Samkarjo Pty Limited v Marrickville Council
[2007] NSWLEC 564
•28 August 2007
Land and Environment Court
of New South Wales
CITATION: Samkarjo Pty Limited v Marrickville Council [2007] NSWLEC 564 PARTIES: APPLICANT
RESPONDENT
Samkarjo Pty Limited
Marrickville CouncilFILE NUMBER(S): 10275 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- Alterations to an existing shop, car parking spaces, waivure, floor space ratio LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001,
Marrickville Development Control Plan No. 19 – parking strategy, Marrickville Development Control Plan No. 27 – waste management,
Development Control Plan No. 28 – Urban design guidelines for business centre,
Development Control Plan No. 31 – Equity of Access and Liability,
Marrickville Development Control Plan No. 34 – King Street and Enmore Road Heritage
State Environmental Plan Policy No. 1 objectionDATES OF HEARING: 28/08/2007 EX TEMPORE JUDGMENT DATE: 28 August 2007 LEGAL REPRESENTATIVES: APPLICANT
Ms S. Duggan, barrister
Instructed by Bray, Jackson & Co. SolicitorsRESPONDENT
Mr G. Christmas, solicitor
for Marrickville Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
28 August 2007
JUDGMENT10275 of 2007 Samkarjo Pty Limited v Marrickville Council
1 This is judgment in appeal No. 10275 of 2007 between Samkarjo Pty Ltd v Marrickville Council in respect of a proposal to carry out alterations in an existing shop on the ground floor of No. 251 King Street, Newtown.
2 The proposed new shop front along Lennox Lane is 3.6 metre wide double sliding glass door with concertina style security grills located behind the glass line. The site is located on the north western side of King Street between Mary Street and Church Street. Whilst it’s primary frontage is to King Street the site also has frontage to Lennox Lane, which has been incorporated in part of a public car park accessible off Church Street and Lennox Street.
3 The site is on an allotment described as Lot 4 DP 84319 it is rectangular in shape having a 6.5 metre frontage to King Street and 6.8 metre frontage to Lennox Lane and an area of approximately 190 sq metres. It currently contains a 3-storey masonry building. The ground floor is currently occupied by a clothing store and the garages and toilet and storage. The first and second floors are currently occupied by an Adult Book shop and Adult entertainment lounge. The existing building occupies the entire site.
4 The proposal includes:
- a. The deletion of two existing car spaces
b. The removal of an office area/store room and male sanitary facilities.
c. The conversion of a female sanitary facility to a unisex, disable access sanitary facility.
d. The removal of the internal access stair between the ground floor and the first and second floors of the shop whilst retaining the King Street and Lennox Lane fire escapes and
e. Construction of a disabled access ramp between the upper and lower ground floor levels of the retail shop at the King Street and Lennox Lane frontage by breaking up the existing concrete floor and creating a ramp floor between the two locations.
5 The existing commercial/retail building comprised 440 square metres with a gross floor area with a floor space ratio of 2.3:1:1. The proposal with the conversion of the garages and storeroom into retail spaces makes those areas part of gross floor area and the building would have a floor space ratio of 2.5:1 under the relevant definitions.
6 The current vehicle access is provided from Lennox Lane with two tandem car spaces. The shopping strip of Newtown on King Street is characterised by mixed use developments with shops and retail and commercial spaces on the ground floor and either office or commercial spaces or residential above.
7 Adjoining the site at the rear is a council carpark with about 57 car spaces within it. There is an existing supermarket which has a rear lane pedestrian access, there is also a chemist shop and another retail shop called Pentimento, that also have access to the car park and Lennox Lane. The three give pedestrian through-links to King Street and the proposal would be a fourth link in this location. The adjoining use on the west is a bakery/ice-cream shop and on the east the site adjoins the retail space called Pentimento.
8 The statutory controls applicable are the Marrickville Local Environmental Plan 2001, the Marrickville Development Control Plan No. 19 – parking strategy, Marrickville Development Control Plan No. 27 – waste management, Development Control Plan No. 28 – Urban design guidelines for business centre, Development Control Plan No. 31 – Equity of Access and Liability, Marrickville Development Control Plan No. 34 – King Street and Enmore Road, the Development Control Plan No. 38 – Community Safety and the s 94 Contributions Plan 2004.
9 The subject property is zoned General Business 3(A) under the statute and shops and commercial premises are permissible within the zone with development consent.
10 The hearing was held on the site and evidence was heard and reports received into evidence from Mr K. Nash, town planning consultant for the applicant and Mr G. Pindar, traffic expert on behalf of the applicant. The Respondents evidence was heard by Ms H. Atwal, town planner and Mr J. Bertacco, traffic engineer for the council.
11 The issues in the appeal were:
- 1. The proposed development exceeds the maximum floor space ratio development standard under clause 33(1) of the Marrickville Local Environmental Plan 2001.
