Pub: Sydney Morning Herald
Putting the squeeze on Orange Grove
Principle before pragmatism might cost jobs, but the Government has our city’s planning future to worry about, writes Elizabeth Farrelly.
The last temptation is the greatest treason
To do the right deed for the wrong reason.
– Thomas Becket in T.S. Eliot’s Murder in the Cathedral.
“Clearly there are a lot of challenges beyond the Oasis,” prophesied administrator Gabrielle Kibble upon collecting the chalice of doubtful reputation that is Liverpool Council. That was March – the ides, as it happens. And how right she was, though whether the Kibble nostrils were already twitching to the presence of something fishy in the scented orchards, history does not record.
Much has been written of the Orange Grove affair, mostly of the how-much-did-he-know-and-when-did-he-know-it variety. Beneath the froth, though, it’s a classic Sydney planning issue, an epic struggle between the rule players and the rule benders. How ironic if the Government should get it in the neck just when attempting to stick with planning principle for the first – or maybe second – time in a decade. Which makes the real question this: does it actually matter why the Carr Government was determined to play by the rules, this time? Is fairness its own justification? Or was Becket right – is it, in fact, “the greatest treason to do the right deed for the wrong reason”?
Orange Grove is a fairytale of our murky, multicultural, privatising times; a tale of boundaries blurred and lines scratched, a tale where every threshold – legal, planning, cultural – has been tested and stretched beyond recognition. A tale pitting politicians against former political advisers, directors-general against former directors-general, sleazoid type A against sleazoid type B. It makes the convicts versus the redcoats look like child’s play.
Let’s start with the facts. In November 2002 Liverpool Council approved a change of use on the Orange Grove Road site from bulky goods (like the adjacent Megamart) to so-called “factory outlet”. There was no factory within cooee and the zoning prohibited retail operations, but no objections were raised. (Westfield Ltd, which has a shopping centre in Liverpool and appealed against the rezoning, says it didn’t even know of the proposal, since the council advertised it only on page 33 of the local paper.)
The development application was approved not by the councillors themselves but by council staff under delegated authority. This shows remarkable courage, given the usual bureaucratic penchant for cover and the fact that the proposal was eventually found to have been illegal. Even allowing for the semantic lubricant used to slide factory outlet into the not-shop category, you’d expect the bureaucrats to be a little warier in exposing their body parts like that. That was in April last year. Construction got under way in June.
Suddenly Westfield woke up and initiated its court proceedings. The council, no doubt recognising just how slippery the slope was getting, asked the Minister for Infrastructure and Planning, Craig Knowles, for a retrospective rezoning (if the facts don’t fit the theory …). The site owner, Nabil Gazal’s Gazcorp, seemingly unperturbed, just kept building.
By November the building was complete; it was certified by the council and opened by Knowles, although he and the council then knew it was unlawful. A staff briefing note to Knowles had even conveyed an invitation to join Westfield in legal proceedings against Gazcorp: Knowles declined.
Two courts – the Land and Environment Court in January, then the Court of Appeal in March – found in Westfield’s favour: that is, that the retail use of the Orange Grove Road site was unlawful.
Meanwhile, the plot was substantially thickened by the addition in March of the redoubtable Kibble, former matriarch-general of planning, then housing; chairwoman of Sydney Water, daughter of former governor-general Sir John Kerr. On March 16 Liverpool Council had been sacked and Kibble appointed as administrator in its place. She upset the former mayor by alleging casually that she could do the job in one day a week – but then she probably wasn’t spending much time on glam new oases for the suburbs.
Nonetheless, Kibble surprised everyone by supporting the rezoning proposal. Her first council-meeting-of-one resolved, without debate, to reinforce the rezoning request to Knowles by asking him to enshrine it in a new local environmental plan.
This, for a former chief planner, was remarkable. Kibble, though, was characteristically unrepentant. To Liberal MLC John Ryan’s proposition, during the parliamentary committee inquiry into the affair, that “this rezoning would cause planning chaos because it would allow spot rezoning all over the place”, Kibble responded with a shrug: “Spot rezonings happen all the time. Spot rezonings are not unusual. Would it cause planning chaos? Well, they have to be considered on their merits.” On their spots, as it were.
