Mairds Pty Ltd v Campbelltown City Council

Land and Environment Court (NSW)|2021-07-16

Background and the proposal

Airds is located within an established urban area developed largely for public housing. The surrounding locality is undergoing transition as part of a Concept Plan approved on 24 August 2012 under the former Part 3A of the EPA Act (Ex 2, tab 17). The approved Concept Plan for the Airds-Bradbury Renewal Project includes a masterplan for the long term rejuvenation of the estate, including increasing the social mix within the estate by increasing private dwelling ownership to achieve 70% private and 30% public housing and increasing dwellings from 1542 to approximately 2104. The concept plan includes formalising and reinvigorating the Airds town centre, and new or upgraded urban infrastructure such as pathways, lights, open space, community facilities, drainage and a series of new interconnecting public roads.
The proposal is to demolish the existing shopping centre complex on the site and the pedestrian underpass beneath Riverside Drive and construct a two storey shopping centre.
The proposed shopping centre consists of the following on the lower level (Ground Level):

vehicular entry and exit to the site, shared by loading vehicles and customers' cars, from a future round-about on the future Campbellfield Avenue at the south-western corner of the proposed development;
loading dock and parking spaces for 200 cars;
4 speciality shops ranging in area from 152.1m2 to 342.1m2, grouped around a forecourt with openings over;
manager's office, toilets and plant; and
escalators and lifts for access to the upper level.

Planning framework

The 0.43ha of Cumberland Plain Woodland on the site is listed as a critically CEEC under the Biodiversity Conservation Act 2016 (Pt 1 of Sch 2).
LEP 2015 contains a note stating it commences 3 months after being published on the NSW Legislation Website. According to the NSW Legislation website, LEP 2015 was published on 11 December, 2015, which makes the commencement date 11 March 2016.
The site is zoned B1 Neighbourhood Centre under LEP 2015 (Land Zoning Map LZN_009 of LEP 2015). The objectives of the B1 zone, to which regard must be had, are: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To support public transport patronage and encourage walking and cycling. • To achieve an accessible, attractive and safe public domain. • To allow small-scale residential development in conjunction with retail, business and commercial uses in a manner that increases the vitality of the surrounding neighbourhood. • To provide healthy, attractive, vibrant and safe neighbourhood centres.
Neighbourhood shops and neighbourhood supermarkets are both nominate permissible uses in the B1 zone. The definitions of these uses in the dictionary of LEP 2015 are: 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 neighbourhood supermarkets or 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. neighbourhood supermarket means premises the principal purpose of which is the sale of groceries and foodstuffs to provide for the needs of people who live or work in the local area. Note - See clause 5.4 for controls relating to the gross floor area of neighbourhood supermarkets. Neighbourhood supermarkets are a type of shop - see the definition of that term in this Dictionary.
Any development not specified in items 2 or 3 is prohibited development, under item 4 of the Land Use Table for the B1 zone.
The height of buildings development standard for the site is 9m (cl 4.3 and Height of Buildings Map HOB_009 of LEP 2015). The objectives of the height of buildings development standard are as follows: (a) to nominate a range of building heights that will provide a transition in built form and land use intensity across all zones, (b) to ensure that the heights of buildings reflect the intended scale of development appropriate to the locality and the proximity to business centres and transport facilities, (c) to provide for built form that is compatible with the hierarchy and role of centres, (d) to assist in the minimisation of opportunities for undesirable visual impact, disruption to views, loss of privacy and loss of solar access to existing and future development and to the public domain.
There is no floor space ratio development standard for the site (Floor Space Ratio Map FSR_009 of LEP 2015).
Clause 4.6 Exemptions to Development Standards of LEP 2015 is in the Standard Instrument Local Environmental Plan terms. Clause 4.6 does not allow development consent to be granted for development that would contravene cl 5.4, at cl 4.6(8)(c) of LEP 2015.
Clause 5.4 Controls relating to miscellaneous permissible uses, at sub-cll (7) and (7AA), is in the following terms: (7) Neighbourhood shops If development for the purposes of a neighbourhood shop is permitted under this Plan, the retail floor area must not exceed 100 square metres. (7AA) Neighbourhood supermarkets If development for the purposes of a neighbourhood supermarket is permitted under this Plan, the gross floor area must not exceed 1,000 square metres.
DCP 2015 applies to the site at section 1.1.3.

Expert evidence

The applicant relied on the expert evidence of Scott Barwick (planning), Joseph Khoury (architect and urban design), Russell Olsson (urban design), Ross Shepherd (landscape), Dr David Robertson (ecology), Brian Haratsis (economic and social planning), Jason He (stormwater), Ross Nettle (traffic), Graham Swain (bushfire), Alex Washer (acoustic), Michael Moutrie (access) and Glenn Bird (arboriculture).
The Council relied on the expert evidence of David Timmins (planning), Gabrielle Morrish (urban design), Nathan Lynch (landscape), Christopher Williamson (economic and social planning), Iraj Shrestha (traffic and stormwater), Rod Rose (bushfire), Steven Cooper (acoustic), J Moulang (access) and Guy Paroissien (arboriculture).
The experts prepared joints reports, as follows: planning (Ex 11), urban design (Ex 12), landscape (Ex 14), economic and social planning (Ex 15), stormwater (Exs 7 and 8), traffic (Exs 9 and 10), bushfire (Ex 16), acoustic (Ex 13), access (Ex 17) and arboriculture (Ex 5).
The planning, urban design, landscape, stormwater, traffic, bushfire, access and arboricultural experts gave oral evidence.

