McDonald's Australia Limited v Wollongong City Council

Land and Environment Court (NSW)|2021-08-04

Introduction

COMMISSIONER: To the west of Dapto in the local government area of the City of Wollongong (Council) is the village of Wongawilli, an emerging residential area set in a valley enjoying the backdrop of the Illawarra escarpment.
Within the village and surrounded by open space to the west and north, some residential development to the east and West Dapto Road to its south is a large vacant block of land of some 8,752 sqm being lots 336 (lot 336) and 337 (lot 337) in Deposited Plan 1241313 known as 1 and 9 Raven Street, Wongawilli (site).
It is on the site that the Applicant seeks the following development:

A food and drink premises (McDonald's) with a drive-through facility operating 5am to midnight 7 days a week;
A centre-based child care facility with outdoor play area and capacity for 100 children;
4 commercial/retail premises with trading hours 7am - 10pm seven days;
Construction of 2 ingress/egress driveways, one of each on West Dapto Road and Raven Street;
83 car parking spaces including 3 disabled spaces;
Business identification signage including 2 pylon signs;
Communal plaza adjacent to the commercial/retail premises and a smaller communal area on the western boundary of the site;
Landscaping and other minor site works; and

The site and locality

The site has two elements, defined by the coincident cadastral boundary and zoning, but not by any particular physical characteristics.
Lot 336 is a trapezoidal shaped lot which is bounded to the south by West Dapto Road, to the east by Raven Street, to the west by open space and to the north by Lot 337. The southern boundary to West Dapto Road is approximately 115m in length. The eastern boundary to Raven Street is about 85m, the northern common boundary with lot 337 is about 49m and the boundary to the open space is about 113m. Lot 336 has an area of 7591 sqm.
It should be observed now that lot 336 is zoned B1 Neighbourhood Centre pursuant to Wollongong Local Environmental Plan 2009 (WLEP 2009). I will provide greater detail about the planning regime later.
Lot 337 is triangular in shape sharing its southern boundary with lot 336 being about 49m in length. The western boundary, or hypotenuse of the triangle, is almost 71m in length, whilst the eastern boundary is the frontage to Raven Street of about 47m. Lot 337 has an area of 1224 sqm.
The zoning of lot 337 should also be observed - it is zoned R2 Low Density Residential pursuant to WLEP 2009.
The existing subdivision is shown below. The zone boundary is coincident with the lot boundary.
The site has been filled as part of the previous subdivision works and is essentially level and grassed. A footpath and kerbing have been constructed along the Raven Street frontage.
Along the western boundary there is a retaining wall of varying height from about 500mm to 1m, retaining the site, below which is a footpath. To the west of the footpath is open space or riparian zone constituted largely by a series of waterways which drain in a westerly direction into Robbins Creek and ultimately Lake Illawarra. There is a walkway/bridge from the western side of the open space which connects to the pathway on the western side of the site.
To the west of the open space is recent and continuing residential development in an area known as Sanctuary Ponds, comprising in total 179 residential lots, most of which have been developed.
To the south of the site is West Dapto Road which the Council has recently advised is to be the subject of a significant upgrade as a four lane collector road to provide for two lanes in each direction. Opposite what is proposed to be the entry to the development in West Dapto Road is an existing intersection with Shone Avenue. Shone Avenue connects Wongawilli to the Princes Highway at Dapto. Immediately to the south of West Dapto Road is the railway line and further to the south of the railway line are more residential subdivisions.
Immediately east of the site across Raven Street is Sanctuary Ponds (Stage 2) a residential subdivision of 39 lots the large part of which is currently operating as a display village. Nevertheless it has been assumed by the parties for the purpose of these proceedings that in the future it will be a residential area rather than display homes. There is likely to be further residential subdivision further east of Sanctuary Ponds (Stage 2).
To the north of the site is a natural area described by the Council as Sanctuary Ponds Stage 4, which includes an existing dam/pond, and the associated watercourse connects to the waterway network to the west of the site.
Further afield, for reasons related to issues raised by the Council, it is observed that the town of Dapto is some 3.2kms to the south east of the site. The village of Horsley, with a small shopping centre is between Wongawilli and Dapto, about a 6 or 7 minute drive from the site. About 1.5kms north east of the site is a proposed development known in these proceedings as "Darkes Road".

The proposed development

The subdivision is a consequence of the built form and uses proposed in the DA. That is, the subdivision is to provide for a separate lot for each of the McDonald's restaurant, the childcare centre and the retail/commercial premises. There are various easements to be created which allow some level of integration between the uses, in particular for vehicular and pedestrian movement.
Images of the subdivision plan and the proposed layout follow:
There is no significant objection from the Council to the subdivision in itself. That is, if the built form and uses were approved then the Council would not likely oppose the subdivision. Similarly, if the built form and uses were not approved then the Applicant does not seek approval of the subdivision.
Nothing further needs to be said about the subdivision.
The McDonald's restaurant is to the southern part of the site. Within the building is the service counter, dining area, a party room, a room described as "playland" and the usual "back of house" areas including windows and access points for ordering and pick up for customers using the drive through facility.
The principal entrance to the site is from West Dapto Road to the south of the McDonald's building and the drive through facility is accessed by driving to the northern edge of the McDonald's building then turning right into the first accessway of the parking area, thence right again into the dedicated McDonald's drive through lanes, on the eastern side of the building and to the west of the communal plaza area. There are two windows to take orders, then a vehicle will continue to travel south, turning right at the southern edge of the building, where the two lanes become one lane, to the pickup point before a right and left veer to rejoin the principal accessway from West Dapto Road.
A criticism by Council is that by the existence and design of the drive through facility the McDonald's building is an "island" and lacks integration with the other uses on the site. As a matter of fact, the drive through facility itself flanks the eastern and southern sides of the building and part of the western side of the building. On the northern side is parking.
There is a single door entrance on the southern/West Dapto Road façade and the principal entrance is on the northern façade facing the car park.
The four retail/commercial premises have a frontage to Raven Street and each is shown with identical dimensions of 10m x 15m with an area of 150 sqm. The Applicant also provided by way of example, an alternate layout to showing tenancies of 300 sqm, 2 x 75 sqm, 90 sqm and 50 sqm to accommodate the uses of groceries, café, baker, butcher and hairdresser respectively.
It is the Applicant's case that the retail/commercial area of 600 sqm can be used in a range of ways dependent upon demand in the future and it does not seek approval for any specified use for the area. The Applicant has also agreed with a draft without prejudice condition proposed by the Council that any future use be the subject of a separate development application and consent, so as to avoid the potential for the issue of a complying development certificate for commercial or retail uses which the Council may consider inappropriate.
The principal communal area (plaza) is between the McDonald's building and the retail/commercial premises, and directly abuts the two most southern of those premises. It is anticipated by the parties that, whilst the retail/commercial premises will have a street frontage to Raven Street, they will also facilitate an opening to the west for access to the plaza.
The plaza has dimensions of about 24m north to south and 16m east to west with an area of about 384 sqm. As already pointed out, to the east is the rear of two of the retail/commercial premises, to the south is West Dapto Road, to the west is the drive through adjacent to the McDonald's building and to the north is car and bicycle parking.
The plaza will have a pergola over much of it as well as landscaping and outdoor furniture.
There is no direct access from the front of the McDonald's building across the drive through lanes to the pathway in the northern edge of the plaza because there is a landscape bed on the western edge of that part of the plaza which is therefore an impediment to pedestrian movement. During the hearing it was acknowledged that that element of the landscaping could easily be deleted. It is a subject to which I will return.
The second communal area is a smaller area on the western boundary of the site, immediately to the south of the child care centre building. It is about 15m x 6m, an area of 90 sqm, although it also functions as a walkway in part. There is a 2.1m fence proposed on the boundary with the child care centre. The child care centre building is set back 2m from the boundary and has a wall height of 3m and a width in the order of 12m along that boundary. There is a pitched roof to the child care centre building with a small gable just below the ridge with a height at the southern end of a little above 5m.
There is a ramped access to the site from the public pathway alongside the open space to the west leading to an entrance to the site into the smaller communal space area. The ramp arrangement is such that a pedestrian coming from the north will walk past the entrance for about 15m, then double back for the same distance to then enter the site and the communal area.
The child care centre is proposed to accommodate 100 children. It has a dedicated vehicular entrance from Raven Street although it is also accessible from West Dapto Road through the principal car park.
For reasons which will become evident it is unnecessary to set out further details of the child care centre. The most relevant aspect for present purposes is the proximity of the child care centre building to the communal area at the western boundary of the site which I have identified above.
The principal car park serving McDonald's and the retail/commercial premises occupies effectively the central portion of the site, surrounded by the child care centre to the north, the McDonald's building to the south, the retail/commercial premises to the east and the public open space to the west.
There are 83 parking spaces, and, unusually, the Council submits that fewer spaces should be provided. It is an issue to which I shall return.

The course of the proceedings

On 24 February 2021 I conducted a conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). The conciliation was conducted in person and included a site inspection and submissions from some local objectors. The parties did not reach an agreement and the conciliation was terminated on that day.
The hearing itself took place by audio-visual means in accordance with the Court's COVID-19 Pandemic Arrangements Policy, April 2021.
At the outset of the hearing on 26 July 2021 the parties confirmed that they consented to me hearing the matter in accordance with s 34(4)(b) of the Court Act.
At the hearing the Applicant first made an application for leave to amend the development application as permitted by clause 55 of the Environmental Planning and Assessment Regulation 1979 (EPA Regulation). The Council did not oppose the amendment of the DA but pressed that a costs order be made pursuant to s 8.15(3) of the EP&A Act.
In the event the Court drew the parties' attention to the recently applicable terms of cl 55: 55 Amendment or variation of development applications except for State significant development (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for - (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
It was necessary for the proposed amended DA to be lodged on the NSW Planning Portal before the amendment is effective. There was no role for the Court to "grant leave" to the amendment in circumstances where the Council agreed to the amendment. Further, the Court's power under s 8.15(3) EP&A Act will only arise when the amended DA is filed with the Court.
I therefore noted that the Council agreed to the amendment and directed that the amended DA be lodged on the NSW Planning Portal and then filed with the Court. I also noted that the hearing would proceed on the assumption that those steps would be taken and that the proposed amended DA would be treated as the DA for the purposes of the hearing.
The Court has since been advised that the amended DA was lodged on the NSW Planning Portal on 28 September 2021 and filed with the Court on the same day.
In the usual course the Council called objectors and the parties called their experts. The evidence is referred to below.
At the conclusion of the evidence the parties suggested that a site inspection would assist the Court and I agreed. Whilst the conciliation had included a site inspection, the proposal then before the Court included a service station (now omitted) and 24-hour trading for both the service station and the McDonald's restaurant. I considered it would be helpful to better understand the site and the relationship of the proposed development in its context, as the proposal now differed materially from that before the Court at the conciliation.
The site inspection was conducted with only counsel and their instructing solicitors present and wearing masks when appropriate. Social distancing was observed. After inspecting the site the representatives and I drove "in convoy" to observe the distance to the small shopping centre at Horsley and to West Dapto. The Court then was invited to observe an IGA supermarket at 125 Lakelands Drive Dapto known as IGA Parkside.
IGA Parkside is a small supermarket of about 300 sqm in area (excluding some small loading area/accessway) and said to represent a typical small supermarket which can service regular and daily needs but is not what is known as a "full line" supermarket. It forms part of a small shopping centre of 3 shops with a total floor space in the order of 800 sqm or thereabouts.
It was not the proximity of IGA Parkside which was relevant, but it was part of the Applicant's case that a supermarket of 300 sqm in floor area can be provided on the site and provide for the daily and regular needs of those in and visiting the local community.

Objectors

Oral evidence was given by:

Ms Suzie Crick of Planet Long Day Care, Coledale
Mr S McGartland, 52 Smiths Lane, Wongawilli
Dr J Norman, Pat Geraghty Place, Woonona.

