Land and Environment Court of New South Wales CITATION : Bonim Stanmore Pty Ltd v Marrickville Council [2006] NSWLEC 771 APPLICANT Bonim Stanmore Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 11460 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Construction of a supermarket with basement carpark, vehicular access, height, traffic impacts, delivery vehicles, noise, inadequate loading facilities, retail/commercial centre policies, existing use rights, whether the location is appropriate Environment Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2001 LEGISLATION CITED: State Environmental Planning Policy No. 11 - Traffic Generating Developments State Environmental Planning Policy No. 55 - Remediation of Land Draft State Environmental Planning Policy No. 66 DATES OF HEARING: 08-09/08/2006 DATE OF JUDGMENT: 12/13/2006 APPLICANT Mr W Ayling, SC With Mr I Hemmings, barrister Instructed by: Mr G Farland LEGAL REPRESENTATIVES: Of: Landerer & Company RESPONDENT Mr A Galasso, SC With Mr G Christmas, solicitor Of: Citizens' Service Centre JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 13 December 2006 11460 of 2005 Bonim Stanmore Pty Limited v Marrickville Council JUDGMENT 1 This is a class 1 appeal No. 11460 of 2005 between Bonim Stanmore Pty Limited and Marrickville Council in regard to the deemed refusal of a proposal for demolition of a vacant club building and construction of a supermarket with a two level basement carpark for 107 cars on that part of the site fronting Stanmore Road, and the erection of a dwelling on the Cavendish Street frontage. The latter location is on what is currently an access laneway to the site between other houses. It is proposed to be subdivided off for the dwelling, so the supermarket will retain only the main road allotment. 2 The site is zoned Residential 2(a) under the Marrickville Local Environmental Plan 2001, and "shops" and "commercial premises" are prohibited in the zone. As a result the development application relies on existing use rights of the vacant club under the Environment Planning and Assessment Act 1979 to empower any development consent of the supermarket component of the proposal. The site 3 The subject site is known as 221-235 Stanmore Road, Stanmore, ("the Site") and is located on the northern side of Stanmore Road, between Holt Street and Merton Street. While having its primary frontage to Stanmore Road, the Site also has a frontage to Cavendish Street. 4 The Site is made up of four (4) lots being Lot A in DP109269, Lot 1 in DP 49, Lot B in DP 330028 and Lot 1 in DP 526319. 5 The Site has a 2.54 m fall from north to south and a cross fall from west to east of approximately 2.28 m, with the south east corner of the site on Stanmore Road being the lowest point. 6 The Site currently contains a three (3)-storey masonry building formerly occupied by the Concordia Club. The roof of the building contains a number of telecommunication facilities. The existing building occupies the majority of the Site, with a paved unbuilt upon area located on the eastern side of the property previously used for car parking. 7 Vehicular access to the Site when it was previously used as a Club was provided from both Cavendish Street and Stanmore Road. The vehicular access from Cavendish Street provides access to the open car parking area located at the eastern end of the Site. The vehicular access from Stanmore Road provides access to the lower level car parking of the existing masonry building. The proposal 8 The subdivision component of the development proposed lots sizes of: o Lot facing, Cavendish Street - frontage of 6.5 m and a site area of approximately 161.6 sq m. This lot is to be redeveloped for a residential dwelling under a: separate development application which has not as yet been submitted to council; and o Lot facing Stanmore Road - frontage of 66.3 m and a site area of approximately 2709.2 sq m. 9 The proposed development has a maximum height of 2-storeys above existing ground levels, with the highest point being RL46.25 (approximately 8.8 m above natural ground level at the building's highest point). The development adjoining the eastern boundary has a maximum height of RL 46.13, while the dwelling house adjoining the western boundary has a maximum height of RL44.38. 10 The access from Stanmore Road is to be relocated to be near the west end of the site. It would be on a curve in Stanmore Road. A kiosk electrical sub-station in the footpath will need relocation too. A right turn bay is proposed in Stanmore Road for traffic entering the site from the east. A part of the site would be dedicated as road to provide for the slip lane. 11 No slip lane for traffic from the west is proposed except for that provided by the width of the drive entry. Traffic lights are proposed to control the intersection. It is proposed that traffic lights at Holt Street can be re-located for this, and the pedestrian crossing also moved from Holt Street to the site entry. 