ROI Properties Pty Ltd v Council of the City of Sydney - [2010] NSWLEC 1096

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1096
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
ROI Properties Pty Ltd
RESPONDENT
Council of the City of Sydney

FILE NUMBER(S): 10711 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to an existing building to provide for a supermarket, shop and offices - inconsistent with the planning strategies for the area - inconsistent with zone objectives - excessive noise - unacceptable traffic impacts - insufficient off street car parking - unacceptable signage and insufficient landscaping

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environmental Operations Act 1997
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997
South Sydney City Council Development Control Plan No. 11
City of Sydney Signage and Advertising Structures Development Control Plan 2005

CASES CITED: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 15,16,17,18,19 March 2010

DATE OF JUDGMENT:
30 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green, solicitor
SOLICITORS
Pikes Lawyers
RESPONDENT
Mr P Tomasetti SC
SOLICITORS
Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

30 April 2010

10711 of 2009 ROI Properties Pty Ltd v Council of the City of Sydney
JUDGMENT

This is an appeal against the refusal of Development Application D/2009/402 by the Council of the City of Sydney (the council) for alterations and additions to an existing building at 2-10 Fountain Street, Alexandria (the site) to provide for:

a café at ground level at the Fountain Street frontage (93 sq m of floor area and 70 sq m of terrace area),
a supermarket to be operated by Woolworths in Units 3 and 4 at ground level (2317 sq m), including fresh food and the construction of a new loading dock and waste storage area,
existing office floor space at the first floor level (153 sq m) to be used in conjunction with the supermarket,
a service yard to the southwest of Unit 4 to accommodate 2 staff parking car spaces and trolley storage facility,
a retail tenancy at ground level (Shop 2 – 158 sq m),
two separate office tenancies on the first floor (Office Tenancy 2 – 430 sq m and Office Tenancy 3 – 263 sq m),
reconfiguration of off street car parking to provide a total of 96 spaces,
relocation of the existing entry/exit driveway, and
trading hours between 8 a.m. and 10 p.m. daily.

2 The contentions raised by the council are that a supermarket is inconsistent with the planning strategies for the area and the endorsed hierarchy of centres, being located between the proposed Green Square Town Centre (the GSTC) and the proposed Ashmore Village Centre. Specifically, the proposed development is not orderly development, is not in the public interest and is not consistent with the objectives of the zone. The location will also not reduce car trips, not improve the public domain and not have a positive effect on other businesses.

3 The proposal is also unsuitable as it creates excessive noise, unacceptable traffic impacts, particularly queuing, increased congestion at the McEvoy Street and Fountain Street intersection and has insufficient off street car parking. The proposal also provides encroachments into the existing setback to Lawrence Street, unacceptable signage and insufficient landscaping. The council contends that these impacts are not in the public interest.

4 The concerns of the council were supported by a number of local residents in McEvoy Street and Lawrence Street who provided written submissions to the council and gave evidence on site. Their main concerns related to:

noise external to the site from the intersection of McEvoy Street and Fountain Street,
noise internal to the site including car movements in the car park, shopping trolley movements, people entering and leaving vehicles, discussions in the car park, delivery vehicles including reversing signals, garbage collection trucks, air-conditioning units and noise outside normal operating times,,
inadequate on-site parking,
shopping trolleys left in adjoining residential streets,
light spillage,
loss of privacy, and
loss of existing vegetation.

The site and surrounding area

5 The site is irregular in shape with frontages to Fountain Street and Lawrence Street and an area of 8591 sq m. It is currently occupied by a retail/warehouse development consisting of four units providing a total floor area of approximately 5214 sq m. A retail liquor outlet is operating from Unit 1 and part Unit 2. Off street car parking is currently available for 69 vehicles, accessed off a separate entry/exit driveway on the Fountain Street frontage.

6 To the south and south-west of the site is a residential apartment complex at 147-161 McEvoy Street (Spectrum Apartments). Part of this development adjoins the existing car park along the southern boundary of the site. Lawrence Street is predominantly residential with a range of new residential terrace houses and older style dwellings. On the opposite side of Fountain Street are older industrial buildings that are currently being redeveloped for markets and residential use.

7 The Green Square Urban Renewal Area (GSURA) is an area to the west of the site of approximately 280 ha and contains generally older industrial buildings currently used for a variety of uses. The future of the GSURA is a planned transit orientated ecologically sustainable community, based on a mixed-use urban environment with a balance of residential and employment generating activities. The GSTC is to be the hub of the GSURA. It is centrally located and has an approximate area of 14.7 ha. The site is not located within the GSURA or the GSTC but adjoins the western boundary of the GSURA.

Approvals on the site

8 On 6 August 2007, the council granted Development Consent No. 2006/2299 for use of Unit 1 and part Unit 2 as a retail liquor outlet (1550 sq m) and associated signage to trade between 9 a.m. and 9 p.m. Monday to Saturday and 10 a.m. to 6 p.m. Sundays. A total of 35 spaces from the available car parking spaces is allocated to this use (the liquor outlet approval).

9 On 13 May 2008, the council granted Development Consent No. 2008/258 for the addition of a cafe (106 sq m) along the Fountain Street frontage trading between 7:30 a.m. and 6 p.m. Monday to Friday and 8 a.m. to 3 p.m. Saturdays.

10 On 31 October 2008, the council granted Development Consent No. 2008/1066 for alterations to Unit 2 and 3 to accommodate a fresh food store at ground level (retail of 910 sq m and warehouse/ storage of 280 sq m and first-floor office of 420 sq m). Associated works include internal reconfiguration, construction of new glass doors, an awning at the shopfront and external signage. The proposed hours of operation are 8 a.m. to 10 p.m. Monday to Sunday inclusive (the fresh food approval).

11 On to December 2008, the council granted Development Consent No. 2008/721 for alterations and additions, including a new loading dock and storage area adjoining the southern boundary of Unit 4 to accommodate a supermarket (retail of 1429 sq m and warehouse/storage of 381 sq m and office of 580 sq m) to operate between 8 a.m. and 10 p.m. (the supermarket approval).

Planning documents

12 The site is within Zone No 10 – the Mixed Use Zone under South Sydney Local Environmental Plan 1998 (LEP 1998). Shops and commercial premises are permissible uses within this zone with development consent. Clause 10 provides that development consent must not be granted unless the consent authority is of the opinion that the proposal is consistent with the objectives of the zone.

13 The objectives for the zone are:

(a) to allow, in appropriate circumstances, a

mixture of compatible land uses such as

residential, retail, commercial, light-industrial

and industrial development, and

(b) to promote mixed use planning by locating

mutually supportive and compatible uses

such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and

(c) to permit appropriate forms of residential

development within the zone to mutually

support the vitality of nearby commercial

and urban village centres, and in doing so,

assist successful urban consolidation, and

(d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and

(e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and

(f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and

(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and

(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.

(DCP 1997) applies to the site. Relevantly, Part F Design provides criteria for specific sites. The site falls within the Mixed Use Transitional category in Map 8 of DCP 1997. The relevant Planning intent is described as:

To encourage medium density urban housing and a range of compatible vibrant non-residential uses such as shops, a professional offices and studio type workshops.

To protect the amenity of adjoining residential areas by providing a buffer.

15 The relevant Land use criteria are:

Activities compatible with the intent of the precinct include:

Restaurants, cafes and take-away shops which serve a wide resident and work population.
Offices (but generally not at ground floor as they do not encourage greater pedestrian activity).
Shops and personal service stores which provide goods and services for a wide population.

NB: the above is not an exhaustive land use table of uses permissible in the 10 Mixed Use zone; it is a generic list of compatible activities. A whole range of other activities may be appropriate in the precinct, depending on their environmental performance.

16 DCP 1997 provides further detailed planning controls for matters such as height and floor space ratio although the council did not raise any issue with these numerical standards. Setbacks are addressed later on the judgment.

17 South Sydney City Council Development Control Plan No. 11 - Transport Guidelines For Development 1996 (DCP 11) provides guidelines for the provision of car parking.

18 City of Sydney Signage and Advertising Structures Development Control Plan 2005 (DCP 2005) provides requirements for commercial advertising signs.

