D-Studio Architects Pty Limited v City of Sydney Council
[2013] NSWLEC 1175
•31 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: D-Studio Architects Pty Limited v City of Sydney Council [2013] NSWLEC 1175 Hearing dates: 10, 11, 12, 29 and 31 July 2013 Decision date: 31 July 2013 Jurisdiction: Class 1 Before: Moore SC Decision: 1)The appeal is dismissed;
2)Development Application D/2012/1498 for a proposed travel superstore at 68 O'Riordan Street, Alexandria is determined by refusal; and
3)The exhibits, other than Exhibits 1 and H, are returned.
Catchwords: Compliance with zone objectives Legislation Cited: South Sydney Local Environmental Plan 1998
Sydney Local Environmental Plan 2012Cases Cited: Hillsong Church Limited v The Council of the City of Sydney [2012] NSWLEC 1059
Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289Category: Principal judgment Parties: D-Studio Architects Pty Limited (Applicant)
City of Sydney Council (Respondent)Representation: Counsel
Ms H Irish, barrister (Applicant)Mr P Tomasetti SC (Respondent)
City of Sydney Council (Respondent)
Solicitors
Minter Ellison Lawyers (Applicant)
File Number(s): 10301 of 2013
Judgment
SENIOR COMMISSIONER: Ausglobal Travel Group wishes to utilise 68 O'Riordan Street, Alexandria for the purposes of establishing a travel superstore. Mr Hodges, the managing director of Ausglobal, is clearly the guiding mind behind the proposal and the proposal encompasses his vision for the concept. The concept is described in his written evidence as being to provide a location which has:
The best and most comprehensive customer experience on the market for business and other travellers and tourists by offering a full range of travel services under one roof. The travel superstore would permit clients to research, book and prepare for a trip in a single convenient location. It is also intended that the travel superstore will also encourage competition between rival operators on the premises driving down prices and providing greater value to clients.
Mr Hodges' statement of evidence sets out the range of services that are envisaged by him, sets out a number of areas where there would be retail sales of goods that would assist those who wished to travel or to provide aspects of the fit-out for travel that would be needed to use the services that were otherwise being provided in the travel agency related areas.
This of course, is a simple encapsulation of what is otherwise described at quite considerable detail by Mr Hodges in his statement of evidence. It is, however, unnecessary for the purposes of this decision to set that out in its full detail. It is, nonetheless, clear to me that the concept is one that has been carefully thought out by Mr Hodges and is, as he himself attests, something that, on his knowledge as an experienced manager in the travel business, is not otherwise replicated in any other country.
He describes, in his written statement, a number of things that are the requisites for the establishment of this facility and that it would involve providing space for sixtyfive to seventy agencies, known retailers as well as ancillary uses including a café and child minding facilities. He says, in his view, a large floor area (roughly the size of several floors of a department store) is required to accommodate these uses in a single environment with adequate circulation place.
He provided, as attachments to his statement of evidence, some original concept plans and photo montages that had been developed in July 2011 as embodying the then state of his vision for this proposal. He also said that it was necessary for there to be multiple floors to separate the various elements and provide what he regarded as distinct experiences as a person visiting the premises moved from one style or aspect of travel to another. He envisaged that between 4,000 and 5,000 square metres would be desirable and he noted that the premises at O'Riordan Street had 4,300 square metres.
He also indicated that there was a significant need, in his opinion, for an adequate array of car parking spaces - this proposal being one which would add some eightyfour additional car parking spaces to the thirtytwo that are currently available. That parking would be achieved by adding an additional upper area in the warehouse portion of the building at the rear of the premises.
We inspected the premises during the early part of the proceedings. They are currently being used as a storage facility and a location for the industrial processing of marble, granite and other stone to provide, presumably, for bench tops, cladding, tiling and the like.
