Administration and Marketing Solutions Pty Ltd v Goulburn Mulwaree Council
[2011] NSWLEC 1285
•30 September 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Administration and Marketing Solutions Pty Ltd v Goulburn Mulwaree Council [2011] NSWLEC 1285 Hearing dates: 22-24 August 2011 and 16 September 2011 Decision date: 30 September 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed.
Catchwords: DEVELOPMENT APPLICATION: Economic impact; retail hierarchy; car parking; weight to be applied to exhibited planning proposal. Legislation Cited: Environmental Planning and Assessment Act 1979; Standard Instrument (Local Environmental Plans) Order 2006; Goulburn Mulwaree Local Environmental Plan 2009. Cases Cited: Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 378; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373; Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181; Mathers v North Sydney Council [2000] NSWLEC 84; Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279; Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310; Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Purves v The Hills Shire Council [2011] NSWLEC 1103; ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 102 Texts Cited: Goulburn Mulwaree Development Control Plan 2009; Goulburn Local Environmental Plan 1990; Goulburn Mulwaree Strategy 2020; Sydney-Canberra Corridor Regional Strategy; Metropolitan Plan for Sydney 2036; Draft Centres Policy; 2005 Metropolitan Strategy Category: Principal judgment Parties: Administration and Marketing Solutions Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)Representation: Rotstein Lockwood Reddy Lawyers (Applicant)
Maddocks Lawyers (Respondent)
Mr C Ireland (Respondent)
Mr N Eastman (Applicant)
File Number(s): 10190 of 2011
Judgment
This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 (the Act) of the refusal by Goulburn Mulwaree Council (the council) of Development Application No. DA/0121/1011 (the application) which proposed the fitout and use of Units 1 and 2, Lot 3 DP 856419 Sowerby Street, Goulburn (the site) as a chemist shop. The shop would trade under the Chemist Warehouse brand.
The main contentions in the matter are whether the application is consistent with the council's planning controls, the economic impact of the proposal, the adequacy of parking and manoeuvring to support the use and whether the proposal is in the public interest.
The matter was initially heard from 22-24 August 2011 however, the respondent was granted leave on 16 September to reopen the case due to a change in factual circumstances relating to a planning proposal lodged by the council to the Department of Planning that had been the subject of evidence in the proceedings. Further submissions on the affidavit of Mr Stewart, (the officer responsible for the council's planning functions) which has been marked as Exhibit 22 in the proceedings, have been provided by both parties and the matter is considered in the context of the case.
The site and its context
The site is an irregular shaped allotment on the southern side of Sowerby Street opposite its intersection with Lockyer Street. It has a street frontage of approximately 68m, area of around 2,700sqm and is within an Enterprise zone at the southern extent of the Goulburn urban area.
The site contains three attached commercial units, a freestanding office building and two display sheds. Separate ingress and egress driveways service the site and all loading and vehicle manoeuvring areas and carparking spaces are provided to the rear of the buildings. A 1.8m high chainwire fence encloses the perimeter of the site, apart from that area immediately to the front of units 1-3, and gates within that fence provide access to the carpark.
A McDonalds restaurant is located at the termination of Sowerby Street to the east of the site. Two motels, one opposite on the corner of Lockyer and Sowerby Street and one to the west, adjoin the site and a restaurant, attached to the motel use, is located further to the west. A service station incorporating restaurant, tourist centre and the Big Merino tourist attraction is located on the northwestern corner of Lockyer and Sowerby Streets and also has frontage to Hume Street. Hume Street is the main road that connects the southern precincts of Goulburn with the Hume Highway, the major interchange being within approximately 500m and visible from the site. A number of light industrial and warehouse premises are located within close proximity to the site fronting Lockyer Street.
Background and the proposal
The site was initially developed under the provisions of development consent No 44/0607/DA (DA2006). That consent described the approved development as being Retail outlets as defined under Zone 3(b) - Highway Service (Refer Annexure "A: for Zone description,) Office and Storage. The annexure referred to in the consent as Annexure A was the 3(b) land use table for the 3(b) zone that applied at the time the consent was granted. The provisions of the Goulburn Local Environmental Plan 1990 (LEP1990) then applied. The objectives of the zone were:
(1) The principal objective of this zone is to set aside certain land toward the periphery of the City of Goulburn and adjacent to the Hume Highway for the purpose of providing services to the travelling public and highway user.
(2) The particular objectives of this zone are:
(a) To restrict development generally to the provision of services required by the travelling public and highway user, being development for the purpose of refreshment, short-term accommodation and motor vehicle service facilities (separate or integrated);
(b) To permit complementary development for purposes associated with or ancillary to highway services, but only where it is integral to such a service and is of a scale and nature in keeping with that service;
(c) To ensure that development does not impinge upon the effective operation of the Hume Highway; and
(d) To encourage wider development opportunities by permitting a diversity of land uses that are compatible with or complementary to the particular amenity, character and function of the locality. Such land uses include (but are not limited to) the following: advertising structures; bulky goods sales rooms and show rooms; exhibition homes; hotels; light industries; plant nurseries; recreation facilities; road transport terminals; taverns; transport terminals and warehouses.
Conditions 5 and 6 of DA2006 required separate development applications for use of the individual units and that any future use must comply with the objectives of the 3(b) zone. The plans approved under that consent, which were tendered following a request from the Court as Exhibit 17, provided for 18 car parking spaces and, whilst not designated on the plans, office and retail space, each represented 20% of the floor area or 145.7sqm with the industrial use occupying the remaining 60% or 437.1sqm.
The council has issued consents to use the three units approved by DA2006, two for takeaway food premises and one for motorcycle sales and service. It is noted that the consents for the take-away food premises did not include the use of the whole of the units and the consents do not authorise the division of those units into separate tenancies. The council has refused one application, which proposed use of unit 2 for the sale of die cast miniature models (i.e. tractors and car replicas etc). According to information provided in Exhibit 7, the grounds for refusal relate to non-compliance with the zone objectives for the then Highway Service zone.
The application is for the use of the whole of units 1 and 2 (former motor cycle and current kebab take-away food premises. These units would be consolidated into one tenancy through the removal of the internal dividing wall. An existing roller shutter door in the eastern wall would be removed and the door that currently services unit 2 would be fixed but not removed. Existing partitioning and toilet facilities within each unit would be demolished and the rear of the units fitted out with new toilets and partitioning to provide storage and dispensary areas. The main ground floor area would be the retail area with shelving installed throughout. Three service counters would be provided adjacent to the western doorway. The existing mezzanine to unit one would be retained and used as offices and for storage.
The plans determined by the council provided amended onsite carparking for 24 vehicles to be shared amongst the tenants of the site.
Following exhibition of the application the council received three submissions and seventeen form letters of objection to the proposal. The report considered by the council at its 21 December 2010 meeting summarised those objections as follows:
Economic impact on the Goulburn CBD;
Economic impact on a range of business including pharmacies, optometrists, beauticians, health food shops, gift stores, body building suppliers (i.e. gyms/fitness studios), convenience stores, hairdressers, pet shops, service stations etc.