19 Other documents relied upon by the council are:

Ministerial Directions issued under the Environmental Planning in Assessment Act 1979 (the EPA Act),
Amendment No. 17 to LEP 1998 - The Green Square Town Centre,
DCP 1997, Part G - Special Precinct No. 9 - Green Square,
DCP 1997, Part G - Special Precinct No. 7 -Ashmore Precinct,
DCP 1997, Part H - Green Square Town Centre,
Strategy for a Sustainable City of South Sydney,
Metropolitan Strategy,
Draft Sydney City Draft Subregional Strategy,
City of Sydney Sustainable Sydney 2030
Green Square and Southern Areas Retail Study 2008 (the Retail Study),
Green Square Urban Renewal Area Background Paper (the Background Paper),
Green Square Transport Management and Accessibility Plan, and
Urban Design Study for Erskineville, Alexandria (West) and Newtown (South) (the Urban Design Study).

Traffic and parking

20 Mr Graham Pindar, a traffic engineer, provided evidence for the council and Mr Tim Rogers, also a traffic engineer, provided evidence for the applicant. Their main areas of disagreement are:

The width of the egress

The requirements

(AS/NZS 2890.1: 2004) provides requirements for access facilities to off street car parking areas and queuing areas at Section 3. Relevantly, Table 3.1 identifies the parking on site as Class 3, having a frontage to an arterial road and having between 25 and 100 parking spaces. Table 3.2, for Class 3 parking facilities, requires an entry width of 6.0 m and an exit width of 4.0 m to 6.0 m. There was no dispute that the proposed development satisfies the entry width.

The evidence

22 Mr Pindar and Mr Rogers differed on the width of the exit. Mr Rogers stated that as the car park had 96 spaces, a 4 m width satisfied the requirements in Table 3.2. Mr Pindar took the view that as the 96 car parking spaces was just below the maximum limit of 100 car parking spaces for Class 3 parking facilities, then the exit should be at the upper end of the range, that is 8 m.

Findings

23 On this matter, I agree with Mr Pindar. While of the 8 m exit can be accommodated with a redesign of the exit driveway, it would necessitate the loss of between 3 (leaving 3 small spaces) and 6 car parking spaces. The range of exit widths in Table 3.2 must have a purpose and the only practical purpose is that the upper end of the range in the driveway width is to be used when the amount of car parking is also at the upper end of the range. This has the effect of reducing the overall number of car parking spaces by at least 3 from 96 to 93.

The number of car parking spaces

The requirements

24 Clause 1.3 of DCP 11 states, in part;

Previously, new development had been required to provide car parking and servicing to satisfy all of the parking demand created by a development. Facilities for non-motor vehicular transport were not specifically required. Council's Strategy For A Sustainable City Of South Sydney , and hence these Guidelines, propose a new, less car focused approach.

The parking rates of these Guidelines offer a balanced compromise by satisfying a large proportion of parking demand on-site, addressing car reduction objectives of Councils Strategy, and minimising the unreasonable overflow of parking on to surrounding streets.

25 Clause 2.3 provides sources of information for car parking. The clause states that the assessment of traffic generation of development proposals can be undertaken by carrying out a survey of a similar type of development and referring to the RTA Guide to Traffic Generating Developments, Part 3. Clause 3 provides guideline rates for transport facilities. Office, commercial and industry guidelines are set out in Table 2. The relevant requirements for car parking are:

Office and commercial - 1 space per 125 sq m of gross floor area (GFA),
Shopping centres - survey-based assessment needed, and
Small shops - 1 space per 50 sq m of GFA.

26 Clause 3.2 provides guidelines for development applications seeking a departure from the guideline rates of parking.

27 As submitted, the reconfigured car park provides for 96 car parking spaces although this figure is reduced to 91 because of the widened exit configuration (a loss of 3 spaces – see par 23) and the need to provide additional space to retain existing vegetation (a loss of 2 spaces – see par 52). The relevant matters agreed by Mr Pindar and Mr Rogers are that 46 spaces are required for:

the liquor outlet approval - 35 car parking spaces,
the cafe - 2 car parking spaces (93 sq m at 1 space per 50 sq m),
the commercial tenancies - 6 car parking spaces (815 sq m at 1 space per 125 sq m), and
the specialty shop - 3 car parking spaces (158 sq m at 1 space per 50 sq m),

28 Based on the available 91 car parking spaces, 45 car parking spaces are available for the proposed supermarket. Based on the supermarket area of 2317 sq m of retail floor area (as agreed by the expert town planners), the equivalent car parking ratio is 1 space per 46.3 sq m of floor area (or 1.94 spaces per 100 sq m). The evidence of Mr Pindar and Mr Rogers focused on whether the available car is adequate for the proposed supermarket.

The evidence

29 Mr Rogers states that a rate of 1 space per 50 sq m was used to estimate the parking requirements for the liquor outlet approval and considering the council's objective to reduce traffic generation by reducing parking associated with new developments, parking provision is appropriate for the site. He also notes that the supermarket approval and the fresh food approval provided parking at the rate of 1 space per 50 sq m suggesting that the council recognises that a lower parking provision is appropriate for the site.

30 Mr Rogers also relies on surveys conducted at the Woolworths supermarket at Crows Nest that equate to a peak parking demand of 1 space per 55 sq m on Saturdays and 1 space per 92 sq m on Thursdays. In his opinion, the Crows Nest supermarket is comparable given its inner-city location, access to off street parking, access to public transport and is a smaller supermarket (1385 sq m GFA). Based on this survey, a rate of 1 space per 50 sq m is supportable.

31 Mr Pindar states that the RTA Guidelines for Traffic Generating Developments (the RTA Guidelines) requires 4.2 spaces per 100 sq m of gross leaseable floor area (GLFA) (or 1 space per 23.8 sq m). The RTA Guidelines would require 94 spaces for the proposed supermarket development, based on a rate of 1 space per 23.8 sq m for 2470 of GFA (assuming that GLFA is 90% of GFA or 2223 sq m). Using 2317 sq m of retail floor space (as agreed by the town planners) the required parking is 97 spaces.

32 Mr Pindar relies on surveys undertaken at the Aldi supermarket at Campsie and the Franklins supermarket at Caringbah. These surveys result in a peak parking demand of 4.0 spaces per 100 sq m GLFA and 3.0 spaces per 100 sq m GLFA, respectively. When averaging the two figures with the RTA Guidelines, Mr Pindar concludes that the appropriate parking rate is 3.7 spaces per 100 sq m of GFLA.

33 For further support, Mr Pindar also relies on other approvals by the council for other supermarkets in the locality. The most comparable supermarket is the Crown Square supermarket with an area of 2642 sq m and 119 spaces providing a rate of 4.5 spaces per 100 sq m GLFA. Other examples are the Aldi supermarket in Danks Road with an area of 1447 sq m and 63 spaces providing a rate of 4.4 spaces per 100 sq m GLFA and the Woolworths supermarket in Darlinghurst with an area of 1547 sq m and 70 spaces providing a rate of 4.5 spaces per 100 sq m GLFA.

34 Further, Mr Pindar calculates that the existing parking for the supermarket approval and the fresh food approval should require 90 spaces. As only 20 spaces are provided, the parking for these two uses is totally inadequate and should not be relied upon. Mr Pindar also states that considering it is proposed to employ up to 40 staff at any one time at the supermarket, this will result in a minimum of 20 parking spaces being used.

Findings

35 On this issue, I agree with the conclusions of Mr Pindar. Mr Pindar and Mr Rogers disagreed on the supermarket surveys used by each other in the assessment of an appropriate car parking rate. Mr Pindar stated that the site used by Mr Rogers was not compatible because the car parking area was a public car park and not a car park directly associated with the supermarket. Mr Rogers was critical of Mr Pindar's approach of simply averaging three different rates and stated that the average could not be relied upon.

36 I accept that finding supermarkets with a similar size and with similar locational characteristics is likely to be a difficult task however I am satisfied that the RTA Guidelines address this difficulty, to some extent, by the cross-section of sites included in the formulation on the appropriate parking rates for supermarkets. The RTA Guidelines are also widely accepted even though the surveys were conducted some years ago. In this case, the RTA Guidelines support the evidence of Mr Pindar rather than the evidence of Mr Rogers. The rate of 4.2 spaces per 100 sq m GLFA is higher than the figure of 3.7 spaces per 100 sq m GLFA adopted by Mr Pindar. This figure is also lower but more consistent with other approvals in the general area, including a property to the south of the site in McEvoy Street where Mr Rogers, in his capacity as a traffic expert, accepted that the appropriate parking rate for a supermarket was 3.6 spaces per 100 sq m GLFA (based on a 15% reduction in the RTA Guidelines rate). The figure of 2.0 spaces per 100 sq m GLFA used by Mr Rogers is significantly less than the RTA Guidelines and other approvals in the area and should not be accepted in this case.

