ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT

NEW STATE DEVELOPMENTS PTY LTD

v

CITY OF PORT ADELAIDE ENFIELD

ERDC NO. 750 of 2002

[2003] SAERDC 40

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

This matter comprises an applicant appeal (appellant name was changed from prospective tenant Ray’s Outdoors, to developer proponent New State Developments Pty Ltd), against the decision of the City of Port Adelaide Enfield ("the Council"), to refuse Development Application No. 040/02161/02, for the erection of a shop for the display and sales of camping supplies and outdoor furniture and associated items, at Enfield.

The Council gave as its reasons for refusal:

"1. The development fails to comply with the Development Plan Port Adelaide Enfield (City) Council Wide Objectives 1, 4, 27, 29, 51, 52(a), (d) & (e), Council Wide Principles of Development Control 4, 100, 101, 107(b) & (c), 109(f), 110, 114(a), (d), (h)(i) & (i) [sic], 115(a), (b), (c), (d), (e), (h) & (i), 116, 119(a), 138, 139, 140, 141(a), (b), (c) & (e), 150, 154, 155, 156, 157(a), (b), (c), (e) & (h) in that:

(a) The proposal fails to provide suitable on-site parking and access arrangements to service the needs of both employees and visitors to the site and minimise potential vehicle conflict;

(b) The proposal impacts unreasonably on the character and amenity of the locality in particular the residential area to the east;

(c) The development fails to integrate with the relevant zone provisions in terms of building floor area limitations;

(d) Inadequate landscape areas are incorporated into the proposed development to adequately screen carparking and improve the overall amenity of the locality;

(e) The proposal does not represent orderly or economic development; and

(f) The proposal represents overdevelopment of the site."

A summary of some of the relevant details in this matter is as follows:

Date of application: 9 August 2002 (registered)

Subject land address: 399-405 Main North Road, Enfield

Existing use: Pizza restaurant and takeaway food outlet and vacant land (northern parcel)

Proposal: Demolish existing buildings and erect a shop for the display and retail sale of camping goods and outdoor furniture and associated goods with ancillary car parking, landscaping and advertising displays

Relevant authority: City of Port Adelaide Enfield

Appropriate

Development Plan: Port Adelaide Enfield (City) consolidated version 29 March 2001

Relevant zone/area: Local Centre (MAP PAdE/34) and on MAP PAdE/1 (Overlay) Part B

Date of decision: 4 December 2002

Appeal lodged: 19 December 2002

The required pre-trial conference was not successful in settling the matter and it proceeded to hearing.

Evidence was given by Mr P Donato, a representative of the developer appellant, regarding the proposal and intentions of Ray’s Outdoors (proposed tenant), and of its outlets and operations in Victoria. Expert evidence was provided by Mr P Weaver (Exhibit A5), and Mr A Short (Exhibit R2), both experienced traffic engineers and by Mr G Morias from Transport SA, a person experienced in transport engineering matters. Evidence was also given by Mr D Hutchison (Exhibit A4), and Mr R McBryde (Exhibit R3), both MPIA and experienced town planners, and the Court noted that Council’s professional planning staff recommended refusal (Exhibit R1, page 54).

The Court viewed the subject land and the locality on 13 March 2003 in the presence of the parties and it received amended plans (Exhibit A1), experts’ statements and reports, copy documents, photographs, and much parking and traffic material. I am also familiar with like premises referred to in evidence, such as Snowy’s Outdoor, Richmond Road, Keswick and Barbecue’s Galore, Anzac Highway, Keswick, with regard generally to product ranges and parking generation and provision.

The Subject Land

The subject land is regular in shape with a frontage to Main North Road of approximately 60.36 metres and depth of 40.08 metres providing a site area (excluding a generous corner cut-off) of some 2,400 square metres. The land comprises six allotments, Lots 24-29, DP2976 contained in two Certificates of Title Volume 5365, Folio 96 and Volume 5740, Folio 521. In addition to fronting Main North Road, the site fronts Fitzgerald Avenue along its southern boundary and an unnamed public road (laneway) of some 4 metres in width along its eastern boundary.

