Humphrey & Edwards v City of Sydney

[2009] NSWLEC 1075

Land and Environment Court

of New South Wales

CITATION:	Humphrey & Edwards v City of Sydney [2009] NSWLEC 1075
PARTIES:	APPLICANT Humphrey & Edwards Pty Ltd RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	11081 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- 3 and 4-storey mixed-use development - impact on the planned but not constructed Green Square Town Centre - public interest - orderley development - economic impacts in the locality - impact on the public domain
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997
CASES CITED:	Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195 Hairis Architects v Waverley Council (2002) 123 LGERA 100 Gordon & Vallich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Tuite v Wingecarribee Council (No 2) [2008] NWSLEC 321 Re Drake v Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634 Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348
DATES OF HEARING:	02-06/02/09, 13/02/09
DATE OF JUDGMENT:	20 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Craig QC with Ms S Duggan SOLICITORS Malesons Stephen Jaques RESPONDENT Mr P Tomasetti SC SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

20 March 2009

11081 of 2008 Humphrey & Edwards Pty Ltd v Council of the City of Sydney

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application D/2008/1092 by the Council of the City of Sydney (the council) that would provide for a 3 and 4-storey mixed-use development comprising 28,044 sq m of gross floor area (GFA) at 296-298 Botany Road and 284-300 Wyndham Street, Alexandria (the site). The proposed development provides for 25,224 sq m of retailing, 1,144 sq m of commercial space and 2,676 sq m for a gymnasium. The retailing space provides for a full-line supermarket, a discount department store (DDS) and specialty shops. A basement car park for 800 cars is provided.

2 The application is submitted as an application to amend a previous approval granted by the council (see par 7). The development application describes the proposal as:

Change of the use of L1 & part Level 2 from commercial to retail use with a net increase of retail is floor space of 2362 sq m plus an additional basement car park level with an additional 186 car parking spaces.

3 The principle issue raised by the council is that the proposed development is likely to have a detrimental impact on the vitality and success of the Green Square Town Centre (GSTC) and threaten the broader planning strategies for Metropolitan Sydney. The council contends that the proposed development is not orderly development. The GSTC will not function as one cohesive centre and patrons will not flow freely between the sites because of the physical constraints separating the GSTC from the site and the mix of uses on the site. This will divide retail spending and visitor trips and create an unreasonable economic impact on the GSTC because of the competition for retail spending and visitations. These consequences are not in the public interest. The council also contends that the relationship between the retail area of the proposed development and the public domain is unacceptable.

Green Square– background

4 The Green Square Urban Renewal Area (GSURA) has an area of approximately 280 ha and contains generally older industrial buildings currently used for a variety of uses. The future of the GSURA is a planned transit orientated ecologically sustainable community, based on a mixed-use urban environment with a balance of residential and employment generating activities. The GSTC is to be the hub of the GSURA. It is centrally located and has an approximate area of 14.7 ha. The boundaries of the two areas are shown in Fig 1.1 of Part H and Fig 1.1 of Part G of the South Sydney Development Control Plan 1997 (the DCP), respectively

5 Mr Michael Harrison, the council’s town planning and urban design expert helpfully provided a chronology of events leading up to the existing planning controls. A summary of the main events is:

1991 – announcement of the new Southern Railway through Green Square and the initiation of planning for Green Square.
1995 - South Sydney Council announce a national urban design competition for Green Square.
1996 - South Sydney Development Corporation formed to manage development of Green Square.
1997 – Structural Master Plan prepared.
1998 - South Sydney Local Environmental Plan gazetted for Stage 1 rezonings.
1999 – Masterplan design ideas competition winner announced.
2000 – Final Draft of Masterplan completed and retail strategy prepared to address size, placement and mix of retail facilities.
2001 – International design competition for Town Centre and ongoing refinement of Masterplan.
2002 – Masterplan completed and resolution to prepare draft LEP for Town Centre.
2003 – Landcom submit draft LEP and Masterplan with specialist studies including retail market assessment and Town Centre Design Report. Council resolve to place on exhibition.
2004 – Further specialist studies prepared after exhibition.
2005 - State Government’s Metropolitan Strategy City of Cities: A Plan for Sydney's Future (the Metropolitan Strategy) published with Green Square identified as a planned major centre.
2006 - NSW State Plan released identifying priorities for government over the next 10 years. The implications of this plan are included in the Metropolitan Strategy.
2006 – Amendment 17 to LEP 1998 gazetted and council adopt Part H of the DCP.
2007 - Further specialist studies prepared to address GSURA.
2008 – Green Square and Southern Areas Retail Study produced by Hassell and Jones Lang LaSalle (the JLL report) and endorsed by council. Report to council on amendments to GSTC, LEP and DCP.
2008 – Council approval of GSTC Public Domain plans and Essential Infrastructure plans.
The site and surrounding area

6 The site comprises two lots with a combined area of 9134 sq m. It has three street frontages; Botany Road to the east, Bourke Road to the south and Wyndham Street to the west. Existing development on the site comprises a part 1 and part 2 storey light industrial building with car parking at the Wyndham Street frontage.

