Kentucky Fried Chicken Pty Ltd v Ku-ring-gai Council - [2003] NSWLEC 415

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Land and Environment Court

of New South Wales

CITATION: Kentucky Fried Chicken Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 415

PARTIES:
APPLICANT
Kentucky Fried Chicken Pty Ltd
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10393 of 2003

CORAM: Murrell C

KEY ISSUES: Development Application :- XXXXX XXXXX XXXXX XXXXX X

LEGISLATION CITED: Environmental Planning and Assessment Act
State Environmental Planning Policy Nos. 64 and 55
Planning Scheme Ordinance

CASES CITED: Tower Terraces Development v Sutherland Council

DATES OF HEARING: 26/08/2003 - 29/08/2003, 05/09/2003

EX TEMPORE
JUDGMENT DATE :
11/14/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J E Robson, barrister
SOLICITOR
Eakin McCaffery Cox
RESPONDENT
Mr S B Austin, QC
SOLICITORS
Abbott Tout

JUDGMENT:

I

10393 of 2003

Murrell C

14 November 2003

Kentucky Fried Chicken Pty Ltd

v

Ku-ring-gai Council

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act against Ku-ring-gai Council’s refusal of a development application for a Kentucky Fried Chicken drive-in/eat-in restaurant at 684 Pacific Highway, Killara. Initially it was a deemed refusal however the council resolved on 12 August to refuse the development application.
The Site and Environs
2. The subject site is known as 684-686 Pacific Highway, Killara, being Lot A DP374116 and Lot R DP391531. The site is on the western side of the highway opposite the Greengate Road. The site is irregular in shape with a frontage of 39 m to the highway and a depth varying between 25 on the northern boundary and 32 on the southern boundary yielding a site area of 1145 m2.
3. The current use of the site is for a car dealership and the improvements on the site include a single storey showroom situate on the southern portion of the site with the northern part being an open apron for the display of motor vehicles. At the rear of the site there are two workshop buildings and a brick retaining wall at the rear boundary. To the south, south-west and south-east of the site there are a number of residential developments in the form of residential flat buildings, generally of an older era. To the north and south of the site there are a number of commercial buildings generally of two storeys on the frontage to the Pacific Highway.
4. Commercial uses contained within these buildings include a lighting showroom, real estate agency, solicitors office, florist and pizza shop. At the rear of the site the land falls away steeply to the residential flat units behind and these units obtain access via rights-of-way off the Pacific Highway. Opposite to the site on the northern corner of the Greengate Road is the Greengate Hotel which is a heritage item and on the southern corner of the Greengate Road there is a real estate office that abuts the low-density residential area to the east.

The proposal
5. Prior to the proceedings an amended plan was submitted and these formed the basis of the assessment carried out by the expert witnesses. There was no objection raised by the council to the amended plan being the subject of these proceedings.
6. The development is comprised of the following: a two level KFC restaurant with drive-through facility with the main building located towards the northern boundary of the site, carparking for 16 vehicles along the southern and western boundaries of the site, a driveway entrance towards the southern end of the site to serve the carparking area and drive-through facility and exit towards the northern boundary.
7. Acoustic screening of some 2 to 4 m is proposed along the northern, southern and western boundaries of the site. The lower level is partly excavated to accommodate a dining area for some twenty-two people and twelve children as well as storage areas etcetera and with stair access to the upper ground floor level. The ground floor area contains kitchen, freezer, cool room, manager’s office and a public area and seating for 10 people with drive-through pick-up points located on the northern side of the building. In addition covered outdoor seating is proposed for some 14 people. The proposed hours of operation are 10 am to 10 pm on Wednesday and 11 pm for Thursday through to Saturday. A landscape plan also accompanied the development application.
8. There were some 20 odd issues identified by the council in this matter. As this is a verbal judgment I will not read them all out but I will indicate the areas and issues, which are grouped.
Traffic and Parking
9. Council is of the opinion that the RTA guidelines are not provided for and it does not meet council’s requirements in terms of its DCP. With respect to access there was dispute about the disabled access within the establishment.
Stormwater
10. At the end of the day it was agreed that there was no legal easement as such and in this regard a deferred commencement was seen as one way of dealing with the stormwater issue.

