The Village McEvoy Pty Ltd v City of Sydney Council - [2009] NSWLEC 1232

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
The Village McEvoy Pty Ltd
RESPONDENT
City of Sydney Council

FILE NUMBER(S): 11264 of 2008

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- shopping centre, strategic planning, retail hierarchy, economic impacts, urban design.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997

DATES OF HEARING: 18-22, 28-29 May and 9 June 2009

DATE OF JUDGMENT:
15 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Leggatt (SC)
SOLICITOR
Shaw Reynolds Bowen & Gerathy
RESPONDENT
Mr P Tomasetti (SC)
SOLICITOR
Maddocks lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 July 2009

11264 of 2008 The Village McEvoy Pty Ltd v City of Sydney Council
JUDGMENT

The Green Square Urban Renewal Area

1 In 1938 a small local park was created at the confluence of Botany Road, Bourke Road and O’Riordan Street, Alexandria. It was named Green Park in honour of Local Mayor Frederick Green. Centred on this park is the Green Square Urban Renewal Area ("Green Square") that is part of the NSW Government's Metropolitan Strategy. Contained within the urban renewal area is the Green Square Town Centre ("the Town Centre") that is to be developed as a Major Centre in accordance with the Metropolitan Strategy.

2 Green Square occupies some 287 ha of land within the City of Sydney, between the Sydney's central business district, Kingsford Smith Airport and Port Botany. Green Square encompasses some of Sydney ’s oldest and diverse industrial areas and includes the suburbs of Zetland and Beaconsfield, and parts of the suburbs of Alexandria, Rosebery and Waterloo. The traditional owners of the Green Square area are the Cadigal clan of the Eora people.

3 Green Square is now being redeveloped "from an industrial/warehousing mixed-use precinct to a modern employment-based residential sustainable living centre". It is projected to have a resident population of more than 33,000 and provide employment for more than 28,000 people by 2021

4 The applicant in these proceedings seeks approval for a development application to establish, on land at the corner of Bowden and McEvoy Streets in Alexandria, a part four, part five level building containing a mixture of commercial and retail uses. The development site comprises 9-15 Bowden Street and 132-138 McEvoy Street. It is situated within and at the western edge of Green Square about 850 metres from the Town Centre and roughly equidistant between the Erskineville and Green Square Railway Stations. The development application (D/2008/1847) describes the proposed development as:

"Stage 1 DA for a 4 level building envelope with a mix of commercial and retail uses, 470 car parking spaces, a sitescape pedestrian through site link and public square.

5 The gross floor area of the proposed building is 22,820 sq m comprising 14,030 sq m of retail floor space, including a 4,000 sq m supermarket and 8,820 sq m of commercial floorspace. The 470 car parking spaces and loading facilities are situated mainly on level 2 and are provided with access off Bowden Street and egress onto both McEvoy and Bowden Streets. The public square measuring approximately 34 m by 30 m is to be situated midway along the site's Bowden Street frontage and the 10 m wide pedestrian link at the south east end of the site will connect Bowden Street to a future east-west open space corridor to the south of the site.

6 The irregular shaped site is generally flat, has an area of 16,527 square metres and is presently occupied by four vacant and dilapidated warehouse/factory buildings of no particular heritage significance are. There is no significant vegetation on the site. It is proposed that the buildings be demolished although the Bowden Street and McEvoy Street brick facades (on the site boundaries) are to be retained and incorporated into the new development as a reflection of the site’s past character.

7 A stormwater drain/channel runs diagonally through the site, the majority of which is encased beneath the existing buildings with approximately 15 m being uncovered. This drain/channel, like other drain/channels in the area, links into the Alexandria Canal that flows to the Cooks River and thence into Botany Bay.

8 The locality in which the site is situated is predominantly developed with industrial and mixed-use developments. Residential development exists to the north beyond the McEvoy Street. McEvoy Street carries some 18,000 vehicles per day.

9 For reasons mainly involving the strategic planning for Green Square I have decided that the application should not be approved.

10 Mr Michael Harrison, one of the council’s experts has provided a chronology of significant events, policy documents and the like between 1989 and 2009. The following is a summary of the main items in this chronology:

Environmental Planning and Assessment Act 1979

11 Being a staged development application, the provisions of s 83B and 83D of the Environmental Planning and Assessment Act 1979 are applicable. In this context the respondent submits that, taking into account that all future development applications must be consistent with a Stage 1 consent, the applicant's plans "are so inadequate that the Court must refuse the application". Despite this, the plans of the proposal that were attended were sufficient for the purposes of the hearing.

