Land and Environment Court New South Wales Medium Neutral Citation: Woolworths Limited v Gloucester Shire Council [2012] NSWLEC 1321 Hearing dates: 14 November 2012 Decision date: 22 November 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: CONSENT ORDERS - Development Application - Service station Legislation Cited: Environmental Planning and Assessment Act 1979 Gloucester Local Environmental Plan 2010 Category: Principal judgment Parties: Woolworths Limited (Applicant) Gloucester Shire Council (Respondent) Representation: Counsel Ms A Hemmings (Applicant) Solicitors Corrs Chambers Westgarth (Applicant) Mrs L Finn, HWL Ebsworth (Respondent) File Number(s): 10949 of 2012 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of development consent for Development Application DA 2012/2134 (lodged on 5 April 2012) for the construction of a petroleum filling station including a pay-point kiosk, three double sided fuel dispensers, car parking, landscaping and associated signage, at 111-115 Church Street Gloucester (the site). 2The site is located on the western side of Church Street and is Lot 8 DP 708955, Lot 9 DP 779143 and Lot 10 DP 37029. There is presently a single storey detached dwelling on each of the three lots. To the south of the site are single storey detached dwelling houses, and to the east of the site is a mix of low and medium density residential development. 3The Council previously granted consent to DA 2009/1866 on 24 August 2011 for a new service station, roadworks, shop, signage and subdivision on the subject land and land to the west (Lot 11 DP 1074802). That development consent was subsequently surrendered. Development consent DA 2011/2092 granted on 16 November 2011 approved a new commercial retail building (supermarket), demolition of existing buildings and signage on the subject land together with Lot 11 and part of Lot 12 DP 1074802. While separate developments, the proposed development incorporates vehicle access from the approved supermarket site to the proposed service station. The proposed development includes four car parking spaces in the adjacent supermarket development. 4On 29 June 2012 the Council refused consent to the development application the subject of these proceedings. The applicant requested a review under s 82A of the Act, and on 18 July 2012 the Council affirmed its previous decision to refuse consent. The applicant lodged its appeal under s 97 of the Act on 12 September 2012. 5The parties have reached agreement as to the conditions on which the development can be approved, and are seeking consent orders from the Court. For the reasons below, I am satisfied that it is lawful and appropriate to grant consent subject to the proposed conditions. Evidence 6The Council's evidence included (exhibit 1, tabs 5-19, 25-35) copies of submissions made in response to notification of the development application, and to the s 82A review. Those objections raised concerns as to traffic, vehicle movements, pedestrian safety, noise and pollution, impact of illuminated signage, heavy vehicle movements, location of flammable fuels and hazardous substances, parking, streetscape, visual impact, anti social behaviour, impact on adjoining and nearby residential dwellings, flooding, and impact on existing service stations. 7In accordance with the Practice Note: Class 1 Development Appeals, on 15 October 2012 the Council notified the objectors that it proposed to enter into consent orders, upholding the appeal and granting consent subject to conditions. The Council provided the proposed conditions of consent, and advised the objectors of the date of the hearing, and of their right to make oral submissions either on the subject site or at their own premises. 8The hearing commenced on site, and the view included a view from the balcony of 122 Church Street (opposite the subject site), the location of the CWA rooms on the other side of Church Street, and 119 Church Street (two houses south of the proposed development). 9Seven objectors gave evidence on site: Mr James Fraser (owner of 122 Church Street), Mr Ralph Stuart (resident of 119 Church Street), Ms Heather Maggs (on behalf of her parents, Mr and Mrs Laurie, owners of 110 Church Street), Ms Penelope Charles (Treasurer of, and speaking on behalf of, the Gloucester Country Womens Association), Mr Ray Twomey, Ms Yvonne Reynolds (Vice President of, and representing, the Gloucester Chamber of Commerce), and Mr Trevor Mussared (owner of 112 Church Street). In accordance with the Court's practice in hearing resident evidence on site in Class 1 appeals, notes were taken and an agreed set of notes was in evidence (exhibit 5). Additional objector evidence was given in court by Mr David Collett (on behalf of the Garner Group of companies and the Garners), Mr Noel Munro, Mr James Dupree, and Mr Digby Dunn (on behalf of Mr Ray Fryer). An objection to further evidence being given by Mr Geoff Marshall, business consultant, on behalf of Mr Trevor Mussared was upheld. Additional written submissions were provided by Mr Munro, Ms Maggs, Mrs Laurie, the Gloucester CWA, and Mr Fraser, which form part of exhibit 5. 