Inquiry Property Investments Pty Ltd v Great Lakes Council

Relevant planning controls 9At the time of the hearing, the site was zoned 1(c) (Future Urban Investigation Zone) under the provisions of the Great Lakes Local Environmental Plan 1996 (LEP 1996). The proposed development for convenience stores is permissible with development consent in the 1(c) zone, while shops other than convenience stores are prohibited. LEP 1996 defines a convenience store as: Convenience store means a shop selling a variety of small consumer goods. 10Clause 8 of LEP 1996 provides objectives of the 1 (c) zone which state: The objective of the zone is to restrict development to that which is unlikely to: (a) lead to the premature and sporadic subdivision of land which would render the economic provision of public utilities and community facilities unreasonably more difficult or expensive once urban development takes place, or (b) inhibit, in a significant manner, the potential for urban expansion in selected areas, particularly the urban fringe, or (c) generate significant additional traffic or create or increase ribbon development on any road, relative to the capacity and safety of the road, or (d) prejudice economic development, or (e) significantly detract from the scenic quality of the land within the zone, or (f) compromise existing significant environmental attributes of land within the zone, or (g) have a significant adverse impact on the quality of water resources within the area, or (h) be unreasonably subject to risks from natural hazards. 11Clause 8(3) states: (3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the aims of this plan and is satisfied that the development is consistent with at least one or more of the objectives of the zone within which the development is proposed to be undertaken. 12At the time of the hearing, the site was also subject to draft Great Lakes Local Environmental Plan 2014 (the draft LEP). The draft LEP has been advertised and as such is a matter for consideration under s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979. The Court was however advised during the hearing that the draft LEP was likely to be gazetted on 21 March 2014, after the hearing was completed on 18 March 2014 although at the time of the determination of the appeal on 1 April 1014, the draft LEP had not been gazetted. 13The draft LEP contains savings provisions in cl 1.8A that state: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 14Under the draft LEP, the site is zoned RU2 (Rural Landscape Zone). The zone objectives are: + To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. + To maintain the rural landscape character of the land. + To provide for a range of compatible land uses, including extensive agriculture. + To provide for rural tourism in association with the primary industry capability of the land which is based on the rural attributes of the land. + To secure a future for agriculture in the area by minimising the fragmentation of rural land and loss of potential agricultural productivity. 15The proposed development would be characterised as neighbourhood shops under the draft LEP. The draft LEP defines neighbourhood shop as: neighbourhood shop means premises used for the purposes of selling general merchandise such as foodstuffs, personal care products, newspapers and the like to provide for the day-to-day needs of people who live or work in the local area, and may include ancillary services such as a post office, bank or dry cleaning, but does not include restricted premises. Note. See clause 5.4 for controls relating to the retail floor area of neighbourhood shops. Neighbourhood shops are a type of shop-see the definition of that term in this Dictionary. 16Neighbourhood shops are permissible in the RU2 (Rural Landscape Zone) Zone, subject to the provisions of cll 5.4(7) and 7.16. Clause 5.4(7) states: (7) Neighbourhood shops If development for the purposes of a neighbourhood shop is permitted under this Plan, the retail floor area must not exceed 120 square metres. 17Clause 7.16 states: 7.16 Neighbourhood shops (1) The objective of this clause is to permit development for the purpose of neighbourhood shops if certain conditions are met. (2) Despite any other provision of this Plan, development consent may be granted to development for the purpose of one neighbourhood shop on any lot if the gross floor area used for that purpose will not exceed 120 square metres. 18Other planning documents referred to in the hearing included State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71), Forster Tuncurry Conservation and Development Strategy 2003 (the 2003 Strategy) and South Forster Structure Plan 2007 (the 2007 Structure Plan).