The 1978 consent

Interim Development Approval No. B 2564 was granted under Pt 12A of the Local Government Act 1919 by the Council of the City of Campbelltown for "Erection of Stage 1 of Business and Commercial Complex" subject to conditions, on 22 March 1978 (Ex E, tab 2) and was described in the Council's documentation as follows (Ex E, f 65): "This stage of the development comprises a supermarket of 963m2 floor area and twenty (20) specialty shops including a post office, T.A.B. and banks, comprising a total floor area of 1,447m2 together with medical and professional offices comprising 102m2 floor area. The applicant proposes to incorporate provision for on site car parking for one hundred and eighty-six (186) cars, adjacent to the retail complex."
The reference to "Business and Commercial Complex" was to the proposed business centre including the site and to the south of the site, which included a proposed hotel, kindergarten, service station and recreation area (Ex D, f 14).
The development application form for the 1978 consent described the proposed development as follows (Ex E, f 87): "It is proposed to develop the site with a single storey neighbourhood shopping centre, all on one level, comprising four building structures around a central court, providing a supermarket, twenty shops and three offices. There are 186 car spaces provided."
The development application for the 1978 consent was accompanied by architectural plans prepared by Minnett, Cullis-Hill Petersen & Powell Architects dated September 1977 (Ex E, ff 120-127). The architectural plans are not dimensioned, but do indicate the floor area of the supermarket as being 963m2 (Ex E, ff 106, 125 and 126), as follows: Figure 1 Ex E, f 106
The spatial layout of the shopping centre appears to be inspired by the "Radburn principle" or model, as the housing in Airds developed at that time was, with houses facing onto shared green space with pedestrian access at the front of each house from the shared green space. The adoption of the Radburn principles at Airds and other public housing estates in the 1970s was later acknowledged as a failure (Ex E, f 8). The shopping centre layout consisted of four buildings around a landscaped, external, pedestrian mall which ran east to west. The supermarket was located in the building on the northern side of the mall, and the footprint of the supermarket extended further towards the northern boundary, so that the loading area for the supermarket was to the west of the supermarket, behind and to the north of the adjoining shops. The vehicular access to the carpark and the loading area was from Riverside Drive, adjacent to the northern boundary. Pedestrian access to the central mall was from the pedestrian underpass beneath Riverside Drive at the eastern end and from the carpark at the western end. The spatial layout focused the shops inwards onto the landscaped pedestrian mall, with blank walls externally.
The 1978 consent included a condition requiring a separate application to be submitted for the occupation of the shops and offices (Ex E, f 63). According to the "Existing Use Rights Report" (Ex E, ff 25 and 27), "Among the papers for D24/90 was a list of multiple applications for use of the various shops within the centre in the 1980s".

The 1980 consent to extend shop 19

Development Consent No. D73/80 was granted under the EPA Act by Campbelltown City Council for "Extension to existing shop 19" subject to conditions, on 14 November 1980 (Ex E, tab 3). The application included architectural plans.

The Airds shopping centre was damaged by fire in 1987

On 15 September 1987, there was a fire at the shopping centre (Ex E, f 35). The supermarket and adjoining shops were reconstructed during the six months following the fire and reopened on 23 March 1988 (Ex E, f 37).

The 1990 consent for a new shop 20

Development Consent No. D24/90 was granted by Campbelltown City Council for an "extension to the existing shopping centre to provide commercial floor space" subject to conditions, on 19 February 1990 (Ex E, tab 4). The consent included the condition, "A separate Development Application shall be submitted for the use of the shop" (Ex E, f 156). The addition, shown on the architectural plan (Ex E, f 159), was for a new Shop 20, located as a western extension of the northern building that included the supermarket.

The 1996 consent to extend shops 5 & 6

Development Consent No. 996/96 was granted by Campbelltown City Council for "Shop 5 & 6 extensions" subject to conditions, on 24 July 1996 (Ex E, tab 5). The addition was located at the western end of the southern building on the site (Ex E, f 193). The floor area was noted as 255m2 (Ex E, f 167). According to the "Existing Use Rights Report" (Ex E, f 27), the applicant "notified the council he wished to amend the use of the shop from video store to video and liquor store. The application was approved by council in July the same year." The architectural plan labelled the new shop, "Liquor Store" (Ex E, f 29).

The 1999 consent for a roof over the mall

Development Consent No. F743/99 was granted by Campbelltown City Council for the erection of a roof over the shopping centre, subject to conditions, on 29 July 1999 (Ex E, tab 6). The roof was to enclose the central courtyard to make it an internal space.