Impact on traffic and lack of suitable car parking facilities
Inconsistency with objectives in Goulburn Mulwaree LEP and DCP
Not in the public interest in terms of the precedent such development will set;
More suitable sites exist.
The council refused consent to the application for the following reasons:
The proposed development is inconsistent with the objectives contained in Goulburn Mulwaree LEP 2009 for the "Enterprise Corridor" zone.
The proposed development is inconsistent with the objectives contained in Goulburn Mulwaree DCP 2009 for the "Enterprise Corridor" zone.
The proposed development is undesirable in terms of potential pedestrian/vehicle and vehicle/delivery vehicle conflicts.
Approval of the proposed development would set an unacceptable precedent that would have a significant impact upon the economic viability of the Goulburn CBD.
The planning controls
The site is zoned B6 Enterprise Corridor pursuant to the Goulburn Mulwaree Local Environmental Plan 2009 (LEP2009) which took effect on 20 February 2009. It was one of the first plans made under the Standard Instrument (Local Environmental Plans) Order 2006 (the standard instrument) . The relevant aims of LEP2009 are:
(a) to promote and co-ordinate the orderly and economic use and development of land in the area,
(b) to provide a framework for the Council to carry out its responsibility for environmental planning provisions and facilitate the achievement of the objectives of this Plan,...
(f) to enhance and provide a range of housing opportunities in, and the residential and service functions of, the main towns and villages in Goulburn Mulwaree,
(g) to establish a framework for the timing and staging of development on certain land in Goulburn and Marulan,....
(j) to provide direction and guidance as to the manner in which growth and change are to be managed in Goulburn Mulwaree,
Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of the B6 zone are:
· To promote businesses along main roads and to encourage a mix of compatible uses.
· To provide a range of employment uses (including business, office, retail and light industrial uses).
· To maintain the economic strength of centres by limiting the retailing activity.
· To provide for residential uses, but only as part of a mixed use development.
At the time the application was lodged (22 September 2010), retail premises were a use permitted with consent. It is agreed by the parties that the proposed use would be a shop and that a shop is a type of retail premises .
Amendments made to the standard instrument that apply to all B6 zones now require that retail premises are included under the parent definition of commercial premises however the application does not turn on those changes. Retail premises, remain a use permitted with consent in the B6 zone pursuant to LEP2008 however, are not a use that must be permitted within that zone in accordance with the standard instrument.
The council, on 21 June 2011, resolved to prepare a Planning Proposal, pursuant to the provisions of s55 of the Act. The effect of that resolution is to seek amendment to the LEP to reflect the Standard Instrument Order 2011 and to address, what are described in the report considered by the council, "discrepancies as a result of administering the current LEP to be addressed also (e.g. housing in industrial areas, retail in the Enterprise Zone). A the time of the hearing, that planning proposal had been submitted to the Department of Planning and Infrastructure (the department) however, it had not passed the Gateway determination stage (s56). The reason leave was granted to reopen the case is that a factual change in the progress of the planning proposal had occurred prior to judgment having been delivered. The council, on 29 August 2011, received a conditional Gateway Determination from the department. The determination requires the council to exhibit the planning proposal for 28 days and to complete the amending LEP within 6 months of the week following the date of the Gateway determination. The council commenced exhibition of the planning proposal on 7 September 2011 and the consultation period will close on 5 October 2011.
The effect of that planning proposal, as it relates to the application, is that shops would become a prohibited use within the B6 zone. Other forms of retail premises would remain permissible with consent. Consideration of this matter is relevant to determination of the application and is discussed later in this judgment.
The Goulburn Mulwaree Development Control Plan 2009 (the DCP) also applies to the site and took effect on 20 February 2009 to support LEP2009. Relevant sections are 3.4 - Vehicular access and parking and 6.10 - Development in the Enterprise Corridor - Zone B6.
Whilst not a planning control, Goulburn Mulwaree Strategy 2020 (the 2020 Strategy) is the council's strategic planning document that informed the preparation of LEP2009 and the DCP. Part 1.1 of the 2020 Strategy details its need and states:
The Goulburn Mulwaree Strategy will be used as a basis for the preparation of a comprehensive Local Environmental Plan for the Goulburn Mulwaree local government area. The Strategy will also provide the framework to guide planning and land use outcomes for the local government are to 2020.
Mr Ireland, for the council, argued that the 2020 Strategy is an important policy document and is a matter of the public interest. Its purpose is to provide the council with a strategy to manage growth, and to provide strategic direction for urban and rural residential land releases in the local government area (LGA), to document the pressures for growth and identify current and future opportunities for sustainable growth across the LGA. Its objectives, relevant to the application, were to:
Integrate the results of community engagement activities, so that the land use outcomes reflect community values and expectations.
Provide an understanding of the existing social, economic and physical characteristics of the local government area.
Analyse trends and patterns, and identify the 'drivers of change' across the local government area.
Identify challenges facing the Goulburn Mulwaree community, including social, economic, environmental and infrastructure issues.
Identify the wider regional context, beyond the boundaries of the LGA to identify those elements that may influence or be affected by planning approaches promoted through this Strategy.
Identify broad solutions/policy directions that may be implemented in the new Goulburn Mulwaree Local Environmental Plan, and also potentially through other Council management tools, such as the Management Plan or Social Plan.
Chapter 12 of the strategy provides the context for future zonings and states that Goulburn will remain the primary living and employment centre for Goulburn Mulwaree. In relation to the commercial core, the following comments are made:
Council is currently experiencing pressure within Goulburn and Marulan for additional employment land due to good access to rail and road infrastructure. As the Strategy focuses on Goulburn continuing to be the commercial and administrative centre for Goulburn Mulwaree, the future employment uses will be focused on Goulburn.
Commercial land uses would therefore be limited to the central core of Goulburn defined as the area bounded by Bradley Street, Bourke Street, Addison Street, Glebe Street and Sloane Street. ....
The Goulburn B3 Commercial Core Zone will reinforce the core commercial, retail and administrative function of Goulburn and reduce potential for commercial and associated used to impact on surrounding residential areas. Multi dwelling housing and residential flat buildings will be encouraged in the B4 Zone but not in the defined commercial core locality. This will also increase certainty for commercial tenants as the primary objectives of this zone will be designed to accommodate commercial and retail functions. ........
The land use opportunities identified for the B6 Enterprise Corridor in which the site is located are to support existing and planned land uses for these areas including South Goulburn, Coles distribution centre and Common Street Business park. ....relieves pressure on commercial core from non commercial/retail uses.....able to accommodate a variety of employment uses.....support objectives of Local Plan Template for Enterprise Zones.
Other documents said to be relevant by the council are the Sydney-Canberra Corridor Regional Strategy (the SCCR Strategy), a State Government strategy, which identifies Goulburn as one of the three major regional centres within the corridor, the others being Queanbeyan and Bowral and the Draft Centres Policy. The latter is a consultation draft published in April 2009 and is not government policy. The 2010 Metropolitan Plan for Sydney 2036 reaffirms the multi-centred approach espoused in that draft document and also that policy identified and promoted in the 2005 Metropolitan Strategy . Whilst raised by Mr Ireland, the Court notes that neither of those documents apply to the Goulburn LGA.
