Kanne Pty Limited v Botany Bay City Council

Land and Environment Court (NSW)|2001-07-27|Before: McEwen AJ

These proceedings arise out of a refusal by the respondent Council of a development application lodged on 7 September 2000 which sought the construction of a three storey residential flat building of 15 x 2 bedroom units and 25 car parking spaces at No 264 Bunnerong Road, Hillsdale. The proceedings were commenced on 22 January 2001 on the basis of the application being a "deemed refusal", but it was ultimately refused by the Council on 30 April 2001.

The applicant in these proceedings had prosecuted an appeal in this Court, heard by Commissioner Roseth on 2 June 2000, in respect of the same property. The proposal, the subject of that appeal, was for a three storey apartment building of 18 dwellings. That proposal had a floor space ratio ("FSR") of 1.3:1; the Commissioner accepted that the permitted FSR under the LEP was 1:1, and found that the increase to 1.3:1 was not justified. For this reason he refused the appeal.

The subject land is triangular in shape with an area of 1,228 m2. It is on the western side of Bunnerong Road, at its intersection with Devitt Place. The land was previously used as an Ampol Service Station and there are remnants of structures associated with that use on the property; the remainder of the site is either asphalted or concreted.

The site's western boundary fronts an access way leading to the Southpoint Shopping Centre car parks, ("Southpoint"), the shopping centre abutting the northern boundary of the subject land. On the opposite side of the private access way is No 10 Devitt Place, a three storey apartment building. To the south along Bunnerong Road is further development of three storey apartment buildings, as there is in Devitt Place, and in the area generally to the west in, Jauncey Place and Brittain Crescent. These three storey residential flat or apartment buildings were described as "Schedule 7" developments approved under the former Local Government Act 1919.

On the eastern side of Bunnerong Road is Heffron Park, which is a significantly large area of public open space containing playing fields and structures associated with a variety of sporting activities.

To the north of the subject land and along its northern boundary Southpoint occupies an area of 22,714 m2. It contains some 11,000 m2 of retail stores; there is a Woolworths and a Franklins supermarket, 30 smaller retailers, and a medical centre. It is described as being "run down in appearance", and is orientated to a price point at the "discount end" of the retail market. It has been expanded and upgraded over the last 35 odd years, at various times, and has been the subject of proposals for it to be upgraded, and for air space above the shopping centre to be developed as a residential tower.

Over the last four years the proprietors of Southpoint have lodged a series of development applications for the redevelopment of the centre, coupled with a residential tower. Each of those proposals have linked the financial viability of upgrading the shopping centre with the proposed residential tower. The evidence was that the owners regarded the proposed residential development as essential to the viability of redevelopment given that the shopping centre's total floor space is not to be increased (and in fact will be reduced slightly), rent increases are unlikely and there will be increased competition from adjacent centres.

Of the three applications for the redevelopment of Southpoint which preceded the existing application (which is yet to be determined), one was withdrawn and two were refused. Council's Draft Multi-Unit Housing Development Control Plan ("the DCP") has been relied upon in assessing each proposal. The most recent proposal for Southpoint is for 12 residential levels above the shopping centre, containing 138 units; whilst the existing commercial/retail floor space will be reduced by some 1,768 m2, the overall FSR of the proposal is 1.08:1. The developer continues to have discussions with Council's officers, and Mr Dowsett expressed the view that ultimately a consent will be granted for the upgrade of the retail area, including a residential component above the centre. Mr Hale SC for the Council submitted, and I accept, that the strong probability is that the redevelopment of Southpoint will occur, although it is not possible to prognosticate with any accuracy when that may happen.

In the south-east corner of Southpoint's land and abutting the subject site on its northern boundary is an electricity sub station and a plant room, the wall of which plant room fronts onto the subject land and varies between 8 to 11 metres in height.

The relevant instrument is the Botany Local Environmental Plan 1995 ("LEP"). Under it the subject site together with Southpoint, is zoned 3(a) General Business. Although residential buildings of the type proposed are permissible with consent, that permissibility must be considered in the context of the objectives of the zone.

