McDonalds Australia Limited v Orange City Council

Case •

[2013] NSWLEC 1211

•

05 November 2013

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: McDonalds Australia Limited v Orange City Council [2013] NSWLEC 1211
Hearing dates:29-30 October 2013
Decision date: 05 November 2013
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal upheld

Catchwords: Development Application: Traffic and parking, compliance with planning controls, amenity impacts, hours of operation.
Legislation Cited: Orange Local Environmental Plan 2011;
Environmental Planning and Assessment Act 1979;
Standard Instrument (Local Environmental Plans) Order 2006;
Texts Cited: Orange Development Control Plan 2004;
Draft Orange LEP 2010 Planning Strategy
Category:Principal judgment
Parties:

McDonalds Australia Limited (Applicant)

Orange City Council (Respondent)
Representation:

Counsel
Mr A Galasso SC (Applicant)

Mr M Seymour (Respondent)
Solicitors
Ms F Rourke
Norton Rose Fulbright (Applicant)

Mr P Crennan
Crennan Legal
File Number(s):10401 of 2013

Judgment

  1. McDonalds Australia Limited lodged Development Application No. 408/2012 with Orange City Council on 28 November 2012 seeking consent to construct a food and drink premises in Farrell Road, North Orange. The council has refused consent and McDonalds is appealing that decision.

  1. The main issues in the case relate to traffic and parking, amenity, compliance with the council's planning controls and hours of operation.

The site and its context

  1. The site is Lot 301 in Deposited Plan 1179160 and has frontage to Farrell Road and The Northern Distributor Road (NDR), a road that provides a bypass route around the Orange commercial centre. The intersection of Farrell Road and the NDR is signalised. Farrell Road forms the northern and western boundaries of the site with the NDR to the south and a 10m wide public reserve to the east.

  1. It is an irregular shaped allotment with an area of 3867sqm and a gentle slope to the southeast away from Farrell Road. The NDR contains a drainage swale that runs adjacent to the southern site boundary and separates the vehicular carriageway from the site. A 10m wide easement for services runs adjacent to the eastern boundary.

  1. The intersection of Farrell Road and Telopea Way is to the immediate north-west of the site. A give-way sign that gives priority to vehicles using Farrell Road to enter and exit the NDR currently controls that intersection.

  1. To the north-west of the site is a local shopping centre that includes a Woolworths supermarket and specialty shops with its access off Telopea Way. Land to the north of the site on the opposite side of Farrell Road is currently vacant and zoned R1 - General Residential. A childcare centre is under construction adjacent to the vacant allotment opposite the easement portion of the site and the adjacent public reserve with an existing childcare centre to the immediate east of that which is under construction.

  1. Development to the east of the public reserve comprises large lot housing with an acoustic wall constructed on the rear boundaries of those allotments adjacent to the NDR. Land further to the north and east comprises recently constructed detached dwelling houses with the area continuing to be developed for residential purposes.

  1. The Waratahs sporting complex is located further north along Telopea Way and incorporates a number of playing fields and a clubhouse.

Background and the proposal

  1. The application was lodged with the council in November 2012 and sought consent to construct a McDonalds operation on the site comprising a drive-through and eat-in restaurant with associated carparking, coach parking and site landscaping. Seating for 98 persons, loading dock, 43 carparking spaces and associated back-of-house facilities, plant rooms and advertising signage are proposed. Access to the site is proposed from Farrell Road at two locations with separate coach and carpark access.

  1. The proposed building would be erected in the eastern portion of the site clear of the easement with the drive-through area operating in a clockwise direction around the northern, eastern and southern sides of the building. The building would be erected a minimum distance of 7m from the NDR and a minimum distance of approximately 12m from the adjacent public reserve to the east. The setbacks vary as a consequence of the building being sited on an angle to all boundaries.

  1. Orange City Council initially deferred consideration of the application in April 2013 pending further review of traffic and access arrangement and in particular, an egress directly onto the NDR. The traffic review has continued since this date and is discussed below however the council ultimately refused consent to the application at a meeting held on 20 August 2013 with the formal notice of determination issued on 2 September 2013. The reasons for refusal form the basis of the contentions in this case and are detailed in the Statement of Facts and Contentions, Exhibit 7.

