Imperial Bottle Shops Pty Limited v Lismore City Council

[1989] NSWLEC 233

Land and Environment Court

of New South Wales

CITATION:	Imperial Bottle Shops Pty Limited v. Lismore City Council [1989] NSWLEC 233
PARTIES:	APPLICANT Imperial Bottle Shops Pty Ltd RESPONDENT Lismore City Council
FILE NUMBER(S):	10147 of 1989
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	North Coast Regional Environmental Plan 1988.
CASES CITED:
DATES OF HEARING:	04/07/89 - 06/07/89
DATE OF JUDGMENT:	08/29/1989
LEGAL REPRESENTATIVES:	APPLICANT D.P. Wilson W.P. Walters & Co., Lismore RESPONDENT T.S. Hale Sly & Weigall

JUDGMENT:

HIS HONOUR: Imperial Bottle Shops Pty Limited ("the Company") sought development consent from the Lismore City Council ("the Council") for a neighbourhood shopping centre on land at the corner of Taylor Avenue and Rous Road, Goonellabah within the said City of Lismore. By notice of determination dated 23rdFebruary, 1989 the Council refused development consent for the following reasons:|CF2.|PSI

"1. The proposed zoning in the advertised and exhibited draft Local Environmental Plan is residential and the proposal does not fit the objectives of that zoning.

2. The development does not fit the commercial and shopping facilities structure for Goonellabah as envisaged by the Council and would fragment such facilities in too many locations and too close together.

3. The development would prevent or delay for a long period the establishment of major Commercial and shopping facilities in Goonellabah, i.e. the centre zoned for and projected between Oliver Avenue and the Highway off Gordon Blair Drive.

4. The development would mean the unnecessary destruction of many large koala food trees.

5. The development would cause deterioration of the traffic situation at the northern end of Rous Road, with added accident potential.

6. The development would duplicate an urban facility already present only about 160m away.

7. The site is to be preferred for and perfectly capable of being used for (medium density) residential development as is Council's policy."|CF1.|PSO

The land has an area of approximately 7,800m2 and an 80m frontage to Rous Road, and 115m to Taylor Avenue. The land is situate about 90m from the intersection of Rous Road (Main Road No.555) and Ballina Road (Bruxner Highway). It is situated about 160m from another neighbourhood shopping centre known as "the Rous Road Shopping Centre", and is about 1.4k from a proposed site for a major retail and commercial centre. The site is about 3k from the Lismore City Business District boundary. The land is vacant and level along the Rous Road frontage, but has a fall of about 8m from that frontage to its boundary with Clifford Park. There is a number of substantial trees on the land, which are mainly eucalypt and camphor laurel, with a variety of other species.

The proposed development comprises approximately 1,900m2 nett lettable area in sixteen separate tenancies made up as follows:

1 x 480m2

1 x 300m2

1 x 150m2

11 x 75m2

2 x 66m2

The uses proposed for the centre are generally unspecified, except that it will include a drive-in liquor facility and a restaurant. All shops have a frontage to a separate landscaped area, and parking is located on three sides with an access driveway around the perimeter. The original plan provided for seventy-nine car parking spaces, eight of which were located under the building. Vehicle access only from Taylor Avenue is proposed, and there is a large on-site loading dock to the largest tenancy, with a drive-in facility to the second largest tenancy. A 3m landscape strip is proposed to the two roads, a 2m landscape strip and a 2m fence to the northern boundary, and the western boundary adjoins open space and little landscaping is provided to that boundary. Substantial landscaping is proposed on the adjoining land owned by the Council and zoned open space.

In 1978 the subject land was zoned Special Use - Church in Interim Development Order No.36. The proposal to re-zone the site to General Business to accommodate a drive-in bottle shop was refused by the then Minister but, following representations, the Minister approved an alteration to permit the erection of a retail liquor outlet on the subject land.

Interim Development Order No.40 zoned the land 3(c) Neighbourhood Business in which, inter alia, a bottle shop was a permissible use. Development consent was granted for a bottle shop, but that approval has lapsed. The Council supported the zoning in 1978, and its then strategy was:|CF2.|PSI

"1. Lots 3 to 7 Section 2 D.P.1064 be zoned for future use commercial and developed as a drive- in bottle shop.

2. That there be no further commercial expansion towards Ballina Road.

3. That any further commercial expansion, if considered desirable, be adjacent to the existing shopping centre.

4. That all forms of access to the bottle shop development be from Taylor Avenue."|CF1.|PSO

In 1987 a Draft Local Environmental Plan proposed a Residential 2(a) zoning. In 1989 the Council deleted the subject site from the re-zoning in Draft Local Environmental Plan No.22 until this development application had been determined. The development application was determined by refusal, and the Council resolved to spot re-zone the site for medium density residential development.

The application has been opposed by the Goonellabah Koala Protection Group and the Big Scrub Environment Centre. Such representations expressed concern at the likely removal of food trees for koalas in the district.

