Land and Environment Court New South Wales Medium Neutral Citation: Tazcol Pty Ltd v The Hills Shire Council [2017] NSWLEC 1299 Hearing dates: 27,28 April 2017 Date of orders: 14 June 2017 Decision date: 14 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No. 182/2017/HA for the staged redevelopment of an existing shopping centre at 930 Old Northern Road and 4 Post Office Road, Glenorie is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B. Catchwords: DEVELOPMENT APPLICATION: staged redevelopment of an existing shopping centre – excessive height, built form and scale and unacceptable impact on character – inadequate setbacks - poorly located and designed loading dock – resident concerns Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 The Hills Local Environmental Plan 2012 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Tazcol Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Ms J Reid, barrister (Applicant) Mr A Seton, solicitor (Respondent) Solicitors Swaab Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2016/382279 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 182/2017/HA for the staged redevelopment of an existing shopping centre at 930 Old Northern Road and 4 Post Office Road, Glenorie (the site). The staging provides for: Stage 1: retention of the existing commercial buildings, partial demolition of existing buildings and construction of an at grade parking area over part basement parking. Stage 2: retention of the existing commercial buildings, construction of two storeys of residential accommodation containing 20 apartments (3x 1 bedroom, 17x 2 bedroom) above ground floor retail commercial floor space, construction of remainder of 2 levels of basement car parking with a total of 165 car parking spaces provided within the basement and at grade and construction of additional commercial space on the ground floor. Stage 3: redevelopment of the commercial premises fronting Old Northern Road (retention of the existing commercial building located at the corner of Old Northern Road and Post Office Road), common open space constructed on roof top of commercial building, erection of a fitness centre on the first floor of the development and construction of 8 additional at grade spaces. 1. The council maintains that the proposed development should be refused because: 1. the height is excessive and inconsistent with the desired future character of Glenorie, 2. the built form and scale is excessive, 3. the setbacks are inadequate, 4. the proposed loading dock is poorly located and designed, 5. inadequate information has been provided to assess the impact on trees and stormwater disposal, 6. unacceptable acoustic impacts, and 7. inadequate parking is provided during construction. 1. Prior to the hearing the applicant provided additional information that addressed the contentions relating to impact on trees, stormwater disposal, acoustic impacts and parking during construction. 2. A number of residents provided evidence on the site inspection and supported the objections raised by the council, as well as the other following concerns: 1. bushfire threat, 2. increased traffic, 3. additional demand on existing sewage infrastructure, 4. loss of privacy, and 5. overshadowing. 1. One resident provided support for the proposal on the basis that the proposed development will provide a source of accommodation when people wish to stay in the Glenorie area but the current housing stock does not provide suitable accommodation. The site 1. The site consists of Lot 1 in DP 706726 and Lot 6 in DP 20881. It is generally triangular in shape with a north-eastern frontage to Old Northern Road of approximately 80 m, a western frontage to Post Office Road of approximately 160 m and a stepped side boundary to the east of approximately 140 m. The site has a total area of 6,393sqm. 2. Currently occupying the site at 930 Old Northern Road is an existing shopping centre with at grade car parking and 4 Post Office Road contains a residential dwelling. 3. The site is located within the Glenorie Village and adjoining the site to the east at 926 Old Northern Road is small scale commercial building with at grade car parking within the front setback currently occupied by Glenorie pharmacy. Further to the east and adjoining 4 Post Office Road are one and two storey residential dwelling houses fronting Old Northern Road and Casuarina Avenue. Opposite the site to the west of Post Office Road are dwelling houses and a Woolworths shopping centre at the corner of Post Office Road and Old Northern Road. To the north of the site on the opposite side of Old Northern Road are one and two storey residential dwelling houses. 4. Land on the north eastern side of Old Northern Road falls within the Hornsby local government area (LGA) and land on the south western side of Old Northern Road falls within The Hills LGA. Relevant planning controls 1. The site is located within the B1 Neighbourhood Centre Zone under The Hills Local Environmental Plan 2012 (LEP 2012). Development for the purpose of 'shop top housing' is permitted with consent in the B1 Zone. Clause 2.2(3) provides that the Court must have regard to the objectives of the zone when determining a development application. The zone objectives are: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To ensure the scale and type of development is compatible with the character and amenity of a neighbourhood centre. • To allow for residential development that contributes to the economic and social vitality of the neighbourhood centre and does not detract from the primary objective of the zone. • To promote commercial activities in locations that encourage walking and cycling to and from the neighbourhood centre. 