Land and Environment Court of New South Wales CITATION : Multiplex Developments (Australia) Pty Ltd v Pittwater Council [2006] NSWLEC 421 APPLICANT Multiplex Developments (Australia) Pty Limited PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11429 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- childcare centre to utilise part of a commercial building, streetscape, carparking, noise LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 DATES OF HEARING: 05/06/2006-07/06/2006 EX TEMPORE JUDGMENT DATE : 06/07/2006 APPLICANT Mr A. Pickles, barrister Instructed by Ms MacFarlane of Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Ms G. Furness, barrister Instructed by Malleson Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 7 June 2006 11429 of 2005 Multiplex Developments (Australia) Pty Limited v Pittwater Council JUDGMENT 1 This is an ex tempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Pittwater Council's refusal of a development application for a childcare centre to utilise part of the existing commercial area of the property known as No. 10 Park Street, Mona Vale. 2 The centre is a mixed-use development constructed in the 3A General Business Zone of Pittwater and the current uses within the centre include a number of speciality shops, a supermarket and a gymnasium at the first floor level. It is proposed to convert part of the commercial area office space at the first floor level for the purposes of a childcare centre and the area would also require an addition in terms of a play area at the first floor level to extend over what is a right of carriageway/a right of way. 3 The applicant as the owner is burdened by the right of way and the Mona Vale Hotel enjoys the use of the right of way and is the beneficed of the right of way and enjoys access to the hotel, in particular, the bottle shop component of the hotel. 4 It is noted that the hotel recently received development approval for some alterations and additions to the hotel, which included within the vicinity of the right of way, as well as providing the entrance upgrade to the hotel itself from Park Street. 5 The Pittwater Local Environmental Plan 1993 is the relevant document and the site is zoned 3A General Business and it not being one of the prohibited uses under the instrument the proposed development is permissible with consent. 6 A relevant clause in the LEP is cl 39 which relates to the suspension of covenants and 39.1 states: "For the purposes of enabling development to be carried out in accordance with this plan as in force at the time the development is to carried out or in accordance with the consent granted under the act, any covenant, agreement of similar instrument development, does not, to the extent necessary, to serve that purpose, apply to the development." 7 And subclause 3: "Pursuant to s 28 of they Act before the making of this clause, the governor approved of this clause." 8 The issues in the proceedings were narrowed from council's point of view. Council initially provided a Statement of Issues and this included that the right of way would be encumbered by the proposal and would adversely impact the flow of traffic and the enjoyment of the benefit of the right of way by the adjoining hotel. 9 The council also identified issues concerning the loss of car parking. When the matter was heard by the Court, council's issues were narrowed to one that the reconfiguration of the right of way with the columns to provide for the support of the new play area for the play centre, or rather childcare centre, would result in the deletion of three spaces out of eight spaces from the parking spaces on the western side of the right of way resulting in a decrease in parking for the complex. 10 During these proceedings, Mr Ayling represents the Mona Vale Hotel as the second respondent. Mr Gardiner, the general manager for BBS Holdings, the owner of the hotel provided evidence to the Court on the site and he considers that the development would not provide for the continued ease of access and manoeuvring to the bottle shop as it currently provides for now. He stated that the busiest time of the bottle shop is between 3 and 5 pm and the right of way is an extremely busy right of way in terms of mothers also pulling up in the right of way to collect their children who alight from the bus in front of the Pittwater Place Shopping Centre. He considered that because of the narrowing of the footpath and the loading dock this would use greater congestion and create a situation that would impact on the hotel (the hotel being the beneficiary of the right of way provisions). Mr Gardiner was of the opinion that the use of the commercial area within the complex for the shopping centre was inappropriate for a childcare facility, being immediately next door and adjoining the hotel. He also considered that the fumes from the use of the right of way to the outdoor play area and the noise that could be emitted from the hotel made the relationship of the hotel and the childcare centre unsatisfactory, and that it would impede the potential of the hotel in the future in terms of complaints for noise etcetera. 