Inipine Pty Limited v Waverley Municipal Council

[1988] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION:

Inipine Pty Limited v. Waverley Municipal Council [1988] NSWLEC 142

PARTIES:

APPLICANT
Inipine Pty Limited

RESPONDENT
Waverley Municipal Council

FILE NUMBER(S):

10138 of 1988

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act, 1979
Waverley Local Environmental Plan 1985

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

10/13/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: Inipine Pty Limited appeals pursuant to s.97 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act") against the deemed refusal of Waverley Municipal Council ("the Council") to approve the erection of a commercial complex, including retail space, a six screen cinema complex, a restaurant and a residential tower comprising twenty units, at premises known as 71-77Oxford Street, Bondi Junction.

The property has frontage to both Oxford Street and Spring Street and is located close to the western extremity of the Bondi Junction commercial area bounded by Denison Street. It is situate within a 3(a5)Special Business (Mixed Business) Zone pursuant to the Waverley Local Environmental Plan 1985 ("LEP1985") and it is common ground that the proposed development is permissible therein with the consent of Council.

The commercial centre of Bondi Junction is encircled by residential areas and separated from them only by public roads.

At its meeting of 26thJuly, 1988 Council resolved to reject an application received after the appeal was lodged for the following reasons:|CF2.|PSI

"1. The adverse impact of the proposed development upon the environment and the residential amenity of the residents living within the vicinity of the proposed development.

2. The adverse social and economic affect the development would have upon the residential development within the locality.

3. The character, location and intensity of the development upon the locality.

4. The amount of traffic likely to be generated by the development particularly in relation to the capacity of the road system within the locality and the probable affect that the traffic will have upon surrounding residential streets.

5. The existing and likely future amenity of the neighbourhood.

6. The circumstances of the case."|CF1.|PSO

The appeal continued pursuant to s.96(3) of the E.P.&A.Act.

The first similar proposal for the development of the property, with office space in lieu of the residential tower, was rejected by the Council in February, 1988.

Council has considered a number of amended proposals and has consistently opposed the cinema complex. The applicant modified the plans to accommodate criticism, inter alia, of the lift and stairwell core, the podium and the Oxford Street facade.

By consent, amended plans were substituted during the hearing for those considered by Council, and they eliminate matters in dispute relating to floor space ratio, landscaping, lift-well and loading dock. The subject proposal is for nine storeys comprising ground floor retail shops fronting a central arcade, a first floor providing six cinemas with seating for 1,649 persons, a mezzanine level with a restaurant having seating for 130persons, and a residential tower of eighteen two-bedroom and two three-bedroom units. Four levels of basement car-parking with vehicular access to Spring Street, as amended, will provide 248 spaces and a loading dock. The proposal is for the erection of a large structure which seeks to maximise the development within the parameters of relevant development standards. The height of the proposed structure has been modified at the Oxford Street facade to be compatible with buildings adjoining to the west which are identified in Schedule1 of LEP1985 as items of environmental heritage. T

he Building/Development/ Subdivision Board of Council recommended approval of the application subject to conditions.

The property is presently occupied by three retail shops of one and two storeys which front Oxford Street, a gymnasium of two storeys, and a vacant plant nursery fronting Spring Street. Oxford Street is the boundary with Woollahra Municipality and both sides are developed with commercial/retail buildings. Adjoining the subject property to the east is a nine storey motel, including a restaurant and office suites. On the west, development is a mix of one and two storey buildings, including squash courts, furniture warehouse, car tyre sales and services and hotel. The southern side of Spring Street is a mix of one and two storey warehouse type buildings, child care facilities and community buildings.

Pursuant to the provisions of that LEP, land in the street blocks bounded by Oxford, Denison, Ebley and Newland Streets is zoned 3(a4) Business Special (Business Houses), 3(a5) Business Special (Mixed Business) and 3(a6) Business Special (Mixed Business).

The objective specified in LEP1985 for each of these zones is identical; i.e.|CF2.|PSI

"The objective is to provide a wide range of retail and commercial uses, some ancillary light industrial uses and residential development mixed with those uses."|CF1.|PSO

Floor space ratio permissible for commercial development in the 3(a5) zone is 3:1, and the highest is 4:1 in the 3(a4) zone. The 3(a5) zone has a bonus for a residential component, but development for residential purposes is permitted with consent in all commercial zones.

Bondi Junction has been the subject of substantial development in recent years, ranging from high rise buildings such as the Eastgate Tower and the David Jones Plaza, down to two storey development. This prompted the Bondi Junction Urban Design Study by the Department of Environment and Planning in December, 1987.

