Harris Farm Markets Pty Limited v Willoughby City Council - [2005] NSWLEC 40

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Harris Farm Markets Pty Limited v Willoughby City Council [2005] NSWLEC 40

PARTIES:
APPLICANT
Harris Farm Markets Pty Limited
RESPONDENT
Willoughby City Council

FILE NUMBER(S):
10097 of 2004

CORAM:
Talbot J

KEY ISSUES:
Development Consent :- deferred commencement consent condition to allow for modification of related development consent - incorporation of plan of management for suburban shopping centre.

LEGISLATION CITED:
Willoughby Local Environmental Plan 1995

DATES OF HEARING: 25/5/2004, 26/5/2004, 24/9/2004, 26/11/2004, 8/12/2004 (written submissions), 17/12/2004 (written submissions), 20/12/2004 (written submissions).

DATE OF JUDGMENT:

02/10/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P R Rigg (Solicitor)
SOLICITORS
Deacons
RESPONDENT
Mr A M Pickles (Barrister)
SOLICITORS
Mallesons Stephen Jacques

JUDGMENT:

1

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

10 February 2005

10097 of 2004 Harris Farm Markets Pty Limited v Willoughby City Council

JUDGMENT

1 Talbot J: On 3 January 1975 Development Consent No. 75/347 was granted to erect a neighbourhood shopping centre at 201 – 209 High Street, Willoughby, subject to conditions including a condition that the occupation of each of the individual use areas within the centre be the subject of a separate development application. On 8 October 1979 Development Consent No. 79/281 to erect fixtures and partitions for use as a fruit and vegetable market was granted in respect of the supermarket in the shopping complex known as High Street Markets, 201 High Street Willoughby. Building permit No. 874/79 was granted in respect of the shop fittings on 25 October 1979.

2 Following damage to premises caused by a fire the Willoughby City Council (“the Council”) acknowledged, on 10 September 1992, that development consent was not required for the refit and restoration of the fruit and vegetable market to allow continuation of that use. A building permit was issued in respect of those works on 18 December 1992.

3 When Willoughby Local Environmental Plan 1995 (“Willoughby LEP”) came into effect on 17 November 1995, shops of greater area than 100m2 became a prohibited use in Zone 3(d) – Neighbourhood Business Zone in which the subject land is situated.

4 The applicant lodged Development Application No. 2003/1186 with the Council on 26 September 2003, whereby it sought consent to replace the existing garbage enclosure and upgrade the Harris Farm Markets tenancy to add a mezzanine floor, rearrange storage and access and install new fit out and ceiling together with a window to High Street. The applicant relies on existing use rights as a basis for the application.

5 The Notice of Determination of the Development Application was issued on 16 December 2003 in the following terms:-

Consent is granted to:

The Development Application is refused, insofar as it relates to:

a) alteration to the internal layout of the store and associated fitout,
b) alteration to the check-out registers and wall adjacent to the front entry.

6 The applicant has appealed against the refusal of the Development Application insofar as it relates to the alteration to the internal layout of the store, mezzanine level and associated fit out and the alteration to the check-out registers and mall adjacent to the front entry. The issue of hours of operation was not directly dealt with by the Class 1 notice of appeal. However, it became apparent during the hearing that current trading hours are otherwise than in accordance with the 1979 consent. The applicant is seeking that the hours of operation be amended.

7 Commissioner Bly and I first commenced to hear the matter on 25 May 2004. By the second day of the hearing it had become apparent that there were significant problems to be resolved in relation to the future management of the whole neighbourhood shopping centre complex before final consideration could be given to the application for consent to carry out the new development in respect of the Harris Farm Markets’ shop.

8 The Court was assisted by the evidence of Court Appointed Experts, Deborah Laidlaw (town planner) and Christopher Hallam (traffic consultant).

9 Over the course of the following six months the issues were narrowed to an argument regarding conditions of consent if the Court was otherwise satisfied that development consent could be granted.

10 The primary difficulty with the operation of the Harris Farm Markets business is that it is so successful it is attracting customers beyond those envisaged for a neighbourhood shopping centre. Although local residents would prefer that the fruit and vegetable market be scaled down or even closed no one is seriously suggesting that this occur. The Council’s objective is to develop a scheme whereby Harris Farm Markets continues to trade on the site but only on condition that the adverse impacts on local residents are controlled to within acceptable bounds.

11 Mr Rigg, who appears for the applicant, has also obtained instructions from the owners of the centre that they are prepared to make an application to modify Development Consent 75/347 granted on 3 January 1975 so that a Plan of Management acceptable to the Council can be implemented in respect of the whole centre. A form of Centre Plan of Management – High Street Marketplace (Centre Plan of Management) has been drafted and submitted to the Court on the basis that consideration be given to the grant of deferred commencement consent to Harris Farm Markets, subject to a condition that the Centre Plan of Management is incorporated in the 1975 consent. Both parties agree to this course, although the applicant would prefer these proceedings be adjourned, pending the adoption of the Centre Plan of Management. Any deferred commencement consent would not operate until the Centre Plan of Management had been adopted and incorporated into the conditions of Development Consent 75/347.

