Irving v Goulburn Mulwaree Council

[2007] NSWLEC 671

Land and Environment Court

of New South Wales

CITATION:	Irving v Goulburn Mulwaree Council [2007] NSWLEC 671
PARTIES:	APPLICANT Graham Irving RESPONDENT Goulburn Mulwaree Council
FILE NUMBER(S):	10399 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- subdivision and construction of a retail and commercial building and associated parking - consistency with zone objectives - compliance with DCP 15 - vehicular access - streetscape - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Goulburn Local Environmental Plan 1990
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	4, 5/09/07
DATE OF JUDGMENT:	16 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister SOLICITORS bourke love mccartney young RESPONDENT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 October 2007

10399 of 2007 Graham Irving v Goulburn Mulwaree Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Goulburn Mulwaree Council (the council) of Development Application 287/0607/DA for the subdivision of land and the construction of a retail and commercial building and associated parking at 38 Gourock Avenue Goulburn (the site).

The site

2 The site is Lot 14 in DP 791940. It generally rectangular in shape with a frontage to Gourock Avenue of 207 m and a frontage to Gibson Street of 109 m and a total site area of 2.146 hectares. It is generally flat and currently contains a Seventh Day Adventist Church.

3 The site is located on the north western fringe of Goulburn in an area adjoining new urban development.

The proposal

4 The proposal provides for the subdivision of Lot 14 into proposed Lot 1 and proposed Lot 2. Lot 1 will have an area of 9738 sq m and accommodate the Seventh Day Adventist Church. Lot 2 will have an area of 11,720 sq m and the southern part of the lot will accommodate the proposed retail and commercial building and car parking on an area of 6957 sq m. The northern part of proposed Lot 2 will remain vacant and have an area of 4751 sq m.

5 The proposed development will provide for 450 sq m of office area at the first floor level, 682 sq m of shop area, 782 sq m of supermarket area and a medical practice of 168 sq m on ground level. A total of 80 car parking spaces are provided with access from both Gibson Street and Gourock Avenue.

Relevant planning controls

6 The site is within Zone No 2–Living Area of Goulburn Local Environmental Plan 1990 (LEP 1990). The proposed use is permissible as a "local business centre". In LEP 1990, "local business centre" means:

(a) a group of buildings or part or parts of a building or buildings, whether physically contiguous or not, and whether established in a co-ordinated fashion or not; or

(b) a complex of buildings in the form of an integrated development established in a co-ordinated fashion,

accommodating or intended in part or wholly to accommodate the provision of retail, business, office and professional services to local residents;

7 Clause 8(3) provides that consent must not be granted unless the proposal is consistent with one or more of the objectives of the zone. The relevant principle objective of this zone is:

(b) to facilitate the orderly, economic and immediate availability of an adequate supply of land for residential purposes and associated urban activities consistent with the emerging demand and preferences;

8 The relevant particular objective of the zone is:

(c) to permit other forms of development and services which are associated with, ancillary to, or supportive of, a living area, if they are compatible with or complimentary to the particular amenity, character and requirements of residential localities within the zone, including:
.
(v) mixed businesses and local business centres;
.

9 Clause 27 provides specific matters for consideration for land within Zone No 2.

10 Goulburn Mulwaree Development Control Plan No. 15 - Mary's Mount Road (DCP 15) applies. Clause 1.3 provides aims and objectives and cl 1.8 provides requirements for the variation to standards in DCP 15. Clause 7.1 provides requirements for community facilities and cl 7.2 provides requirements for commercial development.

11 Draft Goulburn Mulwaree Local Environmental Plan 2007 (DLEP 2007) has been prepared although no s 65 Certificate has been issued for the advertising of the draft plan. There was agreement that DLEP 2007 was not imminent or certain.

12 Goulburn Mulwaree Strategy 2020 is a document prepared by the council and supports the planning approach in DLEP 2007.

The issues

13 The Statement of Facts and Contentions identified the following issues:

1) whether the proposal is appropriately located considering the zone objectives and the requirements in DCP 15,
2) whether the proposal provides satisfactory vehicular access,
3) whether the proposal provides a satisfactory streetscape appearance, and
4) whether the proposal creates unsatisfactory amenity impacts in relation to noise, light spill and anti social behaviour.
The evidence

14 Mr Angus Witherby provided town planning evidence for the applicant and Mr Paul Hume provided town planning evidence for the council. Mr Terry Lawrence provided traffic evidence for the applicant and Mr Ian Aldridge provided traffic evidence for the council.

15 Mr Robert and Mrs Carol Whitney, the operators of Crestwood Friendly Grocer at 4 Crestwood Drive provided evidence on the site view.

