Land and Environment Court of New South Wales CITATION : Charles Bond Estates Pty Ltd v Sydney City Council [1988] NSWLEC 35 APPLICANT Charles Bond Estates Pty Ltd PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10257 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Regulation 1980 Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 27/05/87, 21/11/88 DATE OF JUDGMENT: 12/20/1988 LEGAL REPRESENTATIVES: JUDGMENT: A. INTRODUCTION This is an appeal under s.97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the Respondent of a development application for the erection of a shopping centre on land situate at the corner of Pitt and Phillip Streets, Redfern and known as Nos. 146-152 Pitt Street, Redfern. Subsequent to the commencement of these proceedings the Respondent in pursuance of s.96(2) of the Environmental Planning and Assessment Act determined the development application on 1st September, 1987 by refusing development consent for the following reasons:- "(1) That the development is not permissible under the Residential Zoning in the City of Sydney Planning Scheme and existing use rights over the site have not been substantiated; (2) That the proposal is contrary to the objectives and policies as set out in the 1983 City of Sydney Plan for the future planning of the Redfern/Waterloo area; (3) That the proposal is an overdevelopment of the site and an intensification of the previous use of the site and would have a detrimental impact on the surrounding residential development and the nearby hospital and school uses; (4) That the proposal would create traffic congestion in the vicinity of the site during peak periods and a substantial increase in vehicular and pedestrian traffic volumes on the surrounding residential streets during the hours of operation of the centre with resulting increased danger to pedestrians and increased demand for kerbside parking; (5) That the proposal would be detrimental to the amenity of the area by virtue of increased traffic generation, increased demand for kerbside parking, noise, air pollution, loss of privacy, litter, increased vandalism and danger to pedestrians; (6) That the internal design of the off-street car parking facilities is unsatisfactory and the provision of car parking in the form of a roof top car park is unacceptable in the circumstances as it would encourage misuse for other purposes, would encourage drivers using kerbside parking facilities and would be unsightly to occupants of the adjoining hospital; (7) That provision for loading facilities is inadequate; (8) That the architectural design of the building is not sympathetic to the scale and character of the terrace house development in the vicinity of the site; (9) That the proposal would have a detrimental impact on the existing shopping facilities in the Redfern/Waterloo area and so would jeopardise the orderly development of the area and reduce local employment opportunities; (10) That inadequate landscaping is provided and the internal design of the building, the provision of open spaces and the internal orientation of the shopping facilities are unacceptable having regard to the character of the surrounding area; (11) That adequate access to public transport facilities is not provided:" B. THE APPEAL SITE (i) Physical Attributes The site is situate at the corner of Pitt and Phillip Streets, Redfern and adjoins the southern boundary of the Rachel Forster Hospital. The site has an area of some 7800m2 with a frontage of 61m to Pitt Street, 129m to Phillip Street and 98m to St. Peters Lane (which is parallel to Pitt Street). The site slopes gradually from north to south with a slight cross-fall from east to west. The site is currently partly occupied by some industrial/warehouse type buildings being the remnant of the large scale industrial/warehouse development dating back to the beginning of this century, which survived a massive fire at the premises on 15th July, 1985. Approximately 2/3rds the area of the site is now unoccupied by buildings except for rubble and debris following the fire. Hence the appearance of the site is dilapidated. (ii) Statutory Zoning The statutory zoning of the site is Residential 2(b) under the City of Sydney Planning Scheme Ordinance (prescribed in 1971) which is the the governing environmental planning instrument. In terms of that scheme the proposed shopping centre development is absolutely prohibited. It is common ground that the only means whereby development consent may be granted to the proposed development is pursuant to the provisions of Pt. VI ('Existing Uses') of the Environmental Planning and Assessment Regulation 1980. The Respondent has not conceded that the provisions of Pt. VI of the Regulation are available to the Applicant in the present case. This is reflected in reason (1) for its determination refusing development consent. At the hearing of the appeal the Applicant assumed the task of establishing that relevant "existing use" rights were available in respect of the appeal site. However the parties have not, at this stage, addressed legal argument on the 'existing use' issue. Rather they have agreed that the Court should in the first instance determine the matter on the planning merits of the case (ie by assuming the availability of relevant 'existing use' rights). It is agreed by the parties, that only if the "merit" determination is favourable to the Applicant, will it then become necessary for the Court to determine whether "existing use" rights are available to sustain the granting of development consent in accordance with the Court's 'merit' determination. If the 'merit' determination is against the proposal the Applicant still asks the Court to determine the 'existing use' question (after the matter has been fully argued) whereas the Respondent