Capuano v Port Macquarie-Hastings Council

The proposal 5The proposal provides for the demolition of all existing improvements on the site with the exception of Sweeney House. The proposed development will consist of the construction of a single storey restaurant, drive through facility and car parking. The restaurant will have a gross floor area of 395 sq m and seating capacity for 64 internal seats, 38 external seats and a 14 seat party room. The proposed car park will provide 34 off street car parking spaces, a loading bay and waste storage area. An 11 car drive-through queue and 2 waiting bays are also provided together with the necessary earthworks, landscaping and signage. 6The proposed hours of operation are 5 a.m. to 11 p.m. Sunday to Thursday and 5 a.m. to 12 midnight Friday and Saturday. 7The adjustment of the boundary between Lots 34 and 35 will create two new lots, being Lot 1 with an area of 3882 sq m and Lot 2 with an area of 2908 sq m. Lot 1 will contain the proposed development and Lot 2 will contain Sweeney House with access provided via a right of carriageway over Lot 1. 8The proposal is to be undertaken in two stages. Stage 1 involves the demolition and site works and Stage 2 involves the construction and subdivision.

Relevant planning controls 9The site is within Zone 2(a1) Residential under Hastings Local Environmental Plan 2001 (LEP 2001). The application was submitted on the basis that the proposed development was characterised as a "refreshment room" although this was not a characterisation accepted by the council. A refreshment room is a permissible use within Zone 2(a1). 10Clause 9(2) provides that consent may be granted to development only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development. The relevant objectives are: (b) To ensure the provision of services and facilities associated with residential land uses or which are unlikely to affect residential amenity. . (d) To enable appropriate development where allowed with consent. 11Draft Port Macquarie-Hastings Local Environmental Plan 2010 (the draft LEP) applies to the site. The site is within Zone R1 General Residential under the draft LEP. The parties differed on whether the proposed development was permissible with consent in this zone.

The council's case 12Mr McEwen SC submits that the proposed use is properly characterised as two independent purposes, firstly a "refreshment room" and secondly a " shop" or possibly "commercial premises"; the latter two, being uses that are prohibited within Zone 2(a1) unless they form part of a "neighbourhood centre" although this is not suggested by the applicant. The relevant definitions are: commercial premises means a building or place used as an office or for other business or commercial purposes, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary. neighbourhood centre means an integrated development containing shops and commercial premises which serve the local community and are limited in scale, with ancillary parking and landscaping and whether or not it also contains development for the purpose of a bus station, child care centre, club, community facility, dwelling attached to other buildings, hotel, place of assembly, place of public worship, medical centre, public building, recreation facility, refreshment room, retail plant nursery or service station. refreshment room means a restaurant, caf, tearoom, eating house or the like. shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary. 13Mr McEwen submits that in terms of characterisation: the accepted and conventional approach to characterisation is to ask what, according to ordinary terminology, is the appropriate designation for the purpose to be served by the use ( Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535 at [535]), it is appropriate to look at the entirety of the proposal for the purpose of characterisation ( Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288 at [101]), land may be used for more than one purpose and if so, each purpose is to be individually characterised (Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305), and it must be done in a commonsense and practical way ( Chamwell Pty Ltd v Strathfield Council (2007) NSWLEC 114 at [101]). 14In Grace v Thomas Street Caf (2007) 159 LGERA 57, the Court of Appeal accepted that a take-away food shop is a fundamentally different use in town planning terms to a use as a refreshment room, cafe or restaurant. It is accepted that a premises without seating and tables, that sells food for consumption off the premises is not a refreshment room and the mere presence of tables and chairs does not oblige characterisation only as a refreshment room when a substantial component of the business does not utilise that feature. 15Mr McEwen submits that the premises do not operate as a refreshment room as it also sells substantial quantities of food, which is packaged specifically for consumption off the premises. In accordance with the principles set out above, it is plainly operating for two purposes, neither of which subserves the other. The purposes may be related or interdependent but nonetheless there are two separate purposes; a refreshment room and a shop. In this case, there are separate dedicated facilities for the sale and dispensing of take-away food via a drive-through facility, which is attached to but otherwise physically separate from the refreshment room building. 16For the purposes of characterisation, it is not enough that there will be the sale of prepared food to the public. More is required when identifying the proper characterisation of use for planning purposes. In Grace [146-147], it is stated that "both a mobile coffee bar and an a-la-carte restaurant sell food to the public but they are a use for a different purpose". In characterising the purpose (or purposes), it is not necessary for there to be evidence, which identifies, with precision, the ratios of income generated from the take-away component and eat in component ( Foodbarn Pty Ltd v Solicitor - General (1975) 32 LGERA 99 at [160]). Mr McEwen submits that it is sufficient for the Court to take judicial notice and conclude that the take-away and drive-through components are substantial, important and separate (from a business point of view) from in-store consumption. 17Mr McEwen relies on the Concise Oxford Dictionary that provides the following definitions: "restaurant" means public premises where meals or refreshments may be had; "cafe" means coffee house, tea shop, restaurant, bar. "tearoom" means a shop selling tea. "eating house" means restaurant. 18In his submissions, Mr McEwen states that each term has in common the attribute of the provision of food or refreshments for consumption on the premises. This attribute is an essential component. Whilst the occasional sale of food or refreshments for take-away purposes will not result in there being two uses, the same outcome would not follow when, as here, the sale of take-away is demonstrably a substantial component of the applicant's business.