The issues
There are four contentions in the matter. Those are whether the application:
is antipathetic to the aims of the LEP, the zone objectives and the zone objectives as outlined in the DCP;
provides adequate parking and vehicle manoeuvring and has adverse impacts on traffic flow along the adjoining road.
will have adverse economic impacts on the Goulburn Commercial Core;
is in the public interest, particularly in relation to the council's retail hierarchy, strategic plans and the amount of parking to be provided for the development.
The weight to be applied to the planning proposal is an issue which has elevated due to the Gateway determination and is now a matter that is required to be considered under the provisions of s79C(1)(a)(ii) of the Act. During the hearing, it had been agreed that the decision of the council to prepare the planning proposal was a matter of the public interest.
The evidence
The hearing commenced on site and a view of the units, carpark and loading bays was conducted in the company of the parties and their experts. Discussion regarding the need to alter the levels within the carpark to facilitate vehicle movements was heard from the traffic experts. No details of that work are included in the application. The carparks of the adjacent McDonalds and the Bakehouse restaurants were also inspected and the constraints to enable a legal U-turn within Sowerby Street and the availability of on-street parking were also discussed.
Evidence was heard on site from Mr Ma, one of the pharmacists of a business operated from Auburn Street, Goulburn. Mr Ma and his business partner, Mr Athea, had lodged an objection to the application. Mr Athea also gave evidence by telephone during the hearing. The issues raised in that objection and heard from Mr Ma can be summarised as follows:
The proposed pharmacy has a large retail floor space and is stocking retails goods that are found in pharmacies, health food stores, supermarkets mobility shops and pet shops in addition to dispensing pharmaceuticals. This is contrary to the purpose of the B6 zone, which he says is to ensure that centres remain the focus for business and retail activities.
Traffic from the highway is insufficient to sustain the proposed pharmacy and it is their belief that it is intended to attract trade from the existing CBD.
The application would jeopardise services provided currently in Goulburn i.e. extended pharmacy trading hours, local employment.
There are no doctor's clinics within 5 kilometres of the site and insufficient residents to sustain the pharmacy.
Inadequate parking available for staff and customer needs.
Area is well serviced by the existing pharmacy services and any new pharmacy should be located in the CBD to enhance access to both locals and travellers and to provide services that complement existing pharmacies, doctors and other health professionals.
Current tenant wants to stay and would be evicted if consent is granted.
Has a clinical and financial interest against the granting of approval for the proposed development.
At the conclusion of the site view, the parties travelled by bus through the B6 zoned land and then to Marys Mount, the council's main residential release area which is located at the north-western extent of the City of Goulburn. The land zoned for a local neighbourhood centre to service that area was viewed. The bus then travelled to another local centre, Bradfordville, in the north-east of the city and returned to the main CBD where the location of businesses, particularly pharmacies, hospitals and medical centres, was observed.
The owner of a hairdressing business located in Clifford Street Goulburn, Ms Lowe, was visited at her premises during the proceedings. She had submitted one of the form letters of objection to the council and a subsequent affidavit to the proceedings, Exhibit 4. The content of that form letter objected to the application on two grounds, those being repeated below.
The opening of a Chemist Warehouse outlet in a B6 Enterprise Corridor Zone will adversely affect the overall security of retail outlets in the economic centre of Goulburn. The range of goods sold and the apparent predatory pricing used, especially in their catalogues will adversely affect my business. The impact of the new business opening outside the economic centre of Goulburn will attract many of my customers away from the business centre and we believe will have a substantial impact on our business. It will also affect a whole range of businesses including but not limited to, convenience storeys, pharmacies, hairdressers, pet shops and suppliers, and service stations where convenience goods are sold.
The car parking at the proposed site is totally inadequate and will cause hardship for other outlets in the Sowerby St area.
Ms Lowe's affidavit confirmed that she had signed the form letter and stated that she was concerned that approval of the application would be detrimental to the Goulburn CBD and its businesses, particularly hairdressing salons, that it would have adverse economic effects on retail outlets in the CBD because it will draw customers away from the CBD and its shops, shops in the CBD will lose passing trade, it would cause customers to drive to the outskirts of town rather than to the CBD to buy products that are otherwise available in the CBD and it will have greater bulk buying abilities and will cause customers to leave the CBD. Her evidence given on site went to these issues and included a concern in relation to the competition the proposed pharmacy will provide to her business which, she says could result in an impact of -10 to 15% of her retail business and that such an impact may result in the need to reduce staffing of her salon by one staff member. Her other concern is in regard to moving businesses out of the CBD which affects passing trade. She says that it is a small community that relies on passing trade and loss of that trade would be a concern.
Further evidence was heard in Court from three more objectors, all pharmacists who run their businesses from premises located within the Goulburn town centre and who had filed affidavits in the proceedings. The first was Mr Douglas, the pharmacist and owner of the Priceline Pharmacy which, whilst having frontage to the main retail street, Auburn Street, is accessed from within the Centro Mall, a centre anchored by a Coles supermarket and Kmart discount department store, which also contains a number of specialty shops and a food court. The evidence provided in the first of two affidavits included a copy of a submission lodged with the council by a planning consultant who had been engaged by Mr Douglas for the purpose of preparing an objection to the application. In addition to those issues raised by the consultant Mr Douglas stated that the rents in the CBD are higher than those outside it, and because the application is for a site outside the CBD, he is concerned that its approval would not maintain the economic strength of the CBD and would have a negative impact on businesses within the CBD, particularly pharmacies.
The second affidavit sworn by Mr Douglas included an advice from an accountancy firm specialising in pharmacies that suggested that Mr Douglas' pharmacy may suffer a cumulative loss of sales of up to 20% if the application was approved and also said that the siting of the proposal had the potential to change the dynamics of shopping in Goulburn and therefore the future growth of Mr Douglas' pharmacy. In addition, a letter from a Mr G Stephan, a property manager from api, was attached. That letter was addressed to Mr Douglas and stated that in the instance of him electing to reduce floor space, the company would advocate that he no longer trades as a Priceline Pharmacy. That letter suggests that the floor space deemed appropriate for such establishments was from 320sqm to 430sqm and that any floor space below 300sqm would lead to a dramatic reduction in overall turnover to his business and, even if it continued to trade as a Priceline pharmacy, the reduced floor space would be fiscally damaging as the outlay of costs/fees associated would not be justified given the reduction in actual turnover and net profit.
Mr Douglas' submission was based on that advice and he said that he had purchased a vehicle to keep up with the demand from sick and particularly elderly customers for delivery of prescription medication in the Goulburn area which are delivered free of charge and that if his business experienced a drop in turnover, this would jeopardise the viability of this service and would also force him to reduce staff levels by 20%, impacting on the level of service received by his customers.
His evidence provided to the Court stated that, whilst he would be relieved if the application was refused for the good of the town, he thought that he would adapt to the financial impact by reducing floor area and curtailing services such as the free delivery service however he does not know the outcome of that adaptation.
