Condux Pty Limited v Ku-Ring-Gai Municipal Council

[1989] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:	Condux Pty Limited v. Ku-Ring-Gai Municipal Council [1989] NSWLEC 216
PARTIES:	APPLICANT Condux Pty Limited RESPONDENT Ku-Ring-Gai Municipal Council
FILE NUMBER(S):	10669 of 1988
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	07/14/1989
LEGAL REPRESENTATIVES:	APPLICANT J.J. Spigelman QC with S.B. Austin RESPONDENT M.H. Tobias QC with M.G. Craig

JUDGMENT:

HIS HONOUR: Condux Pty Limited ("the Company") appeals against the refusal of the Ku-ring-gai Municipal Council ("the Council") of a development application to erect a three storey commercial office building at premises known as 337-353Pacific Highway, Lindfield. The Council, by letter of 29thDecember, 1988 advised:|CF2.|PSI

"Irefer to the above development application which has been determined by Council. You are advised that concerning the matter Council on 6thDecember, 1988 resolved the following:

1) That the application for consent to the erection of a three storey commercial office building with basement parking for 165 cars at 337-353Pacific Highway Lindfield, being Lots1 and 2, DP364990, Part Lots24 and 25 DP6608, Lot1 DP771847, and railway lands of approx- imately 514 square metres, be rejected for the reason that the proposed floor space ratio of 1.856:1 over the total site is considered to be an overdevelopment.

2) That the applicant be advised that Council would be prepared to consider an amended application, providing there is adherence by the developer to the following conditions as proposed in the report by the Chief Town Planner, dated 28thJuly as hereunder amended:

Condition 2: The development is to comply with the following indices:

Maximum floor space - 4198 square metres

Maximum floor space ratio - 1.5:1

which will have the effect of scaling down the building and reducing the parking requirements.

Condition 3: Provision of car parking spaces on site in accordance with Council's Carparking Code requirements to the satisfaction of Council's Chief Town Planner.

Condition 27: The Wolseley closure and its associated road construction works are to be completed prior to construction of the building. And with the addition of the following new conditions:

i) That design be modified in conjunction with Travis & Partners to the satisfaction of the Mayor in liaison with the Ward Alderman and representatives of Wolseley Road Action Group.

ii) That the development be subject to Council's Residential Zone Parking Scheme, preferably incorporating some forms of "term" parking, viz one or two hours, to be done in conjunction with the Wolseley Road Action Group.

iii) That a contribution be made to Council as provided for in Section 94 of the Environ- mental Planning and Assessment Act in accordance with Council's Policy.

iv) Council to investigate the appropriateness of providing for astrictive parking in Wolseley Road."|CF1.|PSO

The land has a frontage of about 85m to the Pacific Highway and 59m to Wolseley Road. It is an irregularly shaped parcel, approximately triangular, and is all of the land bounded by the Pacific Highway, Wolseley Road, Havilah Road and a railway line. A laneway at the rear of the land from Wolseley Road has been acquired, closed and incorporated in the site, together with a portion of former railway land along its northern boundary. The site comprises a number of separate allotments having a total area, including the closed lane (231m2) and railway land (564m2), of 2,854m2.

The land has a slope in a northerly direction and falls from the Pacific Highway to the railway line. Levels vary along the Pacific Highway frontage from about 97.1m at the intersection of the Pacific Highway and Wolseley Road, to about 96.6m at the intersection of the Pacific Highway and Havilah Road. At the boundary of the railway line, towards the rear of the site, levels vary from 93.7m on the Wolseley Road frontage to about 95.7m on the Havilah Road frontage. The land has little vegetation. Two substantial mature trees are located near the Wolseley Road frontage and vary in height from 7m to 18m. The railway line along the northern boundary of the site is located on a vegetated embankment constructed approximately 6m above the level of Wolseley Road. The site contains a number of buildings which are now unused. Aservice station at the corner of the Pacific Highway and Wolseley Road has been demolished, and the remaining buildings previously housed a car repair works, a builders supplies hardware store an

d an office building. It is common ground that the site is in a state of disrepair and is appropriate for redevelopment. Each of the main buildings existing on the site is small in scale by comparison with the total site area of the combined allotment.