1. Clause 4.3(2) states that "the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The height shown on the map is 9m. 2. In December 2015, the council resolved to prepare a Planning Proposal to include new provisions within LEP 2012 to limit the height and the amount of non-residential floor area of shop top housing and mixed use development in the B1 Neighbourhood Centre Zone. 3. Clause 4.4(2) states that "the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map" .The floor space ratio shown on the map is 1:1 and the proposal complies with an FSR of 0.88:1. 4. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)). 5. The Hills Development Control Plan 2012 (DCP 2012) applies to the site, particularly Part A – Introduction, Part B - Land Use Zones (Section 2: Residential, Section 6: Business) and Part C - General Development. Height The evidence 1. Expert town planning evidence was provided by Mr Paul Grech, for the applicant and Mr Robert Buckham for the council. Mr Grech and Mr Buckham agree that the proposed development satisfies the 9m height development standard in cl 4.3(2). Where Mr Grech and Mr Buckham disagree is the weight that should be given to a Planning Proposal that seeks to reduce the height in the B1 zone to 7m. The effect of affording the Planning Proposal considerable determinative weight, according to Mr Buckham, is that the building will breach the 7m height standard and have an unacceptable impact on the desired future character of the area. Conversely, Mr Grech states that the Planning Proposal should not be given significant weight. He states that the proposal easily satisfies the 9m standard and that the proposal is consistent with the desired future character of the area. Status of the Planning Proposal 1. Mr Grech and Mr Buckham agree on the following chronology for the Planning Proposal: 15 December 2015 - the council resolved to prepare a Planning Proposal to include new provisions within LEP 2012 to limit the height of shop top housing and mixed use development and limit the amount of non-residential floor area in the B1 Neighbourhood Centre Zone 29 January 2016 - the Planning Proposal was forwarded to the Department of Planning and Environment (DPE) for Gateway Determination that sought: Include a new provision, 7.11 'Additional controls for shop top housing' under Part 7Additional Local Provisions providing that the maximum height of buildings for shop top housing within the Bl Neighbourhood Centre zone is 7 metres and that a development application shall not result in less than 50% of the total floor area on the subject land comprising non-residential floor area. 12 June 2016 - the Department of Planning and Environment (DPE) approved the Planning Proposal subject to conditions. The Planning Proposal (as modified) was publically notified by the council from 10 October 2016 until 11 November 2016. 3 November 2016 - the council received a submission from the applicant requesting that the Planning Proposal be amended to include a savings provision to enable the council to undertake a determination of DA 182/2017/HA pursuant to the planning controls applicable at the time that DA 182/2017/HA was lodged with the council. 13 December 2016 – the council resolved, in part, the proposal to amend LEP 2012 "in relation to shop top housing and mixed use developments, including post-exhibition amendments, progress to finalisation". 1. After the matter was sent to the DPE for finalisation, the evidence of Mr Grech and Mr Buckham diverged. Mr Buckham states that the draft LEP amendments should be given considerable determinative weight, because the draft LEP is currently with the DPE for formalisation and is imminent and certain. Also, the draft amendments did not include a savings provision. Consequently, Mr Buckham considers that the proposed three storey flat roofed building is inconsistent with the existing and future character of Glenorie. In his opinion, the most appropriate location for the bulkier elements of the proposal, including the residential component, should be provided at the corner of Old Northern Road and Post Office Road adjacent to the B1 Neighbourhood Centre Zone. This would assist in reducing bulk adjacent to the existing single residential dwellings and reduce impacts on privacy and overlooking although privacy and overlooking were not raised as contentions by the council, although privacy and overlooking were not matters raised by the council in their contentions. 