The site falls generally from south-east to north-west and erected on the southern part of the land is a building formerly used as a Pizza Hut Restaurant and takeaway food facility. It is now unoccupied. That building is constructed on a concrete podium supported by concrete columns with a floor area of some 200 square metres and with undercroft car parking for some 16 cars, together with rear parking for 21 cars, providing a total parking area for 37 cars. The northern part of the subject land is vacant.

Vehicular access to the subject land is obtained from an ingress only immediately north of the traffic signal controlled pedestrian lights on Main North Road and from an existing crossover toward the eastern boundary of the subject land, onto Fitzgerald Avenue. The northern, vacant part of the site has a separate vehicle crossover constructed near to the northern boundary, immediately opposite Audrey Avenue. It appears to have had only limited use in recent years given the vacant land parcel it serves.

The northern boundary abuts a McDonald’s Restaurant, takeaway food and drive through facility, fenced with a 1.8 metre high green "Colorbond" panel fence. Minor landscaping exists along the Main North Road and Fitzgerald Avenue frontages of the subject land.

The Proposal

The proposed development is shown on plans amended post-Council decision, contained within Exhibit A1, together with an advertising display on the upper fascia shown on Exhibit R1, page 20 and the proposal would appear indicatively like a similar one at Geelong shown in photographs marked Exhibit A2. It involves the construction of a substantial building comprising a ground floor area of 1,213 square metres (display, sales, store, change rooms, amenities), with a mezzanine floor of 540 square metres (display) providing a total floor area of 1,753 square metres.

The following are the general goods categories to be displayed and sold:

There was a good deal of consideration given to defining, categorising or describing the proposal given the specific nature, size and floor space intended for the goods to be displayed and sold. It could be said to partly embrace three types of retailing as defined in the Development Regulations, namely "retail showroom" (the furniture element), a "service trade premise" (tents and boats element), and a "shop" (which incidentally includes retail showroom). Such discussion and determination has some bearing on car parking assessment, though not definitively so. It has no other bearing or significance in terms of the Development Plan.

In a general sense, all the item types proposed to be displayed and sold are found in many department stores (eg. Harris Scarfe), discount department stores (eg. K-Mart, Target, Big W) and so called hardware stores (eg. Bunnings, Mitre 10 and Home Hardware), all generically "shops" in terms of the Development Regulations and Development Plan, though in the latter, distinctions and sub-categories are frequently referred to or made.

I consider that the proposal is not properly described or defined as a retail showroom or a service trade premise as it is not "primarily" for the display and sale of the nominated classes of goods. I consider that the proposal is clearly a "shop" as defined, though of a particular type, theme, range and mix of goods and with a high percentage of carryout goods.

The appellant, with some support from the respondent, sought to limit the shop type and any approval, to that for the display and sale of camping goods and outdoor furniture and associated items. Such proposed or potential limitation is not without difficulties in terms of being definitive, for example, types of clothing, footwear or outdoor activity goods, whether fishing, hunting, skiing or other, that may or may not be envisaged. In addition, potentially limiting and fixing the approximate proportions of each given that, on the evidence, and any assessment, it has some bearing on car parking demand, is also fraught with difficulties, for enforcement by authorities and this Court and for the business and flexibility of its ongoing operations.

The building is of modern design, to be constructed of full height "tilt slab" concrete wall panels to the rear and side elevations with high glass display windows to the Main North Road and Fitzgerald Avenue elevations of the building and with several small windows to the rear, eastern elevation.

The building will have a curved "Colorbond" ("stone" – an off white colour from photographs in Exhibit A2) roof falling to a height of some 3.6 metres at the front of the structure, with an awning over the entry area and with a central focal building feature rising to some 9.3 metres in height. The rear of the building has a maximum height of 7.2 metres, but this is reduced in the north-eastern corner to about 5.5 metres where the site is to be excavated. In addition, there are two roof top evaporative air-conditioning units.

