agenda item - state commission assessment panel · the erd court affirmed the refusal based...

7 May 2015 AGENDA ITEM 3.2

AGENDA ITEM:

Application No: 110/E001/15

KNET Reference: 2015/02566/01

Applicant: GIC Australia Pty Ltd

Proposal: Mixed use development involving

demolition of an existing office and dwellings

construction of:

24 hour restaurant (Hungry Jack’s) with associated

advertising signage, car parking and landscaping

two-storey detached dwelling

Subject Land: 1, 3 and 5 Edwards Street, South Brighton

Relevant Authority: Development Assessment Commission

Role of the Commission: Schedule 10 section 20 – Certain developments over $3m which

have been determined by the State Coordinator General

Zone / Policy Area: District Centre Zone, Brighton and Hove Policy Area as depicted

on Map HoB/8

Categorisation: Merit:

-Restaurant envisaged

-Dwelling in conjunction with a non-residential development

Notification: Category 2

Representations: Eight valid

Lodgement Date: 6 February 2015

Council: Holdfast Bay Council

Development Plan: Holdfast Bay Development Plan Consolidated 18 December 2014

Referral Agencies: DPTI – Transport, EPA

DPTI Reports: -

Officers Report: Daniel Pluck

Recommendation: Development Plan Consent subject to conditions

EXECUTIVE SUMMARY

The Minister has appointed the State Coordinator General with powers to determine certain

development over $3 million in value be considered by the Development Assessment Commission

(DAC) as the relevant authority, pursuant to Schedule 10 of the Development Regulations 2008.

On 13 October 2014 the applicant requested that the State Coordinator General consider making

such a determination for this proposal. After considering the request and being satisfied that the

proposal met the criteria specified within Schedule 10, the State Coordinator General has

determined DAC to be the relevant authority for the purposes of assessing this application.

The applicant seeks approval for a mixed use development involving demolition of an existing

office and two dwellings and construction of a and 24 hour restaurant (Hungry Jack’s) with

associated advertising signage, car parking and landscaping and a two-storey detached dwelling

The subject land is located at 1, 3 and 5 Edwards Street, South Brighton

On balance and taking into the consideration the site and its association with surrounding land

uses, it is unlikely the proposal will significantly and detrimentally impact upon the surrounding

District Centre and Residential Zone. This opinion is informed by comments on traffic, noise and

odour discussed in the reports received from MFY Traffic and Parking Consultants, Resonate

Acoustics and Ekistics Planning Consultants. It is further reinforced when considered against the

commentary which was made by Commissioner Nolan of the ERD Court in recently reaching a

determination of a similar proposal on the same site. As such, the proposal warrants granting

Development Plan Consent subject to conditions.

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ASSESSMENT REPORT

1. BACKGROUND

This application is an amended version of a proposal which has been the subject of an

Environment, Resources and Development Court (ERD Court) appeal (No. 117 of 2014) whereby

the decision of the Holdfast Bay Council’s Development Assessment Panel (DAP) to refuse the

previous application (110/00958/13) was affirmed.

Application 110/00958/13 was lodged with the City of Holdfast Bay in December 2013, underwent

assessment and Category 2 notification before being presented to Council’s DAP in April 2014.

Council staff recommended the application be granted Development Plan Consent subject to

conditions. Council’s DAP resolved to refuse the application due to a range of land use, amenity,

interface and traffic related reasons.

The applicant, GIC Australia, subsequently appealed this decision which led to the ERD Court

decision SAERDC 52 issued on 28 November 2014.

The ERD Court affirmed the refusal based specifically on the access and egress arrangements for

the proposed dwelling which required vehicles to reverse onto Edwards Street. Commissioner

Nolan was of the opinion that the reversing manoeuvre required to exit the proposed dwelling site

did not adequately satisfy the safe and convenient access provisions of the Council’s Development

Plan. All other aspects of the proposal were considered acceptable, including the proposed use of

the land for the restaurant proposal and dwelling.

As a result of the ERD Court decision the applicant has amended the proposal as follows:

Relocated the single garage associated with the proposed dwelling to the rear of the

dwelling site and expanded to a double garage,

Vehicle access into the garage now accessible from the proposed restaurant site via a 6.5

metre wide dedicated right of way to Edwards Street and Brighton Road,

Increased the depth of the proposed dwelling allotment by 2.1 metres to accommodate the

relocated garage and maintain a suitable front setback from Edwards Street,

Replaced the former garage with an internal living room and the driveway with a private

courtyard (surrounded by a 1.8 metre timber privacy screen) and front yard landscaping,

Reconfiguration of the upper level floor plate to provide recessed walls creating articulation

to the western dwelling facade.

Two-way vehicle access and egress from Brighton Road, which was incorporated into the

plans assessed by the ERD Court, has been retained.

3. DESCRIPTION OF PROPOSAL

The proposed development comprises two distinct elements:

a 24 hour Hungry Jack’s restaurant including drive through facility, signage, car parking

and landscaping, and;

a two-storey detached dwelling on a site 7 metres wide by 31.5 metres deep (total of

220m2) abutting (in part) no. 7 Edwards Street.

Details are as follows:

Demolition

Three buildings (two dwellings and a former dwelling in office use) are to be demolished.

Restaurant

Construction of a Hungry Jack’s fast food shop and restaurant, in standard Hungry Jack’s

livery. The restaurant will have seating for 24 persons in an external dining area and 32

seats internally. The building is to be located 8 metres from Brighton Road and 14.4

metres from Edwards Street.

The [restaurant] building will have a total floor area of about 175m2

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Car parking for 20 cars.

Installation of various types of signage comprising a pylon sign, menu board signs,

directional signage and fascia signs.

Provision for a meal order/collection drive through.

Dwelling

A two-storey dwelling located 1.4 metres from the western boundary and setback 8 metres

from Edwards Street.

The dwelling is shown on the drawings as being of brick veneer construction with a low

pitched metal deck roof. The dwelling will contain a kitchen, living and laundry area at

ground level, together with a garage, entry and stairway. At first floor level the building

will accommodate 3 bedrooms, a living area, bathroom and WC. A small balcony is to be

provided facing Edwards Street.

