Warriewood Properties Pty Ltd v Pittwater Council
[2010] NSWLEC 215
•22 October 2010
Land and Environment Court
of New South Wales
CITATION: Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215 PARTIES: APPLICANT
Warriewood Properties Pty Ltd
RESPONDENT
Pittwater CouncilFILE NUMBER(S): 10229 of 2010 CORAM: Sheahan J - Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- appeal against refusal of consent - dispute about permissibility of supermarket component of the proposal - "hierarchy" of supermarkets - characterisation of proposed supermarket - "associated community and urban infrastructure" - "neighbourhood shop" LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Pittwater Local Environmental Plan 1993CASES CITED: Australian Lifestyle Corporation v Wingecarribee Shire Council [2008] NSWLEC 284; (2008) 168 LGERA 239
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Grace v Thomas Street Café Pty Ltd and Others [2007] NSWCA 359; (2007) 159 LGERA 57
Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWLEC 99; (2009) 167 LGERA 205
Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152
Maryland Development v Penrith City Council [2001] NSWLEC 135; (2001) 115 LGERA 75
Modog v Baulkham Hills Shire Council [2000] NSWLEC 180; (2000) 109 LGERA 443
Murlan Consulting v Ku-ring-gai Municipal Council [2007] NSWLEC 182
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Webster & Daff v McIntosh (1980) 3 A Crim R 455DATES OF HEARING: 3, 4, 5 and 6 August 2010
DATE OF JUDGMENT:
22 October 2010LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso, SC
SOLICITORS
Harris & CompanyRESPONDENT
Mr P Larkin, with Mr R White
SOLICITORS
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES22 October 2010Sheahan J
JUDGMENT10229 of 2010 WARRIEWOOD PROPERTIES PTY LTD v PITTWATER COUNCIL
Introduction
1 HIS HONOUR: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Pittwater Council (the Council) of Development Application No. N0603/09 for the subdivision of 23B Macpherson Street, Warriewood (the site) into two lots. One lot is to be dedicated to the Council as part of an open space corridor along an existing creek and the other lot is to contain a new retail facility.
2 The court, in the presence of the parties, conducted a site view on the morning of the first day of hearing. The court heard residents’ expressions of support and opposition, and then proceeded to visit nearby supermarkets, and shopping centres.
3 Many of the reservations expressed about the proposal could be resolved by appropriate conditions, to many of which the proponent would agree. However, Council persisted with its contention that the retail facility as proposed is not permissible.
4 I acknowledge the assistance provided by Commissioner Brown in the determination of this matter.
The site and surrounding area
5 The site is Lot 11, Section C in DP 5464. It is generally rectangular in shape, with a frontage to Macpherson Street of 95.605 m, a frontage to Garden Street of 160.22 m and a frontage to Lomandra Way of 103 m. The other lot boundary is generally the centre line of Fern Creek, south west of the site. The site has an area of 1.43 ha.
6 The site is vacant with a gentle cross fall of between 1 m and 2 m from the north-east to the south-east. There is no significant vegetation on the site with the exception of some native and exotic canopy trees in the southern corner of the site, adjacent to Fern Creek.
7 Residential development, consisting of single dwellings, dual occupancies, attached dwellings, housing for aged or people with a disability, and villa style and townhouse developments are the predominant form of development in the area.
8 However, diagonally opposite the site is a large retail plant nursery.
The proposal
9 The proposal provides for the subdivision of the site into two Torrens title lots. Proposed Lot 1 has an area of 2634.5 sq m and comprises a strip of land generally 25 m wide, measured from the centre line of Fern Creek. Lot 1 is to be dedicated to the Council as part of an open space corridor along Fern Creek.
10 Proposed Lot 2 is to contain the remainder of the site and provide for the construction of a retail facility. The retail facility will contain:
- a 2,220 sq m supermarket,
142 sq m of specialty shops,
a 80 sq m cafe,
a centre management office, associated amenities and ATM machines,
97 off street car parking spaces, made up of 82 customer spaces and 15 staff spaces,
associated landscaping, roadworks, drainage, and creek line modification and rehabilitation works, and
an area for future residential development.
11 The Statement of Environmental Effects relevantly states (at p8) in relation to the supermarket and other shops:
Some of the goods that may be sold in the supermarket include: - canned or package food, general grocery items, delicatessen items (including seafood, cold meats and cheeses), refrigerated and packaged fresh meat, fresh fruit and vegetables, dairy products, fruit juices, frozen packaged foods, bakery items, newspapers and magazines, stationary items, small electrical items such as batteries, torches and light bulbs, beauty and health care products, toiletries, baby care products, pharmaceuticals, laundry and cleaning equipment, plastic bags and wraps, household cleaning products, cigarettes and tobacco .”“ The supermarket and specialty shops will sell small daily convenience goods to serve the day-to-day needs of people who live and work in the local area.
Relevant planning documents
Pittwater LEP
12 The site is within Zone No. 2(f) (Urban Purposes - Mixed Residential) under Pittwater Local Environmental Plan 1993 (the LEP).