Neighbourhood Amenity
11. Whether the proposed development is satisfactory in terms of the likely impacts on the neighbourhood of odour emissions from the proposed development. Other issues raised in terms of neighbour amenity included patron behaviour, the operation of the facility including parking and unloading. Noise was also raised as an issue by the residents and in terms of streetscape the council was of the view that the proposed development is not in keeping with the streetscape in terms of the heritage building opposite and in terms of Council’s controls for the business area of DCP No 14 which calls for two storey block-edge type development.
Heritage
12. As I stated, heritage is an issue in terms of the proposed development being within the vicinity of the Greengate Hotel in consideration under the planning scheme needs to be considered. The other issue that was disputed was that of landscaping. The applicant considers that the landscaping provided is satisfactory for the proposed development.
13. The respondent council gave evidence that it was not satisfactory in terms of council’s controls. Advertising signage was seen by the council as not being appropriate and in keeping with the character of the area in terms of the corporate identity of the proposal. Site contamination was an issue in terms of SEPP 55.
The remediation of land
14. In this regard it is noted that there was a preliminary assessment and it was agreed that a deferred commencement in terms of remediation of the land could apply to the proposed site.
15. There were a number of public submissions received. Some 70 - 80 objections were received to the development application when it was advertised.

The statutory planning framework
16. The subject site is zoned 3A in terms of the Ku-ring-gai Planning Scheme Ordinance and this is the business retail services zone. The subject site is surrounded by 2D residential to the rear. The northern and southern sites on the Highway are also within the commercial area, the small Killara centre, as well as opposite the subject site there is the real estate agency on the corner of Greengate Road on the southern corner and the Greengate Hotel on the northern corner.
17. Other relevant development control plans include the carparking DCP 43, the advertising DCP 28, access DCP 31, the Ku-ring-gai Council contaminated land policy. I have given consideration to all the relevant planning controls in my assessment in terms of council’s planning regime. The provisions of State Environmental Planning Policy Nos. 64 Advertising, and 55 Remediation have also been considered in my assessment.
18. In terms of the Planning Scheme Ordinance the proposed development is permissible with consent. It is classified as a refreshment room, means “a restaurant, cafe, tea room, eating house or the like”. The objectives of the 3A Zone are to identify existing business centres within the municipality, the principal functions of which are to satisfy the retail and community service demands of the community which they serve, B to permit within the business centres hierarchy business and office premises of scale and character which do not threaten the role of business centres, and C to permit other community facilities to meet the needs and demands of the community.
19. The KPSO also states that in cl 30C the council is not to grant consent unless it is satisfied on a number of issues and that includes that the business is consistent with the zone objectives and any elevation of a building facing a residential zone has been designed to be reasonably compatible and it is suitably screened, development will maintain a reasonable level of solar access.
Noise generation
20. Minimise noise nuisance to adjoining residential developments and development is sited and designed to as to minimise overlooking to adjoining properties and that there is sufficient off-street carparking in development and traffic generated by the development is safely accommodated by the road system and does not unreasonably affect the amenity of surrounding localities and loading and unloading facilities are adequate and the streetscape of the development is compatible with and enhances the streetscape in which it is situated and appropriate drainage.
21. As I said, as this is a verbal judgment I will not reiterate all of the controls from Council’s planning regime in terms of all its DCPs but I have taken them all into consideration in my assessment. I will say at this point in my judgment and I will state my reasons and go through each of the issues clearly and at this point in my judgment I will say that there are a number of critical issues which could not be resolved to the Court’s satisfaction in this matter and therefore I have concluded that the development application does not warrant approval.
22. It was submitted on behalf of the applicant that the site is relatively tight, for example it was stated or submitted by counsel for the applicant that landscaping can be provided and is important and is addressed by a plan. It was also submitted on behalf of the applicant that the small do not add up to major and this is a sophisticated approach to a tight site.
23. On the other hand it was submitted on behalf of the council that this is the wrong development in the wrong place and that a number of issues interlock with major issues making it an unsuitable site for the proposed development. I am satisfied that the site is not suitable for the proposed development and this is manifested in the fact that the landscaping is inadequate, the carparking is inadequate and the externalities of the proposal in terms of deceleration lanes and in terms of not being able to provide for the best practice technology in terms of odour controls all add up to the fact that the proposed development is not satisfactory for the site and the site is not suitable for the development.
24. Some of the issues individually, as you will see when I go through them, are determinative but in a cumulative sense the sum of all of the deficiencies of the development application make it an unsatisfactory development for the subject site.
25. On behalf of the respondent council evidence was given to the Court by Mr Mark Taylor who is a consultant traffic engineer, Harvey Sanders a consultant town planner, Mr Moore a heritage architect, Mr Rolfe an access consultant, Mr Stevenson an odour consultant and Mr Pittendrigh a landscape consultant.
26. A number of residents also gave evidence to the Court and these included :

Mr Kosinar of 5/680 Pacific Highway,
Ms Cooper of 4 Greengate Road,
Mr Hook of 26 Buckingham Road,
Mr Dixon of 684B Pacific Highway,

27 . Ms Crossley who gave evidence on behalf of the council, she is a resident behind a KFC at Artarmon, Miss Austin of 14/590 and the business proprietors of the development to the south of the site at 680, Mr Hall and Miss Fowler.

