Rory Developments Pty Limited v South Sydney City Council

[2004] NSWLEC 416

Land and Environment Court

of New South Wales

CITATION:

Rory Developments Pty Limited v South Sydney City Council [2004] NSWLEC 416

PARTIES:

APPLICANT
Rory Developments Pty Limited

RESPONDENT
South Sydney City Council

OBJECTOR
Hannan (Properties) Pty Limited

FILE NUMBER(S):

11549 of 2003

CORAM:

Talbot J

KEY ISSUES:

Development Application :- test of consistency with zone objectives - mixed use of live/work units in general industry zone conflict with other uses permissible with consent in the zone - amenity considerations

LEGISLATION CITED:

South Sydney Development Control Plan
South Sydney Local Environmental Plan 1998 cl 8
cl 10
cl 14(1)
cl 28(2)

CASES CITED:

DATES OF HEARING:

14/07/2004 (Site Inspection),15/07/2004, 16/07/2004

DATE OF JUDGMENT:

07/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J J Bingham (Solicitor)
SOLICITORS
Deacons

RESPONDENT
Mr C J Leggat (Barrister) with Mr A E Maroya (Barrister)
SOLICITORS
Marsdens Law Group

OBJECTOR
Mr P J McEwen SC with Dr S M Berveling (Barrister)
SOLICITORS
Rodd Peters Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

Thursday, 29 July 2004

11549 of 2003 Rory Developments Pty Limited v South Sydney City Council

JUDGMENT

1 Talbot J: The subject of this appeal is a development application for the demolition of the existing buildings and the erection of a new industrial development at 65-67 Bourke Road, Alexandria. The proposed new development comprises four multi-level buildings containing 180 individual units, associated underground car parking and ground level landscaping, together with a central café area to be built in stages.

2 Upon completion of each stage of the proposed development, an application will be made to create a strata title lot for each of the units. 168 of the units are proposed as “live/work” units. No specific use approval is sought for any unit. The 168 live/work units can accommodate a dwelling used in conjunction with a permissible land use. A typical unit comprises two levels and will be 120m2 in area. The lower level will be 80m2. A mezzanine level will be accessible only from within the industrial part of the unit.

3 The lower level of each unit is intended to be the industrial or work area and incorporates facilities including disabled toilet, laundry and shower recess. A balcony is also provided at this level. The upper mezzanine level can be used as either a self-contained “live” area or office/commercial component associated with the lower level industrial space. This upper level contains a bathroom, kitchen area and small balcony, comprising an area of approximately 40m2.

4 Each building typically comprises one basement level of car parking, three upper levels and an attic level. A goods lift and passenger lift services each level through a large entry foyer, which adjoins a loading facility and garbage disposal area. Access to each of the upper level units is obtained via the entry foyer and the lift to a two-metre wide service corridor. Ground level units all have industrial access via a private courtyard/terrace area, with the exception of the rear units which are accessed along the central corridor arrangement.

5 A central courtyard area comprising approximately 5,000m2 will incorporate a café/restaurant surrounded by landscaping. A circulation area for visitors, delivery vehicles and the like is located around the perimeter of the landscaped area providing access to the four main loading areas contained at the base of each building. Adjoining the northern boundary of the site and linking with the courtyard area will be a pedestrian and cycle link connecting Bourke Road to the adjoining Woolsheds site along the rear boundary.

6 To the north of the site is a property known as 55-63 Bourke Road, Alexandria currently occupied by CSR Distribution for the storage and distribution of plaster board, fibre cement and associated products within a warehouse building that presents a solid bland wall to the subject site along the northern boundary. To the south of the site is another large industrial building known as 69-71 Bourke Road, Alexandria comprising a large single storey concrete warehouse. Australia Post uses part of this building on a 24-hour basis for parcel distribution.

7 On the opposite side of Bourke Road is South Sydney Corporate Park, which comprises a collection of buildings and land uses spread across a large site. The principal operations in the park are a printing and publishing company which occupies a large brick building.

8 The property at the rear of the site is Crown owned land along the banks of the Alexandra canal. The old woolsheds on this site are dilapidated and currently unused.