13 Clause 8 of the LEP identifies the different zones. For Zone No. 2(f), cl 8 relevantly states:
2. Only with development consent1. Without development consent
NilResidential buildings; associated community and urban infrastructure.
3. ProhibitedAny purpose other than a purpose for which development may be carried out only with development consent.
14 Clause 6 of the LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions), except for those definitions in cl 6(1)(a). The relevant definitions in the Model Provisions are:
“general store” means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office.
“shop” means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, a building or place used for a purpose elsewhere specifically defined in this clause.“refreshment room” means a restaurant, cafe, tea room, eating house or the like.
15 Division 7A of the LEP deals with the Warriewood Valley Urban Land Release area, in which the site is located. Clause 30A states the objects of the area as:
(a) permit development for urban purposes on land within the Warriewood Valley Urban Land Release in accordance with a planning strategy for the release area, and
(b) permit staged development for urban purposes in the various sectors of the Warriewood Valley Urban Land Release that has regard to a development control plan applying to the release area, and
(c) permit greater housing diversity and wider housing choice in areas provided with adequate physical and social infrastructure in accordance with a planning strategy for the release area.
16 Clause 30B(2) provides that consent may be granted only after consideration has been given to the objectives of the zone, as specified in Part 2 of Schedule 11. These are:
(a) to identify land within the Warriewood Valley Urban Land Release which is suitable for residential development and which will be provided with adequate physical and social infrastructure in accordance with a planning strategy for the area, and
(b) to provide opportunities for more varied forms of housing and wider housing choice, and
(c) to provide opportunities for a mixture of residential buildings which can be in the form of detached dwellings, integrated development, cluster housing, group buildings and the like.
17 Clause 30B(4) provides that, before the grant of consent, consideration must be given to any development control plan which may apply to the land.
18 Clause 30E addresses public infrastructure in urban release areas. Clause 30E(1) states the aims as:
(a) to allow for future urban development and the conservation of ecological and riparian corridors and areas of visual significance on land in urban release areas, and
(b) to require satisfactory arrangements to be made for the provision of designated State public infrastructure before the subdivision of such land to satisfy needs that arise from development on the land, but only if the land is developed intensively for urban purposes, and
(c) to ensure that development on such land occurs in a logical and cost-effective manner in accordance with a staging plan.
19 Clause 44 states:
44. Development for certain additional purposes
(1) Nothing in this plan prevents a person, with the consent of the council, from carrying out development on land referred to in Schedule 10 for a purpose specified in relation to that land in that Schedule, subject to such conditions, if any, as are so specified.
(2) Subclause (1) does not affect the application to or in respect of development to which that subclause applies of such of the provisions of this plan as are not inconsistent with that subclause or with a consent granted by the council in respect of the development
20 The relevant part of Schedule 10 states:
- Lot 11, Section C, DP 5464, 23B Macpherson Street, Warriewood - neighbourhood shops and restaurants.
In this item:
neighbourhood shop means retail premises used for the purposes of selling small daily convenience goods such as foodstuffs, personal care products, newspapers and the like to provide for the day-to-day needs of people who live or work in the local area , and may include ancillary services such as a post office, bank or dry cleaning, but does not include restricted premises.
restaurant means a building or place the principal purpose of which is the provision of food or beverages to people for consumption on the premises, whether or not takeaway meals and beverages or entertainment are also provided. (emphasis added)
Proposed changes
21 The Council on 17 May 2010 resolved to amend the LEP and Development Control Plan (‘DCP 21’). The proposed amendments were placed on exhibition on 28 July 2010 for a period of four weeks.
22 The changes proposed by the Council, as set out in the Planning Proposal, were not accepted by the Department of Planning. The relevant parts of the amended Planning Proposal (Exhibit C3) are:
PART 1 OBJECTIVES OR INTENDED OUTCOMES
Refine the Pittwater LEP 1993 to provide planning certainty and secure a limited scale focal neighbourhood centre at 23B Macpherson Street, Warriewood (appendix A) that is in keeping with the Warriewood Valley Planning Framework 2010 and Pittwater 21 DCP.
a. amend Division 7A Warriewood Valley Urban Land Release, by inserting a new subclause after Clause 30B(4) as follows;
PART 2 EXPLANATION OF PROVISIONS
Amend the Pittwater LEP 1993 to provide planning certainty and secure a limited scale of the permissible built form that is in keeping with the planned Focal Neighbourhood Centre for the incoming population of Warriewood Valley Land Release Area that incorporates retailing for their daily local 'convenience' by including the following:b. amend Schedule 11, Part 2 Zone objectives of the Warriewood Valley Urban Land Release, Zone 2(f) (Urban Purposes - Mixed Residential) to include additional objective as follows;
“(5) The Council must not grant consent for development on land within Warriewood Valley for the purposes of neighbourhood shops where the total combined retail floor space area is above 2,222m 2 .”
c. insert a new clause as follows:
“(d) provide opportunities for a focal neighbourhood centre with a limited overall retail floor space area of 2,222m 2 and that large individual premises exceeding 800m 2 (for example, large supermarkets) in Warriewood are generally not supported.”;
“If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced”.
