Re Section 11a of the City Area Leases Act 1936 and Re An Application By Concrete Constructions Group Pty Limited To Vary the Provisions of the Crown Leases Relating To Blocks 1 and [1989] ACTSC 36 (21 July 1989)

SUPREME COURT OF THE ACT

IN THE MATTER of Section 11A of the City Area Leases Act 1936 AND IN THE
MATTER of an application by CONCRETE CONSTRUCTIONS GROUP PTY. LIMITED to vary
the provisions of the Crown Leases relating to Blocks 1 and 2 Section 35
Division of City in the Australian Capital Territory
S.C. No. 46 of 1988
Crown Leases

COURT

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

CATCHWORDS

Crown Leases - application for variation of purposes clauses - private objectors - proposed change in accordance with policy plan for the immediate area - whether reasonable user of the land being impeded - exercise of appropriate discretion- town planning considerations - balancing competing factors

City Area Leases Act 1936 - s.11A

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

In the Matter of applications by Morpath Pty Ltd to vary the covenants in the Crown Lease of Blocks 8 and 9 of Section 43 Division of Turner - Morling J. (unreported, 27 November 1987)

HEARING

CANBERRA
21:7:1989

ORDER

The application be dismissed.

DECISION

The lease from the Commonwealth of the parcel of land known as Block 1 Section 35 Division of City formerly Ainslie in the Australian Capital Territory provides, following variation of the purposes clause in 1939, that the land is to be used for the main purpose of an industry (other than a noxious trade) employing not more than 50 employees and for any purpose subsidiary thereto such as a residence or shop. The lease from the Commonwealth of the adjoining parcel known as Block 2 Section 35 provides that it is to be used for the same purpose but the industry which may be carried on there is not to employ more than 25 employees. It is convenient to refer to the two parcels as "the land".

2. The land has been used in association with the publication of the Canberra Times newspaper for many years. That use ceased when the publishers opened new premises in Fyshwick, leaving the land vacant.

3. The present improvements on Block 1 consist of a two storey building covering the entire block. The only improvements on Block 2 are bitumen surfacing and several carports. The land is bounded on the north by Cooyong Street, on the west by Mort Street, on the south by Block 3 Section 35 and on the east by a lane. The frontage to Cooyong Street measures 165 feet and the total frontage to Mort Street measures 200 feet so that the land has an area of 3066 square metres approximately. Mort Street lies parallel to and one block east of Northbourne Avenue, the principal northern entrance to the City of Canberra. The land is no more than 350 metres in a direct line from the new Canberra General Post Office situated to the south west.

4. By notice of motion returnable on 10 June 1988 Concrete Constructions Group Pty. Limited (Concrete) sought an order that the two leases be varied by the deletion therefrom of the purposes subclause, 1(f), and the substitution therefor of the following:
"1(f)To use the said land jointly with the adjoining

land for one or more of the following purposes:-
Offices, professional suites, car parking, banks,
co-operative societies, bars, cafes, restaurants,
clubs, indoor recreation facilities, hotels,
motels, residential flat buildings, community
facilities, health facilities, personal service
establishments, service industries, shops, tourist
facilities.
PROVIDED ALWAYS THAT:-
(i) the gross floor area of the building or
buildings on the said land and the adjoining
land shall not exceed 17,600 square metres.
For the purposes of this sub-clause gross
floor area means the sum of all the areas of
all the floors in the building or buildings
measured from their external surfaces
excluding only rooftop plantrooms used solely
for housing mechanical plant and a basement
used solely for car parking and housing
mechanical plant;
(ii) the gross floor area of the building or
buildings on the said land and the adjoining
land used for the purpose of shops shall not
exceed 1,000 square metres;
(iii) car parking for not less than one car per 100
square metres of gross floor area of the
building or buildings on the said land and
the adjoining land shall be provided on the
said land and the adjoining land."

5. It sought also orders that each of the leases should have inserted an additional sub-clause by which the expression "the adjoining land" proposed to be used in sub-clause 1(f) should mean Block 2 Section 35 Division of City or Block 1 Section 35 Division of City as appropriate.

6. Sub-sections (1) and (2) of Section 11A of the City Area Leases Act 1936 (the Act) read:

"(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
section, a certificate is filed by the
Minister with the Registrar of the Court
stating that, in his opinion, the variation
sought would be repugnant to the principles
for the time being governing the construction
and development of the City of Canberra."

7. On 10 June 1988, Concrete filed an amended notice of motion by which it sought orders identical with those sought in the earlier notice of motion save that the area referred to in the first povision was reduced to 16,000 square metres and a fourth proviso was added in the following terms:-

(iv) The gross floor area of the building or
buildings on the said land and the adjoining
land used for the purposes of offices shall
not exceed 14,000 square metres."

The application made on 10 June 1988 was duly advertised in the Canberra Times of 20 June 1988 and in the Commonwealth of Australia Gazette of 21 June 1988. Service of the notice and of the affidavit in support was duly effected on the Minister. The procedural requirements of s.11A were therefore met.

8. The Minister did not file within the time prescribed by s.11A(2)(b), a certificate stating that, in his opinion, the variation sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra. It follows that there was no opposition by the Executive to the variation proposed.

9. Section 11A(6) provides that:-

"Any person who, within 21 days after the
publication of the notice of motion in the
Gazette -
(a) files with the Registrar of the Court notice
of his intention to oppose the application
for variation stating the grounds of his
opposition; and
(b) serves on the applicant for variation a copy
of such notice of intention,
shall, with the leave of the Court be entitled,
either personally or by his counsel or solicitor,
to be heard in opposition to the application for
variation and to examine and cross-examine witnesses."

10. A number of persons sought leave to be heard in opposition to the application. In the result there were four objectors, Brian Leonard McNamara and Monica Josephine McNamara, Peter Firman Harrison and Edward George Wensing. Mr Harrison and Mr Wensing were represented by Mr B. Hull of counsel while Mr McNamara appeared on his own behalf. There was no appearance on behalf of Mrs McNamara.
The applicant was represented by Mr B.J. Tamberlin QC and Mr R.J. Arthur while Mr T.F. Naughton QC and Mr I.A. Curlewis QC appeared for the Minister.