7 The existing surrounding development is mixed and includes residential development, an educational establishment, industrial, commercial, car showrooms and factory retail outlets. The surrounding area also includes sites used by the NSW Fire Brigade and the NSW Police. The Green Square railway station is located directly to the south of the site on the opposite side of Bourke Road.

8 The existing character of the area will change in the future and the likely planned character of the site and surrounding area is addressed in later paragraphs.

Previous approval on the site

9 On 4 February 2008, the council approved Development Application No D/2007/1566 for a mixed-use development comprising 25,682 sq m of GFA on the site (the 2008 approval). The GFA is made up of 14,949 sq m of retailing area and 10,733 sq metres of commercial area. The retailing area provides for a full-line supermarket and specialty shops and the commercial area provides for predominantly office accommodation. A basement car park for 614 cars is provided.

The site – relevant planning controls

10 The site is within Zone No 10(c) – Mixed Uses under South Sydney Local Environmental Plan 1998 (LEP 1998). Shops and commercial premises are permissible uses within this zone with development consent. Clause 10 provides that development consent must not be granted unless the Court is of the opinion that the proposal is consistent with the objectives of the zone. Clause 21C(1) provides the following relevant objectives for the zone.

(a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light-industrial and industrial development, and
(b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimize vehicular travel, and
(c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and
(d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and
..
(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and

11 The DCP provides further detailed planning controls for matters such as height, car parking and floor space ratio although the council did not raise any issue with non-compliance with any numerical standards in the DCP.

12 Urban Design – Part G: Special Precinct No 9 Green Square of the DCP applies to the GSURA. The site is located within the GSURA and adjoining the GSTC. The relevant parts of the Part G are Urban Strategy Background Statement (cl 2.1), Transport and Parking (cl 2.3), Land Use and Neighbourhood Character (cl 2.7), Activity Centres (cl 2.8) and Public Domain (cl 3.1).

Green Square Town Centre – relevant planning controls

13 South Sydney Local Environmental Plan 1998 (Amendment No 17) - Green Square Town Centre (Amendment 17) was gazetted on 22 December 2006. This creates two zones for the GSTC; being Zone No 11(a) – the Green Square Town Centre Zone and Zone No 11(b) – the Green Square Town Centre Public Domain Zone. The zones are shown on a map attached to Amendment 17. The area covering the two zones is however a deferred matter under s 68(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The zones are deferred until individual landowners agree to participate in the development of the area. This participation includes entering into Voluntary Planning Agreements (VPA’s) for contributions towards the provision of essential land and infrastructure. Once the VPA’s are in place, the council will seek an amendment to Amendment 17 to remove the deferred status of the GSTC and to activate the 11(a) and 11(b) zones. Confidential documents were tendered on this part of the development process. Until amendments are made to Amendment 17, the applicable environmental planning instruments for the GSTC are The City of Sydney Planning Scheme Ordinance and South Sydney Local Environmental Plan No 114.

14 Amendment 17 provides aims and objectives for the plan at cl 3. Relevantly, one objective is:

to establish planning provisions for development of a vibrant town centre with an appropriate mix of land uses, visual interest and a distinctive character that is meaningful to the local community, and informed by the social, cultural and historical values and attributes of Green Square, and (cl 3(2)(c)).

15 Zone objectives for the two zones are found at cll 21F(1) and 21G(1). For Zone 11(a), the relevant objectives are:

(1)(a) to establish the Green Square Town Centre as the major commercial, retailing, cultural and entertainment centre for Green Square
(b) to allow for a mix of land uses that will:
(i) ensure that there is an appropriate balance between residential, retail, commercial and other land uses within the Green Square Town Centre, and
..
(h) to promote the vitality of the public domain by encouraging the location of active retail, food and beverage and entertainment uses, and community and cultural facilities, at ground level (particularly at the edges of public plazas), and
..
Zone 11(a) is intended to accommodate a vibrant residential, commercial, retail and cultural heart of Green Square. The scale and character of the Green Square Town Centre is supported by Zone No 11(b), which promotes high level public amenity through a circulation grid for vehicles and pedestrians, and a network of open spaces for active and passive recreation.

16 For Zone 11(b), the relevant objective is:

(b) to establish a significant new people-orientated public town square, interconnected streets and other vibrant public plazas and public spaces that are designed to be safe, functional and visually interesting places to use, and that will provide appropriate settings for a range of people and varied social activities, and

17 Other relevant clauses that relate to the GSTC in Amendment 17 are found in Div 2 (cll 27A to 27K), Div 2A (cll 27KA to 27KI) and Div 4 (cl 28). Schedule 4 provides planning principles and sch 5 provides the total gross floor area for 19 identified development sites in the GSTC and the mix of commercial, residential and retail floor areas for each of the 19 sites. The maximum height of buildings is also provided for each of the 19 sites.

18 Part H - Green Square Town Centre of the DCP provides detailed controls for the GSTC including the Green Square Town Centre Strategy (cl 2). Clause 2.1 addresses the Vision and relevantly states:

The Vision for Green Square Town Centre is for a vibrant residential, commercial and cultural heart for the Green Square Redevelopment Area. It will be home to approximately 5,500 residents and about 7,000 people are expected to work in the Town Centre. It will be a place where people can live, work and go out either during the day or night, for entertainment, cultural and community activities.

