Pompar Pty Limited v Lake Macquarie City Council

[2005] NSWLEC 77

Land and Environment Court

of New South Wales

CITATION:

Pompar Pty Limited v Lake Macquarie City Council [2005] NSWLEC 77

PARTIES:

APPLICANT
Pompar Pty Limited

RESPONDENT
Lake Macquarie City Council

FILE NUMBER(S):

11273 of 2004

CORAM:

Hussey C

KEY ISSUES:

Appeal :- s 96 modification which relates to traffic movement within a carpark.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

21/02/2005

EX TEMPORE JUDGMENT DATE:

02/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister

RESPONDENT
Mr Long, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 February 2005

11273 of 2004 Pompar Pty Limited v Lake Macquarie City Council

JUDGMENT

1 This appeal is against council's deemed refusal of s 96 modification which relates mainly to traffic movement conditions that were imposed on the development consent for the redevelopment commercial premises, being the former Telstra Line Depot, in the Toronto shopping centre.

2 The site has a 5m wide access to Cary Street and also has a connection to the internal service road to the council carpark.

3 This morning the parties agreed that this matter be determined by way of a an On-Site Hearing and considering the extent of the s 96 modification, I am satisfied that it relates to the same development, as approved. Also there has been the opportunity for the various objectors to express their concerns to enable me to determine the merits of the application.

4 The parties agreed to Mr J Coady being the court appointed expert for the traffic matters. The approved development incorporates 17 carparking spaces and on-site loading area and it is on the basis that there be one way movement from Cary Street, via the new development with an outlet into the existing central carparking area.

5 Apparently the applicant considers that there are some benefits in optimising access to the development by incorporation a section of 10-15 m of two way traffic from the existing internal carpark to the development. Accordingly Mr Coady has analysed the traffic movements for this modification, to assess the impacts.

6 He estimates that there are some 90 vehicle trips per hour on the basis of:

• 25vtph entering from Coles carpark Services Road,
• 20vtph and the exits from Coles car park,
• 45vtph giving that total 90 (vtph) vehicle trips per hour.

7 He is satisfied that with some minor changes, which can be imposed by way of conditions, that the traffic can be adequately separated and that the proposal will result in neglible incremental changes to the traffic arrangements.

8 I have considered the objections from the various commercial users of the carpark and I accept that in the overall usage of the carpark at times it does not work as efficiently as these objectors would like. But I consider that it’s ongoing term operation is outside the scope of this particular s 96 modification application. Insofar as Mr Coady has suggested some minor changes to the carpark, in my assessment that that really could be undertaken with any review of the overall operations, which again I think is outside the scope of this particular s 96 modification application.

9 In my opinion the traffic estimates he has made are relatively low and I rely on his conclusion that there will be neglible change, so that with the additional traffic controls/signage, the modified traffic and access arrangements should work with a reasonable level of efficiency and safety. Notwithstanding this, I have to make the assumption that normal people will use the carpark and abide by the traffic laws and regulations, otherwise there are means to enforce these laws and that can be done.

10 In terms of the secondary aspect, there is a concern about pedestrian hazards/pedestrian safety. But this has been dealt with by Mr Coady and he takes into account the length of the driveway and the footpath and the fact that the existing road carriage way is proposed to be widened. Accordingly he expects the level of pedestrian activity on the footpath to be relatively minor. He says that as the driveway and footpath are located in the shopping centre environment, where shopper vehicle speeds not normally high and it is not normally considered necessary to segregate pedestrian and vehicular movement throughout a shopping centre carpark, then the anticipated level of safety is acceptable.

11 Whilst some of the objectors might expect a higher level of safety in this current situation, it appears that there is already a mix of traffic and pedestrian usage throughout this existing carpark and I rely on Mr Coady’s opinion that in this case in the circumstances of this case it’s adequate, in terms of any incremental change due to the s 96 modification. However, if an improved level of safety and efficiency is required, that can be part of some future review of the overall carpark operation.

12 I note then that Mr Coady’s overall conclusion in respect to the two way traffic movements, with appropriate signage and the pedestrian movements, is that he supports this s 96 modification application and furthermore considers the public interest would benefit from the proposed retail/commercial development. This is on the basis that the public benefit will be enhanced if access between the proposed development and adjacent shopping centre and it’s carpark is optimised.

13 In the ultimate, I consider position from the court appointed expert was generally accepted by both sides and there are no compelling submissions made be council against this, except their concern about the internal movements of the larger public carpark. But as I have stated, this is a separate matter, which can be addressed independently. Accordingly, I rely on Mr Coady’s opinion that the s 96 modification should be allowed.

14 The Court Orders then are:

1. The appeal is upheld.

2. The s 96 modification to allow partial two way traffic to the development from the central carpark is allowed in accordance with the conditions in Annexure ‘A’.

___________________________

R Hussey

Commissioner of the Court

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