Humphrey & Edwards v City of Sydney

Humphrey & Edwards v City of Sydney - [2009] NSWLEC 1075 - NSWLEC 2009 case summary — Zoe

[14]

8 The existing character of the area will change in the future and the likely planned character of the site and surrounding area is addressed in later paragraphs. Previous approval on the site 9 On 4 February 2008, the council approved Development Application No D/2007/1566 for a mixed-use development comprising 25,682 sq m of GFA on the site (the 2008 approval). The GFA is made up of 14,949 sq m of retailing area and 10,733 sq metres of commercial area. The retailing area provides for a full-line supermarket and specialty shops and the commercial area provides for predominantly office accommodation. A basement car park for 614 cars is provided. The site - relevant planning controls 10 The site is within Zone No 10(c) - Mixed Uses under South Sydney Local Environmental Plan 1998 (LEP 1998). Shops and commercial premises are permissible uses within this zone with development consent. Clause 10 provides that development consent must not be granted unless the Court is of the opinion that the proposal is consistent with the objectives of the zone. Clause 21C(1) provides the following relevant objectives for the zone. (a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light-industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimize vehicular travel, and (c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and .. (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and 11 The DCP provides further detailed planning controls for matters such as height, car parking and floor space ratio although the council did not raise any issue with non-compliance with any numerical standards in the DCP.

[33]

38 Mr Harrison states that it is inevitable that the layout of the proposed shopping centre will be internalised due to the hostile nature of the surrounding streets. It is important that the shopping centre should not be so large that it serves most of the shopping needs of the broader Green Square population. It does not follow that because the 2008 approval was considered acceptable that this proposal should also be considered acceptable. The internal arrangement has changed with the introduction of a DDS and the loss of office space. In his opinion, the vibrant frontage of the proposal will always be second rate because of the hostile street environment compared to the planned town centre. Economic and retail evidence 39 The economic and retail evidence was conducted in two stages. The first stage involved Mr Cullen, Mr Leyshon and Mr Haratsis. They prepared a joint report that identified the areas of disagreement. Mr Leyshon states that there is significantly more demand for retail floor space in the GSTC than either the statutory controls currently allow for (16,500 sq m GFA in Amendment 17) or that recommended in the JLL report (26,250 sq m of gross leaseable area (GLA)). To add further confusion to this issue, the council's planning controls refer to GLA whereas retail experts use GLA. The difference between GFA and GLA is that GFA may include additional areas, such a wall thicknesses. While it varies from site to site, Mr Haratsis stated that GLA was generally around 80% of GFA. 40 Mr Leyshon states that 80,000 sq m of GLA is supportable in the GSTC (including the development on the site). The GSTC could also support a further DDS. Mr Cullen states that only the 26,500 sq m of GLA, as recommended in the JLL report is supportable, although he acknowledges that he has not undertaken any independent assessment. Mr Cullen further states it is possible to conclude that if the floor space in the 2008 approval is included in the calculations, approximately 37,000 sq m is supportable in the broader Green Square area.

[58]

The need for a planned approach to the GSTC: 74 There can be no doubt that the Green Square area, and particularly the GSTC, has been the subject of comprehensive and detailed planning for at least 15 years. These are summarised in par 5 and in greater detail in Mr Harrison's evidence. While there is little visible evidence of the planning that has been undertaken so far, the lack of physical construction should not be seen as a failure of the detailed planning for the GSTC. The chronology supplied by Mr Harrison, in my view, highlights a careful and evolving process to ensure that the GSTC performs its ultimate role of providing a focal point for the wider Green Square area. In my understanding of the evidence, there has been no fundamental change to the general direction for the development of the area, only revision and amendment as part of the evolutionary planning process. I am not aware of any inconsistency in the approach that would suggest that the planning process to date is flawed or unworkable and should be abandoned, if only in part. 75 The importance of ensuring integrity and consistency in policy-making is addressed by Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634 at 640 (and cited by Lloyd J in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110) where it states: There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish inconsistencies which might otherwise appeared in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrator process. 76 A consistent thread through some of the applicant's evidence was the unsuitability of the defined GSTC area. Mr Haratsis stated that the area would be best centred around the railway station rather than located at its western extremity. Ms Morrish was of the view that the site could form a western node for the GSTC and essentially be part of this area. Mr Prattley suggested that as the site adjoins the GSTC it should be given some higher role in supporting this area. These comments misunderstand the differences in the roles of the different zonings of the site and the GSTC.

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Parties

Cases Cited (4)

Cited By (4)