agenda item - state commission assessment panel · the erd court affirmed the refusal based...
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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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7 May 2015 AGENDA ITEM 3.2
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
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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
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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:
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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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