Mr Schultz, an odour expert,
Mr Holland a landscape expert,
Mr Hallen a traffic engineer,
Mr Kennen a consultant planner,
Mr Bothwell who was the Senior Vice-President of the International Operating Standards for Kentucky Fried Chicken,
Mr Rowles access consultant,
Mr Simmons one of the proponents of the proposal, a company director
Mr Stevenson who is a heritage consultant, and
Miss McLean the architect for the proposal.

29 . I have been persuaded by the evidence submitted on behalf of the council that the site is not suitable to accommodate the proposed development. In particular I am not satisfied that the proposed design of the building and/or the site could accommodate the necessary odour control technology necessary to reduce odour to a level that would be compatible with the residential development to the west of the subject site. The applicant’s expert maintained the position that if an odour problem was found to be unacceptable that retrofitting(?) could occur on the subject site however at the same time it was demonstration to the Court that the design of the building may require adjustment.

30 . It is noted that in terms of the supplementary material that was provided to the Court following the closing of the hearing that the technology perhaps could be accommodated in the building however this was not confirmed. It is an indication that the site the size of the site is not adequate to accommodate all the necessary functions in order for this development to operate in a manner that is considered to be neighbourly. The size of the site is clearly one that is a major constraint for the development as proposed with the drive-through and a seating capacity proposed.

31 . The number of carparking spaces does not meet council’s requirement and I have not been persuaded by the applicant’s evidence that the drive-through arrangement and the carparking necessary for this development would be adequately accommodated on the site. The size of the site also limits the extent of any effective landscaping, in particular at the rear and the side boundaries where it adjoins residential development.

32 . In this regard I was persuaded by the Council’s submission that a cantilevered planter box is not an appropriate landscaping for the proposed development. The development is pushed to the boundaries and this is indicated by the lack of landscaping in terms of not only the peripheral perimeter boundary plantings but also in terms of the fact that the carpark cannot be adequately landscaped which would be expected in a location such as this and expected in terms of modern day development stand alone Kentucky Fried Chicken or other establishments.

33 . The screening of the development in terms of the acoustic screens is between 2 - 4 m and then this is on top of retaining walls which, to the residential premises to the rear is in my opinion unsatisfactory and unreasonable. The landscaping will have little ameliorative effect if it has a chance of survival at all and the impact or the impost of the existing retaining wall and the acoustic fence to ensure that noise from the subject site in terms of the drive-through and carparking does not impact on the residential development to the south is one that is unacceptable and it in itself creates its own problems. It is noted that overshadowing was not pressed as an issue during the proceedings but the interface between the residential buildings and the residential development surrounding this Kentucky Fried Chicken establishment at this location is not satisfactory and there has been little regard to dealing wit the interface in terms of the controls that council has in its instruments. The restricted nature of the site is also manifested in the fact that the site is not large enough to absorb the external impacts generated by the development.

34 . The proposal excessively borrows from the surrounding area and this is evidenced by the need to remove carparking spaces currently available on the Highway to the south of the site to provide an approach or deceleration for the subject site in terms of the ingress. Whilst the removal of these three carparking spaces in themselves may not be determinative it is symptomatic of the fact that the site cannot accommodate the external impacts that it would create. I accept that the commercial premises to the south have parking at the rear under the building but nonetheless it is unreasonable to disadvantage the existing businesses because a development cannot reasonably contain its own impasse in terms of because of the constraints or the limited size of the site.

35. As I said, this may not be determinative and in the correspondence from the RTA it was clear that the RTA were anxious or concerned that the approval of the businesses be sought before the removal of the carparking spaces. It is also noted in later correspondence from the RTA that they considered that it may be appropriate to provide some public carparking on the subject site. I also accept the applicant’s evidence in this regard that the public parking on the KFC site would not be the same demand time as for the restaurant itself but nonetheless this is not a satisfactory arrangement in the Court’s opinion.

36 . With respect to the issues of landscaping I agree with Mr Pittendrigh that planting should be dispersed throughout the parking area and around the perimeter. He described it as “a paucity of landscaping” in which I would agree and the landscaping on the perimeter is of concern in terms of not only its establishment but its maintenance. The acoustic screen as I stated is not an acceptable transition and the landscaping will not in my assessment ameliorate its impacts. It is clear to the Court that there are leftover areas which have been allocated to landscaping and I agree with Mr Pittendrigh that this is a token effort of landscaping.

