Closing Statement




















Port
Adelaide Residents Environment Protection Group


(PAREPG)




Closing
Statement

















Environment,
Resources & Development Court


No
308 of 2013

In
the matter of an Appeal between:


Port
Adelaide Residents Environmental Action Group (
Appellant)


and


City
of Port Adelaide and Enfield
(First
Respondent)

OTR
97 Pty Ltd (
Second
Respondent)


12
June 2014



SUMMARY


Arguments against Proposed
Development


We argue against this proposed
development on grounds that include, but aren’t limited to,


  • Principles and Objectives in the
    Development Plan relating to Zoning and Interface provisions

  • The exacerbation of noise and fuel
    emissions in an area under pressure from currently existing sources
    of such pollution

  • Detrimental impacts on the
    Residential zone including noise, light glare, traffic impacts,
    antisocial behavior, loss of visual amenity, odour, hours of
    operation, air borne pollutants

  • Current poor level of provision of
    public infrastructure, and uncertainty about the level of provision
    of infrastructure, for stormwater management in an area that as
    recent events and past history show is highly flood prone

  • The potential impact of stormwater
    from the proposed development on homes in the area

  • Diminishment of open space in an
    area that is poorly served with public open space

  • The excessive scale and
    inappropriate placement of advertisements on the proposed
    development site


Appellants’ Propositions

  1. This development fails to conform
    with the intent and purpose of the relevant Residential zone.

  2. The Development Plan speaks to the
    desired future character of Restricted Residential Policy Area 65
    and Residential Policy Area 57 and this proposed development is
    inconsistent with that desired future.

  3. This development fails to conform
    with the intent and restricted purpose of the relevant Commercial
    zone which is careful to protect the amenity of adjacent residential
    areas.

  4. For residents at the interface of
    Commercial, Industrial and Residential zones there are impacts on
    the residential zone. However the Development Plan seeks to prevent
    adverse impacts and conflict, to protect the enjoyment of
    residential land and to protect community health and amenity. In
    contravention of these provisions the development will generate
    substantial negative impacts arising from air borne pollutants,
    odour, traffic impacts, noise, glare, intrusive advertisements and
    its hours of operation.

  5. The precautionary principle needs
    to apply especially in relation to stormwater management and fuel
    emissions.

  6. The threat to facilities enjoyed by
    a community is a relevant planning consideration. Past use of the
    land has provided considerable benefits to the community. The
    proposed development will eliminate those benefits.

  7. There was considerable evidence
    that the development would not be a suitable neighbour to nearby
    residents and the community generally.

  8. The development does not fit the
    subject land as a ‘workable site-planning solution’.

  9. In reaching a decision on an
    application, the interests of all who may be affected deserve
    consideration.

  10. In weighing the factors that speak
    for and against the proposal, the evidence is strongly weighted
    against the development.





SECTION
1: INTRODUCTION


For those of us who live in
proximity to this development, the evidence presented in this court
speaks to the challenges facing our community such as

  • the noise and emissions from
    Adelaide Brighton Cement (ABC)

  • the emissions from the nearby fuel
    farms

  • the hazards of living in close
    proximity to local industry

  • the volume of and noise from
    Victoria Road

  • the low level of provision of
    stormwater infrastructure and the potential risks of flooding

  • the increased risk of flooding in
    the Hargrave and Elder Road stormwater catchment, arising from
    infill development in Residential Policy Area 57

  • the low lying land and the
    increasing risk of tidal inundation associated with climate change

  • the lack of local public open space
    and lack of public infrastructure for recreation, visual amenity and
    community enjoyment


However hopefully it has also been
apparent to the court that we are a diverse community, who are
generally resilient, supportive of each other and living lives that
we enjoy in this community. While there are many older residents,
there is also ample evidence of homes being upgraded, large blocks
being split, infill development occurring and a wider spread of ages
represented in our community.


This appeal has drawn support from a
wide cross section of people including

  • People who live in close proximity
    to this development and will be negatively impacted by its
    operations, especially its 24x7 business model

  • People who used the ABC Park for
    almost 20 years for tennis, basketball and recreation and are losing
    access to this valued community facility

  • People who value open space and its
    visual amenity in our locality

  • People who live with the impacts of
    Adelaide Brighton Cement on their homes and property and who feel
    that an implied social contract has been dishonoured by ABC’s sale
    of 60% of the Park.

  • People who were flooded on February
    14th 2014 and who are concerned that the Council’s
    actions, in supporting this development and allowing its runoff
    unimpeded access to the public stormwater system, place them at
    increased risk of flooding.

  • Relatives, friends and neighbours
    of the groups above.


Evidence for the Appellants was
provided by

  • Six lay witnesses including five
    local residents (Maureen Jones, Jane Edwards, Edith Moloney, John
    Mahoney and Len Scott) and Barbara Young of Hillbank.

  • Four expert witnesses: Dr Ian
    Musgrave (fuel emissions), Mr Dean Nobbs (stormwater and flooding),
    Mr Peter Maddern (noise) and Mr Dennis Batge (planning)



SECTION
2: APPELLANTS’ PROPOSITIONS


PROPOSITION 1


  1. This development fails to conform
    with the intent and purpose of the relevant Residential zone.


Residential
Zone


Principle
2: Development listed as non-complying is generally inappropriate.


Principle
4: Non-residential development such as shops, schools and consulting
rooms should be of a nature and scale that:

  1. serves
    the local community

  2. is
    consistent with the character of the locality

  3. does
    not detrimentally impact on the amenity of nearby residents


Procedural
Matters

Non-complying
Development



Form
of Development

Exceptions

Shop
or group of shops


Except
where either (a) or (b) applies:

(a)
a shop where:

(i)
the gross leasable area is 50 square metres or less

(ii)
the shop is attached and integrated with a dwelling

(b)
a shop or group of shops where:

(i)
the gross leasable area is 250 square metres or less




Restricted
Residential Policy Area 65


Objective
1: The continuation of existing residential uses but no new
residential development until the potential hazard impact from nearby
industry is reduced to a level compatible with residential
development.


Non-complying
exemptions:

  1. maintenance
    and repair of an existing building

  2. additions

  3. one
    dwelling

  4. outbuilding

  5. land
    division


On The Run proposed its
development, and purchased a site for the development, on land that
is zoned Restricted Residential Policy Area 65. The western boundary
of the site (approx 33 metres) also adjoins land zoned Restricted
Residential Policy Area 65.


All development within Policy Area
65 is non-complying unless it falls within one of the listed
exemptions above and this proposal does not. In September
2012 or earlier1
On The Run were advised by Council that the development
application would be non-complying.


The Development Plan recognises that
current industrial and residential uses in Policy Area 65, though
obviously co-existing, are not ‘compatible’ and therefore will
not allow new residential development until those hazards are
reduced. Residents indicated that they were not made aware when
moving into the areas, as home owners or renters, of the nature and
impact of the ‘hazards’ from local industry.


Residents gave evidence that some of
the ‘hazards’ arising from local industry include cement dust,
noise and vibration, purging2
and the risk of fire leading to attendance by the fire brigade3
at Adelaide Brighton Cement. Dr Musgrave spoke of the risks arising
from fuel emissions, including from the fuel farms and Victoria Road,
as well as from particulates.


While Mr Rogic was not aware if
Council has specified the ‘hazards’, he agreed that cement dust,
fuel emissions, particulates, noise and purging could all be
considered hazards from local industry.


The Development Plan recognises that
having ‘nearby industry’ to residences has created a bad
situation which should not be made worse. The proposed development is
inconsistent with a policy of lifting restrictions on residential
development once hazards have reduced.


The proposed development will emit
similar if not identical emissions to the fuel farms, thus extending
the effects of the adjacent Industrial zone. Both Dr Musgrave and Dr
Tkaczuk agreed that there was insufficient data to establish the
level of risk in the area of the proposed development.


The development will also generate
further noise, especially noise that disturbs residents at night,
when the noise is a hazard to be reduced and ABC have been seeking to
reduce the impact of their noise (and dust).


The development envisaged in Policy
Area 65 is for the maintenance of existing dwellings and there is no
mention of development other than residential development. However
the Residential zone supports non-residential development such as
shops that serve the local community, shops that have a gross
leasable floor area not greater than 250m2.