9 Bourke Road is a major industrial traffic collector flowing from Mascot and the Airport through to Green Square and carries a significant amount of industrial traffic. The subject location has a pleasant tree-lined aspect. The locality can be compendiously described as an area with a range of industrial uses, including warehousing, distribution centres, offices, printers and a corporate park.

Zoning

10 The land is situated in zone No. 4 – Industrial Zone under the South Sydney Local Environmental Plan 1998 (“LEP 1998”).

11 Apart from exempt development, all development requires development consent. There is no prohibited development.

12 Specifically, development for the following purposes is identified as permissible development:-

advertising structures; bulky goods retailing; car repair stations; child care centres; depots; dwellings used in conjunction with a land use which is permissible in the zone; equipment hire centres; high technology industries; industries; light industries; materials recycling depots; mines; motor showrooms; places of assembly; places of public worship; public buildings; recreation areas; recreation facilities; road transport terminals; roads; service stations; temporary buildings; vehicle rental centres; warehouses or distribution centres.

13 The objectives of the zone that have specific relevance to the appeal are as follows:-

14(1)(a)to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which, due to their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone, and

(b) to allow for a range of ancillary, non-industrial land uses that provide direct services to industrial activities and their workforce, including associated research, administration, commercial and retail facilities, and

…

(d) to provide for appropriate forms of industrial development which will contribute to the economic and employment growth of the area, and
...

14 Clause 8 of LEP 1998 requires South Sydney City Council (“the council”), and hence the Court, in assessing any development application to take into consideration the goals and objectives contained in the Strategy for a Sustainable City of South Sydney to the extent that they relate to the proposed development. Clause 10 provides that the council must not grant consent to the carrying out of development on land to which LEP 1998 applies unless the council is of the opinion that the proposal is consistent with the objectives of the zone.

15 One of the issues that remain for determination by the Court is that the development does not comply with the Industrial Zone 4 objectives and, therefore, cl 10 of LEP 1998 precludes a grant of consent. Furthermore, it is claimed that the proposal is unsatisfactory in that it will adversely impact on the proposed industrial activities on the site itself and will unreasonably inhibit the future operation of adjoining and surrounding sites by virtue of land use incompatibility. The issues in relation to amenity generally relate to the incompatibility of the proposed industrial activity on the site in conjunction with the use of dwellings in the context of the appropriate noise criteria for residential use in an industrial zone. There is a peripheral issue that a through-site link proposed by the applicant along the northern boundary is not consistent with the provisions of the Alexandra Canal Masterplan (“ACM”) and the Sheas Creek Masterplan (“SCM”), both of which are part of the vision to provide a major recreational and environment feature linking Cooks River with the city.

Inconsistency with the zone objectives in cl 14(1) of LEP 1998

16 In a carefully crafted and concise submission, Mr Leggat argues on behalf of the council that the relevant opinion demanded by cl 10 of LEP 1998 is not open to the Court. Fundamental to this submission is the acceptance of an understanding that zone 4 is designed to accommodate general industry which, by reason of its type, nature and scale, is unsuitable for location in any other zone. The submission arises out of the construction and application of objective 1(a).

17 According to Mr Leggat, it is essential to understand that LEP 1998 provides for six mixed uses zones which expressly contemplate allowing residential use in conjunction with appropriate business and place of employment uses. Moreover, he says, it should be noted that the objectives of each one of the mixed uses zones include an aim to minimise any adverse impact, including social impact on residential amenity by devising appropriate design assessment criteria and applying specific impact mitigation requirements by the use of development control plans. The principal thrust of Mr Leggat’s submission also centres upon the potential constraints that could be placed upon future development for conventional industrial purposes within zone 4 as a consequence of the high level of residential density contemplated by the proposed development.

18 It is the council’s case that as the proposal cannot accommodate the types of industrial development that already predominates in the locality, it does not facilitate and encourage “suitable types of industrial development” identified in objective (1)(a). This argument relies upon the physical existence of industrial developments in zone 4 which are characterised by:-

(i) a substantial amount of floor space in each unit;
(ii) ground level access;
(iii) large floor to ceiling heights; and
(iv) on-site storage.