12 Section 5(a)(i), (ii) and (iii) of the EPA Act contains objectives to be taken into account when assessing development applications relevantly including: the social and economic welfare of the community; the promotion and coordination of the orderly and economic use and development of land; and the provision and coordination of community services and facilities. In this context the respondent submits that any matters that further these objects can be taken into consideration.

13 Also of particular relevance is s 79C of the EPA Act that contains various matters for consideration. These include: the provisions of environmental planning instruments; exhibited draft environmental planning instruments; development control plans; social and economic impacts; the suitability of the site; and the public interest. In this regard the respondent submits that the "public interest" can encompass a wide range of considerations including non-statutory planning policies adopted by the council. Such matters are of course subject to appropriate weight that is to be determined according to their circumstances.

South Sydney Local Environmental Plan

1998

14 The proposed development is permissible with development consent in Zone No. 10E - Mixed Uses under South Sydney Local Environmental Plan 1998. Clause 10 of the LEP provides that consent must not be granted unless the consent authority forms the opinion that the proposal is consistent with the objectives of the zone. The objectives of Zone 10E are contained in clause 21E(1) and relevantly involve employment based land uses that contribute to economic growth and employment within Green Square whilst not excluding compatible residential development. A sustainable, vibrant community is sought to be achieved.

15 The Town Centre is included in Zone No 11A - Green Square Town Centre under the LEP. Clause 21F identifies the objectives of this zone including the establishment of " the Green Square Town Centre as the major commercial, retailing, cultural and entertainment centre for Green Square". There is to be a balanced and vibrant mix of land uses including residential, retail, commercial as well as a range of services and facilities including parklands. Division 2A of the LEP contains various provisions including development standards for the Town Centre.

16 Clause 27A of the LEP contains the "Vision for Green Square" and seeks the transformation of the area into "an attractive, vibrant and sustainable urban place" by reference to the concepts of: diversity, connectivity, interdependency and long-term growth. Clause 27B, by reference to Schedule 4, identifies planning principles that underpin these for concepts and which must be taken into consideration before granting consent to any development within Green Square. These principles are "broad brush" and deal with matters of: regional role, integrated planning and development, public domain, urban form, economic and community life, transport and access, environmental performance, quality of design, and implementation.

17 The LEP also contains various other provisions relevant to the application including cll 28 and 40. Clause 28 lists design principles to be taken into consideration in determining development applications including: streetscape and character; scale and design; the public domain; and the need to encourage complimentary land uses and activities. Clause 40 deals with the Alexandra Canal and its secondary channels.

Draft Local Environmental Plan

(City Plan)

18 In April 2005 City of Sydney Planning Committee resolved to review the zoning of lands in Green Square, as did the council in May 2005. In April 2006 the Planning Committee resolved to prepare the Draft Local Environmental Plan (City Plan), a consolidated local environmental plan for the City of Sydney, as did the council in June 2005

19 In October 2006 the council and the Planning Committee resolved to proceed with the review of zoning and land use in Green Square. Those resolutions refer to the September 2006 A Review of Zoning and Land Use in the Green Square Urban Renewal Area. That review identifies a significant area of land (including the appeal site) in Alexandria bounded by McEvoy Street, Bowden Street Burke Road and a Sydney Water easement presently zoned mixed uses and recommends that it be rezoned to General Industrial. The reasons for this are:

"The area is surrounded by industrial uses and this is unlikely to change in the short to medium term.
There is a need to ensure employment-generating lands and industrial land in particular is not lost to residential development.
If the area were to be developed for residential uses, the area would remain surrounded by industrial uses.
The area is surrounded by heavy vehicle routes, which would negatively impact on residential amenity."

20 The objectives for the proposed General Industrial Zone are to provide a wide range of industrial and warehouse land uses and to encourage employment opportunities to support the viability of (commercial) centres. The associated land-use table would prohibit the proposed development.

21 I understand that, despite the resolutions having been made in 2005 and 2006, the draft local environmental plan is still under preparation. It nevertheless continues to propose, consistent with the below-mentioned Background Paper and Zoning Review that the extent of the proposed General Industrial zone remains unchanged. A certificate under s 65 of the EPA Act has not yet been issued.