11. In May 1985 Concrete had agreed to buy the land from Federal Capital Press of Australia Limited. The agreement was completed in March 1986. After its completion Concrete approached the National Capital Development Commission (NCDC) to obtain its approval to redevelopment of the land. Following discussions NCDC wrote on 23 April 1987 to Lewis Development Pty. Limited, a member of the Concrete Constructions Group of which Concrete was also a member. The letter said in part,

"In accordance with the Commission's letter dated
9 April 1987 and your previous discussions with
the Commissioner I am enclosing draft
redevelopment conditions for this site. Please
note that these conditions are preliminary only
and are subject to possible further revision prior
to formal endorsement by the Commission."

I annex as Annexure "A" to these reasons for judgment a copy of the draft lease and redevelopment conditions enclosed with the letter of 23 April 1987.

12. In February 1984 NCDC published a document called "Civic Centre Policy Plan Development Plan" (the 1984 plan). At page 19 of that document the land is shown as part of a proposed commercial office area, later identified as Commercial Office Area 1.

13. At page 22 of the document the objectives of NCDC's policy for the Commercial Office Area 1 were set out as follows:-
(a) to group commercial activities in close proximity

to retailing facilities

(b) to ensure that Civic retains its ability to

attract commercial office development

(c) to encourage the consolidation of established

tourist-oriented services and facilities in close
proximity to the Retail Core.

The policy for the Commercial Office Area 1 was as follows:-

"The preferred uses in this area are
offices/professional suites, to be developed
predominantly by private enterprise, and hotels,
motels, banks, co-operative societies and health
centres. It is envisaged that significant
complementary uses would be indoor recreation
facilities, public-sector services and any
activity that tends to complement commercial and
business functions.
Although the preferred use is for Commercial
Office space, the benefits to Civic of office
accommodation will be a factor in considering
sites within this area for government office
constructions."

14. At the foot of page 22 of the 1984 plan there were set out the purposes for which a proposal for development or change of use would normally be supported. These were "bank, co-operative society, health centre, hotel, motel and office/professional suite."

15. Amongst the purposes for which a proposal for development or change of use would be assessed on individual merit were those of a bar, cafe, club, indoor recreation facility, residential flat building, community protection facility, social community facility, personal service establishment, shop and tourist facilities.

16. It will be seen that the proposed variation to the purposes clause accords generally with the land use which the NCDC had proposed in 1984.

17. Concrete proposes to demolish the existing improvements on the land and to build a six storey building which will be designed predominately for offices but which will also be available for some of the other uses referred to.

18. Concrete's original plan was, to erect a building with a gross floor area not exceeding 17,600 square metres of which not more than 1,000 square metres should be used for shops and for which car parking at the rate of not less than one car per 100 square metres of gross floor area should be provided on the land.

19. After 10 May 1988, the day upon which Mr Westman swore his first affidavit, there were further discussions between NCDC and Concrete. As a result Concrete decided to reduce the maximum gross floor area to 16,000 square metres of which not more than 14,000 square metres would be used as offices. The number of parking spaces proposed was reduced from 176 to 160 all of which would be provided within the building.

20. The principal ground of opposition taken by the objectors Mr and Mrs McNamara was that commercial development of the kind proposed would create further demand for on-street parking with associated increases in motor traffic in their street, Macleay Street, Turner, and nearby streets which they frequently use for access to shops and entertainment and for exercise. They also objected on the ground that the proposed development was repugnant to the principles of city planning currently espoused by the NCDC. They objected particularly to the use of the land for offices, professional suites, banks and co-operative societies.

21. I set out Mr Wensing's grounds of opposition in full:-

"1. It is not desirable to vary the said convenant
because there is already an excessive amount of
space available for offices and professional
suites within the Civic area at Canberra.
2. It is not desirable to grant the application for
variation because the proposed development is
repugnant to the principles for the time being
governing the construction and development of the
City of Canberra.
(i) The Metropolitan Policy Plan/Development Plan
1984 places an upper limit of 27000 employees
in Civic by the year 2003, and the Civic
Centre Policy Plan/Development Plan 1984
requires the proper consideration of the
transport and parking issues involved in
Civic's development. Both of these plans
have been formally noted by the responsible
Minister under Section 12 of the NCDC Act
1957 and in effect, are an expression of the
principles governing the construction and
development of the city of Canberra. The
proposals by the applicant are repugnant to
these principles governing Canberra's development.
3. It is not desirable to grant the application for
variation because of the following:
(i) Based on projects already completed, approved
or in progress, employment levels in Civic
are expected to reach between 35 000 and 40
000 employees in approximately 2-3 years.
Redevelopment of the said site for office
purposes will increase the workforce in Civic
to 32,750 employees. This is well above the
employment limits set by the 1984
Metropolitan Policy Plan for the year 2003.
(ii) Overspill kerbside parking in adjoining
residential areas is already in excess of
2000 vehicles. Commercial development of the
kind proposed by the applicant will create
further demand for all-day kerbside parking
in residential areas and further deteriorate
residential amenity.
(iii) The road system in Civic is at peak capacity
and will not be able to cope with further
increases in traffic, without major
improvements, for which no proposals have
been made public.
(iv) The public Transport system is expected to
carry 25% of the totalised workforce into
Civic, which will incur an additional deficit
of $10 million to $15 million in annual
operating costs.
(v) The proposed commercial development will
generate transport demands which will
contribute significantly to a further
deterioration in environmental quality and
air pollution in the Civic area.
(vi) Parts of the Division(s) of Reid and Braddon
are listed on the Register of the National
Estate. These areas were listed for their
streetscapes. The Australian Heritage
Conservation Act requires Commonwealth
Authorities to avoid any action which
adversely affects a place entered on the
Register of the National Estate. Heritage
Conservation Areas in Reid and Braddon are
being severely blighted by all-day commuter
kerbside parking in residential streets
caused by the overspill of parking generated
by Civic employment. The proposed
development will increase traffic flow and
all-day commuter parking in streets in the
Heritage Conservation Areas, thus degrading
those areas.
(vii) The Environment Protection (Impact of
Proposals) Act 1974 requires that government
decisions "affecting the environment to a
significant extent are fully examined". The
NCDC in Technical Paper No.14 states:
"It is desirable for the (Environmental
Impact Statement) to cover the project in its
entirety ... (e.g. ... the total development
of a town centre), as while the impacts of
each component may be small, taken
collectively they can be significant" (Page
8). Developments in Civic beyond the
employment levels set in the 1984
Metropolitan Policy Plan, according to the
NCDC," could lead to serious traffic
congestion, car parking problems, increased
Transport costs and undesirable environmental
impacts". The requirements of the
Environment Protection (Impact of Proposals)
Act 1974 are being ignored, in respect of the
said application for change of lease purpose."