The 1999 consent for the refurbishment of the supermarket

Development Consent No. F1783/99 was granted by Campbelltown City Council for the refurbishment of the existing supermarket, subject to conditions, on 21 October 1999 (Ex E, tab 7). Part of the floor area of the supermarket included a liquor store, accessed from the mall, with a roller shutter opening to the supermarket (Ex E, ff 318-319). A final occupation certificate was issued by the Council on 15 December 1999. The Council confirmed, in a letter dated 13 December 1999, in response to a request on behalf of the applicant, the following (Ex E, f 323): "You are advised that the uses indicated on stamped Drawing No. WD01 form part of the consent and are approved. This includes the use of the designated part of the premises as a liquor store."
Construction Certificate U1786/1999 dated 21 October 1999 (for Development Consent No. F1783/99), described the development as follows (Ex E, f 326): "Refurbishment of Existing Supermarket (Shop 1) and including new Liquor store (shop 2) [italics added to denote handwritten text, dated 13.12.99]"
The "Land Use Application" for Development Consent F1783/99 included "Contract Value $20,000" and description of proposal "Refurbishing existing Supermarket" (Ex E, f 344). The low value noted suggests an internal fitout only.
The architectural drawing, "Proposed Retail Layout", noted as the "Final Plan Sign Off" of Development Consent F1783/99, WD01, shows the layout of the supermarket and the liquor store (Ex E, f 346). The architectural drawing is stamped by the Council and dated 21.10.99. The architectural plan for the liquor store indicates that the area of the liquor store, including the cool room and the internal walls, was 92.16m2 (Ex E, f 3019). The title block includes a table titled "Store Area", where the trading area for Supermarket (Exc Liquor) is not noted and the total Ground Floor area is 1,312m2, as shown: Figure 2 Ex E, f 346
According to Mr Barwick's affidavit (Ex C), Development Consent No. F1783/1999, "the "Supermarket" was expanded to an area of 1,332.45m2." (Ex C, tab 1, p 5). There is no explanation included in the Affidavit as to the basis of Mr Barwick's conclusion that the floor area of the supermarket was expanded. The report contained in the Council's file regarding this consent noted, "Floor area: No change" (Ex E, f 304), as follows: Figure 3 Ex E, f 304
There is no documentary evidence included on the file of the 1999 development consent that the supermarket floor area was extended (Ex E, tab 7). The 1996 survey used as the basis for the location diagram (Development Consent No. 996/96, Ex E, f 228) shows the outline of the supermarket with the same proportions as the retail layout drawing in 1999 (Ex E, f 346). The total area of 1,312m2 shown above in Figure 2 is not the floor area of the supermarket, because it includes the separate liquor store and service areas.
The 1996 survey (Ex E, f 228) is likely to be reliable because it is a survey of the existing development at that time. The 1996 survey is not precisely consistent with the site plan (Ex E, f 99) included in the Council's file for the original 1978 consent, suggesting that the realised development in 1978 was not exactly the same envelope as that shown in the architectural drawings submitted as part of the development application. The supermarket is proportionally wider east to west in the 1996 survey when compared to the 1977 site plan. I merely note this for completeness as nothing turns on the difference and there are no dimensions on either the survey or the plan. The development for which consent was granted under the 1978 consent included a supermarket of 963m2 (Ex E, f 65). The 1996 survey suggests the supermarket may have been slightly larger in area as constructed.
The supermarket floor area was reduced by the introduction of the liquor store, which was noted as a separate shop (Ex E, f 326), when compared to the 1978 consent, which did not include a liquor store (Ex E, f 106).

The 2006 consent for a telecommunication facility

Development Consent No. 4126/2005/DA-O was granted by Campbelltown City Council for the "Construction of a telecommunication facility-monopole and ancillary" subject to conditions, on 9 May 2006 (Ex E, tab 8).

The 2006 consent for an additional shop

Development Consent No. 1726/2006/DA-C was granted by Campbelltown City Council for "Construction of addition to a shopping centre" subject to conditions, on 12 September 2006 (Ex E, tab 9). The development was described in the planning assessment report, as follows (Ex E, f 360): "Rear (western elevation) addition to enclose a space approx. 270m2. Enclosing the space will create additional retail floor area. External finishes are proposed to match existing materials. The applicant advises that the proposal is a response to security issues (people use the space to drink alcohol, vandalise etc)."
The Statement of Environmental Effects for DA No. 1726/2006/DA-C described the proposal as, "An addition vacant shop to the rear of an existing shop complex (Airds Shopping Centres)" (Ex E, f 369).

The applicant's submissions

The applicant submitted that the existing use is derived from the development consents. The documents in evidence are the documents that formed the development applications and they define the approvals that were granted and are in force.
The applicant relies on existing use rights. The applicant submitted that the law regarding existing use rights is well settled and provided a bundle of authorities. According to the applicant's submission, the proper characterisation of the use for which development consent was granted prior to 11 March 2016 (being the date LEP 2015 commenced) was:

"Supermarket shop greater than 1,000m2 being approximately 1,350m2;
20 general and variety shops of approximately 1,400m2;
on site car parking for such shops for approximately 200 cars."

The applicant submitted that characterising the use as "shopping centre" may be too wide (Metro Transport Sydney Pty Ltd v Council of the City of Sydney (2009) 210 LGERA 64; [2009] NSWLEC 37 at [20]) and similarly if the characterisation is "telecommunication facility-monopole" as is stated expressly in the Notice of Determination (Ex E, p 349) that would be too narrow for the circumstance of the present case. True it is that in some existing use cases, but not this one, it may be appropriate to use the ordinary language of a "restricted premises shop" to differentiate from a "shop selling general merchandise", but that level of specificity is not appropriate here, as a matter of law.
It is a different and distinct question, and one that does not arise on the present facts, whether an applicant who seeks to enlarge an existing use must choose between, on the one hand, electing to rely solely and exclusively on existing use rights or, on the other hand, must elect to rely only on current permissibility under a current LEP. Where, as here, two sources of permissibility arise as to some components of the proposed development, there is no requirement at law that an applicant cannot rely on existing use rights as well as currently existing permissibility. The approach to the s 4.15 assessment is, on the facts of this case, no different (Saffioti v Kiama Municipal Council [2019] NSWLEC 57 per Preston CJ, particularly at [64]).
In response to my specific request to address the Council's contention that cll 5.4(7) and (7AA), with cl 4.6(8)(c) of LEP 2015, do not have the effect of prohibiting the use for the purposes of s 4.65 of the EPA Act (Ex 20, contention 1(e)), the applicant submitted that the prohibition of the existing use arises because cl 4.6(8)(c) of LEP 2015 "switches off" the availability of cl 4.6 for shops over 100m2. If cl 4.6(8)(c) of LEP 2015 did not have the effect of "switching off" the availability of cl 4.6, then the prohibition that arises for shops would be circumvented and the one could use cl 4.6 to vary the control for floor area of shops in LEP 2015.