DCP 21
23 DCP 21 applies throughout the Pittwater local government area.
24 Part A4.16 applies to the Warriewood Valley Land Release Area, and provides:
Desired Character
The Warriewood Valley Land Release Area will remain characterised by a mix of residential, retail, commercial, industrial, recreational, and educational land uses.
Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport.Warriewood Valley Land Release Area will be developed into a desirable urban community in accordance with the Warriewood Valley Land Release Planning Framework, and will include a mix of low to medium density housing with dwelling houses a maximum of two storeys in any one place, attached and detached dual occupancy dwellings, multi-unit housing, a neighbourhood focal centre, industrial/commercial development and open space and community services.
25 Part C6.15 addresses the Warriewood Valley Land Release Area Focal Neighbourhood Centre and relevantly states:
Outcomes
The local convenience retail needs of the incoming population are met. (S)
A focal point in the Valley that links local services and facilities, including local retailing, public open space, public transport and community facilities. (S)
Car dependency is reduced and other modes of transport encouraged. (En)
A sense of community and place. (S)
The focal neighbourhood centre is to incorporate a retail floor space area between 855m - 2,222m to meet the retail convenience needs of the incoming population (such as a small general store, post office shop, ATM, internet coffee shop, etc). The retail potential in Warriewood is limited to this size given nearby established retail/commercial centres at Mona Vale and Warriewood Square. (Refer to Ingleside/Warriewood Urban Land Release Area Demographic and Facility/Service Needs Studies (December, 1994). (emphasis added)Controls
A focal neighbourhood centre is to be established in Warriewood Valley, in the vicinity of the Macpherson and Garden Streets intersection (within Sector 3, 8 or 11). This location is spatially central to the incoming residential population, industrial/commercial areas, and school located in the Valley, and within reasonable walking and cycling distance of most residents and employees in Warriewood Valley. Macpherson Street is also the primary vehicular and public transport route through the Valley along which medium density residential development is concentrated.
Other documents
26 Other documents referred to in the proceedings were:
Ingleside/Warriewood Urban Land Release Area Demographic and Facility/Service Needs Studies, (1994),
Draft Warriewood Valley Urban Release Planning Framework (1997),
The Right Place for Businesses and Services Planning Policy, part of the NSW Governments Integrated Land Use and Transport Package (2001),
Crime Prevention and the Assessment of Development Application Guidelines (2001)
Centres and Corridors, part of the NSW governments Metropolitan Strategy (December 2005),
Warriewood Valley Urban Release Area - Landscaping Master Plan and Design Guidelines (October 2007),
Centres and Corridors, part of the NSW governments Metropolitan Strategy - Subregional Planning - North East Subregion (July 2007),
Draft Centres Policy - Planning for Retail and Commercial Development (April 2009),
Warriewood Valley Planning Framework 2010 (4 May 2010),
Draft State Environmental Planning Policy (Competition) 2010
Promoting Economic Growth and Competition through the Planning System - Review Report, NSW Government Department of Planning (April 2010)
The essential contentions
27 The Council filed (in court on 3 August 2010) a Revised Statement of Facts and Contentions, that identified the following contentions:
- 1. whether the proposed development is permissible, and if so whether the proposed development satisfies other Council planning controls, particularly controls within a development control plan and the zone objectives (Contentions 1, 3 and 4),
2. whether adequate information has been provided to assess amenity impacts for existing and future residential development in relation to noise, traffic, lighting, disposal of perishable foodstuffs, shopping trolley management, waste management and signage and if so whether the proposal is inconsistent with the zone objectives of the site (Contentions 2 and 5),
3. whether the proposed development is contrary to the Pittwater retail hierarchy (Contention 6),
4. whether the proposed development has an unacceptable impact on the open space adjacent to Fern Creek (Contentions 7 and 8),
5. whether adequate loading facilities have been provided (Contention 9), and
6. whether sufficient regard has been given to the area indicated as future residential development on the site (Contention 10).
28 The question regarding permissibility requires that the proposed development be characterised against the relevant provisions in the LEP. Merit contentions, including that of the retail hierarchy, would not need to be considered if the proposal is not permissible on the site.
The expert evidence
29 Ms Sarah Hill and Mr Peter Leyshon provided economic evidence for the Applicant and the Council respectively. With adverse impact on other retailing centres not being a contention between the parties, the evidence of these two experts was designed to assist the court in the characterisation of the proposed supermarket, and in deciding whether it was capable of being characterised as a neighbourhood shop.
30 Mr Leyshon states that it is generally accepted that the size and nature of a supermarket within any given centre essentially determines the way the centre is frequented by shoppers and, consequently the role a centre performs within a retail hierarchy. Shopping at supermarkets is usually divided into two types of shopping trips (however undertaken): major grocery trips, and convenience/top-up trips. The defining characteristic of “major” supermarkets is their ability to accommodate major grocery trips.