Masonry fencing 2.4 metres high is to be erected along parts of the eastern side of the site

of the dwelling.

Colorbond fencing 2.4 metres high is to be erected to the rear of the proposed dwelling,

along portion of the western boundary abutting the car park and on that part of the

southern boundary of the site abutting 4/3 Oleander Street. The remainder of the southern

boundary is to be fenced with 1.8 metre high colorbond fencing.

Vehicle access and parking to the dwelling in the form of a double garage is to be provided

via an easement through the Hungry Jack’s carpark. No vehicle access will be available

directly onto Edwards Street from the dwelling.

Application details are contained in the ATTACHMENTS.

4. DEVELOPMENT PLAN ZONING

As depicted below the proposal is within the District Centre Zone and Brighton and Hove

Policy Area. The relevant Development Plan is the Holdfast Bay Council Development Plan –

Consolidated 18 December 2014.

Policy Area – Brighton and Hove Policy Area

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The development of the Brighton Centre, in accordance with Structure Plan Mao HoB/2 –

Brighton and Hove District Centre, seeks to achieve a multipurpose centre that incorporates

and integrates a range of community and business activities with medium density residential

development. Development should have a strong sense of locality by the coordinated

development of consolidated sites and a continuous built form edge.

The desired character outlines a focus on retail and community activities and services as well as

commercial, office and after-hours activities envisaged in the policy area. The most intensive

retail development will be clustered around the existing supermarkets and will develop to service

the surrounding community. Retail and commercial activities are to be less intensive in other

areas of the zone, particularly south of Edwards Street.

Sites that are underutilised or have poor layout and design will be progressively amalgamated

and redeveloped in a coordinated manner to promote a vibrant and community oriented hub.

Residential development above or behind non-residential activities is encouraged throughout the

zone. The Centre will provide for a variety of medium density and affordable housing

developments, built in conjunction with the non-residential activities of the Centre. Residential

development will not prejudice the operation of existing or future non-residential activity within

the zone.

Zone – District Centre

The District Centre Zone will achieve lively, vibrant places that provide for a wide range of retail,

commercial, administrative, and community uses, services and functions. It will create inviting

pedestrian and cycle friendly centres distinguished by historic architecture, high-quality functional

spaces and ease of access. Development comprising a variety of medium density residential

(including affordable housing) and non-residential uses should be developed only if it does not

prejudice the operation of existing or future non-residential activity within the zone.

5. TYPE OF DEVELOPMENT

This proposal is a merit form of development as a restaurant is neither complying nor non-

complying within the District Centre Zone. The dwelling is proposed in conjunction with a non-

residential development, and therefore is also considered on its merits. No part of this proposal

falls within the non-complying category.

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6. SITE AND LOCALITY

The subject land is located at 1,3 and 5 Edwards Street, South Brighton and is described as

follows:

Lot No Street Suburb Hundred CT Reference

27 in FP100766

4 in FP145732

28 in FP100767

Edwards Street

Edwards Street

Edwards Street

South Brighton

South Brighton

South Brighton

Noarlunga

Noarlunga

Noarlunga

CT 5746/652

CT 5106/147

CT 5106/146

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In considering the site and locality I refer to and concur with the descriptions outlined within the

Environment, Resources and Development Court of South Australia Judgement of Commissioner

Nolan, GIC Australia Pty Ltd ACN 123 994 829 v City of Holdfast Bay, 28 November 2014:

The site is described as follows:

The subject land is located on the south-western junction of Edwards Street and Brighton

Road, South Brighton. It comprises three allotments as follows:

1 Edwards Street, Certificate of Title Volume 5106 Folio 147;

3 Edwards Street, Certificate of Title Volume 5746 Folio 652; and

5 Edwards Street, Certificate of Title Volume 5106 Folio 146.

Each allotment supports a building of residential form, one of which is approved for use as

an office (a Funeral Director at 1 Edwards Street). None of the buildings are (or appear to

be) occupied. Nos. 1 and 3 are of post war (1950s austerity style) construction, No. 5, a

bungalow, appears to be of slightly earlier construction.

In total, the land comprises some 2116 square metres in area with a frontage to Brighton

Road of 48.7 metres and a frontage to Edwards Street of 43.6 metres (including a corner

cut off).

The rear yard of No.1 Edwards Street is established as a bituminised car park servicing the

funeral parlour. Access is provided off Brighton Road.

The rear yards of Nos. 3 and 5 have been, in part, combined (via the removal of fencing)

to provide for a parking area possibly associated with the supermarket opposite the

subject land. There are no records of any approvals being granted at 3 and 5 Edwards

Street. These allotments are each serviced by a single width crossover on Edwards Street.

All allotments present a typical residential form to Edwards Street, although signage on

No.1 Edwards Street identifies its non-residential use.

Collectively, the land is sparsely landscaped although two established trees are located at

the rear of No. 5 Edwards Street and two trees are located in the front yard of No. 5

Edwards Street.

The locality is described as follows:

Brighton Road is a Primary Arterial Road carrying in excess of 38,000 vehicles per day,

annual average two way flow (vpd aadt). Approximately 5% of this volume accounts for

the movement of heavy vehicles (i.e. 1850 vpd aadt).

Edwards Street links between Brighton Road and the Esplanade. It is a collector street

which I understand to accommodate about 3000 vpd. Edwards Street is one of three roads

in the suburbs of Brighton and South Brighton linking between Brighton Road and the

Esplanade, providing access to the foreshore and beach. There is a bus stop located on the

southern side of Edwards Street in front of the property at 7 Edwards Street. There is a

stobie pole in the footpath opposite the common boundary between 3 and 5 Edwards

Street. A street tree has recently been planted in front of 3 Edwards Street.

Land uses on properties fronting the eastern side of Brighton Road, south of Sturt Road,

primarily comprise a range of office, consulting and commercial activities. There are also a

few small retail tenancies, a motor fuel outlet and a squash courts development. The latter

are land uses of some visual significance and impact.

