Jabbour v Blacktown City Council

Land and Environment Court (NSW)|2010-03-17

Background 1 This appeal is against council's refusal of a development application for the use of part of a 2- storey factory unit at 5/70 Holbeche Road, Arndell Park for the purpose of a pharmacy. The remainder of the unit is to used for the assembly of first aid kits. 2 The subject land is within the Arndell Park industrial area and the surrounding land to the east, west and south has been developed over the past 20 years as factory and warehouse developments of various sizes. The property is located within a recently completed industrial complex comprising 47 units that is situated at the south western corner of Holbeche Road and Walters Road. The unit has 5 car parking spaces. 3 To the north of the subject land is a neighbourhood shopping centre (Arndell Park) comprising an Aldi supermarket, other shops and a medical centre. The land to the northeast is mainly developed as detached residential dwellings.

4 The issues identified for the appeal are summarised as follows: Separation distance to other commercial premises Impact on the Arndell Park shopping centre Vehicle movements and parking. The site 5 The property is described as Lot 5 SP 79497.The unit has dimensions of 11.7m x 20.7 m, with a ground floor space of 243 sq m (including loading dock) and a first floor area of 77 sq m.

Planning controls 6 The primary control is the Blacktown LEP 1988 (BLEP) under which the land is zoned 4 (c) Special Industrial. The proposed warehousing and assembly of first aid kits is permissible with consent.

7 "Shops" are prohibited (other than bulky goods retail and those ancillary to and used in conjunction with a manufacturing purpose permissible in the zone or which serve the daily convenience needs of the workforce of the industrial area).

8 Other development controls are contained within the Blacktown DCP 2006 and the following are of particular relevance in this matter: Part A; Chapter 5 - Car parking. Part E; Chapter 2 - Shops and Offices in the Industrial Zones and Chapter 4.8 - Car Parking. The evidence 9 Detailed evidence was presented by: Mr G Apps; Council's Team Leader Regulatory Planning, Mr S Gordon; Consulting Planner for the applicant. Mr C McClaren; Traffic consultant for the council Mr R Varga; Traffic consultant for the applicant.

10 The main issue in this appeal concerns suitability of the site for the development due to its proximity to the neighbourhood shopping centre. The other issue of traffic and parking was assessed in joint conferencing by the traffic consultants. They agreed that the issue could be satisfactorily covered by conditions of consent.

11 The traffic assessment reviewed the likely traffic generation and impacts from the pharmacy and concluded that conditions requiring the installation of a convex safety mirror in a specified location and the installation of a rubber speed hump were reasonable to address the traffic issue.

12 With regard to the parking, the experts agreed that with the restriction of staff on the premises to 2, then the parking requirement could be satisfied by amending the strata plan to increase parking for Lot 5 from 5 to 6 spaces. These spaces then to comprise 2 internal staff spaces and 4 external spaces, 1 being made suitable for disabled use.

13 In the absence of any substantive challenge to the traffic expert's agreement, I accept appropriate conditions could be imposed on any consent.

14 The main concern about the suitability of the site location arises from the BLEP restrictions on shops in the industrial area. Also Part E of the DCP limits retailing to 3 categories that council must be satisfied with and includes: "individual small shops serving the daily convenience needs of people working in the industrial area (such as sandwich shops, chemists, newsagents, and the like) but not including uses of the scale of supermarkets or similar developments".

