Land and Environment Court of New South Wales CITATION : Donald Crone & Associates Pty Ltd v Council of the City of Bathurst & Ors [1988] NSWLEC 22 APPLICANT Donald Crone & Associates Pty Ltd FIRST RESPONDENT Council of the City of Bathurst SECOND RESPONDENT PARTIES : Woolworths Limited THIRD RESPONDENT Kenlinda Pty. Limited FOURTH RESPONDENT Minister For Planning And Local Government FILE NUMBER(S) : 10152; 40184 of 1988 CORAM: Cripps J KEY ISSUES: :- Environmental Planning and Assessment Act LEGISLATION CITED: Local Government Act 1919 Land And Environment Act Woolworths Limited v. Bathurst City Council, 63 LGRA 55; Council of the Municipality of Ku-Ring-Gai v. Minister for Natural Resources; CASES CITED: M.A. Partridge & Sons Pty. Limited, 1986; Claude Neon Pty. Limited v. Sydney CIty Council, 1986,; Woolworths Limited v. Bathurst City Council, 63 LGRA 55 at 62 King v. Great Lakes, 58 LGRA 366; Sydney Training Depot Snapper Island Limited v.John Brown,1987 DATES OF HEARING: DATE OF JUDGMENT: 10/01/1988 APPLICANT Mr. Masterman QC LEGAL REPRESENTATIVES: RESPONDENT Mr. Davison JUDGMENT: His Honour: On 20 April 1988, Donald Crone & Associates Pty. Limited (the architects for the "Developer") appealed to the Court in its Class 1 jurisdiction against the deemed refusal of the Bathurst City Council of an application for development consent for a retail shopping centre and carpark station on land in the Bathurst CBD. The proposed development is to be undertaken on land bounded by Durham, George, William and Howick Streets and is estimated to cost approximately $7 million. The Developer proposes to consolidate a number of properties. Included in the consolidation are 12 lots vested in the Council and forming the Council's existing carpark. Of particular relevance to issues raised is the proposed inclusion of Lot 2 in DP539860, being part of the existing carpark, into the development. It is clear that the Council would have granted its consent to the application were it not for an order of Bryson J in the Equity Division of the Supreme Court on 16 March 1968 restraining the Council from granting consent. The order of Bryson J did not, and was not intended to, restrain the Developer from appealing to the Land and Environment Court. As I have mentioned, at the expiration of 40 days from the date of lodging the development application, the Developer appealed to the Land and Environment Court against the deemed refusal of the Council. Woolworths presently conducts Woolworths Supermarket and the Big W Department Discount Store in Bathurst. If the proposed development goes ahead, Woolworths will be exposed to competition from Coles, the Developer, which proposes to establish Franklins Supermarket and the K-Mart Discount Department Store in Bathurst CBD and in close proximity to Woolworths. On 20 June 1986, the Bathurst City Council granted development consent to Austcorp No. 71 Pty. Limited for a development similar to the development the subject of these proceedings. On 24 September 1987, the Land and Environment Court determined that the consent granted on 20 June 1986 was immune from challenge by reason of the operation of s.104A of the Environmental Planning and Assessment Act. However, on 20 June 1986, the Court declared that the Council's modification of the development consent which it purported to make on 7 October 1986 was void and of no effect. (See Woolworths Limited v. Bathurst City Council, 63 LGRA 55). Thereafter, the subject application was made. The previous development consent had annexed to it two conditions which the Council does not wish the Court to impose in the present Class 1 proceedings. The consent granted by the Council on 20 June 1986 was conditional upon "the lifting of the covenants which restrict the erection of buildings on the following lands ... Lot 2 DP539860 ... owned by the Bathurst City Council ... ." (condition 41) and "the Developer is to reimburse Council for any expense or compensation incurred in having the restriction (sic) covenants referred to in condition 41 removed from the subject lands" (condition 42). Mr. Goldie, the Council's Planner, gave evidence, which I accept, that, conditions 41 and 42 were imposed because he was unaware of the provisions of s.21 of the Bathurst Local Environmental Plan made on 20th March 1987. The matter was brought to the planner's attention in the course of the litigation last year and, in particular, as a result of proceedings by the Council in which it sought a declaration that a covenan t did not apply to any land burdened or agreed to be burdened for any purpose permissible under the Bathurst LEP 1987 or for the purpose of the development to which the Council had granted its consent on 20 June 1986. The declaration was not made because, inter alia, the consent given on 20 June 1986 included conditions 41 and 42 (the validity of which by reason of s.104A of the Act could not be questioned). Since that time his attention was directed to cl. 21 of the Bathurst LEP 1987 and, in consequence of advice received, he did not recommend the inclusion of conditions similar to conditions 41 and 42. In 1966, Lot 2, together with other land, was owned by the Australian Mutual Provident Society. In 1961, the Society leased Lot 2 (and other land) to Woolworths for a term of 40 years. On 21 September 1966, the AMP, Woolworths and the Council entered into an agreement whereby the AMP undertook to transfer Lot 2 to the Council, Woolworths undertook to surrender its interest in Lot 2 being the unexpired term of the lease and the Council undertook not to use Lot 2 for any purpose other than for car parking and footway access to adjoining properties and not to permit the erection of any office or building other than an office for use by car park attendants on the land. Lot 2 was transferred to the Council for the stated consideration of $1 and the Council covenanted it in accordance with the agreement restricting its use of Lot 2. Woolworths was the lessee of Lot 1 (the land having the benefit of the covenant) and occupied the site until 1984 when it moved to its present site in William Street. On 8 December 1986 , Kenlida Pty. Limited purchased Lot 1 from the AMP Society for the sum of $1.3 million. Kenlida Pty. Limited is a subsidiary of Woolworths and Woolworths stated purpose in having its subsidiary purchase Lot 2 was in order to frustrate Coles in its (Coles) endeavour to develop land in the CBD, including Lot 2. Woolworths reasoned that in the event that its manoeuvre was unsuccessful, it would not lose out because the development proposed by Coles would probably increase the value of the land. It was against this background that Bryson J made an order in the Equity Division of the Supreme Court restraining the Council from granting