Mr Rogic indicated that

Given the size and complexity of the
proposal, it could be argued that the proposal would not be a small
scale development, that said, if the development is of a nature and
scale that serves the local community, is consistent with the
character of the locality and does not detrimentally impact on the
amenity of nearby residents, it could still be appropriate subject to
the assessment of the qualitative requirements of the Development
Plan.4


The proposal by on The Run is
for a mix of shopping and commercial uses that we submit is of scale
and function beyond that which is contemplated by the Development
Plan. It is sited on 3408 sq m, operating 24x7 and located less than
1 kilometre from two 24x7 service stations with stores on Victoria
Road. The development does not provide for ready access by bicycle
or walking and will not encourage community interaction in the manner
for example of local corner stores. The building for retail, dine in
and other facilities would be 379 sq m.


Mr Batge advised the Court


The procedural matters for the
Commercial Zone and Residential Zone both, among other things, list a
shop with a gross leasable floor area in excess of 250m2 as
non-complying and to that extent their development is discouraged.
The proposed building exceeds this by 129m2 or 51.6%.5


Ample evidence
was presented that the development is oriented to Victoria Road and
would not be focused on service provision to the local community.


The following
interchange6
occurred between Counsel (Respondent 1) and Mr Batge:


R1: Could I put
it to you that the layout of the site and the manner in which it is
presented is very much to Victoria Road?

Mr B: I think
yes, like it primarily addresses Victoria Road, yes.

R1: The very wide
new incoming crossover and outgoing crossovers are on Victoria Rd?

Mr B: Yes

R1: The intent of
the signage is presumably to attract the attention of vehicles moving
along Victoria Rd...the intent is to attract traffic...the intent is
to attract people on Victoria Road and to have them enter the site,
conduct transactions and leave the site...the great majority of the
persons using this facility will be using it for fuel or for the fast
food offer in terms of numbers? (Multiple questions combined)

Mr B: That would
be the greater number yes.


Mr Rogic makes six mentions in his
report of the role of signs on Victoria Rd for ‘early detection for
motorists’.


Mr Garwood, site
manager for
On The Run, Hillbank
on Main North Road said


We are very much
traffic-driven, so when Main North Road is busy, we are busy. We are
not overly residential in our – I guess with our customers.


The clear
evidence of the development’s orientation to the traffic of
Victoria Road undermines arguments that it will serve the local
community.


As discussed below this proposed
development would detrimentally impact on the amenity of nearby
residents with regard to noise, loss of visual amenity, air borne
pollutants, traffic volumes, headlight glare, intrusive signage,
increased flooding risk and increased risk of antisocial behavior
such as burn outs, crime, vandalism and graffiti.


PROPOSITION 2


  1. The Development Plan speaks to the
    desired future character of Restricted Residential Policy Area 65
    and Residential Policy Area 57 and this proposed development is
    inconsistent with that desired future.


Restricted
Residential Policy Area 65


Desired
Character: This policy area is located in close proximity to
significant industrial activities. The impacts of these industrial
activities will constrain development opportunities in the area.
Existing dwellings at the end of their economic life cycle will be
replaced but there will be no additional dwellings built until the
hazard risk associated with nearby industry has been reduced to
acceptable levels.


Lefevre
Peninsula East Policy Area 57


Desired
Character

The
policy area, comprising a large portion of the older coastal suburbs
of Lefevre Peninsula, is intended for redevelopment through infill
redevelopment at low to medium densities. New residences are expected
to reinforce the mixed character of the area with a wide range of
housing types and styles. The main focus for larger medium density
developments is near to adjoining railway stations and centres.
Access to open space will be an important consideration for larger
developments in the suburbs of Birkenhead, Largs North and Peterhead.


The Development Plan anticipates
residential development in Restricted Residential Policy Area 65,
when the hazards of industry are reduced, and infill development in
Residential Policy Area 57. An industrial scale service station
complex in the zone is contrary to the Desired Character now and when
new residential development will be possible.


Maureen Jones outlined7
improvements made by Adelaide Brighton Cement under their
environmental improvement plans over the last twenty years and which
she described as ‘reasonably significant’ though clearly not yet
to an extent that the community can now live without adverse
environmental impacts. The Annual Compliance Plan 2013-14 for the EPA
includes a ‘Strategic Compliance Activity’ of reducing ambient
dust levels and noise from Adelaide Brighton Cement8.


Policy Area 65 is surrounded by the
Residential Lefevre Peninsula East Policy Area 57 Zone to the north,
west and south. Infill residential development is proposed in
Residential Lefevre Peninsula East Policy Area 57. The addition of
large integrated service station complex is completely contrary to
the aims of these policy areas. It also runs counter to current and
planned residential development in the wider Birkenhead area. In
addition, loss of open space will heighten the shortage of
recreational open space in the area.


PROPOSITION 3


  1. This development fails to conform
    with the intent and purpose of the relevant Commercial zone.


Commercial
zone


Objective
1: A zone accommodating a range of commercial and business land uses.


Objective
2: Development that minimises any adverse impacts upon the amenity of
the locality within the zone.


Desired
Character

It
is envisaged that commercial development will be compatible with
adjacent residential character and amenity by avoiding excessive
scale, noise or traffic generation.


PDC
1 The following forms of development are envisaged in the zone:

  • bulky
    goods outlet

  • consulting
    room

  • motor
    repair station

  • office

  • petrol
    filling station

  • service
    trade premises


PDC2
Development listed as non-complying is generally inappropriate.


PDC10
Development adjacent to, or immediately opposite a residential zone
should not detract from the amenity of residents living in the
Residential Zone
and should:

(b)
provide a visual buffer in the form of landscape plantings,
attractive fencing, siting of buildings or other similar means
between any car parking, service area, outdoor storage area or any
other unattractive part of the development and the
Residential
Zone

(c)
provide acoustic treatment between any excessive noise generating
part of the development and the adjoining residential areas.


PDC13
Advertisements should not exceed a maximum height of (a) or (b),
whichever is lesser:

(a)
equal to the height of the associated building

(b)
no greater than:

(i)
6 metres for sites with frontage onto Grand Junction Road, North East
Road and Main North

Road

(ii)
4
.5
metres for all other sites.


Procedural
Matters

Non-complying
Development



Form
of Development

Exceptions

Shop
or group of shops


Except
where:

(a)
the gross leasable area is 250 square

metres
or less

(b)
the shop is for a bulky goods outlet


Scale of the development


An integrated service station
complex that operates 24 hours per day across 3408
m
2 and includes
the provision of fuel, shop, dining facilities (drive through,
takeaway and restaurant) and car wash and dog wash service is not
envisaged in the zone. It is not included in the list of developments
envisaged in the zone and is significantly broader than a ‘petrol
station’ as defined in the Development Regulations 2008.


The proposal is a non-complying
development in that the building is 379m2.
This is well in excess
of the 250m
2,
above which development is non-complying and PDC2 states
that development listed as non-complying is generally inappropriate.


Impacts
on amenity


The proposed development will
detract from the amenity of nearby residents. The adverse impacts
will include increased and excessive noise, increased air pollution,
loss of environmental amenity including visual amenity, increased
traffic volumes, headlight glare, intrusive signage, increased
flooding risk and increased risk of crime, vandalism and graffiti.


While the desired character of the
Commercial zone envisages commercial development compatible with
adjacent residential character and amenity by avoiding excessive
scale, noise or traffic generation, this extensive proposed
development seeks to attract trade from the high volume traffic along
Victoria Road. It is intended that instead of continuing along
Victoria Road that vehicles will slow, brake, enter, idle or stop,
start and exit from this large facility. Vehicles will enter and exit
from both Victoria Road and Hargrave Street and the impacts of this
will be felt especially during sleeping hours.


This will significantly change the
nature of the traffic noise that will be heard by local residents,
who indicated that at present Victoria Road operates as a hum. Mr
Maddern’s evidence highlighted the impacts of his so called
‘rabbits’ on residents and Mr Garwood indicated that burn outs
and drive offs occur onto Main North Road. Mrs Young, whose property
adjoins On The Run Hillbank, spoke of the impact of the drive
through and also of the noise arising from anti-social behavior of
customers:


A couple of the biggest problems is
the noise. When people come in to order food their radios are blaring
loud, they’re swearing, it is just on mainly through the weekend
from Thursday to the Sunday, they screech in their brakes9.


They’re all yelling with their car
windows down, they’re yelling and shouting and swearing and then
they order their food and they keep doing it until they get the food
and then they sit round the side, same thing to eat their food10.


They ride their brakes and smoke
pours out of the exhaust with them riding their brakes11.


