Baker Kavanagh Architects v Botany Bay City Council

APPLICANT Mr I Hemmings, barrister SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr T S Hale, SC SOLICITORS Houston Dearn O'Connor

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11129 of 2003

Baker Kavanagh Architects Applicant v Botany Bay Council Respondent

This is an appeal against the council's refusal of a development application to erect a tower building at 264 Bunnerong Road, Hillsdale. The building is proposed to contain seven levels above a basement carpark. It will have twelve residential units, having a total floor area of 1,150 sq m. The balance of the floor space within the building is 75 sq m which is designated as a shop on the development application plans. The subject site has an area of 1,228 sq m and it is zoned general business 3(a) under the Botany Local Environmental Plan 1995. The development can be seen in more detail in the architectural plans exhibit A, and the landscape plans exhibit G.

The main issue in the proceedings was whether the proposed development will be consistent with the primary objective of the 3(a) zone. The primary objective of this zone is to reinforce the historical development of business and shopping locations in the local government area of Botany by providing for a range of retail, business and professional service activities which will provide services and employment opportunities for the community.

At the hearing, evidence for the applicant was given by Mr A Darroch and Mr M Evesson, both of whom have town planning qualifications and experience in relation to shopping centres. For the council, evidence was given by Ms J Thomson, consultant town planner and by Mr M Hill, land economist and valuer. I have inspected the subject site and locality, and I have considered the helpful submissions made on behalf of the applicant by Mr I Hemmings of counsel and on behalf of the council by Mr T Hale SC.

The evidence indicates that the subject site is triangular in shape. On its eastern boundary it has a frontage to Bunnerong Road of 57 m. At the southern end of the site, Bunnerong Road intersects with Devitt Place and with a private right of way leading to the Southpoint Shopping Centre.

The subject land was previously used as an Ampol service station, and from my inspection of the site it would appear that the whole of the site was given over to a service station use in the past. There are remnant structures associated with the serving of petrol at the upper level, and more or less the whole of the upper level would have provided ingress and egress for vehicles. At the western side of the site, the land is lower and there is what appears to be the remains of a garage workshop and paved or bitumen areas, where no doubt parking in association with the repair or service of vehicles would have taken place.

On the opposite side of the private right of way, which forms the western boundary of the subject land, is a three-storey residential flat building and further residential flat buildings to the west. To the south of the subject site along Bunnerong Road there are further three-storey residential flat buildings. On the eastern side of Bunnerong Road is Heffron Park, containing open space and playing fields and structures associated with sporting activities. Immediately to the north of the subject land is the Southpoint Shopping Centre which occupies an area of 22,714 sq m.

According to the evidence of Mr Everson, in about 2001 the Southpoint Centre contained around 11,000 sq m of retail or commercial floor space. However, other evidence would tend to indicate that most of the floor space was in fact of a shopping nature rather than being an office-type development. Included within the shopping centre were two principal anchor shops, namely, a Bi-Lo Supermarket and a Woolworths Supermarket.

The Southpoint Centre has received development consent for its redevelopment, so as to rejuvenate and improve the somewhat rundown condition of the shopping centre, and at the same time to erect a residential tower over part of the shopping centre podium. At the time of this hearing, extensive works were being carried out at that centre. When completed, the rejuvenated Southpoint Centre will have a floor space of 11,415 sq m of retail and commercial space, which is a reduction by 1,768 sq m of the former total area according to a report prepared by Smyth Planning. The residential floor space that is proposed at the shopping centre totals 13,778 sq m, so the total gross floor area of the development once completed would be 25,193 sq m, giving a floor space ratio of 1.1:1. The residential tower which is proposed will contain 116 units.

Further to the north beyond dwelling houses which lie to the north of the Southpoint Centre and located about one kilometre from the subject land is the Eastgardens shopping complex which is a major regional complex, located in the Botany local government area. Further to the south from the subject land beyond the residential uses I referred to earlier is the Matraville shopping area. Outside the Botany government area is the Maroubra Junction shopping mall.

