Jones Lang Lasalle v Leichhardt Council
[2011] NSWLEC 1013
•05 January 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Jones Lang Lasalle v Leichhardt Council [2011] NSWLEC 1013 Hearing dates: 9 & 10 August and 9 September 2010 Decision date: 05 January 2011 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is upheld.
2. Development consent is granted to development application DA-102/2009 for a trial period of 12 months and subject to conditions including a plan of management consistent with the findings in this judgment.
3. The council is to forward to the court the draft conditions of consent and plan of management within 14 days of the date of this judgment.
Catchwords: Extended hours of trading on public holidays; amenity impact for local residents; plan of management. Legislation Cited: Environmental Planning and Assessment Act 1979
Shop Trading Act 2008
Leichhardt Local Environmental Plan 2000Cases Cited: LGSS Pty Ltd V Leichhardt Municipal Council [1999] NSWLEC 72 Category: Principal judgment Parties: Jones Lang Lasalle (Applicant)
Leichhardt Council (Respondent)Representation: Counsel:
Mr M Staunton (Applicant)
Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Ms R McCulloch, solicitor (Respondent)
Pikes Lawyers (Respondent)
File Number(s): 10335 of 2010
Judgment
Summary
This is an appeal, pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against Leichhardt Council's refusal of a development application (D/2009/102) for consent to trade from 10am to 4pm on Australia Day, Easter Saturday, Easter Monday, the Queen's Birthday and Labour Day at a shopping centre known as Leichhardt Marketplace, situated at 122-138 Flood Street, Leichhardt,
According to the evidence, the development application was refused because the council assessed that the proposed trading would cause unreasonable impacts on the amenity of nearby residential properties. In particular, council's contends that such trading will:
a. Significantly increase traffic flows and on street parking and associated noise on surrounding residential streets on public holidays.
b. Increase the likelihood that problems caused by the existing development would be experienced on public holidays namely:
·delivery and garbage vehicles parking in Lords Road and the site outside approved hours.
·noise from tractor collection of trolleys, alarms, staff opening gates and talking loudly, vehicle reversing alarms.
·trolleys being abandoned in surrounding streets.
c. Approval of the proposal would set an undesirable precedent for future applications to extend trading at the site.
d. The proposal is not in the public interest in the circumstances of the case.
To better understand the impact of the extended trading on the existing amenity of the local residents, the Court commenced this hearing with a view of the site and locality before it heard evidence from the objectors from Lords Road, George Street, Flood Street and Marion Street. The Court also received expert evidence from Mr Mc Laren and Mr Coady in respect of traffic, Mr Boston and Mr Coady in respect of town planning and Mr Cooper in respect of acoustic matters.
Following a consideration of the evidence, including the oral and written objections lodged to the applicant and the relevant matters under s 79C of the Act, I have decided to grant a conditional approval to the development application for a 12 month trail period. Based on the evidence, I am satisfied that the concerns raised by the objectors and the council are adequately addressed by the conditions of consent, which incorporate a comprehensive plan of management. Importantly, the 12-month trial period will allow the objectors to this application the opportunity to review the applicant's operation of the Centre and the impact of the extended trading on the existing amenity of the residents. The reasons for my decision are detailed below.
Background
The statement of facts and contentions filed by the parties on 27 May 2010 (exhibit 1) sets out the development history of the site. Relevantly, in 1993, the Court approved redevelopment of this site for a shopping centre subject to a condition requiring no trading on public holidays. The Court reinforced the requirement for no trading on public holidays in 1999 when it refused an application to extend trading hours to include all public holidays from 9am to 5pm. In coming to that decision, Bignold J in LGSS Pty Ltd V Leichhardt Municipal Council [1999] NSWLEC 72 assessed, on the evidence at that time, that the extended hours of trading " [were] likely to be adverse to the residential amenity of surrounding residents to a significant and unreasonable degree". I note, however, that the tenancy mix at the time of the 1999 appeal included the Franklins Big Fresh concept store; and, according to the evidence, that concept store attracted in 1998 a peak pedestrian visitation rate of 5.2 million annually. Franklins ceased trading at the centre in 2001 and, according to the evidence of Ms Brett, the current centre manager; the pedestrian count taken at 30 June 2010 disclosed pedestrian visitations of 3.8 million annually. A substantial reduction in numbers attending the centre.