invites the Court not to enter upon the question on the basis that no utility would be thereby served. With the parties' concurrence I reserved the question of whether the Court should determine the 'existing use' question until after I had first determined the planning merits on the assumption that the relevant 'existing use' rights were available. (iii) The Character of the Neighbourhood The predominant form of both the statutory zoning and existing development in the neighbourhood of the appeal site is residential. By neighbourhood I mean what is known as the Redfern-Waterloo District being the area enclosed by 4 principal arterial roads, Cleveland Street on the northern boundary, McEvoy Street on the southern boundary Regent Street (extending into Botany Road) on the western boundary and South Dowling Street on the eastern boundary. The area of the relevant neighbourhood could be more reasonably confined by substituting Elizabeth Street for South Dowling Street as the eastern boundary. These 4 streets are major traffic arteries. Closer to the appeal site and located within the aforesaid area are Elizabeth Street and Chalmers Street which also carry large volumes of traffic in the north/south direction and Redfern Street which carries substantial traffic volumes in an east/west direction. The predominant form and style of the existing residential development within the neighbourhood is 19th century housing stock (Victorian terraces etc) and public housing residential flat buildings built since the 1950's including immediately south of the appeal site on the opposite side of Phillip Street 4 highrise residential tower buildings built in the 1960's and 1970's by the Housing Commission. These tower buildings are extremely dominant in the area. The Rachel Forster Hospital building complex adjoins the appeal site to the north. It is a large building complex up to 5 storeys in height and provides 89 hospital beds. Its southern face overlooks the appeal site. This includes 2 floors containing hospital wards. Two street blocks further to the north is Redfern Street which is zoned for business purposes and is developed by a mixture of shops, commercial premises, public buildings and industrial buildings. Two street blocks to the west of the appeal site is the strip shopping development located in Botany Road. An obvious feature of the neighbourhood residential area is the extensive restoration of 19th century housing stock with new development taking the form of "infill" housing development. The public housing high-rise phenomenon of the 1970's is no longer in vogue. The Department of Housing is the prominent developer in the Waterloo residential area. According to the 1986 census there are some 14,000 residents in the Redfern/Waterloo district. C. THE PROPOSED DEVELOPMENT The proposed development will involve the demolition of the aforesaid remnant industrial/warehouse buildings in existence on the site. The new development with take the form of an enclosed shopping mall complex comprising a 3 storey structure occupying the whole of the appeal site constructed of reinforced concrete with part glazed and part masonry facades. The ground floor which is accessible from the main pedestrian entrance located in Phillip Street comprises forecourt and mall and shopping floor layout. It also comprises loading docks accessible by vehicular ramp located at the south western corner of the site (adjoining St. Peters Lane). The first floor which is accessible (both to pedestrians and cars) from Pitt Street contains forecourt and mall and shopping floor layout and 100 car parking spaces and additional loading docks. Vehicular ingress and egress are located at the north eastern corner of the site (ie adjacent to the grounds of the Rachel Forster Hospital) and are located at grade. Vehicular access to the second floor is via an internal ramp. The second floor is an open roof car parking area providing 239 car parking spaces. The gross floor area of the proposal is some 8800m2 providing a nett lettable floor area of some 5,800m2. D. HISTORY OF DEVELOPMENT PROPOSAL On 3rd June, 1986 a proposal was submitted by Richardson and Wrench Pty. Ltd. in conjunction with the Applicant for approval in principle to redevelop the site for a 4 level shopping centre at a floor space ratio of 1.97:1 with on-site car parking provision for 288 cars. On 26th June, 1986 an amended proposal for approval in principle was submitted reducing the original proposal to 2 levels (at a floor space ratio of 1.56:1) with roof top parking for 247 cars. On 24th September, 1986 the development application, the subject of the present appeal proceedings, was submitted to the Respondent, with the consent of the owner Exorcist Pty. Ltd. The development application was supported by a detailed written planning appraisal prepared by Mr. R. McDermott a Consultant Valuer and Town Planner and a detailed written appraisal of the traffic impacts and parking requirements of the proposal prepared by Mr. Gennaoui a Consultant Traffic Engineer. The aforesaid planning appraisal at p.6 stated:- "The principal objective of the proposal is that the centre would cater primarily for the everyday needs of the large residential population living within walking distance of the site." The aforesaid traffic appraisal stated (p.17):- "It is anticipated that a high proportion of shopping activity will result from the ease of pedestrian access from the high density housing estates which surrounds it. The site is readily accessible to private vehicles. Vehicular access to and from the undercover car parks will be located, in Pitt Street. It has been estimated that some 550 vehicle trips (in two directions) will be generated during the Friday afternoon peak hour. On a daily basis, it has been estimated that