D-Studio Architects Pty Limited v City of Sydney Council [2013] NSWLEC 1175

Land and Environment Court New South Wales

Medium Neutral Citation: D-Studio Architects Pty Limited v City of Sydney Council [2013] NSWLEC 1175 Hearing dates: 10, 11, 12, 29 and 31 July 2013 Decision date: 31 July 2013 Jurisdiction: Class 1 Before: Moore SC Decision: 1)The appeal is dismissed; 2)Development Application D/2012/1498 for a proposed travel superstore at 68 O'Riordan Street, Alexandria is determined by refusal; and 3)The exhibits, other than Exhibits 1 and H, are returned. Catchwords: Compliance with zone objectives Legislation Cited: South Sydney Local Environmental Plan 1998 Sydney Local Environmental Plan 2012 Cases Cited: Hillsong Church Limited v The Council of the City of Sydney [2012] NSWLEC 1059 Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 Category: Principal judgment Parties: D-Studio Architects Pty Limited (Applicant)

City of Sydney Council (Respondent) Representation: Counsel Ms H Irish, barrister (Applicant)

Mr P Tomasetti SC (Respondent) Solicitors Minter Ellison Lawyers (Applicant)

City of Sydney Council (Respondent) File Number(s): 10301 of 2013

Judgment 1SENIOR COMMISSIONER: Ausglobal Travel Group wishes to utilise 68 O'Riordan Street, Alexandria for the purposes of establishing a travel superstore. Mr Hodges, the managing director of Ausglobal, is clearly the guiding mind behind the proposal and the proposal encompasses his vision for the concept. The concept is described in his written evidence as being to provide a location which has: The best and most comprehensive customer experience on the market for business and other travellers and tourists by offering a full range of travel services under one roof. The travel superstore would permit clients to research, book and prepare for a trip in a single convenient location. It is also intended that the travel superstore will also encourage competition between rival operators on the premises driving down prices and providing greater value to clients. 2Mr Hodges' statement of evidence sets out the range of services that are envisaged by him, sets out a number of areas where there would be retail sales of goods that would assist those who wished to travel or to provide aspects of the fit-out for travel that would be needed to use the services that were otherwise being provided in the travel agency related areas. 3This of course, is a simple encapsulation of what is otherwise described at quite considerable detail by Mr Hodges in his statement of evidence. It is, however, unnecessary for the purposes of this decision to set that out in its full detail. It is, nonetheless, clear to me that the concept is one that has been carefully thought out by Mr Hodges and is, as he himself attests, something that, on his knowledge as an experienced manager in the travel business, is not otherwise replicated in any other country. 4He describes, in his written statement, a number of things that are the requisites for the establishment of this facility and that it would involve providing space for sixtyfive to seventy agencies, known retailers as well as ancillary uses including a café and child minding facilities. He says, in his view, a large floor area (roughly the size of several floors of a department store) is required to accommodate these uses in a single environment with adequate circulation place. 5He provided, as attachments to his statement of evidence, some original concept plans and photo montages that had been developed in July 2011 as embodying the then state of his vision for this proposal. He also said that it was necessary for there to be multiple floors to separate the various elements and provide what he regarded as distinct experiences as a person visiting the premises moved from one style or aspect of travel to another. He envisaged that between 4,000 and 5,000 square metres would be desirable and he noted that the premises at O'Riordan Street had 4,300 square metres. 6He also indicated that there was a significant need, in his opinion, for an adequate array of car parking spaces - this proposal being one which would add some eightyfour additional car parking spaces to the thirtytwo that are currently available. That parking would be achieved by adding an additional upper area in the warehouse portion of the building at the rear of the premises. 7We inspected the premises during the early part of the proceedings. They are currently being used as a storage facility and a location for the industrial processing of marble, granite and other stone to provide, presumably, for bench tops, cladding, tiling and the like. 8At the front of the building on the O'Riordan Street frontage, there are four levels fitted out and designed to showcase the various stone products capable of being produced on the premises. I think it not unreasonable to describe this as being a sumptuous fitout and one which I can well understand is highly desirable, in Mr Hodges's opinion, for the establishment of his business. I can equally see that it would meet his anticipation of what he considers to be an appropriate space able to be adapted. The adaptation of the space is proposed to cost three and a half million dollars and is built into this application. 9Mr Hodges was supported in the outlining of the proposal by evidence from Mr Robert Stark who was the author of the Statement of Environmental Effects. He describes the use in the Statement of Environmental Effects as being, "An integrated mix of exhibition rooms, commercial and retail services for the travel business and ancillary uses." He concurs that it is of a unique and unusual type, nature and scale. 10He continues to say that, "It is a use that would require large floor plates, appropriate fitout and finishes, a viable location and convenient car parking at an appropriate cost." 11Mr Stark also continued to note that the layout that was proposed was readily able to be accommodated by alterations and additions to the existing building to accommodate the new uses. 12The question of how the development might be characterised is a matter to which I will return later. But it seems to me that at the present time - it being acknowledged that the use is not one for an industrial purpose - that I do not need to deal with categorisation for this phase of my determination. 