MrD.I.Smith, a consultant town planner, was of the opinion that there should be a transition in scale or a buffer zone between such commercial precincts and the adjoining residential areas. In his opinion, because the subject proposal was on the "fringe" of the commercial area and of high intensity, the residential amenity of adjoining areas will be detrimentally affected. He supported Council's decision pursuant to its Draft Planning Strategy for Bondi Junction 1988 that:|CF2.|PSI

"A. Traffic management strategy should be developed incorporating the following aims:

i) any increased traffic generation should be directed away from residential streets,

ii) the use of Denison Street should not be intensified,

iii) Denison Street should not be extended north of Oxford Street.

B. As regards the submission received from the Mill Hill Precinct Committee, the following specific controls are to be incorporated into the draft LEP that provides for the scaling down in intensity of use of developments on the commercial fringe of Bondi Junction in close proximity with residential zones by giving Council the ability to assess the effect that proposed developments will have on the amenity of those zones. Specifically Council seeks to control tourist development, entertainment facilities and other uses with significant traffic generation, noise or operating times outside normal business hours."|CF1.|PSO

The Mill Hill Precinct Committee is an active body of residents generally located in the residential area immediately to the west of the commercial district. Through this body Council is informed of the views of residents on matters which might affect the locality, which is in a residential conservation area. The dwellings are of architectural and historical significance and the residents seek to preserve their "village" atmosphere. At present, notwithstanding parking problems close to the commercial centre, particularly in Denison Street, the locality is quiet and safe outside normal business hours. The said committee made a written submission objecting to the original proposal on 11thMarch, 1988 for the reasons:|CF2.|PSI

"i) Significant traffic volumes and resulting undesirable impact upon adjacent residential streets;

ii) Noise and disturbance resulting from patrons late at night;

iii) Hours of operation are excessive which are inappropriate near a residential area;

iv) Inappropriate form of development."|CF1.|PSO

Council also received pro forma letters and petitions for and against the development.

A number of residents and the local Member of Parliament gave evidence to support and explain the above grounds of objection, which also apply to the amended application now before the Court. MrSmith supported such objections to the amended proposal. He observed that a cinema complex was not inappropriate for the commercial centre generally, but would be more appropriately located in the "heart" of the centre. He identified this as an area closer to the existing pedestrian mall which is an important focus for Bondi Junction.

In his view, the development could be approved if the cinema complex was deleted. He submitted that it fails to meet the said aims and objectives of LEP1985, and Council's determination and recommendations in respect of the said Bondi Junction Environmental Study Review.

MrSmith accepted that impact in surrounding streets as a consequence of the development's daytime traffic generation would not be significant. Notwithstanding that he conceded that there is already an impact as a consequence of the close proximity of the residential area to the commercial centre, he was of the opinion that the proposal to operate the cinemas seven days per week to midnight would have an unacceptably adverse impact. Noise from parking and movement of patrons would, in his opinion, be exacerbated by the inadequacy of the basement car park both in capacity and design. It is more likely, in his opinion, that, notwithstanding the availability of space in such a basement car park, patrons would park at kerbside in the streets in the residential areas.

MrI.G.Demianenko, a consultant transportation engineer, accepted that the proposal would not create traffic exceeding the capacity of surrounding streets or intersections. However, in his opinion, assuming the correctness of the volumes assessed by Colston Budd Wardrop & Hunt on behalf of the applicant, the development will intensify the use by traffic of Denison Street, particularly outside normal business hours. He also concludes that cinema patrons will park in the public streets and Council car park at the corner of Denison and Ebley Streets. On information given to him, the future existence of such car park may be in some doubt. In his opinion, traffic movement, on-street car parking and patrons would have an adverse impact upon the adjoining residential area.

No evidence was called from any Council officer or from its Building Board in support of the Council's case.

MrM.B.Colston, consulting transport engineer, made an assessment of traffic generation and movement arising from the proposed development. Surveys were made at the Warringah Cinema Complex and the Chadstone (Victoria) Cinema Complex to provide a guide to the likely visitation levels, mode split, etc. that might be expected. Whilst he was cross examined on the comparability of such centres and conclusions reached, no real challenge was made to his assessment nor was contradictory evidence submitted by MrDemianenko. Iaccept Mr Colston's mathematical assessments and his conslusions therefrom. In his opinion, the number of vehicles associated with the cinemas during normal business hours |CF2.|PSI"will be small and and will not noticeably alter the character of traffic flow in the vicinity of Bondi Junction Central Business District"|CF1.|PSO. In his opinion, the number of cars on a |CF2.|PSI"typically busy Saturday evening"|CF1.|PSO would be 200 to 300 and, on rare occasions, as high as 400 cars. These figures w

ould be less for late shows; i.e. 130 to 180, with a maximum of 250 on a very busy night. On his assessment of traffic flow, if access was restricted to left turns only there would be some impact on Denison Street for one hour relatively early on a Saturday evening. At other times and on other days, in his opinion, the impact would be far less and very little impact after the final session.

