Stockland v Manly Council

[2009] NSWLEC 1145

Land and Environment Court

of New South Wales

CITATION:	Stockland and Anor v Manly Council [2009] NSWLEC 1145
PARTIES:	APPLICANTS Stockland Developments Pty Limited Abigroup Contractors Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	11295-298, 11300-305 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT CONSENT :- 10 related but separate appeals that involve an approved mixed use development - modification of conditions of consent requiring prohibition of plastic bags, non-recyclable or non-biodegradable plastic or foam food and drink containers, the provision of dedicated parking for a licensed club and conditions for stratum and strata subdivisions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	6,7,8,9/04/09
DATE OF JUDGMENT:	15 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson SC SOLICITORS Deacons RESPONDENT Mr J Johnson, barrister SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

15 May 2009

11295-298, 11300-304 of 2008 Stockland Developments Pty Limited v Manly Council

11305 of 2008 Abigroup Contractors Pty Limited v Manly Council

JUDGMENT

1 COMMISSIONER: These are 10 related but separate appeals that involve an approved mixed use development on land bounded by Sydney Road, Condamine Street, Griffiths Street and Woodland Street at Balgowlah. There are separate approvals for different uses and staging. The site has an area of some 20,265 sq m and the approval provides for a Coles supermarket, specialty shops, a licensed Masonic club (the Club), a Vintage Cellars liquor outlet, gymnasium and around 240 residential units. Basement car parking is provided for some 1060 car parking spaces. The proposed development is currently under construction and the retail component is planned to open on 15 June 2009.

The appeals

2 Appeal No 11295 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify conditions ANS 09, ANS 10, ANS 11, ANS 13 and ANS 14 of Development Consent No 314/07. The conditions relate to the approval of the Club and in summary require:

• the provision of 118 dedicated spaces for the Masonic Club (ANS 09),
• the marking, signposting and separation of the car parking spaces from other car parking in the development (ANS 10),
• the provision of details to utilise vouchers for the retail parking area free of charge when the Club car parking exceeds the capacity of the designated car parking spaces (ANS 11),
• the relocation of the proposed loading zone in Lane 34 (ANS 13),
• the provision of a revised traffic impact statement (ANS 14).

3 During the hearing, the parties further considered the proposed loading zone in Lane 34 (ANS 13) to serve the Club and agreed on amendments to the configuration of the loading zone to allow it to remain in Lane 34. Also, the provision of a revised traffic impact statement (ANS 14) was not pressed by the council.

4 Appeal No 11296 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify conditions ANS 35 and ANS 36 of Development Consent No 314/07. The conditions relate to the approval of the Club and in summary require:

• plastic bags not be issued to customers for the purposes of carrying items purchased from the premises (ANS 35) and
• prepared food/drinks shall not be provided to customers in any non-recyclable or non-biodegradable plastic or foam (ANS 36).

5 For the purposes of the judgment, a reference to a plastic bag is a reference to a single use plastic bag of less than 35 microns.

6 Appeal No 11297 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify conditions ANS 44 and ANS 45 of Development Consent No 101/06. The conditions relate to the approval of the Stage 2 of the development (258 dwellings, 44,466 sq m of retail space and 972 car parking spaces) and in summary require:

• plastic bags not be issued to customers for the purposes of carrying items purchased from the premises (ANS 44) and
• prepared food/drinks shall not be provided to customers in any non-recyclable or non-biodegradable plastic or foam (ANS 45).

7 Appeal No 11298 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify condition ANS 117 of Development Consent No 101/06. The condition relates to the need to demonstrate that the retail component of the development is able to achieve a rating equivalent to a 5 star rating in the Green Star pilot rating tool.

8 During the hearing (9 April 2009), the parties agreed on Consent Orders for this appeal and after submissions, the following Orders were made, by consent:

1. The appeal is upheld.
2. Condition ANS 117 of Development Consent No 101/06 dated 31 May 2007 and as modified on 8 July 2008 is modified to read as follows:
(i) the development shall comply with Section J of the BCA.
(ii) Within twelve (12) months of the occupancy of the retail component of the development, Stockland is to:
(a) demonstrate the extent to which the retail component of the development is able to achieve a rating equivalent to a 5 star rating in the Green Star pilot rating tool;
(b) In the event that a rating equivalent to the 5 star rating cannot be achieved then demonstrate that the retail component of the development will achieve a rating equivalent to a 4 star rating in the Green Star pilot rating tool;
In both instances the evidence to be provided to Council shall be in the form of a report prepared by an appropriately qualified consultant.
3. There be no order as to costs.

9 Appeal No 11300 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify condition ANS 12 and ANS 13 of Development Consent No 258/08. The condition relates to the fit-out and use of part of the development as a Coles supermarket and in summary the conditions require:

• plastic bags not be issued to customers for the purposes of carrying items purchased from the premises (ANS 12) and
• prepared food/drinks shall not be provided to customers in any non-recyclable or non biodegradable plastic or foam (ANS 13).

10 Appeal No 11301 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify condition ANS 03 and ANS 04 of Development Consent No 48/08. The condition relates to the fit-out and use of part of the development as a Vintage Cellars liquor outlet and in summary the conditions require:

• plastic bags not be issued to customers for the purposes of carrying items purchased from the premises (ANS 03) and
• prepared food/drinks shall not be provided to customers in any non-recyclable or non biodegradable plastic or foam (ANS 04).

