Land and Environment Court of New South Wales CITATION : Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 418 APPLICANT Aldi Foods Pty Limited PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10012 of 2004 CORAM: Talbot J KEY ISSUES: Development Application :- inconsistency with Master Plan - whether time-limited consent appropriate LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 CASES CITED: DATES OF HEARING: 23/07/2004 DATE OF JUDGMENT: 07/30/2004 APPLICANT Mr S B Austin QC with Mr P R Clay (Barrister) SOLICITORS Brophy Bridge & Mirow LEGAL REPRESENTATIVES: RESPONDENT Ms J M Jagot (Barrister) SOLICITORS McKees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J Friday, 30 July 2004 10012 of 2004 Aldi Foods Pty Limited v Holroyd City Council JUDGMENT 1 HIS HONOUR: In an interim judgment dated 24 May 2004 ("the interim judgment"), the Court granted the applicant leave to rely on revised plans. On 2 June 2004, the Court granted the applicant leave to rely on further amended plans, in order to allow it to respond to the planning principles established in the interim judgment. The applicant submitted amended plans dated 16 June 2004. 2 In the period between the interim judgment and the final hearing date on 23 July 2004, Holroyd City Council ("the council") adopted the Development Control Plan ("DCP") containing the Neil Street Precinct Master Plan ("the Master Plan"), subject to the making of the new Local Environmental Plan ("LEP"). In addition, the council reconsidered its position in relation to the application. It wrote to the applicant suggesting two options for developing the site. The options did not change the supermarket building, however, they considerably reduced the extent of the parking deck. The options relied on a time-limited consent of 10 years. Presumably, the applicant's acceptance of either option would have resulted in the parties' seeking consent orders from the Court. In any event, the applicant rejected both options as being commercially unviable. Thus, the only proposal before the Court is the amended set of drawings of 16 June 2004. 3 In the interim judgment, the Court set down the following five matters to which it should have regard in assessing the subject application and its relation to the Master Plan:- The quality of the Master Plan. Is it based on sound planning and urban design principles? Will it lead to a better outcome for the environment and the local community? The public exposure that the Master Plan has received. Have the relevant landowners, stakeholders and the wider community been consulted? The time frame for and likelihood of implementing the Master Plan. How long will implementation take? Is it likely that it can be implemented? The impact of the Master Plan on the development potential of the site. Does the Master Plan unreasonably delay the development of the site? The extent of inconsistency between the proposal and the Master Plan. Would approval of the proposal frustrate the implementation of the Master Plan? 4 With regard to the first criterion, the Court found that the Master Plan was based on sound urban design principles. With regard to the second criterion, the Court found that there was ample consultation with landowners, stakeholders and the general community over a considerable period. With regard to the third criterion, the Court accepted that there is a reasonable likelihood that the Master Plan can be implemented. There has been no new evidence to change the above findings. 5 With regard to the fourth criterion, the Court found that in the short-term it was not possible to develop the site in a way that is fully consistent with the Master Plan. Consistency would require the completion of a drainage system serving the Neil Street Precinct (thereby lowering the 1 in 100 year flood level by 1 metre), the amalgamation of the subject site with the Rositano site and construction of the New Road and the associated landscaped swale. While the evidence suggests a timeframe of 10 to 20 years for the implementation of the Master Plan, there was no conclusive material on the time it would take to put into place sufficient of the public works necessary for developing the subject site in conformity with the Master Plan. 6 During the hearing on 23 July 2004, Mr Beers told the Court that it would be three years before the site would be ready for development at the new flood level. In my opinion, this appears too optimistic, though three years might be sufficient time for the council to establish a time-specific program for public works. Regarding amalgamation with the Rositano site, Ms Hancock has put into evidence a drawing, referred to in the interim judgment, indicating an eight-storey apartment building on the subject site without amalgamation. The building would have a different footprint from that shown in the Master Plan, would have access from Terminal Place and would allow the development of the New Road and swale. While it would not fully comply with the Master Plan, it would be a variation that, in Ms Hancock's opinion, the Master Plan was robust enough to tolerate. 7 In my opinion, it would be unreasonable to put the development of this site on hold for three years, let alone for an indefinite period until the public works envisaged in the Master Plan are complete. If the subject site were developed now, any structures would have to relate to the current 1 in 100 flood level and the development would have to obtain its access, at least temporarily, from Terminal Place. Given the lack of a time-specific program of public works, inconsistency with the Master Plan to the latter extent would, in my opinion, be acceptable. 