Trivest Pty Ltd v The Council of the City of Sydney

CASES CITED: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Den Gillespies v Warringah Council [2002} NSWLEC 224

APPLICANT Mr C McEwen SC with Mr M Staunton, barrister SOLICITORS Gadens LEGAL REPRESENTATIVES: RESPONDENT Mr A Hawkes, solicitor SOLICITORS The Council of the City of Sydney

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10443 of 2010 Trivest Pty Ltd v The Council of the City of Sydney

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the Council of the City of Sydney of Development Application No. D/2010/79 for the internal fit-out and use of Suite 7, Building 7, 41-45 Bourke Street, Alexandria (the site) for activities associated with footwear and clothing, including presentation of products, office administration, training, research and development, product testing and evaluation, ancillary storage staff facilitates and amenities. 2 The contentions raised by the council relate principally to whether the proposed development is consistent with the zone objectives. The site 3 The site is rectangular in shape, with area of 18,910 sq m and a street frontage of 175 m to Bourke Street and 143 m to Huntley Street. The site contains 9 warehouse buildings that were constructed between 1918 and 1950. In 2007, development consent was granted for alterations, refurbishment and additions to the buildings on the site. The consent has largely been taken up and in accordance with the approval, development consent is required for the fit-out and use of the refurbished buildings.

Relevant planning controls 4 The site is zoned Industrial 4 under South Sydney Local Environmental Plan 1998 (LEP 1998). Clause 14 provides zoning controls for the Industrial 4 zone. Clause 14(1) provides objectives, cl 14(2) provides uses that do not require development consent and cl 14(3) provides uses that require development consent in addition to "Any other development not included in subclause (2)". Clause 14 does not provide any prohibited uses. Clause 10 provides that consent must not be granted unless the proposed development is consent with the objectives of the zone. 5 Clause 8 provides that in assessing any development application consideration must be taken of the goals and objectives in the document The Strategy for a Sustainable City of South Sydney. The zone objectives 6 Evidence for the council was provided by town planners, Mr Mark Solomon, for the council, and Mr Matthew Benson, for the applicant. Further evidence was provided by Mr Andrew Hack, for the council, and Ms Ellen Robertshaw, for the applicant. Mr Hack and Ms Robertshaw are also town planners, however, they specialise in economic assessment for retail development.

The relevant zone objective 7 The Industrial 4 zone has six objectives although only objective (a) was in dispute. Objective (a) states: (a) to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which, due to their type, nature, scale, transport requirements or impacts cannot reasonably be located in another zone and 8 Objective (a) has two limbs. The objective seeks to "facilitate and encourage" firstly, suitable types of industrial development ranging from general industrial to high technology industry or secondly, other uses which due to their type nature scale, transport requirements or impacts cannot be reasonably be located in another zone. The construction of objective (a) by the use of the word "or" does not require satisfaction of both limbs of the objective.

9 There was agreement that the proposed development did not satisfy the first limb of the objective but disagreement over whether the proposed development satisfies the second limb.

The proposal 10 Details of the proposed use evolved during the time the application was with the council. The details in the Statement of Environmental Effects were amended by correspondence from the applicant's consultants on 23 February 2010, 22 March 2010 and a Statement of Facts and Contentions In Reply filed on 29 July 2010. For clarity, the applicant tendered a composite summary of the proposed use. This stated: Corporate facility for the integrated purposes of: + showcasing-being presentation of multiple brands and products in a large scale retail style setting for the purposes of evaluation of the products and their marketing; displays to be evaluated by prospective and current franchisees RCG and other distributors. + offices-administration associated with showcasing and wholesaling activities of RCG; administration of corporate and retail activities of RCG; and administration of franchising operations. + training-training for franchisees including marketing strategies, holistic product display and presentation and corporate workshops and meeting. + research and development-market research and brand development. + product testing and evaluation-receiving interstate, intrastate and international products, testing and evaluation of stock and potential stocked items and in-store foot measuring equipment. + ancillary storage, staff facilities and amenities. These matters are associated with the wholesale distribution and manufacture of footwear and clothing in a campus style environment with a distinctive character within a large open plan floor area within a single building with convenient loading facilities and car parking to facilitate integration of the multiple activities . 11 Mr Benson provided further details on the operation of the proposed use. These details were: + The prospective tenant is involved in retailing apparel, principally footwear. + The prospective tenant operates a large chain of footwear stores (The Athletes Foot) and the distributor of a separate footwear and apparel brand (the Merrell brand). + The ground floor level would be used for showcasing the products in mock-up retail displays. That would allow the company to assess how it should display products in its shops and would also allow footwear manufacturers to showcase their products to the company. There would also be office uses at the ground level. The dominant use would be product showcasing. The floor area is around 720 sq m. The floor to ceiling heights are 3.5 m which (I understand) is a essential to the prospective tenant for the product showcasing function: + The first floor would be used for administrative offices. It also includes spacious breakout areas, which could be adaptively used for storage of products for in-house assessment and for products testing. The dominant use, however, would be administrative. The floor is area is around 690 square metres. + The mezzanine level would be used for in-house training rooms. This area has an area of around 230 sq m.

