McDonald's Australia Limited v Coffs Harbour City Council

Case •

[2023] NSWLEC 1067

•

16 February 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: McDonald’s Australia Limited v Coffs Harbour City Council [2023] NSWLEC 1067
Hearing dates: 11-14 October 2022
Date of orders: 16 February 2023
Decision date: 16 February 2023
Jurisdiction:Class 1
Before: Dixon SC
Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application no. 0810/20DA for the construction and use of a food and drinks premises with business identification signage and amendment to development consent no. 0110/20DA for alterations to the access driveway, internal roads and car parking of Toormina Shopping Centre at 5 Toormina Road, Toormina, subject to the conditions of consent in Annexure A.

(3)   The exhibits are returned except for A, B, C, D, E, F, G, H, K, L, M, N, O and 1.

Catchwords:

DEVELOPMENT APPLICATION – food and drinks premises (McDonald’s) – site suitability – amenity impacts upon the neighbourhood – traffic and pedestrian safety

Legislation Cited:

Coffs Harbour Local Environmental Plan 2013, cll 2.1, 2.3, 4.3, 4.4, 7.1, 7.2, 7.6, 7.8, 7.11, 7.12

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15. Div 4.8

Environmental Planning and Assessment Regulation 2000, cll 49, 50, 55, 97

State Environmental Planning Policy (Coastal Management) 2018 (repealed)

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1(1)(a), 3.6, Sch 5

State Environmental Planning Policy (Koala Habitat Protection) 2019, cl 8(2)

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 4.6

State Environmental Planning Policy No 55 – Remediation of Land (repealed)

State Environmental Planning Policy No 64 – Advertising Signage (repealed)

Water Management Act 2000, s 91

Cases Cited:

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61

New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited:

Coffs Harbour Development Control 2015

Category:Principal judgment
Parties: McDonald’s Australia Limited (Applicant)
Coffs Harbour City Council (Respondent)
Representation:

Counsel:
A Hemmings (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 2021/276490

Judgment

  1. The applicant seeks development consent (0810/20DA) for the development of a food and drink premises (McDonald’s restaurant) within the south-western corner of the carpark of the existing Toormina Gardens Shopping Centre (Toormina Gardens), at 5 Toormina Road, Toormina (site) (see Ex G below).

  1. The site was earmarked for a food and drink premises under an earlier development consent 0110/20DA (Applicant’s Bundle Tab 4) (Fort Street Consent). Despite a recommendation for approval from the Council staff the elected Council determined on 22 April 2021 to refuse consent to the DA. The sole reason for the refusal being “unacceptable impacts on neighbouring amenity”.

  2. Dissatisfied with the Council’s determination the applicant commenced these proceedings on 28 September 2021. Shortly thereafter the Council filed its Statement of Facts and Contentions (SOFC), and the applicant began a redesign process to resolve the identified issues. To that end the application was amended on three occasions including after the site view when several local objectors addressed the Court.

The objectors

  1. The oral submitters included a local indigenous community elder, the principal of the Toormina High School, a representative from the Toormina Community Preschool and several local residents and business owners. The submitters raised a broad number of issues including their perceptions as to the likely impact of the proposed development. Generally speaking, most of them feared the impacts of the proposed 24-hour trading 7 days per week. They believed that the patrons of the development will congregate at the site and within the shopping centre carpark into the early hours of the morning long after other businesses in the centre including the Pub had closed by 11pm. There were also concerns about increased vandalism of the local childcare centre which had recently installed surveillance cameras to address vandalism at that site. The principal was adamant that his students would likely opt for takeout from McDonald’s rather than purchase from the school healthy canteen and skip class to congregate at the development site. He explained his ongoing dealings with centre management to address students’ unruly behaviour at the shopping centre. There was a lot of objector evidence about traffic congestion and the current access arrangements to Toormina Gardens from Toormina Road resulting in congestion at the existing signalised intersection and access to Toormina Gardens, particularly from Ms Beer (Ex 3 Objector Bundle, Tab 2). Traffic congestion at the signalised intersection and access was also identified by the parties’ traffic experts as needing to be improved (Annexure F to the Joint Traffic Report (JTR)) from the existing scenario and under the Fort Street Consent (Annexure G to the JTR) an arrangement that Mr McClaren described in his oral evidence as “a disaster” (Tcpt, 13 October 2022, p 73(20-45)). These experts also agreed with Ms Beers’ concerns for the safety of pedestrians, particularly the elderly (Ex 3, Tab 2) under both the current access arrangements and the approved pedestrian access arrangements under the Fort Street Consent which have not yet been actioned. At the conclusion of the view, the parties requested time to consider the matters raised by the submitters and the evidence of the acoustic and traffic experts. The Court accommodated the parties’ request and the hearing was adjourned for the day.

