centre zone of 2:1, unless (which is not the case here) a higher FSR is specified on the relevant maps.
(4) Clause 12 contains a savings provision in respect of development applications lodged but not finally determined before the coming into effect of the new LEP.
(5) Clause 26.9 describes the local-centre zone and its objectives and sets out a wide range of business-type uses as well as shoptop housing and residential flats as being uses permissible with consent.
21. The draft environmental policy contained in the Peoples Plan has detailed provisions relating to urban design and other matters affecting the proposed development. The intention is that this policy would be a development control plan providing more detailed provisions than are contained in draft LEP 2004. The guideline in clause 3.i.2 of ch. 1 (Urban Design) of the policy is that a minimum percentage of retail and business floor space of 60% is to be provided in a local centre.
22. The evidence concerning draft LEP 2004 is that it was re-exhibited from 1 December 2003 to 18 January 2004, submissions were received and reported upon to the council and the council adopted an amended draft LEP 2004 on 17 March 2004. A report under s 68(4) of the Environmental Planning and Assessment Act 1979 was forwarded to the Department. However, the most recent advice by the Department is that the current draft LEP 2004 is inconsistent in some respects with the draft which received the s 65 certificate.
23. It was the common view of both parties that the making in final form of LEP 2004 was not imminent. In the circumstances, I consider that very little weight should be given to draft LEP 2004.
DETAILS OF THE RETAIL DA
24. The proposed development in the retail DA is shown in the plans mentioned in the following table:
Plan No. Brief description RET-DA4D Sections and elevations of proposed retail extensions, including carpark balustrade Q926.1 LP101C and LP102C Landscape plan of retail extension and loading dock RET-DA2F, RET-DA3D Ground-floor plan, and first-floor and lower-ground-floor plan of retail extension, including carpark layout. RET-D21A Acoustic screen for new loading dock RET-D20C Proposed loading area details
25. Through the industriousness of the applicant’s solicitors and experts, during the course of the hearing the applicant tendered a number of amended plans relating to the retail DA that made various improvements to the originally proposed development. In the above table, I have not included the superseded plans but only the plans that show fully the proposed retail development in its latest amended form.
26. The new loading area and dock for the Coles supermarket is proposed to be established opposite Thompson Avenue in the area marked (A) on the photo at par 9 above. This area presently has a low-scale usage for some of the immediately adjoining specialty shops in the shopping centre.
27. The following is a reduced copy of the detailed plan RET-D20C (ex AR) of the new loading area:
28. In the place where the current Coles loading area and ramp are, a new building containing new toilets, cool room, new lettable space and a new restaurant will be erected. This building will be three storeys high and be in breach of the development standards in cl 45 of LEP 2000. However, the council was prepared to support an objection under State Environmental Planning Policy No 1 – Development Standards in respect of this element of the proposal, but the council did not support the upholding of an objection under SEPP 1 in respect of the larger development in the shoptop housing DA, considered later in this judgment.
29. In the retail DA, some minor changes were proposed to be made to the basement level underneath the supermarket, and fenestration was proposed for the northern façade, which is at ground level facing Hobart Place. This basement level has a small loading dock facing Hobart Place, the entry to which is about 17 m west of the Coles ramp. If consent was to be granted, the council proposed a condition that this small loading bay should only be used by light trucks up to 6 m in length and that the roller shutter door be closed when the bay was not in use. From the council’s point of view it was important that the use of this basement level be regulated so as not to have pedestrians entering only from Hobart Place, as there is no on-site carparking adjoining this part of the building.
30. The retail DA also includes the addition of another storey to the existing building marked (B) on the photo at par 9 above. There are small shops or businesses in this existing building at ground level. It is proposed to provide additional floor space for shops at ground level and to create a second level above building (B) for a medical centre and three new shops. However, building (C) will remain single-storey.
31. Adjoining Hobart Place at the western end of the main carpark of the shopping centre, a new deck of parking will be constructed over the presently open ground-level parking. The new carpark deck will be at the same level as the proposed new medical centre and three shops and will provide parking for 45 cars, and the only entrance to and exit from this carpark deck will be at Hobart Place.
32. There are 47 carparking spaces proposed by the applicant in the public road reserve referred to in par 13 above (two more spaces than the existing number of spaces are achieved by deleting two small landscaped areas). These car spaces on public land, together with car spaces on the applicant’s own land, are needed to meet the carparking requirements for the proposed development.
33. Outside this road reserve on the applicant’s own land (in the existing ground-level carpark to the south of buildings (B) to (E)) the number of car spaces would be reduced to 82, and 2 designated loading bays would be provided. (As mentioned at par 14 above, the current two small carparks immediately in front of and behind building (F) would be deleted, if the approved residential flat building is erected.)
34. In the early part of the hearing, the applicant proposed a different layout of the driveways in the shopping centre carpark, such that persons driving to the Uniting Church property would not be able to drive away from that property without having to drive across the applicant’s land within the shopping centre. I expressed the view that it was unacceptable that the church be deprived of the current egress through the public road reserve. The applicant then amended the proposed driveways in the shopping centre so that the driveway passing in front of the Uniting Church within this road reserve would be a two-way driveway, enabling persons using the church property to proceed to or from Fowler Road proper without having to drive through the portion of the shopping centre owned by the applicant.
35. An important part of the applicant’s case was that the proposed development would be subject to a range of conditions aimed at mitigating any adverse effects. During the course of the hearing, various amendments were made to the draft conditions, the latest draft being the conditions dated 27 November 2003 prepared by the applicant. Most of these conditions were agreed to by the council, although it was the council’s primary case that no consent should be granted.
36. In particular, draft condition 65 would require compliance with a plan of management relating to the operation of the proposed new loading area. Since most of the issues in respect of the retail DA relate to the proposed new loading area, I set out in full this plan of management (for convenient reference, I have changed the many bullet points to continuous numbering):
- (1) This Plan of Management shall be read in conjunction with the development consent granted by the Land and Environment Court in proceedings number 10243 of 2003 and shall not be varied other than by way of modification of the consent.
(2) In order to minimise noise to the surrounding residents the following strategy will be adopted by Illawong Village. A figure showing the Hobart Place loading dock is attached [see plan at par 27 above] . This shows the main supermarket dock, which includes a leveller and the specialty unloading area.
