Land and Environment Court New South Wales Medium Neutral Citation: FKP Funds Management Pty Limited v Mosman Council [2011] NSWLEC 1000 Hearing dates: 24, 25, 26 November 2010 Decision date: 14 January 2011 Jurisdiction: Class 1 Before: Hussey C Decision: 1.The appeal is dismissed. 2.Development consent for alterations and the refurbishment of the existing retail centre at 710 Military Road, Mosman is refused. 3.The exhibits be returned except for 1, 4, 7, A and D. Catchwords: Development Application; refurbishment of retail centre; traffic impacts; access; noise; public interest Legislation Cited: Deemed SEPP - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; State Environmental Planning Policy No. 55 - Remediation of Land; State Environmental Planning Policy (Infrastructure) 2007; Mosman Local Environmental Plan 1988; Draft Mosman Local Environmental Plan 2008; Mosman Business Centres Development Control Plan; Mosman Transport Development Control Plan; Notifications Development Control Plan; Mosman Section 94 Contributions Plan - Public Car Parking in the Spit Junction Town Centre; Public Domain Improvement Program for Mosman and Spit Junctions; Sydney Harbour Foreshores and Waterways Area Development Control Plan; Austroads Standards Guide to Traffic Engineering Practice and AS/NZS 2890.1 :2004 Cases Cited: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 Category: Principal judgment Parties: FKP Funds Management Pty Limited (Applicant) Mosman Council (Respondent) Representation: Mr P Tomasetti SC (Applicant) Mr M Staunton (Respondent) Holman Webb Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10399/2010 Background 1This appeal was lodged against council's refusal of a development application for the refurbishment of an existing retail centre, including alterations and additions for a supermarket (notionally Coles), ancillary administrative offices and roof top plant rooms at 710 Military Road, Mosman. 2The issues raised by council are summarised as follows: ·Traffic impacts and pedestrian safety. ·Adequacy of parking. ·Acoustic impacts. ·Adequacy of waste disposal arrangements. ·Public interest matters raised by the objectors. The proposal 3The proposed alterations were described as: Basement level (a) Infill slab adjoining the existing lift to accommodate 1 new car space; (b) Install new lifts in the south eastern and south western corners of the basement with access to the proposed supermarket with the associated loss of 4 car parking spaces; (c) Reconfigure stairwell adjacent to the lift for 1 new car parking space ; (d) Provide an infill slab adjoining the existing lift to accommodate 2 car parking spaces; (e) The proposed changes to the basement level will result in the loss of 6 existing car parking spaces. Ground Floor (a) Remove existing internal shop partitioning and dedicate the floor area to a proposed supermarket retail area (approximately 2350sqm) with associated storage, waste, and switch rooms (b) Minor increase in the size and configuration of the existing l oading dock fronting Hornsell Lane; (c) Install a new freight hoist in the storage area to transport goods from ground floor, level one , and level two; (d) Infill slabs to the ex i sting ground floor voids ; (e) Changes to column locations and numbers on the ground floor to accommodate the new infill slab ; (f) Installation of 2 escalators providing access to and from the first floor; (g) Replacement of the existing glazing with new glazing to the street facing shop fronts ; (h) Two lifts on the eastern and western sides of the floor opening onto the proposed supermarket; and (i) New glazed sliding door entry to the supermarket floor fronting Military Road . First Floor (a) Remove existing internal partitioning; (b) Minor increase in the existing loading dock size, including the provision of a scissor lift and concrete dock area ; (c) Provide a new void to accommodate new dual escalators from the ground floor; (d) Infill slab with associated column changes to the existing void; (e) Provision for the connecting shaft for the goods hoist on the ground floor; (f) Provide a lift overrun for the 2 p r oposed lifts from the basement to the ground floor . Second floor (a) Administration areas with the capacity for a goods lift to access the second level ; (b) New freight lift to lower levels; (c) Deletion of glazed voids ; (d) Incorporation of mechanical ducting; (e) New enclosed plant room for air conditioning and condenser units; and (f) Replace the remainder of the roof material with new decking. 4The proposed hours of operation by the applicant are 7.00am to 10.00pm Monday to Saturday and 8.00am to 10.00pm Sundays and public holidays. The car park hours to be 7.00am to 10.00pm. Some 60 staff are proposed to operate the supermarket. The site 5The subject site consists of 3 parcels of land, namely lots 112, 113, and 114 in DP 52836 . It is irregular in shape with an area of 1,545sqm and fronts the northern side of Military Road, which is a classified road . The site also has a rear frontage to Horsnell Lane . The frontage to Military Road is 37 . 6m and 38m to Horsnell Lane . The eastern and western boundaries are 43.9m and 37 . 9m respectively . 6The subject site presently contains a 3 storey mixed use retail/commercial building configured as follows: (a) Basement car parking for 98 cars, (b) Ground floor - 10 retail tenancies, (c) Second floor - 6 commercial tenancies. 7The building is currently partially vacant . Immediately adjoining to the east is the Mosman Fire Station (No . 730 Military Road). Adjoining to the west is a 2 storey masonry bu i lding , which is presently used for a shop (No . 706 Military Road). Adjoining to the north beyond Horsnell Lane are 2 multi storey multiple dwellings. These buildings are known as No . 11-17 and 5-9 Clifford Street respectively . No . 11-17 Clifford Street has a vehicular driveway that enters Horsnell Lane, immediately opposite the subject site . Planning controls 8The land is subject to a raft of controls that include: ( a ) Deemed SEPP - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (b) State Environmental Planning Policy No. 55 - Remediation of Land ( c ) State Environmenta l Planning Policy (Infrastructure ) 2007. 9The primary local control is the Mosman Local Environmental Plan 1998 . Under this MLEP the site is zoned 3(a1) Spit Junction Town Centre and the proposal is permissible. The following objectives of the plan were identified by council as relevant: (j) to limit potential for additional traffic on the road system and to reduce car dependence through development that supports public transport, cycling and walking,... (k) to minimise the level of, with the aim of eliminating, pollution of all types, including air, land, water, visual and noise pollution, which may result from development allowed by this plan. 10Clause 16 contains the following relevant zone objectives. ·Allow a range of retail, business and entertainment opportunities which meet the needs and expectations of the local community and enhance the viability and vitality of the centre. ·Improve pedestrian and functional links between Bridgepoint and businesses on Spit and Military Roads. ·Encourage residential development as part of the use of sites at Spit Junction... 