Walker v North Sydney Council
[2000] NSWLEC 211
•10/11/2000
Reported Decision: (2000) 110 LGERA 397
Land and Environment Court
of New South Wales
CITATION: Walker v North Sydney Council [2000] NSWLEC 211 revised - 29/11/2000 PARTIES: APPLICANT
RESPONDENT
Walker
North Sydney CouncilFILE NUMBER(S): 10350 of 2000 CORAM: Cowdroy J KEY ISSUES: Development :- refreshment room - refreshment room permissible with consent - local environmental plan seeking to ensure retention of neighbouring shops - development failing to comply with parking requirements of development control plan - draft local environmental plan prohibiting refreshment rooms in applicable zone. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 ;
Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181;
Mathers v North Sydney Council [2000] NSWLEC 84DATES OF HEARING: 20/9/00, 21/9/00, 22/9/00 DATE OF JUDGMENT:
10/11/2000LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan (Barrister)SOLICITORS
Staunton Beattie SolicitorsRESPONDENT
SOLICITORS
Ms D Townsend (Solicitor)
Mallesons Stephen Jaques
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10350 of 2000
CORAM: Cowdroy J
DECISION DATE: 11/10/00
Applicant
Respondent
1. In these proceedings, Victoria Walker (“the applicant”) appeals against the refusal of North Sydney Council (“the council”) of development application no 706/00 (“the development application”) for a proposed refreshment room on the ground floor of premises at 171 Blues Point Road McMahons Point (“the site”).
2. The site is located on the corner of Blues Point Road and Lavender Street, McMahons Point. Erected upon the site is a two storey building, the ground floor of which has been used as a jewellery shop and the upper floor as a residence.
3. The site is affected by the provisions of the North Sydney Local Environmental Plan 1989 (“the LEP”) and pursuant thereto is zoned 2(d)(Residential/Neighbourhood Shops). Within the 2(d) zone the use of refreshment rooms is permissible with development consent.
4. The particular objectives of such zone, relevant to the present proceedings are sub-para (b) and (c) of the LEP which provides:-
(b) To provide opportunities for the establishment and retention of retail facilities and related services to serve the needs of surrounding residential areas;
(c) To prohibit development for the purposes of commercial premises in order to encourage the retention of neighbourhood shops.
5. The site is also affected by the North Sydney Development Control Plan No 1 (“the DCP”). Part 7 of the DCP relates to carparking. Clause 55 of the DCP relevantly provides:-
(1)
A building may not be erected on any land to which the LEP applies unless car parking is provided on that land in accordance with the requirements set forth in Schedule 1.
(2) The provision of parking spaces should not exceed the requirements set out in Schedule 1.
6. Schedule 1 to the DCP provides that one parking space per ten square metres of floor area used for seating is to be provided for refreshment rooms.
7. The site is also contained within the Draft North Sydney Local Environment Plan 2000 (“the draft LEP”) as ‘Residential D Zone - Neighbourhood Business’. The objectives of such zone are provided in the draft LEP as follows:-
The particular objectives of this zone are to:
(a) encourage a wide range of services and shops which serve the surrounding residential neighbourhoods;
(b) to permit a range of small scale businesses which serve local needs;
(c) encourage active street life while maintaining high residential amenity; and
(d) encourage shop top housing.
8. The draft LEP has been exhibited on three occasions namely between the 9 September 1999 to 20 October 1999; the 13 March 2000 to 13 April 2000; and 18 May 2000 to 15 June 2000. Upon the first exhibition no clause existed relating to the establishment of refreshment rooms in Blues Point Road. However following submissions received by the council a draft clause was prepared (originally described in the exhibited plans as cl 44 but subsequently re-numbered as cl 68) which was incorporated in the draft LEP and was included in the two subsequent exhibitions. Such clause provides:-
Objectives of refreshment rooms controls
68 (1) The specific objectives of the refreshment rooms controls are to:
(a) to ensure that refreshment rooms do not dominate the part of the residential D zone that has frontage to Blues Point Road or reduce the level of neighbourhood service in the area;
(b) prohibit additional refreshment rooms in the part of the residential D zone that has frontage to Blues Point Road; and
(c) provide for the continuation of existing refreshment rooms in the area.
Refreshment rooms controls
(2) The Council must not grant consent to the development of a refreshment room in the residential D zone on any allotment with frontage to Blues Point Road, except as provided in sub-clause (3).