31 Mr Leyshon notes that a hierarchy of supermarkets has evolved in Australia, comprising four main types. Table 2.1 of his Statement of Evidence is reproduced below:
32 Mr Leyshon and Ms Hill agreed that the proposed supermarket would not be categorised as a “full line” supermarket, which would have a gross leaseable area, generally exceeding 2,500 sq m (although some times in excess of 3,000 sq m), and provide a full range of goods, via fresh food departments such as delicatessens, butcheries, bakeries, and comprehensive fruit and vegetable areas.
33 They agreed that the proposed supermarket would provide a range of goods to meet weekly shopping needs, but a more limited range of fresh goods, meats and packaged delicatessen products. Mr Leyshon categorises the proposed supermarket as “major” – it would provide a very wide range of merchandise, sufficient to cater for major weekly or fortnightly food shopping, and contain a significant component of fresh food, but in the form of packaged meat (rather than an operational butchery), packaged deli goods, and a more limited range of fruit and vegetables than is found in “full line” supermarkets. It would be car-based rather than pedestrian-orientated.
34 Ms Hill, however, disagreed with this designation. She adopts the term “medium” supermarket for stores of the proposed size, more of a “Focal Neighbourhood Centre” (as defined in DCP 21), as it would provide the population with an opportunity to purchase food and convenience items, in addition to other goods required to run a household.
35 Mr Leyshon was of the opinion that a supermarket the size of the one the court visited at Elanora Heights (some 300 m2?) would be capable of fulfilling the designation “neighbourhood shop”.
36 Mr Leyshon also gave evidence that a smaller shop or supermarket, due to the limited floor space, would by nature have to stock and cater to shoppers of convenience goods which have a higher turnover rather than stocking “non-daily” items, such as clothing, cookware (and other items that would be usual in “full line” and “major” supermarkets).
37 In answer to questions during cross-examination, Mr Leyshon expressed the opinion that the difference between small and large supermarkets is “the range and scope” of services and variety of products (T4.8.10, p41, LL20-25). Mr Leyshon agreed with the proposition put to him by Mr Galasso that the proposed supermarket will permit the shopping of “daily convenience goods”, “There will be a proportion of … pure convenience trips to the supermarket as there is to every supermarket”, and his “concern with this application is that it goes well beyond that process or that type of trip” (T4.8.10, p54, LL44-49). “What the supermarket does is vastly expand that range both in terms of total number of a stock keeping units and the depth of merchandise within each category, such that it changes. You get a different shopping pattern as a result of it” (T4.8.10, p51, LL29-32).
38 Ms Hill was of the opinion that the proposed supermarket would attract a lower level of expenditure from the local area as it would have a more limited retail offer compared to “full line” supermarkets in the area. Owing to its small scale, the supermarket would not be able to provide the full range of food and household related goods offered by a “full line” supermarket. She also agreed that the proposal will involve some “convenience shopping”, as well as shopping involving “larger basket sizes”.
39 The two experts agreed that a larger supermarket attracts proportionally more car-based trips owing to: (1) its catering for a more compressive shopping trip with a higher average customer spend; and (2) its having a larger trade area from which customers are drawn. They also agreed that a larger supermarket is more likely to stock goods that are not of a “convenience”, or “day to day” nature.
Is the proposed development permissible?
40 There is no dispute regarding the permissibility of many components of the proposed development – subdivision of the site, the café, the specialty shops, centre management office, associated amenities, and ATM machines etc. were not in contention.
41 However, there remains a dispute regarding the permissibility of the proposed supermarket, and its correct characterisation is a threshold question for the court.
42 Mr Galasso, for the applicant, submits that the supermarket should be characterised as a use permissible with consent, namely as “associated community and urban infrastructure” within the zoning table for the 2(f) zone, and also “neighbourhood shop” pursuant to cl 44 and Sch 10 of the LEP. Mr Larkin, for the Council, submits that the supermarket cannot be categorised as either “associated community and urban infrastructure” or “neighbourhood shop”, and that, accordingly, there is no power to grant consent to it.
Principles of characterisation
43 The task of characterisation has never been simple, as each case is dependent on its own facts and circumstances: Grace v Thomas Street Café Pty Ltd and Others [2007] NSWCA 359; (2007) 159 LGERA 57, per Beazley JA, especially at [87]ff, and McLellan CJCL, at [141]ff. However, the principles involved have frequently been canvassed, and guiding principles laid down.
44 In Royal Agricultural Society of NSW v Sydney City Council (“Royal Agricultural Society”) (1987) 61 LGRA 305 at 310, McHugh JA said:
- “… a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land .”
45 The genus of a use or the purpose of a use has to be determined objectively, from the perspective of the impact of the use on the neighbourhood: North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd(‘”Boyts”) (1989) 16 NSWLR 50, per Kirby P at 59.
