Commissioner Horton of the Land and Environment Court has dismissed community concerns and “is minded to grant consent to the [proposed Woolworths Metro] development.”
Fabcot Pty Ltd (Woolworths’ development company) appealed the decision of the Mosman Local Planning Panel (MLPP) last November to refuse Woolworths’ development application.
The LEC judgment was handed down on 2 November 2021 following a hearing on 5 and 6 October 2021.
The Commissioner determined that the development application warrants granting consent, subject to certain (limited) directions and conditions.
Evidence was given on behalf of Mosman Council by way of joint reports and oral evidence by consultant experts in the areas of planning, traffic, acoustics and heritage.
Six Mosman residents were ‘granted leave to make oral submissions’ objecting to the development. They were:
- Peter Abelson, former Mosman Mayor and consulting applied economist
- John Wakefield, representing Mosman Village Community
- Jenny & Ross Heidtman, owners of nearby commercial and residential premises
- Brooke Johnson, a resident of Belmont Road on a neighbouring site
- Susan Lockhart, a resident of Muston Street
- Peter Twiney, retired transport consultant and traffic engineer
We thank them for representing the community with their well-articulated and well-informed objections to the proposed development, on issues including public interest, traffic congestion, pedestrian safety, parking, impacts on neighbouring residents and businesses.
Unfortunately the Commissioner paid little or no regard to these community submissions, nor those made by experts engaged by Council.
The Commissioner’s words speak for themselves:
150 While public submissions consider Mosman to be well served by supermarkets, the evidence before the Court, in both the Economic Needs Analysis prepared by Location IQ on behalf of the Applicant, and the Peer Assessment of the same prepared by Mr Leyshon Consulting Pty Ltd on behalf of the Respondent, suggests otherwise.
152 Some objections were founded on the ease with which residents of the local area could drive to the existing Woolworths supermarket at Neutral Bay, should they choose. This particular argument only encourages the conclusion, in my mind, that residents who consider a Woolworths in Mosman to be unnecessary because they are able to drive to one in Neutral Bay are likely part of the very traffic congestion of which they, perhaps with good reason, complain.
153 The traffic assessment undertaken in support of the application was completed using SIDRA modelling that analysed the impact of the proposed development on intersections identified by public submissions, finding the following:
* The intersection at Military Road/Belmont Road will continue to operate at its existing level of service.
* The intersection at Military Road and Gouldsbury Street will continue to operate at its existing level of service, and
* The intersection at Gouldsbury Street and the carpark extending to Lennon Lane will continue to operate at its existing level of service.
154 As stated earlier in this decision, … No 1 Belmont Road is at the interface between residential development in the R3 Medium Density Residential zone, and development permissible in the B2 Local Centre zone. Some tension is to be expected at such interfaces between zones.
155 That said, I find the tension to be appropriately managed through the conditions of consent that include:
* The preparation of a Loading Dock Management Plan
* Provision of a dynamic signage system facing Gouldsbury Street
* Procedures for the closing of the car park, management of noise and other aspects that have the potential to adversely impact the amenity of residents adjoining the development.
The full judgment can be found here.
Review of the judgment
The following assessment of the Commissioner’s judgment has been prepared by former Mosman Mayor, Peter Abelson.
Failure to acknowledge MLPP decision
The Commissioner fails to acknowledge, or respond to, the unanimous determination of the 4-person independent Mosman Local Planning Panel (MLPP), despite the MLPP determining:
- that the DA failed to satisfy the Aims of the Mosman Local Environmental Plan 2012, in particular, Clause 1.2 (2) (i) to limit additional traffic, and (j) to recognise the aspirations and needs of the community;
- that the proposal was not consistent with the Mosman LEP 2012.
Failure to consider residential amenity
Written and oral public submissions expressed strong resident concern that the traffic in Lennon Lane, Gouldsbury Street and the Crescent will negatively impact on residential amenity.
The Commissioner wholly dismissed these concerns, taking the view that the traffic impacts and noise would be limited and there would be little congestion in Lennon Lane.
