Transport requirements
29It is clear from the evidence given by Mr McLaren on behalf of the applicant, that, although it is capable of being accessed by public transport, albeit on an extremely limited or non-existent basis on the weekends at time of high usage patterns, with the car parking proposed it is capable of being accessible at any site where sufficient car parking is able to be provided.
30Access to public transport, on Mr McLaren's evidence and on Mr Hodges' evidence, is not an essential prerequisite. However, to the extent that access to public transport might be what could be regarded as a bonus for the premises, there are places in the various other zones to which I have referred that would have better public transport access. There is, however, nothing in the transport requirements that would require it to be located in the industrial zone rather than in any of the other zones that are potentially available to it.
31The scale, it is also clear, does not give rise to some serious inhibition on it being located in any other zone. Nor, indeed, does the nature of the business, it being capable of being accommodated in any other building that meets the broad outline of the building characteristics required as fulfilling the wishes of Mr Hodges for the establishment of the building and the premises fit-out for it.
32Finally, the type of enterprise is not one that is not reasonably able to be located in any other zone. The various retail services, commercial services and ancillary activities do not have some specialised nature that precludes them being located in another zone.
33All of Mr Hodges' aspirations that set out why he considers (and, indeed, I observe again, understandably so, given the standard of the premises) they ought be located in the present building, do not, however, mean that they are not reasonably able to be located in another one of the various zones capable of accommodating them in a permissible fashion.
34The matters that Mr Hodges raises, he raises as expressions of opinion and I have not been provided any detailed business plan, financial projections or anything else of that nature that would seem to, in any rational sense, set aside the analysis that I have just undertaken that provides no basis why elsewhere cannot provide an appropriate location.
35The desire to have broad public exposure by a frontage to O'Riordan Street does not mean that it is unreasonable for it to be located elsewhere. 'Undesirable' and 'unreasonable' are not synonyms and should not so be regarded in these proceedings.
36I am not satisfied on the basis of adopting the approach taken by Brown ASC in Hillsong of making a more general inquiry about the particular characteristics of the proposed use and the nature of the undertaking of likely development in different zones means that I could possibly reach the conclusion that this proposal cannot reasonably be located in another zone.
37That, however, it seems to me is not the end of that issue.
38In the first portion of the paragraph to which I have referred in Brown ASC's decision, the Commissioner dealt with, and considered it inappropriate to have regard to propositions, about the identification of specific sites where, in another zone, the development might be undertaken, and he set that aside. He said in particular, "The identification of a site does not mean that it is suitable for the proposed development."
39In this instance, the position is that the applicant itself, through Mr Hack who gave evidence for the Council in Hillsong but gave evidence for the applicant in these proceedings, has identified on pp 11, 12, 13 and 14 of his statement of evidence (exhibit D) "A range of other locations in varying zones within the area covered by the 1998 LEP".
40The opinion expressed by Mr Hack was that none of them are suitable. These sites, he indicated, were obtained by a search of a commercial property website www.realcommercial.com.au.
41It is self evident from a consideration of the sites that are listed on the pages to which I have referred, that virtually all of them are, by self definition, incapable of fulfilling the needs as opposed to the desires of Mr Hodges for his proposed travel superstore.
42However, it seems to me that the flipside of what was said by Brown ASC is that the mere identification of a site in another zone does not mean that it can be said to be unsuitable for the proposed development without a thorough examination of the identified site.
43Mr Hack, in his written statement and in his oral evidence, was taken to two particular locations. One of them, at 19-21 Rosebery Avenue, Rosebery, is discussed in the abbreviated form he has used in his statement of evidence at p 13. It is available in areas of up to 5,785 square metres, it is Mixed Uses Zone E and therefore capable of accommodating the proposed travel superstore.
44From the photograph in Mr Hack's evidence, it is a multilevel building comprising, at least for part of it, a ground and three levels above that being a similar configuration (on that superficial analysis basis) to the present site. It has approximately 120 car parking spaces currently available.
45It was Mr Hack's evidence that he had driven by, and stopped to look in a window to see the nature of the entrance foyer. He had undertaken no analysis and he had not undertaken any significant inquiries - although I concede he acknowledged that he had made some limited inquiries, as I recollect it, of the nature of the premises.
46There is nothing in his very superficial analysis, in my view, that says that he has demonstrated that it would not be reasonable to contemplate location of the proposed travel superstore at those premises. He having raised these matters, it seems to me, the applicant is then required to undertake a proper demonstration of the unsuitability or the unreasonableness of contemplating them as a location.
47With respect to 300 Botany Road, a site again in a Mixed Uses C Zone capable of accommodating it and with a floor plate of 3,750 square metres, located in close proximity to the Green Square Railway Station and thus having a better transport presentation than the present site, the material contained on the www.realcommercial.com.au website indicated that it was part of a larger redevelopment site and that the lease was only available to April 2014.