  2. When the hearing resumed the parties informed me that they had reached agreement. The Council was now satisfied that the most recent design changes to the intersection and further information with respect to acoustics, carparking, security arrangements and the McDonald’s operational incident management policies, subject to the imposition of the agreed conditions of consent, had resolved all issues. The Council also acknowledged that some concerns raised by local objectors remained to be addressed by me although the Council did not advance any evidence in respect of those matters.

Decision

  1. For the reasons that follow, I find that the amended application is acceptable on its merits and that there is no relevant planning ground to warrant refusal of this DA.

The proposed development

  1. The documents which now comprise the proposed development for which consent is sought including the Further Amended Plans dated 13 October 2022 and the Amended Plan of Management (PoM) are marked (Ex A).

  2. The key changes made to the DA in response to the submissions by objectors and the Council’s Further Amended SOFAC and by the Agreed Draft Conditions of Approval, the Further Amended Plans, the Amended DA and Further Amended DA include:

Key improvement to the proposed McDonald’s Restaurant

Date

1.

Reorientation of the key architectural features of the proposed development, including the relocation of the PlayPlace to the Toormina Road intersection to facilitate street activation along Toormina Road.

May Amended DA

2.

Enhancement of the façade of the built form on all elevations to promote design excellence, including the addition of timber look slates, architecturally designed pergolas along the Toormina Road frontage and changes to the horizontal façade.

May Amended DA

3.

Proposed reduction in trading hours from 24/7 to 5am – 10pm, seven days a week (with a trial period 10pm – 12 midnight on Monday to Saturday and roaming security during trial hours).

May Amended DA dated May 2022, Amended POM and Agreed Draft Conditions

4.

Removal of the originally proposed 4 metre pylon sign facing the intersection adjoining the site.

Amended DA dated May 2022

5.

Increased landscaping along the southern and western facades.

Amended DA dated May 2022

6.

Introduction of a 1.5 metre high above kerb masonry acoustic screening wall to wrap around the drive thru at the south western corner of the site, screening the loading bay and drive-thru, to provide a visually pleasing aesthetic.

Further Amended Plans and July Amended DA

7.

Deletion of outdoor seating area.

Further Amended Plans

8.

Changes to the carpark to reduce potential acoustic impacts and improve pedestrian safety:

• Removal of speed bumps;

• Wombat crossing with dimensions;

• 10km/hr signage in carpark;

• 'No entry' signage in carpark;

• Changes to directional arrows in carpark for 1 way traffic flow; and

• Narrow circulation aisle to 4m.

Further Amended Plans

9.

Amendments to the Plan of Management and Agreed Draft Conditions, including:

• Detailed noise handling, reporting and complaint procedures

• Detailed procedures for security and safety, including management procedures, roaming and at call security guard, handing/ recording and reporting incidents of anti-social behaviour

• Detailed procedures with respect to litter control

Further Amended Plans and Agreed Draft Conditions

10.

Reduction in proposed hours of operation from 24/7 as per original DA to 5am – 10pm Monday to Sunday, with a 12 month trial period for the hours 10pm – midnight Monday to Saturday.

Amended PoM and Agreed Draft Conditions

11.

Conditions of consent which impose strict noise compliance criteria with which the development must comply and a condition requiring quarterly compliance testing to demonstrate that compliance is achieved in the first 12 months and a procedure for remedial action.

Agreed Draft Conditions

Key improvements proposed in relation to 0110/20DA

Date

12.

Provision of three exit lanes on the site access approach to the intersection of Toormina Road and Bangalee Crescent. These lanes are configured as a separate left turn lane, a shared through and right turn lane and a separate right turn lane.

July Amended DA

13.

Alignment of the through lanes between the site access and Bangalee Crescent.

July Amended DA

14.

Reconfiguration of the internal t-intersection within the site to prioritise traffic entering the site and increase the available queuing distance for vehicles waiting at the traffic signals to exit the site. It also separates the northern and southern connections to the main site access road.

July Amended DA

15.

Retention of the direct pedestrian access between the traffic signals and the Toormina Gardens Shopping Centre.

