Milano Convenience Store Pty Ltd v Meqdadi and Anor

Land and Environment Court (NSW)|2010-02-15|Before: Pain J, Mr P

CITATION : Milano Convenience Store Pty Ltd v Meqdadi and Anor [2010] NSWLEC 29

APPLICANT Milano Convenience Store Pty Ltd PARTIES : FIRST RESPONDENT Meqdadi, Bilal SECOND RESPONDENT Sydney City Council

KEY ISSUES: JUDICIAL REVIEW :- whether council erred in not applying clauses in LEP - whether council's characterisation of use as not a convenience store an error of law - whether council's decision manifestly unreasonable - whether council's grant of development consent invalid

City of Sydney Convenience Store Development Control Plan 2004 cl 4.2.3 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s79C(1)(a)(i), s79C(1)(a)(iii) Sydney Local Environmental Plan 2005 cl 28, cl 29

7 Eleven Store Pty Limited v City of Sydney Council [2004] NSWLEC 154 Centro Properties v Hurstville City Council and Anor (2004) 135 LGERA 257 Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors (2008) 160 LGERA 274 King v Bathurst City Council (2006) 150 LGERA 362 CASES CITED: Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109 North Sydney Municipal Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 Save Our Streets v Settree (2006) 149 LGERA 39 Weal v Bathurst City Council (2000) 111 LGERA 181 Zhang v Canterbury (2001) 115 LGERA 373

APPLICANT Ms S Duggan SOLICITOR Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr P Clay SOLICITOR Thurlow Fisher SECOND RESPONDENT Mr A Hawkes (solicitor)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40380 of 2009 Milano Convenience Store Pty Ltd v Meqdadi and Anor

JUDGMENT 1 Her Honour: The Applicant seeks a declaration that a development consent granted to the First Respondent by Sydney City Council, the Second Respondent, for a change of use to a convenience store and an internet coffee shop at 92-94 Wentworth Avenue Surry Hills (No 92-94) is invalid and of no effect. Orders restraining the carrying out of that use are also sought. The Applicant operates a convenience store at 35-45 Wentworth Avenue Surry Hills. 88-90 Wentworth Avenue 2 Adjoining the site to the north is No 88-90 Wentworth Avenue Surry Hills (No 88-90). On 24 April 2006 the Council issued development consent No D/2006/388 (the 2006 consent) for: Fitout of existing convenience store with fridge, sinks, counter and seating for 8 patrons along the internal western and eastern elevations adjacent to the existing shop front to change the use to serve coffee.

3 An earlier development consent for convenience store use at No 88-90 was granted on 8 April 2001 (D2001/00406). 92-94 Wentworth Avenue 4 On 6 April 2009 the First Respondent lodged a development application (DA 2009/500) with the Council for the fitout and use of the site as a convenience store and internet coffee shop (the 92-94 DA). The development application was advertised for a 21 day period and the Council received objections. An internal development application assessment report was prepared by Bridget McNamara, Specialist Planner, recommending approval. The recommendation was accepted and the development application was approved under delegated authority by Sandra Fagan, Area Planning Manager. Council issued the notice of determination of development consent, granted subject to conditions, on 21 May 2009 (the 2009 consent). Additional evidence 5 A bundle of documents containing relevant consents and planning instruments referred to in argument was tendered. This included the Council file on the assessment of the No 92-94 DA, and also included third party objections received from Danny Davids (email 28 April 2009, letter 11 May 2009), Hussein Elsaeidi (letter 11 May 2009) and Haney Soltan (letter 11 May 2009, three emails 13 May 2009). All operate convenience stores in the area and express concern regarding the economic and trade impact on their respective stores, and a public petition (undated). Additionally, there was a crime prevention assessment conducted and submitted to the Council by the NSW Police Force dated 11 May 2009. The DA was assessed by Ms McNamara, who prepared a development assessment report (undated). The assessment report includes a clause titled "Concentration of convenience stores" which states: This clause is aimed at preventing any adverse impacts from an excessive concentration of convenience stores in any area. A control of 75m is set as a minimum distance between convenience stores.