19 Location of Desired Activities (cl 3) provides objectives, one of which is

To develop vibrant retail and other active uses at ground level, in appropriate areas throughout the site

20 Requirements for Public Domain (cl 4) and Street Hierarchy, Traffic and Transport (cl 6) are also provided.

21 Part H of the DCP identifies the form that the mix of commercial, residential and retail floor areas identified in Amendment 17 will take and the relationship of the built form with the public domain. Amendment 17 and the DCP work together to create the final form of the GSTC.

Other relevant planning matters

22 In addition to those matters identified in the preceding paragraphs, s 5 of the EPA Act provides objects for the Act. Relevantly, one object is to encourage "the promotion and coordination of the orderly and economic use and development of land" (s 5(a)(ii)).

23 Section 79C(1) of the EPA Act provides general matters for consideration in determining a development application, relevantly consideration of "the likely impacts of a development, including environmental impacts on both the natural and built environment, and social and economic impacts in the locality" (s 79C(1)(b) and "the public interest" (s 79C(1)(e)).

24 Beside published environmental planning instruments, other planning documents that can be seen to represent the public interest in planning matters are also relevant considerations (Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195 at 81). In this case, these documents would include the Metropolitan Strategy, The Sydney City Draft Subregional Strategy (2008) and Sustainable Sydney 2030 Vision.

25 While the proposed development must be considered in terms of the zoning of the site and the relevant considerations that relate to this zoning, the wider impact of the proposed development must also be considered. This provides a clear mandate for the consideration of the impact of the proposed development on the GSTC.

The evidence

26 Mr Harrison provided town planning and urban design evidence, Mr Michael Cullen provided economic and retail evidence and Mr Graham McCabe provided traffic evidence for the council. Mr Harvey Sanders provided town planning evidence on the local planning controls, Mr Gary Prattley provided regional planning evidence, Ms Gabrielle Morrish provided urban design evidence, Mr Peter Leyshon and Mr Brian Haratsis provided economic and retail evidence and Mr Dan Bright provided traffic evidence for the applicant. There was some overlap in some town planning, economic and retail and urban design expert evidence.

27 Mr Paul Anderson provided evidence on behalf of Landcom, a major landowner in the GSTC.

Town planning evidence

28 Mr Harrison states that the approval would be inconsistent with the Metropolitan Strategy, The Sydney City Draft Subregional Strategy (2008) and Sustainable Sydney 2030 Vision where the GSTC is identified as a major planned centre. Subsequent planning documents such as Amendment 17 and Part H of the DCP provide more detailed planning controls that are consistent with the higher order planning documents. Mr Harrison states that the proposed DDS together with the inevitable increased mix of comparative retail specialty shops will substantially risk the success of retailing in the GSTC. The 2008 approval for a supermarket and specialty shops is mainly convenience-based retailing, which is needed in the area, although Mr Harrison is of the view that too much specialty retail was approved in this development. The mix of uses was considered acceptable when approved because of the separation of the site from the GSTC by two arterial roads and the need to conveniently serve the daily shopping needs of existing and future residents, workers and visitors to the west and north of the site in the GSURA.

29 Mr Harrison states that it is only common sense that a retail centre that is similar in retail floor area to a nearby town centre will substantially and adversely impact on the economic viability of retailing in the town centre because of earlier establishment, the comparative advantages of easier car access and greater parking, no substantial costs for flood control, infrastructure and major public domain works and the absence of complex land assembly issues. The clear intention of the council is to limit the size of shops in the mixed use zone in future planning documents in order to further confirm the role of the endorsed hierarchy of centres, with the GSTC as the primary centre.

30 In Mr Harrison’s opinion, the best use of the site is to reinforce the GSTC by providing commercial office space to take advantage of proximity to the rail station and to provide demand for retailing in the GSTC. Overall, Mr Harrison states that the proposal is inconsistent with objects of the EPA Act in that it does not encourage "the promotion and coordination of the orderly and economic use and development of land" (s 5(a)(ii)), "the provision and coordination of community services and facilities" (s 5(a)(v)) and is not in the "the public interest" (s 79C(1)(e)).

31 Mr Sanders states that the proposed development is not inconsistent with the objects and relevant considerations of the EPA Act as suggested by Mr Harrison. The proposal satisfies all the relevant requirements of LEP 1988 and the DCP. He relies on the evidence of Mr Leyshon and Mr Haratsis who conclude that the proposed development would not have an adverse economic impact on the GSTC. He also disputes Mr Harrison's evidence that the proposed development will not provide appropriate connectivity to the GSTC, based on the evidence of Ms Morrish.

32 Mr Prattley acknowledges that the Green Square area is identified in the regional planning documents identified by Mr Harrison as a major planned centre however these documents focus on the revitalisation and redevelopment of the area within a 1 km radius of the Green Square railway station. While the designated GSTC area is a very significant component of the area, it does not represent the whole of the planned major centre. The site is very close to the core of the planned major centre and its development is a critical component in stimulating the redevelopment of this area. Mr Prattley states that a comparison with other new town centres and existing major centres demonstrate that the proposal would be consistent with the development of an active and vital town centre. Extensive retail support from the proposed development will be important to the early achievement of the stated employment objectives for the GSTC.

