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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 15 January 2001
Decision of Commissioner Mosel
Respondent: CITY OF MITCHAM
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES
ERD-99-1452
Judgment No. [2001] SAERDC 1
4 January 2001
THE COURT DELIVERED THE FOLLOWING DECISION:
1 Graham Cornes Motors Pty Ltd, ("the appellant") in September 1999, applied to the City of Mitcham ("the Council") to vary the terms of a condition attached to a provisional development plan consent relating to a new and used car sales and service establishment at 46-56 Belair Road ("the subject land"). The condition was imposed by this Court in the matter of BS Stillwell Ford Pty Ltd v City of Mitcham and Toohey, 1996 EDLR 394. More will be said about this matter later. The condition sought to be changed is thus:
"7. The number of vehicles displayed for sale at any one time shall not exceed 75 vehicles."
2 The appellant applied to the Council to amend the condition to limit the number of vehicles to be displayed to 90 (that is, an additional 15 vehicles). The application was treated as a Category 1 form of development.
3 By Decision Notification Form dated 16 November 1999, the Council advised the appellant that it had refused provisional development plan consent. An appeal to this Court was lodged and, pursuant to Section 16 of the Environment, Resources and Development Court Act, a conference of the parties was convened. No settlement was reached and the matter is before me for decision.
4 Mr Hilditch of counsel appeared on behalf of the appellant, Mr Manos, also of counsel, represented the Council. Evidence was provided by Mr Spagnuolo, a dealer principal of the appellant; Mr D Altmann (the Council's Director, Planning and Development appearing under subpoena); Mr D Hutchison and Mr Marchetti all experienced and qualified town planners and Mr R Hanslip, an experienced and qualified traffic engineer. During the course of the hearing, I conducted a view of the subject land and land in the near vicinity.
5 To assist in its understanding of the links between the owner companies of the various elements of the facility, the Court was informed by Mr Spagnuolo that both BS Stillwell Ford Pty Ltd and Graham Cornes Motors Pty Ltd are subsidiaries of a publicly listed company known as Adtrans Group Ltd.
Council's reasons for refusal
6 The decision notification form of 16 November 1999 advised the appellant of the Council's reasons for its refusal to grant provisional development plan consent. They are as follows:
"It [the proposed variation to Condition 7] conflicts with the following provisions of the Development Plan:
Mixed Use (Belair Road) Zone
Objective 2
Principle of Development Control 1
Principle of Development Control 15
The reason it conflicts with these provisions is that the intensification represents a 20% increase which is a significant increase of the current limitation set by the ERD Court for 75 vehicles. The resultant increase in vehicles will further exacerbate the negative impact of the motor vehicle trade on Belair Road and surrounding streets, thereby conflicting with Principle of Development Control 1."
1996 EDLR 385 and related matters
7 In August 1995, BS Stillwell Ford Pty Ltd ("Stillwell") sought consent from the Council to extend the existing new and used car sales establishment at 46 Belair Road southwards to include the property at 56 Belair Road (also referred to as Lot 266). The proposal involved an extension to, and rearrangement of, the southern section of the existing business. For convenience I will repeat the description of the proposal provided in the judgment.
"It is proposed to integrate this property [56 Belair Road] with the southern aforementioned functional area of the existing car sales yard so that it will work as one. Together, these form the "subject land". Adjoining the Belair Road frontage will be a "redesigned used car sales yard" and, on lot 266, a "new sales yard". Immediately to the rear of the "redesigned used car sales yard" will be a "new sales office", "staff carparks" and immediately to the rear of the "new sales yard" will be "visitor carparks". Further to the rear of both of these will be a "redesigned car storage" area which will occupy the south-west corner of the site and which will abut both residential and business properties. To the rear of the staff carparks and adjoining the boundary between the subject land and the rear of the business properties which front onto Hampton Street will be a building for storage, parts and car detailing. Tucked into the corner at the western end of this proposed building will be a refuse container. Landscaping is proposed along the new frontage with Belair Road formed by lot 266, along about half of the new southern boundary which abuts the large brick wall of the storage building on the adjoining property and along both the new and existing western boundaries. A traffic loop is proposed whereby vehicles will enter via the existing entry immediately south of the existing showroom building, traverse the middle of the site and exit at a new point between the "redesigned used car sales yard" and the "new sales yard" situated at the north-east corner of lot 266. The "new sales offices" will be configured to accommodate six vehicle sellers in three separate offices and an open area. The building intended to house the "storage, parts and car detailing" will consist of three detailing bays at its eastern end. One of these will be set aside for RAA inspections. At its western end will be a spare parts store and a separate warranty parts store which will replace the container currently located on this part of the site and which is used as a warranty parts store. The building will be 3.9 metres high, 19.1 metres long and 7.7 metres wide. Its western and northern walls will be of masonry. The same number of vehicles will be accommodated as is now the case; ie, they will be spread over a larger area at a lower density. This, according to Mr Causby, will improve the efficiency, attractiveness and safety of the business as a whole."
