Twin Towns Services Club Ltd v Tweed Shire Council

[2021] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:

Twin Towns Services Club Ltd v Tweed Shire Council [2021] NSWLEC 1495

Hearing dates:

9-12 August 2021

Date of orders:

30 August 2021

Decision date:

30 August 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

Proceedings 2020/295542

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No 20/0246 for removal of existing bowling greens and children’s outdoor play area, subdivision of the site into two lots, and construction of two supermarkets and retail spaces, including carparking, on Lot 1, is refused.

(3) The exhibits, other than Exhibits 1, 2, A and B, are returned.

Proceedings 2020/295523

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No 20/0232 for alterations and addition to the Club Banora building on Lot 2, including alterations to the existing Club Banora car park and access arrangements from Leisure Drive, is refused.

(3) The exhibits, other than Exhibits 1, 2, A and B, are returned.

Catchwords:

DEVELOPMENT APPLICATION – subdivision into two lots – construction of a retail development on one lot and alterations and additions to an existing club – demand for additional retail facilities and impact on the viability of existing retail centres – inadequate site analysis – form of the retail development proposal is inconsistent with the site specific planning and design principles

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 s 34

Tweed Local Environmental Plan 2014 cll 2.6, 4.3, 4.4

Texts Cited:

Tweed Shire Development Control Plan 2008 Chapter B28

Category:

Principal judgment

Parties:

Proceedings 2020/295542
Twin Towns Services Club Ltd (Applicant)
Tweed Shire Council (Respondent)

Proceedings 2020/295523
Twin Towns Services Club Ltd (Applicant)
Tweed Shire Council (Respondent)

Representation:

Proceedings 2020/295542
Counsel:
J Lazarus SC (Applicant)
A Pickles SC (Respondent)

Solicitors:
Bolster & Co Solicitors (Applicant)
Bartier Perry Lawyers (Respondent)

Proceedings 2020/295523
Counsel:
J Lazarus SC (Applicant)
A Pickles SC (Respondent)

Solicitors:
Bolster & Co Solicitors (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2020/295523;
2020/295542

Publication restriction:

No

Judgment

1. COMMISSIONER: These are two appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of two development applications for subdivision, building works and uses, at Club Banora, Leisure Drive, Banora Point (Lot 2 DP 1040576) (the site) by Tweed Shire Council (the Council). Development Application No 20/0246 is for removal of the existing bowling greens and children’s outdoor play area, the subdivision of the site into two lots, Lots 1 and 2, and construction of two supermarkets and retail spaces, including carparking, on Lot 1 (the retail proposal) (File number 2020/295542). Development Application No 20/0232 is for alterations and addition to the Club Banora building on Lot 2, including alterations to the existing Club Banora car park and access arrangements from Leisure Drive (the Club Banora proposal) (File number 2020/295523).

2. The appeals were subject to conciliation on 19 March 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference and I viewed the site, in the company of the parties and their experts, during the afternoon of the day prior to the conciliation conference. I heard from objectors during the site view. As agreement was not reached during the conciliation conference, it was terminated on 19 March 2021, pursuant to s 34(4) of the LEC Act.

3. The hearing was held via MS Teams.

Conduct of the hearing

4. On the third day of the hearing, the applicant brought by notice of motion an application for the vacation of the final day of the hearing and for an adjournment of 6-8 weeks to allow the applicant’s acoustic expert to properly respond to the Council’s acoustic contention, because the response required further monitoring, assessment and analysis. The Council opposed the application. In support of their positions, the applicant submitted that an adjournment was in the interest of justice, citing the late raising of an acoustic contention in both matters, pursuant to leave granted by the Court for the amendment of the Statement of Facts and Contentions on 23 July 2021 and the late filing of the acoustic experts’ joint report on 10 August 2021; and the Council cited the late amendment of the application for which leave was granted on 6 July 2021 and which, on the Council’s case, gave rise to new acoustic impacts.

5. The parties agreed to the issues between them being determined but for the acoustic contentions, and, in the event the issues are determined in the applicant’s favour, then a further day being listed towards the end of the year for hearing on the acoustic contentions and any incidental issues flowing from the acoustic contentions. The agreement of the parties on this course obviated the need for a determination of the application for an adjournment of the hearing.

Issues

6. The Council’s contention regarding the Club Banora proposal is that the acoustic report prepared as part of the application is inadequate and fails to accurately identify noise emissions from the proposed development.