Ms Crick is a director of a child care centre and has been involved in child education for many years. Her concern related to the safety of children having regard to the parking and access arrangements, including the proximity of the McDonald's building and parking area. Ms Crick said that the proximity of the McDonald's to the child care centre "sent the wrong message" in relation to nutrition. Ms Crick was also concerned about the potential effect of high voltage transmission lines in the vicinity and the noise and pollution from the proximate West Dapto Road.
Mr McGartland is a local resident. I quote from part of his statement: "We recognise that Wongawilli is expanding and will never be the little historical village of the past. However, the community values the character and heritage of this village. Wongawilli is a quiet residential area at the base of the escarpment where families walk and ride down to the area of the ponds to watch wildlife, where children can be brought up without distraction of fast food behemoths at their doorstep. In the afternoon, swallows dart around the ponds while ducks water flail and swans meander in the waterway. By 7pm the streets are quiet and the neighbourhood has a serene feel about it with only the occasional dog walker. If we overlay that scene with the golden arches of McDonald's and the associated high volume of people, traffic, noise and lighting of the proposed development, the character of the area changes drastically and will be diminished forever….. The community not unreasonably expects the neighbourhood centre to be consistent with all the planning, community engagement and controls developed and endorsed by the council and the community. Importantly, this paints a very clear picture of what was intended and expected for this site. Put simply, there is a picture you see at all the other neighbourhood centres in the Dapto region. These neighbourhood centres have been operating for decades, so I can only assume they are financially viable and would be so on this site. It would be a neighbourhood centre comprising of a suite of small independent shops, such as a small supermarket, hairdresser, butcher and sit-down cafes that maintains the current quiet character of a residential village and whose primary focus is serving the local neighbourhood. They, in fact, become part of a local community. This need has been magnified as a result of the current pandemic. The opportunity to shop local and minimise people movements is clearly beneficial."
Dr Norman is a dietician and a public health nutritionist. She has a PhD in public health and works in the field of childhood obesity for the Local Health District. She is an honorary research fellow with the Faculty of Social Sciences at the University of Wollongong, but her objection is her own and not on behalf of any organisation.
She said that the overall impact of this application will be detrimental to the wellbeing of the emerging communities of the West Dapto land release area for three principal reasons. First, that increased exposure to fast food restaurants has a negative impact on children's eating habits and, therefore, increases their risk of developing obesity.
Second, the proposal is in conflict with the West Dapto vision for the village centres that the communities will be healthy, sustainable and resilient. The vision also notes the role of villages as a lower-order centre is to provide a convenient alternative to the supermarket-based town centres for daily goods and that village centres should accommodate a small supermarket and variety shops. The McDonald's complex, said Dr Norman, is contrary to this vision and would be more appropriate to a larger centre where there is a mix of food retail outlets to ensure healthy food choices are available.
Third, Dr Norman drew attention to the United Nations Convention of the Rights of the Child which outlines children's rights to the provision of adequate nutritious food, and Australia is a signatory to this convention, so all children have a right to grow up in a healthy environment and have a fair chance in life. Article 3 of the Convention emphasises that the best interests of the child should be the primary consideration and all decisions and actions concerning children, and when governments are faced with conflicting priorities, all lobby groups, children must be given priority. Dr Norman said she believes the proposal is a threat to the health and wellbeing of local children and families.
During the course of the assessment of the DA by the Council it was notified to the local community in accordance with the Council's policy both after initial lodgment and after an amendment to the DA (an amendment made by leave of the Court granted on 25 May 2021) . There were 131 submissions after the first notification and 103 submissions in response to the amended DA.
All the submissions are in evidence before the Court. The written objections encompass the oral submissions, and the contentions of the Council, but also include concerns about:

Cooking odour;
The potential for undesirable behaviour;
Out of character with surrounding area;
Whether there is a need for the facility;
Poor streetscape presentation;
Noise, light and physical pollution;
Traffic congestion.

There are perhaps two dominant themes in the submissions:

Concern about health outcomes; and
The community's vision for development of Wongawilli Village will be frustrated.

I will deal with those matters later in the judgment.

The issues

At its broadest the Council described the fundamental issue in these terms: "This Appeal is about the creation of new communities and, particularly, if the planned strategic vision for a new village centre is to be given effect or is to be an opportunity lost." Council's Written Submissions (CWS) at par 1.
The issues articulated in the Council's Amended Statement of Facts and Contentions (excluding the lengthy particulars) are: 1. The proposal is inconsistent with the objectives of the B1 Neighbourhood Centre zone in WLEP 2009 (Contention 1). 2. The proposal is incompatible with the intended village outcome for the B1 zone (Contention 2A). 3. The development does not establish an urban character for the village centre that has been shaped by the community's vision or the context (Contention 2B). 4. The proposed overall site layout of the uses on the site will result in a poor urban design outcome that is inconsistent with the desired outcomes of a village centre (Contention 2C). 5. The proposal has not demonstrated that the Village Centre Concept as set out in Chapter D16 of the Wollongong Development Control Plan 2009 (WDCP 2009) is not feasible (Contention 2D). 6. The Childcare Centre design would result in poor outcomes for children using the centre and does not satisfy the requirements of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Contention 3A). 7. The Childcare Centre is unnecessarily large and takes up a disproportionate area of the site having regard to the Village Centre location (Contention 3B). 8. The proposal fails to demonstrate that traffic generation for the development will not have an adverse impact in the immediate area and the locality in general (Contention 4A). 9. The proposed carparking provision and traffic and pedestrian management for the development is unacceptable (Contention 4B). 10. The proposal is inconsistent with other [particularised] parts of WDCP 2009 (Contention 6). 11. The proposed site access off West Dapto Road currently conflicts with power poles (Contention 8). 12. The proposed subdivision is contrived and does not reflect the orderly and economic development of land (Contention 9).
The preceding contentions were supplemented by a contention about insufficient information (which was not pressed) and matters which can be resolved by condition (about which nothing more needs be said).
There is some not inconsiderable overlap between the contentions as drafted. Contentions numbered (1) to (5) and (7) above really embrace the principal planning and urban design issue expressed more broadly at [69] below. Contention (6) relates solely to the child care centre, but not its relationship to the balance of the proposed development. Contentions (8) and (11) were resolved by the provision of further information.
The Applicant recognised some overlap in the Council's contentions and distilled the individual contentions into 5 themes or issues: 1. Consistency with the objectives of the B1 zone. 2. Urban design response and delivery of a village centre. 3. Integration of the Village Centre. 4. Economic viability. 5. Traffic network capacity and provision of parking. Applicant's Written Submissions (AWS) at par 5.7.
The summary generally accords with how the Council presented its case, and I regard that distillation as a useful descriptor of the issues, at a high level, to which I would add as an issue the planning matters related to the child care centre as a stand alone use. Clearly within the broad statement of the issues are various sub-issues requiring determination. I will articulate those as necessary when dealing with the broader issues.

The Planning regime

It is no surprise to observe that different people, including experts, will from time to time differ as to what built form and uses are intended as the outcome of a planning regime. It also is no surprise, and no criticism, that there will on occasion be some degree of ambiguity or uncertainty in planning documents.
The task nevertheless is to consider and analyse the relevant planning documents to determine their application to a particular proposal. It is important to note that the Council's intentions for particular land, or a particular area, is not divined from its position taken in this, or any other litigation, or any public statements. Its intention is expressed through the planning regime.
Section 4.15 of the EP&A Act prescribes that the mandatory relevant considerations include the planning instruments: 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and … that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
Planning documents other than the relevant environmental planning instruments and development control plan may be relevant considerations under the rubric of public interest, itself a mandatory consideration by virtue of s 4.15(1)(e) of the EP&A Act.
In relation to development control plans, the provisions of s 4.15(3A) should be noted: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (Emphasis added)
WLEP 2009 applies to the site. As noted above at [10] lot 336 is zoned B1 Neighbourhood Centre pursuant to WLEP 2009. The consent authority, now the Court exercising the power of the consent authority, the Council, must have regard to objectives for development in a zone when determining a development application for development in the zone by virtue of cl 2.3(2) of WLEP 2009.
The objectives of the B1 zone are: Zone B1 Neighbourhood Centre Objectives of zone • 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 allow for residential accommodation and other uses while maintaining active retail, business or other non-residential uses at the street level.
There is no issue raised in respect of the second objective in the sense that there is no residential accommodation proposed and all non-residential accommodation is at street level. The second objective does arise in the context of urban design in that the Council argues that the McDonald's building does not provide a sufficiently active use to its West Dapto Road frontage.
The only part of the proposed development which is not within the B1 zone is some of the parking (allocated to the child care centre) and part of the child care building and its outdoor play area. That is, the child care centre and its parking straddle the zone boundary.
The permissible uses in a zone may inform the construction or understanding of the objectives of a zone. As Preston CJ said in Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 (Jeffrey) at [61]-[63]: "61. The EPA Act controls the carrying out of development on land by means of the threefold classification of development as being permitted without consent, permitted with consent or prohibited. This classification is performed by the Land Use Table for each zone. The objectives of each zone inform the decision as to which land uses should be placed into which classifications. Land uses that are compatible with the objectives of the zone, no matter how they are carried out, can be permitted without consent. Land uses that may be compatible with the objectives of the zone, depending on how they are carried out, can be permitted with consent. Land uses that are incompatible with the objectives of the zone, irrespective of how they are carried out, can be prohibited. The result of this classification of development for any zone will be to create a presumption that development for a purpose that is permitted without consent, permitted with consent or prohibited respectively will be, may be or will not be compatible with the objectives of the zone. 62. In this context, the objective of Zone R4 should be construed so as to promote the purpose of this threefold classification of development and the presumption that development for a purpose that is classified as being permitted with consent in the zone will be compatible with the objectives of the zone. This presumption applies to development for a purpose as a type of development, not to any proposed development for a particular purpose. This is a different point to what was said by McClellan CJ in BGP Properties at [117]-[118]. The points there being made were twofold. First, where by its zoning land is identified as generally suitable for a particular purpose, by development for that purpose being permitted with consent in the Land Use Table for the zone, weight must be given to that zoning. Planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted: [117]. 63. This leads to an expectation, in most cases, that development consent will be granted to an application to use a site for a purpose for which it is zoned. But this general expectation is subject to the circumstances of the particular development for which consent is sought. This is the second point made in BGP Properties. The design of the particular development for that purpose should result in acceptable environmental impacts: at [118]. If it does not, there can be no expectation that consent will be granted to the development, notwithstanding that it is for a purpose that is permitted and consistent with the zoning." (Emphasis added)
The permissible uses and prohibited uses in the B1 zone are: 2 Permitted without consent Building identification signs; Business identification signs 3 Permitted with consent Advertising structures; Amusement centres; Backpackers' accommodation; Bed and breakfast accommodation; Boarding houses; Business premises; Car parks; Centre-based child care facilities; Commercial premises; Community facilities; Entertainment facilities; Home-based child care; Hotel or motel accommodation; Information and education facilities; Medical centres; Neighbourhood shops; Neighbourhood supermarkets; Oyster aquaculture; Places of public worship; Recreation areas; Recreation facilities (indoor); Registered clubs; Respite day care centres; Roads; Seniors housing; Service stations; Shop top housing; Tank-based aquaculture; Veterinary hospitals 4 Prohibited Pond-based aquaculture; Rural supplies; Specialised retail premises; Vehicle sales or hire premises; Any other development not specified in item 2 or 3
Commercial premises are a permissible use and is defined in the Dictionary to WLEP 2009 as: commercial premises means any of the following - (a) business premises, (b) office premises, (c) retail premises.
Business premises are defined: business premises means a building or place at or on which - (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital.
Office premises are defined: office premises means a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used.
Retail premises are defined: 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) (Repealed) (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, (la) specialised retail premises, (m) timber yards, (n) vehicle sales or hire premises, but does not include highway service centres, service stations, industrial retail outlets or restricted premises. (Emphasis added)
Food and drink premises are also defined: food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following - (a) a restaurant or cafe, (b) take away food and drink premises, (c) a pub, (d) a small bar.
The McDonald's restaurant and drive through is permissible as food and drink premises, a species of retail premises, which in turn is a species of commercial premises which is permissible in the B1 zone with development consent.
Whilst no particular use of the retail/commercial premises is proposed in this DA, it is clear that there are a range of uses to which the premises can be put in the future. Those uses include office premises, food and drink premises, business premises such as dry cleaners, travel agents, funeral home and the whole range of retail premises, including the use for the purposes of a shop.
Shop is also defined in the Dictionary to WLEP 2009: 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 and neighbourhood supermarket, but does not include food and drink premises or restricted premises.
It should also be noted that "Neighbourhood shops" and "Neighbourhood supermarkets" are a nominated permissible use, whilst also falling within the definition of "shops" which are permissible as "retail premises" a type of "commercial premises". The definitions 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. 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.
Clause 5.4 of WLEP 2009 provides a development standard for neighbourhood shop and neighbourhood supermarket: (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.
It is a curiosity that WLEP 2009 provides for the express permissibility of the separate land uses of "neighbourhood shops" and "neighbourhood supermarket", which have the limitation in cl 5.4 of WLEP 2009, whilst at the same time "shops" are also a permissible use. Both "neighbourhood shops" and "neighbourhood supermarket" are "shops" for the purposes of WLEP 2009 and therefore it was unnecessary to separately identify "neighbourhood shops" and "neighbourhood supermarket" as permissible uses.
It may be pertinent to note that whilst "commercial premises" are permissible in the B2 Local Centre zone, which is to provide for a larger centre than a neighbourhood centre, there is no specific mention of "neighbourhood shops" and "neighbourhood supermarket", with the attendant limitations by virtue of cl 5.4 of WLEP 2009. It is possible that there is an indication from including specifically "neighbourhood shops" and "neighbourhood supermarket" as permissible uses as to the meaning of the objectives of the B1 zone to which I shall return.
In relation to cl 5.4 of WLEP 2009 there is no minimum area prescribed for "neighbourhood shops" or "neighbourhood supermarket", only the maximum.
Whilst the focus of the issues before the Court is the B1 zone objectives, the permissible uses in, and objectives of, the R2 zone (in which much of the child care centre is located) should also be noticed: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The permissible uses are: 2 Permitted without consent Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Hostels; Information and education facilities; Jetties; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Signage; Tank-based aquaculture; Veterinary hospitals 4 Prohibited Any development not specified in item 2 or 3
Child care centres (centre-based child care facilities) are a permissible use. Commercial premises are not a permissible use, but "Neighbourhood shops" are a permissible use in the R2 zone.
There is no issue that the first objective is not relevant to the assessment of the child care centre. It is agreed that a child care centre is a facility or service which meets the day to day needs of residents, so that the proposed child care centre is consistent with the second, and only relevant, objective of the B1 zone. (Noting of course that WLEP 2009 cl 2.3 does not require a finding of consistency with objectives, but rather that regard be had to them, nevertheless the parties' acceptance that there is consistency with the relevant zone objective ought be recorded.)
Clause 7.13 of WLEP 2009 relates to activation of street frontages and provides: 7.13 Certain land within business zones (1) The objective of this clause is to ensure active uses are provided at the street level to encourage the presence and movement of people. (2) This clause applies to land in Zone B1 Neighbourhood Centre, Zone B2 Local Centre, Zone B3 Commercial Core or Zone B4 Mixed Use, but does not apply to land to which clause 7.19 applies. (3) Development consent must not be granted for development for the purpose of a building on land to which this clause applies unless the consent authority is satisfied that the ground floor of the building - (a) will not be used for the purpose of residential accommodation, and (b) will have at least one entrance and at least one other door or window on the front of the building facing the street other than a service lane.
There is no doubt that the proposal complies with the requirement of one entrance and one other door or window facing West Dapto Road and Raven Street, but the issue of street activation of West Dapto Road remains an issue in broader urban design and planning terms.
There are a number of provisions of the WDCP 2009 which are relevant to the issues before the Court. It will be necessary to set out some provisions in full, but then return to those provisions later in this judgment.
A significant part of the Council case is that the proposal fails to recognise and reflect the retail hierarchy which is expected as a consequence of the planning regime. Chapter B4 of WDCP 2009 deals with the principal aspects of "Development in Business Zones", including the retail and business hierarchy and a series of "planning requirements" for development generally related to both location and land use proposed.
The Introduction to the Chapter relevantly provides: "1. This chapter of the DCP has been prepared to provide objectives, strategies and detailed planning controls for retail, office premises, business premises developments, bulky goods premises and other developments in addition to the specific zone objectives and the planning controls contained in Wollongong Local Environmental Plan 2009. 2. This chapter contains Council's adopted retail hierarchy strategy for both existing and planned retail and business centres within the Wollongong City LGA. The retail hierarchy strategy in part reflects the Hill PDA "Wollongong Retail Centre Study dated September 2004", prepared on behalf of Council in addition to the centre hierarchy strategy, contained in the NSW Department of Planning's "Illawarra Regional Strategy 2006-31" document. 3. This chapter of the DCP applies to any retail, office premises, business premises, bulky goods premises, shop top housing or mixed use development proposed on land zoned either: B1 Neighbourhood Centre, B2 Local Centre, B3 Commercial Centre, B4 Mixed Business, B5 Business Development, B6 Enterprise Corridor or B7 Business Park, under Wollongong Local Environmental Plan 2009. 4. …... [Not relevant] 5. Additionally, Part D of the DCP includes the Locality based/ Precinct planning controls for the certain areas which override any controls contained in this chapter of the DCP, in the event of any inconsistency between Part D of the DCP and this chapter of the DCP." (Emphasis added)
Some matters should be noted:

The retail hierarchy applies to both existing and proposed retail and business centres.
The provisions apply to all the business zones including the B1 Neighbourhood Centre zone.
There are specific provisions or controls for identified local areas and those specific controls take precedence over the general controls when there is an inconsistency. I will come to the local controls for Wongawilli shortly.

The objectives of the Retail and Business Centre hierarchy in clause 3.1, Chapter B4 of WDCP 2009 include: "3.1 Objectives 1. The objectives of the retail and business centre hierarchy strategy are to: (a) Strengthen the hierarchy, role and sustainability of existing and planned retail and business centres within the Wollongong Local Government Area; … (c) Reinforce the role and function of lower order retail and business centres by ensuring the size of any proposed retail development within a particular centre is consistent with the retail role of that centre, as per the retail hierarchy strategy; … (f) Reinforce the character and identity of local centres in a manner appropriate to their function;"
WDCP 2009 identifies that the retail centres hierarchy comprises seven main levels of retail centres, namely: 1. Regional City - Wollongong City Centre 2. Major Regional Centres (Sub-Regional Centres) - Warrawong and Dapto (emerging) 3. Major Town Centres (District Centres) - Corrimal, Figtree, Fairy Meadow (emerging) and Unanderra (emerging) 4. Town Centres (Local Centres) [No examples given] 5. Villages (Neighbourhood Centres) [No examples given] 6. Small Villages (Local Convenience Centres) [No examples given] 7. Peripheral Sales (Bulky Goods Retailing) Centres [No examples given]
It can be noted that WLEP 2009 adopts the language of Neighbourhood Centre for the B1 zone (applicable to the Site) and the language of Local Centre for the B2 zone. WLEP 2009 does not use the language of "Local Convenience Centre" in its descriptions of the zones.
WDCP 2009 provides the characteristics of each of the seven retail centres in the hierarchy. The identified characteristics of Villages (Neighbourhood Centre) and Small Villages (Local Convenience Centres) are noted: "3.2.5 Villages (Neighbourhood Centres) (a) 2,000 - 5,000m² of retail floor space; (b) Approximately 5- 30 shops; (c) Approximate radius of 600 - 800 metres or a 5 - 10 minute walk between shops and surrounding residential population; (d) Generally served by a small to medium sized supermarket and or mixed business type shop, take away restaurant, bakery, butcher and some limited non-retail services including a hairdresser, video / entertainment hire outlet etc; and (e) Serves a population of up to 10,000 people. 3.2.6 Small Villages (Local Convenience Centres) (a) More than 20 small villages (local convenience centres) exist in the Wollongong LGA; (b) 100 - 2,000m2 of retail floor space with a catchment area of approximately 700 - 1,000 dwellings with a radius catchment of approximately 400 - 500 metres; (c) Generally includes small supermarket and / or mixed business and possibly a fruit and vegetable store, butcher, bakery etc; (d) Primarily provide for the daily convenience needs of the surrounding residential population for each suburb."
Notwithstanding the commonality of the language in WDCP 2009 and WLEP 2009 of "Neighbourhood Centres" there is no further reference to that level of retail centre in the hierarchy in WDCP 2009. The parties' focus was on the provisions relating to "Small Villages (Local Convenience Centres)". It is tolerably clear that the characteristics described in clause 3.2.6, Chapter B4 are the characteristics of the existing "Local Convenience Centres".

A small convenience centre;
With a small grocer and some mixed retail shops;
An activated interface with the riparian zone to the west;
An activated West Dapto Road frontage;
Street parking along (now known as) Raven Street;
Parking to the north of the site, generally not visible from West Dapto Road;
The built form performs a clear street defining urban function.

It must be noted that the reference to West Dapto Road does not anticipate that West Dapto Road will be upgraded to a four lane road with no parking along the frontage of the site. That has been a very recent decision of the Council to carry out that work.
The "concept design" in Figure 21 (Fig 21) referred to in the control is reproduced below:
This is the guide to the form which the village centre is to take. It is described as a concept design and neither party submitted that a development of the Site needed to take precisely the form in the concept design in Fig 21. It is necessary to point out some matters, both to identify elements of the concept and potential inconsistencies.
First, the elements of the concept:

Vehicular entry is from West Dapto Road and exit onto "Proposed Internal Road" (now Raven Street) with one way movement through the site;
Internal parking is along the western boundary facing the open space and to the north of the built form accommodating about 80 cars;
Retail development is along the eastern and southern boundaries;
The retail development consists of a supermarket of approximately 1250 sqm in area and 20 retail shops probably in excess of 1500 sqm in total area (total retail at least 2500 sqm and likely more);
There is a common entry/courtyard area in front of the supermarket and some of the retail shops;
The supermarket and shops address either the internal courtyard or West Dapto Road (or both in a few cases);
Pedestrian access is provided from the open space to the west (thence through the car park and driveway) and from West Dapto Road.

Second, the inconsistencies:

The concept plan in Fig 21 obviously does not take account of the upgrade of West Dapto Road, with no parking in front of the site, and the median strip along the centre line opposite Raven Street, so that there is no right hand turn into Raven Street from West Dapto Road, and, more importantly, no right hand turn out of Raven Street into West Dapto Road. The traffic movement anticipated by the concept plan cannot be implemented.
The concept plan provides for parking along West Dapto Road which is not possible and does not provide for activation of, or parking along, Raven Street which is expected.
The total amount of retail space to be provided is well in excess of the maximum anticipated in clause 3.2.6, Chapter B4 of WDCP 2009 (100 sqm to 2000 sqm).
The size of the supermarket is larger than a small supermarket, or grocer or convenience store or neighbourhood supermarket (see cl 5.4(7AA) WLEP 2009).

Each of these matters must lead to the conclusion that the conceptual design in Fig 21, and the non-prescriptive controls which preceded it, operate as a guide to development of the site, the essential elements of which are:

Parking to the west and north.
Retail/commercial uses to the east and south, with defining built form and to include a grocer/supermarket and mixed retail.
An active interface with the riparian/open space to the west.
The provision of communal space(s).
Activation of street frontages.
Pedestrian and cycle access from the open space/riparian area and from West Dapto Road and Raven Street.
Safe and convenient pedestrian and cycle access within the site.
Street parking along Raven Street.

Of course, although these are site-specific design guides, they are to be considered in the context of other relevant provisions of WDCP 2009, and subject to the provisions of WLEP 2009.
The Council also referred to earlier strategic documents as having some relevance in demonstrating the Council's commitment to the principles in WDCP 2009, and potentially to understand or explain the present controls. It is not necessary to refer to those documents, but I note that the West Dapto Vision 2018, Structure Plan 2018 and planning principles were incorporated into WDCP 2009 on 20 December 2018.
I will not set out the relevant provisions relating to the child care centre at this stage, because in any event there are consequences for that part of the proposed development having regard to my findings about the design of the principal parts of the development.

