Re Applications By Gregory's (Properties) Pty Limited To Vary the Provisions of the Crown Lease of Blocks 8 and 9, Section 21, Division of Braddon In the Australian Capital Territory and Re Section 11a of the City Area Leases [1989] ACTSC 22 (5 May 1989)

SUPREME COURT OF THE ACT

IN THE MATTER of Applications by GREGORY'S (PROPERTIES) PTY. LIMITED
to vary the provisions of the Crown Lease of Blocks 8 and 9, Section
21, Division of Braddon in the Australian Capital Territory.
AND IN THE MATTER of Section 11A of the City Area Leases Ordinance 1936
S.C. Nos. 761 and 1404 of 1988
Town and Country Planning

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Town and Country Planning - City Area Leases Ordinance 1936 - application for variation of purpose clause of lease from Commonwealth under s.11A - principles applicable - whether proposed change of use to commercial use is a reasonable use - exercise of court's discretion conferred by s.11A - whether amenity of local residents adversely affected - question of "planning blight" - weight to be given to fact that current use supported by recent NCDC policy plans.

Morpath Pty Ltd v. ACT Youth Accommodation Group Inc. and Others (1987) 74 ALR 121

HEARING

CANBERRA
5:5:1989

ORDER

Provisionally that the Crown Lease of Block 8, Section 21, Division of Braddon being the whole of the land contained in Certificate of Title Volume 450 Folio 15 (formerly Crown Lease Volume 102 Folio 32) be varied by the deletion of Clause 1(e) of the said Crown Lease in relation to the purpose for which the land subject to the lease may be used and the substitution of the following clause:-
"To use the said land for one or more of the

following purposes:
(a) offices
(b) professional suites
PROVIDED ALWAYS THAT
1. The gross floor area of the building or
buildings on the land shall not exceed 460
square metres.
2. Carparking shall be provided and maintained
sufficient to accommodate one vehicle per 26
square metres of gross floor area.
3. The maximum height of the building or
buildings shall be two storeys."

DECISION

These are two applications by Gregory's (Properties) Pty Limited brought pursuant to s.11A of the City Area Leases Ordinance 1936 (the Ordinance) to vary the purposes clauses in Crown leases of Blocks 8 and 9, Section 21, Division of Braddon. The leases presently restrict the use of the land "for residential purposes". The applications seek a variation of the purposes clauses so that the land may be used for one or more of the following purposes:

"(a) offices
(b) professional suites
(c) carparking
PROVIDED ALWAYS THAT
1.The gross floor area of the building or buildings
on the land shall not exceed 460 square metres.
2.Carparking shall be provided and maintained
sufficient to accommodate one vehicle per 26
square metres of gross floor area.
3.The maximum height of the building or buildings
shall be two storeys."

2. During the course of the hearing of the applications the applicant applied to amend the applications so as to delete carparking as one of the purposes sought by the variation. There was no objection to that application and leave was granted accordingly to amend the applications in that respect.

3. The relevant parts of s.11A of the Ordinance read:

"11A. (1) Notwithstanding anything contained in
this Ordinance, the Supreme Court of the Australian
Capital Territory may, subject to this section, on the
application of the lessee (in this section referred to
as the "application for variation"), vary any
provision, covenant or condition of a lease in relation
to the purpose for which the land subject to the lease
may be used.
(2) No such variation shall be made -
(a) unless the Court is satisfied that there are such
circumstances existing as in the opinion of the
Court make it desirable to vary the provision,
covenant or condition in order that the reasonable
user of the land should not be impeded; or
(b) if, not later than seven days before the day for
hearing named in the notice of motion filed by the
applicant in pursuance of this ssection, a
certificate is filed by the Minister with the
Registrar of the Court stating that, in his
opinion, the variation sought would be
inconsistent with the National Capital Plan, the
Territory Plan or an NCDC policy, within the
meaning of Part III, Part IV and Part X,
respectively, of the Australian Capital Territory
(Planning and Land Management) Act 1988.

4. The Minister has not filed a statutory certificate pursuant to s.11A(2)(b) of the Ordinance relating to the proposed variation. The Minister appeared by counsel on the hearing of the application to assist the court. The Minister did not support either the applications or the objection thereto.