12 Essentially there are three outstanding issues remaining between the Council and the applicant. These issues can be resolved by conditions of consent and the adoption of a plan of management for Harris Farm Markets.

13 The outstanding issues between the Council and the applicant are as follows:-

1. That Harris Farm Markets cease trading at 6.00pm on Saturdays;

2. The terms of the regime for regular collection of shopping trolleys from surrounding residential areas; and

3. The extent of garbage storage provision referable to the conduct of Harris Farm Markets and in particular whether additional storage can be provided within the loading dock.

14 Local residents are also opposed to trading at Harris Farm Markets continuing beyond 8.00pm on Thursday evenings. The without prejudice draft conditions of consent proposed by the Council, if adopted by the Court, would allow trading on Thursday evenings to 9.00pm, as proposed by the applicant.

Trading hours

15 M/s Laidlaw recognises that the business carried on by Harris Farm Markets is well conducted. However, it generates a greater impact on its neighbours than would be normally expected from a local neighbourhood shopping centre. Harris Farm Markets is the major generator of customers for the centre. In her opinion the applicant needs to come forward with a means of moderating the inevitable adverse impact of the extended hours of opening or by limiting the hours on certain days. The current hours of opening are not in accordance with the 1979 Development Consent No. 79/281. The shop currently opens one hour earlier than the approved time on each of the days Monday to Saturday and operates up to 2 ½ hours longer than the permitted opening time on week days and 5 hours longer on Saturdays. Presently the shop is open between 7.00am and 6.00pm on Sundays, whereas, Development Consent No. 79/281 did not prescribe any hours for Sunday, as Sunday trading was not contemplated by the Development Application.

16 M/s Laidlaw identifies two aspects of significance relating to the extended hours as follows:-

· Firstly, they include times of greater sensitivity in terms of residential amenity expectations (early mornings, later in the evening, Sundays).

· Secondly, they coincide with the peak hours of operation of the North Willoughby shopping centre generally, specifically the hours including Thursday afternoon, Saturday afternoon and Sunday (noting that the most intensive use is, in any event, Harris Farm Markets).

17 M/s Laidlaw does not suggest that Harris Farm Markets be limited to the hours stipulated by the 1979 consent. However, she retains a significant concern as to the impacts over the extended hours in terms of the traffic and parking impacts and impacts on residential amenity.

18 Mr Hallam defers to M/s Laidlaw with regard to trading hours but observes that if current trading hours are in excess of those approved, the resulting impact on the adjacent residential amenity would be extended in time, particularly during periods of strong demand extending into Saturday afternoon and Sunday.

19 Hamish Johnstone lives at 39 Alexander Avenue, Willoughby immediately next door to the parking area for the neighbourhood centre adjacent to the Harris Farm Markets shop. He has noticed an intensification of activities on the site and an apparent increase in traffic generation over the last two years. He expressed concern in relation to the increase in customer numbers and the additional trading hours proposed. In Mr Johnstone’s opinion the parking area is totally inadequate for the amount of traffic that uses the centre. Therefore, any intensification of development will only exacerbate an already major problem. The views of Mr Johnstone in relation to the adequacy of parking provision are corroborated by Mr Hallam who considers that the current on-site parking, even with an allowance for nine (9) on-street spaces along the immediate site frontages, is inadequate, even for an average trading period. In the opinion of Mr Hallam, based upon the number of abandoned Harris Farm Markets shopper trolleys, parking extends into the residential areas along both Glover Street and Alexander Avenue thereby having an adverse impact on the amenity of dwellings in those streets during trading hours.

20 A case has been made out for business hours at Harris Farm Markets to be balanced between the demand created by customers and the adverse impact on the amenity of the adjacent residential areas.

21 Mr Johnstone displayed a commendable pragmatic approach to the problem and centred his complaints upon his desire to be relieved of the noise and other affects by imposing reasonable limits on hours of trading after 6.00pm on Saturdays and beyond 8.00pm on Thursday evenings. I find the evidence of Mr Johnstone compelling and complementary to the evidence of M/s Laidlaw and Mr Hallam to the extent that the trading hours should be confined so that there is no trading on a Saturday after 6.00pm and after 8.00pm on Thursdays.

Shopping trolley regime

22 Part of the development proposal includes increasing the number of checkouts in the Harris Farm Markets shop to cater for the increased throughput in the store at peak times.

23 Initially M/s Laidlaw expressed the view that consent should not be granted to the subject proposal on the grounds of its intensification of a retail use and the adverse traffic, parking and amenity impacts arising therefrom. She nevertheless recommended the provision of a management plan by the applicant, or preferably the centre owner, dealing with issues such as trolley retrieval, management of loading times, management of resident complaints and use of the Harris Farm Markets loading dock.

24 The applicant proposes that shopping trolleys deposited on surrounding streets including Alexander Avenue and Glover Street be removed within a maximum of four (4) hours from the time of notification of the trolley being left, with a minimum of twice daily. Alternatively, the Council submits that shopping trolleys should be removed every four (4) hours on weekdays and every two (2) hours on weekends and public holidays during operating hours. The evidence discloses an intensive use of shopping trolleys by the customers of Harris Farm Markets.

