Land and Environment Court of New South Wales CITATION : ABC Planning Pty Ltd v South Sydney City Council [2002] NSWLEC 255 APPLICANT ABC Planning Pty Ltd PARTIES : RESPONDENT South Sydney City Council FILE NUMBER(S) : 10766 of 2001 CORAM: Brown C Development Application :- Alteration of four existing shops for a convenience store Heritage KEY ISSUES: Hours of operation Character Social impact Economic impact . LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 14 and 15 January 2002 DATE OF JUDGMENT: 01/25/2002 APPLICANT Mr M McMahon, solicitor M E McMahon and Associates LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BROWN C 25 January 2002 01/10766 ABC Planning Pty Ltd v South Sydney City Council JUDGMENT 1 Commissioner: This is an appeal against the refusal by South Sydney Council of development application DA – 625/2001 for the use of the four shops at 11 Ward Avenue, Potts Point for a convenience store. 2 I record that I have had the benefit of a view of the site and surrounding area in the company of representatives of the parties. 3 For reasons set out in the judgment I have concluded that the appeal should be dismissed. The Site 4 The subject site is located on the northern side of Roslyn Street on the north-east corner of its intersection with Barncleuth Lane. 5 The subject shops are located on the ground floor of the mixed retail/residential building which also has an eastern street frontage and address to Ward Avenue (11 Ward Avenue). 6 The building has a frontage of 15 m to Ward Avenue, 30 m to Roslyn Street and 15 m to Barncleuth Lane. It is three storeys in height containing a mix of studio and one bedroom residential apartments above two existing shops as well as the four vacant shops which form the subject application. An awning which extends over the footpath wraps around the perimeter of the building. 7 The site for the convenience store has been vacant for the past four months. The previous tenants included a guitar shop, cobbler, hairdresser and café. Three of the four previous shops had their own shopfront and entry from Roslyn Street while the fourth shop had its entry from the splay corner of Roslyn Street and Barncleuth Lane. 8 To the north of the subject site, the pattern of residential units above retail and entertainment uses continues. The proposed convenience store faces south-west to the splay on the corner of Roslyn Street and Barncleuth Lane. 9 To the east of the subject site, and within the same building comprise a café and convenience store. Further to the east across Ward Avenue are refurbished apartments at 12 Ward Avenue and St Luke's Hospital (approximately 200 m to the east). 10 To the south, and directly opposite the subject site, exists a recently upgraded open space area. Other uses to the south include restaurants along Roslyn Street travelling up to Darlinghurst Road. 11 To the west of the subject site is located Darlinghurst Road, approximately 100 m away. Uses between the site and Darlinghurst Road along Roslyn Street include a nightclub, restaurants, mixed business and adult entertainment venues as well as a 24 hour hotel. 12 Two other convenience stores have recently been approved along Darlinghurst Road in close proximity to other convenience stores and the subject premises. Proposed Development 13 The proposal involves use of the shops 1-4 of 11 Ward Avenue as a convenience store to operate 24 hours per day, 7 days per week. 14 Works to the site include the removal of the existing shop dividing walls as well as the creation of 4 divided shopfront window panels. The available area is approximately 70 m2. 15 The proposed convenience store provides for fresh food, refrigerated foods, drinks, general grocery items and frozen foods. There are to be 2 staff on the premises at all times in 3 shifts of 8 hours per day. Lighting is proposed to be of low emission to avoid light spill to residences above in contrast to 'white lighting' that is associated with other convenience stores. 16 All loading and unloading is proposed from the designated loading zones immediately in front of the subject premises on Roslyn Street. Delivery of goods to the premises will be carried out by small vans and will occur between 8.00 am and 5.00 pm daily. These are consistent with the loading area hours which are 8.30 am to 6.30 pm. It is expected that between 2-4 deliveries will service the store daily. The store is likely to be supplemented by goods from the Independent Grocers Association. 17 Garbage removal from the store will be carried out by private contractors and will also be removed between 8.00 am and 8.00 pm. Garbage including bin storage, cardboard stacking and recyclables are to be stored in a newly created recess off Barncleuth Lane. A roller door is provided either side of the recess for access for staff internally and contractors externally. 18 Further amendments were made to the proposed shop prior to, and during the hearing and these changes will be discussed later in the judgment. Relevant Planning Controls 19 The subject site is zoned Zone 10 – Mixed Use Zone ("Zone 10") pursuant to South Sydney Local Environmental Plan 1998 ("LEP 1998"). The proposed development is permissible only if "the Council is of the opinion that the proposal is consistent with the objectives of the zone". The zone objectives are found in cl 21. 