Reported Decision : (2002) 122 LGERA 288 Land and Environment Court of New South Wales CITATION : Terrace Tower Holdings Pty Limited v Sutherland Shire Council [No.2] [2002] NSWLEC 150 APPLICANT Terrace Tower Holdings Pty Limited PARTIES : RESPONDENT Sutherland Shire Council OBJECTOR Colonial First State Property Limited FILE NUMBER(S) : 10248 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Application :- Environmental Planning and Assessment Act 1979, s 79C Rivers and Foreshores Improvement Act 1948 LEGISLATION CITED: State Environmental Planning Policy No. 11 Sutherland Shire Local Environmental Plan 1993 Sutherland Shire Local Environmental Plan 2000 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; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; CASES CITED: Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209; Kentucky Fried Chicken Proprietary Limited v Gantidis and Anor (1977-78) 140 CLR 675 ; Mathers v North Sydney Council [2000] NSWLEC 84; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2002] NSWLEC 24 DATES OF HEARING: 07/03/2002, 08/03/2002, 11/03/2002, 12/03/2002, 13/03/2002, 14/03/2002, 15/03/2002, 19/03/2002, 20/03/2002, 21/03/2002, 22/03/2002, 25/03/2002, 26/03/2002, 27/03/2002, 28/03/2002, 23/05/2002, 27/05/2002 DATE OF JUDGMENT: 09/06/2002 APPLICANT Mr M Tobias, QC with Mr A Galasso (Barrister) SOLICITORS Landerer & Co RESPONDENT Mr G Green (Solicitor) LEGAL REPRESENTATIVES: SOLICITORS Pike Pike & Fenwick OBJECTOR Mr M Wright QC with Ms A Pearman (Barrister) SOLICITORS Mallesons Stephen Jaques JUDGMENT: TABLE OF CONTENTS I) THE APPLICATION 2 II) THE SITE 3 III) STATUTORY PROVISIONS 4 Sutherland Shire Local Environmental Plan 2000 4 Applicable Local Environmental Plan 5 Sutherland Shire Local Environmental Plan 1993 7 State Environmental Planning Policy No. 11 8 Draft State Environmental Planning Policy No. 66 8 IV) THE EVIDENCE 10 V) THE ISSUES 11 VI) PLANNING 11 Circular No.C11 - Flexible Industrial Lands Policy 11 Draft Retail Policy for the Greater Metropolitan Region 12 Integrating Land Use and Transport 15 VII) THE PLANNING ISSUE 18 The strategic question 18 Findings on Planning Issues 20 VIII) ECONOMIC IMPACTS 23 The Evidence 23 Findings on Economic Issues 27 IX) VISUAL IMPACTS AND LANDSCAPING 29 The Evidence 29 Findings on Visual Impacts and Landscaping 31 Department of Land and Water Conservation Advice 33 X) ON SITE TRAFFIC AND PARKING 34 The Evidence 34 XI) PUBLIC TRANSPORT 36 XII) FLOODING 37 The evidence 37 Findings on Flooding 40 XIII) STORMWATER DRAINAGE AND IMPACTS ON WOOLOOWARE BAY 41 The evidence 41 Findings on drainage 43 XIV) FLORA AND FAUNA IMPACTS 43 The evidence 43 Findings as to flora and fauna 44 XV) ORDERS 45 IN THE LAND AND MATTER No. 10248 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 06/09/2002 Terrace Tower Holdings Pty Limited Applicant v Sutherland Shire Council Respondent and Colonial First State Property Limited Objector JUDGMENT I) THE APPLICATION 1. This Class 1 application arises out of the deemed refusal by Sutherland Shire Council ("the council") of development application No 10126 dated 24 July 2000 ("the development application"). The application was made by Terrace Tower Holdings Pty Limited ("the applicant") and sought approval for a bulky goods retail centre on land known as lot 22 DP715660 Bay Road, Taren Point ("the site"). Colonial First State Property Limited ("the objector") has been allowed a limited right to participate in these proceedings as an objector to the development proposal (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2002] NSWLEC 24). I have heard these proceedings with Commissioner Bly. 2. The development proposal ("the proposal") comprises the erection of a two-storey building to have a maximum height of 12 m, and gross lettable floor area of 29,386m2 ("the building") together with car parking, landscaping and associated facilities. The building is designed to accommodate 42 tenancies ranging in size from 51 m2 to 2,641 m2. If approved the development would have 779 off-street car parking spaces in three separate areas, the majority being provided in front of the building at ground level. The proposal also includes landscaping treatment. The main access on to the site is proposed to be from Bay Road. There is a second access from Production Road, which extends from half way along the western boundary of the site. II) THE SITE 3. The site is of an irregular shape and has a total area of 48,634 m2. It is set to the eastern side of the suburb of Taren Point, having to its south east Woolooware Bay. Presently the site has been levelled and is covered with a bitumen surface having been previously used as a car storage and servicing area. An electrical pylon is located inside the western boundary and transmission lines cut diagonally across the site within a 30 m wide easement. 4. To the east of the site is a Harvey Norman warehousing complex which, at the time of the site inspection, was under construction. To the west of the site beyond Production Road are several industrial uses including a dog pound and bus depot. On the northern part of the western boundary is a drainage easement around 6 m wide, which supports a population of mangroves on its banks. The open drain is about 475 m long in total, including those areas that are not adjacent to the site, and discharges into Woolooware Bay which is towards the southern end of Botany Bay. Opposite the site to the south are various industrial premises. 5. On the northern boundary the site is separated from Woolooware Bay by a distance of roughly 10 m at the eastern end and 40 m on the western end. There is a foreshore reserve at the western end, which accommodates a building used by the St George and Sutherland Shire Anglers Club. A narrower section of the reserve stretches along the eastern end of the northern boundary adjoining Woolooware Bay. This foreshore area comprises intertidal mudflats backed by mangroves and other plant communities. Beyond Woolooware Bay to the north eastern boundary of the site is the Towra Point Nature Reserve, which has been listed as a wetland of international importance under the Ramsar Convention. III) STATUTORY PROVISIONS Sutherland Shire Local Environmental Plan 2000 6. Pursuant to Sutherland Shire Local Environmental Plan 2000 ("LEP 2000") the site is zoned 4 (a) General Industrial and in this zone "… bulky goods retailing" is permissible with development consent. Shops are prohibited except for "… shops ancillary to another permissible use or to serve the needs of local industries". Clause 5 of LEP 2000 relevantly provides:- Bulky goods retailing means use of a building or place primarily for the sale by retail or auction, or the hire or display, of goods or materials which are individually so big, bulky or heavy as to require: (a) a large area for handling, storage and display, and (b) direct vehicular access to the site of the building or place by members of the public for the purpose of loading items into their vehicles after purchase, but does not include use of a building or place for the sale of foodstuffs or clothing. 7. The relevant objectives of the 4(a) zone are:- (a) Appropriate forms of industrial development which will contribute to employment generation and the economic growth of the area. (d) A range of non-industrial land uses which provide direct services to those industrial activities and their work force. (c) To provide for shop and business uses ancillary to a permitted industrial use and also provide for bulky goods retailing and food shops on appropriate sites. 8. Part 5 of LEP 2000 contains provisions applicable in the industrial zone including: · a maximum floor space ratio of 1:1 (cl 50) · a maximum height limit of 12 m (cl 49) 9. Also relevant is cl 51 which provides as follows: 51 (1) Regardless of the development control tables in this plan, bulky goods retailing and food shops are prohibited on land in the 4(a) General Industrial zone which adjoins land zoned 5(c) Special Uses (Arterial Road) where direct vehicular access to the land in the 4(a) zone is gained from the land zoned 5(c) (2) Each individual bulky goods retailer must have a minimum gross floor space of 1000 square metres. Applicable Local Environmental Plan 10. Because the development application was lodged prior to the operation of LEP 2000, cl 6(2) ("the transitional provision") is applicable and provides as follows:- Despite Clause 4(1) local environmental plans (including Sutherland Shire Local Environmental Plan 1993) and deemed environmental planning instruments, as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made. 11. Clause 4(1) of LEP 2000 makes provision for the repeal of all local environmental plans which applied to the land to which Sutherland Shire Local Environmental Plan 1993 ("LEP 1993") applied. 12. The parties have raised an issue for determination concerning the effect of the transitional provision. The council submits that the Court is bound to consider the provisions of LEP 2000 and the restrictive provisions contained therein relating to bulky goods retailing contained in Part 5 thereof. The council contends that the Court is bound to pay regard to the fact that the applicant's proposals do not conform to the requirements of the 2000 LEP definition because goods available for sale will not be individually "so big, bulky, or heavy" as to require the specified area. In response the applicant submits that the Court should give little or no weight to the definition in view of the transitional provision. 13. The applicant submits that if the Court accepted the council's submissions the transitional provision would be rendered nugatory. 14. This Court has already considered the effect of transitional provisions in similar instances: see 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 84. The approach adopted by the Court in these circumstances has been consistent. The Court has recognised that it is bound, by virtue of the provisions of s 79(C)(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), to the provisions of any draft environmental planning instrument (see s 79(C)(1)(a)(ii)). In Architects Haywood and Bakker Pty Ltd Pearlman J observed the long standing practice of the Court concerning the weight to be given to draft environmental planning instruments when considering a development application. In that decision Her Honour placed significant weight upon the provisions of the proposed draft local environmental plan. In doing so Her Honour considered the effect of the savings provision and observed:- 34. The savings provision does not require a different approach. The effect of cl 5(3) is to place the Draft LEP in precisely the same position so far as concerns this development application whether it had formally come into force or still remained a draft as currently pertains. In either case, it is to be taken into consideration as if it had been placed on public exhibition, and accordingly given some weight in the assessment of the planning implications of the development application. 15. Her Honour observed that her approach did not differ from that adopted by Talbot J in Mathers and Edward Listin Properties Pty Ltd. 16. There is no reason to depart from these established principles. Absent the transitional provisions, the applicant's development application would need to be considered by this Court solely by reference to the provisions of LEP 2000. The savings provisions enable the Court to consider the development application pursuant to the provisions of LEP 1993. However the Court is required, by virtue of s 79(C)(1)(a) of the EP&A Act to give consideration to the requirements of LEP 2000 as one of the matters for consideration in the environmental assessment. The fact that the 2000 LEP has now been gazetted does not alter the affect of the savings provision. The only consequence of gazettal is that rather than being a draft, LEP 2000 now prevails. 17. Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993 although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209). Sutherland Shire Local Environmental Plan 1993 18. Under LEP 1993 the site is also zoned 4(a) General Industrial and in this zone "…bulky goods sales rooms or showrooms" are permissible with development consent and are defined as follows:- Bulky goods sales room or showrooms (bulky goods retailing) means a building or place used for the sale by retail or auction, or the hire or display, of items (whether goods or materials) which are of such size, shape or weight as to require: (a) a large area for handling, storage or display; or (b) direct vehicular access to the site of the building or place by members of the public, for the purpose of loading items into their vehicles after purchase, but does not include a building or place used for the sale of foodstuffs or clothing. 19. There is no minimum floor area requirement for bulky goods sales rooms or showrooms as is found in LEP 2000. As in LEP 2000 shops are only permitted if they are ancillary to a permissible use or to serve the daily needs and convenience needs of the workforce. The objectives of the 4(a) zone in the Development Control Table are as follows:- (a) Industrial development which produces a range of goods and services and provides employment, without adversely affecting the amenity, health or safety of nearby residents in adjacent residential areas, (b) Industrial development which does not pollute or adversely affect adjoining land or water, (c) Services and facilities that provides support to existing and future industrial development, (d) Other uses that are compatible with the industrial areas but due to their nature are difficult to locate in other areas. 20. The 4(a) zone is described in the Development Control Table as follows: This zone caters for a range of industrial development and services and facilities, however, "offensive or hazardous industries" or "toxic industries" are not permitted. Premises of a commercial and retailing nature are limited in the industrial zone, however, bulky goods retailing is allowed. 21. Since the floor space ratio of 0.77:1 is proposed, the development complies with cl 37 of LEP 1993 which sets a maximum floor space ratio of 1:1. 22. The site is, pursuant to cl 34, situated within a Foreshore Scenic Protection Area as identified on the map accompanying LEP 1993. Hence cl 36(1) is applicable: (1) Development in the Foreshore Scenic Protection Area must not exceed a height of 12 metres to the highest point of the roof. 23. This requirement is also met by the proposal. 24. Clause 14A of LEP 1993 which provides for a foreshore building line on the site was contravened by the proposal. However changes to the design whereby the building's set-backs from the Woolooware Bay have been increased, have resulted in compliance. State Environmental Planning Policy No. 11 25. Pursuant to cl 7(2) of State Environmental Planning Policy No. 11("SEPP 11") the application was referred to the Roads and Traffic Authority ("the RTA"). The RTA has now advised the council and the applicant that it agrees in principle to the provision of traffic control signals at Bay Road and Taren Point Road. Draft State Environmental Planning Policy No. 66 26. Planning NSW (formerly the Department of Urban Affairs and Planning) has released a Draft Integrated Land Use and Transport Policy Package ("the Land Use and Transport Policy") which includes Draft State Environmental Planning Policy No. 66- Integration of Transport and Land Use ("Draft SEPP 66"). The strategy of Draft SEPP 66 seeks to achieve "…the better integration of land use and transport planning at the local level" particularly in relation to the preparation of environmental planning instruments development control plans and the like and the consideration of development and applications. The aims of SEPP 66 are as follows: This Policy aims to ensure that urban structure, building forms, land use locations, development designs, subdivision and street layout help achieve the following planning objectives: (a) improving accessibility to housing, employment and services by walking, cycling, and public transport, (b) improving the choice of transport and reducing dependence solely on cars for travel purposes, (c) moderating growth in the demand for travel and the distances travelled, especially by car, (d) supporting the efficient and viable operation of public transport services, (e) providing for the efficient movement of freight. 27. Relevantly cl 9 of Draft SEPP 66 requires that before granting consent for development to which any of the planning objectives relate it must consider, inter alia, the following: (a) whether carrying out of the development will further the aims and the planning objectives of this Policy, (b) whether the development is consistent with the policy on location of specific land uses and the general policies in the Integrated Land Use and Transport Policy Package or complies with clause 10, … (e) whether it the development incorporates travel demand management mechanisms and features that will minimise the demand for travel and the use of cars including the following: (i) an urban form and structure that encourage walking, cycling and public transport use, (ii) parking requirements designed to discourage car use in areas with good public transport access, (iii) provision of adequate trip - end facilities for cyclists such as secure bicycle storage, (iv) residential densities that will help achieve a passenger threshold for viable public transport services especially in accordance with clause 13 for new residential release areas, (v) employment or floor space densities in commercial or employment areas that reflect the accessibility of the area by suitable public transport services and facilities, (vi) suitable provision for taxis. 28. Clause 14(d) of Draft SEPP 66 provides that the policy does not apply to: (d) a development application that has been made but not finally determined before the commencement of this Policy. 29. Consequently, and despite being a matter for consideration pursuant to s 79C of the EP&A Act, if Draft SEPP 66 were to have been gazetted, it would not be applicable to this development application. On this basis Draft SEPP 66 should be given no weight at all as a draft because this would be giving it more weight than if it were gazetted. Notwithstanding the fundamental planning principles contained within Draft SEPP 66, which emerge out of the Land Use and Transport Policy are matters which, in the public interest, are factors which can be taken into consideration. IV) THE EVIDENCE 30. On behalf of the council expert evidence was given by: · Mr S Layman - town planner · Mr J Coleman - architect and town planner · Mr M Hill - economist · Mr G Pindar - traffic Engineer · Mr C Hallam - traffic Engineer · Ms N Sonter - landscape consultant · Mr G Sainty – wetland scientist · Mr P Straw – avian ecologist · Mr G Amos – engineer stormwater management 31. On behalf of the applicant expert evidence was given by: · Mr G Sheils - town planner and urban designer · Ms J Binden - town planner · Mr R Albon - town planner · Mr P Leyshon - economist · Mr B Masson - traffic engineer · Mr C McLaren – traffic engineer · Mr R Lamb - landscape assessment consultant · Ms O Choong - landscape architect · Dr S Perrens – hydrological engineer · Mr D Fanning – ecologist · Mr G Winning – wetlands ecologist · Mr P Anink – environmental scientist · Mr R Tong – environmental consultant 32. On behalf of the objector, expert evidence was given by: · Mr R Chambers - town planner · Mr I Shimmin - economist V) THE ISSUES 33. The council provided an amended statement of issues containing 21 separately identified issues. The issues can conveniently be reduced to the following: 1. Planning 2. Economic impact 3. Visual impact and landscaping 4. On site traffic and parking 5. Public transport 6. Flooding 7. Stormwater drainage and impacts on Woolooware Bay 8. Flora and fauna impacts VI) PLANNING 34. In order to deal with the planning issue involving the question of whether this site is an appropriate one for a large bulky goods store of the kind proposed in an industrial zone, it is first necessary to examine several policy and similar documents which are applicable. Circular No. C11 - Flexible Industrial Lands Policy 35. This Policy was issued on 8th January 1990 and was revised in July 1991 to clarify the Planning NSW's recommendations for the retailing of bulky goods in industrial zones. It recommends that councils adopt a more flexible approach to planning in industrial areas in response to a growing demand where whole buildings are sought to be used for the sale of large bulky goods, which are not easily accommodated in traditional commercial centres. The Policy, whilst adopting a flexible approach, encourages the consideration of a number of constraints including the giving of priority to the needs of existing and future industrial development; the adequacy of existing roads and potential traffic increases; and the careful consideration of onsite vehicular movement, parking and loading facilities and effects on adjoining land uses. 36. The Policy particularly suggests consideration of the following (C11-3(2)): The impact on existing commercial centres of allowing commercial and retail uses in industrial zones. The economic viability of centres is an important consideration. The Department does not favour the introduction of general retailing uses such as supermarkets, or intensive commercial development. This is particularly so in areas where they could jeopardise the growth and viability of existing commercial centres, such as those identified in the Metropolitan Strategy [Sydney into Its Third Century: Metropolitan Strategy for the Sydney Region] . In addition, if retail outlets in industrial areas were permitted to sell food, clothing and general goods, people without cars would be particularly disadvantaged. 