Mr Plowman also filed an affidavit and provided evidence to the Court. He is the registered pharmacist and owner of a chemist within the Market Place shopping complex, a centre anchored by a Woolworths supermarket, which is located on the corner of Verner and Sloane Streets. Mr Plowman had engaged a health industry consultant to prepare a submission on his behalf to the council and that submission was attached to his affidavit. That submission estimates the turnover of the proposed chemist, the subject of the application would be somewhere between $15-20million per annum and on this basis it concluded that the application would lead to a 'massive adverse impact, not just on pharmacies in the economic centre of Goulburn but also on a range of other industry groups in that centre.' It also states that on anecdotal evidence from other pharmacies, turnover can be affected by between 20-25% and on that basis, the pharmacies in the Goulburn economic centre have estimated that approximately 25 staff will be retrenched and that as the application only proposes 7 staff, this would not compensate for the job loss.
Mr Plowman's affidavit included floor area calculations of the existing chemists with Goulburn and that proposed by the application and he concludes that it is larger than any others and that 75% of the floor space would be retail space that provides for the sale of a wide range of goods of a general retail nature that are presently sold through existing general and specialty retail outlets in the CBD. He was also concerned about the level of parking proposed by the applicant which, he says, is not sufficient to cater for staff and customers.
At the time of preparing his affidavit, Mr Plowman said that he did not have enough information to estimate the impact of the application on his business however, during cross examination, he advised that he believed there was not enough room in Goulburn for a Chemist Warehouse and that whilst it would not lead to his business closing he would he would lose up to 5 staff based on a 20% drop in turnover. He based this on the information prepared by his consultant, an estimate of the number of prescriptions to be dispensed from the site as being 500-600 per day and distributing that number as a loss of 100 to each pharmacy, which, he said equates to a 20% loss in his turnover.
Mr Plowman advised that he was the author of the form letter submitted to the council by a number of business operators within the CBD and that two of his senior girls had canvassed Goulburn to obtain signatories to that letter.
The final pharmacist to provide evidence to the Court was Mr Athea, the business partner to Mr Ma, who operates a business, Blooms the Chemist in Auburn Street, Goulburn. Auburn Street is accepted to be the main street of the CBD. In his affidavit, he raised similar concerns to those detailed above and also his concerns that the application is in the B6 zone and that approval of the application would be contrary to the objectives of that zone. He says that tourists will not sustain the proposed business so it would rely on drawing patronage from the CBD, would conflict with, rather than complement the existing pharmacies in the CBD, its shorter opening hours would fragment the current patronage enjoyed by the existing pharmacies and will weaken that trade. He says that the current level of pharmacy service in Goulburn is adequate and that this includes the provision of extended hours service to its customers which, whilst not viable, is a service provided that would be less viable and could lead to a cut in trading hours with subsequent impact on wages and employment for some of his current staff.
Mr Athea's aural evidence was that he saw the application creating another business centre in the B6 zone, which he says is there to service the highway.
Expert evidence was heard for the applicant from, for the applicant, Mr Leyshon (economic) and Mr Shiels (traffic/ parking and planning) and for the council, Mr Fensham (economic), Mr Hallam (traffic/parking) and Mr Stewart (planning).
Economic Impact
Mr Leyshon analysed annual retail sales, retail floor space in the CBD, population growth and estimated available pharmacy expenditure within the LGA. His analysis concludes that there is demand for additional pharmacy retail floor area, that the proposed pharmacy is likely to have some minor impact on existing pharmacies in Goulburn in 2012 however, by 2016, there would be a better balance between demand and supply. He says that the proposed store could achieve sales of $3.5-$4.5m per annum and, based on his analysis, the maximum impact on the sales of the CBD would range between 1.6%-2.7%. He considers any impact less than 5% on a specific centre would be classified as being in the very low category of impact and concludes that the proposed development will have only a very minor impact on the performance of the Goulburn CBD in general and that this impact will not affect the "economic security" of the centre.
Mr Leyshon considers that it approved, the principal effect of the application would be in relation to the sales of pharmacies within Goulburn in general and the CBD in particular. He says the effect on other businesses such as convenience stores, hairdressers and service stations will be extremely marginal as the pharmacy-related products they sell are essentially peripheral to the main business of such stores. He says there would be no impact on pet stores, veterinary practices or stock and station agents as his client advises that they will not sell pet food and the like.
He says that he could not rule out the possibility of an existing pharmacy in Goulburn closing if the application was approved however, he says that it is likely that any impact would be spread over all of the existing pharmacies (together with some very marginal impact on supermarkets) and therefore the prospect of an existing pharmacy closing is very slight. He said that if one of the existing pharmacies did close the CBD would still contain three pharmacies and the residents of Goulburn Mulwaree would enjoy the additional benefit of a large pharmacy injecting significant price competition into the local market.
Mr Fensham did not conduct a separate analysis of trading patterns and has reviewed the figures and conclusion and also the analysis of impact anticipated by Mr Leyshon and also Mr Plowman's consultant, who had estimated that if approved the pharmacy would turnover $15-20m. On this basis, he had developed a table which he said quantified the impact of the application on the CBD with and without discount for sales to motorists. That impact ranged from 1.6% to 9% with no discount to 1.3% to 7.6% allowing for passing highway trade which would not take from the CBD. He concluded that an impact of 7.6% would represent a very material impact on turnover in the CBD.
Mr Fensham was provided additional information when preparing the joint report with Mr Leyshon in relation to the operations of the Chemist Warehouse business including data from other stores considered to have similar characteristics. Applying that data, Mr Fensham concludes that the likely turnover would be between $5.5-7m per annum which he says would represent a -2.1% to -2.7% impact on CBD turnover. That figure is consistent with that estimated by Mr Leyshon however, Mr Fensham says that it is necessary to consider the potential for additional expenditure captured by surrounding retail uses and there is potential for $8.75m additional diverted retail expenditure resulting in a total impact of -7%. Mr Leyshon says that this estimate is highly speculative however he conceded that people will spend in other stores in the CBD on the same trip. He did not support Mr Fensham's opinion of the likelihood of a supermarket being approved in the vicinity of the site in Hume Street and considered that the council would "go into a meltdown" if a supermarket was proposed in that location.
It is important to note that both experts rejected the estimated turnover figures provided by Mr Plowman's consultant agreeing that it was over-estimating the impact. Mr Leyshon suggested that these findings, which he said are wrong, have "spooked" the pharmacists in Goulburn and accordingly, the conclusions drawn should not be considered as representing any possible scenario. Mr Fensham, in explaining why he had included the consultant's estimates in his report, said that the information was informative but also said the projected turnover scenario "is not going to happen".
