McDonalds Australia Limited v Ashfield Council

[2011] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDonalds Australia Limited v Ashfield Council [2011] NSWLEC 1140

Hearing dates:

13,15 December 2010, 20 May 2011

Decision date:

02 June 2011

Jurisdiction:

Class 1

Before:

Brown C

Decision:

Appeal upheld

Catchwords:

DEVELOPMENT APPLICATION - demolition of existing buildings and the construction of a refreshment room/drive-in take away establishment with associated car park and signage - impact on the heritage significance of heritage item and conservation area - building design - noise - landscaping - signage - traffic impacts - whether a 24 hour/ 7 days per week trial period is appropriate - appropriateness of modified plans - facade colours

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Ashfield Local Environmental Plan 1985

Cases Cited:

Eastlakes Golf Club Limited v Botany Bay City Council [2007] NSWLEC 236
Maxnox Pty Ltd v Hurstville City Council [2006] 145 LGERA 373
Radray Constructions Pty Limited v Hornsby Shire Council (2000) 145 LGERA 292

Category:

Principal judgment

Parties:

McDonalds Australia Limited (Applicant)

Ashfield Council (Respondent)

Representation:

Counsel
Mr A Galasso SC (Applicant)

Mr C McEwen SC with Ms M McMahon
(Respondent)
Solicitors
Norton Rose Australia (Applicant)

Maddocks (Respondent)

File Number(s):

10650 of 2010

Judgment

1. This is an appeal against the refusal of Development Application No 2009/157 by Ashfield Council (the council) for the demolition of all existing structures and the construction of a refreshment room/drive-in take away establishment with associated car parking and signage to be operated by McDonalds at 141 Parramatta Road, Haberfield (the site).

1. The contentions raised by the council relate to:

• the unacceptable impact on the heritage significance of the Haberfield Conservation Area and Ashfield Park by way of the proximity of the site, the design of the building and the proposed signage
• the unacceptable noise impact on adjoining and nearby residential properties
• the inadequate landscaping of the site
• the adverse traffic impacts and congestion on the surrounding road network, including the need to provide additional pedestrian signals at Dalhousie Street and Parramatta Road, and
• the appropriateness of the 24 hour 7 days per week 12 month trial period

1. The contentions raised by the council in relation to the colour of the playground screen walls, odour impacts, inadequate setbacks and curtilage to the adjoining dwelling houses, the acoustic wall structure, the layout of the proposed car parking, bicycle parking and stormwater disposal were not pressed by the council following the provision of further information by the applicant.

1. A number of local residents provided evidence of the site view and supported the contentions raised by the council, and raised the following additional concerns:

• loss of street parking, and
• increased crime and anti-social behaviour.

The site and surrounding area

1. The site is Lot 16 in DP 520199. It has a 70.83 m frontage to Parramatta Road, a 39.575 m frontage to Dalhousie Street, a 32.13 m frontage to St Davids Road and a site area of 2514 sq m. A vacant motor showroom occupies the site and contains a two-storey masonry and metal clad building with basement car parking and hard stand concrete areas.

1. Surrounding development is mixed and made up of residential, commercial and car related development, particularly along Parramatta Road. Residential properties predominate to the north within the suburb of Haberfield and consist mainly of dwelling houses but with a number of older style residential flat buildings. Ashfield Park is located on the opposite side of Parramatta Road to the site.

The proposal

1. The proposal seeks the demolition of all existing improvements on the site and the construction of a refreshment room with drive-in take away facility to be operated by McDonalds. The refreshment room will employ up to 12 staff, provide 128 seats, of which 104 seats will be within the building and 24 seats will be on an outdoor terrace. The hours of operation are proposed to be 24 hours a day, 7 days per week although the applicant has indicated that it would accept these hours on a 12 month trial basis. A plan detailing the proposed signage accompanied the development application.

1. A total of 47 car parking spaces are provided with 19 spaces at grade and 28 spaces within a basement car park with an entry and exit from Dalhousie Street and St Davids Road.

Relevant planning controls

1. The site is located within the Zone 3(b) - (Special Business Zone) under Ashfield Local Environmental Plan 1985 (LEP 1985). "Refreshment rooms" and "drive-in take away establishments" are permissible within this zone. Part 4 provides Heritage provisions including aims at cl 30 and requirements for development in the vicinity of heritage items and heritage conservation areas at cl 37. Relevantly, the Haberfield Conservation Area adjoins the site to the north and the site is also in the vicinity of Ashfield Park and an Inter War former sub station at 11 St Davids Road; both being identified heritage items in Schedule 7 of LEP 1985.

1. Ashfield Development Control Plan 2007 (DCP 2007) applies. Part C2 addresses signage, with s 4.5 addressing signage for the proposed use and s 4.6 addressing development on Parramatta Road.

Heritage impacts

The evidence

1. Mr Robert Moore provided evidence for the council and Mr Robert Staas provided evidence for the applicant; both experts being specialist heritage architects. They addressed the areas of design and location, the gateway status of the Dalhousie Street and Parramatta Road intersection, and the impact on Ashfield Park.

