Homemaker Hub v Strathfield Council

26 Clause 61BD is directed not to use for the purposes of "the retailing of bulky goods" but to "bulky goods, sales room or showroom". This is defined as a building or place used "for the sale by retail or auction, the hire or the display of items (whether the goods or materials) which are such a size, shape or weight as to require….". In adopting the reference to materials, a distinction can be made with the term goods. The Macquarie Dictionary defines materials as "articles of any kind requisite for making or doing something".

27 What can be drawn from the differences is that a bulky goods sales room or showroom is not necessarily the same as the retailing of bulky goods. As it would be clearly impermissible to rely on a development control plan to interpret the meaning of words or terms in the Ordinance, it is equally impermissible to endeavour to use the aims and objectives of LEP 63 to explain or supplement the wording in cl 61BD.

28 As a matter of construction, Mr Hale submits that there are a number of possibilities as to the inter relationship between cl 61BD, cl 61E and cl 61GB. First, the development is properly characterised for the purpose of the retailing of bulky goods. In this case, it is subject to cl 61E(4). Second, the development may also be a bulky goods sales room or showroom within the meaning of cl 61BD, even though it does not involve the sale, auction, hire or display of materials. Third, if cl 61BD is a form of "retailing of bulky goods", then cl 61E also applies. Fourth, if the proposed development cannot be characterised for the purposes of cl 61GB(3) it does not come within the exception of bulky goods retailing and sub cl (3) applies. Findings 29 In considering the different submissions, I am satisfied that the general approach of Mr McEwen to the relationship between cl 61BD, cl 61E and cl 61GB is the correct one. Clause 61BD is a site specific clause, and while the words of this clause are different, in places to the wording in cl 61E, both address the sale of bulky goods. If a purposive approach is adopted, there is little if any difference between retailing of bulky goods (cl 61E) and the sale by retail of items from a bulky goods, sales room or showroom (cl 61BD) when what constitutes bulky goods is largely consistent between the two clauses.

30 For these reasons, the provisions of cl 61BD(3), in my view, exclude the need to consider cl 61E and cl 61GB as it would be in conflict with the terms of this sub clause that provide that "nothing in this Ordinance shall prevent a person, with the consent of Council, from carrying out a development for the purposes of a bulky goods sales room or showroom or for related commercial purposes".

31 If this is incorrect, then the generalia specialibus rule should apply as the general provisions in cl 61E and cl 61GB should give way to the specific provisions of cl 61BD. In any event, I am also satisfied that the provisions of cl 61GB(3) do not apply because bulky goods retailing is a use specifically excluded from the operation of this sub clause. I note that none of the experts in the proceedings relied on cl 61GB in their assessment.

32 The effect is that cl 61BD is the appropriate clause for the consideration of the application. If I am incorrect in coming to this conclusion, I will address the provisions in cl 61E and cl 61GB for caution and also as the additional matters in these clauses were the subject of extensive evidence at the hearing.

33 Having accepted Mr McEwen's approach to the relationship between cl 61BD, cl 61E and cl 61GB, the submission of Mr Hale on whether the approach adopted by the applicant for the classification of bulky goods remains at issue. This is a matter equally relevant to cl 61BD.

34 The clauses in question raise a number of specific requirements that must be satisfied to allow the use of the site for bulky goods. If these specific requirements cannot be satisfied, any proposed uses could be classified as a shop and potentially prohibited under the Ordinance. These specific requirements can be grouped into the following main areas: o what are bulky goods, particularly considering the requirements for size, shape and weight and access? o are there economic impacts outside the industrial area? and o are there impacts on the industrial area? Bulky goods - size, shape and weight The planning requirements 35 To be categorised as bulky goods, items must be a size, shape or weight as to require a large area for handling, storage or display (cl 61BD(2)) and are of a kind required to be displayed in premises not easily accommodated in traditional commercial centres (cl 61BD(2)(b)). Clause 61E(2) has similar requirements to cl 61BD(2) but without the reference to weight and the specific requirement of cl 61BD(2)(b). Clause 61GB has no corresponding provision.

The council's approach 36 Mr Hale rejects the approach of the use of conditions to pre-determine what constitutes bulky goods. He submits that without the necessary thorough examination of the particular characteristics of a proposed use, it is not possible to categorise a use as bulky goods and as such it must be a shop or commercial premises and therefore potentially prohibited in the zone.

37 Ms McCabe opposes the use of a generic condition that identifies specific uses as a means of addressing the criteria that have to be satisfied for the bulky goods definition. Further, she states that there should be no tenancy less than 1000 sq m. in area as any tenancies less than this area has little to distinguish themselves from a shop. A typical specialty shop in a shopping centre can be up to 400 sq m. In her experience, more recent controls define bulky goods as restricted retail premises and nominate a size of greater than 1000 sq m. In general terms, the size of a tenancy is indicative of its capacity to meet the definition of bulky goods.

The applicant's approach 38 Mr McEwen submits that proposed conditions 2.1 to 2.7 provide the necessary screening for the categorisation of a use as bulky goods and not as a shop or commercial premises. This is achieved through limits on the floor area and identifying specific uses that are normally associated with bulky goods. Other uses require the submission of a development application.