25 In my view it is axiomatic that if the applicant is intent upon maximising the number of hours of operation and intensifying the use of the existing shop it must accept the burden of a regime which ensures that shopping trolleys are regularly collected and returned to the store in an orderly fashion. I do not think it is appropriate for the collection of individual trolleys to be dependent, to some extent, upon notification that a trolley has been left in the street. The regime proposed by the Council means that there would be at least three (3) regular collections on Monday, Tuesday, Wednesday and Friday and an additional collection on Thursday and more frequent recovery on Saturday and Sunday. I propose therefore to impose the regime for collection of shopping trolleys nominated by the Council. By making the determination that the shopping trolley roster be on a regular basis, I have adopted the evidence given by M/s Laidlaw to that effect.

Garbage storage

26 The Council proposes that the proposed Centre Plan of Management apportion an area sufficient for 1 x 3m3 bin in the garbage storage area for the exclusive use of Harris Farm Markets. The applicant submits that a further single moveable 3m3 bin stored within the loading dock area is necessary for the disposal of rubbish associated with the loading and unloading of trucks. Alternatively, Mr Rigg submits that 2 x 3m3 bins can be accommodated in the garbage storage area.

27 The applicant is satisfied, notwithstanding doubts expressed by the Council, that the loading dock will continue to be able to function despite the presence of the bin. The Council has expressed a concern that the storage of fruit and vegetables in conjunction with garbage may give rise to health and safety concerns. Whether there is a health and safety concern will depend upon the nature of the garbage deposited in the bin in the loading dock area. Moreover, it is proposed that it will be emptied twice a day.

28 If health and safety issues do arise in relation to the use of a garbage bin within the loading dock area then it will be within the power of the Council to regulate its use to alleviate those problems. The provision of adequate garbage storage pending disposal is an essential element in the operation of the centre. Accordingly, I propose to allow for the provision of a 3m3 garbage bin in the loading dock area.

Conclusion

29 The Council has requested an undertaking from the applicant to the Court in the following terms:-

That until the implementation of the Harris Farm Plan of Management and the Centre Plan of Management in accordance with Development Consent DA 347/75 and 79/281, Harris Farm will trade subject to the following restrictions:

Trading Hours:

No trading must occur outside the hours of 7am – 7pm Monday, Tuesday, Wednesday and Friday, 7am – 8pm Thursday, 7am – 6pm Saturday and 8am – 6pm Sunday.

Shopping Trolleys:

Shopping Trolleys deposited on surrounding streets including Alexander Avenue and on Glover Street are removed every 4 hours on weekdays and every 2 hours on weekends and public holidays during operating hours.

Loading Dock/Garbage removal:

No loading or unloading of trucks is to take place between the hours of 6pm to 7am Sunday to Saturday or between 6pm Saturday and 8am on Sunday.

30 The applicant is prepared to give an undertaking in the terms proposed and to operate in accordance with the proposed conditions and plan of management in the interim period until the consent becomes operational. An undertaking given to the Court is, in effect, an order of the Court with all of the consequences and obligations that flow from the making of a formal order. I am not satisfied for the moment that the Court has jurisdiction to accept an undertaking as proposed in Class 1 proceedings. Nevertheless, the undertaking is noted with the realisation that in a practical sense if the applicant carries on its business in a way that does not reflect the proposed conditions of consent, then in the meantime it will remain open for the Council to take Class 4 proceedings as the business is already being conducted otherwise than in accordance with the consent granted in 1979.

31 Commissioner Bly, who has assisted and advised me in this matter, agrees with my conclusions.

32 The Court makes the following orders:

1. Development Application DA 2003/1186 dated 8 October 2003 is determined by a grant of development consent subject to the conditions in Annexure “A”.

2. The exhibits may be returned.

Annexure A to Judgment in Matter No 10097 of 2004

Harris Farm Markets Pty Ltd v Willoughby City Council

201 - 209 High Street, North Willoughby

Land and Environment Court Proceedings No 10097 of 2004

StartOfConditions

Conditions of Consent

This approval is a “Deferred Commencement” consent under the provisions of s.80 of the Environmental Planning & Assessment Act 1979, as amended. The consent shall not operate until the applicant satisfies the Council as to the following matters, which matters must be satisfied within 100 days of the date of this consent.

1. Development Consent No. DA347/75 for a neighbourhood shopping centre granted on 3rd January 1975 is modified pursuant to s96 of the Environmental Planning & Assessment Act 1979 by:

(a) making it a condition of that consent that the Plan of Management in the form annexed and marked “A” to these conditions be implemented and complied with as a condition of that consent.

(b) adding the following conditions set out below.

(i) The building owner must ensure that there is a contract either with Council or a licensed contractor for the removal of trade waste. No garbage must be placed on the public way, e.g. footpaths, roadways, plazas, reserves at any time.