10The objector evidence given on site and in court raised concerns as to traffic, hours of operation, lighting, vehicle movements and sight lines along Church Street, vehicle access from driveways on Church Street, pedestrian safety, noise, light, view impacts, the need to consolidate the site with the approved supermarket site, fire hazard, flooding, impacts on existing service station businesses, viability of the commercial centre, whether sufficient information has been provided for a proper assessment of the application, and impact on streetscape. 11Expert evidence was provided on behalf of the applicant by Mr Tim Rogers on traffic issues, Ms Marian Higgins on planning issues, and Mr Andrew Francis on flooding issues. Mr Rogers, Ms Higgins and Mr Francis provided statements of evidence (exhibits B, C and D) and Mr Tim Rogers gave oral evidence in court. Planning controls 12The site is zoned B4 Mixed Use under the Gloucester Local Environmental Plan 2010 (the LEP), which came into force on 11 June 2010. On 5 August 2011 the LEP was amended to include "service stations" as development permissible with development consent in the B4 zone. 13The site is in the Flood Planning Area on the Flood Planning Map under the LEP (exhibit 3), and accordingly cl 6.1 of the LEP applies: 6.1 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to: (a) land that is shown as "Flood planning area" on the Flood Planning Map, and (b) other land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the NSW Government's Floodplain Development Manual published in 2005, unless it is otherwise defined in this clause. (5) In this clause: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard. Flood Planning Map means the Gloucester Local Environmental Plan 2010 Flood Planning Map. 14The Gloucester Development Control Plan 2010 (the DCP) applies to the site. Consideration 15The Council's reasons for refusal of the development application were as follows: Traffic: The traffic associated with the development (vehicle movements, congestion, tanker deliveries) will have an undesirable impact on the surrounding area; and Hazardous material: the hazardous material (fuel and LPG installations) associated with the development will be located in close proximity to residents; and Visual impact: the visual impact of the proposal will have a detrimental impact on the streetscape, is not of a sympathetic design or scale and will cause view loss; and Flooding: the effects of future flooding events will have an undesirable impact on the proposed development and adjoining property; and Inappropriate location: the proposed location is inappropriate, due to the close proximity of nearby residents; and Lighting/signage: the proposed lighting and signage will have an undesirable impact on the amenity of the area; and Noise: the noise associated with the development will have an undesirable impact on the amenity of the area. 16The applicant amended the proposed development as part of the s 82A review (exhibit 1, tab 22). The applicant proposed a condition limiting the hours of delivery trucks servicing the site to between 9 am and 3 pm weekdays; deleted the LPG facility; proposed restricting access to Church Street to left in and left out; proposed an acoustic fence along the southern boundary of the site with 117 Church Street; reduced the height of the proposed price sign from 6 m to 4.8 m; and provided drawings showing a 3D architectural perspective of the proposed service station. 17The evidence before the Court includes the Statement of Environmental Effects provided with the development application, including Appendix B Traffic Report and Appendix C Risk Assessment Report (exhibit 1, tabs 2, 3); the assessment undertaken by Council staff in the Director of Planning and Development Report prepared for the Council meeting of 27 June 2012 (exhibit 1, tab 20); the s 82A review application including Appendix A Response by Colston Budd Hunt & Kafes Pty Ltd (traffic), Appendix B Amended Architectural drawings, and Appendix E Lighting Statement (exhibit 1, tab 22); the report prepared as part of the s82A Review by the Council's Environmental Planner (exhibit 1, tab 36); and the statements of evidence prepared by Mr Rogers, Ms Higgins and Mr Francis for the purposes of the consent orders hearing (exhibits B, C and D). 