Aldi Foods Pty Limited v Holroyd City Council - [2004] NSWLEC 253 - NSWLEC 2004 case summary — Zoe

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Aldi Foods Pty Limited v Holroyd City Council

[2004] NSWLEC 253

Land and Environment Court (NSW)|2004-05-24|Before: Talbot J, Mr P, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-05-24

Before

Talbot J, Mr P, Ms J

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

Introduction 1 A development application DA 2004/328 was lodged with Holroyd City Council ("the council") on 16 October 2003. The applicant seeks development consent for integrated development as a consequence of the proximity of the site to an adjacent stormwater channel. The application is in respect of a proposed supermarket. 2 The subject land is owned by the local RSL Club. At or about the same time the council finalised a draft Local Environment Plan ("the draft LEP") and a draft Development Control Plan ("the draft DCP") for the Neil Street Precinct in which the site is situated. The development application was exhibited between 29 October 2003 and 12 November 2003 whereas the draft LEP and draft DCP were placed on public exhibition between 12 November 2003 and 12 December 2003. 3 These class 1 proceedings were commenced by filing an application on 7 February 2004. Following an application by the applicant for expedition on 11 February 2004 the matter was referred to Commissioner Watts for case management. The council submitted that there were significant issues of the public interest that were not suited for resolution by adversarial process. Preliminary hearings took place before Commissioner Watts on 25 February 2004, 10 March 2004 and 14 April 2004. During this time, by agreement, the Court appointed David Chesterman as an expert architect/urban designer. Experts, including the Court-appointed expert, attended the preliminary hearings before Commissioner Watts. The applicant signalled an intention to seek to rely on evidence from its own experts after receiving the report by Mr Chesterman. The matter was referred to me on 23 April 2004 as the Court listed to hear the matter with Senior Commissioner Roseth on 3 May 2004. On 23 April 2004 the council objected to the applicant being given leave to rely on the evidence of its own expert but recognised that if the evidence was served within an appropriate time the opposition may not be pursued at the hearing. I made directions facilitating the presentation of further evidence. 4 At the commencement of the hearing the question of leave was not pursued when the Court was informed that apart from a view the only oral evidence would be from the experts having an interest in the significant town planning issues, including the Court appointed expert. I made directions for the town planning experts to confer and an order that their evidence be given concurrently. These experts were furnished with specific questions drafted by the Court and directed to address them in the course of giving concurrent evidence. These will be dealt later in more detail. The town planning experts have reached a consensus in respect of how the subject proposal could be improved in the event that the Master Plan does not proceed. 5 The question now to be determined is whether the applicant be given leave to rely on an amended proposal that purports to respond to the joint opinion of experts. In order to properly consider whether leave should be granted it is first necessary to understand the proposal and its context in the Neil Street Precinct which the council intends to establish through the mechanism of the draft LEP and the draft DCP. The site 6 The site of 5,381m2 is located on the eastern side of Terminal Place, directly to the north of the commuter carpark of Merrylands Railway Station. It is an irregularly and awkwardly shaped parcel. It has a frontage of 33 metres to Terminal Place and 118 metres to the Main Southern Railway Line, which aligns its eastern boundary. It is vacant except for a large metal awning. There are several trees on the site, including 16 lining the entry. The RL's of the site range from 16.2 to 16.5. The 1:100 flood level has been assessed to be RL 17.09. Part of the site has been identified as a floodway. 7 To the north of the site is the Rositano Furniture Store with associated carpark. To the south lies the bus interchange and, beyond the carpark, Merrylands Railway Station.