(Reason: Health and amenity)

(ii) The garbage storage area is to be apportioned for use between units as set out in the Statement of Environmental Effects viz:

Development Consent No. 79/281 dated 8 October 1979 is modified by the insertion of the following conditions. To the extent of any inconsistency between the following conditions and the conditions originally imposed under Development Consent No. 79/281, the following conditions shall prevail.

1 All building work relating to this Development Consent within the City must be carried out only between the hours of 7 am to 5 pm Mondays to Fridays and 7 am to 12 noon on Saturdays. No work is permitted on Sundays or Public Holidays.

An application under Section 96 of the Environmental Planning and Assessment Act for a variation to these approved hours must be lodged with Council at least 3 working days in advance of the proposed work. The application must include a statement regarding the reasons for the variation sought and must be accompanied by the required fee.

2. This consent IS NOT an approval to carry out any building works (with the exception of demolition work). A Construction Certificate is required PRIOR TO ANY BUILDING WORKS BEING COMMENCED.

3. The development must be in accordance with architectural plans numbered Project No. 1251 DA 02 Issue J and DA03 Issue D, and drawings FD 01 issue B, FD 02 issue B dated September 2004 and FD 05 issue P3 dated September 2004 prepared by Leffler Simes Architects, 02, the application form and any other supporting documentation submitted as part of the application, except for:

(a) any wholly internal minor modifications which are 'Exempt Development' in Development Control Plan (DCP) No. 25, or as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the Code; and

4. Any work relating to this Development Consent SHALL NOT COMMENCE until notice is given to Council at least two (2) days prior to the commencement of work of the:

(a) proposed date of commencement of the work; and

This notice must be in writing and provide the information required by Clauses 103 and 104 of the Environmental Planning and Assessment Regulation 2000.

5. Detailed construction drawings, specifications, and other supporting documentation required for a Construction Certificate are to be in accordance with the terms of this Consent and comply with the requirements of the Building Code of Australia.

6. Council's road and footpath (including any nature strip) are not to be damaged and shall be kept clear at all times.

7. Building materials, plant and equipment and builder's waste, are not to be placed or stored at any time on Council's footpath or roadway adjacent to building sites UNLESS PRIOR WRITTEN APPROVAL HAS BEEN GRANTED BY COUNCIL.

8. Rubbish skips or bins are not to be placed on Council's footpath or roadway unless prior written approval has been granted by Council.

9. The submission of a Construction and Demolition Waste Management Plan which provides details of specific strategies to salvage and recycle a minimum of 85% of used and unused demolition and construction materials, PRIOR TO THE COMMENCEMENT OF ANY SITE WORKS INVOLVING DEMOLITION.

SHOP FITOUT AND STAFF MEZZANINE AREA FOR SHOP 10

10. The number of checkouts for Shop 10 is restricted to a maximum of 9 (nine).

11. All checkouts are to be located a minimum of 1m inside the northern lease boundary of the premises of Shop 10.

12. The staff amenity area of Shop 10 is to be used exclusively for staff purposes and there must be no use of this area for the storage of goods or for any other purpose.

GARBAGE/WASTE

13. The Centre garbage enclosure is to be painted in a brown colour or to be brickwork to match as closely as possible the brickwork of the main building

14. No materials, waste matter or products are to be stored outside the building or the garbage enclosure at any time.

LOADING AND UNLOADING

15. All loading and unloading of goods for Shop 10 is to be conducted wholly within the site and within the internal dock consistent with the Harris Farm Plan of Management described in conditions 18. The loading dock area is to be maintained free of any obstruction for the sole use of delivery vehicles. The loading dock area is to be marked by painting the floor for the width of the roller shutter opening back to the coolroom, including the words “loading area only”. No goods are to be stored in the loading dock area.

HOURS OF OPERATION OF SHOP 10

16. No trading must occur outside 7am - 7pm Monday, Tuesday, Wednesday and Friday, 7am - 8pm Thursday, 7am - 6pm Saturday and 8am - 6pm Sunday.

17. No loading or unloading of trucks is to take place between the following hours:

Between 6.00pm to 7.00am commencing Sunday (evening), Monday, Tuesday, Wednesday, Thursday Friday and Saturday (morning);

And between 6.00pm Saturday and 8.00am on Sunday.

GENERAL MANAGEMENT OF SHOP 10

18. The Plan of Management of Shop 10 which is annexure “B” to these conditions shall be implemented within 40 days of the issuing of the Construction certificate for the required works and will be complied with at all times.

FOOD PREPARATION FOR SHOP 10

19. Plans showing details (including materials to be used and provision of hand basins) of the food preparation, handling and display areas of Shop 10 are to be provided for the approval of Council’s Food Surveillance Officer prior to the carrying out of the works shown on the plans referred to in condition 3 above.

CENTRE LANDSCAPING

20. The existing landscaping area adjacent to the Alexander Avenue boundary is to be retained and extended westward to the building wall. The extended area is to be re-landscaped with dense planting of advanced shrubs. This and all landscaped areas are to be maintained in healthy condition to the satisfaction of Council.