The Council's submissions

The Council submitted that the applicant relies on existing use rights. The applicant's reliance on existing use rights is a fundamental jurisdictional hurdle to the grant of consent for the application. The applicant's position is confused because the applicant's submission is that the applicant relies on existing development consents, yet Mr Barwick's affidavit (Ex C) states that existing use rights only apply over certain tenancies.
The Council submitted that the existing use is for a neighbourhood supermarket and neighbourhood shops, permissible uses in the B1 zone under LEP 2015, because the existing use is consistent with the definitions for those uses, but not the numerical controls for those uses under cl 5.4. It is possible for an existing use to meet the definition of neighbourhood supermarket, but not meet the numerical control for the use. The definition of neighbourhood shops is separate and distinct from the controls under cl 5.4. The applicant cannot overcome the insurmountable problem that there is no relevant prohibition contained in an EPI that has come into force so as to prohibit the alleged existing uses being carried out on the land. An inability to engage flexibly in the application of a development standard under cl 4.6 does not amount to a prohibition.
The applicant relies on the notes to the definitions of neighbourhood supermarkets and neighbourhood shops to say that the existing use is prohibited under LEP 2015. The Council submitted that cl 4.6(8)(c) of LEP 2015 does not amount to a prohibition of a use. Statutory construction principles do not support reading the note as part of the definition to these uses. Clause 5.4 is controls relating to miscellaneous permissible uses and the controls do not deal with the permissibility of a particular use. Clause 4.6(8)(c) of LEP 2015 does not make those uses prohibited uses, it simply means there is no flexibility in applying the numerical controls for floor areas of those uses.