South Sydney Development Control Plan

1997:

Urban Design

22 Relevantly applicable are Parts G and H (Special Precinct No's 9, 7 and Green Square Town Centre) provisions of the South Sydney Development Control Plan 1997: Urban Design. Also relevant are various provisions dealing with: the heritage listed Alexandra Canal and its subsidiary channels; car parking; building heights and setbacks; and public domain provisions including boulevards.

S

outh Sydney Development Control Plan

1997: Ur

ban Design - Part G: Special Precinct No 9 - Green Square

.

23 Figure 2.1 in Part G: Special Precinct No 9 - Green Square of the DCP shows the planned activity centres and neighbourhoods in Green Square. The proposal is not within or near any of these activity centres. It also contains a principle that requires the location of retail centres in more densely populated areas whereas the site of the proposal is located in an area that the council contends should be maintained/developed for industrial not residential purposes. This is consistent with the low-mentioned Background Paper, Zoning Review and the proposed City Plan.

24 Part G. also identifies the Town Centre as the primary centre for Green Square and requires that retail development over 1,000 sq m should be accompanied by a market feasibility assessment. Such an assessment needs to consider whether the amount of retail lettable floor space is justified and to consider the impact of the proposal on existing retail facilities. The evidence in this appeal in effect represents such an assessment.

South Sydney Development Control Plan

1997:

Urban Design: Part G –Special Precinct No 7 Ashmore Precinct

25 The Ashmore Estate (a planning initiative of the council) is identified in the South Sydney Development Control Plan 1997: Urban Design: Part G –Special Precincts No 7 Ashmore Precinct as an appropriate location for a "Village Centre", including a full line supermarket. It would serve the immediate residential populations and workforce to the west and in the vicinity of the appeal site (500 m distance).

South Sydney Development Control Plan

1997:

Urban Design: Part H –Green Square Town Centre

26 Whilst not applicable to the appeal site Part H –Green Square Town Centre of the DCP details how, consistent with the provisions of the LEP, the town centre will be developed and provides some assistance in understanding the role and relationship of the town centre in Green Square:

27 "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 during the day or night, for entertainment, cultural and community activities."

Green Square Urban Renewal Area Background Paper

28 The Green Square Urban Renewal Area Background Paper (May 2008) was prepared by the council to provide an overview of all of the studies, reports and considerations that have shaped the vision for Green Square and the City Plan. These include the Review of Zoning and Site Use in the Green Square Urban Renewal Area 2006, the Green Square Built Form Review 2007 and the Green Square and Southern Areas Retail Study 2008.

29 In the background paper the appeal site (and surrounding lands to the south and east of McEvoy Street) is identified on the Draft Land Zoning Map LEP 2006 - Green Square (Figure 25) as "IN1 - General Industrial". The paper anticipates that Zone IN1 "will be restricted to the provision of industrial uses with ancillary commercial and retail uses only. The permissible land uses will therefore generally seek to prevent large scale commercial or retail uses in this area."

30 Also, the background paper states:

"In order to support the findings of the Green Square and Southern Areas Retail Study and concerns about the development of, in particular, supermarkets outside the nominated centres in the proposed Retail Hierarchy (including the Green Square Town Centre) it is proposed to limit the single shop or retail premises size (to approximately 750 sq m) within the Mixed Uses zone. This may be done through DCP provisions that support the LEP zoning provisions, discussed in Section 4.2 of this paper."

31 The proposed controls were exhibited in September and October 2008 and the responses were referred to the City Plan Working Group that has responsibilities for the preparation of the City Plan.

The Green Square & Southern Areas Retail Study

(2008)

32 The NSW Government's Metropolitan Strategy (December 2005) identifies within Green Square a "Planned Major Centre" - the major shopping and business centre for the district that is to contain offices, shops and community facilities. The Sydney City Draft Subregional Strategy divides the Central Sydney into five distinct precincts with one of these being the Green Square precinct that more particularly identifies the planned "Major Centre".

33 Consistent with the Metropolitan Strategy and the council's decision to establish a major new town centre next to the Green Square Railway Station (that is adjacent to Green Park), the council engaged consultants who prepared the September 2008 Green Square & Southern Areas Retail Study ("the Retail Study").