46 The general approach to characterisation for planning purposes was set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (“Chamwell”) [2007] NSWLEC 114; (2007) 151 LGERA 400, where his Honour stated at [45] that “[t]he characterisation of the purpose of development must also be done in a common sense and practical way…”
47 As made clear in Royal Agricultural Society and Chamwell, the characterisation of the use of land should reflect its purpose. The purpose may comprise different uses that may serve the same purpose. In determining the purpose, it is necessary to adopt a level of generality, common sense, and a practical approach that takes into account the different components of the development.
Is the supermarket “associated community and urban infrastructure”?
48 Mr Galasso acknowledges that the term “associated community and urban infrastructure” and its component parts are not defined in the LEP. However, he submits (written submissions par 7) that:
- “… given the punctuation in the Land Use Table, that with which the community and urban infrastructure is required to be associated is not expressly stated, but given that, otherwise, only residential buildings are permissible, it may be assumed that it is to be associated with residential buildings .”
49 That submission relies on Australian Lifestyle Corporation v Wingecarribee Shire Council [2008] NSWLEC 284; (2008) 168 LGERA 239, where Preston CJ at [29]-[30] stated that reference to the name or title of a zone in seeking to determine the question of permissibility is one of a number of legitimate sources of reference for that purpose.
50 Mr Galasso also submits that the inclusion of the words “urban purposes” in the title of the zone is one of the factors informing the question of permissibility. In this context, a reference to urban purpose is taken to be a purpose “pertaining to, or constituting a city or town”: see Modog v Baulkham Hills Shire Council [2000] NSWLEC 180; (2000) 109 LGERA 443 at [12] and Murlan Consulting v Ku-ring-gai Municipal Council [2007] NSWLEC 182 at [23]. In this respect, as Mr Galasso submits, “there is no doubt that a neighbourhood retail facility as proposed would be for a purpose pertaining to a city or town.”
51 Mr Galasso relies on the Macquarie Dictionary (Second, Third and Fourth Editions) definition of “infrastructure” as follows:
“1. The basic framework or underlying foundation (as of an organisation or a system).... 3. The buildings or permanent installations associated with an organisation, operation, etc.”
and submits (written submissions par 11):
- “ … the identification of the purpose of development in the form of buildings or land use for retail purposes associated with or to serve the needs of residential development lends itself to a description as being development associated with community and urban infrastructure. It provides a basic or underlying planning foundation associated with the residential community existing, and intended to exist, in the Warriewood Valley . ” (emphasis added)
52 Mr Galasso urges the court to note that the permitted use is not simply “infrastructure”, but rather “community and urban infrastructure”. The notion of “community infrastructure” connotes something that is consistent with the provision of a basic framework or underlying foundation, in this instance associated with residential buildings for “urban purposes”. It is without doubt that the provision of a retail facility serves that purpose, and is permissible. He submits that this approach is supported by consideration of the terms of DCP 21, which contemplates retail development on the site.
53 A DCP is required to be “not inconsistent” with the terms of a LEP, so underlying the permissibility of the proposal. Mr Galasso submits that DCP 21 contains more detailed provision with respect to development, in order to achieve the purpose of an environmental planning instrument applying to the site, consistent with s.74C(1)(a) of the EP&A Act.
54 For further confirmation, Mr Galasso submits that the term “community and urban infrastructure” can be contrasted with other terms in the LEP, relating to infrastructure, such as “public infrastructure”, “State public infrastructure”, and “public utility infrastructure” in cl 30E of the LEP. These are traditional terms in the field of “infrastructure”, and hence the term “community infrastructure” must be designed to permit different concepts associated with residential development.
55 Mr Galasso also relies on a number of references in the LEP to support the applicant's position. Clause 30A(1) provides objectives for the Warriewood Valley Urban Land Release. The Urban Release Framework includes, under the heading “Community Facilities and Infrastructure Objectives”:
“To ensure that the existing community and the community to be accommodated within the release is provided with suitable transport and traffic facilities, retail and service facilities, community facilities and recreation and open space facilities.”
56 It was submitted that such a reference makes it abundantly clear that the notion of retail and service facilities is intended to be contained within the concept of “associated community and urban infrastructure”. This is reinforced in later sections of the Framework and objective (a) in cl 30B(2), where reference is made to providing “adequate physical and social infrastructure”. The clear purpose is an extension beyond residential development and the provision of water, power, sewer and roads, to accommodate “physical and social infrastructure”.
57 Mr Galasso submits that a supermarket is a “general store” (and vice versa): Maryland Development v Penrith City Council [2001] NSWLEC 135; (2001) 115 LGERA 75, Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWLEC 99; (2009) 167 LGERA 205, and Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152. The relationship between the LEP and DCP 21 contemplates “general store” as a permissible use within the zone, and appropriate in terms of the objectives of those documents. Once it is accepted that the provision of the supermarket falls within the concept of “associated community and urban infrastructure”, there is no limitation on the concept to the goods able to be offered, whereas with respect to a “neighbourhood shop”, such a limitation is imposed.
