Aldi Stores v Newcastle City Council

[2010] NSWLEC 1110

Set aside by Appeal: see: Aldi Stores v Newcastle City Council (2010) NSWLEC 227

Land and Environment Court

of New South Wales

CITATION:	Aldi Stores v Newcastle City Council [2010] NSWLEC 1110
PARTIES:	APPLICANT Aldi Stores RESPONDENT Newcastle City Council
FILE NUMBER(S):	10048 of 2010
CORAM:	Moore SC
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT APPLICATION - WORDS AND PHRASES :- Dual uses Second use prohibited Second use neither ancillary to nor subsumed by predominant use
LEGISLATION CITED:	Newcastle Local Environment Plan 2003
CASES CITED:	Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] NSWLEC 232; [2003] 129 LGERA 234 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
DATES OF HEARING:	11 May 2010
DATE OF JUDGMENT:	7 June 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister INSTRUCTED Baker & McKenzie RESPONDENT Ms A Pearman, barrister INSTRUCTED BY Newcastle City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

7 June 2010

10/10048 Aldi Stores v Newcastle City Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Fletcher is a developing suburb on the western outskirts of the Newcastle City local government area. It is located on the southern side of Minmi Road, a road that links a number of suburbs in the Blue Gum Hills area – as the area is identified by Newcastle City Council (the council). Access to the suburban area of Fletcher is via Britannia Boulevard, a street with, relevantly, an unbroken landscaped centre median strip. Britannia Boulevard intersects with Minmi Road utilising a roundabout. The first of the internal residential streets within Fletcher are accessed from a second, smaller, roundabout at the southern end of this short section of Britannia Boulevard.

2 To the west of the roundabout at the entrance to Fletcher, on the southern side of Minmi Road, there are a number of houses with direct frontages to Minmi Road. However, to the east of the roundabout with Britannia Boulevard, the houses in the first residential street in Fletcher, Broome Street, are separated from Minmi Road by a number of presently vacant, lightly wooded allotments. The first of these, immediately to the east of Britannia Boulevard, is identified in the council's Newcastle Urban Strategy 2009 as the location proposed by the council for a business precinct.

3 It is this allotment (the site) and its proposed future use as an Aldi food store that forms the basis of these proceedings.

4 The site has an area of 6,658 sq m and is, generally, rectangular in shape with an additional smaller area added in its south-eastern corner. Although Minmi Road and Broome Street are not precisely parallel and neither of them runs precisely east and west, it is convenient for the purposes of understanding orientation references in this judgement to treat them as running east-west for descriptive purposes and to describe, for explanatory reasons, the orientation of the dwellings on the northern side of Broome Street with the rear private open space areas, to the extent that the relevant allotments and their housing developments have such areas, as being oriented to the north toward the site.

The proposal

5 The Aldi food store proposed for the site would have an area of approximately 1500 sq m; employ some 20 staff; have parking spaces for 87 cars and 5 motor cycles (including 11 staff car parking spaces); have its major access/egress off Minmi Road operate on a “left turn in and left turn out” regime with an unbroken central median strip (to be constructed by Aldi) on Minmi Road across the site's frontage; have a secondary access/egress point (also “left turn in and left turn out”) from Britannia Boulevard with these turning restrictions being physically enforced by the vegetated median strip earlier noted.

6 The trading hours for this Aldi food store are proposed to be from 9 AM to 7 PM, seven days a week (with the addition of late closing on Thursday nights when the store would trade until 9 PM). The store is proposed to have its stock replenished by delivery vehicles that will enter and exit the site from Minmi Road – reversing into a north-facing, acoustically-shielded loading dock at the eastern end of the building.

7 The element of the physical form of the proposed building, relevant to my merit assessment in these proceedings, is the part precast concrete, part metal-clad wall proposed to be erected along the southern face of the building in the vicinity of the rear of five dwellings on the northern side of Broome Street. This wall is proposed to be 4.4 m high – with the lower portion being of precast concrete panels of a light, off-white colour surmounted by a 1.3 m high metal-clad section in a light grey colour. Both of these colours are shown in a schedule of finishes attached to the plans for which approval is sought. This wall will be unbroken except for a single emergency egress door of conventional size that is proposed to be located at approximately one third of the length of the wall from its western end. The building is to be set back ~ 3.2 m from the northern boundaries of the adjacent properties fronting Broome Street.

