Warehouse v Sydney City Council

[2007] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION:	Warehouse v Sydney City Council [2007] NSWLEC 25
PARTIES:	Applicant: The Warehouse Pty Ltd and Reachdaze Pty Ltd Respondent: Sydney City Council
FILE NUMBER(S):	11503 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	18/10/2006, 19/10/2006, 20/10/2006, 23/10/2006, 24/10/2006, 27/10/2006, 08/11/2006, 20/12/2006, 09/02/2007 and 16/02/2007
DATE OF JUDGMENT:	20 February 2007
LEGAL REPRESENTATIVES:	Applicant: Mr M Craig QC with Mr A Galasso, barrister instructed by Mr M Causer, solictor of Mallesons Stephen Jaques Respondent: Mr B McClintock SC instructed by Ms P Adreskelas, solicitor of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

20 February 2007

11503 of 2005 The Warehouse Pty Ltd and Reachdaze Pty Ltd v Sydney City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by the Sydney City Council (the council) of a staged development application to demolish the existing structures on the site and to create a mixed-use development on an amalgamated site consisting of 1-5 Link Road, 947 South Dowling Street, 132 Epsom Road (the “Northern site”) and 87-103 Epsom Road, Rosebery (the “Southern site”).

The site

2 Epsom Road divides the amalgamated site. The Northern site’s boundaries are Epsom Road to the south, Southern Cross Drive to the east and Link Road to the northwest. It is rectangular in shape and has an area of 11,366m2. A variety of uses now occupy it, including Mitsubishi and Kia car dealerships (1-5 Link Road), a motor repair centre (947 South Dowling Street), and Dolina manufacturing and warehousing (132 Epsom Road).

3 The Southern site is known as 87-103 Epsom Road, Rosebery. It is rectangular in shape and its boundaries are the Southern Cross Drive to the east, Epsom Road to the north, Kimberly Grove to the south and a warehouse and office complex to the west. It has an area of 31,890m2. A warehouse, principally used as self-storage, now occupies it.

4 To the north of the Northern site is Victoria Park, which, despite its name, is not a park but a medium to high-density housing estate in the process of development. On the eastern side of Southern Cross Drive, which adjoins both portions of the site to the east, is the Australian Golf Club and low-density housing within the Randwick municipality. To the south of the Southern site is an area of medium to high-density housing with four and eight-storey apartment blocks. Beyond these is lower-density housing.

5 To the west of the Southern site is a new warehouse and office complex that extends to the intersection of Epsom Road and Dalmeny Avenue. To the west of the Northern site are two motor showrooms (Audi and Sutton-Holden). Further to the west is a mixture of small to medium scale industrial and commercial buildings.

The proposal

6 The applicant seeks consent for Stage 1 of a staged development for the following:

· The construction of the stormwater management system;

· Reconstruction of parts of Epsom and Link Roads;

· Construction of two new north-south roads and three new east-west roads on the Southern site;

· Construction of a public park on the Southern site;

· Envelopes for eleven new buildings with defined volume, location and floor space ratio to contain principally apartments, but also some commercial uses.

Relevant planning legislation

7 The South Sydney Local Environmental Plan 1998 (LEP 1998) zones the Northern site 10(c) Mixed uses, and the Southern site 10(e) Mixed uses. State Environmental Planning Policy 65 applies since the proposal contains residential flat buildings. The South Sydney Development Control Plan 1997 applies. An amendment to this DCP applying to the Green Square Urban Renewal Area came into force on 19 December 2006.

The issues

8 The council filed several Statements of Issues, of which the latest was dated 10 October 2006 and raised fourteen issues. All issues were fervently debated for five days from 18 to 24 October 2006 without any resolution appearing likely. The matter was re-listed for a further day on 27 October 2006. On that occasion the parties informed the Court that they had reached near-agreement on all substantive issues. The matter was stood over to a hearing on 20 December 2006. On that occasion, the council’s advocate, Mr Bruce McClintock, told the Court that the parties had reached agreement on all issues, except the following:

· Fees;

· The width of new internal roads S1 and S2; as well as S4 and S5 and the size of the new public park;

· The distribution of the Floor Space Ratio (FSR) between the Northern and Southern sites.

· Drainage arrangements;

· Land contamination.