39 Ms Bindon states that based on the Bulky Goods Retailers Association standards, tenancies of at least 300 sq m are more than capable of being used as bulky goods salesroom's and showrooms. The use of generic land uses has been used in other local government areas to define bulky goods. These uses are seen as deemed to comply land uses and not requiring development consent. Other land uses may also be appropriate however these land uses would require the submission of a development application. Ms Bindon notes that a minimum area of 500 sq m is consistent with the size nominated in Strathfield Draft Development Control Plan 11.

Findings 40 On this issue, I agree with Mr Hale and Ms McCabe. The Ordinance has the traditional allocation of land uses with shops generally restricted to business zones. The Ordinance provides the opportunity for some shops to be located outside business zones (such as Zone 4) but with limitations. A similar situation (but in a matter relating to an aged persons housing development) was addressed by Lloyd J in Arminella Pty Ltd v Ryde City Council [1999] NSWLEC 237 (at 11) where he states: 11. It is worth repeating what was said by Pearlman J in David Crane & Associates Pty Ltd v Kogarah Municipal Council [1999] NSWLEC 27 at 7: 7. The mandatory nature of the obligation imposed by cl 12(2) is revealed, not just by the language used, but by the policy considerations which underlie SEPP 5. Kirby P dealt with this point in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 431 in considering cl 11 (the predecessor of cl 12). His Honour pointed out that SEPP 5 permits development for the purpose of housing for aged and disabled persons in places where otherwise land zoning would prohibit such development, but "… the price of relaxation… is compliance with the requirements laid down…" by SEPP 5. 41 In my view, there are strong reasons to accept the proposition in Malcolm. The price of the opportunity that allows bulky goods retailing in a zone that generally prohibits retailing is that it must be clearly shown that the use satisfies the requirements for that opportunity. To maintain the integrity of the land use allocation within the Ordinance, the limitations imposed by cl 61BD, cl 61BD and cl 61GB must be given serious and rigorous consideration. Ms Bindon is clearly correct where she acknowledges that there are a number of examples where bulky goods establishment are controlled through mechanisms similar to that proposed by the applicant. The significant difference however is that these mechanisms are normally contained within the councils planning controls. In this case, the Ordnance contains no such provisions and in the absence of these controls, I am unsure how a particular use can be categorised as bulky goods without the specific details of its operation. 42 To be categorised as bulky goods, a use must be a size, shape or weight as to require a large area for handling, storage or display (cl 61BD(2)) and be not easily accommodated in traditional commercial centres (cl 61BD(2)(b)). I accept the evidence of Mr Leyshon and Mr Rumbold that there are certain retailers that may readily be categorised as bulky goods establishments however it is not possible to, as part of the requirements in the Ordinance, to identify individual retailers as a generic bulky goods use. Land uses, as distinct from individual retailers, must be identified. It may well be that the uses identified in condition 2.3 could ultimately be categorised as bulky goods but in the absence of any details of the proposed use to test against the requirements in the Ordinance, no other conclusion can be made but the use was a shop, and as such potentially prohibited.

43 The comments in Telope and Warehouse Group are particularly helpful in categorising a use as bulky goods or a shop when the details of the use are known. In my view, Telope and Warehouse Group provide little, if any support for the use of a generic description of a land use as bulky goods (as set out in proposed condition 2.3) without the specific details of that use.

44 This conclusion is not fatal to the application as it only means that to satisfy the requirements of the Ordinance, a development application will be required for the use of each of the tenancies to determine whether the use can be categorised as bulky goods. As each application will need to be assessed against the requirements in the Ordinance, and accepting the potential wide range of likely uses, I also accept that there is no reason to place a minimum area requirement on individual tenancies. The size of the tenancy is appropriately considered as part of those matters required by the Ordinance and the specific characteristics of the use. 45 I find that cl 61BD(2) and cl 61E(2) can only be fully considered through the submission of a development application for each tenancy. The conditions of approval will need to be amended to reflect this finding. Bulky goods - access The planning requirements 46 To be categorised as bulky goods, there must be direct vehicular access to the site of the building for the purpose of loading purchased items into vehicles (cl 61BD(2)(b)). Clause 61E(2)(b) has similar requirements to cl 61BD(2)(b) and requires easy and direct vehicular access. Clause 61GB has no corresponding provision.

The evidence 47 Ms Bindon states that there is direct vehicular access to the site and the building provides suitable loading facilities and is therefore compliant with cl 61BD(2)(b). Ms McCabe states that to satisfy the requirements of cl 61BD(2)(b), each individual bulky goods tenancy must have its own loading facility and direct vehicular access. The facilities provided for the proposal are indistinguishable from the functions provided in other shopping centres. There is little difference as tenancies are internalised, and parking, loading and unloading facilities are remote from the bulky goods tenancies.

