Land and Environment Court New South Wales Medium Neutral Citation: McDonalds Australia Limited v Botany Bay City Council [2012] NSWLEC 1007 Hearing dates: 11-14/10/2011 submissions on conditions filed 26/10/2011 Decision date: 20 January 2012 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application for construction of a McDonalds Restaurant, drive through facility, signage, car parking and associated landscaping at 279 Gardeners Road, Eastlakes is refused. 3. The exhibits may be returned. Catchwords: DEVELOPMENT APPLICATION - McDonalds restaurant and drive through. Traffic, residential amenity, noise, social impacts, signage, suitability of the site for the development, orderly and economic development and consistency with strategic planning for the area Legislation Cited: Environmental Planning and Assessment Act 1979 Botany Bay Local Environmental Plan 1995 State Environmental Planning Policy No 64 - Advertising Signage Cases Cited: BGP Properties v Lake Macquarie (2004) 138 LGERA 237. Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 Category: Principal judgment Parties: McDonalds Australia Limited (Applicant) Botany Bay City Council (Respondent) Representation: Counsel Mr A Galasso, SC (Applicant) Mr T Hale SC (Respondent) Solicitors Norton Rose (Applicant) Housten Dearn O'Conner (Respondent) File Number(s): 10361 of 2011 Judgment 1This is an appeal against the refusal by Botany Bay City Council (council) of a development application under the Environmental Planning and Assessment Act 1979 (EPA Act) for construction of a McDonalds Restaurant, drive through facility, signage, car parking and associated landscaping at 279 Gardeners Road, Eastlakes (site). The site and its locality 2The site is located on the corner of Gardeners Road, Racecourse Place and Evans Lane. It has an area of about 1,846 sqm and is generally level. It has been vacant for about 10 years and was previously used as a service station which operated 24 hours per day seven days per week. Remediation work on the site have been completed and a Site Audit Statement issued in 2010. 3Adjoining development to the south is a three and four storey residential flat building (14 Evans Avenue). A four storey residential flat building is located to the west of the site across Evans Lane (281 Gardeners Road). A part three/part four storey residential flat building is located to the east on the opposite side of Racecourse Place. To the north of the site, on the opposite side of Gardeners Road, is a four storey residential flat building (252 Gardeners Road) and single storey detached dwellings. 4The surrounding area is characterised by residential flat development interspersed with single dwellings. Eastlakes Reserve is located opposite the intersection of Racecourse Place and Evans Avenue. Eastlakes Shopping Centre is also located nearby on both sides of Evans Avenue and extends through to Gardeners Road. A hotel and other retail/commercial development are located further to the west along Gardeners Road. 5A McDonalds Restaurant, which closed in 2007, was located at the intersection of Evans Avenue and Racecourse Place between Eastlakes Shopping Centre and Eastlakes Reserve. The proposal 6The applicant was granted leave to rely on amended plans on 11 October 2011. The amended application includes a dine-in restaurant, party room, outdoor play area and terrace which are located at first floor level. The drive through facility and under croft car parking are located at ground level below the restaurant. The restaurant building occupies the western part of the site. The remainder of the site is occupied by surface car parking, a loading area, landscaping, signage and an acoustic tunnel along the southern and western boundaries, which services the drive through facility. 7The restaurant provides 88 seats and the under croft and surface car park provide parking for 29 cars and one motor cycle. The loading area can accommodate a 9.6m truck. 8The amended application proposes 24/7 operation of the drive through and trading hours for the restaurant of: Monday to Thursday: 5am to 11pm Friday 5am to 1am Saturday: 6am to 1am Sunday: 6am to 11pm 9The application includes illuminated building identification signage as well as directional and information signs. Planning framework 10The site is zoned Commercial 3(a) under Botany Local Environmental Plan 1995 (BLEP) . 'Refreshment rooms' are permissible with consent. The adjoining residential flat buildings are zoned Residential 2(b). BLEP adopts the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions) which define a 'refreshment room' to mean: Refreshment room means a restaurant, café, tea room, eating house or the like. 11Clause 10(3) of BLEP provides: The Council may only grant consent to the carrying out of development of land to which this plan applies if the Council is of the opinion that the carrying out of the development is consistent with the primary objective of the zone in which the development is proposed to be carried out. In granting consent, the Council must take into account other relevant objectives of the plan and the zone in which the development is proposed to be carried out. 12The objectives of the 3(a) zone are: The primary objective is to reinforce the historical development of business and shopping locations in the local government area of Botany Bay City by providing for a range of retail, business and professional service activities which will provide services and employment opportunities for the community. The secondary objectives are: (a) to control the physical and functional characteristics of commercial areas in order to minimise their impact on adjoining residential areas, (b) to ensure adequate and accessible off-street car parking is provided for users of commercial areas, (c) to promote the vitality of commercial areas and to assist urban consolidation by permitting residential developments within commercial areas, (d) to improve the environmental amenity of commercial areas for pedestrians and shoppers, and (e) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone. 13Botany Bay Development Control Plan - Off Street Car Parking 1993 (BDCP 1993) and Development Control Plan No 32 - Landscape (DCP 32) are relevant to the application and to the contentions. 