11 Appeal No 11302 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify condition ANS 06, ANS 08, ANS 12, ANS 13 and DA 45 of Development Consent No 55/08. These conditions relate to acoustic conditions for the gymnasium (ANS 06), the validation of the existing acoustic report (ANS 08), noise from mechanical plant and equipment (ANS 12), non- transmission of offensive noise (ANS 13) and materials and finishes (DA 45).

12 The applicant indicated that a Notice of Discontinuance is to be filed for this appeal.

13 Appeal No 11303 of 2008: this is an appeal against the deemed refusal of an application under s 96(1A) to modify condition DA 74 of Development Consent No 93/08. The condition relates to the hours of operation and management of the loading and unloading facilities.

14 On 27 February 2009, the applicant filed a Notice of Discontinuance for this appeal.

15 Appeal No 11304 of 2008: this is an appeal against the deemed refusal of an application under s 78A(1) seeking consent for the strata subdivision of Lot 1 created from a stratum subdivision (Development Consent No 306/08) to provide for 236 lots, including 2 development lots.

16 Appeal No 11305 of 2008: this is an appeal against the deemed refusal of an application for stratum subdivision under s 96(1A) to modify condition ANS 04, ANS 05, DA 259 and DA 260 of Development Consent No 306/08. The conditions relate to:

• the provision of evidence that arrangements for parking for patrons of the Club have been made in accordance with other consents prior to the release of the subdivision certificate (ANS 04),
• the subdivision certificate plans are to include amendments to the access from the Club to the internal loading dock (ANS 05),
• all engineering works are to be completed prior to the issue of a subdivision certificate (DA 259) and
• detailed engineering plans are to be submitted for approval prior to the release of the subdivision certificate/construction certificate (DA 260).

17 For reasons set out later in the judgement (see pars 19 to 31) conditions ANS 04 and ANS 05 can be deleted. Following further discussion between the parties, there was agreement that conditions DA 259 and DA 260 can be deleted and replaced with:

Condition ANS 259
All works as identified in condition 260 are to be completed prior to the occupation of the final stage of the development and the “works as executed” plans provided to Council.

Condition ANS 260

Detailed engineering drawings of those works which give rise to Council having a property right over the site shall be submitted to Council prior to the issue of a subdivision certificate for the purpose of determining whether the works are within the boundaries of easements etc on the stratum plan and whether the terms of the rights being created in the s88B instrument are acceptable to Council.
The issues

18 While there are a number of separate appeals in these proceedings, there are a number of overlapping issues. The issues in all of the appeals can be grouped into the following main areas:

• the allocation and management of parking for the Club,
• the appropriateness of the conditions prohibiting plastic bags and recyclable food and drink containers, and
• the approval of the strata and stratum subdivision applications.
The Masonic Club parking
The applicant’s position

19 Mr David Kettle, a town planner and Mr Tim Rogers, a traffic engineer provided evidence for the applicant. Mr Kettle states that there are no town planning reasons why one component of the development (the Club) should be provided with free parking over the other uses the development. The Club has come to an arrangement with the operator of the centre (Stockland) regarding a validation system of parking tickets for Club patrons. This arrangement provides a process that enables the validation of the Club patron’s car park tickets so that those patrons can exit the car park without paying the fee that would otherwise apply. This ticket validation procedure will apply to a maximum of 85 validations per day after 6:30 p.m. (except on Thursday evenings where 50 validations will only be available). The validation process will not be available for staff, will be reviewed annually between the Club and Stockland, and remain in force as long as the Club is in occupancy.

20 Mr Kettle further states that the entire retail car park will be subject to a positive covenant that will allow all members of the public, including members of the Club, to use of the retail car park when the shopping centre and the Club are open for trading. The terms of the positive covenant are such that public access cannot be denied and will continue to apply to any owner or operator of the Club or any other use in the centre.

21 Mr Rogers notes that shared parking is common practice within town centres and major developments. The approach of providing shared parking is a way of maximising the use of parking infrastructure where different land uses have different peak parking times. A well accepted example is the use of car parking in major shopping centres where cinemas are located. During the day, parking is principally used for retail customers, as there is less demand for cinema parking. At night, parking is used by cinema patrons when retail demand is low. Another example is the shared parking within the Manly town centre. During the day, parking is used by retail and commercial customers and recreational visitors and during the evening and night parking is principally used by patrons of hotels, restaurants and clubs. The parking in the centre will be free for the first two hours with the fee increasing over time. This approach is consistent with the four car parks operated by the council within the Manly town centre.

The council’s position

22 Mr Eric Armstrong, a town planner and Mr Siva Prabaka, a traffic engineer provided evidence for the council. Mr Armstrong supports the specific allocation of 88 car parking spaces and a minimum four hour free parking for Club patrons. The location of the spaces on Level 3 and the means of segregating the 88 spaces are shown on Exhibit 26. He states that the council’s conditions ensure that the patrons of the Club have dedicated access to parking. In addition, and in the longer term, any new owner of the Club would be entitled to claim that the spaces were assigned to the Club even though the car park might be in different ownership. In his experience, it is unusual for club patrons to be charged for parking. This would potentially drive patrons away or force patrons to use on-street parking. He rejects the use of the proposed voucher system as it applies only during the evenings, the free period (two hours) is too short and the fees are unreasonable.

23 Mr Prabaka supports the conclusions of Mr Armstrong. He states that there should be free unlimited parking for members of the Club and that properly enforced, the council’s conditions will not leave the scheme open to abuse by people, such as commuters and employees, who would join the Club to gain free unlimited parking,. In his opinion, in a mixed use parking situation where the component uses are operated concurrently (as in this case) parking must be assessed as the sum of the requirement of each component. Should the uses not be operated concurrently, parking provision will be based on which, ever component generates the greatest car parking requirement.

