Altz Pty Limited v Shellharbour City Council

Land and Environment Court (NSW)|2014-10-14

Judgment 1COMMISSIONER: This is an appeal against the refusal of DA174/2014 for the "Erection & fit out of a separate neighbourhood shop (80 sq m) within the existing unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail (the site). 2The council maintains that the development application must be refused as the proposed development is a "shop" and is prohibited. The applicant maintains that the proposed development is properly characterised as a "neighbourhood shop" and is permissible. If the Court finds that the proposed development is a neighbourhood shop then the council maintains that the development ought be refused because it is in conflict with the zone objectives and is not in the public interest. The applicant maintains that the contentions relating to zone objectives and the public interest are not reasons to refuse the application.

History 3On 22 January 2001, council granted consent, subject to conditions, for the demolition of existing sheds and construction of a bulky goods retail building at 9-11 Princes Highway, Albion Park Rail. Condition 30 required a separate Development Application to be made and consent obtained for the initial use of each of the units. On 22 November 2001, council granted consent to development application No. 710/2001 for the use of Unit 2 for the retail of paints and wallpaper. 4State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 commenced on 27 February 2009. By Complying Development Certificate No. 643/10 dated 5 September 2011, an accredited building certifier determined and issued a complying development certificate for development described as ''Bulky Goods Retail (Home Healthcare & Medical Supplies) Fit Out of Existing" in premises described as Units 1/2, 9-11 Princes Highway, Albion Park Rail. 5By Modified Complying Development Certificate No. 643/10 dated 6 October 2011, an accredited building certifier issued a modified complying development certificate for development described as "Bulky Goods Retail (Home Healthcare & Medical Supplies) Fit Out of Existing" in premises described as Unit 2, 9-11 Princes Highway, Albion Park Rail. 6The council, following an investigation of an alleged unauthorised activity formed the view that the activities in Unit 2 were prohibited, being characterised as a shop. This ultimately led to the submission of DA174/2014 for the proposed development.

The agreed facts 7The site is within Zone IN2 Light Industrial under Shellharbour Local Environmental Plan 2013 (LEP 2013). Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 8The zone objectives are: · To provide a wide range of light industrial, warehouse and related land uses. · To encourage employment opportunities and to support the viability of centres. · To minimise any adverse effect of industry on other land uses. · To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. · To support and protect industrial land for industrial uses. 9The Dictionary to LEP 2013 provides the following relevant definitions: shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop, but does not include food and drink premises or restricted premise Note. Shops are a type of retail premises-see the definition of that term in this Dictionary. neighbourhood shop means premises used for the purposes of selling general merchandise such as foodstuffs, personal care products, newspapers and the like to provide for the day-to-day needs of people who live or work in the local area, and may include ancillary services such as a post office, bank or dry cleaning, but does not include restricted premises. Note. See clause 5.4 for controls relating to the retail floor area of neighbourhood shops. Neighbourhood shops are a type of shop-see the definition of that term in this Dictionary. 10A "shop" is a prohibited use in Zone IN2 whereas a "neighbourhood shop" is a permissible use, with consent. 11Clause 5.4(7) states: (7) Neighbourhood shopsIf development for the purposes of a neighbourhood shop is permitted under this Plan, the retail floor area must not exceed 80 square metres. 12The proposed development satisfies cl 5.4(7).