7. The Council’s contentions regarding the retail proposal can be summarised as:

• The applicant has not adequately demonstrated the demand for the additional floor space proposed, or that the proposal will not detrimentally impact on the viability of existing retail facilities or centres, including Banora Shopping Village (to which the proposal is an extension) and retail facilities in Tweed Heads South. The assumed Terranora population growth relied upon by the applicant is unrealistic and does not reflect the actual projected growth;

• The proposal fails to deliver the desired urban design objectives or principles for the Club Banora site set out in Section B28 of the Tweed Shire Development Control Plan 2008 (TDCP). The proposal will lead to unreasonable amenity impacts on neighbouring residential properties. The proposal lacks a well-designed master plan and its absence leads to poor built form relationships, a car dominated environment and a non-existing sense of place. The proposal does not promote cohesion between the site and the adjoining Banora Shopping Village;

• The proposal is not in the public interest on the basis of objections received during the notification of the application;

• The acoustic report prepared as part of the application is inadequate and fails to accurately identify noise emissions from the proposed development.

The site and its context

8. The site is on the southern side of Leisure Drive and has an area of 60.1 hectares (ha).

9. Leisure Drive is the main east-west connector route through the surrounding area connecting to Darlington Drive to the east, which has direct access to the Pacific Highway and to Fraser Drive to the west. The site is located between the Leisure Drive/Darlington Drive intersection to the east and Leisure Drive/Darlington Drive/Greenway Drive to the west.

10. The site contains an artificial lake, an 18 hole golf course, a licensed club with a gross floor area (GFA) of approximately 7,000sqm, four bowling greens, tennis courts, a heated Olympic sized pool and wading pool, and approximately 700 on-site car parking spaces.

11. The site is low lying, and 82.4% of the area of the site is affected by the 1 in 100 year flood event. For large storm events the golf course provides stormwater storage for the Banora Point area.

12. The majority of the site lies within the 20-25 Australian Noise Exposure Forecast (ANEF) zone associated with the Gold Coast Airport at Coolangatta.

13. The site includes a drainage easement running north-south close to the eastern boundary.

14. There is a small parcel of Council owned operational land where Sewer Pumping Station SPS3019 is located to the north-east of the proposed retail site. The sewer pumping station has a frontage to Leisure Drive and access to this area is currently via the Club Banora site.

Figure 1 The site

15. Banora Shopping Village, currently anchored by a Coles supermarket, is to the east of the site, and includes a number of speciality shops such as a chemist, a newsagency, an optometrist, a florist, a hairdresser and two beauty salons. The existing Banora Shopping Village has a floor area of 4,416m² and the Coles supermarket has a floor area of 2,012m². There is currently before the Council an application for alterations and additions to the Banora Shopping Village to increase the GFA to 5,450m², including increasing the floor area of the supermarket to a full-line supermarket of 3,396m².

16. There are residential dwellings, Winders Lodge Retirement Village, Banora Point Retirement Village and St James Primary School on the northern side of Leisure Drive.

17. There are residential dwellings, Darlington Retirement Community and Banora Point High School to the west of the site.

Background and the proposed development

18. The retail proposal includes the following:

• Removal of existing bowling greens and children’s outdoor play area;

• Lot 1 with an area of 25,850m², a frontage to Leisure Drive of 147.37m;

• Lot 2 with an area of 57.515 ha, a frontage to Leisure Drive of 169.94m, incorporating the existing Club Banora facilities;

• Construction of a full-line supermarket in the south-eastern portion of Lot 1 with a floor area of 3,600m² and three retail spaces with areas of 404m², 150m² and 230m² and an amenities block, a click and collect facility and a loading dock;

• Construction of a smaller supermarket in the north-western part of Lot 1 with a floor area of 1,740m², and a retail space with an area of 530m² and a loading dock;

• Construction of an at-grade carpark with 327 spaces on Lot 1 including accessible spaces and rationalisation of the existing car park on proposed Lot 2 for Club Banora;

• Two site accesses from Leisure Drive;

• Landscaping;

• Subdivision works including provision of separate sewer, water, power and communications connections to each proposed lot, construction of access driveways, minor earthworks and drainage works;

• Erection of signage;

• Operation of the retail component between the hours of 7.00am and 9.00pm, 7 days per week; and

• Service and deliveries limited to 7.00am to 5.00pm, Monday to Saturday.

19. The retail proposal includes an offer of a planning agreement provided by the applicant to the Council (Ex P) to fund the provision of an additional northern approach lane and southern approach lane up to a cost of $250,000 and for the final amount of the contribution to be indexed in accordance with the construction cost index of the applicable contributions plan.

