Shahin v City of Unley No ERD-02-564 [2003] SAERDC 11 (19 February 2003)

Last Updated: 23 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

09/12/2002 to 11/12/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to construct integrated service station complex with fuelling facilities, retail outlet, carwash and associated signs and landscaping - Mixed Use 2 Zone - refused by Council - planning merits considered - relevance of existing service station use on subject land - extent to which intesification of that use would occur - substantial increase in traffic generation likely - zone seeks land uses which result in low traffic generation - proposal in conflict with overall intent and desired character of zone - appeal dismissed and decision of Council confirmed.

• Development Act 1993 , referred to.
• Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259;
• City of Mitcham v Freckmann and Others [1999] SASC 234; (1999) 74 SASR 56, considered.

Representation

Appellant: YASSER SHAHIN
Counsel: MR B HAYES - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF UNLEY
Counsel: MS S BLENCOWE - Solicitors: SYBELLA BLENCOWE

ERD-02-564

Judgment No. [2003] SAERDC 11

19 February 2003

YASSER SHAHIN

v

CITY OF UNLEY

(ERDC No. 564 of 2002)

[2003] SAERDC 11

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against a decision of the City of Unley ("the Council") made on 14 August 2002 to refuse Provisional Development Plan Consent to an application by Yasser Shahin ("the Appellant"), which application sought consent for the construction of an integrated service station complex with fuelling facilities, retail outlet, carwash and associated signs and landscaping on land at 51A Goodwood Road, Wayville.

2. The appellant, being aggrieved by the decision of the Council, appealed to this Court against it. No compromise was achieved at a conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993, and the matter then proceeded to a hearing, at which the Appellant was represented by Mr B Hayes QC, of counsel, with him Mr J Botten, of counsel, and the Council by Ms S Blencowe, of counsel. The Court, in the company of the parties, conducted a view of the subject land and its locality, received a number of exhibits, and heard evidence from Mr R Dwyer, Ms J Nolan and Mr D Storey, all qualified and experienced town planning consultants, Mr C Turnbull and Mr P Maddern, both qualified and experienced acoustic engineers, Mr P Weaver and Mr S Foley, both qualified and experienced traffic engineers, Mr K Downard, a qualified civil engineer in the employ of the Patawalonga Catchment Management Board, the appellant, Mr Y Shahin, and Mr M Shaw, who resides at 55 Le Hunte Street, immediately opposite the subject land. A statement of evidence by Mr K Read, a qualified and experienced civil engineer, was tendered by consent without the need for cross-examination.

3. The subject land is situated at 51A Goodwood Road, Wayville, on the corner of Goodwood Road and Le Hunte Street. It is more particularly described in Certificate of Title Volume 5783 Folio 679 as Allotment 112 in Filed Plan 10395. It is rectangular in shape, having a frontage to Goodwood Road of 30.48m, a depth of 123.37m and a total site area of approximately 3,700m2. A portion of the site lies over Keswick Creek, which flows within a concrete culvert on the northernmost portion of the land. No easement in favour of this creek is registered on the Certificate of Title.

4. With the exception of the Keswick Creek culvert, the site is relatively flat, sloping slightly from east to west. Keswick Creek is presently lined with existing exotic vegetation including 3 trees designated as "significant" by virtue of the effect of Regulation 6(a) of the Development Act Regulations. There is no significant vegetation on the balance of the land. The land is presently occupied by a small vacant service station building in poor condition, with a floor area of approximately 150m2. On the Goodwood Road side of this building is an open canopy and paved service forecourt. At the rear of the building are several sheds previously associated with motor repair activities.

5. Vehicular access to and egress from the site is provided from a single large crossover from Goodwood Road and two existing crossovers from Le Hunte Street.

6. Although the service station is closed to the public, the evidence of Mr Shahin was that it was still licensed to sell fuel pursuant to the Petroleum Products Regulation Act 1995. Mr Shahin also gave evidence to the effect that small quantities of fuel were pumped and dispensed to staff of the Shahin Group.