[21]

Weight to be given to the draft LEP and DCP 19 It was common ground between the parties that the draft LEP and DCP would be made within three to six months. 20 Mr Beers thought that major weight should be given to the draft LEP and DCP, which he called a "visionary plan". He drew the Court's attention to the extent of public consultation that the council undertook with landowners, community members and interested stakeholders, including Aldi, advising and updating them on the preparation of the draft LEP and DCP. In his view, the draft plans represent years of collaboration between landowners, the community, the State government and the council. 21 Ms Hancock told the Court that the draft DCP and its Master Plan were based on a thorough and considered analysis of Merrylands' and the Precinct's existing character within the context of the government's objective for urban consolidation. The DCP was preceded by geotechnical, flooding, traffic and economic analyses. The purpose of economic testing was to ensure that the building envelopes of the Master Plan provide a yield that makes redevelopment to the desired urban form viable. 22 Mr Chambers listed eight reasons why the draft LEP and DCP/Master Plan should be given major weight. First, because the draft LEP and DCP facilitated each other. Second, because they were exhibited together. Third, because the draft DCP is not a generic plan but specific to the Neil Street Precinct. Fourth, because development consistent with the DCP will transform the Neil Street Precinct into a mixed use precinct that will deliver major infrastructure improvements to the town centre. Fifth, because the draft DCP was prepared with State government funding by a professional unit of the Department of Infrastructure Planning and Natural Resources. Sixth, because of the comprehensiveness of the planning considerations, including the integration of land use and transport, inherent in the making of the draft DCP. Seventh, because implementation of the urban design initiatives contained in draft LEP and DCP would be in the interest of orderly and economic development. Eighth, because implementation of this urban vision would be in the public interest. 23 While Mr Juradowitch and Mr Dickson expressed themselves in less glowing terms, they accepted that the draft DCP and its Master Plan were based on sound planning principles. Nevertheless, they thought that the draft LEP and DCP should be given minor weight for two reasons. First, because the plans were in draft form and the comments following their exhibition have not yet been processed. Second, because in effect they killed any development potential of the site until the new street pattern and drainage system were in place. 24 The joint report of the six experts states that the intent and key principles of the DCP are sound but that there are likely to be some departures to the building forms proposed. The Court-appointed expert, Mr Chesterman, supports the draft DCP. He states in his report as follows:- There has been considerable effort on the part of the council, with financial support from the State government, to prepare this comprehensive redevelopment strategy for amalgamation and redevelopment to densities that are appropriate to its highly accessible location and proximity to the town centre. It advocates and describes in considerable detail a broadly based urban design proposal for mixed-use development that is consistent with current metropolitan planning and with urban design principles that are widely accepted. The redevelopment would be of great benefit to Merrylands. The Neil Street Precinct Master Plan is based on sound urban design principles and, if implemented, would bring substantial benefit to the Merrylands town centre.

[22]

Implementation of the draft DCP/Master Plan 25 Mr Beers told the Court that the Master Plan does not involve major rearrangement of land ownership, though it requires drainage and road works on private land. It has inbuilt into it economic incentives, for example the eight-storey limit on the subject site without any FSR limit. Where necessary, the council would acquire land needed for infrastructure. Mr Beers agreed that the implementation of the drainage system depended on the making of a s 94 plan and said that the plan would be finished in July 2004 and likely to be adopted in September 2004. Ms Hancock added that, in her opinion, the economic testing of the proposed building envelopes proved that the plan provides sufficient economic incentives. Mr Chambers pointed out that in the southern half of the Neil Street Precinct just two ownerships (the subject site and the adjoining Rositano site) comprised 80 per cent of the land. 26 Mr Juradowitch was not convinced that the Master Plan could be readily implemented. He cast doubt on the soundness of the economic analysis, which was based on a nearby residential development, Holroyd Gardens, that, in his view, was not comparable. He believed that in the southern part of the precinct the Master Plan did not provide sufficient economic incentive. He was more optimistic for the implementation of the northern part. He considered a timeframe of 10 to 20 years realistic for implementation. Mr Dickson pointed out that the costs of co-ordinating the project would include the relocation of services. He added that most major urban projects were implemented by a development authority, which was not the case here. In his view this project was "many years away from eventuation". 27 Mr Chesterman said that he had no basis for commenting on the likelihood of implementing the Master Plan. Can the site be developed before the drainage system is operational? 28 Mr Beers said that the council's preferred position was not to approve development until the drainage system is implemented. In response to a question about how the site could be developed now, he said the following:- We would have to have discussions to see how best we can achieve the objectives of the DCP. Certainly, it is a permissible development, we may be obliged to approve it, but it would be 1m above the intended future levels and would have to accommodate the future drainage works and road pattern. 29 Mr Juradowitch pointed out that the council had required the applicant to build 500mm above the current 1:100 flood level.

