Posted on October 11, 2016 by
The Balmain Leagues Club case
Axiomatically, planning law is not troubled by the identity of the applicant, much less any background or history the applicant might have. However, the recent decision of the Land & Environment Court in the Balmain Leagues Club case indicates that there may be a small category of cases where the identity of the applicant and their involvement with the amendment to planning instruments may be a legitimate consideration for the Court.
The Balmain Leagues Club case
For decades, the property at 138 to 156 Victoria Road, Rozelle and its environs (Site) had been the home of the Balmain Tigers, one of the foundation clubs of the New South Wales Rugby League. In 2008, following intense lobbying by the Club, Leichhardt Municipal Council (as it then was) resolved to seek a site specific rezoning of the Site ostensibly to ensure that the Tigers retained a home.
The Club sold the Site for $1 in 2009 (the developer also took on the Club’s debts, worth more than $20 million). The Court determination, which is recorded under the name Urbis v Inner West Council  NSWLEC 1444 is the proponent’s third attempt to secure an approval for the Site.
The current owner’s first application was made in 2009 to the JRPP. It was refused, chiefly on traffic grounds. The next was made in 2014 to the PAC. It was refused on a variety of merits grounds.
The application the subject of this judgement was also made to the JRPP, but the applicant chose to take the matter to the Court as a deemed refusal in the Court’s Class One jurisdiction. The JRPP declined to deal with the appeal, leaving it to the Council to defend the appeal. The Council’s instructions were to ensure that any proposal was consistent with the planning instruments for the Site.
The application, like previous applications, was for a mixed use development involving residential and commercial uses; a sub ground car park; and a space set aside for a registered club.
The other grounds
Council’s amended Statement of Facts and Contentions identified a number of merits grounds. These were:
- did the development contribute to the vibrancy and prosperity of the Rozelle Commercial Centre?
- does the development present a high quality transition to the existing streetscape?
- is the development well designed?
- does the development’s traffic generation have unacceptable impacts on the surrounding streets?
- is the pedestrian bridge required by the VPA satisfactory?
Commissioner Tuor found in favour of the Council and its experts on each of these contentions, and these were the primary justification for the refusal.
Long term viability of the Balmain Leagues Club on the site
Perhaps the most interesting part of the judgement concerns the Commissioner’s view that the proposal failed “to promote the long term viability of the Balmain Leagues Club on the site for the benefit of the local community“. This unusual requirement found its way into the Development Control Plan by way of the site specific provisions of the Club’s rezoning for the Site.
The rezoning had been heavily supported by the Club’s membership, variously citing the need to find a permanent home for the Club, or guaranteeing the Club’s long term viability. The planning instruments which were finally approved had only two references to this objective: the amendment to the 2000 LEP required that “the floor space for all clubs on the site (does not) exceed 0.5:1.0“. “Club” was defined to mean a club under the Registered Clubs Act 1976.
This reference in the LEP to a club was not specific to the Balmain Leagues Club. Indeed, an outsider reading it would assume that one or more clubs were able to take up occupancy.
The reference became specific with the control mentioned above, set out at D1.4 as part of the Site Specific DCP.
Commissioner Tuor herself recognised that the identity of the applicant, and its relationship to the Club would not normally be a matter to trouble her. Two things appeared to force her hand (at paragraph 126):
Planning is not usually concerned about the user but rather the use (see Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408) and the zoning in LEP 2000 refers to a generic “club” use. However, the genesis of the controls and the requirements of the DCP relate not just to a generic club but specifically to the Balmain Leagues Club and extend the principles in Jonah. (my emphasis)
The other factor concerned the attitude of the parties to the question of the DCP requirement. At paragraph 127:
The applicant generally accepted the proposition that, while the Court would not normally concern itself with the user of a development, because of the way LEP 2000 was prepared and the requirement in DCP 2000 to promote the long term viability of the Balmain Leagues Club on the site, it is a valid planning consideration. Furthermore, to be satisfied that this development will be promoting the long term viability of the Club, the Court should be satisfied that the GFA provided for club use will be occupied by the Balmain Leagues Club for its long term viable usage.
The Commissioner then carefully considered the long term lease which the proponent argued was available to the Club should consent be granted. The Commissioner noted that the lease, and other agreements subsequently varying the “agreement” between the proponent and the Club, had reduced the area set aside for the Club.
The Gross Floor Area (GFA) set aside for the Club under the LEP should be no more than 0.5:1.0. This allowed for a club with up to 3,650 sq meters of floor area. However, the area set aside in the proposal was significantly less. The minimum amount was 2,000 sq meters. Was this sufficient? The Commissioner looked over the various agreements and deeds between the Club and the proponent and concluded she entertained “doubts about the area to be provided for use by the Balmain Leagues Club to promote its long term viability that would need to be addressed before any consent could be granted” (at paragraph 143).
The Commissioner did not find that the club space was unviable. She merely noted that she had concerns about its viability.
Is Jonah relevant?
From the quotes above you will see the Commissioner has referred to the Jonah case to support the proposition that planning law generally is not concerned with the identity or the history of the applicant.
Jonah involved a section 96 modification where the Council wanted to plead the issue of the applicant’s past alleged breaches of planning law as a reason to refuse, or at least condition, the application.
As the Commissioner said, planning law is concerned with use, not the user. The past alleged wrong doer might leave the property and the use to which the land is put will remain. Therefore the wrong doing should be the subject of its own enforcement or criminal regime, not the planning regime.
Jonah is the normal case cited to support the proposition that the Court is not concerned with the identity of the applicant, or more specifically with any alleged past wrong doings of the applicant.
In this case the planning instruments had been altered for a specific purpose. There is no question of wrong doing. No party to the debate in 2008, when the Council determined to seek the spot rezoning, could doubt that it was the stated intention of the Club, the Council and the developer that the Club should have a permanent home.
Lessons for Councils
Leichhardt Council is not the first, and will not be the last Council to be persuaded into amending planning controls for a community purpose. Whether it is amending the zoning to advantage a sports Club, as here, or assisting the local RSL, bowling club, or Masonic Centre in rezoning their club space to secure a better price from a developer or a greater return to the Club’s coffers, Councils are often asked to change planning law to “help” worthy local groups.
If asked to assist, Council should ensure that the change to planning law will actually result in an amendment which will secure the stated objective to improve the community group’s lot. The Urbis decision will assist Councils which decide to “help” clubs and local groups in this way.
A link to the case is here.
For further information about the case, or any issues raised in this post, please contact Lindsay Taylor Lawyers on 02 8235 9700.