20. The distance between the proposed smaller supermarket and the Banora Shopping Village entry, through the carpark, is 151m; and the distance between the proposed full-line supermarket and the Banora Shopping Village entry, also through the carpark, is 148m (Ex O, tab 5, map 1A).

Figure 2 proposed retail site and Club Banora site

21. The Club Banora proposal includes the following:

• Provision of a new playground area;

• Construction of undercover bowls including filling in part of the existing lake;

• Car parking spaces between the tennis courts and swimming pool and at the driving range;

• Widening the existing maintenance road;

• Signage; and

• A change of use for the first floor of the Club building to storage ancillary to the ground floor registered club use.

22. The applicant submitted that development consent is not sought for the Club Banora proposal if the retail proposal is not approved.

Planning framework

23. The Club Banora site is zoned RE2 Private Recreation and the retail site is zoned B2 Local Centres pursuant to the Tweed Local Environmental Plan 2014 (LEP 2014). Retail premises are an innominate permissible use with consent in the B2 zone because they are not specified in items 2 or 4 of the land use table.

24. The objectives of the RE2 zone, to which regard must be had, are:

• To enable land to be used for private open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

25. The relevant objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

26. The adjoining Banora Shopping Village is zoned B2 Local Centres.

Figure 3 Land zoning map of LEP 2014 extract

27. LEP 2014 includes, as an aim of the Plan, at cl 1.2(2)(b), “to encourage a sustainable local economy and small business, employment, agriculture, affordable housing, recreational, arts, social, cultural, tourism and sustainable industry opportunities appropriate to Tweed”.

28. Development consent is required for subdivision, pursuant to cl 2.6 of LEP 2014.

29. The existing Club Banora building exceeds the height of buildings development standard of 10m (cl 4.3 and Height of Buildings Map Sheet HOB_022 of LEP 2014). The applicant provided a written request pursuant to cl 4.6 of LEP 2014. The Council did not raise an issue regarding the contravention of the height of buildings development standard. The Banora Shopping Village site has a height of buildings development standard of 13.6m.

30. There is no floor space ratio (FSR) development standard for the site (cl 4.4 and Floor Space Ratio Map Sheet FSR_022 of LEP 2014). The Banora Shopping Village site has a FSR development standard of 2:1.

31. Chapter B28 of the TDCP applies to the site at 1.1. of TDCP is a site specific section applying to Club Banora. Chapter B28 includes the following introduction:

“The Club Banora site has the opportunity to provide a well articulated and active frontage to Leisure Drive and make strong connections with the adjoining Banora Point Shopping Village and include a series of public domain and landscape elements to improve the overall visual and experiential amenity. Given the highly walkable surrounding residential catchment, access to the site as well as access across the site connecting with the existing retail uses to the east is a high priority. Collectively these two sites will form the Banora local centre precinct.

While the ultimate objective is for integration between the subject site and the existing adjoining retail development, it is acknowledged that this integration may not occur concurrently. Notwithstanding this, it is critical that site design measures to facilitate this integration by way of active edges, physical pedestrian paths, landscape, shared open space and vehicular connections are considered at the early stages of the planning and design process. This will assist adjoining landowners understand how integration could occur and commence planning for adjustments consistent with the overall site planning intention, thereby facilitating the creation of a more holistic integrated retail centre for Banora Point.”

32. The objectives of chapter B28 are as follows:

“O1. To achieve an appropriate scale of retail development in the context of the Banora Point catchment area and Tweed’s retail hierarchy.

O2. To achieve integrated site planning and urban design outcomes by facilitating high quality business, retail and public domain land uses that recognise the contextual relationship of the site with the surrounding area by:

i. Drawing on best practice site appropriate urban design principles to effectively integrate the development of the site within its context.

ii. Providing a sense of place and high quality retail and business environments which include well scaled building forms, strong connectivity to and across the site, co-ordinated car parking and vehicular movement and provision of public domain and outdoor amenity spaces for site users.

iii. To ensure that future development of the site is designed to integrate contextual and climatically appropriate passive design principles.”

33. The planning and design principles of chapter B28 are as follows:

“2.1. Floor area of retail development

P1. Provides compatible scale and range of retail services available to the Banora Point catchment area consistent with Council’s adopted retail principles.

2.2. Site Planning and Integration

P2. Encourage integration between the subject site and the Banora Point Shopping Village by way of active edges where practical, connecting pedestrian paths, public domain and landscaping as well as vehicular connections linking car parking areas.