Based on the above, it is fair to say that the current application can be distinguished from the 1999 appeal because the Centre does not have the same number of visitors each year and the applicant is no longer seeking consent to trade on all public holidays from 9am to 5pm. Relevantly, the applicant is only seeking approval to trade on up 6 to 8 specific public holidays from 10am to 4pm. The centre will (in accordance with the Shop Trading Act 2008) remain closed on Good Friday, Christmas Day, and Boxing Day and before 1pm on Anzac Day. Furthermore, the applicant agrees to trial the extended trading for a period of 12 months and to operate the Centre in accord with a comprehensive plan of management as a condition of the consent.
Site and Surrounds
Marketplace Leichhardt is contained in a block bounded by Marion Street- Flood Street-Lords Road-Forster Street at Leichhardt. It is adjacent to a number of older style and renovated residential semi-detached properties. Council's Statement of Facts and Contentions, filed on 27 May 2010, sets out the relevant planning controls.
The site is zoned general Business 3a under the Leichhardt Local Environmental Plan 2000 (LEP), which is the highest business zone in the Leichhardt local government area. The streets serve both residential and business. They are of a mixed use. The Leichhardt Development Control Plan 2000 applies to the site.
Relevantly, there are a number of vehicular access points to the centre including :
· off Lords Road, with entry /exist driveways serving both the basement and roof parking levels, as well as separate entry driveways serving the main loading dock. The loading dock ramp is also where, according to the evidence, the returned trolleys are toed by tractor back to a collection point in the centre;
· off Flood Street with an entry driveway providing access to the rooftop parking level, and the bottle shop, and a separate exist driveway from the bottle shop;
· off Foster Land (south) which provides entry and exist access for a ground level staff parking area and loading docks;
· off Foster Lane (north) which provides entry and exist access for a loading dock.
It is the council's case that the shopping centre, which is located at the interface with residential development, has a particular environmental sensitivity; and, thereby, "...a greater potential for the operation of the shopping centre to have a significant, adverse, traffic-related environmental effect and impact on the residential amenity than a shopping centre located centrally within a town centre which is not located adjacent to the residential development and which does not take its access off residential streets" (p5 and 6 Exhibit 3). The proximity of the Centre to the adjacent residential development was apparent at the view. It is a fact that the shopping centre has developed around residential streets and the owners of those residential properties are the principal objectors to this application.
Each of the objectors, who addressed the Court, spoke of their fear that an extension of trading to public holidays would exacerbate their current amenity problems. In particular, each complained of:
· noise from the delivery trucks to Woolworths and other shops within the centre because they arrive in the early mornings and park in Lords Road outside the loading dock with their engines running waiting for the centre to open;
· the old farm tractor which regularly circles the centre to collect stray trolleys from the local streets before dragging them up the ramp and depositing them in the loading dock;
· the early morning garbage trucks which arrive anywhere between 1am and 5am to empty the centre's bins;
· the fire alarms that are set off by the night stackers or tested in the early morning hours before the centre opens;
· the congested streets which offer no opportunity for residential or visitor parking whilst the centre is operating;
· the after hours staff on or near the loading docks who smoke and talk between shifts or when finishing at midnight;
· the unlocked gates to car parks which allow cars to access the site after it is closed.
Based on the evidence before me, and despite the efforts of the centre manager Ms Brett to address problems, I find that the operation of the centre does cause unacceptable impacts on the amenity of the surrounding residential properties. Furthermore, I accept the objectors' concern that an increase in trading on public holidays may well exacerbate the current problems experienced by the local residents unless is carried out in accordance with the council's draft conditions and the proposed plan of management.
