Australian Turf Club v Liverpool City Council

Judgment 1SENIOR COMMISSIONER: As part of the implementation of World Youth Day, a major gathering of young people conducted at various locations around the world by the Roman Catholic Church, World Youth Day was to be conducted at Randwick Racecourse in Sydney. As part of that process it was necessary to authorise the temporary relocation of a number of training stables to make facilities available at that racecourse. 2Those training stables were temporarily relocated to stables within the Warwick Farm Racecourses grounds for one set of stables and within what is known as the Warwick Farm horse training precinct for a second set of stables. Special legislation that enabled that to occur anticipated that those two temporary stabling facilities would be removed after the conclusion of the World Youth Day activities. They were in fact not removed and the applicant in each of these proceedings now seeks the regularisation of the use of those stables on an ongoing basis. 3The proceedings originally commenced on the basis that there was opposition to that by Liverpool City Council (the Council) on one fundamental ground common to both of the applications; namely that there was an unacceptable economic impact on the existing horse training facilities within the Warwick Farm horse training precinct. With respect to the stables that were located within that precinct proper, the possibility was raised (because of the inadequacy said to exist of information in support of the application) of possible adverse odour impacts and possible flooding impacts. 4These matters originally commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) with a Mr Poletti seeking to be joined as a party to the proceedings (with that application being pleaded on the basis of either joinder pursuant to s 39A of the Court Act or joinder pursuant to what is known as a Double Bay Marina order under s 38 of the Court Act, that being an order following the precedent in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). 5Mr Poletti was granted leave to attend the conciliation conference on terms that do not need to detain me this morning and was subsequently granted joinder to the proceedings (see Australian Turf Club v Liverpool City Council [2013 NSWLEC 1267) when it became apparent that the Council no longer pressed any issues with respect to either of the development applications that being the course that had been agreed upon by the parties as originally involved prior to the commencement of the conciliation conference. 6When the matter returned for substantive hearing, I was advised that matters between Mr Poletti and the applicant had been resolved and that, subject to the execution of a deed between the Australian Turf Club and Mr Poletti, Mr Poletti would withdraw from the proceedings a withdrawal that was subsequently effected. The consequence of that is that there are proposed to be consent orders between the Council and the applicant to imposes conditions that will permit the ongoing operation of both stables. 7During the course of the conciliation conference, I heard submissions from objectors to the proposals with those submissions being heard in the grounds of the applicant's stabling facilities within the Warwick Farm horse-training precinct. By agreement, those submissions were subsequently transmuted into evidence in the substantive proceedings and now arise for my consideration. It is quite clear that the principal concerns that those who raised issues were, firstly, what they say is the ongoing economic impact on the operation of the other privately owned and operated stabling facilities within the horse training precinct and, second, the impact that such adverse economic impact on the day-to-day business activities of those training facilities has had on the underlying value of the land. 8Although I have had considerable expert material put in evidence before me concerning the economic impact matters, largely as a response to or part of the participation by Mr Poletti in the proceedings, I am satisfied that I do not need to deal with that expert material at length. 9Part of that material was, as to its relevance, underpinned by an anticipated submission foreshadowed by Mr Clay SC (who appeared for Mr Poletti) that what had been the conventional position concerning the disregarding of economic impacts that arose from the decision of the High Court in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675 had in some fashion been expanded or modified as to its understanding of the correct consequence of that decision by a decision of the Court of Appeal in Randall Pty Ltd v Willoughby City Council [2005] NSW CA 205; (2005) 144 LGERA 119. The leading judgment in Randall was written by Basten JA (Giles and Santow JJA agreeing). 10It was suggested that Randall enabled an economic impact to be taken into account in circumstances that had not previously been understood to be the position following Kentucky Fried Chicken. I am not persuaded that that is a correct analysis of Randall. 11It is clear to me that the matters that were dealt with by the Court of Appeal in Randall related to the economic impact of a business - that is a car park that was proposed to operate by charging a fee for its use when in the past it had been a free car park - on other businesses within the building that contained the car park. The other businesses self-evidently were of a disparate nature and were not themselves car parks. 12The position that arose in (and has been conventionally understood to arise from) Kentucky Fried Chicken is that, in circumstances where a business is proposed to be established that is similar to a business that is operating with existing approval in a local area it is not to be inhibited merely because there is a generally like-for-like competition being introduced into that area. The competition is the operation of conventional market forces and is not a proper planning matter. Proper planning matters, however, can arise, as I have always understood Kentucky Fried Chicken, when a business or an activity is proposed to be approved and it has unacceptable economic impacts on other activities of an entirely different nature. 13From my own experience in the Court, an example of such an impact arose with the proposal to permit a brothel in the Baulkham Hills Shopping Centre when the proposed brothel was demonstrating (even at the time when it was merely a proposed development) an adverse economic impact on nearby businesses of an entirely unrelated nature. In that case (Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126) I was satisfied that a proper analysis of Kentucky Fried Chicken enabled the proposed brothel to be taken into account in a planning sense because of its economic impact on the unrelated businesses. 14I am satisfied that a proper consideration of Randall shows from the commentary that is made by Basten JA in para 38 that that line of reasoning remains good - that is, it is appropriate to have regard to potential economic impacts of a business type A on existing businesses in an area that may be of businesses type B, C, D, or E, but that it is not appropriate to have regard to the impact of a proposed business A on other businesses of business type A in that neighbourhood. It is my view that the first two sentences of para 38 of his Honour's judgment in Randall make that proposition clear. 15As a consequence, as all of the economic impact material that was provided in these proceedings and all of the lay objector submissions in the proceedings relate to the economic impact of permitting two horse training stabling facilities to continue in operation and thus have, taking the objections at their highest, a substantial economic impact of an adverse nature on existing horse training stabling facilities in the Warwick Farm horse training stabling precinct, that is an economic impact that is impermissible to be considered in a planning context and thus does not act as an inhibition to my approval of the consent orders. 16Similarly, as a broad proposition, the question of impact on property values (quite separate to the question of operational economic impacts) is not - and to my understanding never has been - a proper planning consideration in proceedings such as these and I disregard it. I am satisfied on the basis of the material that has been subsequently provided post the applications and in these proceedings that matters of flooding, traffic, odour, noise and the like do not stand as impediments to making of the consent orders that are now proposed. 17The consequence of that is that the appeals in each instance will be upheld; that the approvals will be granted subject to the conditions that have been to the court; that I will make orders to the effect of the proposed consent orders when the terms of the consent orders and conditions are provided to me electronically; that I will make those orders in chambers; and I will make those orders dated today. Tim Moore Senior Commissioner 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: 28 May 2014