The proposed site v the DCP 15 site
The evidence

16 DCP 15 was adopted by the council on 20 December 2005 and came into force on 23 December 2005. It applies to a specific area of the Goulburn Mulwaree local government area, and in general terms seeks to guide the development of this area from a rural area to an urban area. Mary’s Mount Road cuts the area controlled by DCP 15 approximately in half in an east-west direction. The area to the south of Mary’s Mount Road is currently being redeveloped for urban purposes while it was agreed by Mr Witherby and Mr Hume that future development of the area to the north of Mary’s Mount Road could be 10 years away.

17 The approach adopted by DCP 15 compliments the planning approach in LEP 1990 where different land uses are not necessarily separately zoned. DCP 15 provides more detailed planning for the area through specific requirements for different land uses. The relevant aim and objective of the DCP 15 is,

to provide an indicative plan for the future residential subdivision and development of the area placed on the development constraints and infrastructure design. (cl 1.3).

18 Part 7 provides requirements for Other Development, relevantly Community facilities (cl 7.1) and Commercial (cl 7.2). Figure 8 - Outline Plan identifies a number of the requirements in cl 7.1 and cl 7.2 in plan form. Proposed Commercial and Community Facilities are identified together in two separate locations on Figure 8 (see Attachment 1). One location is shown on the corner of Mary’s Mount Road and the extension of Gibson Street (Site 1) and another location is further to west on the north west corner of Crookwell Road and Mary’s Mount Road (Site 2). The locations are identified in cl 7.2. The site is located to the south of the Site 1 and for clarity is marked on Attachment 1.

19 Mr Witherby states that the objectives of DCP 15 are better achieved by the proposed site rather than Site 1 as:

• it is surrounded by, or will shortly be surrounded by residential development,
• it is located on a collector road,
• it is located with a community use,
• it preserves the DCP intent of two centres, and
• it provides an intervening opportunity as compared to Site 1.

20 Overall, Mr Witherby states that the proposed site, as compared to Site 1, is appropriate for the current and medium-term development of the area and much more viable than Site 1. In any event, a similar scale centre to service the area north of Mary’s Mount Road could occur in the future without compromising principal zone objective (b).

21 Mr Hume relies on Figure 8 in DCP 15, which specifically nominates two locations for commercial facilities. The proposed site is not one of the locations identified in Figure 8. Mr Hume also notes that approval has been granted for a Post Office in the vicinity of Site 1. The proposal does not reflect to the council's expectation for development in the locality particularly as council has consistently applied DCP 15 in relation to commercial development. He notes the recent refusal by the council of another development application by The Binda Group Pty Ltd for commercial development on a site not nominated by DCP 15 for such development.

22 Even though the proposed site would be surrounded by residential development in the short to medium term, Mr Hume maintains that Site 1 was chosen to provide a consolidated local business centre to serve the intended long-term settlement pattern of the whole area covered by DCP 15.

The assessment framework

23 Clause 8(3) of LEP 1990 provides that consent must not be granted unless the proposal is consistent with one or more of the objectives of the zone.

24 A development control plan is a matter that is required to be considered under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979. The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

25 His Honour further states, at par 87, the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control plan. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

26 The weight to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

Findings

27 This is the most significant issue in the proceedings. Put simply, the issue is whether it is reasonable to locate the proposed commercial facilities at the site, taking into consideration the zone objectives and the requirements in DCP 15.

28 In balancing the competing evidence of Mr Witherby and Mr Hume, I prefer the evidence of Mr Hume. In my view, the importance of cl 8(3) and DCP 15 is increased in this case by the planning approach adopted by LEP 1990 where Zone No 2 allows a range of land uses. The acceptability or otherwise of these land uses is not strictly controlled through the land use table (where uses can be specifically permissible or prohibited) but through cl 8(3) and DCP 15. For example, shops (or in this case, a local business centre) are a prohibited use within a zone that permits residential development in many other local planning instruments. The permissibility of a range of land uses within a single zone consequently places a greater emphasis on a consideration of cl 8(3) and DCP 15 than in circumstances where different land uses are more strictly controlled through the land use table.

29 In terms of cl 8(3), satisfaction can be achieved if the proposed development is consistent with one or more of the objectives of the zone. I have taken cl 8(3) to mean the relevant objectives identified in pars 7 and 8 rather than the range of zone objectives, many of which are not relevant to the proposed development. I am satisfied that the proposal is consistent with the relevant objectives (accepting Mr Witherby’s evidence that the proposal preserves the DCP intent of two centres). Under cross examination, I understood Mr Hume to come to a similar conclusion although he maintained that the proposed location is still unacceptable. The location of the commercial and community facilities is a different question to that asked by cl 8(3) and brings into play the weight that should be given to the requirements of DCP 15, particularly Figure 8.