History of the application

8 The application for the proposed Aldi food store was originally lodged with the council in March 2009. Proceedings were commenced, based on the deemed refusal of the application, on 4 February 2010.

9 The council originally determined to contest the proceedings and filed a Statement of Facts and Contentions that included, amongst other matters, the contention that the proposal was prohibited. The council also pleaded a variety of other contentions.

10 However, after the commencement of the proceedings, the council determined that it would no longer contest the appeal and agreed to enter into consent orders on the basis of agreed conditions. A number of minor modifications were also made to the plans during the period after the lodgement of the initial application with the council.

11 As a consequence, the appeal proceeded as a consent orders hearing with a site inspection followed by a hearing at East Maitland Court house.

Site inspection

12 During the course of the site inspection, I heard evidence given by a number of the objectors and evidence given by Mr Bennett, an agent who spoke on behalf of the owners of three properties located on the northern side of Broome Street – properties whose northern boundaries face directly toward the wall of the proposed building for the entire length of each of those boundaries. On-site evidence in support of the proposal was also given by a resident of Fletcher.

13 The owner of the allotment immediately to the east of the site (and also fronting Minmi Road), also gave evidence during the course of which he indicated that he supported the proposal but advocated that a proposed pedestrian refuge at the eastern end of the element of the central median strip in Minmi Road (to be constructed by Aldi if the proposed development were to go ahead) should be constructed by Aldi rather than being required to be constructed by him as a condition attaching to any future development of his property. Although he acknowledged that it was in his financial interest that such a change be required, he pressed this position on what he said were pedestrian and road safety bases. In this regard, his concerns were consistent with those of several of the resident objectors who did not have any pecuniary interest in such a change – there being evidence, in one instance, that schoolchildren needed to cross Minmi Road and wait on the unformed verge on the northern side of the road to catch a school bus to their high school.

The planning framework

14 The site is zoned 3 (a) Local Centre Zone, in the Newcastle Local Environment Plan 2003 (the LEP). The landuse table for the LEP is structured in a fashion that lists, for each zone, a range of defined activities as being prohibited – anything other than that which is prohibited being permissible without development consent (these being a restricted [and presently irrelevant] range of activities in cl 13 of the LEP) or being permissible with development consent. Any activity that is permissible must also be consistent with the zone's objectives. In addition, the Newcastle Development Control Plan 2005 (the DCP) provides the usual degree of more detailed planning objectives and controls provided by such plans.

15 In this instance, the provisions of the LEP that are relevant are the objectives of the 3 (a) Local Centre Zone together with the definitions of shop (being a prohibited use for the zone) and local shop (being a use that is neither prohibited in the zone nor exempted by cl 13 and is, therefore, permissible with development consent).

16 The objectives of the 3 (a) Local Centre Zone are:

a. To provide for a compatible mix of business and housing in accessible locations, that could reasonably be expected to serve a local community with a population in the order of 5,000 people, which will maintain the hierarchy of urban centres throughout the City of Newcastle and will not prejudice the viability of the District Centre or the City Centre zone.
b. To conserve and enhance the built character and cultural heritage of local centres and to reinforce their vitality and viability.
c. To accommodate activities that serve the social, cultural and recreational needs of the local community.
d. To encourage residential development to be designed and located above or adjacent to core retail frontages in order to contribute to a safe, attractive, friendly, accessible and efficient pedestrian environment.
e. To ensure that new development has regard to the character and amenity of adjacent residential areas.

17 The LEP’s definition of shop is in the following terms:

shop means a building or place that is used for the purpose of the selling by retail, or hiring or displaying for the purpose of selling or hiring, of items (whether goods or materials) but does not include a convenience shop, bulky goods retail outlet, local shop or a sex aid establishment.

18 The LEP’s definition of local shop is in the following terms:

local shop means a shop that:

a. is of a nature and size that is suitable to serve a surrounding population of approximately 5,000 people, and
b. is not a bulky goods retail outlet, convenience shop or sex aid establishment.

19 It is common ground, an agreement that I accept is well founded from the plans and other documents, that the proposal could not be regarded as being a convenience shop, bulky goods retail outlet or a sex aid establishment. If the proposed Aldi food store is properly characterised solely as a local shop, it is permissible.

