Harris Farm Markets Cammeray Pty Ltd v North Sydney Council

Land and Environment Court (NSW)|2008-10-21|Before: Mr P

CITATION : Harris Farm Markets Cammeray Pty Ltd v North Sydney Council [2008] NSWLEC 1413

APPLICANT Harris Farm Markets Cammeray Pty Ltd PARTIES : RESPONDENT North Sydney Council

KEY ISSUES: Development Application :- use Unit CG-01 as a fruit and veg shop in a mixed use retail/commercial/residential development, parking, traffic, compliance with zone and control plan objectives, economic impact on existing neighbourhood centre.

Bluestone Property v North Sydney Council [2008] NSWLEC 449 CASES CITED: Cartier v Newcastle (2001) NSWLEC 170 Fabcot v Hawkesbury City Council (1997) 93 LGERA 373

APPLICANT Mr P. Rigg, solicitor of Deacons LEGAL REPRESENTATIVES:

RESPONDENT Mr I. Hemmings, barrister Instructed by DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10699 of 2008 Harris Farm Markets Cammeray Pty Ltd v North Sydney Council

JUDGMENT 1 Commissioner: This is a Class 1 Appeal No.10699 of 2008 between Harris Farm and North Sydney Council in regard to the refusal of development application DA 179/08 to use Unit CG-01 as a fruit and veg shop in a mixed use retail/commercial/residential development (The complex) at Nos. 450 - 476 Miller St, Cammeray. The site and surroundings 2 The complex is still under construction but nearing completion. It is on the corner of Miller St and Amherst St just on the north side of an overbridge across the Warringah Expressway.

3 The complex has 2 basement levels and above them are the courtyard and retail/commercial spaces at ground level. There are four buildings on top of the basement podium. Each building has lettable floor space on the ground floor and above them there are three floors giving a total of 39 residential apartments.

4 A child care centre is approved on top of Building C, the same building as the proposed fruit and veg. Building C is along the south side of the site above the expressway. The intermediate two floors of building C are for non-residential uses, probably because of the expressway. The other three buildings on top of the podium contain the residential units in storeys above the ground floor.

5 The upper storeys of the 4 buildings each have a separate entry lobby and lift accessed off the courtyard or Miller Street. The lifts in those lobbies also give access to the carparks below.

6 The original consent approved 70 car spaces in the upper basement for retail/commercial uses. A subsequent amendment increased this to 80 spaces in the upper basement. The lower basement has 65 spaces for the residential untis.

7 The complex is at the south end of the Cammeray shopping strip or village as it is called. There is a central courtyard in the complex, which opens out to the corner of Miller and Amherst so there is a visual link from the existing shops to the complex. The complex has shops/commercial spaces fronting both Miller and Amherst and the central courtyard. Unit CG-01 is in the far corner of the courtyard diagonally opposite the opening facing the village.

8 Amherst is an expressway off-ramp for south bound traffic. Miller St is an arterial route to Cammeray, Northbridge and Roseville and beyond from North Sydney and the expressway. The intersection of Miller and Amherst is lights controlled. There is an on-ramp to the expressway for city bound traffic opposite the site on Miller St. On the south side of the expressway across the Miller St overbridge there is an off ramp for north bound traffic to access Cammeray and Crows Nest.

9 Delivery trucks for the complex will use an entry off Miller St. Residents and customers vehicles for the complex will use a separate entry off Amherst on its western boundary that adjoins residential units and two houses.

10 Pedestrians between the village and the complex will use the lights and pedestrian crossings at the corner of Amherst and Miller.

11 The only neighbours of the complex are the 2 houses and some 2-storey units on its western boundary. There are more town houses and units in the continuation of the city block to the west and across Amherst to the north. The Proposal 12 Unit CG-01 faces the courtyard level with floor to ceiling shopfront windows and entry doors. At the rear there are more floor to ceiling windows looking south over the expressway.

13 On the west is a blank side wall of Building C and a landscaped strip to the boundary 7.5m wide. This west end of Building C is adjacent the neighbouring two detached houses. On the north west corner of CG-01 is a fire escape stair and a goods lift for shops in the courtyard. The lift goes down to the loading bays.