5. It was common ground on the hearing of the applications that all the formalities required by the Ordinance have been complied with.

6. There was but one objector who had been given leave to be heard in opposition to the applications, namely Mr John Denison McMillan of 30 Torrens Street, Braddon, which is Block 3, Section 22, Braddon. He and his wife are the lessees under the Crown lease and have lived in the house on those premises since February 1979. They have two young children also living in the house. The McMillan property is directly opposite Block 8, Section 21, Braddon, which is one of the properties which are the subject of the applications for variation of the purpose clause.

7. The subject blocks are on the western side of Torrens Street, Braddon, in what is known as Section 21, Braddon. Section 21 is bordered to the north by Girrahween Street, to the west by Lonsdale Street, and to the south by Elouera Street. On each block is constructed an ageing single-dwelling red brick house.

8. The applicant purchased Block 8, Section 21, Braddon, on 28 June 1973, and Block 9 on 4 April 1973. Its proposal is to demolish the two dwellings thereon and erect new office buildings designed by Mr Neil Renfree, an architect engaged in that behalf.

9. Plans of the new buildings were put in evidence and I am satisfied on the evidence that when constructed they will comply with the Civic Centre Policy Plan issued in January 1989 by the Interim Territory Planning Authority. Both new buildings will be two storey office buildings essentially residential in character. On Block 8 the walls of the building will be bagged and white-painted brickwork which will match a number of other existing residential buildings along Torrens Street. On Block 9 the building will consist of red clay faced brick which will match the existing building and will be similar to the building on Block 11. The roof on both buildings will be pitched and tiled, terracotta roof tiles will be used and will blend in with the current roofing in Torrens Street. Both buildings will have hipped roofs identical to existing roofing at a pitch similar to the existing residences. The windows of both buildings will be domestic in character and thus blend in with the residential nature of the street. Courtyards and associated landscaping will be used to help give the impression of buildings residential in scale and appearance. The landscape from the buildings to the streetfront will be sympathetic with adjacent dwellings. The driveways will be situated at the north and south of each building, thus ensuring that the buildings are sited further from the existing residences than required by the development plan. The existing street trees, which are well established pinoaks on the nature strip on either side of the street, will not be disturbed. No amalgamation of the buildings can occur. In general, the buildings will both have their own character but will be constructed so that they blend into the residential nature of the street.

10. Blocks 1-9, Section 21, Braddon, when originally auctioned on 12 December 1924, had the following use:

"For the main purpose of an industry (other than a
noxious trade) employing not more than 25 employees and
for any purpose subsidiary thereto such as a residence
or shop."

11. None of the blocks in this section was sold at the auction. They were disposed of at a later date with the initial purpose clauses being for "residential purposes only". It is only in the last five years that applications for variation of the residential purposes clauses have been granted. Consequently, to the south of Blocks 8 and 9, Section 21, Braddon, substantial commercial development has taken place in Section 29. There is only one residential property remaining in Blocks 1-9, Section 29, Braddon. All the other blocks now contain commercial development, some of which span over two or more blocks and other commercial buildings are in the course of construction.

12. Section 21, Blocks 4 and 5 have already had their purposes clauses changed to "offices, professional suites and carparking", and an application has been lodged and is awaiting hearing in this court in respect of Block 7 for a similar variation. A commercial building is in the course of construction on Block 5. The western side of Section 21 has been commercially developed, the blocks to the rear of Blocks 8 and 9, Section 21, and fronting Lonsdale Street are occupied by an associated company of the applicant and are used as a car display, service and sales yard. On the eastern side of Torrens Street, where Mr McMillan lives, there are residential properties and no commercial development whatever.

13. Mr Robin McMahon Thompson, General Manager of Gregory's Motors Pty Ltd and an employee of the applicant, gave evidence, which I accept, concerning the use to which the applicant proposes to put the commercial buildings once constructed on Blocks 8 and 9 if these applications are successful. In his affidavit of 23 March 1989 he swore that the applicant intends to transfer five employees currently housed in cramped offices in the Gregory's Motors building on Blocks 15 and 16, Section 21, Braddon, in Lonsdale Street, into one of the new buildings. These five people are employed by Lakeside Investments, which is an associated company of the applicant and which lends money on mortgage. The move would involve the employment of two additional staff by Lakeside Investments, making a total of seven staff to be accommodated in the new buildings. Parking spaces will be provided for those employees on the subject land.