The objectives of the 3(a) General Business zone are described in the LEP as follows: 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:- … (c) to promote the vitality of commercial areas and to assist urban consolidation by permitting residential developments within commercial areas; …

Clause 10(3) of the LEP provides: The Council may only grant consent to the carrying out of development of land to which this land applies if the Council is of the opinion that the carrying out of 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. In relation to the primary objective of the zone being to provide "a range of retail business and professional service activities…", cl 5(3) of the LEP reads: The objective 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; …

In April 1995 the Council officers prepared the Draft Multi-Unit DCP. It is stated to apply only to land zoned residential 2(b). The evidence was that the Council, without formally adopting the DCP, had applied it in relation to all applications for residential flats since 1995, irrespective of whether the proposal was in residential 2(b) land, or otherwise. It has applied it, for example, in relation to the residential component of the proposed redevelopment of Southpoint.

The three relevant objectives and restraints from the DCP are: (i) Site density requires a minimum site area per dwelling of 135 m2 for small dwellings (less than 70 m2), and 190 m2 for medium dwellings (70 - 110 m2) (cl 1.3.1); (ii) Site coverage "should not exceed 40 per cent of the total site area". (cl 1.3.4) (iii) Landscaped area per dwelling is to be 65 m2 for a small dwelling, and 90 m2 for a medium dwelling (cl 6.3.1)

The present application is for a three storey residential flat building comprising 15 x 2 bedroom units with underground parking for 25 cars. Each of the three floors has five units, configured in V-shape; on each floor two units face east, two units face west, and the fifth unit is orientated to the south, but has access to eastern and western light and sun. Vehicular entry to the basement car park is at the north-east corner of the site on Bunnerong Road.

The floor space ratio of the proposal is 1:1, which is the maximum allowable under the LEP for the 3(a) General Business zone. As I have mentioned (par 2) Commissioner Roseth found that that exceedence of the control of 1:1 not justified, and consent for that earlier proposal was declined. (LEC matter No 10022 of 2000)

After the present proceedings were commenced an assessment of this application was prepared by Mr Dowsett. His assessment recommended refusal for reasons which were then adopted by the Council when it refused the application on 24 April 2001. The reasons for refusal became the Statement of Issues in these proceedings.

The thrust of the applicant's argument in favour of development of the subject site for residential and not commercial/retail, is the claimed absence of demand for commercial/retail space. The applicant points to the declining activity within the Southpoint centre and in particular to a number of vacant small retail spaces - shortly before these proceedings commenced, a coffee shop, which has operated for a lengthy period, closed, and there is apparently no sign of a replacement tenant/operator.

Of the matters raised in the Statement of Issues as filed, the following were those which were addressed in the evidence, and in argument:- 1. The proposed development does not comply with the General Business 3(a) primary and secondary zoning objectives contained in the Botany Local Environmental Plan 1995, in that: (a) the development does not reinforce the historical development of business 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; (b) the development is likely to prejudice the commercial/residential re-development of the South Point Shopping Centre adjacent to the subject site by imposing height, scale and siting restrictions on the South Point Shopping Centre re-development. Such restrictions being necessary so as to alleviate the impacts of overshadowing on the development site; (c) the development does not encourage energy efficiency and energy conservation.

The proposed development does not comply with the objectives of the LEP in relation to retailing and commerce (Clause 5(3)(a) and (3)(b)) in that: (a) It does not enhance the viability and general amenity of all commercial centres. (b) It does not 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.

The proposed development does not comply with objective 5(1)(e) of the objectives of the LEP in that it does not protect areas from inappropriate development nor does it ensure that, in particular, residential amenity, health and safety is maintained or improved where necessary.

The development does not comply with Clauses 1.3.1, 1.3.4 and 6.3.1 of Council's Draft Multi-Unit Housing Development Control Plan in relation to the density, site coverage and landscaping of the site. Both Mr Hale for the Council, and Mr Goldsmith who appeared as the agent of the applicant, agreed that the issues broke into two broad areas - firstly permissibility, and secondly merit matters.

Mr Hale for the Council submits that the proposal fails to comply with either the primary objective or the secondary objectives of the zoning. If permitted he says it will not reinforce the "historical development of business and shopping locations in the local government area…", and to the contrary that, rather than promoting the "vitality of commercial areas", it is likely to prejudice the redevelopment of Southpoint.