development consent for purposes inconsistent with the abovementioned covenant. Upon the appeal being lodged with the Land and Environment Court, Woolworths and Kenlida (who I shall henceforth refer to Woolworths) made application to the Land and Environment Court for leave to be joined as parties to the proceedings pursuant to Part A, Rule 81(b) of the Supreme Court Rules. The Registrar, after considering the history of the matter, allowed Woolworths to be joined noting that counsel on its behalf had given an undertaking to limit participation in the proceedings to issues arising under the abovementioned covenant. The Registrar had regard to the fact that the development for which the Court's consent was sought was similar to that for which the Council had given its consent in June 1986 and that the consent on 20 June 1986 was subject to conditions 41 and 42 which were intended to protect the interests of the owner of Lot 1 (Woolworths). He also had regard to the preliminary view expressed by Bryson J in the Supreme Court that the Council could be in a position of conflict in that it was being asked to undertake its planning function as a public authority administering public law with respect to land which it owned and which was burdened by the abovementioned restrictive covenant. There was no appeal or reference from the decision of the Registrar. The Class 1 matter came on for hearing on 22 August 1988. As I have said, it was the Council's opinion that consent should be granted subject to conditions. There was, apparently, some arrangement between the Council and Woolworths because counsel (Mr. Masterman QC for Woolworths and Mr. Davison for the Council) made reference to it from the bar table. No evidence was given concerning the matter but it became clear that Woolworths had obtained an opinion of a planner, Tasman F. Dalley, concerning the economic viability of the proposed Franklins Supermarket and K-Mart Discount Department Store and the Council had agreed to present the material to the Court in view of the unsolicited undertaking given by Woolworths to the Registrar. I will not dwell on the allegations and counter allegations made in Court by the representatives of Woolworths and the Council. It is relevant, however, to note that with the consent of the other parties, Woolworths was afforded the opportunity of putting any matter it wished before the Court. That is to say, its participation was not limited to issues arising under the covenant. The Council presented the material Woolworths wished it to present in the form of a written report from Tasman F. Dalley & Associates concerning, inter alia, the economic impact of the development on the Bathurst CBD. Mr. Dalley was not called to give evidence by the Council or Woolworths. The Developer, however, called expert evidence contradicting that presented by Mr. Dalley and Mr. Masterman QC cross examined its witnesses. I shall return to these matters later in dealing with the merits of the application. Upon the matter coming on for hearing, Mr. Masterman QC, without objection, filed a Class 4 application in the Court which raised the legal issues (or at least some of them) sought to be raised in the Class 1 proceedings. The Court was also informed on that day that the Minister wished to participate in the proceedings although it was not until almost the end of the hearing that Ms. Beazley appeared on his behalf first seeking leave to appear for the Minister pursuant to s. 64(1) of the Act and later claiming a right to appear on behalf of the Minister pursuant to s. 64(2) of the Act. The Minister's participation was limited to arguing the effect of cl.21 of LEP 1987 in its application to the restrictive covenant mentioned above. With the consent of the parties, the Class 4 proceedings and the Class 1 proceedings were heard together. Woolworths identified the following issues: "1. Whether the owner or owners of Lot 2 DP539860 (the Council) has validly consented to the development application. 2. Whether any decision of the Bathurst City Council on or prior to 17 November 1987 as owner of Lot 2 DP539860 to consent to the development application was made without notice to Woolworths or the AMP and without any proper opportunity for those to make submissions in relation thereto was contrary to natural justice and void. 3. Whether if the Bathurst City Council as owner ... of Lot 2 has consented to the development application it should be declared that to the knowledge of the applicant, the Bathurst City Council, by so consenting acted in breach of the covenant in Transfer No. L862786 and of its agreement dated 21 September 1966 with the Australian Mutual Provident Society and Woolworths and that such consent ought not to have been given whether it should be ordered that the Council should withdraw such consent and that it should be of no effect whatsoever. 4. Whether the proposed development and building on Lot 2 should be permitted. 5. Alternatively, whether the following or similar conditions should be imposed as conditions of development consent: (a) the lifting of the covenant restricting the erection of buildings on Lot 2 DP539860; (b) the Developer to reimburse the Council for expense or compensation incurred in having the restrictive covenant referred to in Condition (a) removed from Lot 2. 6. The economic impact of the proposed development in the Bathurst area particularly on retailers and Woolworths. 7. The adequacy of carparking to be provided in the proposed development. 8. (Added at the hearing) Whether Cl. 21 of Bathurst LEP 1987 applies to the covenant burdening Lot 2". By letter dated 18 August 1988, Woolworths gave particulars of the issues raised as follows: "As to issue 1 (a) Mr. Kingston (the Town Clerk) had no authority to sign the letter dated 17 November 1987. That letter purported to a letter of consent by the Council to the making of the development application. (b) The Council had no statutory or other power to give its consent to the inclusion of Lot 2 in the development application. It being said that the giving of its consent was outside Council's powers and not for a legitimate purpose of Council. (c) Without limiting (b) the giving of the consent by the Council was part of an invalid arrangement between the Council and the Developer to sell Lot 2 to the Developer contrary to the provisions of s.518(2)(b) of the Local Government Act. (d) In all the circumstances including the decision of the Council to cease to use Lot 2 for a public parking as provided for in the agreement of 26 September 1966, the AMP or Kenlida or Woolworths became entitled to an equitable interest in possession in Lot 2 and no consent was obtained from any of them to the making of the development application". This particular was subsequently withdrawn. As to issue 2, it was said that the Council denied Woolworths natural justice in that in consenting to an application being made to the it for development consent, the Council prejudiced the rights of Woolworths without giving Woolworths the opportunity to be heard. The Class 4 proceedings sought the following declarations: "1. A declaration that the consent of the Council to the inclusion of Lot 2 in the development application dated 11 December 1987 from the Developer to the Council was null and void. 2. (a) In the alternative to 1, a declaration that the consent of the Council to the inclusion of Lot 2 in the development application dated 11 December 1987 from the Developer to the Council was in breach of the agreement between the AMP Society, Woolworths and the Council. (b) That the Council withdraw its consent to the inclusion of Lot 2 in the development application. 