The applicant's case 19Mr Galasso SC submits that in the determination of the purpose of development, the relevant test requires the purpose of the use of land to be described only at the level of generality, which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires the characterisation of purpose in terms of the detailed activities, transactions or processes which are taking place ( Hunters Hill Council v Fraser [2006] NSWLEC 744 at [17]). In this case, Jagot J rejected an approach of attempting to separate out the component parts of a development that involved water storage tanks, landscaping, and a roof structure over the storage tanks, preferring the observation of the purpose of the development being that the relevant activities were all directed to the end or object of providing an enclosure to house the water tanks and make them less visually intrusive. This approach was relied upon in Chamwell and Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 at [18]). 20In this case, characterisation involves nothing more than undertaking an assessment, at a level of generality, which is necessary and sufficient to cover the individual activities, transactions and processes proposed to be carried out on the site. This involves merely looking at the proposed plans for the site, and recognising that in all material aspects, the use that is being undertaken is that of a refreshment room. No serious suggestion could be made that it is operating as either as a shop or as a commercial premises. To paraphrase even the identified elements of the defined term, its purpose is undoubtedly for the provision of meals to customers. Whether those meals are provided for on-site consumption or otherwise is beside the point when, at the relevant level of generality, it is observed that this is the overall purpose. 21While it is clear that food may be obtained in different forms, it is the provision of a meal, in essence for immediate consumption, that distinguishes the concept of a refreshment room from that of a shop. Unlike decisions involving findings of separately identifiable purposes, the circumstances of the present case can only lead to the conclusion that the proposed purpose is a refreshment room. The purpose is achieved via the same menu, serving the same demographic (that is people who wish to be served a meal), and involving the same types of meals, which are prepared, packaged and presented in precisely the same manner. The mere election by the consumer of the place of consumption does not convert the purpose from that of a refreshment room into any other purpose. 22Unlike the circumstances in Grace , there are not different planning considerations within the proposed uses on the site; rather, there is but one set, and that one set determines the appropriate characterisation of the purpose for the use as a refreshment room. 23Mr Galasso relies on definitions from the Macquarie Dictionary (4 th Edition) to support his submissions. The definitions are: "restaurant" - an establishment where meals, especially main meals, served to customers. "cafe" - a room or building where coffee and light refreshments are served. "tea room - a room or restaurant where tea and other refreshments are served to customers. "eating house" - a cafe or restaurant, especially a cheap one. 24He submits that all these definitions contemplate concepts of the service of a prepared meal to customers. The thing that distinguishes them is the concept of food in the form of a prepared meal, being for consumption by customers, rather than food as a mere good, merchandise or material. Importantly, none of the terms exclude the possibility that the consumption of the food can occur off the premises.

