LGSS Pty Ltd v Leichhardt Municipal Council
[1999] NSWLEC 72
•26 March 1999
Land and Environment Court
of New South Wales
CITATION:
LGSS Pty Ltd -V- Leichhardt Municipal Council [1999] NSWLEC 72
PARTIES
APPLICANT:
LGSS Pty LtdRESPONDENT:
Leichhardt Municipal Council
NUMBER:
10640 of 1998
CORAM:
Bignold J
KEY ISSUES:
:- proposal to extend trading hours of large scale shopping centre—environmental impact on amenity of nearby residents.
LEGISLATION CITED:
proposal to extend trading hours of large scale shopping centre—environmental impact on amenity of nearby residents.
DATES OF HEARING:
03/08/1999; 03/09/1999; 03/10/1999
DATE OF JUDGMENT DELIVERY:
03/26/1999
LEGAL REPRESENTATIVES:
APPLICANT:
Mr S. Austin QCSolicitors:
Mallesons Stephen JaquesRESPONDENT:
Mr G. Green, SolicitorSolicitors:
Pike Pike and Fenwick
JUDGMENT:
TABLE OF CONTENTS
Section Paragraph Nos.A. INTRODUCTION 1-4
B. THE PROPOSED DEVELOPMENT 5-11
C. THE COUNCIL’S DETERMINATION REFUSING
DEVELOPMENT CONSENT 12-27D. THE COMPETING CASES PRESENTED AT THE HEARING 28-54
E. THE PLANNING MERITS OF THE CASE 55-81
F. CONCLUSIONS AND ORDERS 82-83
IN THE LAND AND Matter No. 10640 of 1998
ENVIRONMENT COURT OF Coram: Bignold J.
NEW SOUTH WALES 26 March 1999LGSS PTY LIMITED
Applicant
v.
LEICHHARDT MUNICIPAL COUNCIL
JUDGMENTRespondent
Bignold J:A. INTRODUCTION
1. This is an appeal pursuant to s.97 of the Environmental Planning and Assessment Act 1997 (the EP&A Act) against the Council’s determination refusing development consent to an application to extend the trading hours of the existing “Market Place” Shopping Centre situate at the corner of Marion and Flood Streets, Leichhardt (Market Place).
2. The present appeal is to be determined as if the EP&A Act 1997 had not been enacted: vide cl.15 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.
3. Notice of the Council’s determination refusing development consent was given to the Applicant on 23 September 1997 and the Applicant filed its appeal against this decision on 22 September 1998 (just a day or so prior to the expiry of the statutory appeal period of 12 months).
4. One effect of this belated appeal is that much of the documentary material supporting the development application, and relevant to the Council’s determination that came into evidence before the Court, was addressing facts occurring some two years ago. This documentary material was supplemented by evidence of more recent events and more recent opinions given by both expert and lay witnesses. However, the common thread to both the earlier and the current evidence concerns the relationship between Market Place and its essentially residential environs. The outcome of the present appeal ultimately will depend upon how that relationship is to be evaluated and balanced. This inevitably will involve a planning or discretionary judgment.
B. THE PROPOSED DEVELOPMENT
5. The proposed development involves the extension of the existing trading hours of Market Place as shown in the accompanying Table:
TABLE: EXISTING AND PROPOSED TRADING HOURSEXISTING
PROPOSEDWhole Centre
8.00am to 10.00pm M-F
8am to 9pm M-F
8AM to 6pm Sat
10am to 4pm, Sundays
8.00am to 8.00pm Sat
Sundays unchanged.
TargetTrading to midnight on 12 evenings per year, one per month
Trading to midnight on 8 evenings per year
Mac’s liquor8am to 10pm, Mon to Fri
8am to 8pm, Mon to Wed, Sat
8am to 9pm, Thurs, Fri
10am to 8pm Sun
No trading on public holidays
Sat. and Sun. unchanged
9am to 5pm on public holidays
Public Holidays as Nominated, Whole Centre
Closed
9am to 5pm on the following 5 public holidays:
Australia Day
Easter Saturday
Easter Monday
Queen’s Birthday
Labor Day6. The existing trading hours of Market Place were fixed in 1993 by the combined effect of the Council’s determination, and on appeal, this Court’s determination of the development application made by the Owner of the appeal site (State Authorities Superannuation Board) to upgrade the existing shopping centre and to extend shopping hours.
7. The Council’s determination granted conditional development consent to the development application except for the extended trading proposed for Sundays and public holidays and for 12 occasions annually until midnight for Target.
8. Although the Owner’s appeal to this Court opened all aspects of the proposed development to the Court’s cognisance and final determination, in actual fact the issues debated at the hearing of the appeal concentrated on the most contentious issue of Sunday trading (and to a far lesser extent trading on public holidays and on 12 nights (annually) until midnight). In the result, the Owner’s appeal succeeded in part and failed in part. It succeeded to the extent that the Court allowed Sunday trading between 10am and 4pm and allowed Target’s special midnight trading on eight occasions per year. It failed in respect of trading on public holidays and for another four occasions annually for Target.
9. By its judgment delivered on 22 October 1993, the Court granted development consent to the owner’s development application subject to conditions. By its subsequent judgment (delivered on 7 December 1993), the Court imposed, by consent, 33 conditions of development consent.
