Paynter Dixon Constructions Pty Ltd v Fairfield City Council
[2011] NSWLEC 127
•27 July 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127 Hearing dates: 7, 8 February 2011 Decision date: 27 July 2011 Jurisdiction: Class 1 Before: Craig J Decision: 1. Appeal dismissed.
2. Development Application 502.1/2009 lodged with the Council on 2 June 2009 is refused.
3. Unless either party applies within 7 days of this order, there will be no order for costs.
4. Exhibits may be returned.
Catchwords: ENVIRONMENT & PLANNING - appeal from deemed refusal of development consent - permissibility of development - whether development for the purpose of a "motel" - application of proper characterisation principles - practical and common sense approach - development prohibited - whether development permissible on its merits - development inconsistent with zone objectives - consideration of development condition in relation to access to site - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Rule 3.7
Registered Clubs Act 1976 (NSW)
Roads Act 1993Cases Cited: Abret Pty Ltd v Wingecaribee Shire Council [2011] NSWCA 107
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Chamwell v Strathfield City Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529
Swansea RSL Club and Rosecorp Pty Ltd v Council of the City of Lake Macquarie [2005] NSWLEC 755
Woollahra Municipal Council v Minister for the Environment (191) 23 NSWLR 710Category: Principal judgment Parties: Paynter Dixon Constructions Pty Ltd (Applicant)
Fairfield City Council (Respondent)Representation: Mr J E Robson SC (Applicant)
Mr A E Galasso SC (Respondent)
Norton Rose Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 10547 of 2010
Judgment
The Leo McCarthy Memorial RSL Club ( the Club or the applicant ) at Smithfield has operated on its present site for a number of years. It has a membership of 20,000 and is registered under the provisions of the Registered Clubs Act 1976.
Paynter Dixon Constructions Pty Ltd was engaged by the Club to prepare a development application for a new accommodation facility and elevated car parking structure to be located on the site of the Club's present premises. The development application was lodged with Fairfield City Council ( the Council ) on 2 June 2009. It was assigned the identifying number DA 502.1/2009. The Council did not determine that development application in a timely manner and in reliance upon s 82 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) Paynter Dixon Constructions Pty Ltd has appealed to this Court pursuant to s 97 of the EPA Act on behalf of the Club. The Council opposes the grant of development consent.
There are two principal issues raised in the appeal. They are -
(i) whether the development is permissible under the provisions of Fairfield Local Environmental Plan 1994 ( the LEP ), and
(ii) whether, assuming the development is permissible, consent should be granted as a matter of merit.
The first issue, namely that of permissibility, turns upon the correct categorisation of the development presently proposed. If that which is proposed is correctly categorised as a "motel" then it is prohibited development, with the result that consent must be refused: s 76B of the EPA Act.
Assuming the proposed development is permissible, there are two matters to be considered when determining whether, on merit, development consent should be granted. The first, and by far the more significant, is the impact of the proposed car parking structure upon adjoining residential premises. The second matter required to be considered relates to the provision of vehicular access to the Site from Smithfield Road.
For the reasons that follow, I have determined that the proposed accommodation facility should properly be categorised as a "motel" within the meaning of the LEP and is therefore prohibited development. Even if I be wrong in this determination, I have also determined that the impact of the proposed car parking structure upon the adjoining residential properties is such that development consent should, on merit, be refused.
I acknowledge, with gratitude, the assistance of Commissioner Brown who sat with me for the hearing of this appeal.
The Site
The Club is situated at 88 - 102 Smithfield Road, Smithfield ( the Site ). Smithfield Road forms part of the arterial road known as the Cumberland Highway. The Site has an area of about 2.1 hectares and is triangular in shape. It is bounded on the south-east by Smithfield Road, on the north-east by Neville Street and on the west it shares a common boundary with two residential properties, each with a single dwelling erected on it, and known as 31 Neville Street and 148 Brennan respectively.