Resolution of issues

9 The dispute on fees revolved around the proportion of the Plan First component of the fees that should be paid with the first stage of a staged development application. The Court suggested that two-thirds of the Plan First component would be appropriate. At a further hearing on 9 February 2007 it emerged that, despite the Court’s guidance on the principle to be applied to the calculation of fees, the fees were still in dispute because of a disagreement on development costs. Finally the dispute was resolved by agreement at a mention on 16 February 2007 on the amount of outstanding fees of $215,000. The parties agreed on the Court’s issuing self-executing orders (ie the orders being stayed until the fees are paid), provided that I note in my judgment that these fees are due to the council whether or not the applicant proceeds with the project. I duly note that they are due.

10 The width of new internal roads S1 and S2; as well as S4 and S5 and the size of the new public park. The council favoured reducing the width of these, and adding the area gained to the public park. The applicant considered that this would make little difference to the park but would bring the apartment buildings on either side of these roads too close together. The Court accepted the applicant’s position.

11 The distribution of the Floor Space Ratio (FSR) between the Northern and Southern sites. While the council was satisfied with the total FSR for the two sites, it had a concern about the unequal distribution of FSR between the two sites. The experts agreed that distributing the FSR equally between the two sites would be undesirable, since the Northern site is much more suitable for a higher FSR than the southern site. In my opinion, this consideration is paramount. I accept that there is a risk of a future applicant applying for additional FSR for the Southern site, but the risk is so small that it does not justify a solution that is inferior from an urban design point of view. I note that the FSRs of the two sites are interconnected. In determining the FSR for the Northern site, I have taken account of the FSR for the Southern site. The FSR for the Northern site exceeds that usually permitted and would not have been granted if the FSR on the Southern site had not been less than that usually permitted. I would regard any attempt to increase the FSR on the Southern site as unwarranted.

12 Drainage arrangements. The applicant objects to Deferred Commencement Condition 1 requiring a Flood Study, on the grounds that it has already fulfilled this obligation by the work done by Dr Joliffe. I accept this submission. Deferred Commencement Condition 1 is deleted.

13 Land contamination: while the council was not satisfied about the information on land contamination and the measures proposed to render the site appropriate for development, it agreed that a suitable condition might overcome its concerns. The conditions filed with the Court on 9 February 2007 include Deferred Commencement Condition 3, which deals with site remediation. The applicant does not object to this condition; hence it is imposed.

14 It emerged at the hearing on 9 February 2007 that, in addition to the above, three more conditions remain in dispute. The applicant objects to Deferred Commencement Condition 2, which imposes the requirement that the applicant enter into a Public Benefit Agreement with the council. The condition specifies the substance of such an agreement. With the exception of one requirement, the substance appears to be consistent with the terms of the application. The exception is a requirement for “a monetary contribution towards the Green Square Town Centre” that fails to specify the amount of contribution. It would be an error for the Court to impose a monetary contribution without specifying how much it is. For this reason I have deleted the requirement. If a Contribution Plan entitles the council to require a contribution towards the Green Square Town Centre, then the council can impose it on development consents for later stages. In any case, such a contribution, if it is justified, does not need to be paid before the buildings are approved in a later stage.

15 The second condition in dispute is Condition 15 relating to site rectification. The applicant suggests an alternative version requiring a bank guarantee “in a sum to be agreed”. This lacks the certainty necessary in a planning consent. The council’s version of the condition specifies the amount of the bank guarantee, so I have imposed that version. If that amount is too high in the applicant’s view, it can request a reduction in a s96 application.

16 The third condition in dispute is Condition 17. There is little difference in content between the two versions; however, the applicant’s version is more specific, so I have imposed it.

Orders

1. These orders are stayed until the applicant pays to council the application fee of $215,000.

2. The appeal is upheld.

3. Consent is granted, subject to the conditions in Annexure A, to the staged development application to demolish the existing structures on the site and to create a mixed-use development consisting of eleven buildings within the building envelopes and land uses indicated in the application, on an amalgamated site consisting of 1-5 Link Road, 947 South Dowling Street, 132 Epsom Road (the “Northern site”) and 87-103 Epsom Road, Rosebery (the “Southern site”).

4. Consent is granted, subject to the conditions in Annexure A, to Stage 1 of the above staged development application for the construction of the stormwater management system; reconstruction of parts of Epsom and Link Roads; and the construction of two new north-south roads, three new east-west roads and a public park.

5. The exhibits are returned except Exhibits 13, 19 and Q.

_____________________
Dr John Roseth
Senior Commissioner