10. Much of what was said in my reasons for judgment delivered on 22 October 1993 remains relevant to the issues raised by the present proceedings. In particular, much of Section B “Planning History of Leichhardt Market Place” at pp3 to 10 (inclusive) remains relevant to a proper understanding of the physical conditions and relationships concerning the appeal site and its immediate environs. I understood both parties’ cases to adopt what was decided in my 1993 judgment as providing at the very least, a background or commencing point for the determination of the present appeal. Accordingly, I proceed on that common basis, without the need to repeat the relevant portions of the 1993 judgment.
11. However, as reference to those pages will show, the facts of that appeal included the very important facts that trading hours had been extended without any consent of the Council coinciding with the advent of the first Franklins “Big Fresh” store in NSW, creating traffic and pedestrian chaos in the locality and provoking widespread local community protest. Additionally, the hearing of that appeal was against the background fact that the Council had commenced class 4 proceedings against the owner, and although it had failed to obtain an interlocutory injunction (declined by Bannon J) the owner had given certain undertakings to the Court confining arrangements for garbage removal and for deliveries an collection of shopping trolleys. None of these facts has continuing relevance to the Applicant’s present development appeal which, although it has again provoked considerable public protest from local residents (presently to be mentioned) is not to be determined against the background of the exceptional facts which applied to the 1993 appeal proceedings. It was the existence of those exceptional facts that exerted a profound influence on the outcome of the earlier appeal—see especially the final paragraph of p16 of the 1993 judgment.
C. THE COUNCIL’S DETERMINATION REFUSING DEVELOPMENT CONSENT
12. The present development application was made by the Applicant as centre manager appointed by the owner of Market Place, being the same person who owned it when the 1993 appeal was heard and determined.
13. The development application was made to the Council on 13 March 1997 and was accompanied by a considerable body of expert supporting material, namely (i) the Statement of Environmental Effects prepared by Planning Workshops, including a separate report concerning “environmental management measures proposed by the owners….;” (ii) an Acoustical Assessment prepared by Arup Acoustics; and (iii) a Traffic and Parking Report prepared by PWA Traffic Planning.
14. The Statement of Environmental Effects (which had incorporated the separate acoustical and traffic and parking studies) contained the following conclusion:
Leichhardt Market Place is seeking to keep pace with current trends in retailing which require that the retail environment, in both a physical and operational sense, meet customer demands and expectations. If Leichhardt Market Place is restricted in its ability to satisfy these demands and expectations, whilst other competing centres continue to implement the practice of extended hours trading, then business will flow away from Leichhardt to other areas. This shift in shopping patterns would occur as escape expenditure from the Leichhardt municipality.
In seeking to keep pace with current trends in retailing the owners recognise that the implementation of extended hours trading must be accompanied by a sensitive approach to operational management which minimises impacts on the amenity of local residents.
Without much needed extensions to trading hours both employment levels and business viability at Leichhardt Market Place and other nearby businesses will be adversely affected. For these reasons, it is essential that Leichhardt Market Place be allowed to compete effectively. The centre relies upon meeting the needs of their customers who are demanding the right to shop at times which suit their changing lifestyles and to purchase a wide range of fresh consumerables.
……………………
……………………
For all of the above reasons the proposed extension of trading hours of the Leichhardt Market Place is equitable, reasonable and without any significant adverse consequences.
15. Although expressed in slightly different terms, this conclusion embodies the case presented by the Applicant in support of its appeal.
16. The separate Environmental Management Report prepared by Planning Workshop was the result of its commission from the owners of Leichhardt Market Place “to prepare a management study for the centre with the specific purpose of understanding and improving centre management practices”.
17. The states rationale for the Study is contained in the following extract (page 3):
The rationale for this report stems from the Mall owner’s desire to produce a clear set of guidelines for the future management of the centre, and to ensure that these are consistent with Leichhardt Council’s stated commitment to bring about environmental improvements at the centre.
In order to address current management issues it will be necessary to implement a number of management measures to ensure that the continuing operation of the centre does not adversely affect the residential amenity of adjoining areas.
19. The Study identified the following management issues associated with the current operation of Leichhardt Market Place:
traffic generation and congestion;
queuing and access problems at the Flood Street frontage of the Centre;
on-street parking conflicts including on-street staff parking;
on street vehicular conflicts;
visual impact of the centre;
insufficient off-street parking provision;
odour control;
vehicle deliveries;
refuse removal and the generation of litter; and
noise issues associated with queuing traffic, security procedures, trolley tractor pick-up movements, staff activities, refuse compacting and vehicle deliveries.19. The Study thereafter proceeds to analyse each of the identified management issues and to identify “specific measures and initiatives which collectively seek to improve the operational performance of the Centre by minimising any adverse environmental impacts resulting from the operation of the Centre on neighbouring residences”.
20. The Council publicly advertised the development application and received 36 written objections (including four petitions) and 4 letters of support (including one petition).
21. The written objections were received from residents living in close proximity to Market Place (the majority being residents in Lords Road, George, Upward, Marion and Flood Streets, all of which either flank Market Place except for Upward and George Streets which intersect with Lords Road).