14In addition, State Environmental Planning Policy No 64 - Advertising Signage (SEPP 64) is relevant to that part of the application that involves the erection of signage. 15Mr Hale SC, for the council, referred to the following documents and submitted that they were relevant matters for consideration under s79C(1)(e), the public interest: Metropolitan Plan for Sydney 2036 dated December 2010 (Metropolitan Plan); East Subregion Draft Subregional Strategy (Subregional Strategy) dated July 2007; Botany Bay Planning Strategy 2031- Local Liveability, Global Connections dated 2009 (Botany Bay Strategy); LEP Standards and Urban Design Controls Study for the City of Botany Bay LEP 2011 (Urban Design Study), dated September 2010 and 'Draft' Botany Bay Local Environmental Plan 2010 ('draft' LEP). 16Mr Galasso SC, for the applicant, accepts that the Metropolitan Plan and the Subregional Strategy may be considered under s79C(1)(e) but submits that they are of little relevance to the proposal and should be given little weight. Further, he submits that, even if they are given weight, the proposal is not inconsistent with these documents. 17The Botany Bay Strategy and the Urban Design Study were prepared as part of the preparation of the 'draft' LEP, which has not been formally exhibited. Mr Galasso submits that the 'draft' LEP and its supporting strategies are not relevant considerations under s79C(1)(a)(ii) and that these documents are therefore also not relevant considerations under s79C(1)(e) and should be given no weight. 18Further, Mr Galasso submits that even if the strategies and the 'draft' LEP can be considered, the development proposal is not inconsistent with the strategic direction in these documents. 19I accept that the documents including the 'draft' LEP and its supporting strategies may be considered under s79C(1)(e). However, as they have not been formally exhibited or finally adopted by council, they provide background information and are only indicative of potential future directions for the site and surrounding area, as such should be given little weight. Even if the documents are considered, for the reasons which I will discuss later in the Judgement, I accept Mr Galasso's submission that the proposal is not inconsistent with the strategies, including the Metropolitan Plan and Subregional Strategy, and the 'draft' LEP. Contentions 20Council's Amended Contentions filed 21 July 2011 identify a number of contentions. Several of these have been resolved and the main issues that remain in dispute are whether: 1. The proposed development will have adverse impacts on the functioning of the surrounding road network (Contention 1); 2. The proposed development will have an adverse impact on amenity of the neighbouring residents, in particular acoustic impacts and antisocial behaviour (Contention 5); 3. The proposed development provides sufficient landscaping (Contention 6); 4. The proposed signage is excessive and inappropriate (Contention 7); 5. The site is unsuitable for the proposed development (Contention 9); 6. The proposed development is not economic and orderly use of the land (Contention 10); 7. The proposed development is inconsistent with planning controls and draft planning controls (Contention 13). The evidence 21The Court visited the site and heard evidence both on site and in Court from residents who objected to the proposal. Their main concern was the impact on their residential amenity resulting from the nighttime operation of the restaurant, car park and drive through. The residents stated that the operation of the 'old McDonalds' had unacceptable impacts due to the antisocial behaviour of patrons, particularly 'gangs of teenagers' who frequented McDonalds and the adjoining park and disturbed the neighbourhood with noise from shouting, cars and music as well as fighting, alcohol and drug use. Since 'old McDonalds' had closed they noted that these adverse impacts had ceased. 22The 'old McDonalds' had opening hours until 11pm, and the residents were concerned that the late trading hours of the proposal, including the 24 hour operation of the drive through, would result in noise impacts and sleep disturbance. They considered that it would be difficult to control patron behaviour off site and that McDonalds would be an attractor for groups of people, including patrons from the nearby Hotel. 23The residents objected to the proposal to access the site via the roundabout at the intersection of Racecourse Place and Evans Avenue. They considered that this would bring traffic into a residential area and exacerbate the existing traffic problems, particularly queuing and delays. They noted the number of bus stops in the vicinity of the site and stated that the entry/exit driveway would pose a safety issue for pedestrians, particularly children. 24The Court heard expert evidence from: For the council * Mr P Van de Walle, planner * Mr C McLaren, traffic engineer * Mr S Cooper, acoustic consultant * Ms J Gee, landscape architect For the applicant * Ms J Bindon, planner * Mr T Rogers, traffic engineer * Mr G Inglis, traffic modeller * Mr N Gross, acoustic consultant * Mr N Metcalfe, landscape architect 25Dr G Watson and Mr P Stephenson, for the council, and Mr B Martin and Mr G Graham, for the applicant, prepared joint statements on lighting and odour, respectively. These experts were not required for cross-examination. Traffic 26The key issue between the traffic experts was whether the development would result in adverse impacts on the functioning of the surrounding road network. 27Mr McLaren's main concern is whether the queuing and resultant delay at the intersection of Racecourse Place and Gardeners Road and in the roundabout at the intersection of Evans Avenue and Racecourse Place would be unacceptable and result in traffic seeking alternate routes. 28Mr McLaren stated that the proposal is a high generating traffic use and Racecourse Place is 'sensitive' as it provides access into and from the residential area and the Eastlakes Shopping Centre. Queuing to the south along Racecourse Place and into Evans Avenue already occurs and, in Mr McLaren's opinion, the VISSIM Model, undertaken on behalf of the applicant, does not adequately demonstrate that this will not be unreasonably exacerbated by the traffic generated by the proposal. 