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[2014] NSWLEC 1142
Land and Environment Court (NSW)
2014-06-17
Original judgment source is linked above.
Background 1This appeal arises from council's refusal of a development application for alterations to the Seagulls Club located at 54-68 Gollan Drive, Tweed Heads to incorporate an IGA supermarket within the existing club building. Under the planning controls in force when the application was lodged, a grocery store was permissible with consent but the more recent Local Environmental Plan 2014 now prohibits this form of development on the site. 2The Seagulls Club is a large regional leisure/entertainment facility, which has operated in the Tweed Shire for more than 30 years. Originally it was set up as the home ground of the Gold Coast Seagulls Rugby League Club. However the playing fields have now been converted for residential dwellings with the club premises and large sealed car park for some 580 vehicles together with another 232 car spaces on the grassed areas, remain within a parklike setting. 3The club currently provides a range of entertainment/leisure uses, including:
The site 6The site is described as Lot 2 DP 881169 and it has a total area of 4.94 ha. The principal access to the site is via Gollan Drive, which connects to Kennedy Drive that provides the main access route into the Tweed Heads commercial areas comprising the Centro Centre and Tweed Heads South shopping centre, a distance of some 7 - 8 km. 7The area surrounding the site comprises a mix of low to medium density dwelling houses. Located approximately 250m to the north of the site is the Panorama Plaza neighbourhood centre containing a range of shops including grocery shop/newsagency, butcher, baker, hairdresser and liquor shop. It has a small adjacent car parking area. 8The existing building contains an area in the order of 16,822 sq m, which is used for various purposes including:
The proposal 10The DA proposes an extension of the eastern elevation of the central part of the existing building to increase the gross floor area by 314 sqm and then use it together with part of the existing building (1,965 sqm) for the purpose of the IGA supermarket making a total area of about 2279 sqm. A further internal area at the rear of the supermarket is proposed on a shared basis to allow the IGA to utilise the existing loading dock, internal corridors and cold storage area. 11The proposal involves some reconfiguration of the existing car park to provide for 58 designated car parking spaces to accommodate demand from the IGA supermarket customers. 12It is estimated that the general store will occupy 4% of the area of the land and 11% of the floorspace of the existing building as modified by the proposal.
Planning controls 13The site is subject to a number of planning controls as follows. Firstly, there is the Tweed Local Environmental Plan 2000 (TLEP) under which the site is zoned part 6(a) Open Space and part 6(b) Recreation. The development proposed by the DA will be located within the 6(b) Recreation zone. Development for a general store is permissible with consent in this zone. 14Relevantly, the TLEP cl 8 Consent considerations provides: 8 Consent considerations (1) The consent authority may grant consent to development (other than development specified in Item 3 of the Table to clause 11) only if: (a) it is satisfied that the development is consistent with the primary objective of the zone within which it is located, and (b) it has considered those other aims and objectives of this plan that are relevant to the development, and (c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole. 15Clause 4 contains the following aims of the Plan: The aims of this plan are: (a) to give effect to the desired outcomes, strategic principles, policies and actions of the Tweed Shire 2000+ Strategic Plan which was adopted, after extensive community consultation, by the Council on 17 December 1996, the vision of which is: "The management of growth so that the unique natural and developed character of the Tweed Shire is retained, and its economic vitality, ecological integrity and cultural fabric is enhanced", and (b) to provide a legal basis for the making of a development control plan that contains more detailed local planning policies and other provisions that provide guidance for future development and land management, such as provisions recommending the following: (i) that some or all development should be restricted to certain land within a zone, (ii) that specific development requirements should apply to certain land in a zone or to a certain type of development, (iii) that certain types or forms of development or activities should be encouraged by the provision of appropriate incentives, and (c) to give effect to and provide reference to the following strategies and policies adopted by the Council: Tweed Shire 2000+ Strategy Pottsville Village Strategy, and (d) to encourage sustainable economic development of the area of Tweed compatible with the area's environmental and residential amenity qualities. 16The relevant zone objectives for the Zone 6 (b) Recreation are: Zone objectives Primary objective · to designate land, whether in public or private ownership, which is or may be used primarily for recreational purposes. Secondary objective · to allow for other development that is compatible with the primary function of the zone. 17The provisions of the Draft Tweed Local Environmental Plan 2012 (Draft LEP) also require consideration. At the time of lodgement of the DA the DLEP was awaiting gazettal. However it was gazetted in April 2014 (TLEP 2014) with the site being zoned RE2 Private Recreation, under which the proposal is prohibited. But the DA has the benefit of the following savings clause: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 18The other relevant controls include:
The evidence 19The following experts presented detailed evidence in response to the contentions. Considering the overlapping nature of some parts of the evidence and the formatting of the joint reports in terms of discussion on disagreed points, I have initially considered all the evidence and the associated application of the various results, particularly the findings of the retail modelling, to the other contentions concerning social and cumulative impacts and on the community. Economic assessment
Contention 1 - consistency with Primary Objective of 6(b) Recreation Zone 20This contention concerns whether the proposal is consistent with the primary objective because it constitutes a commercial use rather than a recreational use and it is an independent use, which has no correlation to existing recreational uses on the site. 21As the proposed use is for the IGA supermarket, which is a form of a grocery store, it is a use "other than development specified in Item 3 of the Table to clause 11)", then consent may be granted only if the consent authority is satisfied that the development is consistent with the primary objective of the 6(b) zone as follows: · to designate land, whether in public or private ownership, which is or may be used primarily for recreational purposes. 22Insofar as the word 'designate' is not defined, I note that there are significantly different submissions regarding its interpretation in the subject context. Mr McEwan submits that it means that the land is set aside for the purpose and accordingly, the use of the land in the zone should be primarily for recreational use. Against this, Mr Robertson's submission is that when the primary zone objective talks about designating land, it talks about designating land whether in public or private ownership which is or may be used primarily for recreational purposes. That is, it is describing what the zone has done by designating or specifying the land use rather than setting it apart. 23Insofar as the planners agree that a grocery shop is not categorised as a recreational use, they addressed this contention on the basis that Mr Tzannes considers that while any alternative uses do not necessarily need to be recreational, nevertheless they must be consistent with the primary objective of the zone. Consequently he does not consider the proposal achieves this consistency because:
52In view of the significant differences between these experts, they agreed that the best way to understand inputs and assumptions was to undertake sensitivity utilising five scenarios as follows: (1)Existing gravity model (Mr Hack's model) including Showcase and ALDI, Coolangatta and ALDI South Tweed. (2)Haratsis maximum competitive weekly shopping economic impacts. This scenario included all turnover from the butcher and bakery and competitive turnover from the grocery store including all groceries, fruit and vegetables and deli items. (3)Haratsis likely competitive weekly shopping economic impacts. This scenario included 50% from the butcher and baker and competitive turnover from the grocery store including all groceries, fruit and vegetables and deli items. (4)Economic impact of a hypothetical IGA supermarket located at 212 Kennedy Drive (site currently occupied by medical centre, chemist and Seafoods). (5)Mr Hack's High Impact Scenario assuming closure of two tenancies 53The following sensitivity analysis was derived from this modelling: GRAVITY MODEL IMPACTS Panorama Plaza Impacts plus Panorama Plaza Average Grocery / Supermarket Specialty Food Supermarket Induced Expenditure (.) (0 8m) $m % $m % $m % $m % Scenario 1 -1.2 -18.7% -0.7 -39 0% -0 5 -39.0% -0 4 -6 5% Scenario 2 -0.6 -9 3% -01 -7.0% -0 5 -39.0% 0.2 3.2% Scenario 3 -0.4 -5 9% -0.1 -7.0% -0.2 -21.0% 04 6.5% Scenario 4 -1.0 -16 8% -0.6 -34 0% -0.4 -37 0% 0 0.0% Scenario 5 -2 4 -38.0% -1.8 -100.0% -0.6 -50 0% -1.6 -25.8%
