Merimbula Nominees Pty Ltd v Bega Valley Shire Council

Merimbula Nominees Pty Ltd v Bega Valley Shire Council - [2007] NSWLEC 107 - NSWLEC 2007 case summary — Zoe

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c) to permit non-commercial development where such development complements the intended commercial development. The Issues 1 (a) Whether the development should be approved as the development does not comply with the aims in Clause 2(a) of the Bega Valley Local Environmental Plan (LEP) being to ensure a balanced approach to development which is sensitive to both the economic and social needs of the community. (b) Whether the development should be approved as the development does not comply with the principles in clause 65(1)(a)(xiv) of the LEP being traffic generation and appropriate vehicular access into and around the site. Particulars: A. The development will contribute to and exacerbate existing traffic problems including safety, congestion, and conflict between service access and shopping traffic, conflict between pedestrian access and shopping centre. B. The grades of the vehicle access ramps to the underground car park are excessive and would increase the potential risk for pedestrian and vehicle conflict. C. Volume of traffic generated by the development is unacceptable for Main and Market Streets in particular and for the traffic flows in Merimbula in general. D. The site is considered too constrained for safe manoeuvring of larger delivery vehicles. 2. Whether the development should be approved as there is non-compliance with clause 65(1)(a)(v) of the LEP being the topography and setting of the land and (vi) being the streetscape character of the locality. Particulars: There will be unacceptable overshadowing impacts by the proposed development, particularly there will be overshadowing of the adjoining Merimbula Imlay Bowling Club's eastern bowling green. 3. Whether the development should be approved as there is non compliance with clause 65(1)(a)(ix) being the energy efficiency of the site and any buildings on the site and (xiii) the treatment of stormwater prior to discharge or the use of stormwater. Particulars: The design is environmentally insensitive in relation to wastewater, rainwater, and energy saving devices. 4. Whether the development should be approved because of its non compliance with clause 65(1)(a)(vii) of the LEP being compatibility with the scale and design of neighbouring development and clause 30(2)(a) being an objective of the Zone 3(a) being to encourage a high standard of commercial development, create compact business centres which service the population and visitors and facilitate the expansion of business activities in appropriate locations. Particulars: A. The bulk and scale of development would be out of character with adjoining developments. B. The proposal does not comply with the Council resolution of 26 April 2006 which resolved to exhibit an amendment to LEP 2002 to limit the size of shops and commercial premises in the Merimbula 3(a) zone to 2500 sq m or less. C. The scale of the development is inappropriate for Merimbula and will compromise the objectives of the South Coast Regional Strategy and Council's exhibited draft Commercial Centres Strategy. D. Council is not satisfied that the material submitted with the development application has proven compliance with the requirements of the Regional Development Committee. 5. Whether approval will compromise the South Coast Regional Strategy and Council's exhibited draft Commercial Centres Strategy. Particulars: A. Council's exhibited draft Commercial Centres Strategy clearly presents alternatives for supply of adequate supermarket facilities for the Merimbula area with an adequate site being identified at Tura and with the development of wider regional scale facilities being proposed for Bega as a single logically planned regional centre. B. Approval of the development in this location could in turn lead to further intensification of major retail floorspace in the area with the possible provision of a discount department store. Such development would further compromise and contradict the proposals put forward in the South Coast Regional Strategy and in Council's exhibited draft Commercial Centres Strategy. 6. The proposed development would not be in the public interest due to nearly 600 objections to the proposal.