19 It is further submitted as part of the council’s argument that uses such as motor show rooms, car repair stations, equipment hire centres, material recycling depots, road transport terminals and warehouses, which are permissible and exist in zone 4, could be accommodated on the site but for the proposed development with its limited work floor workspaces of 80m2 and lack of ground level access to approximately two-thirds of the individual units proposed.

20 Still dealing with objective (1)(a), Mr Leggat submits that as the proposed units could be located in one of the mixed uses zones, it does not fit the criteria of a land use which “due to…type, nature, scale, transport requirements or impacts cannot reasonably be located in another zone”. His interpretation of the objective of the zone is that if a development can be placed elsewhere then it should be done, otherwise the traditional heavier industrial uses could be excluded from zone 4. Moreover, if residential uses are allowed to proliferate on the present site there will be an impediment to the facilitation and encouragement of suitable types of industrial development identified as permissible with consent in the zone.

21 The objectors to the development have mainly concentrated upon the potential conflict between the potential uses for the proposed units and the existing heavier type of industrial development and the traffic impacts associated therewith. This potential conflict is identified by the Court appointed expert, Barry Murray, who makes certain recommendations in regard to the conditions of consent that should be imposed which are not consistent with the 24-hour, seven day use of other premises in the locality. The issue of noise will be dealt with separately. Nevertheless, the conditions proposed by Mr Murray support the contention on behalf of the council and the objectors that there is a real prospect of a conflict between a use which involves significant residential occupation and a wide range of industrial activities (albeit with dwellings used in conjunction) with the land uses which are otherwise permissible in the zone.

22 In relation to objective (1)(b), Mr Leggat contends that the availability of a residential use in conjunction with the industrial use does not fit within the contemplated range of ancillary non-industrial land uses as they are not providing a direct service to the industrial activities and their workforce in the sense contemplated by the objective. The examples of associated research, administration and retail facilities are clearly services which facilitate and act as a corollary to the industrial development contemplated in objective (1)(a).

23 Finally, in relation to objective (1)(d), it is the council’s position that the interposing of the proposed development with its multi-faceted functions will be detrimental to the future development of industrial uses in the zone by creating a demand that the future developments comply with environmental guidelines, for impacts such as noise, that are inconsistent with a zone designed to accommodate the wide range of industrial activities contemplated in zone 4. Accordingly, by constraining the opportunity for the approval of future uses in the zone the development cannot be contributing to the economic and employment growth of the area generally. Although it will be seen later in this judgment that Mr Murray proposes conditions of consent that will contemplate the windows of residences be kept closed to accommodate the noise environment, nevertheless it must be expected that not every individual will be prepared to live in an atmosphere deprived of fresh air and in those circumstances is likely to be exposed to adverse noise impact from adjacent, continuous industrial activity.

24 As I have said, the council’s position in regard to achieving the objectives of the zone is supported by a number of objectors. Dr Berveling was given leave to appear for one of these objectors who conducts business in the industrial park. It is his client’s fear that by allowing the proposed development it will create a serious constraint to any future development in the locality that has a potential to increase the noise environment and that pressure from the future residents of the subject site will lead to a consideration of conditions which require future industrial development to achieve an unreasonable level of satisfaction in terms of noise and traffic generation in order to accommodate residential amenity. To avoid this balancing act in respect of potential restraints on future uses of adjoining and adjacent sites, Dr Berveling suggests that the Court should maintain the status quo thereby allowing compatible development to proceed within zone 4, now and in the future. It is the concern of the objectors generally that the intensive residential use proposed will develop a climate which provides ammunition for complaint about the use of premises in the zone for purposes entirely consistent with the stated objectives of the zoning controls.

25 Mr Leggat agrees with a statement made by Mr Bingham, who appears for the applicant, that it is apparent three types of activities are contemplated by objectives (a) and (b) in cl 14(1) of LEP 1998 namely:-

(i) industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres
(ii) other land uses which, due to their type, nature, scale, traffic requirements or impacts, cannot be reasonably located in another zone
(iii) ancillary, non-industrial land uses that provide direct services to industrial activities and their workforce.