11 The proposal is one that requires columns to be erected within the right of carriageway to support the play area. As such, the current open right of way would be enclosed for a distance of some 50 m and columns for the support of the play area would be required adjoining the kerb car park spaces near the common boundary with the Hotel. It is proposed to narrow the existing pedestrian pathway on the western side by approximately one metre and relocate the car parking spaces currently on site further to the west and also to provide support six support columns in this area. The parking bays would be between the columns and would require a reduction in the number of spaces by three although they would be of an increased length. The major support columns would be on the boundary or near the boundary of the subject site and the hotel itself. Here there would be three larger columns erected to support the play area above. 12 Mr Tim Rogers a traffic engineer is the Court-appointed expert in the proceedings. Mr Masson a traffic engineer presented evidence on behalf of the applicant. For the second respondent, Mr John Coady provided evidence. In Mr Coady's opinion, he agrees that the rearrangement of the right of carriageway in terms of the width of the aisles and the parking bays would comply with the Australian Standards. However, in his opinion, it does not represent 'good design practice' because the columns would require greater manoeuvring between parking spaces and would also cause a degree of difficulty in terms of cars for the bottle shop that are in either the browsing lane or the express lane that are using the bottle shop in exiting the site. 13 The Court had the benefit of hearing concurrent evidence from the three traffic experts and also a joint statement. Mr Coady agrees with stated, the technical conclusions expressed by Mr Rogers in his report. Mr Coady also agrees with Mr Rogers that the columns within the right of way would cause some loss of flexibility within the right of way. Mr Coady, however, does not agree with Mr Rogers that the provision of the columns would have minimal effect on traffic flow and that the effect of the columns on traffic flow are offset by widening of the through traffic lane within the southern section of the right of way. Mr Masson considers there would be a substantial benefit to traffic flow due to the widening of the southern part of the right of way. This will, to some extent, redress the constriction of the southern part of the right of way that will result from the hotel extending to its western boundary adjacent to the right of way and Mr Masson, accordingly, believes the traffic aspects of the right of way will be satisfactory. 14 Mr Coady, on the other hand, considers that the provision of columns within the right of way will affect the flexibility and traffic efficiency in that the columns will prevent vehicles in the through traffic lane merging into the adjacent bottle shop queue lane to avoid an obstruction in the through traffic lane. Such obstructions could be caused by vehicles accessing one of the kerbside parking spaces, delivery vehicles poorly parked in the kerbside parking spaces or of the obstruction of additional columns which are proposed to be located in the kerb side parking lane. The columns will prevent, in his opinion, vehicles attempting to depart the outer queuing lanes serving the hotel bottle shop in circumstances where departure is otherwise blocked by another vehicle parked in that queuing lane. This could increase the potential for vehicles in the queuing lane to tail out into the through traffic. While acknowledging that most of the recent proposal is satisfactory in terms of numerical standards such as the lane width, Mr Coady believes the proposal to locate structural columns does not represent 'good design', and therefore he considers consent should not be granted to the application. 15 Mr Masson considers that the proposed columns will enhance the safety of the bottle shop customers by providing protection when doors are open adjacent to the right of way. He believes that the loss of flexibility would be acceptable and that the resulting situation to the bottle shop would be better than if it were a stand-alone bottle shop constructed with two drive through lanes as per normal practice. 16 Mr Rogers does not agree with Mr Coady that the proposal is unsatisfactory and he reaches the same conclusion in his report that: "the design does comply and is consistent with the Australian Standards and RTA guidelines and that the provision of the columns would have minimal effect on traffic flow. However, the effects are not considered significant and are offset by the widening of the road within the southern section of the right of way." 17 Mr Ayling submitted that there are proprietorial rights and that the proposal should not be approved in that it would have an adverse impact on the bottle shop and the trading of the bottle shop. It is noted that in the s 88 Instrument, a copy of which was provided to the Court, the terms refer to the grantee and the grantor in terms of the lot benefited and the burdened lot and it provides for the passing and re-passing in the use of the right of way. "The grantee and every authorised user must comply with the car parking usage rules or requirements of the grantor and must not unreasonably interfere with the grantor's enjoyment of the lot burdened in 3.5(a) and (b) of the instrument." 