37 Based on the agreed position of the planners that there is 2317 sq m of retail floor area (which I have accepted as being generally equivalent to GLFA), 86 spaces are required using a rate of 3.7 spaces per 100 sq m of GLFA. This leaves a deficit of 41 spaces.

38 Mr Rogers argued that DCP 11 provides some flexibility in the provision of car parking and that specific provisions are contained within DCP 11 to reduce car parking. While this is correct, cl 1.3 still requires the provision of “a large proportion of parking demand on site”. I do not accept that 53% satisfies this requirement.

39 While one objective seeks to "encourage a reduction in the level of the vehicular travel by reducing parking requirements" another objective seeks to "ensure that an acceptable level of parking is provided on site to minimise the unreasonable overflow of parking on to surrounding streets". To consider the objectives conjunctively, there needs to be some balance between a reduction in parking and potential on street parking. In this case, I am satisfied that the quantum of the deficit in car parking is so large that it will unacceptably impact on parking in the surrounding streets. In considering those matters in cl 3.2 of DCP 11, particularly cl 3.2.1 where criteria are identified for reducing car parking, I am not satisfied that there is sufficient justification for the extent of the departure proposed in this application to invoke the concessions available in cl 3.2.1, particularly considering the “impact on local parking conditions”.

40 I agree with Mr Pindar that the extent of the non-compliance is of such significance that it warrants the refusal of the development application for this reason alone.

Pedestrian safety

The evidence

41 The issue of pedestrian safety relates to the potential conflict with service and delivery vehicles that are required to reverse within the customer parking area to gain access to the loading docks. Trucks reversing into the liquor outlet loading dock will cross a proposed pedestrian crossing, which was seen as being unsafe by Mr Pindar. Even though the formal designation as a pedestrian crossing was removed during the hearing, Mr Pindar argued that it still was a significant pedestrian link to the proposed supermarket from other parts of the site.

42 Mr Rogers was of the view that any potential impact could be adequately addressed through the Operational Plan of Management. These specific requirements require the driver to announce the arrival of a truck by mobile phone to the Stockroom Manager. The Stockroom Manager will attend to the delivery vehicle and assist the truck to perform a safe and speedy docking manoeuvre. This may involve controlling customer cars and pedestrian movements while the vehicle approaches the dock. Any persons assisting in the manoeuvring of a vehicle on the site will be an appropriately qualified RTA traffic controller.

Findings

43 The proposed development provides for two separate loading docks. The first loading dock is for the existing liquor outlet and the second loading dock is for the proposed supermarket. The liquor outlet loading dock is an existing facility and does not fall within the bounds of the subject application beyond any additional impact the proposed supermarket may have on the operation of the loading dock. Notwithstanding this, I note that the Operational Plan of Management addresses this loading dock and provides requirements for its operation and pedestrian safety measures that do not exist under the current development consent. The concerns expressed by both Mr Pindar and Mr Rogers over the location of a pedestrian crossing relate to this loading dock.

44 In accepting that it is not an optimal situation where the potential exists for conflict between reversing vehicles and pedestrian movements, I am mindful that the proposal is the use an existing building and that the complete separation of pedestrian movements and reversing movements may not be able to be achieved. I am also mindful that reversing truck movements into the liquor outlet currently occur without any controls through the existing conditions of consent. I am satisfied that the requirements in the Operational Plan of Management, as indicated by Mr Rogers, will reasonably address the questions of pedestrian safety. If the proposed development were to be approved it would seem appropriate that additional requirements relating to maximising the time of deliveries to the times when the pedestrian activities were at their lowest should be explored and additional requirements placed within the Operational Plan of Management to reflect this. With these changes, this would not be a matter that would warrant the refusal of the application.

Other parking issues

Small car parking spaces

45 While there was some argument over the use of small car parking spaces, I am satisfied that the number of small car parking spaces when compared to the overall number of spaces is relatively small and would not be a reason to refuse or amend the application.

Underground parking

46 The issue of whether underground parking should be provided was also raised. Clause 1.6 of Part E of DCP 1997 states that parking should be provided underground wherever possible and when aboveground parking cannot be avoided it should not protrude significantly above ground level, be generally located at the rear or the site buildings, incorporated within the building or screened behind other uses, such as retail.

47 While cl 1.6 is relevant, I am satisfied that as the proposed development seeks largely to utilise existing buildings, the requirement for underground parking is not a matter that could reasonably be forced on the proposed development, despite the aesthetic and potential safety benefits.

Landscaping

The evidence – the southern boundary

48 The proposal provides for the reduction in the garden bed along with the southern boundary adjoining the Spectrum Apartments from 3.5 m to around 700 mm (clear of the kerb and retaining walls) with v-shaped extensions to around 1.1 m and 400 mm wide every two car parking spaces. The v-shaped extensions are to provide the location for canopy trees. The proposed landscaping design provides for the overhang of vehicles over the 700 mm setback to around 200 mm from the boundary fence except for the areas of the v-shaped extensions.

49 Ms Samantha Knight provided evidence for the council and Mr Graham Smith provided evidence for the applicant on this issue. Ms Knight and Mr Smith addressed the retention of an existing Eucalyptus scoparia on the southern boundary that provides some screening to part of the Spectrum Apartments. They agreed that there was the possibility that the tree could be successfully retained but only for several years as it was in a state of decline. The retention of the tree would necessitate the loss of an additional 2 car parking spaces. Ms Knight strongly recommends that the tree be removed due to root damage and root removal that occurred during construction works to the adjacent boundary wall for the Spectrum Apartments. Mr Smith acknowledges the damage caused to the tree but states that it could be retained while the new plantings are established.

50 The main area of contention relate to the inadequate width and insufficient soil volume and the insufficient room for the trunk, main branches and canopy to establish. Ms Knight states that the garden bed will not accommodate the growing needs of the proposed species. Also, the garden bed provides insufficient soil volume for root development, which trees require for healthy growth and structural stability. Ms Knight also states that the proposed garden bed width only provides an area for trunk development and tree roots will extend beyond the width of the garden area conflicting with the boundary wall and travelling beneath the car park surface. The location of the proposed trees will also result in the need for pruning because of their proximity to the existing masonry wall. This will have a negative impact on the tree structure and overall visual amenity. In her opinion, a minimum width of 1.5 m is required for landscaping.

51 Mr Smith comes to the opposite conclusion. He states the garden bed will provide adequate space to allow the proposed trees to grow. In his opinion, the linear bed with wider areas at the tree locations is adequate to grow the selected species in the sandy soil. Mr Smith states that the use of the v- shaped areas will allow adequate room for tree growth. While the trees will require pruning and maintenance to allow the trees to grow in a balanced branch arrangement, lower branches can be pruned clear of customer cars. This will encourage a vertical growth in the early years until the trees reach the height of the wall, at which time the crown can develop.

Findings – the southern boundary

52 On this issue, I prefer the evidence of Ms Knight although I accept that every endeavour should be made to retain the existing Eucalyptus scoparia. The reduction in the width of the landscaped strip is the direct result of the need to provide additional parking on the site. The minimum length of the car parking space at 2.4 m includes the proposed landscaping strip along the southern boundary. The kerb between the sealed car park and the landscaped strip performs the dual role of separating landscaping from the car park and as a wheel stop for vehicles using the car parking space. This requires vehicles to overhang landscaping strip.

53 On any reasonable assessment, a garden bed width of around 700 mm with small extensions to around 1.1 m is a relatively narrow area for the growth of canopy trees that are to provide visual screening between the Spectrum Apartments and the activities on the site. In optimal conditions, the conclusions of Mr Smith may well be correct however in a situation where the landscaped area represents the interface between two potentially conflicting land uses, I see no reason why a greater level of security for the establishment and maintenance of the landscaping should not be a priority. I do not accept that such security can be provided in a situation where the growing environment is restricted by the narrow area and soil volume, a retaining wall located on one side and a public car park on the other side. The unsuitability of the planting area is exacerbated where vehicles are required to overhang the planting area to properly park within the allocated spaces and where movements into and out of the car parking spaces could potentially damage the trees located in the v-shaped areas between the car parking spaces.