20 A limited number of the provisions of the DCP are also relevant relating to setbacks, parking and solar access. These are referred to, relevantly, when dealing with those issues.

The issues raised by the objectors

21 As earlier noted, the council initially contended that the proposed Aldi food store did not satisfy the definition of local shop – contending that the proposal was therefore a shop and thus was prohibited in the zone.

22 Although the council no longer pursued this contention, one of the objectors, Dr Hogarth, pressed this matter in his objections to the proposal based on the nature of the development proposed. Dr Hogarth also advance the proposition that adverse inferences should be drawn from Aldi’s website to conclude that Aldi intended this development to serve a population of ~ 20,000 and thus the development could not be a local shop but was, thus, necessarily a shop simpliciter

23 In addition, other objections raised concerned:

• Impacts on property values;
• Traffic and parking – including safety of school children catching busses;
• Noise from the premises and from its patrons;
• Reduction in sunlight and light; and
• Visual impacts on adjacent residences to the south.

Zone objectives

24 In addition to the question of whether or not the proposal satisfies the definition of local shop and is thus permissible, as a consequence of cl 8(b) of the LEP, the proposal must, relevantly, satisfy the first and the final objectives of the Zone 3 (a) Local Centre Zone – these two being the relevant objectives requiring my consideration in those proceedings.

Impact on property values

25 There is no loss of value issue to which I am lawfully able to have regard in these proceedings. The proposal is one that, if permissible with development consent, is to be tested as to its planning acceptability both in a general sense and as to the amenity impact on individual properties. Fears of a loss of value for properties, fears that may or may not be realised (but which I accept are genuinely and honestly held) are not matters that I am permitted to take into account in these proceedings.

Inferences from Aldi’s website

26 Dr Hogarth concluded, from material that was published on Aldi's website, that Aldi did not intend the proposal to be a local shop. This material related to the nature of potential development sites concerning which Aldi was prepared to entertain proposals for acquisition from members of the general public. This material, which I do not need to set out in full for the reasons that follow, described the nature of the sites and the potential retail catchments in which Aldi was interested.

27 Critically for the objections raised by Dr Hogarth based on Aldi’s website, the website said that the desirable sites for store development would be ones that served a population catchment of 20,000 people, clearly a population size that would be incompatible with being approximately 5000 people in the definition of local shop in the LEP.

28 That such content appeared and, indeed, may continue to appear, on Aldi's website is uncontroversial in these proceedings.

29 The matter was discussed, electronically, in an exchange of e-mails between an officer of the council and a representative of Aldi. Printed copies of the e-mail exchange were tendered. The content of the responses from Aldi indicates, effectively, that the company conducts its own site identification processes and, as a general rule, sources future potential development sites from these researches rather than from unsolicited approaches in response to website generated or other unsolicited enquiries. The position, it would appear, to put it not too fine a point on it, is that there is probably a degree of “corporate puffery” and desire to appear to seek such responses rather than any realistic desire or expectation of the utility of such an approach.

30 However, whether or not this is the case is, in my view, irrelevant to my consideration of this proposal. The reason for this is, simply, that I have uncontradicted expert evidence of Mr Hack in the Hill PDA report (a report provided to the council by Aldi as part of a submission on the issue of permissibility) setting out an economic modelling basis for consideration of the particular Aldi proposal at this site. That modelling basis makes it expressly clear that the 2016 and beyond projected normal turnover for this Aldi food store could not, on the figures in the Hill PDA report, conceivably be regarded as derived from a population catchment of 20,000 people.

31 Whilst it might not be proper economic modelling to take a direct linear extrapolation from the Hill PDA report disclosure that there would be, in 2016, a turnover of $1 million per annum per thousand people in Fletcher to derive a conclusion that there would be a turnover of $20 million per annum if this proposed Aldi store had a target catchment of 20,000 people. It is not necessary for me to do so to draw such a conclusion as, whatever the nature of the economic modelling extrapolation that would be appropriate if Aldi was seeking a 20,000 person catchment, this is certainly not what the Hill PDA report says will actually be the position for this proposed facility.