The assessment report identifies three convenience stores just outside the 75m radius, but notes that there is a store called "Convenience Store - Espresso - Juice Bar" located 15m from the subject site. The report does not classify it as a typical convenience store due to the limited goods that it sells and the coffee shop portion within. It concludes that the proposal will not result in any significant accumulated amenity impacts from the use on the surrounding residential and commercial activities. 6 Ms McNamara prepared an affidavit dated 14 September 2009 in which she identifies her familiarity with the provisions of Council's Convenience Store Development Control Plan 2004 (the DCP). She refers to visiting No 92-94 DA on 24 April 2009 to familiarise herself with the premises and its surroundings. On 28 April 2009 Ms McNamara received an objection submission from Danny Davids (proprietor of shop premises at No 88-90) stating that he operated a convenience store at his site and that the No 92-94 DA was for a site within 75m of his store. As a result of this objection, and as part of her assessment of the No 92-94 DA, Ms McNamara visited No 88-90 on 28 April 2009. She decided No 88-90 was not a typical convenience store, and on the basis of goods sold and coffee shop operations Ms McNamara concluded that No 88-90 did not come within the definition of a convenience store in the DCP. Ms McNamara asked her supervisor Christopher Corradi, Acting Area Manager, to inspect No 88-90, and she states that on or about 29 April 2009 he said words to the effect "I don't think it's a convenience store." On 25 June 2009, Ms McNamara revisited No 88-90, accompanied by Mr Corradi, and observed the coffee shop service area had not changed, but additional stock items were shelved at the rear. Ms McNamara visited No 88-90 again on 2 July 2009 to take photographs which showed well stocked shelves, including some pre-packaged food items. She concludes with her opinion that No 88-90 was still not a convenience store within the definition of the DCP.

7 A statement of agreed facts states that Ms McNamara viewed the plan attached to the 2006 development consent for No 88-90, but did not view the development application form relating to DA 2006/388 when making her assessment of the No 92-94 DA for that same site. 8 Ms Fagan also prepared an affidavit dated 15 September 2009 which states she is familiar with the provisions of the Sydney Local Environment Plan 2005 (the LEP) and the DCP, and uses both on a regular basis in her professional capacity. She discussed the No 92-94 DA with both Ms McNamara and Mr Corradi, and also received Ms McNamara's assessment report. Ms Fagan concluded that No 88-90 was not a convenience store within the definition in the DCP as it did not primarily sell pre-processed packaged snack foods. Ms Fagan also stated that she did not consider Pt 6 "Special provisions for certain uses" reflected in cl 28 of the LEP (objectives for amusement centres, brothels, restricted premises, late opening pubs and the like) and cl 29 (amusement centres, brothels, restricted premises, late opening pubs and the like) applied in this matter as a convenience store does not provide entertainment, alcohol or sex related services, and the proposed development as a convenience store and internet coffee shop did not constitute an amusement centre, brothel, restricted premises, late opening pub or the like.

9 Mr Corradi also prepared an affidavit dated 11 September 2009 which states he acted in Ms Fagan's job during April 2009, is familiar with the DCP, and on two occasions also inspected No 88-90. He concluded that No 88-90 was not a convenience store within the definition in the DCP as the premises were not being used primarily for the sale of pre-packaged processed snack foods. Mr Corradi advised Ms Fagan in mid May 2009 that he agreed with Ms McNamara that No 88-90 was not a convenience store. 10 The Applicant relied on a number of affidavits. Much of that material was superseded by the statement of agreed facts referred to in par 6. The affidavits otherwise detailed the negative economic impact of a convenience store at No 92-94 on the Applicant's convenience store at No 35-45 Wentworth Avenue and at No 88-90, and one other convenience store (in the same geographical area) owned and operated by another person. City of Sydney Convenience Store DCP 2004 (the DCP) 11 No 92-94 is zoned City Edge under the LEP. Controls for convenience stores which applies to No 92-94 are found in the DCP.

12 Relevant provisions are outlined as follows: 2.2 Objectives The objectives of this DCP are: • to prevent the excessive proliferation of certain types of businesses and encourage a broad range of different land use opportunities within the City of Sydney; • to apply consistent planning controls to all convenience stores within the City of Sydney; • to minimise potential adverse amenity impacts from convenience stores on surrounding properties; and • to enhance the scenic quality and amenity of streetscapes and public places within the City of Sydney by restricting the quantity of signage, lighting and shopfront clutter associated with convenience stores. 3.1 What type of development does this Development Control Plan apply to? The City of Sydney Convenience Store Development Control Plan 2004 will apply to all development applications for convenience stores lodged in the City of Sydney where the City of Sydney or Central Sydney Planning Committee are the consent authority. The DCP will apply regardless of whether the application forms part of another development application. This DCP also applies to applications to modify existing consents for established premises (eg. expansion of premises, inclusion of new activities or land uses within the premises). 3.2 Definition of convenience store For the purposes of this DCP a convenience store is defined as: • premises primarily offering pre-packaged, processed Snack Foods for sale in addition to soft drinks, cigarettes, magazines and other miscellaneous grocery and convenience items; and • a retail shop generally with under 200 square metres of floor area; and • located at street level in places with medium to high volume of passing traffic. In all cases, the discretion as to what development is considered to be a 'convenience store' for the purposes of this DCP shall be solely that of the consent authority and generally in accordance with this DCP.