Mr Harrison's grounds of objection were that:-
The proposed lease variation was repugnant to the principles governing the construction and development of the City of Canberra as stipulated in the Metropolitan Policy Plan document of July 1984, that plan having asserted that employment in Civic Centre beyond 25,000-27,000 "could lead to serious traffic congestion, car parking problems, increased transport costs and undesirable environmental impacts" which, said Mr Harrison, were already becoming apparent and that the proposed variation would be contrary to the public interest.

22. The judgment of the full court of the Federal Court of Australia in Morpath Pty. Ltd v. ACT Youth Accommodation Group Inc. and Others (1987) 74 ALR 121 makes it plain that the enquiry upon which I am engaged is to be taken in two stages. At p 139/140 Beaumont J. with whom Fisher and Davies JJ. concurred said:-

"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)(a) will be made
out. Where the Commission has no current plan or
where what is proposed does not conform with the
Commission's plan, the question still remains for
the court to decide whether the proposal is
"reasonable" in the sense previously explained.
The next inquiry is whether a certificate of the
kind described in s11A(2)(b) has been filed. This
is a simple question of fact as to the existence
or not of the statutory certificate. It does not
permit or require the court to embark upon an
inquiry as to whether the proposal would be
"repugnant to the principles for the time being
governing the construction and development of the
City of Canberra".
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, ie
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.
There is a clear distinction between, on the one
hand, asking the court to act as a planning
authority and, on the other, entitling or
requiring the court to take planning material into
account in the exercise of its judicial functions
under s 11AA (see Preston and Newsom, op cit at
212). Moreover, in balancing the public interest
in the full use of land against the local interest
in the amenities, it will be appropriate for the
court to consider whether it is proper to permit
the variation to proceed but upon the condition
that compensation is paid to those injuriously
affected (see s11A(8)(b))."

23. The parties were agreed that it was not necessary for me to inquire further as to whether the grounds for jurisdiction described in s.11A(2) were satisfied. At the point when the concession was made it was obvious that it was desirable to vary the relevant provision clause 1(f) of the two leases in question, in order that the reasonable user of the should not be impeded. I have already found as a fact that a certificate of the kind described in s.11A(2)(b) has not been filed. The court therefore has jurisdiction to proceed to consider "the question of the exercise of the wide statutory discretion conferred by s.11A(1)".

24. The 1984 policy plan development, to which I refer as the 1984 Plan, contained a diagram of what it described as the retail core of Civic Centre. The diagram showed an irregularly shaped area bounded on the south west generally by London Circuit and Nangara Street, on the south east generally by Allara Street continuing into Binara Street, on the north east and the north generally by Bunda Street and on the west by East Row.

25. The area designated in the 1984 Plan as "Commercial Office Area 1" had as its centre a group of blocks, using that term in the way in which it is generally understood, of which Section 35 is the most north easterly. Two other blocks run north from the centre and two south west from it. What I describe as the centre is bounded on the north generally by Barry Drive and Cooyong Street, on the east generally by East Row, Mort Street and a lane, on the south generally by London Circuit and on the west generally by Marcus Clarke Street.

26. Mr Neil Ingham, a town planner, gave evidence in support of the application. Under the heading "The compatibility of the land use with adjacent existing uses" he said:-

"The existing land uses in the locality
immediately surrounding Blocks 1 and 2, Section
35, are commercial offices, motel, motor service
and community uses, Slightly further afield are
also recreational open space, commercial offices,
take-away food shops and parking uses."
Immediately to the south of the Blocks stands a 6
storey office building. Another is opposite on
the south west corner of the Cooyong/Mort Street
intersection. The Travelodge Motel on the north
west corner of the intersection is also 6 storeys
in height. Further to the west along Cooyong
Street there are office blocks approximately 12
storeys high and Graduate House which has eight
storeys. To the east of the subject site, the
Griffin Centre used by Youth Advisory Groups and
other community services is a complex with a
single storey fronting Cooyong Street adjacent to
the laneway, with two storey sections on the far
side, and extending back to Bunda Street at the
rear in a mixture of one and two levels."

27. I accept that description as I also accept the next sentence of his report which reads, "In this context, the commercial office use and other uses proposed would be entirely compatible with the surrounding development in terms of land use and intensity of development."

28. It is not suggested that the proposed building would not be in visual and architectural harmony with nearby buildings.

29. In Commonwealth of Australia Gazette No. S37 published on 30 January 1989 the Minister gave notice for the purposes of s.62 of the Australian Capital Territory (Planning and Land Management) Act 1988 that the policies of the National Capital Development Commission as set out to the Schedule to the notice were in operation and in published form and that the Schedule superseded the notice published in the Commonwealth Gazette No S367 of 30 November 1988. The Schedule provided that the policies listed were to consist of plans (in the form of maps or diagrams with annotations and explanatory notes), written statements or a combination of plans and written statements. Amongst the policies set out was one described as "Civic Centre Canberra Policy Plan" (the 1989 plan). The Schedule to the Gazette notice shows the plan to have been published in January 1989. A copy of the plan was tendered. At page 1 of the document it is described as "an interim photocopied publication of the final Policy Plan for Civic Centre Canberra".

