Land and Environment Court New South Wales Medium Neutral Citation: Dan Properties Pty Ltd v Sutherland Shire Council [2014] NSWLEC 1276 Hearing dates: 5 August 2014 Date of orders: 05 August 2014 Decision date: 05 August 2014 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The appeal is upheld. (2) Development application DA 13/0646 for the construction of additional retail floor space and a new car park entry off Bates Drive is determined by the granting of development consent, subject to the conditions in Annexure A, dated 5 August 2014. Catchwords: DEVELOPMENT APPEAL – consent orders - alterations and additions to existing local shopping centre - new drive way entry – slip lane – pedestrian safety – amenity impacts generated by the construction works – community land to be retained and maintained Legislation Cited: Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006 Category: Principal judgment Parties: Dan Properties Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr A Cornish (solicitor) (Applicant) Ms J Amy (solicitor) (Respondent) Solicitors: Harris & Company, Solicitors (Applicant) Janelle Amy, In –House Counsel Sutherland Shire Council (Respondent) File Number(s): 10005 of 2014 Ex tempore Judgment 1. On 5 December 2014 the Sutherland Shire Council determined to refuse its consent to a development application lodged by the applicant, Dan Properties Pty Limited, for the construction of additional commercial/ retail space, a childcare centre and a new car park entry at the Kareela Shopping Centre. 2. In response to the Council's decision the applicant filed this appeal to the Court under s97 of the Environmental Planning and Assessment Act 1979 (the Act). It also amended its plans and supplemented its application with additional planning and traffic reports and landscaping detail. The amended proposal is set out in the plans (Exhibit A). 3. As the Council is now satisfied with the amended proposal it joins with the applicant in requesting the Court to make orders approving the development in accordance with the draft consent orders. 4. Notwithstanding the agreed position of the parties, I am required to be satisfied that it is appropriate to make the orders requested by them. In considering the consent orders, the Court's Practice Note Class 1 Development Appeals provides that I must consider any submissions made by an objector to the consent orders. The Council has notified the proposed orders, including the proposed conditions of consent to any persons who had objected to the proposal by letter dated 23 July 2014, (Exhibit 2). 5. The Councils Statement of Facts and Contentions dated 9 April sets out the background facts, statutory controls and the issues in respect of amended plans lodged with the Council on 13 February 2014. I do not propose to repeat that detail save to note, the development relates to a shopping centre site located at the entry of the suburb of Kareela in the Sutherland Shire. The site is on a peninsula and the address is 1-13 Freya Street Kareela (the Site). Relevantly, the site also has frontages to Bates Drive and Siandra Drive and, the proposal includes the construction of a new car park entry from Bates Drive. 6. Several objectors, who had earlier lodged written submissions with the Council opposing the original application, attended the hearing to express their concerns with the amended design. Of particular concern to some of them was the safety of pedestrians walking along Freya Street to access the bus stop in that location and the postal box. They are required to cross the carpark driveways. In response to this concern the applicant has agreed to the imposition of condition 18 on the consent. It requires the commission of a Level 3 Road Safety Auditor to undertake a stage 5 Audit (based on the existing conditions) 6 months after completion of the development. The audit in respect of the Freya Street site frontage is to have particular regard to pedestrian movements, bus stop locations, driveways and the postal box. The audit shall be submitted to Council for consideration by itsTraffic Committee and make recommendation for appropriate action for example; to move the bus stop or postal box to enhance pedestrian safety. 7. The objectors also expressed concern about the future of their community land known as 14 Siandra Drive, Kareela. However, the applicant and the Council reassured them that the resolution of this matter by consent orders was dependent upon the community land remaining as public land. It was also agreed and conveyed to the local objectors that during construction of the slip lane on Bates Drive, the community land will be fenced so that no debris and /or construction materials can be stored, located or placed on the community land (condition 12A). 8. In order to ensure the restoration and vegetation of the land adjoining the Bates Drive entrance the proposed conditions of consent in respect of the slip lane require on-going maintenance (conditions 11 and 12). Furthermore, the regeneration works approved under the Vegetation Management Plan (VMP) must be implemented /commenced under the supervision of an appropriately qualified and experienced Bush Regenerator during the construction phase of the development (condition 11B). 9. The consent contains conditions which control the hours of the shopping centre and the building works. It restricts building and demolition works to particular times and provides for no work after 3pm Saturday or on Sunday or public holidays. Noise controls that seek to minimise the noise generated from equipment and plant are also incorporated into the conditions of consent. 10. While I appreciate that construction works are disruptive to any person living proximate to the work site I am satisfied on the evidence that the conditions imposed on the consent satisfactorily address the amenity issues raised by the objectors. The erection of an acoustic wall on the site, as suggested by some of the objectors, is simply not supported by the evidence. The uncontradicted evidence of the applicant's acoustic expert, Pacific Environment Ltd (Exhibit B) is that all appropriate acoustic measures have been incorporated into the consent and that no further acoustic measure is required. 11. This view is supported by the parties' traffic experts (Mr Pindar for the applicant and Mr McLaren for the Council) who believe that the development will generate 64 additional trips, including 32 movements from Bates Drive and, that traffic noise will not be increased in the event of an approval of this application. The extra traffic generated by the proposal is very low, at 1.8 per cent of the hourly peak. In fact, the traffic experts agree that the development will have a positive effect on the existing traffic. I have considered the Statement of Environmental Effects prepared by Ingham Planning (exhibit C), the acoustic assessment report by Pacific Environment Limited (exhibit B) and the residents' written and oral objections and decided to accept the recommendations of the experts that have been incorporated into the proposed conditions of consent. After a consideration of the council's planning report in Exhibit 4 and the proposed consent orders, together with the conditions, agreed to by the applicant, formulated with consultation with the council, I am satisfied that the development is acceptable on its merits after an assessment under section 79(c) of the Environmental Planning and Assessment Act. 12. Accordingly, I make the following orders by consent. 1. The appeal is upheld. 2. Development application DA 13/0646 for the construction of additional retail floor space and a new car park entry off bates drive is determined by the granting of development consent, subject to the conditions in Annexure A, dated 5 August 2014, being in a consent orders, signed by representatives of the applicant and the respondent that have been tendered to the Court. Susan Dixon Commissioner of the Court ********** Amendments 19 August 2015 - Typographical changes 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: 19 August 2015