Expert evidence

Expert evidence was provided by experts in the following disciplines: Discipline Applicant Respondent Urban economics Mr M Hill Mr M Cullen Traffic Mr T Rogers Mr C McLaren Urban Design Mr S Blaxland Ms K Rintoul Planning Mr S O'Connor Ms J Sneyd Air quality Mr A Todoroski

Urban economics

Mr Hill is a land economist with significant experience in development feasibility and strategy. Mr Hill had prepared a short form feasibility study for retail development of the site (for the Applicant), based on what transpired to be an incorrect assumption about the number of dwellings the village centre would serve. Mr Cullen is an expert in town design and planning, including urban economics tied to urban design. Mr Cullen is the author of two reports to the Council, one in 2012 and one in 2014, which informed the later decisions of the Council which ultimately are manifest in WLEP 2009 and WDCP 2009. It is the fact, however, that not all of Mr Cullen's recommendations to the Council were adopted.
Mr Hill and Mr Cullen prepared a joint report and gave oral evidence. An initial observation should be made. Mr Hill's evidence was limited to his field of expertise. He expressly, and quite properly, declined, when invited, to comment on whether the proposal met the provisions of WDCP 2009. Mr Cullen's expertise does extend to urban design insofar as it relates to urban economics and town design. Some of his evidence was based upon his understanding of the effect of the planning regime, but particularly on what he understood to be the controls in WDCP 2009. The Council in its submissions relied to a degree on that aspect of his evidence, but I observe, without criticism, that I would give greater weight to the evidence of the planners and urban designers to the extent of that overlap. I do not discount Mr Cullen's evidence in that regard, but simply pose its place in the broader context of the expert evidence.
Mr Hill said that the Wongawilli village retail centre would not be the primary daily and weekly shopping source if the retail was limited to 600sqm as proposed. He said that primary daily and weekly shopping is more likely to occur at a larger supermarket in a nearby town centre with the secondary daily shopping occurring locally. Mr Hill said that the village centre could potentially support a retail area in the order of 1600 sqm. Earlier in their joint report Mr Hill said "I suggested size of 1,600 sqm of retail is more appropriate when the catchment is fully developed later in this decade". In oral evidence Mr Hill confirmed the latter statement but qualified it by saying: "That's correct, on the assumption that Metcash is taking 1,000 square metres." (Tcpt, 27 July 2021, p 127(1-2))
Mr Hill (and Mr Cullen) had made enquiries of the business known as Metcash, which is the owner of the supermarkets commonly known as IGA Supermarkets. Metcash had expressed interest in acquiring retail space in the order of 1000-1200 sqm for an IGA Supermarket. Mr Hill also said that Metcash would consider 600 sqm of retail space in which it could accommodate a smaller supermarket and a liquor store and administration area. There is some interest in Metcash "bookending" a McDonald's restaurant so as to take advantage of the potentially broader catchment area of McDonald's. Mr Hill added that it is also possible that a 300 sqm smaller supermarket similar to IGA Parkside would allow additional retail offerings and would also be attractive to a retailer of convenience products.
Mr Hill was clear that the amount of retail space shown in Fig 21 in WDCP 2009 was not a viable proposition economically. He also opined that there are opportunities in the future for further retail space in the area presently proposed for the child care centre and parking. He agreed with the obvious proposition that the larger a supermarket is the greater range of goods it could make available. He opined, however, that the village centre would never be the facility for the weekly shopping, or for the widest range of goods, but that it was a secondary shopping destination.
Mr Cullen said that the dominance of the McDonald's on the site relegates the site's desired role as a village centre from primary to subservient. He opined that the McDonald's restaurant and drive through prevented the opportunity to provide an appropriate amount of retail space to achieve the objectives of the planning controls and strategies. Mr Cullen's understanding from his communications with Metcash was that a 600 sqm area was insufficient for their purposes. The key point of Mr Cullen's opinion was expressed at par 2.8 of their joint report: "The core issue for this site is the displacement of the role and capacity of the Village Centre cause by McDonald's domination of the site. The smaller retail offer, even if feasible under the McDonald's plan (in my view it's not) requires adjustments and compromise to store location, servicing regimes, exposure, scale of offer, urban amenity and interfaces. If one accepts that a smaller centre can still occur under the current plan (I don't) then it meaningfully "detracts from shopper convenience and choice objectives". At present in front of us in the McDonald's plan is four shops in a partially access-denied street."
In his oral evidence Mr Cullen expressed much the same proposition in this way: "GALASSO: In your evidence you say to the Commissioner that what's before the Court is not consistent with the DCP, but it's the case, is it not, that the McDonald's component of what's before the Court is, as a matter of use categorisation, in your modelling, both restaurant and take-away; is it not? WITNESS CULLEN: Yeah, so are you asking me to say that McDonald's would be an acceptable occupier of a village centre in this area; is that what you're asking? GALASSO: Not really, but you may as well tell us if you want to tell us. WITNESS CULLEN: Okay. So I don't have any issue with McDonald's if they wanted to take, you know, tenancy of this size, providing we can serve the needs of people who live and work in the surrounding neighbourhoods appropriately. So at the moment in front of us, and this is a consequence of the proposition put by McDonald's, is we have a neighbourhood retail component of 600 square metres on a site that's 7,591 square metres in size, and so what we have is a predominance of a use in the restaurant and take-away category that's taken away the opportunity for the centre to serve the needs of people who live and work in surrounding neighbourhoods. That's the problem I have." (Tcpt 27 July 2021 p 144 (25-45)
Mr Cullen agreed with Mr Hill that with a retail offer limited to 600 sqm the village centre would not be the primary daily and weekly shopping source but that would occur at a larger supermarket in a nearby town centre. When asked about the capacity of a 300 sqm supermarket to provide for the day-to-day needs of people who live or work in the area, Mr Cullen said: "Not to the extent required by the DCP and the LEP." (Tcpt 27 July 2021 p 160(1))
Mr Cullen did assert that the village centre could sustain 2500 sqm of retail space (anticipated in Fig 21) which he said is supported by strategic planning documents and studies. Mr Cullen was specifically critical of the interface with West Dapto Road, the lack of activation of the proposed plaza because of its relationship with McDonald's drive through, and the plaza's relationship to the rear of the retail shops on Raven Street.

Traffic

In the traffic report by Mr Rogers of May 2021 at p 7 he set out the parking demand for the proposed development as 82 spaces calculated as follows: McDonald's 37 Child care centre 25 Retail 24 Sub-total 86 5% reduction for shared use -4 Parking spaces required 82

The parking demand was calculated in accordance with Council and Transport NSW guidelines. The "shared use" reduction is because the carpark is largely a shared facility with potentially differing peak demands and there is unlikely to be a simultaneous peak demand for all the required parking by each development. Mr McLaren agreed that the figures were a correct application of the various guidelines but preferred not to apply the shared use reduction to the child care centre parking. That is, he said one additional space should be allocated to the child care centre so it had its total allocation of 25 spaces. Mr Rogers did not demur to that suggestion.
Mr McLaren made observations in the joint report about the layout of the communal space in Fig 21 and how that is not reflected in the proposal. Although perhaps straying outside the discipline of a traffic engineer Mr McLaren said that he is a traffic planner and he cannot ignore the layout suggested by Fig 21 in WDCP 2009. Mr McLaren did accept that Fig 21 was not a layout with all necessary detail as there was no loading area shown and also that to provide a turning area at the northern end of the car park some adjustment to the building or the courtyard shown on Fig 21 would be required.
In relation to the proposed pathway between the child care centre parking and the larger area, Mr McLaren described it in the following terms: "It's a raised platform that has priority to pedestrians, so it's actually - it's more than just a speed hump, it's actually quite a good device for managing traffic at the interface with pedestrians, yeah." Tcpt 27 July 2021 p 97(17-19)
Mr McLaren is of the opinion that the available parking on Raven Street ought be counted as parking available for the retail component of the development and that therefore on-site parking could be reduced by 9 spaces, he said in the joint report, but by 5 spaces he said in his oral evidence. Mr McLaren suggested that the area taken by 5 spaces could be applied to assist in pedestrian management. Mr Rogers acknowledged that reduction could be made if Council accepted that parking on Raven Street could be counted as parking spaces available for the development, although he did not promote that position.
Mr Rogers was cross-examined about the likely number of patrons of McDonald's to use the drive through as distinct from entering the restaurant itself. He had assumed it was about 50% based in his work in the past for McDonald's, but based principally on the Transport NSW publications including more recent work carried out for Transport NSW by Bizios Traffic Consulting. That work included examination of use of drive through facilities at fast food establishments including McDonald's. The assumption of 50% drive through patrons founded the calculation of parking spaces required. He accepted the obvious proposition that if the percentage of drive through patrons was at 70% rather than 50% then the amount of on-site parking required would be reduced.
Mr Rogers was satisfied with the various pedestrian paths available throughout the development, although he accepted in his oral evidence that whilst the most direct paths of travel were sufficiently safe, there were also more safe, but less direct, routes available.

Urban design

Each of Mr Blaxland (retained by the Applicant) and Ms Rintoul (employed by the Council as Coordinator Strategic Planning) is an experienced urban designer. Whilst qualified and registered as an architect Mr Blaxland has broad experience in strategic and master planning and design. Mr Blaxland was retained for the purposes of the proceedings and had no role in the preparation of the DA or its subsequent amendment prior to the hearing. Ms Rintoul has qualifications in architecture as well as Urban Policy and Strategy, with significant urban design experience including the last 4 years at the Council.
The urban design experts prepared a joint report, a supplementary joint report and gave oral evidence. It is necessary to set out the evidence about the major aspects of the proposal but the competing general positions are worthy of note.
Mr Blaxland said at p 4 of the first joint report: "While car access and parking are important the current proposal is a balanced result achieving pedestrian connectivity throughout the development and a social hub in the form of the plaza providing social interaction and community engagement."
Ms Rintoul said at p 5 of the first joint report: "... the poor design of these [pedestrian] connections and the public domain surrounding them, as well as the internal arrangement and design of connections through the site does not encourage walking and community interaction."
And at p 5 of the supplementary joint report: "… this development proposal does not establish an urban character for the Wongawilli Village Centre that has been shaped by the community's vision or the context …."
Ms Rintoul accepted that the "community's vision" is that expressed in the relevant planning documents, and her quote above in italics referenced the way in which a contention had been framed.
The essence of Ms Rintoul's expectation for the site having regard to the planning controls is also reflected in the following extract from p 10 of the first joint report: "The urban design of the village should connect with surrounding active transport networks and facilitate easy and safe pedestrian movement and gathering. The proposed development does not connect adequately with either of the active transport networks. More significantly, the dominance of vehicle movement and parking within the site does not facilitate pedestrian movement in alignment with desire lines, or the creation of spaces where social interaction is likely to occur. The village site should be planned to offer: - Spaces to gather, meet and connect that are safe, enjoyable and accessible - Connectivity with the surrounding active transport networks - An appropriate relationship between the offers (commercial premises and services) and the public domain."
Ms Rintoul was very critical of the process by which the design was created. She said that proper urban design involves site analysis and then a conclusion as to what form of development is possible. The present proposal she said is an attempt to "retrofit" a McDonald's development to the site and does not represent the conclusion of a proper urban design process.
Whilst it can be accepted that the design process began with the client requirement for a McDonald's restaurant and drive through facility to be provided, and therefore the design before the Court is if its form as a consequence of that approach, it is the Court's role to consider whether what is before it is appropriate rather than focus on whether the ideal process was followed or respected to create the proposal. It is probably right also to assume that there are developments, particularly those commercial in nature, which demand a particular form and where the question for the designer is whether the form of the development can be accommodated on site, rather than commencing the design process with the proverbial clean slate.
In so saying I make no criticism of Ms Rintoul because it can frequently be the case that the "retrofit" approach results in an unsatisfactory form of development, but I make the observation as a recognition of the task which the Court undertakes.

Open space/riparian zone interface

The proposal was amended so that along the interface with the carpark there is the footpath in the public domain, the low retaining wall, then moving within the site, landscaping, an internal footpath and then the parking area. Insofar as that arrangement is concerned there is no issue from Ms Rintoul. The fencing previously provided is no longer part of the DA. Ms Rintoul would prefer some "planted blisters" in place of car parks along the boundary creating spaces for "people to dwell where I can stand under the shade of a tree, taking the view.. get my kids in order before I pop them in the car …. rather than just straight run of car parks" (Tcpt 27 July 2021 p 176 (35-39)).
Ms Rintoul was critical of the access from the open space at the boundary of the car park and the child care centre at its western end and the communal open space provided. The access is by ramp which commences at the north/south internal boundary, travels about 15m then turns 180 degrees for the same distance, then provides for a 90 degree turn into the communal space. The communal space is immediately adjacent to the child care centre and operates as a thoroughfare as well as seats and bicycle racks. It is shaded by the child care centre and views to the escarpment are partially obscured.
Mr Blaxland says that the entrance from the riparian zone is obvious and provides safe walkability and community interaction. He says that there will still be some solar access to the communal area and it will have escarpment views to the west, albeit not to the north.