To the south of this commercial strip, land uses tend to be low scale commercial, small

retail and residential.

On the western side of Brighton Road, south of the Sturt Road intersection land uses

comprise offices, consulting rooms, post office, small retail tenancies and a supermarket

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complex which is situated on the north western corner of the junction between Edwards

Street and Brighton Road. South of the subject land, land uses comprise office, service

trade premises, retail and residential.

East and west of the business strip residential land uses predominate.

The predominant non retail land use activity is in the form of offices, consulting rooms and

buildings used for recreational activity. Apart from the small retail tenancies that appear to

be residual retail uses, the two most significant retail facilities are the petrol filling station

and the Brighton Foodland Supermarket complex at 527 Brighton Road. The former

occupies a large land area but presents as a moderate sized facility of about 350 m2 retail

floor space. The latter is a significant neighbourhood shopping facility, which historically

occupied a smaller site, but which has expanded on to the land abutting Edwards Street.

The supermarket trades till 9pm weekdays and 5pm on weekends. There is a liquor store

and take away food premises in the smaller retail tenancies that may trade similar hours

to the supermarket, but the majority of the small tenancies trade normal business hours.

The Shopping Centre has developed in a fragmented manner with two car parks separated

by the supermarket. The car parks are linked by a roadway that allows two way movement

through the site.

The larger car park abutting the Edwards Street frontage has separated points of egress

and ingress located approximately 40 metres and 55 metres west of Brighton Road

respectively. The point of egress is located opposite the property at 5 Edwards Street, the

westernmost portion of the subject land.

It is my opinion that the portion of the locality south of Edwards Street, has a predominant

commercial character, dominated by office and consulting room developments.

North of Edwards Street the shopping centre is the most dominant retail element, but in

other respects has a significant office/non retail character, and only a moderate level of

amenity.

When balanced against the attributes of the locality as a whole, it is my opinion the locality

has a mixed commercial and retail character, and only a moderate level of amenity.

In addition to Mr Smith’s observations above, I note the single storey form of dwellings

along Edwards Street, west of Brighton Road. Excepting one single storey residential flat

building, all are post war detached dwellings, mostly bungalows, on allotments of some

500 - 800 square metres with 15 to 18 metre frontages.

The above site and locality description provides an accurate account which I concur with and is

suitable for the purposes of this assessment.

Locality Plans and photographs are contained in the ATTACHMENTS.

6. REFERRAL AGENCY COMMENTS

DEPARTMENT FOR PLANNING, TRANSPORT AND INFRASTRUCTURE (DPTI) – TRANSPORT SAFETY AND SERVICE DIVISION (TSSD)

A referral pursuant to Schedule 8 Part 3 – ‘Development adjacent to main roads’ was made to the

Commissioner of Highways (DPTI). The following comments were made:

Overall DPTI raise no objection in-principle to the proposed development however raise the

following points for consideration:

Access and Road Safety

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The amended plan shows a two-way access from/to Brighton Road located approximately 35

metres south of Edwards Street. The Brighton Road access will cater for left-in/left-out

movements and include a suitably designed solid separator island.

The TSSD concur with MFY’s assessment that the Brighton Road access provides the

minimum separation from Edwards Street required to avoid any left-turn conflict overlap

issues. However it is pointed out that there is approximately 8 metres separation between the

Brighton Road access and the neighbouring access to the south; as such the spacing required

to avoid left turn conflict overlap issues between these two access points is not achievable. It

is further pointed out that the Brighton Road access is located within the functional areas of

both the Edwards Street/Brighton Road and Lewis Street/Brighton Road junctions.

Whilst it remains TSSD’s preference that the Brighton Road access provides egress

movements only in order to minimise the likelihood of vehicular conflict on Brighton Road, the

proposed two way access is considered tolerable with the provision of a suitably designed

solid separator island. The access design should ensure that pedestrian access along Brighton

Road is not inhibited by the separator island.

It is noted that all access to/from the dwelling will be gained via the fast food restaurant car

park and the Brighton Road/Edwards Street access points. A right of way will be created to

ensure legal access to the dwelling is available at all times. The proposed right of way should

be amended to reflect the widened Brighton Road access point.

Signage

Recommend via conditions that signage be designed and constructed to minimise potential

distraction to motorists.

The comments from the Transport Safety and Service Division (TSSD) were put to the applicant

for consideration. In response the applicant has confirmed a suitably designed solid separator

island will be provided and that the access design will ensure that pedestrian access along

Brighton Road is not inhibited by the separator island.

The right of way has been amended to comply with the request of TSSD and forms part of the

current plans being assessed. A Land division plan has also been submitted to inform DAC of the

future division to be undertaken.

7. COUNCIL COMMENTS

THE HOLDFAST BAY COUNCIL

Council was provided with the opportunity to make comment, as provided for by the Development

Act and Regulations. A detailed response was received and covers the following matters:

Stormwater - no immediate concern with redirecting treated runoff to the street water

table.

Security - 2.4metre high fences along the residential boundaries will provide a satisfactory

degree of privacy and security for residents.

Traffic/Parking - traffic movement and carparking requirements suitable

Landscaping - Suitable

Privacy and Overshadowing - The location of the two storey dwelling 1.4 metres from the

western boundary avoids loss of privacy from overlooking on adjoining residential

premises. Due to north-south orientation of the dwelling, overshadowing is minimal.

Scale and Built Form - The dwelling component of the development breaches the side

(western) set back-to height ratio requirement in addition to provisions found in the

Development Plan’s General Section, which seeks a setback of 2.8m instead of the 1.4m

proposed. The length of development along the eastern boundary too exceeds the

maximum standard.

Advertising Displays - freestanding signs are specifically discouraged.

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Residential Amenity - The commercial component of the development has been designed

to avoid interface with adjacent land in the Residential Zone through a generous setback

between the restaurant building and the Residential Zone, and through the physical buffer

created by the proposed two-storey dwelling. Amenity may be impacted upon by the 24-

hour restaurant with drive-thru facilities.