The planning controls

  1. The site is zoned SP3 - Tourist under Orange Local Environmental Plan 2011 which commenced on 24 February 2012. Clause 2.3 requires at (2):

The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

  1. The objectives of the SP3 Zone are:

· To provide for a variety of tourist-oriented development and related uses.
· To cater for the needs of the travelling public.

  1. The only uses permitted within the SP3 Zone are Environmental protection works (without consent) and Community facilities; Environmental facilities; Food and drink premises; Function centres; Highway service centres; Information and education facilities; Neighbourhood shops; Passenger transport facilities; Recreation areas; Recreation facilities (indoor); Roads; Signage; Tourist and visitor accommodation (with consent).

  1. The proposed use, being food and drink premises, is permitted with consent.

  1. Orange Development Control Plan 2004 (DCP) applies to the site and contains general considerations and planning outcomes for development to which LEP2011 applies. Specific provisions relevant to the application are contained in Part 3 (General Considerations); Part 10 (Special Uses and Roads Zones); Part 14 (Advertising) and 15 (Car Parking).

The issues

  1. The contentions in the case can be summarised as follows:

  • Suitability of the site for the proposed development;
  • Traffic safety and parking;
  • Amenity impacts;
  • Non-compliance with planning controls.

The Farrell Road/Telopea Way intersection

  1. It is apparent from the evidence provided that the operation of the intersection of Farrell Road and Telopea Way, as constructed and the performance of the signalised intersection of Farrell Road and the NDR, particularly since the opening of the shopping centre and at peak times when the sporting club are used, has created traffic problems in the locality. This is evidenced through a memo dated 10 January 2012 between council officers contained in the Bundle of Documents, Exhibit C. This states:

Prior to any proposal on Lot 301 Farrell Road being received by Council, in September 2012 Council wrote to the RMS requesting a review of the traffic signals at the intersection of the NDR and Farrell Road and that review is ongoing.

  1. Upon receipt of the application, the council commissioned a traffic assessment of the intersection. That review and investigation of the manner in which the performance of the intersection and the adjacent Farrell Road/NDR intersection has continued, independent of the council's assessment of the subject development application.

  1. On 4 June 2013, the council's Infrastructure Policy Committee considered a report on North Orange Traffic Management Issues. That report is also contained in Exhibit C. In regard to the intersections, the council considered a number of options and resolved to install traffic signals at the intersection of Farrell Road and Telopea Way, which are designed to operate in conjunction with existing traffic signals at the Farrell Road/NDR intersection, subject to the formal approval by Roads and Maritime Services (RMS).

  1. As a result of this council decision and, in an attempt to resolve the council's concerns in relation to the traffic issues, McDonalds, in correspondence to the council dated 7 June 2013, has proposed to enter into a Voluntary Planning Agreement (VPA) with the council to part fund the signalisation of the intersection and to carry out kerb and guttering works. The council has exhibited the VPA in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and resolved on 15 October 2013 as follows:

To enter into the VPA with McDonalds as exhibited relating to their (sic) development on Farrell Road if the Development Application is approved by the Land and Environment Court.

The SP3 Tourist zoning

  1. Orange Local Environmental Plan 2011 (LEP) was prepared in accordance with the Standard Instrument (Local Environmental Plans) Order 2006. Prior to the making of this plan, the site was within a rural residential zone. The council had undertaken a number of strategic planning studies to inform the content of the LEP, the most recent being Draft Orange LEP 2010 Planning Strategy. The site was the subject of specific consideration under that strategy document with another site at the intersection of the NDR and Leeds Parade. In Section 8.5.2 the following consideration of appropriate land uses for those sites was made:

Two sites have been identified along the NDR to provide services and amenities to cater for through traffic. Importantly this will allow Orange to continue to derive economic benefits from our strategic location in the regional road network. The sites selected are at the cross roads with Leeds Way intersection the latter chosen due to the proximity of the North Orange shopping centre at 9 Telopea Way. These sites are ideally situated to cater for both passing traffic as well as local traffic between the City and the university campus as well as between the City and the Waratah estate urban area. By enabling highway service centres, comprising service station, restaurants and some accommodation facilities, these sites will cater for both passing trade as well as significant internal trade.

