Agostino & Anor v Penrith City Council

The Application 4 The application proposes to increase the retail area of the store from approximately 150 m2 to 286 m2 being a 91% increase in the current retail area and to increase the total floor area of the store (including cool room) to 424.5 m2 resulting in a 160% increase in the total floor area. The application also proposes the addition of a "deli counter". Such section would be used for the retail sale of a range of products currently offered for sale including ready-made pasta, bread and dairy products such as milk. The application also seeks consent for the sale of cheese from the "deli counter". Cheese is not within the range of products currently authorised for sale from the store.

5 The store commenced operations approximately 20 years ago as a roadside stall selling produce grown on the site. Such use was not a permissible use pursuant to the prevailing planning instruments. However, it was regularised in 1991 when the council amended the LEP ("amendment 1") to "spot zone" the site to allow the lawful operation of the store. Consent was granted in accordance with the LEP for the use of the store on 6 July 1992.

6 Amendment 1 permitted operation of a fruit and vegetable store on the site but restricted the floor area of such development to 150 m2. The floor area was defined in amendment 1 as being the total area used for display, sale and storage of goods whether or not in the same building. However it was realised that the floor area of the store exceeded the prescribed floor area of 150 m2 if the ancillary facilities were included comprising the cool room located inside an adjacent agricultural shed. 7 Accordingly on 28 April 1997 an application was made by the applicants to amend the definition of "floor area" in amendment 1 to exclude the floor area referrable to bulk storage of produce. The rezoning application further sought to amend the definition of "fruit and vegetable store" to allow the sale of additional products including potted plants, pasta, eggs and honey. 8 The amendments sought were approved by council and the LEP was amended to incorporate such changes. The LEP now provides:- Development of certain land at Llandilo 41. (1) This clause applies to land situated adjacent to Third Avenue, Llandilo, being Lot 2, DP 221473, shown edged heavy black on the map marked "Penrith Local Environmental Plan No. 201 (Rural Lands) (Amendment No. 1)".

(2) For the purpose of this clause: "floor area" means the whole of the area used for the display and storage of goods and merchandise within a fruit and vegetable store, but does not include an area used for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale; "fruit and vegetable store" means a building or place used primarily for selling or exposing for sale by retail, fruit and vegetables and, as an ancillary use only, the selling or exposing or offering for sale by retail of bread, milk, cigarettes, confectionary, soft drinks, fruit juice, flowers, potted plants, pasta, eggs and honey only. (3) Notwithstanding any other provision of this plan, a person may, with the consent of the council, carry out development on land to which this clause applies for the purposes of a fruit and vegetable store with a maximum floor area of 150 sq.m.

(4) The council shall not grant consent to the carrying out of development as referred to in subclause (3) unless arrangements satisfactory to the council have been made with the council or the Water Board with regard to the supply of water and disposal of effluent.

Current Planning Controls 9 The land on which the site is located is zoned 1(a) (Rural "A" Zone - General) under the LEP. The zoning table for zone 1(a) has the following relevant objectives: The objectives are: a) to protect and enhance the scenic quality and rural character of the locality; and b) to ensure that development is compatible with the environmental capabilities of the land and to encourage the conservation and enhancement of natural resources by means of appropriate land management techniques; and c) to protect productive agricultural and horticultural land which supplies product to the Sydney markets; and g) to ensure that the form, siting and colours of buildings, building materials and landscaping complement the natural scenic quality of these localities; and i) to ensure that views from main roads and the rural character of the locality will not be adversely affected;

Preliminary issues for determination 10 The Court must consider two distinct threshold issues. Firstly, whether cl 41(3) of the LEP is amenable to an objection under SEPP 1, and secondly whether the SEPP 1 objection ought to be upheld because compliance with the standards would be unreasonable or unnecessary in the circumstances. 11 The objective of SEPP 1 is stated as follows: 3. This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.

Is Clause 41(3) amenable to an objection under SEPP 1? 12 The classification of a provision of a planning control as either a prohibition or development standard requires careful analysis. Only if it is a development standard do the provisions of SEPP 1 operate. Clause 41(3) of the LEP prescribes the maximum floor area allowable for the fruit and vegetable store. Ordinarily a provision fixing a standard for the floor area of a development could readily be identified as a development standard. Indeed the definition of "development standard" in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") includes "cubic content or floor space of a building" as an example of an aspect of development which may be regulated by a development standard. 13 Guidance was recently provided by the New South Wales Court of Appeal in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, wherein Giles JA detailed the approach to the issue of classification. The analysis adopted by Giles JA (at 343) requires a determination of whether there is "a development in respect of an aspect of which the provision specifies a requirement or fixes a standard." This is tantamount to inquiring whether the provision merely regulates an aspect of permitted development or whether it defines the only permissible development. If the answer is the former, the provision constitutes a development standard. If the provision is the latter, it constitutes a prohibition upon any development which does not comply with its requirements.