29The experts disagree on the assumptions upon which the VISSIM model should be based, in particular, the traffic generation level on the Saturday afternoon peak, the distribution of 'pass by traffic' between Gardeners Road and the residential area and shopping centre and the cycle times for the Gardeners Road intersection. The VISSIM model had been adjusted to model Mr McLaren's assumptions, although the latest adjustment to the model was undertaken during the hearing (13 October) with little time for Mr McLaren to assess the results. Mr McLaren was concerned that despite the input of different assumptions and increased queuing in Racecourse Road, the level of service (LOS) for the Racecourse Place and Evans Avenue roundabout did not change. He considered that increased queuing would block the roundabout at times and would therefore reduce its LOS. He stated: ...all VISSIM reports state LOS A for this roundabout for all options tests conducted, which cannot be correct logically. Therefore it is queried what algorithm (formula) is used to determine LOS and whether the times of queue blockage is included in the determination of LOS. I expect it is throughput (volume to capacity) related not reflecting queuing impact through the roundabout from the upstream Gardeners Road signals. 30Further, Mr McLaren stated that in response to Contention 1(d)(vi) he had requested, on a number of occasions, to be provided with the input parameters for the model in order to verify its conclusions. However, the information had not been provided. In his opinion, without this information he could not be satisfied that the proposal would not unacceptably reduce the LOS and result in cars seeking alternate routes through residential areas. He acknowledged that the proposal may have an acceptable impact but without reviewing the data he had requested he could not be sure. In his opinion, given the sensitivity of the intersection, any approval should be a deferred commencement in order to verify the VISSIM model. 31Mr Rogers stated that the micro simulation modelling was undertaken using the VISSIM programme because of its ability to model the interactions and the behaviour of vehicles, pedestrians and public transport. The modelling was undertaken on a series of assumptions using the assumptions for traffic generation, passing trade and cycle times he considered reasonable as well as those preferred by Mr McLaren. Mr Rogers considered McLaren's assumptions to be the 'worst of the worst of the worst' and to be unrepresentative. 32Mr Rogers stated that on all of the assumptions, the VISSIM modelling demonstrated that the proposal would not have an unacceptable impact on the surrounding road system. In some scenarios, the modelling shows a marginal increase in overall delay but does not reduce the LOS. He did not accept Mr McLaren's concerns about the results of the model or consider that a deferred commencement condition was required or that the underlying data should be reviewed. Mr Inglis agreed with the opinions of Mr Rogers. 33The experts also disagree on the relationship between the proposal and the existing right hand turn from Evans Avenue (east) into the shopping centre. Mr McLaren was concerned that the right hand turn impacts on the existing performance of the roundabout and that the VISSIM modelling did not include the right hand turn. Both he and Mr Rogers acknowledge that the right hand turn is unsafe and should be restricted but disagree whether this should be a pre-condition of any approval of the application. Mr McLaren considers that a deferred commencement condition should be imposed that requires the applicant to seek and obtain approval from the Local Traffic Committee (LTC) for the installation of a 'no right hand turn' sign. Mr Rogers considers that the roundabout is an existing situation, which is independent of the proposal. The right hand turn is not controlled by the applicant and therefore is not a matter about which the applicant can satisfy the consent authority. 34The experts also disagree on whether the cumulative impact of the proposal and the extension of the Eastlakes Shopping Centre should be included in the modelling. A major project application for the extension of the shopping centre has been made and the Director General Requirements issued. Mr McLaren considers that the cumulative impact should be assessed given that Mr Rogers' company, Colston Budd Hunt & Kafes (CBH&K), have prepared traffic reports for both the expansion of the shopping centre and the proposal. The CBH&K report on the expansion of the centre commented on the existing traffic conditions, including queuing along Racecourse Place, and measures to address impacts such as widening Racecourse Place or reconstructing the roundabout. 35Mr Rogers considers it is unreasonable to consider the cumulative impact of a project that is not approved and may or may not proceed. Further, there is no certainty of the timing or the details of the project, if it was approved and was to proceed. Notwithstanding, the proposed redevelopment would require major changes to the access arrangements, such as an extension of Racecourse Place or an additional connection to Gardeners Road. In these circumstances, it is difficult to establish the cumulative impact given that the impacts of any extensions to the shopping centre are unknown. 36Mr Rogers and Mr McLaren held different opinions on the suitability of the site for the development. Mr McLaren stated that: The site is not suitable for a high traffic generating development, such as the subject McDonalds DA, that provides its primary or sole access from Racecourse Place as it restricts the ability of this critical road element to absorb minor changes in traffic volumes, 'green' time allocation and any increase in traffic associated with the planned expansion of Eastlakes Shopping Centre or other significant development within the precinct. 