14. He said in cross-examination that the applicant proposes to retain ownership of the commercial buildings to be constructed and lease the office space not required for those seven employees. The proposed lessees would be engaged in businesses compatible with the rest of the businesses in the street, e.g. solicitors or other professional people. The business of Lakeside Investments does not involve regular contact with members of the public except for two or three people per day. It will not be necessary for Lakeside Investments to have daily contact with other aspects of the applicant's business in Lonsdale Street.

15. The subject land, in common with other land in Braddon, has been the subject of planning proposals by the National Capital Development Commission (NCDC) and more recently by the Interim Territory Planning Authority. The planning policy and development intentions for the subject land were established by the NCDC in a document entitled "Braddon - Section 21, Blocks 1-12 - Policy Development Plan - September 1986". The land uses for the subject land were then identified as "office and residential uses".

16. In November 1987 the NCDC released for public comment a document entitled "Civic Centre Canberra Policy Plan - Implementation Plan - Draft for Discussion - November 1987". The area covered by the draft plan included the subject land in Section 21. After considering responses to the draft plan the NCDC released a document entitled "Civic Centre Canberra Policy Plan January 1989". This document superseded the September 1986 policy plan referred to above and identified the land uses permitted in Sections 21 and 29 (referred to as Precincts 5(a) and 5(b), Braddon - Torrens Street) as offices/professional suites and/or residential social-community facility. The main objective of the land use policies for Torrens Street, Section 29, Blocks 1-8 and 10 and 11, and Section 21, Blocks 1-12 was expressed to be to allow small scale offices and/or residential development in close proximity to the central business district.

17. It is unnecessary to trace the legislative provisions which came into effect on 31 January 1989 following the abolition of the NCDC and the establishment of the Interim Territory Planning Authority. Suffice it to say that the land use policies then in force are to continue to have force and effect from January 1989. Accordingly, the current planning policy for the use and development of Section 21, Braddon, Blocks 1-12 is as contained in the Civic Centre Canberra Policy Plan January 1989, which in addition to specifying a number of development guidelines, adopts and incorporates the development plan of September 1986. The current policy plan for Section 22 is for it to remain as standard residential.

18. In his notice of intention to oppose the application the objector raised the following grounds of objection:

"1. The covenant in paragraph (e) of clause 1 of the
Crown Lease of the land which is the subject of
the said application provides that the said land
may be used 'for residential purposes only'. The
reasonable user of the land is not impeded by the
said covenant at the present time, and there are
no circumstances existing such that the said
covenant will impede the reasonable user of the
land in the foreseeable future.
2. The use of the land for the purpose of 'offices/
professional suites/carparking', would not be a
reasonable user of the land.
3. It is not desirable that the said covenant be
varied to permit the land to be used for the
purpose of offices/professional
suites/carparking', as an extensive and possibly
indefinite range of activities could then be
undertaken on the land, and many of those
activities would be incompatible with the
reasonable user of the land and the reasonable
user of other land in Blocks 1-12 Section 21
Division of Braddon and Section 22 of the same
Division.
4. It is not desirable that the said covenant be
varied to permit the said land to be used for the
purpose of 'offices/professional
suites/carparking' and the land could then be
developed in a way that would be inconsistent with
the 'Policy Plan Development Plan, Blocks 1-12,
Section 21 Braddon', issued by the National
Capital Development Commission in September 1986'.
5. It is not desirable that the said covenant be
varied to permit the land to be used for the
purpose of 'offices/ professional
suites/carparking' as such a variation at this
time would be contrary to good town planning
practices.
6. It is not desirable to vary the said covenant
because there is already an excessive amount of
space available for offices and professional
suites within the Civic area at Canberra.
7. It is not desirable to grant the application for
variation because implementation of any
redevelopment of the said land would be
inconsistent with 'Metropolitan Canberra Policy
Plan Development Plan' issued by the National
Capital Development Commission in July 1984.
8. Use of the land for the purposes of offices,
professional suites, and carparking would
seriously and adversely affect:
(a) The residential amenity of the suburb of
Braddon and in particular the residential
amenity of the opponent and of other
residents in Sections 21 and 22 Braddon.
(b) The physical, social and residential
environment of the suburb of Braddon, and in
particular of Sections 21 and 22 Braddon.
(c) Traffic and pedestrian safety on adjacent
residential streets.
9. It is not desirable that the said covenant be
varied to permit the land to be used for the
purpose of 'offices/professional suites/
carparking' as such a variation at this time would
endanger the stability and amenity of the
residential environment of adjacent residential
areas of Braddon (and in particular of Sections 21
and 22 Braddon) by providing an incentive to
people to purchase residential properties in the
said areas with a view to future redevelopment of
those properties for commercial purposes."