34 The Retail Study examines a trade area including and beyond Green Square (including Ashmore Estate, Kensington, Mascot and Surrey Hills) that is expected to contain a population of about 75,000 people in 2006 and more than 100,000 people by 2021. It acknowledges the competition and strength of higher order retailing associated with Bondi Junction, East Gardens and the Sydney central business district. The study concludes that over 51,000 sq m of additional retail floor space is supportable within supermarket-based centres in the trade area by 2021 with 26,000 square metres of retail floor space in the town centre. Also, there will be sufficient demand to support a total of five supermarkets by 2011 and by 2021 six supermarket-based village centres could be supported, should the area develop as planned.

35 One of the more important recommendations of the Retail Study involves a proposed Retail Hierarchy comprising the following:

"A major centre at the town centre comprising 26,000 sq m of core retail space;
Two villages of up to 6,000 sq m of retail floor area at Victoria Park and Danks Street/Crown square;
A small village at Botany Road, Rosebery with approximately 2,500 sq m of retail floor area, anchored by the existing IGA supermarket; and
A neighbourhood centre comprising the existing Dalmeny Road shops in Rosebery."

36 The above-mentioned background paper endorses the Retail Hierarchy that now forms council's retail policy. On 3 November 2009 the council resolved to:

"endorse the following principal recommendations of the Green Square and Southern Areas Retail Study, dated September 2008, as information to be considered in the preparation and assessment of development applications in the Green Square Urban Renewal Area and the Southern Industrial Area. In particular:

Green Square Urban Renewal Area Transport and Accessibility Plan

2008

37 The Green Square Transport and Accessibility Plan 2008 indicates that the site would be well connected to the town centre in the future ("the Bowden Connection"). The link depends on a 6 m setback on McEvoy Street. The link is unlikely to be delivered for some time taking into account the nature of the existing surrounding development.

38 On behalf of the respondent council expert evidence was given by:

Mr M. Harrison (strategic planning)
Mr R Gibbons (social/economic)
Mr D Snoswell (retail/economic)
Miss K. Young (urban design)
Mr C Warne (traffic)
Mr D Hannam (town planning)

39 On behalf of the applicant expert evidence was given by:

Mr T. Rogers (traffic)
Miss S Smits (strategic/town planning)
Mr T Byrnes (urban design)
Mr B Haratsis (retail/economic)

40 In addition, evidence was given by Mr Anderson, that development director of Landcom the State Government's implementation agency for the Green Square Town Centre.

Advertising

41 The application was advertised and objections were received from: the Sydney Regional Development Advisory Committee; AMP Capital Investors; and Mirvac/Leighton Properties expressing concerns generally relating to: traffic and vehicle access; failure to comply with existing and draft planning controls including the Retail Hierarchy; economic impacts; and the need to give special consideration to the Town Centre.

42 are A submission was received from Landcom are objecting to the proposal because it would be inconsistent with the adopted Retail Hierarchy for Green Square and that a proper economic impact assessment had not been undertaken. Also the proposed to pedestrian link does not follow the existing stormwater canal and the car parking requirement appears not to have been correctly calculated.

43 Also a submission was received from the architectural firm Humphrey and Edwards who did not object to the proposal but raised concerns in relation to economic impact, traffic modeling flooding and stormwater.

The contentions

44 The council's statement of facts and contentions identifies a number of matters that it says warrant the refusal of the application: the Retail Hierarchy of Green Square; socio-economic impacts; the planning intent for the area; urban design; transportation; and public interest. This judgment deals with these matters under the headings of strategic planning and economic impacts and urban design.

Mr Harrison

45 According to Mr Harrison the proposed development is inconsistent with the comprehensive planning policies that have been developed over many years in consultation with the community, residents, authorities and stakeholders. These policies relevantly comprise the adopted Retail Hierarchy of centres for Green Square and the State Government objective of retaining a large area of industrial employment land. He supports the adopted Retail Hierarchy, a key finding of the retail study. The hierarchy of retail centres was developed to provide a framework for focusing retail development in appropriate locations. Its success, in part, relies on restricting the dispersal of unplanned retail development in the Town Centre's trade area. Because the proposal constitutes an out-of centre retail development, it is contrary to the Retail Hierarchy, which in turn, is very poor urban planning practice.

46 Moreover it is not orderly development to locate a large retail centre such as this between two planned centres - the Town Centre and the Ashmore Estate. He further explained that, by placing a large retail centre in this location this would not provide any co-location opportunities in the manner of a larger mixed use centre or village centres where greater social and community synergies can be achieved. He was concerned that if approved the proposed development would be operational before the town centre supermarkets and would adversely affect them. He was also concerned to ensure that nothing would affect the primacy of the town centre.

