Bongiorno Hawkins Frassetto & Associates v Griffith City Council

[2007] NSWLEC 551

Land and Environment Court

of New South Wales

CITATION:

Bongiorno Hawkins Frassetto & Associates v Griffith City Council and ors [2007] NSWLEC 551

PARTIES:

APPLICANT
Bongiorno Hawkins Frassetto & Associates Pty Ltd

FIRST RESPONDENT
Griffith City Council

SECOND RESPONDENT
Ritchies Stores Pty Ltd

INTERVENOR
William James Lancaster

FILE NUMBER(S):

10073 of 2007

CORAM:

Brown C

KEY ISSUES:

Development Application :- construction of a supermarket, car park and ancillary road works - compatibility with zone objectives - economic impact on other supermarkets- whether consistent with retail hierarchy - heritage - flooding/stormwater

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Griffith Local Environmental Plan 2002

CASES CITED:

Zhang v Canterbury City Council (2001) 51 NSWLR 589;
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 ;
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429;
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 ;
Mison v Randwick Municipal Council (1991) 73 LGRA 349;
Scott v Wollongong City Council (1992) 75 LGRA 112;
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 ;
Fabcot Pty v Hawkesbury City Council (1997) 93 LGERA 373

DATES OF HEARING:

16,17,18,19/07/07, 27/07/07

 
DATE OF JUDGMENT: 

4 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Robson SC
Mr R Lancaster, barrister
SOLICITORS
Mackenzie and Vardanega

FIRST RESPONDENT
Mr S Griffiths, solicitor
SOLICITORS
Pike Pike & Fenwick

SECOND RESPONDENT
Mr J Ayling SC
SOLICITORS
Landerer & Company

INTERVENOR
Ms A Pearman, barrister
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 September 2007

10073 of 2007 Bongiorno Hawkins Frassetto & Associates (Applicant) v
Griffith City Council (First Respondent),
Ritchies Stores Pty Ltd (Second Respondent) and
William James Lancaster (Intervenor)

JUDGMENT

1 COMMISSIONER: This appeal relates to Development Application No: D549/2005 that proposes the construction of a supermarket, car park and ancillary road works at 2–12 Burrell Street Griffith (the site).

Background

2 Griffith City Council (the council) granted development consent to the development application on 9 May 2006. When advertised, the development application attracted 70 written submissions, 142 pro forma responses and a petition containing 451 signatures all opposing the development application. One submission in support of the proposal was submitted to the council.

3 The appeal is based on the refusal by the council on 16 January 2007 of an application under s 82A of the Environmental Planning and Assessment Act 1979 (the EPA Act) to review 8 conditions of consent. The s 82A application attracted 34 written objections. A petition containing 3269 signatures was provided in support of the application, in addition to 86 letters of support. Five submissions were withdrawn prior to the council's determination.

4 While the s 82A application sought a review of conditions, the council refused the whole development application. There was no dispute that this was a course of action available to the council through s 82A(9). The consequence of the council resolution is that the determination on 16 January 2007 for refusal of the s 82A application replaced the earlier determination for approval.

5 On 30 March 2007, the Court made orders joining Ritchies Stores Pty Ltd as a party to the proceedings. Ritchies Stores Pty Ltd lease 2500 sq m of floor space in the Griffith Central Shopping Centre at 10 – 12 Yambil Street Griffith for a supermarket. Leave was also granted to Mr William James Lancaster to lead evidence, cross-examine witnesses and make submissions pursuant to s 38(2) of the Land and Environment Court Act 1979. Mr Lancaster is a local resident who resides at 99 Binya Street.

The site and locality

6 The site consists of Lot 10 and Lot 11, Section 3 in DP 758476. It is generally rectangular in shape with a northern frontage of 95 m to Binya Street, an eastern frontage of 99 m to Burrell Place, a southern frontage of 113 metres to Wakaden Street and a total site area of 10,308 sq m. It is currently vacant and generally flat with no significant trees although some mature street trees exist on the footpath area of the street frontages.

7 The site was part of the Griffith Town Centre designed by Walter Burley Griffin. Lot 11 previously consisted of 10 separate residential lots but the lots were consolidated on 9 July 1930. Lot 10 remained as a separate parcel of land. Around 1932 a recreational club with various facilities, including a clubhouse, billiard tables, a bowling green, tennis courts and a garden was constructed on the site. Alterations and additions to the clubhouse were undertaken over time. The club declined and was ultimately absorbed into the Ex-Servicemen's Club until sold in 2005. The site is currently vacant.

8 To the south, the Temora-Roto railway line and Wakaden Street separate the site from the northern fringes of the Griffith CBD. To the east a motorcycle shop and medium density residential units are separated by Burrell Place, with vacant portions of railway land, dwelling houses, a church and a club located along Wakaden Street. North of the site, dwelling houses, Salvation Army facilities and St Albans Anglican Church are separated by Binya Street with further dwelling houses, the Griffith Base Hospital, a childcare facility and medical and associated consulting rooms located in the vicinity of Noorebar Avenue. A financial and insurance consultant and medium density units are located to the west and adjacent to the site with medium density residential units, dwelling houses, and a backpacker's hostel located between Binya Street and Wakaden Street.

The proposal

9 The proposed supermarket is to be operated by Woolworths. The building will be located in the south-western corner of the site and is generally single storey with a skillion roof. A screened plant area is located on the roof. The height varies from 4.7m to 9.35m although the higher elements are mainly architectural features. Amendments during the hearing increased the 3 m setback to the western boundary to 3.5 m - 4.5 m. The main facade of the proposed supermarket will be to the east, facing Burrell Place. The proposed supermarket will incorporate a liquor outlet. The supermarket, offices, cool rooms and staff amenities have an area 3237 sq m. On-site car parking will be provided on the eastern and northern sides of the site. The application proposes 159 on-site parking spaces, including disabled parking spaces and staff parking spaces. The trading hours are 7.00 am to 8.00 pm Monday to Saturday and 8.00 am to 8.00 pm on Sundays and public holidays.

10 Vehicle access to the supermarket is proposed as a “left-in” only access from Burrell Place, located approximately midway along the street. A vehicle entry and exit point in the north-western corner of the site at the intersection of Binya Street and Anzac Street is proposed via a proposed new roundabout. A loading dock and manoeuvring area for delivery trucks and service vehicles is proposed on the southern side of the site off Wakaden Street. The proposal includes landscaping to some 15% of the site, predominantly in strips around 1.5 m to 2.0 m in width but with some larger areas around the street frontages.

Relevant planning controls

11 The site is within the 2(a) Residential zone under Griffith Local Environmental Plan 2002 (LEP 2002). The proposed use is permissible with consent as a "shop or shopping centre". The Dictionary to LEP 2002 provides the following definition:

shop or shopping centre means a building or place used for the purpose of selling, exposing or offering for sale by retail goods, merchandise or materials, but (in the table to clause 10) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary.

12 The site is not located within a Heritage Conservation Area, but is located within the vicinity of a heritage item (St Alban's Church) listed in Sc 6 of LEP 2002.

13 Clause 10(2) provides:

(2) Consent may be granted to development (otherwise than as complying development) only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development.