58 Mr Larkin rejects the submission of Mr Galasso that the application of the terms discussed above in the context of “urban purposes” extends to any development for a purpose “pertaining to, or constituting a city or town”. First, on the true construction of the LEP, the term “urban infrastructure” does not simply mean anything found in the city or town. It has a narrower meaning than suggested by Mr Galasso, and means infrastructure in the nature of electricity, sewers, roads, pathways and so on. Second, the infrastructure must be associated with “residential buildings”, rather than “urban purposes” more generally. This is plain from the punctuation in the land use table itself, in the context of the document as a whole.
59 Mr Larkin says, for example, that if Mr Galasso's interpretation is correct, it would render otiose the whole of Div 7A in the LEP as all “purposes of development” permitted by Sch 10 (such as child-care centres, a cinema) would also be purposes pertaining to, or constituting a city or town, and permissible as “associated community and urban infrastructure”. Clause 44 and Schedule 10 would have no purpose.
60 Similarly, almost any development which would be expected to occur in an urban context (for example, a commercial skyscraper, a sports stadium, or heavy industry), no matter how large, would be a purpose “pertaining to, or constituting a city or town”, and thus be permissible in the zone and on the site. Mr Larkin relies on the Court of Appeal’s decision in National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 (particularly at 229), and submits that the “court should strive to avoid the construction of the LEP which renders its words otiose”.
61 Mr Galasso also relies on s C6.13 of DCP 21, and parts of the subordinate policy studies, to inform the meaning of “associated community and urban infrastructure”, but Mr Larkin submits that this is not permissible, as an item of subordinate legislation cannot be used to influence the construction of higher order legislation (Webster & Daff v McIntosh (1980) 3 A Crim R 455 at 457).
62 Accordingly, Mr Larkin submits that the proposed supermarket is not “associated community and urban infrastructure” for the purposes of Zone 2(f), and, as such, is a prohibited use.
Consideration
63 In this case, the purpose of “associated community and urban infrastructure” is unclear, when compared to the stated purpose in Chamwell, namely “shop” (or supermarket). To identify the purpose of “associated community and urban infrastructure”, it is first necessary to have an understanding of the intent or purpose of the 2(f) zone, when viewed alongside the other “2” zones in the LEP, all of which refer to “Residential” in some form. Curiously, the 2(e) zone prohibits various forms of residential development that are permissible within the 2(a) and 2(b) zones.
64 Some specific land uses are permissible with development consent in zones 2(a) and 2(b), and are defined in the LEP or the Model Provisions. This should be compared to the position with the 2(f) zone, where the permissible uses with development consent are limited to “Residential buildings; associated community and urban infrastructure”. Neither term is defined in the LEP or the Model Provisions although the term “residential buildings” is used in objective (c) for the 2(f) zone and includes “detached dwellings, integrated development, cluster housing, group buildings and the like”.
65 Some further understanding of the intent of the 2(f) zone can be gleaned from the zone objectives in Part 2 of the LEP, which suggest to me that the land within the 2(f) zone has been broadly identified for future residential development and associated physical and social infrastructure, but with the caveat that the form of development is to be further refined through future planning strategies.
66 The zone objectives direct themselves to the need to undertake further actions. Objective (a) requires that land suitable for residential development be identified, and then provided with adequate physical and social infrastructure, as identified by a future planning study. As the objectives apply to land already zoned 2(f), the objective clearly contemplates the further identification of suitable 2(f) residential land, and the reasoned provision of particular physical and social infrastructure following such future planning strategy studies. Objectives (b) and (c) reinforce this intent with the use of the words “to provide [future] opportunities…”. Also, cl 30B(4) requires that, before granting any consent, consideration must be given to any DCP that applies to the land. This can be seen as imposing a more onerous obligation than the general requirement to consider a DCP under s79C(1)(a)(iii) of the EP&A Act.
67 While I accept that subordinate legislation cannot be used to influence the construction of higher order legislation, cl 30B(4) of the “higher order” LEP specifically requires in this case consideration of any DCP that applies to the land, before granting development consent. This effectively includes DCP 21 in any consideration of whether the proposed supermarket is properly characterised as “associated community and urban infrastructure”. The other terms raised in argument by Mr Galasso – such as “public infrastructure”, “State public infrastructure”, and “public utility infrastructure” – have particular meaning(s) within cl 30E of the LEP, and I do not accept that they assist the court in defining “associated community and urban infrastructure” in terms of land uses in the zoning tables of the LEP.
68 Given the intent that the 2(f) zone will be further planned, it is unsurprising and understandable that specific uses are neither identified as being permissible with consent, nor specifically identified in the zone objectives. The term “associated community and urban infrastructure” should, therefore, not be read so broadly as to include specific land uses, and allow development that may prove to be inconsistent with what the contemplated future detailed planning studies identify.
69 I, therefore, agree with Mr Larkin that the court should not pre-empt the intended future planning approach by readily accepting specific proposals, such as the present, as “associated community and urban infrastructure”.