32 As a consequence, whatever the basis for the statements made on Aldi's website concerning desirables population catchments, whether a realistic statement of a genuine, generally desired objective or mere “corporate puffery” (or some combination of them in the continuum between the two positions), it is irrelevant – given the express evidence contained in the Hill PDA report that demonstrates that such a basis could not have provided the foundation for the selection of the present site.

Uses on the site

33 Before considering the first limb of the definition of local shop, it is convenient to note that there is no suggestion that the proposed Aldi food store transgresses the second limb of the definition of local shop as the facility is clearly not proposed to be a bulky goods retail outlet, convenience shop or sex aid establishment.

34 As earlier noted, the first limb of the definition of local shop requires that, to qualify, the facility must be of a nature and size that is suitable to service surrounding population of approximately 5000 people.

35 It is clear from the uncontested evidence in the Hill PDA report that, although also trading in a fashion after 2016 that will generate significant turnover that is not derived from the residents of Fletcher, 75% of the turnover will come from those residents and will be derived, primarily within that revenue stream, from food and grocery sales. Although the nature of some of the goods contained in Aldi's catalogue tendered on behalf of Dr. Hogarth might not be regarded by some as conventional supermarket items, I am satisfied that the range of goods sold in contemporary supermarkets is sufficiently eclectic to encompass the range shown in the catalogue without altering the nature of the proposed retail outlet in such a fashion to prevent it satisfying the test implicit in the word nature in the definition.

36 The next element of the definition requiring consideration is the size of the Aldi food store. There is no evidence to suggest that the size of the premises is inappropriate for the purpose of the definition nor that it has been made unusually larger than other Aldi food store. To the contrary, the uncontradicted evidence is that the size of this facility is not inconsistent with the general template for other Aldi stores. It is also the position, on the evidence, that this store is significantly smaller in size than that which would be expected for a conventional full service supermarket. As a consequence, I am satisfied that the proposal is consistent with the word size in the definition.

37 I now turn to the question of the population to be served. The definition requires that a local shop be consistent with serving a population of approximately 5000 people. The evidence in the Hill PDA report is that, in 2016, the population of Fletcher will be of the order of 6000 people.

38 As a consequence, I first need to consider whether 6000 people is approximately 5000 people or not. Populations, unlike floor area measurements such as that contained in the definition of a convenience store, are not ordinarily amenable to numerical precision as is expressly recognised by the term used in the definition. Although the population estimate for 2016 should also be considered an estimate at best and will necessarily be subject to adjustment, whether up or down, in light of the actual population at that time, the 20% difference between the two numbers, whilst potentially a statistically significant variation, is, in my opinion, not so unreasonably high a variation to exclude 6000 being consistent with approximately 5000 in this context.

39 I am, therefore, satisfied that, to the extent that the proposed Aldi food store will serve the population of Fletcher, this facility would be consistent with the definition of a local shop contained in the LEP.

40 The question then arises as to whether or not the extent to which this proposed Aldi food store is predicted to trade to a market beyond that of serving the community of Fletcher (and thus the facility's capacity as a local shop if approved for that purpose) would give rise to some further separate use taking place on the site and, if so, what that use would be.

41 It is long settled that it is possible for a permissible use to have other minor or ancillary functions that do not fall within the definition of the permissible use without rendering the use prohibited – provided those functions or activities are truly ancillary and do not themselves constitute a separate use. If they are not of a scale that renders them ancillary but creates a separate use, the permissibility or otherwise of that separate use must also be considered.

42 In this instance, as earlier noted, the Hill PDA report said that, in 2016, the trading position of this proposed Aldi food store would be one with an annual turnover of ~ $8 million of which 75% would come from residents of Fletcher.

43 During the course of his oral evidence, Mr. Hack, the author of the report, was asked several times, specifically, if he had adhered to this conclusion. He confirmed, in each instance when asked, that he did so.

44 During the course of the hearing, on a number of occasions the proposition was put that the use as a local shop would be the predominant use of the proposed facility. Accepting, as I do, Mr. Hack uncontradicted expert evidence concerning the expected trading pattern in 2016, it is obviously appropriate to describe the 2016 trading position in these terms – that the predominant use would be as a local shop as defined in the LEP.

