Land and Environment Court of New South Wales CITATION : Hovy v Campbelltown City Council [2006] NSWLEC 646 APPLICANT Alex Hovy PARTIES : RESPONDENT Campbelltown City Council FILE NUMBER(S) : 10314 and 10315 of 2006 CORAM: Hoffman C KEY ISSUES: Subdivision :- Erection of bulky goods warehouse, adverse impacts, traffic flows, vehicular access, parking, storage Local Environmental Plan 2002 - Campbelltown Urban Area LEGISLATION CITED: Development Control Plan 52 - Off Street Car Parking Policy Campbelltown Industrial Development Policy 5.2.13 DATES OF HEARING: 27-28/09/2006 EX TEMPORE JUDGMENT DATE : 09/28/2006 APPLICANT Mr R Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 28 September 2006 10314 and 10315 of 2006 Alex Hovy v Campbelltown City Council JUDGMENT 1 This is two class one appeals, Nos. 10314 of 2006 and 10315 of 2006, between Alex Hovy and Campbelltown City Council in regard to the deemed refusal of subdivision and erection of two bulky goods outlets at Nos. 33-35 Blaxland Road, Campbelltown. 2 Appeal No. 10314 is for the subdivision into two lots of the rectangular site of 4,447 sq m. Proposed Lot 100, the northern lot, would become 2,156 sq m with a 26.8 m frontage and an 80.4 m depth. Lot 101, the southern lot, would become 1,890 sq m with frontage of 23.49 m and depth of 80.4 m. 3 The site is generally flat and concrete paved with some small existing buildings and two existing driveways in the centre of the existing lot. All existing improvements are to be demolished. 4 The locality is an Industrial Zone No. 4(b) under the Campbelltown Urban Area Local Environmental Plan 2002. Blaxland Road has a predominance of new bulky goods outlets along it. The road itself appears to be upgraded in recent years to four travelling lanes. It connects from the freeway link road in the north to areas in the south by-passing the town centre. The road is zoned No. 5(c) Special Uses Sub-arterial Road and has setback provisions for acquisition and road widening on the opposite side of the road to the subject site. 5 On the morning of the view taken by the Court the road had continuous traffic. To the north of the site is a roundabout at Rose Street. North of Rose Street there are service roads on both sides of Blaxland Road to service the new bulky goods outlets. South of Rose Street there are no service roads proposed, only the road widening of which no details were before me. The east side of Blaxland south of Rose Street in the vicinity of the subject site has all new bulky goods outlets built since the 2002 gazettal of the Local Environmental Plan. The west side of Blaxland south of Rose Street has mainly older industrial development, some being disused and most in a poor state of repair. It was said in evidence and submissions to be ready for re-development, as is the subject site. 6 Immediately adjoining the south boundary of the site is the driveway into the next industrial property. On the north boundary is an industrial building on the next property. To the rear is a large vacant industrial lot and beyond that zoned open space land. 7 The issues in the subdivision appeal No. 10314 are: 1 The proposed subdivision is unacceptable in that the proposed land use on the resulting allotments in terms of the number of bi-directional access points to and from the lots will have an adverse impact on the existing traffic flows in Blaxland Road. Particulars: (a) The applicant has lodged a separate application (in conjunction with this application and the subject of Land and Environment Court proceedings 10315/06) for the construction of two attached bulky retail and warehouse units to be constructed on each of the allotments proposed as part of the development application subject of these proceedings. (b) The access point into and out of each of the proposed allotment having regard to the proposed use as bulky retail and warehouse units is excessive and will have an adverse impact on the existing traffic flows in Blaxland Road. (c) Approval of the proposed subdivision would be premature in circumstances where the location of the vehicular access points (for the proposed subdivision) will depend on the approval of a separately proposed use of the site. 2. The proposed development is unacceptable in that it will set an undesirable precedent for similar inappropriate development and is therefore not in the public interest. 8 The proposal in appeal No. 10315 is for two industrial units with a common wall on the central common boundary. There is a driveway into each. Lot 100 has its on the north side, and Lot 101 has its driveway on the south side. Customer parking is at the front in both cases and although they abut, bollards prevent cars driving through. 9 Lot 100 has staff and customer parking through gates in the north-side driveway and a loading bay and outside storage at the rear. Lot 100 also has a showroom at the front that reduces the customer parking to one row at the front and necessitates some at the side. 10 Lot 101 has two rows of customer parking out the front and some staff parking and a loading bay at the rear through gates on its south-side driveway. 