54 In my opinion, the proposal is inconsistent with the relevant Planning intent in DCP 1997, in that it does not protect the amenity of adjoining residential areas by providing a buffer. This is also a matter that would warrant the refusal of the application.

The evidence – Lawrence Street

55 Ms Katherine Young provided evidence for the council and Mr James Lovell provided evidence for the applicant. Ms Young and Mr Lovell disagreed on the encroachment to the Lawrence Street setback. There was agreement that a 4 m street setback applies through Pt E 2.4 of DCP 1997. There was also agreement that the existing building is setback 3 m and the setback is characterised by continuous row of bottlebrush trees. The proposal provides for the encroachment of two sets of egress stairs by a distance of 1.5 m for a length of 4 m each along the street. The length of the building along the Lawrence Street frontage is around 67 m. The reason for the proposed egress stairs to be relocated outside the building, from within the building, is to provide an unconstrained internal level area for the proposed supermarket.

56 Ms Young states that existing development is generally set back a minimum of 2 m from Lawrence Street. Setbacks are varied and a strong predominant setback line should not determine the appropriateness of encroachments and any variations must be assessed on their merits. In her opinion, the two new structures extend beyond the building envelope. The side walls and roof of the structures project into the landscape setback zone and will be visible along the street and from opposite residential properties. The new structures interrupt an otherwise continuous row of trees, increasing the visual bulk of the existing building and intensifying the impact of an already detracting building elevation.

57 Mr Lovell states that the proposed new structures are relatively small and combined with the existing and proposed landscaping; the change is minor and results in an acceptable visual impact.

Findings – Lawrence Street

58 Pt E 2.4 of DCP 1997 provides for a 4 m setback but also provides the opportunity to vary the setback "where site specific conditions and the environmental characteristics of the area determine the need for a site-specific setback". In this case, I agree with Mr Lovell that the new structures are relatively small compared to be overall length of the building along Lawrence Street. The building has a long and unarticulated form to Lawrence Street and while the existing vegetation provides some screening at the upper level, the vegetation appears to be reaching maturity and this has resulted in no lower-level screening to hide the unattractive wall. In my view, the proposed structures could be constructed and effectively screened from the street with additional landscaping, particularly at the lower level. The design of the proposed structures could also be modified to provide a more attractive appearance rather than the current unattractive functional form.

59 Subject to these matters being satisfactorily addressed through additional plans, an encroachment into the setback to Lawrence Street would not be a reason to refuse the application as it would satisfy the relevant objective in Pt E 2.4 to "complement the streetscape and assist in the integration of new development into the streetscape".

The planning context

The evidence – the planning approach

60 Mr Lovell provided evidence for the applicant and Ms Jane Grose provided evidence for the council. They agreed that the council is preparing a draft LEP (the draft City Plan) to replace LEP 1998 although it has not reached the stage of public exhibition. The council have exhibited the Urban Design Study that is ultimately intended to inform the planning controls in the draft City Plan. It recommends that the site be zoned B4 - Mixed Uses which provides for "basic services" with "primary services" and "integral neighbourhood services" provided in either the Ashmore Precinct, Erskineville Village Centre or King Street. The Urban Design Study does not recommend a minimum or maximum floor area for retail facilities in the Mixed Use area.

61 Mr Lovell states that the relevant planning context are those provisions that apply to the site in LEP 1998 and DCP 1997 and these provisions alone should be used to assess the appropriateness of the proposed development. Many of the LEP 1998 provisions and DCP 1997 provisions relied upon by the council do not apply to the site and can only be relevant to the extent that they influence the form of development anticipated on the land to which they apply. While they intend to control the development of other land in the general vicinity of the site, and may provide some broader context for the proposed development, they have no direct impact on the development of the site, which itself is affected by alternate planning controls. Mr Lovell states that the Background Paper relied upon by Ms Grose, relates to the GSURA and not the site and similarly should not be a matter for consideration.

62 The content of any future draft controls, such as the draft City Plan, cannot be known with any certainty particularly as the council has not conducted any formal community consultation associated with the preparation of these draft controls.

63 Ms Grose states that the LEP 1998 provisions that relate to the GSURA and the GSTC and the consequent provisions in DCP 1997 must be considered in determining the proposed development because of the strategic planning impacts presented by the proposed out of centre supermarket development. Locating supermarkets in the endorsed centre locations is essential in achieving broader strategic objectives for South Sydney. The proposed development is inconsistent with the Retail Study and the endorsed hierarchy as it will have a negative impact on the GSTC, the Ashmore Village Centre and the transport, social and land use strategies that are supported by the creation of a network of mixed use centres.

64 While the Mixed Use zoning in the draft City Plan and the proposed 750 sq m cap identified in the Background Paper for Mixed Use zones outside the GSURA has not been exhibited as a complete, specific proposed planning control for the site, Ms Grose states that the Retail Study, the resolutions of the council on the Retail Study and the Urban Design Study have all been prepared to inform the draft City Plan land use controls and publicly exhibited as such. These documents are clear in that they recommend that supermarkets and "primary services" are to be located in endorsed centres, which does not include the site.

Findings– the planning approach

65 Section 79C of the EPA Act provides matters for consideration in the assessment of a development application. This section states:

79C Evaluation

(1) Matters for consideration-general. In determining a

, a

is to take into consideration such of the following matters as are of relevance to the

the subject of the

:

(a) the provisions of:

(i) any

, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the

(unless the

has notified the

that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any

, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the

(to the extent that they prescribe matters for the purposes of this paragraph), that apply to the

to which the

relates,

(b) the likely impacts of that development , including environmental impacts on both the natural and built environments , and social and economic impacts in the locality,

(c) the suitability of the site for the development ,

(d) any submissions made in accordance with this Act or the

(e) the public interest.

66 Section 79C does not prioritise any of the matters within this section; it is a question of balance as one matter may have greater importance or relevance in a particular situation.

67 Mr Lovell and Ms Grose adopt different approaches to the assessment of the development application. Mr Lovell relies largely on LEP 1998 and DCP 1997 whereas Ms Grose relies largely on the strategic planning framework put in place for Green Square, and specifically the Retail Study, the resolutions of the council on the Retail Study and the Urban Design Study, although Ms Grose maintains that the proposed development is also inconsistent with the zone objectives. The question to be answered is whether the planning documents relied upon by Ms Grose should be given sufficient weight that their provisions should be given preference over the specific provisions in LEP 1997 and DCP 1987.

68 A critical matter in considering the different evidence of Mr Lovell and Ms Grose is a determination of the appropriate planning assessment framework for the development application. The different forms of planning documents relied on by Mr Lovell and Ms Grose can be grouped into the following main areas:

Local environmental plans

69 In most cases, the consideration of a development application focuses on the provisions within the relevant local environmental plan (LEP). The relevant LEP determines whether the proposed use is permissible and can some time contain specific requirements, such as cl 10, in this case.

70 There was no dispute that shops and commercial premises were permissible uses within the zone and that there are no limitations on the size of these uses within LEP 1998. Some weight must be attributed to a use that is permissible within the zone (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, at 117). I agree with Mr Lovell that Amendment No. 17 to LEP 1998 - The Green Square Town Centre does not apply to the site and should not be given any weight in the consideration of the application.

71 In the absence of any evidence to the contrary, LEP 1998 is a properly constituted planning document having been publicly exhibited, any submissions considered by the council and ultimately adopted by the council. Significant weight must be given to LEP 1998 having regard to the process that led to its adoption and the specific requirement in s 79C(1)(a)(i).

Development control plans

72 A DCP will normally contain more specific controls than an LEP for a proposed use. The provisions of a DCP are also to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a LEP although the provisions of a DCP are not determinative (Zhang v Canterbury City Council (2001) 115 LGERA 373, at 75).

73 Again, I agree with Mr Lovell that DCP 1997, Part G - Special Precinct No. 9 - Green Square, DCP 1997, Part G - Special Precinct No. 7 -Ashmore Precinct and DCP 1997, Part H - Green Square Town Centre do not apply to the site and should not be given any weight in the consideration of the application.

74 Again and in the absence of any evidence to the contrary, DCP 1997 is a properly constituted planning document having been publicly exhibited, any submissions considered by the council and ultimately adopted by the council. Significant weight must be given to DCP 1997 having regard to the process that led to its adoption and the specific requirement in s 79C(1)(a)(iii).