While some residents were not
affected by the noise of ABC or Victoria Road, others spoke of sleep
being interrupted by ABC e.g. a fire alarm at 3am. There is potential
for interference with the sleep of more residents through the
Victoria Road and the Hargrave Street entrances/exits, as indicated
by Maureen Jones:


We already endure noise and so to
have people screaming into a speaker box their orders for food,
tooting horns, yelling, braking, screeching cars and revving cars,
which are all things that I have observed when I’ve gone around to
look at the other On The Run service stations…I mean it’s
hard enough to sleep. It’s that interspersing noise. The continuous
noise is one thing, but that screeching.12


Mr Batge advised

There is noise and activity
associated with car engines and doors, human voices, mechanical
operations of car washing, possible dog barking and the noise of car
engines, human voices and in-car entertainment systems all of which
has the possibility of detracting from the amenity of adjacent
residential premises13.


In relation to amenity, the
Commercial zone includes specific provision for a visual buffer and
acoustic treatment. While a visual buffer is required for residents
who live on the southern side of Hargrave Street, the proposed
development provides for an entrance/exit on Hargrave Street directly
opposite them. This entrance/exit will cause headlight glare into
their homes and allow noise to leave the site. It will generate
excessive noise especially from vehicles exiting and will exclude
these residents from any benefits of a visual buffer.


There is no dispute that residents
on Hargrave Street will be affected by the entrance/exit and
Council’s report to DAP recognises that


there is
potential for some negative social impacts emanating from the site
via the increased use of the local street network for access and
egress to the site14.


Despite the zone’s intention to
minimise adverse impacts on residents, Mr Rogic sees no need to do so
in relation to headlight glare.


In my opinion vehicles leaving the
site via the Hargrave Street exit may cause a degree of light impact
on the dwellings at 192 and 194 Hargrave Street, however the proposal
has been assessed on its overall merits and it is considered that the
degree of headlight impact is considered acceptable.


In relation to visual buffers, the
site proposes only 372m2
of landscaping, generally concentrated on Victoria Road. The
scale of the development on the site allows for very limited
landscaping along Hargrave Street. Following questioning about the
width, height and depth of the landscaping on the Hargrave Street
boundary, Counsel (Respondent 2) indicated that a landscaping plan
could be developed and that On The Run would be willing to
consider landscaping only (no fence) if that was the appellants’
preference. However, while the entrance/exit remains, the residents
on Hargrave Street who will be most affected by noise and headlight
glare will not benefit from either option of landscaping only or a
fence and minimal landscaping. It is also unclear what extent of
landscaping will be provided given the scale and layout of the site.


A 2.5 metre off white colourbond
fence on Hargrave Street will not be visible to the On The Run
staff and could be a target for graffiti. There is no landscaping
plan at present and any landscaping would have to be provided and
maintained at an appropriate width, height and depth of planting.


As will be outlined under
Proposition 4, the evidence of Mr Maddern should be given much
greater weight than that of Mr Turner in relation to the adverse
impacts of noise on the homes along Hargrave Street. Similarly the
direct experience of Mrs Young of Hillbank, in line with the evidence
of Mr Maddern, warrants most weight in relation to noise impacts on 8
Alfred Street.


The proposed advertisements at 9
metres and 7 metres are well in excess of the height envisaged in the
Commercial zone and will detract from the residential areas to the
west and the south.


The benefits of large signs seem to
lie with On The Run rather than motorists, given there is a
competitor service station further north on Victoria Road, and the
signs are without benefit to the local community.


While swapping the signs might
lessen the impact on nearby residents, they are still excessive in
relation to the surrounding residential areas and to commercial areas
(further north) and will still not conform with PDC13. They could
also set an unhelpful precedent for the (narrow) Commercial zone to
the north of the development.




Proposition 4

  1. For residents at the interface of
    Commercial, Industrial and Residential zones there are impacts on
    the residential zone. However the Development Plan seeks to ‘prevent
    adverse impact and conflict between land uses’, to protect the
    enjoyment of residential land and to ‘protect
    community health and amenity’
    .
    In contravention of these provisions the development will generate
    substantial negative impacts arising from air borne pollutants,
    odour, traffic impacts, noise, glare, intrusive advertisements and
    its hours of operation.


Interface
between Land Uses


Objective
1 Development located and designed to prevent adverse impact and
conflict between land uses
.


Objective
2 Protect community health and amenity and support the operation of
all desired land uses
.


PDC1
Development should not detrimentally affect the amenity of the
locality or cause unreasonable interference through any of the
following:

(a)
the emission of effluent, odour, smoke, fumes, dust or other airborne
pollutants

(b)
noise

(c)
vibration

(d)
electrical interference

(e)
light spill

(f)
glare

(g)
hours of operation

(h)
traffic
impacts
.


PDC2
Development should be sited and designed to minimise negative impact
on existing and potential future land uses considered appropriate in
the locality.


PDC4
Residential development adjacent to non-residential zones and land
uses should be located, designed and/or sited to protect residents
from potential adverse impacts from non-residential activities.


PDC6
Development should be sited, designed and constructed to minimise
negative impacts of noise and to avoid unreasonable interference.


Orderly
and Sustainable Development


1
Orderly
and economical development that creates a safe, convenient and
pleasant environment in which to live.


3
Development that does not jeopardise the continuance of adjoining
authorised land uses
.


The provisions of the Interface
section of the Development Plan continue the thread of minimising
adverse impacts and seek to ‘prevent adverse impact and conflict
between land uses’.


Five factors that should not
detrimentally affect amenity – air borne pollutants, noise, glare,
hours of operation and traffic impacts – will generate adverse
impacts on the residential zone if the proposed development proceeds.
There is substantial disagreement between the parties about the
extent to which regard should be given to those impacts.



Air borne pollutants

Council received representation from
PAREPG15
that included information about the potential impact of the
development on the local air quality arising from Volatile Organic
Compounds and Small Particle pollution. PAREPG proposed use of Stage
2 vapour recovery for this development given existing local levels of
emissions. However Council elected not to forward PAREPG’s
representation to the EPA.


The Council submission to the DAP
argued that

Likewise the baseline air quality is
considered likely to be poor given the adjacent industrial uses
within the locality with a reasonably high amount of localised
pollution likely. Therefore additional movements of vehicles to and
from the site are not considered to be changing the nature of the
baseline environment, from the perspective of air quality.


This suggests a lack of concern for
residents and no effort to prevent or minimise adverse impacts.


Mr Rogic contends that the
appropriate referrals were undertaken16
and with Stage 1 vapour recovery and EPA conditions that air
emissions are minimised and managed to an acceptable degree. The
evidence of Dr Musgrave and Dr Tkaczuk
indicate that no such conclusion can yet be reached.


Odour

Mrs Young gave evidence of an odour
‘like bad fat’17
from the Hillbank On The Run and this was confirmed by Miss
Stockman from On The Run who indicated that the smell arose
from the system dealing with runoff from the site.


..it’s like the oil filter, for
all petrol sites..it filters out all the oil from the stormwater18.


No evidence was led that these same
problems would not arise at the proposed site.


Traffic Impacts


Mr Weaver’s report was supplied to
the Appellants late on the afternoon of 15th May, when
final submissions were due by cob on 13th May.


We understand that Mr Weaver is
highly regarded by the Court and that the Court does not envisage any
difficulties associated with traffic management.


Local experience suggests
there are difficulties at the intersection of Hargrave St and
Victoria Rd. In their testimony to Court Mr Mahoney, Ms Jones and Ms
Edwards anticipated further difficulties arising from the entrance to
the development on Victoria Road and the entrance/exit on Hargrave
Street.


Asked by Counsel (Respondent 2)
about ‘the occasional fast car along Hargrave Street’ Ms Jones
replied


There isn’t a problem at this
stage but that does concern me because with the exit coming on to
Hargrave Street and the fact that the corner is so close to where the
exit from the petrol station is, they’re going to have to rev to
get out because those people coming around the corner basically doing
about 50 …you’ve got seconds to get around that corner because
people are right behind you19.


To undertake his breakdown of
traffic volumes between Hargrave St and Victoria Rd, Mr Weaver was
supplied with transaction data for the BP Wayville
and for the Oporto at Hillbank. Mr
Garwood from on the Run advised the Court that the performance
of this Oporto is disappointing:


..the Oporto’s offer,
unfortunately for us, hasn’t been that busy..20


This calls into question the base
data on which Mr Weaver has modeled the extra volumes and split of
traffic at Peterhead.