20 Other relevant clauses in LEP 1998 are Cl 22: Heritage Conservation; Cl 23A: Protection of Heritage Conservation Areas and Heritage Streetscapes and Cl 23B: Buildings Older than 50 years. In this regard, the proposed building is located within a Heritage Conservation Area but is not a listed item or part of a heritage streetscape. 21 Cl 28 of LEP 1998 deals with built environment design principles and master plans and Cl 37 deals with non residential development in Zone 10. 22 Cl 8 also requires that consideration must be given to the goals and objectives contained in the Council's Strategy for a Sustainable City of South Sydney. 23 South Sydney Development Control Plan 1997 ("DCP 1997") is also applicable and the relevant parts include Part D: Social planning design criteria; Part E: Environmental design criteria and Part F which provides specific principles for the "mixed use" zone. 24 South Sydney (Heritage Conservation) Development Control Plan ("Heritage DCP") is also applicable. Issues 25 The Council filed a Statement of Issues containing 11 issues, although issue 3 dealing with garbage arrangements was not pressed following amended plans. The remaining issues could then be grouped into the following main areas:- * amenity considerations including noise, cultural impact, and loss of retail diversity (Issues 1, 2, 6 and 7); * heritage/streetscape (Issue 11); * social impact (Issues 3, 4, 5 and 8) * economic impact (Issues 2 and 5). 26 Issues 9 and 10 which deal with circumstances of the case, the public interest and issues raised by objectors are included in the discussion on the other issues. Findings Amenity 27 Evidence for the Council was provided by Mr Greg Vickas an architect and local residents Mr Stephen Carnell of 68 Elizabeth Bay Road (and President of the 2011 Residents' Association Inc.), Ms Affie Adagio of 9/11 Ward Avenue, Ms Tina Newtown, the proprietor of the Picola Bar which occupies a shop within the same building as the proposal, Ms Cecilia Coucke of 18 Ward Avenue and Ms Annette Nevin of 3/16 Ward Avenue. 28 Mr Vickas maintains that the proposal will result in a number of environmental impacts which are likely to substantially degrade the amenity of the adjoining and nearby residential apartment buildings. Those impacts include the problems of increased noise and personal safety problems throughout the night due to the 24 hour operation. In his opinion, this will encourage the congregation of revellers, transients and other people throughout the night in front of the premises and particularly in the public reserve opposite the site. Mr Vickas takes the view that the proposal will actually encourage increased anti-social activities in the nearby public reserve. 29 Mr Carnell sees the location for a 24 hour operation as inappropriate being located away from the main activity area of Darlinghurst Road. He describes the area as "pretty quiet" considering its proximity to Darlinghurst Road. Ms Adagio describes the character as "boisterous but not unbearable" and expresses a concern that she would not like to see more activity. Mrs Coucke also opposes the 24 hour operation describing the area as a "relatively quiet area". 30 The applicant provided expert evidence from Mr Anthony Betros, a consultant town planner and also Mr John Innes, the owner and operator of a nightclub on the opposite corner of Roslyn Street and Barncleuth Lane. 31 Mr Betros considers the 24 hour operation to be consistent with the surrounding hours of operation for nearby premises. He does not accept that the proposal could create adverse amenity impacts by way of its operation. The purchasing of retail goods is a passive use, not associated with creating any noise impacts to any surrounding residential or non residential premises. In his opinion the site's location near other 24 hour operations provides an active 24 hour environment in the vicinity of the site. 32 Mr Innes supports the proposal as he considers that it will improve safety and security in the area through the 24 hour trading hours. He further suggests that the facilities provided by the proposal will be beneficial for patrons of his nightclub as well as the increasing number of residents in the area. 33 The planning controls provide for a number of areas where the existing amenity of an area is to be considered. 34 Cl 21 of LEP, dealing with the objectives of Zone 10, provides for a mix of comparable land uses "in appropriate circumstances" (cl 21(1)(a)), and to ensure that the nuisance generated by non-residential development …. is controlled so as to preserve the quality of life for residents in the area." Cl 37, in addressing non-residential development in Zone 10 states as its object to allow buildings to be used for mixed uses "while ensuring that the mixed use does not have an adverse impact on the character of the suburb" (cl 37(1)). The clause further states that consent must not be granted unless it "will not significantly erode the residential character and identity of the locality" (cl 37(2)(a) or "will not have an adverse impact on the amenity of the predominant residential use on the site" (cl 37(2)(d)). 