Findings 48 On this issue, I agree with Ms Bindon. I do not accept that cl 61BD(2)(b) and cl 61E(2)(b) should be read so narrowly as to require each tenancy to provide directly adjoining access to car parking or individual loading facilities. The findings in Telope and Warehouse Group clearly allow the sale of smaller goods that do not require directly adjoining access to car parking or individual loading facilities. I accept that the requirement for easy and direct vehicular access for the purpose of loading purchased items into vehicles can be achieved through a direct (but not necessarily adjoining), not excessively long and unobstructed paths of travel from the tenancies to either the car park or facilities that allow for the loading of items into vehicles, if necessary. In my view, the layout and relationship of the tenancies, car park and dedicated loading facilities satisfies this objective. Economic impacts The planning controls 49 Clause 61BD has no provisions relating to economic impact. Clause 61E(4)(a) provides that consent cannot be granted unless the Court is satisfied that suitable land is not available in any nearby business centre. Clause 61E(4)(c) provides that consent cannot be granted unless the Court is satisfied that the proposed development will not detrimentally affect the viability of any business centre. Clause 61GB(3)(a) has a similar requirement to cl 61E(4)(c). .

50 Having previously found that the only relevant clause is cl 61BD for the consideration of the application but adopting a cautious approach, cl 61E and cl 61GB raise the following questions: o what is meant by the term "business centre"?, o is there suitable land available in any nearby business centre?, and o will the proposed development detrimentally affect the viability of any business centre?

The evidence 51 In addressing the clauses, Mr Leyshon and Mr Rumbold address three separate issues. These are: o whether the potential uses could or should be accommodated in either traditional centres or business centres, o whether suitable land is available in traditional centres or business centres, and o whether the proposed development would detrimentally affect the viability of any business centre.

52 On the first question, Mr Leyshon and Mr Rumbold identify what they consider to be bulky goods. They address the question of what constitutes "bulky goods" in some detail in their evidence based on their experience with this type of development. They nominate specific retailers that they consider would meet the "test" for categorisation as bulky goods. Both experts recognise that some retailers require a large area to display their full range of merchandise even though at the individual level, products purchased by their customers are in the main, not bulky. Both experts acknowledge that some bulky goods retailing can be (and already are) accommodated in traditional commercial centres.

53 Mr Leyshon's view is that for a range of reasons, such centres do not suit all retailers of bulky goods and there are distinct benefits in co-locating such retailers in locations readily accessible to shoppers, such as Homebush. Mr Rumbold considers there are ample opportunities for bulky goods retailers to locate in existing centres. He further considers that retail businesses that sell predominantly non-bulky items should be located in "traditional commercial centres".

54 On the question of whether suitable land is available in traditional centres or business centres, the experts agree that the term "traditional commercial centres" (cl 61BD) relates to centres that are identified in the Ordinance with a business zoning. These centres are usually dominated by retailing and commercial services and include larger scale centres such as Burwood and Strathfield, as well as smaller strip-style centres like Majors Bay Road and Homebush West.

55 Mr Leyshon and Mr Rumbold disagree on the meaning of the term "business centre" (cl 61E(4)). Mr Leyshon considers the term, to a significant extent, to be interchangeable with the term "traditional commercial centre". The term relates to centres where the zoning is first and foremost for commercial or business activities, rather than primarily for industrial activities. Mr Rumbold states that the term applies to any cluster of business activities, including retail and commercial services, irrespective of zoning. He cites the industrial land fronting Parramatta Road between Lidcombe and Auburn as an example of a large "business centre".

56 The question of land availability is addressed by Mr Leyshon by stating that it may be possible to identify a site in the Parramatta Road strip which could accommodate a centre of some 15,000 sq m however this land cannot be classified as a "business centre". Mr Rumbold relies on his previous interpretation of the term "business centre" to conclude that land for the proposed development is likely to be available along Parramatta Road. He notes that vacant space is available in buildings (including the Lidcombe Power Centre) that could accommodate the proposed development, in full or part.

57 Mr Leyshon states that based on his assessment of a "business centre", there is no evidence that the operation of the bulky goods sector in New South Wales in general, or Sydney in particular, has had any adverse effects on the viability of traditional commercial centres or other business centres. Consequently, Mr Leyshon states that the proposed development would not have any adverse impacts and will not undermine the viability of any traditional commercial centre or business centre within the trade area or elsewhere. 58 Mr Leyshon and Mr Rumbold differ on the economic impact of the proposed development based on their different assumptions of the term "business centre". Mr Leyshon states that based on his assessment of the proposed development, the sales impact of the proposed development of bulky goods floor space at Homebush on major bulky goods centres in Auburn and South Bankstown would be classified as being in the low/medium range (6.0% to 10.9%). The impact on other centres including Burwood would be classified in the very low range (up to 5.9%). On this basis, the economic effects of the proposed development are likely to be acceptable and not lead to a reduction of existing facilities in established centres or other bulky goods precincts. The proposed additional bulky goods retailing will meet an identified need for such retailing in the Homebush trade area.