In the written report to the Council by its Acting Director of Environmental Management, the issues raised by objectors were summarised as follows:
Non-compliance with Court consent orders
Increase in hours of operation will mean increase in possibilities of current non-compliance occurrences.
Threat to other local businesses in proximity
Proprietary interest
Devaluation of property
Unacceptable deterioration of weeknight/weekend amenity
Encourage shoppers from other localities
Extended hours will exacerbate on-street parking problems
Additional rubbish and trolleys
Undesirable precedent
No longer a Centre serving local area
Increased traffic late at night
Increased noise late at night
Loss of peace and quiet on public holidays
Increased truck movements
Increased pollution
Intensification of all aspects of operations by the Centre
Trading hours are currently adequate
Social cost23. The Report which provides a comprehensive assessment of the development proposal contains the following conclusion:
The interface between the Leichhardt Market Place operations located in Lords Road and residential properties adjoining and opposite is highly sensitive and requires careful planning to ensure residential amenity is not unduly compromised. The maintenance of weekday trading hours as currently exist, is on balance, the most reasonable outcome to ensure residential amenity.
While it is acknowledged that improvements are currently being undertaken by Centre Management to reduce noise impacts, most are related to current breaches of the Centre’s consent by the Court.
Public holiday trading on the five proposed occasions throughout the year will benefit wider public interests, providing extended shopping hours to customers in line with nearby competing centres, whilst retaining the amenity of local residential properties.”
24. The Report recommended that deferred commencement consent be granted pursuant to s.91AA of the EP&A Act for
(i.) extended trading to 8pm Saturdays;
(ii.) trading between 9am to 5pm on the five nominated public holidays; and
(iii.) extended weekday trading for Macs Liquor until 9pmsubject to the erection of an additional acoustic wall along the western edge of the loading dock and garbage compaction area, and upon completion of that work, the submission to the Council for approval of an independent noise compliance assessment report.
25. The Report also recommended refusal of the development application for a number of specified reasons so far as concerned (i) extended weekdays trading; and (ii) extended Target special midnight trading.
26. The Council’s decision was to refuse development consent to the whole of the development application for the reasons that had been recommended for refusing some of the extended hours trading proposed. Those reasons were as follows:
1. Noise impacts from the extension of trading hours will have a detrimental impact on the residential amenity of the area in relation to sleep arousal effect.
2. In relation to Target’s proposal to trade to midnight, noise impacts from the extension of trading hours will have a detrimental impact on the residential amenity of the area in relation to sleep arousal effect.
3. Acoustic treatment of loading dock area is required before adequate assessment of noise impact can be undertaken to assess the impact on residential amenity.
4. The unsatisfactory building design of the open air upper level loading dock, garbage compaction area and car parks, exposed vehicular entry and exists to the site off Lords Road will exacerbate unacceptable noise impacts on the adjoining residential amenity during the night time period.
5. Noise impacts from Leichhardt Market Place operations and traffic from vehicles exiting the site after 10pm will result in unacceptable intrusive noise impacts on residential amenity.
6. Noise impacts from Leichhardt Market Place operations and traffic from vehicles exiting the site after 10pm will not result in noise creep and detract from residential amenity.
7. The lack of separation distance, and effective acoustic treatment, of the Centre on Lords Road and residences opposite and adjacent, will exacerbate unacceptable noise impacts on the adjoining residential amenity.
8. The proposed hours of operation are inconsistent with the maintenance of residential amenity in the immediate locality.
9. The development proposed is not in the public interest.27. I have referred in some detail to the development application and its supporting material and to the Council’s consideration of it, together with the local community response to it, for the following reasons:-
(i.) it demonstrates the very comprehensive consideration given to the proposal, both by the Applicant and by the Council and the local community;
(ii.) the supporting material provided important data concerning the existing operation of Market Place and in particular recognised that that existing operation continued to cause problems for local residential amenity some 3 years after the re-development of Market Place in accordance with the 1993 development consent;
(iii.) the positions adopted by the interested parties (the Applicant, the Council and the local community) were to be essentially sustained, unchanged, at the hearing of the appeal some 2 years after the development appeal was first advanced in March 1997.D. THE COMPETING CASES PRESENTED AT THE HEARING
28. The Applicant’s case was supported by the following expert evidence:-
(i.) a socio-economic assessment of the proposal undertaken by Mr Robert Hirst;
(ii.) a planning assessment of the proposal undertaken by Mr Neil Ingham;
(iii.) a traffic generation assessment of the proposal undertaken by Mr Michael Colston; and
(iv.) an acoustical assessment of the proposal undertaken by Mr Barry Murray.29. The Council’s case was supported by the expert evidence of Mr Bruce Threlfo, providing a planning and traffic assessment of the proposal, and of Mr Steven Cooper, providing an acoustical assessment of the proposal.
30. Additionally, there was the lay evidence of two neighbouring resident objectors, Ms Darbyshire and Mr Dawes. In addition, the Council’s case was supported by written statements prepared by seven nearby resident objectors (including Ms Darbyshire and Mr Dawes), together with all of the written responses to the Council’s public notification of the development proposal and the Council’s file containing the Report on the development application prepared by the Council’s Acting Director of Environmental Management and the Council’s determination of the development application.