35 Mixed use development is also addressed at Part F of DCP 1997 where its objectives seek "uses that locate together are environmentally compatible and respect the character and function of the precinct, and above all that they respect the amenity of residential uses". 36 Part F of DCP 1997 also provides a further breakdown of Zone 10 into "Urban Village Centres" and "Mixed Use Transitional". The subject site falls within the later classification, its characteristics being described as "transitional areas or buffers to surrounding residential areas." The planning intent is described as "to protect the amenity of adjoining residential areas by providing a buffer". 37 On this issue I am more persuaded by the evidence of Mr Vickas, which was strongly supported by the Council's planning controls. While Zone 10 provides for a mix of uses; a common thread through the various planning controls is the need for some compatibility between the range of uses permissible within Zone 10. 38 In my view, the Council's planning approach of providing a buffer or a "mixed-use transitional" precinct between the hight activity levels of Darlinghurst Road and the residential areas to the south-east is sound and should be supported. While Mr Betros indicated a number of 24 hour establishments, the search of the approvals by the Council did not show up any approvals for 24 hour operations beyond the Darlinghurst Road precinct. Also, the evidence indicated that the Council had not approved any 24 hour convenience shops outside the Darlinghurst Road precinct, despite requests to do so. 39 It was also generally accepted that Roslyn Street was used as a pedestrian link from Bayswater Road to Darlinghurst Road and the Kings Cross area. I agree with Mr Vickas that the 24 hour operation on the subject site would likely draw people away from the high activity area of Darlinghurst Road or provide an interruption to pedestrians using Roslyn Street. This may not always result in activities which would impact on the nearby residential areas, however the potential is significantly increased, particularly if people congregated in the public reserve directly opposite the site to consume any goods purchased at the proposed convenience store. 40 On the competing arguments of improved surveillance brought about by the use of the site for 24 hours and the likely additional noise created by patrons not normally attracted to this part of the area; I am more persuaded by the arguments of Mr Vickas. In my view, any benefits of increased surveillance are substantially outweighed by the likelihood of additional noise in the area. 41 On this basis, and pursuant to cl 10 of LEP 1998 I find the proposed hours of operation to be inconsistent with objectives (b) and (h) of the Zone 10 and as such development consent must not be granted. 42 It also follows that the proposal is also inconsistent with the previously mentioned provisions of LEP 1998 and DCP 1997. 43 For completeness I will briefly deal with the other issues. Heritage/Streetscape 44 The amount of alteration to the existing four shops changed from when the matter was originally considered and determined by the Council to provide for the retention of more of the existing fabric of the shops. A statement of evidence was provided by Mr James Phillips, an architect with expertise in heritage buildings. His statement included a perspective impression of further amendments proposed by the applicant. Towards the end of the hearing, a floor plan was provided to detail the changes outlined in Mr Phillips' perspective. 45 Mr Phillips was of the view that the amendments comply with the heritage aims for streetscape contribution and compatibility of architectural style. In his opinion, the changes will ensure an enhanced streetscape contribution for the building and the ability for the commercial premises to readily revert to smaller occupancies, if necessary, in the future. 46 Mr Vickas however takes a different view. While accepting that the amendments are an improvement he still sees the amendments as an inappropriate and unjustified response to the reasonable objective of achieving positive heritage conservation and urban design outcomes. The changes irrevocably remove important original façade elements such as the recessed doorways, door framing, doors and side windows and as such represent worse accretions than compared to the existing circumstances. Mr Vickas prefaces his comments by saying that amended plans and specifications are still inadequate to fully describe what is being proposed. He also highlights inadequacies such as the lack of information on ventilation, floor construction and fit out details. 47 Cl 22 provides heritage aims and seeks "to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage conservation areas and their setting". (Cl 22(e)). Development should also "encourage the restoration or reconstruction of buildings or works .… that contribute to the character of heritage conservation areas." (Cl 22(h)). 