2. Mr Grech comes to the opposite conclusion. He states that the draft LEP cannot be considered either certain or imminent. On 15 March 2017, Mr Grech states that he submitted to the DPE that the draft LEP, be deferred, as far as it affects the Glenorie Village, until the outcome of the appeal is known. The reasons for seeking a deferral are: a reduced height limit of 7m would be illogical for a site within the commercial centre, given the height limit in the balance of the Glenorie Village in the R2 zone would retain a 9m height limit. the 7m height would be lower than the Woolworths development for which the approved plans showed a height of 8.69m and possibly exceeding 9m. While the draft LEP would permit commercial development to 9m, the recent Woolworths development sets a benchmark for the scale of buildings. the post exhibition Council officers report (13 December, 2016) endorsed the changes to the development standards applying to the site as part of a broader planning proposal in cognisance of the subject DA (p 81). Justification for the planning proposal appears to be twofold: insufficient infrastructure; and to control the scale and character of the centre (pp 74-75), the DA was lodged after the expansion of sewerage infrastructure in the Glenorie Village in 2016 and the site is located opposite bus stops that provide regular district services. No issues regarding infrastructure are raised in opposition to the DA by council staff, the current proposal complies fully with the height standard that has applied to the site since acquired and would be of a height commensurate to the recent Woolworths development but with buildings sized and designed more sympathetically to the Village Centre character. the Council officer's report (p 82) suggests that the rezoning process "takes some time" and therefore might not have a determinative effect on the DA, or if made the applicant will need "...to determine whether exceptions to the new standards are justified under clause 4.6 of the LEP, on 30 March 2017, a representative of the DPE rang Mr Grech to discuss his submission, and after discussing the options that might be taken with the draft LEP advised that these will be considered in the preparation of their Section 59 Report, but the DPE could not advise on the outcome, on 10 April 2017,Mr Grech spoke with another staff member of the DPE who provided an update on the status of the Planning Proposal, and on 11 April 2017, the Deputy Secretary of the DPE wrote to the applicant in these proceedings advising that "...consideration will be given to a savings provision or deferring the site from the amendment to retain the current planning controls that apply to the site" 1. On this basis, Mr Grech states that this recent advice confirms that the draft LEP, to the extent it affects the Glenorie Village, is neither certain or imminent, given that the DPE is to investigate options for proceeding; being deferral, the inclusion of a savings clause, or a combination of both. A Section 59 report would not be completed until after April 2017 for consideration by the Executive Director and/or Deputy Secretary and the outcome of this process cannot be pre-empted to provide any more definitive advice at this stage. Consideration of draft LEP 1. Section 79C(1)(a)(ii) provides: (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) . (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and 1. The Planning Proposal falls within the consideration in s 79C(1)(a)(ii), being publically notified by the council from 10 October 2016 until 11 November 2016, and as such is to be taken into consideration of the application. What weight should be attributed to the draft LEP? 1. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at [5]). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 1. The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, whether the proposal undermines the expressed future planning objectives for the area in the draft LEP. 2. After considering the evidence of Mr Buckham and Mr Grech, I am satisfied that the Planning Proposal could not be seen as imminent or certain, in relation to the Glenorie Village, for a number of reasons. In relation to imminency, and also certainty, the most recent evidence on the status of the draft LEP was provided in the letter from the DPE to the applicant on 11 April 2017 (Exhibit 7, Attach D). Relevantly, the letter stated: The Council has submitted the planning proposal with the Department for finalisation. I note your request to delay the decision on this proposal until the outcome of your appeal in NSW Land and Environment Court is known. As the planning proposal applies to various lots throughout the Hills Shire local government area, and given its broad impact, it would not be appropriate to delay the assessment of the finalisation of the plan. However, to address the circumstances that apply to your site, consideration will be given to a savings provision or deferring the site from the amendment to retain the current planning controls that apply to the site. The Department is assessing the proposal before it makes a final decision. Please be assured we will consider your concerns and request during this process. 1. I also note that the DPE, in their Gateway Determination of 12 May 2016, stated, at condition 6 that: The timeframe for completing the LEP is to be 9 months from the week following the Gateway Determination. 1. This timeframe for completion has extended by at least 3 months from the time specified in the Gateway Determination and this further supports the position of Mr Grech that the draft LEP, as far as it affects the Glenorie Village, is neither certain or imminent. At the time of writing the judgment, the options suggested by Mr Grech of the deferral of the Glenorie Village from the draft LEP, the inclusion of a savings clause, a combination of both or even the adoption of the council's adopted position all remain potential outcomes. 