The existing Club building is located close to the Smithfield Road frontage of the Site. Generally to the west of the Club building the Site is paved and provides at-grade parking for about 397 motor vehicles. Access to this parking area is gained from Neville Street. Apart from the large paved area of the Site used for car parking, there is a disused bowling green to the south-west of the club building located towards the Smithfield Road frontage to the Site. Across the Site there is some sparse, scattered vegetation to which neither party assigned any particular significance.
Land use in the immediate vicinity of the Site is predominately residential although it is mixed with church, school and open space uses. Nearby is the Smithfield town centre. Opposite to the Site both in Neville Street and in Smithfield Road single dwelling residential development appears to predominate.
The Site and its environs were inspected by Commissioner Brown and me in company with the legal representatives of the parties and the experts retained by them. Evidence was also taken on the Site from local residents.
The development application
Buildings and works
The principal element of the development proposed by the Club is a new four storey building separated from the existing Club building and located towards the south-western end of the Site. It is proposed to have a footprint area of approximately 1325 m and a gross floor area of about 4,390 m . The building will have a height of about 12.8m above ground level on its western elevation, with a setback from the western boundary of about 9.4m. It is intended to be constructed in a u-shape around a central foyer area that passes through the centre of the building.
In addition to the entry foyer, at ground level there is proposed to be a reception area, administration offices, staff room and staff amenities, all having an area of about 450 m . The remainder of the area at this level is intended for undercover car parking provided by the building above. Adjacent to the front foyer and proximate to the area designated for reception is an area described as a vehicular set-down zone.
The upper three levels of the building are designed to provide 133 rooms. Each room is approximately 6.6m x 4.2m. The typical room layout plan indicates that each room will have space for both a double bed, single bed, bench and cupboard as well as an en-suite bathroom. There is a pedestrian link shown between the proposed building and the existing Club building.
As the proposed accommodation building is to be erected over a portion of the existing car parking area, a new car parking structure is also proposed as part of the development application. It will involve the construction of an elevated car parking deck over the existing at-grade parking area with associated access ramps. The elevated deck together with its side elements will be at a height of about 4.6m above ground level on the western side of the Site and set back 2.4m from the western boundary. It will have a length of about 105m running parallel to that western boundary. The erection of this structure will increase the total car parking capacity of the Site to 466 spaces.
The third element of the proposed development relates to the provision of vehicular access to the Site. It is proposed that a new entry access point be provided from Smithfield Road. Associated with provision of this access point would be the construction of a deceleration lane within the road reserve.
Intended operation of the accommodation facility
The manner in which the accommodation facility will be operated is described both in the Statement of Environmental Effects ( the SEE ) accompanying the development application and a Plan of Management tendered at the hearing. The SEE states that (p 6):
"The use of the accommodation building will be closely linked with the Club's dining, conference and function facilities, particularly as no separate provision is proposed for the service of meals to accommodation guests."
The Plan of Management describes the accommodation facility as being conducted as an "integrated operation" with the Club. It states:
" 4. Integrated operation
4.1 The accommodation facilities will only be available to Members of the Club. Non-members wishing to use the proposed accommodation will be required to obtain temporary membership of the club, subject to the eligibility criteria for temporary membership provided under the Registered Clubs Act 1976 (NSW) and the rules of the Club. Accordingly, no person may use the accommodation facilities without being a Member.
4.2 Accommodation facilities will adjoin the existing Club and be physically linked to the Club by a covered pedestrian pathway."
Further elaboration was provided by Mr George, the consultant planner retained by the Club. He explained that staff used to operate the accommodation facility would be employees of the Club. Further, the reception area for receiving those wishing to use the accommodation facility would, during "Club" operating hours, be within the existing Club premises. After-hours reception for the facility would be undertaken within the designated reception area on the ground floor of the new building. Telephone reception after hours would also be managed from the latter reception area, presumably by staff employed for that purpose.
Conformably with the provisions of the Registered Clubs Act, the Rules of the Club relevantly provide for membership in the following terms:
" Membership - Eligibility
6. No person under the age of eighteen (18) years shall be admitted as a member of the Club.
7. (a) ...
(e) Temporary members shall be:
(i) any member of another registered club with similar objects to those of this club;
(ii) those persons who being full members of another registered club who at the invitation of the governing body or a full member of this club attends on any day for the purpose of participating in an organised sport or competition to be conducted by this Club on that day;
(iii) any person whose ordinary place of residence is not within 5km of this club."