Wolseley Road is a residential street comprising mostly Federation-style single dwelling houses, and the only non-residential development therein is the subject site. Access to a primary school, known as the Masada College, and an adjoining synagogue is from Treatts Road, but vehicles exit via a road adjoining the embankment which egresses into Wolseley Road close to the alignment of the subject property. A park is located between the college and the subject property.

That part of the land which was formerly owned by the railway is zoned Special Uses5(b)(Railways). The former laneway is unzoned and the balance of the land is situate within Interim Development Order No.54 and zoned thereunder Business General 3(a).

The Development Application seeks consent to erect a three storey commercial office building with three basement levels of parking. The proposal involves substantial excavation, but owing to the fall in the land, will be only two storeys above the Highway. Along the Wolseley Road frontage the building at its northern extremity is about 11.4m above the level of the street, and varies to about 9.5m at its southern extremity at the corner of the Highway and Wolseley Road. Along the Pacific Highway the proposal varies from 9.6m at its western end to about 9m at its eastern end. The elevation fronting the railway varies from 9m in height at its western end to about 10m at its eastern end. Basement car parking is provided on site for 165cars, of which 14spaces are in stacked car parking bays. A loading bay is proposed to be provided to the Wolseley Road frontage adjoining access to the basement car park.

In order to break up the bulky appearance of the structure, the building contains a number of set backs. From Havilah Road the building is set back a distance of about 9.5m with landscaping. From Wolseley Road it is set back about 3m and then to a distance of about 5.5m. On the Pacific Highway the building is set back about 5.5m, and about 6.5m in the central core. The second office level has a set back fronting Wolseley Road and has an 8.5m long terrace. The third office level is set back about 6.5m from Wolseley Road. Part of the floor space described as a void, and which provides an entry to the proposed building, is covered by the roof.

It is common ground that the total floor space of the proposed building is 5,434m2, i.e.

3(a) Laneway Railway TOTAL

Level 1 1360m2 14m2 289m2 1584m2

Level 2 1370m2 94m2 408m2 1803m2

Level 3 1472m2 56m2 380m2 1838m2

TOTAL 4202m2 164m2 1068m2 5434m2

The total floor space of the development is therefore approximately 1.9:1. On the railway land it is 1.89:1, on the laneway 1.3:1, and on the land zoned General Business 1.94:1.

This application is the third lodged with respect to the subject land following negotiations between the Council and the Company over the past two years. It is common ground that the development exceeds the floor space ratio permitted on the land and for that purpose an objection has been made pursuant to State Environmental Planning Policy No.1 ("SEPP1").

The application also contemplates, by separate procedures from this application, partial closure of Wolseley Road to prevent access to the Highway (and the proposed development) by vehicles from the residential area, except those from the Masada College.

The application is opposed by the owners of the Synagogue and Masada College, and by a number of residents in the residential area. As a consequence of the conditions of contracts for sale of land opposite the subject land, there is no objection from the occupants of dwellings in that part of Wolseley Road.

It is common ground that the application must fail unless an objection lodged pursuant to SEPP1 is upheld. That objection relates to the floor space ratio of the building. Whilst some 25% of the site has no limitation on floor space ratio, that part of the land which is zoned General Business 3(a) is subject to a floor space ratio of 1:1.

The proposed building constitutes an extremely large structure in the context of development in Lindfield. There is no other commercial office building within the commercial centre which has similar characteristics of size and scale. It is located adjoining a predominantly residential zone, to which the highest part of the proposed structure has frontage. Access for vehicles is restricted to Wolseley Road and, unless closed, a substantial amount of traffic will be compelled to use that road which is predominantly a quiet, residential street with little through traffic.

The Council determined the application after consideration of a report from its Town Planner. With respect to the objection pursuant to SEPP1, he made the following observations:|CF2.|PSI

"The applicant has made submission objecting to the need to comply with the 1:1 development standard for floor space. The objection can be summarised as follows:

i) The proposed development will not offend against any planning objectives sought to be achieved by a 1:1 ratio insofar as it relates to the bulk of the building.