That is not the informed view of local residents nor Council’s traffic experts.
Failure to adequately consider parking requirements
The Commissioner noted that the Mosman Development Control Plans (MDCP) require 56 car parking spaces based on 1 space per 16 square metres gross floor area for retail premises.
Woolworths is proposing 18-20 car spaces. This results in a parking shortfall of 36-38 spaces.
NSW Roads and Maritime Services (RMS) parking guidelines would require 35 parking places for the development.
Despite this, the Commissioner concluded that 18 car parking places are sufficient based on submissions from Woolworths’ traffic consultants.
The Commissioner’s conclusions totally ignored both Council and RMS parking requirements.
Failure to acknowledge impact on traffic congestion
RMS guidelines propose that 420 square metres of commercial floor space generates 50-65 vehicle trips per hour.
This would indicate an increase in traffic on Military Road in the order of 5-6 per cent.
The Commissioner did not cite nor consider these guidelines.
Drawing on SIDRA modelling prepared in support of the development application, the Commissioner concluded that traffic resulting from the development would increase traffic by only 1 per cent along Military Road. Even the Woolworths’ traffic consultant suggested that traffic on Military Road would increase by 2.5%.
The Commissioner stated that “there are good grounds, in my view, to consider the proposed development comparable to that of the Rozelle IGA. Similarities in population, income levels, age, housing status, car ownership and family type are marked.” No data were given to back up this surprising statement.
The Commissioner concluded, drawing on SIDRA modelling, that the intersections at Military Road/Belmont Road, Military Road/Gouldsbury Street, and Gouldsbury Street and carpark extending to Lennon Lane will continue to operate at their existing levels of service.
Currently there are 280 vehicles both ways per hour in Gouldsbury Street. An extra 50 vehicles an hour (based on RMS guidelines) would result in an 18% increase and would have a major impact on intersection queuing time. The Gouldsbury Street exit to Military Road is already extremely congested and at times dangerous in both directions.
Failure to view site in normal conditions
The Commissioner failed to attend the site in normal (post-covid lockdown) conditions. This would suggest any conclusions drawn from the site visit pertaining to traffic, parking and pedestrian safety would be flawed.
Failure to consider the public interest
The Commissioner acknowledged that Mosman Council received 538 submissions from residents in relation to Woolworths’ initial development application, with only 11 submissions in support of the proposed development.
The DA was notified a second time following amendments to the proposal in June 2021 at which time the Council received a further 198 submissions, again mostly opposing the development.
The Commissioner dismissed the views of the overwhelming majority of residents, implying they were ill-informed and of no consequence.
The Commissioner stated (para 152) that “some objections were founded on the ease with which residents of the local area could drive to the existing Woolworths supermarket at Neutral Bay, should they choose. This particular argument only encourages the conclusion, in my mind, that residents who consider a Woolworths in Mosman to be unnecessary because they are able to drive to one in Neutral Bay are likely part of the very traffic congestion of which they, perhaps with good reason, complain.”
The Commissioner does not cite relevant submissions, nor report how many such submissions were made.
The generalised and pejorative nature of the Commissioner’s conclusion, without any supporting evidence, falls short in analytical rigour and displays unwarranted disdain for legitimate community concerns.
As the MLPP observed in its rejection of the development application, local opinion is a critical part of the public interest.
Further issues
We are also concerned that some information has not been made available to the public.
Within the judgement reference was made to a number of reports and plans not made available to the public, including:
- Reviews by Cardno
- Reviews by Council Officers
- Design of the footpath extension to the north of the site.
The design of the footpath extension would mean the loss of trees and reconfiguration of parking, loading, lighting and drainage.
Appealing the judgment
From a community perspective, the judgment does not appear to have appropriately considered substantive issues which will have a detrimental impact on residents and businesses in Mosman.
We understand Council is seeking legal advice on the prospects of an appeal against the judgment.
Councillors are meeting today (9 November 2021) for the last time before Council elections in December.