Land and Environment Court New South Wales Medium Neutral Citation: 1. Cooper v Wingecarribee Shire Council; 2. Woolworths Limited v Wingecarribee Shire Council [2016] NSWLEC 1192 Hearing dates: 17 May 2016 Date of orders: 26 May 2016 Decision date: 26 May 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeals upheld Catchwords: DEVELOPMENT APPLICATIONS: traffic and access, signage, building appearance Legislation Cited: Wingecarribee Local Environmental Plan 2010; State Environmental Planning Policy No 33 – Hazardous and Offensive Development; State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy No 64 – Signage; State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011; State Environmental Planning Policy (Infrastructure) 2007 Texts Cited: 17 Mittagong Town Plan Category: Principal judgment Parties: 1. Brett Cooper (Applicant) 2. Woolworths Limited (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: Mr I Hemmings (Applicants) Solicitors: Solari & Stock (Applicants) Mr C McFadzean Swaab Attorneys (Respondent) File Number(s): 1. 2016/159648 (formerly 11118 of 2015)2. 2016/159703 (formerly 11207 of 2015) Judgment 1. These are two appeals relating to two adjoining parcels of land that propose development of a KFC restaurant (Matter No 2016/159648) on one lot (Lot 2) and a service station (Matter No 2016/159703) on the other (Lot 1) sharing a common access road to be constructed between the two lots. As the contentions in the cases are similar the parties elected to have the matters heard concurrently with evidence in one, evidence in the other as appropriate. The site and its context 1. The sites comprise Lots 1 and 2 in DP 1187383 known as 96 and 98 Bowral Road, Mittagong and are located on the southern side of Bowral Road opposite its intersection with Dalton Street/Sedgman Avenue. 2. Lot 1 is the eastern lot and has a frontage of approximately 47m, rear boundary of around 38m, depth of approximately 44m and site area of 1,882sqm. 3. Lot 2 has a frontage of 54.36m which fans out to a rear boundary of 59.95m and depth of 44.34m resulting in a site area of 2,556sqm. 4. The two lots currently contain buildings, materials and display items associated with businesses that sell building and landscape materials. There is a stand of trees approximately 10-15m tall in the south western corner of Lot 2. 5. The sites are approximately 1km west of the intersection of Bowral Road with the Old Hume Highway at the centre of the Mittagong town centre. It forms part of a group of 8 allotments on the southern side of Bowral Road that are zoned B7 Business Park. One of those lots is to the immediate east and contains the Kennard Hire business with 2 lots to the west also used for the supply of building materials, sheds and the like. There are three lots behind the lots which front Bowral Road that are vacant and currently have no legal access to Bowral Road. The Main Southern Railway line forms the southern boundary of those lots which are vacant apart from some vegetation. 6. Surrounding land uses include: * Low density housing and a Caltex service station on the northern side of Bowral Road and further beyond; * Kennards Hire to the east on the southern side of Bowral Road; * Vacant land and the Main Southern Rail Line to the south; * Ranbuild Sheds to the west on the southern side of Bowral Road; * Industrial premises along Cavendish Street, commencing some 350m to the west of the site. Background and the proposal Matter No 2016/159648 1. This development application relates to Lot 2 and proposes: * Demolition of existing buildings. * Construction and fit out of a building for use as a KFC restaurant. The building comprises a commercial kitchen, servery, waste disposal area, toilet facilities, 54 internal and 16 external seats, cool rooms, drive through window and a manager's office. * Parking for 23 cars inclusive of one accessible space. * A vehicular drive through for food orders and pick up inclusive of two wet weather covers at the drive through order points. * Construction of access road from Bowral Road to be shared with a proposed service station on Lot 1. The access road is to remain in private ownership and will not be dedicated to the council. The access road is located primarily on Lot 2 but extends approximately 2m into the adjoining lot to the east (Lot 1). * Road works within Bowral Road to widen the road surface, to permit a right turn lane into the shared access road and to construct a footpath. * Construction of retaining walls to the southern and western boundaries with heights of up to approximately 2.4m. * Landscaping. * Signage including an illuminated pylon with a height of 5.1m and width of 1.4m along the road frontage. The sign contains the text "KFC", "Drive Thru" and "krush bar" and includes an image of Colonel Sanders; two illuminated signs with dimensions of 2.4m x 2.4m on the northern and eastern elevations depicting an impact of Colonel Sanders; two illuminated signs with dimensions of 0.9m x 2.1m on the northern and eastern elevations containing the white letters "KFC"; an illuminated sign with dimensions of 0.4m x 1.56m on the eastern elevation reading "krush bar"; seven entry, exit no entry and drive thru directional signs each containing an impact of Colonel Sanders and each having dimensions of 0.84m z 1.8m; two menu board signs at the drive through, each having dimensions of 1.96m x 1.98m. * Stormwater infrastructure including 10,000l rainwater tank, 31m# detention tank, underground piping and collection pits with final discharge to Bowral Road. 1. The proposed hours of operation are 10.00am