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[2011] NSWLEC 1023
Land and Environment Court (NSW)
2011-01-28
Mr P
Original judgment source is linked above.
Judgment 1This is an appeal against the deemed refusal by Sydney City Council (the council) of Development Application D/2010/1350 which proposed the alterations and additions to three adjoining warehouse units at Nos. 2-10 Fountain Street, Alexandria to accommodate a supermarket including fresh food, a separate specialty shop and offices. 2The main contentions in the matter are:
The site and its context 3Nos. 2-10 Fountain Street, Alexandria (the site) is located on the south-western side of Fountain Street and is separated from McEvoy Street by a narrow parcel of land set aside for the widening of that roadway by the Roads and Traffic Authority (RTA) at some future time. 4The site is irregular in shape and has frontage to both Fountain and Lawrence Streets. All vehicular access is provided from Fountain Street via separate entry and exit cross-overs which are located approximately 55m from the intersection with McEvoy Street. 5A large brick industrial building divided into four units is erected across the western portion of the site with a graded carparking area and truck manoeuvring area to the south of the building. A total of 69 parking spaces are currently provided on the site. A landscape strip approximately 3m wide runs along the eastern property boundary and returns across the southern boundary to the face of the southern-most unit. Landscaped setbacks, approximately three metres wide, are provided along the Fountain and Lawrence Street frontages to the site 6Each unit comprises ground floor space serviced by individual loading bays and first floor office space. 7The site adjoins residential development on all its boundaries. A residential flat building complex is located to the east and south, fronting McEvoy and Harley Streets, a townhouse development is sited to the west fronting Lawrence Street and a former industrial building converted to residential units located in the north-western corner of the site, which has frontage to both Fountain and Lawrence Streets. 8Development to the west of the site is primarily residential and to the east and along McEvoy Street is a range of retail, industrial, business, bulky goods, mixed use and residential developments.
Background and the proposal 9Development of the site was approved by the council in 1982 with consent being granted for the construction of three warehouse units and offices. Various consents have applied to the use of these units since that time and have involved reconfiguration of floor space between those units and the conversion of the central unit into two separate tenancies. Those consents relevant to this matter are:
The planning controls 17The site is within Zone No. 10 - Mixed Use Zone pursuant to the provisions of the South Sydney Local Environmental Plan 1998 (the LEP). Shops and commercial premises are uses permitted with consent in this zone. Clause 8 requires consideration of the goals and objectives contained in the Strategy for a Sustainable City of South Sydney to the extent that they relate to the proposed development. Clause 10 provides that consent must not be granted unless the consent authority is of the opinion that the proposed development is consistent with the objectives of the zone. Clause 28 provides built environment design principles that must be considered in determination of an application. 18The principal objectives of the LEP are: (a)to ensure a sustainable City of South Sydney through the efficient and equitable management and allocation of resources, and (b)to enhance the quality of life and well-being of the local community, and (c)to implement the goals and objectives contained in the Strategy for a Sustainable City of South Sydney published in June 1995 by the Council, and (d)to repeal all the existing local environmental planning instruments applying to the land to which this plan applies to the extent to which they apply to that land, and to replace those controls with a single local environmental plan, and (e)to rationalise the former land use restrictions by creating a small number of zones, and (f)to create an integrated planning framework of land use controls which allow detailed provisions to be made in development control plans. 19The objectives of the Mixed Use Zone are: (a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and (b)to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and (c) to permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres, and in doing so, assist successful urban consolidation, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and (f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas, and (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 20South Sydney Development Control Plan 1997: Urban Design (the DCP) applies to the site. Relevant provisions relate to enhancement of the City's urban villages and public domain, access, carparking, setbacks, faade treatments and land use mix. Specific controls are provided in Part F of the DCP that relate to Mixed Use Development. The site is located within a Transitional precinct for the purposes of the DCP. The relevant planning intent for that category is described as:
Strategic Planning Documents 28Mr Tomasetti, for the council, referred me to a number of strategic planning documents prepared by the council, the state government and consultants on behalf of the council. These include Sustainable Sydney 2030 The Vision, a document that was published in 2008 and, according to the message from the council's CEO contained in page 10, "The Vision sets the agenda for the City's Corporate Strategic Plans and Capital Works in the years to come." Particular reference was made to the sections on integrated transport initiatives and the activity hubs identified in the vision. 29The Green Square and Southern Areas Retail Study (the Retail Study), the Green Square Town Centre Infrastructure Strategy (the Infrastructure Study), the NSW Metropolitan Plan for Sydney 2036 (Metropolitan Strategy), Sydney City Draft Subregional Strategy (Subregional Strategy), the Green Square Urban Renewal Area Background Paper - Final Report and the Green Square Urban Renewal Area Transport Management and Accessibility Plan (TMAP) were all said by the council, to be documents relevant to the application. 30It was agreed that the site was not included within the area to which the Retail Study and the Infrastructure Study applied and that the site is outside the GSURA. 31The council contends that the documents have been used to inform the preparation of the Draft Sydney Local Environmental Plan 2011 (draft LEP 2011) and supporting Draft Sydney Development Control Plan 2010 (draft DCP 2010) . The issue of weight to be applied to these documents is discussed later in this judgment.
