The Village McEvoy Pty Limited v Council of the City of Sydney - [2010] NSWLEC 17 - NSWLEC 2010 case summary — Zoe

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The Village McEvoy Pty Limited v Council of the City of Sydney

[2010] NSWLEC 17

Land and Environment Court (NSW)|2010-07-01|Before: Pepper J

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Land and Environment Court (NSW)

Decision date

2010-07-01

Before

Pepper J

Source

Original judgment source is linked above.

Judgment (143 paragraphs)

[1]

CITATION : The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17

[2]

APPLICANT The Village McEvoy Pty Limited PARTIES : RESPONDENT Council of the City of Sydney

[3]

KEY ISSUES: JUDICIAL REVIEW :- s 56A appeal from decision of commissioner refusing development consent for proposed retail shopping precinct - principles applicable to a s 56A appeal - whether s 79C(1)(a)(ii) overrules s 79C(1)(e) on the basis that the former is a specific provision whereas the latter is a general provision - whether commissioner took into account irrelevant considerations, including the alleged adverse economic impact of proposed development - whether commissioner failed to take into account relevant considerations, including any negative impact of the proposed development on competition - "public interest" - whether consideration of policy documents and background papers and studies was in error - whether taking into account the objects of the Environment Planning and Assesment Act was in error - whether the commissioner gave "proper, genuine and realistic consideration" to the terms of the LEP - whether the commissioner assessed the proposal against the wrong planning objectives - whether the commissioner substituted his own planning standards for those of the LEP - whether the commissioner misdirected himself as to the evidence - whether there was a failure to give adequate reasons - appeal dismissed.

[66]

34 The Commissioner concluded (at [56] and [65]-[66]) that: 56 The strategic planning context is critical to the consideration and determination of this application. Taking into account the history of Green Square and the applicable planning controls together with the associated background papers, studies and council and planning committee resolutions, it is abundantly clear that the Town Centre is to be the major commercial, retailing, cultural and entertainment centre within that area. It is also apparent that the relevant planning authorities have no intention of making any fundamental changes to the strategic approach so indicated for Green Square. Taking these matters into account and the many millions of dollars that have been already invested in it, the importance of the Town Centre is not to be underestimated; despite the fact that at this time there is little physical evidence of its development. The Town Centre is part of the Retail Hierarchy recommended in the Retail Study that was adopted in the background paper. Whilst the study and the background paper do not comprise environmental planning instruments or development control plans and the City Plan has not obtained a s 65 certificate, I accept that they are, in the public interest, important policy documents against which the proposed development must be assessed. … 65 Finally here, whilst Ms Smits may be correct in her contentions that the proposal is permissible in the mixed-use zone, would be consistent with the zone objectives (although I am not sure that it would contribute to a "highly sustainable vibrant community") and may, being an employment generating development, even be consistent with the objectives of the proposed industrial zone, the proposal would nevertheless still be prohibited in that zone. Moreover, I do not accept that present planning intent for this area should be set aside even if a draft LEP is not imminent. These matters attract further weight against the proposal. 66 For all of the above reasons I have been persuaded that approval of the proposal would not represent the orderly and economic use and development of land and in relation to strategic town planning considerations, would not be in the public interest. I would also add to this my agreement with the concern that approval of a development that is inconsistent with the fundamentals of the existing strategic planning framework would make it difficult to oppose further developments that are also inconsistent with that framework. The application should therefore be refused and the appeal dismissed.

[71]

39 The correct approach to the proper construction of s 79C(1) was articulated in Carstens. In that case a commissioner took into account various draft development control plans and other policy documents. Far from finding that the commissioner in question had fallen into error, the Court held (at [25]): [25] I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in subpars (i), (ii), (vi) and possibly (vii) of par (a) of those objects. In taking those matters into consideration the Commissioner made no error of law. 40 In relation to the breadth of matters that may be taken into account as a matter of "public interest", it has been held that (Terrace Tower at [81]): [81] In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231 at 235).