It is noted that while On The Run
at Hillbank has a control building of about 530m2 on a site of
about 4230m2, and there are 16 bowsers
and 35 to 40 seats in the dine in food
facility, there are 42 car parks onsite and most staff park offsite.
By comparison the proposed development will have a site of
3408m2, a control building of 379 sq metres, 18 fuel filling points,
36 seat dine in facility and yet only 23 car parks onsite. This
suggests there will be a significant problem for local residents with
staff parking on the street, given that many homes along Hargrave
Street do not have garages or space to drive their vehicles in off
the road.


Mrs Young and Mr Garwood advised
that staff parking had caused difficulties for local residents. Mr
Garwood outlined:


We have three staff car parks
onsite…The remaining team members park where the council allow them
to basically…There were ‘no parking’ provisions put into
place…The majority of the staff park, there is a – a little bit
further north there’s actually a section of road that is then
blocked off, it’s a dead end and there’s trees and a bit of dirt
there which is where the majority of the team members park now…it’s
not in front of any houses or anything, so I would assume it’s
council land…21


Noise


In relation to noise, the experts
are divided in their opinion in relation to


  1. Hargrave Street crossover

  2. Northern boundary with 8 Alfred St


Mr Maddern’s Statement was
provided to the Respondents by email late on 13th May
whereas Mr Turner’s Statement dated 14th May was
provided to the appellants late on 15th May.


Significant weight should be given
to Mr Maddern’s evidence and less weight to Mr Turner’s evidence
in relation to the Hargrave Street crossover since the evidence
revealed that


  • Mr Turner’s August 2012 report
    wrongly assumed that the site was based ‘within a Commercial zone
    while residences in vicinity are located within a Residential
    zone’22.
    In fact the site includes land zoned Restricted Residential Policy
    Area 65 and adjoins land in the new park and 8 Alfred Street that
    are also in this zone.

  • Sonus identified the most noise
    affected property as 103 Victoria Road23,
    whereas Mr Maddern advised that houses on the south of Hargrave
    Street are most noise affected. These homes are also close to the
    crossover.

  • With the recommended acoustic
    treatment in place, the noise levels predicted by Sonus at 103
    Victoria Rd was 52 dB(A) during the day and 49 dB(A) at night. Sonus
    argued this met the goal noise levels of the Environment
    Protection (Noise) Policy 2007
    of 57 dB(A) during the day and 50
    dB(A) at night. The required development levels for a site that
    includes land in both Commercial and Residential zones are 52 dB(A)
    during the day and 45 dB(A) at night. This means that the level at
    103 Victoria Road was at the daytime limit during the day and above
    it at night.

  • Mr Maddern measured the ambient
    noise levels24
    at 194 Hargrave Street and found that the L90 and Leq levels were
    significantly lower than those reported25
    by Mr Turner at the ‘nearest residences’. Mr Maddern reported
    52-54 dB(A) L90 whereas Mr Turner’s measures were in the vicinity
    (above and below) 60 dB(A) L90.

  • Mr Maddern measured noise levels of
    two way traffic flow on Hargrave Street through the night and found
    it appeared to fit within the 60-70 dB(A) Lmax range but with some
    going over 80dB(A).

  • Mr Maddern determined that traffic
    use of the proposed crossover is on average 68.8dB(A) and
    considerably louder than the existing influence of industry (52-54
    dB(A) L90).

  • Mr Turner utilising a different
    methodology determined levels of 55 to 65 dB(A) for turning in and
    out of a crossover at Welland Plaza. Mr Turner indicated that he
    positioned himself at Welland Plaza at the distance from the
    crossover to the facade of 94 Hargrave Street, though he conceded
    that 94 Hargrave may not be the most noise affected residence.

  • Despite vehicles going west needing
    to cross Hargrave Street from the development and avoid encountering
    vehicles turning into Hargrave Street from Victoria Road, Mr Turner
    suggested that the crossover would provide a traffic calming effect.

  • While traffic analysis by Mr Weaver
    suggested that there would be 9% additional traffic on Hargrave
    Street to and from the development during sleeping hours, this
    analysis is derived in part from data from the Hillbank Oporto which
    OTR advised is a poorly performing facility. This makes it an
    unreliable data source for the Peterhead traffic analysis.

  • Mr Maddern referred to the
    ‘degraded residential acoustic environment’ created as one of
    the impacts by neighboring industry and the provisions of the
    Development Plan that seek prevention and minimization of further
    impact on residents. Mr Maddern also took into account that some of
    the houses in the vicinity of the crossover are relatively close to
    the road and many are not of masonry construction.

  • Ultimately Mr Turner argued that
    the crossover ‘will not unreasonably interfere with the amenity of
    the Hargrave Street locality’. Mr Maddern referred to the WHO
    standard for sleep disturbance and recent case law and argues that
    ‘I do not think it could be reasonably said that significant use
    of the Hargrave Street cross over after 10pm at night can do other
    than act to the detriment of amenity of dwellings largely opposite
    it and beyond.’




The Appellants called Mrs Young of
Hillbank and her experience provided clear evidence as to the likely
impact of the drive through on 8 Alfred Street. Mrs Young gave
evidence that she heard vehicles for 10 to 15 minutes in the drive
through of On The Run, Hillbank playing loud bass music (doof
doof) that she experienced as vibrating through her body and home.


In response to a question about
queuing in the drive through, Mrs Young replied


They do come in various stages. Some
come like, maybe two or three or they might just come once, you know
one car, but it’s when there’s a few of them out for a joyride
and they’re following one another. That’s the worse part when
they come through26.


Asked about the time when she hears
noise that most concerns her, the nature of the noise and if it’s a
bass sound she replied27


Probably about eight o’clock til
twelve when we’re sitting down watching television, all we can feel
is thump, thump, thump in our chests and the music, it’s between
those hours…


The radio is like big blasting music
and all my house starts to shake with the vibration of the thumping
of their music…


Yes a very heavy bass.


Asked by Counsel (Respondent 2)


The whole of the house you say
starts to shake?


Mrs Young replied


Some of the windows rattle with
them, yeah28.


Evidence of windows vibrating was
earlier received from Maureen Jones who spoke of ‘shaking windows’
from the noise of Adelaide Brighton Cement


And it’s an ongoing noise problem
and vibration – my windows rattle most nights.29


Mr Turner advised the Court that
noise would need to be above 100 or 110 dB(A) to get window
vibration, and yet Sonus’ background noise data30
at Peterhead does not show Maximum Noise Levels at those levels. Mr
Turner agreed that sound theory does not rule out windows vibrating
at lower noise levels.


Staff at On The Run Hillbank
indicated that they did not hear noise in the drive through unless
the vehicle was in close proximity to the order station (orders are
taken via radio link by staff with headphones elsewhere in the store)
and/or the collection point. Mr Garwood also reported that they had
had no noise difficulties in the drive through except for the
occasion of Mr Maddern’s visit which was in contrast to Sonus’
visit which ‘made no noise’31.


Mr Garwood confirmed that customers
wait on average 3.5 minutes but can wait up to 10 minutes at peak
periods for their drive through orders and that there is room for
perhaps six cars between the order and collection points.


Space for 9 vehicles is provided in
the drive through of the proposed development.


Staff at On The Run Hillbank
advised that there had been no noise complaints from neighbours and
that they were unaware that Mrs Young was experiencing noise impacts,
since they had not initiated contact with neighbours. Mr Garwood also
indicated that there are about 39 CCTV cameras onsite but none
directed to the drive through where they might detect anti social
behavior.


Significant weight should be given
to Mr Maddern’s evidence and less weight to Mr Turner’s evidence
in relation to the Alfred Street boundary because the evidence
revealed that


  • Mr Maddern was mindful of the
    narrow space of the drive through, the tall building, vehicles
    between other vehicles (queueing) and the many reflecting surfaces
    these combine to create. He also advised that low frequency sounds
    are absorbed very little.

  • Mr Turner and Mr Maddern used
    different methodologies in modeling, different noise sources for
    testing at Hillbank OTR and different residences at Hillbank. The
    results of the measured noise level reduction were inconsistent; Mr
    Maddern getting lower levels of reduction (higher levels of noise)
    than Mr Turner.

  • Mr Turner used ‘white noise’
    that includes all the frequencies as a noise source. However the
    human ear does not hear all those equally and the lower frequencies,
    which Mrs Young reported gave the greatest problem, are
    underrepresented (as heard by people) in white noise.