Design and location

1. Mr Moore states that the architectural character of the building is strongly inappropriate for a site adjacent to the Haberfield Conservation Area and located between this area and Ashfield Park, a designated heritage item under LEP 1985. In his opinion, the design is unnecessarily assertive, stylistically incompatible for its heritage context and not necessary for the proposed development to function successfully in its context. This incongruity is clearly unavoidable through a more sympathetic design.

1. Mr Staas considers the proposed design has appropriately and adequately taken into consideration the context of the site and the principal presentation of the business premises to Parramatta Road. In his opinion, the proximity to the Haberfield Consolation Area and the location in relation to the heritage items were factors that influenced the design, which, in his opinion, is recessive in its presentation and is appropriately treated with landscaping around its perimeter to ensure compatibility with its location.

Gateway status

1. Mr Moore considers that the Dalhousie Street/Parramatta Road intersection is an important point of entry to Haberfield and the Haberfield Conservation Area. Mr Moore describes the site as a point of great influence on the appreciation of the area and should not be developed without regard to this importance. This can be achieved through the considered use of design elements that avoids visually noisy, destructive and assertive built form and materials. The form and materials should complement the Haberfield Conservation Area rather than conflict with it.

1. Mr Staas disagreed with Mr Moore. While acknowledging that the streets adjoining the site are gateways, and are particularly significant in heritage terms as the entry to Haberfield Garden Suburb, he states that those parts of the street near the site are patchy in character and do not represent the identified heritage significance in the Statement of Significance for the Haberfield Conservation Area. The site is not part of the Stanton Haberfield Estate having previously been subdivided and developed prior to the Garden Suburb model being adopted further to the north. In his opinion, the site is not significant in understanding the heritage values of Haberfield or the character of the adjoining Haberfield Conservation Area.

Ashfield Park

1. Mr Moore reiterates his previous concerns over the design of the building and states that if this issue is addressed, along with some revision of landscaping, the impact of the proposed development on the heritage significance of Ashfield Park can be addressed. In his opinion it is important that any potential design reinforces the relationship of the site with Ashfield Park rather than dissipate the relationship.

1. Mr Staas relies on the revised landscape drawings and the selection of plant, shrub and tree species that are, in his opinion, appropriate for its location adjoining the Haberfield Conservation Area and in the wider visual context of Ashfield Park. Mr Staas states that the proposed landscape treatment will provide a substantially enhanced presentation when viewed across Parramatta Road from within Ashfield Park. Mr Staas also states that it is neither necessary nor desirable for commercial or safety reasons to substantially screen the site along Parramatta Road.

Findings

1. Clause 37 provides that the Court "must assess and take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area.... and on its setting when determining an application for consent....". In this case, the Haberfield Conservation Area adjoins the site to the north and the site is also in the vicinity of Ashfield Park and an Inter War former sub station at 11 St Davids Road.

1. Both experts acknowledge the heritage significance of the Haberfield Conservation Area. It is not necessary to repeat the agreed significance as it is set out in detail in a number of documents, including Ashfield Municipal Council Development Control Plan 2007 - Part C7 - Haberfield Heritage Conservation Area . The significance and character is widely understood and relates to Richard Stanton's Garden Suburb concept with homogenous Federation architectural style, comprehensive planning with features such as separation of land uses and attractive tree-lined streets and garden designs.

1. The significance of Ashfield Park, as stated in the Ashfield Park Plan of Management is:

As one of the earliest parks to be created in Sydney, Ashfield Park has always been a place of immense cultural significance to the Ashfield community. From its inception, it has been a place for holding celebrations, for making significant local and national events and a place for memorialising the contributions of local people.

The Park has a number of impressive trees and palms including one of Sydney's finest avenues of Canary Island Date Palms. It also has some turpentine trees that are part of the original bush in existence before the Park was established.

Ashfield Park is greatly valued as a recreation area and is used in a wide range of ways. These include formal team sports, community events, small group exercise activities such as Tai Chi, meditation groups, mediaeval re-enactment groups, individual exercise such as jogging and walking, relaxation, picnics and barbecues. The Park is large and diverse enough to allow these activities to occur together without impacting on each other.

1. Mr Staas identifies the significance of former sub station at 11 St Davids Road in his evidence as:

The Relay Test Centre is of State significance. It is a representative example of a substantial and well maintained "interwar Stripped Classical" purpose designed structure built as part of the infrastructure for the introduction of electricity to the western suburbs of Sydney. It is located within the Haberfield Urban Conservation Area as listed by the National Trust and the Australian Heritage Commission.

1. The dispute between the experts centres on the design of the proposed building and the impact on the heritage significance of the Haberfield Conservation Area and the identified heritage items. The dispute between the Mr Moore and Mr Staas was that Mr Moore saw the design as being inappropriate given its heritage context whereas Mr Staas saw the design as being acceptable in the same context. There was however no dispute that any new building on the site should have a contemporary design.

1. In balancing the competing evidence of Mr Moore and Mr Staas, I prefer the conclusions of Mr Moore on this issue. I agree that the proposed design has features and materials that display an insensitivity to its context, if only at a subtle level, even though the form, scale, bulk and arrangement of the building on the site are acceptable. The curved external walls that form an extension of the parapet on the south, west and east elevation and extend to ground level are the most dominant features of the design. The curved features on the south elevation to the dining area add to the unsuitability and prominence of the design in this location, although the extent of this feature was not clear from the plans (see Attachment 1).

