Cartier Holdings Pty Ltd v Newcastle City Council and Anor

Cartier Holdings Pty Ltd v Newcastle City Council and Anor - [2001] NSWLEC 170 - NSWLEC 2001 case summary — Zoe

[36]

In my opinion, it is important to note that s 79C(1) contains five separate considerations in contrast to s 90(1), which listed 27 different criteria of consideration. As was noted in the Second Reading Speech, (which was quoted by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1) the legislature intended to streamline and rationalise the criteria embodied in s 90, and replace them with a "reduced and general list of considerations". It seems to me that, by adopting the expression "likely impacts of that development" in s 79C(1)(b), the drafter obviously intended, having regard to the criteria which that expression replaced, to encapsulate a very broad and general range of impacts. But I am not persuaded that, so far as concerns economic impact, there is any material difference between the consideration required by s 79C(1)(b) and the consideration required by s 90(1)(d). It is true that s 79C(1)(b) uses the word "impacts" whilst s 90(1)(d) uses the word "effect". But I agree with the joint submission of Mr Tobias QC, appearing for Restifa, and Mr Craig QC, appearing for the council, that the two words are synonymous in a planning sense. The consideration that they each express is the same, that is, the economic result or outcome of the proposed development, a matter which may be relevant in determining a development application. Nor do I think that the use of the word "likely" in the opening words of s 79C(1)(b) requires a different construction. Economic impact in itself involves, as do many considerations relevant under s 79C(1), an estimation of likelihood or possibility, because actual impact may not be discernible until the development is completed. Furthermore, there was some debate between the bench and counsel during argument about the effect of the commas in s 79C(1)(b) and whether, properly construed, "social and economic impacts in the locality" is not a sub-category of "likely impacts of that development" but is instead an independent category of consideration. On reflection, I think that is an arid debate, taking the task of construction nowhere. Economic impact is to be considered as an impact of the proposed development in the locality, and it must, as I have explained, import a notion of likelihood. So whether it is an independent category of consideration, or a sub-category of "likely impact" is of no consequence.

[49]

The site is located within the Central Business Zone thus any new trading would in fact 'facilitate the development' of the CBD in accordance with the LEP's objectives rather than draw trade away from the area. Furthermore competition between traders is not a relevant matter for consideration under the EP&A Act, yet many of the objections raised are based on these grounds. Page 3: The Hill PDA report continued under the heading " Responses to Objections Raised". After discussing the criticism of the JHD report contained in the Leyshon report and in the A T Cocks submission, Hill PDA made the following statement: Hill PDA concurs with these points appreciating that additional information in the line of shopper surveys and estimated trading levels are required to assess the impact on the viability of traders. Yet despite these inadequacies, the matter does not appear to be relevant for consideration under the EP&A Act having regard to … Fabcot Pty Ltd vs. Hawkesbury City Council (discussed above) or the relevant local planning instruments. This is because the traders that will be adversely affected are in the same commercial centre as the proposed development and hence the centre as a whole would not be adversely affected. Page 4: The Hill PDA report continued by noting figures demonstrating that trading levels of competing supermarkets could decline, although the level of trading should be sustainable, and that net employment gains would be positive. It then stated that: "Once again however, it is important to stress that the matter of competition between individual traders is not for consideration under section 79C … The Hill PDA report then turned to consider other matters raised in the objections, and it concurred that the proposed supermarket was likely to have an impact "on the surrounding small retail stores" , although it considered that there would be "positive and negative impacts on small retailers but the net effect on the CBD West End is neutral if not positive". Page 5: In its conclusion, Hill PDA noted that the strongest adverse impact would be on competitive traders, and then it made the following statement: Nevertheless under the EPA Act and the relevant local planning instruments made under that Act the question is whether or not the CBD or other existing commercial centres will suffer detrimentally as a whole, whether or not there will be social detriment and, if so, whether or not the development will made good that detriment. The Act and instruments are not concerned about impacts on individual competitors.

[60]

(a) Mr D Boyer, a representative of Cartier, addressed the meeting and raised the issue of economic impact. He said that Cartier was not relying on competition between supermarkets, but on "… the flow on effect that the reduction in trade and traffic flow to supermarkets has on small shops … it's certain there will be a significant fall in turnovers of other traders within those centres …"; (b) Ms K Halliday, a representative of ERM, noted the potential adverse economic impact on existing supermarkets, and also noted that it was "important for Council to consider for the small operators that are in the business district around the supermarkets in question". (c) Councillor Tol made reference to what he recalled of a decision of Lloyd J in this Court (although without naming the decision) especially in regard to the fact that the council was not to be concerned with the threat of economic competition between competing businesses. Councillor Tol sought a comment, and Mr B Knowles, who is a council officer holding the position of group manager development and environment, replied in the following terms: KNOWLES: The extract that Council Tol referred to is in fact quite correct. That was the comments of Justice Lloyd in the AMP appeal and Councillors may remember there was extensive work done on economic impact. Fundamentally the Court and the law is not too considered, what not considering so much the issue of economic impact between traders, but the economic impact on the centre … Justice Lloyd took a fairly broad assessment of that … in that particular case he was of the view that three or four cinemas close to Newcastle, that would be a matter of competition and not of concern. What was at issue there was the overall viability of the centre and to that extent he considered that there was no impact. So it is that background that the Council needs to consider when it is addressing the issues of economic impact … Hill PDA … have basically provided the response as Councillor Tol has indicated and I have added to tonight. (I note that the reference to "the AMP appeal" is to AMP Investments Ltd v Newcastle City Council [1999] NSWLEC 164).

At a glance

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Judgment (89 paragraphs)

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Legislation Cited (2)

Cases Cited (10)

Cited By (2)