30. At page 5 of the report the following appears under the heading "Purpose of the Report".

"The 1987 Draft Policy and Implementation Plan for
Civic reviewed the 1984 Civic Policy Plan and
sought to expose current planning and development
issues and the Commission's position with respect
to these issues. The widespread consultation with
community, government and private sectors produced
a high level of interest in the future of Civic
and new issues were raised in discussion and
written submissions.
It was originally intended that a second round of
public consultation be conducted with all
respondents in an attempt to reach an agreed
policy position on all, or most, issues, prior to
the production of the Final Policy Plan. However
with the Government decision to abolish the
National Capital Development Commission it would
not have been possible to complete the process
before the repeal of the NCDC Act. It was
agreed therefore that it would be more appropriate
for the Commission to complete the Final Policy
Plan whilst it could, taking full account of both
the comments raised in the public consultation
process and the interests of the ACT
Administration. This final policy plan is the
approved document to guide the planning and
development of Civic. It supersedes the 1984
Civic Policy and Development Plan."

31. Under the 1989 plan the predominant land use of the land is shown as "Offices".

32. At page 73 of the 1989 plan under the heading "Land Use Policies" the following appears:-

"Preamble
Commercial office developments have provided the
basis of growth in Civic's workforce in recent
years and current commitments anticipate that
employment could reach approximately 28,000 by
1991. Having achieved the broad aims of the 1984
Civic Policy Plan, to establish Civic as the main
commercial area of Canberra, the intent of this
Policy Plan is to conserve the now scarce
resources in Civic for the uses most appropriate
to a Central Business District location and for
which there are clear public benefits.
Policies
The policies for offices should be read in
conjunction with other policies directed towards
Civic's Metropolitan role and size.
1. Proposals for offices to accommodate local or
"territory government functions will generally
"be supported and sites for these offices will
"be reserved in the area between London
"Circuit and Vernon Circle, at the head of
"Constitution Avenue.
2. All approved office development proposals
"will be required to meet an increased
1 proportion of the demand for infrastructure
"generated by the proposal."

33. The objectives of the land use policy for the precinct of which the land forms part are set out as follows:-

"...
. maintain Civic as the main metropolitan
"office employment location
. group of employment opportunities in close
"support of retail areas"

The primary land use policy for the precinct is stated as "Office/Professional Suite". Other land uses are permitted so that the totality of permissible land use in the precinct of which the land forms part very nearly approximates that which was proposed in respect of the area designated as Commercial Office Area 1 in the 1984 plan. However the difference in emphasis is to be noted. Where before there were a number of purposes in respect of which proposals for development or change would normally have been supported and a larger number of purposes for which proposals for development or change of use would have been assessed on individual merit, now the primary land use of the precincts is that given above with the other uses permitted. It seems to me, therefore, that the emphasis of the policy has changed to permit as the primary use of the land within the precinct that of offices or professional suites. It follows that now the use proposed by the applicant comes more emphatically than before within the policy propounded.

34. It should be noted that s.62 of the Australia Capital Territory (Planning and Land Management) Act 1988 provides that where, before the commencing day an NCDC policy was in published form and had been notified in the Commonwealth Gazette and was in operation immediately before the commencing date, the policy continues in effect subject to immaterial exceptions.

35. In considering the "wide statutory discretion conferred by s.11A(1)" I am required to exercise it in the public interest, balancing society's interest in the fullest use of land against the interests of local occupants in their amenities. Counsel for the applicant submitted that the objectors could not be accurately described as "local occupants". They contended that the phrase meant occupants in the vicinity or area of the proposed building who are concerned about the impact of the building on them in and about the use of their premises. To give to the phrase that meaning would, I think, be unduly restrictive. I do not see why residents within a district who can show that their amenities will be affected by the erection of a new building may not properly be described as "local occupants". Counsel also submitted that the objections raised are of a "macro" nature. By that they appear to have meant objections which related to the principles of planning adopted and their application. To challenge the objectors' argument on such a ground seems to me to be contrary to what the Federal Court held in Morpath. I refer to a short passage from the judgment of Beaumont J. (at pp 140-1).

"It is far more likely that by s.11A(1) it was
intended to vest in the court a wide discretion in
which all the merits of the matter, including the
Commission's plans were to be taken into account.
... In my opinion, leave under that provision
should be liberally granted. Provided an objector
can demonstrate an appropriate interest in the
outcome of an application under s.11A(1), leave to
oppose should generally be granted under
s.11A(6). It should be no disqualification that
the objector wishes to canvass the merits of the
town planning proposed by the Commission. That
will be a central question in the proceedings even
if, ordinarily, the Commission's current proposals
are to be given significant weight. ... once
allowed in, the objector is entitled to be heard
in general opposition ..."

36. The substantial issues remaining are whether the use of the building proposed to be erected, should the application be granted, will, adversely and to a significant, that is to say, more than to a minor, acceptable, degree, affect the local amenities by traffic congestion, parking overspill, air pollution and damage to the heritage. I do not not think that there was any case made out on behalf of the objectors to suggest that the mere height of the proposed building rendered it objectionable. As I understood their cases they appreciated that, even if a hotel were erected on the land, (and to that they had no objection) it would necessarily be of such a height and other dimensions as to affect the light available to, and cause other effects by its shadow on, a community services building erected nearby. None of the occupants of that building objected to the proposal.

37. Robert John Westman, Concete's Investment Manager, gave evidence concerning the planned building. It is to consist of a ground floor and six storeys above with the seventh set back. He was content that access to the land should be as the planning authority required. Fourteen thousand square metres of the building were to be used for offices and one thousand for retail space on the ground floor. The remaining one thousand square metres was available for a variety of users subject to approval. But he had in mind a restaurant, a dental surgery, a showroom for a computer company and basically anything other than retail or office space which was either favoured or deemed appropriate by the NCDC. He said, and I accept, that it would be totally impracticable to keep the land for industrial use and that it would be silly to have industrial use in the middle of the city. He considered it also totally impracticable to use the land for a two-storey building.

38. Cross-examined, he agreed that Concrete's agents had been approached by Government departments seeking office accommodation in the whole or a substantial part of the building. He did not agree that he (by which I understood the cross-examiner to mean Concrete) knew right from the beginning that it might not be possible to build offices on the land.