3. A declaration that the development application was not validly made. 4. A declaration that the said Lot 2 is a public place and the first respondent has no power to sell the said Lot 2 for the purposes of being included in the said development". By letter dated 17 November 1987 which accompanied the development application, the Town Clerk purported to consent "acting on behalf of the Council" as owner of Lot 2 to its inclusion in the development application. He also purported to consent to the inclusion of 11 other lots forming part of the Council's car park. On 24 August 1988, the Council resolved at a special meeting as follows: "Proposed Shopping Centre - Block bounded by William and Howick, George and Durham Streets - resolved that the Council ratify the owner's consent given by Council by letter dated 17 November 1987 in respect of the development application now numbered 11/88 and consents, as owner, to the making of development application 11/88 incorporating the central car park". As I have said, Woolworths submits that the Council had no "statutory or other power" to give its consent to the inclusion of Lot 2 and that the giving of its consent to an application being made for development consent involved Council in being part of an "invalid arrangement" between the Council and the Developer to sell Lot 2 to the Developer contrary to the provisions of 518(2)(b) of the Local Government Act. Woolworths have also alleged that it was denied natural justice. It submits that before Council could consider whether to consent to the making of a development application by the Developer with respect to land owned by it, Woolworths was entitled to be heard in accordance with the rules of natural justice. It submits that if Council's consent was not validly given in November 1987 but has since been validly given, it has again been denied natural justice because it was not given the opportunity to be heard. In short, it is Woolworths' case that the development application is a nullity and that, ther efore, the Council had no power to grant its consent to the application. It submits that the Court has no jurisdiction to grant development consent because the development application is a nullity. As I have said, it also submits that the Council was in breach of the covenant of Transfer No. L862786 and the agreement dated 21 September 1986 and that the Court should make a declaration to that effect and order the Council to withdraw its consent. On merit grounds Woolworths submits that the consent should be refused but that if it is granted, it should be subject to conditions similar to conditions 41 and 42 annexed to the consent of the Council given on 20 June 1986. It is important to note that Woolworths is not claiming that it has been denied the opportunity of putting material to the consent authority. In the present case, the consent authority is the Court and, as I have mentioned, Woolworths has had ample opportunity to present any material it wishes to present as to why development consent should not be granted, or if it should, subject to what conditions. Furthermore, although Woolworths is now claiming that it was denied the opportunity to put material before the Council in November 1987 when Council consented to the development application being made with respect to Lot 2, its allegations in this regard must be assessed against the background that it acquired Lot 1 one year earlier for the stated purpose of preventing or delaying the proposed development and that throughout 1987 it had made its opposition to the development quite plain to the Council. Woolworths' files reveal that towards the end of 1966 it was endeavouring "to assess how long we could delay any redevelopment by purchasing the property to determine whether we would be justified in so purchasing". As I have said, Lot 1 was purchased by Woolworths' subsidiary at a time when Woolworths had been taking legal advice as to how it could use the covenant to frustrate or delay the proposed development and a decision was taken to purchase the land because one way or another Woolworths believed it was unlikely that it would be the loser. Before turning to the legal and merit issues, I should set out Clause 21 of Bathurst LEP 1987. "21(1) For the purpose of enabling development to be carried out in accordance with this plan as in force at any time or in accordance with a consent granted under the Act in relation to development carried out in accordance with this plan as so in force - (a) s. 314(1)(c) of the Local Government Act, 1919 and Schedule 7 to that Act; and (b) any agreement, covenant or instrument imposing restrictions as to the erection or use of buildings for certain purposes or as to the use of land for certain purposes to the extent necessary to serve that purpose shall not apply to the development. (2) Pursuant to s.28 of the Act before the making of this plan (a) the Governor approved subclause (1) and (b) the Minister for the time being administering the provisions of the Local Government Act, 1919 referred to in that subclause concurred in writing to the recommendation for the approval of the Governor of paragraph (a) of that subclause". Section 28 of the Land and Environment Court Act relevantly provides: "(1) In this section 'regulatory instrument' means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority be made. (2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument. (3) The provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved the provision. (4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purpose of subsection (3) shall not be recommended except with the prior concurrence in writing of the Minister. (5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of the Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence". Section 77 of the Environmental Planning and Assessment Act provides that a development