(3) The Council may consent to alterations and additions to an existing refreshment room listed in schedule 13 if there is no increase in:
(a) the gross floor area of the refreshment room; or
(b) the maximum the number of people catered for at one time.
The issues
9. The issues in this appeal have been stated by the parties as follows:-
1.
Whether the proposal should be approved having regard to the proposal’s inconsistency with the objectives of the 2(d) zone of North Sydney Local Environmental Plan 1989 (“NSLEP 1989”) which requires that business serve the local community.
2. Whether the proposal should be approved having regard to the nature of the proposed use and the proposed hours of operation and the impact upon the amenity of the surrounding residential area, particularly in regard to the additional noise impact of patrons of the premises and in the vicinity of the site.
3. Whether the development proposal should be approved having regard to its inconsistency with the on-site parking requirements of Clause 55 of the North Sydney Development Control Plan No 1 and its associated impact upon the amenity of the surrounding residential area.
4. Whether the development proposal being for a refreshment room should be approved have regard to the proposed prohibition of that use pursuant to Clause 44 [now cl 68] of the Draft North Sydney Local Environmental Plan 2000 (“NSLEP 2000”).
Issue 1: Inconsistency with the zone objectives
10. Much evidence concentrated on the issue of the inconsistency of the proposal with 2(d) zone objectives. In summary, Ms Fiona Munn, an assessment officer who until recently was engaged by the planning and development service of the council provided extensive evidence that the proposal did not satisfy the 2(d) zone objectives. According to Ms Munn the current provision of one-fifth of the ground floor of shop premises in zone 2(d) as refreshment rooms represents a desirable and sustainable concentration of such land use in this location. In council’s opinion an additional refreshment room would result in the concentration of that use which would adversely affect the residential neighbourhood by reducing the range of facilities and services which might be provided by other neighbourhood shops.
11. An Area Character Study (“the Study”) had been undertaken as part of a comprehensive review of planning of North Sydney. The Study included the McMahons Point Planning Area and a sub-area thereof namely the Blues Point Area. In the Study it was stated that residents were concerned with the loss of local service facilities within the Blues Point Road shops. The relevant portion of the study provided:-
The Blues Point Road shops are a focus for the neighbourhood, unifying the residential area located on the two sides of Blues Point Road.
Shops and services cater to the local community. Restaurant and outdoor cafes add vitality, however, their numbers do not dominate the shopping strip.
12. Mr Peter Andrew Le Bas, a town planner provided evidence for the applicant that the refreshment room facility would cater for the needs of the local residents and serve the community. He considered that the addition of another refreshment room in a densely populated urban environment would provide a greater choice of eating facilities for the local residents.
13. Ms Munn was extensively cross-examined concerning the accuracy of her mathematical estimate that one-fifth of premises in the 2(d) zone are used as refreshment rooms. A difference existed between the applicant and Ms Munn relating to the proper characterisation of at least one development which she had adopted in her calculations of refreshment rooms in the 2(d) zone, namely premises at 163 Blues Point Road. The applicant contends that such premises constitute a take-away shop and accordingly should not have been considered by Ms Munn for the purposes of her calculations. Any difference in characterisation is of little consequence as each of the premises relied upon by council offer the provision of food for consumption on the premises. As such Ms Munn’s inclusion of no 163 Blues Point Road in her calculations was valid.
14. Ultimately the issue concerning the restriction of the number of shops engaged in the same or a similar type of business must be determined in the context of the applicable planning instruments. Pursuant to the LEP, the zone objective of zone 2(d) is clearly designed to ensure that the retail facilities in such zone are primarily to serve the needs of the surrounding residential areas (see zone objective 2(b)). The Court must consider whether the grant of development approval would lead to a preponderance of such use in the zone and a precise mathematical calculation is of little assistance for this purpose.
15. A view of the site confirmed that there is an abundance of refreshment rooms in the vicinity of the site in the 2(d) zone. It is apparent from the objectives of the 2(d) zone that council wishes to ensure that there is an adequate mix of commercial uses in such zone to serve the neighbourhood. Council has taken into consideration the existing number of refreshment rooms in Blues Point Road in the 2(d) zone and has drawn the conclusion that such a zone objective would not be achieved if development consent were given for an additional refreshment room.