Findings 25The 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 for a supermarket where His Honour includes the relevant cases and relevantly states (at 27 and 28): 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508. 26His Honour further relevantly states (at 33 to 36 and 45): 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. . 45 The characterisation of the purpose of development must also be done in a common sense and practical way... 27The 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 commonsense 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. 28While dictionaries can be useful in determining the meaning of words, some caution must be exercised in their use. In McCabe v Blue Mountains City Council 145 LGERA 86 Jagot J referred at [51] to House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; where Mason P identified the limits on the use of dictionaries in the search of meaning. Her Honour noted that at [22], [24] and [30], Mason P emphasised that the context of the search is planning law and that environmental planning instruments and consents are concerned with " physical use, environmental impact and amenity". 29In this case, I do not accept that the dictionary definitions are overly helpful. There was little disagreement that a "refreshment room" could generally and ordinarily be seen to be premises where food is prepared for consumption but where the consumption may not exclusively occur on the premises. I am satisfied that such a description could reasonably include a restaurant, a caf, a tearoom, an eating house or an establishment of a similar type. I agree with Mr McEwen that it is not enough that there will be simply the sale of prepared food to the public and that a premises without seating and tables that sells food for consumption off the premises is not a refreshment room. Similarly, I would also accept that premises that provide only a token amount of seating and tables would not be characterised as a refreshment room. 30This however is not the case in the proposed application. A significant level of seating and tables is provided (64 internal seats, 38 external seats and a 14 seat party room), as well as the option for take-away and drive-through provision of food. There can be no suggestion that the dine-in component is not a legitimate and integral part of the operation, as much as the take-away and drive-through components of the business. It could also be argued that the dine-in component is actively encouraged through the provision of a childrens play area and party room. 31In my view, the characterisation falls squarely within the approach adopted by Preston J in Chamwell where he distinguishes between purpose and use and accepts that a purpose may have a number of different uses however these different uses may still serve the same purpose. I agree with the submission of Mr Galasso that the purpose is a refreshment room as all components of the business use the same menu, serve the same demographic, and involve the same types of meals, which are prepared, packaged and presented in precisely the same manner. I would also add that all meals, irrespective of how they are consumed, are prepared in the same kitchen. 32Adopting a general, commonsense and practical approach, I am satisfied that the purpose is for a refreshment room and that this purpose has different uses, such as the take-away and drive-through components of the business. In my view, these uses do not change the purpose as a refreshment room to the point where there could it could be said there are two separate purposes. Rather, the take-away and drive-through components of the business could more reasonably be seen as a natural or evolutionary change in the method of carrying on a business (see Royal Agricultural Society) particularly taking into account that the original eat-in component of the business remains and is still actively used.

The draft LEP 33The draft LEP was placed on public exhibition between 8 March 2010 and 7 May 2010. The site is within Zone R1 General Residential under the draft LEP. The zone objectives 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 for services to meet the day today needs of residents. 34A s 68 report has been endorsed by the council and forwarded to the Department of Planning for finalisation on 11 October 2010. The latest correspondence from the Department of Planning on 9 November 2010 states that "the Department is currently reviewing the draft Plan submitted by Council and will be working as quickly as possible in conjunction with Council staff to finalise the plan ready for the Ministers consideration". 35Clause 1.8A of the draft LEP is relevant and provides savings provisions that state: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

The council's evidence 36Mr Patrick Galbraith-Robertson, a town planner, provided evidence for the council. He states that the proposed development is appropriately characterised as a "retail premises" (that includes "food and drink premises") under the draft Plan. This is a purpose that is prohibited within Zone R1 General Residential under the draft LEP. He further states that the proposed development is inconsistent with and antipathetic to the third objective of the zone as it does not provide a facility or services to meet the day to day needs of residents. This is because of the nature of proposed development that provides food and drinks prepared and retailed to customers for immediate consumption on or off the premises. Also, the range of goods is very limited and the proposal targets a high percentage of patronage from outside the immediate locality with the traffic assessment indicating 35% of customers will be from passing trade. 37Mr Galbraith-Robertson also states that the draft LEP is unlikely to change with regard to the site and should be considered to be quite certain and imminent.

