Urbis Pty Ltd v Dubbo City Council
[2012] NSWLEC 1069
•21 March 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Urbis Pty Ltd v Dubbo City Council [2012] NSWLEC 1069 Hearing dates: 12 March 2012 Decision date: 21 March 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld, in part.
2. The application to modify conditions of consent in the approval of Development Application 2010-526 for the use of a building for a public administration purposes (Centrelink and Medicare) at 64 Wingewarra Street, Dubbo is approved and subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 2, 3, A, B, C and D.
Catchwords: MODIFICATION: application to modify conditions of consent to use a building for a public administration building (Centrelink and Medicare) - whether security measures required - whether council approval required for plan of management Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Urbis Pty Ltd (Applicant)
Dubbo City Council (Respondent)Representation: Counsel
Ms S Duggan SC (Applicant)Mr N Wilson, solicitor (Respondent)
Booth Brown Samuels & Olney Solicitors (Respondent)
Solicitors
Gadens Lawyers (Applicant)
File Number(s): 11111 of 2011
Judgment
ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Dubbo City Council (the council) of an application to modify conditions of consent granted with the approval of Development Application 2010-526 for the use of a building for public administration purposes (Centrelink and Medicare) at 64 Wingewarra Street, Dubbo (the site). The building also a frontage to Carrington Avenue where access is provided to the car park.
The hearing commenced on site where local residents and representatives of Dubbo Public School (the School), Dubbo Public School Parents and Citizens Association, the Country Women's Association and Dubbo Uniting Church provided evidence. Their concerns focused largely on the potential unacceptable interaction between people using the Centrelink office and children from the School, people attending the Country Women's Association and Dubbo Uniting Church facilities and the general public in the proximity of the Centrelink office. Representatives of the School, Dubbo Public School Parents and Citizens Association, the Country Women's Association and Dubbo Uniting Church expressed particular concern as their premises are in close proximity to the site.
The specific concerns related to the potential for people (including school children) being confronted by unacceptable behaviour, such as bad language, loitering, smoking, drinking alcohol, fighting and harassment of passers-by with requests for money, from customers of Centrelink.
Expert town planning evidence on behalf of the applicant provided by Mr Tim Blythe. Mr Blythe provided a statement of evidence and relied on the Social Impact Assessment (SIS) submitted with the development application. The council provided no expert evidence and Mr Blythe was not required for cross-examination.
The conditions in dispute
The conditions in dispute, as approved by the council, are:
- Condition 7, dot point 3, that states:
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Regular security patrols of the car parking area and front entrance (particularly at night, with informal staff observations at other times). These may be undertaken as part of a broader security and management plan;
- Condition 7, dot point 8, that states:
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Development of a security Management Plan in partnership with key stakeholders such as Dubbo City Council and Dubbo Police and:
- Condition 8, that states:
(8) That the applicant provide security at the Centrelink premises during business hours in the form of a least one security officer. This requirement will be reviewed by Council within six (6) months of the commencement of site operations and may be extended indefinitely depending upon the outcome of the review.
Reason: To respond to concerns raised by adjoining developments.
The applicants preferred conditions
The applicant seeks the modification of dot points 3 and 8 in condition 7 and condition 8, to read:
- Condition 7, dot point 3,
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Informal staff observation of the car park area and front entrance during the approved hours of operation.
- Condition 7, dot point 8, that states:
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Development of a security management plan above. A copy is to be submitted to the council prior to any Occupation Certificate
- Condition 8, that states:
(8) For a period of six months from the commencement of operations, the applicant shall provide a least one security officer within the Centrelink premises.
Reason: To respond to concerns raised by adjoining developments.
The council's preferred conditions
The council seeks the retention of dot point 3 in condition 7, and the modification of dot point 8 in condition 7 and condition 8, to read:
- Condition 7, dot point 3, as originally approved, that states:
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Regular security patrols of the car parking area and front entrance (particularly at night, with informal staff observations at other times). These may be undertaken as part of a broader security and management plan;
- Condition 7, dot point 8 that states:
(7) In accordance with the Social Impact Statement prepared by Urbis and dated December 2010, the proposed development shall adopt the following mitigation measures:
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•Development of a security management plan addressing the matters identified above. The security management plan is to be provided to the Council Director Environmental Service for approval prior to the issue of any Occupation Certificate by any Principal Certifying Authority
- Condition 8, that states:
(8) That the Applicant provides security at the Centrelink premises during business hours in the form of a least one security officer. This requirement will be reviewed by council within six months of the commencement of site operations.