12 There is a pedestrian overbridge crossing at Holt Street used by school children and others to go to the Stanmore Rail Station that is 2 blocks along Holt Street. The ground level pedestrian crossing beside the overbridge is for disabled access. 13 A second vehicle access to the site from Stanmore Road is proposed at the east end of the site. This is for delivery trucks. The trucks have to be maximum 8 m length to use the turntable inside so that entry and exit can be done in a forward direction. A delivery bay manager is required to ensure no more than 2 trucks would be in the bay simultaneously, or it would be jammed. The Locality 14 The site is generally surrounded by residential uses, with a school (Newington College) located on the opposite side of Stanmore Road. 15 To the north, the site is adjoined by residential development which fronts Cavendish Street. Development along Cavendish Street is characterised by varied residential forms including attached terrace houses, Victorian residences, inter war bungalows and a three storey inter war residential flat building. 16 To the east, the site adjoins a late Victorian 2-storey residence which has been substantially altered and converted into flats. 17 To the west, the site adjoins a single storey Victorian Italianate villa. 18 In the vicinity of the site, Stanmore Road is generally characterised by two storey Victorian and Federation style buildings. However, there are several old shops and home occupations scattered amongst residential uses nearby. The main local shopping centre is at Stanmore Railway Station. There is a mini-supermarket about two blocks from the site along Holt Street at the railway station and opposite the Stanmore Public School. There are more shops and the main part of Stanmore shopping centre on the north side of the station. The much larger shopping centres of Enmore and Petersham are about 1 km east and west of the site respectively. 19 According to the information supplied by the Applicant, the existing Club building comprises 4830 sq m of gross floor area with a floor space ratio of 1.67:1. Statutory controls + Marrickville Local Environmental Plan 2001. + State Environmental Planning Policy No. 11 - Traffic Generating Developments. + State Environmental Planning Policy No. 55 - Remediation of Land. + Draft State Environmental Planning Policy No. 66 – The Right Place for Business and Services + Marrickville Development Control Plan No. 19 - Parking Strategy. + Marrickville Development Control Plan No. 27 - Waste Management. + Marrickville Development Control Plan No. 29 - Contaminated Land Policy and Development Controls. + Marrickville Development Control Plan No. 31 - Equity of Access and Mobility. + Marrickville Development Control Plan No. 32 - Energy Smart Water Wise. + Marrickville Development Control Plan No. 38 - Community Safety. + Marrickville Section 94 Contributions Plan 2004. + Marrickville Code for the Control and Erection of Signs and Advertising Structures. The issues 1. Deleted. 2. Inappropriate use The proposal is of a type, scale and intensity that is inappropriate having regard to: (a) the actual surrounding land uses; (b) the likely future character of the locality; (c) the zoning of the site and surrounding land under the Marrickville Local Environmental Plan 2001 ; (d) the objectives, provisions and planning principles of draft State Environmental Planning Policy No. 66 (in particular, The Right Place for Business and Services Planning Policy); (e) the objective of cl 7(i) of the Marrickville Local Environmental Plan 2001 to maximise business and employment opportunities in the council's existing commercial centres. 3. Bulk, scale and visual appearance of built form The proposed development is inappropriate in terms of: (a) its retention and reinforcement of the bulk, scale and height of the existing development on the site; (b) the existing and likely bulk, scale and height of development on surrounding land; and (c) the compatibility of external materials and finishes with the existing residential character of Stanmore Road. 4. Inadequate setbacks and landscaped area: (a) The setbacks to the side and rear boundaries are insufficient and fail to provide a reasonable distance for the establishment and maintenance of landscaping. (b) The inadequate setbacks and landscaped area will result in a poor outlook from adjoining properties, particularly from the first floor level. (c) The amount of landscaped area proposed is inadequate given the existing and future character of the locality. 5. Deleted. 6. Traffic impacts The proposed arrangements for vehicular ingress and egress (both patrons and delivery vehicles) are unsatisfactory having regard to: (a) the location of the site and the volume of existing (and likely future) traffic using Stanmore Rd; (b) the volume of traffic associated with the development. 