The characterisation of the existing use

I accept the applicant's submission that the lawful use of the site is derived from the consents granted and in force. The development consents prescriptively and sufficiently identify the permitted use because the use and purpose of the development derived from the consents is clear. I respectfully adopt the principles of construction of development consents as summarised by Pepper J in Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 at [357]-[358] and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [93].
I respectfully adopt the essential principles relating to existing use rights as summarised by Robson J in Coastplan Consulting v Central Coast Council [2018] NSWLEC 47 (Coastplan) at [20]-[24], relevantly: "22 Thirdly, and notwithstanding the fact that existing use rights are to be interpreted broadly, their characterisation should be "not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land": Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310-311. 23 Fourthly, existing use rights should be construed by reference to the facts and context at the time of the grant of consent or the lawful commencement of the use: Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105 ('Armstrong') at [47]; Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 at [70]."
The evidence adduced regarding the "facts and context" at the time of the grant of the 1978 consent, is that the site was initially zoned Open Space under Interim Development Order (IDO) 2 and IDO 2 was altered by the Minister to enable approval of the shopping centre. The site was described then as Lot 74, Housing Commission Site No. 4703, being part of Lot 2 DP 524198 (Ex D, f 11). Mr Barwick's affidavit includes the following (Ex C, p 5): "At the time of establishment of the shopping centre, the land was the [sic] subject to the provision of Campbelltown Interim Development Order No. 2 and the development was permitted with development consent… Campbelltown Interim Development Order No. 2 was repealed on 22 February 2002 by Campbelltown (Urban Area) Local Environmental Plan 2002 which zoned the land 10(c) Local Comprehensive Centre zone. Permitted in the 10(c) Local Comprehensive Centre zone was the land use "shops"… Campbelltown (Urban Area) Local Environmental Plan 2002 applied until the coming into force of Campbelltown Local Environmental Plan 2015 on 11 March 2016 when the land was rezoned B1 Neighbourhood Centre zone and "shops" became prohibited. The Campbelltown Local Environmental Plan 2015 adopted the Standard Instrument definitions… The supermarket trading on the site on 10 March 2016 would have been defined as a shop under Campbelltown (Urban Area) Local Environmental Plan 2002 which was permitted with consent and on 11 March 2016 would have also been defined as a shop under Campbelltown Local Environmental Plan 2015 when the land use became prohibited in the zone applying to the land."
The relevant date for assessing the use is immediately before the date from which the use was (allegedly) prohibited, and should be addressed by reference to the legislation in force at that time (AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council (2018) 238 LGERA 116; [2018] NSWCA 289 per Basten JA at 122). The applicant submitted that the date for the identification and characterisation of the lawful use, derived from the consents, is immediately before the commencement of LEP 2015 on 11 March 2016.
Section 4.65 of the EPA Act (then s 106) was in the following terms on 11 March 2016, when LEP 2015 commenced and when, on the applicant's submission, the existing use became a prohibited use under an EPI: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
When LEP 2015 commenced, the site was zoned B1 Neighbourhood Centre (Land Zoning Map LZN_009 11.3.16-7.9.17). Neighbourhood shops were a nominate permissible use in the B1 zone (a neighbourhood supermarket was not included as a nominate permissible use in the B1 zone and it was not defined in the Standard Instrument - Principal Local Environmental Plan (Standard Instrument LEP) until 31 August 2018). A shop was prohibited in the B1 zone because commercial premises were a prohibited use in the B1 zone. A shop was a permissible use in all the other business zones because a shop was, and remains, a subset of retail premises, which is a subset of commercial premises. LEP 2015, at the date it commenced, relevantly included the following definitions in the dictionary: 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. … shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop, but does not include food and drink premises or restricted premises. Note - Shops are a type of retail premises - see the definition of that term in this Dictionary. … retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following: (a) bulky goods premises, (b) cellar door premises, (c) food and drink premises, (d) garden centres, (e) hardware and building supplies, (f) kiosks, (g) landscaping material supplies, (h) markets, (i) plant nurseries, (j) roadside stalls, (k) rural supplies, (l) shops, (m) timber yards, (n) vehicle sales or hire premises, but does not include highway service centres, service stations, industrial retail outlets or restricted premises. Note - Retail premises are a type of commercial premises - see the definition of that term in this Dictionary. … commercial premises means any of the following: (a) business premises, (b) office premises, (c) retail premises.
LEP 2015, when it commenced, included cl 5.4(7), in the following terms: (7) Neighbourhood shops If development for the purposes of a neighbourhood shop is permitted under this Plan, the retail floor area must not exceed 100 square metres.
In Mr Barwick's opinion, the consents granted and in force for the supermarket, immediately before the commencement of LEP 2015, were for the purpose of a shop, and a shop became a prohibited use in the B1 zone at the commencement of LEP 2015.
The applicant submitted that the prohibition of the existing use arises because cl 4.6(8)(c) of LEP 2015 "switches off" the availability of cl 4.6 for a shop over 100m2 (and for supermarkets over 1000m2).
I accept the Council's submission that statutory construction principles do not support reading the note to the definitions of neighbourhood shop and neighbourhood supermarket as part of the definition of the use. The note to the definition of neighbourhood shops, "See clause 5.4 for controls relating to the retail floor area of neighbourhood shops" merely refers the reader to a related provision of the instrument for the defined use and does not contribute to the meaning of the definition. The note is not to be taken as being part of the instrument (s 35(2)(c) of the Interpretation Act 1987 (Interpretation Act)). The note is not a marginal note, footnote or endnote to a table or form in the instrument as described by s 35(4)(b), and so it is not excluded from the operation of s 35(2)(c) of the Interpretation Act, because the control under cl 5.4(7) is not a table or form in the instrument that forms part of the definition for each use. The definition of the use, neighbourhood shop, does not include a numerical value as to the maximum floor area.
Furthermore, cl 5.4 was then (and remains) a compulsory clause of the Standard Instrument LEP and sub-cl (7) permits a numerical value for the maximum area of a neighbourhood shop to be nominated by the local plan making authority at a value not less than 80. As the number can be varied by the local plan making authority, it cannot contribute to the meaning of the definition for the use because the dictionary is compulsory in the Standard Instrument LEP and consistent across the State.
Sub-clause 4.6(8)(c) of LEP 2015, at the date LEP 2015 commenced, was in the same terms as it is presently. I do not accept the proposition that cl 4.6(8)(c) is relevant to the construction of the definition of the use of neighbourhood shop, nor is it a prohibition. Clause 4.6(8)(c) excludes the controls under cl 5.4 from the operation of cl 4.6. Clause 4.6(8)(c) is not relevant to construing the meaning of the definition of neighbourhood shop in LEP 2015.