11The Draft Mosman Local Environmental Plan 2008 (Draft MLEP 2008 ) is also of some relevance. Under this control the site is within the Zone B2 Local Centre and the proposal would remain permissible. There are similar objectives to the MLEP for this zone, but also including: ·To maximise public transport patronage and encourage walking and cycling ... 12The detailed controls are contained within the Mosman Business Centres Development Control Plan ( MBDCP ), which includes the following objectives: (a) an enhanced image for Mosman, (b) an optimised potential for viable retail and commercial activities, (c) appropriate accessibility and adaptability, (d) a high level of amenity and distinctive character for the pedestrian environment,.. (f) an increased diversity of available housing, (g) a high standard of residential and commercial amenity, (h) best practice environmental performance and management. 13According to the MBCDCP, this plan sets out guidelines to achieve the desired future character, which is to facilitate "the promotion of the heritage and natural streetscapes within the Mosman business centre, and to enhance pedestrian activity to create vibrant and attractive retail centres". The DFC guidelines show an extended pedestrian network in the vicinity of the subject site as per the following diagram: Exten d the netwo rk of shop front promenades , laneways and rear streets to improve pedestria n accessibility, safety and amenity. This includes the provision of through-site arcades and shopfronts on Hordern Lane. 14The guidelines for the arterial business centres specify that the objectives are " to have accessible businesses and services " and " to have vehicular access to properties that are safe for both pedestrians and other vehicles". Section 6.2 contains the guidelines for accessibility whereby E14 prescribes parking areas are to provide a minimum 2% spaces for people with a disability in accordance with AS 2890.1. 15In terms of amenity guidelines, noise emissions from uses are to comply with the Noise Control Manual 1994 and Environmental Criteria for Road Traffic Noise 1999 (NSW Environment Protection Authority). 16Other supporting controls are contained within the following: (a ) Mosman Transport Development Control Plan (MTDCP), wherein the stated objectives are: (a) to ensure that adequate provision is made for the parking and maneuvering of motor vehicles and bicycles (b) facilities are designed having regard to accessibility for traffic, cyclists, pedestrians and mobility impaired persons; (c) to ensure that development is undertaken having regard to safety for traffic, cyclists, pedestrians and mobility impaired persons; (d) to ensure that adequate provision is made for the loading and unloading of vehicles; (e) to ensure that facilities are designed to maintain and enhance the environmental qualities of the area; (f) to encourage the use of public transport, walking and cycling . 17This DCP contains the controls for parking and supplementary accessibility requirements and the following provisions: 2.6 Loading/Unloading Facilities Loading and unloading facilities or service vehicle parking must be provided on site for all developments that are likely to generate a need for such facilities. The applicant must demonstrate that the type of facility to be provided will be appropriate for the landuse having regard to the following factors: ·type of landuse; ·frequency of deliveries and collections; ·size and bulk of goods; ·size of trucks; and ·availability of on street loading zones Note - new developments should not have to rely on the provision of on-street loading zones . 18The other identified controls are: ( a ) Notifications Development Control Plan (b) Mosman Section 94 Contributions Plan - Public Car Park i ng in the Spit Junction Town Centre (c) Public Doma i n Improvement Program for Mosman and Spit Junct i ons (d) Sydney Harbour Foreshores and Waterways Area Development Control Plan (e) Austroads Standards Guide to Traffic Engineering Practice and AS/NZS 2890 . 1 :2004 The evidence 19Detailed evidence was presented by: ·Mr C McLaren; Traffic consultant for council, ·Mr G Pindar; Traffic consultant for the applicant. ·Mr N Koikas; Acoustic consultant for council. ·Dr R Tonin; Acoustic consultant for the applicant. ·Mr J Saul; Council's acting manager for environmental services. 20Reference was also made to the Transport Impact Statement prepared by ARUP in September 2009. 21In addition to this, a considerable number of objections, which are generally consistent with the issues raised by council, were lodged against the proposal and have been considered. Traffic 22The main issue concerns traffic impacts arising as a result of the introduction of the supermarket. Insofar as there is a raft of environmental traffic controls requiring consideration, the Transport DCP applies and its overall aim is to achieve a 'sustainable environment' outcome for the area, which encourages alternate transport modes in the form of public transport, walking and cycling . For the assessment of the disparate traffic evidence, I have initially considered the expert opinions within the aforementioned planning context. 23I note the primary submissions for council are that this site is not suitable for the proposed development because it represents a significant intensification of use from the existing commercial development on the site, particularly increased traffic generation. Against this, the submissions for the applicant are that the incremental changes are such that merit approval and the development can be satisfactorily managed by the imposition of appropriate conditions of consent, including requiring compliance with the provisions of a 'Management Plan'. 24The critical components concern the road network performance, traffic generation, vehicle types and pedestrian safety and residential amenity. The traffic experts jointly assessed these matters and agree that the crucial traffic issue concerns the operation of the Military Road and Field Way intersection, as shown in Attachment AA. The operation of this intersection has been assessed as having the lowest level of performance, which is designated as 'Level of Service' (LOS) "F" and described as being "over capacity". 25The critical movement is the right turn from Field Way into Military Road. In this regard, the experts agree that this issue could be addressed by the introduction of a permanent No Right Turn restriction. The other Left Turn movements can be accommodated. However there is no approval for the No Right Turn movement and the experts do not agree on the resultant traffic intensity at the intersection. 