37Mr Rogers considered that the site is suitable for a McDonalds. He stated: The extensive traffic assessment has found that the surrounding road network could satisfactorily accommodate the traffic from the proposed McDonalds. Residential Amenity 38Contention 5 raised issues about the impact of the proposal on residential amenity of surrounding properties including impacts of acoustics, odour, lighting anti social behaviour, personal safety, traffic and parking, pedestrian safety and refuse. A number of these impacts were addressed through the provision of further information, expert agreement and conditions. The remaining issues include acoustic impacts and anti social behaviour. Acoustic impact 39The original application proposed 24 hour trading for the restaurant, car park and drive through. The amended application proposes 24 hour operation for only the drive through and opening hours for the restaurant and car park of 5am Monday to Friday and 6am on Saturday and Sunday and closing hours of 11pm Sunday to Thursday and 1am on Friday night (Saturday Morning) and 1am Saturday night (Sunday morning). 40The experts agree that, subject to compliance with the proposed management and security measures, the 24 hour operation of the drive through and the operation of the restaurant, at least, until 10pm would have an acceptable acoustic impact. 41The key issue between the acoustic experts was the likely number of incidents that may exceed the sleep disturbance criteria at night. Mr Cooper's main concern was the use of the car park after 10pm and before 7am (8am on Sundays) and the potential for sleep disturbance from car doors, engines starting and, to a lesser extent, patrons. He stated that based on the information provided, the number of sleep disturbance incidents likely to arise from the car park is not clear. If the car park and restaurant were closed during these hours it would alleviate Mr Cooper's concerns. However, he acknowledged that a trial period of the proposed closing hours after 10pm for the restaurant and car park could be appropriate. Further he considered that the proposed morning opening hours may be acceptable subject to appropriate security presence. 42Mr Gross stated that the restaurant and car park were the potential noise source for the residential receivers. The proposed opening hours of the restaurant and car park had been amended to ensure acceptable acoustic impacts, including sleep disturbance. He did not consider a trial period was necessary but accepted a trial period for the extended trading hours after 10pm, but not for the earlier opening hours. Anti social behaviour 43The residents raised concerns about the 'old McDonalds' at the intersection of Evans Avenue and Racecourse Place which operated until 11pm. The residents stated that its operation had attracted anti social behaviour and they were concerned that the proposal would also do so. 44The NSW Police's Crime Assessment of the original application (24 hour operation) calculated a 'medium crime risk assessment' on the basis of: * Close proximity to several residential flat buildings and the potential for noise from the restaurant and car park to disrupt residents; * As a 24 hour venue it will attract anti social behaviour from youths congregating in the car park at night; * Close proximity to the Lakes Hotel and the potential for intoxicated people to attend the restaurant; * Increased traffic congestion; and * The operation of the previous McDonalds. 45The police made a number of recommendations which include CCTV, lighting, security guards, closure of the car park at night and use of only the drive through and a trial period of operations and opening hours. 46Mr Van de Walle undertook a survey of other McDonalds restaurants and stated that he observed anti social behaviour which he concluded would also occur in the proposal. Ms Bindon gave little weight to the survey given the brief time spent at the locations, the absence of security guards, the lack of information about the operation of the premises and how they were selected and the methodology of the survey. She stated that the proposed security measures, including a management plan and the implementation of the recommendations of the NSW Police would reduce the potential for anti social behaviour to an acceptable level. Landscaping 47The landscape experts agree that there is no minimum requirement in council's controls for a setback from the boundaries for commercial developments. However, Ms Gee noted that the Development Control Plan 33 - Industrial imposes a minimum three metre setback for industrial developments which, in the absence of other setback controls, is an appropriate guideline that is generally applied to commercial developments. In her opinion, an appropriate landscape outcome is required regardless of the setback requirements or use of the development, particularly given the site's interface with residential development and prominent corner location. She considered that the proposal did not achieve the objectives and controls in DCP 32 for landscaping of commercial developments. 48Ms Gee considers that the building should be set back two to three metres on the north and south boundaries to provide sufficient depth for a layered landscaping regime. In her opinion, the one metre landscape strip along the southern boundary was insufficient to ameliorate the impact of the development on the adjoining residential flat building which has three levels of north facing windows that overlook the car park and the proposed building. Ms Gee also considered the setback along Gardeners Road is inadequate to provide effective landscaping along the frontage. She notes that the landscape plan has been amended to increase the width of landscaping along Gardeners Road but that due to the overhang of the building the effective width along the building frontage is one metre which, in her opinion, is insufficient to provide layered planting with trees and an appropriate streetscape setting for the building and the car park. 49Mr Metcalfe considered the setback of the development and the planting regime to be appropriate. Its impact is ameliorated by the stepped built form and the setback which increases as the height of the building increases. The drive through acoustic wall (3.4m high) is setback from the boundary about one metre, the plant (6.7m high) is setback about 11m and the main building (8m high) is setback about 16m. The residential flat building is setback about six metres from the common boundary and part of the setback is used for parking. The windows are secondary windows to living areas and the current outlook is over a vacant and neglected site. 50In Mr Metcalfe's opinion the proposed landscaping which comprising six palm trees and creeping fig on the acoustic wall provide adequate screening of the development and is the appropriate choice to ensure softening of the built form while maintaining solar access to the units. He considered that an increased setback would not necessarily result in a different plant selection or increased screening. 