Section 30B of the Registered Clubs Act requires that, ordinarily, the temporary membership of a club is limited to a maximum of 7 consecutive days.
It will be noted that membership of the Club is restricted to persons aged 18 years and over. However, just as a person under the age of 18 years may enter the Club's dining area or other non-restricted area in company with a member, it was not suggested that a person under the age of 18 years could not accompany a temporary member staying in the new accommodation facility.
Planning controls
Development upon the Site is relevantly controlled by the provisions of the LEP. Pursuant to its provisions, the Site is zoned "2(a1) - Residential A1". The development control table for the LEP is contained in cl 8 of that instrument. Relevantly, by operation of that clause, any development upon the Site is permissible with consent of the Council unless it is comprehended by one of the nominated categories of development identified in paragraph 4 of the development control table as being prohibited. Paragraph 4 of the table prohibits development for the purpose of "motels" (among other nominated land uses that are not presently relevant).
The word "motel" is defined in the Dictionary to the LEP as follows:
" Motel means a building or place used for the temporary or short-term accommodation of travellers or the general public, whether or not a refreshment room is included, but does not include a hotel."
Also relevant to be noticed is the definition of "club" contained in the Dictionary:
" Club means a building or place used for the gathering of persons for social, literary, political, sporting, athletic or other lawful purposes and includes a club registered or intended to be registered under the Registered Clubs Act 1976."
I refer to this definition by reason of the submissions of the parties to which I will shortly turn. However, given the structure of the development control table and having regard to the basis upon which the matter was argued before me, it is only a determination that the proposed development be categorised as a "motel" that will sound in prohibition. It was not argued that any of the other categories of prohibited development nominated in the table were applicable to the proposed development.
Characterisation of the development
The Club submits that its proposed accommodation facility should not be categorised as a "motel" and is therefore permissible with development. It contends that its development is for the purpose of a "club" within the meaning of the LEP, either because it is club development in itself or is ancillary to the use of land for the purpose of a club. Alternatively, it is contended that the purpose of its development should be characterised as "club related accommodation". As such, it is within the innominate category of development referred to in the development control table for the Residential 2(a1) zone and is thereby permissible.
The principles by which development is to be categorised are not in dispute between the parties. The law has, in recent years, been summarised by Preston CJ in Chamwell v Strathfield City Council [2007] NSWLEC 114; (2007) 151 LGERA 400. In essence, it is necessary to determine the purpose of the proposed land use, that purpose being informed by determining the end to which the land is to be used should the proposed development proceed ( Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 535).
In support of its submissions directed to permissibility, the applicant points to the integrated operation of the accommodation facility with the activities and facilities presently offered by the Club. It identifies
(i) the single ownership of the Site on which both major buildings and the activities within them will be conducted;
(ii) the employment by the Club of those involved in the management and operation of the facility on behalf of the Club;
(iii) the location of the reception facility within the existing Club building, at least during Club trading hours;
(iv) the intention that the accommodation facility be included within the premises to be licensed under the Registered Clubs Act ;
(v) the restriction of use of the accommodation facility to club members, including temporary club members; and
(vi) the availability to guests staying in the accommodation facility of the dining, conference and function facilities available within the existing club building
as all being relevant to the compendious description of all development, present and proposed, as use for the purpose of a club.
In essence, these same matters are relied upon by the applicant to contend that while the use of the new building is to provide temporary or short-term accommodation, its purpose is subordinate to that of the Club. As an ancillary facility, the "club" categorisation remains apposite.