Draft Sydney Local Environmental Plan 2011 and DCP 2010 32The Director General of the Department of Planning issued a conditional s65(2) certificate in relation to the draft LEP 2011 on 24 November 2010. That followed a resolution of the council on 13 September 2010 to endorse and exhibit the plan for a period of 60 days. Due to the school holiday period, the exhibition of the plan did not commence until 2 February 2011, following the conclusion of the hearing. 33Draft LEP 2011 has been prepared in accordance with the Standard Instrument (Local Environmental Plans) Order 2006 and incorporates the planning controls from the former South Sydney Council area and that part of the Leichhardt Local Government Area now administered by the council. Evidence provided during the proceedings shows that draft LEP 2011 is the culmination of several years of planning review by the council and consolidates the planning studies and policies of the council. 34The site would be zoned B4 Mixed Use by draft LEP 2011 and the objectives of that zone are: To provide a mixture of compatible land uses. To integrate suitable business, office residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. To ensure uses support the viability of centres. 35A shop would be a use permitted with consent in the B4 zone however, clause 7.23 of the draft LEP 2011 identifies the site within an area designated as Restricted Retail Development. The objectives of that clause are: (a)To promote the economic strength of Green Square Town Centre and planned local centres by limiting large-scale retail development to those centres, (b)To support the provision of community facilities and infrastructure in the Green Square Urban Renewal Area. 36The effect of clause 7.23 is to limit the grant of consent for the purposes of retail premises to a maximum gross floor area of 1,000 square metres. Accordingly, the proposed supermarket, which has a gross floor area of 2,317 square metres with 153 square metres of ancillary office space, would not satisfy the requirements of that clause and could not be approved if the plan was made. 37The draft DCP 2010, in cl 2.11, adopts a hierarchy of centres in the City South area. The site is within the area to which that clause is intended to apply, the boundaries being defined within the Green Square Town Centre Primary Trade Area. The proposed hierarchy would adopt the Green Square Town Centre as the major centre, Victoria Park, Danks Street and Ashmore Estate as Local Villages, Botany Road, Rosebery as a Small Village and Dalmeny Avenue, Rosebery as a Neighbourhood Centre with future locations for such centres to be determined by demand over the life to the plan. The site is not within any of these nominated centres.
The issues 38Prior to the hearing, several applications were made to the court in relation to the proceedings and leave has been granted to the applicant to rely on amended plans. As a result, the issues in dispute have been reduced or agreed by the council to be capable of being addressed by consent conditions. The remaining contentions are: (1)A supermarket in this out-of-centre location is not supportable because it is inconsistent with the City's adopted centres strategy for the southern areas. (2)A supermarket of the size proposed on this site would not be a permissible under the draft LEP 2011. That plan will implement the endorsed hierarchy and council's resolution on the retail study through land use controls. (3)The proposed development is not orderly development or in the public interest because it is inconsistent with the planning strategies in place to realise the Green Square Town Centre (GSTC) and the Ashmore Estate Village Centre. (4)Based on the directions of the planning controls and the appeal site's constraints, the best use for the site is the demolition of the industrial building and redevelopment for medium density residential development with smaller retail and commercial tenancies at ground level. (5)The appeal site is not an appropriate location for a supermarket from a centres planning perspective. (6)A supermarket on the appeal site is not orderly planning or in the public interest because it will undermine significant investments and result in lost economic opportunities. (7)The proposed development is inconsistent with the objectives of the Mixed Use 10 Zone. (8)The proposed reuse of the existing building as a supermarket is not appropriate as it will result in an intensification of the site and adverse amenity effects of the neighbouring residential properties and is contrary to the objectives of the Mixed Use Zone. (9)Unsatisfactory car park operations and layout and their cumulative impact may significantly alter the parking yield. (10)The proposed development is not in the public interest. 39It is apparent from the approach taken by the parties and the evidence provided that these issues can be incorporated into the following categories:
The evidence 40The hearing commenced on site when evidence was heard from residents of the adjacent residential flat building at No. 147 McEvoy Street and one resident of the adjacent townhouse in Lawrence Street. 41The occupants of the McEvoy Street development were concerned about:
Traffic/parking 44The parties did not dispute the adequacy of parking provided on site and relied on the earlier judgment of Brown C in ROI which determined that an appropriate parking rate for the supermarket is 3.7 spaces per 100 sq metres gross floor area. The application makes provision for parking to meet this criteria and satisfy the council's DCP requirements for the separate retail and office uses including compliance with the consent condition for Dan Murphy's operation which requires a maximum of 35 spaces. Whilst the numerical requirement has been satisfied, twelve of those spaces (or 8.9%) are stacked spaces and designated for staff use only. 45No further evidence was provided in relation to the adequacy of parking on the site by the experts. Resident evidence indicated that at peak times, the entire carpark was utilised by customers of Dan Murphy's and accordingly, they held concerns in relation to the adequacy of on site parking to be provided for all of the uses intended on the site. 46The issues that are in dispute between the experts are the need to separate delivery vehicles from cars and pedestrians, the safety concerns associated with trucks reversing into the two loading bays, the adequacy of the proposed loading bays, the lack of queuing/waiting areas and the suitability of pedestrian links through the site. 47The applicant had prepared a Plan of Management (PoM) which seeks to address the operational issues and that plan was subject of discussion and review throughout the hearing. That review was undertaken to address a number of concerns raised by the experts during the proceedings. Requirements involving two traffic controllers to manage vehicles manoeuvring into loading docks, timing of vehicle arrivals, limiting the size and number of delivery vehicles servicing the premises, designation of truck routes, and the installation of dynamic signage displaying availability of parking spaces are proposed under the PoM. 48Both experts agree that as a first principle, delivery vehicles should be separated from customers' vehicles and accept that this is not always possible when use of existing buildings is proposed. They also agree that the PoM as proposed would work. 49Mr Pindar is concerned that there should not be a need to require a PoM and considers the traffic arrangements to be unsatisfactory and a way of "engineering yourself out of sub-standard conditions". 50Mr Rogers considers the PoM will improve traffic movements associated with use of the site as it integrates the existing Dan Murphy's operations and ensures no conflicts arise. He states that this is not the case under the current consents that apply to the site, as only the Dan Murphy's consent includes a requirement for a PoM. He considers that the PoM is an appropriate way of ensuring traffic safety on the site and protecting amenity. The PoM would ensure deliveries occur outside peak periods, limit the total number of trucks delivering goods to the site to 32 during weekdays and 24 on weekends, limit the size of vehicles servicing the site and reduce the number of loading docks from three to two. For this reason, he considers the proposal to be a superior outcome to the current approvals that apply to the site, despite allowing for an increase in trucks permitted to service the Dan Murphy's operations. 51The existing consent which authorises use of Unit 1 as a liquor shop includes conditions which require the use to be operated in accordance with an approved PoM. That PoM limits deliveries to be by table top trucks three times per week generally between 8am and 6pm. The draft PoM before the Court allows for deliveries to the liquor store to be a maximum of four HRVs per day, three between 7am and 10am and one between 4pm and 5pm and up to eight other deliveries between 10am and 4pm on weekdays. On weekends, eight non-HRV deliveries would be allowed. Mr Rogers says that this is a maximum and may not occur on all days. He acknowledges that the conditions of consent that apply to Unit 1 would need to be modified to allow implementation of the PoM as proposed and that no such application is before the Court.
Amenity 52Mr Nash is concerned, despite the acoustic assessment showing compliance with relevant standards, that there will still be noise impacts associated with the use of the site and accordingly, those impacts will adversely affect the amenity of adjacent residents. 53He was also concerned about the impacts of headlights and lighting proposed on the site and the privacy impacts associated with the proposed plantroom access stairway however agreed that appropriate conditions could be imposed to address this issue. His final concern is in relation to the visual impacts of the proposed carpark and external stairs to Lawrence Street, which he says is inappropriate, results in an intensification of the site and will cause adverse impacts to the adjacent residential premises. His concerns are such that he considers the cumulative position to be one of unacceptable amenity impact and is therefore contrary to the objectives of the Mixed Use 10 zone. 54Mr Lovell relies on the acoustic assessment of Dr Tonin, which indicates the use will satisfy the council's standard noise conditions. He is of the opinion that the proposed landscaping works will minimise any impacts of the carpark and stairways and therefore, he does not consider the proposal will generate any unreasonable impacts on the amenity of the surrounding properties. 55I agree that there is a need to incorporate privacy screens to the plantroom stairway to ensure privacy to the Lawrence Street townhouses and that the introduction of the stairs to Lawrence Street does not improve the appearance of the building. The additional landscaping proposed is a desirable element of the development. 56The applicant proposes to address the areas of concern to the council by way of the PoM and has added a number of mitigation measures designed to address the concerns of the experts and residents. These relate to a range of matters including lighting, usage of staff carparking spaces and fitting of blinds to windows. Mr Nash is concerned at the complex nature of the PoM and whether it will be adhered to by the operators. This concern reflects those of the residents who have indicated that the current PoM which applies to the Dan Murphy's operation had not been complied with.
