Fabcot Pty Limited v North Sydney Council

Fabcot Pty Limited v North Sydney Council - [2005] NSWLEC 180 - NSWLEC 2005 case summary — Zoe

[20]

19 A number of specific objections also arose to be dealt with. These included: - Whether or not the traffic and parking experts had had regard to other residential developments, of a potentially traffic generating nature, taking place within the vicinity; - Concerns by the resident of Unit 1/57 Yeo Street, that there would be increased late night light pollution of her bedroom from cars exiting the car park; - Whether a heritage listed Uniting Church building in Yeo Street would be damaged as a result of vibration from increased heavy vehicle traffic going to the site along Yeo Street; - Whether the additional heavy vehicle traffic along Yeo Street would result in unacceptable noise levels for pupils in three classrooms fronting Yeo Street at the Neutral Bay Public School; - Whether the additional truck movements and other traffic along Yeo street would constitute a hazard to the dropping off or picking up of children from the Neutral Bay Public School or the pre-school operated by the Uniting Church; - Whether the operation of the Fire Station in Yeo Street would be compromised by increased vehicle and truck traffic along Yeo Street so that there would be an unacceptable response to fire emergences caused; - Parking in Military Lane; and - The adequacy of the loading dock. 20 I have concluded that, following a consideration of each of those other issues, none of them would, on the evidence before me, would warrant refusal (although a number of them, if held adversely to the applicant, might contribute to a possible refusal of the application), and that they could not collectively add up to warranting a refusal. 21 The council in its "without prejudice" conditions of consent raised a number of these issues. The applicant contested some of these conditions and these are dealt with later in this decision. In addition, a number of the matters raised by the objectors, whilst not warranting refusal, did warrant the imposition of additional conditions and these are also set out when dealing with the relevant topic.

[33]

37 Acceptance of the proposed Rangers Avenue supermarket can only have any prospect of success if my assessment is undertaken on the basis that the existing Grosvenor Street supermarket will continue to trade. 38 The applicant advanced the proposition, as discussed when considering Mr Thomas's evidence, that the new supermarket is needed solely to address what it describes as "over-trading" at the Grosvenor Street store. 39 As a consequence, I put to Mr Hemmings that, if I were otherwise satisfied that the proposal should be approved, I would only be prepared to do so if I were able to be satisfied that the Grosvenor Street premises would also continue to trade. 40 Therefore, I asked him if the applicant was prepared to accept a condition to the effect that any approval for the Rangers Avenue premises would only be effective whilst there were a Woolworths' supermarket continuing to trade at Grosvenor Street. 41 Mr Hemmings informed me that the Woolworths supermarket at Grosvenor Street was subject to a present lease which expires in 2014 with an option for a ten year renewal. 42 He indicated that, subject to consideration of the specific drafting of any condition which linked the life of the consent for Rangers Avenue to continuation of trading of a Woolworths' supermarket at Grosvenor Street, he was instructed that his client was prepared to accept such a condition. 43 I am satisfied that the imposition of such a condition would meet all three of the tests deriving from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599 and could therefore properly be imposed. 44 I have concluded that the appeal should otherwise be upheld, but it can only be upheld on the basis on the incorporation of such a condition in the consent. I therefore direct the parties to settle the terms of such a condition for incorporation in the conditions of consent. The applicant's economic model in support of a second Woolworths' supermarket in Neutral Bay 45 Mr Thomas gave evidence that the Grosvenor Street store is trading in an unsatisfactory fashion (from a corporate strategic perspective). It is doing this because the Grosvenor Street store is doing what he describes as "over-trading". 46 His written evidence shows that the Grosvenor Street store has a gross floor area of 3800 sq m and has an annual turnover of $79.2M. This gives a turnover of $20,800 per sq m per annum.

[50]

71 Although this Court has a wide-ranging discretion, that discretion is not at large and is not unfettered and the provisions of this development control plan are to be considered by me as a fundamental element in or a focal point to my decision-making process in this appeal. 72 However, it is also clear from the remarks by Spigelman CJ in Zhang that a provision of a development control plan directly pertinent to the application is entitled to significant weight but it is not in itself determinative. 73 On the other hand, if a proposal does not meet a development control plan's requirements, the Court may still grant consent in an otherwise appropriate case given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act. 74 Equally applicable are the remarks of McClellan CJ in dealing with the questions of whether or not a plan has been brought into being or an existing plan amended in order to frustrate a specific proposal. 75 Although the paragraph of his decision in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 set out below related to policy documents developed by a council, in my view they are equally applicable to the provisions of a development control plan. Relevantly he said: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 76 Mr Hemmings invites me to draw the conclusion from the chronology leading up to the adoption of the supermarket parking provisions of the DCP that the paralleling of these amendments with the council's consideration of the applicant's proposal must inevitably lead me to the conclusion that the amendments were simply designed to defeat the proposal. Therefore, he submits that they should be given negligible weight in my deliberations. 77 Mr Baird, on the other hand, submitted that the adoption of the supermarket provisions arose from a detailed and proper review of the provisions of the DCP and that I should give them the appropriate weight required by Zhang.

[162]

215 The parties agreed to this proposal and, as a consequence, a condition reflecting this will need to be incorporated in the conditions of consent. Conclusions 216 I therefore concluded that there is no basis on either the sole determinative ground proposed by the council (that is the council's view that there is inadequate parking provided by the site) or on any accumulation of lesser grounds why the appeal should be dismissed. 217 However, permitting Woolworths to open a new supermarket at 1 to 7 Rangers Avenue, Neutral Bay is acceptable only whilst the existing Woolworths' supermarket at Grosvenor Street, Neutral Bay continues to operate. Therefore, approval of the proposed Rangers Avenue store will be subject to a condition that the consent only remains valid while the Grosvenor Street store continues to operate. A number of additional conditions beyond those sought by the council will also be imposed in response to concerns raised by objectors. 218 In addition, as dealt with individually earlier in this decision, drafting of a number of conditions to be incorporated in the conditions of consent remains to be settled by the parties in light of my reasons for decision. Proposed Orders in Matter No 04/11584 219 Therefore, I propose that the orders of the Court should be: 1. The appeal be upheld; 2. Development Application 339/04 for the refurbishment and adaptation of premises at Rangers Avenue, Neutral Bay for the purposes of commercial office space, a Woolworths Supermarket and a retail liquor outlet together with off-street car parking for 111 cars and two disabled on-street car parking spaces should be granted development consent subject to conditions which remain to be settled between the parties; and 3. The exhibits, other than Exhibit A Tabs 11 and 12, will be returned. Directions 220 I therefore direct that: 1. The matter be set down for callover before the Registrar on 31 May 2005 to enable the parties to settle the terms of the conditions of consent in light of the matters determined above; 2. Liberty to re-list before me on two days notice at 9.00am; and 3. If agreed conditions are filed prior to that date, in a form compliant with Practice Direction 2 of 2005 I will make orders in Chambers and vacate the callover date. Matter No 04/11583 221 The second of the matters which was before me relates to a proposed new strata title arrangement for the premises which are subject to the earlier appeal. 222 Mr Baird indicated that the council's position was that if I were prepared to uphold the substantive appeal concerning the supermarket use, the council would agree to the new proposed strata titling arrangements. 223 As a consequence, I adjourned those proceedings, at the time of reserving my decision on the first appeal, with that adjournment being until the Registrar's callover on 31 May 2005. I granted liberty to re-list the matter before me at 9.00am on two days notice if either party so required.

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Judgment (164 paragraphs)

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Cases Cited (1)