Urban design evidence

33 Mr Harrison and Ms Morrish disagree on three main areas. These are whether the need to cross Bourke Street creates a significant pedestrian barrier between the site and the GSTC, whether arterial roads should divide the retail core of major activity centres and whether the shortcomings of the 2008 approval can be improved by the proposed development.

34 Ms Morrish states that the RTA intersection design for the realignment of O’Riordan Street, Wyndham Street, Bourke Street, Bourke Road and Botany Road (the RTA intersection design) was tested by the applicants traffic expert and confirms that the intersection can work functionally and successfully for cars and pedestrians with pedestrian crossings combined with traffic lights to allow safe and convenient movement between the Green Square railway station and the site.

35 Ms Morrish further states that refusing the DDS on the basis of an intersection design that still appears to be extremely fluid and against all good urban design and planning practice is not appropriate. For the long-term benefit of the area, the traffic issues must be resolved so that Bourke Street and Botany Road are narrowed and have reduced traffic usage to create a true mixed use and connected town. If the intersection proceeds as suggested by Mr Harrison, then it is essential that a retail lined underpass be provided to link the site with the GSTC.

36 Ms Morrish further states that it is not reasonable to conclude that the addition of a DDS would suddenly make the design of the 2008 approval unacceptable. The internal arrangement, its address and activation to the surrounding streets and its connectivity are essentially the same, being guided by the same design principles as were supported and considered of sufficient quality to warrant the 2008 approval. The proposal activates most of the street frontages with active uses including the entry to the retail area of the development. This creates a vibrant frontage to the internal mall arrangement and allows future retail on the station site and the other side of Botany Road/Bourke Street to relate to each other.

37 Mr Harrison states that the RTA intersection design is very inhibiting for pedestrians because of the need to cross three arterial roads that converge between the site and the GSTC. While O'Riordan Street will be diverted, Botany Road and Bourke Street will be widened to accommodate the existing B Double truck route towards Port Botany. This situation is not likely to change in the near future, if at all according to Mr Harrison. The intersection will be a major inhibitor to pedestrians for a lengthy period of time and to have the core retail functions of a town centre spanning across such an intersection is very poor planning and should be avoided as much as possible. In his understanding, it is quite definite that the status of the arterial roads will not change for a long time. Similarly, the B Double truck route will not change for a long time, if at all. In his understanding, it is also clear that the RTA will resist limitations to the truck movement corridor and, in fact is likely to take the opportunity to increase the size of the intersection. Mr Harrison opposes a retail lined underpass to avoid the traffic at the intersection as the design philosophy for the GSTC is to provide ground level retailing facilities, despite the DCP currently advocating a below ground link.

38 Mr Harrison states that it is inevitable that the layout of the proposed shopping centre will be internalised due to the hostile nature of the surrounding streets. It is important that the shopping centre should not be so large that it serves most of the shopping needs of the broader Green Square population. It does not follow that because the 2008 approval was considered acceptable that this proposal should also be considered acceptable. The internal arrangement has changed with the introduction of a DDS and the loss of office space. In his opinion, the vibrant frontage of the proposal will always be second rate because of the hostile street environment compared to the planned town centre.

Economic and retail evidence

39 The economic and retail evidence was conducted in two stages. The first stage involved Mr Cullen, Mr Leyshon and Mr Haratsis. They prepared a joint report that identified the areas of disagreement. Mr Leyshon states that there is significantly more demand for retail floor space in the GSTC than either the statutory controls currently allow for (16,500 sq m GFA in Amendment 17) or that recommended in the JLL report (26,250 sq m of gross leaseable area (GLA)). To add further confusion to this issue, the council’s planning controls refer to GLA whereas retail experts use GLA. The difference between GFA and GLA is that GFA may include additional areas, such a wall thicknesses. While it varies from site to site, Mr Haratsis stated that GLA was generally around 80% of GFA.

40 Mr Leyshon states that 80,000 sq m of GLA is supportable in the GSTC (including the development on the site). The GSTC could also support a further DDS. Mr Cullen states that only the 26,500 sq m of GLA, as recommended in the JLL report is supportable, although he acknowledges that he has not undertaken any independent assessment. Mr Cullen further states it is possible to conclude that if the floor space in the 2008 approval is included in the calculations, approximately 37,000 sq m is supportable in the broader Green Square area.

41 Mr Haratsis states that the proportion of retail floor space when compared to the total building space within the GSTC is too low to provide a vibrant and viable town centre. There is agreement between Mr Haratsis and Mr Leyshon that there needs to be a minimum critical mass of retail floor space to support the associated 107,000 sq m of planned commercial development. They both agree that there is capacity for two DDS’s and recommend a minimum critical mass of retail floor space 70,000 sq m for the wider Green Square area with at least 50,000 sq m in the GSTC.

