Land and Environment Court of New South Wales CITATION : Lenjade Pty Limited v Holroyd City Council [2009] NSWLEC 1002 APPLICANT Lenjade Pty Limited PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10818 of 2008 CORAM: Bly C KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Carwash; convenience store; cafe and service station; car parking; signage; hours of operation; desired future character. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Holroyd Local Environmental Plan 1991 Development Control Plan No. 45 - Merrylands Town Centre Precinct Holroyd Development Control Plan 2007 DATES OF HEARING: 20/11/200/-21/11/2008 DATE OF JUDGMENT: 7 January 2009 APPLICANT Mr A Seton, solicitor LEGAL REPRESENTATIVES: of Marsden's Law Group RESPONDENT Mr M Sahade, barrister JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 7 January 2009 10818 of 2008 Lenjade Pty Limited -v- Holroyd City Council JUDGMENT Introduction 1 This appeal under s 97 of the Environmental Planning and Assessment Act 1979 is against the Holroyd City Council's refusal of a development application for alterations and additions to an existing disused service station at 195 Pitt Street, Merrylands (Lots 60, 61 and 62 DP 7916) to provide a new Crystal Carwash ("the company") facility, convenience store, cafe, fuel dispensers, car parking and associated signage. The anticipated daily throughput for the carwash is between 70 and 150 vehicles. 2 The former service station buildings include an automotive workshop and an automatic car wash facility. The site has the benefit of an existing development consent (DA 2004/938) for the demolition of the service station and removal of the fuel storage tanks. The consent has been partially acted upon by the removal of the fuel storage tanks. 3 Situated on the southwest corner of Pitt Street and Neil Street in the commercial northern part of the Merrylands Town Centre, the almost square site has frontages of about 46 m and a total area of 2,090 sq m. Adjoining the site of the south is the Stockland Mall Shopping Centre that is currently undergoing significant alterations and additions. Opposite the site in Pitt Street are a number of automotive type sales and service and other commercial land uses. Adjoining the site to the west is a three-storey residential flat building and the remainder of Neil Street is predominantly developed with three-storey residential flat buildings and several detached dwelling houses. 4 The vacant site on the opposite side of Neil Street is the subject of an undetermined development application (DA 2007/815) for the construction of an eight-storey mixed use development. Council officers have reported upon this application and have recommended it for conditional approval. The planning controls 5 The site is included in the 3(a) General Business Zone pursuant to the Holroyd Local Environmental Plan 1991 and in this zone the proposal is permissible (as an inominate use) with development consent. Clause 9(3) of the LEP requires that consent shall not be granted unless the consent authority is of the opinion that the development would be consistent with the objectives of the zone. The objectives of the 3(a) zone are: (a) To provide and foster the economic well-being of existing and proposed businesses, (b) To permit non-commercial development within the zone where such development is compatible with the commercial character of the locality, (c) To encourage the development and expansion of business activities which will contribute to the economic growth of and employment opportunities within, the city of Holroyd, (d) To ensure that there is adequate provision for car parking facilities in the vicinity of commercial centres, and (e) To minimise conflict between pedestrian and vehicular movement systems within commercial areas. 6 Relevant to this appeal, mixed-use development (as defined) is, according to the Development Control Table for the 3(a) zone, prohibited. However, cl 36 by reference to Schedule 4 of the LEP effectively provides that mixed-use development is permissible with consent in the 3(a) zone. Clause 37A of the LEP deals with development within the Merrylands Town Centre and subclause (2) requires that relevantly applicable objectives in subclause (1) be considered. The relevant objectives are: (1)(a) The provision of an active town centre where walking is encouraged by requiring future development to activate the Street with quality design and provide for at grade pedestrian connectivity. (1)(e) The facilitation of mixed-use development (in addition to retail, commercial and other permitted development) within the Town Centre that comprises: (i) retail and commercial uses at grade, and (ii) residential or commercial development (or both) above that development. (1)(j) That the proposed development does not: (i) detract from the potential future economic development within the Town Centre or of land adjoining the Town Centre, or (ii) hinder the attainment of mixed-use development in the Town Centre. ( 1)(m ) The proposed redevelopment of the Town Centre provides opportunities for and attract the clustering of commercial offices and professional suites close to the train station. 