Effect of Clause 41(3) of the LEP 14 Clause 41(3) of the LEP is not a provision relating to a class of developments or a particular zone but applies specifically to the land the subject of these proceedings. Such clause comprises part of the very instrument which renders the use of the store lawful, since cl 41 is directed solely to that use and to no other. Accordingly, the legislature has established specific requirements for the use on this site as reflected in cl 41 of the LEP. 15 The entirety of cl 41 describes different aspects of the only permitted development on the site, rather than specifying requirements in relation to aspects of that permitted development. In Poynting at 329 Giles JA considered the judgment of Holland J in Kruf v Warringah Shire Council (unreported, Land and Environment Court NSW, 15 December 1988) and reasoned that Holland J had in essence found that the provision at issue in Kruf "…expressed an aspect of the permitted development, and was not a requirement in relation to an aspect of the development". Accordingly the provision constituted a prohibition and could not be the subject of a SEPP 1 application.

16 Clause 41(3) of the LEP is not a development standard regulating an aspect of a permitted development. It specifies the characteristics of the only permissible development on the site, that is, a fruit and vegetable store having a maximum floor area of 150 m2. The LEP makes provision for the exact area of the store and so classified constitutes a prohibition of any expansion. A development not meeting the criteria specified in cl 41(3) is prohibited by the LEP. To allow the relaxation or waiver of any of the requirements of cl 41 would amount to an alteration of the specific provisions of the LEP which delineate the only permissible development for the site. 17 The Court is bound to give effect to the express legislative intent regarding the permissible development on the site. It follows that the provisions of SEPP 1 which provides for flexible application of development standards has no application to a development permitted by the provisions of a planning instrument which specifically prescribes that development and no other. Accordingly the Court finds the applicants' SEPP 1 objection must fail. Additional items proposed for sale 18 The applicants also seek to expand the range of goods offered for sale to include cheese. Clause 41(2) of the LEP provides an exhaustive list of items which are to be offered for sale from the store. 19 The items listed in cl 41(2) of the LEP as ancillary to the retail of fruit and vegetables are not examples of a class of ancillary goods. Rather the definition comprises an exhaustive list of all goods which may be retailed from the store. For the reasons already given concerning rejection of the increased size of the store, the Court must reject the application for the sale of an increased range of goods. Such is prohibited by the provisions of cl 41(2) of the LEP. The only avenue available to the applicants to achieve their objectives is by way of amendment to the LEP.

Merit Issues 20 In light of the above findings it is unnecessary to determine the merits of the application as required by s 79C of EP&A Act. Nevertheless, the Court makes the following general observations. 21 The extension of the building proposed in the application would not adversely impact the rural character of the surrounding locality. The store is located on a large block of land and is positioned to the left side of the block when viewed from the street frontage. The proposed extension would locate the store more evenly on the site and would not adversely impact on the scenic quality of the landscape. The Court would have granted the extension in size of the building if it were required to determine this issue on its merits. 22 The Court would have rejected the proposed increase in the range of retail items proposed by the applicants and the addition of a deli counter. The increased range of goods proposed to be sold would alter the character of the "fruit and vegetable store" to a vegetable store and delicatessen, akin to a convenience or general store. Clause 18 of the LEP contains a prohibition upon general stores being located within 3 kilometres of one another. The existing general store is distanced approximately 1½ kilometres from the applicants' premises. If approved an anomaly would result. 23 The LEP also contains a limitation upon the floor space area of a general store limiting it to 200 m2 (cl 18 of the LEP). The proposed alteration to the vegetable store would increase its size beyond the 200 m2 limit. If approved another anomaly would result. 24 Additionally, the economic impact of increasing the product range of the store would adversely affect the supermarket at Llandilo Village. The Court accepts the testimony of Mr Rocco Fabiano, proprietor of the supermarket, that a substantial component of the local trade attracted to Llandilo Village would be diverted to the store if it were permitted to retail items typically found in a convenience or general store. The potential loss of the valuable service which the Llandilo Village supermarket provides the community is an important planning issue. Stephen J (with whom Mason and Aicken JJ agreed) in Kentucky Fried Chicken Proprietary Limited v Gantidis & Anor (1979) 140 CLR 675 said:- If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning.

Such passage was cited by Lloyd J with approval in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 378-379 . 25 Both the Llandilo supermarket and the store provide important but distinct services to the Llandilo community and to allow this appeal (if the Court had power to do so) would disturb the present balance. Accordingly, the Court on merit would have refused the application to expand the range of products sold by the store to include cheese and other grocery items.

Orders 26 The Court makes the following orders:-

1. The application filed 12 December 2001 be dismissed.
2. Exhibits be returned.
3. The issue of costs be reserved.

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