14 On the north side of CG-01 for about a 15m length is a 3m wide open passageway between Building C and Building D of the complex. The next 10m of CG-01 is frontage to the central courtyard with the shop front windows and entry doors to the shop.

15 On the east of CG-01 is CG-02, another shop approved under DA82/08 for a fresh produce outlet. Along the common wall between the shops is a service corridor/fire escape and another goods lift that comes up from the loading bays below. Both shops have doors into the service corridor that enables the shops to interconnect.

16 The applicant says the two shops will operate separately. The respondent says they will be part of the same operation.

17 CG-01 is shown on the plans to be fitted out with goods display carousels and shelves and six check-out cash registers.

18 In the loading bay area the whole of one room, set aside for "Plant & Storage" related to the retail/commercial tenants, is proposed for a trolley lift to unload Harris Farm trucks directly into a large cool room in that space for Harris Farm. This space is close to the goods lift that comes up to the service corridor for CG-01 and CG-02.

19 There are other rooms in the basement also designated for "Plant & Storage" and " Storage" related to the retail/commercial tenants.

20 Part of the application is for signage via an illuminated top hamper box along the shopfront in the central courtyard saying "Harris Farm Markets".

21 The shop is sought to open between 7am and 10pm 7-days per week all year.

22 The area of CG-01 is 480 sq m and the area of the cool room space is 107 sq m. The Contentions 23 The Respondent contends that the application should be refused as: 1. The proposed use of the tenancy is antipathetic to the zone objectives and is an inappropriate development for the reasons identified in the Land and Environment Court decision of Senior Commissioner Roseth in Bluestone Property v North Sydney Council [2008] NSWLEC 449 2 The proposed use of the tenancy is not a "small scale business, which serves local needs" and is inconsistent with the objectives of the zoning and the Cammeray Village Character Statement. Particulars Environmental Planning & Assessment Act 1979 Section 79C(1)(a)(i) and (iii), (b) and (c), North Sydney Local Environmental Plan 2001 Clause 14(2) and Residential D Zone (Neighborhood Business) Objective 1 (b) North Sydney Development Control Plan 2002 Part B Planning Area Introduction; Cammeray Character Statement, Cammeray Planning Area 3 The proposed use of the tenancy will adversely affect existing retail outlets within the Cammeray Village. Particulars Environmental Planning & Assessment Act 1979 Section 79C(1)(b), (d) and (e) 4 The proposed use of the tenancy is not in the public interest for the reasons raised by objectors. The Respondent contends that, to the extent that the issues raised by the objectors coincide with the Contentions at paragraphs 1, 2 and 3 above, those issues are issues warranting refusal of the development application. Particulars Environmental Planning & Assessment Act 1979 Section 79C(1)(d) and (e) The Evidence 24 The respondents evidence was heard from: Mr M Cullen consultant retail planner and economist; Mr G Mossmenear council town planner; Mr T Bellew objector 8 Tarella Place, Cammeray; Ms L Moore objector 8 Tarella Place, Cammeray; Ms L Bivona objector of Cammeray Fruit Market 447-449 Miller St; Mr R Commins objector #15/2-4 Abbott St, Cammeray, also representing Strata Plan 71700 of 2-4 Abbott St Cammeray; Ms M Arbidans objector 231 West St, Cammeray, and Mr H Barrie objector #25/1 Amherst St, Cammeray. 25 The applicants evidence was heard from: Mr M Waight consultant town planner. 26 The applicant emphasised that it is not representing the developer of the complex, and thus knowledge of intentions for other parts of the complex are not known.

27 During the walk through the complex and the subject tenancy some "as built" versus "as approved" differences were seen. One change is in the basement adjacent the goods lift adjacent the north-west corner of CG-01. Two rooms shown on the approved plans for "Plant & Storage" and a room shown as "Machine Room" have been made into one room and 9 chain mesh enclosures installed. 28 Another change is a new doorway, not shown in the consent plans, from CG-01 into the service corridor to CG-02 that has direct access to the service elevator mentioned above. The service elevator goes down into the basement beside the "Plant & Storage Room" that is sought to become the Cool Room in this application. The respondent submits that this enables CG-01 and CG-02 to interconnect and operate together. The applicant says it merely gives CG-01 the easiest access to its basement facility.