P3. Provide active edges by avoiding long featureless elevations, encouraging articulated shop fronts, awnings, pedestrian access and landscaping particularly to Leisure Drive, adjoining Banora Point Shopping Village and along internal pedestrian circulation routes and public domain areas.

P4. Design car parking areas as to not dominate prominent street edges including Leisure Drive. Large car parking areas dominating street edges generally results in poor pedestrian and visual amenity.

P5. Co-ordinate connectivity to and across the site for pedestrians, cyclists, mobility scooters and motorists with a focus on accessibility and universal design. Where possible separate pedestrian and vehicular movement and co-locate car parking areas.

2.3. Building Design

P6. Encourage high quality building design which recognises the subtropical climatic context by applying passive design principles and use of a mix of appropriate building materials.

P7. Design elevations which address public domain and street interfaces to encourage an active edge, diversity of use and building form. Single material long unarticulated elevations are unacceptable.

P8. Sleeve larger floor plate development, such as supermarkets with smaller retail units and uses that typically have more active frontages and provide a greater sense of pedestrian scale.

2.4. Public Domain

P9. Create a focal point for the community by way of a pedestrian orientated public domain with a preference for that space to directly adjoin Leisure Drive.

P10. To provide quality landscaping appropriate to the nature and scale of the development enhancing the appearance and amenity of development.

P11. Maximise solar orientation to public areas by ensuring an effective balance between natural light and shade (trees and awnings).”

Figure 4 The core urban design principle diagrams, chapter B28 of TDCP

34. The controls – general of chapter B28 are as follows:

“C1. A site analysis, documenting site context constraints and opportunities is required for development applications involving the development of a retail centre demonstrating how the proposed development responds to and integrates with the site context, adjoining land uses and other opportunities and constraints.

C2. Development consent must not be granted to development for the purpose of retail premises in excess of 5000 square metres GFA unless an Economic Impact Assessment has been completed addressing Council’s Retail Principles and can justify a variation to the provision.

C3. All development applications involving the development of a retail centre/ buildings are to submit a Statement of Design Intent and relevant documentation and diagrams to supplement the site analysis. The statement of design intent should address each of the Planning and Design Principles as they relate to the site, building, public domain and landscape design.

C4. All development applications involving the development of a retail centre/ buildings are to submit a landscape/public domain plan making provision for appropriate public open space, landscaping areas, deep soil zones and buffers. Any proposed removal of trees or vegetation is to be identified on the landscaping plan.”

35. The “Additional advice” of chapter B28 includes seven retail principles, as follows:

“1. The character of existing towns and villages and the retail facilities they already have be protected.

2. Where appropriate, Council will support the incremental expansion of existing retail centres in such a way as not to threaten or fracture those existing centres, rather than building new ones.

3. Reinforce Tweed Heads south as the major district retail centre by encouraging the expansion and when Tweed’s population demands that increased range and level of shopping.

4. Maintain and wherever possible enhance the special appeal of the retail centre of Murwillumbah and those village centres of similar style.

5. Limit the scale of new large scale retail centres in the coastal region to a level which caters for the majority of chore type shopping needs. This concept to reflect the need to reduce fuel consumption and to support sustainability within each centre through discouraging vehicle use and encouraging walking and cycling.

6. Council does not support the establishment of another district retail shopping centre.

7. The retail concepts in these recommendations form the basis of locality plans in the Shire and any retail development applications which are submitted in the interim of these locality plans being prepared and approved by Council be assessed so that the above retail strategies are supported and not compromised.”

Public submissions

36. Two objectors gave evidence via MS Teams at the commencement of the hearing on behalf of the Banora Shopping Village. Their concerns can be summarised as:

• It is impossible to fully integrate the proposal and the Banora Shopping Village due to an easement which runs north to south on the Banora Shopping Village site adjacent to the shared boundary;

• The economic reports submitted as part of the application rely on outdated information regarding the Banora Shopping Village; and

• The proposal does not demonstrate how the car park will function in relation to the car park of the Banora Shopping Village.

Expert evidence

37. The applicant relied on the expert evidence of Darryl Anderson (planning), Nigel Dickson (urban design), Ellis Davies (economic), Steve Brooke (traffic), Robert Handby (engineering) and Mark Enersen (acoustic).

38. The Council relied on the expert evidence of Valerie Conway (planning), Karla Castellanos (urban design), Peter Leyshon (economic), Ray Clark (traffic) and Steven Cooper (acoustic).

39. The economic experts prepared a joint report on the retail proposal (Ex 10 and admitted in a highlighted version as Ex L) and gave oral evidence. The urban design and planning experts prepared a joint report on the retail proposal (Ex 7) and gave oral evidence.