application may be made only by: "(a) The owner of the land to which the development application relates; or (b) any person, with the consent in writing of the owner of the land to which that development application relates". Woolworths submits that the development application was defective, and hence void, because the Council, as owner of Lot 2, did not consent as required by law to the making of the application. It is submitted that there could be no appeal to the Land and Environment Court until after the expiration of 14 days from the lodging of a valid development application and, accordingly, the Court has no jurisdiction to grant the development consent. The Court has repeatedly held that the Council (or the Court on appeal) must be satisfied that the owner has consented before development consent can be granted. However, the failure to lodge a consent in writing of the owner with the Council at the time the development application is lodged, is not fatal to the application being considered by the Council (see Council of the Municipality of Ku-Ring-Gai v. Minister for Natural Resources and M.A. Partridge & Sons Pty. Limited, 20 June 1986 unreported; see also Claude Neon Pty. Limited v. Sydney CIty Council, 18 November 1986, unreported.) In that last mentioned case, Perrignon J observed: "The Court ... is empowered by s. 39(2) to exercise, if it thinks fit to do so, the power of the Council as owner of the street and air space above the street, to consent, pursuant to s.77(1)(b) of the Environmental Planning and Assessment Act to the making of the development application so far as such application relates to the said street and its air space". An evident corollary to that observation is that the Court has jurisdiction to grant the consent notwithstanding that the consent of the owner was not furnished at the time the application was lodged. The matter was also considered in Woolworths Limited v. Bathurst City Council, 63 LGRA 55 at 62, where the Court accepted a submission that a development consent was not invalid because a consent in writing had not been received by the Council at the time the application was lodged. It was submitted that the contrary was held in King v. Great Lakes, 58 LGRA 366. In my opinion, King's case does not support the proposition contended for by Mr. Masterman. In King's case, Council consented to an application believing that it, the Council, was the owner of the land. In fact, the land was not owned by the Council and at the time the Council gave its consent, the owner of the land had not given its consent to the application. In these circumstances, it was held that the consent was void. It was not held that the application was void or that the Council could not have granted development consent if the consent of the owner had been given prior to the Council exercising its power to grant consent. It would follow from the decision in Claude Neon that it is open to this Court to grant development consent even if the Council had not consented to the making of the application. However, I am of the opinion that the Council did consent to the making of the development application. In my opinion, Mr. Kingston had authority to consent (see Exhibit 'A') and if he did not, his authority was ratified. I had some trouble, with great respect, understanding the submission that the Council had no power to give its consent to the development application being made. Assuming, without deciding, that it had no power to sell the land by reason of s.518(2)(b) of the Local Government Act, it is not precluded by that circumstance from consenting to a development application being made. I doubt whether Lot 2 is relevantly a "public place" within the meaning of s.518(1)(b) but, if it is, that circumstance cannot affect the power of the Council to grant development consent (see Grace Bros. v. Willoughby Municipal Council, 44 LGRA 422). I am of the opinion that there was no obligation on the Council to afford Woolworths the formal opportunity of being heard before it, the Council, consented to an application being made to the Council for development consent of Lot 2. It is not suggested by Mr. Masterman QC, on behalf of Woolworths, that if the owner of Lot 2 were a private individual that individual would be required to afford Woolworths the opportunity of being heard before it consented to its land being part of the Developer's development application. I am of the opinion that there was no obligation on the Council to give Woolworths an opportunity to be heard before it determined that it would consent to Lot 2 being included in the development application (see Sydney Training Depot Snapper Island Limited v. John Brown, 26 October 1987, unreported, Federal Court of Australia). The decision by the Council to consent to its land being included in the development application was a decision in its capacity as the owner of the land. It was a dec ision within the realm of private law and not public law and the rules of natural justice, in my opinion, have no application. I should mention that, in any event, the evidence makes it quite clear that throughout 1987 Woolworths were maintaining to the Council that it should not grant development consent. It received legal advice as to how best use the covenant to effect this result. The circumstance, if it be the fact, that Woolworths omitted to raise an argument that Council should not have given its consent to the making of the application does not, in my opinion, mean that it had not been given the right to be heard even assuming such an obligation arose. Finally, the decision to permit the development application to be considered by the Council did not have any consequences necessarily adverse to Woolworths. It may be that before consent is granted with respect to Lot 2, the owner of Lot 1 ought be given the opportunity to be heard in view of the consequence to it of development consent being granted bearing in mind cl.21 of the instrument. However, in the present case, the Council gave Woolworths an opportunity to be heard and, in any event, the Court is the determining authority and Woolworths has participated in the Court proceedings and has been heard on the question whether development consent should be granted. Mr. Masterman has submitted that the terms of s.28 of the Environmental Planning and Assessment Act do not authorise the inclusion in a local environmental plan of a provision that a regulatory instrument being an agreement, covenant, etc. shall not apply to a development. He submits that to exclude a covenant or agreement it is necessary that the particular covenant or agreement be identified. He submits that the words "regulatory instrument specified in that environmental planning instrument" where appearing in s.28(2) of