37 . For a new development is it not acceptable and in the location it is not acceptable. There is an expectation that establishment such as this would provide and enhance the amenity of the area in terms of providing appropriate landscaping and in respect of the landscaping it is important to note that the style and design of the subject building is one that is not contemplated in terms of Council’s controls and whilst I did not find this fatal to the application in combination with the lack of appropriate landscaping makes the development unacceptable in the Court’s assessment.

38 . With respect to the presentation to the streetscape, which I have just touched on, the presentation of the built form in my assessment would not warrant refusal on its own but it is a fact that the landscaping cannot compliment and would not allow the development to fit in with the area. It will be clearly a stand-alone development and the proposal is exacerbated by the paucity of landscaping.

39 . In terms of the streetscape and the developing fitting in I do not accept that the corporate signage is one that would warrant refusal of the subject development application. The applicant has rationalised the advertising proposed on the subject site and in my assessment it could not be refused on the basis of the corporate colours and the advertising as shown on the development application. The applicant has also attempted to provide a pitched roof which would assist in the design being more acceptable than the traditional KFCs.

40 . With respect to the heritage significance of the Greengate Hotel I am satisfied that the significance of this will not be diminished in terms of Council’s LEP and that the commercial area or areas around are not conservation areas or heritage areas and they are composed to address and I agree though with the Council’s heritage expert that the Greengate Hotel is a most important building commanding a great presence and it is composed to address its corner. It is a truly civic building that creates the urban place and identity of the Greengate corner however I am satisfied that the subject development would not significantly impact on the heritage significance of the Greengate Hotel and in the streetscape it does not warrant a refusal in that regard.

41 . With respect to the stormwater it was agreed there is no legal access to an easement. It is recognised that this could be obtained but clearly a deferred commencement would be necessary in that regard so that was not fatal to the application and clearly the same with site contamination. It can be handled by way of a deferred commencement.

42 . The issues that are fatal are those of traffic and parking as well as the landscaping and as well as odour. I will move now on to the issue of traffic. It is noted and it was agreed that this is a very busy part of the highway and the RTA would require a 40 m minimum clearance area south of the entrance and in that regard this would require the loss of three on-street spaces for the businesses to the south.

43 . It would in fact form a de facto or a pseudo deceleration lane for the entrance to the KFC facility and it is noted that this is already a clearway for certain hours of the day so therefore parking for the businesses is not on a 24 basis but nonetheless it has parking outside the businesses to the south during the day. I am satisfied that the parking is deficient in terms of Council’s assessment.

44 . There could be a demand for some 29 spaces if the area of the restaurant in terms of the seating capacity is counted. The applicant has put figures in terms of the fact that seats could be taken away but nonetheless the floor area would allow the accommodation of those numbers. Also it is clear that the tightness of the site creates a choke point at the entrance which is also the decision point as to whether one goes to the drive-through or dines in. It is once again symptomatic of the tightness of the site.

45 . There was evidence to the Court by the applicant that there are many KFC facilities that have similar approaches and do not have deceleration lanes or do not have side street access. In this location the proposal is not satisfactory however. Also clearly the Court did not have the benefit of the precise location of many of the establishments and the characteristics of the area as such and just because something may have been acceptable in the past does not necessarily mean that that is acceptable in the future and all development applications must be considered on their merit.

46 . There was evidence that removing the carparking spaces to the south would in fact benefit the residential flat buildings to the south and south-west and south-east. There are some 135 units that use the driveway to the south and yes, they may be benefited by the removal of three carparking spaces but on balance that does not overcome the deficiencies of the traffic and parking problems of the proposed development and would not justify an approval of the development.

47 . The tightness of the site is also reflected in the access to the establishment, the KFC itself, and a conflict with the queuing and a conflict with cars near the entrance. Once again some of these issues may not be fatal to the application but in total and cumulatively they mean that the site is unsuitable for the development and the extent of development and intensity of development proposed.

48 . The other issue that is fatal to the development application is that of odour. The applicant’s planner accepted that there was potential for an odour problem and that if best practice technology is available it should be proposed to ensure that there is no emission of odours that would create an offence. I accept that odour is a new science, so to speak, and it is not precise but at the same time there are thresholds. When one can detect odour it does not necessarily mean that that it is offensive but the evidence to the Court in terms of the topography, in terms of the climatic conditions, in terms of the height of the stack, it is inappropriate to provide a stack two and a half times the height of the current building if odour does become a problem.