Findings
Should specific spaces be allocated for the Club?

24 There was no disagreement between the experts on the total provision of car parking for the proposed development. While originally suggesting that 118 car parking spaces should be set aside for the Club, Mr Armstrong conceded that 88 car parking spaces should be sufficient based on traffic surveys conducted by Mr Rogers.

25 I am more persuaded by the evidence of Mr Kettle and Mr Rogers on this issue. I agree with Mr Rogers that the approach of shared parking is well accepted and simply represents a commonsense approach to the provision of parking in locations where different land uses operate at different peak times. The Club and the retail facilities at the shopping centre are little different to the example of retailing and cinemas provided by Mr Rogers. In my view, the clear benefits in shared parking will be lost if the 88 spaces nominated by the council experts are quarantined from the remaining car parking. In accepting that the 88 spaces may not always be needed for retail use, there can be little doubt that at peak times (such as Christmas or Easter) the 88 spaces are likely to be utilised by patrons of the centre at times when the Club patrons may not use the full allocation of 88 spaces.

26 While Mr Armstrong may be correct that clubs generally provide free and unlimited time parking for their members; it must be remembered that the Club forms part of a mixed use development. These circumstances are clearly different from a stand-alone club facility. I did not understand there to be any specific requirement in the councils planning controls to suggest that a licensed club should be provided with free and unlimited time parking for members.

27 I also agree with Mr Kettle that the discrete allocation of car parking for the Club validly raises the question of why the Club should be treated any differently to other major tenants in the development, such as the gymnasium.

Whether adequate controls are provided to encourage patrons of the Club to use the car park?

28 On this issue, I also agree with Mr Kettle and Mr Rogers. There can be no dispute that adequate parking will be available for patrons of the Club at the peak operating times as other uses in the centre will not be at their peak operating times and the positive covenant will guarantee access to the centre parking.

29 The principal question is whether the patrons will use the available parking because of the need to pay after two hours. Even if some weight is given to the evidence of Mr Armstrong and Mr Prabaka that patrons are likely to stay longer at the Club than other facilities at the centre, I am satisfied that the proposed voucher system adequately deals with this contingency based on the number of vouchers and the likely demand from the traffic surveys conducted by Mr Rogers. Based on the traffic surveys, the maximum demand for parking for the Club is 149 spaces on Wednesday and Saturday evenings after 6 p.m. In my view, the maximum peak parking demand compares favourably with the maximum of 85 validations available per day after 6:30 p.m. (except Thursdays). Realistically, it could not be said that all 149 vehicles are likely to stay beyond two hours. Importantly, the Club accepts the use of vouchers for member parking.

30 I have also taken into consideration the existing Planning Agreement between Stockland and the council that sets out the terms for the operation of the car park. In summary, the Planning Agreement:

• requires the applicant to make the car park available for use at all times when the retail component is permitted to operate,
• requires the applicant to manage and maintain the car park for that purpose,
• permits the applicant to charge a reasonable fee for the use of the car park by a member of the public, and
• requires the applicant to register on title a covenant which secures the above obligations

31 Mr Rogers also helpfully provides a key principles document of parking management for the retail car park (Balgowlah Village - Parking Management for Retail Car Park – Exhibit C). Clause 4 provides that the Retail Owner is obliged to consult with the council if any material changes are made to fees, opening hours or management of the car park (including car park opening hours).

The prohibition of plastic bags
Preliminary issue – whether modification “minimal environmental impact”

32 Mr Johnson, for the applicant, submits that the modification application was incorrectly submitted under s 96(1A) of the Environmental Planning and Assessment Act 1979. This section deals only for modifications "involving minimal environmental impact". He submits that the impact of plastic bags on the environment, particularly the endangering of the health of wildlife, damage to property through clogged drains and the creation of visual impact, such as litter, could not be seen as "minimal environmental impact". On this basis, the modification applications should be considered under the provisions of s 96(2) and the proceedings adjourned to allow readvertising and public comment.

33 Mr Robson SC, for the applicant, submits that the evidence of their experts states that conditions that ban plastic bags do not necessarily result in an improved environmental outcome because they do not adequately address the life cycle impacts of packaging materials. A total ban on plastic bags is likely to reduce waste landfill and may reduce impacts of litter however it will increase environmental impacts in other parts of the packaging life cycle. Further, Mr Robson notes that the council did not raise any concern over the use of s 96(1A) at the time of receipt of the applications and when the applications were advertised.

34 I agree with Mr Robson that the proposed modifications involve a "minimal environmental impact". I do not accept that the proposed development will generate the additional 1.3 million plastic bags (1 bag for each projected maximum 1.3 million customers) suggested by Mr Johnson. In my understanding, the patrons of the supermarket and the retail shops are not likely to be new patrons, but be made up largely (but not exclusively) of the existing population in the catchment area of the new supermarket. These patrons will potentially change their existing shopping habits because of the convenience of shopping at the proposed shopping centre. The proposed development will, in essence, be a redistribution of existing shopping expenditure in the area.

35 Even if the conditions imposing the ban on plastic bags are removed and some plastic bags find their way into the litter stream, I do not accept that this is likely to be overly significant as not to be classified as "minimal environmental impact" compared against the existing unconstrained sources of litter that exist in the area.

36 Overall, I am satisfied that s 96(1A) is appropriate for the modification applications.

The plastic bag conditions

37 The conditions requiring the prohibition of plastic bags are contained in a number of approvals by the council (Appeal No 11296 of 2008 – condition ANS 35, Appeal No 11297 of 2008 – condition ANS 44, Appeal No 11300 of 2008 – condition ANS 12, and Appeal No 11381 of 2008 – condition ANS 03). The conditions are essentially the same and state:

Plastic bags shall not be issued to customers for the purposes of carrying items purchased from the premises.

