Ex Gratia Pty Limited v Dungog Shire Council

[2005] NSWLEC 148

Land and Environment Court

of New South Wales

CITATION:

Ex Gratia Pty Limited v Dungog Shire Council [2005] NSWLEC 148

PARTIES:

APPLICANT
Ex Gratia Pty Limited

RESPONDENT
Dungog Shire Council

FILE NUMBER(S):

11156 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- erection of a supermarket and three specialty shops
weight to be given to draft LEP
consistency with zone objectives
heritage impact
public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Dungog Local Environmental Plan 1990
draft Dungog Local Environmental Plan 2005

CASES CITED:

Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003]NSWCA 289;
Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 ;
Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27;
Kentucky Fried Chicken Pty Ltd v Gantidis [1987] 140 CLR 675

DATES OF HEARING:

14-16/02/05

 
DATE OF JUDGMENT: 

04/08/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti, barrister
SOLICITORS
Paul Hines Solicitor

RESPONDENT
Mr J Maston, barrister
SOLICITORS
Spark Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

8 April 2005

11156 of 2004 Ex Gratia Pty Limited v Dungog Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 218/03 by Dungog Shire Council (the council) for the erection of a supermarket and three specialty shops at 1 Brown St., Dungog (the site).

2 A view of the site and surrounding areas was undertaken on the first morning of the hearing in the company of representatives from both parties. Representatives from the local community, including shopkeepers and residents provided evidence to the Court on the afternoon of the first day of the hearing at the Dungog Council Chambers and on the second day at Maitland Court House.

3 For the reasons set out in judgement I have concluded that the appeal should be dismissed and development consent refused.

The site

4 The site consists of five separate lots, being Lot 10 in DP 1023586, Lot 21 and 22 in DP 207535, Lot 84 in DP 805768 and Lot 86 in DP 86293. It is irregular in shape with a 33.79 metre boundary to Brown Street. The site also has access via a Right of Carriageway over an adjoining property with access to Hooke Street. The site is currently vacant with no improvements and has a total area of 7680 square metres.

5 The site adjoins commercial development to the west that fronts Dowling Street. The North Coast Railway adjoins the site to the east.

The proposal

6 The proposal involves the erection of a supermarket with a gross floor area of 1500 square metres. It comprises nine food aisles, a bakery, produce department, delicatessen, meat department, four checkouts, storage areas, office and lunchroom.

7 The proposal also includes three unspecified retail specialty stores, each measuring 10 metres by 12.5 metres. Car parking for 73 vehicles is provided between the supermarket and Brown Street (see Attachment 1).

8 The application nominates these facilities as Stage 1.

9 Pedestrian access and customer vehicular access is provided from Brown Street. At the hearing, leave was granted to amend the application by the deletion of a pedestrian access directly to the car park from Dowling Street. Deliveries to the supermarket are to be provided over the existing Right of Carriageway from Hooke Street.

Relevant planning controls

10 The site is within the 3(a) Local Business Zone under the provisions of Dungog Local Environmental Plan 1990 (the LEP). Shops are a permissible use only if the use is consistent with the objectives of the zone. Clause 9(7) provides that consent must not be granted unless the proposed development is consistent with the objectives of the zone.

11 Division 9 provides heritage controls. Clause 44 provides requirements for development in the vicinity of heritage items. Schedule 2 identifies 12 heritage items within the commercial area of Dungog, although all are not in proximity to the site. The site also adjoins the Dungog Precinct Heritage Conservation Area that contains the majority of the retail and commercial buildings along Dowling Street (see Attachment 2).

12 The site is also subject to draft Dungog Local Environmental Plan 2005 (the draft LEP) where the site is within the Employment 4(a) Zone. Shops are a prohibited use within this zone.

13 Clause 25 of the draft LEP provides requirements for the consideration of heritage matters. The provisions are similar to the provisions in LEP except that consideration is now required on the extent to which a proposed development will affect a heritage conservation area (in addition to heritage items). Additionally, further buildings are identified as heritage items and some existing heritage items are now categorised as having regional significance.

14 Clause 36 of the draft LEP provides savings provisions for development applications made but not determined before the commencement of the draft LEP.

