SOUTH EVELEIGH: In the week before Christmas, a Development Application Modification (DA Mod) to expand retail uses from the South Eveleigh Locomotive Workshop development went on exhibition. It proposed the permanent use of the western portion of Innovation Plaza for retail premises, expanded outdoor seating areas and building envelopes for structures and awnings. The exhibition finished at the end of January, so readers of the SSH and those who took a traditional Christmas break probably missed this important DA Mod.
This DA Mod is important because it seeks to encroach on public space designated within private land. When Mirvac purchased the Australian Technology Park (ATP) it entered a positive covenant (agreement) to maintain agreed areas for public access and recreation. This access is protected by an easement registered over the public portions of South Eveleigh by UrbanGrowth, and subsequently transferred to the City of Sydney Council (CoS).
Under the easement the public “has a full, free and unimpeded right to enter the Public Access Areas for the purpose of public passive recreation and thoroughfare and to remain upon and pass and repass to, from and across the Public Access Areas at all times”. In addition, apart from some temporary specified purposes “Public Access Areas must remain open at all times so that any Authorised User may exercise the rights created by this easement”.
The Mirvac DA Mod is for “the permanent use of the western portion of Innovation Plaza as a ‘retail premises’ use”. This use conflicts with the public access easement and hence should not be permitted.
Neither the easement nor the positive covenant are mentioned in Mirvac’s DA Mod documents, nor are their implications assessed. Surprisingly no mention is made of pedestrian movements through the plaza to and from Alexandria with only bike movements assessed. The Bay 1 and 2 North loading dock accessed through the plaza is also not shown or its impact discussed, nor is what happens to the heritage equipment currently in the plaza.
DA Mods are a common way for developers to change the approved plans for a development. Usually they relate to a change that was unanticipated or unclear when the original DA was submitted. A good example recently at South Eveleigh was the discovery of a 1940s mezzanine in Bay 15 that no one knew was still there. It was discovered during demolition so the developer needed to get approval for how it dealt with the mezzanine through a DA Mod.
DA Mods also provide an opportunity for the developer to “push the envelope” and increase the size or value of a development. The Innovation Plaza DA Mod seems to fit into this latter category by expanding the commercial activity of the Locomotive Workshop into Innovation Plaza, thereby creating new commercial tenancies in the public domain under the guise of activating the plaza.
Council has an important role to play over what happens in Innovation Plaza and other public space in South Eveleigh. In response to public concerns about the ATP sale in 2014, CoS commissioned HillPDA Consulting to do an independent review of the opportunities and risks of the sale. The report recommended protections be put in place. CoS is specifically referenced as the transferee/beneficiary of the easement, which gives it an important role in protecting access and public space at South Eveleigh. It can enforce the public rights under the easement.
While Mirvac’s DA Mod 7 for Innovation Plaza has some state significant aspects, like extending commercial operating hours throughout the development from 12 midnight to 1am, the plaza development aspect would need CoS to approve DAs for commercial activities and construction in the plaza.
Both CoS and the Department of Planning need to consider easements in determining DAs and Mods. CoS also needs to be mindful it has a role to protect public access under the covenant and to take action to enforce it if necessary.