(3) All companies which deliver to Illawong will require that their drivers are made aware of the Illawong Village Loading Dock Plan of Management:
- (4) The attached figure RET-D20 Issue C shows the screens provided to shield activities within the dock area. These include—
(a) A 4.5m screen between the entrance and exit;
(b) A 3.5 m screen adjacent to the specialty loading area; and
(c) Infill walls adjacent to the supermarket loading dock.
(5) The dock leveller must include rubber matting beneath the metal plate to minimise the noise from trolleys etc.
(6) The dock canopy and screen will be internally faced with an acoustic absorptive material and maintained to minimise the effects of impact noise.
(7) The call bell shall be installed so it is inaudible at any residence.
- (8) The core operating hours of the dock shall be from 7.00 am to 6.00 pm and deliveries will occur in these times as much as possible, however the following dock operations may occur outside these core hours:
(9) Bakery – Will continue to require daily ingredient deliveries and a weekly flour delivery which occur between 3.00 am and 4.00 am
(10) Supermarket – Will continue to receive a bread delivery at approximately 6.30 am
(11) Garbage – Will be collected no earlier than 6.30am on Monday to Saturday with no collection on Sundays.
- (12) Illawong Village shall liaise with the tenants who use the docks to ensure scheduling of delivery movements balances the needs of the store to get fresh produce on the shelves in the morning, and the needs of the community to restrict truck movements to 6 per hour past any residence.
(13) Illawong Village shall ensure all tenants make sure the delivery drivers are aware of the Plan of Management.
(14) All delivery vehicles must only pass any residence in Hobart place or Brisbane Street once. All vehicles to the Hobart Place dock will be required to enter the site from Hobart Place via Fowler Road and depart the site via Hobart Place and Brisbane Street (i.e. left in, left out).
(15) All deliveries to the supermarket dock require the driver to reverse fully into the dock so that as much shielding from operations is achieved as possible. All loading and unloading is carried out directly from the rear of the trailer onto the loading dock, so that noise from pallet movements is shielded by the screens to adjoining residences. Any offloading noise is minimised by the enclosure of the trailer by the canopy and screen.
(16) Deliveries from smaller trucks and vans to the specialty shops should firstly occur in the specialty shop unloading area. If this area is occupied additional deliveries must take place behind the screens so there is not direct line of sight to the residences.
(17) No trucks will stand on or unload from Hobart Place. If the loading dock is busy, trucks will stand on the site and wait until they can park properly before unloading. Unloading is not permitted from trucks parked across the entrance or exit.
(18) Noise emission from all vehicles must comply with ADR 28/01.
(19) Trucks must not exceed 18 metres in overall length.
(20) All engines must be switched off when vehicles are parked for more than 1 minute.
(21) All trailer refrigeration equipment must comply with State noise regulations.
(22) All refrigeration equipment must be switched off by the driver when entering the site to reduce these noise emissions.
(23) Materials must be handled to avoid any impact noises.
ISSUES REGARDING THE RETAIL DA
37. It will be convenient to deal first with the main issues relating to the retail DA in appeal 10243 of 2003 before considering the applications in the other two appeals and some of the issues relating to them.
Setback and loss of trees
38. While the shopping centre may have been erected before many of the homes in the surrounding residential area, nevertheless the shopping centre was approved with reasonable setbacks to Hobart Place and Fowler Road. The development consent required any trees in the setback area to be retained, and it could be that further trees were planted. (This existing landscaped setback area has suffered to some extent through lack of maintenance and perhaps because of dry seasonal conditions.) The existing built form of the shopping centre is in keeping with generally low-scale surrounding residential development envisaged by the zoning. As described earlier, the existing buildings in the shopping centre are of one or two storeys.
39. In order to create more retail floor space, the applicant chose not only to add to the existing buildings but also to extend the western buildings so as to have a smaller setback to Hobart Place. At the present time there are about 15 trees to the south of the loading area for the specialty shops of building (B), in addition to about 20 trees in and around the existing loading area for these small shops. The plans that were tendered at the commencement of the hearing proposed that building (B) should be extended westward and that trees on the subject land to the west of that building should be removed. As well, most of the trees in the vicinity of the specialty-shop loading area would be removed to accommodate the additional loading area of the Coles supermarket. While in certain urban localities that are more densely developed than the subject locality, shopping complexes built right up to the street alignment have been approved, in this outer suburban area with an interface to predominantly low-density one-storey or two-storey residential development, any additions should respect or relate well to the surrounding development. The plans as originally tendered to the Court in respect of the retail DA were unsatisfactory. It is not appropriate in my opinion that the nature strip of the road reserve should be the main place where landscaping can take place for the shopping centre. Also, the landscaping that was then proposed on the nature strip would interfere with sight lines for vehicles using the proposed relocated Coles loading area.
40. Responding to adverse comments made during the early part of the hearing concerning the proposed setbacks from Hobart Place, the applicant amended the plans by reducing the westward extension of the proposed building so that there would be available on the subject land a setback of about 2 m within which landscaping could take place. The setback to the proposed carpark deck varies from about 2.5 m to 3.5 m from Hobart Place, again allowing for landscaping.
The new carpark deck
41. The proposed carpark deck is over the western end of the ground-level carpark. The existing carpark is at a lower level than the carriageway of Hobart Place, so that the new carpark deck will be only about 1 m above the level of the carriageway of Hobart Place. The setback of the new shops, medical centre and carpark deck at the western end of the shopping centre is shown on the plans RET-DA2F and DA3D (ex AG) and RET-DA4D (ex C).
42. The proposed carpark deck will change the traffic arrangements relating to carparking for the shopping centre. At present, all cars coming to the shopping centre (other than a small number of cars that go to the hardware store located off the eastern end of Hobart Place), enter from Fowler Road and also exit into Fowler Road. The proposed entry at the northern end of the carpark deck and the exit at the southern end of the deck are from and to Hobart Place, where that street swings around and forms the western boundary of the subject land. There is no access from the carpark deck down to the ground-level carparking, so that no vehicles from the carpark deck can exit the shopping centre via Fowler Road. The carpark deck will provide parking spaces for 45 cars. The activity of cars moving in and out from the carpark deck would to some extent diminish the residential amenity of the three dwelling houses opposite the carpark deck located immediately to the south of the childcare centre. If it was appropriate to grant consent a condition of consent could require the carpark to be closed at 9.45 pm (and signs erected to that effect) in order to protect the night-time amenity of the residents opposite and also the amenity of the recently constructed cluster-type dwellings or town houses immediately to the south of the carpark deck.