In his opinion, Denison Street already carries traffic volumes in excess of those expected from a local road. Its proximity to and being the perimeter of the commercial centre inevitably compels it to accommodate traffic to and from that centre. In his opinion, even if the development did not proceed, Denison Street would play a significant role in the centre network and would carry increasing traffic flow.

Depending upon the success of the proposal, it was possible that traffic flow in Denison Street could increase substantially, however he was of the opinion that such increase would still be relatively small and would only occur for a limited period on a Saturday evening. In his opinion, there would therefore not be a major impact on the amenity of residents in the adjoining areas.

If parking for 248 vehicles is provided on site the development complies with Council's Code and the recommendation to Council by its Building Board. MrColston was of the opinion that that figure was appropriate and that the overflow on very busy nights would be most likely accommodated in the off-street parking areas already existing in the locality.

The architect for the applicant, MrG.J.Taylor, gave evidence of improvements which could be made to the basement parking area. He conceded errors in the provision of egress from the staircase from the basement to Spring Street and access from the lift to the residential tower. By consent, the plans were amended accordingly. Access to the basement parking area would, he conceded, be further improved by the provision of an elevator with a capacity for twenty-four persons to give access from each basement level to the arcade adjacent to the staircase leading to the cinema foyer. Additional staircases should also be provided to give convenient access for pedestrians from all basement levels to the arcade area adjacent to the staircase leading to the cinema foyer. Through Counsel, he also proposed separate security parking and access to a lift for the exclusive use of the residential component. The applicant would accept a condition that no part of the parking area be conducted as a commercial parking station and

that it be free of charge and available for use at all times.

MissM.D.Laidlaw, a consultant town planner, prepared the Statement of Environmental Effects in support of the development application, and strongly supported the amendments proposed in evidence in this appeal. She disputes all of the reasons advanced by the respondent that the development is inconsistent with the aims and objectives of LEP1985, or inappropriate for the subject site. In her opinion, more intensive development of the western end of the commercial centre is inevitable and an entertainment facility is consistent with the existing and likely future role of the centre. All impacts have been assessed and, in her opinion, are acceptable and |CF2.|PSI"must reasonably be expected by residents living in close proximty to a major commercial centre, on a road serving an identified access function in relation to that centre"|CF1.|PSO. Her data and opinions are contained in an extensive report tendered in evidence.

Ihave carefully considered all of the evidence and in particular the experts' reports and the numerous studies and reports available to Council and its various resolutions. Owing to their scope and bulk, it is inappropriate to set out all relevant material in this judgment.

The proposed development generated a most substantial amount of public objection and some support. Ihave given close consideration to evidence of the objectors, and the expert opinions that some were able to give to the Court. In this matter the Court is compelled to choose between conflicting expert opinion on similar or the same data. Each expert is well qualified and experienced, but after careful consideration Iprefer the opinions of MrColston and MissLaidlaw.

The proposed development is permissible with the consent of Council pursuant to LEP1985. I accept the expert opinion that it is appropriate development to be located in a commercial centre having the special character of Bondi Junction. Whether or not it is given a sub-regional function, it is a most substantial and expanding commercial centre and has the ability to serve a very wide residential area with the benefit of concentrated public transport facilities.

An examination of provisions of LEP1985 does not support the submission that the cinema complex is inconsistent with its objectives, or that the complex should be located elsewhere and closer to what was described as the "heart" of the commercial centre. Iam unpersuaded that any such inconsistency arises because LEP1985 makes bonuses available to the development if it includes a residential component, or that an inconsistency arises from any other reason advanced by the Council. Ido not accept that the impact of the complex would be a "disincentive" to the orderly development of the land or other lands for purposes consistent with the objectives of that zone.