The weight to be given to the draft LEP 19The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 20The findings in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, are relevant where Lloyd J states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 21The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application and secondly, whether the proposal undermines the expressed future planning objectives for the area in the draft LEP. An aspect of the second question is the disagreement between the parties is whether the proposed development is prohibited under the draft LEP. 22First, on the question immanency and certainty, I accept that the draft LEP must be imminent and certain given history of the provisions relating to neighbourhood shops (Exhibit M) and the advise from the Department of Planning and Infrastructure (Exhibit 13) on the likely gazettal of the draft LEP. Consequently the draft LEP should be given significant weight although this is not the end of the inquiry (Blackmore, para 30). 23On the second question, it is necessary to determine whether the proposed development is prohibited under the draft LEP as this is an important consideration in determining whether the proposed development undermines the relevant aims and objectives of the draft LEP, in a substantial way (Blackmore, para 30). Submissions - is the proposed development permissible? 24Mr Eastman, for the council, submits that the proposed development is prohibited under the draft LEP. Clause.7.16 is a provision of limitation that applies to all development of neighbourhood shops, given the words "despite any other provision of this Plan" in the clause. Clause.7.16 does not operate independently of the RU2 land use table or cl.5.4(7). The justification for cl 7.16 is explained by Mr Busby, the councils Manager Strategic Land Use Planning in his report (Exhibit 4) by stating that it was intended to prevent larger scale retail centres in inappropriately zoned areas, such as the RU2 zone. 25Mr Eastman further submits that similar words, as used in cl 7.16, has been considered by the Court of Appeal to be a prohibition. The words in cl 7.16, by virtue of subclause (a), are the same as that which Tobias JA addressed in Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380. These words are: Notwithstanding any other provision of this plan, a person may, with the consent of the council, carry out development on land to which this clause applies for the purposes of a fruit and vegetable store with a maximum floor area of 150 sq. m. 26Agostino has direct application and the Court must necessarily follow Agostino which states in summary (in the headnote) that "[w]hat one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which cl 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus, it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance." 27If it is suggested by the council that cl 7.16 may be a development standard, Mr Eastman submits that the applicant provides no evidence to show why an appropriate degree of flexibility should be given in applying certain development standards to particular development, pursuant to cl 4.6 of LEP 2014. The Court cannot proceed to accept the applicant's contention that cl 7.16 can be varied if that contention is unsupported by evidence. 28Ms Pearman comes to a different conclusion. She submits that the definition of "neighbourhood shops" in the draft LEP is akin to the definition of a "convenience store" in LEP 1996; being a shop selling a variety of small consumer goods. The control at 5.4(7) provides in respect of "Neighbourhood shops" states: If development for the purposes of a neighbourhood shop is permitted under this Plan, the retail floor area must not exceed 120 square metres 29While the council contends this clause operates to permit only one neighbourhood shop of 120sqm on the site, Ms Pearman submits that unless neighbour shop is a collective term meaning a building containing several separate shops it can only be interpreted as meaning that any single neighbourhood shop is limited to a floor area of 120 sq m. Ms Pearman submits neighbourhood shop is not a collective term. Each of the subject "convenience stores" is less than the maximum prescribed approximately 60 sq m and therefore each satisfies the definition of "neighbourhood shop" in LEP 2014. The clause does not proscribe that the combined area of all neighbourhood shops proposed on any one lot should be no more than 120 sq m. If it did mean this, there would be no work for the further clause in respect of the 120sq m. 30Further, cl 7.16 of LEP 2014 would not prohibit the proposed development. Irrespective of what Mr Busby considers to be the intent of the clause and irrespective of any correspondence with parliamentary counsel (Exhibit M), cl 7.16(2) is an enabling clause (by the use of the word "may") allowing a neighbourhood shop of up to 120sq m in locations where they are not otherwise allowed. The clause does not act to override the other provisions to impose this standard on neighbourhood shops that are otherwise permitted. 