43. Having regard to the road pattern and the location of residential areas shown on the zoning map (ex 2) it would appear that a significant proportion of cars coming from the proposed carpark deck travel south in Hobart Place and turn left into Brisbane Street (Brisbane Street is seen towards the bottom of the photo at par 9). While the amount of traffic generated by the carpark deck is not objectionable in itself, that traffic has to be taken into account with the truck movements and the problem of access onto Fowler Road from Brisbane Street, referred to later.
Likely impacts of the relocated Coles loading dock
44. The existing layout of the specialty-shop loading area at Hobart Place was originally approved in 1987 and can be seen in the development application plans, particularly drawing 50K (ex 20), and its location is shown at (A) on the photo at par 9 above. This existing loading area has a storage area of three industrial-type waste bins in a screened area 5.2 m wide, set back from the street alignment by 5 m. Adjoining the screened bins are three parking spaces set back from the street alignment by a minimum of 4.5 m increasing to 7 m. There is thus an adequate area for the retention or the planting of trees and landscaping between the screened bins and the parking places. The actual loading area for the specialty shops is located further from the street alignment, beside the rear of some of the specialty shops.
45. The detailed plan showing the proposed relocated supermarket loading area at Hobart Street is RET-D-20C (ex AR), a reduced copy of which is at par 12 above. The proposal alters the present situation significantly by introducing into this corner site opposite Thompson Avenue facilities for loading and unloading for the largest store in the whole of the Illawong Village Shopping Centre, namely the Coles supermarket. Tall trees in the existing loading area have to be removed. The corner of one of the existing shops has to be truncated in order to provide better manoeuvring for the longest truck (18 m long) that will come to the supermarket. The previously provided 5.7 m wide storage area for the specialty shops has been reduced to 5 m to accommodate two bins, and only two additional bins are provided (presumably for the supermarket) near the proposed supermarket loading dock. The provision of adequate waste disposal bins should not be an afterthought—there is limited space to provide them. There was some criticism concerning the practical operation of emptying the specialty-shop bins in their new location. The bins are so located that the end of a garbage truck would not be able to pull up directly to the bins to tip them into the truck, but it appears that the heavy bins would have to be manually rolled out to facilitate collection.
46. The plans of the proposed Hobart Street loading area show the creation of a new entrance in the western sidewall of the supermarket wall at the rear of the proposed supermarket dock. Plan RET-D-21A (ex AH) shows in elevation the details of the proposed acoustic screens. One acoustic screen will be provided on the northern side of the loading dock for the supermarket extending up to the canopy over the dock. A centrally located large acoustic screen will be provided parallel with and set back 500 mm from street alignment and will be 4.5 m high and 15.8 m long. These two acoustic screens are separated by a distance of about 11.5 m. A third, smaller acoustic screen 3.5 m high will be provided around the specialty-shop loading area for smaller vehicles. Again, there is a separation distance of about 12 m from this screen to the central large screen. The reason for the separations between the screens is that space has to be provided for the oblique entry from Hobart Place and for the separate oblique exit from the loading areas.
47. Three of the local residents who gave oral evidence live close to the proposed relocated loading area. Mr Abbott, who has retired, lives with his wife immediately opposite on the corner of Thompson Avenue and Hobart Place. He was concerned that his amenity would be affected because of the noise that large trucks make and the traffic problems that they would cause at the intersection of Thompson Avenue and Hobart Place. In cross-examination he was shown the acoustic shields on the amended plans, but he said that the noise of trucks grinding their way up the hill (that is, going west along Hobart Place) to the new proposed loading area would not be shielded.
48. Mr Abbott said that in his observation the existing loading dock in the central part of the applicant’s land works fairly well. He had observed two to four trucks queuing, within the subject land, on the ramp leading to the loading dock. His concern was that similar queuing would occur for the relocated loading area and trucks would have to wait in Hobart Place. Thompson Avenue he said, is a cul-de-sac, and a truck could break down or block egress in the event of an emergency such as a bushfire.
49. In the written objection dated 5 November 2002 signed by Mr Abbott and other residents of Thompson Avenue, the objectors said that the large central acoustic barrier near the road frontage would only eliminate part of the sound caused by heavy delivery vehicles. Having regard to the distances separating the three acoustic screens, it seems to me that the noises of the engines of slow-manoeuvring trucks on the site and of the loud beeping sounds of reversing trucks would be clearly audible at the houses opposite, depending on where the truck was positioned. These noises could be disturbing to elderly people who may wish to sleep during the day.
50. At the present, a garbage truck comes to the existing loading area opposite Thompson Avenue at 3 am to empty the bins every morning except Sunday morning. The early-morning noise of this truck does cause some disturbance to the residents. It would obviously be an improvement if (as proposed in the draft conditions of consent) the garbage truck was not permitted to come to the site before 6 am. But I think that it would be small compensation for having to put up with the considerably increased movements and noise of trucks throughout the whole day associated with the relocation of the Coles loading bay and the relocation of additional garbage bins for the supermarket.
51. Mr B McNicol who lives at 6 Thompson Avenue, which is the second house from the corner opposite the proposed loading area, expressed similar concerns to Mr Abbott. Mr McNicol said that the proposed loading dock does not have the same capacity to accommodate trucks as the existing Coles loading area. He has observed one truck in the loading bay of the existing Coles loading area, two trucks on the ramp leading up to the loading area and one truck on Hobart Place near the tennis courts. With the new development, he was concerned that Thompson Avenue near the intersection of Hobart Place, where the land is relatively flat, would become a waiting place for trucks seeking to enter the proposed loading area.
52. Likewise, Mr E Tsimos of 10 Thompson Avenue (whose house is the third from the corner) said that the queuing of trucks, which now occurs acceptably within the subject land, would occur in Hobart Place near Thompson Avenue once the Coles loading dock was relocated to opposite Thompson Avenue.