The building is to be sited approximately 14 metres from Main North Road and a similar distance from Fitzgerald Avenue property boundaries.

A car parking area is proposed to be accessed via an existing 5 metre wide ingress only crossover to Main North Road that is intended to be widened to 6.5 metres to provide two-way access, and via a second access (existing 6.8 metre wide driveway) from Fitzgerald Avenue to be relocated westward and widened to 7.5 metres at the property boundary to particularly accommodate commercial delivery vehicles.

26 car spaces are provided in the car park, including one space for disabled persons located in the south-western corner, and four spaces nominated for staff located in the south-eastern corner. Landscaping is provided to the Main North Road and Fitzgerald Avenue frontages in a nominally, 1.4 metre wide landscaped bed (0.8 metres when vehicle overhang is excluded), with a slightly larger low garden feature at the corner of the two streets. Small landscaped strips (1 metre wide) also adjoin part of the northern and eastern boundaries and alongside each of the driveways. Some eight trees (Celtus australis – "nettle tree") are proposed within the landscaped beds. The existing freestanding pole sign is to be relocated approximately 1 metre, and a central, above fascia, illuminated sign is also proposed.

Delivery vehicles (occasionally up to 11 metres in length) are expected to access the site on a weekly basis and all servicing is to be within conventional trading hours. Service access is to be from Fitzgerald Avenue with trucks pulling up to the service doorway for unloading, either by hand or by small hand operated electric forklift. Trade waste bins are to be stored inside the building and also collected during conventional trading hours.

It is envisaged that there will be three full-time and up to five part-time staff employed on the site providing a maximum of eight staff at any one time in peak periods. It is envisaged that the facility will operate during normal shop trading hours comprising, nominally, 9 am to 6.00 pm Monday to Wednesday, Friday and Saturday, Thursday 9 am to 9 pm, and Sunday (and public holidays) 11 am to 5 pm.

The Locality

The locality is defined as that part of the surrounding area directly influenced by the proposal to a notable degree and conversely, that influences the proposal design and development. The locality in this case is to be defined primarily on visual appearance, character, vehicle movement and noise factors.

The locality boundary determined by both the town planners was very similar and I find that it extends on either side of Main North Road from just north of Warwick Street, to just south of Trigg Street, for a distance of some 50-80 metres to the west of Main North Road and for some 50-80 metres to the east of the subject land up to Flint Street and including properties around the Bath Street, Fitzgerald Avenue intersection and generally as defined by Mr Hutchison. Most of the land on the western side of Main North Road is zoned Light Industry (1) Zone, and to the south on both sides it is zoned District Commercial Zone. To the east of the site and the north/south laneways, land is zoned Residential (1) Zone, and the block containing the subject land and nine allotments to the north (all being used for the McDonald’s facility) are located in the Local Centre Zone.

Land uses comprise:

The locality is dominated by Main North Road, a primary arterial road under the control of Transport SA, which in the vicinity of the land carries some 40,600 annual average daily traffic movements (2003) – refer Exhibit R5.

Fitzgerald Avenue is a wide street generally operating as a local collector road and it is sufficiently wide to accommodate angled parking within the road reserve (11 spaces adjoining the RSL Club, some 50-80 metres to the south-east) and parallel parking (approximately six spaces) between Main North Road and the laneways.

The character of the locality is primarily mixed commercial, retail, service industrial in nature and particularly vehicle related land uses, with residential use to the east. The main road corridor has buildings located on or close to the front boundaries, with minimal landscaping and dominance of signage and overhead infrastructure. The character is therefore mixed but predominately non-residential and transport dominated and with all sensory amenity levels from either a residential or public realm perspective, being quite low and with considerable negative impacts (visual, noise, fumes, vibration, dust).