7. Deleted 8. Delivery vehicles The designated area for delivery vehicles is insufficient to cater for the size of the development and does not comply with the requirements of Table 4 of DCP 19. The proposal requires a truck turntable for delivery vehicles and there is an inadequate queuing area. This is an unsatisfactory arrangement for a new development, particularly having regard to the location of the site on a State road. The reliance on a management pIan to control the times and frequency of deliveries is too uncertain having regard to the location of the site on a State road. 9. Submissions The proposal is not in the public interest and regard must be had to the objections to the development application. 20 The respondents evidence came from: o Mr J Bertacco, development control engineer for the council o Mr J Erken, senior town planner for the council 21 The applicant's evidence came from: o Mr J Coady consultant traffic engineer o Mr K Dobinson, traffic consultant o Mr R Binding, feasibility manager Coles Myer Ltd o Mr A Darroch, consultant town planner 22 The parties had agreed on a joint traffic expert to be appointed by the Court. Mr G Pindar had participated in joint meetings and a report in evidence. The evidence 23 Eight (8) submissions were received during the notification period. Concerns raised related to the following issues: + Validity of existing use rights. + Incompatibility of proposed use with surrounding residential area and school. + Traffic and parking - including relocation of traffic lights, truck deliveries, overflow parking in surrounding residential streets, inadequate parking spaces, and traffic movements to and from the site. + noise generated by refrigeration units, truck deliveries, vehicle movements, air conditioning and plant. + Potential for additional telecommunication facilities to be placed on proposed building. + Supermarket trolleys being left in surrounding areas. + Appearance of proposed building and its compatibility with the streetscape. + Social and economic impacts - including potential adverse impact on existing established retail precincts/facilities. + Inadequate loading facilities. + Potential drainage problems. 24 The development application was referred to the Roads and Traffic Authority (RTA) for traffic and parking assessment and for concurrence under Section 138 of the Roads Act. The RTA forwarded a letter to Council advising that the Authority would not grant concurrence to the proposed driveway from Stanmore Road and the installation of a set of traffic signals on Stanmore Road at the entrance to the proposal, until such time as further information was forwarded to the RTA by the applicant. This additional information relates to pedestrian desire lines, removal of an existing signalised pedestrian crossing at Holt Street, modelling information on existing traffic flows in Stanmore Road and the proposed right turn bay in Stanmore Road. The applicant responded to this request for additional information and the RTA's response is referred to below. 25 The development application was also referred to the Marrickville Traffic Committee on 20 December 2005. The Committee raised the following concerns: o Sight distance to proposed traffic signals in Stanmore Road as there have been fatalities in the past in Stanmore Road in the vicinity of the site; and o The Committee requested that the applicant consult with Newington College with regard to the relocation of the traffic signals and with regard to pedestrian movements to and from the school; and o Potential dangers from trucks turning right out of the site onto Stanmore Road; and o Potential installation of a median strip to prevent right turn movements out of the site. 26 The RTA advised in due course that it did not object to the proposal subject to certain conditions, amongst which were the reconfiguration of the drive entry to Newington school to prevent right turn movements, and the non-agreement to a concrete median in Stanmore Road as it would require acquisitions from adjoining properties. 27 In oral evidence, Mr Pindar summarised his concerns as: 1. the turning lane and traffic lights can work as an entry to the basement carpark, but subject to the following adverse factors. 2. on a matter of public interest it is wrong to put a traffic generator such as the proposal on a main road due to the need to keep such thoroughfares free-flowing and as safe as possible, especially with future growth of traffic in mind. 3. the traffic signal relocation of the existing pedestrian crossing to a combined new pedestrian crossing and site entry is not really a public benefit, the purpose is to benefit the development. It relocates the exisitng pedestrian crossing that gives a more direct pedestrian route along Holt Street to the railway station. 4. it is only that relocation that enables the RTA to agree to the site entry and slip lane, because it does not increase the number of traffic signals along the main road, and thus "no precedent". 