47 Mr Harrison also argued that the proposed development would be contrary to the planning policy intentions for the locality in which it is situated those being to reinforce the existing industrial uses with an industrial zoning. Also by placing a large retail development in an industrial area, notwithstanding its present mixed-use zoning, this would unacceptably impact on the existing industry in the immediate surrounds.

Mr Hannam

48 Mr Hannam was of the opinion that the proposal would be inconsistent with the vision for Green Square with respect to the key concepts of diversity, connectivity, interdependency, and long-term growth. In particular, in the context of Retail Hierarchy, he was concerned at the locating of the proposal, comprising a large shopping centre, outside the Town Centre and in an area that is proposed to be rezoned for industrial, not retail, purposes.

Miss Smits

49 Miss Smits emphasised that the site is not in the Town Centre but is instead located in and complies with the objectives and requirements of the Mixed Use zone. Relevantly the proposal is an employment-based development located a short distance from the Town Centre and will, in the long term, enhance that centre. She also explained that the emerging nearby population that will result from the rezoning of land to the north for residential purposes would be serviced by this development. Also there will be no land-use conflicts because even if the rezoning to industrial is effected, development in the immediate vicinity will not alter.

50 As regards the Retail Strategy she admitted that the proposed development would be inconsistent with it but contends that the strategy is flawed because it seeks to locate all new retail centres in the eastern part of Green Square. In reaching this conclusion she reviewed the Retail Study concluding that the strategy is inappropriately prescriptive. Because all of the proposed retail centres are to be located in the eastern portion of the trade area the western portion where the site is located would be without retail facilities. Conversely she agreed with Mr Haratsis that the proposed development would assist in providing an appropriate distribution of retailing throughout Green Square and beyond and would contribute to the functioning of the Retail Hierarchy.

Mr Haratsis

51 Mr Haratsis explains how the Town Centre's role within the Metropolitan Strategy will be largely unaffected by the proposal because it has been designed as a mixed-use transient orientated development with direct access to the Green Square Railway Station and access to the CBD, the airport and the rest of the city metropolitan rail network thus providing a large secondary and tertiary trade area. As the Town Centre's workforce grows this will result in a significant capture of retail expenditure from beyond the trade area, consistent with the role of a major centre.

52 The proposed shopping and commercial centre will support and complement the Town Centre taking into account that by 2012 its catchment would become self sustainable. It will thus be of limited relevance to the Town Centre's role as a planned major activity centre. He calculated that the economic impact at its highest would be about -11% (about $17 million per annum) of the annual turnover of the Town Centre. However these impacts would be dissipated within about two years. He supports the proposal taking into account the current lack of convenience retail centres. Because it would provide a mix of uses to meet the daily convenience needs of residents it will sit in a different and complimentary position in the Retail Hierarchy. Similarly he concludes that the proposed development will result in flow on benefits for the local and regional hierarchy, provide convenient retailing opportunities and local employment opportunities. More generally Mr Haratsis explains that the main trade area for the Town Centre will generate an expenditure pool sufficient to support five supermarkets by 2011, this being consistent with the retail study's analysis that there would be a need for up to seven supermarkets by 2021. More generally he was able

Mr Snoswell

53 Mr Snoswell agreed with Mr Haratsis that at least five supermarkets would be required by 2011 and that the likely impacts on the Town Centre the proposed Ashmore Estate would, for each, be about -11%. However unlike Mr Haratsis he was of the opinion that these impacts are significant especially when considered together with the approved "Gazcorp" supermarket development near the Green Square Railway Station just outside the Town Centre. He was particularly concerned that if the proposal were to be now approved major retailers who might otherwise have gone into the Town Centre would occupy the proposal despite the fact that the Town Centre provides a more desirable location. This would be to the centre’s disadvantage. The flow on concern from this is that specialty retailers will be reluctant to locate in the Town Centre until major retailers commit themselves to it. In turn this will undermine the long-term viability the Retail Hierarchy and prevent the Town Centre reaching its ultimate potential

Mr Gibbins

54 According to Mr Gibbins the proposal for a supermarket-based centre outside the Town Centre and inconsistent with the Retail Hierarchy is a major threat to the centre's commercial success. This is in part because the land market will react unfavorably if private investment is undermined by ad hoc competing developments. The hierarchy is well documented and highly specific with supermarkets being the main attractors of shopping trips that in turn are the key to its implementation. The proposal poses a major threat to the integrity of the Retail Hierarchy and there will be significant community costs if the intended role of the Town Centre is undermined. As for the proposed industrial zoning of the general area of the site this will render it highly unsuitable for both retail and community uses which rely on proximity to residential areas.