An assessing authority must also consider the impact caused to the amenity of the

proposed dwelling, in that is serves as a buffer between two incompatible uses. The choice

to relocate the vehicle garaging access point from Edwards Street to within the restaurant

site will cause new difficulties for inhabitants of the proposed dwelling in their endeavour

to negotiate private vehicle movements through a commercial car park.

Conclusion

The proposed restaurant component is an appropriate land use for the District Centre Zone.

In addition, there are technical features of the restaurant that adhere to the requirements in

the Development Plan, including those relating to car parking, site coverage, building form

and scale, and landscaping. The applicant has also demonstrated how impacts such as traffic,

noise, and odours will be managed. However, the concern is that for all the mitigating

measures adopted, there is no absolute reprieve for residents due to the 24-hour operation of

the restaurant. The cumulative impact of unrelenting exposure to otherwise tolerable daytime

‘nuisances’ (such as noise from activities within a commercial car park, noise from traffic and

machinery, and cooking odours) should not be viewed as inevitable consequences of interface

development. Restaurant use aside, freestanding signs are inappropriate within the District

Centre Zone, particularly where they are greater in height than the building they seek to

advertise.

The dwelling component too has technical shortcomings, including excessive wall heights;

insufficient side set back distances, excessive boundary wall length, and an insufficient

provision of private open space.

The comments received from the City of Holdfast Bay were forwarded to the applicant for

consideration. The applicant provided a response to both Council’s comments and

Representations.

8. PUBLIC NOTIFICATION AND REPRESENTATIONS

The application is Category 2. Eight representations have been received. The key matters raised

include:

Ref Summary Wish to be heard

R1 Traffic and traffic safety, amenity, noise, safety and security 24/7 operation

No (however is included in R2)

R2 Traffic and traffic safety, amenity, noise, 24 hour operation, litter, odours, dwelling in a designated centre zone

Yes

R3 Odour, 24 hour operation, noise, traffic and traffic safety No

R4 Light Spill, noise, truck deliveries, odours, 24 hour operation, smoking in car park, Amenity, vicinity to residential dwellings

Yes

R5 Noise, air pollution, parking, litter, amenity, traffic, light spill, patron behaviour, zoning

Yes

R6 Residential development contradicts the zoning, Amenity concerns Yes

R7 Traffic, noise, light spill, odour, amenity Yes

R8 Extra traffic, odour, noise, 24/7 operation, signage - light spill and amenity, child obesity, overshadowing from the residential component

Yes

Additional representations were received from people/parties that were not formally notified

through the Category 2 notification process, with the majority received after the closure of the

notification period. The Commission has no statutory obligation to consider the issues raised by

these submissions; however the issues are of a similar nature to those raised by the valid

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representations. These submissions have been included within the Attachments for the

Commission’s information only.

The applicant’s response to both Council and the representors is summarised below:

Concern raised Applicant’s response

Traffic congestion

and pedestrian safety

The traffic and access arrangements comply with the relevant

Australian Standards. This has been affirmed by a joint traffic expert

statement prepared in relation to the ERD appeal

Hours of Operation The recent change to the Holdfast Bay Development Plan includes

emphasis that the District Centre Zone now generates a vibrant,

active hub which includes ‘after hours’ activity.

Specifically, ‘after hours’ uses as proposed by the restaurant are

encouraged within the zone, which calls for ‘Facilities within the

zone... sited and designed with a view promoting after-hours use to

reinforce the centre as the focus of social activity in the district’.

Interface amenity

issues

Noise

Resonate acoustics have provided extensive advice and

recommendations in relation to the proposed development of the

subject site and, most recently, reassessment of the proposal to

confirm that the proposed development is anticipated to comply with

the Environment Protection (Noise) Policy, 2007 and has been

designed to protect existing residents in the adjoining Residential

Zone (as well as future residents in the proposed two storey dwelling)

from noise generated by the proposed new restaurant.

Odour and Fumes

Hungry Jack’s intend to use an ‘incendalyst’ smoke and odour

management system. This system is a broiler emission control system

which essentially utilises heat to burn away emission odour. It is

installed directly above the broiler and captures up to 94% - 100% of

the Particulate Matter and Non Methane Hydro-Carbons that would

otherwise be expelled into the kitchen with most other systems.

In addition, as a result of the evidence provided in the ERD Court

hearing by the air quality experts, it is intended to also incorporate

suitably designed and maintained carbon filtration system as an

added measure to further reduce odour emissions. A suitably worded

condition which confirms the use of and further details on this

technology is welcomed.

Other

The proposal offers generous boundary fencing and landscaping and,

in particular, incorporates a substantial landscaping adjacent the

Residential Zone boundary and retention of existing trees. Given the

height of the fencing adjacent the residential boundary (2.4 metres),

the built form height of the restaurant (just in excess of 4.0 metres)

and the physical separation of the restaurant from the Residential

Zone boundary (in excess of 23 metres), the restaurant building is

unlikely to be overly apparent from the existing neighbouring

dwellings and will be well screened by the existing (and proposed)

vegetation and the proposed new dwelling.

Given the combination of boundary fencing and location of light

sources which will be set back and face away from adjoining

residences, it is anticipated that there will be no adverse impact from

light spill.

The proposal is considered to satisfactorily achieve the Development

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Plan provisions relating to interface and amenity.

Suitability of

Restaurant and

Residential land use

Within the District Centre Zone both ‘shop’ and ‘restaurant’ are

envisaged uses, as are medium density dwellings constructed in

conjunction with (either above or behind) non-residential

development, where the residential development does not prejudice

the operation of existing or future non-residential activity within the

zone.

It is acknowledged that the land south of Edwards Street is intended

to be developed in a less intensive manner than the land immediately

surrounding the existing supermarkets and in considering the

‘intensity’ of development, it is important to note that the proposed

development seeks only a modest increase of 194m2 in retail floor

space.