26 Mr Leggat hastens to add a fourth type of activity, being that contemplated by cl 14(1)(d).

27 The remaining objectives in cl 14(1), namely (c), (e) and (f) do not speak directly of the activities that LEP 1998 contemplates will be carried on in the zone but rather set aims to ensure that industrial activities are carried on in an acceptable way by not detracting from the amenity of residents in neighbouring localities, the viability of commercial centres in the vicinity and improving environmental quality, including the visual quality of the major access routes through the zone. Mr Leggat concedes that, subject to conditions, the development as proposed without designated uses is consistent with objectives (e) and (f). However, he maintains that inconsistency with the other objectives precludes a finding of consistency with the category of activities identified by the objectives. In particular, it is the council’s position that the development does not demonstrate consistency with cl 14(1)(d) as a consequence of the following relevant characteristics:-

(i) 180 small units of 80m2 dedicated work spaces

(ii) 2/3rds of the work spaces (120) are located on the first and second storey and therefore require lift access to and from transport

(iii) limited days and hours of operation (11 hours per day/ 5 days per week c/f 24 hours per day/ 7 days per week = 33% use of capacity)

(iv) presence of kitchen, bathroom and bedroom facilitating and encouraging future development applications for residential use.

28 The small areas, the large dependency upon lift access, the limited available days and hours of operation, together with the incorporation of kitchens, bathrooms and bedrooms all weigh against a demonstration that the proposal will be consistent with objective (d). In particular, the noise generating industrial development in the proposed buildings will be opposed by the residential occupants of the dwellings and further, according to Mr Leggat, the noise generating industrial development in the general locality around Bourke Road will be the subject of complaint by the residential users of the dwellings in the proposed development.

The applicant’s submissions

29 Mr Bingham formally amended the development application during the course of the hearing to make it clear that the applicant is seeking a consent to construct a building only and is not seeking consent to occupy the buildings. Ultimately, there will be 180 individual development applications in respect of the use of the separate factory units.

30 Mr Bingham identifies the scheme of LEP 1998 as one that provides for zoning according to objectives where there are no prohibited uses although a number of permissible uses are specifically identified.

31 The applicant does not make a submission that the existing industrial development uses in the locality is an inappropriate form of development for the subject site or in the zone generally.

32 Mr Bingham suggests that the lie to the council’s position that only large scale industrial users are encouraged is contained in the specific identification of potentially small scale operations such as high technology industries and light industries in cl 14 itself. He also mentions the fact that an area close to the central business district of the city is a convenient location for service industries such as locksmiths and mobile phone repairers to be located.

33 Recognising that the category of residential accommodation to be offered in the development may not have wide general appeal, Mr Bingham nevertheless contends that there is a wide range of people who will find it convenient to work and live on the site, at least during the days of the working week. Advantages such as limiting time and distance of travel to and from work and, in effect, working from home could prove to be, according to Mr Bingham, an advantage for a significant number of people. He does not suggest for one moment that the situation would be ideal for the bringing up of children but it could be attractive for persons who enjoy their work and retire to a country retreat at the weekend.

34 Mr Bingham makes a distinction between the expectation for residential use in the mixed use zones which refer specifically to dwelling houses and multiple dwellings. Moreover, the concept developed by the applicant seeks to establish a mix of uses within the site rather than being directed towards a mix of uses throughout the zone. Any conflict between the industrial uses and residential occupation are, according to Mr Bingham, covered by the proposed constraint on the hours of operating and noise level criteria to be achieved in accordance with the recommendations made by Mr Murray. Given that reasonable standards of amenity can be met, the applicant contends that the concept of a live/work environment is a justifiable response to the expressly approved use of dwellings used in conjunction with a land use which is permissible in the zone in cl 14.