37. More particularly in relation to bulky goods retailing, the Policy recognises that bulky goods retail outlets need extensive areas for storage and showroom space and have special vehicular access and loading requirements which often cannot be met in conventional retail areas. Applications for bulky goods retailing need to be assessed on their merits including consideration of the need for the particular retailer to locate in an industrial zone and whether adequate provision can be made for vehicular access, loading/unloading and parking. It is intended that "…bulky goods retailing be the primary use of bulky goods sales rooms or showrooms, …not the exclusive use. The sale of other items is acceptable to the department where this is ancillary or subsidiary to the sale of bulky goods" (C11-5). The term "bulky goods" is unfortunately not defined but some examples of acceptable retailing situations are given and provide some assistance (C11-5):- · the retailing of home furnishings and homeware in association with a primary purposes of retailing bulky furniture; and · the retailing of small electrical goods in association with a primary purpose of retailing bulky electrical goods. Draft Retail Policy for the Greater Metropolitan Region 38. Planning NSW's Draft Retail Policy for the greater metropolitan region was published to describe the State Government's objectives. The Draft Policy has three key objectives (p 3):- Firstly it seeks to support the existing retail hierarchy and its centres. Centres represent significant community and private sector investment in infrastructure and development and are the basis for a wide range of social networks. These investments should be protected and it works maintained while at the same time enabling operation of the competitive forces in the industry. In effect, this means ensuring the viability of existing centres in established areas. Such an approach is justified by the fact that major new retail development in establish areas, but outside centres, is more likely to result in a redistribution of employment and spending than create substantial new markets and employment. Major retail developments in new locations are therefore likely to compromise the viability of existing centres, except where the expansion of residential areas is leading to population growth. Support for the existing centres of activity represents a continuation of existing policy and signals to the retailing industry that the regulatory environment is unlikely to alter substantially. The provision of this certainty through policy stability encourages innovation by reducing the regulatory risk associated with investment in such change. At the same time, the community's investment in infrastructure in centres is recognised and protected. The second objective is to maximise the use of public transport and encourage cycling and walking… The final objective of the policy is to encourage local government to promote the existing retail hierarchy through its broad range of local policies (including land use, traffic planning, urban design and maintenance) and in its assessment of retail development proposals. 39. When the Draft Retail Policy was released for a general comment a Ministerial Retail Advisory Group was concurrently formed to provide input and direction into the preparation of the final policy. In its Report the Advisory Group made a number of comments and recommendations. In relation to retail centres generally it expressed support for the maintenance and development of a hierarchy of retail centres which (Report p2):- …enables the concentration of development, resources and infrastructure, which is economically efficient. It enables a greater choice of transport mode as the co-location of employment, retailing and leisure activities makes it viable for a variety of transport operators to provide their services. This makes the range of services and facilities available in centres accessible to more people and enables multi-purpose trips by the consumer. Better use of transport infrastructure contributes to better air quality and environmental outcomes. In addition, making centres more attractive place to live provides a residential population to better support local retailing. 40. The Advisory Group recognised the following trend (Report p8): A retail hierarchy reflects the traditional concept of retailing from small order centres to larger orders centres. Some retailing no longer follows this pattern. This is a result of significant changes in retail sector with the introduction of outlets and types of retail centres which, in some instances, do not fit the retail hierarchy. These include bulky goods stores and free standing supermarkets as well as market format retailing and factory outlets which often require large sites or particular access arrangements for private vehicles. 41. One of a number of matters referred to in written submissions or discussed by the Advisory Group (Report p9) was that out of centre retail development proposals was one of a number of "potential threats to the public benefit goals served by the established retail hierarchy". 42. The Advisory Group recommended inter alia that (pp 13-14): The existing retail hierarchy be strongly supported in the retail policy. 43. In dealing more particularly with bulky goods the report recognised: The location of bulky goods retailing in industrial areas on the periphery of existing centres and along major traffic routes has been occurring for some time. 44. Further: Bulky goods shops sell large goods and require direct vehicular access to the site by members of the public for the purpose of loading goods into their vehicles after purchase or hire. 45. In relation to circular C11 the Advisory Group commented that proposals for bulky goods sales should be judged on their individual merits (Report pp 13-14): …taking into account the factors such as the availability of suitable industrial land in the local government area and the impact on existing commercial centres and the adequacy of transport infrastructure. The Retail Advisory Group argued that Circular C 11 does not ensure consistency between different LGAs [local government areas] or certainty for retail developers. The emergence of bulky goods retailing and its implications in the Greater Metropolitan Region is of particular importance to the Retail Policy. 46. The Advisory Group identified a number of key issues in relation to bulky goods sales, which were referred to in written submissions or discussed by the Group, as follows (Report p 14):- It may be appropriate to restrict retail development in industrial areas to those bulky goods which do not compete with those in retail centres. Superstores and category specialists may be more appropriately located in or adjacent to retail centres in order to strengthen the retail mix of these centres. In many cases retailers of bulky goods also sell small items which can be easily transported by the consumer and in reality, such retail should not be able to operate under this zoning. Bulky goods retailing is now a significant factor of the overall retail landscape and it is important that such development at least be suitably controlled. In terms of the three objectives of the policy this trend is not supportive of maintenance of the existing hierarchy, maximising the use of public transport or support for existing centres of activity. 47. The Advisory Group recommended in relation to bulky goods outlets that (Report p15):- 1. The Retail Policy should provide a recognition of the role of bulky goods outlets. … 3. If no other option is agreed to, the Advisory Group agrees that at a minimum, Circular C 11 should be rewritten to give Councils more guidance in assessing development proposals for retail development. Integrating Land Use and Transport 48. Planning NSW's policy document entitled Integrating Land Use and Transport was developed to reduce car travel and provide more equitable access to jobs and services and contains the following sections: · Overview · Employment and Journey to Work Patterns in the Greater Metropolitan Region - An analysis of the 1996 census data · Improving Transport Choice - Guidelines for planning and development · The Right Place for Business and Services - Planning policy 49. The guidelines and planning policy support the Metropolitan Planning Strategy for the Greater Metropolitan Region titled "Shaping Our Cities". The policy document was published together with the notification of Draft SEPP 66. It comprises an extensive analysis of census data in relation to employment and journey to work patterns in the greater metropolitan region and guidelines for planning and development. These guidelines stress the importance of transport choice and the (p 3):- … need to create an environment that is friendly to pedestrians, cyclists and public transport users, including people with disabilities. We need to make land use and development decisions that encourage people to use sustainable modes of transport for one or more trips per day. We must also ensure that people can reduce their travel needs by allowing several purposes to be served by one trip. 50. The emergent policy includes the following relevant objectives (p 3): · locate trip-generating development which provides important services in places that: o help reduce reliance on cars and moderate the demand for car travel o encourage multi-purpose trips o encourage people to travel on public transport, walk or cycle o provide people with equitable and efficient access · minimise dispersed trip-generating development that can only be accessed by cars · ensure that a network of viable, mixed-use centres closely aligned with the public transport system accommodates and creates opportunities for business growth and service delivery. · protect and maximise community investment in centres, and in transport infrastructure and facilities. 51. The policy makes reference to bulky goods outlets as follows (p 6): Bulky goods outlets have a physical need for space to display and handle large goods, however, they can be located in centres. When it is not realistic for bulky goods outlet to be in centres, they should be located in one or two regional clusters to help moderate travel demand and allow for public transport accessibility. Existing clusters should be reinforced. If justified, new clusters should be in areas that would indirectly support major centres and link to public transport corridors. To determine whether a new cluster is justified or a development proposal is suitable for a cluster location, the following issues, additional to the net community benefit criteria, must be assessed: · the economic and social impact on existing and planned centres · the demand for the amount of floor space for trading bulky goods and the potential impact any oversupply would have on existing centres · the degree and potential of short and long-term accessibility by public transport · the effect on the demand for travel and impact of increased traffic to the arterial road network · where industrial areas are proposed to be used, the operational and access needs of existing and future industry and the impact on property prices for industrial development. 52. The provision of special rules for different forms of retail outlets is recognised as often being unproductive and unfair and provides the following information to assist in the making of responsible decisions (p 11):- Bulky goods outlets need space to display and handle large goods. Where centre locations are not feasible they are sometimes permitted in out - of - centre locations. This approach represents a balance between retailer and consumer needs and the community cost of dispersed commercial activity. Regulation of the format is often required to stop bulky goods outlets selling non-bulky goods. This practice impacts on centres and raises community costs beyond any benefit. Where such concerns exist, councils are encouraged to apply floor space limits or restrictions on the types of goods for sale. This is a fair restriction in return for the cost and vocational advantages not available to other retail outlets. Out-of-centre clusters are not automatically necessary for bulky goods outlets. Some larger and most new centres can accommodate bulky goods outlets. Lower order centres in need of investment may also be suitable. The need for car access for loading bulky goods is not an adequate basis for justifying out-of- centre of locations. In many instances the goods sold are not immediately available or capable of being transported anyway. VII) THE PLANNING ISSUE The strategic question 53. Council's town planning controls being LEP 1993 and LEP 2000 provide no assistance in a strategic sense concerning the appropriateness of the site for bulky goods retailing. Leaving aside the issue of the 1,000 m2 requirement in the LEP 2000 definition, the proposal is permissible with development consent under both instruments. 