At the front of the building on the O'Riordan Street frontage, there are four levels fitted out and designed to showcase the various stone products capable of being produced on the premises. I think it not unreasonable to describe this as being a sumptuous fitout and one which I can well understand is highly desirable, in Mr Hodges's opinion, for the establishment of his business. I can equally see that it would meet his anticipation of what he considers to be an appropriate space able to be adapted. The adaptation of the space is proposed to cost three and a half million dollars and is built into this application.
Mr Hodges was supported in the outlining of the proposal by evidence from Mr Robert Stark who was the author of the Statement of Environmental Effects. He describes the use in the Statement of Environmental Effects as being, "An integrated mix of exhibition rooms, commercial and retail services for the travel business and ancillary uses." He concurs that it is of a unique and unusual type, nature and scale.
He continues to say that, "It is a use that would require large floor plates, appropriate fitout and finishes, a viable location and convenient car parking at an appropriate cost."
Mr Stark also continued to note that the layout that was proposed was readily able to be accommodated by alterations and additions to the existing building to accommodate the new uses.
The question of how the development might be characterised is a matter to which I will return later. But it seems to me that at the present time - it being acknowledged that the use is not one for an industrial purpose - that I do not need to deal with categorisation for this phase of my determination.
It was Mr Hodges's evidence that there were a variety of attributes that he sought in premises that could accommodate his travel superstore vision.
- He wanted to be able to launch in early 2014, that means that the premises need to be readily available for adaptation.
- He wants it to be a stand alone building.
- He wants it to be within 15 kilometres or so of the centre of Sydney but he does not wish to be in the central business district as it would be too hard to get to the store.
- He wants it to be on a main street.
- A single or two floors would not give a similar experience in his assessment and that a multi level building was necessary.
- He did not wish it to be on what he describes as a back street because such a location cannot seek what he is proposing to achieve.
It was his evidence, as I understood him, that this was to be a destination rather than something that was purely designed to be an opportunistic element of some broader facility (whether retail, commercial or otherwise).
It was, in the words of Mr Hack, who gave evidence on behalf of the applicant, what he, Mr Hack, described, as a "category killer" - that is, what he acknowledged was an American expression and dealt with premises such as Toys R Us, BabyCo, Bunnings and the like, where, in effect, all of the needs of a particular class of consumer were able to be accommodated within the same set of large premises.
It is, as Mr Hodges said, "a unique proposal", and one on which he has clearly expended a deal of energy in designing it. It is not difficult to understand, under the present circumstances, having inspected the building, why he would be as enthusiastic as he is to obtain development consent to permit the particular building that is the subject of these proceedings to be approved for its use.
In essence, to some extent, given his description of a clientele that would potentially come from the totality of the broader Sydney Metropolitan area, would primarily come at weekends, would primarily come by car or be bussed there in groups, that it is a case of, at the appropriate location, "build it and they will come" because of its unique nature.
It is in this context that this proposal needs to be considered against the terms of the relevant Local Environmental Plan that applied at the time of lodgement of the development application. That plan is the South Sydney Local Environmental Plan 1998, a Local Environmental Plan that no longer applies at this location because of the coming into force of the Sydney Local Environmental Plan 2012.
There are a number of critical provisions in this Local Environmental Plan. The first of them is clause 10, the Zone Objectives and General Development Controls Provision which reads:
Except as otherwise provided by this plan the Council must not grant consent for the carrying out of development on the land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.
The land in these proceedings is located within zone number 4, the Industrial Zone, and in cl 14(1), there are set out a total of six zone objectives. It is necessary for me to consider whether the proposal is consistent with these objectives or not antipathetic to them.
The first of the objectives of the zone is that which has engaged the most controversy and vigorous contest in these proceedings. The objective is in two parts. The first is:
- To facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres.
There is no contest that the proposal does not meet that objective. However, the second limb of this objective is to:
- Facilitate and encourage other land uses which due to their type, nature, scale, transport requirements or impacts cannot reasonably be located in another zone.