Mr Fensham also disagreed on the demand for additional pharmacy space and says that it is important to consider the viability of the existing pharmacies, not deterring new pharmacy investments in the CBD which, he says provide associated activities, expenditure and potential for multi-purpose trips that maintain the economic strength of the centre. He says that this is a key and salient point unrecognised by Mr Leyshon's evidence and that expenditure at the proposed pharmacy will 'bring with it' additional expenditure that will also be 'lost' to the CBD. It is Mr Fensham's opinion that the floor space demands for pharmacy space are much more 'finely balanced' than that suggested by Mr Leyshon and that when considering where any additional floor space should go, the council's retail strategy should mean something in terms of outcomes and that the B1 zone (Neighbourhood centre) within the Marys Mount residential release area would be a more appropriate location to provide that floor space.
Mr Leyshon says that, with regard to the aims of the LEP, the application promotes the orderly and economic use of land because retail premises are a permissible use on the site. He does not consider that the proposed development will alter the pattern of commercial development in Goulburn or diminish retail activity in the Commercial Core Zone. Further, he considers that as it will not significantly affect the vitality of the retail sector in the Goulburn centre it is consistent with the aims expressed in the SCCR Strategy and the 2030 Strategy of maintaining the Goulburn centre as the dominant retail centre in the city.
Mr Fensham disagrees and says that the two strategies promote the retail hierarchy and the proposal would be inconsistent with the directions, which seek to preserve the Goulburn centre as a strong and vibrant retail core. He says that this is not orderly use of land and that allowing the proposed development might set a precedent for other non-highway related retail uses in the B6 Enterprise Corridor zone with an increasingly detrimental economic impact on the Goulburn centre. He says that development in the B6 zone may be particularly attractive for such retailers given the relatively low cost of land and the number of vacant sites compared to the Goulburn centre. If this precedent was set he is of the opinion that there would be a decentralising effect, with businesses having a tendency to spread out in search of low rent land to remain competitive. From his perspective, Mr Fensham says that allowing the application has the potential to catalyse additional retail activity in the wider precinct with a significant potential to weaken the CBD and undermine the council's retail hierarchy and the integrity of state and local planning strategies.
In relation to the issue of creating a precedent, Mr Leyshon considers that the approval of the application would not act as a trigger for the development of broad scale retailing in the B6 zone and says that the council has within its powers the ability to negate such an outcome.
In relation to the zone objectives, particularly objective (i), Mr Leyshon says that the proposal will promote businesses along main roads and is compatible with the various tourist/traveller-oriented businesses adjacent to the site. He does not consider that other health uses such as medical practitioners have to be in place close to the site for the proposal to meet, or not be antipathetic to, the objective. Mr Fensham suggests that while the proposal may 'promote business' it does not satisfy the other limb of this objective, that is the development would not be a 'compatible use' in the immediate precinct which mostly contains highway related uses. Alternatively, he says that it is not appropriate for uses which would be compatible with a pharmacy and which would encourage multi-purpose trip making to be attracted to the B6 zone or precinct.
With regard to objective (iii), which is to maintain the economic strength of centres by limiting the retailing activity, Mr Leyshon says that the application, if approved, would have a low impact and not result in a significant reduction in the range of CBD services. He says that he has interpreted the clause to allow some impact as to not do so would mean that there could be no other retail activity outside the CBD and that is not what is contemplated by the LEP as it allows retail premises in the B6 zone. He says you can't allow retail development outside the CBD and not affect the equilibrium of the centre. Similarly, the approval of a bulky goods centres such as Bunnings would also affect it. He says there is growth in the market and that the council's evidence is that there will be additional floor space developed in the CBD so that will ensure that the economic strength is maintained. Mr Leyshon says that the intent of the objective is to limit the amount of retailing and that this would ensure that it's not "open slather for retail in the B6 zone" and that it is counter intuitive to allow retail uses and not have any impact.
Mr Fensham says that economic strength is not just measured in terms of financial performance, it is also economic effect and the multi-purpose trips also need to be considered, not just the tradeable value. He says that there will be a diminution in economic strength if the application was approved. Mr Fensham accepts that there is a tension however says the objectives assist in the understanding and whilst there may be an impact from a bulky goods premises, there are those uses that would be expected to be found in a commercial centre and a chemist is one of those uses. He says that other retail uses, such as the McDonalds restaurant and the kebab shop that are located in the B6 zone are unlikely to impact on the CBD, are compatible uses and to be a compatible use, the retail use should provide things for travellers and that the pharmacy would not be compatible with those uses currently located in the vicinity of the site. Mr Leyshon says that the pharmacy is compatible with those other uses and does not need to be near a doctor/hospital/medical centre to be acceptable. Mr Fensham says that planning has a role to produce positive outcomes and the council's strategic plans, the retail hierarchy and supporting uses provide a positive statement of compatibility as they provide for multi-purpose trips.
Traffic and parking
The experts agree that there are no substantive concerns about the manoeuvring in to and out of the site from Sowerby Street, that the proposed ingress and egress driveways are appropriate and acceptable and should remain open during trading and the right turn into the site from Sowerby Street is satisfactory and is not likely to cause any queuing or passing problems. They also note that there is no cul-de-sac at the end of Sowerby Street so motorists who drive past the entrance would have to utilise the McDonalds carpark to turn around or reverse back down Sowerby Street to perform a legal turn as the roadway is marked with a double centre line that prevents a u-turn movement across it. They say both options would be unsatisfactory and that it would be appropriate for the council to consider removing the double line a the end of Sowerby Street to allow vehicles to perform a legal u-turn movement, which they say could be readily achieved as the road is 14m wide.
They also agree that the layout of the car parking spaces is also acceptable subject to modifying the grades of the carpark by removing the existing retaining wall adjacent to the dock which services Unit 3, providing a rear entrance to the premises accessed by a nominated pedestrian path and relocating the disabled car parking space closer to that proposed entry. The plans that accompany the application provide parking for 24 cars which is 6 more spaces than currently required under DA2006, refer [8]. It is agreed that the plans do not reflect the modifications recommended by the experts.
It is also agreed that turning paths for service vehicles would meet AS/NZS2890.1:2004 for service vans such as a Toyota Hiace that have a length of up to 5.2m. Mr Shiels says this is sufficient for the proposed use however Mr Hallam says that the development should cater for at least a 6.4m small rigid truck and be capable of collecting waste on site rather than from the street, which Mr Shiels considered was acceptable.
Mr Hallam says that applying the council's DCP control, a total of 32 on-site parking spaces are required, 24 spaces for the pharmacy use and 8 spaces in accordance with the conditions of consent that apply for the other approved uses on the site. He says that the net leasable area (NLA) is 542sqm and the applicable rate is 4.4 spaces per 100sqm. The DCP specifies that rate is for shopping centres (supermarkets/convenience stores) with a NLA of 200sqm or greater. Whilst both experts agree that the proposal is not a shopping centre per se, Mr Hallam says that rate applies to all retail uses with a NLA of 200sqm or more. He did agree that the DCP provides for mathematical arbitrariness in assessing two adjoining shops of 150sqm each as both being shops generating the lower shop rate (1 space per 40sqm), but the two applying together would be assessed at the higher shopping centre rate. He says that the Roads and Traffic Authority's (RTA) Guide to Traffic Generating Developments has an even higher rate and would require a total of 42 spaces however agrees that the council's DCP is the appropriate standard to apply.