31If the Court does not accept this submission and cl 7.16 is found to mean that it proscribes more than one neighbourhood shop per lot, then it is void as being contrary to the draft State Environmental Planning Policy (Competition) 2010 (the draft Competition SEPP) in that it is an anti-competitive restriction in a local planning instrument on the number of neighbourhood shops in an area, being one neighbourhood shop per lot. Clause10 of the draft Competition SEPP provides that where this occurs, the provision shall be of no effect. As to the weight of the draft Competition SEPP, Ms Pearman submits it was prepared and placed on public exhibition in 2010. Its operation as a draft instrument is relevant for consideration under s 79C(1)(a)(ii) as it has not been deferred by notice from the Director-General. Findings - is the proposed development permissible? 32The fundamental difference between the parties is whether cl 7.16 overrides the provisions in cl 5.4(7) to impose the standard in cl 7.16 on neighbourhood shops that are otherwise permitted. Mr Eastman says yes whereas Ms Pearman says no. 33With an understanding of the majority decision in Agostino, I agree with the conclusions of Mr Eastman in that cl 7.16 is a provision of limitation that applies to all development of neighbourhood shops, given the words "despite any other provision of this Plan" in the clause. Clause 7.16 does not operate independently of the RU2 land use table or cl 5.4(7). As the proposal seeks to construct six convenience stores, each with an area of around 60 sq m on one lot; this form of development is in conflict with the criterion in cl 7.16 where it requires that only one neighbourhood shop with an area not exceeding 120 sq m on any lot is allowable. If this criterion cannot be satisfied, development consent must be refused. It follows that the proposed development is prohibited under the RU2 zone in the draft LEP. In coming to this conclusion, it does not mean that the application must be refused for this reason because it relates to the draft LEP provisions. 34I have given no weight to the draft Competition SEPP. While it is a relevant consideration, it was advertised some 4 years ago and as there was no evidence on its imminence and certainty, there must be considerable doubt over relying on any of its provisions. Does the proposal undermines the expressed future planning objectives for the area? - findings 35While in most cases, it can be said that the zone objectives and permissible uses reflect the future planning objectives for a site however, in this case, this approach reflects only part of the necessary consideration. The site (together with other lots in the same ownership) and surrounding lots have been identified as an area for future urban development in the 2003 Strategy and the 2007 Structure Plan. 36The site is located within the South Forster precinct in the 2003 Strategy where constraints and opportunities are identified. The site and surrounding land are described as "potentially suitable for sensitive development (not conventional urban development)", subject to certain criteria including: 1. Preparation of an environmental assessment to determine a suitable development footprint and the most appropriate form of development; 37The 2007 Structure Plan identifies the site and surrounding land as being located within Precinct 5 - Pipers Bay South. General land uses are identified with the general area containing the proposed development as Low Density Residential together with Major Local Roads and Local Roads. Other land uses in the vicinity of the site are Medium Density Residential and Open Space/Recreation. Other land uses within Precinct 5 are Possible Tourist Uses and Conservation /Environmental Protection/Vegetation Buffer. Part 8.5 specifically addresses Precinct 5. Part 8.5.3 describes the Desired Future Character as: This area requires more detailed local assessment to determine just how much development is sustainable. The future character should be that of very environmentally sensitive housing in woodland. Development could be densely clustered in some parts of the precinct in order to conserve other areas. Retention of existing vegetation and planting of new appropriate native species should assist to maintain and enhance environmental values. 38As explained by Mr Busby, the RU2 zone is effectively a holding zone, prior to the necessary environmental studies being carried out that will ultimately determine the appropriate land use pattern for the site and surrounding area. In my view, the strategic value of the site is a more important consideration than the largely artificial assessment against the RU2 zone objectives as this does not reflect the proper long term planning objectives for the site and the area. 39It is accepted that it Court is not limited to the planning document identified in s 79C(1) as the sole means of determining whether a development is in the public interest. This is set out in Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195, where it states: 81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235). 40There is an indisputable argument that the public interest is best served by the coordinated and the orderly development of land, particularly the scarce land that is capable of future urban development. I do not accept that this will be achieved by the proposed development. The location of neighbourhood shops, as proposed, is clearly premature given the lack of detailed planning for Precinct 5 and the need to locate neighbourhood shops in a place that maximises the accessibility for future residents. I agree with the submission of Mr Eastman the proposal essentially pre-empts or seeks to guide the proper planning process. 