The first question is whether the primary objective of the zone is met; and if not, whether the secondary objectives are met. As to the primary objective the question is whether or not the proposed residential development will "… reinforce the historical development of business and shopping locations in the local government area of Botany…".

Mr Ludvik, planner, called on behalf of the applicant, advanced three reasons both in his statement of evidence and in oral testimony, for concluding that the proposal was consistent with the primary objectives of the zone. These were:

(i) The nature of the proposed development was not an inappropriate form of development under the terms of the LEP, and therefore could not be inconsistent with the primary objectives of the plan (ie that it was not antipathetic to the objectives). (ii) That the proposal will enhance the viability and general amenity of Southpoint by increasing patronage and being an attractive built form with landscaping. (iii) That the development would contribute to economic growth and employment opportunities to assist the maintenance of those objectives by being commercially attractive and viable.

Mr Ludvik agreed in cross-examination that the "enhancement" and "contribution" (items (ii) and (iii)) would come from some 30 - 40 extra residents in the proposed development, but that economic impact from those additional residents would be trivial, and of inconsequential and unmeasurable effect in relation to the Southpoint centre.

On behalf of the applicant it was put that the injunction in cl 10(3) to only grant consent if the opinion be formed that the proposal would be "consistent with the primary objective of the zone…", ought be construed by inquiring whether or not the proposal was antipathetic to the stated objectives. However read in the context of the need to provide "a range of retail business and professional service activities…", the proposal is not merely neutral or antipathetic in achieving that objective, but in the context of the need for those activities to "reinforce the historical development of business and shopping locations", it can be seen to be incompatible with, and contrary to, the achieving of those objectives.

The applicant referred to the decision of the Chief Judge in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27, where her Honour said: The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. (at p 27) It is significant that her Honour in that case concluded that the wording of the objectives in the LEP did not require the applicant to demonstrate that the proposal under consideration "promoted or is (was) ancillary to" the objectives there under consideration. That is not the case here. This proposal simply does not "reinforce" , or, "provide service activities" , to or in support of, the primary objective of the zone as is required.

In Schaffer Corporation Ltd v Hawkesbury City Council her Honour referred to the decision of Talbot J in Challister Ltd v Blacktown City Council (1992) 76 LGRA 10. In that decision his Honour referred to the Court of Appeal's inquiry into the consistency of proposals with zoning objectives as dealt with in Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185. It was there that Clarke JA identified the answer to the question as to whether or not a proposal was consistent with stated objectives, was found by inquiring whether or not that proposal was antipathetic to them (at p 192 - 193). Earlier he said: Although the imposition of regulatory and restrictive conditions upon an area of land may be compatible with its use for public recreation and enjoyment that does not mean that a local government or other relevant authority has power to erect upon the land improvements other than those whose purpose is to promote, or is ancillary to, the use and enjoyment of the land as a public recreation area. (at p 191)

In the instant case it is clear on the material adduced in evidence that the present proposal will not in any true or real sense "promote or be ancillary to" the primary objective of "reinforcing", or "providing professional service activities". The Council submitted that a residential development might promote the primary objective or be ancillary to it if it provided a financial inducement for the development or promotion of a business or shopping development - in the manner in which it is proposed for the redevelopment of Southpoint. But that is not the case with the present proposal.

The "other relevant objectives" under cl 10(3) of the LEP are listed as "secondary objectives". If a consent is to be granted "the objectives of the plan and the zone" and in particular those secondary objectives, have to be taken into account when reaching a decision as to whether or not the proposal is consistent with the primary objectives of the zone.

Mr Ludvik emphasised the permissibility of residential development within the 3(a) General Business zone. This permissibility, it was argued, demonstrated an acceptance on the part of the Council (as the author of the LEP) of residential development, "…promoting the vitality of commercial areas …". This conclusion can only be reached if one ignores the objectives of cl 5(3) of the LEP and reverses the ranking and order given the objectives nominated as "primary", and "secondary"; and also rejects the ordinary meaning to be given to those words.

For the Council Ms Janet Thomson, consultant planner, provided an opinion as to whether or not the objectives, both primary and secondary, of the zone were met. In concluding that neither were met, Ms Thomson advanced the following in support of that view.

(i) This proposal is replacing a former commercial/retail development with residential, hence use of the site will be lost to commercial/retail in the overall area zoned 3(a) General Business; she said this was significant, as the area of the site was some five per cent of the total area zoned for this purpose.