49 . In terms of odours it is noted that there is a draft policy for the assessment and management of odour in New South Wales that the EPA put out in January 2000. I do note it is a draft but nonetheless in terms of the Tower Terraces development v Sutherland Council , Court of Appeal judgment it is a matter that I can take into consideration. As I said, it is a draft and I have given it appropriate weight and whilst this particular policy may be directed at licensed premises from the EPA nonetheless it provides some principles in terms of new developments and the expectations of controlling odour from such establishments.

50 . It notes that odours are the largest source of air pollution complaints to the EPA and that controlling and managing odour is difficult, a measurement of odour is not an exact science and that the policy attempts to help prevent odour conflicts in the future and help resolve some of the more difficult odour problems between existing facilities and their communities. The policy makes a clear distinction between new establishments and what would be expected in terms of technology to be provided in such new establishments as opposed to existing establishments that may need to be retrofitted. The policy clearly says that retrofitting is not the appropriate way to go and that the technology should be an integral part of new developments.

51 . Odour impacts are generally very difficult and costly to address retrospectively. It must be recognised that emission of odour cannot be prevented from some activities and no odour is not always a realistic goal however the operator of an odorous facility must ultimately be responsible for managing and minimising any impacts of the operation beyond its boundaries.

52 . The applicant was reluctant to undertake dispersion modelling and it is recognised that it is not perfect but nonetheless in terms of the evidence to the Court submitted by the applicant I am not satisfied that there has been genuine realistic and proper consideration of the odour issue and therefore the conditions proposed by the applicant are not acceptable in the Court’s opinion and would not be capable of being implemented.

53 . The Court cannot grant approval to a development which relies on retrofitting if odour does become a problem. There are a number of odour performance criteria and this was discussed during the proceedings and the Court has had regard to these details in terms of the measurement of odour when it becomes a nuisance, etcetera. With respect to the modelling it is noted that the draft EPA guidelines state that despite the limitations of such modelling these limitations are well understood by industry and these models are widely used throughout the world.

54 . The results have been shown through numerous model evaluation studies to be sufficiently robust to rely upon for calculating stack emission concentration limits for point surfaces. These models are the only methods available enabling this to be done and clearly from the evidence more than a sea buoy(?) method of camouflaging the smell of the odour would be required at the subject location and I do not accept the applicant’s proposition that the premises can be retrofitted. That, in the Court’s opinion, would be a somewhat elementary basic and primitive way to assess a development application.

55 . The development application process requires certainty. It also states that the choice of control equipment is always the responsibility of the proponent or operator of a facility and the proponent is encouraged to thoroughly review the currently available control technologies when selecting control equipment. It was not disputed that there is such technology available which could make such establishments odour-free in terms of the recipients past the site.

56 . I am satisfied that Mr Schultz’s evidence also was that the odour could result in a nuisance and loss of amenity and I do not accept the submission on behalf of the applicant that there is recourse at common law. This is not reasonable in terms of neighbourly development and the development application process. There is potential, it is not a remote possibility, and the applicant has certainly not proven to the Court that it is unlikely. There will no doubt be an impact and it may be subjective as to whether that is offensive but nonetheless there should be technology at this point in time implemented in the proposal.

57 . The applicant submitted that the zoning invites the application. The zoning of the site only allows for neutral consideration of the development application and in terms of Council’s planning regime and controls and the zone objectives I am not satisfied that the proposed development is one that warrants approval but clearly in terms of s 79C(1)(b) the site is not appropriate for the proposed development.

58 . With respect to the residents’ concerns their concerns related to many issues that are not the determinative ones in the Court’s opinion to warrant refusal of the application. Some of their concerns are certainly well founded. With respect to the issue of the incompatibility of the proposed development and the Greengate Hotel and the need to erect a fence in the middle of the road I do not consider that that would be a responsibility for the applicant. There would be no nexus in terms of such a condition in my opinion. The proposed development cannot be responsible for people crossing the road from one establishment to another.

J S Murrell

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Kentucky Fried Chicken Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 415

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CITATION:	Kentucky Fried Chicken Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 415
PARTIES:	APPLICANT Kentucky Fried Chicken Pty Ltd RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10393 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- XXXXX XXXXX XXXXX XXXXX X
LEGISLATION CITED:	Environmental Planning and Assessment Act State Environmental Planning Policy Nos. 64 and 55 Planning Scheme Ordinance
CASES CITED:	Tower Terraces Development v Sutherland Council
DATES OF HEARING:	26/08/2003 - 29/08/2003, 05/09/2003
EX TEMPORE JUDGMENT DATE :	11/14/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J E Robson, barrister SOLICITOR Eakin McCaffery Cox RESPONDENT Mr S B Austin, QC SOLICITORS Abbott Tout