26Insofar as Mr Pindar undertook modelling, this was on the basis of the SIDRA traffic model, which assumes free flow conditions and did not include a traffic flow/gap/queuing assessment. Accordingly, he says that there will be no unacceptable impacts at this existing, poorly performing intersection arising from the development. 27Mr McClaren disagrees with this approach because he considers it more realistic to take into account the delay and reduced capacity induced by vehicle queuing/ stopped traffic/ forced flow (with little or no gaps) in Military Road traffic flows. These factors act so as to reduce the absorption capacity of the main road to accept vehicles entering from a right turn in Field Way. 28Mr Pindar subsequently arranged for a 'gap acceptance' survey to be undertaken over a 1 - hour period on a typically busy Thursday evening so that the results could be inputted into the SIDRA model. But no queues were detected on that occasion. 29Mr McClaren does not accept the adequacy of this survey and considers that reasonable surveys should extend over a 3 - 4 hour period on Thursday evenings and again on Saturdays from 11am to 2pm. This information could then be used to more realistically assess traffic impacts at the intersection. 30Notwithstanding this, Mr Pindar says that the original ARUP traffic report included surveys between 3pm to 7pm on a Thursday and 10am to 1pm on a Saturday and his additional survey was to test 'default gaps'. He maintains his conclusion that the existing intersection will result in a similar level of service to that current existing, albeit with reduced gaps that rely on other driver courtesy to allow 'right turn' vehicle entry into Military Road. 31In light of the fundamental differences on this basic issue, the following response from Sydney Regional Development Advisory Committee (SRDAC) is of some relevance, based on the referred development application: 1 ... 2 There is currently traffic congestion on Military Road and Spit Road during the peak periods which may delay delivery vehicles as they try to enter and exit the site. In order to meet deadlines delivery vehicles may force their way into traffic possibly blocking Military Road and/or Spit Road. To ensure this situation does not arise, it is recommended that loading be restricted to outside peak traffic and shopping times of AM Peak, PM Peak and Weekends. 3. Concerns are raised with regard to the geometry of Military Road, Close Street, Field Lane, Civic Lane and Horsnell Lane not being adequate to accommodate the swept path of a large delivery vehicle turning into and out of the streets let alone while another vehicle is simultaneously turning or waiting to turn in or out. This lack of manoeuvring space may result in unsafe driving practices. Swept path analysis showing the largest vehicle turning into and out of these streets while another vehicle is waiting or turning in and out shall be provided to the satisfaction of Council. 4. Due to traffic congestion on Milita r y and Sp i t Road, traffic generated by the proposed development would likely use local streets as indicated in the traffic report. Council should be satisfied that the increase traffic on local streets is acceptable. Should any traffic calming measures or treatments be proposed on local streets, the treatments shall not increase traffic on Spit Road and Military Road without further analysis and consultation with the RTA ... 5 ... 6 The traffic report used SIDRA Intersection to model the un-signalised intersection of Military Road/ Manda l ong Road/Field Lane. In this instance, SIDRA Intersection is not a suitable modelling tool considering t he obscure layout of the intersection and the inability of S i dra to take into account the impact of the signalised Military Road/Spit Road intersection which has queues tha t e x tend past th i s location . Should Council be concerned about the impact of development traffic on the performance of this intersection , an alternate traffic modelling tool such as micro-simulat i on should be considered to further assess this intersection . Any further modelling shall be to the satisfaction of Council.. . 32Having considered the competing evidence it is apparent to me that that there is a high degree of congestion along this section of Military Road, particularly in proximity to the Field Way intersection. The traffic flow is affected by the traffic lights at Spit Road and the pedestrian crossing adjacent to the site, which cause some interference with the free flow of traffic. This is consistent with Mr McClaren's evidence, the objectors and the submission by the Fire Brigade that it regularly experiences difficulties entering Military Road from its premises. The agreed low-level LOS - "F" also confirms this. 33Considering these circumstances and taking into account the SRDAC comments, its seems to me that the public interest would be well served by undertaking the suggested 'micro-simulation' modelling, to more realistically assess traffic impacts in the vicinity of this intersection and associated local streets. The current evidence indicates to me that the proposal is likely to negatively impact on the operation of this poorly performing intersection; further reducing it's efficiency. 34I therefore do not consider the applicant's approach to simply impose a condition of consent for a " No Right Turn " at this intersection is appropriate at this stage and furthermore, the power of this Court to impose such condition is uncertain. Taking into account that the Court was informed a typical, desirable level of service is "C", it seems that appropriate traffic modelling is warranted to assess the relative benefits and outcomes before any granting development consent, particularly in the absence of a No Right Turn at the intersection. Horsnell Lane Impacts 35Horsnell Lane is one of the associated local streets that will be impacted due to likely increased traffic intensity into and out of the basement car park. Because of its constrained width, the council and residents are concerned that the increased traffic will cause traffic inconvenience, adverse noise amenity and safety issues for both motorists, residents and pedestrians, including school children, who regularly use it. 36Insofar as both pedestrians and vehicles currently use this lane, the traffic experts agree that it would be desirable to discourage pedestrian movements along it due to its relatively narrow carriageway width of approximately 6.4m, which restricts the opportunity to provide separate footpaths. However this proposition is inconsistent with the development controls that show this as part of the future pedestrian network. 