It is common ground that, owing to its location near the western boundary of the commercial zone, at times traffic and pedestrians associated with the development on the subject site will have some impact upon the amenity of the adjoining residential area. Iam unpersuaded that the development will generate traffic or pedestrian activity of any significance in residential streets other than in Denison Street. Even if this development does not proceed, the existing and future function of Denison Street as a collector road and servicing the commercial centre is obvious and inevitable. It already carries traffic volumes in excess of those expected for a local road, and such volumes will increase with the further development of the commercial centre. Kerbside parking is already difficult except outside normal business hours. Whilst Ireject the applicant's submission that the Council's recent adoption of a traffic management strategy was "mala fides", or merely designed to frustrate this development, Iaccept the op

inion of MrColston that unless and until physical works are carried out by Council, the intensification of the traffic use of Denison Street is inevitable. Such works are not under consideration or proposed by the Council at this time. Except for Sundays, Iam satisfied that an adverse impact of any real significance is only likely to occur for a relatively short period on a very busy Saturday, and when the basement car park would be unable to accommodate all likely patrons' vehicles, notwithstanding that the numbers provided are in accordance with Council's Code. However, Iam unpersuaded that at such time this excess would not be accommodated in existing off-street car parking facilities both north and south of Oxford Street, or at relatively nearby kerbside spaces. Iam satisfied that at such busy periods the likely significant pedestrian and vehicular activity expected to affect residential amenity would be mostly confined to the Denison Street area. I am unpersuaded that the cinema complex would encourage u

nacceptable behaviour by pedestrians so as to be likely to injure the amenity of the residential area. In my judgment, any increased activity as a consequence of the proposed development will be likely to be accommodated by existing off-street parking areas and the adjoining public streets, with an impact within appropriate levels.

Iam satisfied that outside normal business hours the Mill Hill precinct, including Denison Street, enjoys an appropriate residential amenity. Whilst, for the reasons given, Iaccept the opinions of the applicant's consultants that environmental impact on such precinct will be within acceptable limits during such business hours and Monday to Saturday evenings, Ihave reservations that such can be accepted with the same degree of confidence with respect to Sundays. The applicant informed the Court that it would accept a condition which limits hours of operation to midnight on Saturday and 9.00p.m. on Sunday. However, Iam most conscious of the fact that a consent granted by this Court permitting use of the cinema complex until 9.00p.m. on Sundays cannot be varied unless a further or amended development application is made with the consent of the owner. In the event that the assessment and opinions of the consultants with respect to Sunday usage prove to be underestimated, there would be little if anything that cou

ld be done by Council to alleviate adverse impact. On the other hand, if Sunday usage of the cinema complex was at this stage limited to 7.00p.m., and the actual operation of the complex confirmed the minimal impact anticipated by the applicant, it would then be open to Council to grant a further approval to an amended development application to extend hours of operation. In view of my reservations concerning Sunday usage Iconsider that this should be the appropriate course.

The residential component, whilst sharing with other users the ingress and egress for motor vehicles, in my judgment must be provided with a separate defined and secure car parking area with separate access to a lift which serves only the residential tower. The applicant concedes the need for such facilities, and the conditions in the Schedule hereto take that matter into account. Iam satisfied that such conditions will ensure that the cinema complex is not inappropriate or incompatible with other development on the subject property, or on adjoining land or the residential precinct.

In my judgment, for the above reasons and subject to compliance with the said conditions, development consent should be granted for the proposed development on the subject land.

The orders of the Court are:

1. Appeal allowed.

2. Development consent granted for the erection of a commercial complex at premises known as 71- 77Oxford Street, Bondi Junction, including retail space, a six screen cinema component, a cinema restaurant and a residential tower comprising twenty units and associated car parking spaces generally in accordance with ExhibitsL and 15, and subject to compliance with conditions specified in ScheduleA hereto.

3. Exhibits may be released.

4. No order as to costs.

SCHEDULE A

1. The proposed development to conform with all development standards provided by the Waverley Local Environmental Plan 1985, as published in Government Gazette No.145 of October25th, 1985, and in particular the provision of Clause13.

2. In accordance with Council's Car Parking Policy a total of 248car parking spaces to be provided including 20 secured spaces marked and separated for the exclusive use of unit owners in the development on site to the requirements of the Municipal Engineer. A lift with separate security access shall be provided from the car park for the exclusive use of the residential tower.

3. Vehicular access to the site and gradients of the vehicular access driveway(s) being in accordance with the requirements of the Municipal Engineer and in this regard, the applicant is required to confer with that Officer, prior to submission of a formal building application. In this regard the access ramp is to be redesigned to make provision for a level pad at grade at the entrance and exit to the car park.

4. Vehicular circulation within the car park to be designed and marked out in accordance with the requirements of the Municipal Engineer and in this regard, the applicant to confer with the Officer, prior to submission of a formal application.