39. The point was made during his cross-examination that in the redevelopment of Civic Centre every single development that had taken place in Sections 22, 23, 26 (both north and south) and 35 (both north and south) had been a commercial office development. This meant, of course, that in those sections no building had been erected during the course of the redevelopment for any of the other uses considered appropriate by the framers of the 1984 Policy Plans. An attempt was made to have Mr Westman agree that the land could be used for residential accommodation, a motel or a hotel, but he considered it not to be commercially viable to do so. In that part of the cross-examination Mr Westman and counsel cross-examining isolated the problem which redevelopment of this site poses. Men of business can see no other use for the land consistent with its location and value as an inner city site. If that be the case it follows ineluctably, I think, that the land ought to be redeveloped as proposed so that its highest and best use might be availed of unless, and this is the position for which the objectors contend, what I may describe, if broadly and loosely, as environmental factors are to take precedence over what men of business would see as the commercial imperative.

40. Mr Ingham, to whose evidence I have already referred, described the existing building as not in character with the surrounding development and of fairly low quality.

41. Asked to consider the feasibility of erecting an hotel on the site, he pointed out the difficulties which would be occasioned by the blank wall forming the northern boundary of block 3. He said that the only appropriate use he could see for the land, given the commercial office building next door and the wall of that building, was that the land be developed with a commercial office building with floor areas appropriate to such a building. He took the view that the Griffin Centre used by the Youth Advisory Group and Community Service was a low intensity use on a relatively central location, that it was a little incongruous in its present size having regard to the development that had occurred in the locality and that its permanence was a matter which, as I understood him, seemed to be unlikely. He estimated the vacancy factor at 1.14 in January 1988. He thought that the existing development was such that a five or six storey building built to the street alignment would continue and reinforce the line established by the adjoining building and complement the streetscape. He noted that in early 1986 there were 260,000 m2 of office floor space in Civic and that the NCDC had estimated that the amount of office floor space in Civic might increase to 470,000 m2 by the early to mid-1990s. I set out a passage from Mr Ingham's report:-

"The impact of the proposed redevelopment of the
Canberra Times site on cumulative employment levels and
associated environmental effects has been the centre of
several objections to the subject application.
Objectors have argued that levels of traffic and air
pollution, demands on public transport, and parking in
residential areas have increased, as the Metropolitan
Policy Plan 1984 predicted would occur if employment in
Civic rose to over 27,000 (eg J.B. Gilchrist, P3N
par.20,21; J. Morison, par.7,8). They argue that the
NCDC has failed to implement its policy as set out in
the Metropolitan Plan by allowing developments in Civic
since 1984 which will push employment levels in Civic
beyond the limits set in that plan (Morison, par.7;
E.G. Wensing, par.3; Gilchrist, par.24). The
Metropolitan Policy Plan, it is implied, takes
precedence over the Civic Centre Policy Plan made
earlier in the same year (Gilchrist).
In addressing this issue, the first point which should
be made is that the data on employment levels may be
problematical. The ABS statistics, derived from
journey to work data, is incomplete (over 20% of work
locations were unreported) and this information is not
comparable with data collected from NCDC surveys of
employment centres and enterprise-based employment.
(Draft Civic Centre Policy Plan, 1987, p 30). It is
possible, therefore, that the employment levels under
discussion may be over-estimates.
The NCDC has estimated that the employment level in
Civic in 1986 was 21,000, 23,500 in mid 1987, and will
be 35,000 by the mid 1990s (1987) Draft CCPP, pp 12 &
30). The Metropolitan Policy Plan expected Civic's
employment to grow between 25,000 and 27,000 within the
plan period (ie by 2,004) (p 220). It predicted that
'Beyond the 25,000 to 27,000 employment level, the
transport costs, in terms of congestion, road capacity
and parking, would increase substantially.'
Reassessing the situation in 1987 the NCDC considered
the transport and parking infrastructure 'can be
operated at an acceptable level given some upgrading',
up to an employment level of around 40,000 (Draft CCPP,
p 31)."

42. He explained the significance of shift workers and part-time workers so far as traffic was concerned as follows:-

"... if people are working 20 hours or less, they could
only be counted at least in terms of traffic
generation, as half a person at the most, which means
that in terms of traffic generation you would have to
halve that figure of 17,053, and at least deduct that
in terms of full-time employees from the figure of
23,556, and you would almost have to take off the night
time employment figure totally for the figure in terms
of traffic generation. That would mean that there
would be about 1,700 that you would take off the 23,556
to determine the traffic generation that would occur
during peak periods."

He therefore calculated that the net employment figure would be a bit under 22,000.

43. The reference to p 31 of the draft CCPP is to a passage which reads, "It is considered that the existing infrastructure and possible future works and services, provided they are forthcoming, could cope with an employment level of around 40,000 depending on the rate of development in relation to the provision of supporting works and services. Up to this 40,000 level it is anticipated that the main infrastructure which is under stress (the transport and parking infrastructure) can be operated at an acceptable level, giving some upgrading as discussed later. This assumes however, that a significant but achieveable increase in bus use is achieved and that a degree of congestion on Civic's road system is acceptable. In the 1989 Plan (at p 67) it was estimated that future employment growth was expected to be slower than previously predicted and unlikely to reach 35,000 until about 2000. The capacity of building stock, together with buildings approved or under construction was, said that Plan, about 32,000 so that the physical form of Civic at the 35,000 employment level was virtually apparent now.

44. Accepting the statements just made, it would seem that the projected space for office use in the building erected on the land would accommodate 700 office workers, given that each worker would use an average of 20 square metres of liveable floor space. This figure is higher than that referred to in Tekmat's application in which judgment was handed down on 17 July 1987. In that case a figure of 18 square metres per person was taken. I take the figure of 20 square metres per person from a minute written by Mr Campbell on 23 May 1988. It would appear to be the case, and I accept, that, in future, technological advances will mean that more office space per person, it is not possible to say how much, will be required to accommodate the equipment which will be put in place in modern offices.

45. But that figure of 700 has to be added to the 32,000 employment level, already according to the 1989 plan virtually in place.

46. Mr Ingham's submission on behalf of the applicant submitted that the site should be redeveloped as proposed, the environmental impacts being at acceptable levels. He gave as his opinion that the development would have no noticeable impact on the chief environmental issues, i.e. traffic and parking, if the NCDC construction programme proceeded as planned and the parking provision on site was developed as proposed.