8 Plan No. SK02E formed part of that proposal (Exhibit A2 ERDC No. 1452/99). Among other things, that plan indicated the layout of all vehicle spaces (customers, staff and vehicles for sale) that were proposed. Specifically, 6 spaces for visitors were indicated adjacent the southern boundary of Lot 266.
9 As I have already said, the decision of the Court was to grant provisional development plan consent. The consent is subject to 10 conditions. I have already referred to Condition 7. Condition 6 read at the time:
"6. Any operations within the detailing building shall be carried out only within the following hours:
Monday to Friday - 9.00am to 5.00pm;
Saturday - 9.00am to 1.00pm."
10 According to the report to Council contained in Exhibit R1, an application to vary the hours in Condition 6 was approved in 1998. At that time, apparently, the application included an intention to vary upwards, the vehicle number limitation in Condition 7. However, that aspect of the proposal was, eventually, abandoned.
11 Some time after this matter concluded, Stillwell acquired two properties in Hampton Street adjacent the western wall of the main offices/showroom/workshop area. 4A Hampton Street, immediately adjacent this building is used as an off-street carparking area (with 42 spaces) and a movement corridor serving the vehicle circulation needs of the business. Provisional development plan consent was granted for this carpark in January 1999. The application defined the purpose of the carparks as follows:
"... to address a need for additional carparking on site, much of which stems from the service activity in the workshop which has increased substantially in the last couple of years as a result of extended warranty periods and free service agreements."
12 4B Hampton Street is immediately adjacent 4A. This property is occupied by what appears to be a dwelling (that could well have been used previously for commercial purposes) and a sealed carparking area. The carparks are used by the appellant's staff.
13 On the evidence of Mr Spagnuolo, it was established that the appellant also leases 10 carparking spaces on The Vogue Cinema site (occupied by the Adelaide Revival Centre) immediately across Belair Road from the subject land. Those spaces are also used for staff parking. Mr Spagnuolo indicated that the lease arrangements are based on a verbal arrangement and that the carparks on the subject land are, in the spirit of co-operation, also used by members of the Adelaide Revival Centre.
14 It is fair to say that the companies which form the business interests of the appellant have invested heavily into improving the carparking arrangements and the efficiency of the subject land generally. It is also fair to say that these improvements have been driven partly by the expansion of the business in recent years.
Land Uses in the Vicinity of the Subject Land
15 When comparing the land uses described by Mr Hutchison (Page 3 of his statement) and the description of the land uses and activities that prevailed at the time of the 1996 appeal, nothing of any note seems to have changed. Mr Hutchison's description of the land uses in the near vicinity of the subject land is as follows:
"Development fronting Belair Road strongly reflects the existing zoning with the Mixed Uses Zone accommodating a range of small to medium scale business enterprises including offices, motor repair workshops, service trade premises and service station. The Vogue cinema building, a substantial structure within the locality is presently used as a place of worship by the Adelaide Revival Centre. The Local Centre zone accommodates a small group of some 7 shops whilst the surrounding R1A [sic] zone contains a range of detached and multi unit residential dwellings. To the rear of the site Cornes Toyota have developed a carpark on land which previously accommodated a dwelling which had been converted to consulting rooms. To the west of this carpark is another property accommodating a converted dwelling owned by Cornes Toyota, portion of which is used for carparking. As a result of the zoning of the land adjoining Belair Road the locality has a strong commercial character. The commercial character is relieved somewhat by the extensive grounds of the Kingswood Oval."