2. Does the proposal undermine the expressed future planning objectives for the area in the draft LEP? 3. The draft LEP provides two changes to the current controls. First there is a reduction in the maximum height from 9m to 7m and second, any development shall not result in less than 50% of the total floor area being non-residential floor area. The proposed development does not satisfy the former requirement but satisfies the latter requirement. 4. Even if the draft LEP was given more weight than I have found, I also agree with Mr Grech that the proposal will not undermine the expressed future planning objectives for the area in the draft LEP for the reasons he has specified, being: the height limit in the balance of the Glenorie Village in the R2 zone would retain a 9m height limit, the 7m height would be lower than the Woolworths development in the opposite B1 zone that has a height of 8.69m, the draft LEP would still permit commercial development to 9m on the site, and the current proposal complies fully with the height standard that has applied to site since acquired and would be of a height commensurate to the recent Woolworths development. The cl 4.6 written request 1. Mr Grech states that even though his position is that the draft LEP is not imminent and certain and that the 7m height development standard is the appropriate one for the assessment of the application, for abundant caution, he has prepared a cl 4.6 written request on the basis that the 9m development applied. Also for caution and in the event that the draft LEP is finalised in the manner sought by the council, I propose to address the cl 4.6 written request of Mr Grech. 2. The cl 4.6 written request identifies that the breach of the 7m maximum height standard occurs over only part of the proposed development (see Fig 1) and between a height of 1.89m and 200mm (see Fig 2). The written request identifies the objective of the height standard in cl 7.1 and addresses whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It concludes that compliance is not required for the following reasons: 3. the "Baulkham Hills Village Character Analysis Urban Design Guidelines" in 2003 contemplates development with a base height of 10m, with the possibility of exceedances of up to 14m in parts of the Village Centre, the site is approximately 6,000sqm which allows for a comprehensive integrated commercial development of most of the B1 zoned land east of Post Office Road and the internalising of impacts with the minimum lot size for the site is 600sqm, there are no amenity impacts such as overshadowing or overlooking, the buildings are substantially setback more than the required 6m from the southeastern corner where the site abuts residential development, the back of the proposed buildings near to these boundaries are cut into the site such that the height of the building is marginally above 7m and in elevation presents less than a full 3 storeys, the new building would occupy only a relatively small portion of the site frontage and is substantially separated from the opposite residential development, the proposed building would be compatible with the scale of buildings permitted in the R2 zone (9m maximum) which makes up most of the balance of the Glenorie Village or the surrounding rural land (10m maximum, the proposed building would be compatible with the scale of buildings existing or otherwise permitted in the B1 zone, the proposed variation does not facilitate an overdevelopment of the site. The proposed FSR is 0.88:1 while the permitted FSR is 1:1, the proposed variation does not facilitate a predominance of residential development that sacrifices commercial development opportunities, the proposed residential component represents 48% of the total proposed gross floor area, the development is consistent with the objectives of the B1 zone, and the proposal would be superior to an alternate development that sought to maximise the FSR and fill more of the potential building envelope, and consequently result in the removal of the corner component of existing development. 1. The cl 4.6 written request identifies that there sufficient environmental planning grounds to justify contravening the development standard because there is an absence of material impacts resulting from the building height non-compliance. The additional height above 7m would not contribute to any amenity impacts on adjoining properties, or be detrimental to the visual quality of the there is an absence of material impacts resulting from the building height non-compliance. 2. In relation to the public interest, the cl 4.6 written request states that the proposed development: facilitates a development that retains the recently constructed components of the existing development (the bakery and outdoor eating areas and associated shops) that provide an attractive contribution to the streetscape identity of the Glenorie Village, minimises the demolition of existing development providing a more sustainable outcome compared to a complete site redevelopment, provides for additional housing and housing choice in the rural areas of the LGA, provides additional housing to support the businesses in the Village Centre, and facilitates the further development of the site providing additional opportunities for a range of relatively small scale business and service uses consistent with the primary objective of the B1 zone and additional housing that would increase the social and economic activity of the centre in satisfaction of the third objective of the zone. 1. For these reasons, the cl 4.6 written request maintains that the variation to a 9m maximum height development standard can be supported. 