54. While LEP 1993 permits bulky goods sales in the 4(a) zone it is not referred to directly in the objectives. However the objectives of the 4(a) zone in LEP 2000 provide for bulky goods retailing "on appropriate sites", although there is no definition of "appropriate sites". Accordingly recognition is given in anticipation of some bulky goods retailing in the 4(a) zone. However this is an application which must, if for no other reasons than its size, consisting of 40 tenancies over 29,386 m2 of floor space, be considered in the wider strategic context. In this regard it is appropriate to take into account the various State Government policy documents beginning with Circular C11 which have been identified earlier in this judgment and from which various relevant extracts have been provided. 55. The strategic framework which becomes apparent upon a careful examination of these documents establishes that the existing retail hierarchy and the retail centres within that hierarchy are to be maintained and supported. This is because these retail centres represent "significant community and private sector investment in infrastructure and development and are the basis for a wide range of social networks" (Draft Retail Policy – p 10). The infrastructure development significantly includes the public transport and road networks. Clearly any development which is likely to significantly adversely affect this hierarchy needs, in the public interest, to be carefully considered. 56. The Ministerial Retail Advisory Group in supporting the existing retail hierarchy expressed concerns in relation to out-of-centre bulky goods retailing where it was not located within or adjacent to an existing retail centre. It was accepted that bulky goods retailing is now a "significant factor of the overall retail landscape" (p 12). However, out-of-centre locations were not considered to be supportive of the existing hierarchy, maximising the use of public transport or supporting existing retail centres. 57. The Planning Policy section of Integrating Land Use and Transport recognises the need to ensure that shoppers can reduce their travel needs by enabling several purposes to be served by one trip. Hence the relevant emergent policies as quoted above including the minimisation of dispersed trip generating development and the provision of a network of viable, mixed-use centres. 58. The Policy does however recognise that some bulky goods outlets have their own requirements including the need for large display areas to enable the display and handling of large goods but this does not necessarily mean that they cannot be located in centres. Many bulky goods stores already exist in such centres. Conversely retail centres do not want bulky goods development and the Policy recognises these matters. It is also recognised that "when it is not realistic for bulky goods outlets to be in centres" it is acknowledged that they should be located in "one or two regional clusters to help moderate travel demand and allow for public transport accessibility" (p 14). The Policy suggests that in order to decide whether a proposed new cluster is justified a number of criteria should be assessed including economic and social impacts on existing centres; bulky goods floor space demand; accessibility by public transport; and traffic impacts. 59. In essence the applicant contends that because of its proximity to the bulky goods retailers in Taren Point Road the site can be considered to be part of that "cluster". This cluster of retailers is not identified as a regional cluster. However, the site is situated in an area which is principally occupied with industrial and warehouse type development and does not adjoin any other retail activity. Its is about 250 m from Taren Point Road. It should thus not be considered to be part of that cluster. Unlike Taren Point Road, which has a regular bus service, Bay Road is not serviced with any public transport. Hence the proposal cannot be considered to reinforce the existing retail hierarchy. It is not closely aligned with the existing public transport system and for this reason will add to the use of cars. 60. Some bulky goods cannot be transported in the customer's own vehicle and of necessity bulky goods are required to be delivered to the customer's home by a service vehicle. Many of these customers could, if they wish, travel to an existing retail centre by public transport, but they could not presently travel in this manner to the subject site. It cannot be disputed that some less bulky goods as well as non-bulky goods (ancillary to bulky goods) are taken from shops by the customer in the manner of the more common form of shopping and transported in the customer's own vehicle. Moreover it seems that most customers do their bulky goods comparison-shopping using their own car because of its convenience. Such considerations do not, however, overcome the concerns already expressed. Indeed if bulky goods stores are located within an adjoining existing retail centres or clusters such co-operation reinforces the existing centres. Shoppers and employees can take advantage of the availability of existing public transport. It is possible that the lack of public transport might be changed by the provision of a bus service in Bay Street. However this is an approach which clearly does not reinforce the existing public transport network and may well reduce the effectiveness of the existing centres. Findings on Planning Issues 61. Whether there might be an alternative site of sufficient size to accommodate a similar development in the area was addressed during the hearing. The Court is satisfied that there is probably no such site available. However this conclusion is insufficient to outweigh the concerns already considered. 62. The Court does not accept that whilst there may be a latent demand for a significant increase in the amount of floor space associated with bulky goods retailing it does not follow that all such floor space must be provided in one development. Instead it could be dispersed within and adjoining existing centres or clusters thus reinforcing the retail hierarchy and the existing transport system. There was no evidence to suggest that the smaller tenancies proposed for the development could not be accommodated within the existing retail centres or clusters. 63. It is highly likely that this proposal would have the effect of reducing the range of bulky goods stores in existing centres. In consequence an increased car dependency would result, given the public transport situation associated with this site. 64. Despite the fact that LEP 1993 and LEP 2000 facilitate the approval of bulky goods stores outside existing retail centres, they contain no guide to indicate the appropriate location of bulky goods stores within the 4(a) zone. The Court however finds that the site would not be appropriate for a development of the kind proposed because of its conflict with the various state planning policies which overwhelmingly support the advancement of the existing retail hierarchy. The Court is thus persuaded that the proposal is clearly contrary to the objectives of the relevant policies and would be adverse to the public interest. The Court has also not been persuaded that this site comprises an appropriate location to establish a new bulky goods cluster. The application should, on this basis therefore be refused. 65. The Court recognises a number of bulky goods centres are in existence in the Sydney Metropolitan Area, which are not adjacent to retail centres or close to railway stations and which would appear therefore to be contrary to the retail hierarchy. It is not known whether these centres are otherwise located on an existing public transport route (other than rail), whether they are bulky goods retailing only, and the zoning of such sites. Individually these centres may represent correct planning. They are not determinative of this application which must be considered on its own merits. 66. The requirements of LEP 2000 are a relevant matters for consideration. Of particular relevance is cl 51(2), which requires that each individual bulky goods retailer must have a minimum gross floor space of 1000 m2. In this development there are proposed to be 40 tenancies. Thirty of these tenancies will have lettable areas below this requirement including 20 tenancies having areas less than 500 m2. It is to be acknowledged however that 59 per cent of the total floor space will be taken up by the 10 compliant tenancies. 67. Mr Chambers, town planner (objector's expert) referred to the 1,000 square metre requirement as (p 18):- … a strategic tool in maintaining vibrant and economically viable centres which has been a recognised goal of metropolitan planning for many years. 68. It was his opinion the provision of so many small tenancies outside existing retail centres would have the undesirable consequence of weakening those centres. 69. In contrast Ms Binden, town planner (applicant's expert) believed, based on industry data generally which indicates that there are many bulky goods retailers in premises having areas less than 1,000 m2, that the standard was "unnecessary and unreasonable". 70. The Court does not accept that this standard should be set aside in this manner. Mr Chambers evidence is to be preferred particularly when the standard is considered in the context of the strategic approach embodied in the retail hierarchy. Clearly the standard is an indicator of the likely future character of industrial zones and their relationship with the commercial zones in the Sutherland Shire. 71. In a letter dated 24 October 2000 to Mr Albon of Planning Workshop Australia, Planning NSW advised that: The Department considers that the use of a minimum floorspace standard to control the location of bulky goods retailing in industrial zones is appropriate. It caters to the needs of those bulky goods retailers which cannot realistically be accommodated within existing centres and which have a genuine need to locate in an industrial zone. It also ensures that the viability of existing centres is not jeopardised. The Department does not support the view that the use of minimum floor space standards threatens the viability of bulky goods centres nor individually bulky goods retailers. 72. The zoning controls in LEP 2000 relating to retailing essentially require that it should take place in or adjoining established retail centres or bulky goods clusters. Only larger bulky goods stores which cannot be accommodated in these centres or clusters should be permitted in the industrial areas. Whilst the standard cannot be given determinative weight it nevertheless supports the Court's conclusion that this application should not be approved. VIII) ECONOMIC IMPACTS The Evidence 73. It is contended by the council that the proposed development will have a sufficient impact on existing established retail centres, particularly at Miranda and Caringbah, to reduce the level of service and range of retail facilities available to the public at those centres. The council relies upon the decisions in Kentucky Fried Chicken Proprietary Limited v Gantidis and Anor (1977-78) 140 CLR 675 and Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 in support of its submissions. 