  1. Following exhibition of the draft local environmental plan, the council considered a number of submissions it had received in response to the proposal to rezone the site from residential to SP3. Those submissions objected to the rezoning on the basis of traffic volumes and had suggested a more appropriate zone be a RE1 Public Recreation Zone. In its analysis of the matter the council resolved to retain the SP3 zone. The Section 68 Report considered by the council on 27 April 2011 stated, in relation to the site:

The site is a triangular lot adjoining the Northern Distributor Road at the Farrell Road intersection and is also site 27 of the proposed reclassification sites. The current zoning of the site is 1(c) Rural Residential, however the narrow dimensions and proximity to the NDR, requiring a 10m setback are seen to preclude any effective residential use of the land. While the constraints of the site are acknowledged it is considered that proximity to the NDR should also preclude a recreation zoning due to limited recreational amenity resulting from traffic noise and potential public safety concerns from proximity to a 70kph road. While the development potential for Tourist purposes is constrained such a use is considered to be more appropriate for such an exposed site.

The evidence

  1. The hearing commenced on site with evidence heard from a number of objectors to the application. The issues raised are as follows:

  • Traffic issues, existing conditions, particularly at the intersection of Telopea Way and Farrell Road and the consequential impacts at the signals at Farrell Road and the NDR where there are constant delays and queuing making the intersection unsafe and also the intersection of Farrell Road and Clergate Road which may be used as an alternate access. Development would exacerbate these problems which are a safety concern;
  • 24 hour use would create traffic along Farrell Road affecting amenity;
  • use not appropriate in residential area, particularly near 1 acre allotments;
  • proximity to childcare centre is inappropriate;
  • population in the area is growing adding to the traffic as will the expansion of the playing fields;
  • Location of main entry driveway will obstruct traffic flow;
  • Lack of bicycle parking;
  • Design of the development inappropriate in terms of traffic flow;
  • There are other more appropriate sites available;

  1. Expert town planning evidence was heard from Mr R Player for the applicant. The council did not present any planning evidence.

  1. In preparing his expert report, Mr Player had regard to the report of the council's officer, which had recommended approval of the application and a peer review of the application undertaken by CBRE Planning Consultants, also recommending that consent be granted. The council commissioned that review because it currently owns the site. Mr Player separately considered all of the contentions in the case, relevant to town planning issues.

  1. In relation to the contention that the application is inconsistent with the residential character of the locality, Mr Player says that the contention is fundamentally wrong on sound planning principles. He notes the site is zoned SP3 - Tourist, the objectives of the zone are specific and are to provide for a variety of tourist-oriented development and related uses and to cater for the needs of the travelling public. He says the proposal clearly meets these objectives, as it is a tourist-oriented development that will cater for the needs of the travelling public. He also cites the range of uses permitted in the SP3 zone noting that all forms of residential development are prohibited, which leads him to the conclusion that any future development of the site under the SP3 zone would inevitably have a non-residential character.

  1. Mr Player considers the key consideration is not so much the existing character but rather the emerging and desired future character of the North Orange Locality within which the proposed development is sited. He states:

Given this context, it is not surprising that the current land use pattern in the North Orange locality is no longer rural/residential properties and low density housing but rather in recent years it has emerged as having a mixed land use character and streetscape with the new North Orange Woolworths Shopping Centre in Telopea Way which is directly to the north-west of the site; two child care centres in Farrell Road adjacent to the site to the north-east; and the Waratah Orange Sports Club and Sports fields to the north-west of the site;......This existing and emerging mixed commercial, residential, community/open space land use character within the vicinity of the site is consistent with the current land use zones under Orange LEP 2011 which apply to this part of the North Orange locality.
Accordingly, in my opinion the construction of a McDonald's operation and drive thru proposal at the site is not only a permissible development and consistent with the objectives of the SP3 Zone applying to the land, but is also consistent with the emerging and desired future mixed land use character of the locality.

  1. In relation to amenity impacts, Mr Player reiterates his opinion that the development is consistent with the character of the locality. With regard to the impacts of the proposed 24-hour operation, he says the potential impacts would be in respect to any excessive noise disturbance, lighting glare, visual privacy and/or odour impacts, particularly during the late evening and early morning periods of the day. He relies on the acoustic reports, odour impact assessment report and details of illumination submitted with the application, the council's assessment of these reports that find the impacts to be acceptable subject to imposition of conditions and the fact that the site does not directly adjoin any residential property.

  1. The parties agree that it is appropriate to provide a trial period to assess the impacts of the development should consent be granted. The council says the base trading hours should be limited to hours of operation from 6am to midnight, consistent with the limitations imposed on the consent for the shopping centre. That consent limits the operation of the development from 7am to midnight with loading docks operated from 6am to midnight. The applicant is requesting the hours be from 5am to midnight so as to cater for through traffic and tradesmen.