70 Adopting a common sense and practical approach, I do not accept that a supermarket (general store or shop) reflects the purpose of “associated community and urban infrastructure”. A supermarket/general store (or shop) is plainly a “retail” use in the planning sense, rather than clearly within any definition of “associated community and urban infrastructure” under the planning instruments.
71 I conclude that the proposed supermarket component of the development should not be characterised as “associated community and urban infrastructure”, for the purposes of making it permissible in Zone 2(f).
72 I turn, therefore, to see if it is otherwise permissible.
Is the supermarket a “neighbourhood shop”?
73 Mr Galasso submits that the definition of “neighbourhood shop” does not impose any limitation upon the area of retail space, in contrast to the retail floor area limitations on other zones, such as zones 3(a) and 3(b).
74 The retail function is qualified by reference to generic descriptions of retail premises. A “neighbourhood shop” provides for local residents, but also for people who work in the area. Mr Galasso submits that this extends the range of people beyond those in the “residential buildings”, identified under the 2(f) land use table. In principle, there can be no doubt that a “supermarket” is capable of falling within the definition of a “neighbourhood shop”, which provides for the day-to-day needs of the people who live and work in the area. In this sense, it is not distinguishable from the notion of a “general store”, as this fits easily within the description of a “neighbourhood shop”.
75 It was agreed that the proposed supermarket in this case would not be classified as a “full line” supermarket, and would be limited in the provision of goods which could be described as “small daily convenience goods”. Mr Galasso asks the court to note that the definition of “neighbourhood shop” imposes a qualification on goods only, and not on visitation frequency. The Council's position that if retail shop premises attract a “weekly shopping trip”, they no longer comprise a “neighbourhood shop”, cannot be supported.
76 It was submitted that any uncertainty be resolved by contrasting the concept of a “neighbourhood shop” with the definition of “shop” in the Model Provisions. The concept of a “shop” covers any retail transaction of any goods, merchandise or material, and could include items as significant as motor cars or bulky goods. (Although a submission to that effect is not relevant to the task at hand, it ought not be accepted, as premises which sell motor cars or bulky goods are separately defined).
77 By comparison, a “neighbourhood shop’s” retail transactions are limited to “small daily convenience goods” to provide for the day-to-day needs of people who live or work in the area. The “neighbourhood shop” is still a “shop”, but the goods that it offers fit within certain categories. Mr Galasso submits that no sensible construction of the term “daily” would require that the only goods that can be sold from the shop are goods that are used daily by persons who buy goods from the store. For example, a dozen eggs would fit the description of the type of goods sold, but, it could not be said that eggs are a product that is bought, never mind consumed, “daily”.
78 Mr Galasso submits that the word “convenience” imputes the sorts of items envisaged in a supermarket of the proposed size, designed to meet the day-to-day needs of the residential and working population. Milk satisfies the description of a product capable of being sold in a “neighbourhood shop”, so a retailer would be entitled to stock every available brand of milk. Convenience would be thwarted if choice were limited.
79 Mr Larkin submits that the proposed “supermarket” is not properly characterised as a “neighbourhood shop”. The purpose of a use has to be determined objectively, from the perspective of the impact of the use on the neighbourhood: see Boyts. The evidence in this case is that the proposed supermarket component of the development is primarily targeted towards weekly shopping trips, and will be predominantly a car-based development. Judged objectively, that is a different purpose from that of a “neighbourhood shop”, which, Mr Larkin submits, “would be characterised by small frequent transactions, a much higher proportion of pedestrians arriving rather than motor vehicles, a much higher proportion, persons generally being drawn to the store… from the local area” (T6.8.10, p7, LL3-6).
80 Mr Larkin rejects the applicant’s submission that so long as the supermarket supplies small daily convenience goods, and the day-to-day needs of people who live and work in the local area, then a “supermarket”, no matter what its size, would be an appropriate and “permissible” use, subject to a merits assessment. The definition of “neighbourhood shop” requires that this land must be used only for the purpose of such a shop. The issue is, therefore, whether the proposed development is, objectively, used for the purposes of selling only small daily convenience goods, such as foodstuffs, personal care products, newspapers and the like, to provide for the day-to-day needs of people who live and work in the local area.
81 Mr Larkin submits that acceptance of the word “daily”, as a descriptor of goods sold, does not avoid the need to consider the frequency and nature of the trips (or impacts) which characterise the use, as defined. The words “small”, “daily”, and “convenience goods”, each qualify the nature of the goods sold. They must be “convenience” goods; they must be ordinarily used “daily”; and they must be “small”, and “provide for the day-to-day needs” of people. Implicit in this definition are high frequency, low-volume retail transactions, and the proposed supermarket, objectively considered in this context, is not of this nature.