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25 The formal objection letters to Council were nearly all in a standard format listing the following points: i. There has been no public consultation from you for a major development to the residents and ratepayers, after Council's own stated position was for low-key development in the CBD. ii. The traffic that will be generated by this development has not been adequately provided for, due to the congestion that is already in Main Street. iii. It is directly opposite to a statement made by Mr Barry ( sic. council's town planner ) on future development in Merimbula as stated in Merimbula News on Jan 11/06. iv. The actual plans and development proposal has not been fully and properly submitted. v. The said document is flawed by use of information gleaned by outside sources that bear no relevance to this Merimbula proposal. vi. The information that is used to justify conditions, usage and requirements, particularly the traffic assessment that was done on one day (the 17th March, a Thursday in 2003) are too old to be credible. vii. I support the alternative proposal at Tura Beach and request it be rezoned to allow it become a Supermarket and Shopping complex as there is a much larger area available that would alleviate the problems of traffic flow and car parking and semi-trailer delivery access. 26 The supporters of the proposal made the following points: i. The existing supermarkets in Merimbula are overtaxed, a larger one will give better shopping and get delivery truck manoeuvring off Main Street. ii. The majority of permanent and tourist populations live in or near Merimbula, sending them to Tura or Bega to do supermarket shopping is impractical. iii. A new supermarket in Merimbula will not threaten the Regional Centre role of Bega. iv. Additional employment will result from the proposal. v. The 127 carspaces required for the bowling club will be provided on the subject site in addition to those required for the supermarket. vi. The traffic congestion in Merimbula is not a consequence of this proposal, it is a long-existing problem that the RTA and the council have failed to act upon, and this development should not be penalised. The proposal is located in Main Street and the congestion occurs on the through-town route of Market Street-Merimbula Drive-Sapphire Coast Drive. vii. The traffic congestion only occurs in seasonal peak tourist times. viii. 600 objections are more than balanced by the silent majority who would use a better shopping facility. 27 Additional points made by objectors who gave evidence in Court are: a) During the years before this Hearing, there has been extensive public consultation on the future of the Bega Valley and coastal areas. The first draft Commercial Centres Strategy began in August 2004, and was exhibited in February 2005. Since then, the public Will reflected by the council, and now by State policies are that Bega is the Regional Centre, and must be reinforced in that role by encouraging new major development there, and the tourist towns must be carefully managed to retain their role as population growth there could de facto subvert Bega. b) The character of the coastal areas is what draws the tourists, they don't come here to shop. The protection of the small scale character of coastal towns is important to maintain and increase tourist visitation. The advent of "big box" shopping complexes is contrary to that character as it starts to look like the cities and suburbs that the tourists are escaping from for a holiday. The charm of the town starts to disappear. c) Main Street is an old 66 foot wide street laid out originally for houses. It is the only access street to the east of Merimbula where the schools and emergency services and many houses are. It is the only access street to the Council, the library and the day-care centre and the bowling club and main bus stop that are all next door to the proposal. All these generate considerable traffic in Main Street, and might be considered "essential services". d) Opposite the proposal is the existing Woolworths that has major traffic problems with its loading bay, and those problems will remain. (i) On the day of the hearing a delivery truck was seen to reverse into it and having to manoeuvre on the street to do so. The on-street manoeuvring usually is much more obstructive to traffic and pedestrians because trucks do not often use the loading bay.

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This issue is raised, or referred to, in Issues 4 and 5, and indirectly, in Issue 1. The substance of the concern appears to stem from a resolution of Council dated 26 April 2006 (post dating the submission of the development application) to the effect of limiting the scale of any retail development in Merimbula to 2,500 sq m (the proposed development is around 4,000 sq m). The basis of the resolution appears to stem from a concern that Merimbula should retain a coastal tourist village' feel and that a large supermarket would be inconsistent with this character. Related to this, are traffic concerns (congestion, safety, convenience), which are already apparent on Main Street, but which the Council and members of the community believe would be exacerbated by the development. Also, there is a body of opinion that it would be preferable to locate a larger supermarket at Tura Beach, a smaller coastal settlement located a short distance to the north and/or to concentrate larger scaled retail facilities at Bega. The submission that a supermarket be redirected to Tura Beach appears to arise partly from a desire to improve services for that community (which currently only has a limited range of shops, including a small 'IGA' store) and partly to relieve traffic pressures on Merimbula by spreading the traffic load'. The resolution has not, as I understand, been incorporated into any draft or gazetted local environmental plan nor any draft or adopted development control plan. It has, though, as I understand, been incorporated into version 3' of Council's draft Commercial Centres Strategy……………………., it seems that the shopping area of Merimbula falls into two main precincts : * Market Street, which is dominated by smaller shops and eateries, including some that interface with the waterway and boardwalk. The development here is generally two storey and of very modest scale and despite quite heavy traffic flows there is a greater emphasis on the pedestrian environment, as reinforced by streetscape improvements; and * Main Street, which has a greater number of larger scaled buildings, including the existing Woolworths, the Bowling Club, the Council community center, and Best and Less' store……………. Market Street and Main Street represent the two core' areas and as noted above, each of these has a different emphasis: Market Street seems to be evolving as more of a boutique' environment of specialist shops and eateries extending out to the boardwalk - a place where shoppers might linger and browse'; while Main Street has a more 'utilitarian shopping/service feel' including the dominant 'convenience' shopping of Woolworths (a smaller supermarket is located in Market St ) In my opinion, the location of a large supermarket on Main Street is consistent with this order' of retail function and activity already established within Merimbula, and which forms a logical basis for the future evolution of the center. I do not believe that a large supermarket would significantly impact on the coastal tourist village atmosphere that is valued by Council and residents, because Market Street and the road and access ways connecting to it seem to be the more natural' choice to form a focus for that role. The larger buildings and locational attributes of Main Street do not readily convey a visual association with a coastal village' and it is unlikely that this situation will change in the foreseeable future. Moreover, given that the town serves the needs of the permanent residential community as well as the visiting community it is appropriate, in my view, that the `feel' of the town continues to reflect both of those equally important roles - it is not simply a tourist destination but a district center serving day to day needs as well.