The proposed development 13The proposed development is described in the Statement of Environmental Effects (SEE), that accompanied the development application, in the following terms: This Development Application is for a Neighbourhood Shop to sell general merchandise, including personal care products and the like, to provide for the day-to-day needs of people who live or work in the local area. The proposed Neighbourhood Shop will have a total area of less than 80 sq m and will be located adjacent to the existing approved Bulky Goods Retail - Home Health Care and Medical Supplies at the existing premises. 14The specific details include: (a) the proposed neighbourhood shop is fully contained within Tenancy 2, the premises which are the subject of the Application which this Assessment addresses; (b) the proposed neighbourhood shop is provided with direct independent access, with doors provided at the front elevation, immediately adjoining a 36-space carparking area; (c) such access is provided equitably; (d) the floor area of the proposed neighbourhood shop does not exceed 80m2; (e) aisleway widths within the neighbourhood shop are wheel-chair accessible as is the whole of the premises comprising Tenancy 2; (f) a fully-equipped and fully-compliant pharmaceutical dispensary is to be contained within the neighbourhood shop area; (g) the neighbourhood shop is fully self contained, including the provision of a "Point of Sale" facility, in addition to and separate from that for the adjoining Bulky Goods store; h) as stated earlier in this Assessment, there are no structural building alterations, modifications or other building modifications proposed. To be clear, no external changes are proposed except for advertising signage, addressed separately below; i) The proposed hours of operation will be: Monday to Friday 8:00am to 6:00pm Saturday 8:00amto 4:00pm Sunday 10:00am to 4:00pm j) The staffing component for the Neighbourhood Shop is proposed to be three (3) equivalent full-time persons; including, at any and all times of opening, a registered pharmacist, as lawfully prescribed. To be clear, no overall increase to staffing levels as previously approved for Tenancy 2 use, are proposed; k) Any parapet and awning signage will not exceed lawful requirements. The colour palette will be as existing, retaining the corporate livery of the tenancy; and l) With reference to the servicing, any deliveries will be made on an 'as required' basis, for re-supplying, warehouse, storage, and related needs of the proposed site use, anticipated to be no more than once daily. Such goods deliveries will be made to the rear of the premises (Unit 2) accessed via the existing service laneway. Service delivery vehicles will be Toyota Hi Ace Van or similar. No servicing vehicles will be stored on-site. 15An indicative range products to be sold from the proposed development (Exhibit C) are: PRODUCTS LIST BY SUB-DEPARTMENT SUB DEPARTMENTS NEIGHBOURHOOD SHOP BULKY GOODS (ANCILLARY) BABY CARE baby accessories baby care cleaner formula nappies CONFECTIONARY chewing gum and mints chips chocolates and lollies drinks medicated sugarless COSMETICS Selected items FAMILY PLANNING Selected items FIRST AID ear plugs manuka honey measures itch preps general first aid hot/cold packs medical bracelets supports mouth guards surgical scrubs scar treatment wound care sport rubs/creams sport therapy wheat bags wound care GENERAL MEDS general meds inhalations analgesics anti-fungals cold sore cough and cold eye care ear care digestive health anti-smoking snoring inhalations GIFTS Selected HAND and FOOT hand care hosiery manicure nail prep HOUSEHOLD dish washing batteries laundry disinfectants/sanitisers/hygiene batteries facial tissues disinfectants/sanitisers/hygiene toilet tissues facial/toilet tissues ORAL CARE dry mouth floss mouth rinse tooth brush tooth paste PERFUMES Selected PERSONAL HYGIENE body wash Incontinence products deodorants depilatory fem hygiene men hygiene shaving soap bathing accessories incontinence products PRESTIGE SKIN CARE Selected items S3 secured SKIN CARE acne care specialist skincare face care skin care SUN CARE after sun lip balms repellents sun screens swim aids hats sunglasses tanning VETINARY secured vitamins minerals herbs supplement probiotics antioxidant VITAMINS complementary medicine Vitamins related to inflammation, rehabilitation, support and healing vitamins minerals herbs supplement probiotics antioxidants MISCELLANEOUS Coffee (jars) Tea bags Sugar Milk Cold drinks Bread Newspapers/Mags/Stationery Postage/Mobile Rechargers Dispensary