30 I am satisfied that DCP 15 and particularly Figure 8 should be given significant weight in addressing the disagreement between the parties on the location of commercial and community facilities. There was no suggestion that DCP 15 did not satisfy those matters set out in Stockland that relate to the consideration of a development control plan (see par 25).

31 Figure 8 (and the corresponding written description in cl 7.2) provide the only guide to the location of the commercial and community facilities in the Mary’s Mount urban release area. While Figure 8 is not to scale and could be seen to be diagrammatic, I am satisfied that any reasonable person would have little trouble in determining the location of Site 1, particularly with help from cl 7.2. The proposed site is clearly inconsistent with the location of Site 1. The relevant aim of DCP 15 is to provide an indicative plan for the future residential subdivision and development. In my view, DCP 15 satisfies this aim.

32 Using the words in Zhang, Figure 8 should be considered as a fundamental element in, or a focal point to, the decision-making process particularly as LEP 1990 provides no guidance on the location of commercial and community facilities for this area.

33 No background information was provided by the council on how Sites 1 and 2 were determined however in the absence of any evidence to the contrary, I accept that the council has considered the likely population of the Mary’s Mount release area and has found that Sites 1 and 2 will provide sufficient commercial and community facilities for this area when fully developed.

34 The approach adopted by council (and Mr Hume) that Sites 1 and 2 are to provide the commercial and community facilities for the Mary’s Mount release area is a fundamental component of the planning for this area. The issue of accessibility to commercial and community facilities by future local residents is an important consideration in the location of these facilities. The appropriate location for these facilities in not something that should be done in a piecemeal or ad hoc way. I do not accept that even if the northern section of this area is not likely to be developed for 10 years, that this is a valid reason for departing from the strategy adopted by DCP 15. DCP 15 addresses the development of the area as a whole and not separate parts, notwithstanding the progressive development of the whole area. It is clearly essential to address the ultimate form of development when planning for commercial and community facilities in a new urban area.

35 In my view, the suggestion by Mr Witherby that an additional commercial and community facility could be built to the north of Mary's Mount Road is inconsistent with the need for a proper planned approach for the provision of commercial and community facilities in the area. Such an action could potentially change the fundamental make up of DCP 15. The only sensible solution (if it was found necessary for a further centre to be provided north of Mary's Mount Road) would be to formally amend DCP 15 to reflect this change.

36 Importantly, DCP 15 came into force on 23 December 2005 and since this time there has been a reasonable expectation that the site would be developed for commercial and community facilities. Commercial decisions may have been made to the development of Site 1,and presumably commitments by nearby residential landowners to purchase properties adjoining or near the commercial and community facilities identified in DCP 15. For example, the lot sizes created by the subdivision of the land near Site 1 appear to provide the opportunity for commercial and community uses. The council granted an approval for a Post Office near Site 1 although the most recent advice from Australia Post is that the Post Office will not be established in "the foreseeable future". Despite the advise from Australia Post, the approval supports the contention that commercial decisions have been made based on the planning approach in DCP 15. In my view, it would be unreasonable to effectively abandon the strategic approach to the provision of commercial and community uses in DCP 15 in favour of a development application that seeks to take advantage of the flexible planning approach of LEP 1990.

37 I have not given any weight to the development application and subsequent refusal by the council of a commercial development by The Binda Group Pty Ltd at 143 Mary's Mount Road. While the refusal was consistent with the approach of the council to restrict commercial development to Sites 1 and 2, the proposed development was seen by the council as not satisfying the definition of a "local business centre" and therefore inconsistent with the zone objectives.

38 Similarly, I have not given any weight to the competing evidence on the suitability of Site 1 and the proposed site to accommodate the proposed development. I do not accept the argument that the proposed site is more suitable for a "local business centre" than Site 1 and as such would be a reason to support the proposed development. Even if the applicant’s argument was accepted (and I am not satisfied that this it is necessarily relevant given Figure 8) I do not accept that the differences between the two sites are that significant in terms of topography, access, proximity compatible development and other factors associated with the strategic location of a "local business centre" that it would influence any finding the Court would make. Certainly there is no evidence to suggest that Site 1 could not be used for its intended purpose.

39 Mr Pickles, for the applicant, submitted that sufficient flexibility is available in LEP 1990 and DCP 15 to allow the development to be approved notwithstanding Figure 8. Clause 3 provides aims of the plan. The aim in cl 3(1)(c) states:

to simplify land use and environmental management criteria to provide adaptability and flexibility responsive to the revolutionaries circumstances of growth and change;

40 Clause 3(3) makes reference to the particular strategies and policies to achieve the aims and objectives of this plan as set out in Schedule 1. Part B of Sch 1 relates to Planning Administration. The relevant strategies and policies are:

(ii) to minimise the need for amendment by providing:
(a) flexibility to accommodate any development proposal on merit in accordance with the circumstances of the case;
(b) adaptability to meet the changing needs of the city; and

(c) and adaptability to ensure development may occur in a manner consistent with the needs arising from change.