However, in saying that I accept the applicant's submission that in making an assessment under section 79C of the Act, the Court - having regard to the zone objectives - needs to consider "...the private interests of the residents whose amenity is potentially affected by virtue of their proximity to Marketplace Leichhardt and the wider public interest of enabling the Centre to compete effectively in the dynamic retail environment which now exists within the site's retail catchment."(P5 exhibit D).
It is a fact that the Centre currently operates without a plan of management and both planners agree that the imposition of the plan of management as a condition of consent will address some of the concerns raised by the objectors because it sets out procedures to avoid and resolve issues such as delivery trucks and night noise. It is the applicant's submission that the implementation of the proposed plan of management (offered as a permanent condition of the development consent) will achieve real improvement in the operation of the centre and the amenity of the local residents and the evidence supports that submission.
However, I accept as council submits a plan of management is of no practical use if it is not complied with.
The proposed 12 month trial period will at least provide an opportunity to test the Centre's ability to ensure compliance with the terms of the plan and its imposition as a condition of consent means that non compliance with a term of the plan is a breach of the development consent and council will have opportunity to take appropriate enforcement action. Ultimately, the planners agreed that a condition incorporating the proposed plan of management for the centre is a positive step that will improve the existing amenity of the local residents for the long term.
Ms Brett, the centre manager, explained to the Court how she currently manages the centre - including its compliance with the conditions of the development consent and dealing with complaints. Relying on her sworn statement (Exhibit C), she told the Court that the owner of the centre had spent significant capital funds on improvements to the operational plant and equipment of the centre (including air conditioning plant, mechanical plant and motors) to ensure that any issues relating to noise overspill have been addressed. Despite her evidence, she conceded that the refurbishment of Woolworths has caused some noise complaint from local residents and she agreed that her job would be more effectively performed if the proposed plan of management were in place because it would provide a framework to achieve a better resolution of issues.
Terms of the Plan of Management
The proposed plan of management (which evolved during the hearing) is framed to address the existing amenity concerns raised in respect of the operation of the centre and those anticipated by an extension of trading as proposed. The table of contents at the front of the plan sets out the matters covered by the plan. Relevantly, it covers those areas of concern raised by the objectors and the council including: management and staff noise, deliveries, loading dock management, litter management, trolley management, and car parking management.
I accept Mr Boston's assessment that the plan integrates "environmental management into the daily operations and this will result in increased levels of amenity to the adjoining residential properties because it will provide complaints reporting and resolution mechanisms and an ongoing review process." The residents who addressed the Court told me that the centre's current complaint register discloses few complaints in respect of the operation of the centre because they saw no point in making complaint after the event. The evidence is that the local residents have long since given up leaving messages on the centre management's answering service message bank.
In contrast, the proposed plan is drafted to encourage a direct dialogue between the centre management and its residential neighbours to ensure that concerns raised are documented and appropriately resolved. The inclusion of the provision in clause 12 entitled Amendment of the Plan of Management (with council's approval after public notification) will ensure that the plan remains relevant and evolving to meet new and changing issues. Based on the evidence before me, I think it is imperative, if there is to be a real improvement in the operation of the Centre, for the centre manger to centrally maintain all records and be responsible for the loading dock management plan and the trolley management. Therefore, I accept council's suggested amendments to the plan of management as detailed in Exhibit 7.
Noise
According to the acoustic evidence of Mr Cooper, the proposal to extend trading to public holidays from 10am to 4pm (which is less than the operating hours approved under the current consent for normal weekdays) is acceptable. In his assessment, the current mechanical plant of the Centre is in compliance with the council/EPA general noise criterion of background +5 dB (A); and, therefore, the Centre will satisfy this noise criteria during the proposed additional trading days as the operation of the mechanical plant during the additional trading days will be the same as their current trading days. I accept this evidence.
The applicant has offered to insulate the front rooms of those properties opposite the site (including the side room of property in 78 George Street) to improve the internal acoustic amenity to those rooms. This would, according to Mr Cooper, reduce the noise to those areas and address the concerns raised by some of the residents.