14 The 2(a) Residential zone objectives are:

( a) To set aside land to be used for residential purposes and associated facilities, and

(b) To ensure full and efficient use of existing social and physical infrastructure and that the future provision of services and facilities meets any increased demand, and

(c) To enable development of land within this zone for residential purposes, and

(d) To enable development of land within this zone for tourist, open space and recreation purposes, and

(e) To enable the development of a variety of housing types while maintaining the existing character of the residential area throughout the City of Griffith, and

(f) To enable development for the purpose of retail, commercial and professional services in locations in residential neighbourhoods where such development is compatible with the amenity of adjoining land in respect of scale, height and type of buildings and traffic generation, and

(g) To enable the development of land within this zone for the purpose of land uses that are appropriate within the surrounding urban living area where the scale, height, type and traffic-generating characteristics of the development are compatible with the character and amenity of the surrounding urban living area and with existing or proposed nearby development.

15 Clause 26(3) provides requirements for flood liable land and cll 31 and 37 provide heritage requirements.

16 Development Control Plan 21 (DCP 21) applies to “dwellings, dual occupancies and multiple dwellings in all residential zones”. DCP 21 does not strictly apply to commercial development but is relevant in so far as it establishes the form of development contemplated for the residential zone. The site falls within Precinct 2 – Wakaden North in DCP 21. Precinct 2 is described in the following manner:

Wakaden North precinct is a narrow strip stretching east to west, on the north side of Wakaden Street, located between Central Griffith and the Hospital/Hyandra precincts.

Wakaden Street is a very busy 9m to 13m wide arterial road, with a 6m verge and setbacks are from 6m to 9m. There are a scattered mixture of small and medium sized established street trees. Many areas contain no or minimal street trees or front landscaping. A typical allotment is 1100m2 with an 18m frontage. This precinct contains a mixture of existing single story inter-war detached dwellings, 70s two story blocks of flats and 90s single story units. The adjoining Central Griffith Precinct on the south side of Wakaden Street consists totally of two story blocks of flats. Dwelling materials include weatherboard or face brick with galvanised iron or tile roofs. There is mostly no front fencing, however there a few hedges on existing dwellings and some brick and picket screening fences in front of new unit developments. Vehicles are accommodated in rear or side garages or carports.

The projected future is for the precinct to be redeveloped totally for medium density units and flats due to the close access to the CBD and existing medium density dwelling character of Wakaden Street. The density control in this precinct has been selected to lie in between the high density controls to the south and medium to low density controls to the north. Wakaden Street will continue to be a busy road and residential design needs to address problems associated with this. Future additional street trees of a consistent species, and other front landscaping, will help improve the quality of the streetscape.

17 Griffith Growth Strategy 2030 (GS 2030) is relevant and provides the direction for the development and management of Griffith to 2030.

The issues

18 The First Respondent raised the following issues:

• whether the proposal is consistent with the zone objectives, and
• matters raised by objectors.

19 The Second Respondent raised the following issues:

• whether the proposal is likely to have an unacceptable impact on the existing Griffith CBD,
• whether the proposal is likely to have an unacceptable impact on the retail hierarchy of Griffith.

20 The Intervenor raised the following issues:

• those matters raised by the First Respondent
• whether the site is suitable for the proposed development considering the size of the building, car parking, delivery and service facilities and setbacks,
• whether the proposal is likely to have an unacceptable impact on traffic and safety,
• whether the proposed round about will impact on stormwater management at Binya Street and Burrell Place, and
• whether the proposal is likely to have an unacceptable impact on adjoining sites.
The evidence

21 Mr Gary Shiels provided town planning and traffic evidence for the First and Second Respondents. Mr Nick Juradowitch provided town planning evidence and Mr Robert Varga provided traffic evidence for the Applicant.

22 Mr Peter Leyshon provided evidence on the potential economics effects of the proposal and the effects on the retail hierarchy of Griffith for the Second Respondent and Mr Tony Dimasi provided evidence on the same matters for the Applicant. While originally raised as an issue, the potential economics effects of the proposal and the effects on the retail hierarchy of Griffith were not pressed by the First Respondent.

23 Mr Mark Tooker provided evidence on stormwater and flooding and Ms Fiona Mann provided evidence on heritage matters for the Applicant. While originally raised as an issue, the First Respondent did not press stormwater and flooding as an issue.

24 Affidavits opposing the proposal were provided from:

• Mr William James Lancaster of 99 Binya Street,
• Ms Luigina Gaffey of 3/287 Wakaden Street,
• Mr Kenneth Ravenshaw Cheers, the operator of the financial and insurance business at 96 Binya Street,
• Mr Anthony Arthur Jones, a director of Rossies Supermarket Pty Ltd and operator of a supermarket in Banna Street,
• Ms Carolyn Jane White of 65 Binya Street,
• Ms Sherene Blumer of 12 Whitton Street and
• Mr Fredrick Albert Harrison, the Chief Executive Officer of the Second Respondent.

25 Affidavits supporting the proposal were provided from:

• Mr Brian Grandi of 48 Nelson Drive, Citrus Grove Estates
• Mr Francesco Battaglia, the proprietor of a hairdressing salon at 451 Banna Street and
• Ms Rosanne Graham of 6 Salvanza Crescent.

26 The following residents provided evidence on-site:

• The Reverend Robert Harris, the Dean/Rector from St Alban's Anglican Church,
• Ms Francine Harding of 101 Binya Street,
• Mr Warren Muirhead of 49 McNabb Street,
• Ms Adrienne Wilson of 29 Palla Street,
• Ms Mary Lancaster of 99 Binya Street,
• Mr Alistair Low of 40 Messner Street,
• Captain Daniel Ross, Salvation Army, Binya Street,
• Ms Diana Ralph of 13 Wade Street,
• Ms Jenny Geddes of 102 Binya Street,
• Ms Lynette Wilson of 2/293 Wakaden Street,
• Mr Reg Erskine of Farm 39 Benerembah,
• Mr Frank Zanotto of Farm 1590 Hanwood,
• Mr Tom Marriot of 50 Probert Avenue,
• Mr Bob Harris of 3/29 Sidlow Road,
• Mr Edwin Cheers of 61 Erskine Road,
• Mr Frank Lamond of 118 Macarthur Street,
• Mr Kevin Knox of 12 Binya Street,
• Mr Ian Wolfe, Business Manager Griffith Base Hospital,
• Ms Maureen Parker of 32 Hart Street,
• Ms Belinda Lane of 58 Jondaryan Avenue,
• Mr Frank Violli of Farm 1812 Millinson Road,
• Ms Margaret McGregor, Secretary of the Griffith Ratepayers & Residents Association Inc.

27 The concerns expressed by the majority of the residents on-site related to:

• traffic congestion, and particularly delay of emergency vehicles,
• height, bulk, setbacks, design and materials not appropriate for the locality,
• impact on the heritage listed St Alban's Anglican Church,
• detrimental amenity impacts, particularly noise from roof plant and loading dock,
• the site being inappropriate and not in character with the locality,
• concerns about trolley management and litter associated with supermarket,
• stormwater management and flooding concerns,
• loss of street trees,
• loss of property values,
• long hours of operation of the supermarket,
• proximity of bottle shop to the Salvation Army facility and,
• impact of trucks and operation of the loading docks off Wakaden Street.