Reason: To respond to concerns raised by adjoining developments
The dispute
The dispute centres on two principal issues; firstly, whether security measures should be put in place to control activities from the Centrelink office (condition 7, dot point 3 and condition 8) and secondly, whether the plan of management should be approved by the council (condition 7, dot point 8)
The evidence - is there a need for security measures?
Mr Blythe states that there is a diverse range of the uses within the immediate surrounds of the site, including the Uniting Church and the School but also commercial and community uses and residential properties. He states that there are no inherent security implications with the use of the Centrelink premises given:
- the history and operation of the existing Centrelink office,
- the nature of the general customers that frequent the existing Centrelink office,
- the proposed design will be an improvement over the current Centrelink office from an operational perspective,
- the lack of potential interaction between the proposed Centrelink use and other surrounding uses, and
- the compatibility of the use with the existing commercial precinct.
Mr Blythe forms this opinion based on his observations of the existing Centrelink office, the approach to security management by Centrelink and an evaluation of the site context, including the particular operating characteristics of the School. He understands that Centrelink routinely considers security issues and works closely with the local police and should conflict arise in the public domain, then police would be contacted.
Mr Blythe states that the most significant concern appears to relate to the relationship with the School where it is contended by the objectors that the two uses could not co-exist without adequate security. He rejects this concern on the basis that:
- the School is heavily fortified with a 2 m high metal palisade fence around the full perimeter of school grounds,
- the primary entrance to the School is from Darling Street, on the opposite side of the school grounds to the site,
- the access gate on the Wingewarra Street frontage provides direct access the buses, and
- there is no direct access from the school grounds to the site from Carrington Avenue.
Mr Blythe further states, based on his observations, that there is little or no interaction between customers of Centrelink and schoolchildren, let alone any prospect of any threat to schoolchildren. While the School is in close proximity, the specific physical and operational characteristics of the School mean that the potential for interaction between school children and customers of Centrelink will be low. He relies on the SIS where it relevantly states:
The "proximity" of the proposed Centrelink office to the primary School was noted as a key concern, however, the front door of the proposed Centrelink office is some 184 m from the front entry to the school and 153 m from the rear entry to the school. The bus stop is a 93 m distant from the front door of the proposed Centrelink office. For further consideration, as the school principal has indicated, the main Darling Street entrance and fencing would provide a barrier to stop people from entering the school grounds.
He notes that a similar conclusion was made by the council officers in the report to council, dated 27 April 2011, where it states:
It is considered that the interaction between any school students and customers of the facility is likely to be minimal and therefore the impact negligible.
On the wider issue of potential conflict between customers of Centrelink and the general public, Mr Blythe notes that Centrelink is responsible for the safety of customers and employees within the premises. Safety within the public domain is essentially a matter for local police. Mr Blythe states that the likelihood of Centrelink customers loitering outside the premises and potentially creating a public nuisance within the public domain is diminished by the design and location of the new office, compared to the current office and location, for the following reasons:
- the existing Centrelink office is within the Dubbo CBD where there is street furniture for people to use and congregate and ready access is available to other facilities, such as take-away food outlets,
- the existing Centrelink location provides the opportunity to "hang out" through the provision of planter boxes where de-facto seating is available and formal seating outside the existing office,
- the existing Centrelink office is co-located with other uses such as the Family Law Court,
- the proposed Centrelink office could be considered spartan, in terms of the furniture and access to other facilities, when compared to the existing Centrelink office, and
- pedestrian traffic will be far lower for the proposed location than the existing Centrelink office due to its location away from the main shopping streets.
Mr Blythe states that there is nothing to suggest that customers of Centrelink are anything but everyday normal people and there is no reason to isolate Centrelink customers from the general public and school children. Notwithstanding his position that no security guard is required, Mr Blythe is however willing to honour a previous commitment to the council, to provide a security guard for a fixed 6-month period. For similar reasons to those mentioned previously, the requirement for regular security patrols of the car parking area and front entrance is unnecessary, particularly at night, when the Centrelink offices is not operating.