5. The podium to be landscaped and turfed in accordance with the requirements of the Municipal Parks Supervisor, and in this regard a schedule of such landscaping to be submitted for the approval of that Officer with the formal building application.

6. All seepage and surface waters and roof waters being collected and conveyed to Council's stormwater system, in accordance with the requirements of the Municipal Engineer, and the applicant to confer with that officer prior to submission of a formal building application.

7. Clothes drying facilities comprising 7.5 metres of line per flat, or alternatively, heat operated drying cabinets being installed in the laundry of each flat, to be provided to the building in accordance with the provisions of Ordinance70.

8. The applicant to confer with the S.C.C. Electricity Supply Authority, to obtain that authority's needs for the location of a kiosk type distribution centre on the subject land, and if deemed necessary, the applicant to make available land to that Authority for the siting of such kiosk/sub- station.

9. The applicant to confer with and comply with the requirements of the Metropolitan Water Sewerage and Drainage Board, and in this regard written confirmation of the Board's requirements to be submitted with the formal building application.

10. No building materials to be stored on a public place during the course of building operations.

11. Building work being confined to between the hours of 7a.m. and 5p.m. only Mondays to Saturdays inclusive, and no building work to be carried out or machinery used in connection therewith on Sundays or public holidays.

12. Standard A-type hoardings designed and constructed in accordance with the requirements of Council and the Department of Industrial Relations being erected on the street alignments of the property, prior to commencement of building operations, and such hoardings to be maintained during the course of building operations.

13. Separate development approval being obtained for the usage of any retail, office, restaurant or commercial areas, prior to the use or occupation of such premises.

14. The method of collection and disposal of garbage and refuse arising from the usage of the building being in accordance with the requirements of the Municipal Health and Building Surveyor, and in this regard the applicant/owner to consult with that officer prior to submission of a formal building application.

15. Pursuant to Section94 of the Environmental Planning and Assessment Act, 1979 the applicant/owner shall pay to Council or enter into a Deed of Agreement with Council and arrange an appropriate security in the form of a bank guarantee to contribute the sum of:

a) $57,500 towards Council's Open Space Reserve Fund for the acquisition, improvement and maintenance of Municipal Reserves and Parks in the locality; and

b) $32,400 towards Council's Community Facilities and Amenities Fund for the provision, improvement and maintenance of such services to the locality; and

Such Agreement and bank guarantee or payment shall be made or received prior to the release of the approved building plans.

16. The applicant to confer with and receive the concurrence of the National Trust with respect to the facade design of the proposal prior to the submission of a formal building application.

17. The loading dock to be located and designed to the requirements of the Municipal Engineer, and in this regard the applicant to confer with that Officer prior to the submission of a formal building application.

18. The applicant to contribute the full cost of the provision of traffic management controls, including the installation of a median strip in Spring Street and in this regard the applicant to confer with the Municipal Engineer prior to the submission of a formal building application.

19. The cinema to have maximum hours of operation of 9.00a.m. to 11.00p.m. Monday to Saturday inclusive and 9.00a.m. to 7.00p.m. on Sunday.

20. The cinema complex to have maximum of twenty (20) employees including the principals on the premises at any one time.

21. No sound reproduction device nor any forms of entertainment to be operated within the premises so as to be audible from any public place or other parts of the premises and adjoining premises.

22. The installation of juke boxes, pinball machines, pool tables or similar amusement machines or an electronically or mechanically operated amusement devices not to be permitted without the written consent of Council.

23. The restaurant to have a maximum seating for 130persons and is not to be used or operated otherwise than in conjunction with and within the hours of operation of the cinema complex.

24. The restaurant to be constructed and fitted in accordance with the requirements of the Municipal Health and Building Surveyor.

25. Details of any external lighting to be submitted with the formal building application and to obtain the consent of the Municipal Health and Building Surveyor.

26. A goods lift to be provided servicing the retail shops and cinema complex from the proposed loading dock, to the requirements of the Municipal Health and Building Surveyor, and in this regard the applicant to confer with that Officer prior to the submission of a formal building application.

27. A 24person lift servicing the development from all levels of the car park shall provide direct access to the arcade adjacent to the cinema staircase.

28. Provision of disabled car parking spaces adjacent to the said lift to the requirements of the Municipal Health and Building Surveyor, and in this regard the plans to be amended prior to the submission of a formal building application.

29. A staircase of adequate width shall be provided from all levels of the car park to give direct access to the arcade adjacent to the staircase therefrom to the cinema.

30. The said lift and staircase and the car park shall be open and operate free of charge at all times the cinema, restaurant, retail, office or commercial areas are open for business.