42 The second stage of the retail evidence resulted from additional evidence provided by the council during the hearing. The Court was told that the council maintained a database of retail floor space (the council data) but despite the existence of the data it was not used by any of the experts. The Court was advised that the data was not in the form that could be readily produced for the proceedings but Mr Cullen referred to the data in his oral evidence because of the significant difference between the council data and the existing retail floor space used by all the experts. The council’s data revealed 339,947 sq m of retail GFA for the area defined as the Primary Trade Area and 43,772 sq m of retail GFA for the area defined as the Secondary Trade Area. The Primary Trade Area includes the GSTC and the GSURA and extends further to the north, west and south of the GSURA. The Secondary Trade Area is located further to the north and outside the GSURA

43 Mr Leyshon, Mr Cullen and Mr Hillier, an employee of the council involved in the collection and presentation of the council data, provided further oral evidence on this data. Mr Hillier states that the council data is a numeric aggregation of information compiled in councils Floorspace and Employment Census, undertaken at five-yearly intervals. The current data was surveyed in early 2007. The classification of the data is coded according to the Australian Bureau of Statistics Australian and New Zealand Standard Industrial Code (ANZSIC).

44 Due to the extent of the new evidence and the time constraints of the hearing, Mr Leyshon conducted a limited number of "spot checks" of the council’s data that revealed that while the retail floor space identified in the council data has been properly coded in terms of the ANZSIC classification, this classification does not provide a true representation of the actual use of the site. The spot checks on six properties, comprising some 26,000 sq m of identified retail space, revealed that despite the correct ANZSIC classification, there is doubt that the sites are actually used for retail purposes. In Mr Leyshon's opinion, the council data does not change his original conclusions that there will be sufficient demand for retail floor area from the GSTC and that the proposed development will not unacceptably impact on the economic future of the GSTC.

45 Mr Leyshon and Mr Cullen agree that irrespective of the actual amount of retail floorspace that exists in the area, a substantial amount of floor space actually serves regional or even metropolitan markets rather than just local demand however Mr Cullen states that the floor space is proximate to and available to residents in the catchment so it would be appropriate to include some of the identified floor space in the "undersupply assessment" of Mr Leyshon.

Traffic evidence

46 Mr Bright prepared a number of reports on the realignment of O’Riordan Street, Wyndham Street, Bourke Street, Bourke Road and Botany Road, including the RTA intersection design. He modelled proposed traffic flows through the intersection up to 2016 based on a number of assumptions including future growth at Sydney Airport and Port Botany, partial development of the GSTC and development of the site. Mr Bright also modelled three intersection designs with different pedestrian facilities. The results indicate that all three intersection designs operate satisfactorily with the forecast background and 2016 traffic flows. A comparison of the modelling with the base flows suggests that there is negligible change in operations and level of service for the intersection. In his opinion, signals can be coordinated such that queuing can be contained within the "reservoir" at Bourke Street between Wyndham Street and Botany Road.

47 Mr Paul Anderson

Mr Anderson is the Landcom Development Director for the GSTC project. He states that Landcom is the largest landowner in the GSTC and has expended $40 million to date to facilitate development that is consistent with the existing planning controls. In his opinion, the proposed development will impact on the long-term sustainability of the GSTC. It is important that landowners and potential developers of the GSTC have some certainty in the planning controls because of the significant investment likely to take place and the significance of the site in terms of metropolitan planning.

Findings
Findings - what weight should be given to the 2008 approval?

48 Mr Craig QC, for the applicant, submits that the subject of the appeal is described in the development application as, in part "change of use of L1 and Level 2 from commercial to retail use with net increase of retail floor space of 2362 sq m plus additional basement car park level with an additional 186 car parking spaces". Consequently, the development application is not seeking consent to use the building for all uses shown on the development application plans but is limited to the changes as described in the development application form together with layout changes and facade changes.

49 In his submissions, Mr Craig states that it is open for the applicant to, in effect, seek a modification of the development that is subject of a previously granted consent by way of a fresh development application (see Hairis ArchitectsvWaverley Council (2002) 123 LGERA 100). There is nothing that precludes the Court from taking account, as a relevant consideration for the purposes of these proceedings, a previous consent, which is now sought to be modified.

50 Mr Tomasetti SC, for the council, submits that the approach advocated by Mr Craig is not appropriate in the circumstances. The applicant has a development consent and has previously sought to modify that consent by an application under s 96 of the EPA Act. That application is not the subject of this appeal and has not been determined as the council contends that it will not meet the "substantially the same" test in s 96. The development application before the Court is a new development application and should be considered as a new development application.

51 To support his submissions Mr Tomasetti relies on the decision in Gordon & Vallich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 where the Chief Judge states (at par 16) that the

Environmental Planning and Assessment Act does not permit the lodging of a development application to amend a development consent; rather only to carry out development of one or more of types falling within the definition of development

52 Mr Tomasetti submits that as Gordon & Vallich post dates Hairis Architects then it should be preferred.

53 Mr Tomasetti further relies on the decision in Tuite v Wingecarribee Council (No 2) [2008] NWSLEC 321 (at par 55) where, the Chief Judge states :

….the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application.