18 The terms of the easement for car parking are also noted in s 4 and 4.3 states: "Full and free right and liberty for the grantee with which the right shall be capable of enjoyment and every person authorised by that person from time to time, to pass over the part of the lot burdened designated "d" on the plan, for the purposes of access to and from the car parking area." 19 The grantee also has the benefit of passing over the land for the use of car parking spaces in the basement of the shopping centre. That is for 280 spaces that it has the benefit of the use of. It is noted that the ground floor in fact provides for three hundred and twenty odd parking spaces and that is not restricted in terms of the hotel's use. 20 There was no evidence to the Court about the inadequacy of the number of car parking spaces and it is not disputed that the current car parking arrangement in terms of the non-exclusive use of the hotel for the basement parking area and the parking requirements for the shopping itself, are satisfied. 21 There has been a s 96 amendment to convert part of the shopping centre complex to a gymnasium and, even factoring in for the demand for that use, the traffic experts did not consider there was inadequate parking for the purposes of both the hotel and for the shopping centre complex. It is noted that the calculations for the shopping centre complex only considered the uses within the complex and on today's DCP requirements there is in fact an over-provision. And one must have regard to the fact that this does not factor in the parking spaces for the hotel. Nonetheless, there is shared use of the parking facility in that the peak demand times for the hotel would be at different periods of the day to when the demand or peak demand for the shopping centre complex requires the parking spaces. Similarly, the peak demand for the childcare centre would be during the hours of the shopping centre as opposed to the hotel peak use times as well. 22 It was submitted on behalf of the applicant that the hotel's recent approval provides for a restriction in terms of the bottle shop usage of the right of way and that the subject proposal is an improvement. At the end of the day, the Court must look at the overall use of the right of way in terms of the current and the proposed development of the hotel in conjunction with the proposed childcare centre. 23 A number of plans were provided to the Court in terms of exhibit E which showed the queuing for bottle shop the hotel plus the childcare proposal and then also the queuing for bottle shop in the approved hotel expansion. Exhibit M was also provided to the Court to clearly identify the through-lane traffic, the parking and the bottle shop arrangement in terms of both the express lane and the queuing lane. 24 On the basis of the evidence presented to the Court, I am satisfied that the proposal is satisfactory and there is no reason as to why the Court should not approve the development application in terms of the traffic manoeuvring and continual use of the right of way for the hotel and shopping centre. 25 I have considered the provisions of the right of way in terms of the instrument provided and had regard to ensuring that the impact is minimised for the second respondent, that is the hotel I am satisfied that providing a covering for the right of way in this location and with the erection of columns would not be dissimilar to configuration many bottle shops and their access and their operation. 26 The traffic engineers considered the proposal will provide for a satisfactory access and exit for the bottle shop as well as queuing lanes as well as providing for thirty minute parking restrictions on the western edge in the five parking spaces. Furthermore, the lack or the removal of three parking spaces would not warrant refusal of the application. This was agreed to by the three traffic engineers. It is insignificant in the overall provision of parking. Furthermore, there is in excess of two hundred and eighty spaces in the basement parking for the non- exclusive use of the hotel and the thirty-minute turnover of the five car parking spaces will be appropriate in terms of the operation of the bottle shop. Currently there is no restriction on the parking on the western lane parking spaces even though there are currently eight as opposed to five with the proposed childcare centre. The columns that are near the parking spaces on the western side will not obstruct parking. The proposal will also allow for parking of small loading vehicles and unloading vehicles given the distance between the columns. 27 I have also had regard to Mr Pickles submission on behalf of the applicant concerning easements and restrictive covenants. Mr Pickles cited a number of cases that were provided to the Court noting "an obstruction must be substantial if it is to be actionable. Trivial obstructions will be disregarded." The extract goes on to state: "It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is wrong if it is appreciable, but in the case of a private right of way the obstruction is not actionable unless it is substantial." 28 In terms of the covenant, I am satisfied that the proposal will not unreasonably interfere with or obstruct its use by the hotel. 29 The other issue of concern raised during the proceedings by the second respondent relate to the juxtaposition or the relationship of a hotel adjoining a childcare centre. While on the face of it would appear that a childcare centre next to a hotel would not be desirable, the circumstances of this case are significantly different and I am satisfied that, given the grade separation of the relationship of the play area and the childcare centre itself to the hotel adjoining this will not create impacts or furthermore, it will not lead to potential impacts or a potential impediment to the operation of the hotel. 