28 Those residents that supported the proposal stated that the proposal:

• should not be responsible for existing traffic problems,
• will provide additional employment and
• will provide shopping facilities closer to existing residential areas.

29 The First Respondent also tendered copies of the submissions and petitions received by the council during the advertising of the proposed development.

Zone objectives
Shiels evidence

30 Mr Shiels states that zone objectives (e), (f) and (g) are relevant. In relation to objective (e), Mr Shiels notes that the previous club use was complimentary to, and compatible with surrounding residential properties. The proposed development will be in stark contrast to this form of development and will be totally out of character. The site is located within Precinct 2 – Wakaden North of DCP 21 that indicates the projected future use of the site as medium density housing. DCP 21 encourages landscaping which is complimentary to the existing street tree planting however the proposal will reduce the verge widths and remove existing street trees. Also, high levels of traffic will be generated by the proposal and will require drastic changes to the existing road formations. The proposal fails to satisfy this zone objective.

31 For objective (f) Mr Shiels states that the proposed development is totally out of scale with other residential uses in the area and cannot be considered to be development that would be compatible with the amenity, the visual appearance or the existing traffic generation. Residents surrounding the site currently enjoy a high level of amenity with no noise emanating from the site and little disturbances from the surrounding area.

The proposal will generate high levels of traffic over an extended period during the day and night. Supermarkets are one of the highest levels of traffic generators and in Mr Shiels’ opinion, are totally unsuitable in a residential area. Road widths, road verges and streets planting contribute to the visual amenity of the area and with the amendments proposed to these features, the visual appearance surrounding the site will be changed and will substantially reduce the visual amenity. He notes that the applicants March 2006 Traffic Report indicates there will be a 900% increase in traffic generation on Thursday evenings and a 1200% increase in traffic generated on Saturday mornings. This would result in a totally unacceptable impact on the present residential amenity of locality. The proposal fails to satisfy this zone objective.

32 In considering objective (g) Mr Shiels notes that there are a number of single dwellings and medium density residences in the immediate area surrounding the site. The intent of the GS 2030 and DCP 21 is that the site will be developed for medium density purposes. The proposal will be totally out of scale and character with the surrounding area and have an adverse effect on the amenity of existing and future residents. The traffic generation from people using the supermarket in addition to the regular deliveries required for the supermarket will have an unacceptable impact on the nearby residential streets and make the development incompatible with the character and amenity of the surrounding area. The proposal fails to satisfy this zone objective.

Juradowitch evidence

33 Mr Juradowitch comes to the opposite conclusion to Mr Shiels. He states that objectives (f) and (g) are the primary objectives for a commercial development. In relation to objective (f), Mr Juradowitch states that the proposed building will for most part have an overall height generally consistent with a medium density development. He acknowledges the proposal is larger in scale than the previous club building and adjoining buildings and is of a different type. The proposal is also a greater traffic generator however this in itself does not mean that it is in conflict with the objective. The relevant test in objective (f) is whether those features of the building render it incompatible with the amenity of adjoining land. Mr Juradowitch states that the following matters are relevant considerations:

• the height is compatible with a two-storey scale development consistent with the zoning,
• there are number of large buildings near the site,
• very large setbacks are provided with the exception of the southwest corner,
• extensive landscaping to the side boundaries is provided,
• a dense landscaping screen is provided along the western boundary,
• the building incorporates articulation to the walls and roof and the building finishes and colour add visual interest,
• the site is situated on the northern edge of the Griffith CBD,
• the planning controls envisage future medium density buildings of at least two storeys for the site,
• existing roads are relatively busy arterial or important collector roads, and
• any assessment of character and amenity impacts should include the former bowling club on the site.

34 Mr Juradowitch states that the primary amenity issues include visual outlook, noise, privacy, light spill, solar access and traffic. The visual outlook from the great majority of neighbouring residential properties will not be greatly different from that which existed when the site contained a bowling club. In his opinion, the amenity issues are not that significant or can be addressed through conditions of consent to the point where the proposal achieves a satisfactory compliance with the zone objective (f).

35 According to Mr Juradowitch the proposed development accords with zone objective (g). In his opinion the relationship of the proposal to the surrounding urban living area and associated amenity is satisfactory. Issues such as truck movements, traffic generation and congestion, the need for intersection improvements, reduced parking to neighbouring land uses, noise and illumination from the open parking area and roof plant, movement of patrons in the parking area, signage, deliveries and shopping trolley collection are not matters that unacceptably impact on the amenity of the surrounding urban living area as the issues are not that significant or can be addressed through conditions of consent.

36 Mr Juradowitch notes that the site is not located in a quiet residential area. Customer and staff vehicles will access from relatively busy collector roads, with truck access restricted to Wakaden Street which, is an arterial road that carries substantial traffic flows, including trucks. It must be remembered that the previous bowling club generated traffic to the site in the evenings, which is a time that is more sensitive in terms of residential amenity.

Findings – zone objectives
The assessment approach

37 Clause 10(2) provides that consent may be granted to development only if the consent authority has taken into consideration the objectives of the zone that are relevant to the development. There was some disagreement on the weight the Court should give the objectives. Mr Griffiths, for the First Respondent, submitted that the objectives are important and while not a "pre-condition" are a stop to the admissibility or suitability of the development. Mr Ayling SC, for the Second Respondent, submitted that the objectives are fundamental and pivotal to assessment of the application. Mr Robson SC, for the applicant, submitted that the objectives must be genuinely considered, however the First Respondent and Second Respondent overstate the status of the objectives. The compliance with the objectives is not a prerequisite to the grant of approval nor are the relevant objectives equivalent to an enabling clause such that development is only permissible "subject to" compliance with the objective.

38 This matter was raised in Zhang v Canterbury City Council (2001) 51 NSWLR 589 (at 75) where Spigelman CJ states in relation to the requirements of s 79C the EPA Act to “consider” a development control plan:

75 The consent authority has a wide ranging discretion - one of the matters required to be taken into account is `the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.

39 In BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 (at 279) Mahoney JA made the following relevant comments:

The relevance of a factor such as this has, I think, long been recognised in this area of the law. The bodies responsible for the making of decisions, including discretionary decisions, in this area of the law are, of course, not bound by the doctrine of precedent which binds courts of law. Their function is, in the exercise of discretionary powers, to take into consideration the relevant considerations, to weigh them one against the other, and to determine what, in the light of those considerations, should be done. Ordinarily, it would not be right for such a body to conclude that the effect of the relevant considerations is that one thing should be done and yet, without more, to do another. The grant of a discretion is the grant of the authority to do what the authority sees as the discretionary considerations to warrant being done.
But, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision made may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations

40 The objectives must be seen as a "fundamental element" or a "focal point" in any consideration. The weight to be given to the objectives is a matter for the Court, providing that it is within proper limits. In this case, I am satisfied that at least significant weight should be given to the objectives in the assessment of the suitability of the proposed development. Determinative weight could be given if the degree of incompatibility between the proposed development and the objectives is significant.