The plaza

Ms Rintoul says that the plaza is not central to the development but crammed between the rear of the commercial/retail spaces and the McDonald's drive through with an acoustic wall to its west. She says it is largely deprived of views to the escarpment and has poor amenity. There is no direct access from the McDonald's to the plaza. Mr Blaxland regards the plaza as a real opportunity for community interaction and will still enjoy some escarpment outlook and will benefit from the direct access to and from the retail offerings.

Dapto West Road

The criticism of the West Dapto Road frontage is what is said to be the lack of activation and the failure to provide a building form which will define the street edge. At the eastern end there is the retail/commercial building, then moving west its pedestrian entry and the plaza. There is then a landscape strip adjacent to the drive through single driveway for McDonald's and the McDonald's building with some window openings and a single door entry to its western end, before the principal vehicular entry, with a pedestrian entry and an area for landscaping in the south western corner of the site.
There was some debate about whether there was a ramp access to the plaza from West Dapto Road and whilst it is probably shown on the plan there is a condition proposed to ensure that a ramp is provided.
Ms Rintoul says that the setback of the building caused largely by the drive through lane means that the urban street defining objective is not met and that there is no real activation of a principal frontage. (In submissions the Council accepted that activation of the West Dapto Road frontage was less important than activation of the Raven Street frontage having regard to the impending widening of West Dapto Road without the capacity for parking.)
Mr Blaxland opined that there was some activity evident on the West Dapto Road frontage and given the nature of that road it was sufficiently activated. It was also difficult he said to activate both sides of a development such as a supermarket and the priority here is to be the activation of the boundary with the riparian zone. The street definition was sufficiently achieved by the presence of the buildings.

Raven Street frontage

It is agreed that there is activation of Raven Street and the criticism of Mr Rintoul was more particularly directed to the presentation of the child care centre. It is not necessary to deal with that aspect at present.

The "village outcome"

In response to a contention relating to the objects of the EP&A Act the experts agreed in the first joint report (at p 9) that: "We would like to see a mix of tenancy sizes and responding built form in order to deliver a small grocer and several specialty stores, to enable the daily needs of the community to be met. The floor area of these tenancies should be flexible in order to deliver tenancies appropriate for use and reflect a variety of retail offerings."
They disagreed as to whether the proposal thwarts that objective. They also recognised that there are commercial considerations overlapping with urban design considerations in terms of sizes of supermarkets and the like.

Planning

In a sense the planners largely reflected a gathering of the evidence of the other disciplines with additional commentary on the zone objectives, the detail of the child care centre and the proposed signage.
Mr O'Connor and Ms Sneyd provided a joint report and gave some oral evidence.
Mr O'Connor described the proposed development to be small-scale and believes it would serve the needs of the people who live or work in the surrounding neighbourhood. He relied upon the floor space being provided compared to Fig 21 of WDCP 2009 and a similar comparison to the volume of business, relating it to parking provision and traffic movement. He says that McDonald's will add to the activity and vitality of the centre and that some of the McDonald's customers are likely to frequent the other land uses and vice versa.
Ms Sneyd said that the McDonald's restaurant is the central and dominant use within the site and the area dedicated to the 4 retail/commercial tenancies is subordinate. The built form, drive through facility and extent of use means that the McDonald's is not small-scale she says. Ms Sneyd opined that McDonald's will not actively contribute to the proposed village centre and by its design prevent the development of a village centre as envisaged by the WLEP 2009 and WDCP 2009.
Ms Sneyd in cross-examination accepted that the planning controls did not prescribe any proportion or proportionate relationship between proposed uses.
I will not set out the matters of detail relating to the child care centre or its signage. As to signage for McDonald's there was agreement that the pylon sign should be reduced in height by 1 metre.

Air quality

Mr A Todoroski is an air quality engineer who gave a statement of evidence on a contention relating to greenhouse gas emissions. The Council did not call any expert evidence in support of its contention. Whilst the specific contention is Contention 2A 2.12, that contention needs to be put in context with Contentions 2A 2.10 and 2A 2.11: "2.10 The Wongawilli Village Centre, if developed in accordance with the D16 vision, is likely to be the primary source of daily and weekly shopping for emerging and fast-growing growth cells in and around Shone Avenue, Wongawilli, West Dapto Road and Sheaffes Road for many years. 2.11 The loss of this role to existing and future residents of these areas will result in the average one-way trip distance for everyday items expanding from around 500-700 metres to 4 kilometres, with no possibility of walking and reduced likelihood of cycling. 2.12 In terms of Co2 emissions, the loss of the centre would generate an additional 207 tonnes of Co2 for the assumed 1,626 catchment households (236 tonnes v 29 tonnes, assuming an average size light vehicle). With the Darkes Road Town Centre in operation and no Wongawilli Village offering convenient shopping, emissions would reduce to around 90 additional tonnes."
It is necessary only to go to Mr Todoroski's conclusion at pars 24-26 of his statement: "24. In my opinion [the] contention … is not valid as it is based on speculation about a situation that does not exist, is not proposed and may never exist, irrespective of the proposal at hand. The values presented are based on limited selective data and appear to be exaggerated. The values are also meaningless in the absence of a complete GHG assessment, and this no reliance should be placed on them. 25. Importantly, the contention overlooks the simple fact that the proposal will provide local shopping, childcare and a McDonald's offering, and this will reduce GHG emissions from household travel from the catchment for these items, relative to not building the proposal. 26. I thus conclude that the only certain outcome is that if the proposal is approved and commences to operate, then the opposite of what the contention claims would arise in terms of GHG emissions."
No evidence was led by the Council to counter the evidence of Mr Todoroski.

Submissions

It is not intending to do a disservice to the helpful submissions of the parties, who supplemented comprehensive written submissions with oral submissions, to indicate that each counsel relied upon the evidence from their own witnesses (for the most part) and so I summarise the additional or contextual arguments they otherwise made.

Applicant's submissions

The Applicant first addressed Contention 1 - that the proposal was inconsistent with the objectives of the B1 zone. The Applicant pointed out that the contention misstated the task for the Court which was not to find consistency but to have regard to the objectives of the zone pursuant to cl 2.3 WLEP 2009. It emphasised that the proposed uses were permissible with development consent and that the objectives of a zone should be construed so as to promote the presumption that development that is permissible will be compatible with the objectives of the zone, citing BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 and Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 at [62] - [64].
There is no definition of "small-scale" in WLEP 2009 the Applicant submitted and therefore is a subjective matter for consideration. The Applicant relies on Mr O'Connor's evidence recited above.
The Applicant said that the proposal will serve the needs of people who live or work in the surrounding neighbourhood through the provision of a food and drink premises, a child care centre and 4 commercial tenancies, a capacity the Applicant submitted accepted by Ms Sneyd, the Council's planner. The uses may also serve those outside the surrounding neighbourhood the Applicant said, citing in support Kim v City of Ryde Council [2020] NSWLEC 1340 and it is not necessary that the development of the site must satisfy all the needs of the people who live or work in the neighbourhood.
Thus, the first objective is satisfied the Applicant submitted, and it is wrong to use the terms of WDCP 2009 as the manifestation of the objective. In any event, the Applicant said that insofar as Fig 21 is concerned the proposal is by comparison small-scale. The second objective is self-evidently satisfied the Applicant said, so that the Court in having regard to the zone objectives ought conclude that the proposal is consistent with the objectives of the zone.
The Applicant then made submissions on the broad subject of urban design response and delivery of a village centre, by reference to WDCP 2009. The Applicant submitted that the proposal met the general controls for West Dapto Village Centres at in WDCP 2009. The site specific controls it said are not prescriptive but provide guidance. The "control" to provide a "small convenience centre with a small grocer and some mixed retail shops" can be accommodated by the provision of 600sqm of retail/commercial space. The "control" the Applicant submitted must be read in the context of the permissible uses in WLEP 2009, exposing a contradiction between them - the permissibility of "commercial premises" but one example where the uses can be other than "small grocer" and "mixed retail shops". "Food and drink premises" are one of the types of commercial premises which are permissible.
The Applicant pointed to certain complexities presented by the site - its shape and location and said notwithstanding those complexities the proposal delivers an appropriate village centre to the site. It is a centre with integrated uses the Applicant submitted and is a preferred outcome to the Fig 21 concept design. It says that "active transport" has more to do with external access than internal access and that there is clear accessibility from outside the site and well-articulated internal pathways. The development the Applicant submits seeks to create an attractive location and provides infrastructure to encourage walking and cycling.
In relation to the potential for retail offerings the Applicant submitted that IGA Parkside was an example of how 300sqm of retail space can accommodate a supermarket to cater for the daily needs of residents and workers and that it is not necessary that all of the daily needs must be provided by the centre. With the potential for rearrangement of the retail space the Applicant submitted that a small grocer and other retail or services can be provided or indeed a larger supermarket with liquor store.
In relation to traffic the Applicant submitted that it was not necessary to reduce the on-site parking, but it was within the power of the Court to do so.

Council's submissions

The Council's over-arching submission is in the following terms: "..a primary desired outcome for villages such as Wongawilli is the creation of spaces that will attract local residents by providing a range of small-scale uses that are focused on serving day to day needs, and where the spaces are designed to foster social connection by the complementary commercial offerings, by facilitating easy and pleasant walking or cycling to the village particularly through the movement network in the adjacent riparian area, and by providing communal spaces that are attractive and relate to the adjoining environment." Council's Written Submissions (CWS) par 5
The proposed scale, combination and design of the uses will defeat the achievement of the outcomes sought for Wongawilli Village, the Council submitted. It will not deliver the range of small-scale complementary uses, or the communal spaces that are well-connected for movement, to attract the local community to visit the centre, the Council says. Rather it will be a heavily car dependent destination dominated by the fast-food and child care uses, with a left-over neighbourhood retail offering.
The location of McDonald's on what will become a major connector road means that it will be very attractive to passing traffic and the village centre will become a car-centric destination for passing traffic as well as a trip generator itself. The number of trips will be in excess of the estimate by Mr Rogers, it was submitted, because the surveys underpinning the conclusions do not provide a comparable measure. The more likely use of the drive through was up to 70%, a percentage consistent with an internal forecast by McDonald's it was said.
The Council submitted that Mr Rogers' evidence that pedestrian paths are provided "where practical" highlights that priority is given to vehicle movements and does not promote priority as sought by WDCP 2009.
The Council submitted that Mr Hill accepted that Wongawilli can support at least 1600 sqm of retail space, so that the village is viable in economic terms and the core issue is whether the McDonald's proposal sufficiently justifies a departure from WDCP 2009 in terms of the intended village. Mr Hill's evidence that a retail offer limited to 600 sqm will not be your primary daily and weekly shopping source is correct the Council submitted, and that emphasises the inferior comparison of the proposal to the design in Figure 21 WDCP 2009.
The current proposal removes the potential for the village centre at the requisite scale and even a 600 sqm supermarket would not fulfill the first objective of the B1 zone. The centre as proposed will have as its dominant use a store with a regional catchment or trade area that extends far beyond Wongawilli and comprise some 26,000 people whereas the intended role of the village centre is to serve the surrounding catchment of about 5,000 people. Less than one sixth of the McDonald's catchment it is said would be people who live and work in the surrounding neighbourhood.
The extent of land needed to accommodate the McDonald's building and the drive through, the Council submitted, compromises the ability to provide the overall amount of other tenancy space and limits the range of different tenancies that can be provided.
The plaza is compromised by the drive through and noise from West Dapto Road and the view of the escarpment is partially obscured, it was submitted. The Council evidence as to the shortcomings of the westerly communal area were highlighted, as was the lack of activation of the West Dapto Road frontage. The drive through creates a hostile environment for pedestrians who will not be encouraged to enter the village centre from that part of West Dapto Road.
The Council urged acceptance of Ms Sneyd's evidence about the unlikelihood of "cross-shopping", given, she said, McDonald's will be a destination use. The need for "small-scale" to meet needs of residents should be understood to encompass the need for social interaction and community-building. Whilst consistency with the objectives of a zone is not a jurisdictional requirement, inconsistency weighs heavily against the grant of consent.
The Council submitted that the general controls apply as well as the site specific controls, and the controls are not to be ignored simply because they are not prescriptive. The Planning Principles must be given significant weight it was said, particularly in relation to Active Transport and Town Centres. The proposal does not meet the controls nor the objectives of the controls, the Council submitted.
The Council made submissions in relation to the health concerns expressed in some submissions from the public. Whilst expressly disavowing that the health effects from the consumption of fast food is itself a planning consideration, nor that it objects to McDonald's per se, it submitted that the concerns of objectors about healthy food is a planning consideration both as an aspect of social impact and of the public interest (subss 4.15(1)(b) and s 4.15(1)(e) of the EP&A Act). It submitted that the Court should have regard to the "extensive and consistent expressions of concern about health outcomes in the objector evidence… [and] Significant weight should be given to this evidence" because it has a scientific basis (CWR par 140). The concerns are said to be specific, concrete, likely effects of the proposal, citing New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] - [63].
The Council also submitted that the public interest embraced the community expectation reflected in and engendered by the planning controls.