48Although Mr Hack made no further inquiries about that, I do not consider that that poses any determinative hurdle to the applicant as the prescription on the length of lease would, at least at the level of examination undertaken by Mr Hack, seem to preclude the nature of the long term occupancy envisaged by Mr Hodges.
49However, the inadequacy of the examination of 1921 Rosebery Avenue on that method of approaching the second limb of 14 (1)(a) says to me that the applicant has not demonstrated to me, with respect to those premises, that the proposal could not be reasonably located at that location for any of the nature of matters set out in the clause.
50As a consequence, I am satisfied, on either possible way of considering cl 14 (1)(a) of the 1998 LEP, that the requirements of cl 10 of the LEP cannot be satisfied and that the application must be dismissed.
51For completeness, I should also turn to what is prayed in aid by the Council as being effectively, in its submission, a second prohibition raised as a consequence of the coming into effect of the Sydney Local Environmental Plan 2012.
52It is in this area that, perhaps, it is necessary to make some brief comments about the characterisation.
53It seems to me that, however the individual elements within the proposal might be characterised, they all fit under the broad umbrella of commercial premises as defined in the 2012 LEP.
54It is unnecessary, in my view, to then dissect the elements that are contained therein as to whether they constitute business premises, office premises or retail premises.
55I am satisfied, at least to take the applicant's case at its highest, that the function facility proposed to be operated on the uppermost level of the premises should be regarded as folded into and forming part of the commercial premises to be operated by Mr Hodges' company at the various levels throughout the building for the provision of booking and other related services for the travel industry. I do not accept that, at least at this highest (that being always necessary in my view for this analysis) it should be regarded as a separate use of a function centre.
56However it is characterised within the broad category of commercial premises, there is no doubt that premises which are located in the IN1 General Industrial Zone under the Sydney Local Environmental Plan 2012, do not have commercial premises as a permitted land use for this site. As a consequence, it is agreed (by all those who gave planning evidence) that the proposed use is prohibited in the zone under the present LEP.
57That brings me to the question of the weight to which the LEP should be given a role to play in these proceedings.
58The 2012 LEP came into effect a very short time after the Council determined the present application by refusal. The LEP is now in effect, and clearly was imminent and certain at the time of the consideration and of the determination of the application.
59There has been some considerable discussion about the extent to which I should give weight to this as to whether it should be significant weight, determinative weight or whatever it might be arising out of the discussion by the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289.
60The objectives of the zone, in addition to setting out conventional matters that are following objectives of permitted and prohibited development list five objectives for this zone.
61The first is to provide a wide range of industrial and warehouse land uses, a use with which the present proposal is clearly incompatible.
62The second is to encourage employment opportunities with which it is said that the proposal is, to some extent compatible, because of the employment that would be created.
63The third is to minimise any adverse effect of industry on other land uses, as this is not an industry, it is not engaged by this proposal but nonetheless is an objective that is based to the support of or regulation of industry.
64The fourth is to support and protect industrial land for industrial uses, clearly the present proposal is to the extent that it proposes to alienate the land in a temporal rather than a zoning alienation, clearly does not support and protect industrial land for industrial uses during the period for which it proposes to be occupied for the purposes of the present activity for which consent is sought.
65The fifth is to ensure uses support the viability of nearby centres nearby centres are those that are discussed in a variety of studies, the detail of which I do not consider I need to address for this purpose. To the extent that these premises would propose activities in competition with that which might be provided in the nearby centres, it could hardly support the viability of such centres to the extent that it proposes to establish an activity that, on the Council's case, could conceivably be located at or within any of those centres, it also does not support the viability of such centres.
66In my view, the proposal is clearly not merely prohibited but is comprehensively antithetic to the objectives of the relevant 2012 LEP Zone.
67Despite the valiant attempts made on behalf of the applicant to demonstrate to the contrary, I am unable to find any basis that would cause me to conclude that there was any degree of compatibility between the proposal and the objectives of the zone (except to the limited extent that it might be said to encourage employment opportunities) and there is no evidence that I have that alternative uses of the site might not be able to achieve such an outcome, in any event.
68I do not think, however, that I should go to the extent of saying that inevitably the 2012 Local Environmental Plan would act to defeat the proposal. I do not consider at this stage it is necessary to do so given that I do not think it can get to consideration of that point because of its complete failure to satisfy the first of the zone objectives in the 1998 LEP. However, if I were to need to determine the weight to be given to the 2012 Local Environmental Plan, I would be inclined to hold that it should be given sufficient weight also to defeat the approval of the proposal. The consequence of those conclusions, in my view, renders it unnecessary to consider the remainder of the matters that are raised in the Council's contentions.
69The consequence is that the orders of court must be that:
(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.
Tim Moore
Senior Commissioner
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Decision last updated: 24 September 2013