1. In coming to this conclusion, I accept that the impact on the heritage significance of the items and the Haberfield Conservation area is not that significant that a refreshment room/drive-in take away establishment with associated car parking and signage could not be located on the site. I also accept that the site does not have a strong or direct relationship with Ashfield Park, being separated by the heavily trafficked Parramatta Road and that its relationship with the Haberfield Conservation Area is also limited and somewhat detached because of its commercial zoning and location outside the conservation area. The former sub station site has a similar relationship with the site.

1. However it would be inappropriate, in my view, to have no regard to the heritage items and the conservation area in the consideration of this application given their heritage status and their proximity to the site. In my view, the site calls for a design that is more neutral or moderate and does not draw attention to itself through its design, colours and materials. Mr Moore described the appropriate design solution as needing to be "architecturally quiet". I agree. If the rhetorical question was asked of the development; what features of the proposed design respond to its heritage context, I could reasonably conclude that the answer would be none.

1. Even though I have found that the proposed design is unacceptable, it is not fatal to the application. The evidence of Mr Moore was that other designs had been discussed prior to the current plans and examples of other designs that are more responsive to its context have been prepared (although not necessarily in sufficient detail for their assessment) and tendered as Exhibit 13. I propose to allow time for the applicant further consider the design of the proposed building, in addition to other matters raised later in the judgment that require further attention by the applicant.

Traffic

1. Mr John Hanlon provided evidence for the council and Mr Tim Rogers provided evidence for the applicant. Both experts are traffic engineers. Mr Hanlon and Mr Rogers disagree firstly on, the Parramatta Road and Dalhousie Street intersection and the operation of the access driveway on Dalhousie Street, and specifically whether a median should be provided in Dalhousie Street to prohibit right turn movements in and out of the site. Secondly, whether an additional signalised pedestrian crossing should be provided at the intersection of Parramatta Road and Dalhousie Street.

1. Mr Hanlon and Mr Rogers agree that the areas in dispute are not determinative but simply a question of what option should be included as a condition of consent. There was agreement that other contentions raised by the council can be satisfactorily addressed through appropriate conditions or minor amendments to the plans.

A median in Dalhousie Street?

1. Mr Hanlon states that the provision of a median in Dalhousie Street opposite the entry/exit is appropriate as it would reduce congestion at the driveway and minimise undesirable through traffic on local streets. Mr Hanlon states traffic heading towards Haberfield could turn left into Dalhousie Street then left into Parramatta Road and then left into St Davids Road, or alternatively use the St Davids Road driveway.

1. Mr Rogers accepts that this approach represents a compromise but states that banning the right turn movement is not required as the current design is appropriate. He states that signage and line marking can be provided on the southbound lanes in Dalhousie Street opposite the site access to guide traffic in this location. The benefits of not providing a median include avoiding the need to relocate the bus stop to the north, avoiding additional traffic in St Davids Road (being a lower order classification road than Dalhousie Street), greater accessibility to the site and an unnecessary increase in traffic in streets adjacent to the site.

Additional signalised pedestrian crossing

1. The Parramatta Road/Dalhousie Street intersection currently has only a single signalised pedestrian crossing across Parramatta Road on the west side of the intersection. Mr Rogers states that the installation of a new signalised pedestrian crossing across Dalhousie Street to link with the Parramatta Road west signalised pedestrian crossing is appropriate for the pedestrian traffic likely to be generated by the proposed development.

1. This additional signalised pedestrian crossing is supported by Mr Hanlon although he states that an additional signalised crossing of Parramatta Road to the east of the intersection should also be provided. He states that the proposed development is likely to create a significant increase in pedestrian traffic wishing to cross Parramatta Road. In his assessment, the main pedestrian desire line would be to the east of Dalhousie Street, directly opposite the development, rather than to the west of Dalhousie Street where the existing signalised pedestrian crossing is located. The additional delay in patrons requiring to use two signalised crossings is likely to result in patrons not using the crossing facilities due to the long waiting times and could result in unsafe and uncontrolled movements across Parramatta Road.

Loss of on street parking

1. The loss of on-street parking from patrons using the proposed development was raised as an issue by a number of local residents although not raised by the council as a contention. Given that the proposed development satisfies the councils requirements for on-site parking, the refusal of the development application on the basis of potential on-street parking could not be supported.

Findings

1. On the issue of whether a median should be located in Dalhousie Street, I agree with Mr Rogers. As I understand, the median will perform two principal tasks, first, the prevention of queuing of vehicles seeking to enter the site in Dalhousie Street queuing into Parramatta Road and second, restricting the number of vehicles using Dalhousie Street. I note that for the majority of time (that is, when the bus stop opposite the entry/exit is not being utilised) there is room for through traffic to pass a vehicle waiting to turn right into the site. I agree with Mr Rogers that line marking should be provided to facilitate the movement of vehicles in this location.