31. Whereas the expert testimony concerning the planning assessment of the proposal is in substantial conflict, much of the conflict in the competing acoustical evidence was resolved by virtue of the report, following a conference directed by the Court, between the acoustical experts, Mr Cooper and Mr Murray. Their joint report became Exhibit 10.
32. In that Joint Report, the acoustical experts agreed that subject to the incorporation into the environmental management plan of a number of specific acoustical mitigating measures and controls, the traffic noise assessment contained in Mr Murray’s acoustical reports, based upon the adopted criterion that traffic noise generated by the proposed development should not increase existing noise levels (measured as LAeq 1hr) by more than 2dBA, would accurately indicate the traffic noise impact of the proposed development.
33. The mitigating acoustical controls or measures recited in the Joint Report were as follows:
33.1 Control of night time mechanical noise to 36 dBA at residential premises.
33.2 Treating of the trolley collection tractor with a new muffler and repair to the bump at the base of the dock ramps.
33.3 Modification to the gate leading from the mezzanine staff car park to Lords Road so that it can be closed quietly.
33.4 Fitting of an acoustic shroud around the garbage compactor hydraulic pump to reduce pump noise levels at 41 Lords Road and 7 Foster Street.
33.5 Restriction of the use of the garbage chute under the roof ramp from Lords Road to the hours 7.00 am - 10.00 pm.
33.6 Security Guard to patrol Lords Road precinct for 1 hour before dock opening to ask trucks entering the street before dock opening to leave and ultimately to discourage early entry into the street.
33.7 Fitting of an attenuator to the Franklins’ and Woolworths’ sound systems to attenuate 10 dBA between 10.00 pm and 7.00 am to avoid audible music outside.
33.8 Installation of sound absorption material to available walls and ceilings within the Franklins and Woolworths docks.
33.9 1 hour parking limit (except for residents) in the streets adjacent to Leichhardt Market Place, particularly Lords Road and Flood Street.34. Mr Murray’s acoustical assessment (applying the aforesaid noise criterion to Mr Colston’s predicted traffic generation figures (adopting the higher range)) had yielded the following conclusions:
(i.) Weekday extended trade to 10pm and Saturday extended trade to 8pm would not involve noise impacts exceeding the noise criterion except for the following predicted occasions and places—
A. in Lords Road
(i) 2.4dbA between 9 and 10pm on Thursdays;
(ii) 2.3dBA between 6 and 7pm on Saturdays;
(iii) 3dBA between 7 and 8pm on Saturdays;
(iv) 2.7dBA between 8 and 9pm on Saturdays; and
(v) 3.1dBA between 7 and 8pm on Saturdays (in a different location in Lords Road from that referred to in (iii)).
B. in Flood Street
(i) 2.6dBA between 9 and 10pm on Thursdays;
(ii) 2.2dBA between 10-11pm on Thursdays; and
(iii) 2.8dBA between 8 and 9pm on Saturdays (Exhibit 4: Section 4.4).
(ii) trading on public holidays is likely to increase existing noise levels by more than 2dBA for much of the day (Exhibit 5: Section 5);
(iii) Target’s proposal to trade until midnight at the same time as the proposed extended trade to 10pm will generally not increase traffic noise levels by more than 2dBA other than in Lords Road between 8 and 10pm and in Flood Street North between 9 and 10pm (Exhibit 5: Section 5).35. Mr Murray’s interpretation of predicted exceedances of the 2dBA criterion is that “a noticeable increase in noise is likely to result” (Exhibit 5: Section 5).
36. It is to be noted that a number of the mitigating acoustical measures or controls agreed upon by the experts address existing environmental impacts of the operation of Market Place independently of the proposed extended trading hours.
37. It is also to be noted that there are other sources of noise impact associated with the extended trading hours proposed that have not been included in Mr Murray’s acoustical assessment, most notably, the behaviour of staff leaving the premises at the end of the extended trading hours. (This phenomenon is the source of existing noise impacts adversely impacting on residents in Lords Road and other nearby streets). Mr Murray’s acoustical assessment leaves this aspect of noise control to the applicant’s Environmental Management Plan proposal.
38. The acoustical evidence largely transcends the significance of the traffic evidence, which essentially provided the estimates of traffic generation involved in the extended hours trading proposal, so that acoustical assessments based thereon, could be undertaken.
39. The traffic evidence was not concerned to enquire into the capacity of the roads system (including intersections) or the capacity for on-site carparking to cope with the proposed extended trade, since both these matters were considered in the expert material supporting the development application and shown to be capable of accommodating traffic generated by the extended trading hours proposal.
40. Mr Colston’s Report (Exhibit 3) acknowledges the obvious difficulty in forecasting traffic generation of the proposed extended trading hours (para 2.13) because “it involves speculation as to how customers may modify their shopping habits given the extended trading hours”.