There are in the South Sydney Local Environmental Plan 1998, a range of other zones wherein (without yet testing each or any of those zones against the reasonable location test set out in 14(1)(a)) this proposal could be located. They include zone number 3, the Business Zone, the Mixed Use C Zone, the Mixed Use D Zone and the Mixed Use E Zone. Other Mixed Use Zones have requirements for either minimum or maximum residential development requirements that would preclude a freestanding, standalone enterprise of the nature that Mr Hodges envisages.
I have been taken to the decision of Brown ASC in Hillsong Church Limited v The Council of the City of Sydney [2012] NSWLEC 1059 where the Commissioner dealt with the second element of cl 14(1)(a) saying, in para 53 (in the second half of that paragraph) that in his view the question should be answered or the test applied "by a more general inquiry about the particular characteristics of the proposed use and an understanding of the likely development within the zones."
Before reaching that conclusion with respect to the church that was proposed in those proceedings, the Commissioner had set out, at para 52 of his decision, the quite idiosyncratic distinguishing characteristics of the proposed activities of the church that made it quite different from anything else that might be contemplated within the zone. He specifically said:
There can be little doubt that the Church has different characteristics to more traditional places of public worship. The application proposes multiple services on Sundays, based on the service times and changeover periods it is possible that there could be up to 6 services per day, large numbers of attendees, amplified music and the need for relatively large areas for car parking and bus set down and pick up areas because of the number the attendees. I have little trouble in concluding that the potential exists for substantial amenity impacts from the general operation of the Church, irrespective of the amount of management and control provided.
He went on to say in his view "the inevitable impacts associated with the proposed Church are best addressed through isolation rather than management practices, if possible."
If this is the correct approach to consideration of the test in the second limb of cl 14(1)(a), that being a matter to which I will return shortly (as there is an alternative approach arising from the evidence of Mr Hack in those proceedings and in these proceedings), it is necessary, in broad, to consider the particular characteristics of the proposed use to assess whether or not the proposal cannot reasonably be located in another zone because of the proposed development's type, nature, scale, transport requirements or impacts. It is important to note that they are in the disjunctive and therefore need to be individually satisfied rather than cumulatively satisfied.
There are, in my assessment, no particular impacts of a direct nature that are raised with respect to the proposal and thus, in considering whether it can be located elsewhere, there are no impacts that would act to preclude it being located elsewhere.
Transport requirements
It is clear from the evidence given by Mr McLaren on behalf of the applicant, that, although it is capable of being accessed by public transport, albeit on an extremely limited or non-existent basis on the weekends at time of high usage patterns, with the car parking proposed it is capable of being accessible at any site where sufficient car parking is able to be provided.
Access to public transport, on Mr McLaren's evidence and on Mr Hodges' evidence, is not an essential prerequisite. However, to the extent that access to public transport might be what could be regarded as a bonus for the premises, there are places in the various other zones to which I have referred that would have better public transport access. There is, however, nothing in the transport requirements that would require it to be located in the industrial zone rather than in any of the other zones that are potentially available to it.
The scale, it is also clear, does not give rise to some serious inhibition on it being located in any other zone. Nor, indeed, does the nature of the business, it being capable of being accommodated in any other building that meets the broad outline of the building characteristics required as fulfilling the wishes of Mr Hodges for the establishment of the building and the premises fit-out for it.
Finally, the type of enterprise is not one that is not reasonably able to be located in any other zone. The various retail services, commercial services and ancillary activities do not have some specialised nature that precludes them being located in another zone.
All of Mr Hodges' aspirations that set out why he considers (and, indeed, I observe again, understandably so, given the standard of the premises) they ought be located in the present building, do not, however, mean that they are not reasonably able to be located in another one of the various zones capable of accommodating them in a permissible fashion.
The matters that Mr Hodges raises, he raises as expressions of opinion and I have not been provided any detailed business plan, financial projections or anything else of that nature that would seem to, in any rational sense, set aside the analysis that I have just undertaken that provides no basis why elsewhere cannot provide an appropriate location.
The desire to have broad public exposure by a frontage to O'Riordan Street does not mean that it is unreasonable for it to be located elsewhere. 'Undesirable' and 'unreasonable' are not synonyms and should not so be regarded in these proceedings.