  1. Mr Player has also considered the contention that the development is inconsistent with the council's planning controls. In particular, the encroachment into the 10m setback to the NDR and the visual impact of the development in this location. As stated above, he considers the design of the development to be appropriate and consistent with the existing and desired mixed land use character as anticipated under the SP3 zoning. He also has regard to the planning outcomes for development near major roads as detailed in Part 10.3-1 of the DCP. These state:

1 Development on land fronting and visible from a major road or distributor road provides for quality design on the highway and/or distributor road through landscaping, building setbacks
façade design, external colours and materials and siting.
2 Residential buildings address potential noise impacts in design from adjacent main roads.
3 Direct access to major roads is limited and is constructed to the requirements of the relevant roads authority.
4 Residential lots are set back from planned distributor roads to provide a reasonable separation between future roads and residential land.
5 Where direct access to a main or arterial road is denied by the Roads Authority and comprises residential subdivision, any rear or side fences are set back and screened with dense landscaping.
6 Commercial buildings adjoining a distributor road are setback from the property boundary by at least 10m.
7 Lighting and signage visible from a distributor road is not animated and is designed so as not to distract motorists beyond glance recognition.

  1. Mr Player has prepared a plan that indicates the extent of encroachment into the 10m setback. It is common ground that a minimum setback of 7m is provided and that the area of the building which encroaches within the 10m setback represents approximately 13.5% of the length of the southern boundary, affects only a small section of the frontage of the land and the section of the building is single storey. Mr Player says:

.... a motorist travelling along the NDR towards the site in a westerly direction does not have a clear view of the site for the proposal until close (i.e. less than 200m) from to (sic) the signalised intersection of the NDR/Telopea Way/Farrell Road due to the existing landscaped embankment and 2.4m high acoustic timber fence along the northern verge of the NDR. Indeed this existing acoustic fence with screen planting, extends for at least 500m along the northern verge of the NDR and is visually prominent in the streetscape.
Approaching the site along the NDR in an easterly direction the McDonald's operation and drive thru proposal will be more visible as there is no elevated landscaped embankment, no any acoustic fence. However, from this approach it is the North Orange Woolworths Shopping Centre which dominates the streetscape. Whist the North Orange Woolworths shopping centre building complies with the 10 meter building setback line to the southern site boundary of the NDR, the shopping centre building is essentially the equivalent of a 2 storey high wall with minimal architectural treatment to the southern façade and with no effective tree planting in what would appear to be a drainage swale.

  1. Mr Player concludes that he development will complement and visually enhance the mixed land use character and streetscape along this section of the NDR and the minor departure from the 10m building setback requirement is well founded in the circumstances of this case.

  1. Mr Player agrees that the height of the proposed blade wall advertising sign within the 10m setback is too high and should be reduced to the same 5.5m height as the parapet of the proposed building and that additional screen planting to all of the site boundaries and within the road reserve fronting the NDR and Farrell Road including the provision of a landscaped screen to the acoustic walls is appropriate. Agreed conditions of consent have been prepared to reflect this recommendation.

  1. Mr T Rogers (applicant) and Mr C McLaren (council) presented traffic and parking evidence. Their initial Joint Report, Exhibit 3, addressed contentions 1-3 and 7, those being the impacts of the development on the adjoining road network, suitability of access arrangements and parking provision. As a result of the joint conferencing, amended plans were prepared and provided as Annexure C to the report. That plan provides for the western driveway to be restricted to left-in/left-out through the provision of a median in Farrell Road, the main site access being to the east of the site adjacent to the public reserve, the deletion of coach parking and the provision of an addition four parking spaces adjacent to the main entrance and the designation of those spaces and the four spaces opposite the eastern entry driveway as staff parking spaces.

  1. Both experts agree that access to or from the NDR is inappropriate.

  1. In response to a request of the Court, the experts provided further details and plans of the design of the proposed signalised intersection of Farrell Road and Telopea Way and its operation with the NDR intersection and the proposed entry/exit driveway to service the McDonalds operation. That detail, which includes a review of the modelling undertaken to prepare the design, is included in a Supplementary Joint Statement, Exhibit 11. As the result of that further report, the experts agree that:

  • The proposed traffic signal arrangement being considered by RMS is appropriate.
  • The proposed signal design will improve traffic flow efficiency, reduce localised congestion and queuing that is currently experienced at peak times and improve safety for pedestrians (including the children and the elderly) crossing Farrell Road and Telopea Way.
  • The operation of the proposed McDonalds and childcare centre expansion driveways are workable in practice and should not give rise to adverse congestion/safety conditions.