to 10.00pm on Monday to Thursday, 10.00am to 11.00pm on Friday and Saturday and 11.00am to 9.00pm on Sunday and public holidays. Matter No 2016/159703 1. This development application applies to Lot 1 and proposes: * Demolition of existing buildings. * Construction of a service station with: paypoint building with ancillary retail selling or hiring of general merchandise; four double sided fuel bowsers and two LPG bowsers; a 6m high awning/canopy covering the bowsers with a connection to the paypoint building; three underground fuel storage tanks and one underground LPG storage tank; onsite detention tank and puraceptor for water quality purposes; storage areas for water, firewood, ice and LPG cylinder exchange; ancillary rainwater tanks and air conditioner units. * Signage including: a 5.1m high pylon sign 1.6m wide along the road frontage containing text relating to Caltex, Woolworths, the Woolworth's logo, fuel discount offers, e-pump and ATM facilities and a price board with illuminated figures for various fuel types; an illuminated sign with dimensions of 4.86m x 1m above the entry to the paypoint building reading "Woolworths" and including logo; an illuminated awning fascia sign with 3.86m long and 0.75m high Caltex star logo and text; non illuminated dispenser column signs sitting above the bowsers with dimensions of 1.53m x 0.75m containing details as to the type of fuel; five directional signs each 0.55m z 1.125m on a low mounted pole. * Parking for six cars inclusive of an accessible parking space and space adjacent to air and water hoses. * Removal of the existing driveway crossover and provision of a new crossover. Vehicles exit the site via the south-western, rear corner by accessing the shared access road described above. * Roadworks within Bowral Road to widen the road surface to permit a right turn lane into the shared access road and footpath construction. * Construction of retaining walls to the eastern and southern boundaries and along the shared access road; * Landscaping. 1. The proposed hours of operation are 24 hours a day, seven days per week with late night trading undertaken via a night trade window. No mechanical repairs are proposed to be undertaken at the premises. 2. The council considered both applications in parallel and deferred its determination on two occasions. The applicants have appealed the deemed refusal of both applications. The planning controls 1. The sites are zoned B7 Business Park under the provisions of Wingecarribee Local Environmental Plan 2010 (LEP). Food and drink premises and Service stations are permissible with consent in that zone. 2. Clause 2(3) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B7 zone are: • To provide a range of office and light industrial uses. • To encourage employment opportunities. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. • To ensure that new development has regard to the character and amenity of adjacent and nearby residential areas. 1. Part 4 of the LEP provides Principal development standard with clause 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the proposals. Both applications comply with the 10m maximum building height and 1.1:1 maximum FSR. 2. Consent is required under clause 7.3 as cut of more than 800mm is required. Clause 7.3(3) stipulates matters for consideration, none of which relate to contentions in the proceedings. 3. Mittagong Town Plan is the relevant Development Control Plan (DCP) that applies to the sites. Its objectives are listed in Section A2.2 and those relevant to the applications and contentions in the cases are: 2.2.2 Urban Function (a) Improvement of traffic and parking management within the town and (b) Minimisation of vehicular and pedestrian conflicts. 4. The other relevant provisions are listed in the council's Statement of Facts and Contentions filed on 15 January 2016 which I adopt. 5. Relevant environmental planning instruments are State Environmental Planning Policy No 33 – Hazardous and Offensive Development (SEPP33); State Environmental Planning Policy No 55 – Remediation of Land (SEPP55); State Environmental Planning Policy No 64 – Signage (SEPP64); State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 and State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) however there are no contentions that relate to any other than SEPP Infrastructure. 6. In accordance with clause 104 of SEPP Infrastructure, the applications have been referred by the council to Roads and Maritime Services (RMS) which duly provided comments and conditions for the application. Clause 101 is in the following form: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. The issues 1. The contentions in the cases are similar with the first 6 being common to both matters. Those contentions are summarised as insufficient information in relation to road widening, survey levels, retaining walls, landscaping and traffic modelling and concerns that relate to the proposed Bowral Road Access/Orderly development. 2. In matter No 2016/159648 a further 3 contentions were identified, all of which were capable of resolution through conditions of consent. These were signage, lighting and colours of materials and finishes. 