The evidence 12 Mr Solomon and Mr Benson provided a joint planning report in relation to objective (a). Mr Solomon relied on the fact that the proposal was not an industrial development, as set out on the fist limb of the objective, to support the refusal of the application. They disagreed on whether the proposed use would fall within the terms used in the second limb of the objective. 13 Mr Solomon states that the proposal does not contribute to a functional industrial area, as it is commercial in nature, has no association with generally industry, high technology industry, warehousing manufacturing or a distribution centre. Further, the location is not dependent upon it being in close proximity to related manufacturing or other associated service providers or customers. In Mr Solomon's opinion, no evidence has been provided to support the contention that the proposal could not be located in another zone. 14 Mr Hack states that the reference to "another zone" in objective (a) does not necessarily mean within the area of LEP 1998. He states that there are a plethora of alternative locations outside the area controlled by LEP 1998, such as the Sydney CBD, Botany Bay, North Sydney, Willoughby and Ryde local government areas that could accommodate the proposed development."

15 Mr Benson states that the proposal cannot be reasonably located in another zone. He adopts the position that the term "another zone" is a reference to other zones within LEP 1998. He identifies other zones in LEP 1998 where commercial premises are permissible with consent and concludes, for a number of reasons, that these zones are not suitable for the proposed use. Mr Benson identifies the characteristics of the site that make it suitable for the proposed development and states that they are not available in other zones. . These characteristics include: + There is a sufficient floor space to allow the prospective tenants activities to be co-located whilst providing an area having suitable floor to ceiling heights for the mock-up product showcasing component. + There would be easy access for light delivery vehicles, delivering small consignments, such as product samples without having to compete for such space. + There are no potential impacts to residential amenity associated with late working hours. + There is an approved cafe and restaurant bar that has been accepted by council on a conceptual basis as part of the whole of the site approval. These facilities will allow the prospective tenants to comfortably take clients or suppliers for informal meetings. + There are other tenancies within the site that would generally accommodate similar businesses and that the premises are arranged in a way that allows professionals from other businesses to comfortably interact. + The premises have a unique character due to the heritage buildings within the site, which is important to the prospective tenant. Being within the site with character buildings contributes to sense of identity of the business; and + The site has excellent access to the airport.

16 On this basis Mr Benson concludes that the proposed development satisfies the second limb of the objective (a). 17 Ms Robertshaw agrees with the conclusions of Mr Benson and supports the meaning of "another zone" as being another zone within LEP 1998. This is supported in her opinion by the council's decision to approve facilities such as the Red Bull Head Office and the Blue Scope Steel Office in the same complex as the proposed development.

Findings 18 Initially, and contrary to the evidence of Mr Solomon, the first limb of objective (a) creates no obligation to have any form of industrial activity notwithstanding the name of the zone. The words "or other land uses" within the objective clearly provides the opportunity to have other uses beyond industrial uses. However, "other land uses" can only satisfy the objective by consideration of their particular characteristics relating to: type, nature, scale, transport requirements or impacts (that) cannot reasonably be located in another zone. The type, nature, scale and transport requirements or impacts are matters to be considered but the objective does not prioritise these matters. It would be reasonable to accept that the weight to be given to each factor should be based on particular characteristics of the proposed use. 19 The use of the term "another zone" was in disagreement between the parties. The applicant's experts adopt the meaning of "another zone" as being within LEP 1998, whereas the council's experts adopt a broader meaning to include areas outside the boundaries of LEP 1998. 20 On this matter, and which underpins much of the evidence, I agree with the submissions of Mr McEwen SC, for the applicant that "another zone" must be the reference to LEP 1998 in the absence of any suggestion in the objective or LEP 1998 that it should refer to a wider area beyond LEP 1998. If the intent of the objective were to refer to zones outside LEP 1998 then the objective would have said so by using other words, such as "locality". 21 In this regard Mr Hack's sample of properties that could potentially accommodate the proposal within the boundaries of LEP 1998 was limited to five properties and after cross-examination of Mr Hack, I could not reasonably find that any of these properties would satisfy the locational and operational criteria identified by Mr Benson as being necessary for the proposed development. 22 Based on Mr Benson's description of the proposal, I am satisfied that the proposed use could not be seen as a typical commercial use. The use has particular characteristics (identified earlier in the judgment) that require specific characteristics, including an area of some 1,200 sq m, high floor to ceiling heights and convenient loading facilities. The operating hours of 7am to 7pm, seven days per week would also suggest that a location away from sensitive land uses, such as residential, would be desirable, if not necessary. 23 I also agree with Mr Benson that the ambience of the converted heritage buildings is a relevant consideration for a development seeking to create a positive image. This factor may not necessarily be a determinative factor but in this case, it nonetheless supports the use of the site by the applicant. 24 Given the particular characteristics of the proposal and the architectural plans that indicate relatively large areas for uses such as product showroom, research and development and product development, I am satisfied that the proposal, due to its type, nature, scale, transport requirements or impacts cannot reasonably be located in another zone and as such satisfies the second limb of objective (a). 25 It follows that the proposal is consistent with the relevant zone objective pursuant to cl 10 of LEP 1998, when considered against either test of consistency in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 or Den Gillespies v Warringah Council [2002} NSWLEC 224. 26 While Mr Solomon raised the issue of cl 8 and the need to consider the goals and objectives in The Strategy for a Sustainable City of South Sydney; having reviewed the extracts from this document in Mr Solomon's evidence, I am satisfied that it raises no issue that would suggest that the proposal should be rejected. Similarly there no issues associated with the heritage provisions in pt 4 div 1 of LEP 1998 that would support refusal of the application. Orders 27 The orders of the Court are: 1. The appeal is upheld. 2. Development Application No D/2010/79 for the fit-out and use of Suite 7, Building 7, 41-45 Bourke Street, Alexandria for activities associated with the footwear and clothing including presentation of products, office administration, training, research and development, product testing and evaluation, ancillary storage, staff facilities and amenities is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 10 and C.