4.2.3 Controls for concentration of convenience stores The following controls will apply to the location of convenience stores: • the minimum distance between convenience stores is 75m as measured in accordance with the following diagram. (Note: Diagram not included)

13 Clause 4.4.3 states that a development consent is required for any additional activities carried out at such premises including coffee shop. Sydney Local Environmental Plan 2005 (the LEP ) Part 6 - special provisions for certain uses 14 Clauses 28 and 29 provide: 28 Objectives for amusement centres, brothels, restricted premises, late opening pubs and the like The objectives of this Part are: (a) to minimise the impact of certain uses which may degrade the amenity of the City of Sydney, such as amusement centres, brothels, restricted premises, late opening pubs and the like, and (b) to ensure that such uses are not concentrated together, and that their cumulative impact is assessed, and (c) to improve the character and attractiveness of the City of Sydney for residential, retail, commercial and cultural activities. 29 Amusement centres, brothels, restricted premises, late opening pubs and the like Consent may be granted to the carrying out of development for the purpose of amusement centres, brothels, restricted premises, late opening pubs and the like only if the consent authority is satisfied that: (a) the proposal would not have a detrimental impact on the amenity of the locality and the desired character of the locality, as indicated by: (i) the objectives for the zone in which the land is situated, and (ii) if the land is in a Special Area, the character statements and specific objectives for the Special Area as set out in Schedule 6, (b) the proposal would not result in an inappropriate concentration of that use and, together with other of the above uses in the locality, result in a detrimental cumulative impact, and (c) the proposal would not be detrimental to other uses considered to be more consistent with the objectives of the zone in which the land is situated.

15 Clause 30 in Pt 6 refers to duty free stores. Applicant's submissions Failure to consider LEP cl 28, cl 29 16 When the Council granted development consent for No 92-94 it failed to take into account a mandatory relevant consideration as required by s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) namely cl 28 and 29 of the LEP, located in Pt 6, "Special provisions for certain uses". Prior to granting consent no assessment or opinion about the required matters was referred to in cl 29 contrary to the objectives in cl 28. 17 Firstly, construing the LEP on its terms provides that the genus of activities covered by cl 29 (amusement centres, brothels, restricted premises, late opening pubs) extends to "like" activities. The characteristics of the uses constituting the category (in order to ascertain if a convenience store is "like" those uses), are high traffic, late-operating, commercial services. A convenience is "like" these activities as such stores are similarly intended to operate late into the night, attracting as many patrons as possible; 7 Eleven Store Pty Limited v City of Sydney Council (2004) 138 LGERA 125. 18 Secondly, construing the control in light of the objectives expressed in cl 28 of the LEP, the purpose of the control is to apparently target late night opening activities within the city for a more specialised consideration of their potential impacts because such uses have a capacity to affect the amenity of neighbouring residents. Further, the nominated uses, and those that are "like" the category have been identified as necessitating separation in order to improve the character and attractiveness of the City. A convenience store has the capacity to improve the amenity of neighbouring residents, particularly from lighting, and the capacity to affect the character of an area if too many stores are concentrated in a particular area. The Council has specifically identified that convenience stores necessitate separation in order to improve the attractiveness and character of the City by the introduction of the DCP. 19 7-Eleven supports this submission. Lloyd J looked at an identical provision in an earlier LEP and concluded that cl 28 and 29 did apply to convenience stores. Clause 28 is informed by cl 29. Clause 30 does not assist in the interpretation of cl 28, 29, contrary to the First Respondent's submissions. The Council could have said so in the DCP if it did not want convenience stores included in cl 28 and 29. 20 No inference should be drawn based on the experience of Council officers that cl 28 and 29 were taken into account. According to par 17 of Ms Fagan's affidavit, she did not take cl 28 and 29 into account as she did not consider they applied (referred to in par 8). There was no assessment of the matters referred to in cl 28 and 29. Failure to comply with the DCP 21 When granting development consent the Council failed to properly take into consideration cl 4.2.3 of the DCP as required by s 79C(1)(a)(iii) of the EP&A Act. The Council has consistently applied the 75m distance requirement in cl 4.2.3 of the DCP. At the time the 2009 consent for No 92-94 was granted there was a development consent for a convenience store to operate and which operated at the adjoining site No 88-90, within 75m of No 92-94. This was the only justifiable and reasonable finding that could and should have been made by the Council about No 88-90. The 75m minimum distance between convenience stores specified in cl 4.2.3 was relevant because at No 88-90 a convenience store is operating. 22 In determining that No 88-90 was not a convenience store the Council adopted a different standard or definition of convenience store to the standard or definition in the DCP by adopting a standard or definition of a typical convenience store classification.

23 The second challenge to the consent depends upon the capacity of the assessing officer and consent authority to determine for itself whether the adjacent store was a "convenience store" within the meaning of cl 4.2.3 of the DCP. No 88-90 was granted development consent for use as a convenience store in 2000. It was granted consent for the addition of a coffee shop area in 2006 but continued its use as a convenience store. The view formed by the assessing officers that No 88-90 was not a convenience store was based on a single visit on 14 September 2009. That meant that the controls in cl 4.2.3 were not applied in the assessment of the DA. There was non-compliance with s 79C(1)(a)(iii) of the EP&A Act.