Consideration

I will deal with the issues in the following order:

Objectives of the B1 zone.
The provision of parking.
Urban design and economics in the context of WLEP 2009, WDCP 2009 and strategic planning.

Objectives of the B1 Neighbourhood Centre zone

For convenience I repeat the first objective of the B1 zone: • 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.
I should also note once more that the obligation under cl 2.3 of WLEP 2009 is to have regard to the objectives of the zone, not to search for consistency. The Council did submit that a finding of inconsistency would militate against the grant of development consent. Whilst that is a persuasive submission, my observation about the submission does not result in the search for consistency or inconsistency.
The uses identified in the objective - retail, business and community uses - embrace the uses which are permissible with development consent in the zoning table. There are a vast range of permissible uses and there is no basis to limit the types of uses referred to in the objective in any way. The phrase "retail, business and community uses" must encompass all of the permissible (non-residential) uses and any one of the permissible uses is assumed, in one form or another, to be compatible with the objectives of the zone (Jeffrey [61]-[63]).
The uses proposed are therefore within the uses identified in the first objective, being food and drink premises, retail/commercial uses and child care centre. They are uses which are retail, business or community uses, and subject to design and impacts can be acceptable land uses in the zone.
The objective seeks a "range" of such uses, that is, there ought not be a single type of use within the B1 zone. Here there are 3 distinct types of use proposed - food and drink premises, retail/commercial uses and child care centre. Within the retail/commercial space alone there is the likelihood of a variety of uses.
In my opinion what is proposed constitutes a variety of uses in the B1 zone.
There is no issue that the uses in principle (putting design to one side) can serve the needs of people who live or work in the surrounding neighbourhood. The "surrounding neighbourhood" is not defined but can be taken to be the surrounding area within an easy walk, cycle or short drive. It is not in its terms limited to the village of Wongawilli itself as the drafter did not adopt the form of language limiting the operation of the objective to the village within which the B1 zoned land falls.
Those who live or work in the surrounding neighbourhood includes people who have a need for food and drink premises and for child care. Although the final use of the retail/commercial space is presently undefined, it is accepted by the parties that the ultimate uses are capable of serving the needs of the surrounding neighbourhood. Two observations can be made in that regard. First, common sense suggests that it is commercially very unwise to seek to carry out a retail or commercial use in this location which does not include serving the needs of the surrounding neighbourhood. Second, if development consent is granted to the DA then it is proposed by the imposition of a condition that the actual use is to be the subject of a development application to the Council who will then be required to have regard to the zone objective in determining that development application.
It is not a shortcoming of the DA that the ultimate users and uses of the retail/commercial space have not been identified. Having regard to the objectives of the zone I am satisfied that the retail/commercial space is capable of supporting uses which meet the needs of workers and residents in the surrounding neighbourhood and that the Council will have the capacity to be satisfied as such, to the extent that it considers appropriate, when it considers the development applications for the use of the space.
I also accept that the proposed uses are not required to exclusively serve the surrounding neighbourhood (see e.g. Kim v City of Ryde [2020] NSWLEC 1340 at [39]). And I do not accept that the users of McDonald's from outside the surrounding neighbourhood will overwhelm the users from within such that it becomes the dominant purpose (if that be relevant). The Council submission that the regional catchment of the McDonald's will be some 26,000 people compared to 5,000 people in the surrounding neighbourhood is misplaced. That was not the evidence of Mr Cullen. His evidence was that in NSW the average catchment was 26,000 people, he did not opine a regional catchment for this proposed McDonald's. It would be difficult to conclude it was an accurate estimate for this site in any event, given the closeness of the facility at Dapto on the Princes Highway, a drive some 10 minutes away.
Even with the widening of West Dapto Road, that road will carry much less traffic than major roads, and some of that traffic will in any event be people who live or work in the surrounding neighbourhood of the site. On the evidence I do not conclude that the use from people outside of those who live and work in the surrounding neighbourhood will be overwhelming such that it can be said that the proposal does not serve the needs of those who live and work in the surrounding neighbourhood.
There remains the question as to whether the proposed uses are "small-scale". The Council submits that the phrase "small-scale" adds a subtlety to the objective in that the needs to be met can "be understood to encompass the need for social interaction and community building". In my view there is no warrant to import such a concept or add a gloss to the plain and simple words of the objective. Small-scale means what it says, no more and no less. The notion of scale does include size and intensity of use I do accept. Whilst being of small-scale may have as a consequence a tendency to encourage or facilitate social interaction and community building, it is not the consequence which is the subject of the enquiry, but the terms of the objective itself.
There is no definition of "small-scale" in WLEP 2009. It is a phrase which will simply have its ordinary meaning. In divining that meaning it is first to be noticed that "small" is a term of comparison. Something is small when it is compared to something else - often used in conjunction with the other classic comparative words, medium and large. Those words of themselves provide little assistance in construing "small" in this context.
In construing "small-scale" other than in its context, much would depend on the proposed use. For example, an entertainment facility in Wongawilli may be small compared to the entertainment facility at Darling Harbour in Sydney, but comprise a large building compared to a boarding house or a commercial office in Wongawilli. That simply demonstrates that that sort of comparative exercise is not useful. The meaning must be considered in its context.
In construing the term "small-scale", I have referred to the following indicia which assist: 1. The area of the land zoned B1 Neighbourhood Centre. The size of the zoned land operates as a constraint in itself - it limits the size, and potentially the intensity of development. That is, if a "range of uses", including the parking demand generated can be accommodated within the B1 zone then that is an indication that the uses proposed are "small-scale". I note that the area of the B1 land in Wongawilli is smaller than the B2 zoned land nearby in Darkes Road and Horsley. The equivalent objective of the B2 zone does not include the phrase "small-scale", reinforcing the notion that the area of the B1 land itself is a limitation on development leading to the capacity to only cater to "small-scale" uses. 2. The location of the B1 land is relevant too. The B1 land is obviously within a road network and almost invariably very near to residential uses. That proximity will also act as a constraint on the size and intensity of a development. If the impacts of a development are unreasonable because of the proximity to residential uses then it is likely that the size of the proposed development is too large and/or the intensity is too great - it is not "small-scale". Also, a typical measure of intensity of development is traffic generation - the greater the intensity of retail/commercial/community uses then the greater the traffic generated. If the road network can accommodate the traffic generated by a proposed development then that can be an indicator of "small-scale". 3. The permissible uses are another indication - what do those uses anticipate in terms of scale (size and intensity). Uses such as a registered club, an entertainment facility, hotel or motel accommodation, indoor recreation facilities, place of public worship, must be expected to have a size and intensity of use of some significance, even at their minimum size.
I have already noted cl 5.4 WLEP 2009 which limits the sizes of the nominated permissible uses of neighbourhood shops and neighbourhood supermarket to 100 sqm and 1000 sqm respectively. If those uses were the only retail uses permissible then it may be a textual indication of the meaning of "small-scale" in this context. However, given the range of permissible uses including shops and supermarkets without limitation I do not place any material weight on cl 5.4 for this purpose.
In terms of the comparative tools which are available within WLEP 2009 I conclude that having regard to the first objective of Zone B1 that I would not refuse the DA on the basis that it is not small scale for the following reasons: 1. The uses and their parking are accommodated by the site. 2. The road network has ample capacity to cater for the traffic generated by the proposed uses. 3. There are no unreasonable impacts generally or on the nearby residences. 4. The uses are permissible within the zone and of a size and intensity comparable to other permissible uses, particularly the ones I have referred to above. By way of further example, an indoor recreation facility is defined to include an indoor swimming pool and also a bowling alley. There is no evidence that the number of traffic movements will exceed in any significant way what can be expected from the other uses I have indicated as examples. 5. In terms of duration of the use it is true, as submitted by the Council, that McDonald's proposed hours of operation will exceed by an hour or two at the beginning and end of a day the hours of other retail or shop size food offerings, it is comparable, however, in hours of operation to an indoor recreation centre or an entertainment facility by way of example.
I conclude therefore that having regard to the first objective of the B1 zone the proposal should not be refused.
In my view it does not matter that the child care centre is both within the B1 zone and the R2 zone, it being permissible in both zones. The uses solely in the business zones and their impacts are contained within the B2 zone.
The relevance of the second objective is to the activation of the ground floor of a development - "maintain active retail, business or other non-residential uses at the street level".
There is no doubt that the proposal maintains active uses at street level. The objective simply seeks that the uses be active and does not purport to prescribe the degree of activation at street level. The degree of activation is the subject of cl 7.13 WLEP 2009 with which the proposal complies. There is at least one entrance and another door or window on each street frontage. It is difficult to perceive that the proposal fails the objective in the zone when it complies with the clause in WLEP 2009 which deals with that very subject matter.
I also find, as explained later in these reasons, that in urban design terms the activation of street frontages is acceptable. Having regard to the second objective of the B1 zone the proposal should not be refused.
I do not accept therefore the Council contention and submission that having regard to the objectives of the B1 zone the DA should be refused.

Traffic and Parking

I accept the common position that parking for the development is available on Raven Street for up to 9 vehicles. I agree with Mr McLaren that that available parking should be taken into account in the overall provision of parking for the development. It is common sense to accept that some parking will occur on Raven Street in any event without any unreasonable impact on the residential development on Raven Street or elsewhere. Although the proposed median strip on West Dapto Road limits access to Raven Street to left in and left out, that will still be a convenient access for many users of the neighbourhood centre, for example, those heading east from Wongawilli for Dapto or elsewhere. Some patrons of the centre may prefer to park in Raven Street and then return west through the car park rather than actually parking in the car park itself.
It is sensible therefore in my opinion to reduce the amount of parking within the site itself which is an opportunity to provide an improved urban design of the site.
I reject the Council submission that the percentage of drive through patrons is underestimated. Mr Rogers' conclusion is based upon the published research from Transport (NSW) (and/or its predecessors) and includes analyses of drive through facilities attached to fast food venues, including McDonald's. There is no reason not to accept that evidence. Mr McLaren did not provide alternate evidence to suggest a different percentage of drive through customers but posed questions as to the reliability of Mr Rogers' conclusion. I am satisfied his conclusion is well founded. (Mr Rogers though did not count the parking on Raven Street in calculating the number of spaces to be provided on the site to meet the demand.)
It should also not be forgotten that some McDonald's customers will also be availing themselves of other facilities within the neighbourhood centre and so less inclined to use the drive through facility. It is likely that the survey included mostly stand-alone facilities (because that is typical) and therefore there could be a slight overstatement of the drive through component of customers where the food premises are part of a neighbourhood centre.
The internal McDonald's estimate of 70% of McDonald's patrons will use the drive through facility cannot be relied upon. First it was said in the context of the initial form of the development proposed which then included a 24-hour service station and McDonald's operating for 24 hours a day. It would be speculation to assume or conclude that the percentage estimate in that circumstance can be applied to the present development as proposed. Second, there is no identified basis for that percentage suggested nor any understanding of the qualities and experience of the author. I prefer to rely on Mr Rogers' evidence.
It follows that there is capacity within the design of the development to reduce the number of car parking spaces. It should also be noted that the traffic experts accept that the road network has the capacity to cater for the traffic generated by the proposed development. The DA was referred by the Council to Transport NSW from whom there is no objection.