51Mr Metcalfe also considered the setback and planting along the northern boundary to be acceptable. The wider 'clumps' of landscaping at the north eastern and north western corners of the site provide space for canopy trees to screen the development and the landscaping along the frontage appropriately softens the development while maintains an active street frontage and passive surveillance. Signage 52Ms Bindon and Mr Van de Walle held different opinions about the number and extent of signage. Mr Walle was particularly concerned that the pylon and blade wall with the McDonalds "M" logo would dominate the site and the residential area. Although only the "M" is identifies as being signage, Mr Van de Walle considers that the blade wall which is painted red and is about 11m high together with the yellow "M" act as signage. 53Ms Bindon considered the number of signs to be reasonable to identify the building. She notes that the signage is a relatively small component of the site's visual presentation and the majority are low, directional or information signs located in the drive through and not visible from the public domain. She considers the pylon sign and the "M" sign on the blade wall to be integrated into the building design and that they are not excessive. Site suitability 54Ms Bindon considers the site is suitable for the proposed development because it is zoned for commercial purposes and the proposal is consistent with the objectives of the zone. The site is located on a busy road, is large and is not unreasonably constrained. She acknowledges that the proximity of residential development requires that any development of the site needs to be well designed and well managed and must address amenity impacts. In her opinion, the proposal has acceptable impacts through its built form and landscaping and that issues such as acoustic, traffic, anti social behaviour, hours of operation, odour etc have been satisfactorily addressed through design and management measures. 55Mr Van de Walle held the contrary view that the site's location adjoining residential development and the likely amenity impacts such as noise from patrons in and around the site mean that it is inherently unsuited for commercial development of the form and intensity proposed. He accepted that the security and management measures would reduce impacts but not eliminate them and that residential amenity would be affected particularly after 10pm. Further, Mr Van de Walle considered that site constraints such as its size and location rendered it unsuitable for the development given factors such as inadequate parking for the party room, the one way vehicle circulation, traffic access off Racecourse Place via the roundabout and inadequate landscaping. Orderly and economic development 56The planning experts held different opinions as to whether the proposal was orderly or economic development of the site principally because it does not include a residential component and does not maximise the floor space. 57Mr Van de Walle stated that because the proposal is permissible under BLEP does not automatically mean it is orderly or economic development. He considered the proposal to be inconsistent with the zone objectives and the future strategic planning for the area articulated in the various strategy documents and the 'draft' LEP which he states envisage a mixed residential/commercial use for the site. He considers that the strategies identify significant constraints on residential development given the airport, port, industrial areas and major roads. The strategies seek to facilitate urban consolidation and increased residential density in suitable areas, including Eastlakes. The single storey, low density, commercial proposal is inconsistent with these strategies. The proposal also does not provide an active street frontage, which is sought by the 'draft' LEP for commercial developments in this location. 58Ms Bindon considered the proposal to be economic and orderly development of the site under both the current and proposed planning controls. Although she did not accept that the 'draft' LEP should be given weight, Ms Bindon stated that under the 'draft' the site would be zoned B2 Local Centre which would permit a similar range of uses to that which is currently permissible on the site. The current and proposed zoning does not require that development include a residential component nor provide an incentive to do so. Neither the existing nor the proposed objectives for the zone specifically encourage residential development. She noted that the adjoining land to the south and east, which is currently zoned residential, is also zoned B2 under the 'Draft' thereby eliminating any potential land use conflict between residential and commercial zones that may currently exist. Ms Bindon also noted that the strategies sought to encourage commercial development and that the proposal would generate employment opportunities for over 100 people, mostly young, part time and local. In her opinion, the redevelopment of a site that had been vacant for over 10 years which generates employment and does not adversely impact on the area is both economic and orderly development. Findings 59Mr Galasso and Mr Hale referred to BGP Properties v Lake Macquarie (2004) 138 LGERA 237. At 117-119 McClellan CJ states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. 60'Refreshment rooms' are permissible in the Commercial 3(a) Zone under BLEP. Mr Hale submits that permissibility in the zone is a neutral factor. A number of uses are permissible in the zone and the applicant must demonstrate that the site is suitable for the proposed use. In his submission, the exercise of discretion under s79C is informed by the object of the EPA Act to encourage the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii)), BLEP, the strategic planning documents and the 'draft LEP'. He submits that the strategic direction sought by these documents is for a mixed residential/commercial development, which is not achieved by the proposal. 