The council’s position

38 The council contends that plastic bag usage and disposal is a local issue and the impact is felt locally, whether or not it is also an issue at other levels of government. To the extent that impacts are also experienced beyond the Manly the local government area, it is not unreasonable to regulate the source of those impacts when the source is within the local government area.

39 The use of plastic bags may result in litter, the endangering of the health of wildlife, including marine life and seabirds, damage to property through clogged drains and creation of visual impact. Plastic bags also contaminate waste going to compost and interfere with other waste management streams. The council sees the potential increase in litter as the most significant impact. For these reasons, the council maintains it is reasonable to ban the use of plastic bags. A Plan of Management is not sufficient to satisfactorily address the concerns of the council.

40 The council does not rely on the condition in the development consents but proposes the following alternate condition (Exhibit 25):

Commencing 31 January 2010, plastic bags will not be offered from the subject site.

A plastic bag means a carry bag;
a. the body of which comprises (in whole or in part) polyethylene with a thickness of less than 35 microns; and
b. that includes handles. but does not include:
a. a biodegradable bag certified to Australian Standard AS 4736; or
b. a plastic bag that constitutes, or forms an integral part of, the packaging in which goods are sealed prior to sale.


The applicant's position

41 The applicant states that conditions relating to the prohibition of plastic bags have only been imposed on development applications since 2005. The consequence is that businesses in the Manly local government area that operate under development consent granted prior to 2005 and those located in surrounding local government areas are not subject to similar restrictions. This inequitable situation places the operators of the proposed centre at a competitive disadvantage when compared to existing retailers within the Balgowlah area, the Manly local government area or outside the Manly local government area.

42 The Plan of Management, proposed by the applicant addresses the issue of plastic bags and together with other conditions, removes any undesirable economic impact or competitive disadvantage that would be experienced by the proposed shopping centre and at the same time addresses the concerns raised by the council.

43 The applicant proposes the following alternate condition (Exhibit Z):

Plastic bags' may be used [within the shopping centre / by the supermarket / by the Masonic Club operator / by the liquor shop*], provided that Stockland [and the Masonic Club / and the supermarket / and its retailers*] operate in accordance with the Plan of Management dated April 2009 (as may be amended in accordance with Part 9 of the Plan of Management) which sets out how Stockland and its retailers [and the Masonic Club*] intend to reduce plastic bag usage by increasing usage of alternatives to plastic bags, training staff, educating customers and encouraging recycling of plastic bags.


For the purposes of this condition a plastic bag means:

a. a carry bag, the body of which comprises (in whole or in part) polyethylene with a thickness of less than 35 microns; and
b. that includes handles.
but does not include:
a. a biodegradable bag certified to Australian Standard AS 4736; or
b. a plastic bag that constitutes, or forms an integral part of, the packaging in which goods are sealed prior to sale.
*Note: The 'plastic bag condition' proposed by the Applicant is identical in each consent except that the named user of the relevant area (that is, the shopping centre, liquor shop, the supermarket and Masonic Club) are separately referred to in each consent.

44 Some major points in the Plan of Management (Exhibit R) relied upon by the applicant are:

• the issuing of a minimum of 2000 reusable bags during the first week of opening (Pt 3.8.1)
• the promotion of alternate or reusable bags (Pt 3.10),
• the supermarket will reduce consumption of plastic bags and increase the sale of reusable bags and biodegradable bags annually (Pt 3.12),
• quarterly promotional events to increase customer awareness of the centre's policy to reduce plastic bag consumption (Pt 3.13),
• promote and provide facilities for the return of clean plastic bags (Pt 4),
• provide education to tenants on appropriate packaging and preferred alternative to plastic bags, including annual customer surveys and provide feedback to the council on the Plan of Management (Pt 5),
• specific requirements for the supermarket, including the provision of 6000 reusable bags during the first week of operation and education for customers to encourage alternatives to single use plastic bags (Pt 6),
• provide separate recycling bins for packaging that can be recycled (Pt 7.36)
• the provision of an annual report to the council to include data measuring performance against the performance indicators (Pt 8.42)
• the provision of performance indicators and targets for a range of matters relating to reusable bags and packaging (Appendix 1).
The lay evidence

45 The Court heard from a number of local residents who supported the council’s approach of prohibiting plastic bags. They provided evidence on the extent of litter in the Manly area including plastic bags, particularly around Manly Beach, Manly Cove, Collins Beach and public reserves. Particular emphasis was given to the effect of plastic bags on the fairy penguin colony at Manly Wharf and Federation Point. Observations were made by local residents of plastic bags in the roosting areas for the fairy penguins and fairy penguins affected by plastic bags.

The economic evidence

46 Mr Adrian Hack provided evidence for the council and Mr Gavin Duane provided evidence for the applicant. Mr Hack states that the conditions requiring the removal of plastic bags will not competitively disadvantage the centre as it will still enjoy a strong competitive advantageous position from its opening with the anchor supermarket expecting to trade at least 50% above the metropolitan average. Any loss of trade from the inconvenience of not having plastic bags will still result in the supermarket trading well above average levels. In his opinion, the inconvenience to trade area residents shopping at alternate supermarket outweighs the inconvenience of not having plastic bags. There are also many beneficial impacts from not having plastic bags with consumers reacting positively to environmentally friendly choices.