Is the proposed development prohibited? 16Expert town planning evidence was provided by Mr Victor Ferris, for the applicant and Ms Catherine Bern, for the council although detailed submissions on the characterisation argument were provided by Ms Duggan SC, for the applicant and Ms Irish, for the council. The applicant's submissions 17Ms Duggan submits that for the proposed development to be characterised as a "neighbourhood shop", it must display the following components:

it must be used for the purpose of selling general merchandise,
the general merchandise must be sold to provide for the day-to-day needs of people who live or work in the local area,
it may include ancillary services, and
the gross floor area must not exceed 80 sq m. 18The first component is the requirement that the proposed development sell general merchandise. Ms Duggan notes that the term "general merchandise" is not defined in LEP 2013 so those words must take their ordinary meaning subject to the context in which they are found. The applicant, at the request of the council, provided an indicative list of the types of merchandise that would be offered for sale from the proposed development (see par 14). This indicative list comprises items that could all be described as general merchandise. While the council seeks to distinguish goods which could be described as medicines from general merchandise, they are goods or commodities and form part of the stock of the proposed development and also fall within the definition of personal care products. The purpose of taking medication is to care of one's well-being. 19The definition provides three examples of what types of merchandise constitute general merchandise, being foodstuffs, personal care products and newspapers. The list of general merchandise is not limited to the three examples, as the definition includes the words "and the like". The definition does not specify predominance or non-predominance of merchandise types. This means that it would be sufficient for premises to be characterised as a "neighbourhood shop" if it offered for sale "foodstuffs" or "personal care products" or "newspapers" or some other like merchandise or any composition of them. The attached list of indicative merchandise to be sold from the premises comprises foodstuffs, personal care products, newspapers and the like. In the circumstances the first component of the definition is satisfied. 20The second component of the definition is the requirement that the general merchandise be sold to provide for the day-to-day needs of people who live or work in the area. Foodstuffs, personal care products and newspapers are all examples of merchandise that are sold to meet day-to-day needs. The majority of the merchandise on the indicative list of products to be sold are merchandise that are sold to meet day-to-day needs. They are merchandise that are purchased and consumed on a day-to-day basis but that does not mean that they must be consumed on every day or by every person. Medications both over the counter and by prescription are merchandise that are sold to meet day-to-day needs. In the circumstances, the second component of the definition is satisfied. 21The third component of the definition of "neighbourhood shop", that refers to "ancillary services" is optional. It permits but does not require the provisions of "ancillary services". LEP 2013 does not define ancillary services but it gives three examples of what constitutes "ancillary services". These are post office, bank or dry cleaning. One exclusion is provided in the definition for "restricted premises". 22The Macquarie Dictionary provides the following relevant definitions: Ancillary: accessory; auxiliary. Accessory: a subordinate part or object; something added for or attached for convenience, attractiveness, etc. Auxiliary: giving support; helping; aiding; assisting. 23Ms Duggan submits that it is clear from the context in which the words are used that "ancillary" is not intended to mean ancillary in the legal sense used in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. As stated earlier, the sale of medications, whether over the counter or by prescription is the selling of items of general merchandise being either personal care products or products like personal care products. For the purpose of the definition it does not matter whether the product is dispensed or sold over the counter. Both methods constitute the sale of general merchandise. 24In the alternate, the dispensing of a portion of the range of general merchandise would constitute an ancillary service. The dispensary is an accessory and is auxiliary to the sale of general merchandise. The dispensary gives support to and assists the sale of general merchandise. The respondent's submissions 25Ms Irish submits that the definitions of "shop" and "neighbourhood shop" have particular identifying features, notwithstanding that the definition of "shop" includes a "neighbourhood shop". A "neighbourhood shop" has a number of components or essential characteristics that distinguish it from a "shop". These are:
use of the word "neighbourhood",
premises used for the purpose of selling "general" merchandise and examples of "foodstuffs, personal care products, newspapers and the like" and examples of ancillary services such as "a post office, bank or dry cleaning".
the test of "day-to-day needs"
the concept of providing a service for "people who live or work in the local area". 26Although the definition of "shop includes a "neighbourhood shop", it otherwise has a number of components or essential characteristics that distinguish it from a "neighbourhood shop". These are:
premises that sell or hire "merchandise" (without the qualification of it being "general" merchandise, and without reference to any ancillary services),