Returning to a consideration of the planning controls, the objectives of the LEP include those in cl 5(1)(f), (2) and (3), which read: 5 The objectives of this plan (1) the objectives of this plan in relation to the form and function of the local government area of Botany are: … (f) to provide for an appropriate balance and distribution of land for residential, commercial, retail, industrial, advanced technology enterprises, tourism, port-related and airport-related development and recreation, entertainment and community facilities. (2) The objectives of this plan in relation to residential development are: (a) to maintain, protect and increase the local government area's permanent residential population, (b) to encourage, where appropriate, the renovation and upgrading of existing dwellings, while ensuring that dwelling forms, including alterations and additions, are in sympathy with the amenity of surrounding residences, (c) to ensure the conservation of buildings and structures of architectural or historic significance and that any additions or alterations are in sympathy with the existing building or structure, (d) to ensure the protection and improvement of the amenity of residential areas, (e) to provide for a range of housing types to cater for all socio-economic groups without adverse effects on the character and amenity of the local government area of Botany, (f) to maintain and increase the availability of land for residential use and to prevent the further alienation of residential areas in the local government area of Botany, and (g) to permit the use or re-use of existing non-residential buildings in residential areas where such uses improve the amenity of adjoining residents. (3) The objectives of this plan in relation to retailing and commerce are: (a) to enhance the convenience, viability and general amenity of all commercial centres and encourage a greater diversity in the range of goods and services offered to cater for the retail, commercial, entertainment, welfare and recreational needs of residents, the workforce and visitors, (b) to encourage developments which will contribute to the economic growth and employment opportunities within the commercial and neighbourhood centres so that they remain commercially attractive and viable, (c) to improve the pedestrian environment, access and movement in all commercial centres, and (d) to ensure that new development in the commercial centres does not unduly affect the amenity of adjoining residential areas by virtue of the use, design, bulk and scale of the development and any traffic generation.

Clause 10 of the LEP contains the zone objectives and development control plan: I here set out cl 10(1) and (3) and the whole of the objectives and controls for the general business 3(a) zone:

10 Zone objectives and development control table (1) The objectives of each zone are set out in the Table to this clause under the heading "Objectives of the zone" appearing in the matter relating to the zone.

(3) The Council may only grant consent to the carrying out of development of land to which this plan applies if the Council is of the opinion that the carrying out of the development is consistent with the primary objective of the zone in which the development is proposed to be carried out. In granting consent, the Council must take into account other relevant objectives of the plan and the zone in which the development is proposed to be carried out.

1 Objectives of the zone The primary objective is to reinforce the historical development of business and shopping locations in the local government area of Botany by providing for a range of retail, business and professional service activities which will provide services and employment opportunities for the community.

The secondary objectives are: (a) to control the physical and functional characteristics of commercial areas in order to minimise their impact on adjoining residential areas, (b) to ensure adequate and accessible off-street car parking is provided for users of commercial areas, (c) to promote the vitality of commercial areas and to assist urban consolidation by permitting residential developments within commercial areas, (d) to improve the environmental amenity of commercial areas for pedestrians and shoppers, and (e) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone. 2 Development which may be carried out without development consent Exempt development. 3 Development which may be carried out only with development consent Development for the purpose of: Advertising structures; amusement centres; automotive uses; car parks; car repair stations; child care centres; clubs; commercial premises; community facilities; convenience shops or facilities; educational establishments; hotels; identified land uses; light industries; motels; motor showrooms; places of assembly; places of worship; public buildings; refreshment rooms; residential flat buildings or residential uses; service stations; shops; subdivision; taverns; utility installations. 4 Development which is prohibited Any development other than development included in item 2 or 3.

Like the 3(a) zone each of the other zones has a primary objective and secondary objectives. For example, the primary objective of the residential 2(b) zone is to provide for the development and use of housing other than detached housing in appropriate locations together with community and service uses of a type and scale appropriate to the enjoyment of such housing.

In relation to the primary objective of the 3(a) zone, it is common ground between the parties that the subject site and adjoining Southpoint site are historically a business or shopping location. The word "business" is not defined by the LEP. It has a broader meaning than the expression "commercial premises", which is defined by the Environmental Planning and Assessment Model Provisions 1980 and adopted by the LEP. Any activity carried on for the purpose of profit would usually be held to be a business: cf. Hornsby Shire Council v Salmar Holdings Pty Ltd (1972) 126 CLR 52. Thus most of the uses that are listed as being permissible in the 3(a) zone are business uses. However there are a small number of permissible non-business uses including places of worship and residential flat buildings.

The maximum floor space ratio under the LEP in the subject zone is 1:1. The proposed development has an FSR just 3 sq m short of the maximum. It was the submission of Mr Hale SC that the large amount of floor area given over to residential use prevents the site being used to a greater extent for a business use or uses.

The evidence presented by Mr M Hill related to the mix of uses proposed in the present development application. From his analysis of market evidence he found that the financial return on residential development provides a higher sale value per square metre of internal floor area than that of commercial/retail development. He appended to his written statement figures showing rental prices as well as sale prices of residential development compared with retail development.

It could well be that one of the motivating factors in having such a large area of residential floor space relative to the small amount of shop space was the economic consideration of the return to be gained from the development.