Relevant Development Plan Provisions

I have considered the various provisions referred to by the Council and the expert town planners and I find the following to be the relevant provisions in the appropriate Development Plan, for the assessment of this matter:

COUNCIL WIDE

Objectives: 1, 2, 4, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 51, 52, 54, 55, 60, 61, 90, 91 and 92; and

Principles of development control: 3, 4, 5, 8, 24, 25, 26, 27, 28, 29, 30, 92, 93, 99, 100, 101, 104, 105, 107, 108, 109, 110, 114, 115, 116, 118, 119, 120, 138, 139, 140, 141, 145, 150, 154, 155, 156, 157, 158, 159, 160, 166, 167, 171, 173, 243, 245, 246 and 327.

LOCAL CENTRE ZONE

Objective: 1; and

Principles of development control: 1, 2, 4, 6, 7, and 8.

RESIDENTIAL (1) ZONE (Adjoining to the east)

Objectives: 1, 2 and 3; and

Principles of development control: 1, 2, 4 and 5.

TABLES PAdE/3, 7 and 8

Processing

The proposal was determined by the Council to be a Category 2 development, I assume that the appropriate public notification was undertaken and the evidence shows that no representations were received.

Pursuant to Development Regulation 24(1) and Schedule 8, clause 3, the proposal was referred to the Commissioner of Highways seeking advice and the responses to an original and amended proposal (Exhibit A1) are contained in Exhibit R1 at pages 31, 32, 46 and 47. That advice was not supportive of any access to Main North Road.

The Evidence

Firstly, with regard to the evidence of Mr Hutchison, the appellant called him as an independent expert town planner witness, however, the exhibits and the evidence show that he has had a close involvement with the developers and designer, with lodging the application, acting on behalf of the applicant, lodging the appeal and acting generally in a project co-ordination role, as well as providing planning advice. He is clearly not independent and therefore the value of his evidence and the weight to be given to his opinion by this Court is very limited. With regard to traffic engineering aspects and car parking adequacy, he formed his own opinions based on policy guides and surveys of similar outlets in Victoria.

Mr McBryde provided written evidence (Exhibit R3) and was not required by either party (or the Court) to be orally examined on his opinion. Some of his concerns were addressed by the amended plans Exhibit A1. On the questions of access, parking, layout and servicing, he relied on the evidence of expert traffic engineers. He found the proposal to be acceptable in-principle (land use, type of retailing, floor size) within the Local Centre Zone.

Mr Morias, a person experienced with traffic engineering and planning advice concerning the main road and adjacent land use environment, sought improvement to current access and safety conditions on Main North Road and preferred no access to be gained from that road (with all access from the side street), or as a second preference, removal of the northern access and maintenance of the central ingress only (as is). He could not support widening, upgrading and converting that access for two-way movement.

Messrs Weaver and Short differed, mainly with regard to carparking demand and provisions for the proposal and to a lesser extent on access, carpark layout and loading layout arrangements. Mr Weaver’s approach was to have regard to the Development Plan guidelines, other policy and public guidelines, to compare and consider survey analysis results of the particular development and type, in this case from Victorian sites and surveys undertaken by others, and to survey himself, and consider the closest similar form of development in Adelaide. The Victorian surveys and arguably the local surveys, generally produced lower parking demand and requirements than most (though not all) of the policies/guidelines/standards. Mr Short had difficulty accepting or relying on the Victorian surveys, relied on a survey of his own of the Snowy’s Outdoor facility at Keswick, relied more heavily on policy standards and guidelines and held a more conservative view on parking adequacy, need and shortfall likely to arise. He also placed more limited reliance on the availability of some 6 on-street car parking spaces on Fitzgerald Avenue adjoining and opposite the subject land to the south. In summation, Mr Weaver (and Mr Hutchison) accepted the 26 car spaces proposed (and use of 6 on-street spaces) as being adequate for the proposed 1,753 square metres total floor area at a rate of some 1.48 car spaces/100 square metres total floor area. On the other hand, Mr Short sought 2.5 car spaces/100 square metres (or 44 cars), a shortfall of some 18 or at the very least a rate of two car spaces/100 square metres (35 car spaces required) with a shortfall of 9 spaces on the proposal floor area. Mr Weaver supported a single, widened two-way access to Main North Road, and subject to certain conditions, Mr Short raised no objections to it.