(vii) to remove absolute prohibitions on development in most zones, with all development applications being determined on merit.

41 Clause 1.8 of DCP 15 states:

1.8 Variation to standards

An applicant may request a variation to this policy provided it can be demonstrated that the objectives of this DCP will still be achieved.

Each application shall be considered on the basis of the individual circumstances and merits of the case and in terms of achieving the aims and objectives of this DCP.

NOTE: a supporting statement is not required for minor variations where the intent is clear from the submitted documentation or plans.

42 I am not satisfied that cl 3 provides the level of flexibility suggested by Mr Pickles. Clause 3 provides aims for the plan (or LEP 1990) and not how a development application should be considered. LEP 1990 clearly addresses the aim in cl 3(1)(c) by simplifying the different zones and allowing a wide range of uses within the zones. The aim of flexibility is repeated in Part B of Schedule 1 but again refers to the plan rather than a development application. The reference to the aim “to minimise the need for amendment” in Part B (ii) of Schedule 1 must be a reference to minimising need for amendment to the plan rather than providing added flexibility in the consideration of a development application.

43 I am also not satisfied that the particular provisions of cl 1.8 of DCP 15 provide any additional support for the applicant's case. While there is inherent flexibility in the controls within a development control plan any flexibility is subject to the constraints identified in Stockland and Zhang. As stated previously, I do not accept that flexibility sought by the applicant in the location of the proposed development can be supported taking into account the comments in Stockland and Zhang.

44 In my view, the weight that should be given to DCP 15 is significant. I am not satisfied that the proposal responds to the planning approach adopted by DCP 15 and in essence undermines the orderly provision of commercial and community facilities for the Mary's Mount release area. I do not accept that the flexibility inherent in LEP 1990 and DCP 15 should be seen as an opportunity to depart from an adopted and fundamental planning strategy for the long term development of the Mary's Mount release area.

45 The proposed development should be refused on the basis of the significant non-compliance with the provisions of DCP 15 in relation to the location of commercial and community facilities indicated in Figure 8. To accept the applicant’s arguments would be to give little or no weight to DCP 15.

46 For completeness I will briefly deal with the other issues raised in the proceedings.

Traffic access

47 Mr Lawrence and Mr Aldridge differed on whether the use of both Gourock Avenue and Gibson Street was appropriate for vehicular ingress and egress to the site. Mr Aldridge maintained that all vehicular ingress and egress should be limited to Gourock Avenue on the basis that the Road and Traffic Authority document Guide to Traffic Generating Developments (the RTA Guidelines) states that "direct access across the boundary with a major road is to be avoided wherever possible." Mr Aldridge also maintained that the ingress and egress point in Gibson Street was unacceptably close to the intersection of Murphy Close and Gibson Street.

48 Mr Lawrence stated that Gibson Street was not a major road but a collector road and as such did not fall within the requirements of the RTA Guidelines. Additionally, the offset between the ingress and egress point in Gibson Street and Murphy Close satisfied the required distance in Australian Standard As 2890.1:2004.

49 On the question of access, I accept the evidence of Mr Lawrence and find that the proposed access to the site would not be a matter that would warrant the refusal of the development application.

Streetscape

50 In their joint statement Mr Witherby and Mr Hume agreed that the proposed development would not unreasonably impact on the streetscape. The building mass and scale were satisfactorily mitigated to be compatible with the existing and desired residential character of the locality through building setback, building design elements sympathetic with residential architecture, choice of external materials and landscaping.

51 I concur with the conclusions reached by Mr Witherby and Mr Hume on the issue of streetscape.

Amenity impacts

52 Mr Witherby and Mr Hume also agreed that the proposed development would not adversely impact on the amenity of the area in relation to light spill, trading hours and in social behaviours subject to appropriate conditions.

53 Mr Hume required the provision of a full and proper assessment of noise from the proposed development. This centred largely on the ameliorative qualities of the boundary fencing. In accepting that this is a valid issue, I am satisfied with Mr Hume’s alternative approach of setting appropriate noise performance criteria and imposing these noise criteria as a condition of consent is an appropriate course of action.

54 Overall, there are no amenity issues that would warrant the refusal of development application.

Orders

55 For the reasons mentioned in the preceding paragraphs on the proposed location, the Orders of the Court are:

1) The appeal is dismissed.
2) Development Application 287/0607/DA for the subdivision and construction of a retail and commercial building and associated parking at 38 Gourock Avenue Goulburn is refused.
3) The exhibits are returned.
______________
G T Brown
Commissioner of the Court