61Mr Hale further submits that the site is unsuited to a McDonalds use due to its size, proximity to residential development and restricted access. The proposal also results in unacceptable impacts of traffic, noise, anti social behaviour and visual amenity. 62Mr Galasso submits that McDonalds is a 'refreshment room' and it is therefore not unreasonable to assume that in 'in some form' the use of the site for this purpose would be permitted provided it results in 'acceptable environmental impacts'. He submits that the expert evidence demonstrates that there are no constraints which render the site unsuited to the development of a 'refreshment room' nor are there any unacceptable impacts from the form of the development proposed. Further, he submits that there is no requirement or incentive in either BLEP, the strategic planning documents or the 'draft' LEP for a residential use to be a component of a development on the site. 63I do not accept Mr Hale's submission or the evidence of Mr Van de Walle that the proposal is not orderly or economic use of the land because the development does not include a residential component. BLEP, the planning strategies and the 'draft' LEP do not require a mixed commercial/residential development on the site. The primary objective of the Commercial 3(a) zone is to reinforce the historical development of business and shopping locations in the local government area of Botany Bay City by providing for a range of retail, business and professional service activities which will provide services and employment opportunities for the community. The proposed use of the site for a 'refreshment room' is consistent with this objective. 64While the strategies seek to encourage urban consolidation and increased residential development in certain areas they also seek to encourage increased commercial and employment generating development. The proposed use is consistent with this latter strategy. 65Under the 'draft' LEP the site is within the B2 Local Centre zone which permits a range of uses. The proposed use is not inconsistent with the objectives of the proposed zone: + To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. + To encourage employment opportunities in accessible locations. + To maximise public transport patronage and encourage walking and cycling. 66I also do not accept Mr Hale's submission and the evidence of Mr Van de Walle that the characteristics of the site, particularly its proximity to residential uses, render it unsuitable for the proposed development. Clearly the impact of the development on residential amenity must be considered but the application cannot be refused on the basis that it adjoins residential uses. 67I accept Mr Galasso's submission and the evidence of Ms Bindon that as 'refreshment rooms' are permissible in the Commercial 3(a) zone under BLEP, it is therefore not unreasonable that the use of the site for a 'refreshment room', in some form, would be permitted. 68The definition of 'refreshment rooms' in the Model Provisions means a restaurant, café, tea room, eating house or the like. These uses are not separately defined in the Model Provisions. A restaurant is defined in BLEP to mean a building or place the principal purpose of which is the provision of food for paying customers for consumption on the premises. 69The parties did not raise any issue that the proposed drive through take away component was not a 'refreshment room' or that it could not operate when the restaurant is closed. 70The impacts of different forms of 'refreshment rooms' would vary considerably. A McDonalds restaurant is a high traffic generator and the 24 hour operation of the drive through and the late night trading hours of the restaurant on Friday and Saturday nights have the potential for impacts beyond those which could be anticipated by a 'refreshment room' which operated less intensively. 71The key question before the Court is whether the use of the site for a 'refreshment room' in the form proposed and the design of the project results in acceptable environmental impacts. 72The council experts have identified a number of impacts that Mr Hale submits would warrant refusal of the application. The main concerns being traffic, noise and anti social behaviour, landscaping and signage. 73The applicant has sought to address these concerns through amendments to the design and operating hours, a plan of management and security measures, conditions of consent and acceptance of a trial period, albeit not the same period sought by council. 74Despite these measures, I am not satisfied that the potential impacts of the proposal have been addressed to the extent that the proposal warrants approval. Traffic 75I accept the validity of the concerns raised by Mr McLaren in relation to the potential impacts of the proposal on the surrounding road system. 76The proposed access arrangements require traffic off Gardeners Road to access the site by proceeding south down Racecourse Place, turning round the roundabout at the Evans Avenue intersection and proceeding north along Racecourse Place to turn left into the site. Cars are restricted to a left only turn when leaving the site. 77The proposal is a high traffic generating use and Racecourse Place is a 'sensitive' access road in which queuing already occurs to the Evans Avenue roundabout. It is therefore necessary to demonstrate that this will not be unreasonably exacerbated by the traffic generated by the proposal. 