A shop is a type of retail premises and a retail premises is a type of commercial premises. These uses have been prohibited uses in the B1 zone since the commencement of LEP 2015. However, a neighbourhood shop, which is a type of shop, was a nominate permissible use in the B1 zone when LEP 2015 commenced. If the existing supermarket is characterised as being for a shop, immediately before the commencement of LEP 2015, then the use became a prohibited use under an EPI on 11 March 2016. However, if the existing supermarket is characterised as being for a neighbourhood shop, a type of shop, immediately before the commencement of LEP 2015, the supermarket did not become a prohibited use under an EPI on 11 March 2016.
In Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215 (Warriewood Properties), Sheahan J held that a proposed supermarket with a floor area of 2,200m2, although not sufficiently large enough to be a full-line supermarket (at [32] and [75]), could not be characterised as a neighbourhood shop (at [87]), where the definition of "neighbourhood shop" under the relevant EPI was in very similar, but not the exact, terms to the definition in LEP 2015 when it commenced. His Honour held that the imposition of a limit on the floor space (and the consequent reduction in the type and range of goods) was a practical means of ensuring compliance with the definition of neighbourhood shop, at [88]. He held, "The use of the word "neighbourhood" further reinforces the intent of providing small retail facilities for a local area", at [89], as follows, at [87]: "The clearest indicator of whether a supermarket can be designated a "neighbourhood shop" is the floor space available to it. As noted above, it is uncontroversial that a larger store will have a higher tendency to stock goods that are not "small daily convenience goods", as well as stocking a larger range of any particular class of goods… The critical factor is the frequency and scale of [shopping trips] occurring. The evidence suggests that these factors are likely to be directly proportional to the size of the supermarket."
In this way, a physical characteristic of the existing development, being the floor area of the supermarket, is relevant to determining the use of the retail space and the purpose of the development.
I am satisfied that the supermarket use derived from the 1978 consent and the 1999 consent for the refurbishment of the supermarket, at the time LEP 2015 commenced, can be properly characterised as a neighbourhood shop, being a type of shop. I have reached that conclusion for the reasons that follow.
I adopt the reasoning of Sheahan J in Warriewood Properties that the floor space available to a supermarket is the clearest indictor of whether a supermarket can be designated a "neighbourhood shop" or not. The approved floor space for the existing supermarket was 963m2 in the 1978 consent and this was not changed by the 1999 consent for the refurbishment of the supermarket, other than to reduce the floor area to accommodate a liquor store. The floor area of the existing supermarket at the commencement of LEP 2015 was relatively small for a supermarket and ensured that the supermarket was of a size that could only provide for the day-to-day needs of people who live or work in the local area because the limited space meant it could only stock a small range of groceries and foodstuffs.
According to Mr Khoury, a full-line supermarket has a minimum floor area of 3,200m2. The (uncontested) Economic Impact Assessment (Ex A, tab 14) included the following explanation of the difference between a neighbourhood supermarket and a full-line supermarket (f 20): "There is no strict definition of what constitutes a 'full-line' supermarket, but generally any supermarket of at least 3,200m2 in size is considered a full-line store that can accommodate a full range of supermarket products. The far majority of supermarkets operated by Coles and Woolworths a full-line stores. The average size of a typical Woolworths supermarket is 3,435m2 with around 70% sized between 3,000sq.m and 4,200sq.m. It is a similar situation for Coles, where the average size of a typical Coles supermarket is 3,300sq.m, with the majority are sized between 2,800 and 4,200sq.m… In broad terms, the Australian consumer generally undertakes 'full' shops at major supermarkets where there is an extensive range of products at relatively low prices, and then undertakes top-up shopping at smaller supermarkets or specialised food stores. Full-line supermarkets, therefore, generate far more activity than smaller supermarkets and can sustain a more diverse range of localised shops…"
The floor area of the existing supermarket is relatively small and so the existing supermarket is only capable of stocking and displaying a small range of products.
The supermarket, as originally approved, was part of a development described as a "neighbourhood shopping centre".
The definition of neighbourhood shop under LEP 2015 when it commenced was for a premises used for the purpose of selling general merchandise. General merchandise included, "foodstuffs, personal care products, newspapers and the like", but general merchandise was not limited to those listed items and so included groceries. The definition of shop expressly incorporated groceries as being an item of merchandise. For this reason, I am satisfied that groceries can be described as "general merchandise". A neighbourhood shop is a subset of the group, shop, but it is distinguished as being a type of shop by the requirement that the neighbourhood shop sells general merchandise that "provides for the day-to-day needs of people who live or work in the local area".
I do not accept the applicant's characterisation of the existing supermarket as a shop, because "shop" is too wide a purpose to describe what the site was being used at the commencement of LEP 2015 and it would potentially permit the site to be used for a prohibited purpose.
The existing supermarket is a small, local supermarket that sells a reduced range of general merchandise, specifically foodstuffs and groceries, to provide for the day-to-day needs of people who live or work locally. The distinction is between a small supermarket within a neighbourhood centre, and a full-line supermarket within a local centre. A neighbourhood centre provides a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. A local centre provides a range of retail, business, entertainment, and community uses that serve the needs of people who live in, work in and visit the local area. The catchment for a local centre is intended to be larger than for a neighbourhood centre and to pull from a number of surrounding neighbourhood centres.
There is no need to address the use of the existing shops within the shopping centre, as the applicant's submission regarding existing use rights rests on the premise that the control limiting the area of a shop under LEP 2015 is conflated with the definition of a neighbourhood shop under LEP 2015 and I have dealt with this issue in relation to the existing supermarket. Take away food and drink premises were a nominate permissible use in the B1 zone at the commencement of LEP 2015 and remain so.
The parking on the site was the means by which the land was used to serve the retail purpose of the shopping centre and the parking did not constitute an independent use at any time (Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [31] and [35]).
There is no relevant prohibition contained in an EPI that has come into force so as to prohibit the use of the existing supermarket on the site. As such, there is no entitlement to make a development application seeking consent to enlarge, expand or intensify the existing use pursuant to cl 41(1)(a) of the EPA Regulation because the existing supermarket on the site was a permissible use in the B1 zone when LEP 2015 commenced on 11 March 2016 and it is not an existing use within the meaning of s 4.65 of the EPA Act.