59 Mr Rumbold states that based largely on Mr Leyshon's methodology and assumptions the impact on combined bulky goods and homewares expenditure would be 9.2%. However, if the proposed development is restricted to genuine bulky goods and homewares are excluded, the impact levels would increase to around 14%-15%. In his assessment, markets are able to withstand higher impacts when base level trading conditions as strong and when underlying market growth, by way of population growth and income growth, is increasing the size of the available market each year. In this scenario, a 10% impact can be of little lasting significance. However in less favourable conditions, a 10% impact can lead to significant effects on individual businesses and centres. Further risks associated with the proposed development include the potential for relocation of existing bulky goods retailers from existing centres to the proposed development or nearby shopping centres and the loss of existing bulky good retailers that are currently trading at marginal levels. 60 Mr Neil Ingham, a town planner, provided oral evidence on his written submissions to the council when the proposal was advertised on behalf of the Rhodes Shopping Centre and Westfield Limited (dated 15 June 2009 and 19 June 2009, respectively). Mr Ingham raises the following concerns: o the Economic Impact Assessment provided with the development application does not adequately assess the impact of the development on established centres, o the proposed development does not adequately address the permissibility of bulky goods within Zone 4, particularly the provisions of cl 61E, o the proposed development will create and have significant traffic implications, and o the proposed development is inconsistent with the State Government Centres Policy. 61 Mr Robinson supported Mr Ingham in his concerns over the regional implications of the proposal. In his opinion, the proposed development, from a strategic viewpoint, is better located with other uses that together make a centre, and also have a range of access options. Findings What is meant by the term "business centre"? 62 The meaning of the term "business centre" is at the centre of the disagreement between Mr Leyshon and Mr Rumbold. "Business centre" is not defined in the Ordinance but must have a particular meaning because it is used elsewhere in the Ordinance for a similar purpose (but for a different site in cl 61BE). The clauses using the term "business centre" were also inserted into the Ordinance at different times.

63 In balancing the different evidence of Mr Leyshon and Mr Rumbold, I agree with the conclusions of Mr Leyshon that the term "business centre" should predominately relate to centres where the zones provides business activities rather than business activities that may be permissible but are not the principal purpose in other zones, such as the industrial zone. Notwithstanding the different terminology in cl 61BD and cl 61E and cl 61GB, I accept that the term "business centre" should be seen as having largely the same meaning as the term "traditional commercial centre". Support for this conclusion comes from the terminology used in the land use tables where the range of business zones are described as 3. Business. (a) Business General, 3. Business. (b) (Special) and 3. Business. (c) Neighbourhood (my emphasis). It would be sensible, in my view, to place some emphasis on the existing structure and terminology of the Ordinance in considering this question. 64 There is also some sense in Mr Leyshon's argument that to adopt Mr Rumbold's approach would be to say that the existing DFO must be categorised as a "business centre" as it is a cluster of business activities. It must follow that the subject application would not be inconsistent with cl 61E(4) because the proposed development would be located within a "business centre".

65 The Court was taken on a particularly forensic examination of the meaning of "business centre" however I am more inclined to follow the approach suggested by Cripps J in Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council 53 LGRA 322 where His Honour makes the following relevant comments (at 323): I adopt, with respect, the observation of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 923, 924 that when interpreting delegated legislation, the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and that if that language is capable of more than one interpretation, a court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to reasonably practical result. 66 While it is not without some doubt, I am satisfied that this conclusion represents a reasonable and practical approach to the interpretation of the term "business centre". If the clauses are reframed based on the findings in the previous paragraphs then the consequence is that consent cannot be granted for bulky goods if the proposed development will detrimentally affect the viability of any business zoned land (cl 61E(4)(c) and cl 61GB(3)(a)) and where the development may otherwise have occurred within business zoned land in the locality, suitable land for the development is not available in that business zoned land (cl 61GB(3)(b)).

Is there suitable land available in any nearby business centre? 67 Mr Leyshon and Mr Rumbold agree that there is a degree of overlap in the range of goods sold in bulky goods establishments and traditional commercial centres. I did not understand there to be any evidence to suggest that the likely uses for the proposed development are best exclusively located in commercially zoned land. There are obvious and clear benefits to distinguish the two types of development, as contemplated by the separate planning requirements for each use.

68 Mr Rumbold is correct when he states that retail businesses that sell predominantly non-bulky items should be located in traditional commercial centres. The appropriate categorisation of a use is best left to the consideration of the development application where the specific details of the use are known. Mr Rumbold provided considerable evidence on the companies that he considered to be appropriately located in traditional commercial centres or bulky goods centres however any reference to these companies in categorising them as bulky goods can only be a general guide, without the specific details of their operation. 69 If Mr Rumbold's approach is adopted (that is to include industrial zoned land within the meaning of a business centre) I do not accept that the test in the clause is satisfied, as suggested by Mr Rumbold, by the existence of industrial zoned land, such as the land along Parramatta Road. It cannot be a valid planning reason to refuse a development application simply because other land exists and permits a particular use. Even though the land may exist, it does not necessarily mean it is available. No evidence was provided that indicated that suitable land was "available" for the proposed development.