- Particulars:
(a) The existing building on the site has a floor space ratio of 2.31:1.
(b) The proposed development would result in a floor space ratio of 2.5:1.
(c) The objection to the development standard pursuant to State Environmental Planning Policy No. 1 is not well founded.
(d) The increase in the floor space ratio of the building is unacceptable having regard to parking issues specified in Issue 2.
- Particulars:
(a) Part B of the Marrickville Development Control Plan No. 19 - Parking Strategy and Section A14 of Marrickville Development Control Plan No. 28 - Business Centres requires 1 on-site car space per 45 square metres of gross floor area ("GFA") for commercial and retail premises.
(b) The existing building has a GFA of 440 square metres, which generates a demand for ten (10) car spaces.
(c) The proposed development would result in a GFA of 481 square metres which generates a demand for eleven (11) car spaces.
(d) The proposed development would result in the loss of two (2) on-site parking spaces.
(e) The proposed increase in floor space coupled with the loss of two (2) on-site parking spaces is unacceptable having regarding to the high demand for on-street parking in the locality.
- Particulars:
(a) Disabled sanitary facilities have not been provided within the premises in accordance with Marrickville Local Environmental Plan 2001 and Marrickville Development Control Plan No. 31 - Equity of Access and Mobility.
(b) This issue can be dealt with if the Applicant accepts a condition requiring the provision of disabled sanitary facilities to be provided in accordance with Marrickville Development Control Plan No. 31 - Equity of Access and Mobility.
12 In regard to Issue 3 the applicant during the hearing accepted the necessity to provide a disabled access, toilet facility on site and the ground floor toilet proposed in the design could be suitably amended. That issue being resolved, it left the question of the floor space ratio exceedence and the loss of car parking to be considered.
13 The State Environmental Plan Policy No. 1 objection showed that there was no change to a height, bulk and scale, nor any significant change in the appearance of the building. Therefore the provisions of the statute in regard to them relating to the floor space ratio were not offended. The proposed use of the ground floor is for a clothes shop as a single tenancy and this would provide a through link from King Street to the public car park.
14 The State Environmental Planning Policy No. 1 – objection also dealt with the objective of the floor space ratio control which is stated in the relevant development control plan:
- “to ensure that the density of the development within Marrickville’s business centres is consistent with the desired role and function of the particular centre and the capacity of the local road network to handle the traffic likely to be generated by new development:.”
15 There was no conflict with the proposal in regard to the desired role and function of the particular centre. The aspect of the objective relevant to this hearing is the capacity of the local road network to handle the traffic likely to be generated. It was agreed by the experts that the proposal to delete three car spaces, the two existing and the one generated by the additional floor space meant three more cars on the street, but they could be absorbed by the local road network.
16 There was in principal an objection from the respondent that it is inappropriate to expect that the local road network should absorb such additional spaces due to the cumulative result in the long term.
17 However, it must be noted that there is no specific evidence that the local car parking capacity of the road network is exceeded. Apart from the 57 car spaces in the public car park directly adjacent to the proposal, the evidence was there are 200 car spaces within 200 metres of the subject site. Most of the these are controlled by either a short time limit for the general public or a residents’ parking program.
18 In regard to the particular site Ms Atwal said, her main concern was pedestrian safety in Lennox Lane plus the already mentioned extra pressure on car parking in the streets.
19 The existing car parks on the subject site are not for customers for the subject site they are for tenants, so the two extra car spaces plus the one extra for additional floor space would be long term car parking.
20 It was evidence of the applicant’s traffic expert that being long term car spaces, there was no where that such spaces could be legally provided in the near vicinity of the subject site. As a result employee or tenants of the property would likely not bring a car to the property and use public transport or park well away from the site.
21 The council is of the opinion that car spaces in Marrickville are very valuable however, the applicant put that the owner of this property did not think so as it was felt that the particular car parks were not in regular use. Ms Atwal had in fact visited the site on a number occasions and taken photographs of the car spaces being used. Not only for car parking but also for unloading. It was her opinion that they were operational car spaces appropriate to the use of the site for retail premises.
22 The applicant’s expert noted that the use of the shop did not involve heavy transport. Most of it could be done by either cars or vans and that the provisions of parking outside the premises in King Street allowed periods for loading and unloading as well as periods for public parking. Also the public car park behind the site provided other opportunities throughout the day and loading and unloading would not necessarily be any problem.
23 This had also been dealt with by council in approving the other walk through shop spaces to the car park while waiving the car parking requirement for them. In addition on the subject premises regarding the two upper floors, the council in its recent approval gave a waivure of seven car spaces that it would have generated.
24 It was Mr Nash’s evidence that the council has apparently taken an attitude in this locality, that the priority in planning outcome terms as contained in the Newtown and Enmore Road control plan is to provide beneficial pedestrian links from lane ways and public car parks through to King Street. These additional commercial/retail frontages into the car park give better surveillance and enhance the pedestrian environment.