some 1400-1800 vehicles will visit the proposed development, thus generating between 2800 and 3600 one way daily trips. Level of service of all streets around the development will not be affected by the proposed development." On 28th October, 1986 the Respondent gave notice of the proposal and invited public comment. In response the Respondent received written objections from the owners/occupiers of 50 residential properties, the owners/occupiers of 22 business properties, the Rachel Forster Hospital, and 12 local community organisations. Additionally petitions, signed by 334 petitioners opposing the proposal, were received. Supporting letters were received from 3 residents as was a supporting petition of 726 petitioners (copies of these petitions were not tendered because, apparently they had been removed from the Respondent's file). Additionally at the hearing the Applicant tendered supporting petitions signed by some 1,000 petitioners. On 11th November, 1986 the Respondent wrote to the Applicant advising that as the proposed development was not permissible under the Residential 2(b) zoning 'the application must rely on existing use rights"- "There is doubt as to whether the premises enjoy existing use rights .........." The Respondent requested the Applicant to provide additional information on the previous uses of the premises. On 15th December, 1986 the Respondent requested the Applicant to provide "additional information on the development's pedestrian generation and flows" being information requested by the Traffic Authority of N.S.W. In February 1987 Mr. Gennaoui provided an 'Addendum Report' dealing with two matters raised by the Traffic Authority:- (i) distribution of traffic likely to be generated by the proposed development in the surrounding street system; and (ii) evaluation of pedestrian impacts. The Addendum Report concluded (p.8):- "Marked pedestrian crossings are considered necessary in Pitt Street, north and south of Phillip Street, and in Phillip Street, west of Pitt Street. The provision of three marked crossings at the intersection of Phillip Street with Pitt Street will result in delays and congestion to vehicular traffic. Whilst traffic signal control is not required at this intersection, their installation will result in a much safer and smoother operation. Pedestrian phases should be included along all approaches." By letter dated 1st April, 1987 the Traffic Authority of N.S.W. advised the Respondent:- "After considering the requested information, the Authority has resolved not to object to the proposed development. However traffic signals are to be provided at the intersection of Pitt and Phillip Streets to the requirements of the Department of Main Roads and at no cost to the Traffic Authority or the Department of Main Roads." Additionally the letter advised of a number of "internal design deficiencies" to be overcome. (I need not set these out because at the hearing the Applicant indicated that all these matters could be accommodated by the proposal). On 11th November, 1986 the Department of Housing (Urban Renewal Group) advised the Respondent as follows:- "1. The development is seen as desirable to the extent that it provides the opportunity to establish lower priced retail services in close proximity to a significant population of low-middle income tenants in the Redfern/Waterloo area and would provide additional employment opportunities in South Sydney. 2. However, the site is located very close to high-rise pensioner housing blocks owned and managed by the Department and adjacent to a developing site (site 7600) which will consist mainly of small scale, but relatively dense public housing. Council is requested to take into account the possible impact of the development on existing developments and if approving the proposal, seek to implement measures to reduce any adverse impacts." The letter went on to identify the likely 'adverse impacts' including traffic generation, affectation of sensitive residential streets and effect on established shopping centres in Redfern and Regent Streets. On 17th November, 1986 the Department of Education advised the Respondent that the Department "does not oppose the application in principle but the Department is concerned to ensure that any increases in traffic flow, and its associated effects, do not unduly affect the pupils of Redfern Public School". (The public school is situate at the corner of Phillip and George Streets less than 100m to the west of the appeal site). On 15th December, 1986 the Strategic Planning Branch of the City Planning Department prepared a comprehensive report on the proposal concluding that the proposal was "unacceptable from a planning and environmental viewpoint" based upon a number of stated grounds (which I need not repeat here because they cover much the same field as the reasons for the Respondent's ultimate refusal of the development application that I have earlier recited). On 27th May, 1987 the Applicant brought its appeal to this Court against the deemed refusal of the Respondent, and as I have earlier mentioned on 1st September, 1987 the Respondent exercising its powers under s.96(2) of the Environmental Planning and Assessment Act refused development consent. In so doing it adopted in toto the recommendation of its Director of Planning and Building who had prepared a very comprehensive planning appraisal on the proposal concluding as follows:- "It is considered that existing use rights have not been substantiated over the site. In addition the proposal would be an overdevelopment and an unacceptable intensification of the use of the site. The site is poorly located in relation to existing public transport services and together with the amount of off-street parking provided it can be anticipated that the