July Amended DA

  1. Access to the proposed development remains from the existing intersection of Toormina Gardens, subject to amendments to the intersection arrangements as detailed below.

Modification of the Fort Street Consent

  1. As noted earlier on 8 September 2020, the Council granted the Fort Street Consent for various changes to access, internal manoeuvring and carparking, and demolition of the medical centre at the site. A copy of the Approved Plans is in the Applicant’s Bundle.

  2. Consequential amendments are proposed as part of the Agreed Draft Conditions to this DA to modify the Fort Street Consent for the existing carpark and access to the Toormina Gardens as it relates to this site.

  3. The power to impose such a condition is provided in s 4.17(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act), which provides:

4.17 Imposition of conditions (cf previous s 80A)

(1) Conditions—generally A condition of development consent may be imposed if—

…

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or…

  1. Section 4.17(5) of the EPA Act further provides that:

(5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations.

  1. As the DA was lodged but not finally determined prior to 1 March 2022, the provisions of the former Environmental Planning and Assessment Regulation 2000 (EPA Regs) applies to this DA. Clause 97 provides the process for the modification of an existing development consent as follows:

97 Modification or surrender of development consent or existing use right (cf clause 68 of EP&A Regulation 1994)

(1) A notice of modification or surrender of a development consent or existing use right, as referred to in section 4.17(5) of the Act, must include the following information—

(a) the name and address of the person by whom the notice is given,

(b) the address, and formal particulars of title, of the land to which the consent or right relates,

(c) a description of the development consent or existing use right to be modified or surrendered,

(d) particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,

(e) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.

(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1)—

(a) takes effect when it is received by the consent authority, and

(b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.

…

  1. The evidence is that the Fort Street Consent was granted to the owner of the shopping centre, Fort Street on 8 September 2020, and approved amendments to the plans were subsequently approved by the Council pursuant to Condition 6 of the Fort Street Consent on 20 November 2020.

  2. As the proposed development is reliant upon the Fort Street Consent given that the Fort Street Consent approved various works within the Toormina Gardens carpark which create the “pad site” for the proposed development and altered the proposed vehicles access arrangements at the Toormina Road intersection, Condition 6 of the Fort Street Consent requires amendment to the intersection design as specified in the condition and Condition 13 of the Fort Street Consent which provides:

“Prior to Commencement of the traffic control signal works consent will be required from TfNSW for modification to the traffic control signals on Toormina Road. Consent is to be provided under the terms of a Works Authorisation Deed.”

  1. Fort Street has been in discussions with Transport for NSW (TfNSW) regarding the intersection upgrades required to satisfy Condition 13 of the Fort Street Consent, and TfNSW has provided its “in-principle agreement” to a revised intersection design on 3 June 2022 (Revised Intersection Design) and revised carparking design and layout which accommodates the changes to allow for the development of the proposed McDonald’s.

  2. The applicant proposes in these proceedings a condition of consent requiring the modification of the Fort Street Consent to reflect the Revised Intersection Design now required by TfNSW.

  3. The key aspects of the Revised Intersection Design comprise:

  1. provision of three exit lanes on the site access approach to the intersection of Toormina Road and Bangalee Crescent. These lanes are configured as a separate left turn lane, a shared through and right turn lane and a separate right turn lane;

  2. alignment of the through lanes between the site access and Bangalee Crescent;

  3. relocation of the stop line and signal pole on the Toormina Road north approach to accommodate the third exit lane and heavy vehicles turning right out of the site access;

  4. reconfiguration of the internal t-intersection within the site to prioritise traffic entering the site and increase the available queuing distance for vehicles waiting at the traffic signals to exit the site. It also separates the northern and southern connections to the main site access road;

  5. retention of the direct pedestrian access between the traffic signals and the Toormina Gardens Shopping Centre;

  6. reconfiguration of the western end of the carpark, resulting in a loss of 19 car parking spaces (from 832 to 813 spaces); and

  7. minor alterations to directional signage as a consequence of intersection and internal circulation modifications.

  1. The modifications proposed to the Fort Street Consent, and plans depicting the Revised Intersection Design, form part of this DA for which consent is sought.

  2. Fort Street consents to the Further Amended DA and the proposed amendments to the Fort Street Consent by way of the Further Amended Plans and the Agreed Draft Conditions sent to the Court on 12 October 2022 as evidenced by:

  1. The consent of Fort Street to the lodgement of the DA has been provided.

  2. Subsequently, Fort Street provided its consent to the modification of the Fort Street Consent as proposed by the applicant.