5. At present the signals in their present location only serve a pedestrian crossing, with the addition of traffic control and turning movements there must be additional delays to the free-flow of traffic along Stanmore Road. 6. The restriction of obtaining the road widening within the frontage of the site (so the applicant can dedicate the land to create the slip lane for the entry to the site), necessitates a multi-curved carriageway for east bound traffic on Stanmore Road. Drivers have to curve left into the road widening, then back to the right and then back to the left again in order to rejoin the existing road alignment east of the site. Whilst drivers can do this manoeuvre, it adds a potential hazard to the existing smooth curve in Stanmore Road outside the subject land. 7. All of these factors can be termed "poor planning" on a main road. 28 The residents' objections included a concern that at the moment the pedestrian signals, being next to Holt Street gives cars coming out of that street an opportunity to make a right turn with safety and without slowing the traffic in the main road (since it is stopped anyway for the pedestrains). Already, in peak hour residents said Holt Street had long queues and delays. With the relocation, they feared Holt Street traffic will have little opportunity to come out onto Stanmore Road in peak hour. 29 Mr Pindar thought that situation would stay the same as the signals only worked for pedestrians. 30 On the view of the locality during the hearing, we observed cars turning right out of Holt Street used the space created by the pedestrian light operation to make a safe turn. One can understand that in peak hour it would be one of the only opportunities to do so. 31 The residents were also concerned about cars coming from the west missing the entry, or the car park being full, or persons preferring not to use the car park instead circulating around the block through narrow residential streets and using already congested on-street parking. Mr Pindar did not think the number of times this would happen could be sufficient for refusal. 32 Mr Pindar was shown Exhibit G, a revised road widening plan that reduced the three curves to two. He said that was better, but only on that factor, and he had not seen a plan to show how the building fitted it, more setback may be required. 33 He said he would prefer a left lane "in" for east bound traffic, but the RTA had said the width of the drive entry was OK for that. 34 He understood Newington school had agreed to "left in-left out only" from its driveway and that was acceptable. 35 It was put to him that if the supermarket is built the studies show pedestrian desire lines would change, and the relocation of the crossing would suit shoppers better. He said that was a benefit to the site, not a public benefit in his mind. 36 He agreed that for people south of the railway, between it and Stanmore Road, and some south of Stanmore Road, it may be more convenient to walk to the site rather than drive. They probably drive now to the supermarkets elsewhere. 37 The planners were not called for cross-examination, their joint report stood in Exhibit 9, and revealed major disagreement. 38 Due to the existing use rights of the subject site, the normal planning regime is held by case law to not apply. The appeal needs to be determined by considerations under s.79C of the Environmental Planning and Assessment Act 1979, and as the evidence showed, the principle considerations arose under draft SEPP 66 -The Right Place for Business and Services. 39 Mr Darroch is of the opinion that, while it is not accurately reflected in the zoning, the actual land use in this area forms a mixed use centre which has developed around Stanmore Railway Station and the three schools which attract local multi­purpose trips to this area relying upon the high levels of public transport available. He says the character of the area is of medium density residential development interspersed with retail, commercial and service uses and large scale educational buildings and the existing club building itself. 40 Mr Erken disagrees that the land uses in this area form a mixed use centre. While there are higher order residential uses, such as residential flat buildings in the surrounding area, the character of the area is residential. 41 The Planning Policy associated with draft SEPP 66 "Improving Transport Choice" describes a centre as: "containing the highest densities of housing, employment, services, public facilities within walking distance of major public transport nodes such as railway stations." And identifies that best practice is achieved when: "a mix of compatible uses is permitted, such as shops and restaurants, on the ground floor of residential and commercial buildings." 42 Mr Erken points out that the subject site and the surrounding area is zoned Residential 'A' which does not permit a mix of business and commercial activities. There is a zoned Neighbourhood Business Centre located on the corner of Trafalgar Street and Holt Street that provides business and commercial activities which cater for the local neighbourhood. This Centre contains among other things a hairdresser, chemist, doctor, bottle shop and an IGA supermarket. 