Planning Assessment

In accord with case law as I understand it, noting there to be some variation, I have approached decision making in this matter mindful of the following:

I have noted the reasons for refusal of the application adopted by the Council, however on appeal, this Court effectively becomes the planning authority for the application and it hears evidence and determines the matter "de novo" – that is afresh. Hence, the Court needs to be satisfied with all aspects about the development, not just those relied upon by the Council in refusing the application.

The first issue to be addressed is the in-principle question of land use, retail type and floor size in the particular Local Centre Zone and in the location proposed. There are many relevant Development Plan clauses to this question and those of particular assistance are:

OBJECTIVES

.....

.....

Whilst neither of the town planners who gave evidence, nor the Council in its case (not arguing refusal ground 1(c) – refer above, which touches on this point), took issue with the proposal on this important first, threshold question, I have reservations on the following basis:

However, there are certain offsetting factors that need to be balanced up and they are:

On balance, noting the local planning authority’s position, the degree of relevance of the zoning and the locality circumstances, I consider that the proposal may be acceptable in principle, notwithstanding the specific Development Plan provisions, subject to more detail design considerations discussed hereafter, and that it should not be rejected on the basis of failure to comply with a number of the above listed guidelines. However, this position needs to be considered, integrated with and weighed up against, the other considerations set out below. On its own, if all other matters are appropriately addressed and found to be acceptable in terms of the Development Plan guidelines, it would be insufficient to reject the application.

Turning now to the next important issue, that of access modifications and provision, particularly to Main North Road. With a full redevelopment of a combined site (two titles and six allotments in all), a fresh opportunity arises to re-assess existing features that may be less than desirable, such as existing access and having regard to the Development Plan guidelines, to seek an improvement to access design, thereby improving safety and reducing hazards, rather than to further entrench a less desirable arrangement.

There are also many Development Plan clauses relevant to this issue, particularly:

"COUNCIL WIDE

115 Development within centre zones should conform to the following access and car parking principles:

Transport SA for the Commissioner of Highways and Mr Morias in particular, provided advice and opinion regarding the proposal (Exhibit R1, pages 31, 32, 46 and 47 and oral evidence), and recommended that widening of the central ingress only access point on Main North Road, and converting it to two-way movement (egress also) should not be accepted by the Council or this Court. Mr Weaver’s opinion was to the contrary and Mr Short envisaged some deficiencies and aspects requiring improvement. Due to its proximity to the pedestrian activated crossing and lights, a relocation of this access some 3-6 metres to the north, and widening/splaying the driveway both externally and internally, were options and improvements envisaged. Mr Morias preferred no access to Main North Road (and full reliance on Fitzgerald Avenue for all access), or in the alternate, maintenance of the status quo (ingress only).

The access solution has important ramifications for carparking circulation and efficiency and convenience of use, particularly the length of a so-called "blind" aisle at the front and to the northern side boundary. A blind aisle with greater than 6 spaces (9 proposed), according to the Australian Standard 2890.1 (1993) and the evidence, should be provided with a turnaround at the end. Reducing that length to 6 spaces only, by a northern relocation of the access point and approval to two-way movement, would overcome that deficiency and shortcoming. Deletion of an egress to Main North Road would mean vehicles in the car park travelling north from the southern corner, would enter an even longer blind aisle of some 14 spaces, in search of any empty space, and if unsuccessful, would cause congestion through reversing/turning around movements, to drive back to the Fitzgerald Avenue access. An end turnaround would mean a loss of at least 1 car space at the end of the blind aisle.

I consider acceptable and the best solution from a public safety, convenience and efficiency of carparking operations perspective, that the central access be upgraded for two-way movement on the following basis and for the following reasons:

By Memorandum dated 1 April 2003, I invited and afforded the appellant the opportunity to make further amendments to the proposal, particularly concerning access, parking design and floor space to car park numbers, and at the resuming hearing on 6 May 2003, amended plans (Exhibits A9 and A10) and a letter from Mr Weaver (Exhibit A11) were tendered.