47. David John Singleton prepared what he described as a "Traffic Effects Report" on behalf of the applicant. He said:-

"In general it may reasonably be concluded that:
. development of the Site will have an impact on
Mort Street but the effect on pedestrians and
vehicle traffic will be minimal;
. the intersections of Mort Street with Bunda Street
and Cooyong Street will continue to operate at a
satisfactory level of service;
. the traffic generated by the proposed development
has only a marginal impact on the Northbourne/
Cooyong/Barry Drive intersection operation, however
this intersection requires improved operations
to accommodate overall increases in traffic;
. both Northbourne Ave intersections will operate
with a satisfactor()y level of service when
drivers make optimum use of available right turn
capacity;
. reductions in through traffic on Northbourne Ave
and Barry Drive, as outlined in the NCDC draft
plan (1) (are) desirable to provide increased
capacity for Civic origin/destination traffic;
. the Site is well located for public transport use;
. in the short term the development of the Site may
marginally increase demand for parking on street
in Braddon;
. in the future, overspill demand for short and long
term parking generated by the Site should be
largely accommodated by structured carparks on
Section 56."

48. Daniel Roland Steiner gave evidence concerning the detailed survey of employment figures in Canberra which took place in May-June 1988 and showed an employment level of 23,600 in Civic. He gave as the reasons for the discrepancy between the actual level of employment found in 1988 and the previous forecast of up to 28,000-29,000 by 1988-89 higher average floor space utilisation rates, slippages in the timing of some office development projects and slower rates of space taken up than previously envisaged. He said that the Civic survey results and analysis of overall employment growth and distribution in the A.C.T. led to a reappraisal of Civic's employment forecasts, which suggested that Civic's workforce was likely to reach 28,000-29,000 in 1991 and 35,000 in the late 1990s.

49. It seems to me, however, that to make such a forecast ignores the fact that, as the 1989 Plan shows, buildings already in existence, approved or under construction, have already the capacity for an employment level of 32,000.

50. I do not think it likely that all those buildings when completed, and no doubt their completion is not far distant, will remain substantially underutilised as the forecast would seem to indicate. Commercial pressures would not, in my opinion, permit this to happen.

51. Undoubtedly, there would be some increase in chemical pollution from vehicles used in connection with the building proposed to be erected on the land. However, it may be taken, I think, for the evidence does not satisfy me otherwise, that there will be a decrease of chemical pollutants emitted from motor vehicles over the next 10 to 15 years. This will come about, as I understand it, as a result of the continuing implementation of the policy which lays it down that all new vehicles should use only unleaded petrol. But to say that the chemical pollutant problem will be lessened by other means and not significantly, although necessarily somewhat, increased, ignores, I think, the whole purpose of endeavouring to have emissions from motor vehicles controlled. The aim is to reduce pollution, not to allow any reduction brought about by controls to justify an increase in the number of vehicles using an area on the basis that the increase will not bring the level of chemical pollution back to the old unsafe or near threshold levels.

52. A report was tendered, Exhibit "B", to the affidavit of Barry James Murry, which set out that all Civic developments proposed and underway (including the Canberra Times site development) would increase peakhour road traffic noise levels marginally above the standards set. The development of the land as proposed would contribute what is described as an insignificant .3-.6 dBA. The concern of NCDC is the impact of road traffic noise upon pedestrians. Accordingly it set a standard of 70 dBA measured at a distance of 5 metres from the kerbside. The report states this to be a reasonable standard for a developing city such as Canberra. Again, it ignores the fact that it is desirable to avoid levels of pollution at or near the maximum if this can be reasonably achieved. Notwithstanding Mr Singleton's evidence, it seems to me that the traffic flow in Civic will rapidly deteriorate. Graphic evidence of this came from the photographs taken by Mr McNamara and the evidence given by him, Mr Harrison and Mr Morison as to what those photographs show. This evidence was fortified by that of Ian Gollan Cooper, Manager, Planning and Development, Action (Bus Service). I think the conclusions reached by Mr Singleton are too optimistic. Again, it is not a question of whether the community ought to be prepared to put up with some level of traffic problems because other cities have them, but rather, whether it is necessary to have the conditions which lead to those traffic problems at all.

53. The evidence given by the then Commissioner, Mr Malcolm Latham, was of particular significance. In his affidavit sworn 2 November 1988 he deposed that the Commission had been advised in August 1985 by the then Department of Territories that the lessees of the land were in the process of commencing an application to vary the lease purposes for itself on 6 November 1987. Following a meeting with the lessees, Mr Latham formally refused support for their application to construct 17,600 square metres of office space on the land. He explained the reasons for his refusal to support the proposal in a press release issued on the same day:-

"It is clearly not in the public interest at this time
to have yet another very large office development in
Civic. It would also be contrary to undertakings
required of the Commission by the Parliamentary Joint
Committee on the A.C.T. A large single occupancy would
be necessary for the redevelopment to be viable at the
size proposed, and Commonwealth tenants have actively
been sought to occupy the proposed building. ... Much
work has been done and is being done to increase
parking supply in Civic and improved public transport,
but more remains to be done to overcome the lag in this
provision. A very large office development such as
that proposed for the Canberra Times site would erode
the efforts now underway to bring parking, transport
and development back into balance. ... As is obvious
from this decision large scale proposals which are
clearly intended for major Commonwealth office
occupancy in Civic will not be supported by the Commission.

This last consideration was taken into account, as appears from a Ministerial submission dated 14 December 1987, as a result of an undertaking by the NCDC and appropriate Government authorities that no more Government offices would be located in Civic until the situation had been thoroughly reviewed.

54. The next step taken by the Commission appears from Mr Latham's letter of 2 June 1988 to the Group Managing Director of Concrete. In that letter he said:-

"I confirm that the Commission will not oppose an
application for the redevelopment of Blocks 1 and 2,
Section 35, Civic to allow a six storey building
totalling 16,000 m2 G.F.A. with office space not
exceeding 14,000 m2 G.F.A. and basement carparking for
160 cars."