43 Mr Darroch said that while much of the area in the vicinity of the Holt Street/Stanmore Road spine is zoned Residential 2(a) it is unrealistic to consider that the desired future character of this zoning, namely, low density single dwellings, will ever be realized given the extent of properties developed to higher order uses and benefiting from existing use rights. A high proportion of these properties are strata sub-divided which makes redevelopment to a lower order use highly unlikely. Consequently, the existing character of a neighbourhood centre, of greater density, scale and intensity than the surrounding landuse it supports, is most likely to continue as the likely future character. 44 Mr Erken said that while there are examples of higher order residential uses, the surrounding area is residential in character. Furthermore, given the limited development opportunities afforded by the zoning of the land, the character of the surrounding area is unlikely to change significantly in the future. 45 While Mr Darroch has identified a range of businesses in the surrounding area, Mr Erken has visited the subject premises and has found that apart from the retail activities located in the small Neighbourhood Business Centre located on the corner of Trafalgar Street and Holt Street opposite the rail station, the majority of the businesses identified by Mr Darroch are simply dwelling houses where people are operating a home activity. Given the nature and types of the uses identified by Mr Darroch, Mr Erken is of the opinion that multi-purpose trips are unlikely in this locality. 46 Mr Erken points out on Wednesday 29 March 2006 the NSW Government gazetted the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006, which changes existing use rights regarding the ongoing development and use of land. The Environmental Planning & Assessment Amendment (Existing Uses) Regulation 2006 amends the Environmental Planning and Assessment Act so that: + An existing use can no longer be changed to another prohibited use (unless the zoning is changed to permit that use) + An existing use can be changed to a use that is permissible 47 The amending Regulation contained savings and transitional provisions which provide that the amendment does not apply to applications for development in respect of an existing use that were made before the commencement of the Regulation. While the savings and transitional provisions ensure that the amending Regulation does not impact on the subject development application, the intent of the Regulation is of interest in the assessment of this development application. 48 Mr Darroch is of the opinion that the proposed development is consistent with the objectives, provisions and planning principles of draft SEPP 66 as it recognizes a local community need for a retail facility that is not currently catered for in the area (see Leyshon Consulting Stanmore Trade Area Map). The almost 20,000 residents currently located in this trade area need to travel out of the area to fulfill their shopping needs. The proposed supermarket is located in an existing higher order centre and provides a local facility within walking distance for a significant proportion of this catchment. 49 The proposal encourages multi-purpose trips by making this facility available to residents already visiting this centre on a daily basis to meet their other needs and avoiding duplicate trips outside of the trade area to meet their shopping needs. 50 Mr Erken is of the opinion that the proposed development is not consistent with the objectives, provisions and planning principles of draft SEPP 66 and the Integrated Land Use and Transport Policy Package, and does not consider that the subject site (and proposed supermarket) is to be located in an existing higher order centre. 51 Mr Erken said the Planning Policy associated with draft SEPP 66, "The Right Place for Business and Services", outlines the appropriate location for certain types of land uses, including supermarkets. The Policy states: "Supermarkets and large specialist and department stores have an important role in anchoring a broad range of shopping and other services and thereby allow a single multi-purpose trips. Retail proposals should be accommodated in centres to allow choice and free pedestrian movement. Ideally, a single retail property should not comprise the whole centre so as to allow for new market entrants and competition and avoid the unnecessary creation of new centres. It is particularly important for decision makers to be consistent and fair because of the competitive nature of the industry." 52 Mr Erken said despite the presence of existing use rights over the site, the proposal is highly isolated from other retail activities being surrounded by residential uses. As encouraged under draft SEPP 66, the proposal would be more appropriately located in a zoned retail commercial centre where it may supplement other retail and commercial uses, where there are no immediately adjoining residential dwellings, where public transport is highly accessible and where traffic and parking impacts can be readily accommodated. As described in Improving Transport Choice which forms part of the Integrated Land Use and Transport under Draft SEPP 66 "concentrating activities lets people make a single trip for a range of purposes". 