2. With the benefit of the site inspection and an understanding of the proposed development, I agree with the conclusions in the cl 4.6 written request and accept the variation to the height can be supported. Character 1. The council maintains that the proposal is in conflict with Principle 2 in SEPP 65 which states: Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 1. The concern over character centred on the different positions adopted by Mr Grech and Mr Buckham on height. I did not understand Mr Buckham to raise any concern over scale and bulk but simply the proposed height unacceptably impacted on the future character of the area. Mr Grech disagreed with this conclusion. 2. The question of whether a proposed development is appropriate to the existing or desired future character of the street and surrounding buildings must generally be addressed through a comparison of similarly zoned sites and the controls that apply to that zone, as well as surrounding buildings. Any comparison with sites in another zone does not necessarily allow for a valid comparison in assessing character. 3. In this case, the other site in the B1 zone is on the opposite corner of Old Northern Road and Post Office Road and contains the recently constructed Woolworths development, with a height of around 8.9m. While character is made up of a range of different matters; height was the focal point in the disagreement between Mr Grech and Mr Buckham. 4. On this limited basis, I have little trouble in concluding that the proposed development is appropriate to the existing or desired future character of the street and surrounding buildings having a height between 7.2m and 8.89m. Even though the proposed development is located closer to the street than the Woolworths building, the proposed building is clearly a more articulated and interesting design that the Woolworths building. 5. The council also raised the non-compliance with the Post Office Road setback and this is addressed in the following paragraphs although it may also be said that this could also affect the question of character, particularly to Post Office Road. In terms of character, I am not troubled by the non-compliance as the 6m setback does not apply to the full Post Office Road frontage, but only that part that is opposite the R2 zoned land. That part of the Post Office Road frontage not opposite the R2 land may have a zero setback. 6. Mr Buckham's concerns that the proposed setback to Post Office Road is unacceptable because the residential buildings opposite the site are all single storey and a 6m landscaped setback would provide an appropriate transition from the B1 zoned land to the R2 zoned land is overstated, in my view. Mr Buckham's concerns would certainly be more relevant where the different zones directly adjoin. I note that no concerns were raised by the council to the relationship between the proposed development and the residential properties in Casuarina Drive, where the relationship is closer and potentially more sensitive. 7. For these reasons, I find that the proposed development "achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings". Setbacks The controls 1. Clause 2.5, Part B, Sec 6 of DCP 2012 provides requirements for setbacks for Business. The objectives are; (i) To provide an attractive streetscape and substantial areas for landscaping and screen planting. (ii) To ensure adequate sight distance is available for vehicles entering and leaving the site. (iv) To minimise overshadowing of adjoining properties. (iv) To protect privacy and amenity of any adjoining land uses. (v) To provide a desirable and aesthetically pleasing working environment. (vi) To ensure endangered ecological communities are protected. 1. The relevant Development Controls are: (a) All single and two storey retail/commercial development located along a public road may utilize a zero setback, other than in those site specific areas specified on the precinct plan maps contained in Appendix A of this Section. . (c) Where any proposed development is opposite or adjacent to Residential, Special Purpose or Recreation zones, the building shall be setback a minimum of 6 metres, or as specified on the precinct plan maps contained in Appendix A to this Section. This area is to be used exclusively for landscaping and screening purposes or for the protection of endangered ecological communities present on a site. . The evidence 1. Mr Grech and Mr Buckham agree that the setbacks to the residential boundary of 6 Post Office Road and 4 Casuarina Avenue are adequate because the proposed setback of the building from the residential properties exceeds the minimum requirement of DCP 2012. 