Will the proposed development detrimentally affect the viability of any business centre? 70 Mr Leyshon's evidence indicates that the impact on other zoned business centres would be in the very low range. Mr Rumbold's evidence concentrates largely on the effect on existing bulky goods retailers and while Mr Rumbold does not necessarily agree with the assumptions made by Mr Leyshon in his assessment and raises further matters to challenge his conclusions, Mr Rumbold's evidence does not seriously challenge the conclusions of Mr Leyshon. In any event, and even if some of Mr Rumbold's concerns are realised, the risk as estimated by Mr Leyshon is in the very low range and even if this risk was increased, the overall impact is unlikely to detrimentally affect the viability of any business zoned land. I also do not accept that the current economic conditions should be a major consideration given the cyclical nature of economic changes. It would be unreasonable to rely on economic conditions that exist today for a development that will have a life span of many decades.

71 If Mr Rumbold conclusions are accepted that "business centre" land includes industrial zoned land and while the risk is naturally higher than existing business zoned land, I am satisfied that the proposed development is unlikely to detrimentally affect the viability of any business in industrially zoned land. I agree with Mr Leyshon that the most likely affected businesses are in the Auburn area and the most likely affected development is the Lidcombe Power Centre. While the evidence did not indicate that exact amount of vacant floor space in this centre, there was general agreement that it was not fully occupied and that at least some of the proposed floor space from the proposed development could theoretically be accommodated in this centre. In my view, the existence of vacant floorspace in the Lidcombe Power Centre is not a valid reason to refuse the development application. There may be a large number of reasons why the Lidcombe Power Centre has vacant floorspace. It may relate to a surplus of bulky goods floorspace, but equally it may relate to other unrelated factors. The assessment by Mr Leyshon indicates a sales impact in the low/medium range for bulky goods centres. I did not understand Mr Rumbold to disagree that this was within the range that would have no long-term impact on other bulky goods establishments. Mr Rumbold raised other issues that challenged this conclusion however I do not accept that these reasons can be supported. For reasons specified in the previous paragraphs, the site will not be used for anything other than bulky goods retailing and the exclusion or inclusion of homewares as a bulky goods use will depend on the particular operation and how the use relates to the definition of bulky goods. 72 The issues raised by Mr Ingham are generally addressed as part of the matters raised by the council. The controls in cl 61BD must be the principle means of determining whether the proposed development is appropriate or not. The Centres Policy is an important document for councils in local planning however it cannot be seen as a valid basis to override existing properly prepared local planning controls. Documents such as the Centres Policy should inform the zoning process not be a reason to challenge it, particularly given the site specific provisions of cl 61BD.

73 The site specific provisions of cl 61BD relevant and I agree with the comments of Mr Leyshon who states that the council in amending the Ordinance, (through the inclusion of LEP 63), specifically considered the site to be an appropriate location for a bulky goods salesroom or showroom and for related commercial premises. It is also clear from the stated aims of LEP 63 that the site was seen as an appropriate strategic location for such a centre. It reasonably follows that in supporting LEP 63, the council had regard to the location and nature of other existing business centres at that time and felt development of the site would not conflict with the retail and commercial services of any existing traditional or planned commercial centres. The continuing support from the council for the site-specific controls also supports the contention that the use of the site for bulky goods would not conflict with the potential for similar developments within the industrially zoned land. 74 In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClelland CJ relevantly states (at par 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 75 In this case, the site specific nature of cl 61BD falls squarely within the comments in BGP Properties where it states that the more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. On the basis of the findings in BGP Properties, significant weight should be given to the site specific nature of cl 61BD. The industrial area nature of the zone The planning controls 76 Clause 61E(4)(b) provides that consent shall not be granted if the number of retail outlets which exist or are proposed on land within Zone No 4, defeat the predominantly industrial nature of the zone. Clause 61GB(3)(c) provides that consent shall not be granted unless the Court is satisfied that the development is of the type appropriate to industrial zone, or to the general character of existing development within the industrial zone. There are no corresponding controls in cl 61BD.

Findings 77 In my understanding, there was no evidence to suggest that the number of retail outlets (including the proposed development) would defeat the predominantly industrial nature of the zone. It would be difficult if not impossible, in my opinion, to conclude that the proposed development is not a type appropriate to the industrial zone or would unacceptably affect the general character of the industrial zone, given the site-specific controls to allow for bulky goods retailing, the time that these site-specific controls have existed and importantly, the continued existence of these controls notwithstanding the opportunity to reassess the suitability of these controls with amendments to the Ordinance over time. Traffic The roundabout 78 The Homebush Bay Drive, Australia Avenue and Underwood Road intersection was originally proposed to be signalised as part of the proposed development. The Sydney Regional Development Advisory Committee saw the signalised intersection as being a good solution, if feasible and subject to amended documentation and modelling in their response to the council on 17June 2008. The signalised intersection was however a reason for the refusal of the development application by the council on 14 October 2008.

79 The application before the Court is to upgrade the existing roundabout to provide for a dual circulating roundabout, including additional work on Australia Avenue to address the conflict between vehicles emerging from the southbound ramp from Homebush Bay Drive with vehicles wishing to turn left into Shirley Strickland Avenue from Australia Avenue. The upgraded roundabout is to be signalised and include the installation of a ramp monitoring. Variable Message Signs are to be installed on Homebush Bay Drive at various locations for both northbound and southbound traffic to advise motorists of any delays.