I am not satisfied on the basis of adopting the approach taken by Brown ASC in Hillsong of making a more general inquiry about the particular characteristics of the proposed use and the nature of the undertaking of likely development in different zones means that I could possibly reach the conclusion that this proposal cannot reasonably be located in another zone.
That, however, it seems to me is not the end of that issue.
In the first portion of the paragraph to which I have referred in Brown ASC's decision, the Commissioner dealt with, and considered it inappropriate to have regard to propositions, about the identification of specific sites where, in another zone, the development might be undertaken, and he set that aside. He said in particular, "The identification of a site does not mean that it is suitable for the proposed development."
In this instance, the position is that the applicant itself, through Mr Hack who gave evidence for the Council in Hillsong but gave evidence for the applicant in these proceedings, has identified on pp 11, 12, 13 and 14 of his statement of evidence (exhibit D) "A range of other locations in varying zones within the area covered by the 1998 LEP".
The opinion expressed by Mr Hack was that none of them are suitable. These sites, he indicated, were obtained by a search of a commercial property website
It is self evident from a consideration of the sites that are listed on the pages to which I have referred, that virtually all of them are, by self definition, incapable of fulfilling the needs as opposed to the desires of Mr Hodges for his proposed travel superstore.
However, it seems to me that the flipside of what was said by Brown ASC is that the mere identification of a site in another zone does not mean that it can be said to be unsuitable for the proposed development without a thorough examination of the identified site.
Mr Hack, in his written statement and in his oral evidence, was taken to two particular locations. One of them, at 19-21 Rosebery Avenue, Rosebery, is discussed in the abbreviated form he has used in his statement of evidence at p 13. It is available in areas of up to 5,785 square metres, it is Mixed Uses Zone E and therefore capable of accommodating the proposed travel superstore.
From the photograph in Mr Hack's evidence, it is a multilevel building comprising, at least for part of it, a ground and three levels above that being a similar configuration (on that superficial analysis basis) to the present site. It has approximately 120 car parking spaces currently available.
It was Mr Hack's evidence that he had driven by, and stopped to look in a window to see the nature of the entrance foyer. He had undertaken no analysis and he had not undertaken any significant inquiries - although I concede he acknowledged that he had made some limited inquiries, as I recollect it, of the nature of the premises.
There is nothing in his very superficial analysis, in my view, that says that he has demonstrated that it would not be reasonable to contemplate location of the proposed travel superstore at those premises. He having raised these matters, it seems to me, the applicant is then required to undertake a proper demonstration of the unsuitability or the unreasonableness of contemplating them as a location.
With respect to 300 Botany Road, a site again in a Mixed Uses C Zone capable of accommodating it and with a floor plate of 3,750 square metres, located in close proximity to the Green Square Railway Station and thus having a better transport presentation than the present site, the material contained on the website indicated that it was part of a larger redevelopment site and that the lease was only available to April 2014.
Although Mr Hack made no further inquiries about that, I do not consider that that poses any determinative hurdle to the applicant as the prescription on the length of lease would, at least at the level of examination undertaken by Mr Hack, seem to preclude the nature of the long term occupancy envisaged by Mr Hodges.
However, the inadequacy of the examination of 1921 Rosebery Avenue on that method of approaching the second limb of 14 (1)(a) says to me that the applicant has not demonstrated to me, with respect to those premises, that the proposal could not be reasonably located at that location for any of the nature of matters set out in the clause.
As a consequence, I am satisfied, on either possible way of considering cl 14 (1)(a) of the 1998 LEP, that the requirements of cl 10 of the LEP cannot be satisfied and that the application must be dismissed.
For completeness, I should also turn to what is prayed in aid by the Council as being effectively, in its submission, a second prohibition raised as a consequence of the coming into effect of the Sydney Local Environmental Plan 2012.
It is in this area that, perhaps, it is necessary to make some brief comments about the characterisation.