Planning strategies

75 Other planning documents may be taken into consideration in determining policies addressing the public interest (Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195 at 81). Of those documents relied upon by Ms Grose, The Strategy for a Sustainable City of South Sydney is a document that was produced nearly 15 years ago in June 1995 and has been largely overtaken by the other planning strategies. It is a document that should be given little weight in the proceedings.

76 The Metropolitan Strategy is a broad metropolitan wide planning document that, in part, identifies the GSTC as being of regional significance and encourages the development of the centre has soon as practicable. Like the City of Sydney Sustainable Sydney 2030 and the draft Sydney City Draft Subregional Strategy, the Metropolitan Strategy is a valid strategic planning document but not a document that is appropriately used for the consideration of a development application. These documents inform and direct more detailed planning through the preparation of LEP’s, DCP’s or policies.

77 The Urban Design Study was described by Ms Grose as a document to inform the preparation of the draft City Plan LEP and was advertised in March and April 2009. As I understand, there has been no progress since the exhibition that would impact on the assessment of the application.

78 The Green Square Transport Management and Accessibility Plan was commissioned by the council to address the objectives in City of Sydney Sustainable Sydney 2030 and the Metropolitan Strategy. Ms Grose states that the site is located on a possible East West Surface Transit Corridor, with the objective of connecting the GSTC to Newtown, via other main attractions as such as the universities and hospitals. This alignment has not been determined, and is a "medium term" priority at this stage. Given the infancy of the Green Square Transport Management and Accessibility Plan, it would be unreasonable to place any weight on its provisions although in the longer term it would seem that the proposed development would not be inconsistent with its objectives. The Background Paper does not apply to the site and should not be given any weight in the consideration of the application.

Draft environmental planning instruments

79 Environmental planning instruments that are or have been the subject of public consultation are relevant matters in the consideration of development applications under s 79C(1)(a)(ii). The weight to be given to these documents is generally based on their imminence and certainty. The draft City Plan LEP for the Sydney City local government area is proposed to be placed on exhibition in 2010 according to the evidence of Ms Grose. It could not be seen as imminent or certain. As the draft City Plan LEP has not been advertised in accordance with s 79C(1)(a)(ii) and not a relevant consideration in the assessment of the proposed development application.

Ministerial Directions

80 The Minister can issue directions under s 117(2) of the EPA Act that councils must follow in the preparation of new LEP’s. Ms Grose states that the relevant objectives of Direction 1.1 for the draft City Plan LEP to be submitted to the Minister for gazettal are:

(b) to retain the areas in locations of existing business and industrial zones,

(d) not reduce the total potential floor space for industrial uses in industrial zones…

81 As Directions under s 117(2) relate to the preparation of draft LEP’s, and not consideration of a development application, any reference to Ministerial Directions is not relevant in this case.

Policies

82 There was agreement between Mr Lovell and Ms Grose that the Retail Study has not been adopted by the council in full, but the principal recommendations were endorsed including the hierarchy of centres, and the GSTC as the primary retail centre. It was also agreed that the site is not within the Study Area for the Retail Study but is identified in Map 6 as being within the Green Square Town Centre Primary Trade Area.

83 The council resolution on 3 November 2008 and the Central Sydney Planning Committee resolution on 30 October 2008 requires only the Retail Study be used in the assessment of development applications in Green Square and the Southern Industrial Area. The site is not located in either of these two areas. On 20 February 2010, the council resolved to amend the resolution of 3 November 2008 to firstly, widen the area in which the Retail Study must be considered in the preparation and assessment of development applications to include the "Green Square Town Centre Primary Trade Area". The effect of this resolution was to require the site to be assessed against the Retail Study. Secondly, the resolution of 3 November 2008 specifically nominated Ashmore Precinct as a Village Centre within the retail hierarchy.

84 While there was agreement between Mr Lovell and Ms Grose on the chronology, there was considerable difference in how they should be applied to the proposed development. Mr Lovell states that the resolution of the council on 20 February 2010 does not alter the planning controls that apply to the site and should not form the basis for assessing the proposed development. The Retail Study has not been adopted, the site is located outside the study area, the resolutions of the council and the Central Sydney Planning their Committee do not require consideration of the Retail Study on any assessment of development applications on the site and the draft planning controls intended to flow from the Retail Study have not been exhibited, and the formal community consultation process has not commenced.

85 Ms Grose states that while the site is not within the Study Area of the Retail Study, it is within the Green Square Town Centre Primary Trade Area, which means that any retail on this site will compete with the GSTC for economic and pedestrian activity. Notwithstanding the wording of the resolutions, they clearly express an endorsement of the hierarchy and the strategy to limit retail development outside of centres to achieve this. The proposed development is for a major development in proximity to the endorsed centres (500 m by road from at Ashmore Precinct and 900 m from the GSTC). The proposed development is clearly inconsistent with the intent of the council resolution on the strategies relied on by the Retail Study.

86 The role of a council planning policy is addressed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where His Honour states:

90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.

92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

· the extent, if any, of research and public consultation undertaken when creating the policy;

· the time during which the policy has been in force and the extent of any review of its effectiveness;

· the extent to which the policy has been departed from in prior decisions

· the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

· the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

· whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

87 Ms Grose placed considerable emphasis on the Retail Study in her evidence and her conclusions that the proposal will have an unacceptable impact on the GSTC. The chronology of the Retail strategy is of some relevance in this case. The council commissioned the Retail Study to develop a hierarchy of centres for the GSURA, including the GSTC, consistent with the expectations of the Metropolitan Strategy. The site was not within the area identified as the Study Area of the Retail Study (see cl 3.1). On 8 May 2008, the Central Sydney Planning Committee resolved to ”note” and endorse a number of principles within the draft Retail Study. On 3 November 2008, the council further considered the Retail Study and resolved the particular “information to be considered in the preparation and assessment of development applications in the Green Square Urban Renewal Area and the Southern Industrial Area”. This area is also identified as the Study Area for the Retail Study. On 22 February 2010, the council further considered the Retail Study and resolved to "widen the area in which the Green Square and Southern Areas Retail Study must be considered in the preparation assessment of development applications to the "Green Square Town Centre Primary Trade Area as shown at Attachment B to the subject report, and". This area extends beyond the Study Area of the Retail Study and includes the site. The resolution of the council to include the site within consideration of the Retail Study postdates the lodgement of the development on 6 March 2009 by around 12 months and the lodgement of the appeal on 1 October 2009 by some 5 months.

88 In considering those matters set out in par 92 in Stockland Development, I am satisfied that the Retail Study should be given weight in the assessment of the development application. The Retail Study was advertised from 28 May 2008 to 25 June 2008 and a number of submissions were received from landowners, state agencies and other stakeholders. The submissions were reviewed and responses to the submissions prepared for the council who ultimately endorsed the key principles in the Retail Study. I am not however satisfied that any weight should be given to the additional obligations created by the council's resolution of 22 February 2010. While there was no evidence to suggest that the amendment was designed to defeat a project which is known to be under consideration by a developer for a particular site, the effect was to place a considerably larger burden on the applicant (and other landowners) without the benefit of advertising and the opportunity to make submissions on the amendment. When combined with the timing of the amendment; after the application was lodged and determined, I am satisfied that no weight should be given to the amendment by the council on 22 February 2010. The consequence being that the site is not required to be considered against the findings of the Retail Study as is not located within the identified Study Area.

EPA Act objectives

89 Section 5 of the EPA Act provides objectives for the Act as a whole and not specifically matters for the consideration of development application, as suggested by Ms Grose. Relevantly, s 5(a) states:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purposes of promoting the social and economic welfare of the community and a better environment

(ii) the promotion and coordination of the orderly and economic use and development of land,

90 Ms Grose states that the EPA Act exists to make sure development is undertaken in an orderly, planned manner and to prevent development that has adverse impact on the provision of resources to the wider community.

91 While the objects of the EPA Act need to be considered, I do not accept that the broad and general objects that relate to the EPA Act as a whole, should override the specific requirements in LEP 1998 and DCP 1997 for the site. I also do not accept that it can be reasonably argued that the development is not the orderly and economic use and development of land when the application proposes a use that is permissible within the zone and largely satisfies the Planning Intent of DCP 1997.