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……………….State government policy arises in the form of the policy package Integrating Land Use and Transport', including Draft State Environmental Planning Policy (SEPP) No. 66' and its supporting policy package. Draft SEPP 66 does not, however, apply to Bega Valley Shire (Clause 5 Where the Policy applies') however the supporting policy ('the Policy') The Right Place for Business and Services' applies to urban areas across the State'. The Policy incorporates the aim businesses and services which generate transport demand should be in locations that offer a choice of transport and encourage people to make fewer and shorter trips. Dispersed locations cannot be accommodated without significant community and environmental cost'. This philosophy represents the latest version' of a generally consistent State government policy that has been in place, in one guise or another, for nearly two decades. It has, as a central theme, the aim of supporting an established retail hierarchy with objectives of ensuring equity of access to goods and services and - as particularly emphasised in this latest Policy - the aim of promoting the concept of travel demand management'. The Right Place for Business and Services' promotes the intent that trip generating retail activity should be located in established centres, except where an alternative can be justified having regard to the net community benefit. It notes that supermarkets and large specialist and department stores have an important role in anchoring a broad range of shopping and other services, thereby allowing single, multipurpose trips. Retail proposals should be accommodated in centres to allow choice and free pedestrian movement. Ideally a single retail property should not comprise the whole of the centre so as to allow for new market entrants and competition and avoid the unnecessary creation of new centres. ...' As I have noted, this has been a consistent approach of the Department of Planning' for many years, due to the significance of retail activity to the community and economy, and the need for regulation of it, in the interests of State and Regional planning. I would expect the Department of Planning to apply the principles of The Right Place for Business and Services' in the event of Bega Council submitting for its endorsement (eg under Section 65 of the Act) any proposal to amend its planning instrument(s) to the effect of altering policy as to the location and scale of significant retail development. Guidance on the right centres' applicable to Bega Shire can then be obtained from the Draft South Coast Regional Strategy'. This document identifies (Section 7) that Council based mechanisms or controls shall be identified to preserve and support the hierarchy of commercial centres for the South Coast Region as follows ...'. Bega is identified as an emerging' major regional centre and Merimbula is identified as a Major town', described in the following terms existing smaller [ie compared to major regional centres'] identified for a lesser proportion of growth. Shopping and business centre for the district including warehouses, transport logistics and bulky goods operations, health and professional services mixed with medium density residential'. To complete the picture, Tura Beach, which Council has mooted as an alternative proposition for location of a larger supermarket, is not identified as a Major town' and would logically be described (as nearby Pambula is) as a town', or perhaps even as a village'. The policy for towns' is `small centres that vary in size. Small to medium concentrations of retail, health and other services with lower density residential. Reliant on higher order centres for shopping and employment'.

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In my view, however, a larger supermarket is consistent with the role of Merimbula as a district centre as identified in the draft South Coast Strategy and this in turn is consistent with The Right Place for Business and Services'. There is evidently a latent demand to support an increase in floorspace generated by the existing population, with its particular characteristic of peak tourism demand in summer. There does not seem to be justification, in this regard, to encourage residents to make a trip to Bega, at some distance away, in order to satisfy their convenience (as opposed to comparison') shopping needs. I note, in this regard, a report placed before Council on 26 April 2006 relating to the draft Commercial Centres Strategy, which sets out: `The SGS report [a report I understand was prepared for Council] and to an extent the applicant provided economic studies seem to establish that the two current supermarkets in Merimbula are inadequate for a district of this size. This is certainly the case when tourist impacts are added. The Merimbula Bi Lo is too small to have an adequate range of goods and has no practical trolley access to any sizable car parking. The current Merimbula Woolworths is clearly overtrading and lacks space to stock the range of goods needed for a district of this size. It has poor parking especially when the parking on the Rawson site is deducted and for which Woolworths have no current claim. The Woolworth's supermarket has a loading dock the design of which does not meet Woolworth's needs and which now sees semi trailers doing complex manoeuvres in Main Street. ... From the SGS report and several discussions with Woolworth, Coles and similar large traders there is no doubt that commercially, Merimbula would economically support one supermarket in the range of 3,500 sq m to 4,000 sq m. Both Woolworths and Coles have made it clear that they seek to secure a store of this size in Merimbula. They appear to view Tura as a secondary option for a fall back position if their competitor secures a large site in Merimbula and/or for a smaller scale version of their supermarkets such as 'Foodworks' or 'Bi Lo'. However the significant tourist loading of Merimbula has been enough over the past 20 years to warrant no interest by these larger supermarket traders in Pambula. Tura has even less tourist draw/potential. Coles have even committed their position on Tura to writing. Their letter makes it clear Coles see no interest in Tura and question that a large supermarket would be successful there'.

At a glance

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Before

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Judgment (93 paragraphs)

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Cases Cited (1)

Cited By (1)