Homemaker Hub v Strathfield Council - [2009] NSWLEC 1265 - NSWLEC 2009 case summary — Zoe

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Homemaker Hub v Strathfield Council

[2009] NSWLEC 1265

Land and Environment Court (NSW)|2009-06-12

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-06-12

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

The applicant's submissions 22 Mr Hale SC, for the council, submits that the use of the proposed tenancies fall within the definition of a shop under cl 4. Shops are prohibited within Zone No.4 unless they are shops the subject of the exception provisions in column 5 (see par 9) or subject to other provisions of the Ordinance (cl 61BD(3) and cl 61E(3)). The power to grant consent depends on whether the development meets the definitional requirements and the filter in cl 61E(4) and in the case of cl 61BD, the filter in 61GB(3) or alternatively cl 61E(4). Each of the proposed tenancies proposed in the application is only permissible when considered against the definitional and filtering requirements of the Ordinance. The permissibility of a particular use must be assessed on an individual basis. In this case, it is not known whether which or any of the tenancies that might ultimately carry on businesses will or will not satisfy the limitations in the Ordinance. It follows that it cannot be known whether such a tenancy meets the strictures of cl 61GB(3) and cl 61E(4)). Mr Hale further submits that the applicant's reliance on conditions to address these limitations cannot satisfy the requirements of the Ordinance. 23 Mr Hale relies on the comments in Warehouse Group (Australia) Pty Ltd v Woolworths Limited (2003) 137 LGERA 115, where the Court of Appeal in explaining Telope states (at 39): In my opinion, the reference and the reasoning in Telope to the existence of ranges of goods for sale, in which bulky items would be included along with small and portable items, is of paramount significance. In regard to such a range, the presence of small portable items would not prevent its characterisation as being one for the sale by retail of bulky goods, provided only that such bulky goods were not merely incidental to the range. In other words, it was necessary that the range could properly be characterised as one for the sale of bulky goods, in which the associated small and portable goods, however, numerous could properly be regarded as ancillary to the bulky goods.

[15]

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.

[28]

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.

[34]

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.

[35]

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.

[46]

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.