45 However, if a particular identified use, in this instance as a local shop, is appropriate to be identified as the predominant use, it necessarily implies that there may be one or more other uses. In this instance, the projected trading figures show that 25% of the anticipated 2016 turnover, at an estimated monetary value of $2 million per annum, will not come from residents of Fletcher. I do not consider this to be so small to be merely ancillary to the use as a local shop. I consider that trading at that proportion of turnover above that coming from residents of Fletcher.and at that monetary value must be regarded as a further use. The question then arises as to how this additional use should be characterised and whether it could be regarded as being merely ancillary to the predominant use as a local shop.

46 I have no evidence as to whether it would be appropriate to draw any conclusions about what might be regarded as an “equivalent population” that would generate such a trading volume and therefore consider it inappropriate to make any assumptions of this nature (such as this turnover being the equivalent of one third of the population of Fletcher). However, in my view, the projected trading volume is nonetheless significant both in percentage terms and in monetary amount.

47 In this regard, two factors relating to the location of the proposed facility appear relevant. First, as earlier noted, the location has been identified by the council as being an appropriate location for a local centre (this giving rise to compatibility with zone objective issues dealt with briefly later). Second, this location as identified by the council is one which has a frontage to Minmi Road and it is those reasonable to expect that a combination of these factors would ensure that, to some degree, any local shop on the site would attract some passing business from those travelling along Minmi Road. I therefore do not consider the fact that the location, particularly as it was identified by the council for such a facility, can, in itself, be the basis for any inferences adverse to Aldi.

48 In light of the projected 2016 trading pattern, it is, however, appropriate, in my view, to undertake some examination of the design of the proposed facility in assessing this additional use arising from the $2 million turnover anticipated from those travelling along Minmi Road (whether attracted in passing or having identified the proposed Aldi food store as a “destination” being irrelevant, in my view, to this consideration).

49 There are two potentially relevant matters, it seems to me, to which it might be appropriate to have regard in considering this further use. These are the nature of the proposed vehicle circulation patterns within the site and the extent to which customer parking is proposed to be provided within the site.

50 There are two vehicle access/egress points proposed for the site. Each of them is to be a “left turn in, left turn out” arrangement. In the case of the Britannia Boulevard access, this is determined by the existence of the present vegetated median strip whilst, in the case of Minmi Road, the council requires an unbroken concrete median strip to be constructed and this is not opposed by Aldi.

51 Although the access/egress at Minmi Road is significantly larger than that for Britannia Boulevard, it is obvious that this is a consequence of making necessary provision for truck deliveries to the site. I do not consider it appropriate to draw any inference from this and I am satisfied that the nature of the circulation pattern provides no assistance to me nor comfort to the opponents of the proposal.

52 However, the same cannot be said for the extent of the parking proposed to be provided on the site. The proposal envisages parking spaces for 87 cars and 5 motor cycles (including 11 staff car parking spaces). The council's parking controls contained in the DCP are discussed in both the council officer’s December 2009 assessment report and in material provided by Colston Budd Hunt & Kafes (Colston), Aldi's traffic and parking consultants. It is clear from these documents that the number of parking spaces proposed is in excess of the number required by the council’s controls. The controls require, at the maximum (on one interpretation of how the parking should be calculated), of 75 spaces. Indeed, a letter from Colston dated 9 July 2009 says:

Part 4.1 of Newcastle Development Control Plan 2005 indicates that shops should provide one space per 20m2 NFA (supermarkets, department stores and regional shopping complexes) to one space per 40m2 (general retail).

53 Nowhere that I have been able to find, in any of the material in the evidence, any explanation of why such an increased number of parking spaces, beyond those that would be required by the relevant DCP controls – even on the most demanding interpretation (that is not treating the facility as a supermarket – as might well be appropriate), are proposed to be provided on the site. The conclusion I reach is that this additional parking must be necessary, at least in part, to cater for the out of Fletcher (and thus not local) trade envisaged for the facility.

The nature of the additional use

54 I am satisfied that, solely on the basis of the uncontradicted expert evidence given by Mr. Hack concerning the expected 2016 trading pattern’s population drawing and the resultant out of area (Fletcher) monetary turnover and proportion of trading volume that the extent to which the proposed Aldi food store will trade beyond being a facility appropriate to serve a population of approximately 5000 people is sufficiently large to require this aspect of the facility’s proposed operation to be regarded as a separate use.