53 The planners agree that the subject site is well serviced by public transport. The site is within 400 m of Stanmore Railway Station and well serviced by bus routes. The heavy rail and bus routes radiate throughout the trade catchment area to provide strong opportunities to encourage people to travel on public transport, walk or cycle to the supermarket. 54 Mr Darroch said the proposal utilizes an existing commercial use (being the former Concordia Club) which relied upon a regional catchment of members and was therefore likely to encourage car trips. The nature of that use was generally recreational and outside of core business hours also meant that the trip generation peaks conflicted with the most efficient periods of public transport provision. SEPP 66 makes provision for consideration of existing isolated commercial developments. 55 Mr Erken said the Club does not fall into this category as it is not a retail/commercial use. 56 Mr Darroch believes that this part of the policy provides the guidance for how one should consider the Club. Mr Darroch believes that the nature of the Club with a regional catchment of members makes it an isolated commercial development as it has a poor relationship and match to the centre in which it is located. He said that changing the use to a local supermarket makes it relevant and part of the centre. 57 Mr Darroch said the practicality of alternate locations which may better achieve the outcomes are extremely limited. The proposal would be in a centre and serves to adapt the previous Club use to a local supermarket use which is a better use for the location. He said the net community benefit of locating a supermarket on the subject site is high and sufficient to warrant its approval under the objectives, provisions and planning principles of draft SEPP 66. 58 Mr Erken disagrees with the assertion that the Holt Street/Stanmore Road spine is an existing retail/commercial centre and said it is inappropriate to provide a reasonably large supermarket in a low density residential zone. 59 The objectives of the Residential `A' zone as described in MLEP 2001 are: (a) To identify areas suitable for predominantly single dwellings residential development, and (b) To provide opportunities for non-residential development which is of a type and scale that is compatible with the surrounding land, and (c) To enable site with an area greater than 1,500 sq m to be developed for multi unit housing . 60 Given the above-described objectives of the zone, Mr Erken questions the suitability of the site for the proposed development. While objective (b) envisages opportunities for non-residential development in the zone, this opportunity is qualified by the need for such uses to be of a type and scale that is compatible with the surrounding land. 61 Mr Erken points out that Clause 38 of MLEP 2001 relates to the use of existing commercial buildings in residential zones. Clause 38(2) of MLEP 2001 prescribes: (2) Despite any other provision of this plan, consent may be granted to the use of a building to which this clause applies for business or retail purposes provided the consent authority is satisfied that the gross floor area that will be used for those purposes does not exceed 100 sq m. 62 In coming to a conclusion on this matter, I bear in mind that the proposal is far in excess of that size and creates a new traffic generator on a main road that carries about 24,000 vehicles per day. Unlike the club, the supermarket would generate traffic in peak periods not out of peak. It would cause, through additional turning movements, a reduction in the efficiency of the main road that in the future must carry ever more traffic. 63 In considering the various retail and commercial and institutional uses scattered between Holt Street, Merton Street and the local shopping centre on the south of Stanmore Railway Station, I could not come to the conclusion that it is a higher order centre of a dispersed nature as submitted by the applicant. 64 It is obvious from the government documents that good planning would require locations for new supermarkets within existing centres or designated new centres, or on the edges of such centres such that consolidation of the centre might occur. 65 The subject proposal is neither of the first two scenarios, and to achieve consolidation of South Stanmore as a centre would require rezoning of several city blocks to a zone for General Business. That is obviously not the intention of the Marrickville Local Environmental Plan. 66 I have concluded that Issues 2 and 6 are crucial and determinative and that the proposal must be refused. 67 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 2, 4, 6, 8, 9, 10, A, B, E and G. ___________________ K G Hoffman Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.