37In order to quantify this situation, Mr McClaren undertook limited pedestrian surveys between 6.30 and 9.30am on 25 October, which showed a peak volume of 28 ped/hr between 8am and 9am of which 8 were students. He notes however that at this time, some Year 11 and 12 students were not included. 38Accordingly, Mr McClaren considers that the shared use of the lane by cars and pedestrians would normally require consideration of a 10 km/h shared zone, which has a limit of 30 veh/h. Against this, Mr Pindar says that the volume of pedestrians is very moderate and reflects the current (underutilized) nature of Horsnell Lane. He considers that the pedestrian volumes would reduce with higher traffic volumes associated with either the current use or proposed supermarket. Furthermore, he does not think that the suggested limit of 30 veh/h reflects the existing character of this service lane, which is already permitted to carry 102 veh/h under current approvals. 39My assessment of this component is that whilst the survey indicated a relatively low pedestrian use of the laneway, nevertheless the future planning is that this is to be an integral link in the business centre pedestrian network. Then taking into consideration the existing shopping centres vehicle usage potential under its approval i.e. 88 - 100vph, I do not consider the incremental change by at least doubling the traffic from the proposed by the development is consistent with the direction of the development controls. Furthermore, I consider the mixed pedestrian and vehicle, including increased truck usage of the lane would result in a poor environmental outcome, which is a negative aspect of the proposal. 40Another contentious component concerns the peak hour traffic generation for the proposed type of development. This particularly influences the resultant amenity impacts at the adjacent residences. Insofar as the experts agreed that the appropriate way to assess this issue was to survey comparable developments, they nevertheless substantially disagreed on the appropriate traffic generation rate to apply. 41The traffic experts surveyed similar supermarket parking at Grosvenor Street Neutral Bay, Rangers Road and Rose Bay and reviewed this in light of the original ARUP findings. Accordingly, Mr Pindar's survey result at Grosvenor Street equated to 1.85 trips/space/hr. Insofar as he considered this the most comparable site, he ultimately decided that a conservative value would be to adopt the 2.02 trips/space/hr rate found at Rangers Road and increase it by 5% to allow for other variable factors. Consequently his resultant rate is 2.12 trips/space/hr, which equates to 184 veh/hr. 42Mr McClaren's surveys indicated results of 2.56/2.80 trips/space/hr on Thursdays and 2.58 trips/space/hr on Saturdays. He then noted that a number of factors influence traffic behaviour, including seasonal conditions, which could lead to a variation of up to 28%. I note Mr Pindar agreed that seasonal variation adjustment is appropriate. Considering that the original surveys were undertaken in the low season, Mr McClaren concluded that an appropriate rate would be 3.0 trips/space/hr. 43Mr McClaren also observed that there was a degree of permanent parking that affected the trip rate with some 29 vehicles being classified as "permanent" i.e. > 3hrs at Grosvenor Street . He also thought that with the clarification during the hearing that it was now proposed to have 60 staff, there would be some additional trip movements as a result of staff change - overs. 44The summary position of the respective parties in respect of the available 87 spaces is: ·RTA; 3.69 trips/space/hr, resulting in 321 trips/hr. ·ARUP; 3.0 trips/space/hr, resulting in 261 trips/hr. ·CMcC; 2.94 trips/space/hr, resulting in 256 trips/hr. ·GPind; 2.12 trips/space/hr, resulting in 184 trips/hr. 45By comparison with the existing 88 trips/hr under the current consent, the net increases are calculated as follows: ·RTA; 233 trips/hr. ·ARUP; 173 trips/hr. ·CMcC; 168 trips/hr. ·GPind; 96 trips/hr. 46In addition to these trips, service vehicles and delivery trucks are anticipated to make further trips, which comprises some 7 x 7.8 - 8m delivery trucks and 10 smaller trucks i.e. 17 deliveries plus waste collection. This results in some (6 - 8) plus more deliveries/day. 47My assessment of this disparate evidence is that due consideration should be given to the constrained context of the proposed entry/exit to the revised supermarket via Horsnell Lane and a cautious approach adopted. On this basis, and taking into account the subjective nature of the traffic forecasting, I consider an appropriate trip rate would be in the order as expressed by Mr McClaren i.e. 3 trips/space/hr, which is consistent with the ARUP findings, rather than the lower 2.12 figure opined by Mr Pindar. Under these circumstances, the application of this rate to the "short-term" parking spaces would be in the order of 230 trips/hr. I note this would increase with the service and delivery vehicles, longer term parkers movements and staff turnovers. Environmental road capacity 48This issue relates to whether the predicted traffic movements will exceed acceptable environmental capacity criterion, as stated in Amcord and RTA guidelines, which both experts referenced. The factors that influence this were identified as follows: i.Function of Horsnell Lane. ii.Carriageway width and pedestrian footpath provision (pedestrian volumes). iii.Proximity of dwelling facades. iv.Proportion of truck traffic (heavy Rigid Vehicles). v.Traffic speed. vi.Pedestrian safety. 49Accordingly, Mr McClaren relies on the provisions of Table 1 in Amcord, which lists a number of different street categories and their relative maximum traffic volumes (vpd). He considers that Horsnell Lane has the characteristics of an Access Street with an intended ' Low Speed / Low Traffic Volume' expectation of 300 - 1000 vpd, that equates to a maximum of 100 vph, based the commonly accepted 10% adjustment factor. This however assumes a target speed of 40km/h with verge widths each side. 50Mr Pindar however considers Horsnell Lane would have an upgraded classification as an Access Street with an indicative maximum traffic volume range of 1000 - 2000 vpd, which equates to a maximum of 200 vph. He says council staff supported this classification was but that position was not accepted by Mr McClaren, who presented the expert evidence to the Court. 51From reference to the various factors in the Amcord Table 1 (Annexure B in the joint report), I note that the overall width of Horsnell Lane appears much narrower than the 13/13.5m specified and Mr Pindar's classification would include a 1.2m wide footpath on one side. As this is not the situation, I consider the more conservative classification by Mr McClaren (i.e. 100 vph maximum) is realistic in the circumstances. 52Consequently, I consider the predicted traffic volume in the order of 230vph significantly exceeds the environmental capacity criterion, which is a further negative aspect of the proposal. 