Mr Shiels says that the use is a shop and therefore the DCP rate for shops less than 200sqm gross floor area (GFA) of 1 space per 40sqm of gross floor area should apply and would require 16 spaces for the chemist shop and 8 spaces for the existing tenancies so a total of 24 spaces. He says this is consistent with the council's initial advice to the applicant regarding the required parking provision and can be accommodated on the site as shown on the plans included in the joint report, Exhibit 12. He also says that is the rate that applied to the adjacent Bakehouse restaurant/retail use (1/40sqm). He says that applying the parking rate of 1/40sqm to the nominated retail area, which is 454sqm, only 12 spaces would be required for the use or 20 spaces in total and that the likely generation of patrons and vehicles to the Bakehouse would be much higher than the proposed chemist shop. Mr Hallam disagrees and says that the lower rate is calculated on the basis of GFA and therefore must include the first floor office and storage areas and the back of house areas as well as the retail space.
Evidence was provided during the hearing of the consent that applied to the Bakehouse motel/restaurant (Exhibit 18) and the parking required for that use. Condition 6 of the consent required parking for a minimum of 17 cars plus one space per staff of the motel and bakehouse. Condition 3 limits the use of the Bakehouse so that it can only operate whilst consent remains from the council for the use of part of the adjoining council owned land for parking or an alternative site for parking is approved by the council. The evidence suggests that land is leased from the council. The parking rate applied appeared to have been calculated on the basis of the rate being applied to the Bakehouse being one space per 40sqm however that accords to the rate in the former development control plan, DCP3 and carried forward to the DCP for motels. That rate is one space for each unit, one space for each 2 employees and one space per 40sqm of restaurant. Mr Shiels acknowledged that whilst this accorded to the shop rate, the alternate position may have applied.
Mr Shiels says that the 24 spaces proposed will readily cater for all of the uses on the site however, if it was determined that the total requirement was 32 spaces, it would not be unreasonable to include the on street parking in the immediate area. He says there are 8-9 spaces available directly in front of the site and 4-5 spaces available of the opposite side of the street beside the motel. This is a total of 12-14 on street car parking spaces, which are primarily available to the subject site. He has assessed the adequacy of parking of the McDonalds store and the two adjacent motels and considered that those uses would not be likely to compete for the on street parking except when school holidays generate high levels of vehicles to McDonalds.
Mr Hallam says that all parking should be provided on site and that the application fails to cater for its parking demand due to the change of use from industrial to a retail shop.
Planning
The planning experts agree that one of the aims of the LEP is to promote and co-ordinate the orderly and economic use and development of land in the area however they disagree as to the weight to be given to the aims of the plan. Mr Stewart says the 2020 Strategy underpins the LEP and its aims are supported by the zone map and objectives which, he says, provided for the orderly use of land in terms of a retail hierarchy which has the prime commercial core and retailing in the B6 Enterprise Corridor Zone largely restricted to that which provides a service to the travelling public or other forms of retail activity including bulky good premises. Mr Shiels says that the LEP does not restrict the type or amount of retail activity in the B6 zone and regardless of the weight to be given to the aims of the LEP, the proposal satisfies Clause 1.2.
They also agree that the planning instrument for Goulburn is characterised by a defined Central Business District/Commercial Core zone with two separately defined Enterprise Corridor zones located along the regional road leading to/from the Hume Highway. Mr Stewart says that this reflects the retail hierarchy envisaged for Goulburn and for this reason says the proposed development should be located in the commercial core. Mr Shiels does not resile from the characterisation however says there are many other aspects of the LEP not defined in that concept.
It is agreed that the LEP, through its zone objectives, seeks to promote a wide range of retail in the Commercial Core zone and maintain the economic strength of centres by limiting the retailing activity in the Enterprise Corridor zone and that a wide range of retailing is permitted in the latter zone.
Mr Stewart says that the Bakehouse is distinguishable from the application as it is a food and drink premises and predominantly serves the travelling public however, Mr Leyshon's evidence is that only 15% of the revenue of the proposed chemist will be from travellers and the extent of goods to be sold exceeds the core services generally provided to those persons and therefore would rely on the local retail catchment. Mr Shiels says that there is no limit on the type or amount of retail activity in the B6 zone, that the Bakehouse is an example of a large retail activity that has been approved in the zone and that the application represents a use that is in accordance with the zone objectives.
The first objective listed in the B6 zone is to promote businesses along main roads and to encourage a mix of compatible uses. Mr Stewart says that compatible uses are not measured in terms of potential land use conflicts, but rather in the context of the 2020 Strategy and the LEP which, he says intends to promote like development (i.e. for the purpose of serving the travelling public) or development which is compatible with the attributes of the precinct (i.e. light industry and bulky good premises) given the benefits of accessibility and visibility. Mr Shiels takes a literal interpretation to the work and quotes the Macquarie Dictionary which defines compatible as:
1. Capable of existing together in harmony.
2. Capable of orderly, efficient, integration with other elements in a system.
and says the proposal, due to its proximity to the McDonalds takeaway, two motels, a large bakehouse and large service station/tourist centre would be totally compatible with all of those activities, would complement them and increase the likelihood of multiple trips in this part of the B6 zone and, despite not being on the main road, has the potential to assist in promoting businesses along that road.
Mr Stewart says that the LEP encourages retail activity in the B6 zone that supports existing operations and notes that there are no health service facilities in the immediate area or the B6 zone. Mr Shiels says that there is no requirement for a pharmaceutical shop to be close to hospitals, medical centres or doctor's surgeries and despite that, the proposed use is compatible with a myriad of other uses.
The second objective is t o provide a range of employment uses (including business, office, retail and light industrial uses). Mr Stewart contends that this objective needs to be read in the context of the first and third objectives and that retail development must be compatible with existing operations and limited so not to adversely affect the commercial core as the principal retail district. Mr Shiels says the objective identifies the intended diversity of the uses to be encouraged in the B6 zone and that the proposal would provide employment opportunities as it will employ up to 8 persons on a part and full time basis and therefore satisfies the objective.
The third objective is to maintain the economic strength of centres by limiting the retailing activity . The town planning experts agree that the economic experts have also considered this objective. Mr Stewart says, that on the basis of the evidence of Mr Leyshon, who cannot rule out the possible closure of an existing pharmacy in Goulburn, the proposed development, if approved may provide employment opportunity but not necessarily additional employment. He says it is not the type of retail development envisaged for the B6 zone and that retailing should be limited so that is ancillary to the predominant land use. He says that the council has followed this pattern and cites the Big Merino souvenir shop, which he says is restricted to the sale of goods to the travelling public. He also advises that the council has not approved any shops (as distinct from food and drink premises) in the B6 zone and refused an application for use of a unit at the site for the sale of die cast miniature models as that use was considered to be inconsistent with the zone objectives and this demonstrates a consistent approach of applying the planning strategy and respecting the retail hierarchy.