      G T Brown
      Commissioner of the Court

ANNEXURE "A" D/2010/79 - 41-45 Bourke Road, ALEXANDRIA CONDITIONS OF CONSENT SCHEDULE 1A APPROVED DEVELOPMENT (1) APPROVED DEVELOPMENT (a) Development must be in accordance with the following drawings: Drawing Number Drawing Name Date 5656.01-701 Floor Plans - Partition Layout December 2009

and as amended by the conditions of this consent. (b) In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. (2) HOURS OF OPERATION - MINOR DEVELOPMENT The hours of operation are restricted to between 7:00am and 7:00pm, 7 days per week. (3) NOISE - GENERAL (a) The LAeq 15minutes noise level emitted from the use must not exceed 5dB above the background (LA90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8 k Hz inclusive) between the hours of 7.00am and 12.00 midnight when assessed at the boundary of any affected receiver. The background noise level must be measured in the absence of noise emitted from the use in accordance with Australian Standard AS 1055. (b) The LAeq 15minutes noise level emitted from the use must not exceed the background (LA90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8 k Hz inclusive) between the hours of 12.00 midnight and 7.00 am when assessed at the boundary of any affected receiver. The background noise level must be measured in the absence of noise emitted from the use in accordance with Australian Standard AS 1055. (c) The use of the premise must be controlled so that any emitted noise is at a level so as not to create and " offensive noise " as defined in the Protection of the Environment Operations Act 1997 to any affected receiver. (4) NOISE - MECHANICAL PLANT AND EQUIPMENT Noise associated with the use of mechanical plant and equipment must not give rise to any one or more of the following: (a) Transmission of " offensive noise " as defined in the Protection of the Environment Operations Act 1997 to any affected receiver. (b) A sound pressure level at the boundary of any affected receiver that exceeds the background (L A90, 15minutes ) noise level by more than 5dB. The background noise level must be measured in the absence of noise emitted from the use in accordance with Australian Standard AS1055. Note : The method of measurement of vibration being carried out in accordance with "assessing Vibration; Technical Guidelines" - DEC (EPA) AS1055 for sound level measurements. (5) SIGNS - SEPARATE DA REQUIRED A separate development application for any proposed signs additional to those approved as part of this consent (other than exempt or complying signs under Council's exempt and complying DCPs) must be submitted to and approved by Council prior to the erection or display of any such signs. (6) CARE OF BUILDING SURROUNDS In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building must ensure that the forecourt and the surrounds of the building including pavements and gutters are to be kept clean and free of litter at all times. (7) REMOVAL OF GRAFFITI The owner/manager of the site must be responsible for the removal of all graffiti from the building within 48 hours of its application.