53The estimated trip intensity value can also be applied to the ECRTN noise criterion to assess acoustic amenity, which I deal with later. 54Another traffic issue in Horsnell Lane concerns the effective operation of the loading dock . However during the progress of this matter revisions were made to the configuration of the single loading dock, which I understand then permits satisfactory manoeuvring and use by delivery vehicles with a maximum length of 7.8m. Such vehicles can use the loading dock on the basis that the entry security door is closed during the unloading process, so as to minimise traffic flow interruption in the lane. The loading arrangements are to be controlled by a traffic warden, as specified within a Management Plan. However council submits this is inadequate. 55An associated issue raised by the neighbours concerns potential vehicle conflict and safety issues as they exit from their basement car park on the northern side of Horsnell Lane. Whilst the sight distances are restricted, the exit arrangement is the same as that for the existing shopping centre and there was no substantive evidence that the incremental change would materially affect this movement, except introduce some additional delays in exiting. Truck manoeuvring at the Military Road/ Field Way intersection . 56As shown on Attachment AA, this intersection configuration restricts larger truck movements both entering and leaving via Field Way. The swept path turning templates show that while a smaller 6.4m truck can make the turns, the designated 7.8 - 8m has difficulty with the likelihood of blocking traffic if other larger vehicles are at the intersection simultaneously. 57Whilst I note the applicant's submission that parking restrictions could be imposed part way along Field Way to overcome this issue, nevertheless this is a matter of concern raised by SRDAC. In my assessment, this is one of the traffic/parking components that should preferably be considered in an overall modelling exercise rather than by the imposition of ad hoc conditions. 58The further submissions for the applicant are that the provisions of the Management Plans will control this issue under the supervision of Coles, who would be able to limit the size and arrival/departure times of the delivery trucks, thereby avoiding this potential traffic problem. But as stated previously, the council submits that the MP is inadequate and in any case the deliveries are to be undertaken by contractors who will be at liberty to make decisions on the size and timing of the delivery truck. Therefore this issue is not satisfactorily resolved according to the council's submissions. Basement parking, disabled parking and car park access, bike storage 59There was a considerable amount of discussion about the appropriate calculation rates to determine the number of car parking spaces required for the proposed change of use. The resolution of this issue was however agreed by the traffic experts on the basis that: ·A total of 98 spaces would be required (Note: maximum 87 now spaces available); ·11 spaces to be designated for staff; ·75 (short term - up to 3hrs) public car spaces; ·12 spaces to covered by payment of s 94 contributions, in accordance with the s94CP. 60Notwithstanding this agreement, both Mr Pindar and Mr McClaren agreed that this parking situation could result in additional parking in the surrounding streets, which may subsequently require parking control measures. 61The next parking component concerns the inability to provide uncompromised access to disabled parking spaces in the basement. This occurs because of the structural entry constraints to the existing basement car park, which has a minimum available height of 1950mm near the gatic drain position. 62The council submits that this does not comply with Objective 07 of the MBDCP, which is to "have accessible businesses and services". Furthermore. The available headroom entry height does not meet the minimum specification of 2300mm in cl 5.3.2 of AS 2890.1:2004. Whilst the available height will allow access for some higher vehicles, those carrying rooftop appliances will be denied access. 63Insofar as the existing driveway gradient is non - compliant with the AS provisions, the applicant now proposes alterations to the entry levels, whereby the entry arrangement from Horsnell Lane is improved. 64Accordingly, Mr Pindar says that council has apparently accepted the operation of this existing driveway gradient for the commercial uses in the past and this demonstrates that it operates with a satisfactory utility and level of safety. He also says that this confirms council's acceptance of restricted disabled access in some situations. On the basis of this past performance and with the provision of signage, the patrons will become aware of the accessibility limitations and therefore he considers the limitations on access satisfactory. 65However Mr McClaren acknowledges that while the existing development access is non - compliant, he considers it reasonable for a redevelopment of this scale to fully cater for disabled parking needs. He is also dissatisfied with the non - complying access gradient and transition and considers that this will increase risks to motorists and pedestrians using Horsnell Lane as a result of the increased traffic associated with the supermarket. 66An associated parking/amenity issue raised by council concerns the consideration of bicycle provisions . The MBDCP shows a defined pedestrian network system through the commercial area and the associated Transport DCP in cl 2.4 refers to cycling representing "a sustainable form of transport that should be encouraged through the provision of appropriate facilities ". The DCP then specifies the relative number of bike spaces that should be provided. 67The ARUP Transport Impact Statement acknowledged the DCP requirements that approximately 13 bicycles parking spaces should be provided and indicated such spaces would be provided on site in secure locations. However on review of the car parking space demand, the provision of bike spaces is now deleted from the redevelopment to optimise car parking spaces. Noise impacts 68The noise issue was raised by the residents and council on the basis that the proposal fails to satisfy the following Objective 2(k) of the MLEP: (k) to minimise the level of, with the aim of eliminating, pollution of all types, including air, land, water, visual and noise pollution, which may result from development allowed by this plan. 69The particular noise impacts were categorised by the acoustic experts as follows: i.Noise emitted from the loading dock usage, including reversing alarms, air brakes and roller shutter door operation. ii.Noise from traffic generated by development on local roads, particularly Horsnell Lane and Field Way. iii.Noise from air-conditioning and refrigeration plant