16 For the purposes of this matter I have adopted Mr Hutchison's description as an appropriate representation of the land use composition of the zones surrounding and including the subject land.
The Proposal
17 The application proposes to vary Condition 7 to enable 90 vehicles to be displayed for sale or stored on portion of the subject land. Exhibit A5 replaces the plan forming Exhibit A1. Exhibit A1 was confusing insofar as it delineated 106 vehicles (instead of 90). It does so apparently to demonstrate the capacity of the display areas. In doing so however, it is readily apparent that the additional "capacity" is at the expense of clear aisleways. To assist the Court, Exhibit A5 was tendered to indicate the following:
(1) The area to which Condition 7 relates (that is, that part of the subject land within which Condition 7 of the Court's 1996 decision applied). This area has been agreed between the parties. (2) The essential features of the 1996 application including: > 6 visitor carparks associated within the used car section; > staff carparks, other vehicle parks, detailing/parts building and new sales office. (3) The distribution of proposed 90 vehicles for sale as follows: > 20 vehicles in the display area on the corner of Belair Road and Hampton Street; > 9 vehicles in and immediately adjacent the new car sales building; > 61 vehicles in the southern display area. (4) Two additional visitor parking spaces adjacent the sales office in the southern display area and the aisleways to be kept clear for circulation. (5) The carparking area on 4A Hampton Street which includes 6 visitor carparking spaces.
18 I accept the area so defined in (1) above as being the area to which Condition 7 applies. That said, I also accept Mr Hilditch's submission that Condition 7 also applies to that part of the building dedicated to the display of new cars but that such an area may be difficult to define on a plan. For the purposes of this matter, in my consideration I intend to include the space within the building, indicated on Exhibit A5, as being capable of accommodating 5 vehicles for display.
19 An examination of Exhibit A5 and the plan to which the Court's 1996 decision related (Plan No. SK02E), and the submission put by Mr Manos, demonstrated that the proposed increase in the number of vehicles (15) is intended to occur in the southern display area (in between the southern wall of the office/showroom/workshop building and the southern boundary of the subject land).
20 The intended layout of the vehicles on display is roughly the same as in the 1996 application - in rows running in a north south direction. However, some vehicles will be placed in the spaces which separate some of the rows. On the view it became obvious that the position and orientation of the vehicles on display changed from time to time. According to Mr Spagnuolo, this is a marketing/presentation technique as is the use of stands which elevate vehicles above ground level. Notwithstanding, the intention is to maintain the general configuration indicated on Exhibit A5. It is also intended to maintain the 6 visitor carparks shown on Plan SK02E to which the Court's 1996 decision applied. These spaces are somewhat inconveniently located (and concealed) behind a security fence. Two additional visitor carparks are shown adjacent the sales office with direct access to aisleways.
21 Exhibit A5 however, proposes to reverse the circulation arrangements that are shown on Exhibit A1. It is intended to dedicate the southernmost driveway as an entry point and the driveway adjacent the southern wall of the showroom as an exit point to Belair Road. Mr Hanslip, in his evidence, indicated that such a change would have no adverse traffic consequences. I agree. In fact I believe that vehicle circulation will be more convenient as will access to the existing and proposed carparking spaces.