25 Mr Nash said even if one assumes that the car parks on the subject site are used, it should be noted that the area has many attractions. There are the Newtown shops, the nearby hospital and the University of Sydney. Together with the high residential population these attractors have created a high demand for parking in the nearby streets.
26 In order to cope with this council has only introduced resident parking management and time limited parking for others. There is no new public car parking intended for the locality in addition to that already provided. The applicable s 94 plan has no requirement for funding for new public car parking. The reason given by the experts for this particular situation is that the cost of purchasing public car parking had become so exorbitant that the council had decided that it would not provide any more.
27 It seems to me, de facto that the council has preferred the alternatives of encouraging people to use public transport and to encourage local residents to walk to the shops, and for anybody else to park well away from the shops unless coming for short term shopping purposes. The traffic experts agreed the short time limits on parking are effective and they observe frequent change-over of parking spaces from one car to the next. The Dendy Cinema nearby is perhaps the only long term parking generator and has it’s own off street parking provided.
28 The applicant also demonstrated that the subject car spaces on site do not comply with Australian Standard 2890, they are too narrow. The experts agreed the car spaces are usable given some difficulty in manoeuvring in and out. Whilst Ms Atwal had concerns about pedestrian safety in Lennox Lane the engineers produced no traffic accidents recorded in Lennox Lane which is a public street. Ms Atwal raised this in regard to mixed pedestrian and vehicular usage of the car park including pedestrians emerging from the three existing through link shops. So it would appear that the concern in regard to public safety has not been confirmed by events.
29 Although there were allegations about the cumulative effect on the local street network as the result of three additional car spaces being directed onto them, there is no actual demonstration of the three additional car spaces exhausting the capacity of the network. It is also noted that Development Control Plan No. 19 for car parking allows the waiver of the car parking as the council had already done in the three other cases mentioned.
30 Clause B.7.1 of DCP 19 contains the tests and Mr Nash had analysed it and found that the proposal complied with most of the tests, he said:
- “the addition of 41 square metres of retail floor space would not have a measurable impact on the traffic in the locality nor on the peak parking and traffic activity of the proposed retail outlet
- The limitations of the site in Lennox Lane which is one-way west bound as evidence by the letter by Traffix dated 21 February 2007 and the swept path diagrams prepared by Mr Pindar in the joint report clearly demonstrate that the existing parking spaces in the building are not accessible in a safe or orderly manner.
- The site is on a major public transport bus route and within 200 metres of Newtown Railway Station. The availability of on street parking in Lennox Lane and the public car park with 57 spaces adjacent to the proposed rear retail entry to the ground floor retail shop provides excellent access for customers wishing to park in the locality. Competing demand for parking from the supermarket and other retail outlets is apparently adequately serviced by the public car park now.
- The demographic profile of Newtown and surrounding areas has changed over the past ten years in conjunction with the gentrification of the area and demand for student rental accommodations. Census surveys indicate a lower level of car ownership in the area compared to the greater Sydney Metropolitan Area.
- The operation of the three through site links off Lennox Lane, the pharmacy and Pentimento and the supermarket have not experienced any safety problems, and the one-way lane appears on the basis a recent site visit to operate in the form of shared pedestrian zone.
- The proposed new ground floor retail façade on Lennox Lane is consistent with the urban design and heritage controls in the councils DCP No. 34 and the proposal satisfies the objectives for DCP 19 as embodied in cl A.2.”
31 It was noted that Newtown is a multiple purpose shopping centre so that customers come here to do several things at once. The shop is unlikely to be a sole purpose destination and will derive its attraction from passers by so customers are coming to Newtown anyway.
32 By council waiving the car parking for existing shops to Lennox Lane plus the new use approved on the upper two floors of the subject property I have come to the conclusion that DCP 19 cl B.7.1 on waivure must apply, even though the respondent says it is for additional car parking only, not existing. Even if B.7.1 does not apply council must have granted the waivure concessions under cl B.6. of the same Development Control Plan. Mr Nash has analysed the relevant matters and his evidence appears to carry significant weight.
33 Also in regard to the objectives of the floor space ratio standard and the State Environmental Plan Policy No. 1 – objection I have reached the conclusion that there is no conflict with those objectives and therefore the objection can be upheld.
34 Therefore the orders of the Court are:
1. The appeal is upheld.
2. Development consent is granted to alterations to No. 251 King Street, Newtown ground floor only to provide retail space off Lennox Lane as shown in Drawings 3, 4, and 5 of 5 by AVJ Drafting in Exhibit A of this appeal all as amended by and built in accordance with the conditions in Annexure A.
3. The applicant’s offer to change Condition 28 to pay a s 94 contribution of $2992.19 for traffic management in lieu of 3 on site car spaces is adopted.
4. The exhibits are returned to the parties except Exhibits A, B, 2, 3, 8, 9 and 10.
___________________
- K G Hoffman
Commissioner of the Court
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