  3. Further, Fort Street has provided its consent to the Further Amended Plans and the Agreed Draft Conditions as they relate to the Fort Street Consent.

Contentions and expert evidence

  1. On 9 August 2022, the Council raised eight (8) contentions in its Further Amended SOFAC, which are summarised as follows:

  1. Contention 1: amendments to the access intersection of the Toormina Gardens Shopping Centre;

  2. Contention 2: owner's consent;

  3. Contention 3: internal traffic and pedestrian safety within the Toormina Gardens Shopping Centre;

  4. Contention 4: design excellence;

  5. Contention 5: amenity impact upon the neighbourhood (noise and the PoM);

  6. Contention 6: suitability of the site;

  7. Contention 7: public interest; and

  8. Contention 8: inadequate information provided in relation to traffic and noise.

  1. The Court is assisted in these proceedings by experts in the following disciplines:

  1. Urban Design: Dino Delotavo (applicant);

  2. Town Planning: Stephen O’Connor (applicant) and Kerry Gordon (Council);

  3. Traffic Engineering: Tim Rogers (applicant) and Craig McLaren (Council); and

  4. Acoustic Engineering: Rod Linnett (applicant) and Graham Atkins (Council).

  1. Joint conferencing of experts has taken place in accordance with the Court’s directions and the following Joint Reports have been filed:

  1. Joint Expert Report of acoustic engineers filed 23 August 2022;

  2. Joint Expert Report of traffic engineers filed 31 August 2022;

  3. Joint Expert Report of urban designer and town planners filed 7 September 2022; and

  4. Supplementary Report of the traffic and town planning experts dated 13 October 2022 (Supp JER Traffic and Planning).

Contentions that are resolved

  1. Based on the evidence before me including the Further Amended Plans, the Amended PoM and the Agreed Draft Conditions, I am satisfied that each of the contentions in the Further Amended SOFAC are resolved or are capable of being resolved by the proposed conditions:

Contention 1: amendments to the access intersection of the Toormina Gardens Shopping Centre

  1. The traffic experts agree that Contention 1 is resolved subject to the Further Amended Plans and the Agreed Draft Conditions.

  2. The Fort Street Consent imposed obligations on Fort Street with respect to the intersection on Toormina Road and Bangalee Crescent:

  1. Conditions 3 and 4: require Fort Street to carry out the amended car park design and intersection works in accordance with the approved plans, statement of environmental effects (SEE), as modified by the conditions of the consent;

  2. Condition 6: the obligation to make design amendments to the intersection; and

  3. Condition 13: the obligation for Fort Street to enter into a Works Authorisation Deed with TfNSW with respect to the intersection works arises from Condition 13 of the Fort Street Consent.

  1. The applicant has received from TfNSW an “in-principle agreement” for the modification to Toormina Road/Bangalee Road/site access and intersection and revised carparking layout: see Applicant’s Bundle Tab 5.

  2. The traffic and planning experts have conferred following the site visit on 11 October 2022 and produced the Supp JER Traffic and Planning and agree that the proposed intersection design and swept paths are adequate for the assessment of the intersection and that should any widening of the intersection be required that they have assessed the impacts of such widening and in their opinion:

  1. There is capacity on the Fort Street land to undertake the road widening without impacting on the width of the verge;

  2. That any reduction in landscaping is acceptable;

  3. That there are no other anticipated impacts on other land;

  4. That owner’s consent of other land owners on the western side of the intersection is not required; and

  5. That conditions with respect to any potential road widening are included in the Agreed Draft Conditions.

Contention 2: owner's consent

  1. The traffic experts agree that Contention 2 is resolved having regard to the matters agreed with respect to the intersection works in Contention 1. The experts agree that further owner’s consent from 16 Toormina Road is not required.

Contention 3: internal traffic and pedestrian safety within the Toormina Gardens Shopping Centre

  1. The traffic experts agree that Contention 3 is resolved subject to the Further Amended Plans and the Agreed Draft Conditions.