Planning comment: This argument can be supported for this revised proposal. The proposal is of a reduced ratio to that previously considered and is in compliance with the Council's Business Centres Study Resolutions of 22ndMarch, 1988 as amended. This is further discussed elsewhere in this report.

ii) The proposed development will not offend against the planning objectives sought to be achieved by 1:1 ratio insofar as they relate to levels of activities generated.

Planning comment: This argument can be supported having regard to the nature of the revised proposal which includes a proposed road closure at the southern end of Wolseley Road. There will be a higher level of activity for the current proposal than would be the case with a 1:1 development, however this can be acceptably managed given the revised format of the application. This is elsewhere discussed in more detail.

iii) The Ku-ring-gai Business Centres Study recommends a shift in emphasis from floor space ratio controls to height controls. The proposal is in conformity with Council's foreshadowed policy by conforming with the study recommendation.

Planning comment: This comment can be accepted. The development conforms to Council's requirements and the general terms of its proposed Draft Local Environmental Plan.

iv) Strong demand has forced prices of land to levels no longer commercially feasible at 1:1 ratios.

Planning comment: This comment is noted. The accuracy of this statement has not been ascertained however it of itself is not considered to be a reason to substantiate a SEPP No.1 Objection. It is considered that other points of objection are more relevant to the submission.

v) Council has adopted the stance that it will only support objections of this kind if it sees substantial public benefits flowing to the community as a result. Such benefits often inflate the costs of projects and force developers to seek even greater relaxations of the floor space ratio limitations in order to maintain the commercial viability of the projects.

Planning comment: It is for the applicant to decide whether a contribution benefiting the community warrants being made in return for the increased development potential that a Council may be prepared to allow. The applicant has listed what seem to be the public benefits of the development. These are listed below:

The Public Benefits Flowing from this Proposal:

a) The removal of non-conforming uses from the Lindfield business zone;

b) The removal of the builders' yard, traffic to and from which disrupts the flow of through traffic along the Pacific Highway and which, at times, executes illegal or dangerous manoeuvres on the Highway.

c) The removal of the hardware store which attracts pedestrians across the Highway. Many of those pedestrians jay-walk, creating an additional hazard at a bend in the Highway where vehicles often move at relatively high speeds;

d) The removal of three (originally four) fairly nondescript buildings which are prominent visually, particularly to northbound traffic along the Highway and their replacement by a well-designed modern building set in landscaped surrounds;

e) An increase in the workforce of the Lindfield business zone of, at least, 250 white-collar workers with consequent economic benefit for shopkeepers and other local businesses in the centre;

f) The elimination of the possibility of the site being used for more intensive retail purposes which would create additional traffic difficulties including increased vehicular traffic generation and increased pedestrian traffic across the Pacific Highway;

g) The elimination of the possibility of the various parcels of land being developed separately with the consequent need to provide direct vehicular access onto the Highway and the possibility of some of the existing development remaining by being "stranded" as residual parcels;

h) The elimination of the possibility of the site being developed as a retail centre in direct competition with established shopkeepers in the centre and thus the risks of excessive competition and general economic malaise throughout the centre;

i) The creation of the opportunity to provide an improved left-turn into Havilah Road from the Highway (with a consequent improvement in through traffic flow) at relatively low costs should the authorities desire to do so;

j) The creation of a visually significant landscaped area north of Havilah Road to compliment the existing Rotary park to the south of that road;

k) The removal of the damaged motor vehicles which are parked, from time to time, in the southern part of Wolseley Road;

l) By its incorporation of land, the ownership of which cannot be established and on which no rates are levied, into the site, the Council will gain additional rate revenue; and

m) By its incorporation of land surplus to the requirements of the State Rail Authority, and by its payment to the Authority of a fair market price for that land, the Authority will gain capital which can be applied elsewhere for the benefit of the general public."|CF1.|PSO