The applicant's evidence 38Mr Mike Svikis, a town planner, provided evidence for the applicant. He states that the draft LEP is not certain or imminent and may change before it is gazetted. He also relies on the savings provisions in cl 1.8A. 39Mr Svikis notes that the draft LEP contains no statement as to what is the desired future character of this locality. The proposed zone is used widely throughout the local government area and other centres and does not include any additional (non-standard) objectives for the proposed zone. He states that there are a number of non-residential uses nominated as being permissible with consent, including building and business identification signs, child-care centres, medical centres, neighbourhood shops, and places of public worship. In the absence of any character statement for this locality, it is reasonable to assume that the intention of the council, for this locality, is to continue to allow a range of residential and non-residential uses. In his opinion, the proposed development is consistent with both existing and proposed character of the locality. 40In relation to the zone objectives, Mr Svikis states that the proposed development will cater for the day today needs of residents as it sells food and drinks that can be consumed on or off the premises. The proposal also provides a place for residents to meet and socialise.

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.

Visual impact 62Mr Galbraith-Robertson and Mr Svikis assess the visual impact of the proposed development against the existing character of the locality. They differ on their interpretation of the existing character of the area even though there was agreement on the non-residential uses in the locality that consisted of schools, Sweeney House and the general store and fuel outlet on the site and the absence of residential development on the site. 63Mr Galbraith-Robertson describes the character of the locality as "primarily residential and supportive uses which form predominantly residential type streetscapes and character" whereas Mr Svikis describes the character of the locality as being "a mixture of uses and not exclusively residential". 64In relation to the proposed building form, Mr Galbraith-Robertson and Mr Svikis agree that the proposed building is not excessive in bulk or scale and does not exceed the residential height limit of 8 m, the relevant FSR of 0.5: 1 and will not overshadow or overlook existing residential buildings or private open space. Notwithstanding these concessions, Mr Galbraith-Robertson maintains that the development will be incompatible with the existing immediate locality given the commercial character of the proposal while Mr Svikis maintains that the building will not be visually intrusive and will fit in well with the existing mixture of uses in the locality. 65Mr Galbraith-Robertson and Mr Svikis also address the proposed signage and while it was agreed that there were no breaches of Hastings Development Control Plan No 7, except in relation to the time for the illumination of signage, Mr Galbraith-Robertson maintained that the signage and illumination will add to the proposals commercial character and incompatibility with the locality. Mr Svikis noted that the Greenmeadows Drive roundabout and the Ocean Drive/Greenmeadows Dr intersection are already illuminated at night by street lights and this will ameliorate the impact of outdoor lighting and illuminated signage associated with the proposed development. 66The question of visual impact is a different question to that addressed in the previous paragraphs on the draft LEP. If the draft LEP had not reached its level of certainty and imminence and the principal planning document was LEP 1998, where "refreshment rooms" are a permissible use, then I would accept the evidence of Mr Svikis that the visual impact of the proposed development would not be reason to refuse the development application.

Noise 67The contentions raised by the council relate to: the intensity of vehicular and pedestrian traffic generation to and from the site, especially during the evening and night, that will be incompatible with the existing residential amenity and character, and the proposal will generate unacceptable noise impacts from patrons through the extended hours of operation, which will be incompatible with the existing residential amenity and character. 68Mr Graham Atkins, an acoustical engineer, provided evidence for the applicant. The council provided no expert acoustical evidence although Mr Atkins was cross-examined on his evidence. Mr Atkins provided a Noise Assessment Report that was prepared in accordance with the procedures published in the Department of Environment, Climate Change and Water, the Industrial Noise Policy and the Noise Guide for Local Government . The assessment included the establishment of background noise levels through on-site measurements, the identification of the potential noise sources, the appropriate noise goals for the identified noise sources and a comparison of the noise likely to be generated by the proposed by the development with the appropriate noise goals. The report concluded that: the primary source of noise emissions from the proposed development would be associated with mechanical plant, outdoor dining terrace, drive-through facility and car park activities from customers and vehicles, noise from the identified activities associated with the use of the outdoor dining terrace satisfy the required project noise goals, noise from transient customer and vehicle site activities satisfies the recommended noise goals, and noise from the operation of mechanical plant can be controlled to satisfy the recommended noise goals with appropriate selection and effective controls. 69Overall, Mr Atkins concludes that the acoustic impacts of the proposed development are acceptable subject to the appropriate selection criteria for air-conditioning condensers, refrigeration condensers and exhaust fans and the construction of an acoustic screen not less than 1.8 m adjacent to the drive-through lane along the southern boundary and the upgrading of the existing boundary fences to 1 Cairncross Place between 1.8 m and 2 m. 70While Mr Atkins was cross-examined on his conclusions, I am satisfied that his conclusions remain valid and in the absence of any contradictory expert evidence, I accept his conclusions that noise impacts from the proposed development do not warrant its refusal.