Zone objectives
The evidence – consistency with zone objectives
Objectives (a), (b), (e) and (f)

92 Mr Lovell states that he understands that Ms Grose maintains that the proposed development is inconsistent with the zone objectives (a), (b), (e) and (f). These are:

(a) to allow, in appropriate circumstances, a

mixture of compatible land uses such as

residential, retail, commercial, light-industrial

and industrial development, and

(b) to promote mixed use planning by locating

mutually supportive and compatible uses

such as residential uses, places of employment and retail uses in close proximity to each other so as to minimize vehicular travel, and

.

(e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and

(f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and

93 For objective (a), Mr Lovell states that the words "appropriate circumstances", should be considered in the context of the proposed use being a permissible use within the zone and the consistency with the Planning intent and Land use criteria for the Mixed Use Transitional precinct of DCP 1997. The proposed development promotes mixed use planning by providing retail facilities in proximity to residential uses, places employment, and other retail uses in the locality consistent with objective (b). The proposal also implements the principles of energy efficiency by providing an efficient adaptive reuse of an existing building in a locality well serviced by public transport and with convenient and direct access to higher order road networks consistent with objective (e). Finally, Mr Lovell states that the proposal is consistent with objective (f), in that the development facilitates the integration of an employment generating use in a well populated location serviced by public transport and with convenient and direct access to the higher order road network.

94 Ms Grose comes to a different conclusion. She states that for objective (a), the words "appropriate circumstances" must be considered in the light of the inconsistencies with the planning strategies that will ultimately result in a negative impact on the GSTC and the long standing urban strategies for South Sydney. It is one more supermarket than the GSTC can support at 2021 and will therefore affect the success of the endorsed centres. In her opinion, the site was not identified as a centre in the endorsed hierarchy because the location is not appropriate as it is not near a dense residential population, public spaces or community facilities and is not located near the proposed "Green Loop" public transport corridor.

95 The inconsistency with objectives (b), (e) and (f) relates to the proposed supermarket not promoting increased public transport usage, transit orientated development and reduced private vehicle trips because of its out of centre location and lack of proximity to other business users, public spaces, new public transport infrastructure or community facilities and therefore misses the opportunity for mixed use trips or to encourage increased public transport use.

Findings

96 On the issue of consistency with the zone objectives, I agree with Mr Lovell on objectives (a), (b), (e) and (f). For objective (a), the words "appropriate circumstances" must be read in conjunction with the other words in objective (a). The objective talks about compatibility between a range of different land uses that are permissible within the Mixed Use Zone. Reading the objective as a whole, the words "appropriate circumstances" must mean that the mix of uses should only occur where the circumstances are appropriate. For example, it would be inappropriate to have an industrial use operating 24 hours a day next to a residential use. Conversely, it may be appropriate for a retail use to operate during business hours next to a residential use. The interpretation of Ms Grose, in my view, extends the intent of the objective far beyond what is intended.

97 For objectives (b), (e) and (f), I am satisfied that the location of the proposed development is consistent with minimising vehicular travel, implementing sustainable development practices and maximising public transport patronage and non-vehicular accessibility given the close proximity to residential development, places of employment and retail uses. I do not accept that it is necessary to achieve the level of accessibility suggested by Ms Grose to be consistent with objectives (b), (e) and (f).

98 In coming to this conclusion I have relied on the decision of Her Honour Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190. In Schaffer Her Honour, after citing a passage from the judgment of Clarke JA in Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185, because Her Honour considered it provided “some guidance” to the task of construction. Her Honour expressed the following opinion at 27:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

Objective (h)

99 Objective (h) states:

(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.

100 For the reasons mentioned earlier on the inadequate car parking and the inadequate landscaping, I am not satisfied that the proposed development is consistent with objective (h) in that the nuisance generated by non-residential development, such as...loss of privacy, vehicular and pedestrian traffic….is controlled so as to preserve the quality of life for residents in the area.

101 Pursuant to cl 10 of LEP 1998, development consent cannot be granted and the appeal could be dismissed for this reason alone.

Economic impacts

102 While having previously found that the Retail Study did not apply to the site, the matter for consideration in s 79C(1)(b) is still relevant. Section 79C(1)(b) requires consideration of:

(b) the likely impacts of that

, including ….economic impacts in the locality, and

103 Mr Peter Leyshon provided evidence for the applicant and Mr Patrick Fensham provided evidence for the council based on the Retail Study as it was raised as a contention by the council. For convenience, I propose to address their concerns in the manner set out in their evidence. Mr Leyshon and Mr Fensham address the following five main areas:

Is there a threat to planned centres and wider planning strategies?

104 Mr Leyshon states that the centres planned for Green Square and the Southern Industrial Area will trade successfully with the proposed supermarket and associated shop. In his assessment, the potential pool of future supermarket expenditure from the existing and future residents will support the proposed, existing and under-construction supermarkets. Minor or marginal supermarket floorspace additions are not sufficient to impact on the success of planned centres, including Ashmore. Mr Leyshon notes that the proposed supermarket has less floor space than the approved retail floor space on the site.

105 Mr Fensham notes that the proposed supermarket is located between the GSTC (900 m) and Ashmore (500 m) which are centres in council’s adopted retail hierarchy and also recognised in a number of State government planning documents. Importantly, the GSTC is nominated as a planned major centre. Whether the total supermarket floorspace is supportable is less relevant in Mr Fensham's view, than the role of supermarkets of this size and larger as anchors and catalyst for centres. The proposed supermarket will create a "centre by default" where there is already significant existing retail (10,600 sq m) outside the hierarchy adopted by the Council. This would draw retail expenditure, in general, away from the GSTC and undermine the wider planning strategies.

Will the proposed development undermine public investments?

106 Mr Leyshon states the proposed supermarket is insufficient to affect or reduce private investment in the GSTC and the surrounding region. Consequently will it will not undermine public investment. The proposal will also not create a significant level of commercial uncertainty about the GSTC given its scale, the potential traditional retail floor space in the GSTC and the fact that it will dominate retailing in the surrounding region.

107 Mr Fensham states that the commercial success of the GSTC is fundamental to creating the "value uplift" to ensure a financial and social return on the major past and proposed infrastructure and community investments. Allowing "ad hoc" competing developments creates uncertainty and raises the risk of sub-optimal return.

Is

the site appropriate for a supermarket?

108 Mr Leyshon states that the council has already approved a supermarket of 1810 sq m supermarket, plus a fresh food store and major liquor outlet on the site. The proposed supermarket will share the site with the established liquor outlet and the approved cafe and will provide a convenient location for groceries, fresh food, liquor, coffee, beverages and light meals and other retail or service activities. It is well located in terms of public roads and public transport network and will also enable local residents to walk to retail services. Mr Leyshon notes that since approving the supermarket on the site in December 2008, the council has continued to approve convenience retail activities, including a grocery store of 700 sq m and a food market of 1800 sq m adjacent to the site, presumably because it regards this as a suitable site for such retail services.

109 Mr Fensham states that the site is not appropriate because it creates a "centre by default" in a location not identified for a centre. Further, the area is not identified for additional residential development, it is not on short-term public transport priority corridors and does not provide any other non-retail uses that typically form a centre such as open space, community services and leisure activities.

Will there be a loss of economic opportunities?

110 Mr Leyshon states that the proposed development involves only a minor increase in size of the already approved supermarket, the addition of a small shop and a net reduction of overall retail floor space on the site. In his opinion, the development will actually reduce the economic impact of approved retailing in relation to centres in Green Square and the Southern Industrial Area. The increase in sales associated with the marginal increase in supermarket floorspace is by itself insignificant and will not prevent the effective development of proposed supermarket-based centres, including that in Ashmore Village.

111 It is acknowledged by Mr Leyshon that the GSTC will, in time, have a wide range of retail and related activity to support the level of commercial office development, which will be required to meet the stated subregional employment target of 14,000 jobs at Green Square. The council resolution of November 2008 flags increased retail floor space to the GSTC, which will further underwrite its dominance and assist in achievement of the desired employment outcome.

112 Mr Fensham states that increased development in centres delivers multiple quantifiable benefits including fewer vehicle kilometres travelled, reduced greenhouse emissions, time savings, more cycling and walking, reduced land consumed on the urban fringe, some infrastructure cost savings and a range of employment agglomeration benefits. These benefits underpin the strategic planning for centres.

113 Allowing the proposed development outside the planned hierarchy of centres will undermine the potential for concentration of employment and activity in the GSTC, in particular, and thereby undermine prospects for achieving the anticipated economic benefits.

What is the appropriate retail expenditure?