The Locality

7. Ms Nolan and Mr Dwyer, for the purposes of their evidence, defined a locality which took in development on both sides of Goodwood Road between Young Street and to the north and Parson Street to the south of the subject land together with development fronting Le Hunte Street between Goodwood Road and Rhyl Avenue, approximately 100m east of the rear boundary of the subject land. A somewhat wider locality was defined by Mr Storey, that locality extending some distance north of Young Street and south of Parson Street, and slightly further east along Le Hunte Street. Nothing, in my view, turns on the difference between the proposed localities, but for the purposes of my assessment I have adopted that proposed by Mr Dwyer and Ms Nolan.

8. The subject land is located within the Mixed Use 2 Zone, as depicted on Map Un/4 in the Development Plan for the City of Unley dated 25 October 2001. That zone takes in those allotments on the eastern side of Goodwood Road having a frontage to that road, uses to the north being a mixture of retail showrooms and shops and to the south, showrooms, offices and consulting rooms, together with the Goodwood Park hotel and the Goodwood Timber service trade premises.

9. Opposite the subject land, over Goodwood Road, is the Royal Adelaide Showgrounds, located within the Showgrounds Zone and accommodating agricultural and horticultural shows and industrial and commercial exhibitions with associated exhibition and entertainment facilities.

10. To the immediate east of the subject land is the Residential B300 Zone, within which is located the Wayville Reserve public playground (park) and to the southeast, fronting Le Hunte Street, is a mixture of detached and semi-detached dwellings, together with some residential flat buildings. An allotment immediately opposite the subject land, on the southern side of Le Hunte Street, is presently being developed with two semi-detached dwellings.

11. To the northeast of the subject land is a number of two-storey group dwellings and residential flat buildings, fronting Young Street.

12. The locality derives its character from a mixture of land uses and is significantly influenced by traffic impacts from Goodwood Road, a primary arterial road carrying substantial volumes of traffic. Residents to the east and southeast of the site enjoy a relatively high level of amenity deriving from the open, landscaped Council reserve, well maintained gardens and advanced street tree plantings.

The Proposal

13. The proposal entails the demolition of all existing structures, removal of existing underground tanks, the removal of 4 trees (one of which is a significant tree) and the part enclosure and building over of a portion of the open culvert of Keswick Creek to accommodate the construction of an integrated service station development comprising the following elements;

(1) a 450m2 shop and administration area, sited in part over Keswick Creek and to the northern boundary of the subject land. This building would have a total parapet wall height of 6m, a roof-mounted air-conditioning plant and extensive shop front glazing to the west and south. It would be set back some 34m from the subject land's boundary with Goodwood Road and some 12.5m from the Le Hunte Street boundary. The building would incorporate a variety of retail items, toilets, and ancillary store and cool rooms, an office, fuel sales and product display area;

(2) 6 multi-product fuel pump assemblies, set in a line of 3 perpendicular to Goodwood Road, staggered to achieve a setback from that road of a minimum of 9m to a maximum of 14.6m to the closest bay pump and servicing 12 fuelling positions. A 6m high protective canopy, with a curved face to Goodwood Road, would cover the pumping bays extending to portion of the Le Hunte Street boundary;

(3) 4 wash bays configured in a north-south row and sited towards the eastern (rear) portion of the site. The wash bay complex would be set back some 5.8m from Le Hunte Street, 16.4m from the eastern boundary and a minimum of 2m from the northern boundary. The wash bay building would be just under 5m in height. A narrow rectangular plantroom would be situated to the north of the wash bays and 6 vacuum bays would be sited at the exit face of the wash bays and at the wash bay entry;

(4) a total of 36 carparking spaces distributed across the site; and

(5) landscaping strips along the Goodwood Road and Le Hunte Street frontages of the subject land and landscaping to the whole of the rear setback distance of 5m x 30m.