53. Reference should also be made to the detailed written objections of the above witnesses and other residents in Thompson Avenue, Hobart Place and Brisbane Street. As Mr Abbott said, Hobart Place would become a heavy-traffic area from Fowler Road to the childcare centre located to the west of Thompson Street. In contrast, it seems that many trucks coming to the subject site now proceed along Fowler Road, turn left into Hobart Place and travel west for a short distance along Hobart Place before turning left into the ramp leading to the existing Coles loading dock. The entrance to the existing Coles loading dock is a significant distance from Thompson Avenue. However, it could be that some truck-drivers choose to come the longer way to the existing supermarket loading dock by turning at Fowler Road into Brisbane Street and then into Hobart Place.
54. Importantly in the opinion of the residents, at the present time all trucks (from whichever direction they have come to the existing Coles loading area) do not exit into Hobart Place from the supermarket loading dock but proceed south across the carpark aisle and then into Fowler Road. Fowler Road is in the nature of a collector road with a carriageway 11 m wide; whereas traffic volumes in Hobart Place (south of Thompson Ave) and in Brisbane Street are substantially less, and these two streets have carriageways 9 m wide and are in quieter residential areas.
55. It could be noted that the zoning map (ex 2) is incorrect, insofar as it might indicate that the southern end of Hobart Place connects directly to Fowler Road. However, as recent street directories indicate, Hobart Place (south of the shopping centre) is a dead-end road and vehicular access from it directly onto Fowler Road has been denied, so that the only access from the southern end of Hobart Place is via Brisbane Street to Fowler Road. It could also be noted that Fowler Road continues south from the shopping centre and then swings round and proceeds west to Alfords Point Road. This stretch of Fowler Road was formerly named Austin Street and (the western part) Old Illawarra Road.
56. The size of the proposed central acoustic screen, set back only 500 mm from the street alignment, would detract to some extent from the visual amenity of the residents who live opposite in Thompson Avenue or in Hobart Place. Some softening of the screen could be provided by landscaping in front of the screen, but this landscaping would be limited to the narrow strip 500 mm wide on the subject site. Landscaping on the nature strip would not be suitable because it would interfere with sight lines between a truck leaving the site and cars proceeding in a westerly direction up Hobart Place towards the loading area.
57. The evidence indicates that there would be a sight distance of 52.2 m between a truck leaving the site and cars proceeding westward in Hobart Place. This distance is more than the minimum but less than the recommended sight distance, and according to Mr Hallam it would be acceptable. Mr McLaren expressed reservations about the sight distance, particularly taking into account that a truck leaving the site would be at an oblique angle and the truck-driver would have to look in the rear vision mirror to observe any cars approaching from the east.
58. Even though the proposed reconstructed exit from the new loading areas would be at an oblique angle to assist trucks turning left into Hobart Place, it seems that a 17-m long truck would still have to pass over the notional centre line of the carriageway before proceeding southward in Hobart Place. Immediately opposite the exit from the proposed loading areas is the entrance to the parking area of a childcare centre.
59. On the available evidence, it seems to me that the loading area opposite Thompson Avenue at the present time has a low-scale usage for a number of small shops, which could also be served by trucks parking in the main carpark on the southern side of the shops. The opening up of entrances in the western sidewall of the supermarket to give access to the new loading area for the supermarket at Hobart Place will markedly intensify the degree of truck usage of this area; and overall, it seems that there would be some detrimental impacts on the amenity of residences on the opposite side of Hobart Place, notwithstanding that various conditions were proposed in the applicant’s draft conditions and in the plan of management. Having regard to the acoustic evidence it seems to me that even with the acoustic screens, the frequency, level and character of noises from the new loading area heard at the closest houses on the opposite side of Hobart Place will be noticeably different from the prevailing sounds of traffic (cf. p 15 of ex 4).
Reasons for the new loading area; alternatives
60. I will now consider some of the reasons why the applicant wishes to change the supermarket loading dock so as to have it operated in conjunction with the specialty-shop loading area at Hobart Place.
61. In a lengthy written objection dated 5 November 2002 signed by the residents of Thompson Avenue, the residents said (at p 7):
The applicant has given no valid practical reason why the main loading dock should be repositioned from a central location in the Illawong Shopping Centre to the corner of Thompson Avenue and Hobart Place. We believe that the applicant's purpose in seeking to close the main loading dock is to avoid having prospective buyers of its lucrative residential units looking directly onto a loading dock. The applicant does not appear to have considered the detrimental effect it would have for local residents.
62. It is apparent that one of the reasons for relocating the supermarket loading dock is that the access to it adjoins the residential flat building for which the Court granted consent on 13 November 2001. As mentioned by the residents, the applicant now wishes to improve the amenity for the approved residential flat building (which has not yet been erected) by removing the access ramp and loading area of the supermarket and placing the loading area on the perimeter of the shopping centre site at the expense of amenity of existing residents. The residents suggested that the Coles supermarket loading area should be retained within the central part of the site. If noise from trucks would be a problem for the applicant’s approved residential flat building, it would be possible to partially or fully enclose the access ramp and loading area of the supermarket.
63. In the context of the shoptop housing DA (which is considered later), it seems that another reason for closing off the access and existing loading bay at the Coles supermarket is that additional business floor area will be provided in the location of the former loading bay and demolished ramp. If this additional business floor space is not provided in this location or a redesign of the proposal carried out, the erection of the shoptop housing would result in the residential floor space being more than 50% of the total floor space on the shopping centre site, contrary to the development standard in cl 45 of LEP 2000.
64. Another reason put forward for not using the access ramp was that large trucks coming into Hobart Place from Fowler Road would have to first cross to the opposite side of Hobart Place (in the path of any oncoming traffic) in order to have a sufficient turning circle to turn up into the access ramp. The answer to this problem would appear to be that a wide splay could be provided on the eastern side of the ramp cutting across the north-western corner of the open space in front of the approved residential flat building and (if necessary) the lower part of the access ramp reconstructed. An acoustic screen might have to be provided on the eastern side of such a splay, although it would not fully shield noise from the trucks entering the ramp. As far as can be gleaned from the Court’s reasons for judgment in appeal 11089 of 2000, there was no suggestion the ramp leading to the existing Coles supermarket would be changed, and presumably the Commissioner approved the residential flat building in the knowledge that there would be some impact on the amenity of the units from trucks climbing up the existing ramp. Looking at the matter afresh, it is apparent that the amenity of the approved residential flat building would be enhanced if there was no loading ramp immediately adjoining the curtilage of that building. However, if the supermarket loading area is relocated, the increased truck activity in the new loading area would tend to detract from the amenity of existing residents who live in the single detached houses opposite the new location.