Odour 71The council contended that the proposed development would create unacceptable odour impacts on the adjoining residential area. 72Mr Gary Graham, a scientist with expertise in air quality provided evidence for the applicant. The council provided no expert acoustical evidence although Mr Graham was cross-examined on his evidence. Mr Graham provided an Odour Impact Assessment and a supplementary report. His assessment was undertaken in accordance with the NSW Department of Environment Climate Change and Water publication Technical Framework: Assessment and Management of Odour from Stationery Sources (the Framework) in New South Wales. The assessment involved the identification of odour sources from the proposed development, the modelling of local meteorological conditions, the identification of the nearest potentially affected residences and the dispersion of odorous emissions to predict the level of impact that may be experienced in the surrounding environment. 73Mr Graham modelled two different scenarios, firstly the development as set out in the development proposal and taking into account be different patterns of usage and secondly, a worst-case scenario based on constant emission rates. For the first scenario, the maximum predicted odour impact was found to be 1.7 OU (odour units). This needs to be compared to the appropriate odour assessment criteria of 3 OU in the Framework. For the second scenario, the odour assessment criteria of 3 OU is also not exceeded. On this basis Mr Graham concludes that the operation of the proposed development will not result in unacceptable odour at any surrounding residential properties and consequently would not be a reason to refuse the development application. 74The supplementary report of Mr Graham re-models the two scenarios but uses a different terrain input (complex terrain rather than no terrain). Mr Graham states that the impact of modelling with complex terrain is marginal and does not alter his conclusions that the proposed development will not result in unacceptable odour at any surrounding residential properties. 75While Mr Graham was cross-examined on his conclusions, I am satisfied that his conclusions remain valid and in the absence of any contradictory expert evidence, I accept his conclusions that odour impacts from the proposed development do not warrant its refusal.

Traffic 76The traffic implications of the proposed development or addressed by Mr Tim Rogers, a traffic engineer, on behalf of the applicant. The council did not provide any expert traffic evidence although Mr Rogers was cross-examined on his evidence. Mr Rogers prepared a statement of evidence that included references to previous assessments prepared for the site in June 2009 and February 2010 and correspondence to the council on traffic matters on 28 April 2010. The February 2010 report concluded that: the traffic signals at the intersection of Greenmeadows Drive and Ocean Drive will operate at a satisfactory level of intersection operation with the development traffic in place, the roundabout at the intersection of Greenmeadows Drive and the site access/school access will operate at a satisfactory level of intersection operation with development traffic in place, the proposed provision of parking on site is considered appropriate, the proposed access to the site and internal circulation is considered appropriate, and the surrounding road network that will be able to cater for the traffic from the proposed development. 77Mr Rogers concludes that there are no traffic and parking reasons why the proposed development should not be approved based on his analysis of passing trade, peak traffic generation, analysis of the non school weekday afternoon peak period, traffic distribution , the operation of the Ocean Drive/Greenmeadows Drive intersection and a comparison with similar operations. 78While Mr Rogers was cross-examined on his conclusions, I am satisfied that his conclusions remain valid and in the absence of any contradictory expert evidence, I accept his conclusions that there are no traffic and parking reasons why the proposed development should not be approved.

ORDERS 79The orders of the Court are:

1. The appeal is dismissed.
2. DA 2009/0194 for the demolition of an existing general store with fuel outlet and the construction of a restaurant with a drive through facility, car parking, boundary adjustment and signage at the corner of Ocean Drive and Greenmeadows Drive, Port Macquarie is refused.
3. The exhibits are returned with the exception of exhibit A. 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: 08 March 2011