In relation to the dwelling, the proposed mixed use development will

increase residential density within the District Centre in close

proximity to existing shops and public transport and will improve

housing supply, choice and diversity within the City of Holdfast Bay.

In response to Council concerns:

The western side boundary setback of the dwelling at 1.4 metres does

not result in any unreasonable amenity impacts on the existing

dwelling to the west (7 Edwards Street) such as bulk, mass, access to

natural light or overshadowing.

Council’s open space calculations fail to recognise the private front

court yard provided for the dwelling, which, when combined with the

rear courtyard, provides 40m2 of functional private open space. Given

the orientation of the dwelling to Edwards Street and the rear vehicle

access arrangements, the front court yard is both suitable and

appropriate in the context of the dwelling design and should be

acknowledged as private open space.

Advertising The proposal incorporates a modest 6.0 metre high, free-standing,

back lit, illuminated advertising sign together with other fascia and

directional signage. The signage across the site is considered to be

more than suitable and, in fact, quite restrained for advertising within

a District Centre Zone, which already incorporates a number of free

standing signs typical of a ‘centre’ character.

Council previously advised ‘The signage is considered satisfactory

provided that setbacks from the boundaries of the land maintain

suitable lines of sight for drivers of motor vehicles’ and that ‘Its scale

and appearance are considered appropriate in a District Centre Zone’

(Holdfast Bay DAP Report 108/14).

9. PLANNING ASSESSMENT

Suitability of the Land Uses

Within the current Development Plan in the District Centre Zone there is an anticipation of

commercial uses, and residential uses in conjunction with non-residential uses. Both uses are

appropriate in this locality, subject to the consideration of ameliorating potential impacts where

the proposal has an interface with adjacent residential land use.

The suitability of the land use has also previously been assessed in the Environment, Resources

and Development Court of South Australia Judgement of Commissioner Nolan, GIC Australia Pty

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Ltd ACN 123 994 829 v City of Holdfast Bay, 28 November 2014 decision in which the court

found:

I have considered all relevant provisions of the Development Plan, the evidence provided,

the submissions made to the Court and the specified nature and circumstances of the

subject land and its locality. I am satisfied that both land uses proposed are appropriate on

the subject land and that, subject to the imposition of appropriate conditions (upon which

all experts in the fields of acoustics, odour and traffic found common ground), impacts

associated with the proposed restaurant can be satisfactorily minimised.

It is noted whilst the Development Plan has recently been updated the issues of suitability and

interface between land use have not significantly changed.

Dwelling Suitability

The desired character statement with the Brighton and Hove Policy area suggests Residential

development above or behind non-residential activities is encouraged throughout the zone. Given

the residential dwelling is to the rear of the non-residential proposed use, I would consider the

use suitable.

Whilst the dwelling satisfies the majority of the principles set out in the Development Plan it is

deficient in side boundary setback. On the western boundary the dwelling is setback 1.4 metres

from 7 Edwards Street (located within the Residential Zone). The Development Plan suggests as a

guide that a 2.8 metre setback for a dwelling of this nature is preferable.

In respect to this shortfall the ERD Court judgement discusses the merits of the setback;

As to the final matter of built form interface between the proposed dwelling and the

adjacent dwelling and residential area to the west, I agree with Mr Smith that little

consideration appears to have been given to this element of the design although, I expect,

some relatively minor modifications could have achieved a satisfactory outcome. However,

given my findings with respect to the proposal as a whole, this issue is moot.

As a result of this comment the applicant has responded and made an amendment which involves

reconfiguration of the upper level floor plate to provide recessed walls creating articulation to the

western dwelling facade. The articulation provides some visual interest and avoids having a solid

wall to this elevation, which was a criticism of the previous proposal. The more important

consideration with the side setback is the potential for overshadowing.

In relation to overshadowing and when inspecting the adjoining dwelling, it is apparent that a

driveway and carport adjoins the common boundary. Therefore the overshadowing that does

occur will only be on this carport and driveway. Upon inspection of shadow diagrams provided for

the original dwelling application it appears that little overshadowing will be evident upon living

areas and usable open space on 7 Edwards Street. I would consider this to be acceptable, even

given the less than prescribed setback outlined in the Development Plan.

Considering a three bedroom dwelling requires a minimum of 15m2 of private open space; the

provision of two areas of private open space totalling 40m2 is considered suitable. The open space

provided at the front of the dwelling provides for north facing open space. I consider that the

open space provided is suitable and appropriate for the proposed dwelling.

Traffic, Access and Parking

Overall the traffic, access and parking arrangements have been considered by DPTI Safety and

Service Division and deemed to be acceptable, with the inclusion of a solid separator island at the

two way access from Brighton Road.

TSSD also recommend the proposed right of way be amended to reflect the widened Brighton

Road access point. The applicant has made the recommended changes.

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Dwelling Access

The application proposes access to the dwelling be achieved via a vehicular right of way through

the car park in lieu of direct access from Edwards Street.

The ERD Court refusal of the previous application was based specifically on the access and egress

arrangements for the proposed dwelling which required vehicles to reverse onto Edwards Street.

The ERD Court found that the reversing manoeuvre required to exit the proposed dwelling site

onto Edwards Street did not adequately satisfy the safe and convenient access provisions of the

Council’s Development Plan.

As a result of this decision the applicant responded by making the following changes to the

dwelling access and parking arrangements.

Relocated the single garage associated with the proposed dwelling to the rear of the

dwelling site and expanded to a double garage,

Vehicle access into the garage now accessible from the proposed restaurant site via a 6.5

metre wide dedicated right of way to Edwards Street and Brighton Road,

Increased the depth of the proposed dwelling allotment by 2.1 metres to accommodate the

relocated garage and maintain a suitable front setback from Edwards Street,

Replaced the former garage with an internal living room and the driveway with a private

courtyard (surrounded by a 1.8 metre timber privacy screen) and front yard landscaping,

The applicant’s Traffic Consultant, MFY, deemed the arrangements suitable on the revised access

arrangement which can be found in the Attachments.