7 Also applicable is the Development Control Plan No. 45 - Merrylands Town Centre Precinct and the Holroyd Development Control Plan 2007. 8 Part G of DCP 2007 contains site-specific controls for the Merrylands Town Centre - the commercial heart of the City of Holroyd -and includes the site in the Merrylands Town Centre Precinct. In Part 2, the DCP's approach to development in the retail locality within the town centre is to facilitate the growth of retail and commercial development with ancillary residential development and by enabling flexible mixed-use developments. Buildings are to address Street frontages and the public domain by maintaining a building edge. The two corner sites at the intersection of Neil and Pitt streets are particularly identified as Corner Sites, there being a need to: - Emphasise Pitt Street's entry to the town centre with seven storey corner buildings. - Facilitate well-designed mixed-use development within the Town Centre with visual emphasis on key corner sites 9 Part 3 contains vehicular access requirements and building envelope controls. The corner sites at Pitt and Neil streets are identified as R11. According to the DCP: In future development these blocks will be important to providing a sense of entry into the Merrylands town centre, but also a transition from residential areas to the core of the retail locality. Development along Street must create a built edge as well as provide continuous retail activity addressing the Street to maintain the character of the locality. 10 Associated diagrams show that proposed multi-storey built forms on both corners should exhibit symmetry and extend to 3m of the street alignments. 11 Part 4.5 of the DCP deals with interim development expecting: That development applications associated with existing uses will continue to be received. Acceptable design outcomes for the application for such minor development (e.g. alterations and additions) will be mostly merit assessed, however the (sic) must comply with the vision, locality statements and objectives, outlined in Part 2 of this DCP. Design solutions for development associated with existing uses must not restrict or prevent any site within the Merrylands town centre area from achieving their development potential, as prescribed in this DCP. 12 The associated objectives in Part 4.5.1 are: To enable ongoing development works in the town centre that are associated with existing uses without compromising the implementation of the longer term vision and objectives, as outlined in this DCP. To permit a reasonable amount of interim development while maintaining the viability of implementing this plan as an attractive future option. 13 The associated controls in Part 4.5.2 are: All minor development associated with existing buildings including but not limited to, alterations and additions, change of use, outdoor dining, subdivision and signage must not restrict or prohibit and adjoining land owner from developing their site in accordance with this DCP. Development is to ensure activation of the streetscape and high urban design outcomes Advertising and Council's decision 14 The application was advertised and no submissions were received during the notification period. 15 On 9 May 2008 (under delegated authority) the Council refused the application for reasons essentially as follows: - Non-compliance with various provisions of the LEP including the objectives of the 3(a) zone and the Merrylands Town Centre - Non-compliance with the Contributions Plan, - Insufficient information in relation to waste disposal and recycling, - Non-compliance with the Merrylands Town Centre DCP, 16 According to the statement of facts and contentions the Council contends that the proposed development should be refused because: - It is unacceptable in so far as insufficient on-site car parking spaces are provided. - It will have an unacceptable impact on traffic conditions in the Merrylands Town Centre, in that intersection-upgrading works that will be required to be conducted as a consequence of the development in accordance with the Summary Works Program within the Merrylands Town Centre Precinct Section 94 Contribution Plan 2006 cannot be facilitated as part of the proposal. - It is unacceptable in terms of built form and design and associated impact on the existing and desired future character of development in the area. - The operational hours of the service station/convenience store component of the development from 6 a.m. to midnight, seven days a week contrary to the "Controls" provided for the operation of a commercial use within Block 11 in cl 4.4.2 of Part G DCP 2007. - Its character and purpose serving as a motor vehicle orientated use, is not considered to support a future reduction on the reliance of private car travel and traffic in the Merrylands town centre. - The proposed advertising signage will have an unacceptable presentation to the streetscape and constitute a visual deterrent to passing motorists. - Insufficient information has been provided to enable a proper assessment of the development application in terms of acoustical impact on adjoining and surrounding properties and waste control during construction and operation. Expert