(ii) The proposal will not, as it is required to, promote the vitality of commercial activity, and in particular vitality of Southpoint.

(iii) The proposal makes no positive contribution, or improvement to, the environmental amenity of the area for either pedestrians or shoppers.

(iv) The proposal should, but does not, contribute to economic growth and employment opportunities.

Ms Thomson emphasised the role of planning in regulating conflicting land uses, and conflicting economic pressures. She provided evidence of recent examples of conflicting uses ultimately resolved by adherence to planning objectives in the face of commercial pressure for change contrary to those objectives. In support of this approach Mr Hale referred the Court to the decision in Hutcheson v Ryde Municipal Council (1969) 17 LGRA 45. Although the facts of that case are clearly distinguishable from the present, the ratio applied by Else-Mitchell J is applicable here. No doubt there is, as was said in evidence, a demand for flats and for sites in the locality on which flats can be erected, but this does not mean that consent should be granted, for the purpose of planning is to control development contrary to those economic pressures and incentives which would otherwise dictate the nature of building development in any locality. (at p 46) This was a plank of the argument advanced by Ms Thomson. Limited demand for commercial space at the moment, needs to be balanced against the overall planning objectives being pursued by the Council under its instrument and policies. The subject land, like that dealt with in Hutcheson , is not sterilised by the present planning constraints, albeit that commercial/retail development of the site at the moment may not be sufficiently profitable from the point of view of the present owner. Those economic pressures ought not in my view, (using the words of Else-Mitchell J) "dictate the nature of building development" on this site.

Ms Thomson concluded that a form of development which may meet the objectives of the zone would be one which combined residential with retail and commercial development, with for example retail development at street level and residential above it.

Mr Dowsett, Council's employee of some 31 years, gave evidence of his opinion that the proposal if approved had a positive risk of prejudicing the redevelopment of Southpoint. That view was supported by Mr Peter Leyshon, a planner with extensive expertise in relation to shopping centre development and redevelopment, and the demographics associated with them.

Mr Dowsett gave evidence of the Council's concern over a number of years for the upgrading of Southpoint. The Council is anxious to ensure that the local community continues to be provided with the retail outlets presently found at Southpoint. To assist the viability of the commercial operations Council has agreed to extended trading hours, and to the various upgrades and redevelopments which have occurred in more recent years.

Mr Dowsett emphasised the nature of the socio-economic group living in the Schedule 7 "walk-up" flats in the surrounding area. A study by Mr Leyshon in 1996 showed that the local residents were people of "limited means", which he said was reflected by his assessment of Southpoint being at the "discount end" of retail shopping. Significantly the study showed that the local population, when compared with the average for the Sydney region:-

(i) had an older age structure; (ii) had a higher proportion of single parent lone person households; (iii) had a lower labour force participation; (iv) had lower average household incomes by some 7 to 11 per cent; (v) had a higher concentration of employed persons in intermediate, elementary, and unskilled occupations; (vi) had a much higher proportion of households with no car (21 per cent compared to 15.4 per cent); (vii) had a much higher proportion of Aboriginal and Torres Straight Islanders (2.2 per cent compared with 0.9 per cent); (viii) had a higher proportion of persons born in non-english speaking countries (28.8 per cent compared with 25.2 per cent).

Mr Leyshon concluded from this analysis that:- the Southpoint centre currently provides a vital alternative shopping opportunity for residents of the surrounding area compared with the major Westfield Eastgardens centre located approximately one kilometre to the north, the Maroubra Junction centre some 2.5 kms to the north east, and the other smaller neighbourhood strip centres at Matraville and Maroubra . Westfield Eastgardens was recently granted approval to expand by a further 18,758 m 2 ; the estimated effect of this on Southpoint is a reduction in its turnover by some $4.9 million per annum.

Mr Dowsett, having visited Southpoint regularly over many years, observed that the centre was in gradual decline. For example some two years ago car parking on the roof of the shopping centre had been closed off as not being necessary, whereas initially when the centre was better patronised that car parking area was well utilised.