15 Dungog Shire Wide Development Control Plan 2004 (the DCP) also provides requirements for heritage conservation areas.

The issues

16 The council filed an Amended Statement of Issues containing seven individual issues and a number of sub issues. Truck access (Issue 2) and land ownership (Issues 5.3 and 6) were addressed through further conditions and amendments to the plans. The remaining issues can be conveniently grouped into the following main areas:

1) the weight to be given to the draft LEP (Issue 1),
2) whether the proposed development is consistent with the relevant zone objectives (Issues 2 and 3),
3) whether the proposed development will have an unacceptable impact on the Dungog Precinct Heritage Conservation Area (Issue 5) and
4) whether the proposed development is in the public interest (Issue 4).
The evidence

17 The parties agreed to the appointment of Mr Stephen O'Connor as the Court appointed town planning expert.

18 The council provided further evidence from Mr Gary Fielding, a town planner on the heritage issues and Mr Ian Booth on the economic issues. The council also relied on the evidence of Mr Adrian Hack who prepared an economic assessment for the community group, Dig in for Dowling Street Action Group. Mr Gary Oakey, Team Leader - Local Planing for the Hunter Region of the Department of Infrastructure Planing and Natural Resources (DIPNR) provided oral evidence on the status of the draft LEP. Additionally, local residents and/or local business operators Mr Felix Prentice, Mr Greg Laidler, Ms Robyn Kennedy and Mr Martin Caves provided evidence for the council.

19 The applicant provided further evidence from Mr Peter Leyshon on the planning and economic issues and Mr John Carr on heritage issues. Additionally, local residents and/or local business operators Mr Clive Howarth, Ms Jenny Brewer, Mr Alex Tickle, Mrs Beryl Bail and Mr William Williamson provided evidence for the applicant. Mr Edward Care, a director of the applicant company and operator of the proposed supermarket, provided further evidence.

The draft LEP

20 Mr Fielding states that on 8 February 2005 he spoke with the DIPNR Liaison Officer in the Ministers office who indicated that the draft LEP is now under consideration by the Minister. For this reason Mr Fielding considers that the draft LEP should be seen as imminent and certain.

21 Mr Oakey confirmed the evidence of Mr Fielding. He states that he prepared a report pursuant to s 69 of the Environmental Planing and Assessment Act 1979 (EPA Act) with the recommendation that the plan be made. He described the status of the draft LEP as being with the Minister for her signature. Mr Oakey stated that he was not aware of any inquires from the Ministers office challenging the recommendation that the plan be made.

22 Mr Tomasetti, the applicants advocate, submits that the process that led to the s 69 report by DIPNR is flawed. He submits that an objection to the draft LEP by the applicant was not referred to DIPNR, as required by s 68(4)(a) of the EPA Act. He further submits that the report provided to DIPNR by the council pursuant to s 68 of the EPA Act contained the erroneous statement that there were no objections to the rezoning of the applicants land when an objection was lodged. Instead, the report states that there were five letters of support. The Court was advised that correspondence has been sent to the Minister by the applicant and his solicitor alerting her to the error in the s 69 report.

23 Mr Oakey was cross-examined on the omission of the applicant’s objection to the draft LEP. He indicated that he recalled telephone conversations with the applicant however it was his understanding that the inclusion of a savings clause in the draft LEP generally satisfied the applicants concerns. When asked whether the inclusion of the letter of objection, at the s 68 stage, would have changed his recommendation he indicated that his recommendation that the plan be made would not change. In his opinion, the matter was a local planning issue and did not have any regional implications.

24 Section 79C(a)(ii) of the EPA Act requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, the draft LEP is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft LEP is imminent and certain and also the savings and transitional provisions. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289, par 5).

25 In Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 Pearlman J addresses the question of imminence and certainty. In this case, a development application for attached dwellings was the subject of a draft environmental planning instrument. It also contained similar savings and transitional provisions to that proposed in the subject application. It was agreed that the proposed development took the form of "carriage development" although the draft environmental planning instrument contained objectives to "avoid carriage development". Her Honour found that this non-compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument.

26 If the circumstances in Architects Haywood and Bakker are compared to the subject application, two significant points emerge that support the council's position that significant weight should be given to the draft LEP. Firstly, the consideration of the draft LEP had reached a more advanced stage than the draft environmental planning instrument considered by Her Honour. The council in Architects Haywood and Bakker was still considering the submissions from a second round of advertising. Secondly, the proposed development is prohibited by the draft LEP whereas the development proposed in Architects Haywood and Bakker was still permissible under the draft environmental planning instrument although not in the same form provided by the existing environmental planning instrument.