13It was Mr Hodges's evidence that there were a variety of attributes that he sought in premises that could accommodate his travel superstore vision. * He wanted to be able to launch in early 2014, that means that the premises need to be readily available for adaptation. * He wants it to be a stand alone building. * He wants it to be within 15 kilometres or so of the centre of Sydney but he does not wish to be in the central business district as it would be too hard to get to the store. * He wants it to be on a main street. * A single or two floors would not give a similar experience in his assessment and that a multi level building was necessary. * He did not wish it to be on what he describes as a back street because such a location cannot seek what he is proposing to achieve. 14It was his evidence, as I understood him, that this was to be a destination rather than something that was purely designed to be an opportunistic element of some broader facility (whether retail, commercial or otherwise). 15It was, in the words of Mr Hack, who gave evidence on behalf of the applicant, what he, Mr Hack, described, as a "category killer" - that is, what he acknowledged was an American expression and dealt with premises such as Toys R Us, BabyCo, Bunnings and the like, where, in effect, all of the needs of a particular class of consumer were able to be accommodated within the same set of large premises. 16It is, as Mr Hodges said, "a unique proposal", and one on which he has clearly expended a deal of energy in designing it. It is not difficult to understand, under the present circumstances, having inspected the building, why he would be as enthusiastic as he is to obtain development consent to permit the particular building that is the subject of these proceedings to be approved for its use. 17In essence, to some extent, given his description of a clientele that would potentially come from the totality of the broader Sydney Metropolitan area, would primarily come at weekends, would primarily come by car or be bussed there in groups, that it is a case of, at the appropriate location, "build it and they will come" because of its unique nature. 18It is in this context that this proposal needs to be considered against the terms of the relevant Local Environmental Plan that applied at the time of lodgement of the development application. That plan is the South Sydney Local Environmental Plan 1998, a Local Environmental Plan that no longer applies at this location because of the coming into force of the Sydney Local Environmental Plan 2012. 19There are a number of critical provisions in this Local Environmental Plan. The first of them is clause 10, the Zone Objectives and General Development Controls Provision which reads: Except as otherwise provided by this plan the Council must not grant consent for the carrying out of development on the land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located. 20The land in these proceedings is located within zone number 4, the Industrial Zone, and in cl 14(1), there are set out a total of six zone objectives. It is necessary for me to consider whether the proposal is consistent with these objectives or not antipathetic to them. 21The first of the objectives of the zone is that which has engaged the most controversy and vigorous contest in these proceedings. The objective is in two parts. The first is: * To facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres. 22There is no contest that the proposal does not meet that objective. However, the second limb of this objective is to: * Facilitate and encourage other land uses which due to their type, nature, scale, transport requirements or impacts cannot reasonably be located in another zone. 23There are in the South Sydney Local Environmental Plan 1998, a range of other zones wherein (without yet testing each or any of those zones against the reasonable location test set out in 14(1)(a)) this proposal could be located. They include zone number 3, the Business Zone, the Mixed Use C Zone, the Mixed Use D Zone and the Mixed Use E Zone. Other Mixed Use Zones have requirements for either minimum or maximum residential development requirements that would preclude a freestanding, standalone enterprise of the nature that Mr Hodges envisages. 24I have been taken to the decision of Brown ASC in Hillsong Church Limited v The Council of the City of Sydney [2012] NSWLEC 1059 where the Commissioner dealt with the second element of cl 14(1)(a) saying, in para 53 (in the second half of that paragraph) that in his view the question should be answered or the test applied "by a more general inquiry about the particular characteristics of the proposed use and an understanding of the likely development within the zones." 25Before reaching that conclusion with respect to the church that was proposed in those proceedings, the Commissioner had set out, at para 52 of his decision, the quite idiosyncratic distinguishing characteristics of the proposed activities of the church that made it quite different from anything else that might be contemplated within the zone. He specifically said: There can be little doubt that the Church has different characteristics to more traditional places of public worship. The application proposes multiple services on Sundays, based on the service times and changeover periods it is possible that there could be up to 6 services per day, large numbers of attendees, amplified music and the need for relatively large areas for car parking and bus set down and pick up areas because of the number the attendees. I have little trouble in concluding that the potential exists for substantial amenity impacts from the general operation of the Church, irrespective of the amount of management and control provided. 26He went on to say in his view "the inevitable impacts associated with the proposed Church are best addressed through isolation rather than management practices, if possible." 27If this is the correct approach to consideration of the test in the second limb of cl 14(1)(a), that being a matter to which I will return shortly (as there is an alternative approach arising from the evidence of Mr Hack in those proceedings and in these proceedings), it is necessary, in broad, to consider the particular characteristics of the proposed use to assess whether or not the proposal cannot reasonably be located in another zone because of the proposed development's type, nature, scale, transport requirements or impacts. It is important to note that they are in the disjunctive and therefore need to be individually satisfied rather than cumulatively satisfied. 28There are, in my assessment, no particular impacts of a direct nature that are raised with respect to the proposal and thus, in considering whether it can be located elsewhere, there are no impacts that would act to preclude it being located elsewhere.