As might be expected, the Director-General of Planning, Jennifer Westacott, took quite the opposite tack. She elected to gainsay not only the council but her own department’s pro-rezoning advice. Westacott is not a planner. Her arguments were forceful, principled and to the point.
Some, said Westacott, argued that the practice of spot rezoning to legalise an illegal consent was a “mere planning technicality”. But this was not the case, she insisted, citing Justice David Lloyd’s crystalline judgement in the Land and Environment Court that “the system of planning control would be set at nought if a use of land which is prohibited by an environmental planning instrument is allowed to continue … If this were accepted it would mean that business and economic considerations should prevail over planning controls.”
Which, it seemed, was precisely Kibble’s ambition. “I took the decision to support the rezoning … for … social and economic reasons,” she said. “That is to say, there had been decisions and there was employment there.” Like, who needs principle when there’s good old-fashioned blow-with-the-windism to rely on.
The Gazcorp team was of similar mind; Gerry Turrisi, one of the council’s planning staff who had so courageously approved the development in the first place, has since done a bit of work for Gazal’s architect, Frank “I know Craig Knowles very well and have been to his house on many occasions” Mosca. Gazal himself took the uh-I’m-simply-bewildered stance, reflecting during the inquiry: “I have donated money only to the Labor Party – maybe not enough.”
The turn-up, though, was Westfield. Fronted here by Mark Ryan, a former senior adviser to Paul Keating, Westfield has made a life’s work of sucking the life blood from town centres by building vast shopping malls on, or beyond, or even (as in Bondi Junction) within the outskirts. Westfield is in the throes of a $150million extension of its existing Liverpool Shoppingtown, joint-ventured 50/50 with AMP. The asset manager nevertheless explicitly supports the rezoning, since it is proposing to build a similar, bigger version itself just down the road at the Casula Crossroads.
And yet here is Westfield arguing not from self-interest but from principle. Not saying it wants Orange Grove deleted because it’s bad for business, which is clearly the case, but arguing tooth and nail for the so-called Centres Policy. This has been in place in one form or another since the Cumberland County Planning Scheme of 1951 but you’d never know it because it’s never been implemented, till now. Quoting extensively from the Government’s own policy on the issue, Westfield argued for strong polycentric development controls and quality architecture, supported by efficient public transport. Beat that.
And there you have it; ex-planners arguing that planning is an exercise in walking gently backwards, non-planners (who run planning, but for the politicians) cementing themselves to principle; and developers pushing for the bag on the one hand and the money on the other.
Which brings us back to the question. Does why matter? We expect Westfield’s motives to be mixed, of course. But should it concern us if the various Government ministers (Carr, Knowles, the Assistant Planning Minister, Diane Beamer) had devilment in their hearts gainsaying the roses in their hands?
I don’t think so. Planning is a city’s superannuation policy: invest now, breathe later. When our children’s children’s children are drinking the water or walking the wilderness saved (one can only pray) by our wise noughties planning, the besmirchedness of our pollies’ souls will be well forgotten.
The argument here is not about jobs or money; after all, Liverpool Council’s own report foresaw an $18million loss to the Liverpool CBD resulting from the proposed rezoning. It’s not about who talked to whom; after all, politicians are supposed to meet their constituents. And it’s not about discount shopping or whether the mega-rich should be helped to kneecap the merely rich. That’s all froth. Erase Orange Grove and the jobs will pop up elsewhere.
There are, though, compelling reasons why major trip generators – like discount retail – should agglomerate in centres where public transport is at least an option, and where the buzz will have a cultural spin-off.
Zoning is essentially a land-value preservative: Orange Grove can offer discount shopping because it uses cheap buildings on cheap land; land that is cheap precisely because it has been zoned industrial. Let retail happen there, it can happen anywhere, and there will be chaos.
On yer, Bob! May the iron be in your soul, and the fish sleep happy in your oasis.
THREE PHOTOS: The Orange Grove centre, emptying fast, after the courts held firm on an order to close. Prominent in the controversy have been, from left, Craig Knowles, Gabrielle Kibble and Nabil Gazal. Main photo: by Adam Hollingworth