15 Additionally, the location of such shops is also subject to the provisions of the DCP, wherein Part E 2.1 the following specific controls have been adopted relative to small shops such as the proposed chemist shop: a It must be demonstrated that the use is clearly ancillary and subservient to the dominant use of specifically intended to satisfy the daily convenience needs of the workforce. b Developers will need to satisfy Council that the retailing activity would not detrimentally affect the viability of any business centre, including both established and proposed business centres identified in the Blacktown retail hierarchy. This means that Council will require evidence that the scale (floor space, turnover etc), location (in relation to business centres) and types of development (goods to be sold) in relation to the proposal will not adversely affect nearby business centres; and c In relation to individual shops in the industrial zones, the gross floor area should not exceed 75 sq m. Such shops shall not be located within 400m by straight line distance of other existing or approved individual small shops within the industrial zone or land zoned for 3(a) General Business purposes . 16 Consequently, the critical issue in this matter concerns the 400m separation requirement to the neighbourhood centre on the opposite side of Holbeche Road. This neighbourhood centre is zoned 3(a) General Business and the subject site is separated by approximately 155m.

17 Mr Apps opposes this application because he considers that it does not represent orderly development of the industrial land and adjoining land. He says that the nearby neighbourhood scale shopping centre has been developed to provide for both the industrial area as well as the surrounding residential area. Accordingly, he considers a more appropriate location for a pharmacy would be in the neighbourhood centre.

18 Insofar as the objectives of this separation control are not stated in the DCP, he considers they involve: The protection of the viability of commercial activities within the shopping centre and other shops in the industrial area, and To ensure that shop uses do not establish in proximity to commercial areas when such uses should be located within the shopping centre. 19 Mr Apps conceded that an appropriate chemist shop could be located within the industrial area but it should comply with the 400m separation distance to the neighbourhood centre.

20 Against this, Mr Gordon's opinion is that the objectives of the separation control are: 1. To achieve the objectives of the 4(c) Special Industrial zone and the objectives of the General Business zone; 2. To protect the viability of other convenience shops located on 4(a), 4(b) and 4(c) zoned land, and 3. To protect the viability of any business zone within the vicinity of the given industrial land on which the convenience shop is proposed. 21 Consequently he says that the 400m separation control is nominated to meet the various zone objectives and that non - compliance with the numerical control and satisfaction of the zone objectives are not mutually exclusive. Accordingly, he addressed the various objectives of the 4(c) and 3(a) zone to show that the proposal reasonably satisfies the various objectives.

22 In further support of this application, Mr Gordon referred to the 'federal pharmacy location rules' - National Health (Australian Community Pharmacy Authority Rules) Determination 2006, which restricts new pharmacies from operating within a 1.5km distance to an existing pharmacy.

23 Apparently the following 2 pharmacies are in proximity: "Myrtle Road Pharmacy"; which is 1501.5m from the front door of 5/70 Holbeche Road and 1633.8m from 47/70 Holbeche Road. "Walters Road Pharmacy"; which is 1519.2m from the front door of 5/70 and 1449.2m to 47/70 Holbeche Road. 24 This indicates that the proposed pharmacy at 5/70 satisfies the 1500m federal pharmacy separation rule. Whilst 47/70 is closer to the neighbourhood shopping centre, then a new pharmacy in the centre would not satisfy this criterion. Consequently, Mr Gordon says that as a pharmacy in the neighbourhood centre would not comply with this rule, the subject site is suitable.

Conclusions 25 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent.

26 I accept that the planning controls allow a small chemist/pharmacy shop like that proposed but the controls in the DCP also prescribe a separation distance of 400m to land zoned for 3(a) General Business. In this case, the separation distance is about 155m, which I consider is a significant numerical non - compliance.

27 Notwithstanding this, I have considered Mr Gordon's assessment of the various zone objectives whereby he concludes that the proposal satisfies them. Also, the applicant's reliance on the 'pharmacy location rules' which would apparently preclude a pharmacy in the shopping centre.

28 However, it seems to me that the predominant planning controls are the BLEP and DCP. The DCP provides the detailed controls to achieve the LEP objectives and is a focal point for assessment of development application. Whilst the actual derivation of the 400m separation distance was not presented, nevertheless the Court was informed that this is a recent DCP that has been through the normal public exhibition/consultation process. Furthermore, since the adoption of the DCP in 2006, council has consistently adhered to its provisions.