The existing development is not prohibited by LEP 2015 now in force

The existing supermarket is a permissible use under LEP 2015 (now in force) as a neighbourhood supermarket. The principal purpose of the premises is the sale of groceries and foodstuffs to provide for the needs of people who live or work in the local area, for the reasons given above. A neighbourhood supermarket is a nominate permissible use in the B1 zone.
In BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164, Preston J held, at [28], that in order for an existing use to continue to be an existing use within the definition of s 106 (now s 4.65 in effectively the same terms), an EPI that is in force currently must have the effect of prohibiting the use. If it does not, then the use cannot be an existing use within the definition in the EPA Act.
Even if the supermarket was prohibited under LEP 2015 when it commenced, as submitted by the applicant, the use became permissible on 31 August 2018 when the Standard Instrument LEP was amended to include neighbourhood supermarkets as a nominate permissible use with consent in the B1 zone and to define neighbourhood supermarkets. There is no EPI currently in force that has the effect of prohibiting the use of the existing supermarket, and so the use of the supermarket cannot be an existing use within the meaning of the definition of existing use under s 4.65 of the EPA Act.

The purpose of the proposed development is not the same as the existing uses

In construing a by-law that created an exception to a prohibition for an existing use, which included the phrase, "any land, building or structure is being lawfully used for a purpose…", Kitto J noted that the purpose of a use was not to be ascertained simply by reference back to the zoning laws, because doing so may not determine the degree of particularity necessary to exclude other purposes from the existing use right. Nor should the application of the by-law be "approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of the individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date" (Shire of Perth v O'Keefe (1964) 10 LGRA 147; 110 CLR 529 (O'Keefe), 535). The general concept of an existing use or uses of land as being for a purpose has prevailed in the caselaw as a valuable guide, notwithstanding the varied terms of the provisions being construed (AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council (2018) 238 LGERA 116; [2018] NSWCA 289, 138).
An existing use should not be categorised so narrowly that the "natural changes in the method of using the land or carrying on a business or industry will render and existing use right valueless", but it should also not be categorised "so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date" (Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, [310]).
Leeming JA observed the following in relation to determining the appropriate level of generality or particularity when characterising an existing use (Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 at [76]): "In Royal Agricultural Society (NSW) v Sydney City Council at 310, McHugh JA (with whom Hope and Samuels JJA agreed) stated that the level of generality was "not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land". In determining the appropriate genus, "attention should be focused on the [town-planning] purpose for which the determination is being made ... because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided": Boyts at 59; Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; 159 LGERA 57 at [69]."
The purpose of the uses on the site is a neighbourhood shopping centre. The development the subject of the 1978 consent was described as a "neighbourhood shopping centre" (Ex E, f 87) and that is what is shown on the architectural plans (see figure 1). By "neighbourhood", I mean the shopping centre was approved at a small scale that would serve only the day to day needs of the immediate neighbourhood, being the suburb of Airds, but not the wider area because the limited space of the existing supermarket means that it can only stock a small range of groceries and foodstuffs.
There is a difference in purpose between a neighbourhood shopping centre and a retail and business centre, in a "town planning context" (O'Keefe, 535). A neighbourhood supermarket is a different use in kind from a full-line supermarket because a neighbourhood supermarket serves the day-to-day needs of the surrounding neighbourhood, whereas a full-line supermarket serves a wider area. A full-line supermarket, at a significantly increased scale to a neighbourhood supermarket, gives rise to significantly different environmental effects and town planning considerations. These differences are reflected in the different desired characters of the two business zones, B1 and B2, under the Standard Instrument LEP, illustrated by the compulsory objectives for those zones. The existing shopping centre is consistent with the with the desired character of the B1 zone under LEP 2015, notwithstanding that the existing supermarket predates LEP 2015. The proposed development is not an enlarged, expanded or intensified version of the existing use.

The proposed development exceeds the numerical controls for a neighbourhood supermarket and neighbourhood shops under LEP 2015

The proposed development (excluding two of the specialty shops) exceeds the controls for retail floor area of a neighbourhood shop of 100m2 and gross floor area for a neighbourhood supermarket of 1000m2, under cl 5.4 of LEP 2015, and those numerical controls are not amenable to the flexibility afforded by cl 4.6 (cl 4.6(8)(c) of LEP 2015).
Regardless of the proposed development's exceedance of the numerical controls under sub-cll 5,4(7) and (7AA) in LEP 2015, the proposed development is properly characterised as a retail premises and the gym is a business premises (both being a type of commercial premises) and is prohibited development in the B1 zone. It was uncontroversial that the proposed development is prohibited development in the B1 zone under LEP 2015.

The proposal is inconsistent with the objectives for the B1 zone

Pursuant to cl 2.3(2) of LEP 2015, the consent authority, or the Court exercising the functions of the consent authority, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The proposed development is inconsistent with the objective to provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. The proposed supermarket, with an area of 3,479.8m2 is a full-line supermarket that would serve the needs of a wider area than the surrounding neighbourhood. The size and scale of the proposed development is substantial and cannot be characterised as a "small-scale" neighbourhood centre. The size and scale of the proposal, instead, provides a range of retail and business uses that serve the needs of people who live in, work in and visit the wider local area. The proposal is inconsistent with the desired character of the B1 zone.

The proposed development is contrary to the strategic land use planning for the hierarchy and location of retail and commercial centres under LEP 2015

The economic and social experts agreed in their joint report (Ex 15), based on the conclusions of the Economic Impact Assessment (Ex A, tab 14), that the proposed development was supportable; was not expected to impact on the continued viability of existing centres in the local retail network; and that it would provide a net community benefit in the local area. The Economic Impact Assessment concluded that the trading area of the Airds town centre would increase by 2.1% per annum until 2031 and the following regarding the assessment of demand (f 5): "The retail floorspace analysis in this report demonstrates that there is a clear need for additional retail facilities to serve the retail needs of the growing local population. The Airds Town Centre site is considered to be an ideal site to accommodate an expanded shopping centre, and the site is assessed to be able to support a full-scale supermarket, together with a range of retail speciality shops and additional non-retail facilities. Overall, there is considered the opportunity for a new shopping centre at the subject site to serve the food, grocery and convenience retail needs of local residents… Given the available catchment, as well as the scale and offer of the existing shopping centres in the local area, there is considered the clear demand for an expanded shopping centre at the Airds Town Centre site anchored by a full-line supermarket to serve the day to day shopping needs of existing and future local residents. The analysis in this report demonstrates that a range of economic and social benefits are likely to arise from the redevelopment of the Airds Town Centre. These include serving the shopping needs of the growing trade area population; providing for the convenience retail needs of local residents; improving shopping choice; creating a focal point for the community; and creating additional local employment opportunities."
The conclusion of the Economic Impact Assessment, agreed by the experts, does not justify a proposed development that is contrary to the objectives and desired character of the B1 zone. It does, however, provide grounds for a planning proposal to rezone the site to B2 if the environmental impacts of the proposed development are able to be eliminated or adequately mitigated.

Conclusion

The existing supermarket is not an existing use within the meaning of s 4.65 of the EPA Act, because the supermarket was properly characterised as a neighbourhood shop the commencement of LEP 2015, which was a nominate permissible use in the B1 zone.
The existing supermarket is a permissible use with consent under LEP 2015 (now in force) as a neighbourhood supermarket.
The proposed development is for commercial premises and is prohibited development in the B1 zone under LEP 2015.
The proposed development is contrary to the strategic land use planning for the hierarchy and location of retail and commercial centres under LEP 2015.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 792/2020/DA-C for the demolition of the existing shopping centre and the construction of a two storey shopping centre containing a supermarket, 13 shops and parking for 200 cars, at 44 Riverside Drive, Airds, is refused. 3. The exhibits, other than Exhibit 1, are returned.