The town planner recommended approval of the application and said:|CF2.|PSI

"The development that is now proposed is in conformity with Council's Business Centre Study and Draft Local Environmental Plan which is in the course of preparation. Under these circumstances and given the reduced scale of the revised proposal, the SEPPNo.1 submission/objection can be supported."|CF1.|PSO

Council's town planner was not called and his opinions therefore were not supported by oral evidence, nor tested by cross examination. As a nearby resident and on the Council's behalf MrN.Ingham, consultant town planner, objected to the proposal on the following grounds:|CF2.|PSI

"* the proposal still constitutes an overdevelop- ment of the site;

* there is insufficient justification in the SEPPNo.1 Objection. In my opinion the present floor space ratio is well in excess of that envisaged for the site under the provisions of IDONo.54;

* the proposal is still out of character with the scale of development in the area having regard to its height and bulk;

* the scale of development is still inappropriate, having regard to the close proximity of residential development;

* the development does not comply with the guidelines provisions of Council's Business Centres Study;

* the site is inappropriate for a building of such scale when access and servicing is from a residential street;

* the development increases traffic in residential streets beyond levels which would be expected for the site's zoning;

* there is an unsatisfactory loading bay provision in the present development.|CF1.|PSO

His objection was supported by MrP.A.Mitchell, town planner, and MrC.Hallam, traffic engineer. Evidence was given in opposition by a number of local residents and the owners of the Synagogue and College.

The applicant's case was comprehensively assessed in reports prepared by MrG.W.Smith, consultant town planner, who was also the author of the Statement of Environmental Effects and the objection pursuant to SEPP1. The grounds for the objection are adequately summarised in the said report of the Council's town planner. MrM.B.Colston supported the development in relation to its traffic implications in the area.

The evidence called in this matter is voluminous, extensive and most technical. We have given careful consideration to all of the evidence and will not attempt to set it out in detail in these reasons for judgment.

The experts called by each party were competent to express opinions on relevant matters, but such opinions differed substantially on similar facts. We must choose between such opinions and we are persuaded that we should accept those of MrIngham, MrMitchell and MrHallam.

It is now well settled in this Court that in order to determine an objection pursuant to SEPP1, the applicant has an onus to establish that the objection is well founded. The objector therefore must establish:

a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

b) For that purpose, determine what is the underlying object or purpose of the development standard.

c) That the necessary concurrence has been obtained.

d) That the granting of consent to the development application is consistent with the aims expressed in SEPP1.

If the objector discharges the onus set out in (a) to (d) above, the consent authority must determine whether the application be approved having regard to the matters specified in s.90 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act").

We are persuaded that the underlying object or purpose of the relevant development standard is to control the bulk of buildings, and to control the likely traffic generation of those buildings in this locality. Floor space ratios have the effect of regulating the function and character of a locality, and limiting development in relation to the ability of the adjoining streets to accept additional traffic within the zone, provide parking within the zone, and provide services within the limits to which they are likely to be available. Environmental planning instruments commonly provide for different floor space ratios in business centres zoned to provide different functions.

Lindfield is a small neighbourhood commercial centre and, in our opinion, the floor space ratio controls the scale of the centre in terms of its total floor space. Afloor space ratio of 1:1, when applied to any parcel, normally permits the construction of at least two storeys thereon. However, we are unpersuaded that, whilst fixing a reasonable standard, the figure of 1:1 is somewhat arbitrary and the application of SEPP1, in appropriate circumstances, better enables the attainment of the objects of the policy and the Act itself. The inappropriateness of adhering strictly to the subject development standard may be demonstrated by the opinions expressed in the Business Centres Study and, the fact that the Council is in the process of having made a Draft Local Environmental Plan whose provisions increase the floor space ratio for office development in this locality to 1.3:1.

There can be no doubt that the subject site should be developed for commercial purposes, and the nature of the development as proposed is appropriate for that purpose. We also accept that it is in the public interest that the present buildings on the land be demolished and the land developed for uses conforming with the subject zone.