55. He gave as the two main factors which influenced the Commission's change of mind, first that moves were afoot to achieve Commonwealth office space development in Belconnen and in Tuggeranong consistent with the Commission's planning policies and consistent with the growth of those parts of the metropolitan area, and secondly, that moves were afoot to increase the supply of carparking in Civic by public works which were then planned and later were implemented for that purpose. A letter dated 20 March 1987 from the Secretary and Manager of NCDC addressed to the Secretary of the Parliamentary Joint Committee on the A.C.T. was tendered through Mr Latham. This letter set out the Commission's then view on parking. As at the end of January 1987 there was, so the letter said, demand for 9,800 spaces in Civic with a current supply of 7,200, the shortfall being accommodated in residential areas around Civic and by informal and illegal parking within Civic. The Commission had adopted a program to construct some 4,500 additional serviced carparking spaces by 1990 with some 3,300 of these to be constructed by the end of 1987. Funds were available for the initial program to achieve those spaces by the end of 1987. They were expected to cost $5,000,000. Completion to a total of 4,500 was estimated to cost $7,000,000 all told. It was expected that between the date of the letter and 1990 overspill within the residential areas would rise because of the occupancy of a number of office buildings which would be finished about the same time. Overspill was expected to rise to a peak of about 4,000 and then to decline.

56. Mr Latham gave as his understanding of the Department of Territories position in relation to the proposals that it believed that the management of overspill parking at current levels was both feasible on safety grounds and within the capacity and resources of the Department. A longer term overspill of about 1,900 spaces would cause no additional problems in these respects. Significantly at p 3 of the letter he said:-

"Because there is now only a relatively small remaining
capacity in Civic to absorb more employment (unless
very large programs of public capital investment on
infrastructures were contemplated) it is important to
ensure that the available growth potential is realised
to the best overall advantage."

57. The third factor which Mr Latham said he took into account in making his decision to support an office development with 14,000 square metres devoted to office space was the survey carried out in May and June 1988 which revealed that the level of employment in Civic at the time was 23,600. He considered the reasons for the level of employment below that which was expected were that office space was not being utilised fully, being set aside for possible future occupation and that the average amount of space per worker was of the order of 21 square metres.

58. The fourth reason for the change in approach was that there was a reduction from 17,600 square metres as the possible office component of the new building proposed to 14,000 square metres to be used for offices. This was said to be a reduction of 3,600 square metres although clearly some of the larger building might have been used for shops or other facilities.

59. The fifth factor was that by mid-1988 the programme that the Commission had begun before the end of 1987 to provide up to 3,300 additional carparking spaces in Civic had been completed. The carparking spaces were in place and the programme was then on line to produce more carparking spaces should it become necessary. Mr Latham considered that with those parking spaces in place the matter was a management problem rather than a planning problem.

60. The sixth factor related to pressure from various sources, which I describe, I trust without offence, as lobby groups, who wrote to the Commission at various times before June 1988 requesting the Commission to take into account the needs of their industries and the needs of the economy.

61. The seventh factor related to the state of the building industry as a component of that economy.

62. I take these reasons in turn. I am unable to see that the fact that there was potential Commonwealth office space in other areas warranted the change of attitude by the Commission. The question must surely have been not whether Commonwealth office space should be available in other areas, thus drawing off, as it were, the need for Commonwealth office space in Civic, but whether the proposed building which had until that point been seen as something which would erode the efforts then underway to bring parking, transport and development back into balance, had in some fashion lost that potential and become acceptable from a planning point of view.

63. The argument as to parking spaces seems to me to be illogical. As Mr Latham said, the Commission had undertaken and begun before the end of 1987 to provide up to 3,300 additional carparking spaces in Civic and by June they had been completed. Indeed, as appears from Mr Latham's press release of 20 July 1987, the planning had taken place as far back as that date with an expected finishing date of 31 December 1987 for the 3,300 spaces. They would certainly have been completed long before a building might have been erected on the land had the Ministerial submission of 6 November 1987 supported rather than opposed the redevelopment.

64. The third factor, that relating to the May-June 1988 level of employment of 23,600, a figure accepted by the objector Mr Harrison but challenged by Mr McNamara, gives more support to Mr Latham's argument. However, again it seems to me that it ignores the fact that buildings capable of accommodating 32,000 office workers were at the date of the 1989 plan either approved, in the process of construction or complete. And again, as I have earlier indicated, commercial pressures would have seen to it, I think, that the level of employment in Civic would have risen rapidly beyond the 23,600 and come close to the figure of 32,000.

65. The next factor was the reduction in office floor space from 17,600 square metres to 14,000. Assuming that each office worker would occupy an average of 20 square metres, that the whole of the building originally planned would have been used for office accommodation and that the remaining 2,000 square metres in the building now proposed would not generate any requirement for workers, the reduction would have been from 880 office workers to 700, a reduction of 180 workers. Taking an accommodation figure of 21.6 square metres per worker the figures would have been 850 and 648, a difference of 166. Even had the accommodation figure been as low as 16 square metres per person the difference would have been between an upper figure of 1,100 and a lower figure of 875, or a difference of 225. None of these three lower figures seems to me to detract from the proposition that whether the building to be developed contained 17,600 square metres of office space or 14,000 square metres of office space the proposed development would still be a very large office development, to use the words of the press release of 6 November 1987. In addition, it must not be forgotten that 2,000 square metres can be expected to be occupied by shops and facilities of various kinds so that while the number of workers in that 2,000 square metres may not be proportionately as great as in the remainder of the building, it nevertheless will reduce considerably the gap between the numbers expected to occupy the building as first proposed and those expected to occupy the building now proposed.

66. Mr Latham said in support of his fourth reason that the fact that there would be less office floor space used would assist in achieving the Commission's aim of some increased diversity of uses within Civic. It seems to me, however, that the essential question to be considered is not whether there would be a diversity of uses in Civic but whether the very large office development which had added to it a component of shops and other services ought to have been supported.