18Consideration of that evidence as it addresses each of the matters identified by the Council as reasons for refusal is as follows. 19First, in relation to traffic, Mr Rogers' statement of evidence (exhibit B) provides estimates of weekday afternoon peak hour traffic flows in Church Street including the approved shopping centre and proposed service station traffic, which indicated minor increases of one vehicle every three to four minutes, or an increase of 3 percent in total traffic flows on Church Street. Mr Rogers stated that the proposed service station would generate up to 2 or 3 tanker deliveries per week. Mr Rogers noted that the sight lines measured along Church Street are at least 70 m from the southern boundary and at least 100m from the exit driveway, which exceed the minimum/desirable sight distance of 45/69 m for a 50 km/hr speed environment in the Australian Standard for Parking Facilities - Part 1: Off-street car parking (AS2890.1-2004). On the site view Mr Rogers indicated the location of the three pedestrian refuges in Church Street and Hume Street required as a condition of the supermarket consent. The Council's Director of Planning and Development Report recommended construction of a median across the frontage to prevent right turn movements in and out of the service station. In oral evidence Mr Rogers indicated the proposed location of the median, which would not interfere with access to 114 Church Street. Condition 47 requires construction of a median strip 200 mm high before occupation of the development. 20In relation to hazardous material, the Council's Director of Planning and Development Report noted that the proposed development had been assessed in accordance with State Environmental Planning Policy 33 - Hazardous and Offensive Development (Statement of Environmental Effects, Appendix C, exhibit 1, tab 20), which confirmed that the proposed development meets the required setback distances to residential buildings. The applicant has deleted the proposed LPG storage. 21The Council's Director of Planning and Development Report noted that the visual impact of the proposed development was satisfactory. Ms Higgins' statement of evidence (exhibit C) noted that the parapet edge/blade of the canopy is some 750 mm and is proposed to be 4.5 m above ground which is equivalent in height to a single storey residential building with pitched roof design. It was apparent on the view that the proposed development would not interfere with views from 122 Church Street, which is directly opposite the proposed development. 22In relation to flooding, the Council's Director of Planning and Development Report noted that the flood modelling predicted little or no increase in flood levels or velocity, and recommended that subject to some conditions, flooding presents no impediment to the proposed development. Mr Andrew Francis' statement of evidence (exhibit D) addressed the flood hazard issue. Mr Francis noted that the requirement to consider the level of flood arises under cl 6.1(3) of the LEP, and the definition of "hazard" in the NSW Government's Floodplain Development Manual (2005) (incorporated under cl 6.1(4) of the LEP) requires assessment of the velocity and depth of flood levels. Mr Francis relied upon the velocity and depth levels from the Flooding Assessment Report (June 2010) provided in support of DA 2009/1866 (the Paterson Report) and assessed the flood risk as low hazard. In Mr Francis' opinion the proposed development will improve the flood situation as three houses and garages are removed, total area of 436 sq m, and replaced with one building with an area of 80 sq m. The existing footprint of the houses translates to a bigger blockage in the flood profile and higher flood level. Mr Francis' evidence was that the proposed development will reduce the flood affectation to other developments and properties around, and incorporates flood mitigation measures of floodgates to protect the building up to 1 % flood level, all electrical equipment above 1 % level, a Flood Emergency Management Plan and Flood Evacuation Plan, and has no habitable building with only one employee. Mr Francis' evidence was not challenged. 