evidence 17 On behalf of the Respondent Council expert evidence was provided by: - Mr A Shahi - traffic engineering - Mr P. Anzellotti - town planning 18 On behalf of the Applicant expert evidence was provided by: - Mr J. Coady - traffic engineering and town planning - Mr M George - town planning Insufficient information 19 The concerns as to insufficient information has been largely resolved by the provision of additional materials including an acoustic report and the acceptance of certain conditions of consent. Car parking 20 The tendered plans show that a total of five car parking spaces are to be provided, not including the areas where cars are positioned for washing or for fuelling. Three of these parking spaces are provided in a tandem formation at the rear of the site and are to be set aside for staff. Two of the spaces near the north-east corner of the site are available for visitors; one of these spaces is allocated as a disabled car space. 21 According to the statement of environmental effects the workforce for the car wash, cafe, convenience store and service station will vary between a minimum of 8 persons during quiet times on Tuesday to Thursday and 14 persons during the busiest weekend periods. The car wash accounts for the majority of the workforce ranging between 5 and 10 persons and in this regard the statement suggests that most of these are young students who live in the local area and tend not to drive a car to/from the site. Based on the company's experience the workforce parking demand generated by the proposed car wash facility is unlikely to exceed 2 – 3 parking spaces. 22 The Respondent contends that the proposed development is unacceptable because the provision of on-site car parking spaces is insufficient. In this regard reference is made to the objective in cl 5.1.4 of the DCP that provides that the required amount of on-site parking is provided on every site. Similarly objective (d) of the 3(a) zone requires the adequate provision of car parking facilities. 23 In the joint traffic engineering report Mr Shahi explained that based on the Roads and Traffic Authority's Guide to Traffic Generating Development ("the guidelines") at a rate of 5 spaces per 100 sq m - 4.2 car parking spaces are required for the convenience store This figure needs to be "rounded up" hence 5 car parking spaces are required. Mr Coady did not believe that this rate should be applied because it is based on RTA surveys (1990) of much larger service station convenience stores (273 sq m – 117 sq m compared to the proposal's 84 sq m) and where there was a much greater focus on the convenience store operation than the service station, by comparison with the proposal. 24 As for the cafe (84 sq m), Mr Shahi applied the guidelines requirement of 15 car parking spaces per 100 sq m of gross floor area, calculating that 13 car spaces are required. However, in acknowledging that because mostly car wash patrons would use the cafe, if the car wash area can accommodate 13 vehicles, parking requirements for customers of the cafe will be satisfied. Similarly, Mr Coady did not believe that the guidelines should be strictly applied because almost all of the customers of the cafe will be car wash customers. In this context he pointed out that the areas allocated for the various drop-off, vacuuming, car wash, drying, polishing and pickup areas can accommodate about 30 vehicles. 25 Plainly there is no need to provide parking spaces for the car wash customers but Mr Shahi was concerned to ensure that a sufficient number of car spaces for the staff of the car wash and the cafe are provided. In this regard he referred to a survey (by Corner Counters for Traffic Solutions Pty Ltd) of a similar car wash cafe at Mascot that he says reveals that a parking rate of one space per two employees would be appropriate, taking also into account a 50% reduction due to close proximity to public transport. 26 In response, Mr Coady reviewed the survey and concluded that it was not capable of being interpreted to indicate a workforce-parking requirement of one parking space per employee. He also referred to a letter from Traffic Solutions (in response to questions asked by Mr Coady) that advises that the survey's purpose was to record information in relation to peak traffic generation, peak parking demand and number of people in the cafe and on the site. The surveys were not undertaken to ascertain staff parking requirements hence the results do not differentiate between staff members and patrons. An examination of the Corner Counters survey data confirms this to be the case and I thus agree that it should not be relied on. 27 Instead Mr Coady refers to three travel characteristics surveys that were carried out by the Applicant, at his request, of similar Crystal Carwash cafes at Chatswood, Mosman and Rose Bay. These surveys reveal the number of car drivers (carwash employees) at these premises as being generally no more than one employee for varying workforces of up to 40 persons. On this basis he contends that the provision of two parking spaces for the carwash workforce should be sufficient. 