27 Relevantly on the second point above, in Terrace Tower Holdings, Spigelman CJ states (at pars 6 and 7) that:

6. Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development application which does not comply with the draft instrument. The different kinds of planing controls will be entitled to different levels of consideration and of weight in this respect.

7. Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

28 In this case, the draft LEP seeks to create a different character for the area than that envisaged by the pre-existing instrument. This is clearly represented by the change of zoning from the 3(a) Local Business Zone to the Employment 4(a) Zone and importantly, the prohibition of shops.

29 Where the LEP currently seeks "to maintain the status and encourage the future growth of the Dungog business centre as a retail service, commercial and administrative centre….” (Objective (a)), the draft LEP seeks to establish a character to "facilitate the development of a wide range of industrial, service and storage facilities” (Objective (a)), “encourage a wide range of employment generating uses and associated support facilities” (Objective (b)) and "allow for large-scale sales areas or showrooms trading in agricultural machinery, bulky goods or vehicles, and for small-scale services, which are not appropriate in business centres" (Objective (c)).

30 Considering the comments of Spigelman CJ in Terrace Tower Holdings, the proposal represents a significant change in character to that contemplated by the draft LEP and could be reasonably seen to undermine the objective or planing intent of the draft LEP. As such, the draft LEP is entitled to considerable weight in the assessment process. When combined with the imminence and certainty of the draft LEP, I am persuaded that the level of weight that should be given to the draft LEP should be determinative.

31 The savings and transitional provisions in the draft LEP do not alter this conclusion. The Court must consider the provisions of the draft LEP as if it had been placed on exhibition, and accordingly give weight to its provisions in the assessment of the development application.

32 In coming to this conclusion I have taken into consideration a number of matters raised by Mr Tomasetti.

33 I acknowledge that the process that culminated in the s 69 report by DIPNR may have been incomplete, in that the applicant’s submission was not considered. Clearly, these proceedings cannot challenge the lawfulness of the draft LEP so I have relied on the evidence of Mr Oakey on this matter. He maintained that even if the additional letter of objection were provided as part of the council’s s 68 report, the contents of the letter would not have changed his recommendation to the Minister that the draft LEP be made.

34 The chronology of events leading up to the preparation of the draft LEP and the subject development application were addressed in some detail at the hearing. It was submitted that Mr Care held discussions with council staff prior to purchasing the site and that he was not made aware of any change to the zoning of the site until he saw the draft LEP. This being after the lodgement of the development application with council.

35 While it is possible to understand the concerns of Mr Care, no weight can be given to the circumstances that ultimately led to the draft LEP being prepared without his knowledge and in a form inconsistent with his previous discussions with the council staff. It is a necessary and legitimate part of the council’s responsibility to review and amend planning controls. I note that the change of zoning for the site were part of a long-running review of the planing controls for the whole local government area and not specifically directed at the site of this application.

36 Having found that determinative weight should be given to the draft LEP, the appeal must fail.

37 For completeness I will briefly deal with the other issues.

Zone objectives

38 The objectives of the 3(a) zone are:

(a) to maintain the status and encourage the future growth of the Dungog business centre as a retail service, commercial and administrative centre while maintaining the centre’s compact form,

(b) to maintain the status and encourage the future growth of other business centres in the Shire of Dungog as district service centres,

(c) to encourage the provision of shopping and other services to the residents of the Shire of Dungog,

(d) to enable a wide range of land uses that are associated with, ancillary to or supportive of the retail and service functions of business centres

(e) to maintain the existing character of all the existing business centres, and

(f) to support business development by way of the provision of parking and other civic facilities.

39 A finding of consistency with the objectives of the zone is necessary as it allows the proposed development to be considered as a use that is permissible within the zone. A finding of consistency also allows the development to satisfy the requirements of cl 9(7). A contrary finding would require the proposed development to be refused.

40 The relevant objectives are (a) and (e).

Objective (a) - Compact form?