  • Mr Turner has, but did not provide,
    the data for the reduction in noise levels for low, medium and high
    frequencies, while reassuring the Court that there was a ‘reasonable
    reduction’ in all frequency bands.

  • Both Mr Maddern and Mr Turner agree
    there will be some masking of noise from the drive through because
    of the background noise.

  • Mr Maddern was concerned by what he
    termed ‘rabbits’ and the impacts they generate. Mr Turner
    indicated that in testing at Hillbank he recorded 1 of 10 vehicles
    in an hour ‘resulting in a maximum noise level of 58 dB(A) i.e.
    one rabbit in that daytime period.

  • Mr Turner reported that the woman
    at who’s home in Hillbank he’d conducted testing (name unknown)
    did have occasional difficulties with noisy vehicles.

  • Mr Maddern advised that the
    proposal does not amount is his view to practical minimization and
    that he would defer to the experience of Mrs Young.


Headlight Glare

In responding to how he and his
family might be affected by the proposed development, which is
directly opposite the Hargrave Street crossover, Mr Mahoney said


There will be a driveway opposite
our driveway virtually. I should imagine that there will be an
increased traffic flow in and out of that and if I could make any
recommendation, if this proposal went forward, that they not have a
driveway there…


at night-time there will be
headlights coming into our house32.




Mr Batge’s advised the Court that


The proposal has not been laid out
and designed to sufficiently minimise its impact on the Development
within the Residential Zone. It locates a driveway on Hargrave Street
where it will maximise the impact of onsite activities, vehicle
movements, noise and headlight glare on residences in that street.


Mr Rogic
downplayed the consequences of ‘light impact’ on the dwellings at
192 and 194 Hargrave St in the context of the development’s
‘overall merit’33,
despite evidence and the view showing that car lights when exiting
the development would shine directly into these homes.


Hours of Operation


The proposed development would
operate 24x7 on a site that currently generates no use after dark.
Residents spoke of the pleasure of both using the site and seeing
others use it and the lack of anti-social behavior associated with
its use as a park, for almost 20 years.


Residents are concerned that the
24x7 nature of the operation will generate noise, glare, people
congregating at the facility and or at the adjoining park, stereo
noise while vehicles are refueling, stereo noise while people eat
their food in the parking bays, anti-social behavior such as burn
outs, drive offs, graffiti and crime.


Individually the five areas of
impact discussed above - air borne pollutants, noise, glare, hours of
operation and traffic impacts – would all be wearing for residents.
Collectively they are likely to be demanding and stressful and impact
negatively on residents’ sleep. If On The Run and /or
Council are then unwilling to act on resident concerns, feelings of
powerlessness can exacerbate the stress and heighten the diminishment
of residents’ quality of life, particularly as they consider the
situation before and after the presence of the development.


Proposition 5


  1. The precautionary principle needs
    to apply especially in relation to fuel emissions and stormwater
    management.


In
relation to fuel emissions and stormwater management we ask the Court
to apply the precautionary principle, one definition of which is:


3.5.1
Precautionary principle34
-

Where
there are threats of serious or irreversible environmental damage,
lack of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.


In
the application of the precautionary principle, public and private
decisions should be guided by:

1.
Careful evaluation to avoid, wherever practicable, serious or
irreversible damage to the environment; and

2.
An assessment of the risk-weighted consequences of various options.

The evidence
before the Court revealed a lack of reliable scientific data in
regard to the amount and type of emissions and flooding that will
arise from the development. Therefore the Court cannot make an
informed decision, based on scientific data and analysis of that data
by the experts. In this case, ‘careful evaluation’ is not
possible because of a lack of data - so the Court cannot assess the
likelihood and/or extent of environmental damage nor can it assess
the consequences.

Fuel
emissions


Interface
between Land Uses


Objective
1 Development located and designed to prevent adverse impact and
conflict between land uses
.


Objective
2 Protect community health and amenity and support the operation of
all desired land uses
.


PDC1
Development should not detrimentally affect the amenity of the
locality or cause unreasonable interference through any of the
following:

(a)
the emission of effluent, odour, smoke, fumes, dust or other airborne
pollutants


PDC2
Development should be sited and designed to minimise negative impact
on existing and potential future land uses considered appropriate in
the locality.


PDC4
Residential development adjacent to non-residential zones and land
uses should be located, designed and/or sited to protect residents
from potential adverse impacts from non-residential activities.


Orderly
and Sustainable Development


1
Orderly
and economical development that creates a safe, convenient and
pleasant environment in which to live


The precautionary principle applies
to situations in which threats of serious or irreversible
environmental damage exist. Such threats exist in this case because,
as outlined by Dr Musgrave, levels of some fuel components may
be of the order of regulatory concern in the vicinity of the proposed
development.


In
summary Dr Musgrave’s evidence was that

  • Fuel component concentrations
    measured at the EPA's Jenkins St site in 2004 were approximately
    half those of the recommended guidelines. This implied that
    corresponding levels closer to the Adelaide's fuel storage areas
    must be considerably higher. The proposed development lies in close
    proximity to the fuel storage areas.

  • While regulatory levels of benzene
    in fuel have been reduced since 2004, benzene is not the only
    compound of concern.

  • Emissions from the proposed
    development would add to local levels. While the example chosen of
    Morales Teres paper had a sphere of influence which would include
    residences in Restricted Residential Policy Area 65, the proposed
    development is of a significantly larger scale (18 pumps vs 5
    pumps35)
    with a correspondingly larger area of influence.


Dr. Musgrave gave evidence that
local populations may be more susceptible36
and increased incidence of asthma in ‘children aged 5-14 years and
in adults aged 15-24 years and in males stratified by gender’ were
detailed37.
Furthermore Dr Musgrave highlighted that his initial information was
consistent with later findings38.


This threat is particularly serious
when set in a local context that includes considerable investment in
efforts to remediate the local environment e.g. work in reducing
leakage from fuel storage facilities and environmental improvement
plans by Adelaide Brighton Cement.



Both experts’ submissions and
evidence spoke to the inadequate nature of the data available and the
need for monitoring to occur to meet the requirements of the National
Environmental Protection (Air Toxics) Measure 2011. The precautionary
principle would suggest that given the incidence of health problems
in the area and this lack of data, that the development not proceed.


In
Dr. Musgrave's opinion39


The
area where the proposed petrol station is to be sited already has
poor air quality and higher levels of chronic disease (Pilotto etal.,
1999). This proposed development is in close proximity to a major
road, a fuel farm and a bitumen plant and their emissions will be
combined with those of the proposed fuel station.


Without
substantial monitoring data, and modelling of emissions during summer
and winter under the prevailing wind conditions the possibility of
significant impacts on the health of residents in close proximity to
the proposed petrol station cannot be dismissed.


The
second respondent has attempted to measure benzene as a proxy for
wider fuel component concentration at both the subject site and at a
facility expected to have similar emissions to that of the proposed
development.


That
attempt has not been successful and both Dr. Musgrave and Dr Tkaczuk
agree that


The
limited benzene, toluene and xylene vapour concentrations measured do
not allow any precise statement to be made regarding the annual
average concentration of these vapours in the locality around the
proposed development, nor is it possible to give an opinion regarding
the exact sources of the benzene, toluene and xylene vapours40.


The likelihood
that emissions from the development being added to those of the
ambient air were initially raised by the Port Adelaide Resident's
Environment Protection Group in December 201241.
While the benzene concentration of fuel has decreased due to
regulatory changes, and improvements have been made to emission
containment at Mobil the closest fuel storage facility, no evidence
has been presented of any reduction in levels of other fuel
components, or emission containment at other fuel storage facilities
(BP and Caltex).


The second
respondent made no attempt to address that issue until undertaking
measurements on 15/16 April 2014 – some 16 months later. Had the
second respondent acted more promptly, ample time would have been
available to enable an assessment to be made, and the issue resolved
without engaging the resources of the Court.

Flooding

Hazards

Objective
4: Development located and designed to minimise the risks to safety
and property from flooding.


Flooding

PD4
Development should not occur on land where the risk of flooding is
likely to be harmful to safety or damage property.