  2. Further amendments to the internal traffic arrangements have been included in the Further Amended Plans to improve traffic circulation and pedestrian safety, including:

  1. Removal of speed humps;

  2. Wombat crossing with dimensions;

  3. 10km/hr signage in carpark;

  4. 'No entry' signage in carpark;

  5. Changes to directional arrows in carpark for one-way traffic flow;

  6. Narrow circulation aisle to 4 m; and

  7. Staff carparking spaces marked.

Contention 4: design excellence

  1. The planners and urban design expert agreed that Contention 4 is resolved.

  2. The urban design and town planning experts agree that there are no outstanding urban design issues on the basis of the Further Amended DA. The proposed McDonald’s restaurant has a bespoke design which responds to the site and the surrounding context. The proposed built form was modified in the urban design modifications in the May Amended DA, and an urban design report is at Appendix N to the July Addendum SEE.

  3. The other design excellence concerns of the Council related to unresolved issues with respect to traffic and noise and the planners otherwise deferred to those experts. The planners agreed in oral evidence on 14 October 2022 that their concerns with respect to design excellence are resolved.

Contention 5: amenity impacts upon the neighbourhood

  1. This contention raises two issues with respect to the amenity impacts from the extended hours of operation: noise and the PoM.

  2. With respect to noise, further modelling of the traffic road noise has been undertaken and the acoustic experts have reached agreement with respect to suitable acoustic conditions. Importantly, this includes a condition requiring compliance noise modelling to ensure that the predicted compliance in the acoustic modelling can be achieved.

  3. With respect to the PoM, the planners agreed in oral evidence on 14 October 2022 that the Amended PoM in Ex L is an agreed document which Ms Gordon’s concerns in relation to security and safety, complaint handling, incident reporting and litter collection have been addressed and are enforced by relevant conditions in the Agreed Draft Conditions.

Contention 6: suitability of the site

  1. The planners agree that the suitability of the Site has been demonstrated, with the exception of traffic and acoustics (where they defer to acoustic and traffic experts).

  2. Contention 6 is resolved between the planners on the basis of the Further Amended Plans, the Amended PoM, the Agreed Draft Conditions which amend the proposed hours of operation and introduce a trial period and acoustic compliance monitoring period.

Contention 7: public interest

  1. Contention 7 contends that “Approval of the application is not in the public interest for the reasons detailed in the submissions”.

Section 4.15(1)(d) - consideration of submissions made

  1. Pursuant to s 4.15(1)(d) of the EPA Act, the Court must take into consideration with respect to the Further Amended DA any submissions made in accordance with the EPA Act or the regulations. For the purposes of s 4.15(1)(d) of the EPA Act, the Court would have regard to the following circumstances:

  1. The proposed development has been publicly exhibited by the Council on three occasions;

  2. The Council’s Further Amended SOFAC in Part A summarises the submissions made in response to each exhibition period; and

  3. The submissions made in response to each exhibition period are before the Court for consideration, being reproduced in full in the Council’s Tender Bundle.

  1. As stated above, the Court has heard submissions made by objectors to the proposed development on the first day of the hearing. The Court has in evidence a record of the oral submissions as well as any speaking notes provided to the Council.

  2. The Court is assisted by detailed assessment by the experts in these proceedings of the matters raised in the submissions:

  1. Mr O’Connor has prepared a response to submissions with respect to the exhibition of the original DA;

  2. Mr O’Connor has prepared a response to submissions more generally at Attachment 6 to the JER Planning;

  3. The planners have considered the submissions in response to the proposed development and agree in the JER Planning at par 63 that the matters raised in submissions are generally addressed by the Council’s contentions discussed in the JER Planning and the JERs prepared by other experts;

  4. The traffic experts agreed in oral evidence on 13 October 2022 that the matters raised in the submissions with respect to traffic, parking and pedestrian safety have been adequately assessed and are addressed by the Further Amended Plans and the Agreed Draft Conditions;

  5. The acoustic experts agreed in oral evidence on 13 October 2022 that the matters raised in the submissions with respect to acoustics have been assessed and addressed by the Further Amended Plans, the Amended PoM and the Agreed Draft Conditions. Noting in particular that there is a proposal for a 12-month trial period for the hours of 10pm to midnight Monday – Saturday and there is a condition requiring incident reporting and a condition requiring acoustic compliance monitoring during the first 12 months of operation to, in effect, “ground truth” the predicted compliance on the bases of modelling.

  6. The planners agree that the matters raised in the submissions are addressed by the Further Amended Plans, the Amended PoM and the Agreed Draft Conditions.

  7. Mr O’Connor has provided a further response to the submissions dated 12 October 2022, including those submissions made to the Court orally and the planners have in my assessment satisfactorily addressed these submissions.