The Issues and Assessment
22 Mr Manos, on behalf of the Council, contends that Objective 1 for the Mixed Use (Belair Road) Zone, in which the subject land is located, seeks to place a "freeze" on development of the nature proposed. The purpose of this objective, he says, is supported by Zone Objective 2 and Principles 3 and 15. Mr Manos submitted that the additional vehicles intended to be displayed (15) is a significant increase (as a proportion of that already approved) thereby increasing the intensity of the use and thus breaching the intent of the objective. Intensification of the use of the land in the manner proposed, according to Mr Manos, is also in conflict with Council Wide Principle 91 - a provision dealing with off-street carparking. The objectives and principles referred to by Mr Manos are as follows:
Mixed Use (Belair Road) Zone "Objective 1: Accommodation of a range of uses including community, consulting room, motor vehicle related, local office, certain residential types, restaurant and speciality goods shops, integrated where appropriate and co-ordinated both within, and with adjoining sites. Objective 2: A zone where development enhances visual qualities, is of low traffic generating type, minimizes interference to the arterial road function of Belair Road and provides an appropriate transition to uses in the adjoining zones. The non-residential development along Belair Road in the zone, generally performs a servicing role primarily for nearby Mitcham and to a lesser extent Unley residents. The zone should be further developed and enhanced by mixed uses, including lower intensity or small-scale retail use and local office/consulting rooms, with opportunity for integrated medium density development toward the rear of sites and on upper levels." Principles of Development Control "3 The intensity, floor size, scale and height of development should be relatively low and provide for an appropriate transition to uses in residential zones." "15 Any further development of the motor vehicle related sites should rationalize and not increase the floor area or intensity of the use and reduce noise, glare, dust, fumes or odour transferred to adjacent residential use, through design treatment or management operations." Council Wide Principles of Development Control "91 A new and used car sales lot, or motor vehicle showroom should provide one car parking space for every ten vehicles displayed or able to be displayed, for sale on the lot or in the vehicle showroom."
23 I have considered the relevance of these provisions and agree that they apply to this matter. However, in reaching my conclusions I have also had regard to Metropolitan Adelaide Objectives 24 and 25 and Council Wide Principles 70 and 89. I have also had regard to the common ground that exists between Mr Altmann, Mr Hutchison and Mr Marchetti who all agree that the use of the land, as proposed, is generically suitable in the zone.
24 The question about the role and purpose of Objective 1 has been previously dealt with in Stillwell. In that instance the Court had this to say:
"Mr Manos submitted a curious argument; namely that Objective 1 does no more than reflect the existing situation and thus it may be ignored. A reading of any dictionary meaning of "objective", and the explanation of "objectives" to be found in the Development Plan, will show this argument to be patently false. We reject it. Complementing these is Principle of Development Control 79 in the general provisions for the City of Mitcham in the relevant Development Plan, which states: "Development associated with the motor trades should be located in an industrial, arterial road commercial, mixed use or centre zone and be designed and sited so as to have minimal impact on existing land uses in the zone." Hence the Plan not only sees motor trades businesses as acceptable in mixed use zones but also promotes them there. Nevertheless, is that part of the Mixed Use (Belair Road) Zone in which Cornes Toyota is located one that is suitable for motor trades; ie, do the Plan's policies align with the physical reality of the locality or are they so out of kilter that to apply them would be nonsensical?"
25 The matters that the Court took into consideration when reaching its conclusion, have in my view, not changed. Accordingly, I adopt the Court's findings in respect of Objective 1 and note that Principle 79, mentioned above, is identical to Council Wide Principle 89 to which I have made reference. An increase in the number of vehicles for sale, of itself, is not in conflict with this objective. Such a proposal, in my view, is in accord with the intent of the objective.
26 Objective 2 speaks about the role of development enhancing the visual qualities of the zone. It also seeks development of a low traffic generating type and of a type that minimises interference to the arterial road function. Council Wide Principle 91 also applies. This principle when fully applied, requires the provision of 9 off-street carparking. The design and location of these spaces should take into account the criteria contained in the provisions of Principle 70.
27 On the question of traffic generation and its impact the Court heard evidence from Mr Spagnuolo, Mr Hanslip and Mr Marchetti. Mr Spagnuolo's evidence indicates that 15 cars per month are sold. The busiest periods are on Saturdays. On some weekdays, very few people visit the subject land. During the busiest period, Mr Spagnuolo's evidence is that the subject land will generate 6 visitors at any one time. Some of those visitors invariably park on Belair Road or in Hampton Street. Apparently they choose to do so to retain an element of control over the sales/purchase process. The Court heard that, during the part of the busiest period (Saturday afternoon) the parking facilities with entry from Hampton Street are readily available to visitors (the service and car detailing function having ceased operation). Mr Spagnuolo also informed the Court that other main vehicle generating activity associated with vehicle sales occurs through the delivery of new and used vehicles by way of a large commercial vehicle (using Belair Road for unloading). Deliveries of this nature are made about two times per week but, according to Mr Spagnuolo, the frequency may vary. Mr Hutchison's evidence is that Belair Road has an average daily traffic volume of about 28,900 vehicles.