19. The relevant parts of Mr McMillan's affidavit in opposition to the applications read:

"2. I live in a house which is situated at 30 Torrens
Street Braddon. My wife and I are lessees of the
house under a Crown lease which provides that the
house can be used for residential purposes only.
I have lived in the house since February 1979. My
wife and two young children also live in the
house. At the time that my wife and I bought the
house we made informal inquiries that caused me to
believe that the houses in Section 21 and 22
Braddon that were then being used for residential
use would continue to be used for residential
purposes for an indefinite period. Since my wife
and I have lived in the house we have carried out
extensive renovation of the structure of the house
and also effected considerable improvements to the
garden and grounds of the house.
3. The house is situated in Section 22 Braddon, in
that part of Torrens Street which is directly
opposite Section 22 Braddon. The house is
situated approximately 20 to 30 metres from the
property which is the subject of the within
application.
4. I believe that if the proposed variation of the
lease purpose clause of the property the subject
of this application is granted, and if that
property is then used for the purpose of offices
or professional suites or carparking, that those
changes will seriously and adversely affect my
residential amenity and will adversely reduce my
full enjoyment of the rights, privileges and
entitlements of the house inherent under the terms
of the Crown Lease relating to the house. In
particular, I believe that the said changes will
affect me in the following ways:
(a) By destroying the existing character of that
part of Torrens Street which adjoins Sections
21 and 22 Braddon as a residential area in
which all houses are used for residential
purposes;
(b) By creating an undesirable and incompatible
mix of commercial and residential properties
in the same street in close proximity to or
adjacent to each other;
(c) By attracting additional commuter traffic to
Torrens Street, and thereby causing an
increased volume of traffic in the street and
endangering the safety of those who reside in
the street;
(d) By impairing the visual amenity which is
currently available from the house, by reason
of the circumstances that the house would
face commercial premises, and would be
exposed to more commuter traffic;
(e) By endangering the residential character of
Section 22 Braddon, by providing a financial
incentive to people to purchase properties in
Section 22 with a view to future
redevelopment of those properties for
commercial purposes;
(f) By endangering the residential quality of
Section 22 Braddon, by reason of the
circumstance that the lessees of properties
in Section 22 Braddon who are not resident in
those properties are likely to allow those
properties to fall into a state of
dilapidation in the belief that future
redevelopment of those properties for
commercial purposes may thereby be more
likely to occur;
(g) By endangering the security of the properties
in Section 21 and 22 Braddon that are used
for residential purposes, by reason of the
circumstance that those properties will be
more exposed to criminal intrusion on
evenings and weekends when the properties in
Torrens Street that are used for commercial
purposes are not occupied;
(h) By causing an increase in the municipal rates
payable in respect of properties in Section
22 Braddon, as a consequence of the
speculation referred to in sub-paragraph (e)
above;
(i) By causing a reduction in the sale value of
the house, by reason of the circumstance that
it will be situated directly opposite
properties that are being used for commercial
purposes.

20. Mr McMillan also tendered in evidence three photographs (Exhibits A, B and C). Exhibit A depicts the view from the rear of Block 9, Section 21 into Gregorys Motors sales yard and service area and vehicles parked in the backyard of Block 8. Exhibit B depicts the sealed backyard of Block 8. Exhibit C depicts parked vehicles on the nature strip and one vehicle on the western side of Torrens Stret adjacent to Blocks 8 and 9.