excluding food and drink premises and examples such as "such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like" usually sold in a shop. 27Given the absence of any definitions in LEP 2013, a dictionary definition of the words "neighbourhood", "general", "merchandise" and words comprising the terms "day-to-day needs" and "local area" is appropriate. In each case, a meaning that is intelligible is required; intelligible in all contexts in which it appears (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [5], [47]). 28The definitions are: "Neighbourhood" (a noun) means "the region near or about some place or thing; the vicinity". It can also mean "a district or locality, often with reference to its character or inhabitants "General" (an adjective) means "relating to, affecting, including, or participated in by all members of a class or group; not partial or particular". It can also mean "common to many or most of a community; prevalent; usual", or "not restricted to one class or field; miscellaneous", or "not limited to a detail of application, not specific or special". "Merchandise" (a noun) means "goods; commodities; especially manufactured goods" or "the stock of a store". "Day-to-day" (an adjective) means "ordinary; happening every day" "Local" (an adjective) means ""relating to or characterised by place, or position in space". It can also mean "relating to, characteristic of, or restricted to a particular place or particular places". "Area" (a noun) means "any particular extent of surface; region; tract" 29The term "general merchandise" accordingly means "goods; commodities" which are "common to many or most of a community; prevalent; usual", or "not restricted to one class or field; miscellaneous", or "not limited to a detail of application, not specific or special", i.e. not special or particular. There are otherwise no specifications as to what constitutes "general merchandise", and accepting that product lines can change over time. 30The term "day-to-day needs" accordingly means "a case or instance in which some necessity or want exists; a requirement" which is "ordinary; happening every day". The critical factor is the scale and frequency of this occurring. 31The term "local area" accordingly means a "region" which is "restricted to a particular place". 32Ms Irish submits that the proposed development must be characterised as a "shop" for four main reasons. First, the actual nature or type of the applicant's proposed business is a pharmacy, as disclosed by both the nature and the range of goods particularised in par 14, and the proposal to use the premises for the purposes of providing "health care services". The nature and range of goods comprises "merchandise" which is not "general" merchandise. The primary feature of the goods proposed to be sold is that their nature and range is "partial or particular", "specific or special" in orientation to pharmaceutical goods including prescription pharmaceuticals and related products ordinarily sold through pharmacies. An area of 17.37% (previously 42% before amendment) of the retail floor area will comprise a pharmaceutical dispensary. In any event, the question involves fact, not just degree. As a matter of fact, the proposed selling of any purportedly "general" merchandise (noting that "personal care products" are a category of goods common to both definitions) will be ancillary to the display for and sale of pharmaceutical goods, and not the dominant purpose of the development. 33It is not determinative that confectionary, coffee in jars, tea bags and cold drinks may as readily be described as "foodstuffs" as "groceries", that hosiery or hats may be sought to be relied upon as examples of "general merchandise" required to meet "day-to-day needs" when both are "clothing", or that newspapers and the like, in addition to stationery, are displayed for sale. Here the purpose is a retail pharmacy, albeit a pharmacy of less than 80 sq m, properly characterised as a "shop" and ultimately not the type of permissible exception defined as a "neighbourhood shop". The applicant cannot claim that the shop can properly be designated as a "neighbourhood shop"by relying on its small size and/or any restrictions that size imposes on the nature and the range of goods when size is already an essential condition for determining the permissibility of the proposed development. 34Second, and as stated in the SEE, the use of the premises is also "to provide "health care services" as well selling "personal care products". "Ms Irish submits that it needs to be noted that "health care services" is not a defined term in SLEP 2013. "Health care", and assuming that the service is provided by a professional person registered under an Act, (as per the definition of health care professional in SLEP 2013), is not a service which is ancillary to selling "general merchandise". "Health care services" is not of the genus of examples of ancillary services in the definition of neighbourhood shop ("post office, bank or dry cleaning") for the very reason that its provision relies upon a registered pharmacist; a health care professional. 35Ms Irish submits that thirdly, the proposed shop is purposefully designed to be part of the provision of a "One-Stop Supplies and Services for Aged and Disabled Persons and their Carers" in the context of a facility for the "Display and Sale of Home Health Care Bulky Goods, Aids and Accessories. This is stated in the SEE and the evidence of Mr Ferris. It is the applicant which has inextricably linked the two purposes. The proposed shop is not for "the region near or about some place or thing; the vicinity". 