Acoustics impacts 57The council did not put forward any acoustic expert reports and accordingly, the evidence of Dr Tonin was subject of cross-examination during the proceedings. Dr Tonin clarified aspects of the proposal that required further amendment to the draft PoM. These aspects involved change to the peak period so that large rigid vehicles did not enter the site when the carparking utilisation was expected to exceed 392 vehicles per hour. Further amendments to require the closure of the loading dock door when the carton bailer was utilised would be required to ensure compliance with the council's noise conditions. 58Dr Tonin confirmed that his assessment of the application being compliant with the council's noise criteria was not changed as a result of the increase in truck numbers provided for in the PoM or the use of barcode scanners in the supermarket. He stated his assessment did consider the use of forklifts during loading/unloading, an issue that had been raised by residents of the adjacent residential building. 59Importantly, Dr Tonin acknowledged that there will be noise impacts from the development as the council's standard criteria of background + 5dBa does not imply inaudibility and that residents would hear noise from cars, doors slamming, forklift noise, shouts from users of the carpark etc. His analysis however showed that the level of these incidental noises will comply with the council's criteria and he considered that because the site is an interface site and is within a mixed use zone that the impacts are acceptable.
The current planning controls 60The issue of whether the application meets the council's planning controls was addressed by all planning experts. The views of Mr Nash are included above. Further consideration of the views of the other experts follows. 61Mr Harrison considers that the use of the site as a supermarket would be inconsistent with objective (a) of the Mixed Use 10 zone which allows "in appropriate circumstances, a mix of compatible land uses". He says the site is not suitable for use as a supermarket as such use is not the type of retail use envisaged in the DCP's mixed-use transitional precinct and such use is to be located within the urban village centres. He says this is because the non-residential uses must not impact on adjoining land uses and he considers that in this case the use proposed will impact. In addition, Mr Harrison says that the DCP draws a distinction between the urban village centres and the transitional areas in terms of retail development and that the urban village centres are the appropriate location for small shopping centres including supermarket development. 62Mr Harrison distinguishes between shops and personal service stores which provide goods and services for a wide population , being the types of retail activities envisaged in the transitional zone, from those which comprise a series of small shopping centres that provide a focus for the local community , relevant to the urban village centres. He says that the transitional area is intended to contain a wide variety of housing and employment, and therefore the retail provision should be wide, or diverse to cater for a diverse residential and employment population. It is his opinion that "wide" refers to the wide diversity and not a geographic area and that it would not make sense that "wide" refers to a wide area when you compare with the retail uses intended in the urban village centres which he expects would be the next level up in the retail hierarchy. 63Mr Lovell differentiates between the "local population" and the "local and wide population" described in the urban village and traditional mixed use precincts respectively, from the "wide population" referred to in the transitional precinct. For this reason, Mr Lovell considers the proposal satisfies the objectives of the Mixed Use 10 Zone.
The retail hierarchy 64There is no dispute between the parties that the council has adopted a retail hierarchy, that the hierarchy is a valid planning tool which is used to regulate development, that the site is not within one of the centres identified under that policy and that the policy would require consideration for any development proposed on the site. 65That hierarchy is as described in paragraph 37 of this judgment. The council's evidence places significant reliance on the retail hierarchy and Mr Harrison says that it is fundamental and necessary to appreciate the planning context because out-of-centre retail development has implications on wider planning strategies. He says locating supermarkets in the endorsed centres is essential to achieving broader strategic objectives including agglomeration benefits of mixed use centres: maximising the benefit of public investment, maximising multi-purpose thrips (thereby reducing trips by car) and maximising community, social, economic and environmental benefits. It is in the public interest to consider how the proposed development will impact on city-wide and state planning strategies and the undesirable precedent it would set if a large-scale supermarket was allowed out of centre. 66Mr Lovell agrees the proposal is inconsistent with the council's retail hierarchy however argues that the council's primary controls are found within the DCP and accordingly, the development is consistent with those controls and therefore should be approved. 67Mr Harrison has provided evidence of the history of the retail hierarchy and how it has been used to inform draft LEP 2011. He also demonstrates the council's consistent application of the policy since its adoption in 2008. For this reason, he argues that the application should be refused. He also refers to the recognition of the GSTC as a major centre within the State Government's Metropolitan Strategy. 68Mr Fensham and Mr Leyshon agree that the proposed supermarket is of no relevance from an economic impact assessment viewpoint and accordingly, I do not need to assess that impact. 