The Holdfast Bay Council, in their response provided comment on the amended vehicle access to

the proposed dwelling. Their comment states:

The choice to relocate the vehicle garaging access point from Edwards Street to within the

restaurant site will cause new difficulties for inhabitants of the proposed dwelling in their

endeavour to negotiate private vehicle movements through a commercial car park. The

aperture created by the car port door opening to a commercial car park exposes the

dwelling’s limited private open space to the visual and environmental intrusions of the

restaurant and its patrons.

In relation to negotiating private vehicle movements through the commercial car park I refer to

the Updated Traffic Advice, MFY, January 2015 and Traffic Engineering Experts Conference

Statement, MFY and GTA. Within the report it is noted that both expert traffic engineering firms

(MFY and GTA) concur that providing access at the rear of the dwelling with a right of way will not

impact on the design or operation of the Hungry Jack’s car park. The increase in traffic of one

movement in the peak hour will have no appreciable impact on the volume of traffic either in the

car park or on the adjacent road network.

Given the support by the expert traffic engineering firms the proposed access arrangements to

the dwelling are suitable. It should also be noted TSSD do not oppose this arrangement but

request that the right of way is made available at all times to the dwelling.

I would however agree that the access arrangements from an amenity perspective aren’t ideal.

Opening a garage door onto a commercial car park, whilst not unique, is rare in my experience

and will likely impact upon the amenity of the owner/occupier. The Development Plan however

encourages Residential development in association with non-residential activities. The

consequence of this is there is an expectation that residential development such as the proposed

dwelling be appropriate within the District Centre Zone.

In addition, it is clear to any potential owner/occupier that vehicle access to the dwelling is only

available via a right of way through the proposed car park. This access arrangement would

therefore form part of a decision to any potential owner/occupier as to their willingness to live in

the dwelling.

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Overall, given that the technical access arrangements have been agreed upon by two traffic

specialists, and that it is clear that any owner/occupier would be aware of the access

arrangements (and potentially reduced amenity) to the residential dwelling prior to occupying the

dwelling, I am satisfied that this arrangement is generally acceptable.

Advertisements

One primary freestanding sign forms part of the proposal being a 6m sign on the corner of

Brighton Road and Edwards Street. There are four other directional signs which are necessary to

safely and conveniently direct traffic in and out of the proposal.

Within the Development Plan generally freestanding advertisements and/or advertising hoardings

should be:

(a) limited to only one primary advertisement per site or complex, except where a site has

multiple road frontages, in which case, a maximum of one freestanding advertising

hoarding per road frontage

(b) of a scale and size in keeping with the desired character of the locality and compatible

with the development on the site.

Whilst the Development Plan states pylon signs should not be erected within the zone, the scale

and size of the primary sign at 6 metres is not uncommon within a District Centre Zone. This

scale of signage is evident within the existing District Centre Zone as shown in the image below.

Therefore whilst the sign is taller than the size of the structure the signage is of appropriate scale

in the context of existing locality and signage along Brighton Road.

Impacts upon Amenity

Generally both land uses proposed are appropriate on the subject land and that, subject to the

imposition of appropriate conditions (upon which all experts in the fields of acoustics, odour and

traffic found common ground), impacts associated with the proposed restaurant can be

satisfactorily minimised. This was also the finding of the ERD Court.

In addition to this further information has been provided which add to the assessment in relation

to noise and odour:

Noise

In relation to potential noise impacts, Darren Jurevicius, Technical Director, Resonate acoustics

provided a detailed report on the noise levels expected as a result of the proposal. This can be

viewed in the attachments. In summary Mr Jurevicius found:

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The operation of the proposed Hungry Jack’s store will have minimal noise impact upon the

surrounding Residential Zone, particularly given that the majority of noise emitted from

Hungry Jack’s operations is likely to be largely masked by existing traffic noise.

While anti-social behaviour could have the potential to cause noise annoyance and/or sleep

disturbance, Resonate Acoustics do not believe that any nuisance events associated with

Hungry Jack’s will be substantially different in nature or level to those that already exist.

Furthermore, Resonate have been advised by Hungry Jack’s that they do not receive any

regular concerns from residents with regard to excess noise levels or anti-social behaviour

at the West Richmond store, which has similar capacity and is also located on an arterial

road and adjacent Residential Zones. Resonate also understand that the drive through at

the West Richmond store is situated much closer to the Residential Zone and residential

uses that in the Brighton Road proposal.

The proposed development is also appropriately situated from a noise perspective,

particularly in context of the significant existing traffic noise exposure. The noise

mitigation and management measures (eg car park lighting and video surveillance)

proposed for the development will further assist in managing noise nuisance and satisfy

the intent of the objectives within the development plan.

Given the additional content of the acoustic report and having regard to the previous findings of

the ERD Court, I am satisfied that the Hungry Jack’s store would have minimal noise impact upon

the surrounding Residential Zone.

Odour

The Development Plan outlines that any development with the potential to emit harmful or

nuisance-generating air pollution should incorporate air pollution control measures to prevent

harm to human health or unreasonable interference with the amenity of sensitive uses within the

locality.

Specifically in relation to odour the ERD Court found:

Ms Tracy Freeman, on behalf of the appellant, and Mr Johan Meline, for the Council, both

experienced engineers in air quality assessment, made an appraisal of the measures

proposed by the appellant to mitigate odour impacts from the broiler and deep fryer to be

housed in the restaurant kitchen. Detailed odour modelling has been carried out by Ms

Freeman in accordance with SA EPA Guidelines Odour Assessment Using Odour Source

Modelling (EPA 373/07). It is agreed between the experts that the odour management and

exhaust discharge configuration as set out in the operational statement prepared by

Hungry Jack’s, has been designed in accord with the AS1668 and best practice in these

matters.