The applicant seeks support for its contention that the accommodation facility may be regarded as part of the Club, when included in the premises registered under the Registered Clubs Act , in observations made by Talbot J in Swansea RSL Club and Rosecorp Pty Ltd v Council of the City of Lake Macquarie [2005] NSWLEC 755. One of the issues that his Honour was asked to determine in that case was whether a building containing a number of residential units was ancillary to the use of land for the purpose of a club registered under the Registered Clubs Act . Ultimately, his Honour did not determine the issue. However, having observed that the provision of living accommodation appeared to be "antipathetic to the manner in which it is expected a club will be conducted" (at [61]), his Honour continued:
"[62] Nevertheless, I am unable to fathom any reason which would prohibit the club from obtaining a certificate of registration in respect of the whole development. Ultimately it may not be successful in obtaining a certificate of registration but I am not persuaded that there is an underlying impediment, statutory or otherwise, to the making of an application to the Licensing Court supported by the appropriate plans on the basis that the whole of the premises are registered as a club. I find myself in the difficult position of not being able to totally discount the prospect that registration could be obtained."
I am not convinced that the observations made by Talbot J necessarily support the applicant's submissions. The capacity to have the premises registered under the Registered Clubs Act , should that eventuate, may be one thing but it does not determine the purpose of use under planning law. The fact that there may be some synergy, at least at the management level, between the Club's present operations and its intended accommodation facility, coupled with registration under the Registered Clubs Act , does not determine the purpose of use of the proposed facility under the LEP, the statutory force of which is founded in the EPA Act. In that regard, the observations of Gleeson CJ in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 are apposite. There, his Honour said (at 714):
"In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the person involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act."
In support of its alternate submission that the purpose of the proposed development falls into an innominate category of development that is permissible according to the development control table and described as "club related accommodation", reference is made to the decision of the Court of Appeal in Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218. In that case, the Court of Appeal determined that a facility to establish a teaching hospital within the medical precinct of the University of Sydney campus should properly be categorised as "teaching hospital" rather than for the purpose of a "hospital" itself or for the purpose of "education". The Court there determined that the application involved two purposes that were so inextricably bound that the single purpose of "teaching hospital" was the appropriate categorisation. By analogy, the applicant submitted that the intermingling of the present use of the Club Site for its Club use and the proposed additional use for accommodation resulted in a separate or "hybrid" use for the purpose of club related accommodation.
I have concluded that the applicant's submissions should not be accepted. There are a number of reasons for this conclusion. First, the scale of the proposed accommodation facility itself speaks against the applicant's contentions. A building of four storeys having the layout and dimensions earlier described and providing temporary or short-term accommodation in 133 rooms does, by its very description, meet the definition of "motel" as contained in the LEP. The fact that the building will be located on the same site as the Club building does not detract from this conclusion. Planning controls imposed in an instrument made under the provisions of the EPA Act are directed to land use, not land title.
Further, I do not find as persuasive the argument directed to limitation of use of the accommodation facility to club members. It can reasonably be concluded that a high percentage of those who would seek to use the new facility for overnight or short-term stays are likely to reside more than five kilometres from the Site. Such persons, if not already club members, are unlikely to be refused temporary club membership. They would therefore be entitled to use the accommodation facility.
There was no evidence to suggest that club members, temporary or permanent, would be entitled to enjoy the accommodation facility without paying so to do. The privilege of membership did not carry with it the right to use the facility without charge. I infer that the majority of those likely to use the accommodation facility would be persons seeking temporary membership for the purpose of so doing and from whom an appropriate fee would be received.
The fact that the Club will employ the staff responsible for management of the facility does not alter the purpose for which the facility is used. Employment by a single employer does not determine the planning purpose of diverse activities in which that single employer may be engaged. A single employer who uses a building for the purpose of a warehouse and, either in a section of that building or in an adjacent building, operates a retail shop does not, by reason of being a single entity, deny the categorisation of his business as having two planning purposes.
Likewise, the fact that for the greater part of each day the reception area within the existing club building would also provide the reception service for the accommodation facility does not impinge upon the purpose for which the latter facility is used. It must be remembered that the accommodation building is configured with a separate reception area which, according to the Club's application, will be used for that purpose "after hours". It is further to be noticed that apart from being received in the reception area, whether within the existing Club building or within the proposed accommodation building, there is no necessity for an accommodation guest to make any use of the existing Club building or the facilities that it offers.