69Mr Leyson argues that the proposed development will not have any adverse impacts on the adopted hierarchy as his assessment of impact is such that there is sufficient capacity within the GSURA to support the proposed supermarket without impacting on any of the existing or planned centres. He says that approval of the application will not be an impediment to Green Square proceeding in terms of retail confidence or spending. He is of the opinion that the centre could have started earlier and that its retail floor space will not be released at one time, rather, it will trickle out over a number of years up to 2021. He considers the major constraint to the development of Green Square is not the impact of other supermarkets in the vicinity but the issue of who pays for the major infrastructure needed to make the centre work. 70Mr Fensham considers that the proposed supermarket will contest available spending and accordingly, he disagrees with Mr Leyshon as to the impact on the planned centres. These experts also disagree with the analysis that underpins the basis for the 1000sqm cap on retail premises. Mr Fensham argues that it is the tolerance for what council should allow out of centre and that it is a broad analysis. Mr Leyshon considers that there has not been sufficiently detailed analysis of the impacts of the cap. 71Mr Fensham is concerned that the a supermarket of the size proposed has a catalysing impact and may have the effect of attracting complementary retail development with the potential to create a significant centre of activity by default and accordingly, this should be resisted. Mr Leyshon is of the opinion that approval of the supermarket together with consents to use nearby premises for retail uses indicate that the site is suitable for retail activity and that it has the capacity to attract other retail and commercial uses in the area immediately surrounding the site. He considers the success of the Dan Murphy's business, expressions of interest from supermarket operators show there is a clear need for additional retail services in this location. 72Both Mr Leyshon and Mr Fensham agree that large supermarkets are critical in capturing "retail sell". Mr Harrison describes supermarkets as the "glue" that provides a greater community benefit when they anchor centres rather than being in an out-of-centre location. 73Mr Harrison advises that the GSTC has been planned for over ten years, approvals have been issued for major infrastructure works (over $65m) and has been the subject of a recent planning proposal by a development consortium to develop approximately 40% of the town centre, including major retail space. He is concerned that approval of the application is not orderly development or in the public interest as it will compromise the realisation or success of the GSTC and will undermine developer confidence. Accordingly, he argues that until such time as the GSTC is established and thriving, it is inappropriate to consider any out-of-centre development. Mr Fensham agrees that the proposal is a threat to the GSTC's commercial success, in part because of the signal to the land market that approval would provide - with precedent of ad hoc competing development outside the contributions area, creating major uncertainty for the success of the development and therefore the funding of planned community infrastructure. He argues that the issue is more in relation to confidence rather than retail numbers. 74Mr Leyshon disagrees and considers that if consent was granted to this application, the fact that there are no other like development applications before the council, and that draft LEP 2011 is on exhibition, there will be no undermining of confidence as no further supermarkets or retail development in excess of 1000sq m could be approved within the restricted retail area. He says that there is sufficient volume of available expenditure to support all existing and planned centres as well as the proposed supermarket and that the proposal meets the council's objectives. He considers this is further justified taking into account the existing consents for the supermarket and fresh food premises that apply to the site as the overall impact will be a reduction in turnover.
Draft Sydney Local Environmental Plan 2011 75Both parties agree that the effect of making draft LEP 2011 would be to prevent the development as proposed as clause 7.23 limits retail premises in the B4 Mixed Use Zone to a maximum GFA of 1000sq m. The objective of the clause is to promote the economic strength of Green Square Town Centre and planned local centres by limiting large-scale retail development to those centres and to support the provision of community facilities and infrastructure in the Green Square Urban Renewal Area. Mr Leyshon agrees that the proposed development would be large-scale retail development. 76Mr Harrison and Mr Lovell agree that the intent of clause 7.23 is not to limit the number of individual tenancies on one site. They agree that multiple retail premises of 1000sq m are permissible on a site and/or adjoining sites under the draft controls, subject to further assessment and where the proposed development is consistent with the objectives and controls of the LEP and DCP. 77The parties disagree as to the weight that should be given to draft LEP 2011. 78Mr Harrison advises that draft LEP 2011 is the culmination of twenty years of planning review and studies commencing in 1991 when the state government announced the new southern railway through Green Square. This work has been conducted by both the council and state government and the council resolved to prepare the plan in 2005. The series of planning studies undertaken are documented in Mr Harrison's Expert Report, Exhibit 4 in these proceedings. It is clear that considerable work, including consultation, has been undertaken to prepare the draft local environmental plan and supporting development control plan and that it is consistent with state government policy in terms of centres. 79Mr Lovell considers the draft LEP 2011 should be given little, if any weight on the basis that it has just begun exhibition and accordingly, no consultation has occurred. For this reason he considers the plan has no certainty and to give it weight would disregard the statutory exhibition/consultation process. 80Mr Harrison accepts that the plan must be the subject of consultation and review however maintains, that it has been prepared in accordance with policies of the council and state government in relation to centres and in particular through consideration of public submissions to the Retail Study, the Green Square Background Paper, the Erskineville Urban Design Study, all of which were exhibited and endorsed documents and the planning intent has been incorporated into the draft LEP 2011. 81Mr Harrison expects that the council will receive submissions in regard to the retail cap and that it may be the subject of further study and review however he considers that the change may be for other retail uses but it is unlikely to change in relation to supermarkets. For this reason, he argues the draft plan should be given considerable weight.