Both experts agree that the 2020 Strategy and the SCCR Strategy are relevant strategic documents. Mr Stewart says that those document promote the retail hierarchy in Goulburn and that the 2020 Strategy in particular, seeks to concentrate most commercial and retail growth in the Goulburn centre while supporting operations and activities on major roadways consistent with their need for this location. He says that the proposed development is not in the public interest, as it does not accord to the strategies. Mr Stewart says that a necessary component of the retail hierarchy is the importance of multi-purpose trips and that the proposed development will disrupt and compromise the established retail hierarchy in Goulburn. Mr Shiels disagreed however acknowledges that the proposal may not result in multi-purpose trips but says that the proposal may result in such trip making to its immediate location in the B6 zone.
It is agreed that the contentions in relation to the LEP address the relevant DCP considerations other than parking, which is addressed by the traffic experts.
The planning proposal
Mr Ireland, for the council, argued that the Gateway determination approval should be given determinative weight whereas Mr Eastman, for the applicant disagreed. Mr Ireland said that the amendment of the 2009 LEP is both certain and imminent, with pubic exhibition due to conclude on 5 October 2011 and the determination stipulating that the amending LEP is to be finalised within 6 months. Mr Eastman accepts that the Gateway determination elevates consideration of the planning proposal to that of an exhibited draft instrument however says that this does not mean that the plan is either imminent or certain. He says that the planning proposal may be varied by the council in response to any submissions received, the Minister may vary it or decide not to make the proposed plan and that the timeframe for its completion is not until 5 March 2012. He says that a draft LEP has not yet been prepared, the application is likely to be determined before any draft plan is prepared and the LEP contains a savings provision that requires development applications made before the commencement of the plan to be determined as if the plan had not commenced. He also says that the is no general antipathy between the proposed development and the potential prohibition of shops in the B6 zone and refers to the evidence of Mr Shiels, relying on that to say that the application will remain consistent with the zone objectives concluding that as retail premises will remain a use permitted with consent in the B6 zone, a chemist shop would be compatible and complementary with tourist, visitor accommodation, bulky goods, fast food outlets and service stations.
Conclusions and findings
Consideration of the economic impact of the application is required under the provisions of s79C(1)(b) of the Act. That requires an assessment of the likely impacts of a development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. The objects of the Act, in s5(a)(ii) are to encourage the promotion and co-ordination of the orderly and economic use and development of land and similar considerations are included in the aims of the LEP.
The council's LEP and DCP are also relevant considerations in this case (s79C(1)(a)(i) and (iii)) as is the need to have regard to the objectives of the B6 zone which include the promotion of businesses along main roads and encouragement of a mix of compatible uses, to provide a range of employment uses and to maintain the economic strength of centres by limiting the retailing activity. The aims of the LEP are also relevant to economic impact and they include the promotion and co-ordination of the orderly and economic use and development of land in the area.
The parties agree that the strategic planning intent of the council, in particular the retail hierarchy, is a matter for consideration under the public interest provisions of s79C(1)(e).
The planning proposal has been elevated from an issue of public interest to a matter for consideration under s79C(1)(a)(ii).
Finally, issues of economic impact have been raised in the submissions made and must be considered in accordance with s79C(1)(d).
It is important that the economic impact of a development is distinguished from that of competition and in this regard, much of the evidence provided by the objectors to the application was based on the loss of trade that they say would be experienced to their business. This is made clear in the decision of Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 378 where he states:
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 anticompetitive
conduct contrary to Pt 4 of that Act.
The objective to which I have to have regard seeks to maintain the economic strength of centres through limiting retailing activity. It is clear from the plans that form Exhibit 17 that the initial development of the site did not intend that the units were to be used wholly as shops and in fact, the retail activity was limited to 20% of the total floor area or 145.7sqm.
The evidence of Mr Stewart is that the council has limited retail activity in the B6 zone by refusal of development applications which it considers to be more appropriately located in the CBD and only permitting those types of retail activities that serve the travelling public as he considers that such uses do not impact on the economic strength of the centres. His assessment of the objective is to limit the type and scale of use applying qualitative and quantitative measures. Mr Shiels takes the contrary view saying that neither the LEP or DCP adopt either measure as a development standard or control and that shops are a permissible use in the zone and therefore consent should be granted.
What must be determined is how to measure the impact of the application and determine, if there is an impact, whether the economic strength of the centre would be maintained.
It is common ground that the application would have a -2.7% impact on retail turnover in the CBD. Mr Fensham argues that multi-purpose trips should be included in this analysis and therefore the impact would be greater. I do not accept the evidence included in Mr Plowman's affidavit as assessed by his consultant as to the likely turnover impacts and prefer the analysis conducted by Mr Leyshon and Mr Fensham. Mr Leyshon accepts that there will be a very minor impact on the performance of the Goulburn CBD if the application was approved and that even if one store was to close a result of the effect of competition, there would still remain significant choice and competition as far as pharmacy offer in the CBD was concerned.
Having considered the evidence provided, I disregard the affect of competition to the businesses, particularly the pharmacy businesses. It is apparent from the expert evidence provided that the impacts to those businesses will be far less than that anticipated than the objectors. Accordingly, the suggestions made in the evidence of the pharmacists who objected to the proposal as to impact on their businesses would not eventuate to the extent anticipated. That impact would however be an impact of competition within the market place and in accordance with Fabcot, is not a planning consideration.
What the economic experts agree is that the application will have an impact on the retail turnover in the Goulburn CBD. Mr Leyshon's evidence is that the impact will be minor however, that accepts that there will be an impact. Mr Fensham says that the impact will be greater and must consider the multiplier effect of multi-purpose shopping trips, which will affect the centre however, he agreed that his estimate of that impact may not reflect the precise affect. I consider that a shop that will take at least 2.7% of the turnover of a centre is a significant impact, particularly as that impact is the result of one shop with a very small floor area when measured against the gross leasable area within the CBD.
I consider that retail turnover is one indicator of economic strength however it is not the only one, other considerations such as the range and choice of goods and services available, the vitality of the centre, demand for floor space, number of vacant premises and whether a centre is growing also demonstrate the strength of a centre.
The view of the Goulburn CBD showed that there are areas experiencing growth and revitalisation and other areas that are in decline with a number of vacant shops. Accordingly, there is no issue in regard to capacity within the centre to accommodate additional retail uses. In fact, Mr Stewart confirmed that the council is considering a proposal that would allow further expansion of one of the shopping malls to include a discount department store and more specialty shops, such proposal he says, reflecting the council's strategic planning intent for the centre and its retail hierarchy. The council's evidence confirms its adoption and implementation of that retail hierarchy. Such a practice is a recognised planning tool which is used to regulate development. I consider the application offends the council's consistently applied practice and therefore the application would not represent orderly development of land or be in the public interest.