[88]

59 Although the economic impact of the proposal on the Town Centre itself appears to be significant I acknowledge the evidence of Mr Haratsis and accept that in this context it would be unlikely as suggested by the respondent "to kneecap the Town Centre". However, in my opinion impacts on the Town Centre need to be assessed more broadly. As Mr Gibbins explained the proposal is a threat to the Town Centre's commercial success in part because the land market will react unfavorably if private investment is undermined by ad hoc competing developments. There will be significant community costs if it's role is undermined. Similarly, Mr Anderson taking into account the substantial investments that have occurred to this time, was concerned regarding threats to the viability of the Town Centre and the significant risks to its overall integrity. Also, in this regard, Mr Harrison was concerned that should the proposed development be operational before the Town Centre supermarkets this would in turn adversely affect the primacy and vibrancy of the town centre. Whilst I doubt that the proposal would completely undermine the ultimate role of the Town Centre these concerns point to the need to ensure that the present investments in it are not put at risk especially during the start-up phases and further weight against the proposal. 53 The applicant contends that in finding that the proposed development would have adverse impacts on possible future development in Green Square, the Commissioner failed to apply the correct test required by s 79C(1)(b) as articulated in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373, Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407 and Kentucky Fried Chicken Proprietary Limited v Gantidis (1979) 140 CLR 675, because he did not consider whether there was going to be a resultant community detriment which would not be made good by the proposed development. Furthermore, the Commissioner took into account an irrelevant consideration, namely, the adverse economic impact of the development on possible future development in Green Square.

[89]

54 In Gantidis it was held that economic competition expected from a proposed use was not a valid planning consideration within the terms of the instrument governing the matter. Stephen J said (at 687 and per Barwick CJ at 681): 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. 55 In Fabcot Lloyd J, considering the application of former s 90(1)(d) of the EPAA (which was later accepted to be the same approach applicable to s 79C(1)(b): see Cartier Holdings at [26]) stated (at 378): Similarly, economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) is directed. The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) are the appropriate vehicles for regulating economic competition. Neither the Council nor this Court is concerned with the mere threat of economic competition between competing businesses. In an economy such as ours that is a matter to be resolved by market forces, subject to the Trade Practices Act and the Fair Trading Act . It is not part of the assessment of a proposal under the Environmental Planning and Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. Moreover, it is at least arguable from the fact that the Trade Practices Act now applies to local government councils, that if a local council were to refuse or to limit a proposal for development on the ground of competition with a trade competitor, it could be guilty of anti-competitive conduct contrary to Pt 4 of that Act.

[90]

56 As to when economic competition is a relevant consideration under the EPAA, his Honour stated (at 383): To "marginalise" the non-supermarket businesses in the manner described by Mr Leyshon would clearly put at risk the viability of those businesses. The effect would be as described in Kentucky Fried Chicken Pty Ltd v Gantidis : the facilities presently enjoyed by the community in Windsor would be put in jeopardy by the proposed development and the resultant community detriment would not be made good by the proposed development itself. That is a proper consideration to be taken into account as a matter of town planning. 57 The principles espoused by Lloyd J in Fabcot were later endorsed by Pearlman J in Cartier Holdings (at [34]) where her Honour expressed the view that: [34] In my opinion it is the very scope and content of the EP&A Act which provides the most useful guidance in the interpretation and application of s 79C(1)(b). The Court should in the first instance have regard to the context in construing provisions in a statute, not merely after an ambiguity has been identified: per Spigelman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia Inc (NSW Branch) (2000) 48 NSWLR 548 at 575-576, (and see the authorities there cited). The objects set out in s 5 of the EP&A Act are very wide in their ambit. They include the proper management of land for the purpose of "promoting the social and economic welfare of the community", the orderly and economic use and development of land, and the protection of the environment. That indicates, in my opinion, that the phrase "economic impacts in the locality" is to be understood in an environmental and planning sense. Hence I would agree with Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council that the economic impact of a proposed development upon private individual traders is not per se a proper environmental or planning consideration, and I do not think that the decision of Bignold J in City West Housing Pty Ltd v Sydney City Council is, properly understood, authority to the contrary. It is simply not competition as such which is encompassed by s 79C(1)(b). It would be unwise to attempt to categorise the type of economic impact which would properly fall to be considered under s 79C(1)(b), for, of course, each case depends upon its own facts, but it is clear, in my opinion, that the section does not require the consideration of economic impact on individual competitors, except to the extent that any impact upon individual competitors, or competition generally, demonstrates economic impact in the locality as an environmental or planning matter.

The Village McEvoy Pty Limited v Council of the City of Sydney

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