54 I agree with Mr Harrison that the proposed development application is simply not a matter of changing office space to retail space and providing an additional level of parking spaces. The additional retail space, the type of retail space and the additional off-street parking are important considerations in the potential impact on the GSTC. Mr Harrison saw the office space and the supermarket in the 2008 approval as being important facilities for future residents of the GSURA, particularly to the west and north of the site and not necessarily a threat to the GSTC. This needs to be compared to the inclusion of the DDS that, in the opinion of Mr Harrison will provide a “destination” for shoppers to carry out a large portion of their shopping requirements without any need to visit the GSTC. While the applicant’s experts did not agree to this conclusion, I accept that the proposed development will create a mix of retail uses that has different consequences to the 2008 approval and is likely to impact on the planned future of the GSTC.

55 In accepting that the opportunity is available for the Court to impose a condition requiring the modification of a consent previously granted (s 80A(5) of the EPA Act), I am not satisfied that it is appropriate in this case because the consequential change to another approval should not change the intent or the operation of that consent except in a minor or inconsequential way. Section 80A(5) should not be seen as a substitute for the provisions of s 96 and s 97 of the EPA Act.

56 For these reasons, the proposed development should be considered independently of the 2008 approval and should either succeed or fail on its particular merits.

Findings - is there an unacceptable impact on the GSTC?

57 In balancing the competing evidence on this issue, I am persuaded that there is an unacceptable impact on the GSTC for a number of important reasons.

Are the deferred 11(a) and 11(b) zones certain and/or imminent?

58 The deferred status of the 11(a) and 11(b) zones raises the question of what weight should be given to these zones and the relevant provisions in Amendment 17 in the assessment of the economic impact on the GSTC.

59 I am satisfied that the implementation of the 11(a) and 11(b) zones for the GSTC should be seen as certain even though the evidence of Mr Harrison indicated some amendments to the retail areas are likely to address the findings of the JLL report. The ongoing discussions with land owners over the VPA’s could also potentially see some changes to the ultimate form of the GSTC however, there is no evidence to suggest that the commitment to the overall philosophy and zonings of the GSTC will not be maintained.

60 The question of whether the development of the GSTC is imminent is another issue. The deferred status of the 11(a) and 11(b) zones will remain until some agreement is reached by the landowners on VPA’s for contributions towards the provision of essential land and infrastructure. The evidence suggests that a decision on this matter is not imminent but is subject to ongoing discussions with landowners. A lack of imminency is however not a critical issue in my view and should not be seen as a reason to allow other developments that may threaten the integrity of the GSTC given the extent of planning to date and the importance of the area in a metropolitan context.

61 I agree with Mr Harrison that the development of the GSTC at the earliest possible time is an important goal and developments that limit or threaten the achievement of this goal should not be contemplated, even considering the current uncertainty over timing of the final form of development for the GSTC. The short-term provision of retail facilities should not be preferred over the long-term satisfaction of the aims and objectives of the GSTC.

62 Significant weight should be given to Amendment 17, notwithstanding the deferred status of 11(a) and 11(b) zones because of the 15 years of planning to date and the importance of the GSTC in a metropolitan context. Logically, there must be some flexibility in the finalisation and implementation of the GSTC because of the land ownership issues, the complexity of the planing tasks and the long-term importance of the GSTC.

What is the appropriate level of retailing for the GSTC?

63 The amount of retail space required to support the GSTC is at the heart of the appeal. The council's position is that Amendment 17 and Part H of the DCP determine the amount of retail space, its location generally at ground level and its distribution through the designated 19 sites. Amendment 17 provides for 16,765 sq m of retail GFA. Mr Harrison states that based on the JLL report a further amendment to the retail space for the GSTC was likely and would be in the order of 26,250 sq m of GLA, although there is no specific council resolution to amend Amendment 17 to reflect this recommendation of the JLL report. The resolution is somewhat vague and states, in part, “that the allocation of retail space in the Green Square Town Centre be increased to an appropriate quantum”. The resolution also provides that the previously stated resolution "be considered in the preparation and Assessment of development applications in the Green Square Urban Renewal Area….".

64 The applicant's position was that even if the JLL report retail space recommendations are adopted, there is still a substantial undersupply of retail space in the GSTC based on Mr Leyshon’s evidence that 80,000 sq m of GLA is supportable (including the development of the site). On this basis, the applicant’s position is that the proposed development would not unacceptably impact on the role of the GSTC as there would still be sufficient demand for retail floor space to ensure its dominance.

65 The proposal seeks some 25,224 sq m of retail GFA. This needs to be compared to 16,765 sq m of retail GFA in Amendment 17 and 26,250 sq m of GLA recommended in the JLL report for the GSTC. To accept the applicants’ position that there will not be an unacceptable risk to the success of retailing in the GSTC, the Court would essentially need to find that the sustainable amount of retail floor space for the GSTC would be around 50,000 sq m of GLA.

66 I do not accept the applicant’s position on the appropriate level of retail floor space. To do so would have the effect of essentially abandoning the retail floor area requirements in Amendment 17 and many of the consequential locational requirements in Part H of the DCP. A comparison of the retail floor area of the proposal with either retail floor area figures in Amendment 17 or the JLL report could lead to no other reasonable conclusion than the retail function of the GSTC would be effectively consumed by the retail space provided by the proposed development. I accept that on this comparison there will be an unacceptable risk to the success of retailing in the GSTC. In coming to this conclusion, I acknowledge that retailing is not the only land use that will contribute to the vitality of the GSTC but it must be accepted that without a solid retail core, the vitality sought by Amendment 17 and the DCP is likely to be seriously threatened.