41. The only significant issue raised by the competing traffic testimony concerns Mr Threlfo’s opinion that the predicted increased traffic (generated by the extended trading hours) in Lords Road and in Flood Street will involve traffic volumes “substantially exceeding the appropriate environmental capacity standards” established by the Roads and Traffic Authority’s Guidelines for Traffic Generating Developments (1993). In so opining, Mr Threlfo adopts a “local road” classification for Lords Road and a “collector road” classification for Flood Street. He was challenged in cross-examination on the appropriateness of adopting the former classification in view of the daily traffic volumes known to be experienced on Lords Road, which he conceded already substantially exceed the conventional daily volumes for local roads. He appeared to resolve, for himself, this anomaly by noting that the vast majority of traffic in Lords Road is associated with Market Place, and that but for its existence, daily traffic volumes in Lords Road would be very drastically reduced.
42. By far, the most significant conflict in the expert evidence concerns the planning appraisal of the proposed development.
43. Mr Hirst was of the emphatic opinion that Market Place is experiencing a substantial level of competition from new shopping developments in its trade area, notably the Broadway Shopping Centre (formerly Grace Bros.) and the approved Norton Street Shopping Centre (under construction), that such competition is in line with trends in the retail industry, that those trends are increasingly catering for customers who, because of their personal circumstances, need or demand extended shopping opportunities and that Market Place would be placed in a disadvantaged trading position if it were limited to its existing trading hours in comparison with the more generous trading hours employed in the retail industry generally and by its competitors in particular.
44. In his written report (Exhibit 1), Mr Hirst did not attempt to balance the public and private interests of residents whose amenity was obviously affected, by virtue of geographical proximity to Market Place, with the wider public interests of the Applicant in fair competition in the retail industry and of all existing and potential customers of Market Place to maximise shopping opportunities by having extended trading hours. However, in his oral evidence, he expressed the opinion that the resolution of any conflict in interests was “overwhelmingly” in favour of the wider public interest.
45. Mr Ingham’s planning appraisal adopted a different (and more conventional) planning approach, namely to seek to strike “the balance between the amenity of local residents affected by the centre and the amenity of residents benefiting from the extended trading hours” (Exhibit 2: paragraph 6.2.1).
46. In reaching his ultimate opinion that the proposed development had been “designed to respect the residential amenity of surrounding properties” Mr Ingham had addressed each of the issues raised by the Council in defending the appeal (these issues essentially reflect an amplified version of the reasons for the Council’s refusal of the 1997 development application) concluding that each issue raised had been appropriately dealt with by the Applicant’s development proposal, as it had been acoustically assessed by Mr Murray, together with the Applicant’s decision to adopt a Management Plan, the terms of which Mr Ingham considered should be imposed as conditions of development consent. Indeed, it is the proposed Management Plan that often was relied upon by Mr Ingham in his consideration of the issues raised by the Council in the proceedings. The Management Plan is said to contain “management measures to be implemented to minimise the impact of Leichhardt Market Place on surrounding development”.
47. Mr Ingham compendiously describes those “management measures” in Section 9.2 of his Report as follows:
The Management Plan includes measures relating to staff being encouraged to park in the staff dedicated car park on the upper level of the existing car park, the departure of staff, the closure of both car parking entry ramps off Lords Road after 9.00pm, the provision of signage on Lords Road regarding parking restrictions after 9.00pm, liquor store deliveries taking place after 9.00am weekdays, limited garbage collection times on public holidays, and extensive on-going monitoring of noise generated by the centre, at the expense of the applicant. In the event that the on-going monitoring program identifies a noise problem arising, reasonable measures are to be undertaken to reduce the noise levels to comply with the requirements of the Environmental Noise Control Manual 1985 and Noise Control Act Regulations.
48. The issue of staff parking is amplified by the following extract from Section 9.4 of Mr Ingham’s Report:
The past problems related to staff parking in surrounding streets is acknowledged, and has been addressed by management and also addressed in the Management Plan. Proposed measures to overcome the incidence of staff parking in surrounding streets include the provision of increased safety measures for staff finishing work at night, such as improved on-site lighting, and also the introduction of a staff vehicle register, which is used to identify staff vehicles, and ensure that the vehicles are parked on-site, and not in surrounding streets. It is also proposed to re-route the store entry points, to facilitate ease of access from the dedicated staff car park. Further, staff will be advised and encouraged to park in the staff dedicated car park on the upper level of the existing car park.
49. Mr Ingham concludes, that subject to the implementation of the Applicant’s Management plan, the proposal “constitutes a minor and acceptable increase in the hours of operation of Leichhardt Market Place” ( Section 9.1 ). Elsewhere in his Report, when discussing the “public interest” factor, Mr Ingham expresses the following opinions (consistent with those expressed by Mr Hirst):
The proposed development will provide greater convenience for patrons, by providing slightly extended hours of operation. A substantial proportion of patrons of Leichhardt Market Place are local residents in the immediate and general vicinity of the centre. I believe that the proposal is in the public interest in meeting a community need. The impacts on the local residents must be weighed against the greater community benefit. In my opinion, the balance falls in favour of the common good. The proposal provides more flexible choice for shoppers generally.
As detailed throughout this Statement, the proposal will not have any unreasonable impact on surrounding residential development, and accordingly is not contrary to the private interest of those people in any significant way.