80 The roundabout provides an important access point to be Sydney Olympic Park precinct. The evidence suggests that at times significant queuing occurs at the intersection and the queuing is associated, in part, with patrons attempting to access the DFO site and when there are major sporting and cultural events at the Sydney Olympic Park precinct. Ms Grega and Mr Langan confirmed this in their evidence.

The issues 81 The issues between Mr Tucker and Mr Hallam relate to: o the existing levels of traffic that use the roundabout, o the likely levels of traffic that will use the roundabout in the future, and o the traffic generation rates for the proposed development.

The existing levels of traffic that use the roundabout 82 Mr Tucker and Mr Hallam disagreed on the existing levels of traffic at the roundabout although there was agreement that the capacity of the roundabout is exceeded at certain times. I did not understand there to be any disagreement between the experts that the critical times for the operation of the roundabout (in relation to the operation of the proposed development) are Thursday afternoons from 5.00 pm to 6.00 pm and Sunday from noon to 1.00 pm.

83 Mr Hallam states that the current traffic flows relied upon by Mr Tucker are too low based on more recent traffic counts and the existing DFO operation has intensified since the original traffic counts. Also, the existing traffic flows do not include any sensitivity analysis of the traffic influence of major events held regularly at Sydney Olympic Park.

84 Mr Tucker maintains that the existing traffic figures for the roundabout acceptable as traffic counts will be subject to variation on any particular day. For example, the RTA daily road statistics near the site indicate daily flow variations of + or -14% on a typical Thursday and + or -15% on a typical Sunday across a 12 month period. Mr Tucker notes that the peak hour traffic flows at the roundabout that are published in various traffic studies were undertaken by independent counting companies with most of the counts deliberately undertaken at times of special events, which would give a naturally higher reading. Using a "normal day" and using the RTA data points near this site, Mr to the states that his data represented nearly an average result within the year with Thursday representing 100% of the average week and Sunday representing 97% of the average result.

The future use the roundabout 85 This issue raised a significant difference in the approach taken by Mr Hallam and Mr Tucker. Put simply, Mr Hallam maintained that consideration needs to be given to the future traffic generated by events at the Sydney Olympic Park whereas Mr Tucker was of the view that the there was insufficient certainty in the likely traffic to be generated by Sydney Olympic Park to properly consider the long-term future use of the roundabout.

86 Mr Hallam notes that the Sydney Olympic Park Master Plan 2030 (August 2008) (the Master Plan) identifies the future development as providing an additional 1,425,236 sq m of floor area, 28,500 workers, 5,000 students, 14,000 residents and 15,000 daily visitors. The estimates of the weekday peak hour traffic generation are between 8875 vehicles/hour (based on 44% non-car usage) and 11,333 vehicles/hour (based on 25% non-car usage). Mr Hallam states that the traffic analysis carried out by the applicant makes no allowance for this additional traffic. In his opinion, some sensitivity testing should have been undertaken to test the spare capacity to handle the likely additional Sydney Olympic Park traffic.

87 Mr Tucker rejects this approach. He states that the Master Plan is still a draft document and the expected extent of development remains uncertain with a timeline for development up to 20 years in the future. For this reason there is no starting point to undertake the level of detailed analysis that would be needed to provide any meaningful input into the assessment of the present development proposal. A traffic generation of 10,000 vehicles/hour is not capable of substantiation and is therefore meaningless. Attempts by the applicant to address this issue with Sydney Olympic Park had not been successful.

The traffic generation rates for the proposed development Mr Hallam expresses the view that the mix of tenancy sizes does not suggest that all tenancies will be used for bulky goods retailing. In his opinion, many of the smaller units would, in practice trade as standard shops, without the benefit of large display/storage areas in which to display bulky goods. He notes only two of the tenancies are in excess of 1000 sq m. Mr Hallam provides a number of different scenarios based on his concerns that the site will not be used for bulky goods retailing but for a mix of shops and bulky goods retailing. For the Thursday peak he estimates 231vehicles/hour (vph) (using Mr Tuckers rate of 1.5 vehicles/100 sq m GLA) or 384 (using the RTA rate of 2.5 vehicles/100 sq m GLA). The corresponding figures for the Sunday peak are 386 and 1018, respectively. Mr Hallam expresses the view that there is no basis for the reduced rate adopted by Mr Tucker and that even on his assessment the roundabout option will not be satisfactory for the Thursday peak flows (390 vph) and Sunday peak flows (690 vph). 88 Mr Tucker states that the use of a traffic generation rate of 1.5 vehicles/100 sq m GLA (rather than the RTA rate of 2.5 vehicles/100 sq m GLA) is based on the joint use of the site with the DFO that operates from 10 am to 6 pm, seven days per week. The 6 pm (the road network peak) closure gives rise to a different arrival and departure than would be the case for late night shopping on a Thursday. To account for that different arrival and departure pattern it has been assumed that 80% of trips in the evening peak period would be outbound. To support this assumption a three-hour turning movements survey of the existing DFO was undertaken and the results revealed that between 5 pm and 6 pm, 70% of all movements were out of the site and between 5.30 and 6.30 (the peak traffic generation hour for the site), 81% of all movements were outbound. Also, given that bulky goods tend to be larger items involving more than one decision maker, there is likely to be longer durations of stay and a greater propensity to visit on a weekend rather than the weekday, implying that if anything, the arrival and departure percentage for bulky goods would be more skewed to 80%/20% when compared to the existing DFO centre.