28 The usefulness of the three Crystal Carwash surveys was questioned for different reasons. Firstly, only one of the three surveys, that being the facility at Rose Bay, involves a car wash together with a convenience store and service station and hence is comparable with the proposal. Second, the surveys were conducted by the Applicant and have not been the subject of independent verification. Whilst Mr Coady was comfortable with the results of these surveys Mr Shahi was not. 29 I too am uncomfortable with the reliability and results of these surveys. I am particularly surprised that for example on 12 occasions when there were between 20 and 40 carwash workers on the respective premises only one of these workers travelled by car, notwithstanding contentions that these casual workers are likely to be students without cars. It seems to me that in the absence of a relevantly applicable standard for a car wash facility such as this, the only way that a reasonable car-parking requirement can be determined would be to conduct independent surveys of a range of similar facilities, where not all of the surveyed facilities are part of the same chain. 30 What I am not surprised about is that there can be up to 40 car wash workers at peak times for this type of car wash facility. In this context I note that there was no explanation as to how this relates to the 5 - 10 car wash personnel referred to in the statement of environmental effects. 31 In support of the proposed car parking arrangement Mr Coady also refers to Part 2.10.1 of DCP 45 that contains the objective of decreasing car usage within the town centre by reducing on-site vehicular parking requirements for new developments and the encouragement of the use of public transport. Also relevant in this context is cl 37A (1) (b) of the LEP that seeks to promote the use of public transport and cycling together with the reduction of reliance on private car travel. However I am not satisfied that these principles should, in all of the circumstances, be utilised to set aside the reasonable parking demands that would be likely to be generated by this development. 32 All things considered, I have not been persuaded by the Applicant's evidence that the five car parking spaces would be sufficient to meet reasonable staff and visitor parking needs for the car wash, convenience store and service station, in the light of the requirements of the planning controls that there be an appropriate provision of on-site parking. Also, the three staff parking spaces will have relatively poor usability, taking into account their location at the rear of the site and their tandem formation. The two visitor parking spaces may well be sufficient for their purpose although I note that because the use of one of these spaces is limited to disabled drivers this means that for most drivers, only one visitor car space will be available. Desired future character 33 The issue of desired future character involves the unacceptability of the proposal in terms of built form and design and associated impact on the existing and desired future character of development in the area. According to Mr Anzellotti the proposal would be a rejection of the planning initiative the Council envisages for the Merrylands Town Centre being contrary to the vision and objectives of the Merrylands Town Centre Precinct DCP and the objectives in cl 37 A of the LEP. 34 As quoted above these objectives provide for an active, pedestrianised town centre containing a range of commercial and other uses including mixed-use development. Any such development should not detract from future economic development. Similarly the approach of DCP 2007 is to facilitate the growth of retail and commercial development with ancillary residential development and by enabling flexible mixed-use developments where buildings address street frontages and maintain a building edge. 35 More particularly, the two corner sites at the intersection of Neil and Pitt streets are identified as R11 - Corner Sites that should be developed with well-designed multi-storey mixed-use development that emphasises the transition from residential areas and Pitt Street's entry to the town Centre. Despite this, applications associated with existing uses are anticipated. These will be dealt with on their merits, taking into account the requirements of the DCP and subject to any such development not restricting or preventing any site or an adjoining site from achieving its development potential. 36 According to Mr Anzellotti the proposal fails to respond to the DCP and the significance of the site essentially because he does not consider that the buildings and signage are an appropriate representation for this visually significant site at the entry point to the Merrylands Town Centre. Also, it will not reactivate the streetscape and will be an inappropriate and significant under-development of the site, compared to the DCP's redevelopment strategy. While recognizing the existing consent he nevertheless argued that the retention and reuse of the existing building would comprise a major refurbishment and significant intensification. It would be shortsighted and would make it implausible for the redevelopment of the site for mixed-use development as desired by the DCP because of the additional site works (demolition and remediation) that would be required if this is to eventually occur. 