21. In cross-examination Mr McMillan conceded that the distance from his house to the existing house on Block 9 is about 50 metres and the distance from the front boundary of his premises to the front boundary of Block 9 is approximately 30 metres. Further he said in cross-examination that, having viewed the sketch plans prepared by the architect, he had no particular complaint about the design or architectural features of the premises to be constructed. He said that it was difficult to speculate about any increased noise emanating from the premises, but he did not expect any. He expressed his apprehension about the fact that commercial use of Blocks 8 and 9 may lead to unacceptable commercial traffic in Torrens Street and the prospect of fire alarms going off in the commercial premises once constructed.

22. He said that the family's sleeping accommodation is at the back of his residence. He said he had no particular apprehension about a discotheque being constructed. Further he said that the proposed developments would be a visual improvement on the residences on Blocks 8 and 9 and the view of the rear of Gregorys Motors premises would be obliterated. He said, however, that it would be better to have a three-storey residential development. He pointed out that he would lose his view of Black Mountain. Rather than commercial development his preference would be for two-storey residential development with a buffer between the rear of the two-storey residential development and Gregorys Motors in Lonsdale Street. Such a buffer would lessen noise and the visual affront. He said he had no apprehension about being overlooked by occupants of office buildings. He conceded that the market has not expressed much interest in putting the western side of Torrens Street to residential use.

23. He expressed his concern about "creeping blight" and said that the existing policy plan for Section 22, which is residential, will not prevent it. He recognised that commercial development in Section 22 cannot be approved without a change in policy. He agreed that the existing pinoaks are a pleasing feature of the street. He accepted the evidence of Mr Wilkinson that the value of his own property had increased since the redevelopment in Torrens Street had commenced. In that respect he conceded he was not suffering any hardship or any depreciation of his property. He recognised that in the long term the die is cast so far as Torrens Street is concerned. He recognised that commercial development in all of Section 21 is likely and in Section 22 is possible. His point was that the development should only occur when appropriate and not when it affects elderly people and long term residents in the area.

24. In support of his opposition Mr McMillan relied upon the affidavit evidence of Mrs Sheila James of 23 Torrens Street, Braddon, also known as Block 12, Section 21, Braddon. Mrs James lives three houses distant from Block 9 and has done so for over 60 years. She first lived in the house with her husband, Dr John James, and their children. She is now a widow and lives in the house by herself. She said in her affidavit that she is aware of the Civic Centre Canberra Policy Plan January 1989 but it is not her intention to take advantage of the opportunity to seek a variation of the lease purpose clause of the house. She intends to reside in the house for as long as she is able to do so.

25. She expressed her concern that the proposed variation of the lease purpose clause of Block 9, Section 21, Braddon, will set a precedent that could lead to variation of the purpose clause of other properties on Blocks 1-12, Section 21. She is concerned that such a process could have the result that she could be living next to a commercial office building or even that she could be forced by circumstances to leave her house. She has lived in the house for such a long time that she is accustomed to it and to having a residential property next to her and other amenities in the area that are so close and which she regularly uses. She would not like to feel compelled to move to a different environment. She would not like to live next door to a commercial office block. If a two-storey office building is built alongside her, she is concerned that the sun will be taken away from her property. She is also concerned about losing her privacy, security, the extra traffic and noise that would be generated by an office building and by the inconvenience arising from people occasionally parking in her driveway when visiting the office building. She believes that her residential life would be less pleasant if she did not have a neighbour living next door.

26. Mr McMillan also relied upon the affidavit evidence of Mrs Valma Doran, who lives next door to Mrs James at 25 Torrens Street, also known as Block 11, Section 21, Braddon, which is two houses distant from Block 9, Section 21. She expressed in her affidavit similar concerns to those expressed by Mrs James and added that the aesthetic outlook from her house would not be as pleasant as it is now. She may suffer a loss of light in her house if there is shading from an adjacent office block, increased garbage created by an office block could be unpleasant both as to the smell and the noise that would be associated with it, rates payable on her property would increase to the point where they would become a real financial burden and her quiet enjoyment of her house would be interrupted by regular contacts from real estate institutions and developers. Neither Mrs James nor Mrs Doran gave viva voce evidence.