Findings - the roundabout 89 In considering the differing opinions of Mr Tucker and Mr Hallam, I am satisfied that while it is clearly optimal to have the most up-to-date survey data on which to base any assessment, I am satisfied that the differences between Mr Tucker and Mr Hallam, while strongly argued at the hearing, are not so significant that it places Mr Tucker's ultimate conclusions under threat.

90 It would have been clearly beneficial to include the future growth of Sydney Olympic Park in any assessment of the roundabout given it's important function as a principal point of access to the area however the information simply is not available for this to occur. In the absence of this information, I accept that the only reasonable approach that can be adopted for this application is for the applicant to address the additional impact, created by the proposed development, on the capacity and efficiency of the roundabout. The RTA adopted a similar approach in their assessment.

91 In finding that the applicants proposed treatment of the roundabout is acceptable, I have given some considerable weight to the ongoing assessment of the impact on the roundabout by the proposed development by the RTA. I do not share the concerns of Mr Hallam that somehow the RTA had not been fully aware or understood the traffic modelling undertaken and supplied to the RTA for their consideration by Mr Tucker. Their comments on the roundabout over the period of time that the traffic implications of the application has been under review could not be seen as anything but measured and responsive to the assessment of the impact on the roundabout as the application evolved.

92 The RTA is the responsible government authority for the roundabout and importantly, has been involved in the consideration of the development application prior to the determination of the council on 14 October 2008. The RTA has a clear interest in ensuring that the roundabout improvements are sufficient, at a minimum, to address the additional traffic generated by the proposed development. The letter from the Sydney Regional Development Advisory Committee on 17 June 2008 to the council raised specific issues from the RTA. The RTA provided further comments on the development application on 14 January 2009 and ultimately provided general terms of approval for the proposed development in the exercise of their concurrence function under the Roads Act 1993 on 3 April 2009.

93 On 10 June 2009 (during the hearing) the RTA quantified the additional works required to address the conflict between vehicles emerging from the southbound ramp from Homebush Bay Drive with vehicles wishing to turn left into Shirley Strickland Avenue from Australia Avenue. The works required the slip lane from Homebush Bay Dr into Australia Avenue be extended by 100 m to allow a safer continuous merge of three lanes into two lanes, in Australia Avenue. The lengthening of the existing slip lane requires additional road construction and is additional to the upgrading of the roundabout. Subject to these works being carried out in accordance with the terms set by the RTA then I understood the RTA had no issue with the proposed development. The applicant did not oppose any of the matters sought by the RTA in their general terms of approval.

94 Due to the late arrival of the specific details required by the RTA for the extended slip lane, no design could be provided. There was disagreement between Mr Tucker and Mr Hallam on whether the additional road pavement could be constructed within the existing road reserve or require additional land adjoining the road reserve to be dedicated and used for road purposes. Mr Tucker prepared a schematic diagram to support his conclusion that the pavement could be constructed within the existing road reserve. Mr McEwen proposed that the design of the extended slip lane be subject to a deferred commencement condition. Mr Hale opposed this approach on the basis of lack of certainty.

95 In Weal v Bathurst City Council (2000) 111 LGERA 181 at [94] Giles JA confirmed that s 91AA (now s 80(3)) did not free the consent authority from the obligation to consider all relevant matters. He further stated that the deferred commencement provision enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. 96 Consistent with the approach in Weal, I accept that a deferred commencement condition is an appropriate mechanism to allow the engineering design to be prepared. In my view, Mr Tucker's schematic diagram provides prima facie support for his conclusion. The design includes an understanding of the appropriate standards required for the construction of the extended slip lane. While the design could change through the preparation of more detailed engineering plans, I accept there has been a sufficient process of evaluation by Mr Tucker to enable the additional roadworks to be considered as a deferred commencement condition. Importantly, and in the event that additional land is required for the extended slip lane, the land likely to be required is unencumbered by any improvements and generally forms part of the landscape perimeter to Homebush Drive. The ownership of this land was uncertain at the time of the hearing but the general consensus was that it was in the ownership of either the council or the RTA.

97 In my opinion, for the reasons explained above, the Court was in a position to properly understand the scope of the issue and the imposition of a deferred commencement condition would not leave the impact of the additional roadworks unresolved and left for future determination. Parking The existing situation 98 The existing approval of the DFO requires the provision of 804 car parking spaces. An area, adjoining the site and owned by Energy Australia, is currently used for overflow parking and provides for 686 spaces giving the total parking for the DFO had 1490 spaces. The applicant acknowledges that the approved 804 car parking spaces are insufficient for the existing DFO operation and that it would be responsible to provide parking that reflects the actual demand rather than that required by the development consent. The issues 99 This parking issues relate to: o the amount of parking that should be provided for the proposed development, and o how this parking can be provided.