65. The local residents referred to the speed of buses and other vehicles proceeding eastward down the fairly steep slope of Hobart Place from its intersection with Thompson Avenue to the vicinity of Hobart Place near the ramp to the existing Coles loading area. If the existing ramp is retained, it would seem desirable for the Council to give consideration to whether the speed limit should be signposted at 40 kph or whether some traffic calming device provided in Hobart Place near Thompson Avenue to reduce the speed of the vehicles going down the hill.
66. During my inspection of the Coles loading dock with the parties, a demonstration occurred of a long truck using the loading ramp and backing into the existing Coles loading dock. That manoeuvre was able to be carried out but the available manoeuvring area for the truck was limited by industrial-type waste bins rolled against the eastern wall of the supermarket. The originally approved plans did not provide for any such waste bins to be located against the eastern wall, but the plans show three bins located against the wall of building (D), about 10 m from the wall of the supermarket. The video (ex 6) also showed that there were two large rubbish bins and four large white bags stored against the outside of the Coles wall, which reduced the width available for trucks to manoeuvre. If (in accordance with the approved plans) bins are not stored against the Coles wall, there would be a quite adequate corridor width of 5.7 m for trucks to reverse into the dock (adjoining the top of the ramp). Before reversing into this 5.7 m wide corridor, a long truck first has to be driven in a forward direction from the top of the ramp into the passageway that is 4.5 m wide to the south of the loading dock, from which position the reversing manoeuvre takes place. It seems to me that if bins and garbage bags were not stored against the Coles wall, there would be less constraint on the reversing movement of articulated trucks.
67. The egress for trucks (that have unloaded at the Coles loading dock) is southward between the sidewalls of buildings (C) and (D) and then across a footpath that runs along the southern frontage of these two buildings. At the point of egress across the footpath, each of these buildings has a right-angle corner—these corners could have been splayed (or partially splayed) to improve visibility for drivers of the trucks and for pedestrians on the footpath. From a safety point of view it could be questioned why the applicant proposed such an egress and why the council approved it. Although there was no evidence of any accident occurring at this egress over the last 14 years, this is not to say that the egress is satisfactory. The egress could be improved by having floor pads inserted in the 4.5 m wide corridor so that an audible warning sound is given as trucks pass over the pads before crossing the footpath. Also, it would be possible to alter the existing buildings to create splayed corners to improve sight lines (even if the splays were not as wide as would normally be provided in a new building). If splays were provided, a bollard might be needed on the outside of the footpath in line with the western wall of building (D) (also known as block 2), so as to prevent trucks commencing the left turn until after they had crossed the footpath.
68. On behalf of the applicant it was submitted that it is bad design for trucks to have to manoeuvre through a carpark. I agree with that opinion, but the circumstances of the approved egress compared with the advantages and disadvantages of a relocated loading dock have to be taken into account. It is not as if a truck egressing from the Coles loading dock has to manoeuvre a long distance through the whole carpark. There is a distance is of only 20 m to be travelled across a driveway aisle from the egress point between the two buildings before the truck reaches the driveway which is actually located in the dead-end road reserve (referred to at par 13 above). This road reserve has become a de facto parking area and aisle for the shopping centre. As a truck proceeds southward and enters this dead-end road reserve, there is a narrow island with trees in it on the western side of the crossover driveway, with adjoining carparking spaces further to the west of the trees. Neither party suggested that there was a problem of manoeuvrability (eg wheels touching or mounting kerbs) for a large truck proceeding southward across the carpark, but I note that the video (ex 6) shows that the manoeuvring is indeed tight for the largest truck (18 m long) that would come to the shopping centre. My tentative opinion is that if there is a problem for large trucks in manoeuvring southward across the carpark aisle, the deletion of the northernmost tree on the western side of the crossover driveway and of one adjoining carparking space from within this de facto carpark would allow the southward-proceeding crossover driveway to be increased in width to approximately 11.6 m at the entrance to the dead-end road reserve. (However, any changes to the carpark layout would have to be the subject of a detailed design by a traffic engineer and be approved by the Council.) Once a truck has entered the dead-end road reserve, there is then only a distance of about another 20 m to the nature strip adjoining the main carriageway of Fowler Road.
69. Trucks turning into the existing ramp to the Coles supermarket would cause noise as they ascend the ramp, which may be of some disturbance to the residents whose houses are immediately opposite the ramp. However, these houses were built or purchased in the knowledge that the main loading dock for the largest and principal store in the shopping centre was immediately opposite.
70. Because the proposed loading area is on a curved corner opposite Thompson Avenue and because of the oblique entry and exit that is proposed, it would be unacceptable from a safety point of view for trucks to be permitted to exit the relocated loading area by doing a very sharp turn to go east in Hobart Place. Both parties proposed that all trucks coming to the new loading area opposite Thompson Avenue would have to proceed north along Fowler Road, turn left into Hobart Place and travel westward to the entry of the new loading area; and upon leaving the loading area, the trucks would proceed through a separate oblique-angled egress left into Hobart Place, travel southward, then turn left into Brisbane Street to get back to Fowler Road.
Traffic at the Brisbane Street and Fowler Road T-intersection
71. For the vehicles proceeding southward in Hobart Place the only route to Fowler Road is via Brisbane Street. The council presented evidence from local residents and also from Mr McLaren that having all trucks proceed in this fashion was unacceptable for a number of reasons. One reason was that Brisbane Road between Hobart Place and Fowler Road climbs over a rise or hill and that there could be safety problems for a truck proceeding in an easterly direction with cars sometimes parked on both sides of Brisbane Street, which would not allow an oncoming vehicle proceeding westward to pass the truck. In particular, reference was made to the fact that the bus route that serves the shopping centre involves buses travelling north in Fowler Road to turn left into Brisbane Street and then proceed in a westerly direction along Brisbane Street in the opposite direction to the trucks (from the proposed loading area) proceeding in an easterly direction in Brisbane Street. At present, some trucks may use Brisbane Street by going in a westerly direction but many trucks would continue north in Fowler Street past Brisbane Street and turn left into Hobart Place to get to the Coles supermarket ramp. However, it is significant that at the present time none of vehicles that leave the Coles supermarket use Brisbane Street but proceed directly from the shopping centre carpark onto Flower Road. Under the proposal, in contrast, all vehicles leaving the relocated loading dock, including smaller trucks that might not have used Brisbane Street, will have to proceed southward in Hobart Place and turn left into Brisbane Street, before entering Fowler Road. Mr Hallam was of the opinion that this proposed movement of trucks in Brisbane Street would be acceptable. I am inclined to accept Mr Hallam’s opinion but only in respect of the less busy periods outside the peak-hour times for traffic associated with the school. However, I am not sufficiently satisfied on the available evidence that it would be appropriate to approve the proposed loading area (assuming all other matters were satisfactory), because of problems that could occur with the functioning of the intersection of Brisbane Street with Fowler Road during school peak hours, particularly on Thursday and Friday.