the Act require that each regulatory instrument must be separately identified to the effect that if, for example, it is sought to provide that a covenant does not apply, that covenant must be identified in the instrument. Mr. Masterman submits that there is no ambiguity with respect to the meaning of s.28(2) but, if there is, I should read it to avoid the presumption against the invasion of or interference with proprietary rights. In his submission, cl. 21 cannot have the effect that coven ant L862786 and the agreement made in 1966 and referred to above cannot apply to development if it is consented to by the Court. As I have mentioned, he submits that in the event that development consent is granted, conditions ought be attached having the effect of conditions 41 and 42 attached to the consent granted by the Council in June 1985. I do not accept Mr. Masterman's submission for two reasons. First, because the context of s.28(2) itself makes clear the intended meaning of the word "specified". Section 28 (2), in terms, was enacted "for the purpose of enabling development to be carried out in accordance with an environmental planning instrument". In these circumstances, it is unhelpful, in my opinion, to speak of a presumption against invading proprietary rights. Furthermore, if the interpretation contended for by Mr. Masterman is accepted, it would mean that not only would the Council be obliged to search every title before submitting a planning instrument to be made, but it would have no way of knowing what private treaties had been entered into. Moreover, even if there were means of discerning relevant regulatory instruments, the local environmental planning instrument would have to be amended every time a private treaty or arrangement was made which conflicted with the plan. The suggestion by the applicant that the land could be "spot" zoned as each regulatory instrument became identified as being one which should not apply to development merely highlights the gross inconvenience and impracticality that would ensue if the applicant's submission were accepted. In my opinion, the section requires that the planning instrument specify which, if any, regulatory instrument is not to apply to development. The section does not require that a particular regulatory instrument be identified by a number or any other identifying means. Secondly, however, the challenge of the applicant is precluded, in my opinion, from s.35 of the Environmental Planning and Assessment Act which provides: "The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date of its publication in the Gazette". In my opinion, to assert that cl.21 which provides that agreements and covenants shall not apply does not operate to affect the subject covenant or the agreement made in 1966 referred to above is to question the validity of the environmental planning instrument. If the applicant's submission is correct, s.21 does not mean what it says for the reason, so it is submitted, that there was no power to make it in those terms. Accordingly, in my opinion, the covenant and the agreement comes within the operation of cl.21. The existence of the covenant and the agreement is, in my opinion, a matter which can be taken into account by the determining authority pursuant to s.90 of the Environmental Planning and Assessment Act in the course of its determination whether or not development consent should be granted. However, once development consent has been granted, the agreement and the covenant cannot apply to that for which development consent was granted. For reasons which I shall give, I have come to the conclusion, taking into account all relevant matters including the covenant and the agreement abovementioned, that development consent should be granted subject to conditions. I have further come to the conclusion that it is not appropriate to impose conditions similar to conditions 41 and 42 annexed to development consent granted by the Council in June 1985. As I have said, the Council supports the development proposed and believes that the introduction of Coles into the Bathurst CBD will benefit the town. It points to the circumstance that Woolworths and Woolworths alone is opposed to the development. Woolworths asked me to assume that there might be some "psychological barrier" to other retailers preventing them from coming forward to object to the development. I am not prepared to make such an assumption and, indeed, it would fly in the face of common experience in this Court if I did. It is clear that the Council believes the development would benefit the consumers of Bathurst and that Coles would provide competition for Woolworths. Woolworths have submitted that to allow Coles into the CBD will be to create "economic waste". The meaning of "economic waste" was not made clear to me in submissions. I accept that the introduction into the Bathurst CBD by Coles will expose Woolworths to competition and I am prepared to assume that, in the short term at least, Wo olworths will make smaller profits than it previously made. The evidence before me persuades me that it is most unlikely that Woolworths or Coles will leave the Central Business District but even if the entry of Coles means the departure of Woolworths or that the entry of Coles proves, in the long run, to be unprofitable to Coles, it would not follow that the development consent should not be granted. On the material before me, I consider that, on the probabilities, Woolworths will be somewhat adversely affected by reason of competition from Coles but that both will remain in the Bathurst CBD. It is to be noted that the Chamber of Commerce supports the development application and, as I have said, no shopkeepers or retailers other than Woolworths have come forward to oppose it. In the course of making submissions, Mr. Masterman referred to the planner having some sort of "cosy" arrangement with the Developer. Mr. Masterman disclaimed any impropriety on behalf of Mr. Goldie but to the extent that I was being as ked, inferentially at least, to assume that Mr. Goldie's evidence was otherwise than in accordance with his professional planning expertise, I reject the inference. Mr. Goldie is of the opinion that the introduction of Coles in the CBD will be good for Bathurst. That opinion is, apparently, shared by the Council and many other people in Bathurst. The views of Tasman Dalley do not persuade me that the consent should be refused. Accordingly, I reject the submission that the consent should be denied by reason of the social and economic effect of the development in the locality (s.90(1)(d)). Woolworths has also submitted that the consent should be withheld because the Court would not be satisfied that adequate attention had been given to the movement of traffic generated