WDCP 2009, Urban Design and Planning

WDCP 2009 is a focal point of the assessment of the DA. Its role is to serve WLEP 2009 and not to derogate from it.
The task is to identify what are the relevant controls and objectives of WDCP 2009 and determine whether the proposal meets them, or if not whether the departure is such that consent should be refused.
The consideration involves an overlap of the disciplines of urban design, town planning and urban economics. I have set out at length the various provisions of WDCP 2009 earlier and will not repeat here unless absolutely necessary.
The overall structure of WDCP 2009 is that Chapter B4 relates to development in business zones, including B1, which is effectively a stand alone chapter which applies to business zones in the whole of the Wollongong local government area. It is stated that any locality based controls override the controls in Chapter B4 to the extent of the inconsistency.
Section 3 sets out the retail hierarchy and includes the characteristics of small villages (local convenience centres) to be:

100-2000 sqm of retail floor space;
Generally includes small supermarket and/or mixed business and possibly other retail;
Primarily provides for the daily convenience needs of the surrounding residential population.

Clause 3.7 of Chapter B4 WDCP 2009 speaks of requiring "any new retail development within any of the village centres shall be limited …. provide for the daily convenience needs of the surrounding residential community."
Chapter D1 of WDCP 2009 concerning desired future character uses slightly different language: "The village will include a small local convenience centre on West Dapto Road, which will provide for the convenience needs of the surrounding population."
The desired future character speaks not of "daily" convenience needs, just convenience needs, and for the surrounding population, not the surrounding residential community.
Chapter D16 WDCP 2009 provides for development in the West Dapto Release Area. It provides principles for development, a similar but not identical retail hierarchy to that in Chapter 3, general village centre controls and a specific "control" for the B1 land in Wongawilli. The Chapter was drafted specifically for the West Dapto Release area as an emerging residential area for which the Council developed specific and particular objectives and controls.
It seems to me that the proper consideration of WDCP 2009 is to give greater weight to the site specific and locality controls or objectives, which are intended, it must be assumed, to facilitate the achievement of, or at least be consistent with, the earlier more general controls, objectives and principles in the chapter dealing with the West Dapto Release Area. When the local controls are lacking or are ambiguous, greater consideration or weight is to be given to the more general controls, objectives and principles.
At [133] - [141] I analysed by comparison the controls and the guide to the development of the site in Fig 21 and identified the elements of development of the site which I consider the local controls seek to achieve. In my opinion those elements are consistent with the relevant provisions of Chapter B4 clause 3.7 WDCP 2009. A couple of points should be noted.
The provision of a "small supermarket" (clause 3.7 see [110]) is consistent with the required element to "include a grocer/supermarket and mixed retail".
Clause 3.7.4, Chapter B4 WDCP 2009 (see [110]) is focussed on as an important objective of development of the site. It says: "Any new retail development within any of the village centre shall be limited to retailing activities and services which provide for the daily convenience needs of the surrounding residential community, especially healthy food and grocery retailing. This may include small supermarkets / retail grocery stores, butcher shops, fruit and vegetable retailers, bakeries, newsagents, hairdressing salons, dry cleaning shops etc."
Two observations about this should be made. First, in its terms the provision relates to new retail development and endeavours to limit its scope to providing daily convenience needs. The food and drink premises (McDonald's) is not a new retail development, rather the retail/commercial space is intended to fulfill that role of providing convenience needs. Second, WDCP 2009 cannot be read so as to prohibit development other than retail development in the B1 zone. The clause does not affect or change the elements of the desired development I have set out at [141] - the retail component is to be included, but not other permissible uses excluded.
To the features I have identified can be added the principle of Active transport set out at [123] above. Read as a whole, in my opinion the principle overall does focus on access to the neighbourhood centre. Logically that is so - the principles talk of ease of access and the encouragement of walking and cycling within villages. After all, that is Active Transport.
The principle does however have some operation within the site. It speaks of bicycle parking at destinations and "in high pedestrian demand areas such as town and village centres, further increase pedestrian amenity and safety through path widening, driveway access controls and other site-specific actions to improve pedestrian priority" (Principle 3.3 of Active Transport, clause 6.3, Chapter B4).
In my view that statement reflects a proper and sensible urban design outcome to provide safe and convenient travel for cyclists and pedestrians within the site, including limiting the points of conflict with vehicles and prioritising pedestrian movement where appropriate. This does not mean that there can never be an interaction between a pedestrian and a vehicle driveway, that would be impossible in a neighbourhood shopping centre or village centre. But it means that at critical points within the site pedestrians are prioritised over vehicles, including in the way that Mr McLaren described the raised walkway referred to at [158] above.
I begin this analysis on the basis that the McDonald's food and drink premises (including the drive through) is a permissible use and that it is not inconsistent with the objectives of the B1 zone. Inherent in that proposition is that the provisions of WDCP 2009 cannot be read to prohibit uses which are permissible with consent. WDCP 2009 of course assists in determining whether the form of the whole of the development is acceptable.
In that regard, the Council's expert Mr Cullen put it correctly when he said in oral evidence: "I don't have any issue with McDonald's … provided we can serve the needs of people who live and work in the surrounding neighbourhoods appropriately…"
I also agree with Ms Rintoul's summary at [168] above which includes: The village site should be planned to offer: - Spaces to gather, meet and connect that are safe, enjoyable and accessible - Connectivity with the surrounding active transport networks - An appropriate relationship between the offers (commercial premises and services) and the public domain."
Many of the Council's criticisms of the proposal are well-founded. I will deal with them in the following paragraphs in the context of my opinion as to the operation of WDCP 2009 and the required elements to be achieved.

Parking location

The parking is located as suggested in Fig 21, along the western boundary, and largely shielded from view from West Dapto Road and indeed from Raven Street for the length of the retail/commercial tenancies.

Location and design of built form

This is generally as shown in Fig 21 in that it is to the east and south of the site.
There is criticism that the West Dapto Road frontage of McDonald's does not define the street edge because of the drive through facility between the building and the perimeter landscaping on the site. The built form, it is said, should "perform a clear street defining urban function" (see [133]).
In my opinion West Dapto Road, as the relevant street, is sufficiently defined. The obligation appears to be that there be no blurring of the line between the roadway/footpath of West Dapto Road in the public domain and the private domain of the village centre. The street edge of West Dapto Road is defined first by a change in levels between the footpath and the site. Thence from the east it is defined by the retail/commercial building, the entrance to the plaza, landscaping, in part a timber fence behind the landscaping then the driveway with the building behind and the continuation of the landscaping in the foreground.
I also observe that the Wongawilli site specific "controls" say that it is the location of the parking to the north of the site which "allows" the built form to perform a defining street urban function (see [133]). The parking is to the north of the site and the location of the built form is then allowed along the street frontages performing the desired street defining role.
If the objective is to clearly define the urban form of the village centre then in my view it is achieved. The change in form and function sufficiently defines the village centre.

Grocer/supermarket/mixed retail

There was much debate about the capacity of the proposed 600 sqm of retail/commercial space to meet the objectives. Whilst the larger the retail offering the more products and variety can be offered, there is nothing in the instruments which suggest to me that the village centre must meet the needs of every person every day, nor the daily needs of every person every day.
However the "needs" are expressed in the various iterations in WDCP 2009, the site specific control refers to a "small grocer" and some "mixed retail" shops as part of a small convenience centre. Putting Fig 21 to one side, that statement is surely intended to reflect that the village centre, by providing a small grocer and some mixed retail shops will be likely to provide for "convenience needs" (clause 3.50 see [112]), "daily convenience needs" (clause 3.7 see [110], clause 3.2.5(d) see [108]) and the "needs" (first zone objective) of those who live and work in the surrounding neighbourhood.
Fig 21 in this regard appears on its face to require something more than the words of the site specific control require, and to the exclusion of any of the other permissible uses. In my view Fig 21 cannot and does not require something more than what is expressed in the words preceding it. The "controls" do not expressly exclude other uses. Fig 21 is a "guide" and in my view does not in this regard operate to contradict the written "control" or the range of permissible uses. It is a guide, including a guide to the general form of development on the B1 land.
In my view an area of 600 sqm for retail/commercial uses is sufficient to meet the objectives of WDCP 2009, albeit perhaps only just.
The most compelling evidence which leads me to that conclusion was the inspection of IGA Parkside, a supermarket of some 300 sqm of retail space (excluding loading area). It was clear that a supermarket of that size can more than adequately meet the daily needs of the residents and workers in the surrounding neighbourhood. It appeared to offer the whole range of general supermarket products, but obviously not every brand of product, nor more specialized products which are expected to be found in a larger supermarket which serves a larger catchment.
The number and range of products was significantly greater than typically one would find in a convenience store such as 7/11 and to my mind would be a larger offering than "a small grocer" and of itself can be expected to meet the "convenience needs", "daily convenience needs" and the "needs" of those who live and work in the surrounding neighbourhood in respect of supermarket or grocer provisions.
Assuming 300 sqm is sufficient for a small supermarket then the remaining 300 sqm is sufficient size for 3 "neighbourhood shops", being a maximum of 100 sqm each as expected in cl 5.4 of WLEP 2009. As the Applicant's alternate design demonstrated, a use such as hairdresser can be accommodated in 50 sqm so there are a variety of possibilities.
It matters not that according to the economic experts up to 2500 sqm of retail could be economically viable on the site. Apart from that being a potential risk to the retail hierarchy, the planning instruments do not require the whole of the B1 land to be developed with retail uses, nor to maximize retail uses for so long as those uses are economically viable. The focus is first on needs (WLEP 2009 zone objective) then on the convenience needs expressed in a number of ways in WDCP 2009. There is no question that a proponent can seek a non-retail use such as food and drink premises or the many other permissible uses, and also provide other uses to meet the needs of the local living and working population, including a small grocer/supermarket.
It follows that in my opinion the provision of 600 sqm of retail/commercial space meets the control or objective to provide for, or provide the opportunity for, a small grocer/supermarket and mixed retail to provide for the convenience needs and daily needs of those living and working in .the surrounding neighbourhood.

Activation of street frontages

There is no issue that the retail/commercial spaces will address Raven Street (as well as the internal plaza) and so insufficiently activate the Raven Street frontage.
The West Dapto Road frontage complies with the control in cl 7.13 WLEP 2009 in that there is at least one entrance and one other door or window facing the street. Compliance with a control can generally be accepted as a demonstration that the objective of the clause is met - to ensure that active uses are provided at the street level. Whilst that could be regarded as the resolution of the issue, the Council argues that as a matter of urban design merit there is sufficient street activation in the present proposal.
I do not accept that evidence or submission. From the east, a pedestrian walking in a westerly direction along West Dapto Road will encounter the plaza, with its seating and facilities at the rear of the retail space which is expected to take advantage of the plaza and also address the plaza. That is the epitome of activation, although not right at the boundary. Nevertheless the existence and movement of people will be obvious and will not in any sense present as sterile or barren.
Moving further to the west the pedestrian will encounter the McDonald's building which has 3 service windows or openings for taking orders and handing over food and drinks. Then a little further to the west there is the door to McDonald's, which is not the main entrance but still an entrance to the premises (the main entrance is on the northern façade). Whilst the driveway intervenes adjacent to the building there is activation to the extent of seeing people at the windows/openings and indeed through those openings if unattended, and through the glass front door entrance.
The building frontage is really little different to a shop front which has a static window display without being able to see within and a glass door entrance through which the passerby can see into the shop or other premises and observe that which lies within.
I should also note that the Raven Street frontage also has landscaping intervening between the footpath and the retail/commercial frontage itself and so the setback and landscaping is not of itself an issue. Rather it is the capacity to see and understand that there is the movement of people related to the uses and so the premises are not barren and uninviting.