82 Mr Larkin submits that if the applicant’s approach were to be adopted, the purpose of the LEP as a whole would be defeated. The permissibility of a “major” supermarket within the 2(f) zone is contrary to the intention of the LEP, as manifest in the provisions permitting such uses in the 3(a) and 3(c) zones, and would create an inconsistency with the retail hierarchy established. Notwithstanding its scale, the proposed supermarket would be a destination from some shoppers within the primary trade area, who wish to undertake weekly shopping. Given its central location within the Warriewood Valley Release Area, and its accessibility for pedestrians and cyclists, the supermarket is also likely to be a destination for more frequent shopping from residents and local employees seeking a “basket” and/or small convenience items.
Consideration
83 For the proposed supermarket to be permissible on the subject location, it must fall within the meaning of “neighbourhood shop”, as set out in Sch 10. If not, it would be defined as either a “shop” or “general store”, both of which are prohibited within the 2(f) zone. Each of the relevant definitions – of “neighbourhood shop”, “general store”, and “shop” – has particular identifying features.
84 A “neighbourhood shop”, as defined in Sch 10, has a number of components that distinguish it from a “shop” or “general store”. These are:
- use of the word “ neighbourhood" ,
the purpose of selling “ small daily convenience goods” ,
the test of “ day-to-day need ”,
the concept of providing a service for people who live or work in the local area, and
examples such as foodstuffs, personal care products, newspapers and the like, usually sold in a “ neighbourhood shop ”.
85 As already noted, a subordinate piece of legislation cannot influence the construction of “higher order” legislation, so DCP 21 cannot influence the categorisation of the proposed supermarket. Whether it can potentially be characterised as a “neighbourhood shop” is a question of fact and degree, and centres largely on size.
86 I accept the evidence of Mr Leyshon that the proposed supermarket is a “major” supermarket, and will provide goods that extend beyond the “small daily convenience goods”, which provide for “the day-to-day needs of people who live or work in the local area”. This supermarket will stock a considerable number of items beyond the description of “small daily convenience goods”, rendering it unable to be characterised as a “neighbourhood shop” (as described in Sch 10). The goods identified in the Statement of Environmental Effects do not constitute a reasonable representation of the goods likely to be sold in a supermarket of some 2,222 sq m, based on the expert evidence of Mr Leyshon. The court was taken to an existing supermarket of similar size, at Mona Vale, where even a most casual observation would confirm that the goods available for sale extend beyond “small daily convenience goods”.
87 It was accepted by both Mr Leyshon and Ms Hill that “smaller” supermarkets, which by nature focus on daily convenience goods, will also sell goods which do not fit the designation of “small daily convenience goods”. However, characterisation of such supermarkets based on the exact nature of goods sold is not possible, because a supermarket will stock different types of goods to cater for changing shopping habits. The clearest indicator of whether a supermarket can be designated a “neighbourhood shop” is the floor space available to it. As noted above, it is uncontroversial that a larger store will have a higher tendency to stock goods that are not “small daily convenience goods”, as well as stocking a larger range of any particular class of goods.
88 I accept the submission of Mr Galasso that it would be unreasonable to expect that a supermarket which attracts a “weekly shopping trip” not be characterised as a “neighbourhood shop”. There will undoubtedly be people who may wish to undertake less frequent shopping trips to a smaller shop or supermarket, even though the premises may offer only “small daily convenience goods”. Conversely, it was also accepted by the economic experts that a “full line” supermarket is capable of attracting frequent shoppers of “small daily convenience goods”. The critical factor is the frequency and scale of this occurring. The evidence suggests that these factors are likely to be directly proportional to the size of the supermarket. The strict reliance on stocking goods that cater for “day-to-day needs”, to satisfy the definition of a “neighbourhood shop”, would be impossible to police through conditions of consent, whereas the imposition of a limit on the floor space (and the consequent reduction in the type and range of goods) is a practical means of ensuring compliance with the definition.
89 Although I agree that a supermarket of 2,222 sq m would likely satisfy “the day-to-day needs of people who live or work in the local area”, it would also likely satisfy the needs of people who live or work beyond the local area, given the size of the supermarket and the likely range of goods offered for sale. The use of the word “neighbourhood” further reinforces the intent of providing small retail facilities for a local area. While the undisputed evidence of Mr Leyshon and Ms Hill was that the proposed development would not have an unacceptable impact on existing centres at Mona Vale and Warriewood, the definition of “neighbourhood shop” does not require any form of economic assessment of the proposal against any existing centres.
90 I am, therefore, not satisfied that the proposed supermarket is a “neighbourhood shop”.
Conclusion
91 I accept the submission of Mr Larkin that the proposed supermarket would defeat the zoning intentions of the LEP. Having regard to the zoning objectives of the subject site in comparison to the 3(a) and 3(c) business zones, I conclude that the proposed supermarket element of the development is not permissible. A supermarket of the size proposed should be located in the 3(a) or 3(c) business zones.
92 Accordingly, the orders of the Court are:
1. The appeal is dismissed.
2. Development Application N0603/09 for the subdivision of 23B Macpherson Street, Warriewood into two lots and the construction of a retail facility is refused.
3. The exhibits may be returned.
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