72. On the above photo (par 9) I have indicated the location of the Illawong Public School, which has a frontage to the eastern side of Fowler Road. The school site extends southward from opposite the shopping centre down to the bottom of the photo, opposite the T-intersection of Brisbane Street and Fowler Road. There are several gates to the school ground along Fowler Road, including a gate opposite Brisbane Street. The evidence of Mrs Kydd is that at school drop-off and pick-up times, parents park their cars opposite Brisbane Street. The video (ex 6) also shows a child and parent in a vehicle parked opposite the intersection of Brisbane Street and Fowler Road and other children using the footpath. The intersection is constrained for vehicles turning in or out of Brisbane Street by the fact that there is lawful parking available on each side of Brisbane Street. If there are cars parked on both sides, only one vehicle may pass along the carriageway. Home occupations are conducted on both the northern and southern corners of Brisbane Street, and customers or clients of the home occupations park their cars near the intersection in Brisbane Street.
73. The applicant’s video (ex 6) demonstrates a large truck proceeding down the hill in Brisbane Street towards the T-intersection with Fowler Road at the time of 15:34:18 (expressed in hours, minutes and seconds). At the same time a car is parked on the northern side of Brisbane Street about 6 m from the intersection, and another car (in front of the truck) in Brisbane Street has just pulled up at the intersection and is waiting to turn into Fowler Road. The truck reaches the stationary position behind the waiting car at 15:34:25. The filming continues to 15:34:44, during which time the truck and the car in front of it are still waiting to turn out of Brisbane Road because of the more or less continuous two-way traffic on Fowler Road. At 15:34:44, the videotape jumps instantly by 52 seconds to 15:35:36, by which time the car in front of the truck in Brisbane Street has gone. The truck then begins to move slowly out of Brisbane Street but does not complete its right-hand turn into the southbound lane of Fowler Road until 15:35:53. The time taken from when the truck pulled up at the intersection behind the waiting car until the completion of the turn into Fowler Road was thus approximately 94 seconds.
74. In the above demonstration, further congestion of traffic would have occurred if cars were parked on both sides of Brisbane Street near the intersection while a car and truck were waiting to turn right into Fowler Road, and if a bus travelling south in Fowler Road arrived at the intersection wanting to turn left into Brisbane Street. It seems that because of the waiting vehicles in Brisbane Street and the large turning circle of the bus, the bus might not be able to complete the turn, thus causing northbound traffic to back up behind the bus in Fowler Road. In any assessment of the likely future functioning of this intersection, the additional traffic coming from the new carparking deck via Hobart Place and Brisbane Street would have to be taken into account, together with the traffic which would be generated from the 31 residential units approved by the court on the shopping centre site.
75. Also, unlike the exit from the shopping centre into Fowler Road, where there are good sight lines in both directions (because there is a convex bend of the road away from the exit), at the Brisbane Street intersection there are more limited sight lines to the south because of foliage in the nature strip of Fowler Road and because Fowler Road itself curves away out of sight.
Summary of main findings on the retail DA
76. Although the existing Coles supermarket loading area (located more or less within the central part of the applicant’s site) has been in operation for about 14 years, there would appear to be certain safety problems associated with large trucks using the existing Coles dock.
77. The proposed loading area is on the periphery of the applicant’s site at Hobart Place, opposite Thompson Avenue and opposite dwelling houses and a childcare centre. The new Coles loading dock would have to be operated in conjunction with the low-scale usage made of the same area by some trucks that service the specialty shops. During the course of the hearing, a range of conditions of consent were proposed that could regulate the use of this new loading area, in order to reduce adverse impacts for dwelling houses on the opposite side of the street.
78. Nevertheless, the more intensive usage of the new loading area would probably detract from the amenity of nearby residences, and on that account I think that this is a borderline case as to whether or not consent should be granted.
79. In addition, there are the impacts to be considered of requiring all trucks (including any smaller specialty-shop trucks) that use the new loading area to exit south along Hobart Place and then east into Brisbane Street before getting to Fowler Road. At present all trucks leaving the existing Coles loading area go directly from the shopping centre site onto Fowler Road, which is the main through-road in the locality. While not expressing a final opinion, it could be that outside the peak hours for school traffic, the T-intersection of Brisbane Street and Fowler Road might function adequately for the proposed development. However, during peak-hour traffic times associated with the school, the applicant’s video evidence and the evidence of Mrs Kydd and of traffic engineer Mr McLaren suggest that there is likely to be undesirable traffic congestion caused at the intersection if all trucks coming from the presently proposed loading area had to use Brisbane Street. It seems to me that a more detailed assessment of the use of the Brisbane Street intersection would be needed before approval would be warranted for traffic arrangements similar to those now proposed. The council’s Traffic Consultative Forum should be given an opportunity to consider any new development application in the light of any further evidence that is submitted to the council and taking into account the matters in this judgment.
80. The applicant’s shopping centre site is a large one, having an area of 15,340 sq m. It seems to me that in proposing new developments (including the now approved residential flat building) on the shopping centre site, the applicant has given insufficient consideration to suitable alternative arrangements to overcome or alleviate any problems associated with the use of the current loading area for the supermarket. In view of the possible adverse impacts from the currently proposed loading area, I am of the opinion that further consideration would need to be given to alternative arrangements.
DETAILS OF THE SHOPTOP HOUSING DA
81. The plans relating to the proposed shoptop housing and to the amendments to the Court-approved residential flat building are set out in the following table:
Plan No. Brief description DA2-, sheets 01C, 02D to 12D, 13C to 18C, 19B, 20B and 22B Stage 2 (also called the “shoptop housing DA”), including: carparking, new offices and new community centre and 12 new residential units
82. The proposed shoptop housing development will occur where the existing buildings (D) and (E) are shown on the photo at par 9. The existing building (D) has two storeys that presently contain, on the ground floor, two restaurants and a video rental store and, at the upper level, offices and (according to ex AA) a dance studio.