Against the background of these considerations, it is appropriate to return to the application of principle. As Preston CJ observed in Chamwell (at [45]), when characterising development, it is necessary to do so "in a common sense and practical way". Unlike the basement carpark being considered in Chamwell , where the applicant unsuccessfully argued that it was an independent purpose from that of the supermarket for which it was to provide car parking accommodation, the use of the accommodation building in the present case is not so inextricably bound to the use of the Club that it must be seen, for planning purposes, as subordinate to and not independent of the use for the purpose of the Club. Moreover, for the reasons I have given, particularly the size of the proposed building and the number of accommodation rooms it will contain, the application of a practical and common sense approach clearly favours the determination that the purpose for which the new building is to be used is as a "motel" within the meaning of the LEP.
The task of characterisation must be undertaken with the specificity of the LEP firmly in mind. It clearly required that a facility falling within the definition of "motel" should not be located on land within the Residential 2(a1) zone. The purpose of the instrument would be frustrated if too liberal an approach was taken to the categorisation of development that, on its face, fell clearly within the definition of a nominated category of prohibited development.
In formulating the practical and common sense approach to categorisation, Preston CJ made reference to the decision of the Court of Appeal in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. The oft-quoted passage from the judgment of Meagher JA in that case is, both in fact and in principle, appropriate to be applied in the present case. His Honour said (at 409):
"Notwithstanding the principles laid down down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; ... . But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing."
In the present case, a commonality of interests between the Club's activities as a "club", within the meaning of the LEP, and the operation of the proposed accommodation facility can be acknowledged. It is the nature and extent of the latter activity, rendering it capable of independent use, that identifies it as a separate planning purpose. As has already been illustrated in the judgment of Meagher JA in Baulkham Hills v O'Donnell , the fact that on the same premises one can conduct activities that have two planning purposes is well known in the law. So much is also exemplified in the seminal decision of Glass JA in Foodbarn v Solicitor General (1975) 32 LGRA 157 where his Honour said (at 161):
"Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed."
Adopting the language used by Glass JA, it cannot be said in the present case that the proposed accommodation facility subserves the use of the Site for the purposes of a club, even if it is to be regarded as "ancillary" to or interdependent with the club purpose. The analogy of the book publisher and bookshop given by Meagher JA is instructive in the present case.
There is a further matter to be noticed, referable to the applicant's alternate argument that the proposed purpose of use of the Site should be considered innominate in the context of permissible activities in the land use table to the LEP. In Abret Pty Ltd v Wingecaribee Shire Council [2011] NSWCA 107, Beazley JA observed (Campbell JA and Handley AJA agreeing), the fact that a use is not listed as prohibited in a development control table does not mean that it is permissible with consent (at [62]). Her Honour continued by indicating that in all cases it was necessary to categorise the use so that, if the purpose of the use was otherwise controlled under the LEP, that proposed use must be subject to the constraints upon it expressed in the planning instrument. Such a constraint may be one of prohibition.
Applying the reasoning in Abret , there is nothing that identifies the proposed accommodation building as "club related accommodation" other than the label assigned to it by the applicant. Accepting that the development is intended to be used so that the accommodation provided is for members of the Club, the purpose nonetheless remains that of providing for "temporary or short-term accommodation of travellers or the general public", thereby engaging the prohibited purpose of a "motel".
For the reasons that I have given, the use of the proposed accommodation building is for a purpose that is independent of the present use of the Site for the purpose of the Club. That which is proposed is for a motel and is therefore prohibited development under the provisions of the LEP. Development consent must be refused.
Merits of the application
In light of my determination that the proposed development is prohibited, it is strictly unnecessary that I turn to consider matters raised in relation to the acceptability of its impacts. However, as merit issues were argued by the parties and against the possibility that my determination as to the proper categorisation of the proposed development is in error, I set out my consideration of those merit issues that were raised at the hearing.
Impact of the proposed structures and their use
The planning consultant retained by the applicant and the Council's staff planner agreed that in built form, the structures intended to be erected by the Club were acceptable in their impact. However, a number of local residents did not agree. They complain of the impact which the present use of the Site by the Club was having upon the predominant residential use of adjoining and nearby properties. They expressed concern that the proposed intensification of use of the Club site by the addition of buildings and activities proposed in the development application would be unacceptable.