development is designed and will rely for its viability on attracting a large volume of traffic from outside the local area. The proposal is therefore incompatible with the surrounding residential, hospital and school uses and would create major problems related to increased traffic congestion and demand for kerbside parking; increased noise and air pollution; increased disruption particularly to the hospital and nearby schools; increased litter and vandalism; increased danger to pedestrians particularly the aged and infirm and school children; and loss of privacy to adjoining residences. Further the proposed design is unsympathetic with the existing streetscape and would introduce intrusive elements in the form of advertising signage and lighting. Finally, the proposal would be detrimental to the future planning for the area and to the viability of the existing shopping centre. Consequently, the application is considered unacceptable having regard to those matters required to be taken into account under Section 90 of the Environmental Planning and Assessment Act." Although the appeal to this Court was lodged in May 1987 it was not until 22nd June, 1988 that the hearing of the appeal was specially fixed for the week commencing 21st November, 1988. This unusual delay in prosecuting the appeal prompted me to ask Mr. Shean, the Managing Director of the Applicant, during the course of his testimony, whether there had been a time when the Applicant did not desire to prosecute the appeal. (It appears that the Applicant earlier this year entered into a contract for purchase with the owner of the appeal site). One of the reasons that prompted my enquiry was the unusual feature of the presentation of the Applicant's case which essentially relied upon the two aforesaid expert reports of Mr. McDermott and Mr. Gennaoui which accompanied the development application in September 1986. Although each of the authors was called to give evidence, their testimony did not bring up to date the contents of their aforesaid reports which were at the time of the hearing some 2 years old. Additio nally it was apparent from their oral testimony that each had not addressed the recent changes proposed to the development eg Mr. McDermott did not state in evidence that it was no longer proposed that McDonald's be a tenant or that Pricepoint Furniture be a tenant (though Mr. Shean in his evidence stated that Mr. McDermott had been informed prior to giving his testimony). Moreover Mr. Gennaoui was unable to provide details of how he had calculated or predicted traffic distribution patterns of shoppers coming by car to the proposed shopping centre. In any event it was very apparent from their oral testimony that both Mr. McDermott and Mr. Gennaoui were principally if not exclusively addressing their testimony to what they had reported some 2 years ago and that even in that respect, apparently because each was re-called to the case just a few days before the hearing of the appeal, each was somewhat 'rusty'. In these circumstances I was somewhat surprised when Mr. Shean informed me that he had experienced some frustration in having his appeal heard and that the Applicant had at all times desired to prosecute the appeal. This answer led the Respondent to file, without objection, an affidavit from Mrs. Roslyn McCullough, Solicitor, in the employ of the Solicitors acting for the Respondent in these proceedings in which she recited the history of the proceedings (including the many call-over attendances before the Registrar of the Court) since the appeal was filed. It appears that the reason for delay was that despite the Registrar on 9th September, 1987 having directed the filing of affidavits in relation to the disputed issue of 'existing use' the Applicant had experienced difficulty in complying with that direction with the result that it was not until 11th May, 1988 that affidavits were filed on behalf of the Applicant. On that date the Applicant, through its Attorney, requested that the appeal be fixed for hearing later in November 1988 "due to the unavailability of senior counsel briefed in the matter". As I have mentioned on 22nd June, 1988 the appeal was listed for hearing in the week commencing 21st November, 1988. I have mentioned this history of the appeal in this Court at some length because of the unusual delay in prosecuting an appeal which on its face related to a major development (estimated to cost more than $10 million). As has been shown the Applicant is entirely responsible for the delay in having the appeal heard and determined. E. ISSUES DEBATED AT THE HEARING The issues debated at the appeal covered most of the grounds relied upon by the Respondent for refusing the development application. Those issues were the subject of very extensive and comprehensive consideration by the Respondent in the process of arriving at its determination. It is for these reasons that I have set out extensively the relevant synopsis of the Respondent's processing and determining the development application. Indeed I do not readily recall hearing a development appeal where the issues debated at the appeal have themselves been subjected to such comprehensive scrutiny and appraisal in the process of the Respondent's determination of the development application. As a consequence I do not believe it necessary in this judgment to canvass in detail the several issues since I have come to the firmest conclusion that the Respondent's determination refusing development consent was entirely justified in the present case. Indeed the Respondent's comprehensive determination on its face presented an overwhelming case against the proposal. Moreover at the hearing of the appeal the case presented on behalf of the Respondent was likewise overwhelming when weighed against the case