14. The site would be serviced by 3 two-way crossovers, one of 13.5m in width off Goodwood Road and 2 off Le Hunte Street, the westernmost of these being 10m wide, and the easternmost, 7.5m wide. The westernmost crossover would also provide fuel tanker egress and is situated opposite the side parapet wall of a commercial building opposite. The easternmost crossover would be located roughly at the centre of the site and opposite the allotment upon which 2 dwellings are presently under construction.

Proposed hours of operation comprise:

• fuel sales and shop - 24 hours;

• wash bay - Monday to Thursday, 7.00am to 11.00pm.

- Friday and Saturday, 7.00am to 12.00pm

- Sunday 9.00am - 10.00pm;

• Fuel deliveries - 7.00am - 10.00pm

• Waste Collection - 7.00am - 10.00pm.

15. At the cessation of business for the wash bay area, the rear portion of the site would be closed by closing the easternmost crossover and restricting vehicular access to the rear of the site beyond the eastern end of the retail/administration area.

16. A variety of signage is proposed, including a 6m high and a 2.4m wide pylon sign on that portion of the site closest to the Goodwood Road and Le Hunte Street intersection.

17. To allow the construction of portion of the site forecourt and shop building over the present open stormwater culvert, a stormwater drain with dimensions 6.2m by 2.2m is proposed, the non-covered culvert alignment remaining open with remedial and restorative embankment works to be undertaken to the line of the creek.

18. 3m high colorbond fencing is proposed to the exposed creek alignment to the rear of the shop building. A 3m high curved feature wall is to be located close to the Le Hunte Street boundary east of the easternmost crossover, wrapping around the end row of carparks towards the eastern side boundary. The wall would serve an acoustic function and would be sited within a landscaped area along the Le Hunte Street boundary.

Assessment

19. The subject land, as I have said, is situated within the Mixed Use 2 Zone. The sole objective for that zone is as follows:

Mixed Use 2 Zone

"Objective 1: Accommodation of a mixture of commercial land uses including medium-scale offices and consulting rooms of up to 450 square metres total floor area per individual building, service industries, warehouses and retail showrooms which result in low traffic generation."

20. Relevant Zone Principles are as follows:

"Principle 1: Development should be, primarily, medium-scale offices and consulting rooms, service industries, warehouses, retail showrooms and development associated with the motor trades, which result in low traffic generation."

"Principle 4: Development should not generate high levels of amplified sound, and should not incorporate large displays of signs, advertisements or bunting."

"Principle 5: Development should provide a visual and acoustic buffer between the development and adjacent residential zones, and should present a substantial landscaped frontage within the building set-back areas to adjacent roads. To this end, a minimum building set-back of three metres to any road, and 1.5 metres to any other boundary, should be provided."

21. The primary land use question arising in these proceedings is whether the proposed development satisfies the clear intent expressed by Objective 1 and Principle 1 that development within the zone should be of a kind which results in "low traffic generation". It was common ground between the parties that an integrated service/carwash complex of the kind proposed was a substantial generator of traffic. That said, it was also common ground between the parties that the subject land retained existing use rights for a service station use. Where the parties parted company was over the question of the amount of weight to be given to that existing use in assessing the present proposal. Ms Blencowe submitted that, on the evidence, the service station operating on the subject land until its acquisition by the Shahin Group in 2001, had been operating at a relatively low level of intensity for up to 10 years. At best, the number of pumps situated on the land at the time of its acquisition by the Shahin Group was 6, including a kerosene pump, and the subject proposal, in her submission, represented a substantial intensification of activity on the subject land, in terms of the area devoted to structures, the number of pumps to be provided, and the introduction of the car wash use, and accordingly, went well beyond the bounds of that which could be accommodated by the existing use rights over the subject land.

22. The evidence of Mr Dwyer was that, while the proposed development could not be described as a low traffic generating activity, particularly during peak trading periods, it was acceptable for the following reasons:

"° the nature of the long standing existing use of the subject land must be taken into consideration including the historic and latent potential capacity of traffic volume generated from this existing and ongoing use;

° given the size and capacity of the site it is unlikely that many activities, including those uses listed as desired within the zone, would result in low traffic generation; and

° the adequate capacity of Goodwood Road to absorb and accommodate forecast traffic movements (without additional traffic generation in neighbouring residential streets etc)."