27. The relevant principles governing the exercise of the court's discretion under s.11A have been laid down by the Federal Court in Morpath Pty Ltd v. ACT Youth Accommodation Group Inc. and Others (1987) 74 ALR 121. Beaumont J., with whom Fisher and Davies JJ. concurred, said at p 139-140:

"The structure of s.11A requires the Court to proceed in
two stages. The first stage is to inquire whether the
grounds for jurisdiction described in s.11A(2) are
satisfied. The Court must be satisfied that it is
desirable to vary the provision in order that the
reasonable user of the land should not be impeded. As
has been said, this inquiry will involve an inquiry
into the town planning aspects of the proposed new
user. Where, as here, the proposal accords with the
Commission's current plans for the land, it will
ordinarily follow that what is proposed should be
regarded as a reasonable use. If so, the grounds for
jurisdiction in s.11A(2) will be made out."

And at p 140, his Honour said:

"Assuming the grounds for jurisdiction specified in
s.11A(2) are made out positively, in the case of
para.(a) and negatively in the case of para.(b), the
Court then proceeds to the second stage, i.e., the
question of the exercise of the wide statutory
discretion conferred by s.11A(1). As has been said,
this discretion should be exercised in the public
interest, balancing society's interest in the fullest
use of land against the interests of local occupants in
their amenities. Ordinarily, town planning
considerations will be prominent in any such inquiry.
Of course, the Court is not a planning authority. But
this is not to say that in the exercise of a judicial
discretion the Court should disregard town planning
considerations. On the contrary, any consideration of
the public interest requires that significant weight be
given to the current plans of the Commission as the
public body charged with that responsibility."

28. Mr McMillan did not dispute the authority of Morpath Pty Ltd v. ACT Youth Accommodation Group Inc. and Ors and the statements of principle set out above. His first submission was that the Civic Centre Canberra Policy Plan issued on 13 January 1989 states that the land uses permitted in Precincts 5(a) and (b) are:

- office/professional suites and/or
- residential
- social/community facility.

29. He referred to the following passage in the report of Mr Peter Cosier, planning consultant, which was referred to in an affidavit by Mr Cosier sworn on 30 March 1989 and relied upon by the applicant:

"The request to the court is to vary the lease to permit
'offices, professional suites and carparking'. Such
uses (other than carparking) are permissible under the
current Policy Plan and should, therefore, be
supported.
It is noted, however, that reference in the request to
residential or social/community facility is not made.
The court might therefore give consideration to the
inclusion of such uses, as the precinct policy does not
stipulate which form of land use should occur. It is
apparent that the policy leaves that level of
flexibility to the market place in determining the
final balance of such uses within the precinct."

30. Mr McMillan's submission was that the applications should have sought variations of the purposes clauses in those terms and that the court should only accede to the applications on the basis that all the uses referred to above are authorised.

31. He also relied upon the evidence of Mr O'Brien in cross-examination. Mr O'Brien gave evidence on behalf of the applicant. He is the Acting Assistant Secretary of the District Planning Branch of the Interim Territory Planning Authority. Mr McMillan had asked Mr O'Brien in cross-examination whether he thought it would be preferable that, if any variation of the purpose clause was made, it should be a variation that permitted all three activities as referred to above to be undertaken. Mr O'Brien answered "I guess that would certainly comply with the policy, sir, and provided one or other were not mandatory, as it were, I guess that would be appropriate".

32. It was submitted that, as the applications for variation did not seek all three uses, the whole process of application for variation should be recommenced seeking all three uses. I rejected that submission in the course of the hearing.

33. Coming to the merits of the application, Mr McMillan submitted that although the proposed variation and the development proposals conformed with the current plans for the land, there was other evidence which had not been accorded proper weight. He referred to the absence of evidence of office demand, unique market function or a demand for tenants in the proposed developments. He contended that residential use is viable in Blocks 1-12, Section 21 and that residential development would be a buffer between the residential area of Section 22 and the light commercial use on the eastern side of Lonsdale Street, adjacent to Blocks 1-12, Section 21. He contended that there was no evidence of the suitability of alternative locations and no evidence to show that Section 21 is an appropriate location for the applicant's operations.

34. He said that his opposition was based upon his own objection and that of two other residents who had lived in the area for between 11 and 60 years. He referred to their subjective apprehensions about the preservation of the environment and their desires not to live in a mixed residential and commercial environment. He referred to their individual fears that commercial development would lead to future degradation and alluded to other residential areas having been degraded, such as in Barry Drive and in Manuka and Northbourne Avenue. He referred to the fact that the market will engage in speculation, as was conceded by Mr Wilkinson, the valuer, in cross-examination, and it is possible that residential owners will pay less attention to their properties. He said that on the evidence there will be an increase in traffic over and above that which might ordinarily be expected.

