Uses on the site
33 Before considering the first limb of the definition of local shop, it is convenient to note that there is no suggestion that the proposed Aldi food store transgresses the second limb of the definition of local shop as the facility is clearly not proposed to be a bulky goods retail outlet, convenience shop or sex aid establishment.
34 As earlier noted, the first limb of the definition of local shop requires that, to qualify, the facility must be of a nature and size that is suitable to service surrounding population of approximately 5000 people.
35 It is clear from the uncontested evidence in the Hill PDA report that, although also trading in a fashion after 2016 that will generate significant turnover that is not derived from the residents of Fletcher, 75% of the turnover will come from those residents and will be derived, primarily within that revenue stream, from food and grocery sales. Although the nature of some of the goods contained in Aldi's catalogue tendered on behalf of Dr. Hogarth might not be regarded by some as conventional supermarket items, I am satisfied that the range of goods sold in contemporary supermarkets is sufficiently eclectic to encompass the range shown in the catalogue without altering the nature of the proposed retail outlet in such a fashion to prevent it satisfying the test implicit in the word nature in the definition.
36 The next element of the definition requiring consideration is the size of the Aldi food store. There is no evidence to suggest that the size of the premises is inappropriate for the purpose of the definition nor that it has been made unusually larger than other Aldi food store. To the contrary, the uncontradicted evidence is that the size of this facility is not inconsistent with the general template for other Aldi stores. It is also the position, on the evidence, that this store is significantly smaller in size than that which would be expected for a conventional full service supermarket. As a consequence, I am satisfied that the proposal is consistent with the word size in the definition.
37 I now turn to the question of the population to be served. The definition requires that a local shop be consistent with serving a population of approximately 5000 people. The evidence in the Hill PDA report is that, in 2016, the population of Fletcher will be of the order of 6000 people.
38 As a consequence, I first need to consider whether 6000 people is approximately 5000 people or not. Populations, unlike floor area measurements such as that contained in the definition of a convenience store, are not ordinarily amenable to numerical precision as is expressly recognised by the term used in the definition. Although the population estimate for 2016 should also be considered an estimate at best and will necessarily be subject to adjustment, whether up or down, in light of the actual population at that time, the 20% difference between the two numbers, whilst potentially a statistically significant variation, is, in my opinion, not so unreasonably high a variation to exclude 6000 being consistent with approximately 5000 in this context.
39 I am, therefore, satisfied that, to the extent that the proposed Aldi food store will serve the population of Fletcher, this facility would be consistent with the definition of a local shop contained in the LEP.
40 The question then arises as to whether or not the extent to which this proposed Aldi food store is predicted to trade to a market beyond that of serving the community of Fletcher (and thus the facility's capacity as a local shop if approved for that purpose) would give rise to some further separate use taking place on the site and, if so, what that use would be.
41 It is long settled that it is possible for a permissible use to have other minor or ancillary functions that do not fall within the definition of the permissible use without rendering the use prohibited - provided those functions or activities are truly ancillary and do not themselves constitute a separate use. If they are not of a scale that renders them ancillary but creates a separate use, the permissibility or otherwise of that separate use must also be considered.
42 In this instance, as earlier noted, the Hill PDA report said that, in 2016, the trading position of this proposed Aldi food store would be one with an annual turnover of ~ $8 million of which 75% would come from residents of Fletcher.
43 During the course of his oral evidence, Mr. Hack, the author of the report, was asked several times, specifically, if he had adhered to this conclusion. He confirmed, in each instance when asked, that he did so.
44 During the course of the hearing, on a number of occasions the proposition was put that the use as a local shop would be the predominant use of the proposed facility. Accepting, as I do, Mr. Hack uncontradicted expert evidence concerning the expected trading pattern in 2016, it is obviously appropriate to describe the 2016 trading position in these terms - that the predominant use would be as a local shop as defined in the LEP.
45 However, if a particular identified use, in this instance as a local shop, is appropriate to be identified as the predominant use, it necessarily implies that there may be one or more other uses. In this instance, the projected trading figures show that 25% of the anticipated 2016 turnover, at an estimated monetary value of $2 million per annum, will not come from residents of Fletcher. I do not consider this to be so small to be merely ancillary to the use as a local shop. I consider that trading at that proportion of turnover above that coming from residents of Fletcher.and at that monetary value must be regarded as a further use. The question then arises as to how this additional use should be characterised and whether it could be regarded as being merely ancillary to the predominant use as a local shop.
46 I have no evidence as to whether it would be appropriate to draw any conclusions about what might be regarded as an "equivalent population" that would generate such a trading volume and therefore consider it inappropriate to make any assumptions of this nature (such as this turnover being the equivalent of one third of the population of Fletcher). However, in my view, the projected trading volume is nonetheless significant both in percentage terms and in monetary amount.
47 In this regard, two factors relating to the location of the proposed facility appear relevant. First, as earlier noted, the location has been identified by the council as being an appropriate location for a local centre (this giving rise to compatibility with zone objective issues dealt with briefly later). Second, this location as identified by the council is one which has a frontage to Minmi Road and it is those reasonable to expect that a combination of these factors would ensure that, to some degree, any local shop on the site would attract some passing business from those travelling along Minmi Road. I therefore do not consider the fact that the location, particularly as it was identified by the council for such a facility, can, in itself, be the basis for any inferences adverse to Aldi.
48 In light of the projected 2016 trading pattern, it is, however, appropriate, in my view, to undertake some examination of the design of the proposed facility in assessing this additional use arising from the $2 million turnover anticipated from those travelling along Minmi Road (whether attracted in passing or having identified the proposed Aldi food store as a "destination" being irrelevant, in my view, to this consideration).
49 There are two potentially relevant matters, it seems to me, to which it might be appropriate to have regard in considering this further use. These are the nature of the proposed vehicle circulation patterns within the site and the extent to which customer parking is proposed to be provided within the site.
50 There are two vehicle access/egress points proposed for the site. Each of them is to be a "left turn in, left turn out" arrangement. In the case of the Britannia Boulevard access, this is determined by the existence of the present vegetated median strip whilst, in the case of Minmi Road, the council requires an unbroken concrete median strip to be constructed and this is not opposed by Aldi.