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.