BUILDING CONDITIONS

21. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY for the purpose of undertaking building inspections and issuing the Occupation Certificate, then the following fees apply:

(a) Building Inspections (total of 2 required) - $220 (GST Inclusive);
(b) Occupation Certificate - $55
THESE FEES ARE TO BE PAID TO COUNCIL PRIOR TO COMMENCEMENT OF WORK.

22. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY, then telephone requests for the required building inspections will be accepted by Council provided the inspection fees have been paid. FACSIMILE AND ELECTRONIC MAIL REQUESTS WILL NOT BE ACCEPTED. A minimum of 48 HOURS notice for the following Building Inspections is required:

(b) Completion
or alternatively the Council being furnished with a certificate from an Accredited Certifier to the effect that those stages of construction have been completed satisfactorily and in accordance with good building practice and the relevant Australian Standards where applicable.
When requesting any of the above inspections, the applicant must ensure that all associated works are fully complete. Should any reinspections be necessary as a result of defective workmanship or work not being ready on the day and time requested, Council will charge a reinspection fee of $110 (GST Inclusive) for each subsequent inspection.
SHOULD COUNCIL NOT BE APPOINTED AS THE PRINCIPAL CERTIFYING AUTHORITY, THEN FULL DETAILS OF THE PRINCIPAL CERTIFYING AUTHORITY ARE TO BE SUBMITTED TO COUNCIL WITHIN TWO (2) DAYS OF THE APPOINTMENT OF THE PRINCIPAL CERTIFYING AUTHORITY.

23. The name and contractor licence number of the licensee who has contracted to carry out the work or the name and permit number of the owner-builder who intends to carry out the work shall be furnished in writing to Council PRIOR TO THE COMMENCEMENT OF WORK.

NB: Should changes be made for the carrying out of the work Council must be immediately informed.

24. A clearly visible all weather sign is required to be erected in a prominent position on the site PRIOR TO THE COMMENCEMENT OF ANY SITE WORKS detailing:

(a) that unauthorised entry to the work site is prohibited;
(b) the excavator’s and / or the demolisher’s and / or the builder's name;
(c) contact phone number/after hours emergency number;
(d) licence number;
(e) approved hours of site work; and
(f) name and contact phone number of the Principal Certifying Authority (if other than Council)

ANY SUCH SIGN IS TO BE REMOVED WHEN THE WORK HAS BEEN
COMPLETED.
Council may allow exceptions where normal use of the building/s concerned will continue with ongoing occupation, or the works approved are contained wholly within the building.

25. Excess or waste concrete from mobile concrete agitators or concrete pumping equipment shall not be washed down, spilled or disposed of onto the road reserve or Council's stormwater system.

26. All reinforced concrete footings shall be placed in accordance with the provisions of AS 2870.1 or, where applicable, the requirements of Part 3.2 of the Housing Provisions.

27. SHOULD COUNCIL BE SELECTED AS THE PRINCIPAL CERTIFYING AUTHORITY, Structural Engineer's details prepared and certified by a practising structural engineer of all reinforced concrete and structural members shall be submitted to Council for approval PRIOR TO THE COMMENCEMENT OF BUILDING WORKS.

28. The garbage container room shall be constructed to comply with all the relevant provisions of Council's "Code for Garbage Handling Systems" and in particular:

EndOfConditions

ANNEXURE A TO THE CONDITIONS OF CONSENT

CENTRE PLAN OF MANAGEMENT

HIGH STREET MARKETPLACE

201-209 HIGH STREET, NORTH WILLOUGHBY

“The Owner” means David M Freeman and S.H.K.M Pty Limited and its and their respective successors and assigns.

“The Centre” means the High Street Marketplace at 201-209 High Street, Willoughby North.

“The Centre Management” means Robin Gray & Associates or such other person, firm or corporation appointed by the Owner from time to time.

The Centre Plan of Management is in response to the issues raised in Land and Environment Court Proceedings No. 10097 of 2004.

The Owner agrees to be bound by this Plan of Management.

The Centre Plan of Management is designed to improve operations of the Centre, in conjunction with the Harris Farm Plan of Management, the tenancy of Harris Farm Markets to ensure management is focused on improving the operation of the Centre.

OBJECTIVES:

The objectives of the Centre Plan of Management are as follows:

· Pedestrians are able to move safely and conveniently around the Centre’s car park.

· Minimise the queuing of cars on Alexander Avenue.

· Residents on Alexander Avenue and Glover Street do not have their driveways blocked or access to their properties impeded by the parking of cars belonging to customers of the Centre.

· Servicing of the shops other than Shop 10 in the Centre occur where possible by the loading and/or unloading of vehicles within the northern loading bay.

· The free movement of customer vehicles within the car park is not impeded, where possible, by vehicles associated with the servicing of shops within the Centre.

· Pedestrian movement along the central mall of the Centre is convenient and unimpeded.

1. Shopping Trolleys

Objectives

· To minimise obstruction caused by shoppers leaving Harris Farm Markets’ shopping trolleys outside the Centre and also within the existing car park.