23Ms Higgins' statement of evidence (exhibit C) addressed the issue of whether the location is inappropriate for the development. Ms Higgins noted that the development is permissible in the B4 zone; the proposed development does not involve car servicing or workshop activities; and is consistent with the uses intended to be permitted in the B4 Mixed Use zone and consistent with the objectives of the B4 Mixed Use zone. 24The Council's Director of Planning and Development Report recommended that the hours of operation be reduced from the 24 hour operation originally proposed and that lighting be switched off outside the hours of operation. The hours of operation now proposed are 6 am-10 pm Monday to Saturday, and 7 am-10 pm Sundays and public holidays. The evidence before the Court includes advice from Monaghan Electrical Pty Ltd (5 July 2012) (exhibit 1, p227) stating that the proposed lighting associated with the canopy and hardstand areas is designed to comply with Australian Standard AS4282-1997 "Control of the Obtrusive Effects of Outdoor Lighting" and the principles and guidelines of the Public Lighting Standard "Lighting for Roads and Public Spaces" AS/NZS1158.3.1, and that the lighting design gives cutoff levels within the site boundaries so as not to cause disturbance to local residents or traffic movement. 25In relation to noise, the recommendations in the Council's Director of Planning and Development Report requiring limiting of hours of operation and deliveries, construction of a masonry wall in the vicinity of the tyre inflation machine, and the imposition of a condition providing that noise from the service station not exceed 5dBA above background noise when measured inside dwellings in the vicinity of the service station, were adopted by the applicant as part of the s82A review. 26On the evidence before me, I am satisfied that the proposed development has been assessed by the Council in its assessment report in accordance with the provisions of the LEP, in particular cl 6.1, and the provisions of the DCP, in particular sections 4.4 (Subdivision of Land), 4.6 (Building line setbacks), 4.8 (General Car Parking Guidelines), 4.9 (Setback distances to residential developments), and 4.10 (Floodplain Management Guidelines). I am satisfied that the specific matters raised by the Council in its initial refusal of the application have been addressed in the amendments made to the proposed development and the additional expert evidence provided by the applicant. 27Proposed conditions 1, 2, 3, 4, 5, 9, 15, 16, 189, 20, 27, 28, 29, 49, 54, 57 and 58 address construction traffic and operational traffic issues; proposed conditions 1, 14, 27, 30, 42, 50, 51 and 52 address the management of hazardous materials when the service station is operational; proposed condition 1, requiring construction of the service station in accordance with the amended plans addresses the visual impact issue; proposed conditions 1, 8, 9, 10, 11, 12, 13, 23, 27, 31, 38, 40, 41 and 48 address management of the impacts of flooding during the construction and operational phases; proposed conditions 1 to 60 address potential impacts during the construction phase and management of impacts of the service station when operational so as to maintain a reasonable level of amenity in the context where the proposed use as a service station is a permissible use in the zone and location, including in relation to potential noise impacts; proposed conditions 1, 15, 27, 55, 56 and 57 address potential impacts of lighting including a condition that lighting is not displayed outside the hours of operation; and condition 24 requires construction of a 1.8m high acoustic fence along the southern boundary. 28Some of the additional matters raised in objections relate more directly to the Council's decision to zone the site B4 Mixed Use under the LEP, the decision to include "service stations" as a use permissible with development consent, and the decision to grant consent to DA 2011/2092 for the proposed supermarket, matters which are not relevant in the assessment of the development application the subject of these proceedings. Conclusion 29I am satisfied that the relevant statutory provisions have been complied with, and that the objections to the proposed development have been properly taken into account. The amendments to the proposed development, in particular in relation to hours of operation, height, lighting and signage, and vehicle access, together with the conditions proposed, address many of the concerns raised by residents. The additional expert evidence provided on behalf of the applicant supports the assessment undertaken by Council officers in favour of granting consent. I am satisfied that, having regard to the circumstances including the proposed conditions, it is lawful and appropriate to grant the consent subject to the conditions. 30The orders of the Court are, by consent: 1. The appeal is upheld. 2.Development application DA 2012/2134 for the construction of a service station and associated signage at 111-115 Church Street Gloucester is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for pages 212-226 of exhibit 1. Linda Pearson 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: 22 November 2012