Warriewood Properties Pty Ltd v Pittwater Council

Warriewood Properties Pty Ltd v Pittwater Council - [2010] NSWLEC 215 - NSWLEC 2010 case summary — Zoe

[41]

35 Mr Leyshon was of the opinion that a supermarket the size of the one the court visited at Elanora Heights (some 300 m2?) would be capable of fulfilling the designation "neighbourhood shop". 36 Mr Leyshon also gave evidence that a smaller shop or supermarket, due to the limited floor space, would by nature have to stock and cater to shoppers of convenience goods which have a higher turnover rather than stocking "non-daily" items, such as clothing, cookware (and other items that would be usual in "full line" and "major" supermarkets). 37 In answer to questions during cross-examination, Mr Leyshon expressed the opinion that the difference between small and large supermarkets is "the range and scope" of services and variety of products (T4.8.10, p41, LL20-25). Mr Leyshon agreed with the proposition put to him by Mr Galasso that the proposed supermarket will permit the shopping of "daily convenience goods", "There will be a proportion of … pure convenience trips to the supermarket as there is to every supermarket", and his "concern with this application is that it goes well beyond that process or that type of trip" (T4.8.10, p54, LL44-49). "What the supermarket does is vastly expand that range both in terms of total number of a stock keeping units and the depth of merchandise within each category, such that it changes. You get a different shopping pattern as a result of it" (T4.8.10, p51, LL29-32). 38 Ms Hill was of the opinion that the proposed supermarket would attract a lower level of expenditure from the local area as it would have a more limited retail offer compared to "full line" supermarkets in the area. Owing to its small scale, the supermarket would not be able to provide the full range of food and household related goods offered by a "full line" supermarket. She also agreed that the proposal will involve some "convenience shopping", as well as shopping involving "larger basket sizes". 39 The two experts agreed that a larger supermarket attracts proportionally more car-based trips owing to: (1) its catering for a more compressive shopping trip with a higher average customer spend; and (2) its having a larger trade area from which customers are drawn. They also agreed that a larger supermarket is more likely to stock goods that are not of a "convenience", or "day to day" nature. Is the proposed development permissible? 40 There is no dispute regarding the permissibility of many components of the proposed development - subdivision of the site, the café, the specialty shops, centre management office, associated amenities, and ATM machines etc. were not in contention.

[42]

41 However, there remains a dispute regarding the permissibility of the proposed supermarket, and its correct characterisation is a threshold question for the court. 42 Mr Galasso, for the applicant, submits that the supermarket should be characterised as a use permissible with consent, namely as "associated community and urban infrastructure" within the zoning table for the 2(f) zone, and also "neighbourhood shop" pursuant to cl 44 and Sch 10 of the LEP. Mr Larkin, for the Council, submits that the supermarket cannot be categorised as either "associated community and urban infrastructure" or "neighbourhood shop", and that, accordingly, there is no power to grant consent to it. Principles of characterisation 43 The task of characterisation has never been simple, as each case is dependent on its own facts and circumstances: Grace v Thomas Street Café Pty Ltd and Others [2007] NSWCA 359; (2007) 159 LGERA 57, per Beazley JA, especially at [87]ff, and McLellan CJCL, at [141]ff. However, the principles involved have frequently been canvassed, and guiding principles laid down. 44 In Royal Agricultural Society of NSW v Sydney City Council ("Royal Agricultural Society") (1987) 61 LGRA 305 at 310, McHugh JA said: "… a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land ." 45 The genus of a use or the purpose of a use has to be determined objectively, from the perspective of the impact of the use on the neighbourhood: North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd ('"Boyts") (1989) 16 NSWLR 50, per Kirby P at 59. 46 The general approach to characterisation for planning purposes was set out by Preston CJ in Chamwell Pty Limited v Strathfield Council ("Chamwell") [2007] NSWLEC 114; (2007) 151 LGERA 400, where his Honour stated at [45] that "[t]he characterisation of the purpose of development must also be done in a common sense and practical way…"

[58]

65 Some further understanding of the intent of the 2(f) zone can be gleaned from the zone objectives in Part 2 of the LEP, which suggest to me that the land within the 2(f) zone has been broadly identified for future residential development and associated physical and social infrastructure, but with the caveat that the form of development is to be further refined through future planning strategies. 66 The zone objectives direct themselves to the need to undertake further actions. Objective (a) requires that land suitable for residential development be identified, and then provided with adequate physical and social infrastructure, as identified by a future planning study. As the objectives apply to land already zoned 2(f), the objective clearly contemplates the further identification of suitable 2(f) residential land, and the reasoned provision of particular physical and social infrastructure following such future planning strategy studies. Objectives (b) and (c) reinforce this intent with the use of the words "to provide [future] opportunities…". Also, cl 30B(4) requires that, before granting any consent, consideration must be given to any DCP that applies to the land. This can be seen as imposing a more onerous obligation than the general requirement to consider a DCP under s79C(1)(a)(iii) of the EP&A Act. 67 While I accept that subordinate legislation cannot be used to influence the construction of higher order legislation, cl 30B(4) of the "higher order" LEP specifically requires in this case consideration of any DCP that applies to the land, before granting development consent. This effectively includes DCP 21 in any consideration of whether the proposed supermarket is properly characterised as "associated community and urban infrastructure". The other terms raised in argument by Mr Galasso - such as "public infrastructure", "State public infrastructure", and "public utility infrastructure" - have particular meaning(s) within cl 30E of the LEP, and I do not accept that they assist the court in defining "associated community and urban infrastructure" in terms of land uses in the zoning tables of the LEP.

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties

Cases Cited (17)

Cited By (5)