35 Mr Bingham makes the important point that the Court should be careful not to fall into a trap by accepting that the submission made by Mr Leggat on behalf of the council requires each development to fully comply with each of the zone objectives. This, of course, is not the case and I do not understand Mr Leggat’s submission to have that result. It is, of course, axiomatic that developments in an industrial zone will vary from small in size to huge enterprises taking a variety of forms. It is not to be expected that all industry within zone 4 will be smoke stack variety or a significant noise generator.

36 Mr Bingham shrugs off the contention that the introduction of at least 160 permanent residents provides a fertile ground for complaints about internal and external industrial activities by the submission that, first of all the potential for complaints is only raised as an opinion without proof and, secondly even when they do occur the question will be whether the complaints are valid. It is not submitted by the applicant that the persons who elect to reside in the development must accept a degraded degree of amenity but rather that the development can be built in a way that they are able to enjoy a high degree of convenience and comfort, particularly if the recommendations by Mr Murray are followed.

37 The fact nevertheless remains that the proposal will have the effect of injecting approximately 160 new residents onto the one site in an area which heretofore has primarily been used for the purposes of industry. In accordance with the objectives of the zone, such uses can be expected to continue.

The effect of clause 10 of LEP 1998

38 The concept, in my view, involves more than just considering whether the dwellings are permissible with consent as dwellings used in conjunction with a land use which is permissible in the zone. Subject to an industrial use being approved pursuant to cl 14 of LEP 1998, strictly speaking, they are permissible in each case. It is all very well for the applicant to constrain the application for the moment to the building itself. The design of the individual buildings will nonetheless dictate the ultimate use, even though, as Mr Bingham says, it will not be in every case that the option to occupy the upper part of some units as a dwelling will be exercised. It might be reasonably expected also that some units will be combined with another to provide a more expansive area. Nevertheless, the nature of the concept is established by the design of the buildings and their configuration so that it is appropriate for the Court to consider problems that might arise in the future if the development is allowed to proceed.

39 It is clearly open for the council and the Court to form an opinion that the proposal is not consistent with the objectives of the zone as set out in cl 14 of LEP 1998. It recognises that the objectives are not confined to facilitation and encouragement of particular types of development. However, there are also safeguards, built in, express and implied, which are directed towards ensuring that development does not anathematise future development which cannot reasonably be located in another zone having regard to its size, extent of heavy traffic generation, hours of operation or impacts adverse to non-industrial users in the locality.

40 The introduction of 160 people to live and work in a close community is, in my opinion, a recipe for conflict. Without enlivening the debate in regard to the economic prospects of the development, I have decided that the restricted spaces and proposed hours of operation and the extreme mitigation measures proposed by Mr Murray (and accepted by the applicant) are indicative of the potential for future problems associated with the around-the-clock daily operations of adjoining and adjacent industrial undertakings, as well as the activities within the site itself.

41 I find that the proposed development, in light of the mixed nature of the proposed use of the buildings, will not be compatible with, although not necessarily entirely inconsistent with, the objectives of the zone. There is a real likelihood that the conflict between the future occupiers of the proposed development and the adjoining and adjacent land users will generate significant antipathy to the extent that I do not believe that they should be thrown together. It is prima facie unrealistic to expect that the two categories of uses can exist in harmony. This conclusion is borne out by the following consideration of the amenity issues.

Amenity issues

42 The fundamental issues raised in regard to amenity concerns the acoustic amenity occurring in this mixed "live/work" development. This issue involves two main elements.

43 The first element concerns the external noise generated by existing developments in this immediate area, together with an assessment of future noise generation in the industrial area. It is of particular relevance to the South Sydney Corporate Park, which has been developed across Bourke Road, as well as the operation of the Australia Post parcel depot, which is located adjacent to the southern boundary of the subject property.

44 The second element concerns noise generated internally by use of the industrial component of the units. In response to this issue, a number of acoustic investigations were undertaken and these include as follows:-

(a) Vipac Engineers and Scientists Ltd, who assessed the existing background noise levels and prepared a number of reports with recommendations for the acoustical criteria for the residential units in the proposal;

(b) Mr S. Atkins, who provided comments on the Vipac report, together with recommendations for the amenity criterion to be applied; and

(c) Mr L. Challis, who considered the potential acoustic conflict between the residential component of the proposed development and the existing industrial operations in the area, particularly Australia Post and South Sydney Corporate Park. He indicates that it is an important acoustic principle to separate residential occupation and industrial uses. He also says that there is significant potential for the residential occupation to ultimately restrict future industrial operations.