16. The Court upholds the submission of council that there is already an adequate provision for refreshment rooms in the 2(d) zone. The council’s concern that the area of Blues Point Road in the vicinity of the site would become a “destination” for diners from outside the immediate area has considerable force. The council is justified in its submission that such proposed use would be inimical to its stated planning objectives.
Issue 2: Impact on amenity
17. In relation to the potential adverse physical impact of the development, Ms Munn considered that the provision for garbage storage was unresolved and that there was a lack of information in the development application. During the hearing agreement was reached concerning arrangements for the storage of garbage. Details concerning the operation of the kitchen were non-existent. The effect of noise and odour upon a residential flat building located immediately to the east of the site cannot therefore be assessed.
18. Council did not pursue the issue of the physical impact of the proposed development. No evidence was led in support of council’s objection and no residents were called. Accordingly the Court is bereft of any evidence upon which any finding could be made on this issue.
Issue 3: Parking
19. The council submits that provision for parking is inadequate and contravenes the provisions of the DCP. Based upon information provided in the applicant’s Statement of Environmental Effects, the floor space for patrons in the refreshment room would cover 58 square metres. Applying the DCP requirement to this figure, 5.8 car spaces would be required at the site. Mr Christopher Hallam a traffic consultant retained by the council considers that 6 car spaces are accordingly required to satisfy the requirements of the DCP.
20. Mr Hallam considered the car parking space recommendations of the Roads and Traffic Authority’s “Guide to Traffic Generating Developments” in order to assess the reasonableness of the parking requirements contained in the DCP. After making various adjustments based on hypotheses as to the number of patrons Mr Hallam concluded that 6 to 8 car spaces would be required pursuant to the Guide. Mr Hallam did not however contend that such Guide had any direct application to the proposed development.
21. The applicant relies upon the existing two car parking spaces on the site as alleviating the shortfall in parking requirements. The applicant also contends that there is no need for additional parking on site because of street parking which might be available in the vicinity of the development. Additionally the applicant relies upon the objects of the DCP which seek to limit the impacts from traffic and provide for car parking as follows:-
54. The aims and objectives of this Plan are:
(1) To ensure minimal adverse impacts arising from traffic generation associated with any development.
(2) To limit car parking associated with development so as to minimise adverse impacts on the surrounding area.
22. The applicant submits that other refreshment room developments in the vicinity have no provision for parking although they were apparently granted development approval subsequent to the implementation of the DCP. In this respect it is submitted that the council by requiring the applicant to meet the parking limits prescribed by the DCP is acting inconsistently. The applicant also submits that the provision of one car space for the upstairs residence is not required, since cl 54 relates to ‘development’ and not to existing structures.
23. The council submits that the two existing parking spaces on the site should not be considered for the purpose of calculating the parking spaces required for the development, pointing out that the first floor dwelling requires one parking space pursuant to Schedule 1 of the DCP. Further, the remaining parking space would be required for a loading bay since cl 60(1) of the DCP states:-
(1) Commercial and industrial development shall include provisions for off-street loading and unloading facilities within the boundaries of the properties..
Sub-clause (2)(a) and sub-clause (2)(b) of cl 60 of the DCP specify the dimensions of the required loading bay. Mr Hallam considered that such provision was essential for loading and unloading of supplies since there may be no on-street demand for parking spaces generated by other businesses. In cross-examination he did however concede that a loading bay could also be used for parking when not required for deliveries of supplies.
24. The applicant submits that a loading bay is not required since the DCP applies to ‘ commercial and industrial development ’. The applicant relies upon the definition of ‘ commercial premises’ as contained in cl 5 of the LEP and used in Schedule 1 of the DCP. By virtue of cl 4 of the DCP such definition is adopted for the purposes of the DCP. Such definition provides:-
“commercial premises” means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place elsewhere specifically defined in this clause;
Since refreshment rooms are specifically defined, the applicant submits that the site is not ‘ commercial premises’ as defined and thus not a commercial development.
25. I reject this submission. Schedule 1 to the DCP applies to parking requirements for specifically defined development whereas cl 60 of the DCP applies to parking space provision for loading and unloading generally at commercial and industrial developments. The development of a refreshment room constitutes a commercial development, even though such development may not be defined as ‘ commercial premises’. Since cl 60(1) of the DCP specifically applies to commercial development, the proposed use is included.