41 Mr Fielding and Mr O'Connor agree that the proposed development is not consistent with the objective as it is likely to fragment the major retail activity currently occurring in Dowling Street. It would therefore not maintain the centres compact form. While the proposed development originally included a pedestrian access that linked the site to Dowling Street this access was withdrawn during the hearing. In any event, Mr O'Connor described the proposed link as poor because of its length and the need to provide steps to address the change in grades.

42 Mr O'Connor further states that he would not generally oppose the site being used for retailing purposes but subject to proper integration with the commercial activities in Dowling Street. In his opinion, the proposal does not satisfy this requirement.

43 Mr Leyshon comes to the opposite conclusion. He believes the centre of the Dungog commercial centre is at the intersection of Brown Street and Dowling Street. As the proposed supermarket is only approximately 200 metres from this intersection, Mr Leyshon concludes that this is not an excessive distance and therefore the compact form of the Dungog commercial centre will be maintained.

44 On the question of whether the proposed development maintains the centres compact form, I agree with the conclusions of Mr O'Connor and Mr Fielding.

45 Mr Leyshon’s argument that the proposed development is located only 200 metres from the corner of Brown Street and Dowling Street is not without some merit, particularly considering that the main retail component extends approximately 200 metres in each direction along Dowling Street from its intersection with Brown Street.

46 The argument fails however, when it is considered against the form of the Dungog business centre. While some centres may have a more regular form, the Dungog business centre has a linear form along Dowling Street. The fact that the form is linear rather than regular does not detract from the fact that it is compact in nature, i.e., the shops are largely joined, densely located and within a specific area. This form has existed for a considerable period of time and was likely in the mind of the author of the LEP and its objectives.

47 While there are some commercial activities in Hooke Street, Brown Street and Mackay Street near their intersection with Dowling Street, retailing is almost exclusively restricted to Dowling Street. In my view, the proposed development will not maintain this compact form by providing retailing activities away from the linear form of Dowling Street and not providing a suitable link to ensure the compact form is retained.

48 It was submitted by Mr Tomasetti that the current 3(a) Local Business Zone defines the Dungog business centre form. He states that it follows that if development was proposed within the boundaries of this zone then it can be assumed that the objective of maintaining the centres compact form was satisfactorily addressed.

49 Again, this argument has some superficial merit however it does not properly address the need to maintain a suitable relationship with the Dowling Street retail activities. The flaw in the submission is addressed by Mr O'Connor where he accepts that the site could potentially be developed for retail activities (putting aside the draft LEP) provided that is relates in a more positive way with the Dowling Street retail activities.

50 I note that the draft LEP, while not permitting shops, allows for a range of uses ancillary, or in support of the existing centre. While the objective of maintaining a compact centre is no longer contained within the draft LEP for the Employment 4(a) Zone, an objective requiring that potential uses “are accessible from existing centres and compatible with the character of the settlement” is now provided. In my view, this supports the approach adopted by Mr O'Connor and Mr Fielding.

51 For these reasons, I find that the proposed development is inconsistent with zone objective (a), in it does not maintain the centres compact form.

Objective (e) – Existing character

52 The impact on existing character of the Dungog commercial centre was seen largely as the potential to draw people away from the Dowling Street retail activities to the proposed development. This could impact on the viability of existing shops leading to shop vacancies and ultimately adversely impacting on the heritage significance of the shops.

53 Mr Fielding and Mr O’Connor agreed that the proposed development would change the existing character of the Dungog commercial centre, as it will create a major activity centre well away from Dowling Street without adequate linkages back to Dowling Street. Both agree that the existing "feel" of the Dungog commercial centre will be fundamentally altered, as the activity level in Dowling Street is likely to be significantly reduced. Mr Fielding extends this argument by stating that the reduction in activity in Dowling Street would adversely impact on the heritage significance of the Dungog Precinct Heritage Conservation Area

54 In economic terms, Mr Booth states that it is reasonable to expect that there will be substantial and severe impacts on the food outlets in Dungog. There is a risk that one of the existing two IGA supermarkets would close as a result of the proposed development. This would also put pressure on other traders in the southern part of the Dowling Street commercial area. This could result in some limited blighting in what is currently a dispersed and traditional/heritage country town local strip shop location. The extent of the impact would depend heavily upon possible alternate uses and the attitude of the local community to the new supermarket.