Conclusions and findings 82Some of the evidence in these proceedings, particularly in relation to the adequacy of on-site carparking has relied on the earlier judgment of this Court in ROI. In accordance with the authorities established in Segal & Anor v Waverley Council [2005] NSWCA 310, I am neither bound to follow that decision, nor, to take into consideration if I consider it irrelevant, the resolution of the principal contested issue. I do acknowledge the importance of consistency and also the need to consider the particular circumstances of this case. Accordingly, I have undertaken a full merits review of the application before me.
Relevant legislation and planning instruments 83The matters for consideration are those found in s79C of the Environmental Planning and Assessment Act 1979 . That section states: 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 84The approach between the parties to which way the application should be assessed varies. The council places particular emphasis on the strategic planning framework, particularly in relation to the retail hierarchy, council policies and draft LEP 2011 saying the site is not suitable for the development, the proposal does not promote the co-ordination of the orderly and economic use and development of land and that approval of the application would not be in the public interest. The applicant argues that primacy should be given to the current planning regime and argues that the development satisfies all relevant controls and accordingly, should be approved. 85The LEP is the adopted planning instrument that applies to the site. Accordingly , consideration of the relevant provisions of that plan is required. Clause 8 establishes the principal objectives of the plan and clause 10 requires development to be consistent with the zone objectives. In Schaffer Corporation Limited v Council of the City of Hawkesbury [1992] 77 LGRA 21 Pearlman J said: The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. This test was followed by Talbot J. in Challister Ltd v Blacktown City Council 9 June 1992 (unreported). I consider that it applies in this case, although the word "generally" does not appear in the clause under consideration. 86Mr Lovell's evidence is that the proposal is consistent with all of the Mixed Use 10 Zone objectives. The council's position is that the development fails to satisfy objectives a, b, e, f, g and h and must be refused. 87I deal with each one of those objectives in turn.
Objective A 88The council places great weight of the words appropriate circumstances and submits that I must consider the wider strategic planning framework to determine what circumstances are appropriate. It argues that large-scale retail development should only occur within nominated centres and that the only appropriate circumstance that would allow retail premises on the site is when that retail use is minor or ancillary in nature so as to accord with the council's Retail Study findings and the retail cap proposed in draft LEP 2011. That development would also have to be compatible with other uses and Mr Harrison says that it is not, as it is too intense and will have traffic, noise and amenity impacts on the neighbourhood, therefore resulting in a poor re-use of the building. Mr Nash shares this view. 89Mr Lovell says that the words appropriate circumstances must be read in conjunction with the remainder of the clause. He argues that the proposed development would contribute to an appropriate mix of residential, retail and commercial land uses in the locality. He considers appropriate circumstances to be the fact that the proposed use is permissible in the zone, there are no controls which differentiate between the types or size of shops, the DCP identifies activities which are seen as being compatible in the transitional precinct to include shops which provide goods and services for a wide population, the fact that the site is well serviced by public transport and has convenient and direct access to the higher order road network and that the site is already occupied by a retail liquor store and benefits from relatively recent consent for a caf, fresh food store and supermarket.
Objective B 90Mr Harrison's expert report details his view that the proposed development would result in a net increase in car trips because, in his opinion, the site is not as well serviced as the planned centres with public transport. He considers the site to be in a low-density area and accordingly, the supermarket will have a large catchment and customers will use their cars to access the site. He also considers that an isolated supermarket also presents little opportunity for co-location of other businesses and services therefore reducing potential for multi-purpose trips. 91Mr Lovell considers the site to be in close proximity to residences, places of employment and other retail uses and therefore result in minimisation of vehicular travel.
Objective E 92Mr Green, for the applicant, argues that the proposed development will maker a major contribution to the implementation of the principles of energy efficiency by re-using a substantial existing building and installing water efficiency measures in accordance with the draft conditions of consent. He says the development will provide convenient retail facilities for the significant local population, both residents and workers as well as providing facilities with good public transport connection. 93Mr Harrison takes the contrary view and says that major retail development in this out-of-centre location will result in a net increase in trips by private vehicle and is therefore less environmentally sustainable than a supermarket development in a planned centre location.
Objective F 94According to Mr Green, the supermarket provides additional employment facilities for resident intensive activities (supermarket shopping) which will be accessible by foot and bicycle from a large and densely populated residential area as well as the surrounding employment area. He says its proximity to public transport provides the option for customers to travel to and from the site using this transport mode. 95Mr Nash does not consider the site is well served by public transport. Mr Harrison considers that the propose development does not maximise public transport patronage, but instead takes activity away from other planned centres where public transport will be provided and encouraged in accordance with the council's endorsed transport strategy for Green Square (the TMAP).