[23]

What development on the site would be consistent with the draft DCP? 30 Ms Hancock provided a drawing showing two options for developing the site without amalgamating it with the Rositano site. She said that the drawing demonstrated that, by pulling back the building envelope at the northern end, it was possible to develop a building on the site that would essentially retain the urban form envisaged in the Master Plan. She thought that the key question was access because the Master Plan envisages that the site would be amalgamated in order to provide access to it. However, in the absence of amalgamation it would be possible to provide access from Terminal Place, along the northern side where the existing right-of-way is and then across the proposed swale area into the building. While this is not entirely consistent with the draft DCP, it would deliver an outcome consistent with the urban design principle that buildings define the edges of streets. There would also be an opportunity for a mainly residential building to have a retail or commercial component accommodated in the footprint of the podium. 31 Mr Juradowitch questioned the practicality of the building shape on Ms Hancock's drawing. Mr Dickson pointed out that the site is difficult to access. Impact on the draft DCP of approving the application 32 Ms Hancock said that the approval of the application would have significant impact on the rest of the Neil Street Precinct Master Plan. It would require revisiting the street structure and hierarchy, the public spaces and building envelopes as well as their interrelationships. Making changes to the Master Plan would only mitigate the negative impacts of this proposal rather than coming up with a solution that is high on urban amenity. 33 Mr Chambers added that the replacement of an eight-storey building for mixed use with a single-storey supermarket would reduce the residential yield in the Precinct. This would be an unfortunate outcome and an opportunity lost with such excellent access close to the railway station. It would also impact on s 94 contributions and the council's ability to implement the roads and drainage system. The proposed carpark cuts across the swale and its landscaping, which would have to be drastically altered.

[39]

· The extent of inconsistency between the proposal and the Master Plan. Would approval of the proposal frustrate the implementation of the Master Plan? 44 It was common ground between the experts that the intent and key principles of the Neil Street Precinct Master Plan were sound. The Court-appointed urban design expert, Mr Chesterman, said that the Master Plan was consistent with current metropolitan planning and with urban design principles that are widely accepted, and would bring substantial benefits to the Merrylands Town Centre. The Court therefore accepts that the Master Plan is based on sound urban design principles. 45 In relation to the second consideration, I accept the council's evidence that there was ample consultation with landowners, stakeholders and the general community over a considerable period. 46 In relation to the third consideration, the experts were divided on how likely the Master Plan was to be implemented, though Mr Beers, Mr Chambers, Mr Juradowitch and Mr Dickson agreed that, if it is implemented, the time frame would be in the order of 10 to 20 years. As I have already pointed out at [27] above, Mr Chesterman said that he had no basis for commenting on implementation. I accept the council's experts' evidence that there is a reasonable likelihood that the Master Plan can be implemented. It contains economic incentives (in particular an unlimited FSR) that have been tested for viability and found to be sufficient to facilitate the site amalgamation and new infrastructure envisioned in the plan. I note Mr Dickson's comments that there is no intention to establish a special-purpose body in charge of implementing the plan. However, this is the normal process by which urban redevelopment occurs in Australia. The establishment of special-purpose bodies, such as development corporations, is the exception. 47 In relation to the fourth consideration, it is clear from the evidence that the development of the site in harmony with the Master Plan requires not only amalgamation with the Rositano site, but also a new drainage system. It is for this reason that the applicant's experts believe that the Master Plan frustrates any development proposal for the site. Mr Beers agrees that the council would prefer to delay the development until the drainage system is operational and he was unwilling to commit himself to a time. Development of the subject site in the next few years would therefore have to be consistent with the current 1:100 year flood level rather than the proposed level. As regards amalgamation with the Rositano site, the Court had no evidence before it to suggest whether this was possible or likely.