78The VISSIM Model greatly assists in presenting the potential traffic impacts of the proposal. However, its conclusions are dependent upon the assumptions on which it is based. The experts held different opinions on the assumptions that should be used. Mr Rogers considered that Mr McLaren's assumptions represented 'the worst of the worst of the worst'. I do not accept that Mr McLaren's assumptions are unrealistic. In his evidence, Mr McLaren clearly justified the logic and rationale of his assumptions that: * traffic generation for the Saturday afternoon peak should be modelled on the rate in the Roads and Traffic Authority Guide to Traffic Generating Developments (RTA Guide) for McDonalds restaurants and that of the surveys undertaken of other McDonald's, only one is representative. * greater pass by traffic should be distributed to Gardeners Road rather than to the residential area and shopping centre as the proposal is located on a prominent corner location in Gardeners Road with signage to attract passing trade on a main road; and * the cycle times for the Gardeners Road intersection should include modelling of 110 secs given that with increased demand, cycle times increase. The RTA's preference is to maintain the efficiency of major roads with extra cycle times being distributed to the local road system. 79I accept that at least 'sensitivity' testing of the likely traffic impacts of the proposal should be based on Mr McLaren's assumptions. This modelling was eventually undertaken, however, I acknowledge Mr McLaren's concern about the logicality of the results. Despite the range of different assumptions used in the VISSIM Model the LOS of the roundabout remains the same. From the evidence, I am not satisfied that the model reflects the queuing impact through the roundabout from the upstream Gardeners Road signals given the maximum queue length in Racecourse Place is 12 cars which, if exceeded, spills over into Evans Avenue through the roundabout. 80Mr McLaren had repeatedly requested the input data to for the VISSIM model in order to verify its results. It is not incumbent on Council to undertake its own modelling, as submitted by Mr Galasso, but rather the onus is on the applicant to demonstrate that the likely impacts of the proposal are acceptable. Mr McLaren is not 'being difficult' in requesting that modelling of his reasonable assumptions be undertaken or that information to verify the model be provided. Mr McLaren also requested information in respect of other matters in dispute such as the party room, the carpark layout and the servicing arrangements. When this information was forthcoming or changes made, Mr McLaren acknowledged that the issue had been resolved. In contrast, the requested information on the modelling was not forthcoming and, in its absence, Mr McLaren is not satisfied that an acceptable LOS will be maintained. 81Mr McLaren also raised concern that the right hand turn into the shopping centre is not included in the model. Both experts agree that this impacts on the road system and that the turn should be restricted. I accept that this is not within the power of the applicant and that it would be inappropriate to require a 'no right turn' as a deferred commencement condition. However, the turn is permissible as part of the existing road conditions and impacts on the movement of traffic through the roundabout. Its restriction is uncertain and I accept that modelling with and without the right hand turn should have been undertaken to more accurately assess the likely impacts of the proposal on the 'existing' road system. 82Ideally the cumulative impacts of the proposal should be considered, however, I accept Mr Rogers evidence that it is difficult to assess the impact of the proposal for the expansion of Eastlakes Shopping Centre where there are limited details and no degree of certainty about the proposal. Further, if the shopping centre expansion were to proceed, it will require significant changes to the existing road system, including potentially the extension to or the closure of Racecourse Place. 83Mr McLaren considers that a deferred commencement condition should be imposed to enable further verification of the input data for the VISSIM model. However, I accept the applicant's submission that this would not be appropriate and that the Court should have a reasonable level of satisfaction prior to any approval being granted. In the absence of this satisfaction the application must fail. 84While the other issues in dispute would not individually warrant refusal of the application their cumulative impact results in a development that cannot be approved in its current form. For completeness these matters are briefly discussed below. Landscaping 85I accept that the landscaping of the southern boundary is inadequate and will have an unacceptable impact on the visual amenity of the adjoining residential flat building. While there is no minimum setback requirement for commercial development, DCP 32 provides objectives, landscape development controls and performance criteria which relevantly include: O1 Minimise the impact of buildings on the surrounding area and subdue their appearance in the streetscape by providing buffer or screen planting appropriate to the height and setback of the building envelope. O2 Re-introduce trees and vegetation into urban areas, greening the local environment. O3 Enhance the visual quality of the commercial land use zone and humanise the streetscapes surrounding them. O4 Provide visual relief and shade to the large amounts of ground and building surfacing. O5 Create a pleasant "human" environment within and external to the site. C3 A continuous landscaped buffer strip shall be provided between the driveway and side boundary. The buffer strip shall contain tall screen planting that retains foliage to the ground... Landscaped buffer strips will also be required along side and rear boundaries where they abut residential land uses or screening of buildings or car parks is an issue. C7 Three tiers of landscaping is required in all mass planted areas - trees for upper level softening of buildings, shading and canopy cover; shrubs for mid level screening and demarcation of spaces/uses, and groundcovers for low level screening, soil stabilization and weed reduction. P1 Landscaping should be designed to reduce the bulk, scale and size of buildings, to shade and soften hard paved areas, to create a comfortably scaled environment for pedestrians in the public domain, or from within the site, and to screen unsightly utility areas. Emphasis should be placed on leafy internal road corridors and a landscaped setback designed soften buildings. 