With respect to access, amendments were made along the lines set out in paragraph 47 and referred to Council and Transport SA staff. The latter and Mr Morias, maintained its earlier position and opinion.

The amended plan, Exhibit A9, also includes and proposes access to the rear, narrow public road (lane) near to its corner with Fitzgerald Avenue, to facilitate occasional movement and forwards egress of an 11 metre long truck, although it would also enable other vehicle use of that access point and greater traffic within the lane. Such an amendment and access was not the subject of input from neighbours on the eastern side of the land. I consider that this amendment is unnecessary (the 11 metre long trucks can reverse into the loading area and then egress via the Fitzgerald Avenue access) and undesirable as it would increase the potential for interface impacts with the adjoining residential area. That part of the boundary not taken up by building length, should be fenced or bollarded to prevent such access and the staff car parks shifted 0.75 metres to the eastern boundary, to facilitate a landscape strip of 0.75 metres on the eastern side of the Fitzgerald Avenue access.

Adequacy of car parking, both on-site and on-street, was the central issue to the respondent’s decision and to assessment and decision making on this matter.

The Development Plan clauses relevant to this issue are:

…..

(h) On-site parking shall be determined having regard to:

(i) the amount, type and timing of movement generated by the use;

(ii) the design, location and configuration of parking spaces;

(iii) the ability of the site to accommodate the parking spaces;

(iv) the potential for shared use of parking spaces;

(v) the effect on surrounding activities;

(vi) specific in requests of cyclists; and

(vii) the availability of appropriate on-street parking.

(e) Car parking areas should be located and designed in such a way as to ensure safe and convenient pedestrian access from vehicles to facilities, safe and convenient traffic circulation, minimal conflict between customer and service vehicles and should include adequate provision for manoeuvring into and out of parking bays.

(f) The layout of all parking areas should be designed so as to obviate the necessity for vehicles to back onto public roads.

…..

(i) Shopping development should provide for separate parking spaces for the disabled.

…..

Having considered all that was put in evidence and by submissions, particularly the evidence of Mr Weaver and Mr Short (Exhibit A5 and Exhibit R2), and standards/guidelines/policies for car parking provision (Exhibits A6, A7, the Development Plan and others), and from my broad experience, I concluded in my Memorandum of 1 April 2003, that there was inadequate off-street parking (26 spaces in conjunction with 6 on-street spaces in Fitzgerald Avenue), for the extent of floor area and the retailing use proposed (even if limited generally to camping and outdoor furniture and associated goods).

I came to that conclusion having careful regard to the following:

The proponent was amenable to revising the balance between floor area and car parks and the opportunity was taken up to amend the plans (Exhibit A9) and to reduce the extent of building on the southern side and substitute it with additional car parking. The proposal became one for 1,647 square metres total lettable area (a reduction of some 100 square metres) and the provision of 33 car spaces (7 additional) providing a ratio of 2 car spaces/100 square metres. Six car spaces on Fitzgerald Avenue would also be available for casual use. At the same time, provision was also made for bicycle racks (approximately 8 bikes), a disabled person’s car space relocated closer to the building entrance, a footpath connection from Main North Road included and a reduction in the length of the blind aisle to now provide for six spaces and with a reversing offset at the end.

I have briefly considered above, amenity impacts for residential use to the east. Whilst visual amenity is likely to be reduced for a few near dwellings to the east (from upper level windows viewing to the north-west), noise and odour impacts are reduced from the previous restaurant-takeaway food use and roof glare can be minimised to acceptable levels, providing the roof colour is changed from "stone" a light off-white colour, to a darker colour (eg. beige, fawn or light green or other). An alternate colour of ‘Colorbond beige’, Solver Paints swatch 103 and panel 1053, was offered by the appellant at the resumed hearing.