28 Mr Hanslip, a well qualified traffic engineer, gave evidence to the following effect:
* car yards are relatively low traffic generating land use;
* the recorded traffic accident record in the near vicinity of the subject land, could not be attributed to the activities of the existing use;
* an additional 15 vehicles for sale will not give rise to any traffic safety circumstance that would be a cause of concern or be in conflict with the Development Plan. In coming to this conclusion, Mr Hanslip had regard to the existing sight distance to Belair Road, the rearranged entry and exit points, carparking arrangement proposed on Exhibit A5 and the frequency and nature of the off-loading of vehicles on Belair Road.
29 Mr Hanslip did however, qualify his opinion insofar as he relied upon well-identified entry and exit points, well identified off-street carparking and the availability of the carparking areas with access to Hampton Street for visitors.
30 Mr Marchetti expressed a number of concerns about the traffic impact of the proposed development. He did so in more or less a speculative way in contrast to the approach taken by Mr Hanslip. Upon my enquiry he said that the "potential" problems that he outlined in his statement could be relieved in part by visitors being encouraged to use the many spaces available in the carparking areas off Hampton Street during peak periods and that the aisles necessary for manoeuvring be kept clear at all times.
31 I have considered all of the evidence pertaining to the question of traffic generation and parking facilities. I have also considered the considerable improvements that have been made to the capacity of the subject land to cater for its operation since the 1996 decision. Subject to appropriate signage being placed on the subject land clearly indicating the entry and exit points on Belair Road and the location of all visitor carparking spaces shown on Exhibit A5 and there being a requirement to keep free of obstruction the aisles required for internal circulation, I am satisfied that the traffic management provisions of Objective 2 are met as are the relevant requirements of Metropolitan Objectives 24 and 25. That said, I want to emphasise that the identification of the location of and, access to, the 6 visitor carparking spaces approved in the 1996 consent are paramount to the proper functioning of the southern section of the display facilities.
32 As to the number of visitor carparking spaces I am satisfied that the intent of Zone Principle 91 and the relevant provisions of Metropolitan Objectives 24 and 25 are met. During the busiest period many more than the required 9 spaces are available on the subject land when the facilities of 4A Hampton Street and the availability of other spaces adjacent the service facility entry are included. That said, the inclusion of 2 spaces adjacent the new sales offices are desirable to accommodate any deficiency that might arise through the reluctance of some visitors to use the 6 existing spaces to which the 1996 decision relates.
33 Further, having considered the evidence of Mr Hutchison, Mr Altmann and Mr Marchetti I find that the proposed development does not offend that part of Objective 2 which speaks about the role of development in the enhancement of the visual qualities of the zone. The visual "qualities" of the zone are already established. In the near vicinity to the subject land, those qualities are established by the existing built form, commercial land uses, building density, outdoor advertising and the visual impact of a road carrying 28,900 vehicles per day. In these circumstances, an additional 15 vehicles, in an area of land which now accommodates 46 vehicles and which undergoes constant rearrangement, is neither here nor there.
34 The provisions of Zone Principle 15 are not entirely satisfied. The proposed use will increase the intensity of the existing land use. However, I find that it will do so in quite an inconsequential way insofar as the intent of that Principle applies. The proposed used will also not reduce noise, glare, dust, fumes or odours transferred to the adjacent residential area as required by that Principle. However, since the intensity of activities as now proposed are minor or inconsequential nor will it exacerbate any problem that may exist. In all, I find that any conflict with this provision is not fatal to the proposed use.
35 As to the Council's other grounds for refusal not already covered in my assessment, I find that they are not supportable. No evidence was provided about the impact of the "motor vehicle trade" on Belair Road and surrounding streets. I accept Mr Marchetti's view that the Development Plan, in part, seeks to avoid the impact of traffic in adjacent residential streets. However, his evidence on traffic impact per se, was no more than speculation. It was not supported by an analysis of existing traffic impact based on solid research or other data that would be preferred to the evidence of Mr Hanslip or Mr Spagnuolo.