Also of relevance to the matter of public interest is the continued viability and operation of Leichhardt Market Place itself, with regard to providing essential retail services, and having regard to the future of the centre in a dynamic retail environment which is moving towards greater consumer convenience. If there is a public interest in the continuation of the centre, then it is unreasonable to penalise this centre by not allowing a minor increase in the hours of operation, in order to allow the centre to remain competitive with other nearby shopping centres, as previously discussed. Planning should not act as an instrument to restrict trade unless there are very compelling reasons for doing so.
50. Opposing Mr Ingham’s planning assessment of the proposed development was Mr Threlfo’s assessment ( Exhibits A and B ). His Report in Chief (Exhibit A) addressed each of the issues raised by the Council, principally by reference to the expert materials that had supported the 1997 development application. He concluded that the proposed excluded trading hours “encroached into the limited amount of time and days where the neighbourhood is not affected by the operations of the Centre” and violated the principle of “neighbourliness” that he considered had been established by the 1993 judgment. (I shall later return to consider the scope and application of this principle.) His Report in reply ( Exhibit B ) addressed the current expert evidence adduced by the Applicant at the hearing. His conclusion was that although the current expert reports “present different data from the reports submitted with the application…they confirm my view that the impact on the local area is such that trading hours should not be extended”.
51. Mr Threlfo was sceptical of the efficacy of some of the measures proposed in the Applicant’s Management Plan. For example, he saw little point in the suggestion for on-going noise monitoring in circumstances where the Applicant’s own acoustical assessment had predicted exceedances of the noise criterion adopted by Mr Murray by traffic generated by the proposed extended trading hours, especially on public holidays. In similar vein, he questioned the efficacy of the suggested measures to control staff leaving the premises at the end of trading.
52. Mr Threlfo considered that the proposed extended trading hours would further degrade the marginal environmental amenity of the residences surrounding Market Place and that the suggested “wider public interest”, in maximising shopping opportunities for the local community, were already catered for by the recently opened Broadway Shopping Centre and the soon to be opened Norton Street Shopping Centre, each of which had the benefit of more extended night-time trading hours.
53. In relation to the existence of other shopping centres within, or capable of serving the needs of the trade area for Market Place, Mr Threlfo considered that the economic impact of the proposal was not, in the circumstances of this case, as significant as its environmental impact on local residents.
54. The evidence of local objectors to the proposal indicated that the existing operation of Market Place significantly adversely impacted upon their residential amenity, particularly in those respects which involved elements of continuing breach of the conditions of the 1993 development consent (e.g. delivery trunks standing in Lords Road earlier than the 7am opening time of the loading dock, staff parking their vehicles in places other than the designated rooftop parking spaces). The objectors vigorously opposed further encroachments into their very limited times of “peace and tranquillity i.e. times when Market Place was not operating, seeing the proposed extended trading hours as threatening them of whatever little vestigial residential amenity they presently enjoyed, especially on public holidays. Generally speaking, they expressed dissatisfaction with the Management of Market Place in terms of lack of responsiveness to their complaints, and were unenthusiastic in respect of the Applicant’s suggested Environmental Management Plan, doubting what it could realistically achieve in the prevailing circumstances where conditions of the 1993 development consent were not consistently complied with or fulfilled.
E. THE PLANNING MERITS OF THE CASE
55. Having carefully considered the evidence (expert and lay) and with the benefit of a view of Market Place and its environs, I have come to the conclusion that the proposed extended hours, though quantitatively modest and minor from the Applicant’s perspective (as an accretion to existing trading times) qualitatively are significant in their probable environmental impact. The evidence comfortably satisfies me that that environmental impact is likely to be adverse to the residential amenity of surrounding residents to a significant and unreasonable degree. This conclusion of adverse impact is a combination of the functions of the times (late at night and on public holidays) when the extended trade will manifest itself adversely for nearby residents, and the very limited nature of the residential amenity currently experienced by the local residents. That limited nature of existing residential amenity is profoundly influenced by the existence, and operations, of Market Place, so much so that it involves no exaggeration to say that it is only when Market Place is not operating that residential amenity for nearby residents is meaningfully experienced.
56. This evaluation of the nature and quality of the prevailing residential amenity, of course is not a unique experience to those residents living nearby to Market Place and doubtless is replicated or approximated in many other circumstances where residences adjoin certain types of factories or industrial undertakings (e.g. quarries) or where residences front busy highways.
57. Moreover, the mere fact of co-existence in physical proximity of incompatible or disharmonious developments, such as is experienced with Market Place and its residential environs, does not however dictate an obvious planning outcome in a case such as the present, where the development that already exerts an adverse environmental impact on its neighbours, seeks, as does the present Applicant, to intensify or expand its operations. Sometimes planning discretion is simply not involved e.g. in cases where highway traffic intensifies the existing use of the highway and creates additional noise nuisance for residents whose homes front the highway. However, the present case depends upon the exercise of planning discretion, because development consent has been sought for the extended trading hours of Market Place.
58. In this respect, what I described in my 1993 judgment as “the principle of neighbourliness” has obvious relevance (as I understand each party in the proceedings to have acknowledged). I hasten to say that there is nothing novel or profound about such a suggested principle. It is simply an abbreviated rubric for a number of relevant considerations specified in s.90(1) of the EP&A Act.