PD5
Development should not be undertaken in areas liable to inundation by
tidal, drainage or flood waters unless the development can achieve
all of the following:

(a)
it is developed with a public stormwater system capable of catering
for a 1-in-100 year average return interval flood event


The
threat of serious or irreversible environmental damage exists in
relation to flooding since,
as recent events and past
history show, the area is highly flood prone, it has a poor level of
stormwater infrastructure, the stormwater system is being further
taxed through infill development in Lefevre Peninsula East Policy
Area 57 and there is currently a serious lack of crucial scientific
information, with the Le Fevre Peninsula Stormwater Management Plan
to be undertaken in 2014/15 and 2015/16.


George Rogic indicated that PDC5

..refers to major land development
which requires a drainage system (Major/Minor) with road reserves to
be vested to Council for the management of public stormwater with the
newly created development. Given this development proposed is only a
private development it subsequently only requires a private drainage
system to be provided.


Mr Batge gave a very different
interpretation of this provision of the Development Plan which comes
under the General Section of Plan. Mr Batge indicated:


I think it’s more general in its
application. It certainly doesn’t say it’s to be limited to major
development or new land divisions etc….In my view I think it’s
applicable42.


I think it is going just a step too
far to say that you can read this only into a land division or only
to that kind of development which will provide a public stormwater
system. The intent is that development should be provided with a
system capable of a 1 in 100 ARI event, otherwise you end up with a
problem. We know it’s an area where there are currently isn’t
enough drainage, it’s an area with a problem.


The Development Plan has, under the
General Section of Land Division,43
provision for stormwater management including how the arrangement of
roads, allotments, reserves and open space enable the provision of a
stormwater management drainage system.


The evidence of local residents
highlighted the lived reality of flooding. Len Scott provided
feedback on the 1992, 1998 and 2014 Peterhead flooding. Mr Scott
provided a list of 13 properties that had been flooded above their
floor boards on February 14th 2014 and advised that there
were many more that had been flooded under their homes and/or in
their yards. Jane Edwards, Maureen Jones and John Mahoney all spoke
of their direct experience of the flooding that occurred nearby and
into their properties on February 14th, and of the impacts upon their
homes and yards, and for Jane her car.


Council documents44
suggest that Council estimated the rainfall event that occurred on
Feb 13th and 14th 2014 to be ‘approximately a
1 in 20 year event.’


Len Scott also advised that there is
street level flooding 2 to 3 times per year in his vicinity and that
urban infill of the ICI oval behind his home was felt by local
residents to have contributed to their flooding problems.


Mr Rogic confirmed that most of the
Hargrave and Elder Road Catchment lies within Residential Policy Area
57 where infill development is promoted.


The experts both agree that the area
is subject to inundation both in a 1 in 100 year event by stormwater
and due to a 1 in 100 year tide event. Both agree that the site will
produce an increase in stormwater runoff due to the proposed
development and that the existing underground stormwater system
currently provides a 1 in 1 year service. Both agree that the
proposed development provides for no infiltration or retention onsite
and that any stormwater generated will proceed directly to the public
stormwater system.


Since Mr Schalk was not authorised
to speak on behalf of Council he was unable to confirm when the pump
on Hargrave St would be operational, though he understood
construction would begin in June and take approximately 40 weeks.
Work had commenced when the Court visited Peterhead on June 10th.
Mr Schalk indicated that if the pump and pipes were fully and
effectively operating it would potentially raise the level of
stormwater provision from 1:1 to 1:5. While Mr Nobbs agreed with this
he described it as ‘very low standard.’


.. a key point of my argument is
that because of the current low level of service provided by the
current and proposed upgraded stormwater systems, I don’t believe
it’s acceptable to make a poor system marginally worse when we
should be trying to make it a lot better. So just adding to the
problems, of not providing mitigation measures onsite, is only going
to make it, the current situation worse. And it’s a good sizeable
area that’s being paved, as well – it’s 3000 sq metres…45


The most recent reports relating to
stormwater in the area date from 199746
and 199947
and refer to the Lulu Terrace Catchment which included Peterhead and
went from the Gulf St Vincent to the Port River. (Lulu Terrace is now
under an ABC shed.)


Despite the Court encouraging
Council on April 22nd to provide the 1990s studies to the
Appellants, the Council elected not to provide the reports until the
afternoon of Wednesday April 30th, two days before Draft
Expert Statements were due.


The 1997 report identified a major
depression in the vicinity of the intersection of Mary, Alfred and
Walton Streets. The report, based on records from the Port Adelaide
Enfield Council, reported on the intense storm of 18 December 1992
(estimated as 1:50 ARI event) ‘which caused flooding in several
areas including Mary Street, Wills Street, Alfred Street and Walton
Street.’48
There was also a report of a severe storm of 13 December 1993 with
property damage reported in 8 houses in Alfred Street and 1 in Mary
Street. Mr Schalk agreed that there was considerable overlap between
the properties in Len Scott’s list (homes flooded in 2014 above
their floorboards) and those flooded in 1992 and 1993.


The 1997 report said in relation to
Mary Street, Alfred Street, Walton Street


This area has the most potential for
flood damage by the ponding of excess stormwater… this site is a
low point within the catchment with Victoria Road as the barrier.
Victoria Road is approximately three quarters of a metre higher than
the low point at the Alfred Street and Walton Street intersection.
This means that the area has the potential to fill to a depth of 0.75
m if the outlet drain was surcharged.


The number of dwellings that could
be at risk if the full ponding was to occur is approximately 108. The
threshold at which property flooding would commence is estimated to
be between the 2 and 5 year ARI design events. It is anticipated that
most of these dwellings would be inundated to varying degrees in the
100 year ARI event49.


The 1999 report reiterated


The Alfred Street/Walton Street
intersection is one of the lowest points in the catchment with flood
flows from many areas draining to this point.


There is no current stormwater
management plan for the area and Council documents50
indicate that Le Fevre Peninsula Stormwater Plan will be prepared in
the 2014/15 and 2015/16 years.


Mr Schalk was the Project Manager of
the 1999 report and Mr Schalk used for his Statement a hydrological
model provided to him by Council in the late 1990s. The date of
development of the model is unknown though Mr Botting who developed
it retired between 1997 and 1999. Mr Nobbs did not have access to the
model which he suggested would take many months and much effort to
reproduce.


Given the age of the model and the
changes since then (e.g. extent of infill development and climate
change) there are doubts about the current validity of the 1990s
model. Mr Schalk indicated that both a hydrological model and a
hydraulic model are needed in order to effectively model the likely
impacts of the development on flooding in the locality. The is
consistent with Mr Nobbs’ advice51


Additional hydrologic/hydraulic
analysis may be required to assess the catchment 100-year ARI
critical storm duration so that the 100-year ARI on site storage
volume can be determined.


Mr Schalk also advised that a new
hydrological model and a new hydraulic model are likely to be
developed as part of the proposed Le Fevre Peninsula Stormwater Plan.


It was put to Mr Schalk that recent
local experience, the 1997 Botting report (which identified 108
unnamed houses at risk) and reports to Council of flooding of Feb
14th 2014 create doubts about the extent of the area
identified in Figure 2 of Mr Schalk’s report of the area of the Feb
14th flooding, in that the area shown is too large. This
also creates uncertainty about the distribution of flooding in a
1:100 ARI event and the estimated increase in flood level of 1.8mm.


Asked by Counsel, (Respondent 2)
about Mr Schalk’s calculation of 1.8 mm of additional flood height,
Mr Nobbs responded


That’s exactly what it is, it’s
an estimate. Mr Schalk and I didn’t do a detailed analysis of the …
elevation storage relationship…


It’s an estimate to gain an
appreciation of what order of magnitude we are talking about in
relation to flood level rise…


Any increase is going to be
significant, you know, in a situation that’s poor at best…

I believe these low lying areas are
down around 1m AHD and we have a contour which is spread out to one
and a half metres AHD. What we didn’t analyse is what happens
between that one and one and a half metres – is there a level
difference where these very low lying properties, where a small
increase in run-off volume can result in a larger increase in flood
depth. We haven’t analysed it to that detail and that’s why I
recommended that should be undertaken to assess that.


Mr Schalk initially expressed
concern that retention of stormwater onsite could exacerbate flooding
issues - since the development sits at the downstream end of the
planned Hargrave St pump station catchment and release from the site
could coincide with stormwater reaching the pump from further up in
the catchment. However he agreed that the timing of the release can
be delayed (for hours) so that it occurs at a time when it is safe.