2. Mr Grech and Mr Buckham however disagree that the proposed setback to the residential properties fronting Post Office Road is adequate. Mr Buckham states that the proposed setbacks fronting Post Office are inadequate because the 6m setback requirement along Post Office Road would provide a more appropriate streetscape and transition to the residential properties in Post Office Road which are provided with generous landscaped setbacks in order of 10 m. Given that the residential buildings opposite the site are all single storey, a 6m landscaped setback would provide an appropriate transition from the B1 zoned land to the R2 zoned land. Mr Buckham notes that the proposal has elements of the building that have a nil setback including columns, first floor balcony and the loading dock. 3. Mr Grech considers that the setbacks are adequate because the buildings would occupy a relatively small proportion of the frontage (43%). There are only two buildings to be located along the approximate 160m frontage to Post Office Road and these are substantially articulated. The northern building is existing, located opposite both Business and Residential zoned land and will have a length of 24m setback approximately 1.2m for 63% and 3m for 27% of its length, from the front boundary. 4. The proposed new second building will be located opposite R2 zoned land with a length of 44.4m. This building is to be setback 2m at ground level, 2m to balconies (4.5m - 3.0m to facades) at the first floor level, and 6m - 8.35m to balconies (7.2m - 10.735m to facades) at the second floor level, and some minor elements extending to the boundary. The ground level 2m setback for the new building will add to the existing 3.6m wide verge which has a path and lawn. The landscape plan proposes the planting of street trees at about 8m spacings within the verge. 5. Mr Grech states that the planning controls could alternatively allow for a continuous commercial building along the 160m frontage to a height of 9m (including under the draft LEP). The proposal would provide a better streetscape outcome than a building that fitted within this envelope, at a 6m setback, in satisfaction of the objective (i) of the DCP 2012 setback control and the second objective of the zone. Also, the proposed variation to the 6m setback does not result in an over development of the site. The proposal has an FSR of 0.88:1, while the LEP development standard is 1:1. 6. The alternate design response to the minimum 6m setback control could be to setback buildings further and to use the setback area for car parking. This outcome is reflected in the recent Woolworths development opposite. According to Mr Grech, this is not a better outcome as it provides a vehicle orientated and not pedestrian friendly approach to the shops, contrary to the fourth objective of the zone. 7. In his opinion, the reduced setback to Post Office Road would provide reasonable exposure to future tenancies fronting onto Post Office Road and activation of this part of the road frontage which would likely be important to their commercial viability, which is relevant having regard to the primary objective of the B1 zone. Findings 1. DCP 2012 does not provide specific controls for shop top housing but Mr Buckham relies on the setback controls in the Business section of DCP 2012. The Development Controls provide that "single and two storey retail/commercial development located along a public road may utilize a zero setback" (Development Control (a)) however if the site is "is opposite or adjacent to Residential, Special Purpose or Recreation zones, the building shall be setback a minimum of 6 metres" (Development Control (c)). 2. The proposed development is opposite R2 zoned land on the opposite side of Post Office Road and adjacent to the R2 zoned land in Casuarina Avenue. The setbacks to the properties in Casuarina Avenue satisfy DCP 2012 requirements. The setbacks to Post Office Road are not 6m but those described by Mr Grech in his evidence. The ground floor setback to Post Office Road is generally 2m and is shown as being paved in front of the commercial/retail space. Some landscaping is provided in the area near the entrance driveway and around the loading dock. The proposed landscaping is shown on the landscape plan. 3. Clause 1.5 of the Introduction to DCP 2012 provides that: An applicant may request a variation to any development control, provided that the outcomes/objectives of the specific development control and the relevant Section/s of the Development Control Plan as a whole can still be achieved. The applicant must provide a written statement as part of their development application (for instance within the Statement of Environmental Effects) to support any request for a variation to the Development Control Plan. 1. If the proposed setbacks are compared to the setback objectives in cl 2.5, Part B, Sec 6 of DCP 2012, only objective (i) is relevant, in this case. This objective seeks "to provide an attractive streetscape and substantial areas for landscaping and screen planting". As I have previously stated, Mr Buckham's concerns that the proposed setback to Post Office Road is unacceptable because it would not provide an appropriate transition from the B1 zoned land of the site to the R2 zoned land opposite, is overstated. If compared to the setbacks to the residential properties adjoining at 6 Post Office Road and some dwellings in Casuarina Avenue, the separation to the houses opposite in Post Office Road is considerably larger at around 32m (2m setback for proposal, 10m for dwellings opposite and a 20m road reserve) compared to around a 2.5m setback to the acoustic wall on the common boundary and around 15m to the nearest part of the proposed building at 6 Post Office Road. It can reasonably be argued that the houses opposite the site in Post Office Road have a more appropriate transition from the B1 zoned land than the houses directly adjacent to the site and in Casuarina Avenue because of this separation. 