47 Mr Duane comes to the opposite conclusion. He states that the key tenants will be unacceptably impacted by the conditions prohibiting plastic bags. Alternate bags for carrying items will need to be found and this would involve the manufacture and supply of more expensive bags. When the additional costs are passed on to the consumer, a proportion of customers will shop elsewhere. As all other full-line supermarkets in the surrounding region do not have the same conditions imposed on them, there will be a natural increase in the cost of shopping at the proposed centre. It is not considered an option for the costs to be borne by the retailer as supermarkets operate on low profit margins.

48 Mr Hack and Mr Duane provided a spreadsheet showing the impact on the supermarket profit using a range of turnover forecasts, numbers of customers, number of bags per customer and a range of different shopping bag options. Coles also provided additional details on the estimated cost of providing a range of shopping bags, including the existing plastic bags. These details were provided on a confidential basis.

The operational evidence

49 Ms Jodi Dixon, the Manager of Regulatory Affairs for Coles Supermarkets, provided evidence for the applicant. She is responsible for managing regulatory issues that impact on Coles operations and products at a federal, state and local government level, including plastic bags. The condition prohibiting the use of plastic bags is opposed by Coles for the following reasons:

• a ban of plastic bag should be imposed on a national or state level and be accompanied by government led education campaigns,
• the Manly Council ban is ad hoc and would not be accompanied by necessary education campaigns,
• plastic bag reduction can be achieved effectively through a voluntary Plan of Management,
• alternate bag options should be provided so that customers can make an informed choice,
• a ban on plastic bags would be unnecessary and be an ineffective method of plastic bag management,
• a ban on plastic bags would result in customers deciding to shop at other centres where plastic bags are available, and
• a ban on plastic bags would place Coles at a disadvantage compared to nearby competitors who are not subject to the ban.

50 Mr Andrew Myers, the General Manager NSW Zone 2 for Coles Supermarkets also provided evidence for the applicant. He is responsible for all facets of supermarket operations for 110 stores in NSW and the ACT. While supporting the evidence of Ms Dixon, he further states that the proposed supermarket is planned to have 19 main checkouts, 4 express checkouts and 2 kiosk registers to serve the anticipated 17,000 customers per week in the first year of trading. This equates to approximately 1 customer every 2 seconds and to serve the customers in an efficient manner, store procedures and protocols must be fast, flexible and efficient otherwise shoppers will go elsewhere. Check out design is important in large volume supermarket retailing and any significant change to the removal of goods from the check out (such as the banning of plastic bags) would require detailed investigation and trialling of new check out configurations before implementation.

51 Mr Myers states that there are also logistical problems in supplying alternate bags for just a single store and there is a current lack of alternatives to plastic bags. Cardboard boxes do not provide a viable alternative and paper bags become ineffective when wet. Overall, any alterations to supermarket procedures and design need to be trialled to ensure that they are effective otherwise there is likely to be a customer backlash.

The environmental evidence

52 Expert evidence was provided by Ms Helen Lewis, for the applicant and Mr Eduard McPeake and Mr Ron Wainberg, for the council. The experts prepared a joint report and there was agreement on a number of matters, including:

• the definition of a "plastic bag" - the experts agreed to adopt the definition of "plastic bag" contained in the South Australian PlasticShopping Bags (Waste Avoidance) Act 2008. This definition would exclude biodegradable bags, reusable bags, barrier bags, integral packaging and bags thicker than 35 microns, and
• the definition of "plastic bag" would exclude bags and packaging that is integral to the product or barrier packaging that is essential to protect health and safety should be excluded.

53 Other more general areas of agreement reached by the experts are:

• a Plan of Management would provide for alternatives to plastic bags and recyclable packaging although not to the extent considered acceptable to the council,
• a Plan of Management modified to include key performance indicators, targets, reporting and the opportunity for council to have direct input into the plan is important for the environmental performance of the proposed shopping centre,
• a Plan of Management will not "minimise" potential environmental impacts however it may reduce the existing environmental impacts,
• plastic bags have the potential to endanger the health of wildlife, including marine life and seabirds and create visual impact, such as litter,
• reusable options are better than single use options, but only if they are to be reused multiple times, and
• recyclable or biodegradable packaging is always better for the environment than non-recyclable or non-biodegradable packaging however the choice depends on issues such as geographic location, availability and type of waste management and recycling recovery services and the environmental impact category, which is being considered.

Findings- plastic bags

54 There was no disagreement between any experts that plastic bags are a source of litter and that they are potentially harmful to the environment. The applicant does not oppose a ban on plastic bags but any ban can only be effective at a national or state level, such as the recent South Australian legislation. The question to be answered in these proceedings is not whether a ban on plastic bags is a good environmental initiative (as the answer is clearly yes) but whether the imposition of conditions prohibiting plastic bags is fair and reasonable in the circumstances of this case. In considering the range of evidence provided in these proceedings, I am satisfied that the answer to this question should be answered in the negative for a number of reasons.

The basis for the conditions

55 While there is a general consideration under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 to consider "the likely impacts of that development, including environmental impacts on both the natural and built environments…. in the locality", there are no specific requirements within the council’s planning controls that prohibit plastic bags.

56 Manly Local Environmental Plan 1988 provides no specific requirement and Manly Development Control Plan for the Business Zone 1989 (Amendment 5) provides specific planning and development controls for the Balgowlah Shopping Centre but no reference to the management of waste and particularly the use of plastic bags.

57 Balgowlah Shopping Centre - Urban Designed Controls 1999 refers to the Manly Conservation Strategy (cl 4.5) and identifies certain issues that must be addressed in the preparation of a development application. Relevantly, cl 4.5(v) states:

Encouraging "avoid, reuse, recycle" principles - incorporate waste management area in development for recycling area, worm farms and composting; create "no waste zones".