Consideration of the retail proposal

Demand for additional gross floor area proposed and impact on the viability of existing retail facilities

40. Control C2 of chapter B28 of TDCP requires an economic impact assessment addressing Council’s adopted retail principles (which are set out at section 4 of chapter B28) in order to “justify a variation to the provision” of a GFA of 5000m² for retail premises. I accept the applicant’s submission that control C2 triggers a requirement for an economic impact assessment addressing the Council’s retail principles for a retail premises proposal in excess of 5000m² and that it is not a limit on the GFA of a proposal for retail premises.

41. The applicant provided two reports as part of the application to fulfil the requirement for an Economic Impact Assessment (EIA), anEIA dated January 2019 (Ex G, tab E) and a Socio-economic Impact Assessment dated February 2020 (Ex G, tab D).

42. The Council contends that the applicant has not adequately demonstrated that there is a demand for retail floor space on the site in excess of 5000m², nor that the floor space proposed in excess of 5000m² will not impact on the viability of existing retail facilities or centres, including the Banora Shopping Village.

43. I accept the applicant’s submission regarding the construction of “retail centre” in the Council’s retail principles as having an expansive meaning. The “retail centre” includes the entirety of the combined area of the site, the Banora Shopping Village site and the retail on the northern side of Leisure Drive, being the area zoned B2 on the land zoning map (see Figure 3). The proposal is therefore, in the context of the retail principles and particularly the second principle, an expansion of the existing retail facility which includes the Banora Shopping Village. By rezoning the site to B2 Local Centre, the Council has committed to the expansion of the retail centre, in some form, on the site.

44. I accept the agreement of the parties that the fifth retail principle, relating to “new large scale retail centres in the coastal region” does not apply to the proposal because the site is not within the coastal region as defined by the Council’s Retail Strategy (Ex Q, p 13). The applicant submitted that the second sentence of the fifth retail principle is relevant because it articulates the purpose of Council’s desire to provide enough retail within trade areas to meet demand.

45. The experts agreed that the main trade area encompasses the suburbs of Banora Point, Terranora, the western part of Tweed Heads South, as well as the localities of Bungalora, Duroby and Bilambil (Ex L, pars 3.2 and 3.3). The EIA estimated the main trade area population as 23,920 in mid-2018 (Ex G, tab E, p ii). Mr Leyshon noted that Terranora includes an area of 4,000-5,000m² of non-residential GFA, which may include a supermarket of 2,500m², designated as a “village centre” and this retail facility will reduce the residents’ dependency on other retail centres (Ex L, pars 3.4, 3.5 and 3.6). In Mr Anderson’s opinion, the retail centre in this location was unlikely to occur in the foreseeable future given the proximity of Terranora Village Shopping Centre and the Tweed Height Shopping Centre.

46. I do not accept Mr Leyshon’s view that the main trade area would necessarily be oversupplied with supermarkets by 2026 if the retail proposal is approved, for the reasons that follow.

47. The EIA estimated a population growth rate of 1.1% per annum within the main trade area until 2031 to reach a population of 27,560 (Ex G, tab E, p ii and table 2.1). According to the EIA, the population growth within the main trade area will predominately be driven by the significant development planned in Terranora, including an area of land identified as an urban growth area, known as “Area E” known as Altitude Aspire (Ex G, tab E, p 12). The experts disagreed on the likely population growth in the coming years and Mr Leyshon is of the view that the population growth will be more modest, based on projections prepared for the Council which estimated the 2031 population in the trade area as 25,684 (Ex L, par 3.9). The experts agreed that the ABS projections suggest modest growth is occurring in the main trade area, and agreed that the projections were made prior to the COVID-19 pandemic and did not incorporate the boost to resident population as a result of the development of Altitude Aspire. Mr Leyshon noted that in order to achieve the estimated population of 27,560 by 2031, it would require an increase in the volume of dwellings constructed within the trade area compared to the period 2016-2021. I accept Mr Anderson’s evidence that the take-up rate of residential lots in the area has increased significantly over the last year. I accept the agreement of the experts that the population growth in the main trade area will be greater than the ABS projections.

48. According to the EIA and based on the applicant’s estimated population growth, the forecast for total retail spending generated by the main trade area is an increase from $328 million in 2018 to $423 million in 2031 (Ex G, tab E, p 19).

