Fabcot Pty Ltd v Hornsby Shire Council [2004] NSWLEC 358

Land and Environment Court of New South Wales

CITATION : Fabcot Pty Ltd v Hornsby Shire Council [2004] NSWLEC 358 APPLICANT Fabcot Pty Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11597 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- Shopping centre alterations - traffic - bulk - impact on neighbours LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 10-12/05/2004 EX TEMPORE 05/12/2004 JUDGMENT DATE :

APPLICANT Mr B J Preston, SC SOLICITORS Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Mr R K Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

12 May 2003

11597 of 2003 Fabcot Pty Ltd v Hornsby Shire Council

JUDGMENT

1 The appeal was lodged against council's deemed refusal of a development application for extensions and refurbishment of the existing Parkway Plaza shopping centre, situated at 2-12 The Comenarra Parkway, Thornleigh. The site has varying lengths of frontage to Pennant Hills Road, The Comenarra Parkway, Wood Street and Bellevue Street. The proposal includes extension of the carpark and the retailing areas, together with relocation of the main loading dock from the The Comenarra Parkway to Bellevue Street. 2 Insofar as a number of the issues were initially identified, further review and conferencing has been undertaken by the parties to address the issues, requiring in a number of amendments to the proposal. This review process has resulted in the council agreeing to consent orders subject to a set of conditions. 3 Notwithstanding this, the proposal attracted considerable public interest. This is evidenced from the volume of written objections submitted and the further oral evidence given by the objectors at the on-site meeting on the 10 May. 4 The consideration of these resident objections, indicates that they involve most of those originally identified by council. They include dissatisfaction with the relocation of the loading dock to Bellevue Street because of the disamenity of additional trucks in terms of noise, nuisance, safety and general pedestrian inconvenience. Also concerns were expressed about lack of consultation and likely reduction of property values. 5 Having considered the submissions, undertaken a view and reviewed the experts' evidence, I note initially, that the site is zoned part Business A (General) and Lot 38 - Business B (Special) and the proposal is permissible with consent. 6 In the documents put before the Court, there are detailed assessment of the proposal by the planners, which demonstrates reasonable compliance with the current controls. However there is a non-compliance with the FSR development standard in cl 15 of the LEP. This non-compliance was dealt with by way of a SEPP 1 objection prepared by City Plan Services. The SEPP 1 objection was then assessed by the Council planners who agree that it is well founded. On the basis of the evidence before the Court and in the absence of any challenge, I accept that the SEPP 1 objection is well founded and should be allowed. 7 With respect to the prime concern of the residents concerning increased truck and traffic disamenity, I note initially, that the proposal was referred to the RTA. The RTA responded on 19 January that whilst it is not the consent authority for this road, it prefers locating the loading dock and its functions on Bellevue Street, given the high volume of traffic on The Comenarra Parkway and the site's proximity to the signalised intersection of Comenarra Parkway/Pennant Hills Road and The Comenarra Parkway/Wood Street. In addition, the RTA says vehicles in the west bound carriageway of The Comenarra Parkway queue past the subject site during peak periods. 8 Considering this preference for the relocation of the loading dock by the State Road Authority, the impacts of the proposed traffic and movements were reported on by Mr Rogers (Traffic Engineer) who has undertaken detailed traffic and parking assessments. He says that at present, the delivery trucks are required to use Bellevue Street as part of the circuit to gain entry to the existing loading dock. He estimates that on completion of the centre when it is operating at full capacity, there is likely to be a maximum increase in traffic or truck movements of 15-20%. From a traffic engineering point of view, he considers then, that the incremental change in traffic impacts, is satisfactory. 9 Associated with this are the perceived noise concerns from the loading dock, but the amended design has been undertaken to incorporate soundproofing. This has been reviewed by both parties' acoustic consultants who agree that reasonable controls can be implemented which contain noise emissions to EPA standards. The applicant agrees to the imposition of these conditions. Regarding other general traffic dis-amenity, the agreed conditions require the implementation of a traffic management plan to minimise nuisance. This deals with trucks being restricted in accessing the loading dock, specified responsibilities for a transport manager in conjunction with the store manager to ensure that warehouse deliveries are coordinated and in accordance with the conditions of consent, which place time limits on deliveries. 10 I am satisfied then that the expert evidence confirms that the increased traffic and shopping centre can work with a satisfactory level of service. 11 The residents also raise the concern about reduction in property values. However, no detailed valuation evidence was presented. Instead some speculation was made that the increase in vehicles, and presumably that is the incremental increase which may be 15 – 20% at maximum operation capacity, would decrease the values. However, in the absence of any expert evidence on valuation, I do not consider that these concerns are sufficient to warrant rejection of this application. I note in this regard that there is alternatively some support for this proposal because of the improved increased amenity that it will offer to the residents of this area. 12 There is further correspondence from the resident's coordinating planner, Mr Willis, regarding inadequate notification of the proposal. But from my perusal of the documents before the Court, it appears that there has been extensive consultation with the residents. Reference to the council report in Exhibit 1, shows a plan that indicates that there has been widespread notification to the immediate adjoining residents opposite, and other residents in this area that could be impacted on by the traffic and their convenience to get onto the main feeder road, Pennant Hills Road. So it appears to me that considering this notification and the volume of objections that have been received, that there has been reasonable notification of this proposal. 13 Taking into consideration the evidence before the Court I am satisfied that the relevant s 79(c) matters have been addressed so that the consent orders should be granted. 14 The Court orders by consent that: 1. The appeal be upheld. 2. Development consent be granted for the refurbishment of the existing Parkway Plaza Shopping Centre, including partial demolition, excavation and reinstatement to basement carparking, refurbishment of entire centre, fit-out of supermarket and liquor store, and preparation of specialty shops for fit-out by tenants at subject premises as shown in the following drawings prepared by DNR Architects and numbered (a) drawing No. 00111 DA 1.01B dated 14 October 2003; (b) drawing No. 00111 DA 1.02C dated 14 October 2003; (c) drawing No. 00111 DA 1.03B dated 14 October 2003; (d) drawing No. 00111 DA 1.04C dated 1 December 2003; (e) drawing No. 00111 DA 1.05C dated 1 December 2003; (f) drawing No. 00111 DA 1.06C dated 1 December 2003; (g) drawing No. 00111 DA 1.07A dated 14 October 2003; (h) landscaping plan LP 1, subject to the conditions in annexure A. 3. The SEPP 1 objection to the FSR development standard in clause 15 of the Hornsby LEP is allowed; 4. The exhibits be returned except for 4, 5, 6, 7, A, B and F.