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:
- Any increased access and exposure to EGMs at the Seagulls Club would be expected to increase the risk of frequent play and problem gambling in an already vulnerable locality. This is through increasing exposure and visibility of a large EGM venue for those already at risk of moderate or severe problem gambling when they visit the supermarket (e.g. increased temptation to gamble for those trying to avoid playing EGMs); and increasing frequency of play (and thus risk of problem gambling) for those who are not already problem gamblers when the visit the IGA potentially several times per week for convenience shopping; and increasing exposure to EGMs for non-Club members or users when they visit the IGA, Ms Ryan suggests, the Club is already acting as a hub of community activity.
- The fact that the proposal does not increase 'density' of EGMs does not mean that it does not increase risk of gaming harm. As noted in Storer et al, the relationship is more complex, and the authors do not exclude other 'accessibility' factors in contributing to problem gambling.
- Given the existing vulnerability of this community, an activity that increases exposure to gaming machines where people are conducting everyday activities (i.e. grocery shopping) or congregate for other activities is best avoided.
172However Assoc Professor Ryan says that there is limited research evidence or academic studies which to consider as to whether the proposed store will lead to an increased risk of problem gambling due to increased numbers of people accessing the site. The increase in accessibility due to the increase in recreation uses on the site has not to date demonstrated that there has been increased access to gaming machines or increased harm or threat of problem gaming resulting from increased accessibility. In any case the Seagulls Club has existing, demonstrated practices and controls to manage problem gambling.
173It is apparent that the social planners are not agreed on the potential impact of co-locating the IGA with the Club. However given the number of gaming machines is the critical factor and there will be no increase in machine, I suppose the best outcome could be a neutral impact. I am not convinced from the evidence that the co-location would result in positive social benefits in response to the potential gambling contention.
174The remaining issue concerns the weight to be given to the new LEP 2014, under which the land is in the RE2 Private Recreation zone, which would prohibit the proposal. However this application has the benefit of the savings clause whereby it is to be determined under the provisions of Tweed LEP 2000, under which a grocery store is permitted. It was agreed that LEP 2014 be considered as imminent and certain.
175For the consideration of this issue, reference was made to recent cases including The Mac Services Group Pty Limited v Mid-Western Regional Council [2014] NSWLEC 1072, wherein Dixon C decided that it was not necessary to consider the new LEP. However an alternative view was expressed by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142. However for the purpose of the subject determination, the Applicant agrees to the long accepted approach of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, where he determined:
28. Finally, Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 (unreported) was heard after the 2001 LEP had been made. I held (at par [6]) that the effect of the savings clause (cl 5(3)) meant that the notionally draft planning instrument must be awarded such weight as must be given to any such instrument when its implementation is certain and imminent. I further decided (at par [11]) that in the circumstances of that case the notionally draft local environmental plan should be afforded determining weight.
29. It seems to me that in applying the savings clause, cl 5(3), to the present case, one cannot ignore the fact that the 2001 LEP has been made. In applying the words of the clause that "the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced", it is necessary in the light of that circumstance to assume that the making of the notionally draft plan was certain and imminent. In Architects Haywood v Bakker Pty Ltd, Pearlman J said that the savings provision does not require a different approach. I thus reject the submissions of the applicant that this approach is not consistent with the purpose of cl 5(3).
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
176Accordingly there are 3 objectives for the RE2 zone:
· To enable land to be used for private open space or recreational purposes.
· To provide a range of recreational settings and activities and compatible land uses.
· To protect and enhance the natural environment for recreational purposes.
177I note Mr McEwan's submissions regarding Beasley JA findings in Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107 where her Honour said that the objectives themselves are not necessarily consistent because they reflect conflicting demands upon development within the particular local government area. That conflict is evident in the objectives for the RE2 zone. Whilst the objectives facilitate use of land for recreational purposes in the first and third objectives they also recognise the objective of permitting compatible land uses.
178Considering then the zone objectives, I do not consider a large grocery store as proposed is a recreational use or compatible with such use, as previously determined. It would displace the use of the land for recreational purposes and therefore not comply with the first objective Likewise I do not consider the proposal would enhance the natural environment for recreational purposes.
179However the second objective allows a range of recreational settings and compatible land uses. It seems to me that the proposal does not provide a recreational setting, nor a recreational activity, as previously determined. Presumably applications under LEP 2014 would have to establish the compatibility of any such alternative use with the recreational use in a similar manner to the examples previously mentioned.
180Just because the grocery store is substantially located within the existing Club building, I do not consider this adequately demonstrates that the uses would co-exist in harmony. In this regard I have concerns about the impact of the scale of the development, traffic and access impacts that have not been addressed in detail. Based on the compatibility examples previously addressed, I rely on my initial finding that a large grocery store is similarly not a compatible use in the private recreation zone. Accordingly I do not consider this proposal is consistent with the zone objectives and therefore does not support the approval of the development.
181In summary then, I understand the evidence that there is an unsatisfied demand for more shopping space in this west Tweed Heads area and that the construction of the IGA could practically be undertaken and substantially satisfy this demand. But there is a raft of strategic controls, some of which lack specificity, where neighbourhood centres are designated and they include business zones that allow the provision of more shopping space.
182These controls reinforce the current strategy to maintain and protecting existing centres. I do not consider the Seagulls site is designated as the focal point for the development of the various shopping components in the commercial square even though it is located within the 400m radius of influence. The evidence indicates to me that the neighbourhood centre is focussed on Panorama Plaza
183Furthermore, it seems to me that the proposed IGA (with GFA of about 2200 sq m) is a quite large grocery store, which is not the size envisaged by the controls, if such neighbourhood centres generally have an overall area of about 1000 sq m as stated by Mr Tzannes. Presumably the opportunity to change this strategy and provide more shopping opportunities has been considered but obviously not adopted in the recent updating of the LEP 2014 or associated strategic plans. I consider the maintenance of the Panorama Plaza as the core of the local neighbourhood centre with its existing infrastructure represents orderly development based on the current planning control provisions and a reasonable public interest outcome.
184In the ultimate, my opinion is that this proposal is not consistent with the provisions of cl 8(1)(a) of Tweed LEP 2000 and the application should be refused.