Mr Anderson

55 In his affidavit, Mr Anderson explains how that organisation became the implementation agency for the planning of the Town Centre and how over $5 million has been invested in funding, design and planning studies. Landcom has an implementation agreement with the council to manage the delivery of essential infrastructure worth about $65 million within the Town Centre. Land purchases are and will be significantly in addition to this amount. A consortium has been appointed to commence construction within the town centre in 2010. He expressed deep concern that any threat to the viability of retailing within the Town Centre represents a significant risk to its overall integrity.

Court’s findings

56 The strategic planning context is critical to the consideration and determination of this application. Taking into account the history of Green Square and the applicable planning controls together with the associated background papers, studies and council and planning committee resolutions, it is abundantly clear that the Town Centre is to be the major commercial, retailing, cultural and entertainment centre within that area. It is also apparent that the relevant planning authorities have no intention of making any fundamental changes to the strategic approach so indicated for Green Square. Taking these matters into account and the many millions of dollars that have been already invested in it, the importance of the Town Centre is not to be underestimated; despite the fact that at this time there is little physical evidence of its development. The Town Centre is part of the Retail Hierarchy recommended in the Retail Study that was adopted in the background paper. Whilst the study and the background paper do not comprise environmental planning instruments or development control plans and the City Plan has not obtained a s 65 certificate, I accept that they are, in the public interest, important policy documents against which the proposed development must be assessed.

57 The economic evidence makes it plain that the amount of retail floor space to support the now anticipated population growth in the retail catchment of the Town Centre will need to be increased so as to provide for at least five (possibly seven) full line supermarkets by 2011. In this context, Mr Haratsis believes, that the Retail Hierarchy would be unaffected by the proposal because there is or will generate a sufficient retail spend in the catchment to support it without affecting the Town Centre. In his opinion this is, despite the -11% impact on the Town Centre that will in time dissipate. For similar reasons the Ashmore Estate will be unaffected. Mr Haratsis' evidence in this regard is compelling.

58 In principle I accept that the Town Centre can and will need to be modified to facilitate the provision of the additional retail floor space required for the now anticipated population in the catchment, without affecting the fundamentals of the Retail Hierarchy. Depending upon how many additional full line supermarkets are to be provided in the Town Centre or if, on proper analysis, deemed to be appropriate elsewhere in Green Square, it seems to me that purely in terms of the amount of retail spend likely to be generated within the retail catchment that the proposal could in theory be supportable. However this limited and incomplete approach does not provide a complete answer and significant concerns remain regarding impacts of the proposal on the Town Centre itself in the context of the adopted strategic planning approach for Green Square.

59 Although the economic impact of the proposal on the Town Centre itself appears to be significant I acknowledge the evidence of Mr Haratsis and accept that in this context it would be unlikely as suggested by the respondent "to kneecap the Town Centre". However, in my opinion impacts on the Town Centre need to be assessed more broadly. As Mr Gibbins explained the proposal is a threat to the Town Centre's commercial success in part because the land market will react unfavorably if private investment is undermined by ad hoc competing developments. There will be significant community costs if it's role is undermined. Similarly, Mr Anderson taking into account the substantial investments that have occurred to this time, was concerned regarding threats to the viability of the Town Centre and the significant risks to its overall integrity. Also, in this regard, Mr Harrison was concerned that should the proposed development be operational before the Town Centre supermarkets this would in turn adversely affect the primacy and vibrancy of the town centre. Whilst I doubt that the proposal would completely undermine the ultimate role of the Town Centre these concerns point to the need to ensure that the present investments in it are not put at risk especially during the start-up phases and further weight against the proposal.