41While Ms Pearman sought to highlight the advantages of the proposed development application through its co-location with the tavern, the proximity to likely future residential development and the availability of passing trade, I do not accept that these matters provide any real support for the proposal for the following reasons. 42First, the reasoning behind the tavern approval was never made clear to the Court. While Mr Busby explained that the approval was a stand alone approval that was permissible under LEP 1996: the use of the site for a tavern is prohibited under the draft LEP and was clearly inconsistent with the types of development anticipated by the 2007 Structure Plan. In any event, it is a legitimate approval and simply becomes a further constraint on the development of Precinct 5, beyond those already identified in that document and the 2003 Strategy. It is not necessary to expand on the potential amenity impacts on residential development located in the vicinity of licensed premises. 43In my view, there are no meaningful benefits in the co-location of the tavern with neighbourhood shops. While there may be instances where the patrons of the tavern may utilise the neighbourhood shops are vice versa, however the uses are largely incompatible. The purpose of neighbourhood shops is to provide day-to-day goods and services for families in the immediate area of the shops. A tavern is clearly inconsistent with this purpose, particularly when dealing with a greenfield location. 44Second, the proximity to likely future residential development is unknown. While much was made of the 1000 sq m of shops and commercial facilities approved in the Seven Mile Beach development, opposite the site on The Lakes Way, it must be remembered that this development contained 317 dwellings and apartments. I accept the evidence of Mr Busby that given the size of this development 1000 sq m of floor space was not unreasonable. The evidence also suggests that while the Seven Mile Beach development approval has been physically commenced, new owners of the site are considering an amended design. 45Third, the availability of passing trade is not necessarily a reason to support the proposal as the principal purpose of neighbourhood shops is to provide day-to-day goods and services for families in the immediate area of the shops. While neighbourhood shops can be located to serve passing trade (such as Forster Keys) it is not a factor that supports the proposed development. 46For the reasons in the preceding paragraphs, and the proposed development is a prohibited use in the RU2 zone under the draft LEP. I am satisfied that the proposed development is so inconsistent with and undermines the future planning objectives for the site in the draft LEP to such an extent that the application should be refused, for this reason alone. 47For completeness, I will briefly deal with the other disputed contentions.

Will the proposal have an unacceptable economic impact on existing and planned centres? 48Mr Anthony Dimasi provided evidence for the council and Mr Gavin Duane provided evidence for the applicant. Their evidence focuses largely on the existing neighbourhood centre (Forster Keys) located on The Lakes Way some 2 km to the north and the planned but not constructed centre on Cape Hawke Road, also some 2 km to the north and 0.5 km to the east of Forster Keys. Stockland Forster, some 5 km north of the site, Pacific Palms Shops and Blueys Beach Shops, some 14 km to the south were also addressed in the expert evidence. 49Mr Dimasi and Mr Duane agree that there is no or minimal demand for the proposal at present given that there is no resident population within the general locality of the site. Both also agree that if the six convenience stores are constructed that it would be unlikely that all would be leased and that the projected sales for convenience stores (around $5000 to $5500 per sq m) would not be achieved. 50The future demand for the development was in dispute although I accept that any reliance by Mr Duane on supposed developments nearby (360 unit development, 128 site caravan park and the 317 dwellings at the Seven Mile Beach development) is misplaced as no approvals exist for the first two developments and the latter is being reconsidered by the new owners of this site. At present, the site is isolated from any area of population that would use the facilities offered by the neighbourhood shops. The nearest residents to the north are adequately serviced by Forster Keys and the planned centre on Cape Hawke Road. Stockland Forster, that provides for a greater range of goods than that anticipated for convenience stores, is located only a short distance further to the north. To the south, the settle pattern is sparser however Pacific Palms Shops and Blueys Beach Shops can service residents for day-to-day goods and services, at present and in the near future. 51Given that there is no demand for the proposed neighbourhood shops and it is not known whether the location is optimally positioned for the long term development of the area (to the point where the application should be refused), the likely impact on existing on existing and planned centres is a hypothetical question that does not need to be answered in economic terms because the unsuitable strategic location of the neighbourhood shops.