24 To interpret the DCP one must look at the whole document, its object and purpose and construe the words in light of that object and purpose. The DCP sets limits within which the convenience store can be placed. The application of the DCP has the capacity to affect third parties as well as the applicant for development consent but they have no third party appeal rights. The Council failed to take into account another convenience store, No 88-90, in assessing the No 92-94 DA. That cuts across the wording of the DCP which can apply only to the development application before the Council. It is not open to the Council in the assessment of a development consent to reconsider whether other premises are not a convenience store within the meaning of the DCP. 25 The intent of the DCP is to stop convenience stores operating close together. This objective is undermined if, notwithstanding the DCP, an officer could decide on a particular day having regard solely to the goods sold whether a store was a convenience store. Rather the Council should consider all development consents for convenience stores in the radius of 75m from No 88-90. That is less onerous than a Council officer going out to inspect premises. For example, if the use being undertaken is illegal at the time of inspection that should not be sufficient to refuse a DA. There must be more than mere advertence to a DCP, see Zhang v Canterbury (2001) 115 LGERA 373 per Spigelman CJ (Meagher and Beazley JJA concurring). In North Sydney Municipal Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 at [23] and [28] the Court of Appeal held that the council had misapplied the DCP. The Court can apply the same approach to reach that conclusion in relation to cl 3.2 of the DCP. Ms McNamara failed to properly consider the terms of the DCP in relation to No 88-90. As a result, her consideration of the DA for No 92-94 failed to take into account the DCP. 26 The First Respondent's submission that the Council can be informed in relation to cl 4.2.3 of the DCP (convenience store control) by what is on the ground is incorrect. The Council must also look at what has been lawfully approved and can be undertaken under consents issued by the Council. An assessment of the use of premises on a single day is not enough. Ms McNamara made an error when she viewed the premises and viewed the plan approved in 2006. Manifestly unreasonable 27 The assessment of the Council officer Ms McNamara that No 88-90 was not a convenience store was manifestly unreasonable. As Ms Fagan relied on her opinion the same error infects her determination of the development application. Ms McNamara formed her opinion based on one visit on 28 April 2009 and a review of the plans attached to the development consent granted in 2006 (not the Notice of Determination of development consent itself). This was flawed because she considered only one of the factors the first bullet point identified in cl 3.2 of the DCP. Her assessment does not consider cl 4.4.3 of the DCP which recognises that a convenience store may involve the additional activity of a coffee shop. The use of premises for a coffee shop does not disqualify their use for a convenience store. Her opinion was not reasonably formed as it was not reasonably open for anyone to conclude that the adjacent store was not a convenience store. King v Bathurst City Council (2006) 150 LGERA 362 at [61], [64] and [84] is analogous. 28 Ms McNamara also failed to correctly characterise the use permitted under the No 88-90 consent. The second consent (the 2006 consent) to add a coffee shop did not rob the character of the use as a convenience store. No 88-90 was capable of being used as a convenience store within the definition of cl 3.2 of the DCP. The 2001 consent permitted the retail sale of pre-packaged food and it could therefore operate as a convenience store as defined in cl 3.2 of the DCP. Council's submissions Whether failure to consider cl 28, 29 LEP 29 The Council does not dispute that cl 28 and 29 were not taken into account but whether these clauses apply is a matter for the Council to determine. The clauses refer to "like" development and whether that applies is a matter for the Council to determine. 30 Clauses 28 and 29 of the LEP appear in the general part of the LEP and in principle apply to every proposed development in the City of Sydney covered by the LEP. Council officers experienced in assessing development applications could rightly be assumed to know the general provisions of their LEP. Of the officers involved in the assessment and determination of this application: a) Bridget McNamara had been employed by the City since March 2007; b) Chris Corradi had been so employed since March 2005; c) The determining officer Sandra Fagan had been employed since April 1996 (albeit with a break in 1999-2002)