67. I have already dealt with parking, the fifth factor, to some extent in dealing with Mr Latham's second main reason. At this point it is appropriate to point out that Mr Harrison carried out a survey of parking in nearby suburban streets. This survey which I take to be generally accurate subject to the tolerance which he himself imposed, showed kerbside parking in nearby suburbs where no time limit was imposed to total 1,496. It was taken in October 1988 and represents a very substantial number of drivers who have to be persuaded into using the relatively expensive carparking spaces provided as a result of the Commission's initiatives in 1987-1988.

68. As to the sixth factor, pressure from lobby groups, I say that although such pressure seems to have been undoubtedly legitimate, it is hardly a reason for the Commission to change its mind so suddenly and completely.

69. As to the seventh factor, the state of the building industry as a component of the economy, I do not think that it was a legitimate factor influencing the change although it might well be a matter for self-congratulation if, as an incident to a valid change of use, an improvement in the economy were effected.

70. It is to be noted that Mr Latham did not advert to traffic in his evidence concerning the factors which led to the Commission's change of mind. I am satisfied, as already indicated, that traffic in Civic has already become a serious problem. When the town centre of Gungahlin is developed it will become an even bigger problem unless very expensive roadworks can solve it. Additionally I note that the traffic and public transport figures took no account of University or T.A.F.E. students whose numbers, at least in term time, would exacerbate the problems.

71. I have referred to a minute by Mr Geoff Campbell, the Commission's Chief Planner, dated 23 May 1988 which opposed the development. An earlier memorandum of his had taken a similar view. I do not make too much of the rejection of Mr Campbell's recommendations, accepting that, given a difference of opinion, the Commissioner was entitled to overrule his subordinate.

72. What seems to me to be the more difficult problem is his apparent rejection of some of the facts set out in Mr Campbell's memorandum of 23 May 1988. There, under the heading "Detrimental Effect and Traffic/Parking Issues" he said:

"This development could add:
. 880 employees (@ 1:20m2) to Civic
. 528 cars (@3:100m2) to Civic
. of which 176 cars (@1:100m2) would be located on
site.
The impact of the above could add to problems of Civic
car parking provision, of bus services, of road traffic
and of resulting air and noise pollution.
CE advises that at present Civic short stay carparking
is in balance; Civic long stay carparking is also in
balance at approximately 11,000, but there are some
1,600 cars in overspill in surrounding residential
areas and a further 1,600 in illegal and informal
parking locations.
The CE has advised the Commission that the capacity of
several roads and junctions of Civic are reaching saturation.
The Director of Environment has advised the Commission
of several areas (in particular Northbourne Avenue)
where environmental standards are not being met."

It seems to me that such an apparent rejection is hardly warranted by the reasons given by Mr Latham.

73. It should be noted, incidentally, that, although Mr Campbell said that 176 cars (the figure would now be 160) should be located on site there would be a nett gain of only 90 or 85 spaces since the land is used informally for the parking of 70 to 75 vehicles daily.

74. Again, it seems to me to be more difficult to explain a conversation which Mr Latham had with Mr Michael Moore on 28 May 1988. Mr Latham's version of what happened, a version I see no reason to doubt, was that Mr Moore rang the office of the Commission on Saturday, 28 May 1988 and he answered the phone. Moore said to him "I would like to know what the situation regarding the Canberra Times site is. I hear rumours that a development is going to be allowed to proceed." Mr Latham replied that the Commission's position had not changed for it continued to oppose an office development of 17,600 square metres.

75. I am unable to accept the reasons given by Mr Latham as valid and enough to support the Commission's change of position reflected by its attitude to the application. Whatever way one looks at the matter the proposed development is a very large one which will generate many problems. I place no particular emphasis on the parking problem, accepting that, although it will be very difficult, there is a possibility that persons using nearby suburban streets for carparking may be persuaded to use pay parking stations or open spaces, or that some of them may be persuaded to use public transport to get to work.

76. As to the use of public transport, it seems to me that the evidence, particularly that of Mr Cooper, does not support the optimistic forecast that there will be a sufficient shift of use to public transport to solve the problem at least in large measure.

77. In considering this matter I have paid careful attention to what Morling J. said in his unreported decision on an application by Morpath Pty Ltd in respect of which his unreported judgment was handed down on 27 November 1987. In particular I have paid attention to what he said at pp 12-18 of that judgment. I accept on consideration of the evidence that the proposed development conforms with the Commission's current planning proposals for the subject land and that the Commission has taken into account some of the problems, particularly problems as to parking, which might well have militated more strongly against the application than would have been the case had the Commission taken no action.

78. Nevertheless, it seems to me that this is a case where longer term interests ought to prevail. If I were to grant this application I would be compounding a situation where problems of great magnitude come into existence as a result of developments like those proposed. The community as a whole will suffer.

79. Underlying the evidence which I heard on behalf of the applicant seemed to be the viewpoint that the application is concerned with a Central Business District, that such Central Business Districts throughout Australia and, no doubt, throughout the world, suffer traffic congestion, lack of parking space, noise and chemical pollution and other problems and there is no reason why Canberra's Central Business District should not put up with those problems at least some degree. But it is not necessary that this should be the case in Canberra. The Metropolitan Policy Plan seems to me to be still a valid document even though it does not deal specifically with the land. That Policy Plan considered an appropriate upper limit of employment in the Civic district as 27,000. I do not think that the Commission was bound by that figure because some tolerances must be allowed in planning to take account of unforeseeable or unforeseen contingencies and events. But it seems to me that what is proposed here would result in a large increase in what on the evidence is already well on the way to being an overcrowded business area which will require for its proper servicing the expenditure of vast sums of money. As to this I accept the estimates given by Mr Morison, taken from a draft report on Transport Implications of City Development prepared in June 1985, that the expenditure on transport to serve properly its growth from a work force of 27,000 to one of 35,000 would be $586,000,000 for capital works, including $300,000,000 to establish a public transport system less sensitive to delay on the roads, with estimated increased operating costs of $10,000,000 a year. Those figures would now, four years later, be much higher. I think this court can accept that in the current economic climate it is most unlikely that the vast sums of money which will have to be spent to put into place the necessary supporting infrastructure will be available.

80. In my opinion the application should, in the exercise of the discretion referred to above, be dismissed. There will be an order accordingly.