48 Cl 4.0 of the Heritage DCP provides guidelines and controls for heritage buildings and buildings within a heritage conservation area. It seeks "the retention of as much of the original fabric that contributes to the character of the conservation area" and the statement that "the parts of the building that are visible from the street .…are (of) the most importance to the conservation area." 49 There was general agreement by all the witnesses that the proposed amendments were an improvement over the original design, although it would be fair to say that the amendments did not overcome the concerns of the residents or Mr Vickas. 50 On this issue, I accept Mr Vickas' evidence insofar as there is not sufficient detail to properly access the application. At the end of the hearing the Court still did not have elevations of what was proposed, beyond the perspective of Mr Phillips. Under any assessment this is inadequate and could not properly form part of any approval, if that was the outcome of the proceedings. The inadequacies identified by Mr Vickas would also need to be included, simply because of the building's location within a heritage conservation area. The site's inclusion within this area clearly places a higher obligation on the applicant than otherwise exists in other areas. 51 In saying this, I am not convinced that the building needs to be retained in its current 4 shop configuration to satisfy the objectives in cl 22 of LEP 1998 or the guidelines and controls in cl 4.0 of the Heritage DCP. This, in my view, is more of a question of detail that was not available to the Court. Social Impact 52 Mr Vickas describes the proposal as "highly symptomatic of a broader conflict of interests occurring between commercial and residential interests within the 'mixed use' and transitional areas of Kings Cross and Potts Point for many years." He sees the proposal as an overt symbol of the ad hoc spread of intrusive and degrading commercial activities further into the residential precinct. 53 Mr Vickas' comments were supported by the residents who gave evidence to the Court, as well as the numerous written submissions provided to the Council when the application was advertised. 54 Mr Betros sees the opportunity for social interaction continuing through neighbours purchasing goods in the store as well as becoming familiar with staff in the proposed store. Overall he sees no negative social impacts. 55 For the reasons mentioned earlier in the judgment I agree with Mr Vickas that the proposal is contrary to the Council's planning philosophy of a "transition" between the high activity of Darlinghurst Road and the residential areas to the south east. In my view, the proposal provides the potential for adverse social impacts by way of its ability to attract additional noise and people to an area consisting not only of commercial activities but also residential properties. The suggestion by Mr Betros that it will provide shopping facilities for local residents has little substance in my opinion after considering the large number of 24 hour convenience stores in the immediate area even if a resident had the desire to use such a facility. I am more inclined to agree with Mr Vickas that residents are more likely to use the larger and less expensive shopping facilities, elsewhere in Kings Cross or in adjoining suburbs, for regular shopping trips. This was a fact confirmed by a number of residents who gave evidence to the Court. 56 I must also add that I do not subscribe to the argument that the likely increase in resident population, through the conversion of a number of hotels to residential apartments, provides any support for the applicant. If goods are required by residents, when the larger shopping facilities are closed then there are ample 24 hours convenience stores in the immediate area. 57 Finally, and for the residents who provided evidence to Court, I need to indicate that existing planning system does not have the ability to provide the level of selectivity for the existing four shops, as suggested in their evidence. The selection of shops depends on a range of factors, many outside the control of the Council and the Court. Economic Impact 58 It was submitted by Ms Schofield that the unviability of the existing 4 shops was not proven and that this should be considered. This matter was also seen by local residents as being a significant issue. 59 In my view, it would be inappropriate for the Court to give consideration to this matter. While Ms Schofield attempted to distinguish this argument from the general approach of placing economic impacts outside the planning framework (AMP Investments Ltd v Newcastle City Council NSW LEC 164 (6 August 1999, par 87) I am not convinced that this can be done, in this case. In my opinion the argument falls within the broad concept of regulating economic competition and must be rejected. Orders 60 For the foregoing reasons, the orders of the Court are:- 1. The appeal is dismissed. 2. Development Application DA – 625/2001 for use of four shops at 11 Ward Avenue, Potts Point for a 24 hour convenience store is refused. 3. The exhibits are returned with the exception of Exhibit 3. G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.