74. Pursuant to section 79C(1)(b) of the EP&A Act "the economic impacts in the locality" can be taken into consideration in dealing with a development application. This matter was considered by Stephen J in Gantidis at page 687: If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. 75. Similarly in Fabcot Lloyd J said that: Neither the Council nor this Court is concerned with the mere threat of economic competition between competing businesses. In an economy such as ours that is a matter to be resolved by market forces, subject to the Trade Practices Act and the Fair Trading Act . It is not part of the assessment of a proposal under the Environmental Planning and Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. 76. What then will be the resultant community detriment, if any? A great deal of evidence was adduced in relation to existing and likely future demand for additional bulky goods floor space, including analysing market shares and competitive usage. Recognising that a new bulky goods centre of the size proposed must have some impact the question that arises is whether this proposal would have economic impacts on existing retailers such that they would be likely to close down or modify their shops as a consequence. A reduction of available shopping facilities, especially if such facilities were in a location already served by public transport would constitute a detriment to the community. 77. In supporting the proposal Mr Leyshon's Economic Impact Assessment dated December 2001 made the following key conclusions (p 48):- · the proposed Taren Point centre will have an extensive trade area encompasssing Local Government Area (LGA) of Sutherland and Rockdale, Kogarah and Hurstville to the north and Wollongong and Shellharbour to the south; · the majority of sales at the proposed centre will be attracted from Sutherland and the St George area; · in 2000, the Taren Point trade area contained a population estimated at 674,800 persons and exhibited the characteristics of a high demand for bulky goods. In 1998- 99, 4,916 new dwellings were approved while approvals in the trade area for alterations and additions to dwellings totalled $100.6 million; · the proposed development will face its major competition from the existing Caringbah Supacenta which is located in close proximity to the subject site; · between 2000- 11 the population of the trade area is estimated to grow by + 57,355 persons and annual available bulky goods spending increase by some + $208 million. This expenditure growth would support demand for an additional 54,377 sq.m. of bulky goods-type floorspace in the trade area; · shopper surveys conducted in the secondary trade area (STA; St George and Wollongong) indicate that Taren Point is already a regional shopping destination for bulky goods. Up to 51% of trade area residents who have shopped at the Caringbah Supacenta also report shopping at major centres such as Westfield Miranda on the same trip; · the impact of the proposed centre - assuming it is operational by 2003- will fall principally on the Caringbah Supacenta (-9.4 %) and on the balance of bulky goods retailing in a Taren Point Road (-10.5%). · the impact on the sales of traditional centres such as Westfield Miranda and Caringbah is estimated to be minimal; an impact of only -1.1 % is estimated with respect to Westfield Miranda for instance. · all centres in the area (including the Caringbah Supacenta) will continue to trade at acceptable levels after the proposed Taren Point centre is developed. · the analysis indicates the proposal will have an acceptable economic impact on existing centres. It will not threaten the existing retail hierarchy in Sutherland LGA and will further enhance the range of bulky goods retail services available to residents of Sutherland and the surrounding region. 78. Mr Hill (council's expert economist) in his Economic Impact Assessment dated January 2002 examined the applicant's economic impact assessment and concluded that it understated the impact of the proposal for a number of reasons. His criticisms may be summarised from his report as follows (at p 17):- The applicant's economic impact assessment has understated the impact of the prosed retail outlet because it: · includes "non bulky" expenditure categories as bulky goods, · includes Wollongong and Shellharbour in the trade area which results in an overstatement of demand, · it overestimates growth in the number of households in the trade area, · it ignores bulky goods that are under construction or approved by Councils and the cumulative impact resulting from all the proposed stores combined, and · it attempts to justify the additional supply by showing 11 years of growth. 79. Mr Hill was of the opinion that the cumulative impact from all known bulky goods proposals would be negative 17 per cent which was significant and likely to result in the closure of some retailers along Taren Point Road and would lead to loss in the range of goods offered in established centres such as Miranda, Caringbah, Rockdale and others. Mr Hill was concerned that the growth in bulky goods centres in industrial areas would reduce the range of goods available in established retail centres, resulting in higher car dependency and increasing social costs to households especially those without motor vehicles. 80. Mr Shimmin (the objector's economist) acknowledged that there would be a number of positive benefits which would result from the proposal including: · Additional short-term employment opportunities, · A broader range of bulky goods stores in a large modern centre · A greater choice of location for bulky goods retailers · An increase in the retail turnover volume in Sutherland Shire · Initially strong price competition. 81. In his Response Report dated March 2002, Mr Shimmin considered the test in Fabcot which distinguishes between the "mere threat of competition" and the jeopardising of "shopping facilities presently enjoyed by the community or planned for it". He concluded, based upon his argued negative economic effects that the proposal would fail this test. In this context it was his opinion that the following negative economic planning outcomes would be likely (p 8): · A significant impact on core homemaker product categories in existing centres resulting in some businesses being marginalised and at risk of closure, thereby reducing the range and choice at existing centres. · A significant impact on core homemaker product categories in major stores within existing centres resulting in some departments being marginalised and re-merchandised, thereby reducing the range and choice at existing centres. · The relocation of some tenants from Miranda to the new location in the Taren Point industrial area. · A significant reduction in the likelihood that existing centres could expand and/or regenerate over time in the homemaker/bulky goods store types and product categories. In particular a homemaker expansion to Miranda would be unlikely to proceed as planned, possible expansion of the Caringbah Supacenta would be in jeopardy and possible redevelopment activity in Caringbah would be more difficult to achieve. · Fragmentation of retailing in Sutherland Shire rather than orderly development of existing and planned clusters. · A breakdown in the well established endeavours of the planning profession to enhance the vitality and viability of centres by actively encouraging mutually beneficial uses, employment, infrastructure and transportation nodes in established centres and clusters. · Inefficient use of land and public infrastructure. 82. Both Mr Shimmin and Mr Leyshon agreed that the proposal would cause material impacts on retailers in other centres including Caringbah, Westfield and in Taren Point Road although they disputed the likely extent of such impact. Findings on Economic Issues 83. The lengthy and complex evidence of the three economic experts shows that economic forecasting of this kind is an inexact science. Components of the reports prepared by each of them rely upon known and largely unquestioned information such as existing and future population; floor areas of existing and proposed developments; the nature, quantities and expenditure of goods sold. However they have each applied their own experience and expertise to this information. Utilising variables such as catchment area to forecast matters such as likely future expenditures and floor space requirements, each expert has provided his opinion. Such opinions have provided the Court with an understanding of the issues and the Court is accordingly able to make a number of findings as to likely economic impacts of the proposal. 84. Firstly, if for no other reason than forecasted continued population growth, there is no doubt that there will be an increasing demand for bulky goods and it is not unreasonable to expect that the trend in providing retail establishments, which specialise in such products, will continue. The logical consequence is that floor space associated with the retailing of bulky goods products will continue to grow and this growth could manifest itself in a number of different ways including the inclusion of bulky goods retailing within existing non-bulky goods stores; the expansion of existing bulky goods stores; and the introduction of new bulky goods stores. 85. Secondly, competition between bulky goods retailers will continue and will indeed grow as new retailers (such as this applicant) move into the market place. This reality is not a matter for consideration under the EP&A Act and one which is to be distinguished from any likely "economic impacts in the locality": s 79C(1)(d) of the EP&A Act. 86. Thirdly, the introduction of a new group of bulky goods stores, which compete with existing bulky goods stores, may very well result in some stores experiencing a reduction in turnover. However, such reduction is unlikely to result in a situation where bulky goods, which are and will continue to be in demand, are no longer available. That is, if there is a demand for a particular product there is every likelihood that one of the existing retailers or one of the retailers in the proposed development will provide it. There was no evidence to suggest that if this development were to proceed, and if the indicative list of retailers were to be included, there would as a result be an absence of a particular category of bulky goods which is presently available. Market forces would resolve this aspect as anticipated in Fabcot. 87. There seems little doubt, as indicated by Mr Shimmin and Mr Leyshon, that if this development were to proceed, given its size and the number of shops proposed, there would be considerable competition even taking into account increasing demand resulting from for example, population growth, with the established centres at Miranda and Caringbah. Indeed Mr Hill may even be correct in his assessment that some retailers along Taren Point Road may close. However this is not the kind of economic impact which is of concern under s 79C(1)(d) of the EP&A Act because there is every likelihood that any emerging deficiency, that is the reduced availability of bulky goods, is likely to be made good as part of the competitive process by the new retailers. In this regard the Court prefers the evidence of Mr Leyshon who was of the opinion that the proposal would meet the Fabcot test. Indeed Mr Shimmin accepted that residents would as a consequence of this development be provided with a broader range of bulky goods stores and products. 