The Goonellabah Progress Association objected in writing for the following reasons:|CF2.|PSI

"1. Fragments any proposed business/commercial development of Goonellabah. It is Council's intention to develop Goonellabah Business Centre in accordance with Jackson, Teece and Chesterman Report, 1983.

2. Approval of such development will only aggravate an already congested Rous Road.

3. The present site contains a number of koala fodder trees. This site is recognised as a koala habitat. Removal of these fodder trees will deplete the koala of the area."|CF1.|PSO

Rous Road is a main road and the Local Traffic Advisory Committee recommended the application be refused. The Council's Architects' Advisory Panel advised that it was more desirous to have the shopping centre adjoin the existing shopping centre, rather than have fragmentation.

The North Coast Regional Environmental Plan 1988 applies to the site. Its provisions seek to achieve adequate commercial space by strengthening existing centres by adding to them on adjoining sites, or allowing new centres only where they are expressly planned in accordance with an overall strategy. It is submitted by the Council that the subject proposal does not support any of those aims.

The Council also gave consideration to the provisions of State Environmental Planning Policy No.11, Traffic Generating Developments. The application was discussed by the Local Traffic Advisory Committee, together with submissions from the Department of Main Roads, Roads and Traffic Authority, and Police Traffic Branch.

In 1983 a substantial amount of land (the Simeoni land) was re-zoned to 3(a) General Business following the adoption of the Goonellabah District Centre Study and a Development Control Plan. The Council submits that the study recommended a staged implementation of a district centre on the Simeoni land, and that was based on an assumption that no existing centre in Goonellabah would be substantially enlarged and certainly that no additional neighbourhood centre of any consequence would be added in the area. The Council is concerned that the development of the subject land would frustrate the implementation of the Development Control Plan and the objectives of the Goonellabah District Centre Study.

The Council claimed also to be concerned about the likely economic impact on the nearby neighbourhood centre in Rous Road. However, the evidence clearly establishes that the existing centre is presently utilised above its capacity both from a retail point of view and car parking facilities. Ialso note that no objection is made by the owners or occupiers of that centre to the provision of further retail facilities in the locality. No evidence was called from any person connected with that centre. The Council opposes two neighbourhood centres in the same locality, particularly if there is a real risk that the land between the two centres will be subjected to pressure to be used for non-residential uses.

The objections of the Council's town planner can be summarised as follows:|CF2.|PSI

"1. The proposed zoning, in the advertised and exhibited draft Local Environmental Plan, is residential and the proposal is prohibited in that zone.

2. The development does not fit the commercial and shopping facilities structure for Goonellabah, as envisaged by the Council, and would fragment such facilities in too many locations and too close together and goes against the intention of Clause 47(1) of the North Coast Regional Environmental Plan 1988.

3. The development would prevent or delay, for an unacceptable period, the establishment of major commercial and shopping facilities in Goonellabah, i.e. the centre zoned for and projected between Oliver Avenue and the Highway, off Gordon Blair Drive, and goes against the retail strategy, prepared by the Council under Clause 39 of the North Coast Regional Environmental Plan 1988.

4. The development would mean the unnecessary destruction of large koala food trees.

5. The development would cause deterioration of the traffic situation at the northern end of Rous Road, with added accident potential.

6. The development would duplicate a neighbourhood centre, already present only about 160m away, in the same street, serving the same neighbourhood.

7. The site is to be preferred for and perfectly capable of being used for residential development (including medium density) as is Council's policy.

8. The Minister's and the Council's intention of the zoning of this site was to allow one liquor outlet only.

9. The development is not in the public interest."|CF1.|PSO

The Department of Main Roads objected to the development for the following reasons:|CF2.|PSI

"1. The proximity to the adjacent small shopping centre in Rous Road is undesirable as it promotes commercial development in a ribbon type form.

2. The location of the driveways is unacceptable. The proposed access nearest Rous Road is too close for both entering and exiting vehicles. This will produce traffic conflicts by queuing at the intersection.

3. Shops 1-7 have no provision for loading docks.

4. A number of problems exist for circulating vehicles within the site. Vehicles travelling anti-clockwise to the bottle shop entrance will have a difficult turning manoeuvre to enter. Also confusion for drivers if intending to proceed past the bottle shop as opposed one-way flow is encountered in the current proposal.

5. There is restricted manoeuvring room for heavy vehicles near the proposed loading dock.

6. Taylor Avenue will need significant upgrading with kerb and gutter and full width sealing. Also additional works will be required at the intersection of Rous Road (provision of medians and possible turning lanes for vehicles entering Taylor Avenue). The proximity of the bottle shop to Rous Road will encourage on-street parking in Rous Road.

In conclusion, the current proposal is unsatisfactory from a number of traffic aspects. It is suggested that a combined access be provided towards the middle of the site off Taylor Avenue and the design should be recast to eliminate the deficiencies outlined above."|CF1.|PSO

Lismore District Highway Patrol objected to the development for the following reasons:|CF2.|PSI

"1. It is contrary to ribbon development control principles.

2. The stopping, slowing and turning movements generated by the development at the intersection of Rous Road will give rise to an accident potential which would otherwise not exist.