26. Allowing the applicant the most liberal interpretation of Schedule 1, only two parking spaces exist. Such interpretation makes no parking space allocation for the residential use or for a loading bay. Accordingly there is a shortfall of four car spaces. Parking in Blues Point Road is usually in high demand. I reject the survey made by Mr Le Bas on the evening of 15 September 2000 as being representative of typical demand for parking, since it was made during school holidays and simultaneously during the Olympic Games Opening Ceremony. A traffic survey prepared by Mr John Hewitt for different proceedings was also relied upon by the applicant. I reject such survey as representative as it was undertaken during the school holiday period and is therefore unlikely to represent normal parking availability in the subject area. The Court also determines that there is no basis for the allegation that the DCP requirements for parking have been applied inconsistently. An examination of other refreshment rooms establishes that provision for loading and parking has been made at the rear of such premises, or that existing use rights have applied.
27. The development application pays no regard to the parking requirements contained in the DCP but rather relies upon street parking to satisfy the traffic concerns of the council. The kerb and footpath in Blues Point Road have been constructed to prevent parking adjacent to the site frontage to Blues Point Road. There is virtually no parking in Lavender Street near the site. The proposal to seat 36 diners will obviously result in the need for some patrons to drive to the site. The streets are already heavily used for parking as was evident on the view and if each of the existing spaces are allocated for the refreshment room, no parking would be provided for the residence and there would be no provision for a loading bay. I therefore reject the submission, as contained in the report of Mr Le Bas that ‘ there will be no significant change to car parking demand generated by the proposed development when considered relative to other permissible retail uses.’
28. The Court is invited to ignore the obvious shortfall in parking and in so doing, to ignore the requirements of the DCP. Such provisions are not mandatory requirements, but a consent authority would require sound reasons for departing from them since a DCP represents the carefully formulated planning objectives for an area. In the present application no reason exists to justify a departure from the requirements of the DCP.
Issue 4: Effect of the draft local environmental plan (“the draft LEP”)
29. The applicant submits that the draft LEP should be ignored on the basis that it remains only a draft. The applicant further submits that cl 68 of the draft LEP was not included in the original draft LEP and therefore should be given little or no weight. Clause 68 of the draft LEP prohibits refreshment rooms in 2(d) zone. The applicant also submits that the savings provision contained in cl 5(3) of the draft LEP applies. Such provision states:-
(3) Where a development application has been lodged but not determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this Plan had been exhibited but had not commenced.
30. In accordance with the observations of the Chief Judge in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 and Talbot J in Edward Listin Properties Pty Ltd v North Sydney Council (No 2) [2000] NSWLEC 181 and Mathers v North Sydney Council [2000] NSWLEC 84, the Court adopts the council’s submissions that the prohibition contained in draft cl 68 is to be given consideration as required by s 79 of the Environmental Planning & Assessment Act 1979 (“the EPA Act”).
31. Arising from the judgments of Talbot J and Pearlman J the adoption of the draft LEP is imminent and upon the balance of probabilities the Court is satisfied that cl 68 of the draft LEP will be incorporated in the new planning instrument (see Architects Haywood and Bakker Pty Ltd ). The Minister is entitled to alter the draft LEP pursuant to s 70 of the EPA Act in respect of matters of regional significance. Clause 68 is not such a matter and therefore the Court can conclude that it is likely to be incorporated in the final LEP. Since cl 68 was inserted in the draft LEP as a consequence of public submissions following exhibition of the first draft LEP it is to be given more, rather than less consideration by the Court. When implemented cl 68 of the draft LEP will prohibit refreshment rooms in the 2(d) zone and not merely permit such use with consent. The Court therefore gives due force to such clause and upholds the council’s submission that cl 68 of the draft LEP warrants rejection of the development application.
Conclusion
32. The evidence establishes that the development application is contrary to the planning objectives of the locality and that there is no adequate provision for on site parking. In addition, the draft LEP prohibits the development of refreshment rooms in the 2(d) zone. For these reasons the development application is rejected and the appeal dismissed.
Orders
33. The formal orders of the Court are:-
1. The appeal be dismissed.
2. Development application no 706/00 for a refreshment room at 171 Blues Point Road McMahons Point is determined by refusal of consent.
3. The exhibits be returned.
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