23. Mr Shahin, in evidence, stated that, as there was no restriction on the trading hours for the existing service station, it was possible, with aggressive discounting, to generate 700-800 vehicles per day without significant change to its existing layout and without increasing the number of pumps. Upgrading the facility would not necessarily result in substantially greater fuel sales but, based on experience with other outlets, would allow a significantly greater margin to be charged on fuel sales. Most additional custom generated would be associated with the sale of other products, including food and drinks, from the proposed shop.

24. Mr Foley estimated that the combination of the greater fuel-dispensing capacity of the proposal and the introduction of a substantially larger shop component would be likely to produce a very substantial increase in the traffic movements generated by the subject proposal, in comparison with those generated by utilisation of the infrastructure existing on the subject land when it was purchased by the appellant (assuming up to six pumps were previously located on the land). That increase, in his view, was likely to represent at least a doubling of traffic movements.

25. Mr Foley expressed concern regarding the relatively narrow frontage of the site to Goodwood Road, being of the view that this feature, in conjunction with the proposal to provide 12 fuelling positions, was likely to result in a number of conflicting manoeuvres taking place in the forecourt area, with resultant safety problems. In this regard the proposal, in his view, conflicted with Council Wide Principles 52, 53, and 56, which are in the following terms:

"Principle 52: Development should:

(a) provide safe and convenient access for private cars, cyclist, pedestrians, service vehicles, emergency vehicles and public utility vehicles;

(b) include access points located and designed in such a way as to minimise traffic hazards, vehicle queuing on public roads and intrusion of vehicles into adjacent residential areas; and

(c) provide off-street loading; service and vehicle manoeuvring areas."

"Principle 53: The number, location and design of access points onto the arterial roads shown on Map Un/1 (Overlay 1) should be such as to minimise traffic hazards, queuing on the roads, right turn movements and interference with the function of intersections, junctions and traffic control devices."

"Principle 56: Car parking areas should:

(a) 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; include adequate provision for manoeuvring into and out of parking bays, and, in the case of centre-type development, result in minimal conflict between customer and service vehicles; and

(b) be designed so as to obviate the necessity for vehicles to back onto public roads."

26. Another aspect of the proposal which, in Mr Foley's opinion, conflicted with Council Wide Principles 52 and 53 was the fact that the absence of a median on Goodwood Road would allow right turn movements from that road into the proposed development, thereby having a greater effect on the free flow of traffic and increasing the likelihood of rear end collisions in comparison with a low traffic-generating use.

27. Mr Weaver, in evidence, acknowledged that the proposal would generate significant traffic movements (in the order of 1800 per day) but noted that a similar use previously existed on the subject land. While that use, on the evidence, had neither traded 24 hours nor discounted aggressively, Mr Weaver considered that the potential existed, with minimal upgrading, to generate significant traffic movements without the need for a further planning consent. Accordingly, he did not see the proposal as conflicting with the Zone Objective and Principle 1, which both sought development resulting in low traffic generation, particularly as he was satisfied that Goodwood Road had the capacity to absorb the additional traffic movements likely to occur.

28. In effect, Mr Weaver's view was that, whatever the traffic generating potential of the recently existing service station on the subject land was, the proposal would merely result in a high traffic-generating use becoming a higher traffic-generating use and was therefore acceptable.

29. I have to admit to having some difficulty with that reasoning. In framing the Zone Objective and Principle 1, the Council adopted a clear policy position directed towards limiting additional traffic generation within the Mixed Use 2 Zone.

30. The Mixed Use 2 Zone encompasses development fronting the greater part of Goodwood Road (a notable exception being the Showground). A number of other zones of a commercial nature also take in portions of Goodwood Road, these being the Mixed Use 1 Zone, the Historic (Conservation) Zone-Centre, the Neighbourhood Centre Zone and the Local Centre Zone. Principle 5 for the Mixed Use 1 Zone reads:

"5. Development should result in low traffic generation, and direct vehicular access to arterial roads should be limited."