60 Whilst Miss Smits admitted that the proposed development would be inconsistent with the Retail Hierarchy she contends that the hierarchy is flawed because some residential areas would resultantly not have satisfactory access to retail facilities. In her opinion the proposal would in part rectify this deficiency. In this regard I agree with Mr Harrison's contention that it is not orderly development to locate a large retail centre such as this close to and between two planned centres - the Town Centre and the Ashmore Estate. However, even if Miss Smits were to be correct and if the Retail Hierarchy needs to be modified (which is doubtful) in response to the demand for additional retail floorspace, mainly in the form of additional full line supermarkets it is not for the Court to decide where these supermarkets should be located.

61 In these circumstances I am most concerned that approval of this proposal would be likely to pre-empt or constrain the proper planning approach that falls within the responsibilities of the relevant planning authorities. This concern is not about competition between supermarkets but instead about the considered determination of appropriate locations for them within the well-understood and accepted concept of a retail hierarchy. Whilst there may be very few sites capable of accommodating a full line supermarket outside the Town Centre this does not change this conclusion that attracts significant weight in the assessment of the application.

62 Finally, here I accept that any proposal to amend the strategic planning regime within Green Square (taking into account the present economic analyses) is unlikely to affect the fundamentals of the Retail Hierarchy including the primacy of the Town Centre. Hence because the adopted and well-supported Retail Hierarchy requires that any retail development outside the centre should be of a minor or ancillary nature I conclude that the proposal would be inconsistent with it. This is a sufficient reason to refuse the application.

63 I now turn to the particular location of the proposal. Even if the locality in which the site is situated might, as a result of the application of proper planning processes, warrant the provision of a shopping centre, the present planning approach and policy position for this locality needs to be taken into consideration. As described above it is proposed that the mixed-use area in which the site is situated is to be rezoned for industrial purposes, with a consequence of prohibiting the proposal. Should this rezoning be effected as intended, industrial land uses can be expected to predominate and as argued by Mr Harrison this will render the area highly unsuitable for both retail and community uses which relate to and rely on proximity to residential areas. In my opinion this approach overwhelms any suggestion that there might be a synergy between a shopping centre such as is proposed in an industrial area. As a consequence any co-location opportunities in the manner of a larger mixed use centre or village centre where greater social and community synergies can be achieved will be lost.

64 Whilst there is no certified draft local environmental plan to rezone the site and surrounding lands to industrial, it is plainly the council's intention to effect such a rezoning as part of the City Plan that, in turn, is supported by the above-mentioned Review of Zoning. As accepted by the council, the existing mixed-use zone is no longer supported, because of the heavy vehicle routes that surround it and because the existing industrial uses are unlikely to change. Also there is a need to ensure employment generating lands and industrial land in particular is not lost. Council's planning intent or policy here is a relevant matter for consideration.

65 Finally here, whilst Miss Smits may be correct in her contentions that the proposal is permissible in the mixed-use zone, would be consistent with the zone objectives (although I am not sure that it would contribute to a "highly sustainable vibrant community") and may, being an employment generating development, even be consistent with the objectives of the proposed industrial zone, the proposal would nevertheless still be prohibited in that zone. Moreover, I do not accept that present planning intent for this area should be set aside even if a draft LEP is not imminent. These matters attract further weight against the proposal.

66 For all of the above reasons I have been persuaded that approval of the proposal would not represent the orderly and economic use and development of land and in relation to strategic town planning considerations, would not be in the public interest. I would also add to this my agreement with the concern that approval of a development that is inconsistent with the fundamentals of the existing strategic planning framework would make it difficult to oppose further developments that are also inconsistent with that framework. The application should therefore be refused and the appeal dismissed.

Urban design

67 Because I have decided that for strategic planning reasons the proposal is an inappropriate land use for this site it is therefore unnecessary to deal with the urban design issues. Despite this I wish to make some observations in relation to those urban design aspects involving the drainage channel and the through-site link.

68 Mr Burns did not believe that there was any watercourse located on the site however it became apparent during the site inspection that the constructed channel through the site is part of a stormwater drainage network that connects to the Alexandra Canal. It is (variously and inconsistently) shown on several maps including the South Sydney DCP and the Draft City of Sydney Development Control Plan 2007 as a "channel open space link". Clause 40 of the LEP applies to the bank of the Alexandra Canal or any of its "open secondary channels".