31 At the time of assessment and determination of the DA, none of these officers could be considered new or inexperienced in applying the provisions of the LEP in the assessment of development applications. They, and in particular the determining officer, Ms Fagan, would be presumed to be familiar with the provisions of their own Council LEP through long experience in applying its general provisions. 32 Furthermore it is disputed that the provisions of these clauses have specific relevance to the determination of the DA: a) convenience stores are not mentioned in terms; b) one is thus thrown back upon the words "the like"; c) a convenience store is a retail use; d) objective 28(c) of the LEP suggests that retail is one of the activities to be protected from the impacts of the uses covered by cl 28 and thus by implication to be distinguished from such uses. 33 The decision to approve the 2009 DA was taken by experienced Council officers who can be presumed to be aware of the relevant instruments, as recognised by McClellan J in Centro Properties v Hurstville City Council and Anor (2004) 135 LGERA 257 at [55]. His Honour, at [37], also referred to Weal v Bathurst City Council (2000) 111 LGERA 181 and summarised the principles that the Court must take into account in the event of a challenge to a development consent. Whether failure to comply with DCP 34 It is accepted that if the Court finds that No 88-90 is a convenience store to which the DCP control applies then the Applicant succeeds. 35 Council officers were aware of the DCP and had: a) been put on notice by various members of the public in writing, by email and on the phone that the contention was raised that No 88-90 was a convenience store; b) that the DCP sought to prevent a new convenience store within 75m of an existing convenience store; c) inspected No 88-90; d) researched the immediate planning history of No 88-90; and e) formed an opinion that No 88-90 was not a convenience store as defined by the DCP.