The amount of parking 100 Mr Hallam and Mr Tucker disagreed on the amount of car parking that should be provided for the DFO. The surveys undertaken by Mr Tucker used patronage counts over four years to determine that 1512 car parking spaces are required for the DFO, based on the 85th percentile. Mr Hallam states that only the last 12 month period should be used as the data used by Mr Tucker shows an upward trend. In his assessment, and using the 85th percentile, a total of 1635 spaces should be provided for the DFO.

101 Mr Hallam and Mr Tucker also disagreed on the amount of car parking that should be provided for the proposed development. Mr Tucker considered the RTA rate for bulky goods development of 1.9 spaces per 1000 sq m of GLA and recent surveys that indicated a rate of 1.74 spaces per 1000 sq m of GLA. Adopting the more conservative figure of 1.9 spaces per 1000 sq m of GLA, 293 spaces should be provided.

102 Mr Hallam carried out a parking assessment based on a number of different scenarios ranging from the floor area being used for solely bulky goods (Scenario A), the floor area being used for a mix of bulky goods and shops (Scenarios B and C) to the floor area being used for shops at the council parking rate (Scenario E). I am satisfied that based on my previous findings requiring a development application to be submitted to the council and to allow an assessment of the proposed use to ensure that the use is bulky goods, then the scenarios used by Mr Hallam that included the use of floor area as shops are not relevant. Based on Mr Hallam's assessment, Scenario A requires 293 spaces at a rate of 1.9 spaces per 1000 sq m of GLA (the RTA rate).

103 Accepting that the proposed development will be used as bulky goods retailing and accepting that additional car parking for the DFO is required (notwithstanding that there is no strict obligation for the applicant to provide parking beyond 804 spaces), Mr Tucker calculates that 1805 spaces (1512 + 293) should be provided whereas Mr Hallam calculates that 1928 spaces (1635 + 293) should be provided. The location of the car parking 104 There was agreement that the provision of the additional car parking for the DFO and the additional car parking for the proposed development should be provided on the site and exclusive of the availability of land on the Energy Australia site. This land is only available through a year-to-year lease.

105 The applicant proposes that a deferred commencement condition be provided so that the development consent will not operate until such time as the applicant obtains a development consent for the additional parking. Mr McEwen submits that the applicant currently has a development consent for the provision of additional car parking spaces on the site (Exhibit M). The consent provides that part of the area approved for additional car parking spaces is included within the area the subject of this application. Additional parking can be provided through the construction of additional levels or extensions to existing car parks, depending on the amount of car parking required to be provided. 106 Findings - parking Even though the approval of the DFO required the provision of 804 car parking spaces, it is not in dispute that the traffic generated by this development far exceeds the number of spaces provided. As part of this application, the applicant seeks to provide additional parking above that required by the approval. While it can be argued that there is no obligation for the applicant to do so, it is clear that it is necessary. The use of the additional area provided on the Energy Australia site for overflow car parking cannot be relied upon and should not form part of any assessment of the available car parking. 107 The difference of opinion between Mr Tucker and Mr Hallam on the appropriate level of car parking was not that significant (1805 spaces or 1928 spaces) when compared to the overall number of spaces. In considering the competing evidence of Mr Tucker and Mr Hallam on the number of car parking spaces, I am more inclined to accept the number suggested by Mr Hallam as it represents the most recent number and is more likely to reflect the demand for parking rather than the average over 4 years, particularly when the survey data indicates a generally increasing number of vehicles visiting the site.

108 As I understand, and as explained by Mr McEwen, there is an existing approval on the site that provides for additional car parking. The approval does not reflect the required 1928 spaces however there is the ability to provide these spaces through the creation of additional decks that adjoin existing and proposed car parking for the development. Given the existing approval and the ability to provide these spaces, I am satisfied that the additional car parking can be adequately dealt with by way of a deferred commencement condition that requires the approval of the council for the additional car parking areas to achieve a minimum of 1928 spaces.

109 In my opinion, for the reasons explained above, the Court was in a position to properly understand the scope of the issue and the imposition of a deferred commencement condition would not leave the provision of the additional car parking unresolved and left for future determination. Directions 110 The findings in the judgement require the preparation of additional conditions and the amendment to the council's draft conditions of approval. The amendments include: o the deletion of the applicants conditions providing the requirements for land uses that are deemed as bulky goods uses and their replacement with a condition requiring development consent be granted for all bulky goods tenancies, o the preparation of a deferred commencement condition requiring the approval of the council for a development application providing for additional parking that provides for a minimum of 1928 spaces, and o the preparation of a deferred commencement condition to satisfy the RTA requirements for the extended slip lane In Homebush Drive. 111 These matters are best left to the parties to provide through discussion rather than being prepared by the Court. Specific directions regarding the filing of conditions that reflect the judgement will be made after discussion with the parties. Liberty will also be granted to the parties to approach the Court on 24 hours notice if there is any disagreement on the preparation of the amended conditions or some clarification is required.

112 Following the filing of the conditions, based on this judgement, Final Orders will be issued in chambers and will take the following form: 1. The appeal is upheld. 2. DA 2008/087 for the change of use and alterations and additions to part of an existing building at 1 - 5 Underwood Road, Homebush to allow for bulky goods retailing and associated car parking is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit L.

      G T Brown
      Commissioner of the Court

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