55 I consider that this was impliedly conceded on behalf of Aldi by the description of the local shop use as being the “predominant” one – although I do not consider that this implied concession is essential to support the conclusion that I have, separately, reached on the basis of the Hill PDA report and the oral evidence of Mr. Hack.

56 I am further satisfied that be size of this anticipated use, both as a percentage of the projected 2016 turnover (~ 25%) and the monetary amount (~ $2 million) involved, means that this additional use cannot be regarded as ancillary to or subsumed by the predominant use as a local shop.

57 Whilst, in this instance, unlike the physical circumstances dealt with by Talbot J in Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] NSWLEC 232; [2003] 129 LGERA 234, there are not clearly identifiable and separate physical elements of the premises to which I can point as being associated with that additional and separate use (as the separate use arises co-extensively with the use of the area within the building), I do consider that the degree to which customer parking is proposed to be provided going be quite significantly beyond anything that would be required by the council's controls is a matter relevant to the conclusion which I have reached – namely that the additional use proposed for the site is as a shop.

58 I am therefore satisfied that there are two uses proposed to be carried out on the site, that as a local shop and, separately (although spatially co-extensively), as a shop with the second of those uses being at a trading volume and turnover not being ancillary to or subsumed by the predominant use.

59 As earlier discussed, use of the site as a shop is prohibited. As a consequence of there being two separate uses on the site, I consider that I am obliged to follow the decision in Pallas Newco where His Honour held that, if there are two uses and the second use is subordinate but not ancillary to or subsumed by the other, and one of those uses (even if it is the minor, subordinate use) is prohibited, then the totality of the application is tainted by that second and impermissible use.

60 As a consequence, following Pallas Newco, I must conclude that, as the second use is prohibited and cannot be set aside as it is neither ancillary to nor subsumed by the predominant use (as a local shop), the proposed use of the site as a shop, being a use which is prohibited, fatally infects the proposal and it must be refused.

61 In reaching this conclusion, I should not be taken as criticising Aldi for opportunistically and legitimately seeking to take advantage of the fact that the council has identified this site, fronting Minmi Road, as an appropriate location for a local shop. It may be that the council's identification of this particular location for the identified purpose will always have the potential to raise the impediment that has proved fatal to this application. However, if I am right in my conclusions concerning this proposal, that is a matter that may require further consideration on some future application.

62 If I am not correct on the issue of permissibility, in the interests of the just, quick and cheap disposition of the issues in these proceedings, I consider it is appropriate for me to turn my attention to the remaining matters that would require consideration if the proposal were permissible. These are:

• First, the question of whether or not the proposal is consistent with the objectives of the Local Centre zone within which it is located (relevantly, in my view, being confined to the first and final of those objectives); and
• Second, whether, after consideration of the remaining planning issues raised by the objectors concerning impacts on the adjoining properties to the south and in the vicinity, the proposal should be approved.

Zone objective (a)

63 I turn, initially, to the first zone of the objectives, I set out that zone objective (this being the principally relevant one in these circumstances, in my view):

a. To provide for a compatible mix of business and housing in accessible locations, that could reasonably be expected to serve a local community with a population in the order of 5,000 people, which will maintain the hierarchy of urban centres throughout the City of Newcastle and will not prejudice the viability of the District Centre or the City Centre zone.

64 Ms Duggan submitted that the definition of local shop and the first of the zone objectives were, if I understood her correctly, relevantly effectively co-extensive. I agree. I do so for two reasons. The first is that, if the proposal is, as a matter of correct construction, a local shop simpliciter, it seems to me that axiomatically, it must be consistent with this zone objective.

65 Second, even if that was not a sufficient basis upon which to conclude that the proposal was consistent with this objective, if and only if the proposal can be correctly characterised as a local shop and setting aside my earlier findings about a second impermissible use that was neither subsumed by or ancillary to that use, then the Hill PDA report provides an appropriate evidentiary basis upon which to conclude that the first of the zone objectives is satisfied.

Impacts on neighbouring properties

66 Although the objectors who live immediately adjacent to the proposed building have had the benefit of an open outlook to the open woodland to the north since their houses were constructed, the identification of and zoning for the site as a local centre predated the construction of their dwellings.