Whilst the rear wall (length and height) of the building will be significant and a setback of a few metres and landscaping screening would have been desirable, it is partially set down below the lane level (which is lower than ground floor level for the dwellings adjoining to the east), is separated by a 4 metre public road (the lane), rear fencing and garaging exists along the eastern side of the lane at the back of residential sites, and some tree screening exists in those rear yards. On balance, further amendments to set back the building and provide landscaping screening on the eastern boundary are not considered to be essential.

I also consider that the proposed flat, fascia signs located above the main entrance of the proposed building and on three elevations now shown on Exhibit A10, is acceptable in design and in this Local Centre Zone and the particular locality context.

The further amended proposal plan Exhibit A9, also included a further amendment effectively reducing the landscaping strip along Main North Road from 1.458 to 0.9 metres (of which 0.6 metre is vehicle overhang), and increasing commensurately, the east-west width of the building, no doubt to minimise floor area reduction. This solution is not acceptable and would leave an inadequate and unsatisfactory provision of landscaping to the main front boundary thereby not enhancing visual amenity as is necessary and appropriate. A condition of consent can ensure 0.5 of a metre is reinstated, so that the landscape strip is a total of 1.4 metres in width. This can be readily achieved by a slight reduction in the width of the footpath adjoining the proposed building, providing a finished width of 1.3m.

Conclusions

Considering, integrating and weighing up all issues, all relevant factors, the Development Plan provisions, the locality context and the evidence, I initially concluded that the proposal as presented (Exhibit A1) and including the offered restriction on generic retailing type, was not satisfactory from an access and parking provisions perspective and did not sufficiently meet the Development Plan and particularly clauses:

COUNCIL WIDE

Objectives: 29, 51 and 52; and

Principles of development control: 114, 115, 119, 138, 139, 141, 155 and 156; and

LOCAL CENTRE ZONE

Principles of development control: 4 and 7

However, at the resuming hearing, after I afforded the appellant the opportunity to make further amendments to the proposal, amended plans Exhibits A9 and A10 were tendered. Such amendments, excluding the proposed new access to the rear public road-lane, do not change the character or essential nature of the proposal, nor prejudice any other person not party to the appeal.

Draft conditions were also submitted by the respondent and in a general sense, agreed to by the appellant, although I consider that numerous refinements, amendments and additions are necessary, many of which were canvassed with counsel.

On the basis of the amended plans Exhibits A9 and A10, and together with various conditions, I consider that the proposal so amended, sufficiently meets the Development Plan and is worthy of conditional provisional development plan consent.

Decision

The decision of the Court is that the appeal is upheld on the basis of the further amended plans, the decision of the Council reversed and provisional development plan consent is granted to the proposal to demolish the existing building and erect a shop for the storage, display and retail sale of camping goods and outdoor furniture and associated goods with ancillary car parking, landscaping and advertising displays at 399-405 Main North Road Enfield, subject to the following conditions:

1. The proposal shall be developed in accordance with amended plans numbered SK11a and SK12 (Exhibits A9 and A10) and dated 11 April 2003, except where varied by these conditions, and all works shall be completed to the reasonable satisfaction of the Council prior to the occupation and/or use of the development.

2. No vehicular access is to be provided to the rear public road (lane), with the boundary being defined by bollards – chain or fencing, to the reasonable satisfaction of the Council.

3. The five staff car parks being re-positioned 0.75 metres to the east and the area so gained on the opposite – western side, being constructed as a kerbed landscaped garden bed.

4. The landscaped garden bed to the Main North Road frontage being increased to 1.4 metres in width (including 0.6 metres for vehicle overhang), by a 0.5 metre reduction in the width of the proposed footpath adjoining the building and adjustment to the car park and driveway positions.

5. All car parks, driveways and vehicle manoeuvring areas shall be constructed, drained and paved with bitumen, concrete or paving bricks in accordance with sound engineering practice and appropriately line marked to the reasonable satisfaction of the Council, prior to the occupation or use of the development, and thereafter all maintained in good condition.