55 He concludes by stating that the decision to approval or refuse the application should be based not solely upon its likely impact on other shops, but also on whether the majority of the local population wish to see the town centre continue as is or with new developments which offer a higher level of service but with an economic cost in terms of the impact on other shops. Given the high rate of objection, Mr Booth states that the social disbenefits would appear to outweigh any possible net retail benefits and as such, the proposal should be refused.

56 Mr Hack agrees with Mr Booth in that at least one of the existing IGA supermarkets would close. The specialty shops that have developed a relationship with the existing supermarkets will also suffer a loss of trade. Some may seek to relocate to the new centre to develop a relationship with the proposed supermarket. This will result in a shift in trade and activity away from the main street. In the event that both existing IGA supermarkets close the impact on Dowling Street would be more severe. The new centre with its supermarket and specialty local stores will encourage shoppers to commute by car, park in the new car park, shop, and exit by car, without necessarily visiting the main street. This will have further adverse impacts on those specialty stores along Dowling Street. For these reasons, Mr Hack maintains that the application should be refused on the grounds of economic impact.

57 Mr Leyshon does not accept that the role of the Dungog commercial centre in the retail hierarchy will change, nor does he believe the "look and feel" will be significantly altered. For this reason, the proposed development will maintain the existing character of the Dungog commercial centre.

58 Mr Leyshon concurs with the conclusions of Mr Booth and Mr Hack that one of the existing IGA supermarkets is likely to close if the proposed development proceeds. While accepting that some shops in Dowling Street would likely suffer from the loss of a relationship with the existing IGA supermarkets, Mr Leyshon considers this effect to be strictly limited in number and extent. In his assessment, a substantial number of the existing shops will be totally unaffected by the proposed development and will not suffer any reduction in trade. In any event, shoppers patronising the proposed development and who require a service not provided by the supermarket or one of the new proposed specialty shops will simply continue to patronise existing shops in Dowling Street.

59 Overall, Mr Leyshon states that residents will benefit significantly from the development of a larger and more comprehensive supermarket than currently exists and is supportable on the benefits to the wider public interest.

60 In physical terms, the parties differed on whether people using the proposed centre would curtail the use of the existing shops in Dowling Street because of the separation and the lack of connectivity between the two areas. In my assessment, the evidence was largely inconclusive. Some local residents indicated that they would walk between the two areas and others indicated that they would park at the proposed supermarket and if necessary, drive to other locations in Dowling Street. In my view, it is essentially a question of individual preference, physical ability or availability of time. In my opinion, it is more important that potential patrons are encouraged, through good planning, to use the full range of facilities in the Dungog commercial area. I do not accept that the proposed development achieves this through its physical separation from Dowling Street.

61 In economic terms, there was agreement that the proposed supermarket would provide an improvement in the range and level of services in supermarket facilities for Dungog. It was also agreed that the proposal would result in a significant reduction in escape expenditure in supermarket categories from the area. Overall, there was no dispute that the proposed development offers benefits to local residents. This was a fact accepted by most residents who currently travel to Maitland or Raymond Terrace for their weekly shopping needs.

62 There was also agreement that at least one IGA supermarket would close if the proposed development proceeds. In this regard, it has been held that competition between trade competitors is not a relevant planning consideration (Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27). Additionally, it has also been held that if shopping facilities presently enjoyed by community are put in jeopardy and are not made good by the proposed development then this is a relevant matter for consideration (Kentucky Fried Chicken Pty Ltd v Gantidis [1987] 140 CLR 675).

63 Putting aside the location of the proposed supermarket and balancing the competing economic evidence I am not convinced that the impact of a supermarket on the existing retail activities could support the refusal of the development application. The undisputed evidence is that Dungog is capable of supporting a supermarket that would provide a wider and likely cheaper range of goods than is currently provided. There are also considerable of flow on benefits for local residents not having to travel to other larger centres for weekly shopping trips.

64 There is no evidence to suggest that the proposed supermarket is anything but competition between trade competitors as required in Fabcot or that the shopping facilities will not replace any facilities lost as required by Kentucky Fried Chicken. The undisputed evidence is that the proposed supermarket will actually improve the range of facilities available to residents.