36 The DCP contains a definition of what is a convenience store for the purposes of the DCP. It is an exclusive definition and does not include other types of convenience stores outside the definition. Note in particular that the definition requires satisfaction of all three dot points and explicitly makes clear that the discretion as to what is or is not a convenience store is "solely" that of the consent authority. 37 Council planning officers came to the opinion that No 88-90 did not "primarily" offer such items for sale (first bullet point) and thus No 88-90 was not a convenience store to which the DCP applied. If No 88-90 were not a "convenience store" for the purposes of the DCP, then No 92-94 (the subject of the 2009 DA) was not for the purposes of par 4.2.4 of the DCP located within 75m of a "convenience store". 38 The evidence is that Ms McNamara did consider the DCP control and discharged the legal obligation to do so. She referred in her report to the concentration control in the DCP, specifically the radius of 75m, and noted that there was only one convenience store within that radius of No 88-90. She looked at the 2006 development consent plan for No 88-90 and inspected the premises at No 88-90. The separate inspections by qualified Council planning officers Mr Corradi and Ms McNamara established at the time of inspection: a) over 50 per cent of the floor area was devoted to the making and selling of coffee, and consumption on the premises. b) at the counter by the till where persons bought their coffee, primarily fresh food and rolls ready to eat were sold. c) the floor area devoted to the sale of "pre-packaged processed Snack Foods for sale in addition to soft drinks, cigarettes, magazines and other miscellaneous grocery and convenience items" was small. 39 Clause 3.2 specifies that it is her discretion whether there is a convenience store or not. She exercised her professional judgment in reaching the conclusion that she did and it was a conclusion reasonably open to her. There is no error in referring to only some of the bullet points in the definition. 40 The Applicant appears to suggest that while the definition of "convenience store" in the DCP can be used to understand what a convenience store is for the purposes of the DA under assessment, it may not be used to understand what is a "convenience store" for assessing whether there is another convenience store within 75m (par 29 Applicant's submissions). No reason is given for this assertion. It would be surprising and contrary to the usual rules of interpretation when a DCP contains a definition of convenience store, to hold that such words have one meaning in one part of the document yet another (undefined) meaning in another part of the DCP. 41 The significant word in the first bullet point in cl 3.2 in the DCP is "primarily". In some cases sale of coffee or other uses will be so de minimis or so ancillary as arguably not to require development consent. Each case must be assessed on its individual facts. In this case not only was there a separate DA for the coffee shop use but such use (including tables and chairs) takes up approximately 50 per cent or more of the floor area, contains a bar, a coffee making machine where coffee is made by the store operator, sink, tables and stools, fresh sandwiches made on demand, and a significant proportion of the other goods sold did not answer the description of "pre-packaged processed Snack Foods". 42 The Applicant submits (par 36 of Applicant's submissions) that the Council should have considered whether No 88-90 was capable of operating as a convenience store, not whether in fact it was. This again is an incorrect framing of the correct question, even on the assumption that somehow words should be read into the definition to refer to hypothetical future capability. Even assuming that the Council should have considered hypothetical future capability, the issue would still be whether or not such capability would make it a convenience store "primarily offering pre-packaged, processed Snack Foods for sale" while it operated in accordance with the 2006 consent. A development consent had been granted and implemented in effect by converting 50 per cent of the floorspace to coffee shop and non-convenience goods use, and this rather than a hypothetical future change of use of this space was a highly relevant matter for the Council to judge. The definition in cl 3.2 of the DCP is to be applied according to what is lawfully there. 43 The Applicant criticises Ms McNamara for inspecting No 88-90 only once prior to writing her assessment report (par 32 of Applicant's submissions). That ignores the fact that the inspection was informed by the email from Mr Davids of 28 April 2009 (see par 6) received that morning and in full knowledge of the issue being raised, and following research about the consent and approved plan for No 88-90. It was subsequently backed up by a further inspection from her acting area manager Mr Corradi (who in turn informed Ms Fagan) and her own research of the 2006 development consent for No 88-90. 44 The Applicant bears a heavy onus of demonstrating that the Council's decision to approve the 2009 DA was manifestly unreasonable, as identified in Save our Streets v Settree (2006) 149 LGERA 39. There is no basis for arguing that the Council's decision was so irrational that no rational council would have made it. First Respondent 45 The intent of the DCP is to manage the planning aspects of the operation of convenience stores. It is not directed at ensuring the economic viability of any operator. This is clear from the objectives of the DCP at cl 2.2. The focus of the concentration control is to ensure management of planning impacts or such uses. The definition in cl 3.2 specifies what is a convenience store for the purposes of the DCP. The Council has to assess the amenity of the area resulting from a particular use and must consider the actual use of any premises. The Council is not assessing a hypothetical possibility that a development consent can be used a certain way. Contrary to the Applicant's submissions, it is not sufficient to check the register of development consents to check the impacts. At the time of determination of the DA for No 92-94, No 88-90 was not operating in any way to satisfy the definition in cl 3.2 of the DCP. The risk of the convenience store at No 88-90 changing its operations to conform with the definition in cl 3.2 is the Council's, as that may raise different amenity impacts. 46 There was no manifest unreasonableness in the Council's officers' determination. There was no obligation to review the operation of No 88-90 over time. It is a matter for the Council to assess compliance with the DCP. It can nevertheless form a view that is erroneous in the application of the DCP. It is entitled to form a view on whether No 88-90 is a convenience store in the context of the controls in the DCP. 47 In relation to cl 28 and 29 of the LEP, and whether they were mandatory relevant considerations, the respective clause headings include the words "… and the like." This can be considered in construction, s 35 Interpretation Act 1987. What "and the like" means is a matter for the Council to determine. It appears odd if a retail activity such as convenience store is caught by cl 29. This is reinforced if cl 30 is considered as it deals with a specified retail activity. 48 7-Eleven dealt with whether a council had power to make a DCP to control convenience stores and relates to an earlier 2003 DCP. That DCP and the 1996 LEP were a package of instruments dealing with convenience stores. The Court is presently considering the 2004 LEP and the application of the 2004 DCP so that it is considering a different question. 49 Clause 28 includes the words "such as" but cl 29 does not. There is no test, contrary to the Applicant's argument, of whether the activity degrades the amenity of the area required by cl 29. 7-Eleven is not relevant. The objectives of both clauses assist in determining the scope of what additional development might fall within "the like". Objective (a) is directed to minimising the impact of certain uses which may degrade the amenity of the City of Sydney. There is no evidence that convenience stores are in such a category of uses. Objective (c) requires the improvement of the character and attractiveness of the City of Sydney for residential, retail and commercial and cultural activities, suggesting that retail activity is to be contrasted with the other activities specified in cl 29. Finding 50 These are judicial review proceedings, not a review of the merits of the Council's decision to approve the 2009 DA. The Applicant does not allege that there is any jurisdictional fact in issue whereby the Court must make its own determination of a fact in issue. Accordingly for the Applicant to succeed it has the onus of establishing that there was legal error in the Council's consideration in order for the 2009 consent to be declared invalid. Principles relevant to judicial review proceedings of this kind were identified by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 and are helpfully summarised in Centro Properties at [37] and include that the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried. Application of cl 28, 29 LEP 51 As submitted by the parties, the LEP must be considered as a whole when construing cl 28 and 29. These clauses appear in a section of the LEP that has potentially wide application. The objectives of Pt 6 are identified in cl 28. These concern the minimisation of impact of certain uses and avoidance of their concentration with a view to improving the character of other uses, including retail. The clauses apply to a potentially wide range of activities given the use of the words "and the like" in the heading and "such as" in cl 28(a) where examples of uses to which the Part applies are given. That broad wording is repeated in cl 29. Convenience stores are not specifically referred to in either clause. There is nothing in the terms of the clauses to suggest "and the like" requires that they apply to all convenience stores. If that had been the intention, that could have been specified in the clause. The submission of the Applicant that if the Council had not wanted the clauses to apply to convenience stores they could have said so, does not lead to a conclusion that all convenience stores automatically come within "and the like" for the purposes of cl 29.