58 Manly Development Control Plan for Waste Minimisation and Management 2000 has objectives at cl B 5. One relevant objective is to:

minimise overall environmental impacts of waste and foster the principles of ecologically sustainable development (ESD).

59 Manly Council Zero Waste Strategy – A Blueprint for a Cleaner Future (February 2006) states that in assessing the waste implications of development applications for retail outlets, the opportunity should be taken to apply consent conditions minimising waste generation (e.g. re the use of plastic bags for packaging) (cl 6.1 Action 1 - Development Assessment) and developing a strategy aimed at reduced plastic bag usage, with a view to Manly becoming a "plastic bag free zone" (cl 6.1 Action 9 -Waste Management Direction).

60 Manly Council - Manly Plan 2007-2010 has a key strategy "to minimise material entering the waste stream and manage waste. To work towards a zero waste target, consistent with sound sustainability practice” (cl 5.2.2).

61 Manly Council - Litter Avoidance Strategy (August 2003) provides objectives, including identifying strategies to avoid littering (cl 1.3) and states "Council will provide support, where possible, to local initiatives aimed at reducing the number of plastic bags going to landfill" (cl 1.4).

62 Manly Sustainability Strategy; For Today and Future Generation and Surfing the Future – A Vision for the Manly Local Government Area for to 2025 (2006) address the general question of litter reduction and waste minimisation.

63 From these documents, the council planning controls, at best, seek to "minimise" the use of plastic bags. The use of a Plan of Management, in my view, is consistent with the objective of minimising plastic bag use. The council planning controls encourage the preparation of strategies for the ultimate phasing out of plastic bags and other waste management issues however there was no evidence that any strategy was being prepared that would give support to a ban on plastic bags. It could not be reasonably argued that the simple imposition of conditions prohibiting plastic bags at one retail facility could be seen as a strategy.

64 The source of the conditions for the banning of plastic bags and the use of recyclable food containers appears to come from a specific resolution of the council on 21 February 2005 that states that the two conditions in question should be included as part of council standard conditions of development consent for commercial premises. It was suggested by the council that the conditions should be seen as a council "policy". McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 in addressing the role of a development control plan, also addresses the issue of a council policy. He states:

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.

92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
• the extent, if any, of research and public consultation undertaken when creating the policy;
• the time during which the policy has been in force and the extent of any review of its effectiveness;
• the extent to which the policy has been departed from in prior decisions;
• the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

65 If the conditions are considered against those matters set out in Stockland Development, I can comfortably conclude that little weight should be given to the conditions as a council policy. The conditions, as imposed, were seen to be largely unworkable even by the council’s experts who agreed that a number of significant amendments, such as the need for a definition of a plastic bag and the exclusion of barrier bags, were necessary so that the conditions could be properly enforced. There was no evidence to indicate that any research had been undertaken prior to the council resolution of on 21 February 2005 to impose the conditions and as I understand, there has been no public consultation on the conditions. The consistent application of the conditions by the council was also unclear although it was accepted that this was the first major development that contained the conditions. It also could not be said that the conditions are consistent with other policies adopted by the council, given that no other relevant council document imposes a ban of on plastic bags and requires the imposition of recyclable and biodegradable packaging.

Are the supermarket and shops disadvantaged by the council’s conditions?

66 I accept the applicant’s submission that the imposition of the conditions would place the supermarket and shops in the centre at a competitive disadvantage when compared to existing retailers within the Balgowlah area, the Manly local government area or outside the Manly local government area.

67 Mr Hack and Mr Duane sought to quantify the effect that a ban on shopping bags at the supermarket would have on the profit margin of the supermarket. Mr Hack calculated a lesser impact on the profit margin than Mr Duane however the experts agree there would be a negative financial impact on the supermarket. Mr Hack explains that because the supermarket is likely to trade above the metropolitan average then any loss of trade from the inconvenience of not having plastic bags will still result in the supermarket trading well above average levels. Even if Mr Hack is correct, I do not accept that this is the appropriate test in this case. In my view, it would be inappropriate for the Court to determine the merits of a planning appeal on what would be an appropriate profit margin for a private development. In my view, it is sufficient to simply show that the supermarket will be meaningfully disadvantaged financially through the imposition of a ban on plastic bags.

68 I accept there is the potential for the supermarket to suffer a loss of trade through the imposition of the conditions. As the cost of alternate bags is likely to be borne by the consumer (and not absorbed by the supermarket), it follows that some consumers that would normally be expected to use the supermarket may choose to use an alternate supermarket. I also accept that the unavailability of plastic bags may be a reason in itself for reduced patronage because of entrenched shopping habits of some customers although this needs to be balanced against those members of the community who would patronise the supermarket to promote the environmental benefits of reduced plastic bag usage.

69 The evidence of Mr Myers is also not without merit in that that check out design is an important consideration for a supermarket and any significant change to check out design would require detailed investigation and trialling before implementation. The agreed evidence of the experts was that there were no bags that would satisfy the agreed definition of a plastic bag and could be used in the standard checkout design proposed by the supermarket.