29 Ms Moore said that particular Plant & Storage Room is big enough to house the large air conditioning plant on the south side of CG-01, and that is where it should be. However, the plant is shown on the consent plans in the position built. On the walk through, Ms Moore noted that the same large air conditioning plant installation is apparently completed, but there is no acoustic wall on its west end that faces towards Ms Moore's house. Ms Moore said the approved plans and acoustic report require a wall there.

30 Ms Moore added that the limit on individual commercial floorspace to retain the Cremorne Village character is "small scale business which serves local needs". The maximum size is set by the approved plan and for CG-01 that is 480 sq m. The inclusion of the cool room in the basement makes the proposal 587 sq m at least.

31 The respondent and Mr Cullen said that the applicant's fitout plan for CG-01 shows only produce sales carousels and check-out counters in CG-01. There is no "back of house" that is essential for such a business.

32 Coincidentally, the respondent's evidence says the approved plans for CG-02 in Exhibit 1 show a comparatively small goods display area with the majority of CG-02 occupied by 4 Refrigerated Goods and Refrigerated Storage rooms, 2 Working Rooms, a Store, an Office with three work stations, a Safe cabinet, a Staff Room for 9 lockers and circulation space wide enough for pallets.

33 The respondent's evidence says CG-02 is 236 sq m in area, and if it operates in conjunction with CG-01 the floorspace is 816 sq m. This is much too big to cater for "local needs" and must constitute a business that is not compatible with the village character. 34 Even further, the respondent says just CG-01 and the Cool Room below exceed by five times the area of the existing fruit and veg shop in the village. The existing shops in the village are in the order of 100sq m and that is the scale of businesses referred to in the statute and control plan.

35 The Court granted consent for the original overall development defined a maximum size of 500 sq m in Bluestone Property Vs North Sydney Council [2006] NSWLWEC 449.

36 Mrs Bivona whose family owns the existing fruit and veg shop in the village said that in the past there had been 3 fruit and veg shops in Cremorne, but over the past 30 years the impact of other shopping centres had reduced them to just her shop. She feared that a Harris Farm of this size would take most of her business and thus impact it and the character and viability of the village.

37 Mrs Bivona was cross-examined and asked if her family had bought out the other two fruit and veg shops with the implication they closed them down to eliminate competition. She said that had not occurred, and words to the effect it was attrition of small businesses due to the advent of big supermarkets and centralised shopping complexes over the past 30 years.

38 It was pointed out that during the view of the village, her shop had other goods such as cut flowers and "corner store" type foods on display. She said they are necessary for viability and cater for the local community need for essential household items in the extended hours of trading. The latter also being necessary to keep the business going. 39 Ms Arbidans lives around the corner from the development and noted that during construction the workers are using the on-street parking nearby as well as the commuters. The result is congested parking for the houses in their residential streets. At least the current congestion is weekdays and daytime only. She said that 80 carparks in the basement would not be enough for customers of the centre, particularly with the huge popularity of Harris Farm that operates beyond normal business hours and at weekends. So the employees would park in the streets, and overflow customer parking would be in the streets close to the development at night and weekends. Shopping trolleys and rubbish would be left in the streets where the customers park, and cause congestion and mess in the only periods of relief that local residents get. Their friends would have trouble parking when visiting. Residential amenity would be impacted contrary to the statutes and the development controls.

40 The applicant said that the Harris Farm proposal includes shopping trolleys that have electronic alarms to prevent them being taken beyond the complex. Any customers parking in the streets would have to carry goods.

41 The applicant said the council cannot raise the issues of CG-01 and CG-02 operating together, and the applicant denied that they would operate together. The approved plans from Bluestone Property Vs North Sydney have the same tenancy areas as proposed. So the Senior Commissioner must have been happy with the CG-01 area of 480 sq m.