114 In response to the evidence of Ms Grose that five supermarkets will be generated in the trade area by 2011 and that six to seven supermarket-based centres would be supportable in the trade area by 2021, Mr Leyshon states that this assessment overlooks the existence of Aldi and Wolworths supermarkets at Eastlakes, the three smaller IGA and SPAR supermarkets of less than 1000 sq m in Waterloo and Rosebery and the fact that the existing and proposed supermarkets vary in size significantly. Also Ms Grose has not take into account the approval of the 1810 sq m supermarket on the site. Any meaningful analysis of future needs of supermarkets should be based on a consideration of the demand for supermarket floorspace not just a simplistic count of the number of supermarkets, irrespective of their size.

115 Mr Leyshon disagrees with the assumption in the Retail Study that only 40.5% of the available supermarket spending in the Green Square trade area would be retained in 2011, 2016 and 2021. In his opinion, a more of appropriate planning assumption is that 85% of available supermarket spending will be retained. This is based on the preference of residents of any part of metropolitan Sydney overwhelmingly to shop locally for supermarket goods. There are significant benefits, which flow from localising supermarket shopping, particularly given that such shopping constitutes approximately 30% of all retail transactions by value.

116 Adopting that 85% of available supermarket spending will be retained in the Green Square trade area (and including floorspace of the smaller supermarkets within the trade area) and also assuming 2 full-line supermarkets of 3500 sq m each in the GSTC and 1 full-line supermarket of 3500 sq m in Ashmore, Mr Leyshon calculates that there will be a significant shortfall of supermarkets space in the Green Square trade area in the order of 11,671 square metres by 2011. By 2021, the shortfall will be in the order of 6455 sq m. On this basis, the proposed supermarket could be added to the retail hierarchy without threatening the provisions of supermarkets in the endorsed centres.

117 A sensitivity analysis by Mr Fensham shows that by using a 70% retention of available supermarket spending, there will be a shortfall of 5966 sq m at 2011 and a small oversupply at 2016 (350 sq m) and 2021 (737 sq m). This analysis provides for 11 supermarkets of 3000 sq m compared to the 6 or 7 supermarkets in the Retail Study and 13 or 14 estimated by Mr Leyshon based on 85% retention.

118 While Mr Fensham suggests that Mr Leyshon’s estimates allocate all supermarket floorspace to large supermarkets (that is, greater than 3000 sq m) this is rejected by Mr Leyshon. He states that the estimates merely intend to convert supermarket floorspace demand into a theoretical number of supermarkets based on an average floor area of 3000 sq m. He acknowledges that there will be supermarkets developed in the trade area in future years which are considerably greater than 3000 sq m and similarly some will be much smaller.

119 Mr Fensham states that a 40% retained supermarket expenditure may be a reasonable assumption if it is assumed that part of the "leakage" is to smaller supermarkets, not included in considering the need for larger supermarket-based centres.

Findings

120 On this issue, I agree with the conclusions of Mr Leyshon. First, I am not satisfied that the proposed supermarket will threaten the planned centres and wider planning strategies identified by Ms Grose. Importantly, the site is located outside the GSURA and the GSTC and in the absence of any specific provisions within LEP 1998 or DCP 1997 that requires consideration be given to these areas in the assessment of development application for supermarkets then it could be reasonably assumed that this form of development was not considered by the council to impact on the GSURA and the GSTC. The evidence of Mr Gross and Mr Fensham would be more relevant and have far greater force if the site was is located in the GSURA or the GSTC.

121 I find it difficult to reconcile the evidence of Mr Fensham when he states that the proposed supermarket will create a "centre by default" given the liquor outlet approval, the supermarket approval and the fresh food approval on the site; the latter two having a combined retail floor area greater than the proposal. While Mr Fensham describes the approvals as “regrettable” and Ms Grose states the "the views of the assessing officer are not consistent" with her views, the approvals are nonetheless valid and the submission of Mr Green, for the applicant, indicates that these approvals will be taken up if consent is not granted for the supermarket.

122 I accept the evidence of Mr Leyshon that even if there is some drain of retail expenditure from the planned centres, it is likely to be relatively small and not have any meaningful impact on the long-term implementation of the planned centres.

123 Second, I agree with Mr Leyshon that the proposed supermarket is unlikely to affect private investment in the GSTC and surrounding areas. Again, the site is not located within the GSURA or the GSTC or subject to the specific requirements of these two areas. The proposal is permissible with consent under the Mixed Use zoning in the form proposed in the application. If the protection of the GSURA or the GSTC from retail development outside these areas was seen as an important consideration by the council then specific requirements should have been provided in LEP 1997 and DCP 1998 beyond the general consideration required by s 79C(1)(b).

124 Third, I do not accept that there will be an unacceptable loss of economic opportunity given that the proposed development is permissible within the Mixed Use zone. In my view, the supermarket will perform a different role to the centres identified in the Retail Study. The Retail Study states that the GSTC ultimately could support a sub-regional size centre with a wide range of facilities that will attract people beyond the need to satisfy their supermarket shopping needs. It is to be social, commercial and recreational focus of Green Square as well as the retail focus. Similarly, Ashmore Village is to have wider role than just a retail centre. The Retail Strategy identifies a Village potentially comprising a small supermarket and 10 to 50 retail stores. A typical Village within the Study Area should comprise a supermarket and around 20 shops, or approximately 6000 sq m of retail floor area. While the proposed supermarket will attract people to the site because of the range of goods available for sale at the supermarket, the attraction will be limited largely to those people seeking retail consumable goods. The wider shopping needs of people will not be met, except to a small extent by the unallocated single specialty shop and the approved liquor outlet. In my view, the wider needs of the future population of the area will be rightly addressed through the planned centres.

125 Fourth, the retail expenditure sensitivity analyses carried out by Mr Leyshon and Mr Fensham come to significantly different conclusions however I more inclined to accept the conclusions of Mr Leyshon based on the fact that that the preference of future residents is likely to be to shop locally for supermarket goods. For this reason, I agree that reliance on a retention rate of 40.5% of the available supermarket spending for the Green Square trade area is overly pessimistic. I am also mindful of the , general thrust of the planning for Green Square that seeks to provide a compact, mixed use, high-density urban environment that encourages future residents to shop, socialise and recreate locally.

126 The analysis carried out by Mr Fenshon using a 70% expenditure retention rate indicates a shortfall of retail space of 5966 sq m at 2011 and a small oversupply 2016 (350 sq m) and at 2021 (737 sq m). Given the inexact nature of the analysis, I am satisfied that that even a expenditure retention rate below the 85% used by Mr Leyshon would allow the proposed supermarket to exist without threatening the provision of supermarkets in the planned centres.

127 Fifth, I have given greater weight to the use of retail floor space rather than the number of supermarkets as a basis for assessment. While some of the evidence and also the contents of the Retail Study made reference to "supermarkets", the use of this term, in my view, is problematic because of the large variation in the floor area. Similar problems were experienced with the term “full-line supermarket”.

Noise

The evidence

128 Mr Stephen Cooper provided evidence for the council and Mr Richard Haydon provided evidence of the applicant. They produced individual reports and conferred on a joint report based on the Industrial Noise Policy. The acoustic assessment includes noise emissions resulting from the proposed operations, including mechanical plant and equipment, trucks and use of the loading dock, use and collection of trolleys (using the trolleys from the approved liquor outlet), cars starting and car doors/boots closing.

129 The analysis of acoustic impacts utilise measurements in terms of Sound Exposure Level to permit the logarithmic addition of multiple events/source locations to derive the predicted LAeq (15 minute) noise levels at the various receiver locations. The development application acoustic assessment and the revised acoustic assessment show that audible noise will be emitted from the site however the computer modelling shows for the majority of the assessment locations, the cumulative noise from all activities on site will achieve compliance with the Industrial Noise Policy intrusive noise target of background +5dB(A) when assessed as an

130 The experts agree that the acoustic assessment would satisfy the requirements of condition 47 of council standard conditions, with the exception of a calculated marginal exceedance of 0.6 dB during a worst-case daytime scenario and 1.2 dB during a worst-case evening scenario at the critical receiver location. It was also agreed that the exceedances could not easily be distinguished by the human ear from a complying noise level and that the exceedance would not be a reason to refuse the application.

131 The experts also agreed that off site traffic noise would comply with the Industrial Noise Policy recommended criteria.