1. Also, and with the median in place, those vehicles turning into Dalhousie Street from Parramatta Road to enter the site or vehicles exiting the site to travel in an easterly direction will need to use St Davids Road to enter and leave the site. Given that St Davids Road is a lower order classification road than Dalhousie Street, I do not accept that the additional traffic can be supported. The unchallenged evidence of Mr Rogers (without the median) was that 20% of vehicles would use Dalhousie Street and 10% of vehicles would use St Davids Road. I accept that this represents a reasonable proportion of traffic given the different status of the two roads in question. Condition 25 (or its consequent equivalent) is to reflect this finding.

1. On the question of whether the easterly signalised pedestrian crossing across Parramatta Road should be provided, I also agree with the conclusions of Mr Rogers. In accepting that the "desire line" between the site and Ashfield Park more closely reflects Mr Hanlon's preferred solution, the provision of a formalised pedestrian crossings at every "desire line" between two points is clearly unreasonable and impractical, particularly in this case where a safe and controlled means of crossing Parramatta Road from the site is available at the same intersection albeit requiring a movement across Dalhousie Street, as well as Parramatta Road. I do not accept that the likely small additional time required to undertake two street crossings, instead of one, is sufficient justification for the additional crossing. Condition 26 (or its consequent equivalent) is to reflect this finding.

Noise

The evidence

1. Mr Neil Gross provided evidence for the council and Mr Louis Challis provided evidence for the applicant. Both experts are acoustical engineers. They address the areas of the proposed noise monitoring system, the acoustic treatment to the drive-through enclosure and basement car park, the left-hand turn movement from the car park onto Dalhousie Street, and the northern boundary wall. There was general agreement on all noise matters, with the exception of the noise monitoring system proposed by Mr Challis.

Noise monitoring system

1. Mr Gross and Mr Challis agree that a carefully designed and appropriately configured noise monitoring system would allow management to detect the initial stages of patron anti-social behaviour in the external car park area or the basement car park and provides an advantageous means of minimising the likelihood of adverse community noise impacts.

1. Mr Gross and Mr Challis disagree on the need to install such a system for the site, at the commencement of operations. Mr Gross questions whether the cost of procuring, installing and maintaining a system is reasonable based on the frequency of occurrence of unruly behaviour although Mr Gross understands that the applicant can effectively manage anti-social behaviour without the noise monitoring system. Mr Challis states that he has been instrumental in the design and specification of such monitoring systems in a large number of situations. Where the systems have been installed, Mr Challis states that the operators have been able to effectively minimise, or avoid unacceptable community noise problems and the results in each and every case has been described as being a complete success. He rejects the concerns of Mr Gross over the potential cost of the proposed system.

Acoustic treatment to the drive-through enclosure

1. While Mr Gross and Mr Challis agreed that the drive-through enclosure could be modified to achieve an acceptable level of noise attenuation, a closer examination of the plans during the hearing indicated that there had been a misunderstanding relating to the ability to attenuate noise generated at the area where patrons order take-away food near the Dalhousie Street frontage. While Mr Challis was still confident that an acceptable level of noise attenuation could still be achieved, in my view, any further amendments should be properly assessed acoustically, as well as from a design viewpoint.

Basement car park

1. Mr Gross and Mr Challis agreed that the basement car park entrance area can be acoustically treated to incorporate acoustic absorption material so that this area will not create unacceptable levels of noise.

Left-hand turn movement from the car park into Dalhousie Street

1. This matter relates to whether vehicular departures onto Dalhousie Street shall be restricted to left-hand turn movements only between 10pm and 6am. Mr Gross and Mr Challis accept the traffic evidence that the vast majority of arrivals and departures (70 percent or more) will occur to and from Parramatta Road. Of the remaining movements that do not enter and leave via Parramatta Road, Mr Gross and Mr Challis accept that these movements will tend to include a preponderance of local residents who arrive from Parramatta Road and depart towards the direction of Haberfield along Dalhousie Street. For the few vehicles which may come from the direction of Haberfield and which may return in the same direction; there is a strong likelihood that a significant proportion will be local residents who are likely to exercise a greater respect for the neighbourhood and its environmental requirements.

1. From an acoustical perspective, Mr Gross and Mr Challis conclude that there is only a limited benefit to the residents of Dalhousie Street that would be derived from imposing a left turn only accept on Dalhousie Street between 10 pm and 6 am, but there is a potentially greater adverse impact for the residents in St Davids Road.

Northern boundary wall

1. Mr Gross and Mr Challis agreed that the revised noise barrier along the northern boundary wall fulfils their requirements in respect of their potential minimisation of vehicular, as well as patron noise emissions, towards the adjacent residential properties.

Findings

1. I agree with the evidence of Mr Challis that a noise monitoring system should be put in place prior to the operation of the facility. The effectiveness of this system should be assessed at the end of the 12 month trial period.

Signage

The evidence

1. Mr Andrew Johnston provided evidence for the council and Ms Julie Bindon provided evidence for the applicant. Both experts are town planners. They address s 4.5 and s 4.6 of Part C2 and Ms Bindon states that the signage is consistent with these requirements and the controls in State Environmental Plan Policy No 64 - Advertising and Signage. Mr Johnston states that the objectives in s 4.5 of Part C2 are not satisfied because of the sheer volume of signage proposed for the site. Further, the western wall mounted sign fronting Dalhousie Street would be visible from the Haberfield Conservation Area and consequently would not comply with s 4.6 of Part C2.