Compliance with the development standard would permit a commercial building of two storeys on the subject land, but not of the same bulk and impact. It would still, however, be a large building in the context of Lindfield. Compliance with the standard would, because of the slope in the land, inevitably provide opportunities for greater set back of the building from Wolseley Road, a lower or stepped building, and the provision of more landscaping. In our opinion, development carried out in accordance with such parameters would achieve a building which would be significantly more compatible with the adjoining residential precinct than that proposed in this application.

It is common ground that any commercial development on the subject land will cause increased traffic in adjoining residential streets. Owing to the geometry and physical restrictions on ingress and egress of vehicles to the Pacific Highway, traffic is compelled to make circuitous movements in adjoining streets in order to gain access to the subject premises. With or without a partial closure of Wolseley Road, traffic not otherwise required to use such roads will be compelled to use residential streets. The proposed building contemplates a floor space ratio almost double that which would be permitted by the relevant standard in the said zone. In our opinion, the development standard effectively limits the amount of traffic which would be compelled to use adjoining residential streets.

The present road system provides vehicular access to and from the site from both ends of Wolseley Road and its intersection with the Pacific Highway, and that Highway is always busy, particular in peak hours. The morning peak is probably worst, and traffic queues back along the alignment of the subject property. We are persuaded that the use of Wolseley Road by the increased amount of commercial traffic likely to be generated by the proposed development would have an unacceptable adverse impact upon the residents therein.

It inevitably follows that even if the subject site is developed in accordance with the development standard, there will be some increase in traffic in Wolseley Road. The Council proposes, therefore, that Wolseley Road be partly closed near the subject property and permit only traffic therein from the Highway or from the Masada College. The possible closure of Wolseley Road is not a matter within the purview of the Court's discretion, but it is a matter to be taken into account as a relevant circumstance of the case. Most of the traffic evidence was on the basis that a road closure would take effect, but we note that there is considerable objection, particularly from the Masada College, and it could not therefore be concluded that such closure is inevitable. We should say the Court has some doubts concerning the appropriateness of the closure of Wolseley Road.

Wolseley Road presently carries non-residential traffic, and it appears probable that the road closure is more designed to improve the present situation than to cater for the amount of traffic which would be generated from development of the subject site even in accordance with the development standard.

It is difficult to compare the opinions of the traffic experts called by each party. Unfortunately, each used a different basis for assessing traffic impact, and applied that information in different ways. MrColston assessed traffic on a peak hour analysis, and MrHallam on average daily flows.

There is no issue that 165car parking spaces as intended to be supplied would adequately provide for the demand likely to be generated by the proposed development. However, MrHallam for the Council estimated that the proposal would generate some 1,050vehicle trips, with a peak hour generation of about 160vehicles per hour. On the other hand, MrColston estimated a maximum peak hour flow of about 115vehicles per hour, which would decline to about 90vehicles per hour if the office building were to be restricted to a floor space ratio of 1:1. He estimated an average daily generation of traffic of about 900vehicles. MrHallam estimates that if the subject office buildings were allowed, the existing average daily traffic in Wallace Parade would rise from 2,080 to 2,450, a rise of about 370vehicles per day. We have no doubt that an additional 370vehicles per day would cause therein a significant reduction in the existing amenity. Whilst development in accordance with the existing floor space ratio would attract some

200vehicles per day, that obviously is still significantly less than that estimated for the proposed development. We are persuaded that the increase in traffic in Wallace Parade and impact upon its amenity is a matter of real concern. We are persuaded that development generally in accordance with the development standard would cause impacts in the locality which are acceptable, but that the development of the site of the gross magnitude proposed in the application would spread traffic over an unreasonably wide area of residential land. Such development would have an impact which is adverse and unacceptable.

In all the circumstances, we are unpersuaded that the objector has discharged its onus pursuant to SEPP1, and are not satisfied that the objection is well founded with respect to the subject application. In such circumstances, it is not necessary or appropriate to proceed with an assessment of the merits of the application pursuant to the matters specified in s.90 of the E.P.&A.Act.

The orders of the Court are:

1. Objection pursuant to State Environmental Planning Policy No.1 dismissed.

2. Development consent refused.

3. Appeal dismissed.

4. Exhibits may be released.

5. No order as to costs.