· Shopping trolleys are stacked neatly at the entrance to the Mall and do not impede pedestrian or vehicular movement within the Centre Car park.

Management Actions:

Objectives:

· Pedestrians are able to move freely and safely around the car park;

· All car spaces are to be available for use for customer parking at all times

Management Actions

(a) Centre Management to encourage deliveries within the northern loading bay. Management to request all speciality shops to advise their contractors that, where appropriate, deliveries must take place within the loading bay.

(b) The northern loading bay to be more clearly designated by painted zebra stripes.

(c) The onsite carparking hours to be reduced from 2 hours to 1 hour and signposted accordingly.

(d) During the tenancy of Shop 10 by Harris Farm Markets Willoughby Pty Limited, Centre Management to provide a person, suitably instructed, to manage the car parking area to minimise confusion and direct vehicles to available car parking spaces.

This person shall be in attendance during the following periods:
Thursday, Friday, Saturday and Sunday 9am to 6pm and Monday 1pm
to 6pm.

This person would also endeavour to ensure that delivery trucks and
vans do not obstruct visiting vehicles and unload at the appropriate
loading dock/bay.

Objectives:

· All garbage generated by shops within the Centre is stored within the designated garbage bay.

· The area surrounding the garbage bay and the car park generally, to be kept free of litter and odour.

· Noise from collection of garbage complies with all relevant standards against background noise levels and does not unreasonably interfere with the comfort or repose of neighbours or their enjoyment of their properties.

Management Actions:

(a) Ensure that the garbage bay storage area is treated aesthetically to ensure that the area does not provide an eyesore to neighbouring residential properties.

(b) Centre Management, is to provide garbage trucks to pick up garbage from 7am to 6pm Monday to Saturday and between 9am and 6pm on Sundays.

(c) Centre Management to investigate and consult with the appropriate officer of Willoughby City Council and, if considered a practical alternative, to install a common compactor (for operation by trained personnel) to compact garbage onsite for removal.

Objectives:

· To ensure that the Mall area located in the middle of the Centre provides direct and easy access for pedestrians to all shops located adjacent to the Mall while providing an opportunity for retailers, including Harris Farm Markets, to utilise this area for displaying goods and advertising and encourage shoppers to enter into each of the Shops.

· To allow an area within the mall to be available for the sale of flowers.

· Customers and pedestrians are able to move freely along the pedestrian mall.

Management Actions:

(a) Restrict any goods to be located within the Mall area to ensure a minimum width of three (3) metres is maintained free of obstruction along the length of the Mall.

(b) A flower seller is to be permitted to occupy an area within the Mall.

(c) The location of the flower seller to be such as to allow the rapid dispersion of persons from shop areas whilst optimising the display space and exposure of the flower seller.

Objectives:

· To provide adequate signage within the Centre to minimise pedestrian and vehicular conflict and also to direct vehicles in a safe and direct manner within the subject site.

Management Actions:

(a) Centre Management is to provide new or additional signage as per the attached Schedule A.

Objectives

· Residents’ objections are brought promptly to the attention of the Centre Management.

· Residents are aware that a complaint management system exists.

· Residents complaints are responded to by the Centre Management promptly and, at the latest, within one week of the complaint.

Management Actions:

(a) Within one month of the date of commencement of this Centre Plan of

Robyn Pedruco at Robin Gray & Associates, L6, 10 Help Street,

Chatswood PH: 9410.9275 ”

Any amendment to the above details will be notified to Willoughby City Council within two days of any such amendment.

(b) The Centre Management shall be responsible for maintaining a register

Objectives:

· The objectives and management actions of this Centre Plan of Management are achieved.

· The Centre Plan of Management is relevant to the efficient operation of the Centre

Management Actions:

(a) Centre Management is to nominate an appropriate person (by name and job description and contact details) within 14 days of the adoption of this Centre Plan of Management who will be responsible for ensuring compliance with this Centre Plan of Management.

(b) If the appropriate person wishes to delegate tasks to another employee then the details of the appropriate management actions shall be notated as the responsibility of that employee (by job description).

(c) A review of the operation of the Centre shall be undertaken annually by the nominated person no later than two months from the anniversary date of its commencement for a period of two years and shall include a brief statement as to the performance of the Centre against the outcomes of the Centre Plan of Management. A copy of this document and a copy of the register of resident complaints shall be forwarded to Willoughby Council.

–

Robyn Pedruco at Robin Gray & Associates, L6, 10 Help Street,

Chatswood PH: 9410.9275

.

(d) The Centre Plan of Management shall all times be available for inspection by residents and by officers of Willoughby City Council, on reasonable notice being given.

(e) The Owner shall, upon reasonable notice being given, permit an authorized officer of Willoughby City Council access to all parts of the Centre as may be required, to ascertain that the Centre Plan of Management (including the development consent) is being complied with.

(f) This Centre Plan of Management commences within 40 days of the issuing of a construction certificate for the required works.