30 The proposal provides for a screen to be constructed at the side of the play area and the evidence of the applicant in terms of the acoustic engineer is that the proposal is satisfactory and will not be impacted by the operation of the hotel. Furthermore, with respect to air pollution or particulants in the air, a condition has been proposed to ensure there are no gaps between the slab over the right of way and the play area. This issue therefore would not warrant refusal and, indeed, the applicant provided an expert report that states the air pollution is not of concern and this was prior to the condition requiring no gaps. 31 The council's issue of the removal of three car parking spaces at the end of the day, was the only remaining issue. I accept the evidence of the experts that the loss of the three car parking spaces would not warrant refusal of the application in the overall context of the provision of car parking for the centre. There are currently four hundred and seventy three car parking spaces for the shopping centre complex and it will be reduced to four hundred and seventy by the proposal. I am satisfied there is no evidence to say that the car parking is not satisfactory today and the reduction of three spaces would not create any significant impact. I am also satisfied that the hotel's interests are safeguarded in terms of the total number of car parking spaces available for its use. 32 The council, provided a Statement of Issues that included traffic, however this issue was not pressed and the council accepts the report of the Court appointed expert, Mr Rogers, in respect of the impact of the columns on the traffic and the flow of the right of way as well as the parking provisions. 33 It is noted that the plans have been amended from the original application and they are now satisfactory in the opinion of the traffic engineers Mr Rogers notes in his report the requirements of the Australian Standards and states that he conducted a survey of traffic movements within the right of way in terms of peak traffic flows and in his assessment, the proposal is one that is satisfactory and feasible in terms of the requirements of the Australian Standards and the RTA Guidelines. 34 With respect to the matter raised by the second respondent that the impacts could be significantly reduced, that is the impacts that the second respondent considers would arise from the columns by the cantilevering of the play area, this is not the application before the Court. The Court must assess whether the application before it is satisfactory and not whether an alternative is one that must be provided. The applicant does not submit that the cantilevering is necessary because of the traffic arrangements that are now provided in the right of carriageway, which will provide for the continued benefit to the hotel in terms of the bottle shop. 35 For the conditions, at the end of the day the second respondent requested that there be a further condition, such that the applicant must prepare a plan of construction and traffic management in conjunction with BBS Holdings Pty Limited, the owner and operator of the Mona Vale Hotel, that seeks to minimise the adverse impacts on the hotel and the bottle shop and that this plan of construction must be approved by the council prior to the commencement of the works. 36 The council is prepared to facilitate consultation and comments on the Construction Management Plan and, as such, I consider it is appropriate to amend the condition that has been provided to ensure that the interests of the bottle shop are considered. It is noted that the condition in issue is C9(e) requires that the 88B instrument be taken into consideration in the preparation of the Construction Traffic Management Plan, Clearly, the Construction Plan must have regard to the peak trading times of the bottle shop and this would also be consistent with the instrument. The condition is amended to include the following: "Prior to the approval of the Construction Traffic Management Plan, the applicant is to provide a copy of the proposed plan to the owner and operator of the Mona Vale Hotel, and any submissions from BBS Holdings Pty Limited on the proposed plan are to be provided to the council and the applicant within 14 days for consideration by the traffic consultant and council's relevant officer. This process is to minimise the impact of the construction works on the bottle shop, having regard to its peak trading times. As such the Construction Management Plan is to contain provisions considered to be reasonable by council's relevant approving officer." 37 Therefore, on the basis of my assessment, I am satisfied that the proposed development is satisfactory and there are no issues that would warrant its refusal. 38 Accordingly the formal orders of the Court are: 1. The appeal in respect of the property known as The Pittwater Place Shopping Centre, 10 Park Street, Mona Vale, is upheld. 2. The Development Application submitted to Pittwater Council and as amended for a childcare centre, is determined by the granting of consent, subject to the conditions contained in Annexure 'A'. 3. The exhibits, except for 2, 7B, E, L and M are returned to the parties. ___________________ J S Murrell Commissioner of the Court ljr 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.