41 In my view, the importance of the objectives in this case is increased by the planning approach adopted in LEP 2002 where the 2(a) Residential zone allows a wide range of land uses. The acceptability or otherwise of these land uses is not controlled through the land use table (where uses can be specifically permissible or prohibited) but through a consideration of the zone objectives. For example, shops are a prohibited use within a residential zone in many other local planning instruments. LEP 2002 however provides a greater number of uses within a residential zone (such as shops) but subject to a consideration of the zone objectives. This approach consequently places a greater emphasis on a thorough consideration of the proposed use against the zone objectives.

What are the relevant zone objectives?

42 Clause 10(2) requires consideration the objectives of the zone that are relevant to the development. Mr Shiels and Mr Juradowitch differ on the relevant objectives with both agreeing on objectives (f) and (g) but Mr Shiels including objective (e).

43 As the purpose of objective (e) is to address “a variety of housing types” and not commercial development, I agree with Mr Juradowitch that it is not relevant although as I understand Mr Shiels evidence on this objective, his concerns relate largely to the impact on the existing character of the residential area. I however note that this is a matter that is generally raised by objectives (f) and (g) although not in the same terms as objective (e).

Objective (f) - To enable development for the purpose of retail, commercial and professional services in locations in residential neighbourhoods where such development is compatible with the amenity of adjoining land in respect of scale, height and type of buildings and traffic generation,

44 Objective (f) requires consideration of the compatibility of the supermarket in relation to scale, height and type of buildings and traffic generation with the amenity of adjoining land. For some guidance, the Macquarie Dictionary (Second Edition) defines “compatible” as “1. capable of existing together in harmony. 2 capable of orderly, efficient integration with other elements in a system”.

45 To the west the adjoining land consists of a financial and insurance consultant, 4 medium density units and a single residential dwelling. Accepting that “adjoining” has the meaning attributed to it in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the adjoining development to the north and on the opposite side of Binya Street consists of dwelling houses, the Salvation Army and St Albans Anglican Church. To the east a motorcycle shop and medium density residential units are located on the opposite side of Burrell Place. Wakaden Street and the railway line are located to the south.

Scale

46 I have taken scale, in this context, to mean "a certain relative or proportionate size or extent" (Macquarie Dictionary (Second Edition)). This manifests itself in the size and particular characteristics of the operation and the physical appearance of the building. The details of the proposal are set out in pars 9 and 10.

47 I acknowledge that there are different land uses on adjoining land. Consequently, there are different operational characteristics and different appearances. In my view, the adjoining development could be described as largely residential being made up of single dwellings and medium density housing but with some older inconsistent buildings that do not significantly impact on the largely residential nature of the adjoining area. The land use plan within the Statement of Basic Facts provides a helpful guide to the different categories of land uses adjoining and near the site.

48 The properties most directly affected by the proposed development are those residential properties that adjoin the site to the west, including the property of Ms Gaffey that was inspected on the site view. The proposed building is located at a distance ranging from 3.5 m to 4.5 m from the western boundary and some 6 m in height to the top of the parapet. The setback is to be landscaped. Ms Gaffey expressed concern over the extent of the wall that runs for some 60 m in length and is visible from her rear courtyard.

49 I share the concerns of Ms Gaffey over the appearance of this elevation from her property (and other properties in her group of dwellings). DCP 21 states the projected future for Precinct 2 is for medium density development. The height requirements provide for a maximum of two storeys but with three storeys acceptable at the street frontage and subject to the satisfaction of certain criteria. Mr Juradowitch argued that the overall height was compatible with the development of the site for multi-unit dwellings. I accept that this may be correct in numerical terms however the height requirement in DCP 21 also includes a building height plane that sets the upper levels back at an increasing distance from the boundary to reduce bulk and overshadowing (Fig 17). In my view, the proposal is inconsistent with this requirement in relation to bulk. Even taking into account the landscaping of the setback and some limited articulation of the wall; I do not accept that the proposal is compatible with the amenity of adjoining land in respect of the bulk and overbearing appearance. The length of the wall exacerbates this incompatibility. It would be unlikely that any development of the site for multi-unit dwellings would contemplate a largely unbroken window-less wall, some 60 m in length and 2 storeys in height.

50 Even though overshadowing was raised as a concern in relation to the properties to the west, the shadow diagrams indicate only a marginal increase in overshadowing and in my view would not be a reason to find that the proposal was incompatible for this reason.

51 The financial and insurance offices located directly to the west in Binya Street and operated by Mr Cheers are a commercial use however I am satisfied that the scale of this use is compatible with the amenity of adjoining land because of its size and residential appearance despite its commercial nature. It is a type and form of commercial development that is anticipated by the zone and the zone objectives. Despite the concerns of Mr Cheers, I do not accept that the impact on his building from the potential loss of on street parking and noise would be a reason to refuse the application largely because of its commercial use. The use of the building for residential purposes would however raise different issues and may result in a different conclusion.

52 Mr Juradowitch raised other non-residential buildings as support for his conclusion that the proposed supermarket was suitable in this location. While there was little evidence on the specific operations of the Salvation Army building, the St Albans Anglican Church and the motorcycle shop I have little trouble in concluding that the scale of these operations (either individually or collectively) would be relatively minor when compared to the scale of the proposed supermarket.

53 Mr Juradowitch identifies the primary amenity issues as including visual outlook, noise, privacy, light spill, solar access and traffic. I will deal with traffic later in the judgment. I do not understand matters such as visual outlook, noise, privacy, light spill and solar access to be issues associated with the adjoining residential development, the Salvation Army, the St Albans Anglican Church or the motorcycle shop. The issues identified by Mr Juradowitch are brought to the area directly as a result of the proposed development and are incompatible with the largely residential development in the area and even some of the other non-residential uses. While conditions could be formulated to minimise these amenity impacts, conditions cannot remove the presence of the noise, car park lighting (and not necessarily light overspill) and shopping trolleys in the street between collections and the general activity created by the scale of the supermarket proposed in this application. Even though the individual issues may be not significant, I accept collectively they represent an unacceptable impact on the amenity of the adjoining land.

54 In terms of visual amenity, I do not accept that the Salvation Army building, St Albans Anglican Church and the motorcycle shop should dictate the form of development for the site as this approach essentially gives no weight to the character anticipated by DCP 21 and GS 2030. These buildings are all relatively old and clearly pre-date LEP 2002, DCP 21 and GS 2030. Mr Juradowitch appears to rely heavily on a merit based approach as if no planning controls exist. This clearly cannot be an appropriate planning approach for the site considering the existence of LEP 2002, DCP 21 and GS 2030.

55 The scale of the proposed development also manifests itself in its visual appearance. While the building has considerable setbacks to the north and east, the setback area consists predominantly of paved car parking areas with only minimal landscaping along the street frontages. The presence of the vehicles in this area is incompatible with the generally landscaped or grassed setbacks of the residential development in the area. The southern building setback is in the order of 4.3 m to 5 m and with the paving required for the loading facilities presents as an incompatible element compared to the adjoining medium density development. I accept that the impact is lessened somewhat by its relationship with the railway line on the opposite side of Wakaden Street however the existing residential development in this street cannot be ignored when considering the impact of the proposed development.