Objective H 96The PoM and the draft consent conditions are seen by the applicant as controlling those potentially adverse impacts associated with use of the site as a supermarket. That plan includes controls for operating hours, noise, vehicular and pedestrian traffic, trolley management, night security and lighting. Dr Tonin has provided uncontested evidence that the noise generated by the development will, subject to compliance with the PoM, comply with the higher standards of the council. Those standards, he says are more stringent than those recommended by DECCW in its document Noise Guide for Local Government. Whilst Dr Tonin has addressed compliance with the relevant standards, he also admits that some of the noise from the development will be audible by residents of the adjoining premises. 97Mr Nash and Mr Harrison consider that this fact means that the quality of life for residents in the area will be compromised and this is contrary to the objective of preserving the quality of live for those residents.
Findings 98I agree with Mr Lovell that it is necessary to consider the whole context of objective a and agree that the proposed development, operated strictly in accordance with the PoM would satisfy objectives a and b. Whilst I accept that the council's TMAP will guide the provision of public transport within the GSURA, the nominated centres do not currently enjoy any greater access by local residents and workers than is available at the site. For this reason, I consider the development is not antipathetic to objective e. 99Evidence provided indicates the site is well served by buses and that there is a range of housing densities within proximity of the site. Accordingly, it is likely that those residents would walk or cycle to the supermarket, thereby meeting objectives e and f. I accept however, that the supermarket, by its nature, will attract customers from a wide area who will utilse cars to access the site. 100I find that the PoM, provided it is rigidly adhered to by the operators of the premises, does, on the evidence provided by Dr Tonin, include sufficient controls of potential impacts associated with the operating hours, noise, privacy, vehicular and pedestrian traffic and other factors so as to satisfy objective h. I also note that these residents will hear noise from the site however consider that this must be an expectation in a Mixed Use Zone, which envisages uses other than residential occurring. 101Adherence to the PoM is critical in this case. A PoM is a recognised planning tool used to address potential conflicts as described in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315: 53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused. 102I accept Mr Tomasetti's submission that the LEP, particularly in Part 4 Division 2 (clauses 27A and B and Schedule 4) establishes the primacy of the GSTC however, I do not agree that this affects in any way my determination of the application applying the provisions of the LEP.
The DCP 103The parties agree that the parking proposed on site satisfies the council's DCP controls. 104I consider that the supermarket will provide goods for a wide population and accordingly is consistent with those retail uses envisaged with the DCP's transitional precinct.
Findings 105I consider the supermarket would meet the relevant provisions of the DCP and as that plan is the current plan which applies to the site, it must be given weight in determining the application in accordance with s79C of the Act.
Strategic Planning Documents and council policies 106The council's case is primarily based around the fact that the site is not suited for use as a supermarket as it is not within a designated centre and therefore is contrary to the council's resolution adopted on 20 February 2010 in relation to the Retail Study. That resolution requires that the Retail Study must be considered in the preparation and assessment of development applications to the Green Square Town Centre Primary Trade Area and specifically nominates the Ashmore Precinct as a Village Centre within the retail hierarchy. The effect of the resolution was to expand the area to which the Retail Study was to apply and to include the Ashmore precinct as an additional village centre in the adopted hierarchy from that area originally identifed in accordance with an earlier council resolution passed on 3 November 2008. 107The site is within the Primary Trade Area described in the resolution and accordingly, it is argued by the council that I should give significant weight to that resolution, which it describes as a policy. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 McClellan CJ states: 90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act . It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan. 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 108The current circumstances differ to that which existed when Brown C in ROI had to consider the weight to be given to this policy. At that time, the application had been lodged prior to the council resolution in relation to the Retail Study applying to the land. That hearing was held from 15-19 March 2010, some four weeks after the council resolution and the application subject to appeal had been lodged with the council around 12 months prior. Brown C considered those matters set out in par 92 in Stockland Development and stated: 88 In considering those matters set out in par 92 in Stockland Development, I am satisfied that the Retail Study should be given weight in the assessment of the development application. The Retail Study was advertised from 28 May 2008 to 25 June 2008 and a number of submissions were received from landowners, state agencies and other stakeholders. The submissions were reviewed and responses to the submissions prepared for the council who ultimately endorsed the key principles in the Retail Study. I am not however satisfied that any weight should be given to the additional obligations created by the council's resolution of 22 February 2010. While there was no evidence to suggest that the amendment was designed to defeat a project which is known to be under consideration by a developer for a particular site, the effect was to place a considerably larger burden on the applicant (and other landowners) without the benefit of advertising and the opportunity to make submissions on the amendment. When combined with the timing of the amendment; after the application was lodged and determined, I am satisfied that no weight should be