3. The driveway situated at the eastern end of the development is situated too close to the intersection of Rous Road.

4. The driveway situated at the western end of the development has sight restrictions in relation to the intersection of Taylor Avenue and Fisher Street.

5. The parking/unparking manoeuvres at the car parking positions adjacent to the vehicular driveway (eastern end) could lead to on-street queuing.

6. The number of parking spaces provided is inadequate for the type of development proposed. A minimum of 120 car spaces is recommended.

7. There is inadequate manoeuvring area to permit lengthy vehicles to negotiate to and from the loading dock.

8. Shops 1, 2, 3, 4, 5, 6, 7, drive-in liquor store and restaurant have no loading dock facilities.

9. Vehicles travelling anti-clockwise to drive-in liquor store have insufficient area to manoeuvre in one movement to enter the service area of that shop."|CF1.|PSO

The Council's opposition to the centre was supported also by town planner, MrD.Kanaley. He opposed the establishment of an additional neighbourhood shopping centre on the subject site, and recommended the development of the district centre on the Simeoni land in two stages, i.e. a stage of up to 5,900m2 as soon as possible and 8,700m2 at a later time. In this way, he said, the need for additional neighbourhood shopping facilities would be satisfied.

The applicant's case was supported by a number of experts, and amendments were made to the plan in an attempt to overcome problems associated with ingress and egress, parking and loading facilities. Additional car parking was proposed to meet some of the recommended standards of the traffic authority.

There is no dispute that there is a need for more retail space in this area. It appears clear that the Council's main opposition to this development is a concern that it may frustrate or delay development of the Council's own land zoned for the district centre. It is highly probable also that Council's proposals to re-zone the subject land from Neighbourhood Business to Residential are on the same grounds. Iam satisfied that Ishould give the Council's attempts to re-zone the land for residential purposes the weight they deserve, and would not refuse this application solely on the grounds of the provisions of such draft instrument.

The experts appear to agree that Goonellabah presently needs at least one additional neighbourhood shopping centre. Apart from the Simeoni land, no other land has been zoned for retail purposes and Iam unaware of any land that can satisfy that need. However, the Simeoni land is not zoned for neighbourhood shopping, but for a district centre. The evidence also establishes that, notwithstanding the grant of an option, there is no real prospect of that land being developed for any retail purposes within the foreseeable future. Even if the option to acquire that land is taken up, there will be no obligation to develop the land for retail purposes at all.

Iam satisfied that there is an immediate need for additional neighbourhood shopping facilities in the vicinity of the subject land, and that the subject land is zoned and otherwise appropriate for that purpose. Iam unpersuaded that Ishould read down the aims and objectives of the IDO40. Whilst the catalyst for such re-zoning was the original proposal for a liquor store, the Minister could have but did not limit the purposes for which the subject land could be developed. The subject land has a Neighbourhood Business 3(c) zoning, with all of the usual purposes permitted therein.

Notwithstanding the objections and representations by statutory authorities and local interest groups, Iam satisfied that the site is appropriate for development, generally speaking, for a more limited form of neighbourhood shopping centre. However, Iconsider the present proposal badly designed and an over-development of the site. Iam unpersuaded that the vehicular movements in and around the site are satisfactory or that, even as amended, an appropriate number of car parking spaces will be provided. In my opinion, the land is so situated that it will depend largely upon patrons attending the premises in motor vehicles. The land fronts a main road and its access and traffic conduits are through residential areas. In my opinion, on-street parking for such development should be avoided, and for that reason Iam not satisfied that the provision only of lesser recommended standards by the traffic authority for car parking are likely to be adequate. Traffic circulation around the development is congested and poorly

designed and, in my judgment, should be two-way and avoid conflict with loading bays and service areas.

Iconsider the setback of the building from most of the boundaries to be inadequate, and landscaping areas nominal. More particularly, Iconsider that it is inappropriate to provide parking and loading facilities on hard stand areas right to the boundary of the property where it adjoins a public reserve. It is wholly unacceptable to provide landscaping necessary to lessen the impact of the development on land other than that in the application. In my opinion, where the subject land and the open space adjoin, adequate landscaping should be provided within the site itself.

This proposal is, in my opinion, an unreasonable attempt to provide the maximum retail space that would fit on the land, with the result that the development presents an unacceptable bulk, particularly when viewed from Taylor Avenue and the adjoining public reserve. In my opinion, a neighbourhood shopping centre on this location should have a bulk and scale compatible with the residential environment in which it is situated.

For the above reasons, whilst Iam satisfied that the site is appropriate for development for a smaller scale neighbourhood shopping centre, it is my opinion that the subject proposal is a poorly designed, over-development of the site and should be rejected. The applicant may reassess the proposal and if it is intended to proceed with the development of this site, a fresh application will have to be made to the Council. Under such circumstances Iconsider it inappropriate to canvass further the deficiencies of the application or amendments appropriate to overcome them.

The orders of the Court will therefore be:

1. Appeal dismissed.

2. Development consent refused.

3. Exhibits may be released.

4. No order as to costs.