49. To determine the portion of the turnover available within the main trade area that will be spent in supermarkets, the turnover is multiplied by the average percentage of the spend captured by supermarkets in the State. The figure for NSW is 32.7% and for Queensland is 35.25%. The experts disagreed on which figure should be adopted to determine the portion of the turnover that will be spent in supermarkets in the main trade area. According the applicant, the Queensland percentage of the total spend should be adopted because the retail proposal is part of the larger urban area that forms south-east Queensland, and according to Mr Leyshon, the NSW percentage should be adopted, because the retail proposal is in NSW. The experts agreed that the percentage rate was an average for the state and in NSW the figure is dominated by the Sydney data. I accept Mr Davies’ view that all regional areas in NSW are likely to have a higher percentage of supermarket spending because the retail offer in Sydney is more diverse than in regional areas.

50. Mr Leyshon, in his calculations, used the projected volume of supermarket spending in 2026 in the main trade area and determined the resultant demand for supermarket floor space. Mr Leyshon adopted the applicant’s estimated spending capacity for residents of the Banora Point main trade area for 2026 of $381 million (Ex L, par 3.25). He estimated that the demand for supermarket floor space in 2026 would be between 11,866m² and 13,115m².

51. The experts disagreed on the amount of spending per 1m² of net lettable area per annum. Mr Davies used $9,500 which results in a larger supermarket floor area requirement when compared to Mr Leyshon’s $10,500. Mr Leyshon noted that some of the supermarket demand will be directed outside of the trade area. He estimated that on the more generous average sales estimate of $9,500 per 1m² per annum, the existing and proposed supermarkets in the trade area in 2026 would need to retain 93% of the notional demand, leaving only a small percentage of “escape spending” to other retail centres which are a short distance away and offer a wider array of retail services. I accept the applicant’s submission, on the basis of the figures for membership and visits to the club during the first half of this year by members who live outside of Banora Point and Tweed Heads South (Ex K), that the members of Twin Towns visiting Club Banora would very likely augment the population shopping at the retail proposal. This is a unique feature of the retail proposal created by the proximity of the retail proposal to Club Banora and it would counter, to some degree, the escape spending in the main trade area. I accept the applicant’s submission that some of the escape spending will be balanced, not only by visitation to the club’s facilities and patronage of the retail development, but also by “capture spending” from areas outside the main trade area patronising the retail development.

52. The trade area currently has 5,542m² of supermarket floor space, which consists of two supermarkets, neither of which are full-line supermarkets (Coles at Banora Central and Coles at Banora Shopping Village).

53. According to Mr Leyshon, if the addition to the Banora Shopping Village is approved, this would increase to 6,883m² of supermarket floor space in the main trade area. As the development application for alterations and additions to the Banora Shopping Village has not yet been determined, I have disregarded the increase in the supermarket floor space in the main trade area resulting from the application.

54. If the retail proposal is approved, the total supermarket floor space in the trade area would be 10,882m² (the existing supermarket floor area in the trade area of 5,542m² + the retail proposal’s supermarket floor area of 5,340m²). This figure is less than Mr Leyshon’s estimate of the demand for supermarket floor space in the trade area by 2026. The difference between this figure and the range identified by Mr Leyshon makes some allowance for the difference between the experts on the resultant floor area based on the average sales rate per 1m² per annum.

55. I accept the conclusion of the EIA that the estimated population in the trade area by 2026 can support at least two full-line supermarkets and potentially three, and this allows for some escape spending (Ex G, tab E, p 35). The proposal would result in one full-line supermarket and three smaller supermarkets in the main trade area. If the alterations and additions to the Banora Shopping Village are approved, the retail proposal and the adjoining development would result in two full-line supermarkets and two smaller supermarkets in the main trade area. I am satisfied that the retail proposal would not have an unacceptable adverse economic impact on existing retail centres by 2026 because there is sufficient demand for the proposed supermarkets.

56. I am satisfied, on the basis of all of the evidence before me, that the proposal does not threaten or fracture the retail centre that includes the site and it does not undermine Tweed Heads south as the major district retail centre, because there will be sufficient demand in the main trade area by 2026 for the retail proposal.

Urban design contentions

The site analysis is inadequate

57. Control C1 of chapter B28 of TDCP requires a site analysis, documenting site context constraints and opportunities, demonstrating how the proposed development responds to and integrates with the site context, adjoining land uses and other opportunities and constraints.

58. According to Mr Dickson’s evidence, the site analysis for the site consists of a context plan and a site analysis plan (Ex D, DA – 2.001[A] and DA – 2.002[D]). Plan DA – 2.001[A] is a location diagram, indicating the main roads and routes in the vicinity of the site. Plan DA – 2.002[D] is a plan of the proposal and includes vehicular and pedestrian routes and the location of landscaping. The two architectural plans do not adequately identify the constraints and opportunities on the site for the retail proposal, nor do they analyse the planning and design principles and the controls in chapter B28 of TDCP.

