Sadig v Hurstville City Council

[2015] NSWLEC 1567

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Sadig v Hurstville City Council [2015] NSWLEC 1567
Hearing dates:	11 December 2015
Date of orders:	11 December 2015
Decision date:	11 December 2015
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	The Court orders by consent: 1. The appeal is allowed. 2. Development consent is granted to DA 2015/0001 for the use of the premises Shop 2, 84D Roberts Avenue, Mortdale (being lot 21 in DP 542051), as a pharmacy, subject to the conditions of consent set out in annexure “A”. 3. The exhibits be returned except A, B and 2.
Catchwords:	Development Application: use of retail premises, existing use rights
Legislation Cited:	Hurstville Local Environmental Plan 2012 Draft State Environmental Planning Policy (Competition) 2010 Development Control Plan No 1
Category:	Principal judgment
Parties:	Diana Sadig (Applicant) Hurstville City Council (Respondent)
Representation:	Solicitors: Mr M. Mentei, Planning Law Solutions (Applicant) Ms V. McGrath, Norton Rose Fulbright Australia (Respondent)
File Number(s):	10700 of 2015

This determination was given extemporaneously

and has been edited prior to publication

Judgment

Background

1. This appeal was lodged pursuant to the s79C of the EPA & Act against the deemed refusal of an application for the fit out of a pharmacy within an existing shopping complex at 84D Roberts Avenue, Mortdale.

2. However, the appeal was subsequently amended so as to apply to the use of the subject premises and leave was granted to increase the number of employees.to four. Following the provision of additional information the parties now agree to consent orders.

3. The Consent Orders hearing was notified to the 2 objectors, together with the details of the time of the view.

The Site

4. The subject site is a retail tenancy (Shop 2) of 83 sq m located within the shopping complex at 84D Roberts Avenue. The overall site has an area of 11, 210 sq m.

5. The complex contains a Woolworths supermarket, a café and a gymnasium/sports centre.

Planning Control

6. The following planning controls apply:

1. Hurstville Local Environmental Plan 2012. The subject site is zoned IN2 – Light Industrial and the proposed development is defined as a “retail remises” which is not permitted in the zone. Notwithstanding this, the subject retail tenancy (shop 2) was approved as part of the whole development approved by Development Consent No 08/DA-411. When the application for the whole development was lodged, the subject site was zoned 4 – Light Industrial under the Hurstville Local Environmental Plan 1994 with shop 2 being a permissible use under the provisions of Hurstville Local Environmental Plan 1994.

2. Draft State Environmental Planning Policy (Competition) 2010

The aims of this policy are to:

1. Promote economic growth and competition, and

2. Remove anti-competitive barriers in environmental planning and assessment.

3. The policy includes criteria to remove anti-competitive barriers to commercial development, being retail premises, business premises, and/or office premises. Basically, the Policy does not allow for a proposed use to be refused consent on the basis that similar uses exist in the vicinity of the subject site. As such the proposed development cannot be determined on the basis that there are other pharmacy uses in the vicinity of the subject site.

4. Development Control Plan No 1 – LGA Wide – Sections 3.1 Car Parking. The approved development requires four hundred and eighteen (418) car spaced to be provided on site for the use of tenants/customers/visitors. This included the use by the proposed pharmacy.

5. Development Control Plan No 1 – LGA Wide – Section 3.3 Access and Mobility. The approved development is required to provide access and facilities for people with a disability in accordance with the relevant legislation to all retail/commercial tenancies of the development. As such the subject tenancy will be provided with and have access to the required facilities for disabled person.

6. Development Control Plan No 1 – LGA Wide – Section 3.4 Crime Prevention Through Environmental Design. The proposed development has been assessed against crime prevention principles and is considered to be acceptable. The proposed development is located within the centre and does not create any additional opportunities for crime.

7. Development Control Plan No 1 – LGA Wide – Section 5.3 Light Industrial Areas.

7. Section 5.3 applies to new industrial developments. The development, the subject of this application relates to a first use of an approved retail area in a new development. The clause of Section 5.3 which may be relevant to this application is Clause 5.3.7.3 Hours of Operation which states that “the hours of operation for industrial activities are between the hours of 7.00am and 5.00pm Mondays to Saturdays inclusive, with no work on Sundays or Public Holidays. For those properties that are not located adjoining or opposite a residential property where the use does not result in heavy machinery work the extended trading house 7.00am to 7.00pm Mondays to Saturdays inclusive with no work on Sundays or Public holidays apply”.

8. In this case however, the proposed 9.00am to 7.00pm (earliest and latest) comply from Monday to Saturday with the zone hours of operation, but not the operation of the business on Sunday. Even so, the proposed use, being a pharmacy is not defined as an “industrial activity” and as such the proposed hours of operation can be considered.

9. Characteristically, pharmacy uses do not create unacceptable noised impacts and the subject site is located wholly within the development where any noise is further suppressed from adjoining developments. The developments adjoining the subject site are not residential and as such, there is no adverse impact to residential developments from the proposed use.