However, Mr Meline opines that conformity with the Australian Standard does not of itself,

in this instance, represent an odour emission control system which conforms with the EPA

Guidelines, nor with the pertinent policy considerations as set out under the Development

Plan (per Council Wide Objective 16 and Principles 12 and 153). Moreover, Mr Meline notes

that the proposed design with respect to the proposed stack height, the impeded vertical

dispersion and exit velocity of exhaust gases fails the Commercial and Institutional

Kitchens Guidelines of the SA EPA (EPA 122/11). One of the consequences of this

deficiency would bring about a failing with the 2 odour unit standard (averaged over a

three minute period for a 99.9 percentile event) of the EPA 373/07 under certain

meteorological conditions.

The experts have, however, come to an agreement over measures which would bring

about a conformity with the relevant odour impact standards. In a joint statement

prepared, the experts agreed that:

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... with the use of a carbon filter adequately designed ... , odour emissions from the

restaurant will be minor and no odour impacts that would constitute an ”environmental

nuisance” as defined in the Environment Protection Act (1999) are anticipated at either the

existing dwellings or the proposed new dwelling.

Hence, it is agreed between the experts that the proposed ozone generation odour control

unit be replaced with suitably designed and maintained carbon filters. On this basis, it is

accepted that the proposal will meet the EPA Guidelines and is, as such, unlikely to give

rise to unreasonable odour impacts in accord with the relevant planning considerations.

In summary the implementation of suitably designed and maintained carbon filters are required to

ensure the proposal will meet the appropriate EPA Guidelines. A condition (Condition 2) has been

included ensuring a carbon filter form part of odour mitigation solution for the Hungry Jack’s

operation. As a result of this addition I am satisfied the proposal is unlikely to detrimentally

impact upon the surrounding locality.

10. CONCLUSION

On balance and taking into the consideration the site and its association with surrounding land

uses, it is unlikely the proposal will significantly and detrimentally impact upon the surrounding

District Centre and Residential Zone. This has been further confirmed by comments on traffic,

noise and odour discussed in both the reports received from MFY, Resonate Acoustics and Ekistics

Planning Consultants and the earlier ERD Court determination.

In summary:

In context of the District Centre Zone the bulk and scale of all structures (including the

restaurant, dwelling and signage) are considered appropriate;

Traffic, access and parking has been proven suitable;

Amenity concerns have been adequately mitigated via appropriate acoustic treatments and

odour reducing technologies;

The dwelling whilst not meeting all of the provisions in relation to setback, is generally

suitable

Therefore, after considering the site, plans and relevant reports, development plan, responses

from agencies, council and the community, on balance the proposal displays sufficient merit to

warrant approval.

The proposal is not seriously at variance with the Development Plan and I recommend conditional

Development Plan Consent.

RECOMMENDATION

It is recommended that the Development Assessment Commission:

1) RESOLVE that the proposed development is NOT seriously at variance with the policies in

the Development Plan.

2) RESOLVE to grant Development Plan Consent with the following planning conditions and

notes attached:

Planning Conditions

1. That except where minor amendments may be required by other relevant Acts, or by

conditions imposed by this application, the development shall be established in strict

accordance with the details and following plans submitted in Development Application No

110/E001/15.

Plans

MCA Studio Plans

Site Floor Plan – Project No. H1315 - Drawing A1-SK01 – Issue A – Revision 07

Page 17 of 445


Elevations - Project No. H1301 - Drawing A1-SK02 – Issue A – Revision 03

Exg Site Location Plan (showing demolition) - Project No. H1315 - Drawing A1-SK00 –

Issue A – Revision 00

Residence Elevations – Revised Elevations Option 2 - Project No. C1315 - Drawing

A3SK02 – Issue A – Revision 02

Residence Floor Plans – Revised Plans Option 2 - Project No. C1315 - Drawing A3SK01

– Issue A – Revision 02

2. That prior to operation of the restaurant a carbon filtration system (Odor-Gard(c) or

equivalent) shall be installed to mitigate odour from the cooking operations in accordance

with the manufacturers design and specification. Ongoing maintenance shall also be

undertaken in accordance with manufacturer’s specification.

3. That all car parks, driveways and vehicle manoeuvring areas shall conform to Australian

Standards and be constructed, drained and paved with bitumen, concrete or paving bricks

in accordance with sound engineering practice and appropriately line marked to the

satisfaction of the Development Assessment Commission prior to the occupation or use of

the development.

4. That all car parking areas, driveways and vehicle manoeuvring areas shall be maintained

at all times to the reasonable satisfaction of the Development Assessment Commission.

5. That all materials and goods shall be loaded and unloaded within the boundaries of the

subject land.

6. That no sound shall be emitted from any device on the subject land so as to impair or

impinge upon the enjoyment of residents or users of adjoining properties.

7. That the applicant shall submit a detailed landscaping plan for approval by the

Development Assessment Commission prior to the commencement of site works. The

landscaping shown on that approved plan shall be established prior to the operation of the

development and shall be maintained at all times with any diseased or dying plants being

replaced.

8. That the development and the site shall be maintained in a serviceable condition and

operated in an orderly and tidy manner at all times.

9. That all trade waste and other rubbish shall be stored in covered containers prior to

removal and shall be kept screened from public view.

10. That the air conditioning and/or air extraction plant and/or ducting shall be screened such

that no nuisance or loss of amenity is caused to residents and users of properties in the

locality to the reasonable satisfaction of the Development Assessment Commission.

11. That all external lighting of the site, including car parking areas and buildings, shall be

designed and constructed to conform with Australian Standards and must be located,

directed and shielded and of such limited intensity that no nuisance or loss of amenity is

caused to any person beyond the site.

12. That 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 or public road.

TSSD CONDITIONS

13. Suitable pedestrian access shall be maintained across the Brighton Road access.

14. Appropriate signage and line marking shall be installed at the Brighton Road access to

delineate the desired traffic flows.