8 The crucial question for the Court is that asked under the fifth criterion in the interim judgment, namely whether the proposal is so antipathetic to the Master Plan that it would frustrate its implementation. The applicant submitted a drawing showing the 16 June 2004 proposal within the context of the Master Plan, including possible future access to the parking deck from the New Road when that road is constructed. The parking deck allows the construction of the New Road but it covers a large section of the landscaped swale. While the swale would be able to function as an element in the drainage system, it would no longer be an element in the urban landscape envisaged in the Master Plan. 9 The applicant submits that the amended proposal is sufficiently in sympathy with the Master Plan to justify the granting of a time-limited approval for 15 years. At the end of that period it will be clear whether sufficient progress towards the Master Plan's implementation has been achieved. A decision whether to extend the consent or require the supermarket's demolition could then be made. The subject site would be among the last reached by the public works required to implement the Master Plan. Therefore, an "intermediate" use of the site would be quite consistent with the Master Plan. 10 The council submits that the approval of the proposal would have a significant negative impact on the prospects of the Master Plan's implementation. Because of its manifest inconsistency in physical form and use shown in the Master Plan, it will deter potential investors in the Precinct, both public and private. It would compromise pedestrian links, terminate the landscaped swale under a concrete slab, sever the visual connection between the transport interchange, Terminal Place and the rest of the Precinct, and place an elevated parking deck in the location where there should be a landscaped focal point as an entry to the Precinct. 11 The council does not accept that the site is the last in the Precinct to be reached by the contemplated public works. On the contrary, the site, being at the entry point to the Precinct, may be where implementation will start. Findings 12 I accept the council's submission that the proposal is antipathetic to the Master Plan because its approval would severely prejudice the Plan's chances of implementation for the reasons set out below. 13 As stated above, I accept that any development of the site in the short-term will be inconsistent with the Master Plan to the extent that it must relate to the 1:100 flood level and obtain its access from Terminal Place. Beyond the two major elements that cannot now be complied with, there are several others that are crucial to the success of the Master Plan and that a development can and should respect, for example, the following:- · the construction of the New Road and the landscaped swale; · the maintenance of a visual link between Terminal Place and the north of the Precinct; · the creation of a landscaped entry to the Precinct; and · the future possibility of a high-density mixed-use building emphasising the edge of the New Road and the landscaped swale. 14 The only one of the above elements that the proposal does not compromise is the construction of the New Road. The proposal would abruptly terminate the landscaped swale, one of the major elements in the urban design concept of the Master Plan, so that the broad sweep of the swale emphasising the edge of the envisaged high-density building would be lost. The proposal would compromise the visual link from the entry to the north of the Precinct. I note that the applicant offered to remove five car spaces so as to reduce the visual obstruction of the elevated parking deck, however, in my opinion, this would be a minor cosmetic change. 15 The proposal would have a relatively small setback to Terminal Place, thus bringing an elevated parking structure within close view of everyone entering the Precinct. A parking deck would be an unattractive feature in a part of the Precinct that acts as an entry and is closest to the station and the transport interchange. Finally, the proposal retains the possibility to erect a high-density mixed use or residential building on the site only by virtue of the time-limited consent. 16 The fact that it was the applicant who responded to the idea of a time-limited consent suggests that the applicant accepts that a permanent single-storey supermarket and elevated parking deck are incompatible with the Master Plan's vision for this site. The idea arose out of a suggestion made during the hearing about the possibility of a supermarket that contains the "seeds" of a future high-density mixed-use building, for example, by being capable of vertical extension so that it eventually becomes the ground floor of an apartment building. The applicant's response to the suggestion was that it was cheaper to demolish the supermarket and parking deck and to build a high-density building than to erect now a structure capable of vertical extension. The council submits that at the end of a time-limited consent it might be difficult to require the demolition of a business that is trading profitably, serving a local need and provides employment in the area. While this is probably true, there are also other disadvantages of a time-limited consent for an activity that normally receives unconstrained consent. For example, whilever the supermarket building remains in the proposed form on the site, it will be perceived and most likely will be identified as an obstacle to the implementation of the Master Plan. Until such time as the final designation for the site is well established, there will be a caveat on the land with an uncertain future. Notwithstanding a strict requirement either that the consent lapse after a fixed period or that the building be demolished within a specified time, there is no practical or legal means of precluding an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 or even a fresh development application that either seeks to extend or perpetuate the use of the proposed building. 17 Another disadvantage is that, at least for the life of the consent, an incompatible activity would be highly visible and may deter potential investors in the implementation of the Master Plan. Moreover, a consent relying on the demolition of a building and an elevated concrete parking structure only 15 years after its construction is likely to be contrary to the principles of ecologically sustainable development. It would waste a great deal of materials, all of them produced with inputs of energy, and it would require landfill for disposal. A fourth disadvantage is that there would be three periods of disruption, namely construction of the subject proposal, its demolition and finally construction of a high-density mixed-use building. 18 For these reasons, with which Senior Commissioner Roseth agrees and supports, I find that the proposal is antipathetic to the Master Plan and the now adopted DCP and therefore the application must fail. The application for development consent is determined by the refusal of consent. The exhibits may be returned. Orders will be made accordingly. 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