Findings

1. The issue of signage is an important consideration given the heritage context of the site and the requirements in Part C2 of DCP 2007 however given that the proposed building is to be redesigned and that different signage is likely to be proposed, any new signage will need to be reassessed against the requirements in Part C2 of DCP 2007.

Landscaping

The evidence

1. There was general agreement between Mr Johnston and Ms Bindon that the amended landscaping proposal is generally satisfactory and helps soften and provide a buffer to the adjoining residential dwelling houses. In accepting that the disused vehicular crossings crossing should be removed and the footpath's reconstructed and grass verges reinstated to St Davids Road and Dalhousie Street, Mr Johnston and Ms Bindon disagree on the treatment to the Parramatta Road footpath.

1. Mr Johnston maintains that is the council's policy that no grass verges should be provided to the Parramatta Rd frontage for maintenance and crew safety reasons. Ms Bindon states that the existing grass verge along the Parramatta Rd frontage should be extended for the full street frontage as it would improve the visual amenity of the street and help create a "green mark" relationship with Ashfield Park opposite.

Findings

1. On the remaining issue in dispute, I agree with Ms Bindon. I find it curious that the council raises significant concern with the proposed development over its alleged unsatisfactory relationship with Ashfield Park and then oppose a feature of the development that would help create a more positive relationship between the two sites, even accepting that there will be additional maintenance required for the grass verge, as opposed to full width concrete construction. Condition 22 (or its consequent equivalent) is to reflect this finding.

Hours of operation

The evidence

1. The 24-hour, 7 days per week hours of operation for the facility was a consistent concern raised by the residents who gave evidence at the hearing and the many submissions provided to the council during the advertising of the proposed development.

1. Mr Johnston also opposed the applicants proposed trading hours notwithstanding the general agreement by the acoustic experts, on the basis that the acoustic reports cannot address all noise and amenity concerns, in particular noise impacts generated by patrons located outside of the proposed development. In his opinion, the acoustic impacts are acceptable only between 6am and 11pm due to the location of the proposed development next to residential properties. The acoustic impacts and potential risks from anti-social behaviour outside these hours are such that it is not appropriate for the development to trade 24 hours, 7 days per week.

Findings

1. The potential noise sources come from two general areas, firstly from activities within the site and secondly, activities external to the site but from patrons using the facility.

1. The issue of noise associated with the operation of the proposed development (that is, the activities on the site) was addressed by acoustical experts for both parties and found that any noise could be adequately controlled through design, such as acoustic barriers and other acoustic treatment. The sole area of disagreement was the need for the installation of the noise monitoring system and I have found that this should be included as a condition of consent.

1. On the concern over activities external to the side, correspondence was received from the Ashfield Local Area Command on the proposed development. The correspondence states, in part,

... police cite late night trading McDonald's restaurants as areas used by young people to meet with other young people without adult supervision in order to "hang out" and entertain themselves. Some of this activity may cause concerns for patrons and local residents on Dalhousie Street and St David Street who reside within close proximity of the development site. Police are aware of the potential for an increase in crime and anti-social behaviour and the impact this may have on police and council resources.

1. The correspondence also states:

In regard to providing "any incidents and reports" the Ashfield Local Area Command has in regards to the other two McDonald's restaurants in the Command at Hurlstone Park and Croydon Park, it can be stated that "reported crime in around Hurlstone Park and Croydon Park McDonald's restaurants is not significantly higher than other areas of the Command".

1. The applicant proposes that the issue of anti- social behaviour associated with patrons external to the site is to be addressed through the Plan of Management that includes the provision of security personnel.

1. In my view, the question of whether a 24-hour, 7 day per week 12 month trial operation should be allowed is finely balanced. The observations of Mr Johnston are not without some merit however I am inclined to accept the applicants offer of a 12 month trial period for a number of reasons. First, there was no disagreement between the acoustic experts that on site noise generated from the development can be controlled to an acceptable level. Second, while the potential exists for events associated with the proposed development to disturb local residents, external to the site, the Plan of Management addresses the question of potential anti-social behaviour through the provision of security personnel. The effectiveness of this approach can only realistically be assessed during a trial period. I would add however that the Plan of Management should be amended to provide more specific details on the numbers of security personnel, the times that they operate and their specific duties in much the same way as details are provided for security personnel for licensed premises. I note that the police correspondence accepts that incidents may occur however there was no evidence from other McDonald's restaurants in the area to suggest that crime was significantly higher than other areas. Third, the 24 hours 7 days per week hours of operation is subject to review and in the event that the concerns of the residents and Mr Johnston are realised and sufficient evidence is provided to support their concerns, the hours of operation can be amended after 12 months.