Consideration /Findings

  1. The parties jointly submit and I accept that the matters raised in submissions by the objectors have been addressed by the expert evidence, as summarised, and the impacts of the proposed development have been demonstrated to be satisfactory subject to the imposition of the Agreed Draft Conditions.

  2. The local area already has a number of businesses and retail premises. The current mix of uses include:

  1. to the north along Minorca Place: the Toormina Hotel, a 24-hour gym, Dominos, a veterinary clinic, a takeaway fish and chip shop, a credit union and a service station;

  2. to the south along Minorie Drive: an Aldi supermarket, a preschool and the Toormina Library;

  3. immediately to the west: a public park zoned RE1 – Public Recreation; and

  4. residential dwellings surround the area in the broader context within the R2 Low Density and R3 Medium Density Residential zones.

  1. The proposed development is permissible in the zone under the Coffs Harbour Local Environmental Plan 2013 (CHLEP) and the site is already approved for the proposed use. It fits within its context.

  2. The expert evidence is that the design is acceptable and the development will be managed in accordance with a PoM which is a condition of the consent. There will be security surveillance of the carpark and a trial period for the trading as approved.

  3. As the applicant submits the extent to which the Court may consider taking public submissions into account in determining other specific heads of consideration under s 4.15 of the EPA Act such as likely impacts and site suitability (s 4.15(1)(b)-(c)), it is necessary for the reasonableness of any claimed perception of adverse impact or site suitability to be evaluated. This requires an ‘…identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect…’.

  4. In New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 Lloyd J was required to determine whether, having regard to submissions received which opposed a proposed development, development consent should be granted or refused. Having regard to that issue and within the context of a consent authority being required to taken into consideration submissions made (now s 4.15(1)(d)-(e) of the EPA Act), Lloyd J found as follows:

“In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.”

(New Century Developments Pty Ltd v Baulkham Hills Shire Council at [61])

  1. Whilst the submissions made are mandatory matters to be taken into consideration, the weight to be given to those submissions is a matter for the consent authority; in this case the Court exercising the functions of the consent authority. It is acknowledged that the community has taken considerable effort to comment on the proposed development, as amended over the course of the proceedings to respond to the concerns raised by the Council and the objectors.

  2. As a consequence of that community participation in the development assessment process, the proposed development has been amended and refined to meet those concerns and a better planning outcome has now been achieved. This is reflected in the fact that the Council’s experts no longer press any of the contentions raised in the Further Amended SOFAC, other than the submissions raised by the objectors that have not been addressed by the amended application and the Agreed Draft Conditions.

  3. As reasoned by Mr O’Connor in his Response to Submissions dated 12 October 2022, there are three broad categories of responses to submissions:

  1. Some of the submissions have already been addressed in the Further Amended Plans, Amended PoM and Agreed Draft Conditions (for example, concerns regarding litter control, acoustic compliance and managing anti-social behaviours);

  2. Some of the submissions are in conflict with the agreed expert evidence (for example, concerns regarding the sufficiency of the traffic and parking assessment and acoustic assessment, the likely traffic parking and acoustic impacts and the effectiveness of mitigation measures such as the acoustic wall); and

  3. Some of the submissions are at too high a level of generality, do not advance specific concerns which can be properly considered, (even if specific objections are raised) and are not supported by evidence upon which findings of fact can be made. For example, submissions as to research studies that have recommended that governments adopt policies that prohibit fast food outlets near schools.

  1. Accordingly, in all the circumstances, I accept that the objections to the proposed development on grounds other than those advanced by the Council would not be given determinative weight.

Section 4.15(1)(d) - Consideration of the public interest

  1. Contention 7 of the Further Amended SOFAC also puts in issue the consideration of the public interest as required by s 4.15(1)(e).

  2. The requirement to have regard to the public interest operates at a high level of generality and the range of relevant matters is very wide. It requires in this context, when used in a statute:

“…a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’”: Water Conservation and Irrigation Commission (NSW) v Browning, per Dixon J as explained by the High Court in O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 per Mason CJ, Brennan, Dawson, and Gaudron JJ.

  1. The objects of the EPA Act (at s 1.3) include:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) promote the orderly and economic use and development of land,

(d) to protect the environment…

  1. In this case the evidence is that the proposed development will advance the objectives of the EPA Act which form part of the public interest. For example, the Court heard objector evidence that the current access arrangements to Toormina Gardens from Toormina Road results in congestion at the existing signalised intersection and access to Toormina Gardens, in particular from Ms Beer. In oral evidence the traffic experts agreed that existing congestion at the signalised intersection will be improved by the works proposed by this application by amendment of the Fort Street Consent and I accept that expert assessment.