  1. As a result of the further consideration of the signalisation design and the amended layout, both experts agree that the concerns in relation to traffic safety would be resolved. The plans provide parking in accordance with the requirements of the DCP. Mr McLaren says that the location of the main entry driveway as now proposed to the east is appropriate and provides a better outcome as it internalises the queuing area. Mr Rogers agrees that it is an optimal result in terms of external impact however did not consider the internal layout was as good. He did however consider it was acceptable.

Conclusion and findings

  1. It is clear from the evidence provided that there is an existing problem with traffic flow in the vicinity of the site. The council has resolved to address this issue regardless of the outcome of this appeal, has advanced the design of the intersection, is seeking the necessary approval of the RMS and has allocated the required funding from its budget. The costs associated with the works are to be recouped from developer contributions. In this regard, the VPA proposed by McDonalds will assist in defraying the costs of the works.

  1. The design and traffic modelling works undertaken have factored in the growth expected in the North Orange area and included the traffic generated by the proposed development. When the signalisation works are completed, the performance of the Farrell Road/Telopea Way intersection will improve from the current Level of Service F to Level of Service C, that is from an unsatisfactory to a satisfactory situation. This work will also address the primary concern raised by the residents.

  1. Having regard to the evidence and the benefit of the site view, I am satisfied that the amended layout as proposed by the traffic experts and reflected in the final conditions is appropriate. Both traffic experts agree that the design of the intersection will resolve all of the safety concerns including any that may arise as a result of the development.

  1. I accept the evidence of Mr Player that the development does not have to be consistent with the residential character of the area. That is because the area is a mixed-use area and, I have specific regard to the SP3 zoning of the site. The council, in resolving to make its LEP, undertook extensive planning studies and, after exhibition of the draft plan, further considered the appropriateness of that zoning. Having regard to the strategic background to the zoning and, in particular, the objectives of the SP3 zone, I am satisfied that the use of the land for food and drink premises is appropriate and, that the conditions of consent proposed will ensure that the potential amenity impacts are minimised.

  1. The proposed building is single storey and occupies a small proportion of the site and whilst its character is of a commercial nature, its size is consistent with the scale of buildings in the immediate vicinity of the site.

  1. The evidence shows that the potential amenity impacts can be addressed through conditions. It is however appropriate, as has been common practice in this Court to impose a trial period on the hours of operation. This is because access to the site from the east is through a residential area and, according to the acoustic reports, the background noise levels in this area are very low. Accordingly, any potential change to traffic in the area should be avoided and therefore the base trading hours should be from 6am to midnight, consistent with the hours imposed through the consent for the shopping centre development. These hours should also include any deliveries to the site and the condition regarding hours should be amended accordingly.

  1. I also concur with Mr Player's evidence that, in the circumstances of the case, the variation to the DCP setback control is appropriate. The objectives of the control will be met through the proposed conditions that upgrade the extent of landscaping. The extent of variation is minor, a single storey building element and the siting of the building as proposed ensures an appropriate level of articulation. There is no dispute between the parties that the design of the façade or the proposed materials or external colours is inappropriate. The existing acoustic wall to the east of the site limits the visibility of the structure from the NDR. The impact when viewed from the west is not of sufficient consequence to refuse the application.

  1. In view of the above findings, I am satisfied that the development, subject to the conditions proposed, should be approved. These conditions include the applicant entering into the VPA to part fund the costs of signalising the Farrell Road/Telopea Way intersection.

  1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 408/2012 for the construction of a food and drink premises at Lot 301 in Deposited Plan 1179160 Farrell Road, North Orange is approved subject to the conditions in Annexure A.

(3)   The exhibits, other than exhibits A, B, F and 7, may be returned.

___________________

Sue Morris

Commissioner of the Court

ANNEXURE A

**********

Amendments

15 November 2013 - 'this trial period' changed to 'the base trading hours'


Amended paragraphs: 30 and 44

Decision last updated: 15 November 2013

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