42 Development consents are in rem, and therefore the question of ownership does not arise. The consents run with the property, not the owner/tenant. Whilst there is a requirement for approval or notification of change of use of a premises, there is no requirement for planning permission for change of ownership. 43 Mr Waight says the basement storage rooms were always intended to be used, some for the residential units and some for the shops. Exhibit C is unchallenged and shows that CG-01 is, in area, about 20% of all the shop tenancies on the Ground Floor. The basement Cool Room proposed is about 20% of the area of all the approved storage rooms in the Basement. So Harris Farm is only getting pro rata what would be expected for the shops. 44 Mr Cullen was asked if, based on the text of Bluestone Vs North Sydney, the tenancy area of CG-01 should not have been approved. He said it really depended on the use. For instance a restaurant in CG-01 would fit the village character. But Harris Farm does not. A butcher shop or a small goods shop of 480 sq m would not be appropriate as being so big they must require a trade area much bigger than "local needs", as would the Harris Farm fruit & veg. 45 Based on the applicant's submission of tenancy ownership having no role to play, he said therefore CG-03, which is contiguous with CG-02, could ultimately operate together with CG-01 but each under "different ownership". That would give 947 sq m plus the Cool Room of 107 sq m and plus whatever storage space in the basement was allocated to CG-02 and 03. He supported the council draft condition in the event of any approval that the 3 tenancies must not have an amalgamated operation.

46 Notwithstanding that possibility, Mr Cullen said even CG-01 alone with its Cool Room must adversely effect the existing small Cammeray Fruit Market. The latter has an area of about 100 sq m total including "back of house" he estimated. Simply the range of goods that can be displayed in 480 + 107 sq m means six (6) times the choice of produce for the customer. Obviously, he said, customers would be attracted away from Mrs Bivona's shop.

47 Another fruit & veg of 100 sq m in Cremorne could be called fair competition because the intensification or attraction would be similar to Mrs Bivona's. He thought if CG-01 had to include any Cool Room and "back of house" preparation and administration area in the 480 sq m, then the area for the display of goods would be much smaller and possibly be fair competition to Cammeray Fruit Market.

48 Mr Waight said although any development application (DA) for CG-01 should not include consideration of matters mentioned above, any DA would need consideration of the type of use and practical matters such as carparking. For instance a McDonald's in CG-01 would not be appropriate. But he said, the Aims and Objectives of the zone had been considered by the Senior Commissioner in approving the original development and the size of the tenancies. The Aims and Objectives do not arise in DA's for the use of each tenancy. Fruit & veg is retail, and the plans approved retail for CG-01. 49 It was put to Mr Cullen that the permissible uses in the Residential D zone allows child care centres, consulting rooms, home occupations and they are not shops. It was put to him the objective (b) refers to commercial not retail. He disagreed saying the term used is businesses and that includes commercial and retail.

50 He agreed he is not a town planner and is mostly involved in retail strategies for cities, towns, districts and local centres to get the best "economic" return for communities in the context of relationships that environmental, social and cultural performances have on economic performance. It requires a response from many disciplines. He said although he is not a traffic engineer he needs to assess parking in its consequences e.g. if a shop or centre does not have adequate parking it will either under-perform economically, or will get its parking in nearby streets.

51 He said the reasons he concluded that CG-01 and CG-02 would operate together were: o client instruction o His own observation of the proposed plans for CG-01 that have no "back of house" and interconnect with CG-02. o His own observation of the approved CG-02 plans that show a lot of refrigerated goods cabinets and substantial "back of house" facilities for its size. o His visits to several other Harris Farm outlets that combine a large display area for fresh produce and adjoining a smaller area containing a butchery, pre-packaged meats and delicatessen. 52 Mr Cullen said the traditional fruit & veg shop has evolved in recent years to provide this wider range of goods. This can be observed even in Mrs Bivona's Cammeray Fruit Market. But the larger Harris Farm "fresh" outlets appeal to many shoppers at a rate of even more customers per sq m than supermarkets.