Mr Dowsett said that for many years the Mayor and the Council positively supported the redevelopment of Southpoint. Concern was generated by the large number of Schedule 7 flats (up to some 200 - being two to three storeys with 6 to 10 flats in each complex); and with interconnecting walkways or access-ways that allowed many local residents to walk to Southpoint to do their weekly shopping. The loss of Southpoint would have serious detrimental consequences for a large number of residents in this precinct.

Mr Dowsett's concern is that the present proposal is both incompatible with the redevelopment of Southpoint, and prejudicial to it. These concerns encompassed:

(i) The potential for conflict between traffic generated by residents in the subject property and the increased traffic of the redeveloped Southpoint.

(ii) Residents of the subject new development would in all probability complain about the redevelopment of Southpoint both in relation to the impacts during construction, and thereafter from the additional perceived activity.

(iii) Noise and vibration emanating from the plant room on Southpoint would be likely to be the basis of ongoing complaints.

(iv) Although the increase in overshadowing (some 3 to 4 metres) from the proposed residential tower on Southpoint was not great, it would none the less be likely to be the basis of complaint by residents in the new development on the subject site.

These matters Mr Dowsett said, taken together, suggested that there was a proper basis for concern that if the proposal for the subject site proceeded, it could present a substantial risk to the redevelopment of Southpoint. Mr Leyshon has supported him in that view.

Mr Leyshon concluded that given the competition which Southpoint was going to confront in the next three to five years, it was imperative that that centre be upgraded to counter that competition, and remain viable. Redevelopment of Southpoint would only occur he said if residential units in the proposed tower could be developed; if that part of the redevelopment was jeopardised, he was of the view that it would be unlikely that the upgrading of Southpoint would proceed. Without redevelopment Southpoint would continue to slide to a point where it could no longer continue.

The concerns of Mr Dowsett are echoed in the various officers' reports in evidence. I accept that the Council has a genuine basis for its fear that the redevelopment of Southpoint could be jeopardised by the present proposal proceeding. The strategic importance of Southpoint to the residents in the immediate precinct surrounding it, can be readily understood. To lose a retail facility of this nature in close proximity to the dense surrounding residential development, would lead to major deleterious impacts on the residents of that precinct. Whist the Court must form its own opinion as to whether or not the subject proposal is consistent with the primary objective of the zoning (via cl 10(3) of the LEP), I am mindful of the caution expressed by McHugh JA in North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740. There his Honour dealt with a provision of the North Sydney PSO which required the Council to form an opinion as to what a reasonable period was for the carrying out of works for a particular purpose: The issue is one for judicial restraint. Where the council has expressed the view that the purpose can be carried into effect within a reasonable period, it would be a rare case where the Court could substitute its own opinion for that of the council. I leave aside cases of mala fides, improper motive, failing to take into account relevant considerations, or taking into account irrelevant considerations. (at 747 B)

For the forgoing reasons I have come to the view that the proposal does not meet the primary and secondary objectives of the zoning of the subject land, and does not comply with the objectives in cl 5 of the LEP. Specifically,

(i) the proposal does not "reinforce the historical development of business shopping locations" in the area; (ii) there is a substantial risk that if the proposal proceeds it would be "likely to prejudice the commercial/residential development" of the adjoining shopping centre; (iii) it does not enhance "the viability and general amenity" of commercial centres, and; (iv) nor does it encourage or contribute to economic growth and employment. For these reasons I would dismiss the appeal. However if this analysis and conclusion is wrong I should express my view on the arguments which were put in relation to the merits of the proposal.

The Statement of Issues raised five merit matters which were argued - noise and vibration from the plant room, noise from traffic on Bunnerong Road, solar access, public interest in relation to bulk, density, design and scale, and finally, Council's Draft Multi-Unit Housing Development Control Plan (the "DCP"). The final matter (the DCP) falls for consideration under "bulk, density, design and scale".