36The term "local area" (for the purposes of providing a service for "people who live or work" in it) similarly means a "region" which is "restricted to a particular place". The proposed shop is for a particular sector of the population or demographic, namely "Aged and Disabled Persons and their Carers" from a large trade area as far afield as Wollongong, some 25 km away. Accordingly, it is neither a "neighbourhood" shop, nor for the purposes of providing a service for "people who live or work in the local area", noting that the applicant says that "no housing is situated within the immediate vicinity of the subject site". Mere assertions, frequently cast, that the shop is for "people who live or work in the local area" do not make it so, and appear to be for the collateral purposes of meeting the definition of "neighbourhood shop" and satisfying the objectives of the IN2 Zone. 37The above conclusion is supported by the applicant's own positive assertion in the SEE "that no increased personnel/customer visits are anticipated by the conversion of part of the premises as proposed". It is clear that the proposed shop within Unit 2 is to provide for the demographic presently served by the applicant's "Display and Sale of Home Health Care Bulky Goods, Aids and Accessories" in Unit 2. 38Fourthly, the requisite "necessity or want... requirement" which is "ordinary; happening every day" must be that "of people who live or work in the local area". The construction task is not to be determined by assessing the expectations of retail customers of pharmacies. As demonstrated above, the proposed shop is for a particular sector of the population or demographic, namely "Aged and Disabled Persons and their Carers" from as far afield as 25 km; not for the purposes of providing a service for people "who live or work in the local area". Accordingly, it is not to the point whether the applicant could show that a shop (which is not "neighbourhood" in character) could provide a service for a particular sector of the population or demographic which neither lives, nor is confined to working "in the local area", but may experience a "necessity or want... requirement" which is "ordinary; happening every day". A critical factor remains the scale and frequency of this occurring. Also, to bring to the foreground the test of "day-to-day needs", while ignoring whose needs the test mandates, would destroy the intended efficacy of the test. 39Furthermore, it is clear that the proposed shop will stock an unspecified number and range of goods that are beyond a "convenience" or "day-to-day" nature (e.g. gifts, perfumes). 40For at least these reasons, it follows that the proposed development is properly characterised as a "shop" and not the type of permissible exception defined as a "neighbourhood shop". Merit contentions would not need to be considered if the proposal is not permissible on the site. Findings 41The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 where His Honour includes the relevant cases. The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a common sense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. 42In considering the competing submissions and adopting the approach advocated by Chamwell, I agree with Ms Duggan that the use of the site is characterised as a "neighbourhood shop" for the following reasons. First, I am satisfied that the indicative list of products provided by the applicant can be described as "general merchandise". The word "merchandise" already has a broad meaning based on the definition of Ms Irish, even without the additional word of "general". 43The approach of the council to distinguish goods that could be described as goods normally associated with a pharmacy from other goods is not supported by the definition. The definition speaks only of "general merchandise" and specifically identifies examples; the relevant example being "personal care products". Again, "personal care products" are not defined but I accept Ms Duggan's submission that pharmaceutical goods (including prescription drugs) are goods that can reasonably fall within the meaning of "personal care products" as they can maintain and enhance a person's well-being and health. 44I note that Ms Bern, in her written statement, maintained that the sale of pharmaceutical goods would characterise the use as a "shop" but after cross examination, Ms Bern accepted that a pharmacy could theoretically be characterised as a "neighbourhood shop", based on the definition and the reference to "personal care products" as an example of "general merchandise" in the definition. 45If there is doubt that prescription drugs do not fall within meaning of "general merchandise", the area occupied for the supply of prescription drugs occupies only around 17% of the area of the proposed development. The majority of other goods identified in the indicative list of products can be reasonably described as "general merchandise". Pharmacies do not only supply prescription drugs but general observations reveal the large amount of products that are available and which could reasonably be seen as "general merchandise". Many do not need the attention of a registered pharmacist to be sold. Using the approach adopted in Chamwell, I accept that the supply of prescription drugs is an individual use that makes up the purpose of a neighbourhood shop. 46In any event, the examples of "general merchandise" in the definition are not exhaustive, as the words "and the like" are included in the definition. 47I am satisfied that the first component of the definition relating to "general merchandise" is satisfied. 