53 As a consequence Mr Cullen says Harris Farm outlets cater to a wide catchment at district or regional level, not local. The high visitation rates he observed at Harris Farm outlets of similar size to the proposal were: Willoughby (700 sq m), St Ives (650 sq m) and Mona Vale (600-700 sq m). The latter two are in a complex with a supermarket, the Willoughby is not and he regards it as the most comparable to the proposal. 54 Mr Cullen took indicative observations of one hour visitations to the other Harris Farm outlets (HFM's). He does not regard them as conclusive, to do so would require longer surveys. Still it showed the two associated with supermarkets achieved visitation rates of 69-78% of the supermarkets, or in the range of 182-186 persons per hour to the HFM's. At Willoughby possibly because there is no supermarket and therefore the HFM is dominant, the visitations were above 300 per hour.

55 Mr Cullen noted that a previous application for a supermarket in the basement of the subject site was refused as inappropriate in the Residential D zone. The Willoughby HFM is comparable in that regard because it has only smaller shops of a local centre character around it (fish shop, chemist, pizza shop, café, drycleaner and newsagent) and a 47 space carpark.

56 Figures supplied to him from one day's cash register count of the Cammeray Fruit Market showed 20 persons per hour and this checked out with a physical count he did. He said that gives a gauge of the scale of "local centre activity" by comparison and underlines the fact of HFM outlets drawing a district-regional catchment. Combined with the proposed operating hours of the HFM of 7am-10pm seven days per week, it must have an impact on the residential amenity and parking of the locality, and the existing Cammeray village businesses. 57 The Residential D zone of the subject site is not a commercial zone and is not a mixed use zone. It is primarily aimed at residential uses and other uses that have a low impact on residential amenity.

58 The Cammeray Village has community functions strongly related to its layout of shops fronting the street footpath that creates opportunities for local residents to encounter each other. This is partly due to the short walk along the street to access the various retail, commercial, restaurant and other services (medical, dental, personal, legal). The small size gives easy access by either walking from nearby houses, or using the limited public carpark at the rear of the village. The busy intersection of Miller St and Amherst St does not permit a seamless continuation of the walk from the village to the complex. People may split between the village and the complex. Depending on what is the tenancy mix in the complex, there could be losses of businesses in the existing village. Mr Cullen suspects that, with HFM in CG-01 and a butchery, packaged goods and delicatessen in CG-02, the Cammeray Fruit Market, the butcher and the superette would go. Others in the village such as the chemist would go if another chemist goes into the complex.

59 Mr Cullen says care is needed in the tenancy mix of the complex if the existing village and the complex are to have a synergistic relationship rather than a detrimental one. The key to achieving a balance is to assess any new use against its viability in the local catchment. Uses that require catchments up to the district (10,000 population) or the regional level are unlikely to be suitable. 60 I note that in Bluestone it was a supermarket and an 800 sq m fruit market that were deleted from that proposal and the main comments made by the Senior Commissioner on use of the retail lettable floorspace is that its parking demand should not exceed 1 space per 100 sq m of floor space, and that when the large number of controls are read as a whole the outcome is for the floorspace to be for: "shops or a service that provides for daily needs (such as chemist, butcher, small goods, doctor's surgery), and recreation (such as cafes and restaurants)…………..it is clear that the intent of the zone objectives is to prevent large-scale businesses from establishing in the village, even if they are in conjunction with small ones (which they inevitably are)." 61 The Senior Commissioner adopted the above because there is no definition for "small scale business" that is objective (b) of Residential D zone.