During the hearing it was suggested that incompatibility between the continued operation of Southpoint arising out of noise or vibrations emanating from the plant room, and residential use on the subject land, would be resolved by Southpoint being constrained to ameliorate those impacts and meet the residents concerns. Mr Hale submitted that this both demonstrated conflict of use which showed inconsistency with the primary objective of the zone, and also an erroneous approach in the face of the decision of the Court of Appeal in Inghams Enterprises v Kira Holdings (1996) 90 LGERA 68. If, at the time of considering whether consent should be granted, the incompatibility between the proposed development and that on an existing adjacent property cannot be resolved by the imposition of conditions upon the developer/applicant, the development should be refused. In my opinion it must be recognised that the decision maker considering the grant of a consent has no power to impose conditions upon a neighbouring land holder or his exercise of a legally permitted use on that land. (per Cole JA at p 77) At the outset of the hearing the complaint by Council was that the applicant had not provided sufficient information or analysis of what was perceived to be a real problem concerning noise and vibrations coming from the plant room, and the prospective effect of that nuisance on residents of the proposed development. That was of a type which warranted refusal of the application. Ultimately draft conditions which were tendered, and agreed to by the applicant, provided noise and vibration limits or constraints which would have to be met if the development proceeded, those limits or constraints purportedly capping the impact of any prospective nuisance to a level which was said to be acceptable. The effect of the agreement concerning that condition sought to remove this matter as an issue.

Whilst Council indicated that a satisfactory resolution could be achieved by including an appropriate performance criteria in the conditions of consent, in my view it still would result in totally unacceptable amenity for the residents of the units, particularly those either close to the plant room on Southpoint, or facing on to Bunnerong Road.

This is for the reason that in order to achieve the standards specified in the conditions either double-glazing, or glazing to thickness of 25 millimetres would be required. This may be acceptable for the southern most unit on each floor, where cross ventilation is otherwise possible; but in the case of all other units, the closing of doors and windows could become intolerable in the summer time where the units are not otherwise provided with mechanical ventilation.

However mechanical ventilation formed no part of the application although it was raised in evidence as a prospective solution, Mr Cooper the acoustic expert for the Council noted that it was "not provided for". Mr Palavidis, the acoustical consultant for the applicant, simply noted "that if it was required the applicant would be prepared to do it". The matter was left to rest in a manner which in my view was unsatisfactory. As no proposal came forward to address the issue, the evidence was left in a state where one could not be satisfied that the amenity of the occupants would be acceptable. Even if some form of mechanical ventilation was proposed, the provision of double-glazing, or glazing to 25 millimetres (which is extraordinarily thick for residential purposes), would still be problematic. 2. Traffic noise

The evidence concerning traffic noise was somewhat interlinked with that in relation to the noise and vibration from the plant room. The traffic noise about which there was concern came from the vehicles in Bunnerong Road, which was accepted by the applicant as a "major road" for the purposes of assessment pursuant to Australian Standard 2107:2000. The Standard nominates recommended designed sound levels (LAeq dB(A)) for living areas - 35 as satisfactory and 45 as maximum; and for sleeping areas 30 as satisfactory and 40 for maximum. Although Mr Palavidis referred to the Standard in his evidence, he also sought to interpolate the Standard's recommended design levels with EPA policy/criteria in relation to road traffic noise. The EPA sets the criteria for day time at 60 LAeq dB(A) and for night time at 50 LAeq dB(A) - figures well above those specified in the Australian Standard. Mr Palavidis said that experience suggested to him that for sleeping areas an acceptable noise level was 35 LAeq dB(A), and for living/working areas 45 LAeq dB(A). He said experience gained by him in relation to luxury hotels suggested that this "satisfactory level was at the point where some people start to become dissatisfied". Mr Palavidis concluded that what he found was satisfactory for residents of the Westin Hotel in George Street or the Bennelong Hotel at Circular Quay, would be satisfactory for residents in the proposed units on Bunnerong Road. I have difficulty in accepting that this would be so. This approach by Mr Palavidis is no doubt coloured by the evidence he gave that in some residential circumstances "quietness is a problem". How this could be so, simply escapes me.

A serious criticism was made of Mr Palavidis' approach by Mr Steven Cooper, the acoustical consultant for the Council. The criticisms he made of Mr Palavidis' assessment included:

(i) In relation to plant noise … there was an absence of any details of measurements taken by Mr Palavidis, when they were taken or where, or the actual readings themselves, such as to enable them to be checked.

(ii) That the EPA nominated criteria levels used by Mr Palavidis for road traffic noise did not correspond with those Mr Cooper was able to access in EPA material.

(iii) That Mr Palavidis nowhere provided details as to the actual levels of traffic noise, albeit he provided the levels he assessed as conclusions from those measurements; this, again, prevented Mr Cooper from doing any check of Mr Palavidis' conclusions.