In particular, the owners of the two residential properties adjoining the Site to the west were critical of the impact which the proposed structures would have upon the enjoyment of their properties. The dwelling erected on each of those properties is located towards their respective street frontages, with each having a long rear yard parallel to the Club site and used for the private enjoyment and recreation of their occupants.
In light of the decision I have reached as to the impact that the elevated car parking structure will have upon the two residential properties located immediately to the west of the Site, it is unnecessary to consider the more general concerns expressed by other residents as to the proposed intensification of use of the Club site. It is also unnecessary to elaborate in detail upon the impact of the proposed accommodation building upon the adjoining properties. That impact is greater upon the Brennan Street property than it is upon the Neville Street property. Although the juxtaposition is not ideal, the proposed setback of the accommodation building of about 9.4m from the common boundary and the capacity afforded by that set back to provide a landscape screen is capable of satisfactorily ameliorating the impact of that building. I also observe that the accommodation building does not immediately adjoin the Brennan Street dwelling but rather is proximate to a section of that property's rear yard. In this regard I accept the evidence jointly given by the town planners.
Clause 8(2) of the LEP provides as follows:
(2) The Council must not grant consent to development on land within a zone unless it is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of that zone.
The objectives of the residential 2(a1) zone are stated in the development control table for that zone in the following terms:
" 1 What are the objectives of the zone?
The objectives of the zone are:
(a) to set aside land primarily for the purpose of housing and associated facilities,
(b) to provide for the orderly development of detached housing, essentially domestic in scale and character,
(c) to achieve attractive high quality residential development,
(d) to allow people to carry out a reasonable range of business activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and
(e) to allow a range of non-residential uses that:
(i) are capable of integration with the immediate locality,
(ii) serve the demands of the surrounding population, and
(iii) do not place demands on services beyond the level reasonably required for residential use."
The expert planners agreed that the requirements of cl 8(2) were met in that the development proposed would be consistent with objective (e) of the zone objectives for the residential 2(a1) zone. Assuming permissibility, I can accept the consistency asserted by them but only at a level of generality. A proper determination of the development requires a more particular consideration of the matters identified in objective (e).
The proposed development certainly includes a non-residential use that is capable of integration with the immediate locality. Whether it serves the demands of the surrounding population is open to conjecture although there was some evidence that in the context of the Club's function facility for members, it is believed that guests of those using the function facility may wish to avail themselves of accommodation onsite. Further, in addressing objective (e) of the zone objectives, it was accepted by the Council's planner that the demand on services created by the proposed development would not extend beyond that reasonably required if the proposal was one for residential use.
While capability of integration in a general sense can, as I have indicated, be accepted, it must nonetheless be asked whether the form and disposition on site of structures proposed in the present development application reflect the apparent purpose of objective (e)(i). In considering this purpose, it will be observed that while sub-paragraph (e)(ii) refers to "the surrounding population", sub-paragraph (e)(i) requires consideration of integration with the "immediate locality". Whatever area the "surrounding population" may occupy, it is tolerably clear that the maker of the LEP intended that the area of land in close proximity to the site of proposed development be the focus of consideration directed by sub-paragraph (e)(i). This must surely require particular consideration of integration of development on immediately adjoining properties, as would the provisions of s 79C(1)(b) of the EPA Act in any event.
The need to consider the particular impact upon immediately adjoining properties brings into focus the impact of the elevated car parking structure upon those residential properties adjoining the Site to the west. That structure is set back only 7.4m from Neville Street and, as I have earlier recorded, its western edge is located only 2.4m from the common boundary with those residential properties. As I have also recorded, the structure has a height of 4.6m above ground level at that boundary, comprising a deck height of 2.6m, a concrete barrier or upturn of 1.2m on top of which is a translucent glass screen of 0.8m. At a total height of 4.6m the structure will stand 2.8m above the existing timber boundary fence that is 1.8m in height.