The interface with the riparian zone and the western communal area

I agree with the Council witness's criticism of the interface with the open space for the most part. The entry at the northern end is clumsy and unnecessarily indirect. It is an important entry point to the neighbourhood centre as many residents will come through the riparian zone from the west as a very pleasant walk or cycle and the entry should be well defined, direct and inviting.
The design results in the unsatisfactory outcome of a pedestrian or cyclist approaching along the public footpath needing to walk past the entry point for about 15 m, then doubling back for the same distance before entering with a 90 degree turn. It is neither direct, clear nor inviting. Whilst someone will likely access what is proposed in any event if coming to that entrance on foot or on wheels, the arrangement is a poor and unnecessary design outcome. The design is compromised by the need for carparking and the proximity of the child care centre. The proximity of the child care centre is in turn driven by the number of children it seeks to accommodate and the consequential indoor and outdoor space requirements.
The entrance to the site should be generally in the same location but accessed by a single ramp parallel to the public footpath in the riparian zone. The person would turn left to enter the ramp, travel its length then turn left to enter the principal part of the site. The 2 turns of 90 degrees are acceptable, and indeed preferable, to provide a slow point for the more adventurous or exuberant cyclists or skateboarders. The end of the ramp should line up with the path proposed to the west of the car parking spaces. The ramp should of course comply with the Disability Discrimination Act and the relevant Australian Standard and therefore probably need not be at a gradient of 1:14 but may be 1:8. That would be a matter of final design.
At the northern entrance from the riparian zone the communal space is compromised and unnecessarily so. In my view it is not acceptable for the communal space, which is in a delightful location adjacent to the riparian zone, to operate both as a passageway and as a seating area, thereby adversely affecting its amenity and use. The passageway/pathway should be separated from the communal space - they are distinct and separate functions. The communal area is also overborne and overshadowed by the southern wall of the child care centre limiting its amenity unacceptably and limiting the important vista of the escarpment to the north, although the vista to the west is maintained.
Unless the entrance at the end of the ramp lines up with the pedestrian "spine" running west to east then the objective of clear and safe pedestrian movement is not achieved. The communal area should be provided to the north of the pathway as a clearly defined and welcoming space. The carparking to the immediate north is acceptable and should not be removed for reasons which will become clear.
In order to create a proper entry and appropriate communal open space the child care centre cannot remain in its present location.
Further along the western boundary, I agree with Ms Rintoul that there is a need for greater permeability between the riparian zone and the site. I do not agree that it is really to be a "shelter" for patrons to rest before "loading the kids into the car". Rather an extra access point immediately to the north of the staff parking at the southern end of the western boundary to link with the entry to McDonald's should be provided. I will return to that subject when dealing with pedestrian movement.

The Plaza

The plaza is unsatisfactory for the following reasons:

It does not function as a dominant or central component to encourage human interaction;
There is some sense of enclosure, and particularly a sense that it is "leftover" land rather than a meaningful contribution to a neighbourhood centre;
There is no direct link from McDonald's to the plaza;
There is no direct link to the plaza from the east-west pedestrian spine.

I accept that the objectives of WDCP 2009 include that the development should provide communal spaces and that the principal communal space in particular is to be central and obvious and provide a real and meaningful opportunity for the social engagement which a neighbourhood centre should provide.
In my view the four parking spaces to the north of the plaza and the 3 or 4 spaces to the west of tenancies 1 and 2 should be deleted and the plaza extended into that space. If that was the case then the plaza would present as a significant space visible from all parts of the site and indeed from the public domain to the west. The plaza could then fulfill the role of a well designed inviting plaza with a greater sense of openness. The plaza would always likely be adjacent to car parking (even as shown in Fig 21) and that of itself is not a disqualifying factor.
The proximity of the drive through is, whilst not ideal, not sufficiently compromising to be unacceptable. There is a screen of some 160cm in height giving visual protection and some acoustic mitigation. The vehicles in the drive through will not be traveling at speed and the usage is likely to be regular rather than constant. It cannot be the expectation that in a business zone there not be some minor imperfection in communal open space.

Pedestrian and cycle use

I accept the evidence from Council that the present arrangements are unsatisfactory. There is no well-defined link from the east-west spine to the plaza. There is no link from McDonald's to the plaza. If a person wants to avoid or minimise a path of travel through the car park then the safer alternatives have some not insignificant degree of inconvenience.
There are some simple steps which could be taken to render pedestrian movement acceptable: 1. There should be a raised walkway across the driveway from the newly created access point from the riparian zone at the southern end. This enables first, safer access from West Dapto Road in that only one road/driveway crossing is required. Second, anyone parking along the western boundary can utilise the western footpath within the site then link to that crossing rather than walk across the car park. 2. There should be removeable bollards at the entrance to the delivery bay and a marked crossing from the east-west spine to the plaza as expanded, so that access is defined, clear and safe. There is then a direct link between the riparian zone and both of the communal areas. 3. There should be a raised walkway between the north east corner of McDonald's and the plaza. This not only enables safe and clear access between McDonald's and the plaza, some of the patrons in the central component of the car park will find it safe and more convenient to access McDonald's through the plaza if that is their destination. 4. The additional access point from the riparian zone enables a simpler access to McDonald's and to the retail/commercial space and the plaza. For the pedestrian or cyclist coming from the south the access will be simple and direct without having to access the curtilage of McDonald's if that is not their destination. It also operates as an encouragement to access the other facilities available at the neighbourhood centre.
I have endeavoured to explain how the present arrangements are unsatisfactory in that they do not facilitate simple and direct safe access and do not prioritise pedestrian movement to a sufficient extent. The alternatives I have set out in the preceding paragraph are a demonstration of how in my opinion a neighbourhood centre can achieve that objective for pedestrian and cycle movement, or "active transport".

Public Interest

There is no specific contention of the Council which refers to the public interest in terms. Public interest is however a mandatory relevant consideration by virtue of s 4.15(1)(a) of the EP&A Act as are any submissions made as a consequence of the notification of the development application (s 4.15(1)(d)).
The Applicant submitted that there were two aspects of the submissions of objectors which were an aspect of the public interest, health outcomes and the potential to frustrate the community's vision for development of Wongawilli village.
The Council noted that a significant component of objectors' concerns related to the appropriateness of McDonald's as the specific type of food offering arising from concerns about what was said to be the relative un-healthiness of the food and the exposure to fast food on children's health outcomes.
Council then submitted: "[138] Council does not contend that the health effects from the consumption of fast food is itself a planning consideration. Not does it say … that it objects to McDonald's per se as a food retailer for such a reason." CWS [138]
It then submits, in apparent contradiction of that proposition, that objectors' concerns about health impacts of McDonald's should be given significant weight as an aspect of the public interest and social impact. It submits that the linking of adverse health outcomes with exposure to fast food offerings has an extensive and scientifically researched basis, referring to submissions from objectors, including doctors, to which were attached various papers on the subject. The Council described the concerns as specific, concrete, likely effects of the proposed development, citing Lloyd J New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] - [63].
The Council did not lead any expert evidence in support of this submission, nor is it in fact a contention in the case. Whilst an objector may be qualified to give an opinion about a concern about a proposed development it is not expert evidence for the purposes of proceedings before the Court. That is because there are strict rules to be observed in order for evidence to be considered as expert evidence, including the adoption of the Expert Witness Code of Conduct and the likely engagement in the expert conclave process before ultimately providing a joint report and giving oral evidence.
That does not mean that submissions from objectors are to be lightly dismissed and I do not do so. But it is a difficult proposition to maintain that this development should be dismissed because the food offering is McDonald's.
The scope of the public interest was considered by the Court of Appeal in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105. The Court (comprised by Bathurst CJ, Beazley P and Tobias AJA) said at [299]: "A requirement that regard be had to the public interest operates at a high level of generality. What is involved in the determination of the public interest in a given statutory context was explained in O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216 where the High Court stated: "[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'." (citation omitted) ……. As observed in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [42], the range of matters relevant to the public interest is very wide."
Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21 at 505, that when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited".
The public interest is limited by the objects, scope and purpose of the EP&A Act, which are indeed very broad. The Council did not however point the Court to the particular object of the EP&A Act within which the proposition of significant weight being given to an unhealthy outcome from the business a specific purveyor of fast food would be found. I do not accept that the concerns about McDonald's as the proposed fast food outlet is an aspect of the public interest.
It was also submitted that the proposition could be considered as an aspect of the social impact of the development. I have some doubt about that, and there was no expert evidence called by the Council by a social planner about the social impacts which may flow.
Be that as it may, there is insufficient evidence to conclude that the development application should be refused because of what is said to be the relative un-healthiness of the food offered by McDonald's and the adverse effects of exposure to fast food on children's health outcomes for the following reasons:

There is no expert evidence in support of the general proposition.
There is no expert evidence as to the role that this particular McDonald's would play if there was the potential for the adverse effects. That is, will its presence in this location cause greater consumption of fast food, when it is available at many other locations including in Dapto, 10 minutes' drive away. Is the demographic of Wongawilli more or less susceptible to the consumption of McDonald's offering? Is it the existence of the restaurant the driver for consumption, compared to advertising and the like?
There is no comparative expert evidence. For example, is the McDonald's offering better or worse than a fish and chip shop, or a pizza shop, a kebab store or some other form of burger establishment?

In the absence of such expert evidence, if health impacts were a relevant consideration, then I would not refuse the application.
That is not to say that I have not taken into account the submissions which have been made on the subject matter. It just means that in the circumstances I have determined that they attract less weight than the Council has submitted an do not warrant refusal.
The second broad aspect of the public interest and the evidence of objectors in the Council's submission is: "142. the consistent expression by objectors that the community's vision for development of Wongawilli Village will be frustrated. This is related to the planning argument of displacement of a desired outcome, but has the additional dimension of the community's expectations and their expression of what development will satisfy their needs. 143. Such expectations are apparent from the submissions and will have formed part of, as well as been informed by, the planning process in the form of community consultation in the course of development of the LEP and WDCP. These expectations, too, should be given significant weight, particularly in a land release area such as West Dapto." CWS pars 142 - 143
The objectors' submissions which reflect this summary must be considered in the assessment process and also are relevant to the public interest. The public expectation for development in an area expressed in a planning regime may not always align with the public's expectation for development in an area. There is in this case a significant coincidence of the expectation evident in the submissions and the expectation reflected in the planning regime. It is the planning regime to which greater weight must be given in the ultimate consideration.
In its shortest description the B1 land is to be a neighbourhood centre which includes retail offerings to cater for local needs and appropriately located and sized communal spaces. The Council has identified a range of potential uses in WLEP 2009, and WDCP 2009 has provided more detail on what the neighbourhood centre should be. Those Council planning documents reflect and embody the strategic documents which preceded them, and to which the Court must give considerable weight.
I have taken into account the submissions which have been made. I have accepted the evidence which is consistent with many of the submissions that the present proposal does not properly achieve the objectives for the neighbourhood centre. I have not accepted the proposition that McDonald's, or any other food and drink premises, is not acceptable because of its own attributes, or because the whole of the land (other than communal spaces) should be retail offerings.
It is also the case that in any event there will be opportunities for further development of the B1 land having regard to my conclusions.

Conclusion

Having regard to my findings in the ordinary course the dismissal of the appeal and the refusal of the DA would follow. This however is a DA which has distinct parts which is less common and may allow for a different outcome.
During the course of the hearing I reminded the parties of the power in s 4.16(4) which provides: (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development.
There is also the power to impose conditions when granting development consent requiring the amendment of the development (s 4.17(1)(g) of the EP&A Act).
Whilst I invited submissions to be made about the potential for exercising those powers and also the course adopted by the Court referred to in Ku-ring-gai Council v Bunnings Properties [2019] NSWCA 28, it was difficult for the parties to make any meaningful submissions in the absence of the Court's findings.
Accordingly, rather than make any final orders, it is appropriate to allow the parties time to consider these reasons and come to an agreed position or make submissions about the outcome which is appropriate.
In summary, for the foregoing reasons: 1. The access points, communal areas and pedestrian/cycle paths and related infrastructure are not acceptable. 2. If it is within power to impose conditions or otherwise to ensure that the access points, communal areas and pedestrian/cycle paths and related infrastructure are acceptable then I would not approve the child care centre, including its parking so as to facilitate those changes. 3. I would not approve the subdivision, because it is proposed as a consequence of the approval of each built form of the proposed development.
The findings may result in refusal of the DA or may not, having regard to the powers available to the Court. I am very conscious that significant public and private resources, both material and emotional, have been expended in the consideration of this DA and this hearing, and consider that the parties should have the opportunity to make submissions as to the outcome, having regard to my findings.
I propose to list the matter before me for mention in the near future so as to then be in a position to make directions for the further conduct of the matter.
I therefore make the following order: 1. The matter is to be listed for mention before Clay AC at a time convenient to the parties and the Court within 21 days.

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: 21 October 2021

(2004) 138 LGERA 237

(2003) 127 LGERA 303

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