(iv) The graph provided by Mr Palavidis as to the plant vibration levels was calibrated in decibels, where as the Australian Standard expresses vibration in linear terms - this, again, hampering any check by Mr Cooper; Mr Cooper does conclude however that the results provided by Mr Palavidis indicated that there was an excessive degree of vibration generated on the plant room facade. Overall Mr Cooper said that Mr Palavidis' report was dependant upon a number of assumptions which were not made out, and that there was a failure to provide the base data upon which that the conclusions that Mr Palavidis came to, could be checked. Notwithstanding Mr Cooper's report being served in accordance with the rules, the applicant failed to put further material forward from Mr Palavidis to meet these criticisms. Nor did the applicant supply raw data or material to enable Mr Cooper to make any of the checks he suggested ought be done given the wide discrepancies which were apparent on the face of Mr Palavidis' approach. This material or data was apparently available to Mr Palavidis in Court, but no attempt was made to rely upon it or put it in to evidence. Significantly, none of it was sought to be put to Mr Cooper in cross-examination to assuage his criticism.

Unfortunately in relation to both noise and vibration from the plant room, and traffic noise, the applicant proceeded on what appears to have been an erroneous assumption. Whist in the proceedings before Commissioner Roseth these matters were an issue, the Commissioner concluded: Mr Carter, an acoustic consultant, gave evidence in the applicant's case. He agreed that his investigations so far were inadequate. The Council proposed a condition requiring the submission of an acoustical assessment. The applicant accepted the condition, so this issue was resolved. (par 12 of the Commissioner's judgment) The approach that the issue could be "resolved by conditions" no doubt permeated the applicant's preparation and explains at least in part the absence of material of which Mr Cooper is critical. From comments made by Mr Goldsmith it was apparent that the applicant did not appreciate that these proceedings were a hearing de novo, and that whilst findings in earlier proceedings may be part of the history of the matter they were not determinative and did not excuse the need to adequately address the issues raised in these proceedings. The criticisms of Mr Cooper would lead to the conclusion that a sufficient or proper acoustical assessment had not been made; the assessment which Mr Palavidis provided was in my view inadequate to address the issues. Further, the solutions propounded (as I have earlier said) are themselves unacceptable given the impact that the glazing solution would have, namely the need to provide mechanical ventilation and the absence of that requirement being addressed.

It was also of significance that when Mr Cooper was cross-examined he provided evidence of his experience at locations close by other shopping centres. He gave a specific example of a shopping centre having to alter its trading pattern due to complaints by residents in relation to deliveries, loading and unloading, and the use of car park exits - all matters which would be relevant to the assessment of impacts on the proposed development, but which were in the main ignored. For example, whilst a loading dock on Southpoint is located in close proximity to the north-west corner of the subject site, no material in Mr Palavidis' assessment suggests that loading activities played any role in his assessment. It is well known that safety devices on trucks include a "beeper" which sounds whilst the vehicle is in reverse. From the view of the site it was apparent that that operation would occur no more than a few metres from bedrooms, living rooms and terraces of the three units proposed for the north-west corner of the subject site.

As with the noise and vibration from the plant room, the material (or lack there of) and analysis of impacts from traffic noise prevent any reasonably comfortable conclusion to be reached as to what the possible impacts are likely to be. Given that there are potentially serious (and unacceptable) impacts, the simple suggestion of acoustical upgrading of glazing without attention to mechanical ventilation would be sufficient reason to refuse the application. 3. Solar access

Council's senior town planner, Mr Silvio Falato gave evidence directed to this issue. He was initially of the opinion that sunlight would not be received to a minimum of 40 per cent of private space, for a minimum of two hours, at the winter solstice.

However upon being provided with shadow diagrams for the relevant time by Mr Ludvik, he conceded that this criteria was met, and accordingly he had no complaint about solar access for private open space.

However Mr Falato was also critical of the amount of solar access units would receive, internally, at the 21st of June. Although cross-examined on this aspect of his evidence, and agreeing that there would be greater solar access than he had originally assessed, he did not agree that in relation to internal sunlight, it would be adequate.