62 Mr Cullen supports this opinion on more technical bases. He said: + The current village shops do indeed serve the local needs of the residents and cater to "surrounding residential neighbourhoods". + He estimates the locality of Cammeray has perhaps 2000-2600 persons in a radius of 400m of the village. This is well below the start point of about 10,000 population for HFM catchments, in his opinion. + His surveys show the operational model for HFM's requires a much higher visitation rate by customers than is consistent with "local needs". + Local connections is another indicator of the desired "small scale businesses" because the current businesses in the village are owner operated. HFM is likely the largest fruit & veg/fresh food retailer in NSW. It is a chain store that cannot be described as "small scale business". + The "village character" has the local context and community involvement role of customers being familiar with owner operators who have a vested interest in the community of Cammeray. HFM staff will be chain store employees who tend to be less likely to live in the local community, and less likely to have an interest in familiarity with customers that adds to local identity. + The role of the village is a "shopping top up", local services, eating/coffee café/restaurant and socialising. It is not the destination for the weekly bulk shopping. HFM's are aimed at the weekly bulk shopping. + It does not matter whether HFM in CG-01 is owned by a separate entity to CG-02, or for that matter CG-03. If CG-02 is used for the purpose approved, it and CG-01 will create together, intentionally or not, a strong drawcard or anchor for the complex. That alone must negatively impact several of the key existing small businesses in Cammeray. If the draw of customers is sufficient, including from beyond the local area, other retailers will cluster in the complex around the HFM and CG-02. These other retailers will probably include retail categories that already exist in the village. 63 These factors are likely to amplify the effects on the village if the HFM is approved, as it will result in a lack of contiguity between the two and potentially the complex and the village will operate as separate nodes, contrary to the zoning, its objectives and the Cammeray Village DCP. 64 If these opinions come true and businesses in the existing village fail such that the village can no longer supply the currently attractive mix of shops, services, eating and socialising, then the complex could well usurp the role of the village.

65 Mr Waight said Mr Cullen's assumption of "no back of house" in CG-01 ignored the communal facilities in the basement. The toilets and even showers are in the plans adjacent the Centre Management office. Staff of CG-01 could use them. He said he had assumed those amenities were for staff only as there is another amenities space shown off the courtyard at Ground level. He assumed the latter is for the public.

66 It was noted the Ground level amenities spaces are new on the plans since the original consent dealt with by the Senior Commissioner, and on the plans it has no detail of what "amenities" are in the space. Also the basement level amenities are directly off the public lobby between the carpark and the pedestrian ramps up to the Ground floor. The amenities in the basement include a parents room and there is no door between the public lobby and the amenities corridor. So if the staff members are to use them so is the public, and there is no locker room shown.

67 Mr Waight's comments on CG-02 are that it is not the subject of this application, he accepts the draft condition that CG-01 and CG-02 not operate as one business. He agreed that whilst HFM has no agreement or association with CG-02 at the moment, nothing excludes that possibility except the draft condition.

68 On the size of CG-01 he said HFM's came in different sizes between 550 sq m and 2000 sq m, so he sees CG-01 as a small outlet in HFM's range with limited draw of customers. 69 He agreed at the time of preparing his report he did not realise there is no requirement for a development application to change one permitted shop to another permitted shop unless the plan or the hours of operation are changed.

70 The objectors were concerned about on-street parking because at the nominated rate of 1 car per 100sq m for the lettable floorspace, the HFM would have 5 carspaces in the basement. The residents said this is inadequate considering the customer draw of typical HFM's. There would be overflow parking onto residential streets.

71 Several objectors said the HFM is more akin to a supermarket than a neighbourhood shop, and calculating carparking demand on that basis is more appropriate. In which case the 5 carspaces in the basement are inadequate. This was implicit in the original application having the then proposed supermarket and fruit & veg deleted.

72 The respondent did not press an issue on street parking as it accepts the parking and traffic report presented in a Bluestone s96 amendment application that said in part: At best, the maximum size for a market on the site should be limited to the largest ground floor tenancy approved by the Court being 480 sq m. Any larger could not be considered as a small-scale business, which serves local needs. If the largest approved ground floor tenancy was allowed as a fruit market then the maximum parking could be increased to 80 spaces……………..The parking on-site was approved to be increased to 80 spaces, subsequently accepting that the 480 sq m could become a fruit and vegetable store in the future. 73 Council's assessment report said that this gave a parking requirement of 1 carspace per 25 sq m retail floorspace for CG-01 and the increase to 80 spaces included 19 for CG-01; not 5 as assumed by the objectors.