56 As suggested by Mr Juradowitch, the scale of the previous bowling club use of the site is a valid matter in the consideration of the compatibility of scale. There was however little evidence on the particular operating conditions apart from the decline of the club and its closure in 2005. It would be reasonable to assume that at least in its later years, patronage levels would have been relatively low consistent with its declining popularity. It would also be reasonable to assume that a decline in patronage would result in a consequent drop in potential impacts on adjoining properties. In any event, the size of the club building as depicted on a number of aerial photographs was a relatively small compared to the overall site area. I satisfied that the scale of the previous bowling club provides little in the way of support for the proposed development.

57 While much was made of the application by Mr Lancaster and his wife in 2000 to use part of their dwelling as an antique shop, I am untroubled by any suggestion of a relationship between this use and the proposal. It would be absurd to suggest that the use of part of a residential dwelling for an antique shop could be compared in any meaningful way to the proposed supermarket. Mr Lancaster and his wife simply availed themselves of the opportunity to use their dwelling for a commercial activity in a way envisaged by the council’s planning controls, as could any other person in the community. As with Mr Cheer’s development, it was a type and form of commercial development that is anticipated by the zone and the zone objectives.

Height

58 The proposed building is generally single storey with a rooftop area set aside for plant. The maximum height is in the order of 11 m although the majority of the building is around 6 m to 7 m. In isolation and putting aside the issue of bulk, it could not be argued that the height of the building would be incompatible with the amenity of adjoining land.

Type of building

59 A building used for a "shop or shopping centre" is permissible within the zone. The definition however does not place any limits on the size of a shop or shopping centre but the suitability, or otherwise relies on a consideration of the objectives of the zone to control the size and form. The proposed development is unquestionably commercial in form and design. It has few, if any, elements that respond to the largely residential development in the area. That is not to say that different land uses necessarily create an incompatibility in building type. For example, the financial and insurance consultant adjoining the site to the west is a commercial development but provides a residential appearance because the design of the building reflects characteristics of a residential dwelling such as setback, landscaped setting, height and general domestic appearance.

60 The St Albans Anglican Church clearly is a larger building but does not have an overly large footprint and is well setback from the street in a landscaped setting. Practically, it could not be expected that the Church would have a domestic appearance considering its use, age and heritage status. It is an iconic stand-alone building in Griffith that should not either follow or dictate any assessment of building type. The Salvation Army building has a footprint larger than a normal residential dwelling however provides a more residential feel through street setbacks and building form. The planning status of the bike shop was never explained to the Court in any detail however it is also a building that should not play a major role in determining an appropriate building type for the site. It has a commercial scale with zero street setbacks but occupies a relatively small site area and is single storey construction. As stated previously, these buildings are relatively old and clearly pre-date LEP 2002, DCP 21 and GS 2030.

61 Generally, residential buildings adjoining the site are one or two storey construction with a landscaped and grassed setback from the street. This is consistent with the form of development envisaged for Precinct 2 in DCP 21. When compared to the proposed development, I have little trouble concluding that the proposal with a footprint of 3453 sq m, large expanses of hard paved parking at grade near the street frontages and a commercial appearance would be incompatible with the amenity of adjoining land in relation to type of building.

Traffic generation

62 Mr Shiels and Mr Varga relied on the 2005 Traffic and Parking Assessment Report (the Report) prepared by Project Planning Associates when the development application was lodged with the council even though Mr Shiels did not accept a number of the assumptions made in the Study. Mr Varga was cross-examined on a number of assumptions in the Report however I am satisfied that it is not necessary to deal with each of these matters as the consideration required by cl 10(2) can be undertaken to an acceptable level using the information in the Report.

Supermarket traffic generation

63 The Report relies of data collected from site surveys for existing traffic levels and the generation rates from the Roads and Traffic Authority document Traffic Generating Developments, Section 3 -Land use Traffic Generation (October 2002) (the RTA Guidelines).

64 The traffic surveys provides for two-way flows in Burrell Place in the order of 540 vehicles per hour (vph) during the Thursday evening peak period, 520 vph during the Friday evening peak period and 460 vph during the Saturday morning peak period. Two-way flows in Binya Street are in the order of 550 vph during the Thursday evening peak period, 450 vph during the Friday evening peak period and 450 vph during the Saturday morning peak period.

65 The RTA Guidelines for shopping centres (1-10,000 sq m) estimate traffic generation figures of 417 vph on Thursday evening, 424 vph on Friday evening and 553 vph on Saturday morning. Discounting these figures by the levels of traffic that could reasonably be expected to be generated by the existing uses of the site, the Report adopts the figures of 45.6 vph for a bowling club use and 0.85 vph for a dwelling house giving a total traffic generation potential of 46.5 vph for the site. Based on these figures the Report finds that the projected net increase in traffic activity as a consequence of the proposed development is 371 vph (417-46 trips) on Thursday evening, 378 vph (424-46 trips) on Friday evening and 507 (553-46 trips) on Saturday morning (I note that the Report refers to Friday morning for this part of the assessment however I presume it means Friday evening consistent with the other data).

66 The Report assesses the operational performance of the nearby road network (not including the roundabout proposed in a later version of the plans) using the INTANAL program and concludes that the development will not have any unacceptable traffic implications in terms of roadwork network capacity.

67 While the Report and Mr Varga conclude that the proposal will not have any unacceptable traffic implications for the area, the test in clause 10(2) is one of compatibility with the amenity of adjoining land in relation to traffic rather than acceptability in traffic planning terms. On the basis of the data provided in the Report, I agree with the conclusions of Mr Shiels that the proposal would be incompatible in terms of traffic and would result in an unacceptable impact on the amenity of adjoining land.

68 In my view, no other reasonable conclusion could not be reached when the proposed development results in a 900% increase in traffic generation on Thursday evenings and a 1200% increase in traffic generated on Saturday mornings even using the RTA Guidelines trip generation rates for a bowling club rather than any specific trip generation rates from the previous club use of the site (that was in decline). The increase would be even greater if the site was to be used solely for residential purposes. Even Mr Varga described the increase in traffic generation as "noticeable".

69 The description of Precinct 2 in DCP 21 describes Wakaden Street as a very busy … arterial road and even accepting the relatively high levels of traffic volume, the proposal will still result in a general increase of at least 70% based on the results of the Report. Even if the streets surrounding the site are already very busy, I do not accept that this is a warrant to make the situation any worse. The impact of the vehicles on the amenity of the adjoining land is exacerbated by the trading hours of 7.00 am to 8.00 pm Monday to Saturday and 8.00 am to 8.00 pm on Sundays and public holidays. While traffic volumes will be lower outside the surveyed peak times, the proposal will still bring traffic into the area at times when it would not reasonably be expected for a residential area. Mr Juradowitch’s evidence that the proposed trading hours would not constitute an unreasonable amenity impact must be rejected.

The roundabout

70 The construction of a roundabout is proposed at the intersection of Binya Street and Anzac Street to provide a vehicle entrance and exit point although this did not form part of the traffic assessment in the Report. Mr Varga described the roundabout as a benefit to the proposed development but not a necessity. It was however part of the proposed development.