35. Finally, he conceded that commercial development of Section 21 may one day be appropriate, but until that day arrives the applications should be refused.

36. As Mr McMillan did not dispute that the proposed variation and the development proposals conform with the current policy for the land, the above dicta make it clear that town planning considerations are to play a promiment role in the exercise of the court's discretion. There was a good deal of evidence on behalf of the applicant directed to establishing that, in addition to conforming with the policy plan, the proposed development accords with sound town planning principles. Mr Peter Cosier, to whose evidence I have already referred, observed that the important elements of the proposed development and use relate to the principle objective of allowing office and community facilities to develop along the western side of Torrens Street in a manner compatible with the high quality streetscape and at a scale compatible with the existing residential development. He concluded that the fundamental proposal to establish a two-storey office development with its associated on-site carparking is an appropriate use of the site, which when developed will add to the existing high quality commercial buildings that have already been constructed in Torrens Street.

37. It is unnecessary to dilate upon his evidence, but he elaborated at some length about the nature of the proposed development, its architectural features and sympathetic appearance with the development which has already taken place on the western side of Torrens Street.

38. In my opinion there is much force in the submission put on behalf of the applicant that the proposed developments will not greatly affect the visual amenity of residents in Section 22. The well-established pinoaks on both sides of Torrens Street tend to break up the visual impact of the proposed developments and so far as Mr McMillan is concerned, his own front garden to some extent will obscure whatever is constructed on the other side of Torrens Street. I am in no doubt that the proposed buildings are pleasing to the eye and far better than the run-down residential properties on Blocks 8 and 9. It is also relevant that the office buildings to be constructed will not operate at weekends or late into the night as might be expected with residential properties. Certainly they will lack the visual aspect of Gregorys caryard in Lonsdale Street.

39. It is also relevant that there is really only one objector and there is no concerted objection by a number of residents in Section 22. Certainly any redevelopment of Block 10 will affect Mrs Doran and to a lesser extent Mrs James, but any application for variation of the purposes clauses so as to permit redevelopment on Block 10 will have to be considered on its merits when made. The development of Blocks 8 and 9 to offices and professional suites is a logical development in the circumstances.

40. Whilst the Minister did not appear to support the application, he did not oppose it either. It was correctly submitted on his behalf that the applications are consistent with the Civic Centre Policy Plan and submitted that the proposed developments are a reasonable user of the land.

41. It is significant in the exercise of the court's discretion to take account of the fact that on 26 July 1988 this court made an order on the application of Pongara Holdings Pty Limited varying the purposes for which the land known as Block 5, Section 21, may be put. The variation was for offices, professional suites and carparking, as in relation to the present case. Mr McMillan was also an objector in relation to that application and many of the submissions that he advanced in that matter are common to the present applications.

42. In the application by Pongara Holdings Pty Limited, Miles C.J. observed that in his view there was a real possibility that the interest of the local occupants in their amenity would be adversely affected if that application was granted. He said, however, that it was only a possibility and it depended partly upon similar applications in respect of other blocks in Section 21 being granted and that the relevant factors in such applications may not be identical to those in the application by Pongara Holdings Pty Limited. Mrs James and Mrs Doran also raised objection to the application in Pongara Holdings Pty Ltd.

43. His Honour observed, as was referred to by Mr McMillan in his final submissions, that in that case the scales were almost evenly balanced between the present standard residential use and the proposed use as offices. In the end his Honour was not convinced that the public interest lay in preventing the lessee from choosing which of those purposes it wished to carry out in its occupation of the land.

44. Having considered all the relevant factors and having regard to the development which has already taken place on the western side of Torrens Street, I am of the opinion that there is now a strong case for permitting the use of the land for offices and professional suites. I recognise that there will be some loss of amenity to Mr McMillan and others in the neighbourhood, including Mrs James and Mrs Doran, but their loss of amenity is not sufficiently substantial to stand in the way of granting the applications.

45. Accordingly, in relation to both applications, I make the order as sought subject to the deletion of carparking.

46. I shall hear argument on the question of costs.