74 The council officer's report did go on to the proposed hours of operation and potential impact on residential amenity. The report recommended the hours be brought into line with other approved non-residential uses in the complex, namely + Monday -Wednesday and Friday: 7am to 7pm. + Thursday: 7am to 8pm + Saturday: 7am to 6pm, + Sunday: 8am to 6pm. 75 The officer report also noted that carparking would operate on a cyclical basis such as the child day care facility having its peaks on weekdays before 9am and between 4pm and 6pm and no use at weekends. At out-of-peak and non-use times the child-care spaces would be available for other customers of the complex. The shopping trolley management system that prevents trolleys leaving the complex should function with this to minimise the likelihood of adverse impacts on residential amenity.

76 In counter-point to this the objectors Mr Commins and Strata Plan 71700 says Amherst St has a number of medium density developments that results in existing on-street parking being highly utilised. His Strata Plan has 19 units directly opposite the site.

77 The applicant says 10 staff at any one time. Mr Commins says that in itself shows the scale of operation, it is not a "small scale business". Obviously there will be a roster of staff so there will be more than 10 on the payroll and their cars. At changeover of shift there will be the cars of more than 10 employees as the new shift arrives before the previous shift departs.

78 The applicant says 5 deliveries per day, that is 35 deliveries per week. That is not "small scale business to serve local needs", in Mr Commins opinion. It is a regional chain business more like a supermarket in Mr Commins opinion and he says the Senior Commissioner rejected a proposed supermarket and fruit & veg in the complex as anti-pathetic to the Residential D zone.

79 The respondent's submissions reviewed The Senior Commissioner's judgments on the original consent and the s96 amendment that increased the carparking. Whilst the decisions dealt with carparking, they did not deal with other aspects. The Senior Commissioner specifically said that each tenancy would require a separate development application to determine whether it fitted the numeric and the qualitative requirements of the statutes and the controls for the Residential D zone. 80 This decision is a critical one for Cammeray because it is the first proposed use for CG-01. As the respondent puts, subsequent to the first approval for a shop of one kind, no development consent is needed for a change to another permissible shop provided the carparking and hours of operation and health and building matters remain the same.

81 Mr Waight's evidence assumes that the qualitative requirements of the zone aims and objectives had been dealt with previously, so he did not assess them under s79C of the Environmental Planning & Assessment Act 1979. The critical questions are: (a). Does the proposed use serve the surrounding residential neighbourhoods? (b). Is it a small scale business that serves local needs? 82 Whilst it is true any consent runs with the tenancy, it should not rule out a proper understanding of the proposal based on the applicant's modus operandii. It is a chain store business that operates at district and regional levels, not at local small business level. To ignore that ignores the statutory zone provisions and the deliberate greater detail of them in the Cammeray development control plan.

83 The core of any approval is not whether 480 sq m plus the Cool Room is "small business", but whether the business itself is "small business". As Mr Cullen points out, the type of use is critical: a restaurant in 480 sq m would fit the village character and the aims and objectives, a large fruit & veg, a large butcher, a large small goods shop must cater for a much larger catchment than the neighbourhood. The nature of a local neighbourhood shopping centre is they often have only a single outlet of each type of shop or service, sometimes two. Introducing a large attractor like HFM moves the centre up the scale between neighbourhood and district shopping centre. This is a move that the zoning and the development control plan are specifically discouraging for Cammeray. 84 In examining the evidence a little closer I found that Mr Commins and the other objectors concerns about HFM were based on their observations of HFM's at other centres. The applicant notes that the other centres, except for Willoughby, have a supermarket as well. That will not occur at Cammeray. The objectors say the HFM would be de facto a supermarket and that type of shop has been ruled out for Cammeray.

85 The applicant also puts that Cartier Vs Newcastle (2001) NSWLEC 170 and Fabcot Vs Hawkesbury City Council (1997) 93 LGERA 373 test cases do not allow protection from competition for individual traders. I read that both cases were about the potential impact on existing shopping centres that may be created by new supermarkets out of, or close to but not in, existing centres. In both cases Her Honour Pearlman CJ and His Honour Lloyd J found that the proper consideration of economic impact is on the centre as a whole, not the individual traders.