83. The existing building marked (E) is a single-storey community centre. The original consent for the shopping centre dated 20 July 1987 contains the following condition:
- 2. The granting to the Council, free of charge, of an area of 350 sq m of floor space as community space within the centre. The area shall be provided with a suitable false ceiling, electrical fittings, water, telephone conduits and toilets. The whole area shall be finished in face brick or cement rendered, suitably painted with steel trowelled concrete floors and licensed as a public hall.
In any new development consent for the rebuilding of the community centre, it would seem appropriate to impose a similar condition to the effect that the centre is to be made available to the council free of charge.
84. The proposed shoptop housing will involve the demolition of existing building (E) and alterations and additions to existing building (D), so as to create a single building containing up to seven levels. In the general area of the footprint of existing building (E), proposed levels 1 and 2 will provide carparking for 22 cars; above these carparking levels, proposed levels 3 and 4 will contain offices. Above the offices, the community centre will be reconstructed at level 5 with a single floor at RL 67.8 that will open up to a northern terrace (at present, the single-storey community centre has a lower, split floor at RL 64.9 and RL 66.1). The existing passageway between the video store and the eastern restaurant in building (D) will be converted to a new restaurant. Above the reconstructed community centre and above the existing ground-floor storey of building (D), levels 6 and 7 are proposed, comprising on each of these levels two three-bedroom units and four two-bedroom units—a total of 12 units on levels 6 and 7.
ISSUES RE THE SHOPTOP HOUSING DA
Breach of two height development standards
85. The main issues relating to the shoptop housing DA were: non-compliance with the two development standards relating to height in cl 43(1) of LEP 2000 (quoted at par 15 above), and whether the proposal is consistent with the objectives of the zone. The question of compliance with cl 45 of LEP 2000 (residential floor space not to exceed 50%) becomes important in the absence of development consent for the retail DA.
86. On the southern façade at the eastern end of the proposed shoptop housing, the height of the parapet above the ground level at the façade is 10.75 m, and the ridge is 11.15 m. Both standards are breached. Because the land falls away to the north-east, the breach of the development standards is more pronounced if (as required by the LEP) the measurements are made from any point on the topmost ceiling or from the highest point of the building (as the case may be) vertically to the ground immediately below that point. The elevation plan ex AK does not measures the height of the ridge in this way. On the northern façade, the overall height is in excess of 15 m in places. Seven levels are exposed to view on the northern elevation towards the eastern end.
87. The eastern end of the proposal replaces the existing single-storey community centre. The floor level of the proposed rebuilt community centre is higher than the existing split-level floor of the community centre (par 84 above), allowing for offices underneath and two residential floors above.
88. The applicant lodged objections under State Environmental Planning Policy No. 1—Development Standards in respect of the non-compliances with the two height development standards.
89. In the joint expert statement, on the one hand Associate Professor Toon and Mr Hunt were of the opinion that because of the stepping back of the two topmost floors at the eastern end, compliance with the development standards was not necessary, and that the SEPP 1 objections should be upheld. On the other hand, Mr Nash considered that the top residential level should be removed to achieve compliance with the standards.
90. The Court-approved residential flat building itself is substantially in breach of the two development standards, and the applicant would need to implement that consent in order to provide the vehicular access to the proposed shoptop housing building. But I do not think that the height, bulk and scale of the approved building (yet to be constructed) should be used as a reason for varying the development standards for the proposed shoptop housing building. The amendments to the plans that were made during the hearing before Commissioner Watts still left most of the residential flat building having four storeys above ground level and having a height substantially in excess of the two height development standards. A reading of the evidence that is set out or summarised in the judgment of the Commissioner in appeal 11089 of 2000 indicates that there was conflicting expert opinion upon which findings of fact could have been made that the development standards should not be varied to the extent proposed in that case. After summarising or quoting from parts of the evidence of the witnesses, Commissioner Watts deals specifically with the development standards at pars 66 to 81 of his judgment. The Commissioner decided to accept the applicant’s evidence and to allow the appeal.
91. In passing, it could also be noted that under LEP 2000 the erection of a residential flat building by itself was (and still is) a prohibited use. The Commissioner took a broad view, that the proposed residential flat building fell within the description of a permitted use, namely, “residential flats, only in buildings subject to another permitted use”. It is not clear to me what building or buildings (subject to another permitted use) that the approved residential flat building is “in”. However, the Commissioner's decision was not appealed against, and it must be presumed that the development consent is valid and may be implemented.
92. In Mr Hunt’s report (ex P) there is an artist’s impression of what the proposed shoptop housing development would look like as viewed from the opposite side of Fowler Road (probably from the bus stop area), being drawing D2-P3. This drawing clearly shows that most of the southern side of the proposed shoptop housing development has the appearance of a three-storey building, while the south-eastern section of the building is clearly four storeys in height. Looking at this south-eastern section of the building from the opposite side of the road, it could well be that the proposed development would have a more prominent appearance than is shown in the drawing, because the spot survey levels indicate that Fowler Road slopes down to the east more so than is shown in the drawing. Further east in Fowler Road looking back towards the proposed building, the upper fourth floor would be apparent, notwithstanding that it is set back from the projecting floors below it.
93. In my opinion, both of the height standards have work to do. Compliance with both of the standards would generally allow for the construction of a two-storey building (complying with the height of 7.2 m to the uppermost ceiling) with a pitched roof (complying with the overall height of 9 m). There would of course be exceptions, for example, where a single storey could have a very high ceiling and only one storey might be achieved complying with the 7.2 m ceiling height.)
94. I do not accept the view implicit in the evidence of Mr Hunt that in a neighbourhood centre, squarish or flat-roofed buildings are the desirable norm. At least in respect of those areas were these two developments standards relating to height apply (as in this case), LEP 2000 envisages that a different character and form of development would occur than if there was merely an overall height standard of 9 m. The proposed development is noticeably in breach of both development standards, particularly at the south-eastern or eastern end, where it is four storeys in height. The proposed development would also be in breach of the three-storey limit in draft LEP 2004, but I have indicated that little weight should be placed on this instrument at this stage. The principal instrument at the present time is LEP 2000.