71 A design was commissioned by the council and ultimately tendered during the proceedings. As I understand, the Applicant and First Respondent saw the design as a concept that could be amended, particularly in relation to the chevrons painted on the road to guide traffic through the roundabout. The significant issue raised by local residents was the likely loss of on street parking brought about by the painted chevrons. Examples were given of the need for on street parking in this location when services or funerals are carried out at St Alban's Church.

72 The roundabout forms part of the development application and I note there were no concerns over the configuration and design with the exception of the location of the painted chevrons. Mr Shiels and Mr Varga estimated the loss of on street parking (including those lost on the other street frontages) with different results ranging from 50 spaces (Mr Shiels) and 16 spaces (Mr Varga) although most were not located in the areas around Binya Street and Burrell Place near St Alban's Church.

73 I am satisfied that the roundabout is appropriate and that a redesign of the painted chevrons, to maximise on street parking, could be undertaken by way of appropriately worded condition of consent. The retention of all existing on street car parking facilities, in my view, would not be possible given the construction of the roundabout and the need to safely direct traffic through the roundabout.

Truck movements

74 Mr Varga acknowledges that the proposed development will result in some increases in truck movements on the adjacent road network, particularly in Wakaden Street due to the location of the loading dock. He sees this as a preferable location as the southern side of Wakaden Street is undeveloped and adjoins the railway line along its entire length. The northern side of Wakaden Street is only partially developed. Further, he notes that a truck entrance to the freight terminal for the Griffith Railway Station is located on the southern side of Wakaden Street, some 50 m from the site.

75 Mr Varga also states that Wakaden Street forms part of a designated Road Train and B Double Route for trucks travelling to Melbourne and Sydney. To address any potential impacts Mr Varga relies on draft condition 55, which states:

(55) A Traffic Management Plan detailing the proposed route of access and egress to the site for delivery vehicles, be submitted to Council for approval prior to the issue of a Construction Certificate. This management plan shall include measures to mitigate the impact of noise on the surrounding location, and is to be adhered to at all times.

76 Mr Shiels expressed some concern over the conclusions made by Mr Varga on the basis of his estimation of the likely number of vehicles delivering goods to the site.

77 In a strict planning assessment, the location of the loading dock at Wakaden Street is clearly the most appropriate location. The railway line is located on the opposite side of Wakaden Street however residential developments are located directly to the west and further to the east so some care needs to be taken in the manner in which deliveries are made to the site. The evidence provided to the Court, in my view, would not be sufficient to conclude that the amenity of adjoining land would not be affected by deliveries to the supermarket.

78 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 addresses, in part, issues associated with the use of a loading dock in a 1890 sq m Coles supermarket at Oatley. In this case, a Traffic Management Plan (called an Operation Management Plan) was provided with the development application and addressed matters such as loading dock hours, limits on the number and size of trucks and general controls on the operation. The contents of the Operation Management Plan were available for consideration at the hearing. While amendments were made at and after the hearing they were relatively minor. Importantly, a representative of Coles provided evidence on the specific number and type of vehicles providing deliveries to the site. Even though the supermarket was smaller, 27 truck arrivals were planned for each day although because of the site constraints, trucks were limited to a maximum 11 m in length.

79 The reliance on condition 55 to address any potential impacts is, in my view, inappropriate in the absence of any specific knowledge of the delivery requirements for the proposed supermarket. Based on his professional experience Mr Varga estimates that the daily deliveries will consist of 19 – 20 movements made up of one semi-trailer around 17 m in length, a small number of rigid vehicles around 11 m in length with the remainder consisting of small commercial vehicles. While Mr Varga is an experienced traffic engineer who is entitled to call upon his experience in the area of the number and type of deliveries to the site, I am not satisfied that his experience should be preferred over the specific details that should be available from the prospective occupier of the site at the assessment stage.

80 In the absence of more specific details on the delivery requirements for the proposed supermarket such as the number, type, times, characteristics of delivery vehicles and defined routes for trucks it is not possible to assess any impacts. In my opinion, condition 55 lacks certainty and finality and as such is not appropriate as a condition of consent (Mison v Randwick Municipal Council (1991) 73 LGRA 349, Scott v Wollongong City Council (1992) 75 LGRA 112).

Conclusions - Objective (f)

81 For reasons mentioned in the preceding paragraphs, I find that the proposed development is incompatible with the amenity of adjoining land in respect of scale, type of buildings and traffic generation. The level of incompatibility, in my view, is so significant that the proposed development warrants refusal for this reason alone. For completeness I will briefly deal with the other issues.

Objective ( g) - To enable the development of land within this zone for the purpose of land uses that are appropriate within the surrounding urban living area where the scale, height, type and traffic-generating characteristics of the development are compatible with the character and amenity of the surrounding urban living area and with existing or proposed nearby development.

82 Objective (g) requires consideration of the compatibility of appropriate land uses in relation to scale, height and type of buildings and traffic generation within the surrounding urban living area and with existing or proposed nearby development. Objective (g) differs from objective (f) in that it does not specifically refer to retail development and requires a test of compatibility with "character and amenity of the surrounding urban living area and with existing or proposed nearby development " rather than " the amenity of adjoining land". The compatibility test in objective (g) is a wider test than "adjoining land" by a specific reference to "surrounding urban living area and with existing or proposed nearby development" however the comments in the previous paragraphs on objective (f) are also relevant to the surrounding urban living area.

83 With the benefit of the site view beyond the adjoining land I am satisfied that the proposed development is incompatible with the scale of development within this surrounding living area. The Griffith Base Hospital is located to the north of the site. While commercial in nature, it like St Albans Anglican Church building is setback from the street in a landscaped setting.

84 While the adjoining land contains land uses other than residential because of their historical existence or proximity to the Griffith CBD, the greater the distance from the site there is a generally greater consistency with the residential scale of development and consequently the greater incompatibility with the proposed development. For comparison, buildings around The Circle (to the north and visited on the site view) are predominantly single residential dwellings with a consistent scale in terms of building design, setback and landscaping. I accept that there will be an increasing lack of visual connectivity with other development at a greater distance from the site however there will also be a greater consistency in the type of development, being almost exclusively residential in nature.

85 The applicant saw the location of the site as an advantage in that it was closer to the residential areas to the west of the Griffith CBD than the existing supermarkets located at the eastern end of the Griffith CBD. This has the potential to increase traffic through areas not currently experiencing shopper traffic although little evidence was provided on the implications of this scenario.

86 Conclusions - Objective (g)

For reasons mentioned in the preceding paragraphs, I find that the proposed development is incompatible with the character and amenity of the surrounding urban living area and with existing nearby development. The level of incompatibility, in my view, is so significant that the proposed development warrants refusal for this reason alone.

Economic impact on Griffith CBD

87 The likely social and economic impacts of the proposed development in the locality are matters that are to be taken into consideration under s 79C(1)(b) of the EPA Act. The mere threat of competition to existing businesses is not necessarily a relevant consideration, but if the extent and adequacy of existing shopping facilities available to the community are put in jeopardy then those likely impacts can be taken into account in the assessment of the development application (Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 and Fabcot Pty v Hawkesbury City Council (1997) 93 LGERA 373).

