Wurley Group Pty Ltd v Woollahra Municipal Council

[2004] NSWLEC 696

Land and Environment Court

of New South Wales

CITATION:

Wurley Group Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 696

PARTIES:

APPLICANT
Wurley Group Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10878 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- demolition of an exisiting service station/car wash - erection of a new service station/convenience store and carwash/cafe - signage.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

06/12/2004

EX TEMPORE
JUDGMENT DATE :

12/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Sahade, solicitor

RESPONDENT
Mr M Connell, solicitor
SOLICITORS
Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 December 2004

10878 of 2004 Wurley Group Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 This is an appeal against a deemed refusal by Woollahra Council (the council) of DA 348/2004 for demolition of an existing service station and car cleaning facilities and an erection of a new service station and a convenience store and a car wash facility and café at 759-777 New South Head Road, Rose Bay (the site). The hearing was conducted as an On Site Hearing.

2 The Court had the benefit of two Court Appointed Experts in the areas of town planning and traffic, being Mr Peter Twiney and Mr Andy Ludvik respectively. The evidence of Mr Twiney was accepted by council and further conditions proposed by Mr Twiney were accepted by the applicant.

3 Prior to the hearing council, the other issues were reduced to a condition relating to signage.

4 Additionally, an objector Mr Martin who is resides in a residential flat building adjoining the rear of the site attended the On-site Hearing and raised objections to the hours of operation. He was advised that the hours of operation were restricted to a starting time of 8:00am on weekends and public holidays. Although preferring a later starting time on Sundays he generally accepted the proposed hours. On this matter, I accept that the proposed hours are reasonable considering the location adjoining the commercially zoned site.

5 On the question of signage, the applicant proposed two signs at the street frontage. One sign addressed the service station activities and is to be erected at the southern end of the site. It is around 6 m in height and 2.4 m wide. The second sign addresses the car wash and café activities and is located generally at the mid point of the site frontage. It is approximately 3 m high, tapering from 1.66 m at the top to around 1.2 m at its base. A total of 9 free standing poster boards are proposed on both side boundaries. They each measure 1.922 x 1.122 m

6 The council’s position was addressed by Ms Margaret Zulaikha, the councils Team Leader Urban Design. She stated that the signage was excessive and that signage for the car wash/café should be contained on the same service station sign, thereby requiring only one sign.

7 Mr Ludvik generally agreed with the applicant’s position on the street frontage signs largely because of the two separate identities on the site, the recessed nature of the development and the large 42 m site frontage. Of the free standing panel signs, Mr Ludvik advocates their removal as they are excessive for the size of the convenience store and it’s function.

8 With the benefit of the site view, I agree with Mr Ludvik.

9 The council’s Rose Bay Centre Development Control Plan (the DCP) provides little guidance on this issue because of the nature of the proposal. The aims of the DCP largely encourage residential development up to a four storey height limit with ground floor retailing commercial activities. The proposal clearly has problems addressing this future character even though the proposed uses are permissible within the zone.

10 Clause 6.3.9 of the DCP addresses signage and advertising. Much of the design principles and guidelines and controls address a form of development different to what is proposed in this application. What can be gleaned from cl 6.3.9 is that advertising should be “unobtrusive, informative and compatible with an attractive environment”, “avoid physical and visual clutter” and have a “coordinated presentation where there are multiple occupancies”.

11 In my view, the street signage addresses these requirements. The car wash/café sign is modest and is not of dissimilar proportions to an existing signs displaying petrol prices. The perception of size is also diminished by the location on the long 42 m frontage. I also agree with Mr Ludvik that the poster boards could be seen as excessive and visual clutter and accordingly they should be deleted.

12 For these reasons, the Orders of the Court are:

1. The appeal is upheld.

2. DA 348/2004 to demolish an existing service station and construct a new service station/convenience store and car wash/café at 759-777 New South Head Road, Rose Bay is approved subject to the conditions in Annexure “A”.

3. The exhibits are returned with the exception of Exhibit 4.

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