Toth v Campbelltown City Council

[2004] NSWLEC 289

Land and Environment Court

of New South Wales

CITATION:	Toth v Campbelltown City Council [2004] NSWLEC 289
PARTIES:	APPLILCANT Tim Toth RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10625 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Restricted premises - planning issues - social impact methodology
LEGISLATION CITED:	Environmental Planning and Assessment Act Complying LEP 2003
CASES CITED:
DATES OF HEARING:	02/06/2004
DATE OF JUDGMENT:	06/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Glisson, barrister SOLICITORS Hancocks Solicitors RESPONDENT Mr A Pickles, barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10625 of 2003 Hussey C 9 June 2004

Tim Toth
Applicant

v Campbelltown City Council
Respondent

Judgment

Background

1 . An appeal against council's refusal of a development application for construction of first floor premises, for a restricted premises at 55 Queen Street, Campbelltown, was heard on 13, 14 October and 11, 14 November 2003. The judgment was delivered on 4 February 2004.

2 . Following the lodgement of a s 56A appeal against this decision, on 30 April 2004, the Chief Judge decided to remit the matter for determination in accordance with the law.

3 . The further hearing was undertaken on 2 June 2003. At this hearing it was acknowledged by the parties that the two main issues concern town planning considerations and social impact considerations. However at this hearing no further town planning evidence was submitted.

Social impacts

4 . Additional evidence was presented by Mr F Szuster , a consulting health statistician, in response to Dr Stubbs social impacts surveys. In response to this evidence, these experts undertook a conference, resulting in the joint report (Exhibit 13).

5 . The joint report identified the following matters relative to social impacts surveys for this proposal:

1) Controlling factors/framework: the assessment should relate to s 79 (C)(b) of the EP&A Act and encompass broad social impact/sociological methodology.
2) Locality for sampling: involving a primary zone of the impact <400 m convenient walking distance, and a secondary zone of impact, outside the primary zone and within 1 km.
3) Sensitivity: proposal localities sensitive in terms of distance and access.
4) Methods of sample selection: -sampling method,
- stratified samples, clustering.
5) Demographics.
6) Key informants.
7) Face to face, compared to other methods: alternative drop and collect methods.
8) Experience/qualifications of experts.


6 . Insofar as there is general agreement with a number of the above-mentioned matters, it seems to me that the primary point of disagreement concerns the locality and reliability of the sampling to ascertain community attitudes to the proposal. To illustrate this point, the experts refer to a diagram in Exhibit 13, which shows the subject premises with a primary zone radius of 400 m. Outside this, are three designated "clusters", 1, 2, 3, in the secondary zone.

7 . I understand from the evidence that there is general agreement that the sampling method for the primary zone is acceptable and yields reliable results, because of the census approach. Dr Stubbs has then further sampled cluster 1 and the results generally confirm the attitudinal findings for the primary zone. However Mr Szuster’s challenge is that no survey was undertaken in clusters 2 and 3, which could generate different findings. He also states that more detailed consideration of the local demographics should be included. Accordingly, he considers Dr Stubbs’ findings unreliable because of: selective reporting, basic methodological faults in sound statistical procedures and expansion of inferences that have been made from the findings.

8 . Considering the further evidence, I am satisfied that there is agreement on the reliability of the findings for the primary zone. Insofar as these findings are supported by Dr Stubbs findings in cluster 1, she acknowledges the limitations of the surveys, based on available resources to assess social impacts of the subject nature and scale. Whilst I accept Mr Szusters's evidence that more detailed surveys, possibly conducted in a drop and collect manner, may be more reliable, nevertheless this is unlikely to change the general finding in the primary zone , for community disapproval of the proposed location, in my opinion.

9 . In the ultimate, I consider Dr Stubbs’ approach is reasonable in the circumstances of this case and I am inclined to put greater weight on this, considering her extensive practical experience in social impact survey/analysis in the local area. In this event, Dr Stubbs confirmed her original findings that:

1. the business surveys shows:

(a) the proposal is inappropriately located due to the adjoining retail uses and the thoroughfare for children,
(b) there will be an adverse impact on the atmosphere of the main street,
(c) unacceptable prominence of the first floor location, fronting the main street, and

2. the residential survey shows:

(a) the location of the shop fronting the route for children going to run from school is a significant problem,
(b) there are feelings of discomfort or embarrassment in passing the shop,
(c) the unsatisfactory proximity of the shop to community and services.

10 . In the context that s 79 (C) requires an assessment of the impact of the development in the locality, I consider the scope of Dr Stubbs social impact assessment reasonable. Furthermore, I do not consider it necessary for a more comprehensive survey to cover the demographics of the Campbelltown LGA, which in any case, Dr Stubbs says she took into account.

11 . I also note Mr Szuster's concern about the lack of survey information regarding where the residents can access adult lifestyle material. But the controls appear to accept this demand and intend to allow this use in the industrial zones, in accordance with the LEP amendments, which are imminent and certain according to Mr Pickles submissions.

12 . For these reasons then, I do not consider there was any compelling evidence submitted, which changes my original conclusion that this proposal represents a negative social impact, in the subject location.

13 . However, my overall conclusion to refuse the application, was based on determinative weight being given to the town planning matters. As there is no further evidence in this regard and the social impacts have not significantly changed, in my assessment, I therefore do not consider this application merits consent, as stated for the previous reasons.


Court orders

1 The appeal is dismissed.

2 Development Application No. 1019/2002 for the first floor addition and use as restricted premises at No. 55 Queen Street, Campbelltown, is refused.

_______________
R Hussey
Commissioner of the Court
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