SCHEDULE 1B PRIOR TO CONSTRUCTION CERTIFICATE/COMMENCEMENT OF WORK/HEALTH AND BUILDING Note: Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate. (8) NO DEMOLITION PRIOR TO A CONSTRUCTION CERTIFICATE Demolition or excavation must not commence until a Construction Certificate has been issued . (9) PARTITION WALLS ADJOINING WINDOWS Where internal partitions meet external walls they must abut window mullions, columns or other such building elements and not glazing. (10) BCA - NEW BUILDINGS WORKS - CLASS 2-9 BUILDINGS (a) Pursuant to Clause 98 of the Environmental Planning and Assessment Regulation 2000, the proposed building work must comply with the Building Code of Australia (BCA) including: (i) Provision for escape (access and egress) - Part D1; (ii) Access for people with disabilities - Part D3; Note : Compliance with the access provisions of Part D3 may necessitate design modifications prior to a construction certificate being issued. (iii) Fire fighting equipment - Part E1; (iv) Emergency lighting, exit signs and warning systems - Part E4; (v) Sanitary and other facilities - Part F2; (vi) Room sizes - Part F3; (vii) Light and ventilation - Part F4; (viii) Energy Efficiency - Air-conditioning and ventilation systems - Part J5; (ix) Energy Efficiency - Artificial lighting and power - Part J6; (x) Energy Efficiency - Hot water supply - Part J7; (b) If compliance with the deemed-to-satisfy provisions of the BCA and the matters listed in condition (a) above cannot be achieved, an alternative building solution in accordance with Part A0 of the BCA must be prepared by a suitably qualified and accredited person and be submitted to the Certifying Authority illustrating how the relevant performance requirements of the BCA are to be satisfied. Prior to a Construction Certificate being issued, the Certifying Authority must ensure that the building complies with the Building Code of Australia. (c) The BCA matters identified in (a) above are not an exhaustive list of conditions to verify compliance or non-compliance with the BCA. Any design amendments required to achieve compliance with the BCA must be submitted to Council. Significant amendments may require an application under Section 96 of the Act to be lodged with Council to amend this consent. Note : The provisions of Clause 94 of the Environmental Planning and Assessment Regulation 2000 have been considered in the assessment of the proposed development. (11) AIR HANDLING In the event of any process in any room being of such a nature that heat, excessive moisture, dangerous or noxious gases, fumes or other aerosols are given-off, an air handling system must be installed providing positive capture and removal of the effluents. The effluent must be discharged to atmosphere at a point that will not create a nuisance and located in a position complying with AS 1668.2. (12) BARRICADE PERMIT Where construction/building works require the use of a public place including a road or footpath, approval under Section 138 of the Roads Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council. (13) SYDNEY WATER CERTIFICATE (QUICK CHECK) (a) The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site www.sydneywater.com.au , (see Building Developing and Plumbing then Quick Check) or telephone 13 20 92. (b) The consent authority or a Certifying Authority must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the commencement of work. (14) WASTE AND RECYCLING MANAGEMENT - MINOR The proposal must comply with the relevant provisions of Council's Policy for Waste Minimisation in New Developments 2005 which requires facilities to minimise and manage waste and recycling generated by the proposal.

SCHEDULE 1C DURING CONSTRUCTION/PRIOR TO OCCUPATION/COMPLETION (15) OCCUPATION CERTIFICATE TO BE SUBMITTED An Occupation Certificate must be obtained from the Principal Certifying Authority and a copy submitted to Council prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. (16) HOURS OF WORK AND NOISE - OUTSIDE CBD The hours of construction and work on the development must be as follows: (a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30am and 5.30pm on Mondays to Fridays, inclusive, and 7.30am and 3.30pm on Saturdays, with safety inspections being permitted at 7.00am on work days, and no work must be carried out on Sundays or public holidays. (b) All work, including demolition, excavation and building work must comply with the City of Sydney Building Sites Noise Code and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites". (17) LOADING AND UNLOADING DURING CONSTRUCTION The following requirements apply: (a) All loading and unloading associated with construction activity must be accommodated on site. (b) If, during excavation, it is not feasible for loading and unloading to take place on site, a Works Zone on the street may be considered by Council. (c) A Works Zone may be required if loading and unloading is not possible on site. If a Works Zone is warranted an application must be made to Council at least 8 weeks prior to commencement of work on the site. An approval for a Works Zone may be given for a specific period and certain hours of the days to meet the particular need for the site for such facilities at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities. (d) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level. (e) The structural design of the building must allow the basement and/or the ground floor to be used as a loading and unloading area for the construction of the remainder of the development. (18) NO OBSTRUCTION OF PUBLIC WAY The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of a notice by Council to stop all work on site.

SCHEDULE 2 PRESCRIBED CONDITIONS The prescribed conditions in accordance with Division 8A of the Environmental Planning and Assessment Regulation 2000 apply: Clause 98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 Clause 98A Erection of signs Clause 98B Notification of Home Building Act 1989 requirements Clause 98C Conditions relating to entertainment venues Clause 98D Conditions relating to maximum capacity signage Clause 98E Conditions relating to shoring and adequacy of adjoining property Refer to the NSW State legislation for full text of the clauses under Division 8A of the Environmental Planning and Assessment Regulation 2000. This can be accessed at: http://www.legislation.nsw.gov.au

  G T Brown
  Commissioner of the Court

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.