132 After the site view but before the hearing commenced in Court, Mr Cooper reconsidered his position based on notes provided to him on the evidence given by residents on-site as he was not in attendance at the site view. Mr Cooper states that the objectors evidence has identified additional noise sources that were not addressed by the applicant's acoustic assessment and therefore not covered in the joint report. In his opinion, the comments of the objectors raised the possibility that the modelling that was undertaken may not represent normal operating conditions. The extent and magnitude of noise disturbance described by the residents indicates to Mr Cooper that the individual noise events are clearly detected at nearby residential properties, in particular those looking down on the open car park area.

133 The evidence of the objectors identifies a significant degree of disturbance generated by the current operations and therefore any intensification of the site must lead to a greater degree of disturbance. Mr Cooper is of the view that the objectors evidence clearly indicates that there is a level of disturbance generated by the current activities that interferes with the rest or repose of persons. In his opinion, this falls within the definition of "offensive noise " under the Protection of the Environmental Operations Act 1997 (POEO Act).

134 Mr Cooper makes a number of assumptions on the potential increase in the level of disturbance and concludes that it is impossible to conclude that the intensification of activities on the site would not generate "offensive noise".

135 Mr Haydon states that Mr Cooper has been provided with access to the modelling and calculation results, has reviewed the acoustic model of the site and is well aware that the analysis undertaken has included the entire site operations, including the proposed supermarket and the mechanical noise sources from the liquor outlet, operational noise, and car park activities.

136 Mr Haydon rejects Mr Cooper's conclusion that the existing development and proposed development would fall within the definition of " offensive noise". He states that while it is appropriate that the subjective evidence of objectors may be something to take into account when forming his opinion, it should not be the sole basis upon which he forms that objective opinion. In his view, an objective opinion is required to be based on scientific facts, objective analysis and conclusions drawn from those facts and analyses.

Findings

137 Noise was an issue raised by the number of residents in a number of different circumstances. The difference circumstances, both internal and external to the site, were addressed in the joint report by Mr Cooper and Mr Haydon where it was found that the noise generated by the proposed development and existing liquor outlet would satisfy the council’s standard conditions for this form of development. Where there was a departure from the agreed acoustic level, the departure of was not significant and would not be a reason to refuse the application.

138 The late evidence of Mr Cooper raised the additional contention of whether the noise generated from the site would be classified as "offensive noise " under the POEO Act. Offensive noise is defined in the Dictionary to the POEO Act as follows:

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

139 The Department of Environment, Climate Change and Water has published Noise Guide for Local Government dated August 2009 (the DECC guidelines). In Pt 2 headed Noise Assessment, the DECC guidelines, in part, state as follows:

2.1.4 Offensive noise test

In the above cases, the times of use or duration of the noise automatically make the noise offensive. In other cases it will be necessary to consider a range of factors to determine whether the noise is offensive, including the following:

the loudness of the noise, especially compared with other noise in the area
the character of the noise
the time and duration of the noise
whether the noise is typical for the area
how often the noise occurs
the number of people affected by the noise.

The checklist [below] is a guide for council officers and authorised persons to making a systematic judgment about whether a particular noise is offensive. It is important to conduct any tests at the location where the complainant is affected by the noise. This checklist is not exhaustive and it is not intended that all the questions are answered ‘yes’before a noise can be deemed offensive.

When determining whether noise is offensive, officers need to have regard to the definition of offensive noise in the POEO Act and put aside any personal preferences that might bias their assessment. An example of this might be a personal preference for classical music when assessing noise from a party playing rock music. It is important to note that an article or activity may cause offensive noise at any time of the day or night even if it occurs at a time when the use of the article or activity is permitted to be audible under the Noise Control Regulation. Although noise measurements are not essential to test whether noise is offensive, an officer may choose to take measurements using a calibrated sound level meter if they think it will assist the process, especially to support a prosecution or where a penalty notice is likely to be challenged.

Offensive noise test: Checklist of considerations
Q1: Is the noise loud in an absolute sense? Is it loud relative to other noise in the area?
Q2: Does the noise include characteristics that make it particularly irritating?
Q3: Does the noise occur at times when people expect to enjoy peace and quiet?
Q4: Is the noise atypical for the area?
Q5: Does the noise occur often?
Q6: Are a number of people affected by the noise?

2.2.2 Difference between offensive and intrusive noise
Offensive noise is a subjective concept and in a number of situations it can be assessed without the use of a sound level meter. However, in order to answer the second part of Q1 in the checklist, it may be necessary to measure the level of the subject noise above background. Measured noise levels may also be useful when discussing with others how loud the subject noise is relative to other noises in the area. An intrusive noise level (which is a certain defined level above background) requires measurement. Noise Control Notices and Prevention Notices can prescribe noise levels that need to be achieved which are below an intrusive noise level, as defined. However, when considering whether a Noise Control Notice or Prevention Notice should be issued, the
broader considerations in assessing offensive noise should be taken into account. Even if noise is above the intrusive noise level defined in a particular policy, officers should use their discretion about whether to take action. For example, issuing a direction or notice may not be in the public interest if no one has complained.

140 Mr Cooper and Mr Haydon addressed the questions in the checklist for considering whether a noise may be "offensive noise " and came up with different conclusions. Mr Cooper says the noise likely to be generated by the proposed development would be classified as "offensive noise" under the POEO Act whereas Mr Haydon comes to the opposite conclusion.

141 At the time of the residents giving evidence the site, the question of whether the noise was "offensive noise" not at issue and there was general agreement between Mr Cooper and Mr Haydon on the methodology and conclusions of the noise assessment.. While Mr Cooper did not attend the site view, I understand his additional concerns were based on the written submissions of the residents. While the question of whether the noise generated by the proposed development would be offensive noise under the POEO Act is academic given the unacceptable aspects of the proposed development addressed earlier, I am not satisfied that on the evidence provided at the hearing, the DECC guidelines and on the balance of probabilities, a finding could be made that the noise was likely to be "offensive noise" taking into consideration the following matters:

any assessment may include both a quantitative and qualitative assessment, and the quantitative assessment found compliance with the relevant requirements in the Industrial Noise Policy,
the fact that noise may be audible does not automatically make that noise offensive,
noise would generally occur during the operation of the approved uses of the site and noise outside these areas may be controlled through specific requirements,
much of the noise identified by the residents could not be seen as excessive in an absolute sense, being noise consistent with approved uses on the site
the Mixed Use zone encourages a range of different land uses,
the established physical relationship between the Spectrum Apartments and the existing commercial/industrial buildings on the site, and
the expectation of a reasonable level of amenity must take into account the Mixed Use zone and the relationship with the approved development on the adjoining property.

142 Such a conclusion does not deny the opportunity for further action under the POEO Act for the noise generated from the site to be classified as "offensive noise " if further evidence is produced or circumstances change.

Signage

143 Clause 2.5.3 of DCP 2005 states:

Where the illumination of signage is likely to have an adverse impact on residential buildings, serviced apartments or other visitor accommodation it will be generally not be permitted.

144 The proposed development contemplates illuminated signs and while the number of the proposed signs were in dispute, further discussions between Mr Lovell and Ms Young resulted in only Sign 4 remaining in dispute. Sign 4 is a building name sign and located above the entry to the proposed supermarket. Because of the location of Sign 4, Ms Young states that it will have an acceptable impact on residents of Spectrum Apartments.

145 Given the distance from the adjoining Spectrum Apartments and with limits on the times of elimination, I am satisfied that the location of Sign 4 would not be a reason to refuse the application.

Orders

146 The Orders of the Court are:

___________

G T Brown

Commissioner of the Court

29/07/2010 - typographical errors - Paragraph(s) 141

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Citations

ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1096

Most Recent Citation

ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1023

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ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1023

Cases Cited

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Statutory Material Cited

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CITATION:	ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1096 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT ROI Properties Pty Ltd RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10711 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- alterations and additions to an existing building to provide for a supermarket, shop and offices - inconsistent with the planning strategies for the area - inconsistent with zone objectives - excessive noise - unacceptable traffic impacts - insufficient off street car parking - unacceptable signage and insufficient landscaping
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Protection of the Environmental Operations Act 1997 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997 South Sydney City Council Development Control Plan No. 11 City of Sydney Signage and Advertising Structures Development Control Plan 2005
CASES CITED:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	15,16,17,18,19 March 2010
DATE OF JUDGMENT:	30 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr P Tomasetti SC SOLICITORS Maddocks Lawyers