3. As the majority of contentions related to lack of information, the applicants' experts prepared additional information, details and plans. Those documents were considered by experts engaged in relation to the hearing and, subject to further clarification of matters and agreed conditions of consent, resolved all of the contentions in the case. The evidence 1. The hearing commenced on site with evidence heard from two objectors to the proposal. The matters raised are summarised as follows: * Traffic, safety and access concerns; * Building design not in keeping with the character of the locality; * Development will remove trees which will adversely affect views from nearby park and ridgeline; * Fast food outlets contribute to obesity and subsequent health issues passed onto taxpayers; * Loss of property values; * Unneeded as there are already Caltex and KFC in Mittagong; * Behavioural/social issues, noise, odours, rubbish being left around the site placing burden on council to collect and attracting vermin. 1. Expert traffic and engineering evidence was provided by Mr C McLaren for the applicant and Dr D Martens for the council. Mr McLaren had prepared a series of plans that provided for the common access way and road widening across the frontages of the site to facilitate a deceleration lane adjacent to Lot 1 to facilitate access to the service station and access way for use by vehicles travelling west and a right-turn bay into the access way for use by vehicles travelling east along Bowral Road. The plans also detail proposed traffic management devices. Dr Martens assessed traffic modelling undertaken and found it to be satisfactory. 2. These experts were not required for cross examination. 3. As Bowral Road is a classified road, RMS concurrence to the design was required and has been provided. Exhibit 5 contains the series of correspondence between the council and RMS. It is noted that RMS did not require the right turning movements between Bowral Road and Sedgman Avenue to be restricted as part of the development however if the council found this was appropriate, it provided details of how that would be controlled. 4. Dr Martens considered the restriction was appropriate and the council agreed to restrict movements at the intersection. The effect of the council's decision is to restrict vehicle movements from Bowral Road to Sedgman Avenue and Dalton Street to left in/left out only whereby currently unrestricted access is available in all directions. 5. It is the evidence of the traffic experts that the additional information provided resolve all of the contentions that relate to their areas of expertise. 6. Town planning evidence was provided by Mr B Black for the application and Ms E Varga for the council. They also agreed that the additional information provided resolved those contentions that related to town planning. 7. In view of the expert evidence, the council did not oppose the grant of consent to either application subject to agreed conditions of consent. Those conditions include the RMS requirements, a Plan of Management (POM) that would regulate the use of the KFC premises and specifically address any behavioural issues, maintenance and rubbish control, issues of concern to the objectors. Conclusion and findings 1. Having regard to the evidence, there are no reasons why consent should not be granted however, as required under s79C(1)(d), I must also have regard to the submissions received by the council in response to its notification of the applications. As I am satisfied, based on the evidence of the experts, that the proposed traffic, access and roadworks are appropriate, those concerns are resolved. 2. The amended plans provide for more subtle colours in the KFC building and those colours have been found to be appropriate by the council and included as conditions of consent. The council agrees that the POM will address any potential social issues that may arise from the KFC premises and that whilst some trees are to be removed, Mr McFadzean for the council advises the proposed landscape plan satisfactorily compensates for the tree removal. 3. Whilst I acknowledge the comments made by the objector in relation to her concerns regarding health and fast food, the council does not include this as a contention in its case and I do not consider that it would be a reason to refuse consent. 4. The issues of rubbish, noise etc can be addressed through the POM and odour has been assessed by the council and found satisfactory with conditions requiring compliance with the odour report. There is no evidence that the developments would affect property values and the fact that there are already similar establishments in Mittagong is not a reason to refuse consent. 5. As the council is now satisfied as to the form of the proposed developments and the timing of works to ensure appropriate access would be provided to the adjacent "land-locked" allotments, there are no reasons, based on the evidence before me, why consent should not be granted. 6. The Orders of the Court are: In matter No 2016/159648: 1. The appeal is upheld. 2. Development Application No 15/0284 for demolition of existing structures and the construction of a KFC restaurant and ancillary works including parking, drive through, signage and landscaping at Lot 2 DP 1187383 - 98 Bowral Road, is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits C, D and 1, are returned. In matter No 2016/159703 1. The appeal is upheld. 2. Development Application No 15/0434 for demolition of existing structures and the construction of a service station and ancillary works including parking, signage and landscaping at Lot 1 DP 1187383 - 96 Bowral Road, is approved subject to the conditions in Annexure B. 3. The exhibits, other than exhibits E and 2, are returned. _____________________ Sue Morris Commissioner of the Court 11118 of 2015 Morris (C) (485 KB, pdf) 11118 of 2015 Morris_plans (4.17 MB, pdf) ********** 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: 26 May 2016