31. Similarly, Principle 1 for the Historic (Conservation) Zone - Centre seeks:

".... an emphasis on low-key commercial facilities of a low traffic generating nature" for that portion of the zone on Goodwood Road.

32. In the case of the Neighbourhood Centre Zone and the Local Centre Zone, Principles 5 and 6 respectively refer to the need to limit direct vehicular access to arterial roads.

33. There is a clear policy thrust in the Development Plan for the City of Unley to restrict the growth of traffic on Goodwood Road. It follows that unless it can be demonstrated that the proposal would result in a modest increase over the level of traffic generation achievable on the subject land without a further planning consent, to argue its acceptability on the basis of moving from high traffic generation to substantially higher traffic generation is to fly in the face of that clearly-expressed policy. It is established law that the reality of an existing land use which is in conflict with the objective or objectives for a zone has to be accepted when dealing with a proposed extension or intensification of that use: Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259. That principle, however, does not, in my view, extend to support for development which results in a substantial worsening of the existing conflict, measured against the zone objective. The evidence of Mr Foley, which was not challenged in any serious way, was that the proposal was likely to result in traffic movements more than double those likely to be generated by optimisation of the existing lawful capacity of the site, with attendant effects on traffic flow and an increased risk of rear end collisions. Having regard to that evidence, and to the proposed introduction of a carwash activity, it seems to me that the proposed intensification of what can now lawfully occur on the subject land goes well beyond the latitude created by Courtney Hill, in which view I am reinforced by the unequivocal wording of the zone objective and Principle 1, considered in the light of the comments of Debelle J in City of Mitcham v Freckmann and Others [1999] SASC 234; (1999) 74 SASR 56, at 62:

".... it is important ... to distil from the relevant provisions of the plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provisions in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely it might merit planning approval."

34. In the light of the above conclusion, I have further concluded that the subject proposal is in fundamental conflict with the clearly-expressed planning intent for the Mixed Use 1 Zone.

35. Having so concluded, I now turn to address those parts of the evidence in this matter directed towards site planning issues.

36. The key determinant of the layout of the site is its unusually narrow and deep configuration, with its primary frontage, to Goodwood Road, being only 30m, but its secondary frontage to Le Hunte Street being 123m. This configuration has a number of consequences:

• the potential, on the evidence of Mr Foley, for conflicting traffic movements in the forecourt area;

• the potential for the discharge of significant amounts of traffic into Le Hunte Street, with attendant potential for noise nuisance, at a point opposite dwellings presently under construction, and situated within the Residential B300 Zone;

• the necessity, for noise attenuation reasons, to incorporate into the development a 3.0m high masonry wall extending from the easternmost Le Hunte Street crossover to a point some 4.0m from the eastern boundary of the subject land, a distance of some 45m;

• the need to erect a substantial portion of the retail/administrative building over the Keswick Creek culvert, with resultant partial enclosure of that culvert.

37. The evidence of Mr Foley was that the number of pumps proposed, the location of crossovers, and the configuration of the land combined to produce six separate paths through the site, creating the potential for traffic conflict. These concerns, on the evidence, appear to be shared by Transport SA. Mr Foley held similar concerns regarding conflict between vehicles entering and exiting the site via Le Hunte Street. These concerns were not shared by Mr Weaver.

38. Mr Maddern, in evidence, was of the view that the subject proposal, insofar as it resulted in significant numbers of vehicles exiting the site via the easternmost crossover, offended against a number of relevant provisions of the Development Plan, specifically Zone Principle 5, Council Wide Objective 17, and Council Wide 1 and Principles 16, 130(h) and 162, which are in the following terms:

Mixed Use 2 Zone

"Principle 5: Development should provide a visual and acoustic buffer between the development and adjacent residential zones, and should present a substantial landscaped frontage within the building set-back areas to adjacent roads. To this end, a minimum building set-back of three metres to any road, and 1.5 metres to any other boundary, should be provided.