95. The immediately surrounding residential areas are characterised by predominantly two-storey dwelling, with many single-storey houses, and only a small number of three storeys houses often on steep land. Although there are some high buildings in the locality, such as the church, they are the exception.
96. I am not persuaded that the development standards in LEP 2000 should be varied under SEPP 1 to allow the fourth storey towards the eastern end of the proposed shoptop housing development.
Residential floor space not to exceed 50% of total floor area
97. In relation to the approved residential flat building on the applicant’s site, the reference in par 98 of the Commissioner’s judgment in appeal 11089 of 2000 to the residential component complying with the planning controls is a reference to another issue in that case which was whether the approval of so much residential floor space would be a breach of the development standard in cl 45(1) of LEP 2000 limiting the residential floor space to a maximum of 50% of the floor space of all buildings on the site. The deletion of the fifth level of the residential flat building, although not bringing the building into compliance with height development standards, did have the result of bringing the ratio of residential floor area to the total floor area of all buildings on the applicant’s site to be under the prescribed 50%.
98. In the present appeals, Mr Nash and Mr Hunt were agreed as to the quantification of the floor space relating to: (1) the existing buildings, (2) the approved residential flat building, (3) the retail DA and (4) the proposed shoptop housing development. As mentioned above (par 40), the retail DA was amended, setting back the buildings a short distance from Hobart Place, and oral evidence was given that the resultant small reduction in floor space was 14 sq m. Accordingly, I have amended the experts’ table of figures to reflect the reduced floor space. The relevant figures are given in the following table:
RFB 2001
Retail DA
99. It can be seen from the above table that cl 45(1) will be complied with if the developments are carried out in the stages mentioned—the total residential floor space will be 49.97% of the total floor area of all buildings on the shopping centre site.
100. However, in the absence of the provision of additional business floor space in accordance with the retail DA, the erection of the residential flat building and of the proposed shoptop housing development will result in a total residential floor space of 54.76%, or an excess of 256 sq m of residential floor space, contrary to the development standard. This is the equivalent of having almost three residential units too many in the shoptop housing development. In my opinion it is undesirable that the neighbour business zone at Illawong, which is the applicant’s site, should be dominated by residential uses within that zone.
DETAILS OF THE S 96 APPLICATION
101. In order to provide vehicular access to the carparking spaces proposed at levels 1 and 2 of the shoptop housing development, the s 96 application seeks modifications to the Court-approved residential flat development (par 4 above). The plans containing the modifications are:
Plan No. Brief description Q926: LP102B, LP104B Modified landscape plan and sections for internal courtyard of the approved residential flat building DA5.3C, DA5.4C, DA5.9D Modifications to approved floor plans and sections of levels 1 and 2 IVELC2/1, 2 and3 Amended vehicular driveway, pedestrian crossing and tunnel at level 1, and elevated garden area (forming roof of the tunnel) at level 2, and sections
102. The modifications would enable cars to be driven through the approved carpark of the residential flat building to get to the proposed carpark at either level 1 or 2 of the shoptop housing. The modifications include converting part of the approved landscape courtyard of the residential flat building to a driveway leading to the level 1 carpark of the shoptop housing. However, cars leaving the shoptop housing development would also have to be driven back through the Court-approved residential development in order to exit onto Fowler Road. The appeal in respect of the s 96 application relates to these changes that would be necessary to accommodate the vehicular access for the proposed shoptop housing.
ISSUES RE SECTION 96 APPLICATION
103. As a matter of practicality, the carrying out of the proposed shoptop housing is dependent upon the erection of the residential flat building approved by the Court in November 2001, because the access to and the egress from the two parking levels (levels 1 and 2) in the proposed building will be through the carpark located within the approved residential flat building.
104. The proposed vehicular access arrangement through the approved development is not ideal, but some improvements were made during the hearing:
(1) There will be a loss of some of the landscaped courtyard at level 1 immediately to the south of the approved residential flat building caused by construction of the driveway to the level 1 carpark of the shoptop housing development. However, the amended plans (ex AJ) provide for a roof over the driveway between the approved residential flat building and the proposed shoptop housing building. This roof will be landscaped at level 2, which will largely compensate for the loss of landscaping at level 1.
(2) The width of the rectangular-shaped landscaped courtyard at level 1 of the residential flat building is approx. 12.5 m. Noise or fumes from cars using the driveway through the landscaped area could detract to a minor extent from the amenity of the proposed walled-in courtyard.
(3) The two-way driveway at level 1 from the residential flat building to the proposed shoptop housing building narrows to one way and bollards are to be placed along the one-way section. It is at this one-way section that persons coming from the proposed lift will have to walk across this driveway in order to go to the residential units in the approved building at level 1, and persons seeking to walk into the landscaped courtyard will also have to cross over the driveway.
(4) An objection from the residents of the house at 70 Hobart Place was that there would be more cars using the entry of the approved residential flat building to get to the proposed shoptop housing development, and this entry is immediately opposite No. 70.
105. If development consent had been, or was to be granted, for a shoptop housing development that required similar vehicular access to that which is now proposed, I do not think that the above points would be sufficient to refuse the s 96 application. However, I do not consider it appropriate to approve the modifications in advance of the granting of a shoptop-housing development consent. The modifications by themselves would have no utility. If there is no shoptop housing development, it would be clearly undesirable to modify the development consent for the residential flat building so as to require a dead-end driveway to be provided across the approved landscaped courtyard.
MAIN REASONS FOR DISMISSAL; ORDERS
106. I am not satisfied that it is appropriate to uphold the appeals. While regard should be had to the various findings I have made throughout this judgment, the main reasons for the dismissal of the appeals are, for—
- (1) appeal 10243 of 2003 (retail DA)—the reasons summarised at pars 6 and 76–80,
(2) appeal 10245 of 2003 (shoptop housing DA)—the reasons summarised at par 7, and
(3) appeal 10903 of 2003 (s 96 application)—the reasons given at par 105.
107. Accordingly, the orders of the Court are:
1. The appeals are dismissed.
2. The exhibits may be returned, other than the plans being exhibits C, D, O, W, X, AG, AH, AJ and AR referred to at pars 24, 81 and 101 of the judgment.
A J Nott,
Commissioner of the Court
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