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Advisory Notes

a) The development must be substantially commenced within 12 months of the date of this

Notification, unless this period has been extended by the Development Assessment

Commission.

b) The applicant is also advised that any act or work authorised or required by this

Notification must be completed within 3 years of the date of the Notification unless this

period is extended by the Commission.

c) The applicant will require a fresh consent before commencing or continuing the

development if unable to satisfy these requirements.

d) The applicant has a right of appeal against the conditions which have been imposed on this

Development Plan Consent or Development Approval.

e) Such an appeal must be lodged at the Environment, Resources and Development Court

within two months from the day of receiving this notice or such longer time as the Court

may allow.

f) The applicant is asked to contact the Court if wishing to appeal. The Court is located in

the Sir Samuel Way Building, Victoria Square, Adelaide, (telephone number 8204 0300).

g) Signage should be designed in accordance with DPTI “Advertising Signs – Assessment

Guidelines for Road Safety” (August 2014). The document is available via the following

link:

http://www.dpti.sa.gov.au/__data/assets/pdf_file/0019/145333/DPTI-Advertising-Signs-

Assessment-Guidelines.pdf

Page 19 of 445

http://www.dpti.sa.gov.au/__data/assets/pdf_file/0019/145333/DPTI-Advertising-Signs-Assessment-Guidelines.pdf

http://www.dpti.sa.gov.au/__data/assets/pdf_file/0019/145333/DPTI-Advertising-Signs-Assessment-Guidelines.pdf


ATTACHMENT A – DEVELOPMENT PLAN POLICY PROVISIONS

Brighton and Hove Policy Area 16

OBJECTIVES

1 The development of the Brighton Centre in accordance with Structure Plan Map HoB/2 –

Brighton and Hove District Centre to achieve:

(a) a multi-purpose centre that incorporates and integrates a range of community and

business activities with medium density residential development

(b) a strong sense of locality by the coordinated development of consolidated sites and

built form achieving a continuous built form edge and development at landmark sites

as gateways to the District Centre

(c) vibrant and connected pedestrian environment through activated building frontages,

co-ordinated pedestrian cover, street furniture and widened footpaths.

2 Progressive redevelopment of sites with poor layout and design and underutilised sites.

DESIRED CHARACTER

The Brighton and Hove District Centre will be the focus of retail and community activities and

services as well as commercial, office and after-hours activities. The most intensive retail

development will be clustered around the existing supermarkets and will develop to service the

surrounding community. Retail and commercial activities are to be less intensive in other areas of

the zone, particularly south of Edwards Street.

Sites that are underutilised or have poor layout and design will be progressively amalgamated

and redeveloped in a coordinated manner to promote a vibrant and community oriented hub.

Residential development above or behind non-residential activities is encouraged throughout the

zone. The Centre will provide for a variety of medium density and affordable housing

developments, built in conjunction with the non-residential activities of the Centre. Residential

development will not prejudice the operation of existing or future non-residential activity within

the zone.

Brighton Road and side street frontages will be activated by maximising the extent of fenestration

along a continuous built form edge, providing legible entrances and providing pedestrian cover

over footpaths with canopies and awnings. Buildings fronting Brighton Road will promote high

quality design through active frontages and an attractive environment for pedestrians through

setbacks that enable landscaping and streetscape spaces as well as providing set-back

consistency with historic buildings. Per Structure Plan Map HoB/2 – Brighton and Hove District

Centre, the centre will develop to include gateway buildings at each end of the centre, landmark

structures at corner sites, and equally, sensitive development adjacent heritage buildings.

Development will be cognisant of the interface with sensitive adjacent land uses, particularly

residential areas. Buildings will be in the order of four storeys.

Landscaping along Brighton Road, wider footpaths and the provision of street furniture and art

will ensure that the centre is an attractive and pleasant destination at all times. Landscaping will

also be utilised to provide a buffer between non-residential developments and adjacent residential

areas.

Car parking will be provided as undercroft or to the rear of developments to maximise the

centre’s presentation to Brighton Road. Car parking will gradually be consolidated and linked to

improve overall centre access.

PRINCIPLES OF DEVELOPMENT CONTROL

Land Use

1 The following additional forms of development are envisaged in the policy area:

Page 20 of 445


Community centre.

2 Bulky goods outlets and service trade premises that require large bulky buildings or external

areas for display should not be developed within the zone.

Form and Character

3 Buildings should be developed to a maximum height in the order of 4 storeys, although 5

storeys may be permitted on landmark sites.

4 Buildings (excluding verandas, canopies and the like) should be set back from the Brighton

Road frontage so as to create a safe and pleasant pedestrian environment and to encourage a

consistent built form edge that supports a pedestrian centred environment.

5 The ground level street frontages of buildings should contribute to the appearance and retail

function of the area by providing at least 5 metres or 60 per cent of the street frontage

(whichever is greater) as an entry/ foyer or display window to a shop (including a café or

restaurant) or other community or commercial use to provide pedestrian interest and

activation.

7 Development on major corner or landmark sites, should:

(a) be designed to emphasise the importance of the street corner including through

chamfering of the building façade, prominent entrances, artwork or sculptural features

and roof design

(b) define and create a landmark building which addresses all street frontages and public

spaces by incorporating elements such as verandas, balconies, windows and other

articulation in the design of the building

(c) incorporate a variety of high quality materials and finishes

(d) incorporate paving and landscaping that integrates with those within the public realm,

whilst also assisting in framing or terminating a vista.

8 Dwellings located above ground level should provide private open space in accordance with

the following table:

9 Development adjacent a residential zone boundary should:

(a) be set back within the 30° angle from the zone boundary when measured from a height

of three metres above natural ground level (and as shown in figure below):

(b) locate and design servicing and loading areas to minimise disturbance to residential

amenity

(c) provide and maintain a landscaped buffer adjacent the property boundary to provide a

visual screen to adjacent residential developments

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(d) include acoustic treatments to building plant and equipment, service and loading areas,

and fencing to minimise disturbance to residential amenity as a result of activities on the

site.

10 Development within the zone should provide car parking in accordance with the following

table:

13 Development should minimise the number of access points onto Brighton Road by providing

vehicle access:

(a) from side streets or rear access ways as identified on Structure Plan Map HoB/2 –

Brighton and Hove District Centre

(b) via co-ordinated through-property access rights-of-way or common rear vehicle

parking areas.

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agenda item - state commission assessment panel · the erd court affirmed the refusal based...

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