  2. With respect to pedestrian safety, the Court heard objector evidence, in particular from Ms Beer in relation to elderly pedestrians, as to concerns with pedestrian safety. Mr Rogers and Mr McLaren gave oral evidence that both the current pedestrian access arrangements and the approved pedestrian access arrangements under the Fort Street Consent are unsafe for pedestrians and will be improved by the proposed development.

Jurisdictional matters

  1. Relevantly there is no jurisdictional impediment to the grant of development consent in this case.

  2. The proposed development was originally identified as integrated development under Div 4.8 of the EPA Act on the basis that a controlled activity approval was required under s 91 of the Water Management Act 2000. On 27 July 2020, the Natural Resources Access Regulator (NRAR) provided its referral response to Council confirming that the proposed development is exempt from the need to obtain a controlled activity approval and no further assessment by NRAR is necessary. Accordingly, the proposed development is not integrated development.

EPA Regs

  1. As required by cl 49(1) of the EPA Regs, the consent of the owners of the land to which the DA relates (Fort Street) accompanied the DA.

  2. Pursuant to cl 50 of the EPA Regs, the DA:

  1. was in the form that is approved by the Planning Secretary and made available on the NSW planning portal;

  2. contained all of the information that is specified in the approved form or required by the EPA Act and EPA Regs, and

  3. was accompanied by the information and documents that are specified in Pt 1 of Sch 1 or required by the EPA Act and the EPA Regs, and

  4. was lodged on the NSW planning portal.

  1. Pursuant to cl 55 of the EPA Regs, the May Amended DA and July Amended DA were lodged on the NSW planning portal.

  2. Pursuant to cl 97 of the EPA Regs, owner's consent to the modification of Development Consent 0110/20DA has been provided by Fort Street.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H)

  1. SEPP R&H repeals and consolidates three SEPPs, relevantly including State Environmental Planning Policy No 55 – Remediation of Land.

  2. Section 4.6 of SEPP R&H requires a consent authority to consider the contamination of land when determining a development application.

  3. The requirements of s 4.6 of SEPP R&H have been addressed in the DA. The SEE dated May 2020 relevantly states:

“Given the previous development applications for the Toormina Gardens Shopping Centre development, and that the site is proposed to remain a commercial use, it is considered that there is limited potential for contamination on the site. Accordingly, the pad site is suitable for the proposed use.”

  1. There is a portion of Lot 20 (well-removed from the proposed development site) which is mapped as Coastal Environmental Area under the State Environmental Planning Policy (Coastal Management) 2018 which has now been replaced by the SEPP R&H.

  2. At page 138 of the Council Officer's Assessment Report, there is a detailed discussion of the proposed development which addresses the requirements of s 2.10 of the SEPP R&H as they are transferred provisions.

State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E)

  1. SEPP I&E repeals and consolidates two SEPPs, relevantly including State Environmental Planning Policy No 64 – Advertising Signage.

  2. Section 3.6 requires a consent authority to be satisfied that:

  1. the signage is consistent with the objectives of the Chapter as set out in s 3.1(1)(a); and

  2. the signage the subject of the application satisfies the assessment criteria specified in Sch 5.

  1. The requirements of s 3.6 of SEPP I&E have been addressed in the DA. The SEE dated May 2020 relevantly states:

“It is considered that the proposed signage satisfies the relevant criteria as described in [section 3.6]. The assessment criteria in [Schedule 5] of the SEPP relates to matters for consideration such as character of the area, amenity of residential areas, views and vistas, streetscape, setting and landscape, site and building, illumination and safety.

Consistency of the development with [section 3.6] is discussed further in Section 5.4 of this report and a detailed assessment of the proposal against the [Schedule 5] Assessment Criteria is provided at Appendix J.”

  1. Further detailed assessments against the requirements of s 3.6 were included in the May Amended DA and July Amended DA. In particular, the Schedule 5 Assessment Criteria are individually addressed in the 'Compliance Table' which formed part of the May Amended DA.

State Environmental Planning Policy (Koala Habitat Protection) 2019 (SEPP (Koala Habitat Protection))

  1. SEPP (Koala Habitat Protection) continues to apply to the assessment of the DA.

  2. Clause 8(2) requires the Council's determination of the DA to be consistent with the approved Koala Plan of Management that applies to the land, and on that basis I am satisfied that the terms of the SEPP have been addressed.