59. The purpose of a site analysis plan is to identify the constraints and opportunities of a site prior to the design of the proposal so that the analysis can inform the spatial layout of the proposal. Given the emphasis in chapter B28 on the need to integrate the two sites that make up the B2 zone, this site and the adjoining Banora Shopping Village, the site analysis should have included the footprint of the Banora Shopping Village and the vehicular and pedestrian circulation routes associated with the Banora Shopping Village.

60. Site analysis is an important part of the design process. Identifying and describing the constraints and opportunities of a site for its future development are essential to formulating a site specific design response that exploits the opportunities and responds to and, where appropriate, ameliorates any constraints. A site analysis should carefully examine the natural and built features relating to the site. Opportunities and constraints are mostly tangible: topography, orientation, watercourses and/or drainage, site access, the form and location of surrounding development, an ecological constraint or a natural feature, location of trees and landscape features to be retained, location of services and local facilities; and perceived through the senses: noise, odour, contamination, the direction of prevailing winds and views; but may also be somewhat philosophical: identifying an adequate curtilage for a heritage item, interpreting a feature, or identifying a hierarchy or order in an urban context requiring a decorous response. Opportunities and constraints will be different according to the proposed use and intensity of use for the site. A site analysis must be at an appropriate scale to identify the opportunities and constraints in sufficient detail. A competent site analysis plan will be unique because it identifies and describe the individual conditions of the site and the opportunities for the development of the site. Development proposals need to articulate and demonstrate how the design concept responds to the site’s conditions and its relationship to its context.

61. The site analysis does not identify the physical, environmental and philosophical constraints and opportunities for a retail facility on the site. As the proposal is a substantial addition to this retail centre, the constraints and opportunities generated by the existing Banora Shopping Village are critical to the analysis and a successful outcome.

The site planning and integration with the Banora Shopping Village is contrary to the planning and design principles for the site

62. Traditionally, a B2 Local Centre zone, or shopping precinct, is centred on a main street, where there are shops on both sides of a main street and the business zone may extend beyond the main street to accommodate supermarkets, other commercial uses, and additional parking. Local centres in established areas have evolved over time with many layers of development. A successful local centre is a focal point for the community. This B2 zone, unlike a main street model, is comprised of the properties on the northern and southern side of Leisure Drive near the intersection of Darlington Drive, and the site, which is on one side of a busy road, with a residential development on the opposite side of Leisure Drive. The site specific provisions in chapter B28 of TDCP seek to establish a framework for the retail development so that it contributes to creating an integrated shopping precinct that will become a focal point for the community. A focal point for the community requires establishing, by the manipulation of and interrelationship between form and space, a sense of arrival, a place to meet, hierarchies of movement, and so on. Without a main street model to generate that sense of place, and with the constraint of the existing spatial layout of the Banora Shopping Village, it requires a sophisticated design response on this site to achieve a spatial layout and articulate the space to fulfil the planning and design principles in chapter B28.

63. I accept the applicant’s submission that the diagram ‘Active Street Frontage and adjoining retail interface’, agreed by the parties to be an illustration of P3, does not dictate the location of built form on the site, because Leisure Drive is not the main street of a shopping precinct and so locating built form hard against the street boundary will not achieve a main street model, nor an outcome that is integrated with the adjoining Banora Shopping Village. I agree with the applicant’s position that landscaping along the Leisure Drive edge may be an appropriate interface to the street and that landscaping alone as an interface to the street is not contrary to the planning and design principles of chapter B28. The Banora Shopping Village building is setback from Leisure Drive, with some car parking located between the building and the road. Similarly, the development on the northern side of Leisure Drive, between Winders Place and Darlington Drive, does not create a street wall. The Banora Shopping Village arrangement achieves a version of an activated edge to Leisure Drive because it is legible as a shopping precinct and could generate the form of development on the retail site to achieve an interrelationship between the two developments and an activated interface to Leisure Drive appropriate to the context.

64. I do not accept that the retail proposal has achieved the planning and design principles of chapter B28 of TDCP for the reasons that follow.

65. I accept Ms Castellanos’ evidence that the proposal does not represent a network of connected public and landscaped spaces and is, instead, “two big boxes dispersed among vast uncontained areas of carparking” (Ex 7, par 2.2.3). There is no focal point for the community by way of a pedestrian orientated public domain. The retail proposal lacks a sense of place and the pedestrian network is not legible.