It seems to me that, however the individual elements within the proposal might be characterised, they all fit under the broad umbrella of commercial premises as defined in the 2012 LEP.
It is unnecessary, in my view, to then dissect the elements that are contained therein as to whether they constitute business premises, office premises or retail premises.
I am satisfied, at least to take the applicant's case at its highest, that the function facility proposed to be operated on the uppermost level of the premises should be regarded as folded into and forming part of the commercial premises to be operated by Mr Hodges' company at the various levels throughout the building for the provision of booking and other related services for the travel industry. I do not accept that, at least at this highest (that being always necessary in my view for this analysis) it should be regarded as a separate use of a function centre.
However it is characterised within the broad category of commercial premises, there is no doubt that premises which are located in the IN1 General Industrial Zone under the Sydney Local Environmental Plan 2012, do not have commercial premises as a permitted land use for this site. As a consequence, it is agreed (by all those who gave planning evidence) that the proposed use is prohibited in the zone under the present LEP.
That brings me to the question of the weight to which the LEP should be given a role to play in these proceedings.
The 2012 LEP came into effect a very short time after the Council determined the present application by refusal. The LEP is now in effect, and clearly was imminent and certain at the time of the consideration and of the determination of the application.
There has been some considerable discussion about the extent to which I should give weight to this as to whether it should be significant weight, determinative weight or whatever it might be arising out of the discussion by the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289.
The objectives of the zone, in addition to setting out conventional matters that are following objectives of permitted and prohibited development list five objectives for this zone.
The first is to provide a wide range of industrial and warehouse land uses, a use with which the present proposal is clearly incompatible.
The second is to encourage employment opportunities with which it is said that the proposal is, to some extent compatible, because of the employment that would be created.
The third is to minimise any adverse effect of industry on other land uses, as this is not an industry, it is not engaged by this proposal but nonetheless is an objective that is based to the support of or regulation of industry.
The fourth is to support and protect industrial land for industrial uses, clearly the present proposal is to the extent that it proposes to alienate the land in a temporal rather than a zoning alienation, clearly does not support and protect industrial land for industrial uses during the period for which it proposes to be occupied for the purposes of the present activity for which consent is sought.
The fifth is to ensure uses support the viability of nearby centres nearby centres are those that are discussed in a variety of studies, the detail of which I do not consider I need to address for this purpose. To the extent that these premises would propose activities in competition with that which might be provided in the nearby centres, it could hardly support the viability of such centres to the extent that it proposes to establish an activity that, on the Council's case, could conceivably be located at or within any of those centres, it also does not support the viability of such centres.
In my view, the proposal is clearly not merely prohibited but is comprehensively antithetic to the objectives of the relevant 2012 LEP Zone.
Despite the valiant attempts made on behalf of the applicant to demonstrate to the contrary, I am unable to find any basis that would cause me to conclude that there was any degree of compatibility between the proposal and the objectives of the zone (except to the limited extent that it might be said to encourage employment opportunities) and there is no evidence that I have that alternative uses of the site might not be able to achieve such an outcome, in any event.
I do not think, however, that I should go to the extent of saying that inevitably the 2012 Local Environmental Plan would act to defeat the proposal. I do not consider at this stage it is necessary to do so given that I do not think it can get to consideration of that point because of its complete failure to satisfy the first of the zone objectives in the 1998 LEP. However, if I were to need to determine the weight to be given to the 2012 Local Environmental Plan, I would be inclined to hold that it should be given sufficient weight also to defeat the approval of the proposal. The consequence of those conclusions, in my view, renders it unnecessary to consider the remainder of the matters that are raised in the Council's contentions.
The consequence is that the orders of court must be that:
(1) The appeal is dismissed;
(2) Development Application D/2012/1498 for a proposed travel superstore at 68 O'Riordan Street, Alexandria is determined by refusal; and
(3) The exhibits, other than Exhibits 1 and H, are returned.
Tim Moore
Senior Commissioner
Decision last updated: 24 September 2013
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