11 The issues in appeal No. 10315 are: 1 The proposed development is unacceptable in that the provision of two bi-directional vehicular access points to and from the site will have an adverse impact on traffic flows in Blaxland Road. Particulars: (a) The proposed development includes two bi-directional vehicular access points. (b) The proposed bi-directional vehicular access points will result in an unacceptable impact on the traffic flow in Blaxland Road which will cause a conflict with the existing traffic in Blaxland Road. (c) is deleted. 2 Issue 2 is deleted. 3 The proposed development is unacceptable in that there will be an adverse impact on the orderly functioning of the site in terms of the manoeuvring of delivery vehicles within the site, particularly in terms of access to and from car parking spaces which will be adversely affected by the manoeuvring of delivery vehicles. 4 Whether the proposed development is unacceptable in relation to the provision of on-site manoeuvring with respect to "layouts for angle parking spaces" and "parking module layouts" having regard to the requirements of Development Control Plan 52, Off Street Car Parking Policy . 5 Whether the proposed development is unacceptable in relation to the provision of on-site car parking having regard to the requirements of Schedule 1 of Development Control Plan 52 and cl 4 of the Campbelltown Industrial Development Policy 5.2.13 . 6 Whether the proposed outdoor storage area will have an unacceptable impact on the orderly functioning of the site and the streetscape of the locality. 7 Issue 7 is deleted. 8 Issue 8 is deleted. 9. The proposed development is unacceptable in that it will create an undesirable precedent for similar inappropriate development in the area, particularly having regard to the adverse impact on the traffic in Blaxland Road and is therefore not in the public interest. 12 The statutory basis for many of these issues lies in the Local Environmental Plan, particularly cl 42(4) which requires any consent authority to take into account several important aspects, including the location of access onto sites in this vicinity. 13 Appearing for the respondent was: · Mr A Seton, solicitor. 14 Appearing for the applicant was: · Mr R Creighton, agent, and · Mr Hovy, design manager for Vaughan Constructions. 15 The parties had agreed that a joint expert on planning and traffic should be appointed by the Court and had agreed on Mr G Shiels, town planner and traffic engineer. 16 Prior to the hearing the applicant had been given leave to file amended drawings as in Exhibit C. A further site plan had been prepared that was said to respond to the council's requirements. The respondent objected as Mr Shiels' report had been prepared on Exhibit C. 17 On enquiry from Mr Shiels he had received the updated site plan seven days ago and he had been able to assess it and give oral evidence. Mr Hovy explained and marked the changes between Exhibit C and Exhibit D, the latter becoming the subject site plan in the appeal. 18 Mr Shiels agreed with the respondent that in Exhibit D each site was still deficient one car space in its parking provision. He agreed the relocation of the disabled car space No. 10 in Lot 101 was a safer solution to minimise traffic and pedestrian conflict. He agreed re-positioning of bollards enabled the car spaces close to the bollards on both properties to reverse out to exit the parking spots. 19 On the potential for traffic conflict entry and leaving the site, and on the site, it was put to him that the proposed low traffic generation of the site would make the design acceptable. Mr Shiels said the traffic turnover on site depended on the types of tenants in the industrial units. They could be high turnover uses. One had to anticipate changes in tenancies over the years of the life of a building and allow for the worst case. On this basis he maintained his position that the design of the entry driveways to both allotments sought to provide for trucks up to a maximum size of an 8.8 m rigid truck. Coming to the site, a truck would have to commence its turn into the site from the centre lane of Blaxland Road and cross the kerbside lane and go onto the wrong side of the two-way entry drive. 20 This was a potential conflict point of trucks or cars in the act of exiting the site at the same time, and could cause either the entering truck to baulk in the traffic on Blaxland across two lanes of traffic, or force an on-site truck or car to reverse back in. 21 An on-site truck would probably have to reverse into the customer car park of Lot 101 to allow the entering truck to pass. If the on-site truck reversed into the side driveway there would be an impasse because the side driveway is only 3.5 m wide and the incoming truck could not get by. The manoeuvring on site that would ensue in that scenario was quite impractical. The customer car park is sized for car manoeuvring, not trucks, so a truck would need a multi-point turn to reverse into the customer car park from the driveway. That is another traffic conflict point and would delay the entering truck possibly with its rear still projecting onto Blaxland Road. 22 In accessing the rear loading bay on Lot 101 Mr Shiels said the Australian Standard requires 6.5 m minimum width of driveway. He said