62. I accept Ms Castellanos’ evidence that the car parking area dominates the site when seen from Leisure Drive and this is not sufficiently ameliorated by the proposed boundary landscaping along Leisure Drive, because the view across the site from Leisure Drive extends all the way to the existing Club Banora building and the proposed adjacent full-line supermarket, at the rear of the retail site, and is a sea of car parking. I accept Ms Castellanos’ evidence that there is no feature of the retail proposal that mitigates the openness of the vast area of car parking.

63. The proposal does not integrate the proposed full-line supermarket and the smaller supermarket, because the pedestrian connection between the two buildings is merely a wander through the car park. The two supermarkets and their associated shops are entirely divorced from each other, without any sense of connection, such as a pedestrian axis or arcade. The pedestrian link from the smaller supermarket to the full-line supermarket culminates in an accidental intersection with a shopfront, and it does not align with the entry to the building housing the full-line supermarket to achieve at least a clear visual link between the two buildings to draw shoppers between the two buildings. The distance between the two buildings, and their unrelated orientations, discourages any sense of connection between them. The retail proposal does not achieve hierarchical pedestrian circulation routes across the site to achieve connectivity to and across the site for pedestrians, cyclists and mobility scooters. The proposal fails to separate vehicular and pedestrian routes where possible, because the main east-west pedestrian route is through the car park and crosses many vehicular lanes. The layout of the carpark ignores the pedestrian paths crossing through the carpark. The pedestrian paths are overlaid over the car park layout, instead of creating a hierarchy of movement through the site.

64. The retail proposal ignores the existing Club Banora building. The full-line supermarket building awkwardly extends forward of and wraps around the corner of the Club Banora building and there is no pedestrian connection, or visual cues, between the existing building and the proposed building.

65. I do not accept that the proposal is the first stage of a concept for the future integration of the site and the adjoining Banora Shopping Village. The built form of the retail proposal does not respond to the entry axis of the Banora Shopping Village in any way. The pedestrian axis generated by the entry to the Banora Shopping Village travels through the car park and terminates at a featureless intersection with a perpendicular pedestrian route also through the car park. The spatial layout of the retail proposal is a lost opportunity to create an integrated retail centre in the B2 zone, and it is not the first stage of a vision for a future retail centre which achieves an integrated shopping precinct and a focal point for the community. The retail proposal is two unrelated buildings in each corner of the retail site, without any relationship to the existing Banora Shopping Village. The built form and spatial arrangement of the proposal do not dictate, or even suggest, a future development that would successfully unite movement between the site and the Banora Shopping Village. The retail proposal does not include a powerful idea to work as an organising force over time.

66. I do not accept that the easement on the retail site is fatal to achieving an integrated retail centre in the B2 zone.

67. The retail proposal is inconsistent with the planning and design principles of chapter B28, to achieve integrated site planning and urban design outcomes, by recognising the contextual relationship of the site with the surrounding area. The proposal does not achieve strong connectivity across the site, nor does it coordinate car parking and vehicular movement with the provision of an appropriate public space for shoppers.

68. I am satisfied that the Council’s contention that the retail proposal lacks a well-designed masterplan and its absence leads to poor built form relationships, a car dominated environment and a non-existent sense of place; is made out. The proposal fails to deliver the desired urban design objectives for the retail site set out in chapter B28.

Conclusion

73. The retail proposal is inconsistent with the desired planning and design principles for the Club Banora site set out in chapter B28 of TDCP 2008. The retail proposal lacks a connection with the adjoining Banora Shopping Village. The retail proposal does not achieve a series of public domain and landscape elements that improve the overall visual and experiential amenity of the retail centre.

74. The applicant submitted that development consent is not sought for the Club Banora proposal if the retail proposal is not approved. As the retail proposal is refused, the Club Banora proposal is also refused. I have not considered the jurisdictional pre-conditions to the grant of consent, nor the merits, of the Club Banora proposal.

Orders

Proceedings 2020/295542

75. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 20/0246 for removal of existing bowling greens and children’s outdoor play area, subdivision of the site into two lots, and construction of a supermarket and retail spaces including carparking on proposed Lot 1, is refused.

3. The exhibits, other than Exhibits 1, 2, A and B, are returned.

Proceedings 2020/295523

76. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 20/0232 for alterations and addition to the Club Banora building on proposed Lot 2, including alterations to the existing Club Banora car park and access arrangements from Leisure Drive, is refused.

3. The exhibits, other than Exhibits 1, 2, A and B, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 30 August 2021