88 Mr Leyshon and Mr Dimasi are both qualified and experienced experts in the field of economic analysis of shopping centre developments. They helpfully rely on the same approach to determine whether the additional floor space of the supermarket can be supported. This is:

Supportable floor space = Total retail expenditure
Turnover per square metre
where Total retail expenditure = Total population x Per capita expenditure

89 There was agreement between Mr Leyshon and Mr Dimasi on the extent of the trade area likely to be serviced by the Griffith CBD. Mr Leyshon and Mr Dimasi also agreed that any impact from the proposed development will be almost entirely on the existing and proposed supermarkets in the Griffith town centre rather than on specialty shops. Their disagreement on the other three factors was significant and lead to their opposing conclusions. I will briefly deal with the outstanding differences on these factors.

Total population

90 Mr Leyshon states that the 2006 Australian Bureau of Statistics Census Data (ABS data) is released over time and is only partially available for the Griffith trade area. For the period of 2006 - 2016, Mr Leyshon estimates a total average annual growth of 0.58% or a range between 0.4% and 0.7%. The preliminary ABS data indicates an average annual growth of 0.1% between 2001 and 2006. He notes that the achievement of this population growth rate will be dependent to some extent on a recovery in rural conditions in the Murrumbidgee region over the next 10 years. If this does not occur a lesser average annual growth would be more likely to occur.

91 Mr Dimasi states that Mr Leyshon significantly underestimates the average annual growth rate for long term planning. It is important to consider the proposal as a major long-term capital work. In his opinion, the population outlook for Griffith as detailed in the Griffith Council Long Term Strategy represents a more reasonable approach. He estimates a total average annual growth between 1.4% and 1.6%.

Total retail expenditure

92 Mr Dimasi relies on data produced by a specialist independent company called Marketinfo. Marketinfo produce economic impact assessments for a wide range of organisations through Australia. The estimated average spending level on retail items for the Griffith trade area in 2005 was calculated at $9,528 per person. This figure is supported by comparison with the ABS Retail Trade Series data estimated on a national basis.

93 Mr Leyshon relies on a number of different sources to calculate the annual available retail spending for the Griffith trade area for 2006, 2008, 2011 and 2016. These are the 2001 ABS Census (Household Incomes), 2003 - 2004 ABS Household Expenditure Survey, 2001 - 2007 ABS Average Weekly Earnings and 2004 - 2007 ABS Retail Sales Australia. Mr Leyshon calculated the estimated average spending level on retail items for the Griffith trade area in 2006 at $7,894 per person. This being some 17% below the estimate of Mr Dimasi.

Turnover per square metre

94 Mr Leyshon states that $7,500 per sq m per annum is an appropriate level for calculating the average sales for supermarket floor space. This figure is within the generally accepted range of performance for full line Australian supermarkets of $7000-$8500 per sq m per annum.

95 Mr Dimasi notionally adopts a rate of $7,000 per sq m per annum. He states that there is no one single figure, which could or should be applied for the purposes of determining the correct amount of supermarket floor space for Griffith. He rejects the affidavit of Mr Harrison as self-serving in nature and limited to the first 12 months of stores operation whereas a supermarket is a very long-term investment and it would not be unusual for a new supermarket to not return a profit in the first year.

Leyshon conclusions

96 Based on his estimates the current demand for supermarket floor space is in the order of 10,920 sq m. By 2016 the demand will have risen to 12,773 sq m, an increase of 1853 sq m over current levels. Accepting that the Griffith trade area has approximately 9040 sq m of supermarket floor space (Foodworks, Woolworths, Coles and IGA Everyday) the current theoretical deficiency is around 1873 square metres, increasing to 2180 sq m by 2008. However, with the construction of the approved Ritchies IGA supermarket of 2500 square metres there will be a current notional oversupply of 320 sq m and an oversupply of 920 sq m if the Foodworks extension is constructed.

97 Mr Leyshon states that the proposed development, particularly in a low population growth environment, will have unacceptable effect on existing and approved supermarkets and will not generate a sufficient net community benefit to warrant its approval.

Dimasi conclusions

98 Based on his estimates Mr Dimasi states that the average trading level for supermarket floor space in Griffith at 2008 would be $6,680 per sq m (as compared to $5,419 for Mr Leyshon). By 2016 the average trading level for Griffith supermarkets would have increased to $7,600 per sq m well above the $7,000 per sq m threshold, which Mr Dimasi notionally adopts. Mr Dimasi sees these figures as very conservative as to available trade area spending.

99 Mr Dimasi states that the supermarket would generate a significant net community benefit in the form of additional choice, additional employment and improved spatial distribution of anchor stores for the Griffith town centre leading to increased customer convenience, and that the trading impacts from the store will not threaten the ongoing viability of any existing or proposed supermarket elsewhere in Griffith.

Findings

100 On the question of total population, I accept the conclusions of Mr Leyshon. The preliminary ABS data is the most current data and is even more conservative than the projections of Mr Leyshon. I agree that any reliance on the Griffith Council Long Term Strategy is potentially misleading considering the availability of more recent ABS data and the lack of any adjustment for this data. The Griffith Council Long Term Strategy provides projections for increases of 2.0% (2000 – 2010), 0.86% (2010 – 2020) and 1.52% (2020 – 2030). This is inconsistent with the most current ABS data.

101 The conclusions of Mr Leyshon are also consistent with the Australian average of 1 0% to 1.1% and there was no evidence to suggest any reason why the particular characteristics of Griffith should exceed the national average.

102 Mr Dimasi and Mr Leyshon were critical of the approach adopted by each other on total retail expenditure and identified, what they saw as the deficiencies in each other’s methodology and selection of appropriate data. In this case, I am more inclined to accept the estimated average spending level of Mr Dimasi or a figure near $9,528 as the Marketinfo data would appear to the widely used, independent and accepted for use in economic impact assessments. I am also mindful of the concession made by Mr Leyshon that it is possible that his estimates of retail spending could be underestimated to some extent although not to the extent suggested by Mr Dimasi.

103 Mr Dimasi and Mr Leyshon also differ on the amount of supermarket and grocery stores sales as a percentage of total retail sales with figures of 35% and 32% respectively. Mr Leyshon adopts the Australian average (with NSW being 31%). Mr Dimasi states that the higher proportion is appropriate because typically non-metropolitan locations have a much higher level of supermarket floor space on a per capita basis. I am satisfied that 32% represents a reasonable percentage of total retail sales considering the range across Australian states and territories with NSW, Western Australia and Tasmania having the lowest percentage and the Northern Territory having the highest percentage at 40%.

104 Mr Dimasi also includes a figure of 7.5% of supermarket sales in Griffith from areas beyond the trade area on the basis that the proposed supermarket will attract additional patronage. Mr Leyshon made no such allowance. In my view, additional supermarket sales from outside the trade area would be minimal, if any, taking into account the extensive supermarket facilities already available in Griffith. I am unsure why the proposed supermarket would attract further customers when a Woolworths supermarket already exists in Griffith, even assuming that supermarket group was the exclusive choice of any person outside the trade area.