45 In order to assist the Court in resolving this acoustic issue, the parties agreed to the appointment of Mr Murray as the Court Appointed Expert. He reviewed the previous assessments and inspected the site. He says that the most significant external noise with potential to affect the amenity of future residents of the development is the Australia Post operation, situated on the southern side of development. He agrees with the background noise levels assessed by Vipac, resulting in the following recommended noise criteria at the residential balcony components:-

(a) L Aeq,15min 51dBA. (Intrusive criteria for night-time)

(b) LAmax 61dBA. (Sleep arousal criteria).

46 Whilst agreeing with this criteria, Mr Murray acknowledges the opinion of Mr Atkins that a reduced 45 dBA amenity criterion should be applied, so as to achieve reasonable compliance with the recommended amenity criteria in the NSW Industrial Noise Policy for a suburban area during the night.

47 Mr Murray says that in the industrial area the amenity criterion applies to the full night-time period of nine hours between 10.00 pm and 7.00 am, whereas the intrusiveness criteria (51 dBA) only applies to each 15-minute period over the night-time period. Therefore, given that Australia Post operations are expected to vary significantly during the night-time period, the 51 dBA criterion applied to each 15-minute period is at least as stringent as the 45 dBA amenity criterion.

48 Notwithstanding this, Mr Murray acknowledges that the Australia Post activity might increase in the future and, accordingly, he considers it appropriate to adopt an L Aeq of 70 dBA at the common boundary. On this basis, he concludes that acceptable acoustic amenity should be achieved by imposition of conditions of consent based on the Vipac recommendations, which includes the construction of a 4-metre high boundary wall, double glazing of the residential components by the enclosure of balconies and provision of air-conditioning to each residential unit.

49 With respect to the internal noise generation from the use of the industrial components of the units, Mr Murray disagrees with the approach of Vipac. His concerns are related to the assumption by Vipac on the basis of 45 units generating the maximum allowable noise levels simultaneously. He considers this is too conservative. Instead, he says, it is likely that many of the occupations will generate insignificant noise and it is necessary to make some reasonable assumption regarding the number of noisy units to determine the maximum noise level that each unit would be allowed to emit.

50 Furthermore, he considers the assumption that all noisy units will be across the courtyard, namely 40 metres from the potentially affected residential component, is not appropriate. Some noisy units may be located next door to or above or below the residential units. He does not, therefore, consider it a practical approach to require that an industrial unit be closed when the noise emission exceeds the level of 85 dBA at 1 metre (Sound Power Level 93 dBA). Instead he considers it more appropriate that the approval process be used to consider appropriate occupation and to set conditions, which are considered necessary in each case.

51 Ultimately, Mr Murray concludes that there is no acoustic reason why the proposed development should not be approved, providing the following conditions are imposed:-

A 4m high wall shall be constructed along the full length of the southern boundary of the premises using acoustically impervious material of surface density at least 12 kg/m2.

Where the "live/work" units are used in part for residential occupation, the residential balcony shall be enclosed using a sliding window system constructed using 6mm float glazing. The door leading from the residential balcony to the internal space shall be selected to provide a noise reduction index of at least Rw30 and shall be well installed and sealed consistent with this acoustic performance. Such residential units shall be mechanically ventilated to comply with the appropriate ventilation code.

Apart from residential occupation, the industrial units shall be used only during the times 7.00am to 6.00pm Monday to Friday.

Each industrial unit shall not emit a Sound Power Level exceeding 90 dBA LAeq during any 15 minute period.

An acoustic report shall accompany each application occupancy of a unit. The report shall address the equipment to be used and operations occur [sic] within the unit, the noise level to be emitted by the unit during the noisiest 15 minute period expressed as a Sound Power Level, comparison of the noise emission level with the limit of 90 dBA and recommendations of treatments to the industrial unit to ensure compliance with the limit.