52 The Applicant argued that cl 28 and 29 applied to convenience stores because the reference to "like" activities must include other high traffic, late-operating commercial services which must include convenience stores. That this is the case is supported by the DCP which provides a control on the concentration of convenience stores, according to the Applicant. The clauses had to be considered by the Council at least to the extent that whether they applied had to be considered in the Council's assessment. However, under cl 29 the Council must be satisfied of certain matters before it issues development consent for certain categories of use, a number of which are specified. Whether the clauses apply in the case of a particular development not in a category specified in cl 28 and 29 is a matter for the Council to decide, as submitted by the Council and the First Respondent. 53 As identified by the Council, cl 28(c) refers to the protection of various uses in terms of improving the character and attractiveness of the City of Sydney, including retail, as part of the objectives of this part of the LEP. Whether that requires that there be a specific reference in the Council's assessment to those clauses when they can potentially apply to a wide range of activities is not self-evident, contrary to the Applicant's submissions. The evidence of Ms Fagan in relation to cl 28 and 29 is that she did not take them into account as she did not consider that they applied. As stated in Ms Fagan's affidavit (see par 8) cl 28 and 29 are directed, in her view, to premises which serve alcohol and provide entertainment which does not include convenience stores. That is a judgment she is able to make in applying the LEP. The application of the LEP is not informed by the existence of the DCP. That the Council has chosen to make a specific development control plan for convenience stores does not mean that these must be considered under cl 29 of the LEP.

54 The Applicant relied on 7-Eleven to support its submission that cl 28 and 29 apply to convenience stores because these have the characteristics of late night opening and high traffic with potential for impact on neighbours. 7-Eleven concerned the validity of a clause in the City of Sydney Convenience Store DCP 2003 (the 2003 DCP) which prohibited the location of a convenience store within 75m of another convenience store. At issue was whether the council had power to make such a clause under the LEP then in force. Lloyd J held that there was power to make more detailed provisions in the DCP. The LEP contained very similar provisions to cl 28 and 29 in cl 60 and 61. He held at [19] that the words "and the like" do not limit the uses which may be considered to degrade the amenity of the area. He held that as a matter of ordinary construction, unrestricted or excessive proliferation or concentration of convenience stores may constitute a use which may degrade the amenity of Central Sydney and such an opinion was open to the Council. Clauses 60 and 61 of the LEP could therefore be relied upon as applying to convenience stores. This finding was made in the context that the applicant was arguing that cl 60 and 61 of the LEP were the purported source of power to make the 2003 DCP. Lloyd J dealt with that issue but noted at [16] that it was not necessary for the Council to restrict its power to make the DCP to particular clauses of the Central Sydney LEP. His Honour otherwise addressed the issue of whether cl 4.2 of the 2003 DCP generally conformed with the Central Sydney LEP 1996 and answered that question in the affirmative. 55 The finding in 7-Eleven is not authority that every application for a convenience store must be assessed under cl 28 and 29 of the LEP. His Honour was not considering that issue. His findings do not provide any precedent for how the Council should have assessed the 2009 DA for No 92-94 under cl 29 of the LEP. There was no error by the Council in not applying cl 29 of the LEP in its consideration and there was no failure to take into account a mandatory relevant consideration by the Council. The Applicant is unsuccessful on this ground of review. Application of DCP/whether Council decision manifestly unreasonable 56 The Applicant argues that the Council has failed to properly consider the concentration control for convenience stores in cl 4.2.3 of the DCP. It is useful to consider at the outset the objectives of the DCP in cl 3.2 (par 11). As emphasised by the Council and the First Respondent the objectives are directed to managing planning issues such as adverse amenity impacts of convenience stores in a local neighbourhood. They are not directed to ensuring the economic viability of individual operators of such premises. That argument underpins the Applicant's submissions (par 25) that there are third parties with interests in the Council's decision making under the DCP. That operators of convenience stores have concerns about their economic viability based on how the Council approaches the approval of such uses under the concentration controls in cl 4.2.3 of the DCP is not a concern that is relevant to the Council's consideration under the DCP. 57 The Council's approving officer Ms Fagan did not consider there was a convenience store operating within 75m of No 92-94 so that the concentration control of 75m between stores did not need to be applied. Her consideration depends on that of Ms McNamara, whose planning report recommended approval, which report she relied upon. Ms McNamara did not consider that the concentration control in cl 4.2.3 applied because of her conclusion that the adjacent No 88-90 was not being used for a typical convenience store, as referred to in her assessment report (undated). In her affidavit she states that she formed the view that No 88-90 did not meet the definition of convenience store in the DCP. It is this approach to the use of No 88-90 that lies at the heart of the Applicant's complaint about the Council's approval process for the 2009 DA. There were a number of errors by the Council, according to the Applicant. 58 Firstly, the principles in Zhang concerning the consideration of DCPs were referred to by the Applicant as supportive of its argument that the DCP was not properly considered by Ms McNamara and hence Ms Fagan. The DCP is clearly referred to in Ms McNamara's report. Her consideration of the DCP was not merely in passing so that I do not accept this submission of the Applicant.