CHLEP

Clauses 2.1 and 2.3

  1. The proposed development is permissible with development consent in the B2 Local Centre zone and is consistent with the objectives of that zone.

Clause 4.3

  1. Pursuant to the Height of Buildings Map, the site is subject to a maximum building height of 15.5 m. The proposed development complies with this standard as the maximum height of the proposed building is 7.25 m.

Clause 4.4

  1. Pursuant to the Floor Space Ratio (FSR) Map, the site is subject to a maximum FSR or 1:1. The proposed development has an FSR of 0.17:1 and therefore the proposed development complies with this development standard.

Clause 7.1

  1. The site is listed as Class 5 on the Acid Sulfate Soils Map. In accordance with this clause, development consent is required for works within Class 5 acid sulfate soils if the works are within 500 m of adjacent Class 1, 2, 3, or 4 land. The site is not within 500 m of adjacent Class 1, 2, 3, or 4 land and therefore this clause does not apply.

Clause 7.2

  1. The matters outlined in cl 7.2(3) must be considered prior to granting development consent for earthworks. These requirements have been addressed in the SEE dated May 2020 which relevantly states:

“Prior to the commencement of construction for the McDonald's, the Site will have already undergone earthworks with the construction of the works associated with DA0110/20DA for the shopping centre. Minimal earthworks will be required to be undertaken for the purposes of stormwater management. It is considered that any proposed earthworks on Site will not disrupt drainage patterns or soil stability, will not impact existing amenity of adjoining properties or impact any waterways.”

Clause 7.6

  1. This clause applies to all land within 40 m of the top of the bank of each watercourse identified in the Riparian Lands and Watercourses Map. There are no mapped watercourses within the vicinity of the site.

Clause 7.8

  1. The Coffs Harbour City Koala Plan of Management dated November 1999 applies to the land and the Council is satisfied that the development for which consent is sought is consistent with that plan.

Clause 7.11

  1. The site is already serviced or is capable of being serviced for water, electricity, sewerage, stormwater drainage and vehicular access.

Clause 7.12

  1. The site is located within a B2 Local Centre zone. The proposed development is considered to exhibit design excellence as it complies with the matters stipulated under cl 7.12(4). The applicant has provided an assessment of the proposed development, as amended, against each requirement under cl 7.12(4) and I accept that the criteria have been satisfactorily addressed.

Coffs Harbour Development Control Plan (CHDCP 2015)

  1. The CHDCP 2015 applies to the DA, including relevantly Parts D, E and F which have been considered.

  2. The DCP Compliance Table prepared by SLR Consulting and dated 5 May 2022 relevantly considers each applicable clause of the CHDCP 2015, and the proposed development's compliance with each control.

Other matters

  1. Notification requirements under the EPA Act have been satisfied.

  2. I have considered the likely impacts of the offsite intersection and access infrastructure works, as required by s 4.15(1)(b), which have a real and sufficient link to the proposed development including the in-principle agreement from TfNSW (Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41). I am satisfied that the agreed conditions of consent which require completion of these works before the issue of a construction certificate is appropriate. Noting that these works will now be required to be completed under the amended conditions of the Fort Street Consent.

  3. Conditions of development consent have been proposed by the Council which have been agreed to by the applicant.

  4. Accordingly, the Court notes:

  1. That Coffs Harbour City Council, as the relevant consent authority, has, pursuant to cl 55 of the EPA Regs, agreed to the applicant amending development application no. 0810/20DA (the amended application).

  2. That the applicant has lodged the amended application on the NSW planning portal on 14 October 2022.

  3. That the applicant has filed the amended application with the Court on 13 October 2022 (amended plans) and 14 October 2022 (PoM).

  1. The Court orders:

  1. The appeal is upheld.

  2. Development consent is granted to development application no. 0810/20DA for the construction and use of a food and drinks premises with business identification signage and amendment to development consent no. 0110/20DA for alterations to the access driveway, internal roads and car parking of Toormina Shopping Centre at 5 Toormina Road, Toormina, subject to the conditions of consent in Annexure A.

  3. The exhibits are returned except for A, B, C, D, E, F, G, H, K, L, M, N, O and 1.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (1090690, pdf)

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Decision last updated: 17 February 2023

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Cases Cited

4

Statutory Material Cited

10

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
O'Sullivan v Farrer [1989] HCA 61
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21