Findings
41The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower , Spigelman CJ states at pars 6 and 7 that:
6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
42If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of the zone.
43In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states:
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
44The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, how is the proposed development characterised under the draft LEP and whether the proposed use is prohibited or permissible and thirdly, whether the proposal undermines the expressed future planning objectives for the area in the draft LEP.
45On the question of whether the draft LEP is imminent and certain, I accept that the draft LEP is likely to be gazetted as it is well advanced in the plan making process and that it should be given considerable weight. The draft LEP has been advertised, the council staff have assessed the submissions from the advertising, reported to the council where the report was endorsed by the elected council and sent to the Department of Planning, prior to referral to the Minister for finalisation. Also, I accept that the likelihood of gazettal is heightened given the more rigid format required by the Standard Instrument. The undisputed evidence of Mr Galbraith-Robertson was that the council received no submissions regarding the proposed zoning of the site and locality during the public exhibition period and that the draft LEP was not likely to change for the site.
46On the question of imminency, the evidence indicates that the council referred the draft LEP to the Department of Planning on 11 October 2010 although no time frame has been provided by the Department of Planning for its finalisation. In my opinion, the issue of imminency is less critical than the issue of certainty in determining the weight that should be attributed to the draft LEP. It would seem that the particular provisions of the draft LEP have greater bearing on the question of weight than when the draft LEP is finalised, subject of course to the finalisation being within a reasonable timeframe. There was no evidence to suggest that the finalisation of the draft LEP would take an excessively long period of time (see par 34).
47The question of whether the proposed development is permissible or prohibited under the draft LEP was in dispute between the parties. Given the consistent approach in previous decisions of the Court in considering the proposed development against the broad objectives of the draft LEP; the question of whether the proposed development is permissible or prohibited is a relevant matter to be considered as it goes to the potential consistency with the future character of the area anticipated by the draft LEP.
48Mr McEwen submitted that the proposed development is prohibited under the draft LEP. Mr Galasso submitted that the proposed development was permissible with consent.
49Clause 2.3 of the draft LEP states:
2.3 Zone objectives and Land Use Table [compulsory]
(1) The Land Use Table at the end of this Part specifies for each zone:
(a) the objectives for development, and
(b) development that may be carried out without consent, and
(c) development that may be carried out only with consent, and
development that is prohibited.
(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.
(3) In the Land Use Table at the end of this Part:
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
(4) This clause is subject to the other provisions of this Plan.
50Mr McEwen submits that the proposed development falls within a definition of "food and drink premises". The Dictionary provides the following definition:
food and drink premises means retail premises used for the preparation and retail sale of food or drink for immediate consumption on or off the premises, and includes restaurants, cafes, take away food and drink premises, milk bars and pubs.
51Mr McEwen further submits that as "food and drink premises" also means retail premises , this definition is also relevant and for the development to be permissible, "retail premises" must also be permissible in Zone R1. The Dictionary provides the following definition;
retail pre mises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).
52As "retail premises" is identified as a development that is prohibited within Zone R1, the proposed development must be prohibited. To support his submissions, Mr McEwen provided a document from the Department of Planning entitled Preparing LEP's using the standard instrument: definitions. The document makes reference to cl 12(3) (and helpfully using the example of a retail premise) states that "retail premises" may be identified as permissible with consent under Item 3 (that is, development that may be carried out only with consent) however "take-away food or drink premises" may be identified as being prohibited under Item 4 (that is, development that is prohibited). The effect is that the zoning table should be read as permitting all types of retail premises except take-away food or drink premises.
53Mr Galasso submits that the proposed development may be carried out with development consent on the basis that "food and drink premises" are not specifically identified as either being permitted without consent (Item 2), permitted with consent (Item 3) or prohibited (Item 4) and as such the development falls within "Any development not specified in item 2 or 4" in the uses permitted with consent. Further evidence of this acceptability of this interpretation is found in the zoning table for Zone 4 High Density Residential where "food and drink premises" are permitted with consent whereas "retail premises" are prohibited.
54In balancing the competing submissions, I accept the submissions of Mr McEwen that the proposed development is prohibited. In accepting that the Court's role is to determine the permissibility or otherwise from the draft LEP, it would appear that the format of the Standard Instrument has changed from more traditional planning instruments (where land uses the individually identified) to a document that adopts a "genus" and "species" approach by identifying a number of distinct groups of land use terms (the genus, for example "retail premises") that have a number of related land uses that fall under the umbrella of the group term (the species, for example "take-away food and drink premises"). As I understand, this approach is made possible by cl 12(3).
55The next question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms be inconsistent with the expressed future planning objectives for the area. As a refreshment room is a prohibited development within the zone, I accept that there is a potential inconsistency although this by itself is not a reason to refuse the application because of the savings provisions in cl 1.8A. Further guidance on this question can be obtained from the zone objectives, which are:
To provide for the housing needs of the community.
To provide for a variety of housing types and densities.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
56In this case, only the third objective is directly relevant. While allowing other uses within the R1 zone, the objective provides that these uses must meet the day to day needs of residents. Mr Galbraith-Robertson maintained that the proposed development did not satisfy this objective whereas Mr Svikis came to the opposite conclusion.
57In Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215, Sheahan J addressed a similar question in relation to a supermarket and a neighbourhood shop. His Honour relevantly states (at 89):
89 Although I agree that a supermarket of 2,222 sq m would likely satisfy "the day-to-day needs of people who live or work in the local area", it would also likely satisfy the needs of people who live or work beyond the local area, given the size of the supermarket and the likely range of goods offered for sale. The use of the word "neighbourhood" further reinforces the intent of providing small retail facilities for a local area.
58In this case, I accept that the proposed development will likely provide facilities to meet the day-to-day needs of residents but at the same time provide facilities for people who were not necessarily residents but travellers using Ocean Drive. This is borne out by the evidence of the applicants traffic engineer who estimate that 35% of patrons will be from passing trade. I am also satisfied a reference to the word "residents" in this objective must be a reference to residents who live within a reasonable distance of the site who could gain reasonable access to the site by walking or a short car trip. I do not accept that the objective can be so broadly interpreted that it would include all residents from the local government area or beyond.
59Further guidance on the desired future character under the draft LEP can also be obtained from the types of developments seen as being suitable through their permissibility in Zone R1. While Mr Svikis identified a number of uses that he stated supported his position of consistency with the zone objective, I am not satisfied that these uses give any great support to his position. Child-care centres, medical centres, neighbourhood shops, and places of public worship are consistently, and appropriately found in residential areas. I note that the definition of "neighbourhood shop" is limited to the type of goods that can be provided and is further limited in providing "for the day-to-day needs of people who live or work in the local area".
60If the objectives for Zone R1 are considered collectively, the future desired character for the zone is predominantly residential with a variety of housing types and densities while providing other land uses that serve the needs of the residential population. There is a clear focus on residential use and complementary non-residential land uses. While Mr Svikis stated that character statement for this locality should be provided to allow a greater understanding the desired character; no such statements exist and the Court must base its findings on the evidence that is available.
61I am satisfied that the proposed development will have a dominant commercial character by way of its likely patronage, design, signage, illumination and hours of operation that it will be so inconsistent with the desired future character envisaged by the draft LEP that this is a sufficient reason for the refusal of the application even taking into consideration the existing use of the site and the lack of direct amenity impacts identified later in the judgment.