37 Mr George disagreed with Mr Anzellotti explaining that they service station and car wash could be re-established on the site in accordance with the current consents, without the need for a further development application. Hence in essence the proposal involves the modification and upgrading of a development (ie the service station and car wash) that could take place without the need for any further consent. This is effectively the continuation of a long established land use that provides a service to the area and will not inhibit the redevelopment of other land. 38 He also explained that the proposal does not preclude be anticipated mixed-use development over time, when economic circumstances allow. This is because the proposed development does not represent significant investment in buildings and infrastructure that might otherwise preclude or delay change. Whilst not questioning Council's right to present a vision for the future in its planning controls, such controls are never static and it is not its function to determine specific development outcomes for the site that it does not own. What is here proposed is not prohibited and its refusal would not contribute to the attainment of any of the Council's planning goals. 39 In my opinion the proposed development of this site would be very much the same as the previous use and the existing development consent that can be reactivated. There can also be no dispute that the proposal is not responsive to the provisions of the DCP that anticipate the development of this site with a multi-storey mixed-use building at some time in the future. However, the DCP anticipates that existing uses can be approved as interim development and in this regard I agree with Mr George that the proposal falls within this category. Whilst it does not comply with the mixed-use building vision of the DCP and would, to a degree, restrict (but not prevent) the site from achieving its potential I accept that, in these circumstances, these matters are not determinative of the application. 40 I thus agree with Mr George that this development represents a reasonable form of interim development that will not overdevelop the site in the light of the form of development anticipated by the planning controls and will thus not seriously affect its viability. Therefore, the application should not be refused on this basis. Motor vehicle usage 41 The motor vehicle usage issue involves the proposed development's character and purpose, serving as a motor vehicle orientated use that does not support the future reduction on the reliance of private car travel and traffic in the Merrylands town centre. 42 In this regard, according to Mr Anzellotti the proposal fails to respond to the objective in Part 2.10.1 of DCP 45 that seeks to achieve reduced car usage within the town centre and the encouragement of the use of public transport. Also relevant here is cl 37A(1)(b) of the LEP that seeks to promote the use of public transport and cycling together with the reduction of reliance on private car travel. The location of a vehicle-orientated service that will attract more vehicles into the town centre, would be inappropriate and out of character, considering the residential nature of Neil Street and taking into account the likely queuing of vehicles including across footpaths and associated traffic congestion. 43 Mr George said that the proposed use would not occur unless the services that it will provide are in demand in this location adjacent to the town centre. It is specious to argue that the use will promote car use rather than provide a service for existing traffic. 44 Mr Shahi pointed out that projected development within the Town Centre including the Neil Street Precinct is anticipated to generate significant additional traffic. In this regard both he and Mr Coady agreed that the location of the site is good for the proposed development and that the additional traffic generated by the proposed development would be minimal. More particularly Mr Coady explained that this is because the proposal is to replace the similar previous development on the site. Also the service station and car wash will attract most of their patronage from existing traffic flows on roads presently serving the site. 45 Plainly, the proposal will have a different character to the nearby residential development and the likely future character of this site and the corner site opposite as anticipated by the DCP. Conversely, it will not be so out of character with other nearby automotive type uses. Moreover whilst there is residential development in Neil Street the site is zoned for commercial development wherein the proposal is permissible and mixed-use development is encouraged. In these circumstances I do not accept that the proposal's traffic attracting character makes it unacceptable. Also, taking into account that the proposal will predominantly service existing traffic and will generate minimal additional traffic flows, I am satisfied that this is not a reason to refuse the application. Advertising signage 46 The issue of advertising