6. That reinstatement of crossovers and the construction of new – altered crossovers to Fitzgerald Avenue and Main North Road and the relocation of all relevant services and construction thereof, shall be at the cost of the proponent and to the reasonable satisfaction of the Council.

7. Driveway, car parking spaces, manoeuvring, curtilage of the building and landscaping areas shall not be used for the storage or display of materials or goods or advertising displays.

8. All materials and goods shall be loaded and unloaded within the boundaries of the subject land.

9. All loading and unloading and manoeuvring areas shall be designed and constructed to ensure that all vehicles can safely enter and exit the subject land in a forward direction.

10. The applicant shall submit a detailed landscaping plan for approval by the Council prior to the issue of Development Approval, with proposed trees in garden beds positioned at the end of the gap between vehicles and protected from potential vehicle damage. The landscaping shown on that approved plan shall be established prior to the commencement of operations of the development and shall be maintained and nurtured at all times, with any diseased or dying plants being replaced, and shall be watered by means of an automatic irrigation system.

11. The development and the site shall be maintained in a serviceable condition and operated in an orderly and tidy manner at all times.

12. All trade waste and other rubbish shall be stored in covered containers prior to removal and shall be kept within the proposed building.

13. Details of air-conditioning or air-extraction plant or ducting to be placed on the exterior of the building in association with this development, shall be submitted to and approved by the Council prior to the issue of Development Approval.

14. The air-conditioning or air-extraction plant or ducting shall be of a colour or physically screened such that it is not obtrusive to view by residents and users of properties in the locality, to the reasonable satisfaction of the Council.

15. All external lighting of the site, including car parking areas, buildings and signage, shall be designed and constructed to conform with Australian Standards and must be located, directed and shielded and of such limited intensity, that in the opinion of the Council, a significant nuisance or loss of amenity is not caused to any person beyond the site.

16. The advertisements (three on the upper fascia and one pole mounted) and supporting structures shall be designed, constructed and erected in a professional and workmanlike manner and maintained in good repair at all times, to the reasonable satisfaction of the Council.

17. Lighting associated with the advertising displays shall, in the opinion of the Council, be of an intensity not to cause any significant light overspill nuisance to adjacent occupiers, or cause a distraction to drivers on adjacent public roads.

18. The altered pole mounted sign shall not extend over the property boundary and no additional advertising displays to those shown on the approved plans Exhibits A9 and A10, comprising development, shall be displayed upon the subject land other than those identifying the parking area and access points. (If any further advertising displays are required, these shall be the subject of a separate development application.)

19. All stormwater design and construction shall be in accordance with Australian Standards and recognised engineering best practices, to ensure that stormwater does not adversely affect any adjoining property.

20. The external colours of the building shall be, walls of green-blue hue as per the photographs in Exhibit A2 and colour sample in Exhibit A3, and the roof shall be Solver Paints "Colourbond Beige" swatch 103, panel No. 1053, or other variant to the reasonable satisfaction of the Council.

21. The trading hours of operation of the premises are limited to:

. Monday – Wednesday, Friday and Saturday, between 9am and 6pm;

. Thursday (or other designated late night trading day) between 9am and 9pm; and

. Sunday (and public holidays) between 11am and 5pm.

22. The proposed shop herein approved, is limited in its use and goods to be stored, displayed and sold, to only those generally comprising camping (including picnicking, bushwalking and climbing) goods and outdoor furniture and barbecue equipment and associated items including:

1. Tents and small canoes and small inflatable boats;

2. Camping furniture including portable tables, beds, chairs, gas stoves and cylinders, fridges, eskys;

3. Associated camping gear including backpacks, swags, sleeping bags, lighting, cooking implements and accessories, as well as fishing gear and a limited range of clothing and footwear designed for active outdoor use;

4. Outdoor furniture, shading and general barbecue equipment.

23. No more than 50% of the total net lettable floor area shall be used for the storage, display and sale of carry-out items set out in condition 22 clauses 2 and 3.

There will be an order accordingly.