1. Development Control Plan No 1 – LGA Wide – Section 5.8 Advertising and signage.

Assessment

10. The proposal has been subject to a number of Council Planning Officer Reports, principally that in Folio 37-45 in Ex. 1. The assessment details the history of the site development, including:

History

1. 16 December 2015; Development consent 08/Da-411 granted for the construction of a tree (3) story building at 84D Roberts Avenue, Mortdale comprising of a supermarket, a retail bulky goods showroom, a gymnasium (fitness centre) and offices with a three (3) level basement car park. The application has been modified on six (6) occasions.

The approved development included a café (shop 1) with associated “outdoor decking” area, and an adjoining retail use (shop 2, the subject of this application) on the ground level of the development. The floor area of shops 1 and 2 was approximately 193 square meters with the café component being approximately 155 square meters and shop 2 being approximately 38 square meters.

A subsequent approved DA2014/0072 for internal works and use of 1 as a juice bar/café, altered the shop sizes to the current floor layout, being shop 2 at 83 square meters.

Condition 120 of the development consent requires four hundred and eighteen (418) car spaces to be provided on site for the use of all tenants/customers/visitors.

2. 30 January 2014; Development application DA2014/0078 submitted for firs use of shop as pharmacy with internal wall construction/fit-out.

3. 2 April 201; DA2014/0078; Refused at Council meeting as the building was at the time still under construction, and not fit for occupation

4. 8 July 2014; Final Occupation Certificate issued for 84D Roberts Avenue, Mortdale.

5. 5 January 2015; Current DA lodged.

11. The planning officer has consistently recommended conditional approval be granted. However 2 objections were lodged and they were addressed on the following basis.

• Previous Refusal for a Pharmacy on the site

The objectors state that a previous DA for a pharmacy on the same site was refused in a Council meeting (DA2014/0078 – 2 April 2014). The reason for a refusal is that the building at 84D Roberts Avenue had not obtained an Occupation Certificate.

Comment: There was a previous Council determination to refuse a pharmacy use at the site. This does not affect the merits of the current application as the reason for refusal has been overcome and a Final Occupation Certificate has been granted for the site.

• Operation without Consent

• My comment is that this is not a relevant consideration in the subject application.

• Legislation relating to pharmacies

The current unauthorised use is currently operating as Non-PBS Pharmacy and as such does not fulfil the community’s needs. According to the objector, the Australian Community Pharmacy Authority (ACPA) which approves a pharmacy to distribute PBS medication, requires the operator to establish it’s community need as an overriding requirement.

• Comment: The legislation relating to pharmacies is not relevant to the assessment of the development application and cannot be used as a basis for refusing a development application. The provisions of Draft State Environmental Planning Policy (Competition) 2010 apply to the proposed development which specifically does not allow for a proposed use to be refused consent on the basis that similar uses exist in the vicinity of the subject site.

12. Insofar as as retail premises are not permitted in the IN2 – Light Industrial zone under HELP 2012, the application has the benefit of existing use rights.

13. The parties agree that the existing use rights are established in the following basis:

1. The existing use of shop 2 at 84D Roberts Avenue, Mortdale is an existing use under s106(b) of the EP&A Act because:

1. Retail premises are prohibited in land zone IN2 under the current EPI being Hurstville LEP 2012.

2. The prohibition came into force on the commencement of HELP 2012 on 7/12/2012

3. Immediately prior to 7/12/2012 the use of shop 2 at 84D Roberts Avenue was lawful by reason of development consent 08/DA-411 (as amended) issued by Hurstville City Council on 16/12/2009.

4. The use of shop 2 at 84D Roberts Avenue, Mortdale had been carried out for a minimum 1 year of the commencement of LEP 2012 (i.e. by 7/12/2013).

2. (i)   Under s108(3) of the EP&A Act, the EP+A Regulations prevail over the provisions of HELP 2012.

1. (ii) Under cl. 4(1)(a) and (e) of the EP&A Regulations an existing use may be intensified and (if it is a commercial use) be changed to another commercial use that would otherwise be prohibited.

2. Clause 41(2) requires specified matters to be satisfied before approval may be granted under clause 41(1)(e).

3. Council’s expert has assessed application against the matters set out in clause 41(2) of EP&A Regulations and is satisfied that proposed development complies with those matters.

4. Under clause 42 of the EP&A Regulations consent may be granted to the intensification of an existing use provided the matter in clause 42(2) are satisfied. Council’s expert is satisfied with those matters.

Conclusion

14. Having considered the evidence, to which there is no challenge and undertaken a view, I am satisfied that the existing rights have been established and I then rely on the Council assessment report that the applicants merits consent.

Court orders:

15. The Court orders by consent:

1. The appeal is allowed.

2. Development consent is granted to DA 2015/0001 for the use of the premises Shop 2, 84D Roberts Avenue, Mortdale (being lot 21 in DP 542051), as a pharmacy, subject to the conditions of consent set out in annexure “A”.

3. The exhibits be returned except A, B and 2.

R Hussey

Acting Commissioner

10700 of 2015 Hussey (C) (231 KB, pdf)

Amendments

28 January 2016 - Attached Annexure A to judgment

Decision last updated: 28 January 2016