1. Condition 2 (or its consequent equivalent) is to reflect this finding.

Directions

1. The judgment identifies a number of matters that require further consideration by the applicant. These are:

• amended plans that reflect the design of the building similar to that identified in Exhibit 13, including a revised design for the drive-through ordering enclosure, but retaining a similar floor area and configuration to the current application plans
• amended signage plan, consistent with Part C2 of DCP 2007,
• a supplementary acoustical report addressing the means by which any noise impacts from the drive-through ordering enclosure are to be addressed, and
• amendments to the Plan of Management to include more specific details on the numbers of security personnel, the times that they operate and their specific duties

1. Amended conditions are also to be provided that reflect the findings in the judgment, including:

• right turn movements into and out of the site from Dalhousie Street
• the provision of a signalised pedestrian crossing across Dalhousie Street, at the intersection with Parramatta Road only
• the provision of a noise monitoring system, as proposed by Mr Challis
• the creation of a grassed verge to the Parramatta Road frontage, and
• a 12 month trial for the 24 hour/ 7 day per week operation

1. Other matters were agreed by the parties, prior to the hearing and these matters should also be included on the amended plans or revised conditions. Further directions will be made after discussions with the parties on an appropriate timetable for the amended plans and amended conditions.

The amended plans

1. The hearing reconvened on 20 May 2011 and additional evidence was provided on:

• the amended building design by Mr Moore and Mr Staas
• the proposed signage, the conditions of consent and the Plan of Management by Mr Bas and Ms Bindon

1. Additional resident evidence was also provided on the amended plans. While still opposing the proposed development, those matters not addressed in the earlier hearing were:

• the need to identify that the extent of the proposed litter patrol zone as extending from at the least Dalhousie Street and St Davids Road between Parramatta Road and Ramsay Street, all of Ashfield Park and all streets immediately adjacent to the park four times per day
• additional and additional details on proposed security measures
• the terms of the 12 month trial period, and
• the time for retention of CCTV recordings

1. The revised design for the drive-through ordering enclosure was considered by both acoustic experts and found to be satisfactory.

1. The council also raised whether there was power for the Court to agree to the proposed amendment.

The Courts power to allow the amendment

1. Mr McEwen SC, for the council, submitted that the Courts power to agree to the amendment is found in cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). This power is available on appeal by way of s 39(2) of the Land and Environment Court Act 1979 (the Court Act). While cl 55 specifically contemplates an amendment or variation may result in a change to the proposed development it should be construed so as to give the widest interpretation that its language will allow. However, Radray Constructions Pty Limited v Hornsby Shire Council (2000) 145 LGERA 292 places limits on the power available under cl 55 notwithstanding the beneficial and facultative nature of the provision. While there is power, by way of an interim judgement, to allow an opportunity for the applicant to prepare alternative plans, an error of law will be committed if an applicant is permitted to amend the development application in circumstances where the amendment will amount to a fresh application (Eastlakes Golf Club Limited v Botany Bay City Council [2007] NSWLEC 236 at [12]).

1. Mr McEwen submits that an essential element of the subject development application is its external appearance or design in the context of its location on land adjoining the Haberfield conservation area and the impact of the design on the heritage significance of a conservation area and the identified heritage items. The design of the building dictates its response to the conservation area and is for that reason, part of the essence of the development. The design and appearance of the proposed building is fundamentally altered in the revised plans and a comparison demonstrates that the design approach is now entirely different. Every facade has been altered and the internal layout has been changed. In Mr McEwen's submission, the amendments would operate to convert the original application into a new or fresh development application and accordingly there is no power to agree to the proposed amendments.

1. Mr Galasso SC, for the applicant, submits that the Court has power to deliver an interim judgement with directions whereby amendments could be effected, and consequently the appeal upheld ( Maxnox Pty Ltd v Hurstville City Council [2006] 145 LGERA 373 at [56]). He submits that the amendments agreed (or to be determined) are clearly within the breadth of the Courts power discussed in Maxnox. Even if it is accepted that the amendments are made pursuant to cl 55 of the Regulations (which is not accepted as Maxnox makes no reference to cl 55), it is clear that the power to amend, conferred by the clause is significantly broad and would easily accommodate the changes now proposed (see Radray ).

1. The proposed amendments, in response to the interim findings, will lead to a "changed development". The amended plans reflect changes to the built form, in particular to the external skin of the development. Nevertheless, the proposed development remains a McDonald's restaurant and drive-through facility with a different architectural expression. The essence of the development remains the same. The amendments, although creating a changed development, have not converted the application into a new application.

1. On this matter I agree with the submissions of Mr Galasso. I accept that the general power to allow the development is available through s 38 of the Court Act where it provides that proceedings "shall be conducted with as little formality and technicality" as possible and in the course of such proceedings the Court " may inform itself on any matter in such manner as it thinks appropriate as to the proper consideration of the matters before the Court permits". The decision of Biscoe J. in Maxnox [at 59] provides the power for an interim judgment in Class 1 proceedings provided that the modified development is not "significantly different from the proposal currently before the Court".

1. In this case, I can comfortably conclude that the development, as modified by the directions given on 23 February 2011 (see para 60), is not significantly different to the development considered by the Court and the subject of the interim findings. The modification centred on the appearance of the proposed building and largely adopted the evidence provided by the council's heritage expert, Mr Moore. The directions were clear in that only the treatment of the facade external appearance of the building was to be modified as a specific reference was made to "retaining a similar floor area and configuration to the current application plans".