59. The so called principle is explained in the following extracts from pp11 and 12 of the 1993 judgment:
The rationale for the Council's decision (again, reflecting the thinking of the resident objectors) is that a fair compromise or balance to strike between the competing interests is to allow extended trading hours Monday to Saturday (this acknowledges the interests of the Applicant for commercial advantage) but to prohibit Sunday trade (this acknowledges the interests of the objecting residents to an improved residential amenity on Sunday, traditionally a day of rest and refreshment).
I must say that my initial impression was that this was a very fair solution to what appeared to be the inherently difficult, if not intractable, task of harmonising (or fairly adjusting) the relevant competing interests, each obviously legitimate in its own right. Such interests obviously involve private interest, but they also involve the public interests of the proper use of land and built resources in accordance with proper environmental planning principles.
In my judgment, the fair adjustment of these legitimate competing interests, in the present case is to be achieved (a) in the light of their present physical context namely as (i) co-existing; (ii) neighbouring; and (iii) disparate developments; and (b) by reference to conventional planning criteria (as contained in s90 of the EP&A Act) which do not accord any superior claims or status to one interest over the other or to one type of development over the other, for both interests and developments are legitimate in terms of planning law relevant to the present case. In short, I find that the solution (in terms of striking a fair balance) is to be found in the principle of neighbourliness between adjoining or adjacent developments of obviously disparate character and nature in their physical context where the absence of conventional planning ameliorating treatments (eg the provision of buffer areas or transition zones) only highlights the need for acute sensitivity in the evaluation process. This "neighbourliness" principle is deduced from the express provisions of s90(1) of the EP&A Act which deal specifically with relationships between adjoining or neighbouring lands and developments: vide paras (b), (d), (e), (h) and (o).”
60. In the 1993 judgment, I found that “the principle of neighbourliness is best achieved in the present case by the grant of development consent subject to appropriate conditions specially designed to reinforce that principle” (pp 12/13).
61. In amplification of that finding, I said at p16:
To summarise, my reasoning, deduced from the foregoing propositions and findings, is that, I have concluded that the impact of the operations of Leichhardt Market Place (i) with its expanded trading hours; (ii) with the physical improvements to the existing building design; and (iii) with appropriate and relevant development conditions in place will result in an improved environmental relationship between the Leichhardt Market Place and neighbouring residences compared with the relationship that (i) presently exists or (ii) is likely to exist if current development conditions (ie those applicable to the 1989 development consent) continue to apply or (iii) is likely to exist under the conditions imposed by the Council in its 1993 development consent.”
62. If I were to apply that line of reasoning to the facts established by the evidence in the present case, I would not conclude that the proposed extended trading hours would result in an improved environmental relationship between the Market Place and neighbouring environs compared with the relationship that presently exists as a consequence of the grant of the 1993 development consent. This is because of my finding that the proposed extended trading hours will have a significant and unreasonable adverse environmental impact on nearby residences.
63. That finding is not displaced by the Applicant’s proposed Environmental Management Plan, even if it were to operate with maximum efficacy (far outperforming the proven level of the Applicant’s non-compliance with a number of conditions of the 1993 development consent). I would not wish to be taken to be discouraging the Applicant from implementing its Environmental Management Plan. On the contrary, there is much to be said for its early implementation to redress past non-compliances with operational conditions of the 1993 development consent and to establish its credibility with the Council and the local residential community. My point is simply this (as was aptly made by Mr Threlfo and the resident objectors)—that it lies ill in the Applicant’s mouth to give assurances based upon its proposed Environmental Management Plan to control or mitigate adverse environmental impacts of the operation of Market Place (i.e. both existing and predicted future impacts) when that Applicant is shown to be in current default of its existing obligations by virtue of the conditions imposed on the 1993 development consent. More importantly, faced with such circumstances, the Council, the local residents and in the present context, this Court, would need to be persuaded that confidence could be reliably reposed in the assurances contained in the Environmental Management Plan and in the efficacy of the proposed mitigating measures. I have not been so persuaded by the Applicant’s case.
64. Despite my findings based upon the application to the present facts of the principle of neighbourliness, there remains to be considered one further avenue of potential success for the Applicant’s appeal based upon Mr Hirst’s and Mr Ingham’s common opinion that the wider public interest involved in the allowance of extended trading hours as proposed (involving (i) the wider shopping choices for the wider community (including the local community) (ii) the maintenance of common trading hours for shopping centres to maintain fair competition inter se; and (iii) the preservation of the continuing viability of Market Place) outweighs the narrower sectionalised public interest in protecting the vestigial residential amenity of nearby residents. This involves a consideration of “the promotion of the greater common good”, as referred to by Mr Ingham.
65. The possible application of this approach to the exercise of planning discretion in determining a development application was acknowledged, but not utilised, in my 1993 judgment when I said at p18:
I have arrived at my conclusion on a slightly different basis from that advanced by the expert testimony adduced by the Applicant, which undertook the balancing task (or adjustment of competing interests task) by preferring the wider public interest (the benefits of extended shopping hours to customers, both local and non-local, the benefits of competitive prices, fair competition with other shopping centres open for trade on Sunday and the emerging trends in the retail trade oriented to customer needs) to the narrower public interest (protecting or enhancing the residential amenity of a few residents living most proximately to Leichhardt Market Place).