by the development and the provision of parking. In my opinion, that attack on the Council's planning opinion and the Developer's case is misplaced. The proposed development will not be undertaken contrary to the Traffic Authority's suggestions a nd, as I have said, the Developer is proposing to provide more car parking space than the Code would require. As I have said, I do not think it appropriate to impose conditions similar to conditions 41 and 42 annexed to the consent granted by the Council in June 1985. First, because as I have said, the covenant cannot apply to this development. Secondly, because even if it could, there is no planning reason why such conditions should be imposed. As I have said, the development proposed will provide as much, if not more, public parking than is presently provided on Lot 2. To the extent that I have regard to the rights of Woolworths under the covenant, I would also have regard to the circumstance that Woolworths left the site in 1984 and returned, as it were, by its subsidiary in the circumstances abovementioned. Accordingly, I am of the opinion that development consent should be granted and I make the following orders. Development application No. 11/88 with respect to land, namely: (a)'KINGS HOTEL' LOT 3 DP 82940 - 60 GEORGE STREET (b) 'CORONATION FLATS' LOTS 1 TO 12 DP 10582 - 60 TO 62 DURHAM STREET (c) 'CENTRAL CARPARK' LOT 3 DP 715157 LOT 4 IN A SUBDIVISION OF LOT 2 DP 206237 AND BEARING COUNCIL CLERK'S CERTIFICATE NO. 32/87. LOT 2 DP 221295 LOT 24 DP 720630 LOT 3,4 DP 532652 LOT 2 DP 539860 LOT 23 DP 720560 LOT 7 DP 22751 LOT 2 DP 711410 LOT 6 DP 740985 (d) 'BATHURST MOTORS' LOTS 1 & 4 DP 218727 LOT 1 DP 518116 Part allotments 11,12 & 15 - 54 TO 58 DURHAM STREET (e) 'SOUL PATTINSONS' Part of LOT 1 DP711410 - 167 HOWICK STREET (f) 'MACQUARIE PLAZA' Part of LOT 2 DP 559325 - 49 WILLIAM STREET (g) 'COLES' Part Allotments 8,9, 11 & 12 - 42 WILLIAM STREET ALL IN SECTION 2, CITY, PARISH AND COUNTY OF BATHURST for the following development: A. A DISCOUNT DEPARTMENT STORE WITH AN AREA OF APPROXIMATELY 8,000 SQUARE METRES; B. A SUPERMARKET WITH AN AREA OF APPROXIMATELY 1,400 SQUARE METRES; C. 41 SPECIALITY SHOPS, REFRESHMENT ROOMS AND COMMERCIAL PREMISES WITH A TOTAL AREA OF APPROXIMATELY 3,300 SQUARE METRES; D. A BASEMENT CARPARK CONTAINING APPROXIMATELY 318 PARKING SPACES; E. A ROOFTOP CARPARK CONTAINING APPROXIMATELY 438 PARKING SPACES INCORPORATING AN AUTOMOTIVE SERVICE BAY; F. ASSOCIATED LOADING DOCKS AND SERVICE LANES; AND INCORPORATING THE EXISTING SUPERMARKET AT NO. 41 WILLIAM STREET is granted subject to the following conditions: 1.The developer is not to discharge, without Council's prior consent, any trade waste material into Council's sewerage system. 2.The provision of approved sumps and arrestors on the house drainage lines connected to Council's sewer main to the satisfaction of the City Engineer. 3.The provision of public amenities to at least the level listed below: (a) In the basement carpark, a male toilet containing 1 WC, 1 urinal and 1 wash hand-basin, a female toilet containing 2 WC and 1 wash hand-basin and a unisex disabled persons toilet containing 1 WC and 1 wash hand-basin; (b) On the main retail level a male toilet containing 4 WC, 2 urinals and 3 wash hand-basins, a female toilet containing 5WC and 4 wash hand-basins and a unisex disabled persons' toilet containing 1 WC and 1 wash hand-basin; (c) On the main retail level, a parents' room containing suitable infant feeding and changing facilities and 1 children's WC and 1 wash hand-basin; (d) A room of at least 50 square metres in area to be made available to a nominated Youth Servicess organisation, to be used as a youth refuge and containing a kitchen sink and work bench; all with suitable access and to the satisfaction of the Chief Town Planner. 4. A Building Application complying with the requirements of Ordinance 70 (Building) is to be submitted to Council and approval obtained prior to any building work being carried out on the premises. 5.The section of the building to be used for the preparation, storage or sale of food, together with all finished surfaces, equipment and appliances shall be constructed and completed strictly in accordance with the provisions of the Pure Food Act, 1908, as amended, the Regulations made thereunder, and in accordance with Council's Food Premises Code, and further, that plans and specifications of the work to be carried out to meet this requirement shall be submitted to Council and approval obtained prior to such work being carried out. 6.The developer is to submit three (3) copies of engineering details, plans and specifications for the proposed water and sewer reticulation to be approved by the City Engineer prior to the commencement of construction. 7.The developer is to submit three copies of engineering details, plans and specifications in relation to Conditions 19 and 23 to 26 inclusive to be approved by the City Engineer prior to commencement of construction. 8.The developer is to provide one set of transparent film copies of the works-as-executed plans in respect of Conditions 19 and 23 to 26 inclusive. Each plan is to have a bar scale adjacent to the title block showing the scales used on that plan. 9.The developer is to drain all roofed and paved areas to the satisfaction of the Chief Health Surveyor. 10. The developer is to submit three copies of engineering details, plans and specifications in relation to Condition 9 to be approved by the Chief Health Surveyor. Plans are to be submitted for approval prior to the approval of the Building Application. 11. The developer is to provide one set of transparent film copies of the works-as-executed plans in relation to Condition 9. Each plan is to have a bar scale adjacent to the title block showing the scales used on that plan. 12.The submission of three copies of revised Development Application plans complying with Conditions 17 to 21 prior to or concurrent with the lodging of the Building Application. 13.The developer is required to sign an indemnity with Council in respect to building over or within the minimum clearance from Council's sewer main and also to submit the relevant engineering details with the building application. 14.The developer is to grant an easement to drain water over all stormwater drains, in privately owned lands conveying roadwater, in favour of Council to the satisfaction of the City Engineer. 15.The subject land is to be consolidated into one title and the final survey plan is to show the dedication of the land referred to in COndition 19, both to the satisfaction of the Town Planner. 16.The developer is to provide a minimum of 756 car parking spaces in accordance with Council's Off-Street Car Parking Code and 69 of these spaces are to be reserved for staff parking, all to the satisfaction of the Chief Town Planner. Note: Part of the carpark is to be for public use in accordance with Condition 39. 