Mr Schalk was convinced that a
hydrograph52
that he drew gave confidence that the stormwater from the site would
be able to safely leave via the public stormwater system. Mr Nobbs
however indicated that while Mr Schalk’s hydrograph would apply for
a short term storm event, storm events come in different levels of
intensity and over different time periods. He advised that the
hydrograph did not give confidence that the proposed development
would not contribute to flooding of local properties and he
demonstrated this by using a model of Cumulative Rain versus Time53
for the February 13th and 14th rain event.


Mr Nobbs gave evidence that given
there is no provision for retention on site or infiltration to avoid
the additional load on an inadequate public system, the additional
volume from the development would be stored in people’s properties
and homes when the public system is at full capacity.


Mr Nobbs advised that there is an
unacceptable risk to flood prone properties, though the additional
volume from the development may be small, depending on the nature and
extent of the storm event.


Mr Nobbs advised that the level of
increased flood risk associated with an increase in stormwater runoff
from the site is dependent on the elevation versus storage
relationship of the low lying area to the west of Victoria Road. The
elevation versus storage relationship in this low lying area may be
sensitive to a relatively small (50 m3) increase in
runoff volume resulting in a significant increase in the risk of
flooding. Further assessment of the elevation versus storage
relationship, property floor levels in the low lying area to the west
of Victoria Road and flooding from a range of ARI storm events would
be required to assess the sensitivity of increased stormwater runoff
from the proposed development on flood risk.


Mr Nobbs indicated there is
uncertainty inherent in the modeling undertaken by Mr Schalk (Botting
model). He also indicated that confirming the groundwater level and
undertaking infiltration testing to develop his proposed flood
mitigation measures for the site would generally be undertaken by the
developer.


While greater weight needs to be
given to Mr Nobbs evidence than to Mr Schalk’s and the Principles
of the Development Plan would not be met, the precautionary principle
would also suggest that given the lack of reliable scientific and
engineering information, and the high risks posed to residents and
the environment that the development should not be allowed to
proceed.


Proposition 6


  1. The threat to facilities enjoyed by
    a community is a relevant planning consideration. Past use of the
    land has provided considerable benefits to the community. The
    proposed development will eliminate those benefits.


Lefevre
Peninsula East Policy Area 57


OBJECTIVES

1
Infill development at low to medium densities to achieve an increase
in the number and diversity of dwellings

2
Development that contributes to the desired character of the policy
area


DESIRED
CHARACTER

The
policy area, comprising a large portion of the older coastal suburbs
of Lefevre Peninsula, is intended for redevelopment through infill
redevelopment at low to medium densities. New residences are expected
to reinforce the mixed character of the area with a wide range of
housing types and styles. The main focus for larger medium density
developments is near to adjoining railway stations and centres.
Access to open space will be an important consideration for larger
developments in the suburbs of Birkenhead, Largs North and Peterhead.


OPEN
SPACE AND RECREATION


OBJECTIVES


1
The creation of a network of linked parks, reserves and recreation
areas at State, regional, district, neighbourhood and local levels.


2
Pleasant, functional and accessible open spaces providing a range of
physical environments


3
A wide range of settings for active and passive recreational
opportunities.


5
An appropriate quantity, quality and distribution of open space, that
reflects the local neighbourhood, district, council wide and regional
needs of the community as reflected by indicators such as population
density and demographic structure.


6
Open space of a quality, amenity and design that has regard for:

(a)
the needs of residents, visitors and tourists, particularly in
relation to the size, type, shape and location

(b)
public safety, within open space and adjoining areas

(c)
maintenance requirements and costs.


7
A network of open space within residential areas that gives priority
to local open space.


PDC6
Neighbourhood parks should be at least 0
.5
hectares and generally closer to 1 hectare in size, and provided
within 500 metres of households that they serve.


PDC7
Local parks should be:

(a)
a minimum of 0
.25
hectares in size

(b)
centrally located within a residential area, close to schools, shops
and generally within 300 metres

of
households that they serve.


PDC20
Other
than within
Avicennia
Waters Policy Area 37
,
Dock
One Policy Area 39
,
Fletchers
Haven Policy Area 41
,
Harts
Mill Policy Area 42
,
McLarens
Wharf Policy Area 44
,
Newport
Quays Policy Area 45
,
North
Bank Policy Area 46
or
Port
Approach Policy Area 49
of
the
Regional
Centre Zone,
public
open space should be provided at the rate of 4 hectares for every
1000 persons.


Residents spoke of their use and the
community’s use of the site as the ABC Community Park. ABC bought
the land for that purpose in 1994. The Court indicated that it
understood the high level of community support for our endeavour not
to lose a highly valued and well used community asset. Ours is a
community lacking in open space54
and the loss of this site, as open space, will deprive a community,
of valued visual, recreational and environmental amenity.


Similarly past use of the land has
provided considerable benefits to the community for recreation, for
social interaction, visual amenity and as an environmental buffer
whereas the proposed development will eliminate those benefits.


Mr Rogic indicated in relation to
the adjoining land:


The remaining open space to the west
of the subject site (privately owned by ABC Ltd) will have an area of
2,389 square metres, which falls some 11 metres short of the above
requirement. (refers to PDC7) … the remaining 2,389 square
metres, is still in my opinion considered to be of sufficient size
and dimension to provide a wide range of settings for active and
passive recreational opportunities for the local community.55


Conversely he also said:


While the owner of the site may have
historically permitted the general public to use this area, in my
opinion the area cannot be defined as ‘public space’ or ‘public
open space’ whilst this open area to the west remains privately
owned…The owner in my view could restrict access to the remaining
open space by erecting a permanent obstacle around the boundaries
such as a fence, which would then restrict the general public to use
this area...56


Evidence to the Court clearly
demonstrated that there is inadequate public provision of open space
in relation to the provisions of the Development Plan. There is no
Neighbourhood Park in the vicinity and the adjoining land, if it was
to continue as open space, is smaller than a Local Park. There is no
certainty about the future use of the adjoining area as public open
space. The proposed development will permanently deprive the
community of the use and amenity of open space.


Proposition 7


  1. There was considerable evidence
    that the development would not be a suitable neighbour to nearby
    residents and the community generally.


Evidence was provided by Mrs Young,
an adjacent neighbor to the On the Run Hillbank of excessive
noise including drivers sitting on both their brakes and accelerator,
low bass noises, loud music for periods of 10 to 15 minutes. She also
reported problems with odour (‘it’s like bad fat’57)
and with workers who ‘park their cars outside our house in the
road, by the reserve’58
owing to lack of provision of staff parking.


Staff from On the Run,
Hillbank were unaware of neighbour concerns since they do
not engage with adjacent neighbours. Inside the control building
staff are unaware of any noise problems or any anti-social behavior
in the drive through. There are no CCTV cameras directed towards the
drive through, though there are about 39 onsite and this is the area
closest to neighbours. There was confirmation by On the Run of
odour issues.


In relation to its engagement with
our community, evidence of being a poor neighbour is apparent in

  • the advertisement59
    in the Portside Messenger that indicated ‘support’ by government
    (regulatory) agencies for the development and made no mention of an
    appeal before the Environment, Resources and Development Court

  • the email60
    to the Mayor seeking urgent subdivision of what was then the
    Adelaide Brighton Cement Community Park and Council intervention
    with the DAC

  • denying the community access61
    to the site including the tennis court and basketball ring while
    this appeal was underway and allowing the site to become unkempt

  • Counsel for On The Run failing
    to meet Court timelines for provision of two expert statements and
    their List of Authorities to us as Appellants.


Proposition 8


  1. The development does not fit the
    subject land as a ‘workable site-planning solution’.


The development does not fit the
subject land as a ‘workable site-planning solution’ in that it
overlaps with 8 Alfred St by 6.5 metres and places the drive through
along that boundary; it chose to intrude into RR Policy Area 65; the
entrance and exit on Hargrave St will have negative impacts of noise,
traffic and light glare for neighbours opposite; there is inadequate
provision and possibly too little space for reasonable density
landscaping on Hargrave St. The development is also very large and
very noise intensive.


Proposition 9

  1. In reaching a decision on an
    application, the interests of all who may be affected deserve
    consideration.


This includes Ms Maureen Jones who
was overseas and unable to lodge her representation before the Dec 18
2012 deadline, Mr John Mahoney who received too little notice to
properly consider representation and the nearby residents flooded on
Feb 14th 2014 who do not have a right of objection or
appeal.




Proposition 10


  1. In weighing the factors that speak
    for and against the proposal, the evidence is strongly against the
    development.