52 However, Mr Murray raises other concerns about the residential amenity of the units. These relate to the requirement that all windows be kept closed and the surrounding balconies be totally enclosed during work periods and most likely through the night period. As this then requires maintenance of mechanical air-conditioning, he considers this results in a compromised lifestyle.

53 The Court accepts Mr Murray's conclusions that conditions of consent can be imposed, which achieves acceptable acoustic amenity. Notwithstanding Mr Bingham’s submissions that this compromised lifestyle could appeal to a range of people in the community, I am nevertheless concerned about residential amenity.

54 The compromise involves the closure of all windows and the balcony and the reliance on air-conditioners. The stated objective of the council’s sustainability strategy regarding energy efficiency and thermal comfort is to "promote energy efficient building design and practice, to reduce the use of non-renewable fossil fuels for energy. Minimise air pollution and the emission of greenhouse gases, in particular, carbon dioxide." In the Court's assessment, this significant reliance on mechanical air-conditioning is a negative aspect of the proposal that does not meet the objective of the council’s strategy.

55 A further compromise arising from the acoustic argument is that the hours of operation of the industrial units is to be restricted to Monday to Friday, between 7.00 am to 6.00 pm, in order to achieve the designated acoustical amenity. This is not consistent with the other predominant industrial uses that operate in this neighbourhood, which contributes to the economic and employment growth of the area, as required by the zone objective 14 (1)(a).

Through–site link

56 Pursuant to clause 28(2) of LEP 1998, this issue arises from the provisions of the ACM and the SCM. Both are matters to be considered in granting any development consent.

57 The ACM proposes a new vision for the canal corridor situated to the west of the subject property. The stated vision is "to transform it into a major recreational and environmental feature, part of a green, regional spine linking the Cooks River and Sydney and Moore parks".

58 One of the objectives of this Masterplan is to ensure that the access strategy for the canal integrates overall traffic, parking and access planning. This recognises that at present there is no access along the canal and pedestrian movement through the area is limited to the road network.

59 To overcome this, the South Sydney Development Control Plan identifies a number of desirable pedestrian through-site links in the area. This includes the extension of Doody Street, with the qualification that it passes through a recently developed site with new buildings and is "unlikely to be redeveloped in the short to medium term”. However, the ACM refers to the subject site as follows:-

The site to the south, the Morganite factory at 67-69 Bourke Road, has however the potential for a link along its northern boundary and this is identified in the Alexandra Canal Model DCP for Urban Form.

60 The applicant proposes a 4-metre wide link adjacent to the northern boundary, with the object that it be made available for future pedestrian access, subject to appropriate compensation. Two sections of this access way are to be enclosed by part of the building works. The proposal is unacceptable to the council, as it prefers the access way to be unenclosed with a width of 20 metres.

61 There is no formal implementation strategy for the through link across the site and, therefore, it would be unreasonable at this time to impose the council’s 20-metre wide access preference on this development if it is to be approved.

General Conclusion

62 The Court has serious reservations about the desirability of exposing such a large number of potential residents to an unacceptable acoustical amenity, unless the radical measures proposed by Mr Murray to minimise impact are adopted.

63 Given Mr Bingham's description of this proposal as a pioneering development, I am concerned that there is insufficient evidence to satisfy me that the general amenity of the residential units will not be compromised to an unsatisfactory extent.

64 Because this proposal is in respect of the building shell only and further detailed development applications will be required for each unit occupancy, the ultimate form of the development is uncertain. Moreover, the potential confrontation with existing and future development within zone 4 is identified as a real one that will lead to the serious prospect of a major conflict with the objectives for the zone.

65 Taking into account all of the circumstances of the proposed development, my observations on the site inspection, the expert evidence and comprehensive submissions on the behalf of the applicant, the respondent and objectors, I have determined that the development application must be determined by the refusal of consent. Commissioner Hussey has assisted me with the preparation of these reasons and supports my decision.