69 Here I am satisfied that at least that part of the channel within the site is such a channel and is "open". Consequently the requirement that no structure must be erected on land within 10 m of this channel except with consent is applicable. In considering whether to grant consent for the erection of a structure on land "having a frontage to" such a channel, cl 40 requires that the consent authority must assess impacts on the existing aquatic environment; the landscaping of a 10 m abutting strip; and the creation of a permanent pedestrian or bicycle access within that strip. Plainly, a reasonable contextual interpretation of the term "frontage" means that these considerations are applicable.

70 Miss Young emphasised the applicability of cl 40 and the associated DCP objectives and the Public Domain Improvement Plan. Here she refers to the requirement that land adjoining the canal be opened up to create linear pathways with links to other open space networks and pedestrian/bike routes and the rejuvenation of the waterways edge with the introduction of native vegetation. However she conceded that the maps in the DCP show the site link in various locations and that the council is willing to consider a realignment of the canal if good reason can be shown.

71 Mr Burns recognized that there is some virtue in expressing the stormwater "utility" and to afford open space opportunities and that the application is capable of achieving both of those ends. Miss Smits did not accept that cl 40 was applicable but argued that the open space and pedestrian through site link as proposed nevertheless appropriately respond to the location of the channel

72 According to Mr Harrison the proposal's failure to incorporate the water channel and provide an associated through site link is a major issue as these channels are fundamental to the urban framework involving the provision of distinctive open spaces that have amenity and benefits as well as providing an understanding of the area's geography and history. I agree with Mr Harrison.

73 There is no doubt in my mind that cl 40 of the LEP and the associated provisions of the DCP are applicable and that the proposal almost completely fails to respond to these. During the hearing Mr Burns provided diagrams of how of the proposed public square within the site (the channel passes diagonally through this) could be modified so as to demonstrate the alignment of the channel. This takes into account that this Stage 1 application facilitates such a modification. In my opinion this is insufficient.

74 To the contrary the proposal has, in response to the requirements of Part H of the DCP (Map 5 Green Square Through-Site Links) provided a through site link along its southeast boundary. Mr Burns considers that this link has a sustainable alignment, avoiding as it does the strata title building located on the north side about street. Miss Smits noted that the location of the link had been determined through careful analysis of the context and provides possibilities for extension to the opposite side of Bowden Street. This link does not however coincide with the link shown on Map 5 that provides for a "pedestrian link through canal open space 10 m" this link partly follows the channel alignment then kinks in an easterly direction through to Bowden Street. Miss Young, whilst not entirely rejecting the proposed through-site link, argued that the link should preferably be incorporated into the response to the stormwater channel requirements.

75 Whilst I accept that the proposed public square is of sufficient size and is capable of being designed to meet DCP open space objectives, the future public domain elements of the proposal (ie the open space, the through site link and the channel) should have been considered together in the light of the relevantly applicable planning controls including the maximum site coverage requirement.

76 Part C of the DCP requires an open space corridor and I am not aware of any proposal to change these requirements. Despite this it is plain that the inconsistencies between the various planning controls that identify the existing or proposed location of the channel need to be reviewed, although the City Plan shows it in its current position.

77 The design of the proposal pays little regard to the stormwater channel requirements of the planning controls and that despite the worthy attempts of Mr Burns to rectify this; the proposal continues to be unsatisfactory. The requirements should have been taken into account together with other design constraints and the applicant’s requirements at the initial design stage such that they were plainly reflected in the design for which consent was sought.

78 Finally, I would have had no fundamental concerns in relation to the location of the six commercial units and the exceedence of the 18 m height control but had I been minded to approve the proposal I would have required that the contended setback and landscaping requirements for McEvoy and Bowden streets be complied with.

79 For the above reasons the orders of the Court are:

___________________

T A Bly

Commissioner of the Court

08/10/2009 - Judgment amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 ("the slip rule") amended on 8 October 2009 - Paragraph(s) Paragraph 14 and paragraph 63

Citations

The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232

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CITATION:	The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT The Village McEvoy Pty Ltd RESPONDENT City of Sydney Council
FILE NUMBER(S):	11264 of 2008
CORAM:	Bly C
KEY ISSUES:	DEVELOPMENT APPLICATION :- shopping centre, strategic planning, retail hierarchy, economic impacts, urban design.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997
DATES OF HEARING:	18-22, 28-29 May and 9 June 2009
DATE OF JUDGMENT:	15 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C Leggatt (SC) SOLICITOR Shaw Reynolds Bowen & Gerathy RESPONDENT Mr P Tomasetti (SC) SOLICITOR Maddocks lawyers