When the dimensions I have recited are considered in the context of a structure that extends for 105m adjacent and parallel to the residential boundary, it is apparent that the impact of that structure is wholly unacceptable. Not only would it stand alongside of the Neville Street dwelling and extend for the full length of the rear yard of the lot upon which that dwelling stands, it would also extend so as to be adjacent to the rear yard of the Brennan premises.
For these reasons, I cannot accept the evidence of the expert planners that the impact of the development upon the immediately adjoining properties was acceptable. No adequate explanation for their joint opinion in this regard was offered. With respect to them, it seemed to me that neither of them had focused upon the dimensions of the structure and appreciated its relationship with the adjoining properties. To the extent that reliance was placed upon proposed landscaping within the 2.4m distance that separated the structure from the common boundary fence, it seemed that the proposed screen did little to ameliorate the effect and appeared to be a token attempt to address a fundamental problem with the size and bulk of a car parking structure located in a residential context.
The location of the structure as proposed seems to me to be the antithesis of development that seeks "integration with the immediate locality". The impact of this structure is such that, on merit, the development application should be refused.
Access to Smithfield Road
This issue is capable of being addressed by condition if the development is otherwise permissible and, in its form, appropriate. The issue arose in the following way.
As I have earlier recorded, the applicant proposed that ingress only be provided from Smithfield Road. The Council sought to have this access point used for both ingress and egress.
In the course of processing the development application, the Council referred it to the Roads and Traffic Authority ( the RTA ). The RTA initially opposed any form of access to the Site from Smithfield Road (the Cumberland Highway). Subsequently, it indicated to the Council that it accepted the Club's proposal for ingress only, coupled with the construction of a deceleration lane. The Council nonetheless maintained that this access point should also be available for egress, apparently in an endeavour to ameliorate traffic impact in Neville Street which was essentially a residential street.
Mr Bridgman, the traffic consultant retained by the Council, expressed the opinion that the use of this access point for egress was safe, largely because of the gap interval created by a traffic controlled intersection at the intersection of Smithfield Road and Brennan Street, located a relatively short distance to the west or "upstream" of the proposed access point. Mr Coady, the traffic engineer retained by the applicant, indicated that while Mr Bridgman's opinion might be correct, there was insufficient evidence to support the gap interval upon which he relied in order to be confident that gap intervals would be such as to ensure safe egress. He also expressed concern about the impact on traffic flows if vehicles leaving the Site attempted to cross the kerbside lane into the adjoining lane. If the Smithfield Road access was to be used for egress, it was Mr Coady's opinion that it should only be so used after 8.00pm when traffic volumes on Smithfield Road were lighter than they were during the day.
The applicant opposed a condition requiring the access point to be used for both ingress and egress, even if limited in hours for the purpose of egress. It indicated that imposition of such a condition would be tantamount to refusal of the application. This was the consequence, so it submitted, because the RTA was required to give approval to the access under s 138 of the Roads Act 1993 and as it opposed use for egress its approval would not be forthcoming.
If it was otherwise lawful and appropriate to grant development consent, I would uphold the applicant's submission in relation to this issue. It would not be appropriate to impose a condition that would be tantamount to a refusal, it being clear that the RTA would maintain its position in opposing approval under s 138 of the Roads Act . Moreover, the volume of additional traffic generated by the proposed accommodation facility would not be likely to impact significantly upon the section of Neville Street likely to be used by those resorting to the accommodation facility. Egress from the existing access point in Neville Street could satisfactorily be maintained.
Costs
These being proceedings in Class 1 of the Court's jurisdiction, no order for costs would ordinarily be made: Land and Environment Court Rule 3.7. The categorisation and merit issues raised in these proceedings were heard and argued together, appropriately so, given that there were factual matters common to both issues. I would therefore propose that the ordinary rule prevail. However, against the possibility that either party wishes to argue otherwise, I propose to make the cost order as indicated reserving to either party the right to apply within 7 days to seek a different order.
Orders
For the reasons indicated, the orders that I make are as follows:
1. Appeal dismissed.
2. Development Application 502.1/2009 lodged with the Council on 2 June 2009 is refused.
3. Unless either party applies within 7 days of this order, there will be no order for costs.
4. Exhibits may be returned.
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Decision last updated: 02 August 2011
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