67 In my view, significant weight must be given to Amendment 17 retail floor space requirements. The council has arrived at the amount of retail floor space through public consultation, consideration and adoption. To find that the Amendment 17 retail floor space requirement was substantially underestimated would be to effectively ignore the proper planning process mandated by the EPA Act for the determination of important planning matters, such as the appropriate level of retail floor space for a regionally significant site, in this case. To adopt the ad-hoc approach suggested by the applicant would not provide for certainty in the planning process and would not be seen to be in the public interest. The appeal process should not be used as a mechanism for a merit review of decisions properly made by the council.

68 Some weight must also be given retail floor area recommended by the JLL report. The JLL report has not been through the public consultation process but it has been considered and endorsed by the council. Mr Harrison also saw the JLL report as recommending an appropriate level of retailing for the GSTC that would likely find its way into the planning controls for the GSTC in the future. The JLL report is also a recent document having been endorsed by the council on 3 November 2008. It represents the council’s most recent view on the appropriate level of retailing for the GSTC. There was no evidence to suggest that events that post date 3 November 2008 would require a further reassessment of the recommendations of the JLL report.

69 Amendment 17 and the DCP work hand in hand to create the final form of the GSTC. It is not practicable to consider one without the other, particularly in relation to the amount and distribution of retail floor area. Part H of the DCP (when combined with the retail floor areas in Amendment 17) should be considered as a fundamental element in, or a focal point to, the decision-making process. In this regard, the likely departures from the requirements of the DCP would be so significant that it would effectively mean the abandonment of the DCP or make the DCP unworkable because of the impact on many of the detailed provisions that are linked to the specific retail floor area requirements in Amendment 17.

70 I have previously addressed the inclusion of the DDS and it’s potential impact on the GSTC (see par 54) and I accept Mr Harrison’s evidence that it is not just a question of replacing commercial space with retail space but the additional retail space and the type of retail space that needs to be considered. A DDS would divide retail spending and visitor trips and is likely to create an unreasonable economic impact on the GSTC. It must also be remembered that an additional 2362 sq m of retail floor area is proposed in this application above the 2008 approval. When this is combined with the loss of the employment generating office space, the impact on the GSTC is unacceptable.

71 Overall, I am satisfied that based on the Amendment 17 or the JLL report levels of retail floor space that it is likely that the amount and configuration of retail floor space in the proposed development would adversely impact on the role of the GSTC. The proposal does not attempt to reinforce or consolidate the GSTC but would create a significant retail focus away from the GSTC.

72 Consequently, I find that the proposed development will create unacceptable “…. economic impacts in the locality" (s 79C(1)(b)) and will not be in "the public interest" (s 79C(1)(e)).

73 I also find that the proposed development is in conflict with the object in the EPA Act, in that it does not encourage "the promotion and coordination of the orderly and economic use and development of land" (s 5(a)(ii )).

The need for a planned approach to the GSTC:

74 There can be no doubt that the Green Square area, and particularly the GSTC, has been the subject of comprehensive and detailed planning for at least 15 years. These are summarised in par 5 and in greater detail in Mr Harrison’s evidence. While there is little visible evidence of the planning that has been undertaken so far, the lack of physical construction should not be seen as a failure of the detailed planning for the GSTC. The chronology supplied by Mr Harrison, in my view, highlights a careful and evolving process to ensure that the GSTC performs its ultimate role of providing a focal point for the wider Green Square area. In my understanding of the evidence, there has been no fundamental change to the general direction for the development of the area, only revision and amendment as part of the evolutionary planning process. I am not aware of any inconsistency in the approach that would suggest that the planning process to date is flawed or unworkable and should be abandoned, if only in part.

75 The importance of ensuring integrity and consistency in policy-making is addressed by Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634 at 640 (and cited by Lloyd J in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110) where it states:

There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish inconsistencies which might otherwise appeared in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrator process.

76 A consistent thread through some of the applicant’s evidence was the unsuitability of the defined GSTC area. Mr Haratsis stated that the area would be best centred around the railway station rather than located at its western extremity. Ms Morrish was of the view that the site could form a western node for the GSTC and essentially be part of this area. Mr Prattley suggested that as the site adjoins the GSTC it should be given some higher role in supporting this area. These comments misunderstand the differences in the roles of the different zonings of the site and the GSTC.

77 The council planning instruments define the specific location of the GSTC. The location of the GSTC is unambiguous, as are the requirements for its development. While there might be valid planning reasons why the GSTC could be more appropriately located; the arguments are essentially superfluous given the defined boundaries of the GSTC in the councils planning instruments.

78 I find that the significant inconsistency of the proposed development with the adopted planning controls, not only in numerical terms but the likely impact on the GSTC is not in "the public interest" (s 79C(1)(e)).