29 I think it reasonable then to rely on Mr App's approach that the site is situated in an area where comprehensive planning has been undertaken to achieve the orderly development of land. This planning includes land zoned for various industrial purposes, commercial purposes and other land for residential uses. It is apparent from the view that this strategic plan is being substantially implemented.

30 In my assessment, the DCP is consistent with the aims and objectives for the industrial area, which is to limit commercial activities so as to protect the utility and viability of the shops in the commercial area. This protection is achieved by the 400m separation criteria, which is a commonly accepted standard for pedestrian access to community facilities.

31 It seems to me that the applicant has not adequately addressed the 400m separation requirement and demonstrated any particular circumstances that would warrant exercising any discretion available under the DCP. Instead, the applicant has relied substantially on the 1500m' pharmacy separation rule', which I consider should be given secondary, if any weight, in comparison to the relevant DCP controls.

32 In this regard, submissions were made regarding the line of authority in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, where the McClellan CJ said: 87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are: · A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. · A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. · A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. · A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. · Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property… 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 33 Mr Seton also submitted that the following authority stated in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 should be followed: 35 I conclude on this aspect of the matter by indicating my respectful agreement with the views expressed by McClellan CJ, as he then was, in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 that "consistency of decision-making must be a fundamental objective of those who make administrative decisions" and that "that objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them" (at [88]). The ability of an individual decision maker to reject the general policy underlying a development control plan would be antithetical to the achievement of the fundamental objective to which McClellan CJ referred. 34 Furthermore reference was made to the matter of Goldin and Another v Minister for Transport [2002] NSWLEC 75, where Lloyd J decided that the matter of precedence was a planning consideration in certain circumstances.

35 Accordingly I accept that the authority in Stockland is applicable in the circumstances of this matter and therefore it is appropriate to give significant weight to the provisions of the 400m separation control in the DCP, which has been applied consistently by council. This conclusion is also consistent with the conclusions in Premier Custom Services. The authority in Goldin is also of some relevance because abandoning the DCP controls in this industrial area could restrict the orderly planning of the area.

36 Apart from this, I have considered the associated circumstances discussed by the planners. According to Mr Apps, the neighbourhood shopping centre contains 30 tenancies, of which 4 are vacant. I agree with Mr Apps that in terms of orderly planning considerations, the location of the pharmacy in the centre is more desirable and would be consistent with the BLEP. It could potentially provide greater connectivity and associated convenience with the medical centre and other shops.

37 If the proposed pharmacy is approved in the subject location, it would likely thwart any future development of a pharmacy in the centre in my assessment, taking into account the reluctance so far in this regard. The application of the 'pharmacy location rule' could also frustrate a future pharmacy in the centre. Such outcome would be for this pharmacy to become the centre for the industrial area and the nearby residential area. This would likely result in increased movements of pedestrians and traffic along and across the relatively busy Holbeche Road, which introduces additional safety and convenience considerations that are undesirable and not consistent with orderly planning considerations, in my opinion.

38 For these reasons, I am not satisfied that this application demonstrates adequate compliance with the DCP separation control in Part E par 2.1 and should therefore be refused. In reaching this conclusion, I note the significant size of the industrial area and the possibility of locating a small pharmacy for the daily convenience of the workforce elsewhere in the industrial area but outside the 400m separation distance to the neighbourhood shopping centre.

Court orders 39 The Court orders: 1. The appeal is dismissed. 2. Development consent for use of part of the premises at 5/70 Holbeche Road, Arndell Park for a pharmacy is refused. 3. The exhibits may be returned except for 1, 2 and B.

      R Hussey
      Commissioner of the Court
      ljr

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.

CITATION : Jabbour v Blacktown City Council [2010] NSWLEC 1087

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 CASES CITED: Goldin and Another v Minister for Transport [2002] NSWLEC 75 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

(2004) 136 LGERA 254

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Cases Cited (7)