given to the amendment by the council on 22 February 2010. The consequence being that the site is not required to be considered against the findings of the Retail Study as is not located within the identified Study Area. 109The development application subject of these proceedings was lodged with the council on 23 August 2010, some five months after the council's resolution was passed to include the site. Mr Harrison has advised that there was no further exhibition of the Retail Study associated with the resolution however, he considers it to be a council policy and one, which he says, has been consistently applied since its adoption in 2008. I note that the consents for use of units 2, 3 and 4 at the site for the fresh food store and supermarket were granted in October and December 2008 respectively. One consent precedes the original resolution and one was issued following its adoption, however both were granted prior to inclusion of the site by way of the latter resolution passed in 2010. Mr Harrison considers that these should not have been approved given that the council had adopted its retail hierarchy even though it was, at the time, not specific to the site. 110Since the council resolved to extend the area to which the study is to apply, it has resolved (in September 2010) to adopt draft LEP 2011 and the supporting DCP 2010 for exhibition purposes. These draft plans are consistent with the retail hierarchy and also include controls which would limit retail premises on the site to a maximum GFA of 1000sqm and, on the evidence of Mr Harrison are the culmination of many years of strategic planning including five years to prepare the draft plans. It is also reflective of the state government's planning policy documents. Those plans are currently on exhibition. 111In view of the circumstances that now apply to the application, I must consider the matter on the basis of the draft planning instrument referred to in s79C(a)(ii) and the public interest provisions of s79C(e). I also note that draft LEP 2011 contains transitional savings provisions in clause 1.8A which require determination of the application as if the plan had been exhibited but had not commenced. Draft LEP 2011 permits retail premises with consent in the proposed Zone B4 Mixed Use however, as described in paragraph 36 of this judgment, a supermarket as proposed would not be permitted by way of clause 7.23. 112In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 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). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ... If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 113When applying the tests of Stockland and the fact that the planning intent of the Retail Study has now been incorporated into draft LEP 2011, I find that the policy should be given significant weight. It is the clear intent of the council that large-scale retail development should only occur in centres which form part of the adopted retail hierarchy. Clause 7.23 has specific objectives which are: (a)To promote the economic strength of green Square Town Centre and planned local centres by limiting large-scale retail development to those centres, (b)To support the provision of community facilities and infrastructure in the Green Square Urban Renewal Area. 114It is necessary to determine the weight that I should give to the Retail Study and draft LEP 2011. The evidence of Mr Harrison is that the plan is reflective of council and state government policy. Whilst he agrees that there may be changes made to the draft plan before it is made in relation to the controls that limit retail premises, he is of the view that these changes are unlikely to affect supermarkets. He accepts that other forms of retail premises, above the 1000 sqm cap, may be allowed within the Restricted Retail Development Map. I accept Mr Leyshon's view that it is highly likely that the council will receive submissions in relation to this particular aspect of the plan during its exhibition and that it will be a matter for the council and ultimately the Minister to determine the final form of clause 7.23 of the council's LEP. I do however have sufficient evidence to support the view that the hierarchy of centres will remain central to the council's planning controls and that appropriate locations for supermarkets within those centres is a well-understood and accepted concept of a retail hierarchy. 115Further guidance is provided in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [No. 2] [2002] NSWLEC 150, where Cowdroy J after considering council policies, said: 55. The strategic framework which becomes apparent upon a careful examination of these documents establishes that the existing retail hierarchy and the retail centres within that hierarchy are to be maintained and supported. This is because these retail centres represent "significant community and private sector investment in infrastructure and development and are the basis for a wide range of social networks" (Draft Retail Policy - p 10) . The infrastructure development significantly includes the public transport and road networks. Clearly any development which is likely to significantly adversely affect this hierarchy needs, in the public interest, to be carefully considered. 116For this reason, I am satisfied that the council's policy in relation to its Retail Study, the retail hierarchy and the centres policy of the state government as detailed in the Metropolitan Plan for 2036 should be given determinative weight and accordingly, the application must be refused. 117I acknowledge that this decision differs from the position taken by Brown C in earlier proceedings in similar circumstances and have formed the view that the integration of the council's strategic planning framework into its draft local environmental plan, the grant of a s65 certificate by the Director General of the Department of Planning and the exhibition of that draft plan present different circumstances than those which applied at the time he made his decision.
Orders 118The Orders of the Court are: (1) The appeal is dismissed; (2) Development Application D/2010/1350 which proposed the alterations and additions to three adjoining warehouse units at Nos. 2-10 Fountain Street, Alexandria to accommodate a supermarket including fresh food, specialty shop and offices is refused. (3) The exhibits are returned. Sue Morris 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: 14 February 2011
ROI Properties Pty Ltd
Council of the City of Sydney