The applicant has also agreed to construct an acoustic barrier on the western wall ramp to the upper level car park in accordance with the plan detailed in general condition 3. Based on the acoustic evidence, this will satisfactorily address the existing unacceptable noise impact to the residential property that adjoins the ramp. This measure together with the installation of an acoustic sound absorbing material with a minimum noise reduction co -efficient (NRC) not less than 0.75 within the dock located on the western side of the boundary of the loading dock area via Lords Road will improve the acoustic amenity of the properties opposite the site.
The inclusion of a condition of consent to control staff entering and existing the centre more than an hour before or after approved trading through designated staff entrances in accord with a deferred commencement condition (new condition 36) will assist in addressing the concerns raised by the residents about the night stackers. The prohibiting of night packing during the public holidays will ensure that noise generated by staff during the night from this activity will be avoided at least on the public holidays approved in by this application. The condition shall read: "13. There shall be no night filling or night packing of retail outlets within the Centre during the 24 hour period of any public holiday."
Deliveries
Based on the evidence of the objectors, I think it is appropriate and reasonable to accept all of the draft conditions proposed by the council including the imposition of a condition prohibiting all deliveries (including fresh food) into the Centre or the collection of garbage on the public holidays approved in this application.
The new condition 35 requiring the centre manger to maintain a record of all deliveries to the centre via Lords Road dock will improve coordination of deliveries to the centre and, hopefully, avoid delivery trucks arriving and waiting outside the centre to the annoyance of the neighbours on trading days when deliveries are allowed.
Trolley Management
The requirement in deferred commencement condition A (b) to find a quieter means of trolley collection (other than the tractor) which council must approve will, hopefully, result in a more acceptable trolley collection system. While I appreciate that the owner has in the past promised to address this issue, the incentive to do so during the currency of the trial period may see it come to fruition this time round.
The requirement in condition 12 that no store that uses trolleys may trade on a public holiday unless its trolleys have polyurethane wheels, polyurethance coating, and are fitted with a coin operated device to permit the release of the trolley for the customer use, will improve the noisy/stray trolley problem experienced by the resident objectors.
Traffic
The intersections of Marion and Foster Streets and Flood Street and Lords Road operate under signal control and there is also a roundabout control in Flood Street/Lords Road (P5 exhibit 3). The traffic experts, (Mr Coady and Mr McLaren) agree that the surrounding roads can accommodate the increase in traffic generated by this application and that it will not lead to unacceptable congestion. Having had the opportunity of a view of the site, I accept the evidence of Mr McLaren about spare capacity in the car park and his evidence that traffic is not a ground to warrant refusal of this application. The applicant has agreed to incorporate a traffic plan of management as a condition of consent; and based on the evidence, this will address many of the existing problems experienced by the locals in respect of traffic. Importantly, the plan of management will coordinate deliveries to the dock (clause 3 of the plan).
Based on the evidence, the approval of this application for a 12-month trial period will result in long-term positive changes in the operation of the Centre. The applicant has agreed to the imposition of permanent conditions of the consent that will protect the amenity of the local residents on all trading days into the future. I am satisfied that the application is consistent with the relevant objectives and requirements in the LEP and the DCP. I am of the opinion that the amenity impacts caused by an approval of this application will, upon compliance with the conditions, be acceptable. There can be no precedent flowing from the approval of this application because any future application must be assessed on the facts and merits relevant at the time; and further approval of trading on public holidays will depend upon the Centre's actions during the trial period.
Accordingly, the Court makes the following orders:
1. The appeal is upheld.
2. Development consent is granted to development application DA-102/2009 for a trial period of 12 months and subject to conditions including a plan of management consistent with the findings in this judgment.
3. The council is to forward to the Court the draft conditions of consent and plan of management within 14 days of the date of this judgment.
Susan Dixon
Commissioner of the Court
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Annexure ‘A’ - Conditions of Consent (PDF)
Plan of Management - Marketplace Leichhardt - January 2011
(PDF)
Decision last updated: 02 February 2011
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