2. Also, the words "substantial areas for landscaping and screen planting' in the first objective must be considered in the context of the B1 zone. The words "substantial areas for landscaping and screen planting' must have a different purpose in a residential area or industrial area to that in a business zone. Commercial/retail space requires exposure, easy identifiable access and promotes activity and surveillance. While I accept that the Post Office Road frontage should have some landscaping to provide a "soft" edge when viewed from the opposite side of Post Office Road., excessive landscaping and screening is not appropriate. Under the provisions of DCP 2012, the required 6m setback only becomes necessary because of the relationship of part of the site with the properties opposite in Post Office Road and within the R2 zone and given the substantial setback that includes Post Office Road, I am satisfied that the variation to the setback to Post Office Road is acceptable in the particular of this case. Loading dock The controls 1. Clause 2.18, Part B, Sec 6 of DCP 2012 provides requirements for Loading facilities. The objectives are; (i) To ensure that adequate areas are set aside on site to allow for the safe and efficient manoeuvring of delivery and service vehicles (ii) To ensure that loading facilities required in association with developments do not detract from the amenity of nearby public spaces and residential land uses (iii) To ensure no interference is caused to off-street car parking arrangements 1. The relevant Development Controls are: (a) Loading docks shall be located so they are not visible from adjoining residential areas and do not transmit excessive noise to adjoining residential areas (b) Provision of loading docks is to be commensurate with the size and nature of the development proposed. The evidence 1. The loading dock is located at the southern end of the site and consists of a semi-circular pavement with separate ingress and egress. The council maintains that the loading dock will be visible from the dwellings along Post Office Road which will face the loading dock, and will detract from the amenity of these residential land uses although the loading dock/area will not have an unacceptable visual impact on 6 Post Office Road, due to the proposed acoustic boundary fence and landscaping. Noise from the operation of the loading dock was a specific issue raised by the council. 2. Mr Grech notes that the area referred to as the loading dock is actually an open paved semi-circular drive through area fringed with landscaped areas and is better described as a loading area, as opposed to a loading dock. Mr Buckham and Mr Grech agree that there is an existing on-street loading zone in Post Office Road opposite the Woolworths site, which is about 9.3m long and would be sufficient for a medium rigid vehicle. 3. Mr Buckham and Mr Grech agree that future tenants are unlikely to comprise large food sales establishments and consequently and it is expected that deliveries will not require semi-trailers. Mr Grech also considers that it is also unlikely that regular deliveries from large rigid trucks would occur. The proposed loading dock/area is sufficiently sized to accommodate one 12.5m heavy rigid vehicle at a time. It is to have retractable bollards and is to be subject to a Management Plan administered by the Centre management. I also accept that the loading dock satisfies Development Control (b), in that it "is to be commensurate with the size and nature of the development proposed". 4. Expert acoustic evidence was provided by Ms Juliana Naidovski, for the council and Mr Desmond Raymond, for the applicant. They agreed that if a truck was using the existing on-street loading zone in Post Office Road and another truck was using the proposed loading dock and both trucks had their motors idling, then the appropriate noise goal would not be breached. If a further truck was waiting to use one of the loading docks and the motor on this truck was also idling, then the noise goal would be exceeded. It was Mr Raymonds opinion that the acoustic issues raised by council could be managed with the Plan of Management for the loading dock that would include: only one vehicle is permitted in the loading dock/area at any one time. Any additional trucks should wait, with engine switched off, until the delivery is complete, hours of operation, reversing of trucks should be avoided, and trucks to be turned off when not in use. 1. The council also questioned the location of the proposed loading dock, preferring that it be more centrally located to allow more efficient access to the existing and proposed retail/commercial premises. Mr Grech responded by stating that to locate the loading dock centrally in the site would not be practical. In the circumstances, Mr Grech states that the loading