88. Whilst this proposal would be likely to have economic impacts in terms of reduced turnover and employment on centres such as Miranda and Caringbah and on retailers in Taren Point Road, such impacts are matters of competition and are not matters determinative of this application. There will be disadvantages such as separation from other centres and the unavailability of public transport which are dealt with separately, but the Court is not convinced that in the context of the Gantidis principle and the Fabcot test that bulky goods shopping facilities will be put in jeopardy or that there will be a net "resultant community detriment" sufficient to warrant refusal of the application. IX) VISUAL IMPACTS AND LANDSCAPING The Evidence 89. Absent existing vegetation and proposed landscaping the proposed building would be able to be seen from Botany Bay and its foreshore, Bay Road, the Harvey Norman site to the east, Production Road and proposed/ approved residential development to the west. However when existing vegetation surrounding the site including landscaping on the Harvey Norman site is taken into account, together with the now proposed set-backs of the building and the proposed on site landscaping, the proposed building will be largely screened from these viewpoints despite its large size. 90. Nevertheless both Ms Sonter and Mr Coleman were dissatisfied with the form and appearance of the proposed building particularly when viewed from the north. In summary their concerns related to the absence of effective articulation and indentation of the building's northern elevation that has an angled length of more than 200 m and a height of up to 12 m. Mr Coleman believed that the buildings should have a minimum set-back of 50 m from the foreshore building line. This setback area would provide for a so-called Bay Trail and an area of civic open space. 91. Ms Sonter was concerned for the adequacy of landscaping on the west side of the building that is approximately opposite the approved residential development. She was also concerned at the proposal's reliance on recently installed landscaping on the western boundary of the Harvey Norman site and the inadequacy of landscaping along the western side of the proposed car park which landscaping is needed to supplement the existing vegetation adjacent to the drain. In addition Ms Sonter felt that there should be a landscaped strip at the northern end of the eastern boundary of the site as originally proposed. In this location the building extends at the upper levels to the site boundary and prevents the planting of canopy trees that would, in conjunction with trees on the adjoining site, help to define the site's boundary when viewed from the bay. 92. Ms Sonter was also concerned that there was a paucity of landscape in the car parking area generally and that it did not meet the landscape objectives and standards of the "Landscape Development Control Plan" ("the Landscape DCP") and the "Industrial Development Development Control Plan" ("the Industrial DCP"). Section 10 of the Industrial DCP requires, inter alia, the provision of landscaping throughout parking areas to "visually improve the area" in accordance with a number of diagrams that show various preferred relationships between landscaped areas and car parking spaces. These diagrams appear to show landscaped areas that are more extensive and are of significantly greater dimensions than those indicated by the proposal although no numerical requirements are given. The Landscape DCP in section 3.4 requires the provision of "tree planting throughout the parking area which provides shading" which will "soften the appearance of hard surfaces" and "assist in water infiltration and minimise runoff". Also, unlike the proposal, the Landscape DCP requires that trees and shrubs be placed in groups to create a less formal arrangement. 93. Dr Lamb was of the opinion that the proposed landscaping was appropriate in terms of the building's visual context as well as its bulk and scale. In its proposed landscaped setting he considered that the building would be relevant to its present and future context in terms of scale, materials and detailing. He disputed suggestions that there would be any significant visual impacts on the approved residential development to the west because of the spatial separation and landscape screening. 94. Similarly Ms Choong was of the opinion that the proposed landscape design was appropriate for this form of site development and that an adequate and attractive landscape setting will result. More particularly she believed that the vegetation adjacent to the drain and the landscaping along the western boundary of the Harvey Norman site did not need to be supplemented. Both she and Dr Lamb were satisfied that the more extensive planting as now proposed along the northern boundary of the site was sufficient to overcome Ms Sonter's concerns as to the need for additional landscaping towards the northern end of the eastern boundary of the site. As for the landscaping within the car park, Ms Choong believed that her landscaping design was sufficiently responsive to the requirements of both development control plans. Findings on Visual Impacts and Landscaping 95. In relation to the important presentation of this development to Botany Bay, the evidence of the applicant that this will be satisfactory is persuasive. The additional planting facilitated by the increased setback should ensure an appropriate level of screening and provide a suitable setting for the building. While this very large building could have been improved by the provision of greater articulation and modulation rather than the less effective detailing of the facade the Court does not consider such consideration sufficient to warrant rejection of the application, even taking account the sensitive location of this site overlooking Botany Bay. The Court has also been persuaded that the improved landscape scheme would have ensured that the presentation of this development to Bay Road would be satisfactory in this industrial area. 96. As for the concerns about the provision of landscaping towards the northern end of the eastern boundary of the site, given the much improved landscape arrangement along the site's northern boundary, this is no longer a matter of critical concern. However a setback of the proposed building in this location would have avoided the likely need to prune the canopies of trees on the adjoining site and would have enabled some additional planting on the subject site to supplement those existing trees. 97. There was much argument about whether the landscaping strip along the western boundary of the Harvey Norman site could be accepted as a substitute for a landscaped strip along the eastern edge of the proposed car park. The applicant submits in effect that it has an interest in this landscaping in that it exists on a right of carriageway over which the applicant is the dominant tenement and will ensure the continued existence of this landscaping. Conversely the council submitted that landscaping on the adjoining site should not be relied upon to support this application, this being an inappropriate response to the issue. Instead the subject development should provide its own landscaping because circumstances relating to the Harvey Norman site may change and possible future redevelopment of that site should not be constrained or required to provide landscaping for the subject site. 98. While landscaping on an adjoining site is not to be disregarded, the Court does not accept that it should be relied upon to the extent that it is in this proposal, nor that because the owner of the site is the dominant tenement this will guarantee the long-term retention of this landscaped area. It is not impossible for a new owner of the subject land to seek to utilise this right of carriageway as an alternative access to this site thus requiring the removal of at least some of the landscaping. The Court agrees that some landscaping along this boundary should have been provided. 99. In relation to the provision of landscaping to supplement the existing vegetation adjoining the drain along the western boundary the Court does not find that this is a matter by itself of critical concern. However when considered together with the matter of landscaping along the eastern boundary and the provision of landscaping within the car parking area generally, landscaping becomes a matter of concern. While the Court does not accept that the entire car parking area should be so planted with canopy trees as to provide shade for each car parking space, the Court accepts the opinion of Ms Sonter that the landscaping proposed is not sufficiently responsive to the development control plans which must be taken into consideration. In its present form the proposal is not responsive to the objectives in these development control plans in terms of the reasonable provision of shade; the provision of areas to absorb at least some stormwater run-off; and to soften the appearance of the car park generally. Whether this is a car park for a shopping centre or for an industrial development there is no reason why a development proposal should not be responsive to these objectives. 100. The council believed that the landscaping of the car park was of such importance that it was prepared to forgo a significant number of car parking spaces. The proposal would then not comply with reasonable parking requirements as advocated by the traffic engineer. The Court does not however accept that such an approach would be appropriate. On a site as large as this there is no reason why both landscaping and car parking requirements should not be met. Department of Land and Water Conservation Advice 101. In relation to the landscaping between the drain and the building towards the northern end of the site and opposite the approved residential development the Court's attention was drawn to the advice of the Department of Land and Water Conservation 16 February 2001. That advice notes that the drain is not a watercourse within the definition of a river pursuant to the Rivers and Foreshores Improvement Act 1948. Nevertheless the Department provided recommendations in relation to the treatment for of the this mangrove lined drain which functions as a river. The Department advised that: Habitat fragments, such as mangrove lined drainage features, now represent important, if not vital, components of the bay ecology. The close proximity of the subject channel to the Towra Point Nature Reserve means that it constitutes an extension of the limited habitat opportunities within the reserve that contribute to the viability of important shore bird and wader communities. The necessity for drainage and, the colonisation of drainage features by plants and animals, despite overwhelming loss and/or fragmentation of their natural habitat areas, indicates that the environmental issues pertaining to the drainage feature are exactly the same as for a natural watercourse, particularly in regards to issues of water quality and biodiversity. It is for these reasons that, the drainage feature should be afforded the environmental protection that the Department pursues for acknowledged watercourses. 102. The letter refers to an attached plan with a buffer zone which has a dimensioned width of between 8.0 m and 8.874 m (measured from the edge of the drainage easement) and strongly recommends that this riparian buffer zone, which was previously agreed to by the applicant, be provided as part of the current application. This recommended buffer zone is now proposed to be substantially developed with car parking spaces although there are a number of landscaped strips to be provided between some of the car spaces. 