1. The need for a revised advertising sign plan was a consequence of any modification of the design and the supplementary acoustical report addressing the any noise impacts from the drive-through ordering enclosure was a direct result of a misunderstanding of the plans by the acoustic experts during the hearing. In any event, this area potentially required revision as result of the proposed modification.

1. For these reasons, the power is available and should be exercised by the Court for the consideration of the amended plans.

The amended building design

1. Mr Moore and Mr Staas provided additional heritage evidence on the amended plans. Mr Moore raises the following issues:

• the extent of glazing is excessive however it may be tolerated however the heavy framed hood devices extending across the south and east facades and painted white are unhelpful in the buildings response to its context
• the inappropriate use of white and off-white colours
• the need for greater use of lighter colours and "terracade" units

1. Mr Moore states that the amended design remains capable of simple amendments, which would both subtly and considerably improve its outcome in context. At the request of the Court, Mr Moore provided conditions, which reflected his evidence on the appropriate colours and materials for the amended building design.

1. Mr Staas disagrees with the conclusions of Mr Moore and maintains that the amended plans are acceptable in its context. He states that the proposed colours are appropriate and that additional "terracade" units are not necessary.

1. Having previously agreed with Mr Moore that an appropriate design solution needs to be "architecturally quiet", I adopt his reasoning for the colours and materials he advocates in his evidence (see conditions B2 and B3).

Signage

1. Mr Bas acknowledges that the signage has been reduced from the original plans however the volume of signage still proposed for the site fails to satisfy the objectives in Pt C2 of DCP 2007. With the exception of the principal sign, cl 4.5(b) of Pt C2 discourages other freestanding signage on the basis that it leads to "self-defeating clutter". Clause 4.5(c) requires secondary signage to be located on the building.

1. Mr Bas states that the amended signage plan indicates a wide variety of different signage, in particular 5 freestanding directional signs. Mr Bass acknowledges the purpose of the signs and that they have been reduced in height from 2.3 m to 1.8 m however questions the need for the McDonald's corporate branding on each of the signs and states that they should be deleted and replaced with line marking.

1. Further, the 9 m high pylons sign would be visible within the public domain of the Haberfield conservation area in contravention of cl 4.6(b). While accepting that the height of this sign complies with the numerical controls, such compliance must be balanced against the heritage considerations and in the opinion of Mr Bas, a 9 m high pylon sign is unacceptable in this instance. He suggests a 3 m high sign, re-scaled to be consistent with this height.

1. Ms Bindon states that the proposed signage must be considered in its context. The site is located along Parramatta Road being a major east-west arterial road framed by an eclectic mix of businesses and developments including service stations, retail shops, warehouses, furniture display stores, car showrooms and sales yards and residential flat buildings. In her opinion, the proposed development is not inconsistent with that character and is an improvement to the streetscape character compared to the majority of other commercial premises along Parramatta Road, in the vicinity of the site.

1. The pylon sign complies with the DCP 2007 requirement of being 9 m in height. This height is necessary to provide visibility by raising the sign above intervening buildings and structures for patrons, at both day and night when travelling at 60 kph along Parramatta Road. At this height, the pylon sign will not be highly visible from within the conservation area. A sign that is 3 m in height would render the sign virtually ineffectual.

1. The five freestanding directional signs are located at:

• twp signs in Dalhousie Street, 29 m and 35 m from Parramatta Road
• a sign at the drive-through entrance, approximately 13 m from Parramatta Road, and
• two signs in St Davids Road, 23 m and 30 m from Parramatta Road

1. Ms Bindon states this signage is directional only and is primarily intended to facilitate the safe and efficient movement and flow of vehicles to, from and within the site. To achieve these functions, the signs must be positioned in relevant and appropriate locations within the site. Reliance on line marketing, as suggested by Mr Bas, would reduce their effectiveness and do little to change the visual amenity of the site overall. Given the separation distance, the limited size of these signs, the location over three separate road frontages and building elevations and the length of each individual road frontages, it is considered that the proposed signage either individually or as a whole will not lead to "self-defeating clutter". On this basis, this signage is in accordance with DCP 2007.

1. On the principal sign, or the pylon sign, I note that the sign complies with the 9 m requirement and other relevant locational requirements in cl 4.5 (a). Given the 142.53 m frontage to Parramatta Road and the sign is not "substantially visible" from within the Haberfield conservation area to the extent that it would detract from its garden suburb values from the Haberfield conservation area, I agree with Ms Bindon that the pylon sign is acceptable.

1. I also agree with Mr Bindon on the five freestanding directional signs. These signs fall within the requirements for "secondary signs" in DCP 2007. DCP 2007 provides that other freestanding signs are "discouraged" because they lead to "self-defeating clutter" and that other signs should be located on the building. DCP 2007 does not seek to prohibit other freestanding signs beyond the principal sign except where they create "self-defeating clutter". I am not satisfied that the additional directional signs, given their number, design and location on a site of 2514 sq m located on Parramatta Road, could be regarded as "self-defeating clutter". I also do not accept that the inclusion of the McDonald's branding on the signs somehow increases their potential to be "self-defeating clutter".