If may be accepted that planning decisions like many public decisions involve weighing competing public interests and that sometimes in that balancing process it is decided that the wider interest (in the sense of that serving the greater numbers) is to prevail. It may be that there is some scope for the application of that principle or that approach in the present case. However, in the present case (perhaps fortunately) I have not had to apply that approach, because I am satisfied, for the reasons given, that the result of granting development consent subject to the conditions I propose, will improve the impact of Leichhardt Market Place on neighbouring residents. Accordingly I do not see their interest as having to be sacrificed in promoting of the wider public good. Indeed had I been confronted by such a choice in the present case, I doubt whether I would have required such a sacrifice.”
66. In the present case, it is necessary for me to consider whether the Applicant has established a case for preferring what it claims to be the wider public interest involving the greater common good over the public interest that the Council’s case has sought to vindicate, namely the protection of the vestigial residential amenity of nearby residents of Market Place.
67. In this respect, I must firstly record my findings on the evidence adduced concerning the suggested wider public interest.
68. Firstly, Market Place already trades for extended hours. Whatever may be the benefits of shopping for an extra one hour Mondays to Fridays, an extra two hours on Saturdays and on five public holidays, they have not been proven.
69 Secondly, there is already available to the Market Place trade area shopping centres that trade for more extended hours than does Market Place, namely Broadway and the soon to be opened Norton Street. Additionally, there are other available shopping centres beyond Leichhardt Municipality in close proximity e.g. Marrickville “Metro”.
70. Thirdly, there has been no evidence that customers of Market Place will suffer a loss of competitive prices if Market Place is not permitted to trade as extensively as some of its nearby competitors.
71. Fourthly, I accept that the leading traders in Market Place (Franklins, Woolworths and Target) may all perceive their trade to be disadvantaged in comparison with competitors trading at other shopping centres which have more extensive shopping hours. However, I infer that at least some of that competition is with other Franklins, Woolworths and Target stores, which inevitably casts a different complexion on the issue, and extent, of unfair competition.
72. Fifthly, I have not been satisfied by the paucity of evidence adduced by the Applicant that the viability of Market Place will be materially jeopardised if it is not permitted to trade for the extended hours proposed. I accept that belatedly at the hearing the Applicant tendered figures showing hourly customer counts of Market Place since 1995 (Exhibit 12) and that these figures show a 10% decline from some 5 million customers annually for 1995 and 1996 to 4.87 million in 1997 and to 4.41 million in 1998.
73. However, except for the raw figures, the Court did not have the benefit of any detailed analysis of the figures, or any verification of them. It may be that the perceptible decline in overall customers during the past two years reflects the existence of many other Franklins “Big Fresh” stores in Sydney (Market Place having been the first such store in NSW).
74. Be that as it may, in the absence of more cogent evidence, I am not prepared to find that the viability of Market Place is in jeopardy without the benefit of permission for the extended trading hours as proposed.
75. In so concluding, I am prepared to accept the importance in the retail trade of the concept of “shopper loyalty” referred to by both Mr Hirst and Mr Ingham. However, I have not been persuaded that the concept would itself be jeopardised if Market Place is not permitted to trade for the extended hours it seeks.
76. Having regard to these particular findings, the Applicant has not, in my judgment, established that there is truly at stake in these proceedings a wider public interest, such as it has asserted.
77. Contrasted with the nebulous qualities of the asserted wider public interest is the clearly demonstrated public interest in seeking to protect the vestigial residential amenity of nearby residents to Market Place from further adverse environmental impacts likely to be caused by the proposed extended trading hours.
78. In my judgment, on the proven facts of the present case in weighing the suggested competing public interests, I am firmly of the opinion that the public interest in protecting the residential amenity of residents nearby Market Place is to be preferred, both as a matter of the comparative weight of the competing public interests and as a matter of overall fairness to the respective beneficiaries of the competing public interests.
79. The foregoing discussion of the planning merits contains my evaluation of the relevant considerations required by s.90(1) of the EP&A Act to be taken into account in determining the Applicant’s development application.
80. Conformably to the manner in which the competing cases have been presented, that evaluation has involved an application of the so called “principle of neighbourliness” and an adjudication upon the competing public interests said to be raised by the case.
81. However, to avoid any possibility of misunderstanding as to how I have exercised the relevant statutory planning discretion in the present case, I should say very plainly that my decision is the direct result of my evaluation, and application to my factual findings, of the relevant statutory considerations pursuant to s.90(1) of the EP&A Act. So understood, that evaluation is to the effect (i) that the proposed development is likely to involve an unacceptable adverse environmental impact on the residential amenity of nearby residents to Market Place which impact cannot be adequately mitigated; and (ii) that the public interest of protecting that residential amenity outweighs the suggested wider public interest of allowing more extended trading hours of Market Place.
F. CONCLUSIONS AND ORDERS
82. For all the foregoing reasons, I am of the opinion that the appeal should fail and that development consent should be refused.
83. Accordingly, I make the following orders:
1. Appeal be dismissed.
2. Development consent be refused.
3. Exhibits be returned.
4. No order as to costs.I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.
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