103. In the absence of evidence to refute the department's recommendation the Court accepts that the presently proposed buffer zone in this location is inadequate for the proposal. X) ON SITE TRAFFIC AND PARKING The Evidence 104. Whilst Mr Pindar and Mr Hallam detailed to a number of concerns in relation to traffic and parking two issues seemed to emerge which were of greatest concern, namely the arrangement and size of the proposed car park and on site traffic conflicts between vehicles and pedestrians especially near the front entrance to the building. 105. In relation to car parking Mr McLaren noted that council's parking code does not specify a rate for bulky goods retailing, instead it refers to the Roads and Traffic Authority's Guidelines ("the RTA" and "the guidelines"). These guidelines recommend that in order to determine the parking provision for bulky goods retail stores comparisons should be drawn with similar developments. The RTA has surveyed a number of bulky goods sites and Mr McLaren used these surveys to determine what he considered to be an appropriate rate of one car parking space per 50 m2 of gross floor area. Applying this rate to the proposed development yields a requirement of 755 parking spaces which is comfortably met by the proposal. 106. The present parking arrangement makes provision for 779 car parking spaces and Mr Pindar regarded this as being the absolute minimum. However it was his opinion that if the development were to be successful, demand for parking spaces would probably exceed this provision. 107. Based on surveys of the similarly sized bulky goods outlet at Moore Park, Mr Hallam did not believe the provision would be adequate. Notwithstanding Mr McLaren's contention that the proposed development would operate with less activity compared with Moore Park, which has a greater exposure and regional attractiveness, the Court is satisfied that it provides the best indication of car parking requirements for this site. The Moore Park development is of similar size to the proposal and has the same homewares centre and same owner and operator. 108. Given the findings of the Court's conclusion in relation to landscaping and buffer zones, if the development were to proceed and modifications made in response to these conclusions, it is likely that a number of car parking spaces would need to be removed. This points to a likely insufficiency of car parking and this attracts greater concern given that bulky goods retailing, by its very nature according to Mr Shimmin, has a high level of car dependency. 109. Both Mr Pindar and Mr Hallam were concerned about the walking distance from the extremity of the car park to the shops. There are a significant number of car parking spaces located more than 150 m from the main entrance to the centre. Despite Mr Masson's contention that 200 m was not excessive the Court accepts their evidence and concluded that this is an unsatisfactory aspect of the car park. 110. In relation to traffic arrangements Mr Pindar was of the opinion that there would be an unfortunate concentration of cars, trucks and pedestrians at the main entry foyer. Mr Coleman was similarly concerned arguing for a ring road around the site that would avoid this concentration. However Mr Hallam thought that the extent of potential conflict would not be significant and this was not disputed by Mr McLaren or Mr Masson. 111. Whilst there are problems with providing a ring road around the site, which would introduce general traffic to the foreshore area, it is nevertheless clear that the likely conflict between vehicles and pedestrians which would result from the present proposal could have been avoided by a different arrangement. In its present form it does not represent good design. By itself this aspect of the proposal would not have been determinative but it is another indicator of the unsatisfactory nature of the proposed traffic and parking arrangements. XI) PUBLIC TRANSPORT 112. The State Transit Authority ("the STA") has considered the potential diversion of bus route 477 along Bay Road to provide public transport access to the site, but expressed a preference for major developments to be in centres. Such centres are located on, or adjoining existing bus corridors so as to provide an efficient bus service. For this reason the STA does not support out-of-centre developments of this kind because it would lead to dispersal rather than reinforcement of existing transport corridors. 113. In response the applicant relies upon Mr Shimmin's evidence that bulky goods retailing involves a high level of car dependency and as a consequence the need for access to public transport is not so important. Alternatively Mr Masson contends that the proposed development would produce a critical mass such that it would dictate a need for public transport services to be diverted to this site. He also explained that a significant number of bulky goods purchases are taken away by the purchaser in their own vehicle. Moreover even if bulky goods retailing were to be confined to existing centres there is unlikely to be a significant change from the use of private motor vehicles by customers to public transport. Mr Masson did not accept that there would be any undermining of the public transport system by this proposal which in terms of centres such as Caringbah Miranda and Sunderland is well utilised. 114. Conversely, Mr Pindar was concerned that a development of this type and scale in a location remote from public transport would draw patronage away from established commercial centres thus displacing existing trips which are presently well served by public transport. 115. It cannot be disputed that as a matter of principle and in the public interest, customers and employees of major new developments of the kind proposed here should have the choice of being able to use public transport. Whilst Mr Pindar may be correct that existing trips may be displaced and accepting the STA's preference, the Court accepts the opinion of Mr Masson that the absence (at least in the first instance) of public transport to this site is not critical. However the fact that this site does not provide easy access to public transport does at least raise the question of whether this proposal is appropriately located and reinforces the Court's conclusion that this proposal would not support the retail hierarchy and should not be approved. XII) FLOODING The evidence 116. In relation to the proposed development of this site Perrens Consultants Pty Ltd prepared a Flood Study Report ("the flood study") which analyses pre-development and post-development flood flows and levels for a range of design floods up to the one per cent annual exceedence probability ("AEP") and the probable maximum flood. 117. The flood study determined that this site is flood free in a 20 per cent flood and in a five per cent flood would be affected for a distance of about 10 m near the southern end of the site to a depth of about 0.2 m. The one per cent flood would encroach onto the eastern part of the site for a distance of about 15 m near the southern end of this site to a depth of about 0.3 m. Otherwise the one per cent flood would be contained within the channel banks. The theoretical probable maximum flood would be of the order of 0.7 - 0.8 m higher than the one per cent flood. 118. The flood study shows that the proposed development will (p 17):- · Have no effect on flood levels in the car park area during the 1% AEP flood. · Will cause a rise of up to 0.14 m in the peak flood level within the channel. The peak flood will be retained within the channel. · The peak flood levels affecting the upstream end of the building is 2.12 m AHD while at the downstream end at the peak is 1.42 m AHD. 119. The flood study concludes (p 18) as follows: 1. The proposed floor level of 2.6 m AHD will provide an adequate level of protection against flooding of the building in a 1% AEP flood 2. Apart from the section of the channel upstream of the proposed building, all flows will be contained within the channel during a 1% AEP flood 3. The flood analysis indicates that the proposed drainage arrangement will not raise flood levels in the car park area. Some increase in flood levels will occur in the section of channel along side the bulky goods centre (up to 0.14 metres), but these will all be confined within the existing channel. Provision of on - site detention would not, therefore, serve any useful purpose. 4. The flood characteristics of a small section of the car park during a 1% AEP flood (flood depths of less than 0.3 metres, low flood hazard and short duration flooding) are compatible with the use of this area for car-parking. 5. In the event that Council require the car park to be flood free, filling of the car park could be undertaken without any significant effect on flood levels. 120. It was Dr Perrens' opinion that the proposed free board of 480 mm would be more than adequate for the proposed building. In response to concerns that the car park would continue to be flooded post development, he said in his Consolidated Statement of Evidence dated May 2002 that (p 9): The only area of the site that would be flooded in a 1% AEP flood would be about 33% of the car park for a maximum duration of about 15 minutes. Council have requested that the channel be widened to accommodate all flow in a 1% AEP flood. Given the low flood hazard conditions that would occur in the car-park and the short duration of flooding, I consider this requirement to be unnecessary and inconsistent with other Council policies and the principles of floodplain management. However if the Court requires flood water to be excluded from the car park in a 1% AEP flood this could be achieved simply by constructing a dwarf wall up to 500 mm high along the western side of the car park to prevent flood water encroaching onto the car park. 121. Dr Perrens also explained that by allowing an early peak discharge from the site flood levels across the flood plain generally would not be affected by the development. He reiterated that flood levels within the channel would increase by up to 140 mm but would be confined within the channel. As a consequence the development would have no adverse flooding impacts. Notwithstanding, he commented that if it was necessary to ensure that the discharge from the site occurs at flow rates no greater than at present, on-site detention storage could be provided within the ground level car park. Dr Perrens did not accept that the proposed development would have any consequential adverse impact on adjoining properties. 122. Conversely Mr Amos believed that there would be increased flooding impacts on properties to the west as a consequence of the increased flood levels within the channel. On this basis he recommended that on-site detention be provided. In his Statement in Reply dated March 2002 Mr Amos argued that the flood study failed to address the requirements of council's established policy and practice. The deficiencies of concern include (p 2): · The failure to properly recognise the fact that the drainage channel is tidal. · The 30 per cent underestimation of the one per cent flood by comparison with "another flood study and an independent analysis". · The use of "unrealistically low roughness coefficients for the channel and flood plain" · The failure to properly account for post development changes including the increase in land area training to the channel. 