70 In finding that the conditions requiring the banning of plastic bags should be deleted, no adverse conclusions should be drawn on the unchallengeable benefit of removing plastic bags from the litter stream and the environment in general. I did not understand there to be any issue over the ultimate banning of plastic bags by any expert in these proceedings. These proceedings essentially dealt with the question of whether it was fair and reasonable to impose the ban on a single supermarket and other retail facilities in a new shopping centre. For the reasons mentioned in the preceding paragraphs I have concluded that it is not fair and reasonable. In coming to this conclusion, it must be noted there are clear benefits that will flow from the applicant’s Plan of Management. While it will be seen by some as an inferior result, there are still many positive environmental outcomes in the Plan of Management that are important in reducing the litter stream and overall environmental impact, not the least is the promotion, education and ongoing monitoring of reduced plastic bag usage.

The food/drink container conditions

71 Conditions requiring the prohibition of non-recyclable or non-biodegradable plastic foam containers are contained on a number of approvals by the council (Appeal No 1296 of 2008 – condition ANS 36, Appeal No 11297 of 2008 – condition ANS 45, Appeal No 11300 of 2008 – condition ANS 13, and Appeal No 11381 of 2008 – condition ANS 04). . The conditions are essentially the same (but with a slight variation to condition ANS 36) and state:

The business shall not provide prepared food/drink is to its customers in any non-recyclable or non-biodegradable plastic foam.

72 Ms Lewis, Mr McPeake and Mr Wainberg prepared a joint report and there was general agreement on the appropriate type of food and drink containers. There was agreement the conditions would exclude bags and packaging that is integral to the product or barrier packaging which is essential to protect health and safety. Also, there was agreement that all food packaging for food and beverages prepared on the premises should be recyclable or biodegradable where such packaging is commercially available and is a functional alternative to other forms of packaging.

73 The applicant proposes the following alternate condition (Exhibit Z):

By June 2010 all takeaway food and beverage packaging used at the premises shall be recyclable packaging or biodegradable packaging. Other forms of packaging may be used until that date.

For the purposes of this condition:


Recyclable packaging is packaging for which collection or drop-off facilities are available to a reasonable proportion of purchasers, potential purchasers or users of the product in the area that the product is sold (Standards Australia, 1999)

Biodegradable packaging is packaging which is able to be broken down by micro-organisms in the presence of oxygen (aerobic) to carbon dioxide, water biomass and mineral salts or any other elements that are present (mineralization). Alternatively, the breakdown of organic substances by micro-organisms without the presence of oxygen (anaerobic) to carbon dioxide, methane, water and biomass (Standards Australia, 2006)

Takeaway food and beverage packaging is packaging used for food and beverages prepared and/or packed on the premises and excludes:
(a) packaging that constitutes, or forms an integral part of, the packaging in which goods are sealed prior to sale; and
(b) barrier packaging which is essential for health and/or food safety (for example cling wrap, bags for barbequed chicken, or packaging to meet food safety requirements.

74 The council does not rely on the condition in the development consents but proposes the following alternate condition (Exhibit 25):

All food and beverages prepared and/or packed onsite will be packaged in recyclable or biodegradable packaging where such packaging is commercially available and is a functional alternative.
This excludes:
- packaging which is integral to the product when it arrives in the store i.e. packed off site
- barrier packaging which is essential for consumer health and safety. (for example cling wrap, bags for barbequed chicken, or packaging essential to meet food safety requirements).

Findings- food/drink containers

75 Like the conditions relating to the prohibition of plastic bags, the council's original condition relating to food and drink containers also changed prior to and during the hearing. There was general agreement on the content of the condition based on the expert joint statement however a significant difference on timing. The council sought the immediate use of recyclable and biodegradable packaging whereas the applicant sought the phasing in of recyclable and biodegradable packaging by June 2010.

76 In balancing whether there should be an immediate use of recyclable and biodegradable packaging or there should be a phasing in period of around 12 months, I am satisfied that a phasing in period is appropriate in the circumstances of this case. In my view, this is not an excessive time to allow those retailers who may need to source other packaging to satisfy the more rigorous requirements for recyclable and biodegradable food and drink packaging.

77 The applicant’s condition also contains greater specifity by providing definitions for recyclable packaging and biodegradable packaging (based on a Standards Australia definition) and take-away food and beverage packaging.

The stratum/strata subdivisions
Background

78 In July 2007, the applicant and the council entered into a Voluntary Planning Agreement that provided for the council to acquire as a "material public benefit" rights affecting some lots in the development, including rights of way, use of the plaza area and public parking on the site. Development Consent No 306/08 was approved on 28 November 2008 (Appeal No 11305 of 2008) and is the stratum subdivision that creates the residential development lot the subject of this appeal (Lot 1). The strata subdivision is a resubdivision of Lot 1 and relates only to the residential component of the development.

79 While there is an appeal against certain conditions of the consent (Appeal No 11305 of 2008), the disputed conditions do not affect the rights to be acquired by the council and following further discussion between the parties there was agreement to amendments to the conditions previously in dispute (see pars 16 and 17).

The council's case

80 Mr David Stray, the council’s Manager Development Assessment, provided evidence for the council. He states that the strata subdivision does not include the rights (or restrictions) acquired by the council through the Voluntary Planning Agreement as the draft strata development contract lodged by the applicant with the development application makes no reference to these restrictions. In his opinion, the terms of the restriction on title need to be finalised as part of the stratum subdivision prior to the assessment of the subsequent strata application. The terms of the restrictions should be lodged with the application in these proceedings in order to finalise the stratum subdivision. Until such time that the stratum subdivision has been determined and the terms of the restriction on title have been finalised, the strata subdivision cannot and should not be determined, as it is premature even though the appeal is technically competent.