48Second, I do not accept the submission of Ms Irish that the use of the premises "to provide "health care services" somehow suggests that the use should be characterised as a "shop". Contrary to the submission of Ms Irish, the sale of the indicative goods does not require the presence of a health care professional or registered pharmacist. The definition is silent on who may provide advice on the products sold in the premises. A pharmacist can provide valuable advice on the range of "personal care products" being sold at the premises, as well as prescription drugs. In my view, the question to be answered is not advanced by importing the definition of "health care professional" into the discussion. The question of whether the proposed use is a "neighbourhood shop" can only be answered by a consideration of the specific details of the application and the relevant definition in LEP 2013. I am satisfied that the range of goods to be sold supports the argument that the purpose is a "neighbourhood shop", even though pharmaceutical goods, requiring a prescription may also be sold. I share the view of Mr Ferris and Ms Bern that, in theory, a pharmacy could be characterised as a "neighbourhood shop", based on the definition in LEP 2013. 49Third, I do not accept that the proposed development has been purposefully designed to be part of the approved use of Unit 2 for ''Bulky Goods Retail (Home Healthcare & Medical Supplies) Fit Out of Existing". The SEE describes the approved use of Unit 2 on 26 October 2011 as having the characteristics of "One-Stop Supplies and Services for Aged and Disabled Persons and their Carers" with the dominant use of the publicly accessible areas being the "Display and Sale of Home Health Care Bulky Goods, Aids and Accessories". The SEE describes the significance of this approval as the only provider of such products and services for some 25 km, the nearest being Wollongong. The SEE also states that the occupier of Unit 2 is a registered provider under the National Disability Insurance Scheme Act 2013 for a range of mobility assistance products and equipment. A number of mobility assistance products were observed on the site inspection in Unit 2. 50Given the indicative range of products to be sold from the proposed development and the type of products to be sold from Unit 2, I am not sure how the two uses could be said to be "purposefully designed" to be part of each other and "inextricably linked" even though an internal opening is provided between the two premises. While there may be the situation where a visitor to Unit 2 may purchase products from the site, the types of products offered by Unit 2 are different products that are generally not purchased on a regular basis and could not be said to be "to provide for the day-to-day needs of people who live or work in the local area". Given that each use is likely to attract a different type of purchaser, this submission must be rejected. 51Fourth, and taking into account the comments in the preceding paragraph, and contrary to the submission of Ms Irish, I do not accept that the proposed development is aimed at a particular sector of the population or demographic, namely "Aged and Disabled Persons and their Carers". The indicative range of goods does not support this submission. For a use to be a "neighbourhood shop" the general merchandise must be sold to provide for the day-to-day needs of people who live or work in the area. While Mr Ferris was cross examined at length on his notional catchment (Figure 4, Exhibit B), I accept that to address "the needs of people who live or work in the local area", as required by the definition, it is necessary to make some assumptions on the "local area". In the absence of any more detailed evidence, I see no reason why Mr Ferris's notional catchment should not be regarded as representing the "local area" for the purposes of the definition. The site is centrally located in the notional catchment and the area represents the urban areas near the proposed development. It is a mix of residential and industrial development and some commercial development along the Princes Highway. While the notional catchment would not provide for total pedestrian access, this is not a reason to suggest that it could not be regarded as a the "local area" given that it is bisected by the Princes Highway, the Illawarra Highway, Macquarie Rivulet, Illawarra Regional Airport and the southern railway line. In this case, access by vehicle to the local area is not unexpected and is reasonable in these circumstances. 52The second component of the definition is the requirement that the general merchandise be sold to provide for the day-to-day needs of people. Based on the definition, foodstuffs, personal care products and newspapers are all examples of merchandise that are sold to meet day-to-day needs. The vast majority of the merchandise on the indicative list of products to be sold is merchandise that is sold to meet day-to-day needs. 53I agree with Ms Duggan that it is necessary to be careful in the use of dictionary definitions (House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498). If the meaning of "day-to-day" adopted by Ms Irish is used, that is "happening every day", then some confusion could exist. In the context of the definition, the words must mean that general merchandise does not have to be purchased and consumed every day by every person but that it is general merchandise that could be purchased and consumed by the majority of persons on a regular basis. For example, bread and milk must be regarded as "day-to-day" merchandise but it does not mean that these products need to be purchased or consumed every day by everyone. I accept the submission of Ms Duggan that prescription drugs (and other merchandise in par 14) are merchandise that are sold to meet day-to-day needs. 54Fifth, the word "neighbourhood" in "neighbourhood shop" is not a matter that helps in the characterisation of the proposed development. It is the title of the particular land use rather than a component of the definition that needs to be satisfied. The spatial requirement in the definition is "the local area" although both terms could have similar meanings in the context of the definition.