105 On turnover per square metre, I accept the rate of $7,500 per sq m per annum. This figure conservatively falls at the lower end of the range suggested by Mr Leyshon. The evidence did not suggest that Griffith CBD was trading poorly and there was general agreement between Mr Dimasi and Mr Leyshon that the Griffith CBD was trading well.

106 For 2006, and adopting the Mr Leyshons population figures and turnover figures and Mr Demasi’s retail expenditure figures (but using a 32% proportion of total retail sales and no sales from beyond the trade area) in the agreed formula, the sustainable level of supermarket floor space is 13172 sq m. This needs to be compared to the existing and approved supermarket floor space from Mr Leyshons statement of 12147 sq m made of 9040 sq m of existing supermarket floor space (Foodworks, Woolworths, Coles and IGA Everyday), the construction of the approved Ritchies IGA supermarket of 2500 sq m and the approved Foodworks extension of 600 sq m. The deficiency in supermarket floor space in 2006 is therefore 1025 sq m. If constructed, the proposal would provide an oversupply of supermarket floor space of around 2200 sq m.

107 Without the benefit of further modelling based on the revised population and turnover figures and retail expenditure figures and accepting that the operation of the supermarket would not commence in 2006, the oversupply of supermarket floor space figure of 2200 sq m must be taken with some caution. But having adopted a relatively low population growth figure it could be reasonably concluded that the proposal would provide an oversupply of supermarket floor space for at least a number of years.

108 Based on the revised population and turnover figures and retail expenditure figures, the likely social and economic impact of the proposed development cannot be quantified without further modelling however I accept the general proposition that there will be a negative impact on other supermarket operators in Griffith.

Impact on the Griffith Retail Hierarchy

109 Mr Juradowitch states that the proposed development is not inconsistent with the established and proposed retail hierarchy of Griffith. He notes that the council’s planning strategy is to maintain dominance of the Griffith CBD in the retail hierarchy and prevent fragmentation of the retail core. While the western end of the CBD was the traditional heart of the CBD, the emphasis over the last decade has changed this role to the eastern end. This corresponds to the direction of new residential development and is assisted by the availability of larger sites in the eastern end of the CBD more suited to the needs of larger scale retailing such as modern supermarkets and discount department stores. The proposed supermarket will maintain the dominance of the CBD in the retail hierarchy and assist in improving the existing balance of retailing which is heavily weighted towards in the eastern end of town. Importantly, the proposal will improve access ability to competitively priced food and groceries for residents of the western residential areas of Griffith.

110 Mr Dimasi, while acknowledging his lack of planning qualifications, supports the comments of Mr Juradowitch.

111 Mr Shiels states that the proposed supermarket would be located outside the retail core and the 3(a) General Business Zone. Accordingly, the supermarket would generate single purpose trips rather than multipurpose trips as may be the case if it were located in the CBD. Supermarkets are car orientated and very few customers walk to a supermarket unless they are living in close proximity. This will have a range of negative impacts on the adjoining residential area.

112 Mr Leyshon (who also has planning qualifications) states that the intentions of the council are clear in terms of its intended retail hierarchy through a reading of the 3(a) General Business zone objectives, particularly objective (b) that states:

b) To encourage the continued growth of the business area of Griffith as the commercial, retail and administrative centre of the City of Griffith and surrounding areas and to reinforce particularly the concentrated retail core as the prime business area of the City of Griffith, and

113 Mr Leyshon also refers to GS 2030 where the document supports the contention that the role of the Griffith CBD is the main focus of retail activity within the city. In relation to the Commercial Zone in Griffith the report states:

There has been a general acceptance of the principle of promoting a concentrated retail core. This has been accepted since they "Planning Workshop Study" held in 1976

114 Mr Leyshon further states that GS 2030 confirms the importance of maintaining a concentrated retail core for Griffith. It clearly indicates that in 2001, Griffith was considered to have sufficient commercially zoned land to meet future needs without expanding the CBD.

115 On this issue, I accept the evidence of Mr Leyshon and Mr Shiels that the proposed development is inconsistent with the established and proposed retail hierarchy of Griffith. Clause 4 of LEP 2002 contains aims for the plan and relevantly objective (e) states:

(e) to manage the urban areas of the local government area by strengthening retail hierarchies, …., and

116 LEP 2002, supported by GS 2030, provides the foundation for the long-term retail planning decisions in Griffith. The documents clearly encourage the protection of the retail core of Griffith against fragmentation so that it remains viable and provides benefits to shoppers, some of which were stated by Mr Shiels. This is a sound and widely accepted principle. The fact that a site near the retail core can accommodate a full line supermarket and is available should not be a reason to undermine the significance of LEP 2002 and GS 2030. These are documents that have been advertised, considered by the council and ultimately adopted as representing the planning direction for Griffith.

117 The was no evidence to suggest that the site for a supermarket was necessary for any other reason other than its availability and proximity to the Griffith the CBD. Certainly there was no suggestion that there was insufficient land available within the 3(a) General Business zone to accommodate another supermarket, if required. GS 2030, in fact suggests the opposite. While the arguments put forward by Mr Juradowitch are not without some planning merit (putting aside LEP 2002 and GS 2030), I do not accept that they are sufficient reasons to essentially abandon the planning direction provided by LEP 2002 and GS 2030.

118 A finding that the proposed development is inconsistent with the established and proposed retail hierarchy of Griffith is not a reason in itself to refuse the application however it supports the unsuitability of the site for the proposed development.

Resident issues

119 The significant issues raised by residents and not addressed previously are:

Heritage

120 Clause 37 of LEP 2002 provides requirements for development in the vicinity of a heritage item i.e., St Albans Anglican Church. Clause 31 provides a heritage of objectives, cl 37(1) requires an assessment of the impact of the proposed development on the heritage significance of the heritage item and cl 37(2) provides specific matters that must be included in any assessment.

121 This heritage assessment was carried out by Ms Mann who concluded that the proposed development would be acceptable from a heritage viewpoint as it would not be contrary to the objects of LEP 2002, the objectives of the Residential 2(a) zone and the heritage requirements of cl 31 and cl 37.

122 Having viewed the site and surrounding area and observed the relationship of St Albans Anglican Church with the site, I agree with Ms Mann, in that the proposed development would not unacceptably impact on the heritage significance of the heritage item.

Stormwater/ flooding

123 Mr Tooker states that an examination of the existing ground levels at the intersection of Binya Street and Bunya Place indicate that it is above the estimated 1 in 100 year flood level and as such there would be no ponding of floodwaters up to this storm event. In such events there would be considerable overland flow around the intersection (and proposed roundabout) however the intersection would still be compatible with traffic use as all roads are generally designed to cater for stormwater runoff. Mr Tooker further states that the stormwater behaviour would not adversely impact on the operation of the proposed supermarket. As I understand, this was also a conclusion reached by the council's engineering staff.

124 In the absence of any expert evidence to refute Mr Tooker’s evidence, I accept his conclusions.

Orders

125 The Orders of the Court are:

1) The appeal is dismissed.
2) Development Application D549/2005 for the construction of a supermarket, car park and ancillary road works at 2–12 Burrell Street Griffith is refused.
3) The exhibits are returned.
__________
G T Brown
Commissioner of the Court