Conditions of consent

1. The following conditions of consent are in dispute:

Condition A(2C) - Surveillance records

1. The council proposes the following condition:

(a) McDonald's shall keep a copy of the surveillance tapes/video in a secure place to ensure their integrity. The surveillance recording for the day shall be stored for a period of at least 1 year before the tape/video is re used. The surveillance recording must have the time and date automatically recorded.

(b) To the extent permitted by law, a copy of the surveillance tapes/video shall be provided to Ashfield Council at the end of each month. Each tape shall be sequentially numbered.

(c) McDonald's shall keep copies of all log books, incident reports and record of all complaints made by the public. These shall be made available to Ashfield Council on request.

(d) McDonald's shall provide to Ashfield Council and the residents of Haberfield the details of a dedicated staff which will manage and handle all complaints and incidents on site.

(e) Patrols by security guards should be undertaken every hour from 6.00 pm to 6.00 am 7 days a week and that Ashfield Park should also be patrolled. During the patrol all litter generated from McDonald's shall be removed by the security guards.

1. The applicant proposes that the condition be deleted as these matters are addressed in the Plan of Management.

1. I agree with the applicant's submission as it is unnecessary to have these matters addressed in both the conditions and the Plan of Management. The Plan of Management is enforceable through condition 2A however there are a number of differences between the parties on similar requirements. These differences are appropriately addressed in the following manner:

• the council requirement for storage of CCTV tapes is excessive for 12 months and should be limited to one month
• the CCTV tapes should be available for the council to review on 24 hour notice
• the Plan of Management adequately addresses the maintenance of the log book at cl 3.2.2, the reporting of incidents at cl 4.2 and the registering of complaints at cl 4.4. Patrols by security guards are addresses at cl 3.2 however cl 3.2.1 should be amended to replace the words "in the immediate locality of the site" with "in an area within 100 m of the site" and the 2 hour patrols are acceptable on Sunday to Thursday nights but 1 hour patrols should be undertaken on Friday and Saturday nights

Condition E(22) - Footpath, kerb and gutter reconstruction

1. The council proposes the following condition:

The public footpath and grass verge outside the site both in Dalhousie Street and St Davids Road and along the Parramatta Road boundary of the site shall be completely reconstructed to the requirements of Council's Engineering Services Department at the Applicant's expense. Along the Parramatta Road frontage of the site, there shall be a grass verge between the kerb and the footpath for the length of the frontage. The kerb and gutter outside the site must be reconstructed where it is damaged, again at the Applicant's expense .

This work shall be carried out at the Applicant's expense prior to the release of the Occupation Certificate .

1. The applicant proposes the following condition:

The public footpath and grass verge outside the site both in Dalhousie Street and St Davids Road and along the Parramatta Road boundary of the site shall be completely reconstructed to the requirements of Council's Engineering Services Department at the Applicant's expense. Along the Parramatta Road frontage of the site, there shall be a grass verge between the kerb and the footpath for the length of the frontage. The kerb and gutter outside the site must be reconstructed where it is damaged as a result of on-site construction, again at the Applicant's expense.

This work shall be carried out at the Applicant's expense prior to the release of the Occupation Certificate.

1. On this condition, I agree with the terms of the council's condition. Reconstruction of all damaged kerb and gutter along the Parramatta Road frontage should be undertaken and not limited to kerb and gutter damaged by on-site construction.

Condition H(5 )- Retain amenity

1. The council proposes the following condition:

The approved uses are to be conducted at all times without unreasonable interference to the amenity of the area. Effective measures must be taken at all times to prevent any nuisance being caused by noise, vibrations, smells, fumes, dust, smoke, waste water products and the like.

The use and occupation of the premises, including all plant and equipment installed thereon, shall not give rise to any offensive noise or vibration from the premises within the meaning of the Protection of the Environment Operations Act 1997.

1. The applicant proposes that the condition be deleted because it is unclear and imprecise in relation to the words "interference with the amenity of the area". The amenity impacts have been fully addressed at the hearing and there were no impacts that warranted the refusal of the application.

1. I agree with the applicant's submission and delete the condition.

Plan of Management

1. The directions required amendments to the Plan of Management to include more specific details on the numbers of security personnel, the times that they operate and their specific duties. The amended Plan of Management includes the additional details on Operation of Security Personnel at cl 3.2.1, Duties at cl 3.2.2, Log book entries at cl 3.2.3 and Code of Conduct for Security Personnel at cl 3.2.4.

1. I am satisfied that the additional details adequately address the previous deficiencies and with the amendments identified in par 91.

Orders

1. The orders the Court are:

(1)   The appeal is upheld.

(2)   Development Application No 2009/157 ) for the demolition of all existing structures and the construction of a refreshment room/drive-in take away establishment with associated car parking and signage to be operated by McDonalds at 141 Parramatta Road, Haberfield is approved subject to the conditions in Annexure A.

(3)   The exhibits are returned with the exception of exhibits 12, C, M and N.

(4)   Costs are reserved.

G T Brown

Commissioner of the Court

Decision last updated: 02 June 2011