Susan O'Neill Commissioner of the Court

Amendments 13 August 2021 - Amended typographical error at [102]. 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: 13 August 2021

Issues

The Council's contentions can be summarised as:

The applicant has not satisfied its onus with respect to proving that the site has the benefit of existing use rights so as to give the Court jurisdiction to determine the matter, because the applicant has not provided any evidence to demonstrate that the existing use was lawfully commenced. The applicant has provided insufficient detail/evidence to demonstrate that there is an environmental planning instrument (EPI) in force that has the effect of prohibiting the use, meaning that the use cannot fall within the definition of existing use under s 4.65 of the EPA Act. Council contends that sub-cll 5.4(7) and (7AA) of the Campbelltown Local Environmental Plan 2015 (LEP 2015) do not have the effect of prohibiting the use for the purposes of s 4.65 of the EPA Act;
In the event that the Court finds that the proposal has the benefit of existing use rights, cl 4.3 of LEP 2015 does not derogate from cll 41 and 42 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) because it does not derogate from the entitlement to rebuild or expand the existing use on the site. The proposal contravenes the height of buildings development standard that applies to the site of 9m. The applicant's cl 4.6 written request is not well founded and does not demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The Council submitted that the environmental planning grounds raised in the applicant's cl 4.6 written request focus on the proposed development as a whole and not on the aspect of the proposed development that exceeds the numerical development standard. In the absence of an adequate cl 4.6 written request, there is no jurisdiction for the Court to grant consent to the proposed development;
The proposed development is unsatisfactory with respect to bulk, height and scale, having regard to what is permissible on the adjacent Airds town centre which is also zoned B1 Neighbourhood Centre and the proposal is not in keeping with the existing or desired future character of the locality. The proposed development does not achieve an appropriate response to the desired future character of the B1 Neighbourhood Centre zone or the outcomes intended for the Neighbourhood and Local Centres and Commercial development under Pt 6 of the Campbelltown (Sustainable City) Development Control Plan 2015 (DCP 2015). The proposed development is contrary to the strategic land use planning for the hierarchy and location of retail and commercial centres under LEP 2015;
The proposed development does not provide a sufficient setback to the northern boundary and the treatment of the northern elevation is incompatible with the existing and desired future streetscape and character of the area;
The applicant did not seek to amend the application to amend the plans to reflect the agreement by the bushfire experts on changes to the northern and western elevations and the incorporation of a wall to address the bushfire risk on the site. The urban design experts agreed that the changes to the proposed development proposed by the bushfire experts would result in a poor outcome;
The proposed development fails to provide disabled access;
The conditions of consent (Ex 21) requiring a wholesale redesign of the landscaped setting of the proposed development do not provide clear parameters for landscaping. It is not appropriate to condition the provision of landscaping as part of the proposed development because the landscaping proposal has consequences for the urban design of the proposed development;
The proposed development will have an unacceptable impact on trees identified to have high significance ratings as designated by the Arboriculture Development Impact Assessment Report Revision B. The proposed development will result in the loss of a number of significant trees that make a positive contribution to the streetscape and amenity of the site. The proposed development has not adequately identified these trees as constraints to the development of the site;
The signage of the proposed development does not satisfy the criteria of State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64), or the requirement of DCP 2015;
The parking provision of 200 spaces is inadequate and DCP 2015 requires the provision of 320 spaces. The proposal to combine the vehicular access to the loading dock and the customer carpark results in unsafe traffic conflicts;
The biodiversity assessment fails to adequately consider avoidance and minimisation principles as development with a smaller footprint would avoid impacts on the biodiversity values identified on the site;
The site is identified as "core koala habitat" under the Campbelltown Comprehensive Koala Plan of Management (CCKPOM). There is no legally binding agreement provided by the applicant to formalise the applicant's obligation under Section 7.3 of the CCKPOM.

The applicant agreed that cl 4.3 of LEP 2015 does not derogate or have the effect of derogating from the incorporated provisions in Pt 5 of the EPA Regulation and that the height of buildings development standard for the site applies to the proposal (Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [64] and [65] understood in the context of [33] and [34]). The applicant provided a cl 4.6 written request to justify contravening the development standard, dated 6 July 2021 (Ex 11, Annexure G).
The applicant submitted that the Council's contention that the Court does not have jurisdiction to determine the application in the absence of the consent of the owner of the land on which the stormwater infrastructure is proposed to be constructed, pursuant to cl 49(1)(b) of the EPA Regulation, is to be cured, on or before Friday 23 July 2021, by the provision of evidence of owner's consent. The Council submitted that the contention relating to stormwater is not pressed following the agreement of the stormwater experts and the applicant's commitment regarding the provision of owner's consent for the stormwater infrastructure works beyond the site.
The Council submitted that the contention regarding acoustic impacts is resolved by the agreement of the experts and conditions of consent.
The applicant raised issues relating to the Council's conditions of consent (Ex 21), including the terms of the deferred commencement condition regarding a requirement for Bushfire Assessment Report to be provided to the Council, and a requirement in a number of conditions for documents to be provided to the Council for the approval of the appropriate staff person prior to the issue of a Construction Certificate.

(2018) 238 LGERA 116

(2007) 151 LGERA 400

(2002) 122 LGERA 105

At a glance

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Judgment (23 paragraphs)

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Cases Cited (18)