*Supermarket induced expenditure as forecast by Mr Haratsis. Mr Hack does not agree that this additional benefit will be realised. Scenario 1: Existing gravity model (Mr Hack's model) including Showcase and ALDI, Coolangatta and ALDI South Tweed. Scenario 2: Haratsis maximum competitive weekly shopping economic impacts. This scenario included all turnover from the butcher and bakery and competitive turnover from the grocery store including all groceries, fruit and vegetables and deli items. Scenario 3: Haratsis likely competitive weekly shopping economic impacts. This scenario included 50% from the butcher and baker and competitive turnover from the grocery store including all groceries, fruit and vegetables and deli items. Scenario 4: Economic impact of a hypothetical IGA supermarket located at 212 Kennedy Drive (site currently occupied by medical centre, chemist and Seafoods). Scenario 5: Mr Hack's High Impact Scenario assuming closure of two tenancies. 54Based on the modelling, Mr Haratsis says that Scenarios 2 and 3 are the most likely outcomes from the gravity model. Importantly he believes that the proposed supermarket will induce additional spend to the specialty shops at Panorama Plaza. He estimates that approximately 5% additional to the IGA supermarket spend could be redirected to the existing shops at the Panorama Plaza, that is $800000. Therefore Scenario 2 and 3 would result in a small net positive impact on Panorama Plaza. 55Against this Mr Hack believes that Scenario 1 is the more likely impact and Scenario 5 shows additional secondary impacts from the IGA on Panorama Plaza should closure occur. His reasons are:
The submissions 93In view of the overlapping issues I initially addressed the evidence of the respective experts in order to reasonably integrate the various opinions on the issues of common interest. It is apparent from the final submissions that the threshold issue concerns whether the form of expression of the zoning and planning controls facilitates the proposed development. 94For the ultimate determination of this matter, it seems to me that the context of the proposal is important. Insofar as the proposal is for a relatively large IGA of approximately 2,000 sq m into the Seagulls Club, it is located about 250 m from the existing Panorama Plaza neighbourhood centre, which is of an older style of centre that contains a grocery store, other small businesses and parking. 95This subject neighbourhood centre is about 8 km to Centro Shopping Centre, which together with Tweed Heads South provide the main shopping areas in the shire that could have an influence on the proposal. As Centro is located in Tweed Heads town centre it is near the large Twin Towns RSL Club that contains many gaming machines. Likewise the Tweed Heads Bowling club is located about 700 m to the south of Centro and it to contains many gaming machines. The relative proximity of these licenced clubs to the shopping centre was used as a comparison to the proximity of gaming machines in the Seagulls Club to the IGA supermarket. 96Whilst there are other smaller shopping centres, it appears to me from the evidence that they are unlikely to have any significant impact in regard to the proposal. Except possibly for the designated neighbourhood centre with 3(b) business site zoning in "Kennedy Drive" that is largely undeveloped and is located in reasonable proximity to Panorama Plaza. 97For the determination then of the application, the prevailing control is the Tweed LEP 2000 under which the site is zoned part 6(a) Open Space and part 6(b) Recreation. Accordingly a grocery store is permitted with consent on the 6(b) land. Subsequently consideration has to be given the weight to the provisions of the more recent TLEP 2014, which now prohibits the proposal. 98Clause 8(1) only allows the consent authority to grant consent if it is satisfied that the development is consistent with the primary objective of the zone, which in this case is to:
Conclusion 132Having considered the evidence, the submissions and undertaken a view I do not consider this application merits approval. The threshold issue in this matter for the granting of any consent concerns the provisions of cl 8 of TLEP 2000. Clause 8 (1)(a) requires the development to be consistent with the primary objective of the 6(b) Recreation zone, which is to designate land, whether in public or private ownership, which is or may be used primarily for recreational purposes. 133Insofar as there were different submissions about the definition of 'designate', in the context of this development I do not consider them determinative. The proposal is for a grocery store, which is a permitted use that I accept is not a recreational use, as agreed by the planners. Therefore following Mr Robertson's submission, I am initially inclined to accept that the retail function in this recreational zone is not consistent with the primary recreation purpose. 134I have then considered the various examples presented to illustrate how a grocery store use may be connected to the recreational use so as to promote the recreational use as does the store in a caravan park or a kiosk in a park so as not be antipathetic to that use. In this regard I note Mr McEwen's submission that "consistent" should be construed as not "antipathetic" thereto. 135However it seems to me that Mr Robertsons qualification referred to in Addenbrooke regarding the wider view of the word "consistent" not being confined to the notion of not being antipathetic and is synonymous with compatible, should be applied. It follows from this that a supermarket does not have to interfere with the club to be inconsistent with it. 136Taking into account the operation and scale of the proposed supermarket, which I consider is of a significantly different relationship to a kiosk or caravan park store in a recreational zone, I am not satisfied that the supermarket is compatible with the recreational club use, based on Mr Robertson's submissions that:
161Insofar as Mr Hack accepts that there could be induced expenditure impacts, it is on the basis that such expenditure would result from having a conglomeration of collocated shops in the Panorama Plaza where shoppers would easily go from shop to shop and spend. Whilst he estimated a loss of 45% in trade for the PP supermarket and 23% overall for PP, he acknowledged that there could be some induced spending from the IGA presence but the loss would be greater than the gain. Contrary to Mr Haratsis' evidence, Mr Hack said he regularly uses telephone surveys although the particular survey was not used in this case. Consequently, when the results of the survey are considered with the modelling, it I have some concerns with the reliability of Mr Haratsis' alternative assumptions. 162Given the different modelling approaches, I think it reasonable to consider the relative convenience of shopping. If the IGA is approved it will carry the full range of goods carried by the PP except probably the newspapers, lotto and liquor purchases. As some 49% of the local catchment area indicated they would use IGA for convenience shopping and 37% said they would use it for their regular shopping, its seems to me that the attraction to Panorama Plaza for convenience shopping would be significantly diminished. I do not see much attraction or economies in two separate convenience shopping trips. Based on these percentages, I consider there is likely to be a significant loss of sales at the Panorama Plaza, as opined by Mr Hack, whose evidence I prefer to rely upon. I have some difficulty in accepting the reality of Mr Haratsis' 5% ($800,000) induced spending amount at the Plaza. 163As noted previously, the social planners relied to some extent on the economic assessment results. Their agreement was that if Mr Hack's position was accepted then there would likely be an adverse social impact on PP, although 'modest' in Assoc Professor Ryan's opinion. 164In light of my assessment that the approach of Mr Haratsis not be relied upon because I think there will likely be a significant diversion of trade away from Panorama Plaza, then there is the likelihood of 1 or 2 shops at PP closing, which I understand would cause adverse social impacts. In my assessment these impacts will be neutralised with the refusal of the DA and the retention of PP shops. 165For my consideration of this matter, I note the social planners evidence that there could be potentially positive benefits with the approval of the IGA because it could offer better convenience for some, it could reduce travel time/costs and it could provide greater product choice at more competitive prices 166However these benefits arise only if the larger IGA merits approval on the 6(b) recreational land. As I do not consider the proposed IGA satisfactorily responds to the prevailing controls, I do not consider these potential benefits should be given such weight leading to the approval of the application. 167In regard to the benefits of providing more competitive shopping, I have considered the applicant's submissions regarding Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 where the Court held that: If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration, (at p 687). 168Following this authority in the subject matter, whilst I consider there is likely to be an adverse economic impact on the PP shops, I would give that aspect little weight. Instead, from my overall consideration of the prevailing planning controls, I do not consider the proposal adequately satisfies the provisions of cl 8 of the LEP. 169The other part of the potential social impacts concerned the co-location of the supermarket with the Club containing gaming machines. I accept the evidence that the key factor in assessing gaming related harm concerns the density of the gaming machines. 170Insofar as the planners referred to the results of the telephone survey, the local Tweed demography and other academic papers on problem gambling, it was stated in the joint report that: Tweed LGA is identified as a high-risk EGM area under the Gaming Machines Act 2001 (Band 3 Local Government Area), and has double the rate of density of EGMs compared with the NSW average. Seagulls is a large EGM club (having four times number of EGMs compared with club averages for NSW, and double the rate for clubs in Tweed LGA). 171According to Dr Stubbs' interpretation of the survey results:
Court orders 185The Court orders that: (1)The appeal is dismissed. (2)Development consent to DA 12/0527 for internal alterations, additions and reconfiguration of the car park to the Seagulls Club at 54-68 Gollan Drive, Tweed Heads West to permit a new general store is refused. (3)The exhibits may be returned except 1, 6, 7, 10, 15, 17, 24, A, F, H. R Hussey Commissioner of the Court 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: 16 July 2014
North Sydney Leagues Club Limited
Tweed Shire Council
[1979] HCA 20
(1993) 80 LGERA 190
(2002) 124 LGERA 147