17.The basement carpark is to be designed and constructed in accordance with the approved plans but subject to the following requirements: (a) The intersection near column 5P is to be redesigned to provide a distinct four way intersection and to incorporate Sinclair Knight Figure B1. (b) The disabled persons parking spaces are to be relocated closer to the entry to the Macquarie Plaza. (c) The trolley stores are to be reduced in area and more widely distributed throughout the carpark. (d) Parking facilities for at least eight bicycles are to be provided close to the entry to the Macquarie Plaza. (e) Pedestrian access by a stairway from the vicinity of column 13R to the footpath referred to in Condition 19(g) is to be provided. (f) The carparking space between columns 9C and 90 is to be removed and vehicles prevented from prking at that location by raised kerb or other barrier. (g) The carpark is to be clearly marked and signposted to provide for one way movement in a clockwise direction and generally two way movement on the parking aisles. (h) The carparking spaces and vehicle aisles are to be constructed and linemarked with dimensions in accordance with Figure B1 of the Traffic Authority Guidelines for Traffic Generating Developments. all to the satisfaction of the Chief Town Planner. 18.The loading docks are to be designed and constructed in accordance with the approved plans subject to the following requirements: (a) All loading docks manoeuvering areas are to provide a minimum clear area of 31.2 metres for vehicles reversing up to the loading docks. (b) The loading dock on the north west side of the development and in the vicinity of columns 14K and 15K and 14M and 15M being redesigned so that it may be used by two 16.5 metre long articulated vehicles and one 6.59 metre long rigid vehicle at any one time. (c) The entrance to the north west loading dock being redesigned in accordance with Sinclair Knight Figure B2. (d) The loading dock on the south east side of the development being improved by the relocation of Column F3. (e) The south east loading dock is to have a minimum clearance of 4,500 mm in height except that where overhead loading garbage removal vehicles will be operating a minimum clearance of 5,800 mm will be required. All to the satisfaction of the Chief Town Planner. 19. The service lane along the south west side of the proposed development is to be constructed in accordance with the approved plans subject to the following requirements: a) The lane is to be of concrete construction with kerb and gutter on both sides properly drained to Council's stormwater drains and with kerb laybacks and driveway crossings to all adjoining properties that presently enjoy vehicular access to the Central Car Park. b) The lane and its intersections with Martin Lappin Lane, Barrack Lane and Flinders Lane and George Street are to: i) permit a 16.5 metre long articulated vehicle to turn left from Martin Lappin Lane and Flinders Lane into the service lane travel to the manoeuvering area opposite Flinders Land and reverse into the loading dock nearest to the building when a 16.5 metre long articulated vehicle is parked in the second loading dock. ii) permit the vehicles in either of the above loading docks to then exit left into George Street. iii) permit an 11 metre long rigid vehicle to turn left from Flinders Land and enter and leave Lot 1. DP 221295, part Lot 1 or part Lot 2, DP 206237 and then travel out to George Street along the proposed lane. c) The intersection of Barrack Lane and Howick Street is to be improved by suitable design and sign posting to provide pedestrian protection. d) The carriageway of the service lane is to have the following minimum widths: i) between Martin Lappin Lane and Barrack Lane 4.0 metres. ii) between Barrack Land and Flinders Lane 6.0 metres. iii) between the manoeuvering area and George Street 3.5 metres. e) the construction of the pedestrian crossing in materials that will result in the crossing being clearly and permanently delineated. f) The wall of the building between columns 14Q and 15Q is to be moved back to 14P1 and 15P1. g) The construction of a 1 metre wide pedestrian footpath along the south west wall of the building from column 13Q and 16PI. h) No pedestrian access is to be permitted to the land referred to in (b) above except: i) at the loading areas shown on the approved plans; ii) as provided for by Conditions 27 and 28; and i) The service lane is to be dedicated as a public road. All to the satisfaction of the City Engineer. 20.The upper carpark is to be designed and constructed in accordance with the approved plans subject to the following requirements: a) The upper level carpark entry/exit ramp to George Street is to be designed and constructed in accordance with Section B.3.2 of the Traffic Authority Guidelines for Traffic Generating Development including widening the entrance ramp to 4.3 metres for a distance of 10 metres from the property boundary. b) The front upper level carpark (Plan 393.150) is to be redesigned to provide at least 294 carparking spaces, 19 raised planter boxes suitable for small shade trees, a wider distribution of smaller trolley bays, retention of the pedestrian aisle and widening of the ramp down in accordance with Sinclair Knight Figure B4. c) The rear upper level carpark (Plan 393.160) is to be redesigned to provide at least 150 car parking spaces, not including those opposite the automotive services bay, but including at least 3 disabled persons' car parking spaces adjacent to the head of the ramp and travelator incorporating any aspects of Sinclair Knight Figure B3 and B4 appropriate to the redesign and providing a more direct route from the front upper carpark exit to the George Street ramp. d) The area of the head of the travelator and ramp are to be constructed so that pedestrians cannot walk from the travelator directly onto a vehicle aisle. All to the satisfaction of the Chief Town Planner subject to that officer considering any comments of Council's Traffic Generating Developments Advisory Committee. 21.The vehicle aisles on the ramp connecting the Basement and rooftop carparking levels are to have a minimum width of 3.4 metres on the straight sections and 3.6 metres on the curved sections to the satisfaction of the Chief Town Planner. 22.All vehicular entrances and exits are to be appropriately signposted and marked so that drivers approaching the entrances and exits and within the carpark are clear as to their function and the headroom within that carparking area or loading dock as appropriate, all to the satisfaction of the Town Planner. 