facility would not have an unacceptable impact on nearby public spaces and residential land uses because the noise impacts can be managed to acceptable levels, the limited periodic activity, the separation from the nearest dwellings, the likely predominant use by smaller delivery vehicles, the controls on the use of the facility through the Plan of Management and the context with the current street loading zone. Findings 1. On the matter of the loading dock, I accept the conclusions of Mr Grech for a number of reasons. First, I agree that the term "loading dock" overstates its purpose when compared to the loading dock that was seen on the site inspection at the nearby Woolworths store. The agreement between Mr Grech and Mr Buckham that future tenants are unlikely to comprise large food sales establishments and it can be reasonably expected that deliveries will not require semi-trailers is a plausible assumption; as is Mr Grech's comment that it is also unlikely that regular deliveries from large rigid trucks would occur. These assumptions are supported by the table (Attachment G, Exhibit 7) that shows the relatively small delivery vehicles and low frequency of delivery vehicles for the existing shops. 2. Second, the Plan of Management identifies hours of operation for the use of the loading dock; being Monday to Friday 7.00 am to 4.00 pm, Saturday 8.30 am to 3.00 pm and no use on Sundays or Public Holidays. The enforcement of these times is not an onerous task and can easily be carried out by Centre Management. 3. Third, the location is consistent with the Sheet 6, Appendix A in Part B Section 6 of DCP 2012 where it indicates that access should be denied along Post Office Road except beyond a distance of around 100m from the corner with Old Northern Road. This limitation on access is presumably to minimise any vehicular conflict at the intersection of Post Office Road and Old Northern Road. 4. Fourth, and while it may be argued that there may be a better design for a development; the question the Court is required to answer is whether the development, as considered in the hearing, is acceptable or not and not whether a further design is a better outcome. 5. Fifth, any noise associated with the operation of the loading dock has been considered by the acoustic experts and found to be acceptable, subject to the provision of an acoustically treated with the adjoining property at 6 Post Office Road. I am satisfied that the loading dock satisfies Development Control (b) in that "Loading docks shall be located so they are not visible from adjoining residential areas and do not transmit excessive noise to adjoining residential areas". 6. I am satisfied that the proposed loading dock satisfies the objectives of Clause 2.18, Part B, Sec 6 of DCP 2012. Resident concerns 1. The following matters were raised by local residents but not seen as contentions by the council: 2. Bushfire threat was addressed in the Bushfire Hazard Assessment Report by Building Code & Bushfire Hazard Solutions Pty Limited where the report concludes that the development will have "a reasonable and satisfactory level of bushfire protection to the subject development and also satisfy both the Rural Fire Service concerns and those of the Council in this area". In the absence of any expert evidence to refute these conclusions, I accept that the bushfire threat is satisfactorily addressed. 3. Increased traffic/parking was addressed in the Traffic and Parking Assessment Report of Varga Traffic Planning Pty Ltd concludes that "the proposed parking and loading facilities satisfy the relevant requirements specified in Council's Parking Code as well as the Australian Standards…". ". In the absence of any expert evidence to refute these conclusions, I accept that any concerns over traffic and parking are satisfactorily addressed. 4. Additional demand on existing sewerage infrastructure is addressed though the need to obtain a s73 Compliance Certificate under the Sydney Water Act 1994 and correspondence from Sydney Water on 6 September 2016 to the council raised no barrier to the issuing of a certificate, subject to the normal requirements. 5. Little expert evidence was provided on loss of privacy and overshadowing because the impacts were not a matter that would warrant the refusal of the application for these reasons. With the benefit of the shadow diagrams, I concur with this conclusion as these plans indicate that any shadows are contained with the site until just after 2PM in mid-winter when shadow spreads to some rear yards of properties in Casuarina. I am satisfied that the development satisfies the objectives and Development Control (a) in cl 2.14.10, Part B, Section 2 of DCP 2012. 6. I am also satisfied that the development satisfies the objectives in cl 2.14.9, Part B, Section 2 in cl 2.14.10, Part B, Section 2 of DCP 2012 in relation to privacy, given the setbacks, landscaping and additional conditions (see condition 138). Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 182/2017/HA for the staged redevelopment of an existing shopping centre at 930 Old Northern Road and 4 Post Office Road, Glenorie is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B. _______________ G Brown Commissioner of the Court 382279.16 Brown (C) (688 KB, 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: 14 June 2017