The applicant's case

81 Mr David Kettle and Mr Mark Andrew, a surveyor, provided evidence for the applicant. Mr Andrew sets out the procedures for the registration of stratum and strata subdivisions with the Land and Property Information Division (the LPI) of the Department of Lands. He notes that the terms of the restriction on title required by Development Consent No 306/08 were provided to the council on 6 February 2009 in the form of a s 88B Instrument. All easements and restrictions set out in the s 88B Instrument are noted on the title with the details of the s 88B Instrument publicly available. This will form part of the stratum subdivision certificate, and as the council is the consent authority for the subdivision certificate, it can ensure that all of the restrictions are provided and available to prospective purchasers. The subdivision cannot proceed to the LPI for registration without the consent of the council.

82 As the registration of the strata subdivision will necessarily be the last step in the registration process, the terms of the restriction created by the s 88B Instrument, which will have been registered with the stratum subdivision, will be automatically transferred to the common property title created by the strata plan.

The findings

83 There are two principle areas of dispute between the parties. These are:

• whether the stratum subdivision and strata development contract need to include the terms of the restrictions created by the s 88B Instrument, and
• if the stratum subdivision is approved, whether the strata plan can be determined simultaneously with the stratum plan.

84 On the first matter, I agree with Mr Kettle and Mr Andrew. Division 2A of the Strata Schemes (Freehold Development) Act 1973 deals with facilitating the staged development of a parcel of land that is subject to a strata scheme. Section 28A(4) states that the staged development of a parcel will be carried out subject to a strata development contract. Section 28C provides requirements for the form and content of strata development contract and s 28C(2) requires a concept plan and a description of a number of matters. Clause 14 of the Strata Schemes (Freehold Development) Regulation 1973 provides further matters that must be dealt with separately in strata development contracts.

85 I did not understand there to be any disagreement between the parties that the relevant provisions of the Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes (Freehold Development) Regulation 1973 do not require the restrictions in the s 88B Instrument to be included in the strata development contract. As I understand, Mr Stray’s basis for the inclusion of the restrictions in the strata development contract was to facilitate more ready access to the restrictions for prospective purchasers of the residential units in the development. For example, the rights acquired by the council provide for use of the plaza area for community events. In his opinion, the early knowledge of this may affect a prospective purchaser where the unit adjoins the plaza area. While this may be correct, the rights acquired by the council are still fully available to any prospective purchaser through the approval of the strata plan and the reference to the s 88B Instrument. I see no valid reason to replicate this through the strata development contract, particularly when there is no legal obligation to do so.

86 Also, the terms of the strata plan approval fall within the control of the council and without any such approval, the strata subdivision cannot be registered with the LPI and all easements and restrictions on the Certificate of Title for the stratum lot are automatically transferred on to the Common Property Certificate of Title of the strata lot.

87 On the second matter, I also agree with Mr Kettle and Mr Andrew. While there can be no doubt that the stratum subdivision must be approved prior to the approval of the strata subdivision, there is no sensible or practicable reason why both applications should not be considered concurrently as they are so closely related. The need to ensure that the stratum subdivision is approved prior to the strata subdivision should, in my view, be a relatively simple administrative task. It would seem more efficient for both parties that both applications are considered at the same time. Administrative procedures could be put in place that would allow the approval of the strata subdivision within a short period of time following the approval of the stratum subdivision on terms that have been discussed and agreed between the parties during the concurrent consideration of both applications. There is no legal barrier to this occurring providing that the stratum subdivision is approved prior to the strata subdivision.

Directions

88 Because of the number of appeals involved in these proceedings and the amendments that have occurred prior to and during the hearing, I propose to make Directions that the parties provide agreed Short Minutes of Order for each of the appeals based on the findings in the judgment. I also propose that liberty be granted on 48 hours notice if there is any dispute over the preparation of the Short Minutes of Order.

89 For convenience, a summary of my findings are:

Appeal No 11295 of 2008: conditions ANS 09, ANS 10, ANS 11, ANS 13 and ANS 14 of Development Consent No 314/07 are deleted.
Appeal No 11296 of 2008: conditions ANS 35 and ANS 36 of Development Consent No 314/07 are deleted and replaced with the applicant’s alternate conditions (see pars 43 and 56).
Appeal No 11297 of 2008: conditions ANS 44 and ANS 45 of Development Consent No 101/06 are deleted and replaced with the applicant’s alternate conditions (see pars 43 and 56).
Appeal No 11298 of 2008: the deemed refusal of an application under s 96(1A) to modify condition ANS 117 of Development Consent No 101/06 is determined by agreement and Consent Orders (see par 8).
Appeal No 11300 of 2008: conditions ANS 12 and ANS 13 of Development Consent No 258/08 are deleted and replaced with the applicant’s alternate conditions (see pars 43 and 56).
Appeal No 11301 of 2008: conditions ANS 03 and ANS 04 of Development Consent No 48/08 are deleted and replaced with the applicant’s alternate conditions (see pars 43 and 56).
Appeal No 11302 of 2008: the applicant is to file a Notice of Discontinuance for the deemed refusal of an application under s 96(1A) to modify condition ANS 06, ANS 08, ANS 12, ANS 13 and DA 45 of Development Consent No 55/08.
Appeal No 11303 of 2008: no action is required following the filing of a Notice of Discontinuance on 27 February 2009
Appeal No 11304 of 2008: the parties are to file agreed conditions for the strata subdivision of Lot 1 created from a stratum subdivision (Development Consent No 306/08) to provide for 236 lots, including 2 development lots and the administrative procedures for concurrent assessment but consecutive approval of the stratum and strata subdivisions.
Appeal No 11305 of 2008: the parties are to file agreed conditions for the stratum subdivision of Development Consent No 306/08.
_________________
G T Brown
Commissioner of the Court