23. The exit driveways are to be designed such that drivers will have a full view of the footpath prior to crossing, to the satisfaction of the City Engineer. 24.The construction of 150mm thick reinforced concrete vehicular crossings over the footpaths in Durham and George Streets, including adequate splays or turnout radii to enable all vehicles (and in particular articulated vehicles) to enter and leave the subject land without unduly disrupting traffic on Durham and George Streets (especially vehicles leaving the Discount Department Store Loading Dock on Durham Street) all to the satisfaction of the City Engineer. 25.The carrying out of the following repairs and improvements to footpaths, and kerbs and gutters: a) construction of a full width footpath in Durham Street for the full frontage of the subject land but leaving space for street trees as required by (d) below; b) remove any disused concrete vehicular crossings and causeways in the kerb and replace with footpath and kerb and gutter; c) replace any damaged kerb and gutter; d) plant advanced trees in the footway for the full frontage of the development in Durham Street; and e) the erection of suitable protective structures to protect the trees to be planted in accordance with (d) above; all to the satisfaction of the City Engineer. 26. The carrying out of the following improvements in the roads adjacent to the development: a) the payment of $50,000 for the installation and maintenance of traffic signals at the intersection of Howick and George Streets; b) the construction of a full length raised median in George Street with a break in the median opposite the entrance/exit ramp to the upper level carpark; c) the construction of a full length unbroken median strip in Durham Street from the existing splitter island at the intersection with William Street to the splitter island at the intersection with George Street; Note: this median is to be designed, located and constructed in a manner that will provide 3 lanes for westbound traffic and that will not be detrimental to the trees on the north-east side of Durham Street. d) the payment of the cost of a feasibility study not exceeding $25,000 into the construction of a pedestrian mall in William Street between Howick and Durham Streets; e) the payment of $250,000 as a contribution towards the construction of a Pedestrian Mall in William Street between Howick and Durham Streets if, and only if, Council resolves to proceed with the construction of that Mall; and f) the making good and, if necessary, adjusting levels and re-sealing of the road shoulder in Durham Street, between William and George Streets; all to the satisfaction of the City Engineer. 27.If pedestrian access via the George Street Walk is not available at any time, then the doors between Columns 16P1 and 15P1 are to be securely closed in such a manner that pedestrian access to the service land can only occur in an emergency. 28.The doors between Columns 9S and 10S are to be securely closed in such a manner that pedestrian access to the service land can only occur in an emergency. 29.The relaying of existing sewer mains, including the relocation of manholes and vents where necessary, and the construction of new sewer mains so that the subject land and all adjoining properties are provided with adequate connections to Council's sewer mains as determined by and to the satisfaction of the City Engineer. 30.The developer is to provide an internal water service large enough to serve the development. 31.The provision of fire services from Council's water mains to within the property boundary. 32.The provision of documentary evidence that arrangements satisfactory to the Southern Mitchell County Council, Telecom Australia and Australian Gas Limited Western have been made for the protection, augmentation and relocation of any of the assets of these bodies that may be necessary and the provision of the utilities provided by those bodies to the development including the relocation of the overhead electrical mains located in the service land along the south west of the development. 33.A landscape plan, properly drawn and labelled, is to be submitted to Council and is to show landscaping proposals including the proposed method of satisfying Conditions 22(d) and (e) to the satisfaction of the Town Planner. 34.Landscaping is to be provided and maintained in accordance with the approved landscape plan, to the satisfaction of the Parks and Gardens Supervisor. 35.The developer is advised of Council's Tree Preservation Order requirements. 36.Areas are to be provided on the land for the storage of waste materials in such a manner the materials are not visible from any public place and so that nuisances do not arise, and further, details of the location of the proposed storage areas and the type of screens proposed are to be submitted to Council and approval obtained prior to any work being commenced to achieve this requirement. 37.The external appearance of the building is to be designed and constructed in accordance with the approved plans subject to the following requirements: a) The submission of a suitable schedule of finishes, including colours, concurrently with lodging of the BUilding Application. b) The submission of a suitable alternate design for the metal balustrades at the carpark levels. 38.A Development Application with fees is to be submitted to Council in accordance with Section 77 of the Environmental Planning and Assessment Act, 1979, as amended, and approval obtained prior to the demolition of any buildings associated with the development. 39.The lands referred to in part (e) of the land description and known as the Central Car Park will only be conveyed to the developer, by the Bathurst City Council, upon completion of a deed, or other legal formality, which ensures that the basement carpark of at least 285 car parking spaces and which is to have vehicular and pedestrian access to Durham Street and pedestrian access to William Street, is available, via those accesses, to the public at all times, all to the satisfaction of the Town Clerk. 40.The basement carparking and access referred to in Condition 43 are to be maintained by the developer or the developer's successor in title, to the satisfaction of the City Engineer. 41.An application pursuant to the provisions of Ordinance No.55 (Regulation of Advertisements, etc.) is to be submitted to Council and approval obtained prior to any advertising structure, sign, notice, device, or representation in the nature of an advertisement being erected, fixed or displayed on the land, or upon any building thereon. I HEREBY CERTIFY THAT THIS AND THE PRECEDING PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR. JUSTICE J.S. CRIPPS. Associate 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.