67 Although I appreciate and understand their desire to retain the outlook that they presently enjoy, the assessment that I am obliged to make of the proposed building is whether its impact is acceptable and whether it is consistent with the relevant planning controls contained in the LEP (including the objectives of the zone within which the site is located) and the provisions of the DCP that are relevantly applicable. To the extent that there are provisions of the DCP that are relevantly applicable, I am necessarily guided in my consideration of them by the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373.

68 The first of the potential impacts on the amenity of these dwellings that I turn to consider is the concern expressed relating to both the activities necessarily associated with the operation of the building (that is, it is plant and machinery and its loading dock) and the activity of patrons outside the building including the of their arrival and departure.

69 The material that accompanied Aldi's application to the council and which formed part of the application to the Court included an acoustic assessment undertaken by Wilkinson Murray. This expert acoustic report concluded that, with appropriate acoustic shielding – including the nature of the fencing to be erected between the properties facing Broome Street and the site, there would be no unacceptable impact on neighbouring properties. Although, for aesthetic reasons, I will return to the nature of the fence between the Broome Street properties and the site later, the uncontradicted expert acoustic evidence is that the combination of appropriate acoustic shielding and treatments together with the location and orientation of plant and equipment and the loading dock means that there would be no unacceptable acoustic impact on the neighbouring properties. Whilst I appreciate that the objectors’ concerns are genuine, there is no basis upon which I could question, let alone reject, this uncontradicted expert evidence.

70 I now turn to the question of night-time light spill. Amongst the documents provided by Aldi to the council and forming part of the application in these proceedings is a detailed expert report from Webb Australia that deals with the question of light spill from possible lighting sources associated with the proposed development. That uncontradicted expert report concludes that, with appropriate preventative measures to be incorporated in the design of the premises, there is no unacceptable light spill impact, whether from the building or from vehicles, that would impact on neighbouring properties.

71 As this is also uncontradicted expert evidence and I have no expert evidence contesting these conclusions, although accepting that these objector concerns are genuine, I have no basis upon which I could concluded that light from or associated with the activities of the proposed Aldi food store would warrant modification to, let alone refusal of, the proposal.

72 The major issue of concern to the neighbouring properties to the south of the building arises from the height of the wall of the proposed building adjacent to the boundary with these properties and the extent to which it is set back from the boundary between the site and those residential properties.

73 The building’s wall is proposed to be set back 3.2 m to the north of the boundary. The minimum setback from such a boundary required by the DCP for residential development would be 1.6 m for a wall of this height. The relevant provisions are contained in s 5.2.3 (c) of the DCP. There is no numerical requirement concerning such a commercial development. Whichever position is considered, the proposed setback is compliant.

74 The shadow diagrams which have been provided by Aldi's architect showing the shadows to be cast by the building at the winter solstice make it clear that there will be a degree of overshadowing of the area between the dwellings to the south and their rear boundaries and some degree of overshadowing of the rear walls of some of these properties. These open space areas, several of which incorporate the drying areas of these dwellings, would continue to receive direct sunlight, unobstructed by either the building or the proposed fence to be erected by Aldi on its own side of the boundary (as discussed below) of at least three hours between 9 AM and 3 PM at the winter solstice – this being the requirement for solar access prescribed by the DCP in clause 5.1.5 (b).

75 As this standard is also consistent with generally recognised community standards through documents such as AMCORD, although I am not obliged to adopt any as standard contained in the DCP after consideration of the particular circumstances of the case, I see no basis upon which I could consider the solar access to these properties to be unacceptable, if the development were to proceed.

Traffic and safety

76 A similar position to that of acoustic impacts arises with respect to traffic and parking. As earlier noted, Aldi provided to the council an expert report by Colston, traffic and parking consultants, dealing with these issues. Aldi also provided, in response to requests for further information from the council, several supplementary reports from this consultancy.

77 Except with respect to those elements of Colston's reports to which I referred in my earlier consideration of the permissibility of the proposal, there is nothing in these reports that could cause me to conclude that the concerns expressed by the objectors relating to traffic, generally, or specifically with respect to the safety of school children catching buses from the bus stop generally opposite the entry and exit to the site on Britannia Boulevard or, from a similar location, on the opposite side of Minmi Road are well founded.

78 As with acoustic matters, the expert traffic and parking evidence is uncontradicted. Again, although I accept that the concerns of the objectors are genuinely held, there is no basis upon which I can reject the expert evidence from Colston that, on traffic and parking grounds, the proposal is acceptable.