Financial commitment to the GSTC

79 Mr Harrison states that significant investments have been made by Landcom, the council and the State Government in planning for the GSTC and preparing the site for its impending development. In 2006, the council and Landcom entered into a Deed to implement the GSTC essential infrastructure. The total expenditure on the project covered by the Deed is $9.5 million although both parties have exceeded these limits on items excluded by the Deed but relating to their own property interests. The estimated total cost of the delivery of the infrastructure and public domain works according to the council's records is $103.2 million. Mr Harrison states that Landcom and the council have forward funded project initiation costs to "kick start" the project in the order of $7 million and up to $20 million. Mr Harrison also notes the approval of GSTC Public Domain plans and Essential Infrastructure plans as a commitment to the GSTC and the financial commitment of the State Government in providing the Green Square Railway Station as an integral part of the GSTC.

80 The comments of Pain J in Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348 are particularly relevant in relation to the financial commitment of Landcom, the council and the State Government where Her Honour addressed the impact of a stand alone bulky goods establishment on the nearby planned Rouse Hill Regional Centre (RHRC). Her Honour states (at par 35):

Informed decisions on the allocation of public funds is clearly in the public interest as it ensures that these funds are properly used. The facilitation of positive investment decisions by private investors is also in the public interest as such investment is essential to ensure the early establishment and ongoing success of the RHRC. These decisions are likely to be made on the basis of adopted planning policies which provide certainty and consistency.

81 The comments made by Her Honour in Stadurn are equally applicable in this case and support the conclusions of Mr Harrison and the concerns of Mr Anderson.

82 I find that because of the substantial financial commitment already made for the implementation of the GSTC based on the existing planning controls and given the likely additional future expenditure, the proposed development is not in "the public interest" (s 79C(1)(e)).

The connectivity of the site and the GSTC.

83 The RTA intersection design provides for the realignment of O’Riordan Street, Wyndham Street, Bourke Street, Bourke Road and Botany Road. This realignment is reflected in the design of the GSTC and shown in Amendment 17 and the DCP.

84 Mr Bright’s evidence on the modelling of the intersection was not challenged. The modelling revealed that there will be a negligible change in operations and level of service for the intersection and that signals can be coordinated such that queuing can be addressed. Notwithstanding the modelling results, there is some merit in the evidence of Mr Harrison that the need to traverse 2 major roads, comprising some 14 lanes of traffic is a major impediment to pedestrian connectivity to the GSTC. It makes sense that if the site was to perform a support role for the GSTC (rather than form part of the GSTC) then the RTA intersection design, or a similar design would likely suffice. In any event, a safe and convenient pedestrian access is required to allow residents from the west and north of the wider Green Square area to gain access to the GSTC.

85 The additional pedestrian traffic likely to be generated because of the increased demand generated by the amount of retail floor area in the proposed development is likely to be more problematic, particularly when the competing positions of the council (who would prefer a narrower carriage way to facilitate better pedestrian access) and the RTA (who would prefer a wider carriageway to accommodate truck movements, including B Doubles) remain unresolved.

86 Considering the evidence available to the Court, the connectivity between the site and the GSTC is not optimal and the pedestrian safety and accessibility would be better served if pedestrian access from the site to the GSTC were limited. This would be best achieved by containing as many people as possible to the GSTC and ensuring the site played a supportive role to the GSTC rather than the de facto western node of the GSTC.

Findings - does the proposed development acceptably relate to the public domain?

87 Putting aside the issue of the relationship with the GSTC, the other issue associated with the proposed development was the relationship between the street level retailing and the public domain. The relevant zone objectives seek:

to promote to the vitality of the public domain by encouraging the location of active retail and entertainment uses at ground level, particularly in areas fronting the Green Square Railway Station" (Objective (c)) and

to ensure that development contributes to a sustainable, vibrant community, and reflects equal and integrated consideration of social, economic and environmental design issues" (Objective (g)).

88 Mr Harrison maintains that the proposed development is inconsistent with these objectives because of the "big-box" format of the proposed development. The 3 or 4 shopfronts provided in the Bourke Road frontage will not generate pedestrian traffic commensurate with the amount of retail space provided. This is not an acceptable urban design outcome for a site on a prominent location, especially when the intent for the GSTC is to provide a diametrically opposed outcome.

89 Ms Morrish relies on the 2008 approval and amendments to the design of the building that in her opinion, improves its appearance and relationship with the public domain. She acknowledges that the retail component will function as an internalised mall but will still have an active street frontage, consistent with the zone objectives.

90 On this issue, I accept that the proposed development is consistent with the objectives of the zone. In my view, the proposed development genuinely attempts to provide some activity at the street frontage although the success of this objective is severely limited by its location on heavily trafficked roads and the changing levels of the different street frontages. Pedestrian usage will undoubtedly be drawn to the internal mall configuration however in the absence of any planning controls that limit the amount of retail floor space, Mr Harrison's argument on excessive floor space is difficult to sustain.

91 I note that Mr Harrison stated that limitations on the amount of retail floor space may form part of a review of the existing planning controls however these amendments are in their infancy and as such could not be given any weight in the Court’s consideration of this issue.

Orders

92 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application D/2008/1092 for a 3 and 4-storey mixed-use development at 296-298 Botany Road and 284-300 Wyndham Street, Alexandria is refused.
3. The exhibits are returned.
___________
G T Brown
Commissioner of the Court