86A large proportion of the site is occupied with open surface parking. To satisfy acoustic requirements, the driveway is within a 3.4m high 'tunnel' which is setback 1m from the southern boundary. Landscaping within the setback comprises six palm trees and creeping fig on the side wall of the acoustic tunnel. I accept Ms Gee's evidence that the landscaping is inadequate to appropriately soften the screen the visual impact of the proposal when viewed from the adjoining residential flat building. While the windows of the residential flat building are secondary windows, they are to living rooms and are orientated towards the north. The windows on the upper floors look over the car parking area and face the tunnel along the boundary. While the building itself is stepped, it is appropriate that the visual impact of the proposal as a whole be appropriately screened, particularly given the large expanse of surface car parking and the limited landscaping within the car park itself. 87While Control C6 in DCP 32 requires that planter beds be a minimum of 1 metre wide, I do not accept that this minimum dimension is appropriate for a planter bed which is between a side boundary fence and the acoustic wall of the tunnel. The setback provides limited opportunity for landscaping and does not achieve an appropriate interface between the proposed commercial development and the existing residential development. 88The landscaping on the northern boundary would be adequate for a commercial development with an active frontage. However, the frontage at ground level of the McDonalds comprises a surface car park and under croft parking below the upper level of the restaurant. While of itself this is not a reason to refuse the application, I accept Ms Gee's evidence that the landscaping is inadequate to appropriately soften and screen the development and contribute to the streetscape. Residential amenity 89The other impacts of the proposal on residential amenity result mainly from the proposed operation of the restaurant and car park after 10pm and the potential for anti social behaviour and sleep disturbance from slamming doors etc. Unless properly managed, these activities have the potential to impact on the amenity of nearby residents. The proposal is to operate in accordance with a management plan and has included measures recommended by the Police such as security guards and CCTV. The Police and Mr Cooper have also recommended a trial period and, were the proposal to be approved, I accept that a trial period for hours of operation after 10pm and before 7am (8am on Sundays) would be appropriate to more accurately assess the operating hours and adjust the management measures and their effectiveness in mitigating impacts on residential amenity. Signage 90The key dispute between the parties is whether the pylon sign in conjunction with the red blade wall with the McDonald's "M" is excessive signage within a predominantly residential environment. The illuminated pylon sign is approximately 9m high and is orientated to identify the site along Gardeners Road. The blade wall is approximately 11m high and the sign is orientated to the north towards the residential area. There are seven other smaller business identification signs, a flagpole and other directional signage. The pylon sign and the other business signs are more than adequate to identify the site. The sign on the blade wall is unnecessary and would not be consistent with the requirements of SEPP 64, particularly given the height and colour of the blade wall. Costs 91The applicant was granted leave to rely on amended plans on 11 October 2011. Council did not object to the amended plans but sought costs under s97B of the EPA Act. Mr Galasso submits that the amendments are minor and accordingly the provisions of s97B are not enlivened. He referred to the principles of Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 which address matters to be considered in determining whether amendments are 'minor' for the purpose of s97B. 92Mr Galasso submits that the amendments are properly classified as minor because: 1) The cumulative overall effect of the amendments, in the context and location of the proposed development is minimal. The amendments considered separately (and when considered in combination) have almost no discernable impact; 2) The amendments do not affect the developments height, bulk, scale, footprint or demand on services; 3) No significant reassessment of the development application is required. To the contrary, almost all the amendments have been explicitly address already by the parties' experts. 93Mr Hale also referred to Futurespace but drew a different conclusion in applying the principles that the amendments were not 'minor' and that costs under s97B apply. He submits that individually the changes may be minor but the combined effect changes the nature of the development. Findings 94Section 97B as it applies to the development application relevantly provides: (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. 95In Futurespace Pepper J provides the following principles at [42] that assist in determining whether the amendments are minor for the purpose s97B: (a) first, the question of what is 'minor' is one of fact and degree ( Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development ( Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 96The amendments to the application are in response to the evidence of the experts. The amendments to the plans include changes to the car park layout, landscaping, acoustic wall, drive through and seating numbers. Other amendments to the application reduce the operating hours of the restaurant, changes to the Plan of Management and servicing by trucks. 97I accept Mr Galasso's submission that the changes are 'minor' and that an order under s97B is not required. The cumulative and overall effect of the amendments do not change the nature of the development, no significant reassessment of the application was required or new issues raised and the changes were responsive to the issues in dispute between the parties. Orders 98The orders of the Court are: 1. The appeal is dismissed. 2. The development application for construction of a McDonalds Restaurant, drive through facility, signage, car parking and associated landscaping at 279 Gardeners Road, Eastlakes is refused. 3. The exhibits may be returned. Annelise Tuor 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: 20 January 2012