Unley (City)

"Objective 16: A comprehensive, integrated, and efficient, public and private transport system which will:

(a) provide access to adequate transport services for all people, at an acceptable cost;

(b) effectively support the economic development of metropolitan Adelaide and the State;

(c) ensure a high level of safety; and

(d) maintain the options for the introduction of suitable new transport technologies."

"Principle 16: Development should not create adverse conditions in an area by significantly altering microclimatic conditions, emission of odours and emission of noise."

"Principle 130: Development of redevelopment within centre and mixed use zones, or areas, should meet the following criteria:

....

(h) Development and operation of facilities within a zone, or area, compatible with adjoining areas. This should be promoted through landscaping, screen walls, centre orientation, location or access ways, buffer strips and transitional use areas.

...

"Principle 162: Development associated with the motor trades should be designed and located to cause minimal inconvenience to existing land uses and be compatible with existing uses, buildings and the character of the zone."

39. The use of the easternmost crossover, even recognising the intention to close it off at the cessation of the operation of the wash bay (11.00pm Monday - Thursday, 12.00am Friday and Saturday, 10.00pm Sunday) would, in Mr Maddern's view, create some noise nuisance resulting from the predicted use of that crossover by some 200 vehicles per day with resultant noise impacts on the occupants of dwellings immediately opposite in Le Hunte Street, those impacts being created by vehicles accelerating away from the subject land, car doors slamming, and tyres squealing. While this would not be a frequent occurrence, it would occur from time to time. This would, said Mr Maddern, have impacts on residential amenity which would be "significant but not substantial".

40. Mr M Shaw, who resides in Le Hunte Street, a short distance from the subject land, expressed some concerns, in evidence, regarding the impact of vehicle noise associated with vehicles leaving the subject land via Le Hunte Street, and also regarding the visual impact of the proposed masonry wall. He acknowledged the past use of the site for service station purposes, but was of the view that the level of intensification entailed in the current proposal would create impacts far greater than those experienced in the past.

41. Mr M Downard, an employee of the Patawalonga Catchment Management Board, gave evidence to the effect that the Board was strongly opposed to any form of enclosure of existing watercourses, inasmuch as any barrier across the floodway had the potential to cause a rise in upstream water levels in the event of a major flow. A statement of evidence by Mr K Read of Tonkin Consulting, which firm advises the Council on drainage issues, and which was admitted without the need for cross examination, concluded that the proposal, if implemented, would have no measurable impact on the function of Keswick Creek, would not unreasonably compromise future upgrading options for the creek, and would have minimal impact on water levels upstream.

42. Having regard to all the evidence, I share the concerns expressed by Mr Foley concerning potential for conflicting traffic movements in the forecourt area, and those expressed by Mr Maddern regarding potential noise impacts to the occupants of nearby dwellings in Le Hunte Street. I am less concerned about the visual impact of the proposed wall, and, while I have some sympathy for the views expressed by Mr Downard, I cannot, at this time, find support in the Development Plan for the stance taken by the Catchment Board.

43. Neither of the above issues, taken separately or together, would be sufficient to persuade me that the proposal was unacceptable, provided it was otherwise generally consistent with the relevant provisions of the Development Plan. Having already concluded, however, that the proposal is in fundamental conflict with the planning intent for the zone, they merely add weight to the conclusion that the proposal does not warrant Provisional Development Plan Consent. In reaching that conclusion I have taken into consideration all that was put before me, and all the relevant provisions of the Development Plan, and have not overlooked the Appellant's entitlement to continue to use the subject land for service station purposes. Those existing use rights which do subsist, however, are constrained by the existing layout of, and improvements on, the subject land, and I note that there was no attempt made by the Appellant to argue that those existing use rights extended to accommodate a development of the scale now proposed.

44. There will be an order dismissing this appeal and confirming the decision of Council.