65 I am not convinced however that the proposed specialty shops will not have an impact on the Dowling Street shops. While the current proposal provides for an additional three specialty shops, this must be considered in the context of the existing 27 retail shops (as identified by Mr Leyshon) in Dowling Street. Even though it does not form part of this development application, the plans indicate a further six specialty shops to be located next to the proposed three specialty shops.

66 The experts did not quantify the impact on the existing Dowling Street shops. Mr Booth conceded that to properly assess this impact, each business would need to be assessed as to its viability. While Mr Leyshon took some comfort in the observation that there were no vacant shops in the Dowling Street commercial area, I am not convinced that this can be seen as a reliable indicator of viability. One shopkeeper raised the marginal nature of the businesses in this area in her evidence.

67 While the experts differed in their evidence on the potential impact on the existing shops, Mr Booth's statement that shops operating at a marginal level are more likely to be susceptible to small changes in turnover has some merit in this context. I did not understand any of the experts to suggest that the viability of the Dowling Street commercial area was overly robust. I also do not understand any of the experts to suggest that, apart from a general suggestion of tourism, there is likely to be a substantial opportunity for increasing the demand for retail opportunities in Dungog through any future proposals that would increase the population of the trade area. In my view, this would suggest the need for a more conservative approach to the assessment of the impact on the existing shops.

68 Based on the inappropriate location and the potential of additional specialty shops to impact on the existing shops in Dowling Street, I accept that the proposed development will not maintain the existing character of Dungog commercial area and as such is inconsistent with zone objective (e).

Heritage impacts

69 Mr Fielding's heritage evidence was largely predicated on the evidence of Mr Booth. In accepting Mr Booth’s evidence that the existing Dowling Street shops are likely to be impacted, he concluded that this would have an unacceptable impact on the heritage significance of the Dungog Precinct Heritage Conservation Area. I did not understand Mr Fielding to raise any particular concern over the impact of the proposed development on any individual heritage item, either in the LEP or draft LEP.

70 Based on the findings in the previous paragraphs, and taking into account that the proposed specialty shops form part of the proposed application, I agree with the conclusions of Mr Fielding.

71 In accordance with cl 44 of the LEP, I find that effect that the effect of carrying out the development will not have any impact on the heritage significance of the any heritage item and their setting. As cl 45 of the LEP relates only to development within a Conservation Area, it does not apply to the proposed development.

72 In accordance with cl 25(3) of the draft LEP, I find that the proposed development is likely to have an unacceptable effect on the Heritage Conservation Area.

Public interest

73 The public interest was presented to the Court in different forms. The proposed development attracted 85 submissions objecting to the proposal when it was advertised. The Court was also provided with a petition containing approximately 1080 signatures opposing the application. Oral evidence was provided from local residents and/or shopkeepers also opposing application. The Dungog & District Chamber of Commerce polled its members with the result that 64% opposed the development.

74 Conversely, oral evidence was provided from local residents and/or shopkeepers who supported the application. The local newspaper also conducted a survey that supported the proposed development.

75 In balancing the evidence presented to the Court on the public interest, and while there are more indicators of objection than support, I am not convinced that it establishes any credible benchmark on the public support or opposition to the proposed development. Because the potential catchment for the shopping centre extends well beyond the town of Dungog, some care must be taken in interpreting public submissions as the public interest.

76 The evidence indicated existing shopkeepers opposed and supported the application and local residents also supported and opposed the application. I have some doubts that the proposed development was properly and accurately portrayed to the general public in the flyer prepared for a public meeting by the community group, Dig in for Dowling Street Action Group. The flyer contains significant inaccuracies and inflammatory statements.

77 The question that needs to be answered is whether the public advantages of the proposed development outweigh the public disadvantages of the proposed development.

78 For the reasons in the preceding paragraphs, I have concluded that there is a public benefit in the erection of a supermarket as it will provide a greater range of goods that are currently available to the general public and at a lower cost. However, this advantage needs to be balanced against the poor location of the proposed supermarket in relation to the existing shops in Dowling Street and the effect that further specialty shops are likely to have on the existing shops in Dungog.

79 In my assessment, the balancing of these matters results in a finding that the benefits do not outweigh the disbenefits and as such the proposed development will not have an overall public benefit.

Orders

80 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) DA 218/03 for the erection of a supermarket and three specialty shops at 1 Brown St., Dungog is refused.
3) The exhibits are returned.
______________
G T Brown
Commissioner of the Court