There have been two previous decisions of this Court relating to the subject site. The first was by Senior Commissioner Roseth in Kanne Pty Ltd v Botany Bay City Council, appeal 10022 of 2000, decided on 2 June 2000; and the other case was Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163, decided by Acting Justice McEwen. In each of those cases, a residential form of development was proposed on the subject site with no business component. Each of the previous development applications was refused by the Court. In the second decision, namely that by McEwen AJ, his Honour refers at par 31 of the judgment to the conflict that sometimes arises between the planning goals disclosed by the planning instruments and the economic returns that are sought to be made from developing a parcel of land.

It was the submission of Mr I Hemmings that it was sufficient for the proposed development to have a shop with a floor space of 75 sq m within the building in order for the proposed development to be consistent with the primary objective of the zone. I turn then to consider whether such an amount of shop space in a building of the kind proposed will be consistent with the primary objective.

I should emphasise that it is not necessary that a proposed development should conform to or comply with the primary objective. What is required by cl 10(3) of the LEP is that the proposed development should merely be "consistent with the primary objective".

The proposed development involves the erection of a particular building and the use of that building, once erected, for a particular purpose. One of the ways in which there could be a reinforcement of the business location of the subject land is that the type of design and appearance of the proposed building would give the impression to members of the public that the building contains business or shopping uses. I incorporate in my judgment two coloured pictorial representations of the proposed development, taken from exhibit F.

In the first representation, what is principally seen are the balconies that are curving around the northern elevation on each of the levels above the ground floor level. Because of the angle of view, only part of the eastern elevation or the elevation having the frontage to Bunnerong Road is seen. The view shown in this pictorial representation is from approximately the median strip. Nevertheless, there would be a view towards a large part of the northern elevation as seen by a pedestrian who has just passed the southern corner of the Southpoint building and walking south. As the pedestrian continued to walk towards the proposed building it might not necessarily be evident that there is a shop use on the ground floor, because looking at the architectural plans there is proposed to be an elevated landscaped area to the north of the outdoor paved area immediately adjoining the shop. As well, there is an enclosed or semi-enclosed stair structure near the street alignment. However, as the pedestrian passed the stair enclosure, I think it would be evident that the ground floor of the proposed development, at least that part of it facing Bunnerong Road, would be seen to be a non-residential use. The signs of the particular business use would be evident, and probably a pedestrian continuing to walk south adjoining the Bunnerong Road frontage would see (under the overhanging first floor) the commercial activity on the ground floor at the front.

On the opposite side of Bunnerong Road or for vehicles travelling on the far side of Bunnerong Road, what would be evident, however, is what would appear to be a residential flat building. The curved balconies swing around and run in a straight line, broken in one part, and have the appearance of balconies to residential units.

Looking from the south at the proposed development and at some distance from the subject site, the second pictorial representation gives an impression of what would be seen. This impression is also taken from the eastern side of Bunnerong Road, but nevertheless one can see what would be evident as the southern elevation of the proposed building. What are seen on the southern elevation are glass-enclosed balconies. Along Bunnerong Road from the same side as the subject site, one could also see the projecting balconies on the Bunnerong Road frontage. From the south it would not be evident that there is any commercial use in the subject building until, probably, a pedestrian walked past the south-eastern corner of the proposed building.

What is the form and design of the proposed building? I think the answer to this question is clear. In form and appearance the proposed development is overwhelmingly a residential development and has the typical appearance of a residential flat building. Taken as a whole, the proposed building emphasises that the subject site is a residential location.

In my opinion the form and appearance of the proposed development is not consistent with the primary objective of the zone.

The appearance of the proposed development is but one factor to consider. A more important factor is the actual nature, extent and size of the proposed business use or uses. It could be that by itself one particular small business use on an otherwise underdeveloped site might be held to be consistent with the primary objective of the zone.

However, in this particular case there is not only the shop of 75 m2 proposed on the ground floor (and, subject to further development consent, perhaps the use of some of the outdoor paving in front of the shop in conjunction with use by residents), but there is also the large amount of residential floor space proposed.

It is clear that the primary objective does not quantify any particular floor area required for a shopping or business use when non-business uses are also proposed on a site. However, it is still a relevant factor to consider a comparison of the non-business uses with the size of the business uses, among other factors, when forming an opinion as to consistency with the primary objective. It is a question of fact and degree whether the particular uses would be consistent with the primary objective of the zone.

For completeness I should add that if development consent were granted for the proposed development it would be required that three of the twenty-seven carparking spaces would be set aside for the proposed shop use. Four of the carparking spaces (at about the same level as the Bunnerong Road vehicular entry near the shop) are to be made available, if consent is granted, for visitors for the residential part of the development. The whole of the basement area containing 20 carparking spaces would be required for residential use.

So within the building there is clearly a commercial or shop component of 75 sq m. building. There is a certain area of hard paving to the north of the shop that would have a common use, subject to appropriate conditions being imposed that would allow pedestrians who were not going to the shop to pass through that area, so as to enter from the northern end of the foyer of the residential component of the building, but at the same time would allow tables and chairs to be put on the paving. Then there are the three car spaces in the open area that would be provided; these three spaces of course do not count as floor space in calculating FSR.