Zone objectives 55Clause 2.3(2) states that the Court ": must have regard to the objectives for development in a zone when determining a development application. The relevant objective is: · To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. 56The evidence of Ms Bern that the proposed development did not satisfy cl 2.3(2) centred on her principal position that the proposed development was prohibited. As this has been found to be incorrect, this contention has not been substantiated. 57As cl 2.3(2) places an obligation on the Court, I find that after having regard to the relevant zone objective, there is no reason to deny development consent being granted.

Public interest 58The evidence of Ms Bern that the proposed development was not in the public interest also centred on her principal position that the proposed development was prohibited. As this has been found to be incorrect, this contention has not been substantiated.

Conditions 59The applicant disagreed on the imposition of conditions E2 and E3 sought to be imposed by the council. Condition E2 states: E2 Products sold from the development No products may be sold from the neighbourhood shop except those items noted under the heading "Neighbourhood Shop" in the Products List by Sub-Department lodged with Council with a letter from Altz Pty Limited dated 20 June 2014 unless the Council, acting reasonably, accepts in writing that the additional products meet the description of "general merchandise" under the definition of "neighbourhood shop" in Shellharbour Local Environmental Plan 2013. 60I agree with the applicant that the imposition of condition E2 is overly restrictive given that products are likely change over time. To require the applicant to gain the approval for products beyond the indicative list is unreasonable and adds unnecessary administration time and costs to the applicant and the council. Condition E2 should be replaced with the following condition: E2. Products sold from the development No products may be sold from the neighbourhood shop except those items that meet the description of "general merchandise" under the definition of "neighbourhood shop" in Shellharbour Local Environmental Plan 2013. 61Condition E3 states: E3. Goods offered for sale from the adjoining bulky goods premises No items sold from the neighbourhood store may be sold from the adjoining bulky goods premises. No personal care products may be sold from the adjoining bulky goods premises unless those products are directly ancillary to the bulky goods sold from those premises. Personal care products are not "ancillary" to the bulky goods merely because those items could be characterised as home health care equipment, aids and accessories which might be purchased by persons buying bulky goods 62I agree with the applicant that the imposition of condition E3 is not a condition that reasonably relates to the proposed development and can be deleted.

Orders 63The orders of the Court are:

The appeal is upheld.
DA174/2014 for the "Erection & fit out of a separate neighbourhood shop within existing Unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail is approved subject to the conditions in Annexure A.
The exhibits are returned with the exception of exhibits A, 1 and 5.

G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2014

(2007) 151 LGERA 114

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