As outlined in the Propositions
above

  • This development fails to conform
    with the intent and purpose of the relevant Residential zone and the
    relevant Commercial zone.

  • This proposed development is
    inconsistent with the desired future character of Restricted
    Residential Policy Area 65 and Residential Policy Area 57.

  • In its Interface provisions, the
    Development Plan seeks to ‘prevent adverse impact and conflict
    between land uses’, to protect the enjoyment of residential land
    and to ‘protect community
    health and amenity’
    .
    In contravention of these provisions the development will generate
    substantial negative impacts arising from air borne pollutants,
    odour, traffic impacts, noise, glare, intrusive advertisements and
    its hours of operation.

  • There is an uncertain risk in
    relation to fuel emissions that can only be assessed through
    appropriate measurement.

  • There are substantial risks
    associated with stormwater from the site going directly to
    inadequate public infrastructure that at best with the provision of
    a new stormwater pump will provide 1:5 year provision.

  • The precautionary principle needs
    to apply in relation to stormwater management and fuel emissions.

  • Past use of the land has provided
    considerable benefits to the community. The proposed development
    will eliminate those benefits.

  • There was considerable evidence
    that the development would not be a suitable neighbor.

  • The development does not fit the
    subject land as a ‘workable site-planning solution’.

  • In reaching a decision on an
    application, the interests of all who may be affected deserve
    consideration.


Further the free standing pylon
signs having heights of 7 metres and 9 metres do not meet Commercial
Zone PDC13. While swapping the signs is proposed by On The Run,
the signs are still excessive in relation to the surrounding
residential and commercial areas, could create an unhelpful precedent
and will still not conform with PDC13.


As a non-complying development, the
applicant was required to produce a Statement of Effect and this was
developed by Nolan Rumsby and incorporated in the documents and
submission that went to DAP from Council. Little weight can be given
to this Statement of Effect.


In
relation to environmental impact, the report to DAP described the
existing environmental situation as poor and further impacts
immaterial.


It is considered
that a high degree of background traffic noise is prevalent in the
locality currently ...Likewise the baseline air quality is considered
likely to be poor given the adjacent industrial uses within the
locality with a reasonably high amount of localised air pollution
likely...Considering the baseline environment, and design measures
adopted, any potential increase in emissions and noise outputs are
likely to be negligible in the context62.


The Statement of
Effect claimed economic benefits through employment creation and
Council failed to recognise that there would be displacement in
employment, and potential for businesses, especially those along
Victoria Road, to fail (arising from the loss of sale of fuel, food,
lotto tickets, coffee, car wash etc) with all the attendant economic
and social consequences.


The Statement of
Effect, while recognising some negative social impacts arising from
the Hargrave Street entrance/exit, made claims of benefits to the
community via increased services and the prevention of crime:


With regards to
the social impact of the proposed development, it is noted that the
proposed development will provide positive employment opportunities
however there is potential for some negative social impacts emanating
from the site via the increased use of the local street network for
access and egress to the site.


Additionally, it
is suggested within the Statement of Effect that
‘the
proposed development will provide convenience store, fast food,
petrol re-fuelling, car/dog wash services, on a site that is
currently vacant of any kind of development. These services will be
of significant benefit to the community. The proposed will prevent
crime by putting the land to an active, 24 hour use providing
surveillance in the area.’


On review of this
statement, Council considers as the immediate locality consists of
primarily residential uses and industry uses with minimal, if any
commercial uses. It is likely the proposal will provide a range of
choice and convenience for the local community as suggested63.


Jane Edwards’
submission64
to Council outlined the wide and diverse range of services available
to our community and the Appellants Documents65
show the four service stations located near to the proposed
development, including two that operate 24 x 7 about 500-600 metres
further north on Victoria Road.


The extensive use of CCTVs at
Hillbank On The Run indicate the concern for crime and
unlawful behavior on the site. The 24 hour operation and the
availability of cash make these developments vulnerable to armed
robberies, as reflected in regular reports in the local media. The
potential for anti-social behavior is such that Mr Garwood indicated
that SA Police are provided with discounts to encourage their
presence at the On The Run Hillbank facility.

CONCLUSION


The Development Plan recognises that
current industrial and residential uses in Restricted Residential
Policy Area 65, though obviously co-existing, are not ‘compatible’.
The Plan aims for new residential development only after the hazards
of nearby industry are reduced. This development will exacerbate
noise and fuel emissions in an area under pressure from current
pollution sources.


Mr Batge advised:

The Development Plan indicates an
intention over time to ameliorate negative environmental issues
within the area and that such improvement needs to occur prior to new
residential development in Policy Area 65. The proposal needs to be
of a standard of design and function that is commensurate with
improving the amenity within Policy Area 65, not contributing to
deterioration of it66.


The proposal is non-complying in the
Commercial as well as the Residential zone and will generate negative
impacts on residential amenity in a context where multiple provisions
of the Development Plan seek compatibility of land uses and
protection of the amenity and enjoyment of residential land.


In contravention of these provisions
the development will generate substantial negative impacts arising
from air borne pollutants, odour, traffic impacts, noise, glare,
intrusive advertisements and its hours of operation.

There is substantial risk in
relation to stormwater and uncertain risk regarding fuel emissions
arising from the proposed development. It is clear that the
Development Plan requirement for development to be undertaken, with
provision or access to a public stormwater system with 1 in 100year
ARI capability, in an area liable to inundation
by flood waters,
clearly will not be met.

There is a
lack of reliable scientific data in regard to the amount and type of
emissions and flooding that will arise from the development therefore
the Court cannot make an informed decision, based on scientific data
and analysis of that data by the experts. In this case, ‘careful
evaluation’ is not possible because of a lack of data - so the
Court cannot assess likelihood/extent of environmental damage nor can
it assess the consequences.

Mindful of the
precautionary principle, the application should be refused on these
grounds alone.

While the emissions or flooding on
their own are enough to warrant refusal, the cumulative impacts
of these with noise, traffic, headlight glare, hours of operation,
intrusive signs and odour reinforce the planning grounds for refusal
i.e. the overall impact of all the factors is greater than
the individual impacts and the individual impacts cannot be viewed in
isolation.


Some of the benefits claimed for the
development e.g. ‘improve safety and aid in preventing crime in the
locality’ are disputed in relation to their factual basis while
other claims e.g. generation of employment, need to be offset against
the losses they will create e.g. potential displacement of employment
and possible bankruptcies in competitor businesses.


The Appellants ask that the Court
not approve the development.

1
R1 pp5

2
Transcript pp112- Maureen Jones

3
Transcript pp185 - Len Scott

4
R2 pp13

5
A12 pp14

6
Transcript pp357

7
Transcript pp123-126

8
A18, pp12

9
Transcript pp138

10
Transcript pp141

11
Transcript pp146

12
Transcript pp116-117

13
A12, pp14

14
R1, pp192

15
R1 pp144 - 146

16
R2 pp27

17
Transcript

18
Transcript pp689

19
Transcript pp127

20
Transcript pp667

21
Transcript pp659-660

22
Exhibit D, “A” pp3

23
Exhibit D, “D” pp2

24
Exhibit A10, Appendix 1

25
Exhibit D, “A” Appendix A

26
Transcript, pp139

27
Transcript 139 - 140

28
Transcript pp145

29
Transcript pp124

30
Exhibit D, Appendix A, pp10

31
Transcript pp651

32
Transcript pp102-103

33
R2 pp27

34
http://www.environment.gov.au/node/13008

35
Exhibit A15 p104

36
A14, pp7

37
A15 pp101

38
MFIA16 - North West Adelaide Health Study – Chronic conditions –
Asthma

39
A14, pp8-9

40
Exhibit G,
p13

41
R1 pp 144, 145

42
Transcript pp340-342

43
Development Plan PAEF Council (16 Feb 2012)
pp58-63

44
A7 Bundle

45
Transcript pp211

46
Exhibit A8, Appendix 7

47
Exhibit A8, Appendix 8


48
Exhibit A8, Appendix 7 pp10

49
Exhibit A8, Appendix 7 pp22

50
A7 Bundle

51
Exhibit A8, pp10

52
Exhibit L

53
A20

54
A2 pp15

55
R2, pp13-14

56
R2, pp29

57
Transcript pp141

58
Transcript pp140

59
A2 pp43

60
A2 pp7-8

61
A2 pp14

62
R1 pp191

63
R1 pp192

64
R1 pp137-138

65
A2 pp16-18

66
A12, pp21-22