59 Secondly, the terms of the DCP are argued (par 21) to apply only to the development application before the Council (the 2009 DA) and not to No 88-90. It was not open to Ms McNamara to conclude that No 88-90 was not a convenience store because the terms of the DCP could not be applied to that premises, it not being the subject of the DA before the Council, the DA in relation to No 92-94. I do not agree. There is no express or implied provision in the DCP which would limit consideration of which premises are a convenience store only to the premises the subject of the DA before the Council. I agree with the Council's submission (par 40) that to so confine the application of the DCP is contrary to the usual rule of statutory interpretation that the use of a term in one part of the document has the same meaning in another part. The DCP states at the end of cl 3.2 that the discretion as to what development is considered to be a convenience store for the purposes of the DCP is solely that of the Council. That is broadly worded and does not suggest the limitation referred to by the Applicant. 60 Thirdly, Ms McNamara failed to adopt the definition including cl 3.2 in the DCP in her assessment report but rather referred to a typical convenience store. While not stated explicitly in Ms McNamara's report that she is considering the definition in the DCP, that is clearly reflected in her conclusion that No 88-90 was not a typical convenience store, because it did not satisfy the first bullet point in the definition. In her affidavit Ms McNamara attests that she formed the view at the time of her assessment that No 88-90 did not meet the definition of convenience store in cl 3.2 of the DCP. Her reference in the assessment report was a shorthand way of considering the definition. No legal error arises from the use of the words "typical convenience store". 61 Fourthly, the determination that No 88-90 was not a convenience store was not open to Ms McNamara, according to the Applicant. She failed to look at the whole of the 2006 consent but only at the plan consented to. This, according to the Applicant, together with her inspection on 14 September 2009 was not the correct approach to the determination of the use of No 88-90. According to the Applicant, Ms McNamara's conclusion was simply not open to her because of the existing development consent in force for No 88-90. Development consent had been granted for the purpose of convenience store by the Council in 2001 and the 2006 consent to add a coffee shop did not alter that purpose. The use of No 88-90 as a convenience store had continued since 2001 and the 2006 consent did not rob the use of its character as a convenience store. 62 However the use of No 88-90 as a convenience store was not a given fact which Ms McNamara was bound by in her assessment, contrary to the Applicant's submissions. The consent granted in 2006 is identified in par 2 and does not explicitly state that the use of the premises was predominantly for a convenience store. The DCP in cl 4.4.3 recognises that a convenience store can include a coffee shop but whether a use of premises satisfies the definition in cl 3.2 must be determined in light of the individual circumstances of a development, as submitted by the Council. That Ms McNamara did not look at the notice of development consent, only the plan attached, does not suggest her approach was unlawful or that she misapplied the DCP. The Council investigated whether No 88-90 was a convenience store within the meaning of the DCP as they were entitled to do in the exercise of their planning responsibilities to assess a development application. The assessment was not "bound" by the terms of the 2006 consent when a coffee shop component was added. The DCP specifically states that the discretion as to whether premises are a convenience store resides in the Council. There is no legal error in applying the DCP in the Council's planning officers' approach. 63 I accept the submissions of the Council and the First Respondent that the Council was not bound to consider the register of development consents alone, but was required to undertake an assessment of the planning consideration relevant to the decision whether to approve the 2009 consent. That incudes a consideration of the operation of nearby premises if the Council officer considers that to be appropriate, as in this case. The extent of the Council officers' inquiries is identified in the Council's submissions (par 35 and 38) and Ms McNamara's affidavit (par 6). 64 I agree with the Council's submissions that Ms McNamara and Ms Fagan did consider the DCP control appropriately and presumption as identified in Centro Properties applies (par 32 of the Council's submissions). There was no failure in application of the DCP such as was considered in Ligon. 65 Further in a closely related ground of review Ms McNamara's decision in relation to No 88-90 and consequently her decision that the concentration control did not apply is said to be manifestly unreasonable. Manifest unreasonableness is a stringent hurdle as has been recognised in many cases, as referred to in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109 at [113] to [116] and Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors (2008) 160 LGERA 274 at [140] to [141]. Ms McNamara is criticised for only undertaking one inspection of No 88-90 before she decided it was not a convenience store within the terms of the DCP. As her affidavit shows, she undertook more than one inspection (see par 6). Her view is supported by experienced officers, Mr Corradi and Ms Fagan. King v Bathurst City Council is not analogous to these facts. 66 Ms McNamara is also criticised for not properly characterising the use of No 88-90 as a convenience store. I have already rejected that argument above. Ms McNamara's conclusion that No 88-90 was not a typical convenience store for the purposes of the DCP was not manifestly unreasonable. 67 The Applicant is unsuccessful on the grounds of review concerning the DCP. As the Applicant is unsuccessful in its application these Class 4 proceedings should be dismissed. The parties have yet to address me on costs.

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.

(2004) 135 LGERA 257

(2008) 160 LGERA 274

(2006) 150 LGERA 362

(2000) 111 LGERA 181

(2001) 115 LGERA 373

(2004) 138 LGERA 125

At a glance

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Judgment (25 paragraphs)

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Cases Cited (10)

Cited By (1)