123. The other flood study to which Dr Amos refers is a study which was submitted by Young Engineering for the Woolooware Bay Retirement Village on the western side of the channel. This study shows that much of the area of the proposed bulky goods centre will be inundated. He was thus able to conclude that the drainage channel and easement will need to be widened from 12 m to about 18 m. 124. Notwithstanding an experts' conference between Dr Perrens and Mr Amos the differences between them were unable to be resolved. Findings on Flooding 125. In terms of the likely effect of flooding during a one per cent flood event, which is by definition relatively infrequent event, and taking the worst case scenario advocated by Dr Amos it is clear that this site will be affected to a greater degree than at present. The lower floor levels of the proposed building are (or can be easily made to be) safely above such levels. Significant parts of the proposed car park will be subject to inundation but the Court accepts that this will be of a short duration involving low velocity water with a depth of less than 400 mm and which would not be described as hazardous. 126. The flood study shows that the proposed development would cause a rise of up to 0.14 m within the channel. If the worst case scenario of Dr Amos (including a coincidence between the one per cent storm and a high tide) is applied the rise in the channel must be greater than that acknowledged in the flood study. Whilst the increased water levels may be contained within the channel there are nevertheless likely to be increased water levels on surrounding lands as a consequence. As noted earlier, and despite Dr Perrens' contrary view, there is little doubt that properties to the west of the drainage channel will be subject to some additional flooding as a result of this proposal. 127. It is appropriate that the Court takes a conservative approach and whilst the assumptions of Dr Amos were questioned they are not so improbable that they should be set aside. The Court accepts Dr Amos' contention that as a matter of principle, new developments should not make flooding worse than it already is. The Court finds that this is likely to occur as a result of this proposal and that properties to the west are likely to be affected. 128. While Dr Perrens did not agree that on-site detention was needed, the Court is persuaded that such provision would be needed to avoid possible impacts beyond the site. As an alternative the widening of the drainage channel in conjunction with works already agreed in relation to the proposed Anglican Retirement Village being developed on land to the west may have been appropriate. Such works would result in the destruction of existing mangroves and fauna habitat but these could be reinstated. XIII) STORMWATER DRAINAGE AND IMPACTS ON WOOLOOWARE BAY The evidence 129. At present the northern part of the site drains by overland flow in a northerly direction via the foreshore reserve directly into Woolooware Bay with the remainder draining in a westerly direction to the drainage channel, which extends along the western boundary of the site. The drainage channel is subject to tidal fluctuations over its entire length. The proposed stormwater drainage scheme will be by means of the following separate systems: · Roof drainage will be piped to two outlets located at the northern boundary and approximately midway along the western boundary of the site. · Drainage from the rooftop car park on the eastern side of the building will be directed into a stormwater drainage system that connects with the drainage system for the car park and access roads. These systems drain to stormwater pollution control systems and discharge into the channel at the same location as the roof drainage. 130. Dr Perrens in his report noted that the development would include a stormwater control system that will meet all relevant requirements of the Lower Georges River Stormwater Management Plan and which involves the following: · Provision of separate storm water drainage lines to convey roof run-off direct to the drainage channel. This will ensure the roof run-off is not mixed with run-off that might contain oil and sediment from the car park and roadways. Keeping these flows separate will allow the proposed pollution control systems to function more effectively. · Installation of " at-source" storm water pollution control systems in each stormwater inlet. These systems will include: o Provision of gross pollutant traps (Enviropods) at each in a pit to capture gross pollutants such as litter and coarse sediments. This will help ensure greatest effectiveness of pollutant capture by the "Stormfilter " unit. o Internal baffle arrangement to trap any free oil. o Provision of "Stormfilter" to trap fine sediment and heavy metals 131. Contradictory evidence was given in relation to stormwater quality particularly in relation to minimum standards of treatment and possible impacts upon water quality in Woolooware Bay. Despite such evidence Dr Perrens, Dr Amos, Mr Anink and Mr Sainty met and reached agreement in relation to a number of matters including: · Car parks are responsible for significant loads of heavy metals and suspended solids reaching Botany Bay. · Drainage from the proposed development flows directly into the Woolooware Bay endangered ecological community listed under Part 3, Schedule 1 of the Threatened Species Conservation Act 1995. · There is insufficient scientific evidence to determine whether or not the cumulative impact of these pollutants poses a threat to Woolooware Bay. 132. In these circumstances it was agreed that any threat to Woolooware Bay needed to be considered in line with ecologically sustainable development principles (NSW EPA "Managing Urban Stormwater: Council Handbook, draft 1997 and National Water Quality Management Strategy: Australian Guidelines for Urban Stormwater Management, 2000"). More particularly the principles include the precautionary principle and inter-generational equity. It was further agreed that a stormwater management system for the site would be designed to meet the guidelines set out in: · Table 5.1 of the Georges River Stormwater Management Plan (May 1999), · Council's Stormwater Management Policy and Guidelines (July 1997). 133. Such guidelines would require source control including the sweeping of the car park and pollutant trap to collect litter course sediment and some fine particulates; in-line filtration to control fine particulates, oils and greases; and end-of-line filtration swales to provide final polishing of the stormwater. Compliance would be demonstrated by an appropriate monitoring. Findings on drainage 134. Had the Court been minded to grant development consent, it would have imposed the agreed conditions. XIV) FLORA AND FAUNA IMPACTS The evidence 135. Accepting that the suggested conditions of consent in relation to stormwater run-off will reasonably ensure that there will be no adverse impacts on the flora and fauna of Woolooware Bay generally, there remain two aspects associated with possible impacts on flora and fauna. These comprise the mangrove areas in the drainage channel and the size of the proposed building insofar as it presents itself to Woolooware Bay. 136. In his Statement of Evidence dated January 2002, Mr Straw expressed concern at the size of the proposed buildings, being relatively close to the northern property boundary (p 7):- The height of such a solid structure is likely to cause the waders [birds] to feed on tidal flats further away from the shore, therefore losing the use of a significant section of feeding habitat. The setting back of the buildings a further 20 metres would lessen the impact. 137. It was Mr Straw's opinion that a setback in the vicinity of 20 m and not the current 11.5 m would be appropriate such that the waders use of the mudflats would be unaffected. 138. Mr Straw also believed that a riparian zone alongside Production Road at least 15 m wide should be provided to lessen the impact of traffic, noise and light spill on birds using the mangroves. This would require the removal of some of the car parking spaces especially along the western side of the proposed building. 139. In this context the Department of Land and Water Conservation advised in its letter dated 22 February 2001 to Sutherland Shire Council that: This development has had little or no regard for the original drainage systems or their role in the ecological health of the bay. The present drainage feature, for all intents and purposes, functions as a "river" and the necessity for drainage will continue as long as development exists within the catchment. Habitat fragments, such as mangrove lined drainage features, now represent important, if not vital, components of the Bay ecology. The close proximity of the subject channel to that Towra Point Nature Reserve means that it constitutes an extension of the limited habitat opportunities within the reserve that contribute to the viability of important shore bird and wader communities . 140. The Department strongly recommended the provision of a riparian buffer zone along the entire western boundary of the site being provided by way of a condition of consent. Mr Fanning was not concerned in this regard because he believed that a substantial area of mangroves existed generally in the vicinity of the site which could be utilised by shore bird and wader communities. Findings as to flora and fauna 141. The Court does not accept Mr Fanning's approach because it disregards Mr Straw's legitimate concerns as to incremental loss of habitat. Moreover the fact that a proportion of this site was created by the destruction of mangrove areas and the requirement sought by him would not be a significant or unreasonable constraint on the development of this large site. 142. While concerns as to impacts on the mangroves along the drainage channel resulting from light spillage and noise could have been managed by conditions of consent, this concern would be subsumed by the requirement to provide a vegetated buffer zone alongside the channel. 143. However the matter of the vegetated buffer zone is probably not a matter which could have been resolved by conditions of consent because it would result in either a significant loss of car parking spaces or a redesign of the development. Moreover the possible widening of part of the channel as referred to earlier would need to be taken into account. It is thus a further reason for the refusal of the application 144. In relation to the size of the building affecting the use of the foreshore areas by birds the Court has not been persuaded that this is a reason sufficient to require a further setback of the building. The building would be significantly screened by a 7.5 metre landscaped area within the 11.5 metre set back from the foreshore building line as well as the fact that the foreshore building line is set 10 m inland from the mean high watermark. Consequently the habitat utilised by fauna including fish and birds for feeding and roosting should be largely unaffected, and a greater setback would be unnecessary. XV) ORDERS 145. The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application No. 10126 dated 24 July 2000 for a bulky goods retail centre at 31 Bay Road Taren Point be determined by a refusal of the application. 3. Exhibits be returned. 4. Costs reserved *** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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