(g) This Centre Plan of Management may be amended with the written consent of the Owner and Willoughby City Council at any time

SCHEDULE A

SCHEDULE OF SIGNS

1. Existing car parking signage is to be altered to restrict car parking to 1 hour parking. Such signs are to be located at 3 positions within the carpark and are to state:

“Strictly ONE HOUR parking.”

2. The trolley storage area is to be line marked as per the Plan and provided with a sign stating “Trolley Bay/Trolley Returns.”

3. A sign adjacent to the driveway from Alexander Street to the Centre carpark is to state “No Stopping”.

4. A new sign is to be erected at the Alexander Street entry stating words to the following effect:

“A condition of entry to this car park is that car park patrons obey the directions of the parking attendant. ”

5. The northern loading bay is to be marked on the pavement as a delivery area only and sign marked to state:

“Parking delivery trucks only, NO customer parking”.

6. Small directional signage is to be provided at the ingress and egress points to the car park.

(a)_ ‘Carpark Entry” and

(b) “Carpark Exit”.

7. Erect a sign on the fence on the boundary to the following effect:

“Please be considerate to neighbours.

Minimise noise whilst using Carpark and return all trolleys to the Centre”

ANNEXURE B TO CONDITIONS OF CONSENT

HARRIS FARM PLAN OF MANAGEMENT

SHOP 10, HIGH STREET MARKETPLACE

201 - 209 HIGH STREET, NORTH WILLOUGHBY

The following Management Plan for the Harris Farm shop located in the High Street, Marketplace, situated at 201 – 207 High Street, North Willoughby (the “Centre”) is in response to issues raised in Land and Environment Court Proceedings No. 10097 of 2004.

Harris Farm Markets Willoughby Pty Limited (“Harris Farm Markets”) currently occupies Shop 10 within the Centre and this company agrees to be bound by this Plan of Management in relation to the responsibilities to be undertaken by Harris Farm Markets.

The Plan of Management is designed to improve operations of Harris Farm, in conjunction with the Centre Plan of Management which is to apply to the Centre, to ensure the management of Harris Farm is focused on improving the operation of the Centre.

OBJECTIVES:

The objectives of the Plan of Management are as follows:
· Pedestrians are able to move safely and conveniently around the Centre’s car park.
· Shopping trolleys deposited on surrounding streets including Alexander Avenue and on Glover Street are removed every 4 hours on weekdays and every 2 hours on weekends and public holidays during operating hours.
· All servicing of Shop 10 occurs within Shop 10’s designated loading dock (accepting that the delivery/servicing vehicle may project to the curtilage outside of this dock providing that no designated customer parking spaces are impeded).
· Pedestrian movement along the central mall of the Centre is convenient and unimpeded.

1. Harris Farm Markets’ Loading Dock

Objectives:

· The deliveries of goods and removal of waste are to occur in designated areas and are not to impede the free flow of customer vehicles within the car park.

Management Actions:

(a) To establish and identify a loading dock area for Shop10 within the building by painting zebra lines on the loading dock floor area and mark “Truck unloading and loading only – NO GOODS STORAGE WITHIN THIS AREA”. Trucks are to be off loaded and goods taken directly to the storage area or cool room and unpacked.

(b) The regular education of Harris Farm Markets’ staff to ensure that these provisions relating to the loading dock are complied with and management is to review compliance at six monthly intervals.

(c) The area be line marked for truck loading/unloading and a peripheral area required for servicing this vehicle by forklift truck is kept clear and available for loading/unloading activities at all times.

(d) All staff members are informed that the area line-marked for truck unloading and a peripheral area required for servicing this vehicle by forklift truck is kept clear and available for loading/unloading activities at all times.

(e) The use of the fork lift truck is confined to the loading dock of Shop 10.

(f) The Store Manager is responsible for ensuring that these management actions are complied with.

Objectives

· To encourage all vehicles servicing Shop 10 to stand within the designated loading dock for the duration of the servicing activity; and

· The customer car parking spaces and the central parking aisle are not to be impeded by vehicles servicing Shop 10.

Management Actions

(a) Truck deliveries are to be made by trucks of no greater than 10 pallets and/or 9.5 metres in length. The redesign of the loading dock area will ensure all goods will be delivered and unpacked within the loading dock area without an adverse effect on traffic flow within the car park area

(b) Nominate and police fixed delivery times for all suppliers to ensure that banking up of delivery trucks does not occur. Any truck deliveries arriving after their allotted time schedule will be refused delivery. All suppliers advised of such practice, by issue of a notification letter

(c) The Store Manager is responsible for preparing a schedule of delivery times for service vehicles and for negotiating amendments to delivery times to ensure that these do not coincide. This schedule shall be completed within one month of the date of commencement of this Plan of Management and maintained and kept at Shop 10.

(d) Harris Farm Markets will nominate specific staff members to accept all deliveries and will give all such staff authority to reject late deliveries.

(e) A timetable of delivery times will be displayed within the loading dock area and also adjacent to the entry door to the loading dock.

(f) Consultation with other businesses within the Centre is to occur to minimise conflict with their deliveries.