installed within the premises and particularly condenser plant on the roof. 70They identified the relevant assessment criteria as that contained in the DECCW Industrial Noise Policy (INP). It defines the following 2 criteria: i. Intrusive Noise Criterion; The intrusiveness of an industrial noise is generally considered acceptable if the equivalent Laeq, 15 min does not exceed the background noise level by more than 5dB. ii. Amenity Noise Criterion (ECRTN) ; This refers to noise from additional traffic on local roads associated with the development and concerns: (a)that the total traffic noise level (i.e. existing plus original) should not exceed the limit applicable in the situation; and (b)where that limit is already exceeded, the increase in traffic noise level resulting from the alterations to the existing land use development should where feasible and reasonable not exceed 2dB. 71In regard to the assessment of the ECRTN, the relevant criterion presented to the Court is shown in the following table: Table 1 ECRTN Road Traffic Noise Criteria Type of Development Criteria Day Night Where Criteria are Already Exceeded Where feasible and reasonable, existing noise levels should be mitigated to meet the noise criteria. 13. Land use developments with potential to create additional traffic on local roads LAeq(lhr) 55 LAeq(lhr) 50 Examples of applicable strategies include appropriate location of private access roads; regulating time of use; using clustering; using 'quiet' vehicles; and using barriers and acoustic treatments. In all cases, traffic arising from the development should not lead to an increase in existing noise levels of more than 2 dB. 72Dr Tonin undertook a site assessment and reviewed the proposal in the context of the existing (2008) consent. He acknowledged that whilst the shopping centre is not currently operating, nevertheless says that this base-line is appropriate for assessment of intrusive noise impacts where it is required to compare intrusive noise levels with the development operating against the background noise levels with the development not operating in accordance with the DECCW's criterion. 73With regard to the external plant, Dr Tonin recommended the installation of replacement equipment, particularly the air conditioning plant/condenser unit, which is to operate within designated noise limits. Mr Koikas agreed that this issue could be covered by conditions of consent thereby satisfying the relevant criteria. 74In response to the use of the loading bay, Dr Tonin measured the noise generated from the manoeuvring of various delivery trucks, although not the 7.8m truck. From this he confirmed that the predominant noise source was the reversing beeper. He recommended a number of measures to address the various concerns raised about the loading dock operation. They include ·The installation of a new acoustic roller shutter on the loading dock; ·The limitation of a maximum truck length of 7.8m (Mondays - Friday) and 6.4m (Saturday, Sunday), which is to be manoeuvred into and out of the dock under supervision; ·Loading dock usage on the day - time period to be restricted to 8am - 6pm (Mondays to Saturdays) and 9am to 5pm Sundays. ·All unloading to be undertaken within the closed dock area; ·A limitation in the number of rigid trucks to 1/hr; ·No waiting or queuing is permitted in local streets; ·Limitation in hours of dock use; ·Limitations and strict closure times for the car park; ·The collection of waste totally within the dock; 75However, the noise assessment found that in the current situation, the noise criteria limits are already exceeded. By reference to condition 74 of the existing consent, Dr Tonin assumed that this condition provided no restriction other than the time limit from 10pm - 7am daily. But on further examination, it was conceded that condition 78 also relevantly restricted noise emanating from the premises, to not exceed the background noise by more than 5dB(A). 76Nevertheless, I accept that with the installation of the new plant and strict compliance with Dr Tonin's operational conditions, then the INC criterion could be satisfied. 77The other relevant noise source is that generated from traffic use in Horsnell Lane and Field Way. This impact basically depends on the number of traffic movement/hr in the lane. On the basis of the various traffic movements previously discussed, the increase in traffic noise is tabulated as follows: Location Time dB Increase dB Increase DB Increase ECRTN 182move/hr 258 move/hr 220 move/hr Criterion Horsnell Day 1.0 - 2.1 1.7 - 2.6 1.4 - 2.3 2 Lane Evening 2.0 2.78 2.4 2 Sundays 1.2 - 1.6 1.9 - 2.5 1.5 - 2.1 2 Day 1.2 - 1.9 1.9 - 2.4 1.6 - 2.2 2 Field Way Evening 2.1 2.9 2.5 2 Sundays 1.2 - 1.9 2 - 3.1 1.6 - 2.5 2 78From this the acoustic experts concluded that apart from the proposed noise mitigation measures, there is a residual exceedence of the ECRTN criterion on the basis of 258 movements/hr but no exceedence on the basis of 182 movements/hr. At about 193 movements/hr the noise increase is estimated to be 2.2 dB, which Mr Koikas considered the maximum variation that would be permitted. 79For my assessment of these noise estimates, I note the variations depending on the relative traffic rates that were subject to much discussion by the traffic experts. Consequently, on the basis of my findings that it is appropriate to adopt a conservative approach due to the disparities and uncertainties in the survey process and the various adjustments, I rely on the general approach presented by Mr McClaren, which is that the traffic generation is in the order 230 trips/hr. 80Bearing in mind that the ECRTN criterion prescribes a maximum increase of 2dB(A) and Mr Koikas agreed that this could increased to 2.2dB(A) in the circumstances, there is still an exceedence of the criterion with the estimated 230 trips/hr. Accordingly, I am not satisfied the acoustic environment would be within acceptable limits, particularly at night, by allowing the estimated increase in traffic proposed by this development. 81In comparison with the existing consent, which allows about 88 trips/hr and compliant with the ECRTN, the incremental change is not consistent with objective 2(k) of the DCP, which seeks to minimise noise impacts. Waste management 82This issue concerns the adequacy of waste disposal facilities required by the proposed change of usage of the site, particularly size of the storage bin area, separation of various waste components and subsequent collection arrangements. An associated concern relates to the adequacy of the Waste Management Plan that was finally submitted. 