Conclusion
36 Having considered all that has been put before me, I find that the use of land that arises from the proposed variation to Condition 7 is an extension of an existing use and is in reasonable conformity with the relevant provisions of the Development Plan. With suitable conditions relating to directional signage and aisle clearance any additional traffic impact will be inconsequential. To avoid any confusion as to the intent of the wording of Condition 7, I accept that the alternative words suggested by Mr Hilditch on page 189 of the transcript would be sufficient.
37 By memorandum dated 2 August 2000, I advised the parties of my intention to grant provisional development plan consent and invited the parties to consider the issue of conditions on matters that arose during the course of the hearing.
38 At the resumption of the matter on 29 November 2000, the parties indicated that the most appropriate course is for me to issue a fresh consent for the land use as originally proposed, covering all conditions established by the Court in 1996 (to which reference has been previously made) but varied by conditions covering matters dealt with in these proceedings. The conditions hereunder have been agreed between the parties.
39 The appeal is upheld and the decision of the Council reversed.
40 The order of the Court is that the conditions attached to the Development Approval in respect of Development Application Number 080/0735/95 regarding the land at 46-56 Belair Road, Hawthorn be as follows:
1. The development shall be carried out in accordance with the plan prepared by Aspex Building Designers dated 21 July 2000 being Exhibit "A6" in Environment, Resources and Development Court file number 1452 of 1999 and SKO2 E, SKO3 and SKO4 prepared by Phillis and Associates Architects and tendered in Environment, Resources and Development Court file number 57 of 1996, subject to the following variations:
(a) the Toyota 4x4 Centre new illuminated steel framed sign as proposed on allotment 266 in the Plan SKO2 E (elevation 2(SK2)) shall be deleted;
(b) the detailing building shall be reduced in height to 3.9 metres; and
(c) as expressed in the following conditions; and
in the event of any inconsistency between the plan being Exhibit "A6" and plans SKO2 E, SKO3 and SKO4, the plan being Exhibit "A6" shall prevail.
2. Surface levels around buildings shall be arranged such that there is a free and uninterrupted flow path for stormwater to flow around buildings without inundating floor levels in the event of stormwater system failure/blockage or a large storm event.
3. Landscaping shall be in accordance with the Plan SKO2 E except that on the western boundary of Allotments 266 and 267 the existing trees depicted on Exhibit "A3" in Environment, Resources and Development Court file number 57 of 1996 shall be retained and new landscaping shall include dense planting of the species Melaleuca incana "Golden Revolution" and "Green Revolution". The landscaping shall be maintained in good and reasonable condition at all times with dead or seriously diseased plants being replaced promptly.
4. The area between the western boundary and the western end of the car detailing building shall be used for the storage of refuse in the container, as depicted on Plan SKO2 E, and shall be kept free of any parts and materials. The refuse container shall be screened with landscaping to prevent visibility from adjoining residential properties.
5. Mechanical repairs shall not be performed in the car detailing and inspection area.
6. Any operations within the detailing building shall be carried out only within the following hours:
Monday to Friday - 7.30am to 6.00pm
Saturday - 8.00am to 5.00pm
7. The number of vehicles displayed or available for sale or otherwise stored within the area outlined in bold on the Plan dated 21 July 2000, being Exhibit "A5" in Environment, Resources and Development Court file number 1452 of 1999, and within the area of the existing showroom shall not at any one time exceed 90 vehicles.
8. Any additional amplified paging system to be used on the site shall be installed and operated so that it does not cause nuisance to occupants of dwellings in the adjoining Residential zone.
9. Carpark numbered 4 at the northern end of the site near to Hampton Street shall be available for use by disabled persons.
10. The traffic aisle adjacent to the southern facade of the existing showroom/sales and office building and the traffic aisle from the southern Belair Road entry leading towards the new Sales Office shall remain clear and unobstructed by all vehicles under the possession or ownership of the applicant during operating hours.
11. Should any vehicle be parked by any invitee or visitors to this site in the aisles referred to in Condition 10 of this approval, management shall direct the driver of such vehicle to remove the vehicle from the aisle so that the aisles shall remain clear and unobstructed during operating hours.
41 There shall be an order accordingly.
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