Having considered the conflicting views of the experts in the present case, where there is only 75 m2 of total floor space of 1,225 sq m in the proposed building to be used for a business purpose, and the remaining 1,150 sq m of the building is to be used for residential purposes, I am not satisfied that the proposed development is consistent with the primary objective of the zone.

It might be useful to refer particularly to some of the evidence of Mr Evesson. He said that the proposal will reinforce the historical development of the business and shopping location in the area, because it will continue the history of a small-scale retail operation on the site; it will marginally extend the range of services available in the area; and it will maintain the historical relationship between the site and Southpoint in terms of the relative significance of retail development on each property.

While the past uses of the subject site and of the Southpoint site can and should of course be taken into account, I think the emphasis should be more on the fact that the subject site and the Southpoint site are historically a business or shopping location, and that the whole of the subject site having an area of 1,228 sq m has historically been used for a business purpose. Such a business location can be reinforced by providing a range of retail, business and professional service activities which will provide services and employment opportunities for the community.

There was conflicting evidence as to whether there could be a range of business uses provided greater than that which is proposed. The proposed shop covers an area of only 75 sq m and has a frontage to Bunnerong Road of about 12 m. The shop extends only partway into the site; the remaining area of the ground floor of the building is a residential unit.

I do not accept the evidence of Mr A Darroch that in physical terms only two or three shops could be provided. Taking shops of a minimum area of 60 sq m, I am more inclined to accept the evidence of Mr Hill that a number of shops could be provided in a differently designed development and that the shops together would be complementary to each other and would attract customers to the location of the subject site.

Any residential development would need to include some retail or commercial development to meet the objectives and it has been demonstrated in other applications that at least the whole ground floor should be retail, and that retail uses should address the street frontage.

37. I am not able to accept that opinion which is expressed as a conclusion after Ms Thomson referred to a number of specific approvals. It could be that in other cases the whole of the ground floor of a particular site is used for a business use. In order to be consistent with the primary objective of the 3(a) zone it is not a requirement that the whole of the ground floor or the whole of the Bunnerong Road frontage should be used for a business purpose. Nevertheless, I am of the opinion that the proposed development is not consistent with the primary objective of the 3(a) zone: because the totality of the proposed development is overwhelmingly residential, it clearly fails to reinforce the business or shopping location. I hold this opinion even if (as I think should be the case) one were to take into account that the business or shopping location includes, not only the subject site, but also the adjoining Southpoint site.

38. Prior to the determination of the Mayor refusing the present development application under delegation, there was a town-planning report presented by the council's manager development assessment, Mr R Dowsett. In that report he said:

The proposed development provides 75 sq m of commercial space at the ground floor level. This space provides smaller alternative space than accommodated by the neighbouring shopping centre. It is envisaged that the nature and location of the space may attract a range of small commercial uses such as convenience shops, coffee shops and the like. The development therefore meets the primary objective. 39. With respect I am unable to agree with the conclusion that Mr Dowsett arrives at in the last sentence. There could be a subdivision of the proposed shop into two small shops on the subject site, but each would have an area of only about 43 sq m. In my opinion a greater range of business uses and a larger area given over to them would be necessary in order for me to make a finding as a question of fact that the proposal would be consistent with the primary objective.

40. I do not intend to specify what would be acceptable in an alternative form of development, because as the zoning table shows the subject land is capable (subject to development consent) of being used for a wide range of business uses not excluding other uses such as residential uses.

41. The council has a practice of referring important matters to an independent design review committee, and that was done in this case. That review committee found, subject to some generally minor modifications, that the proposed development was acceptable in terms of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development, and it recommended the granting of consent. However, it appears that there was no express consideration by the independent design review committee of the most important provision in the LEP relating to the primary objective of the 3(a) zone. It was the council's case that the proposed development should be refused for the reason that the development was not consistent with the primary objective of the zone.

42. In accordance with cl 10(3) of the LEP if consent were to be granted the council must take into account other relevant objectives of the plan and of the zone in which the development is proposed to be carried out. In relation to secondary objective (c) the proposed development, while adding a residential element, would appear to be contrary to that objective insofar as it deprives the site of the ability to be identified as a commercial area and to have a much greater business presence both in appearance and reality. In terms of general objective set out in cl 5(3)(a) of the LEP, the proposed development overall does not encourage a greater diversity in the range of goods and services offered to cater for the retail, commercial, entertainment, welfare and recreational needs of the residents, the workforce and visitors.

2. The exhibits other than exhibits 1, 9, A, B, G and F may be returned. __________ A J Nott Commissioner of the Court rjs

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