No loading or unloading of trucks is to take place

Between 6.00pm to 7.00am commencing Sunday (evening), Monday, Tuesday, Wednesday, Thursday, Friday and Saturday (morning);

And between 6.00pm Saturday and 8.00am on Sunday.

Objectives

· To minimise obstruction caused by shoppers leaving Harris Farm Markets’ shopping trolleys outside the Centre and also within the existing car park.

· Shopping trolleys deposited on surrounding streets including Alexander Avenue and on Glover Street are removed every 4 hours on weekdays and every 2 hours on weekends and public holidays during operating hours.

· Shopping trolleys are stacked neatly at the entrance to the Mall and do not impede pedestrian or vehicular movement within the Centre Car park.

Management Actions:

(a) Shopping trolleys deposited on surrounding streets including Alexander Avenue and on Glover Street are removed every 4 hours on weekdays and every 2 hours on weekends and public holidays during operating hours.

(b) Harris Farm Markets to employ additional staff, to collect trolleys.

Objectives:

· Garbage generated by Harris Farm is stored within the designated garbage bay.

· Subject to complying with health and safety requirements and regulations a single moveable 3 cubic metre bin may be stored within the loading dock area but is not to encroach upon any area physically required for unloading and loading in accordance with Cl. 1(a) of this Plan of Management.

· The area surrounding the garbage bay and the car park generally, to be kept free of litter and odour.

· Noise from collection of garbage complies with all relevant standards against background noise levels and does not unreasonably interfere with the comfort or repose of neighbours or their enjoyment of their properties.

Management Actions:

(a) Harris Farm Markets is to provide garbage trucks to pick up garbage

Objectives

· Residents’ objections are brought promptly to the attention of Harris Farms Markets.

· Residents are aware that a complaint management system exists.

· Residents complaints are responded to by or Harris Farms Markets promptly and, at the latest, within one week of the complaint.

Management Actions:

(i) The Complaints Manager - Harris Farm Markets Pty Limited

– PH 9746 2055

Any amendment to the above details will be notified to Willoughby City Council within two days of any such amendment.

(b) The Complaints Manager of Harris Farm Markets is to maintain a register detailing all complaints received concerning the operation of Shop 10 including the loading dock, truck deliveries, trolleys, garbage collection and the Mall. Such register to contain the date, the name of the complainant, nature of the complaint, what action occurred in response to the complaint and the date on which the complainant was advised as to the action that would be taken in respect of the complaint. This register is to be maintained at Shop 10 and a copy to be provided on a monthly basis to the Centre Manager.

Objectives:

· The objectives and management actions of this Plan of Management are achieved.

· The Plan of Management is relevant to the efficient operation of Harris Farm Markets and the Centre

Management Actions:

(a) Harris Farm Markets is to nominate an appropriate person (by name and job description and contact details) within 14 days of the adoption of this Plan who will be responsible for ensuring compliance with this Plan of Management.

(b) If the appropriate person wishes to delegate tasks to another employee then the details of the appropriate management actions shall be notated as the responsibility of that employee (by job description).

(c) A review of the operation of Harris Farm shall be undertaken annually by the nominated person no later than two months from the anniversary date of its commencement for a period of two years and shall include a brief statement as to the performance of the Centre against the outcomes of the Plan of Management. A copy of this document and a copy of the register of resident complaints shall be forwarded to Willoughby Council. (in hard copy or electronically)

Harris Farm Markets

C/- The Complaints Manager

Shop 10

High Street Market Place

201-207 High Street

NORTH WILLOUGHBY

Or as otherwise notified in writing to Willoughby City Council.

(d) The Plan of Management shall all times be available for inspection by residents and by officers of Willoughby Council, on reasonable notice being given.

(e) Harris Farm Markets shall, upon reasonable notice being given, permit an authorized officer of Willoughby Council access to all parts of Shop 10 as may be required, to ascertain that the Plan of Management (including the development consent) is being complied with.

(f) This Plan of Management commences 40 days after the issuing of a construction certificate for the required works.

(g) The Plan of Management may be amended with the written consent of Harris Farm and Willoughby City Council at any time.

Actions

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Citations

Harris Farm Markets Pty Limited v Willoughby City Council [2005] NSWLEC 40

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CITATION:	Harris Farm Markets Pty Limited v Willoughby City Council [2005] NSWLEC 40
PARTIES:	APPLICANT Harris Farm Markets Pty Limited RESPONDENT Willoughby City Council
FILE NUMBER(S):	10097 of 2004
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- deferred commencement consent condition to allow for modification of related development consent - incorporation of plan of management for suburban shopping centre.
LEGISLATION CITED:	Willoughby Local Environmental Plan 1995
DATES OF HEARING:	25/5/2004, 26/5/2004, 24/9/2004, 26/11/2004, 8/12/2004 (written submissions), 17/12/2004 (written submissions), 20/12/2004 (written submissions).
DATE OF JUDGMENT:	02/10/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr P R Rigg (Solicitor) SOLICITORS Deacons RESPONDENT Mr A M Pickles (Barrister) SOLICITORS Mallesons Stephen Jacques