86 It seems to me this appeal is distinguishable because the complex is, by its approval and proximity, part of the Cammeray shopping centre, not separate. Perhaps the objectors see the complex as separate because it is new. The complex will perhaps draw additional people to Cammeray because of the additional shops, and there may be a redistribution of shop types within the centre, but Cammeray will still function. The test cases still have relevance on the question of protection from competition and dictate that I should not dismiss this appeal simply because there may be an effect on individual traders in Cammeray, or that I should dismiss the appeal because HFM is not a local business.

87 Mr Cullen's evidence is that if CG-01 and CG-02 operate together they would be like a supermarket. He also says that fruit & veg markets have morphed in recent years to provide a wider range of goods than just fruit & veg. But he has never said that the viability of Cammeray will be jeopardised by a HFM in the complex, only that individual traders may be effected. Mr Cullen said there may be a shifting of focus, if you like, within Cammeray as the new shops that go into the complex begin to trade. That is to be expected by virtue of the original approval of the complex.

88 In the absence of a definition of "small scale neighbourhood shops" or "small scale businesses which serve local needs" the Senior Commissioner concludes that the zone objectives are intended to prevent large-scale businesses from establishing in the village. The current plans have the same tenancy floor spaces as in the approvals and CG-01 was approved as the largest at 480 sq m and in a later decision contemplated as a fruit and veg market. It must be in the physical scale of small business as understood by the Senior Commissioner. As the applicant submits the type and size of shop is important. The identity of the operator should not effect the decision. 89 I accept the evidence that the basement Storage and Plant & Storage rooms were intended for tenants to use in conjunction with the loading bays. No allocation of space was contained in the consents, so a pro rata allocation seems fair. A Cool Room is "plant & storage" by another name and is not unreasonable given the nature of a fruit & veg shop.

90 I find it difficult to escape the previous decision that contemplated a fruit & veg market in CG-01 and adjusted the number of parking spaces in the basement to allow for it. Also I do not believe there is certainty of CG-01 being much more than a shop when it is not sited with, and based on the previous decisions will never be sited with, a proper supermarket to form the large "anchor attractors" for weekly shopping. Given that the HFM would be perhaps the smallest outlet in that company's range, and with the council condition preventing amalgamation with CG-02 and CG-03, it may not provide much more than the incidental shopping role of a local centre.

91 The respondent says that the applicant has avoided saying there will never be a business or operational or other link with CG-02, and has only sought to exclude CG-03 because it has no knowledge of it. The respondent asks me to infer that there is and will be a co-ordinated operation of the two tenancies. However it seems to me the numerous assurances to the Court that the staff and preparation rooms in CG-02 will not be used for the operation or staff of CG-01 constitute evidence that the respondent can act upon if ever there is a breach. I cannot assume there will be a breach and use it for a dismissal.

92 The council's draft conditions have reduced the hours of operation and hours for deliveries and garbage pickup sought by the applicant. This means the hours conform with the hours already approved for other shops in the complex. This is for the amenity of the residents of the units in complex. They are appropriate conditions.

93 The shopping trolley system to prevent trolleys leaving the complex is another condition that assumes the uncontested parking provision is adequate and customers of the HFM will park in the basement. Further that parking in the street, which would effect nearby residential amenity, is discouraged by preventing the trolleys being used outside the complex.

94 These matters lead me to the conclusion that overall there is nothing sufficient to justify refusal of the application subject to appropriate conditions as sought by the respondent.

95 Therefore the Order of the Court are; 1. The appeal is upheld. 2. Development consent is granted for the use and fit-out as a fruit and vegetable market of tenancy CG-01 and the Plant & Storage room in the Basement Level 1 shown on the plans to be converted to a loading area and Cool Room, all as amended by and operated in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, B, 5 & 6.

          K G Hoffman
          Commissioner of the Court
          ljr

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At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Cases Cited (2)

Cited By (1)