83I am satisfied from the evidence that this matter should be satisfactorily resolved prior to the issue of any consent due to the public health considerations and the sensitive nature of the interface between the main traffic thoroughfare along Horsnell Lane/ Field Way and the existing medium density dwellings backing onto the lane. 84Mr Saul, council's acting manager for environmental services expressed concerns about the lack of detailing in the initial waste management plan (WMP). Insofar as the applicant sought to address this with the amended WMP, I note Mr Staunton's submissions that this plan is still inadequate in terms of detailing separation arrangements for the fresh food and the disposable waste, the wastewater arrangements that are shown as possible locations only and the coordination of the waste collection arrangements by trucks up to 8m in length with the other controlled delivery trucks. 85Insofar as the amended WMP contains arrangements to deal with some of these matters, the applicant did not submit it until very late in the matter, well after any expert report is required to be tendered and consequently it was not available for detailed review by council experts. Whilst I accept that some of these matters could probably be resolved via more detailed conditions of any consent, I consider this is a negative aspect of the proposal because the applicant has not discharged its responsibility to properly address this contention. It is not however the only reason for the refusal of the development. Conclusions 86Having considered the evidence presented to the Court, the submissions and undertaken a view, I do not consider this application merits consent. 87The subject land is within the 3(a) Spit Junction Town Centre under the MLEP and is permissible with consent. In addition to this, there are a number of complementary planning controls which indicate to me that the underlying theme for this area is to permit new development on the basis that there is appropriate balance between the appearance and operation of commercial development and the minimisation of adverse amenity impacts on the general community and residents who choose to reside in proximity to the development. 88The controls recognise the potential for traffic issues in the business centre and consequently require the submission of an adequate Traffic and Parking Statement . The encouragement of alternate forms of access, including public transport, bicycles and walking is an obvious objective of the controls. They also seek to achieve a reasonable level of access to the various land uses. 89Accordingly, I am satisfied from the evidence that operational efficiency of Military Road is at a low level of service (LOS "F") during the peak hours, particularly during the Thursday night and Saturday periods. Also, that the use of Horsnell Lane and Field Way play a significant role in the access arrangements in this local area. 90As required by the controls, the applicant's traffic submission comprises the ARUP report and Mr Pindar's evidence. Mr McClaren provided his response on behalf of council. 91The primary traffic issue concerns the efficiency of additional vehicles exiting from Field Way and making a right turn into Military Road. The experts at the least agreed this movement was unsatisfactory and could be addressed by the installation of a No Right Turn sign. 92However, after consideration of the competing traffic evidence, I think it reasonable to rely on the cautious approach presented by Mr McClaren that more realistic traffic modelling is required to assess the overall effect of allowing an almost 3 -fold increase in traffic in the area. This is consistent with the advise from SRDAC that the SIDRA modelling is inappropriate and more realistic modelling would be obtained by the application of micro - simulation techniques, which includes gap/queing factors. This modelling would also give an indication of associated traffic patterns and resultant impacts on the surrounding neighbourhood. 93I accept the council's submission that the approval of the development would result a significant intensification of use with the traffic increasing along Horsnell Lane and Field Way from its existing benchmark of 88 vph to approximately 230 vph. This near trebling of traffic will adversely impact on the amenity of the area in my assessment and is not consistent with objective (j) of the MLEP that seeks to limit the potential for additional traffic and reduce car dependence. 94One of the adverse amenity impacts will be on pedestrian usage of the lane. Whilst I accept that the pedestrian usage survey indicated limited use, nevertheless the planning guidelines are endeavouring to facilitate future pedestrian movements in this immediate vicinity. Insofar as the traffic experts agreed that with the increased vehicle traffic from the supermarket, then the pedestrian usage of the lane and Field Way should be discouraged, this contrary to the DCP provisions and a negative aspect of the proposal. 95The configuration and width of Horsnell Lane and Field Way impose obvious constraints to any intensification of uses that rely on them for access. This is apparent by the inability to provide separated footpaths, the convex mirror at the corner of Horsnell Lane and Field Way and also the restricted turning area for larger trucks at the intersection with Military Road. 96I also have concerns about the other traffic control modifications that may be desirable if the proposal is approved. These include: ·The imposition of further No Parking in Field Way near Military Road to enable larger truck turning; ·Review of the Horsnell Lane/Field Way intersection configuration to cope with increased vehicles and delivery truck movements; ·Provision of traffic calming devices in adjoining streets to regulate alternate entry/exit routes to the car park; ·Introduction of resident parking schemes with appropriate period parking restrictions; ·The impact and effectiveness of the installation of electronic parking signage monitoring on the corner of Military Road and Field Way, the details of which were not submitted. 97Consequently, I am not satisfied that the traffic details relied upon by the applicant will result in an appropriate balance to achieve the amenity outcomes envisaged by the controls. Notwithstanding this, I have carefully considered the applicant's submissions that the traffic concerns can be managed by the imposition of conditions of consent, including the adoption and compliance with a traffic management plan. 98But the evidence indicates that such conditions and management plan would have to effectively deal with: ·The strict control on the maximum size of the 8 larger delivery trucks (7.8m) and frequency of arrival so as not exceed 1 delivery/hr noise constraint. Also the accurate control of the remaining 7 smaller trucks. ·The careful supervision of the loading dock operation. ·The integration of the waste collection trucks. ·Compliance with Dr Tonin's noise restriction controls. 