For these reasons, Mr Blythe concludes that the requirement for security measures in condition 7, dot point 3 and condition 8 are unreasonable and unnecessary in the circumstances of the case.
Findings - is there a need for a security officer?
As a starting point, and even though the evidence of Mr Blythe was not challenged in any way, I am satisfied that his conclusions are sound and reasonable in the circumstances. I find it difficult to come to any conclusion other than the customers of Centrelink are likely to be, in the words of Mr Blythe, "everyday normal people" who visit the Centrelink office, in much the same way that people would visit other government administration offices, such as the police and council offices, or even other businesses within Dubbo CBD.
While there may be greater numbers attending the Centrelink office, and there may be peak times for attendance, this is simply reflective of the operation of Centrelink. With the relatively high levels of patronage at the Centrelink office, I do not accept that people congregating on the footpath could be seen as an unreasonable or unacceptable occurrence. I agree with Mr Blythe that the absence of street furniture and the design of the office does minimise the opportunity for people to congregate outside the office.
I do not accept that it necessarily follows that because some Centrelink customers may be disgruntled or upset because of a decision made by Centrelink staff that it would automatically translate into unacceptable behaviour. At best, the evidence suggested limited occurrences of unacceptable behaviour at very limited times and in my view, this cannot reasonably support the conditions requiring the security measures suggested by the council. Importantly, there was no substantive evidence to suggest that the behaviour identified by the lay witnesses, was a consistent problem, even at the existing Centrelink office. Some witnesses stated that they had not seen the behaviour identified as being unacceptable by other witnesses. While I have no doubt that some instances of unacceptable behaviour may have occurred, there was no evidence to suggest that this was a systemic or recurring problem with Centrelink customers. I note that the council produced no evidence to support the contention that unacceptable behaviour occurred at the existing Centrelink office. Given the veracity of the concerns expressed by the council witnesses, I would have at least expected evidence from the police to support their claims of regular unacceptable behaviour, however none was provided.
In relation to the School, which was a central part of the evidence, I agree that the two uses can co-exist without the need for the identified security measures. With the benefit of the site inspection and an understanding of the operation of the School, including bus movements for children, I agree that the School appropriately addresses the important question of providing adequate security for schoolchildren, irrespective of the adjoining and nearby land uses. The School is generally isolated from the general public through the 2 m high fence around the perimeter of the site, the limited access points and the procedures to control the movement children adopted by the School. The street address and the main bus access point is located on the opposite side of the School site to the Centrelink office. The nearest bus access point in the Wingewarra Street to the site is monitored by teachers where students are organised into the correct bus groups within the school grounds, and then moved onto the buses through the gate in Wingewarra Street.
As it has not been established that the security measures dot point 3 in condition 7 and condition 8 can be justified during the operating times of Centrelink, any security measures required by the council's conditions when Centrelink is closed, also cannot be justified based on the evidence provided to the Court. In relation to the general issue of customer control and security, I note that the applicant has accepted conditions of consent that requires signage that prohibits smoking around the premises (dot point 1 in condition 7) and the provision of CCTV for the office, car park and Carrington Avenue footpath and the wider CBD Safety Camera System (dot points 5 and 6 in condition 7).
For these reasons, I accept the applicant's version of dot point 3 in condition 7 and condition 8.
The security plan of management
There was no disagreement that a security plan of management was appropriate. There was also no disagreement on the matters to be contained within the security plan of management as they are identified elsewhere in condition 7, with reference to the SIS. The disagreement centred on whether the council should have an approval role for the security plan of management.
On this matter, I generally accept the words in dot point 8 of condition 7, proposed by the council. In my view, it would be inappropriate to remove the council from an approval role, even though the contents are limited to those matters in condition 7. The condition should however be supplemented by the following words:
The council shall not unreasonably or unjustly delay the approval of the security plan of management.
Orders
The orders of the Court are:
1. The appeal is upheld, in part.
2. The application to modify conditions of consent granted with the approval of Development Application 2010-526 for the use of a building for a public administration purposes (Centrelink and Medicare) at 64 Wingewarra Street, Dubbo is approved and the use is subject to the conditions in Annexure A.
3. The exhibits are returned with exception of exhibits 2, 3, A, B, C and D.
G T Brown
Acting Senior Commissioner
ANNEXURE A
Decision last updated: 22 March 2012
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