signage comprises concerns that the proposed signage will have an unacceptable presentation to the streetscape and constitute a visual deterrent to passing motorists. There are to be 21 different signs of differing sizes illumination and configurations including parapet, awning, wall and pylon signs that relate variously to the car wash, cafe, service station and the convenience store. The pylon signs are to be 6 m x 2.4 m, the parapet signs are to be 6.8 m - 7.2 m x 1.3 m - 1.57 m. 47 Part 5.3.8 of the DCP deals with signage and acknowledges that signs play a significant part in indicating retail and commercial uses and in creating a lively retail strip. Signage is to be integrated into the design of new buildings and should compliment the built form and character of the Town Centre. It should not dominate nor detract from existing architecture. There are no relevantly applicable controls dealing with the number or size of signs. 48 According to Mr Anzellotti the scale, number and nature of signage provided would result in visual clutter that would not be sympathetic to the surrounding and adjoining development. The signage together with the proposed corporate colour scheme represents an attempt to drown the intersection and its surrounds with the Crystal Carwash brand name that he describes as the "big bang theory of large signage". As a consequence the associated objectives of the DCP have not been properly taken into account. 49 In response, Mr George said that the proposed signage is normal and expected associated with the intended uses that are permissible in the zone. Hence the signage as proposed would not be contrary to the DCP. Taking into account the land use history of the site the signage would not represent any sense of visual surprise or create any material amenity impacts. 50 To an extent the signage question is a subjective consideration. In this regard I agree with Mr Anzellotti that the scale, number and nature of the signage together with the corporate colour schemes would be excessive and would inappropriately dominate this important corner site. Whilst I have concluded that the development is satisfactory despite having a character different to that anticipated by the DCP, this does not excuse it from the need to be appropriately sensitive to this emerging future character. As is required by part 4.5 of the DCP high urban design outcomes are required. In my opinion a more careful approach to the number, size, shape and dominance of signs and the manner in which they are integrated into the buildings is necessary. Hours of operation 51 The main concern regarding operational hours of the proposed development, particularly the service station and convenience store mainly involves possible impacts on nearby residential development in Neil Street, including the neighbouring three-storey residential flat building. 52 The applicable controls in part 4.4.2 of the DCP for commercial uses adjacent to residential zones set hours of operation of 6 am to 9 pm Monday-Saturday and 7 am to 8 pm on Sunday. The proposed operating hours of 6 am to midnight, seven days a week significantly exceed this requirement. 53 Mr Anzellotti was concerned that the surrounding residents would be adversely affected by noise from activities associated with the service station and convenience store generally between 9 pm and midnight and to protect these residents' amenity the hours of operation set by the DCP should be applied. He was also concerned that the proposed extended hours of operation might result in antisocial behaviour. 54 I believe Mr Anzellotti to be generally correct and giving appropriate weight to the requirements of the DCP would have imposed its requirements. Conclusions 55 As referred to above cl 9(3) of the LEP effectively requires consistency with the objectives of the 3(a) zone including the economic well-being of businesses, economic growth and employment opportunities, the adequate provision for car parking and the minimisation of conflict between pedestrian and vehicular movement. Similarly, cl 37A requires consideration of pedestrian needs, the facilitation of mixed-use development and economic development. 56 In this regard, I generally agree with Mr George's conclusions in the Statement of Environmental Effects that there is no inconsistency between the proposal and the relevant objectives. In particular the effective continuation of a long-standing land use should not preclude future mixed-use development from occurring. 57 However, as a result of an insufficiency of on-site car parking and an inappropriate response to urban design considerations mainly involving signage I have decided that the proposal in its present form should not be approved. Orders 1. The appeal is dismissed. 2. The development application for alterations and additions to an existing disused service station at 195 Pitt Street, Merrylands (Lots 60, 61 and 62 DP 7916) to provide a new car wash facility, convenience store, cafe, fuel dispensers, car parking and associated signage is determined by refusal. 3. Exhibits F and K are retained ___________________ Bly C Commissioner of the Court ajl 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.