99The traffic management plan (Exhibit D) that was presented during the appeal contains only 9 superficial points for drivers to observe. Mr Staunton submits that this is inadequate and unacceptable by reference to the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315, where Brown C said: 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered: 1.Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2.Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3.Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4.Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5.Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6.Is the Management Plan to be enforced as a condition of consent? 7.Does the Management Plan contain complaint management procedures? 8.Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 55 It is appropriate that each of these questions are addressed individually. 100Given the complexity and constraints on entering/leaving this site, I consider the traffic management plan does not respond satisfactorily to these questions and is therefore completely inadequate, as submitted by council. 101One of the features of this hearing was the applicant's offer of several conditions to address some matters not fully resolved by the evidence. Insofar as Mr Tomasetti submits that the imposition of such conditions is a reasonable approach because the Court generally assumes people will obey the law, otherwise enforcement action can be taken, I think this approach needs to be carefully considered. Often in response, the council submissions are that there are insufficient resources to pursue the option of enforcement of conditions. Consequently, the community is left with a lower level of amenity. 102It seems to me that this qualification is relevant in this case because of the strict control necessary on the delivery vehicles movements and timing, which I consider would be difficult to control due to the use of contract vehicles operating within the congested surrounding road environment. Unfortunately the management plans do not include the reassurance of any effective 'self enforcing' measures. 103In this regard, I am not fully satisfied with the evidence on the number of truck deliveries. Whilst the applicant accepts the limit of 17 delivery vehicles for the proposed supermarket area of 2350 sq m, this is not consistent with the evidence on the rate of deliveries for other supermarkets. 104Mr McClaren reference in the joint report to the Coles Oatley supermarket appeal - Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 causes me some concern. That supermarket had a GLFA of 1756 sq m and required an average of 27 delivery trucks as stated in para 49: 49 Mr Pindar states that loading arrangements are satisfactory having regard to the Operation Management Plan and the frequency of deliveries. The supermarket is expected to generate an average of 27 truck arrivals on a typical week day. Of these truck arrivals, on average 8 will be large trucks (i.e., maximum of 11 metres). These deliveries are scheduled by the Store Manager and are able to be accurately scheduled to an agreed daily delivery time. There will be an average of 19 small truck deliveries per day. Given an average time of 10 minutes to unload, the loading dock can service 6 trucks per hour. On this basis, and having regard to the randomness of arrivals, Mr Pindar states the worst-case scenario would be the need to accommodate one large truck and two small trucks simultaneously within the loading dock area. Even in this unlikely event, sufficient capacity is available. 105Mr McClaren consequently considers the larger Coles supermarket at Spit Junction would require proportionally more truck deliveries, rather than the significantly reduced number proposed by the conditions of consent. This conclusion is consistent with the evidence on the relative frequency of deliveries for other nearby supermarkets e.g. IGA. Based on Mr McClaren's evidence, I have significant reservations that the proposed supermarket can effectively operate on the basis of the applicant's conditions and consider this another negative aspect of the proposal. 106However a more critical issue is effect of the increased traffic. I am satisfied from the evidence to rely on the conservative approach of Mr McClaren, which is more appropriate in the constrained local environment. Accordingly, the traffic generation is in the order of 3 trips/space/hr, which results in about 230 trips/hr, subject to parking turnover, staff usage and delivery truck frequency. In my assessment, this exceeds the environmental capacity threshold of 100 trips/hr in the narrower Horsnell Lane. As this is likely to reduce the amenity of the area, it is not consistent with the control objectives to minimise traffic impacts and car dependence. 107In terms of the acoustic impacts, I accept that strict compliance with conditions could satisfy the ICN intrusive noise criterion. But as the existing noise environment exceeds the 55dBA criterion and the additional traffic will exceed the + 2dBA allowance, it exceeds the ECRTN criterion. Accordingly it does not satisfy the DCP objective to minimise the level of noise pollution. Instead it increases it by comparison with the existing scale of permitted development. 108As I have noted, the final waste management arrangements, including the collection arrangements were not agreed to by council. This is an important issue considering the environmental constraints for accessing the property. This issue was clearly identified a contention and has not be adequately addressed in my opinion and therefore is a further negative aspect of the proposal. 109It also seems to me that a reasonable community expectation would that unrestricted disabled access would be provided to a new 'full line' supermarket such as Coles. The fact that the existing building does not permit this, as required by the DCP, is a serious deficiency for this proposed development. Whilst I accept disabled access is restricted in some circumstances, I do not consider any such discretion is appropriate in the current circumstances. 110I also consider the inability to provide any bicycle parking as required by the Transport DCP is inconsistent with sustainable development objectives expressed in the various controls. 111In the ultimate, my assessment is that the cumulative effect of the non - compliance with the aforementioned controls confirms that the proposed development is an intensification of use that this site is not suitable for. As such the public interest would not be well served by granting consent on the basis proposed by the applicant and the application is refused. Court orders 112The Court orders that: 1 The appeal is dismissed. 2 Development consent for alterations and the refurbishment of the existing retail centre at 710 Military Road, Mosman is refused. 3 The exhibits be returned except for 1, 4, 7, A and D. _______________________ R Hussey Commissioner of the Court 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. Decision last updated: 13 April 2011