A shadow diagram of the existing shopping complex was tendered by the Council, but which was prepared for the applicant (exhibit L). It showed the effect, in terms of solar impact, of the high wall presently located along the northern boundary of the subject site (there was evidence that the shadows cast by any proposed residential tower would extend that shadow by some three metres or so, at noon); namely that at 9:00 am at the 21st of June the units on the north-east corner of the site would receive, in practical terms, a small slither of sunlight. At 3:00 pm, the units on the north-west corner receive none. Mr Ludvik's solar diagrams sought to demonstrate the effect on the eastern and western elevation of the units, such as to conclude that there was indeed adequate sunlight for the bottom most units, relevantly at 9:00 am and 3:00 pm. Those diagrams were to some extent unreliable (for example the effect of the eaves were shown on some units, whilst on others it wasn't), such that it is not possible in my view to conclude with any comfort that there would be adequate solar access for these units. 4. Public interest in relation to bulk, density, design and scale

There is a simple assessment available in relation to these concerns. The present proposal if constructed, would replicate a form of development analogous to the existing Schedule 7 flats in the area. Council's policy expressed by the implementation of the Draft DCP in relation to the 2(b) - Residential "B" zone, is that the permissible density of similar development, now, in that zone, is approximately half of what it used to be.

What the present proposal seeks to do is to develop up to the maximum FSR in the 3(a) zone, viz 1:1. Were the subject site zoned 2(b) - Residential "B", the FSR would be 0.5:1, and development consistent with the Draft DCP would result in an FSR which approximated that objective or standard.

Council's Draft Multi-Unit Housing DCP, although stated to apply to land zoned residential 2(b), has been applied by Council to all applications received since 1995 which related to residential developments of the present type. Under the DCP the present proposal provides 15 "medium" dwellings which, according to its formula, would require a site area of 2,025 m2 - the development site however is only 1,228 m2 which, according to the DCP's formula, would permit only 9 "small" dwellings or 6.5 "medium" dwellings (cl 1.3.1). The applicant through Mr Ludvik sought to justify the proposal by comparing it with the density of surrounding development - which surrounding development varies in density (m2/dwelling) between 77 m2/dwelling and 94 m2/dwelling. The subject proposal calculates at 82 m2/dwelling. This comparability with density in the surrounding area, Mr Ludvik opines, indicates conformity with that contemplated by the Draft DCP. That view however assumes that the Schedule 7 flats have been built in conformity with the DCP - which they plainly were not.

To the contrary Council seeks, through the DCP, to reduce what is plainly unacceptable density prevailing in what I might describe the "Schedule 7" precinct. That is the reason the LEP and Draft DCP both pursue a density approximately half that which exists in that precinct.

This approach by the Council is fortified by the Draft DCP also requiring site cover of no more than 40 per cent (cl 1.3.4). The present proposal, absent the basement car park covers some 47 per cent of the site, and when the car park is taken into account, it covers some 97 per cent of the site.

Mr Falato also noted that whilst the proposed landscape area (953 m2) only fell marginally short of the amount required under the DCP (cl 6.3.1 - which here would require 975 m2), none the less as the bulk of that area is under balconies, it would be over shadowed in winter and hence reduce its practical usefulness. It would not be "functional and useable" as required by the DCP, and thus in his view failed to meet that objective.

I am of the view that the Draft DCP should be had regard to in relation to the present application, and for the reasons I have referred to, the numerous breaches/non-compliances, which are not minor, demonstrate the unacceptability of the proposal.

For the forgoing reasons: 1. The application is dismissed. 2. The exhibits are to remain with the Court file for 28 days and then be returned to the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Kanne Pty Limited v Botany Bay City Council [2001] NSWLEC 163 APPLICANT Kanne Pty Limited PARTIES : RESPONDENT Botany Bay City Council FILE NUMBER(S) : 10073 of 2001 CORAM: McEwen AJ Development Application - Planning Instruments :- KEY ISSUES: Permissibility under LEP - primary and secondary objectives Merit considerations noise and vibration - solar access - density LEGISLATION CITED: Challister Ltd v Blacktown City Council (1992) 76 LGRA 10; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; CASES CITED: Hutcheson v Ryde Municipal Council (1969) 17 LGRA 45; North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 DATES OF HEARING: 9/07/2001, 10/07/2001, 11/07/2001 DATE OF JUDGMENT: 07/27/2001

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