The objective of the B6 zone is to ensure that the economic strength of centres is maintained by limiting retail activity (emphasis added). In accordance with the evidence of Mr Stewart, the type and nature of retail use in the B6 zone should be limited to those uses that ensure the economic strength of the centre is maintained and service the uses currently within that zone or that are likely to be located within that zone as it develops and the travelling public. From his assessment of the types of retail uses that are appropriate within the B6 zone, it is apparent that there are some uses that the council considers are appropriate within the B6 zone and those uses would be compatible uses in that zone whereas others should be located within the centres. The nature of those uses is informed by the council's strategic plan and the retail hierarchy that is envisaged by that document. He says that a chemist shop is not the type of shop that should be located within the Enterprise zone, rather, it should establish within the commercial core. Mr Fensham concurs with that view.
Having regard to the evidence provided, I find that the application is inconsistent with the B6 zone objectives to which I must have regard. I accept the evidence of Mr Stewart that it is appropriate to limit the types of retail uses to ones that do not have an impact on the economic strength of the centre and the findings of both economic experts confirm that the application would have an impact. Whilst the extent of that impact is not agreed, I do consider that there is an impact and that impact would be significant in terms of loss of turnover. It is agreed that the chemist shop would only draw 15% of its turnover from the travelling public and from within the immediate area and would draw the remaining business from the greater Goulburn area. Accordingly, I find that the application does not contribute to the maintenance of the economic strength of the Goulburn centres through limiting retail activity.
In relation to the public interest, I find that the council's consistent application of its retail strategy is a matter that must be relevant to my considerations. Mr Stewart provided evidence of the council's consistent approach to limiting the types of retail uses within the B6 zone advising that the council has not approved any other shops in that zone since the LEP took affect. This is consistent with the aims of the LEP and the zone objectives and has been the subject of public consultation and participation. It is also consistent with state government strategies. Whilst the strategic plans should not be used to interpret the zone objectives, regard should be had to those strategic documents, as it was the study undertaken which informed the preparation of the LEP. As the standard instrument is prescriptive in its form, the ability of a council to include additional details is constrained and accordingly, the importance of its DCP and strategic plans is elevated to ensure that the public interest considerations are addressed, particularly where the council can demonstrate those strategies have been consultative and that there has been consistent application of the policies included in those plans.
The council's recent decision to amend its LEP to prohibit shops within the B6 zone, whilst not having progressed beyond the consultation process (s57), further reinforces the intent of the council to ensure the strength of its centres are maintained. Accordingly, any use that prejudices the effectiveness of the retail hierarchy and is inconsistent with the objectives of the LEP would not be in the public interest.
The final contention to be addressed is the issue of traffic and parking. There is a clear anomaly in the DCP in relation to the application of parking rates for shops. It would be possible to lodge two separate but concurrent development applications for shops with a GFA of 199sqm and have the parking rate assessed at 1 space per 40sqm however, if they were lodged as one development application, the development would be considered to be a shopping centre with a NLA of more than 200sqm and therefore the higher parking rate of 4.4 spaces per 100sqm would apply. I consider that to be an anomaly in the plan and that fact was recognised by Mr Hallam.
Mr Hallam says that the parking proposed is inadequate, that a total of 32 spaces are required on site and only 24 can be accommodated and that insufficient details have been provided in relation to the works required to facilitate manoeuvring of delivery vehicles. Mr Shiels says that the lower rate should be applied and that even if 32 spaces are required, they could be accommodated within the adjoining street. Mr Stewart was not able to provide evidence of the council's consistent application of the control for other retail developments other than clarification of the motel parking rate applied to the adjoining motel including the Bakehouse use and not the shop rate.
Consideration of the controls in the DCP is fundamental consideration or focal point ( Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373). For this reason, I must accept the evidence of Mr Hallam as to the number of spaces required. Having regard to the location of the site, the availability of on-street parking in the vicinity and the fact that use of that parking would have no adverse impacts on adjacent businesses, I do not find that non-compliance with the DCP controls for parking would be a ground for refusal. Whilst the DCP requires parking on site, the circumstances of the parking rate to be applied are such that it is possible to accommodate the parking demands of the development on site and on the adjoining road without offending the objectives of the control.
Similarly, the circumstance of Sowerby Street, where it ceases to be a public road, immediately at the entrance to the McDonalds site, is an existing situation and the poor traffic management practice of not allowing for a legal turn within that portion of the public roadway is a factor of the design of the roadway and not an issue that can be addressed by the applicant or any other private concern. It can however be remedied by the re-marking of the centre lines as detailed by the traffic experts and for this reason, the traffic contentions raised by the council are also not grounds for refusal.
With regard to the planning proposal, it is agreed that the issue of the planning proposal has been elevated from a matter of the public interest to that of an exhibited draft plan and therefore, a matter for consideration pursuant to s 79C(1)(d) of the Act. Whilst I accept that the council's decision to submit the planning proposal was made some nine months after the application was lodged with the council, on the evidence of Mr Stewart, it is apparent to me that the planning proposal was not made to frustrate the application but rather to address a longer term issue that had been identified by the council in relation to the permissibility of shops in the B6 zone. Mr Stewart said that this issue had been identified by the council for some time and it is apparent from the planning proposal that a two year period has been identified, that is, since the original plan was made. Whilst he did not say that allowing retail premises in the B6 zone was a mistake, saying that shops should be limited to types that attract the travelling public or workforce, he advised that the council's decision in relation to the latest amendment would prohibit all shop uses.
I do not agree that the process has reached a stage where it can be said to be either imminent or certain. Mr Ireland cited cases, which he says support his view that the plan is imminent and certain. I distinguish the status of the planning proposal described in this case to those in Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181 and Mathers v North Sydney Council [2000] NSWLEC 84 as in Trustees, the draft plan had been exhibited, adopted and referred to the Minister to be made. That is not the case in relation to the planning proposal before the Court. In Mathers the draft plan involved the consolidation of two current planning instruments and accordingly, Talbot J found that :
30. The draft LEP 2000 must be regarded with a high degree of certainty and although temporally it is not imminent (having just come off exhibition), nevertheless the period during which its aims, objective and individual provisions have been under consideration is an important factor in assessing the weight to be given to it.
Mr Eastman, in his written submissions cited other cases which I agree lead to similar conclusions that the planning proposal has not progressed to a stage where it is imminent or certain. Those particularly considered relevant to this matter are: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279; Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310; Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Purves v The Hills Shire Council [2011] NSWLEC 1103 and ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 102.
For the reasons outlined above, I do not find the planning proposal to be imminent or certain and therefore, it has not reached the stage where it should be given determinative weight. I do however find that the planning proposal is consistent with the council's planning strategies and that that strategy has been the subject of public consultation. The policy provisions of the strategy have also been implemented in a consistent manner. That part of the planning proposal that relates to the B6 zone is also consistent with the standard instrument. For that reason, the planning proposal should be given some weight but not to the extent that it is determinative.
In view of my findings that the application would not maintain the economic strength of the Goulburn centres and is therefore inconsistent with the objectives of the LEP and is not in the public interest, the application must fail.
Orders
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application DA/0121/1011 for the fitout and use of Units 1 and 2, Lot 3 DP 856419 Sowerby Street, Goulburn (the site) as a chemist shop is refused consent.
(3) The exhibits are returned.
_____________________
Sue Morris
Commissioner of the Court
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Decision last updated: 30 September 2011
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