that using an assumed low traffic generation section of the site to justify the 3.5 m wide proposed driveway is unacceptable. The worst case scenario is the only way to consider the width of the driveway, especially since Mr Shiels' professional experience is that bulky goods outlets usually require customers to pick up from the loading bay so customers have to use the driveway too, not just delivery trucks and staff cars. 23 The respondent put that the staff cars at the rear are required to be accessible for both customers and staff under the council controls and they would not be accessible to customers. Mr Shiels said that might be a good idea, but his reading of the council control was that it did not say that. 24 I noted the swept path turning template shown on Exhibit D from the loading bay of Lot 101 for trucks actually clipped the corner of the building and went over the kerb into the south-side boundary landscaped garden. 25 Mr Shiels said the space for truck manoeuvring at the rear of Lot 101 was inadequate. He noted in Exhibit D that the applicant had shown a temporary parking spot for a truck that was about to exit where it could wait while an entering truck came down the 3.5 m wide driveway of Lot 101. He said the trucks had to reverse into the loading bay so on the plans the exiting truck shown in the temporary parking spot was actually in the position the entering truck had to drive to in order to reverse into the bay. 26 Also he noted the trucks shown on the template were 2 m wide whereas an 8.8 m rigid truck could be up to 2.4 m wide and therefore the turning templates showed smaller swept paths than would be required to avoid multi-point turns. 27 I noted that three staff car parks occupied the only other space that an entering truck might go to in order to let the exiting truck out but then the entering truck would have to manoeuvre multi-point turns to get into the position to reverse into the loading bay. This was, of course, assuming that the three staff car spaces were not occupied. If customer cars were trying to access the loading bays to pick up goods at the same time chaos could result in traffic terms. 28 The Convex mirror proposed to enable drivers to see other vehicles could not be very effective along a 44 m length of 3.5 m wide driveway. 29 Because of these considerations I could understand Mr Shiels' evidence that the design of Lot 101 was full of unacceptable traffic conflict points. 30 Mr Shiels said the design of Lot 100 was much better except the entry drive from Blaxland Road to it also required the entering truck or an exiting truck to go on to the wrong side of the driveway. However, in this case Lot 100 had a 6.8 m wide side driveway so an exiting truck could wait there and allow an entering truck to pass by and there would be no need for truck manoeuvring into the customer car park. The same would apply if a car was exiting at the time a truck wished to enter. That situation suitably dealt with the potential traffic conflict points in Mr Shiels' opinion. 31 Overall, however, Mr Shiels agreed given the continuous traffic on Blaxland Road and the obvious potential for increased traffic in the future (if only from the redevelopment of the west side of Blaxland Road), the traffic flows on Blaxland would be less affected and safer, if a design could provide either a single entry and exit to serve both lots, or an in-only entry to Lot 101 with a reciprocal right of way for both lots to an out-only exit on Lot 100. 32 Mr Shiels would not commit himself to say the proposed lots should be forced to one of the above options in view of the prior existence on the subject existing lot of two businesses, each with its own driveway. It seems to me in an area of rapid growth such as Campbelltown is, the principles of good planning practice and good traffic management would lead me to the conclusion that a better solution for Lot 101 at least is required. 33 Mr Shiels was also concerned that the property on the south side of Lot 101 had its driveway right on the common boundary so a new driveway close to it created another potential traffic conflict point. A central driveway that served Lots 100 and 101 would reduce that potential hazard. Mr Shiels agreed that in order to achieve a better planning outcome a re-design of both proposals is required. 34 I have concluded that the traffic and parking design faults of proposed Lot 101 alone are sufficient for refusal. The respondent pressed and I noted approvals of bulky goods outlets since 2002 at nearby sites, being Nos. 9, 22B, 24 and 24A Blaxland and Lots 33, 34 and 301 Blaxland Road and Rose Street had achieved much safer entries and exits. 35 Whilst council's controls should be updated to reflect those consents, the aims and objectives and the applicable clauses of the Local Environmental Plan provide sufficient power to refuse this proposal and to allow the applicant to lodge more appropriate solutions. 36 Therefore the orders of the Court are: 1 Appeal Nos. 10314 of 2006 and 10315 of 2006 are dismissed. 2 The exhibits are returned to the parties except Exhibits 1, 2, 3, 4, 15, A, B, C, D and E. ___________________ 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.