Will the proposal unacceptably impact on the scenic qualities of the site? 52Mr Brett Newbold provided evidence for the council and Mr Gavin Maberley-Smith provided evidence for the applicant based on SEPP 71. 53Clause 7(b) states: 7 Application of clause 8 matters The matters for consideration set out in clause 8: (a) . (b) are to be taken into account by a consent authority when it determines a development application to carry out development on land to which this Policy applies. 54Clause 8 relevantly states: 8 Matters for consideration The matters for consideration are the following: . (d) the suitability of development given its type, location and design and its relationship with the surrounding area, . (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, 55Their evidence focused on the visual impact of the development when driving along The Lakes Way. There was a level of agreement between Mr Newbold and Mr Maberley-Smith with Mr Newbold suggesting that additional landscaping could be provided to screen the development to overcome his concerns. Mr Maberley-Smith's position was that the additional landscaping was unnecessary but he would accept a condition requiring the additional landscaping, if considered appropriate by the Court. 56With the consent of the parties, an independent inspection of the property was undertaken from both directions along The Lakes Way. With the benefit of this inspection (and if there were no other issues that warranted the refusal of the application) I accept that no additional landscaping is required to satisfy cl 7 and 8 of SEPP 71. The site of the proposed development is largely screened from view by existing vegetation in the road reserve when travelling in a southerly direction but is more visible when travelling in a northerly direction. The fact that the site can be seen through the existing vegetation in the road reserve is not sufficient to warrant additional landscaping particularly when there is no obligation to totally hide any development from The Lakes Way. Also the site will ultimately be used for urban development of some type and the neighbourhood shops provide a relatively small built form compared to the built form of the approved tavern and caretakers residence.

Is the proposal in keeping with the principles of ecologically sustainable development? 57While this was not a matter that the council pressed with much force, it was a matter that nonetheless was identified in the contentions. The basis for the contention was that any person would need to use a motor vehicle to gain access to the neighbourhood shops as there is no resident population that could reasonably walk to the shops. This would necessitate the unnecessary use of fossil fuels. which would not be in keeping with the principles of ecologically sustainable development. 58The principles of ecologically sustainable development are addressed in some detail in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 where Preston CJ relevantly states (at 108): Ecologically sustainable development, in its most basic formulation, is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs": World Commission on Environment and Development, Our Common Future, 1987 at p. 44 (also known as the Brundtland Report after the Chairperson of the Commission, Gro Harlem Brundtland). More particularly, ecologically sustainable development involves a cluster of elements or principles 59The cluster of elements or principles identified in Telstra are the principle of sustainable use, the principle of integration, the precautionary principle, principles of equity, the principle that conservation of biological diversity and ecologically integrity should be a fundamental consideration and the principle of the internalisation of environmental costs. I am not convinced that the proposed development could be seen to be in conflict with any of elements or principles identified in Telstra, to such a degree, that it would warrant the refusal of the application or conflict with the principles of ecologically sustainable. 60In my view, the absence of a population to serve the neighbourhood shops (and the consequent need to use a motor vehicle for access) is more of a failing of the poor strategic location of the neighbourhood shops than an issue with ecologically sustainable development.

Orders The orders of the Court are;

1. The appeal is dismissed.
2. Development Application No. DA417/2012 for the erection of a building containing six convenience stores on the land known as Lot 2 DP 249361, The Lakes Way, Forster is refused.
3. The exhibits are returned with the exception of exhibits 3 and G.

G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2014