79 At this point, I should specifically deal with the proposal by the adjacent landholder to the east that the pedestrian refuge in the middle of Minmi Road at the eastern end of the element of the median strip that would be constructed if this proposal were to proceed (but which is that landowner’s responsibility is construct when he develops his own property) should now be brought forward and be required to be constructed as an element of this proposal.

80 I am prepared to accept, for the purposes of this analysis, that this proposition was put to me for entirely altruistic purposes rather than in an attempt to cost-shift. However, as with the general traffic and parking matters, there is no foundation in the Colston materials that could provide any justification for such a requirement. I therefore reject this proposal on the basis of the uncontradicted expert evidence in the Colston materials.

Zone objective (e)

81 In addition to the controls in the DCP discussed above, I am also satisfied that the use of the light coloured concrete and metal cladding elements as earlier noted (as provided for in the schedule of finishes) means that, although it is not dealt with in the DCP, these finishes will also ensure, to the extent possible for a building of this wall height and length, that the wall does not, in itself, impact inappropriately on light, as opposed to sunlight, to these dwellings.

82 In addition, I also note that there is proposed to be landscaping in the setback between the fence and the wall of the proposed building – which landscaping, when mature, would provide some additional visual relief from the unbroken wall. Although I have a degree of reservation about whether such landscaping is likely to thrive (given the aspect and height of the building adjacent to which it is proposed to be planted), I do not consider that the existence (or viability) of these plantings is essential for the otherwise acceptability of the proposed structure.

83 Finally, on amenity matters, I note that the Aldi agreed that, if the proposal were to be approved, the fence to provide acoustic and light separation between the site and the adjacent residential area could be constructed of Colorbond metal panels and be erected entirely on Aldi's site so that the residences to the south could retain their open, swimming pool-style fencing with such vegetation as they had already growing on it – this retention being desired by these residents for aesthetic purposes.

84 For the reasons set out above, I am satisfied that the proposed Aldi food store does not contravene the final objective of the zone objectives and thus does not warrant refusal on this basis.

Conclusion

85 I have concluded that, on a proper consideration of relevant matters, this proposed Aldi food store embodies two separate uses that would operate co-extensively within the proposed building. Those uses are as a local shop and as a shop. As I have concluded that the second of those uses is neither ancillary to nor subsumed by the predominant use as a local shop, following the decision of Talbot J in Pallas Newco, I consider that I am obliged to conclude that the proposal is impermissible and that the appeal should be dismissed.

86 However, if I be wrong in reaching this conclusion, in order to facilitate the just, quick and cheap disposition of all of the issues raised in the proceedings, I have set out why, if the proposal were permissible, it would be consistent with the relevant zone objectives and would not be objectionable on the basis of the other merit objections raised in the proceedings.

87 It therefore follows that the orders of the Court must be:

1. The appeal is dismissed;
2. Development Application 09/0227 for the erection of an Aldi food store at the intersection of Minmi Road and Britannia Boulevard, Fletcher, is determined by the refusal of development consent; and
3. The exhibits are returned.

88 In light of the fact that the council did not comply with directions to file material in sufficient time prior to the hearing to permit adequate preparation for the hearing and also erroneously advised those objectors who wished to make submissions for the hearing of the proposed consent orders that they should do so direct to the Court rather than, as appropriate to be done, through the council, I consider it desirable to ensure, by way of further directions, that those persons who made individual submissions (but not mere petition signers) concerning the proposed Aldi food store, whether in opposition to or in its support, are advised of the outcome of these proceedings. I therefore direct:

1. The respondent is to write to each individual who wrote a letter of either objection to or support for the proposal (but not those persons who signed petitions unless they had also written an individual letter but also on the basis that, if more than one person from an address wrote an individual letter or two persons signed the same individual letter, only one communication needs to be sent to that address) advising them of the outcome of the proceedings and enclosing a photocopy of the conclusions set out above and of these directions;
2. Any letter required by (1) is to be posted by prepaid post to the address on the individual letter of objection or support and is to be dispatched no later than Friday, 18 June 2010; and
3. A copy of the terms of the letter required by (1), together with a list of the names and addresses to which it has been sent, is to be filed, marked for my attention, by the close of business on Wednesday, 23 June 2010.

Tim Moore

Senior Commissioner