presented on behalf of the Applicant. In these circumstances and for my own part, it is sufficient to say that on the town planning issues debated I prefer decisive the opinions of Professor Webber, Mr. Byrnes and Mr. Holland to the contrary opinions of Mr. McDermott and on the traffic issues debated, I generally prefer Mr. Casey's opinions to those of Mr. Gennaoui (although it is fair to say that in relation to traffic impact the real and vital difference of opinion between the traffic engineers was concerned with traffic amenity considerations rather than "traffic" mathematics and predictions). The particular aspect that I find decisive in the present case is the severe and adverse impact of traffic generated by the proposal on the amenity of the existing residential area, the residential street system and the residents. This conclusion is supported by the opinions of all of the Respondent's expert witnesses and also reflects the concerns of the resident objectors who gave evidence. In so finding I have also had regard to the absence of objection to the proposal from the Traffic Authority and to the concurrence to the proposal of the Department of Environment and Planning. However, the Respondent and the local community in my opinion are far better qualified to reach the relevant planning judgment because the proposal, though a large scale commercial development, is principally of local concern, and the opinions of these two Departments of State are not intended, nor do they operate, as pre-emptive. I also agree with Professor Webber's opinion that the opportunity exists (by virtue of the destruction by the 1985 fire of the bulk of the former warehouse industrial buildings) for the appeal site to be developed "in a way which would have a cohesive and unifying effect on the neighbourhood" and that the proposal would nullify this opportunity. To similar effect was Mr. Holland's opinion (which I also accept) that the possibility of implementing the "residential" aims of the relevant planning instrument "will be lost forever" in the event of development consent being granted and that "consent is tantamount to a rezoning". Although as a matter of power a redevelopment may be sanctioned pursuant to existing use entitlements conferred by Part VI of the Regulation, as a matter of discretion it may often be inappropriate to achieve a "de facto rezoning" by this method as a substitute to the process of the making of an amending local environmental plan. The present proposal in my opinion is of such magnitude as to seriously raise the question whether on discretionary grounds the 'existing use' provisions should be made to so operate. It is of interest to note that the possibility of redevelopment of the site for residential purposes was expressly acknowledged by the recent submission to the Respondent on 15th August, 1988 of a development enquiry which wa s responded to by the Respondent on 5th September, 1988. The conclusions I have reached mean that the appeal must be dismissed. This is not to deny, as the Respondent and all its expert witnesses as fairly admitted, that the provision of additional shopping facilities of the type proposed would be to the advantage of many residents in the Redfern/Waterloo area and especially to the aged persons residing in the high-rise Housing Department flats situate opposite the appeal site on the southern side of Phillip Street. My conclusion that the appeal must be dismissed for the reasons advanced by the Respondent simply means that the recognised advantages of the proposal are decisively counteracted and, indeed ultimately overwhelmed, by the obvious disadvantages of the proposal caused by the proposal's substantial commercial intrusion into the existing residential amenity of the area, including the local residential street system which would be severely affected by traffic generated by the proposal. Finally I should note that my ultimate conclusion remains undisturbed even allowing for the fact that the appeal site may potentially be redeveloped for other non-conforming development pursuant to the existing use entitlements conferred by Part VI of the Environmental Planning and Assessment Regulation 1980 (which entitlement for present purposes I must assume, subsists). No doubt in a very real sense the fact that the appeal site has, since the 1985 fire, been substantially vacant and undeveloped and substantially under-utilised, may have created a misleading impression by diverting attention from the question how the appeal site might otherwise be developed in a manner likewise inconsistent with the statutory zoning and the expressed aims of the Respondent to enhance its residential areas. However as the evidence in these proceedings demonstrates, and as the Court's very comprehensive view of the neighbourhood has confirmed, the very clear fact is that the Redfern/Waterloo area has undergone in recent time s and continues to undergo substantial residential enhancement and rehabitation. In the light of this very obvious trend it is apparent, if not inevitable, that any non-conforming redevelopment of the appeal site will need to come to terms with this current and dominant phenomenon. In determining the present appeal even assuming the former buildings and their former use were currently in existence I am satisfied on the evidence (especially Mr. Casey's opinions of differing traffic generation propensities of different types of development) that the proposal involves a considerable intensification in active user compared with the former use of the appeal site with obvious detriment to existing residential amenity. Accordingly my determination on the planning merits is that the appeal must be dismissed. Exhibits to be returned. 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.