Court guidance on non-residential development in general neighbourhood zone

In the recent decision of Jahk Enterprises Pty Ltd ATF Jahk Trust v Assessment Panel of the Corporation of the City of Campbelltown [2023] SAERDC 6, the Environment Resources and Development Court (Court) was required to resolve instances of ambiguous and inconsistent drafting in the General Neighbourhood Zone provisions contained in the Planning & Design Code (Code).

The Appellant sought planning consent to construct a carwash at 3 Newton Road, Newton (near to the intersection with Montacute Road). The subject land contained a dwelling and was located within the General Neighbourhood Zone (GNZ), but abutted a Local Activity Centre Zone and was adjacent to an arterial road.

Prior to assessing the merits of the proposed development, the Court identified the following issues of interpretation for its consideration:

• is a carwash a Personal or Domestic Services Establishment (and therefore a shop)?
• what is meant by the word “Employment” in Desired Outcome (DO) 1?
• what is meant by the word "neighbourhood” in DO 1 and does the same meaning apply in Performance Outcome (PO) 1.1 and 1.3?
• what does “active, convenient and walkable” mean in PO 1.1?

Is a carwash a Personal or Domestic Services Establishment (and therefore a shop)?

Although not determinative of the issue before the Court, the Court found that a carwash is not an undefined use, as it has historically been interpreted, but is instead a ‘personal or domestic services establishment’ as defined in the Land Use Definitions Table.

In reaching this conclusion the Court stated:

a vehicle can be considered a domestic item and the act of washing it a domestic need. Although the washing of a car bears little resemblance to the specific examples listed at (a)-(i) [of the definition of ‘personal or domestic services establishment’], it is not at odds with the common elements evident in those examples. I note that no size or intensity limitation applies. Scale therefore is not a factor. The services provided are not limited only to matters of care or adornment of a person, it may be undertaken by the individual.

Of note, the site contained 3 automatic wash bays, a dog wash and vacuum bay and therefore was of a significantly larger scale than the examples used in the definition, which includes ‘shoe repair’, ‘watch repair’, ‘clothing repair and alterations’ and ‘manicures and pedicures’.

Whilst in some cases this may have resulted in the development having been against the incorrect provisions, fortunately in this case a “shop” also was assessed against all Code provisions.

What is meant by an “Employment use” in DO 1?

The Court observed that the use of the term ‘employment’ in DO 1 is ‘unclear and unhelpful’, but held that ‘employment uses’ must be read in distinction to ‘community service uses’ and must include those land uses identified in DPF 1.1 which are neither residential uses nor community service uses i.e. offices, shops and consulting rooms.

The Court further found that DPF 1.1 is not exhaustive, and held that ‘any land use (employing any person, in any capacity, at any time) may meet with the intent of the DO for the GNZ subject to satisfactory compliance with the relevant provisions of the Code when assessed as a whole’. The Court therefore considered the car wash use to be an employment use notwithstanding the fact it is proposed to be un-staffed, presumably in reliance on the employment of those who maintain, service and empty rubbish from the site from time-to-time.

What is meant by the word "neighbourhood” in DO 1 and does the same meaning apply in PO 1.1 and 1.3?

The concept of a “neighbourhood” is one of the core elements of the Code. Frustratingly, however it is not a defined term in the Code and is used in a range of different contexts.

During the hearing various interpretations of the concept of a ‘neighbourhood’ were put forward, including the entire zone; an area larger than a locality but smaller than a zone; or a locality. Given the scarcity of the use of the term ‘locality’ in the Code, this argument had the potential to significantly alter one of the core elements of development assessment. However rather than adopt such a radical position, the Court held that ‘neighbourhood’ was a term that may have different meanings depending on its context and in DO 1 and PO 1.1 it meant zone, but in PO 1.3 it meant locality.

In relation to DO 1, the Court reasoned in view of the Rules of Interpretation that DOs set a ‘general policy outcome for a zone’ and that the use of the term ‘neighbourhood’ in this context must require a consideration of the whole of the zone. The Court subsequently held that when read together with DO 1 and DPF 1.1, ‘neighbourhood’ in PO 1.1 similarly required a consideration at the zone level. In contrast, PO 1.3 ‘seeks an assessment of the siting (on the subject land) and the design of non-residential development against the residential character and amenity of the locality’ and therefore was narrower than the entire zone.

What does “active, convenient and walkable” mean in PO 1.1?

Another core (yet undefined) concept in the Code is an ‘active, convenient and walkable neighbourhood’.

The Court found that the meaning of ‘active’ was not used in a physical context, but expressed that it:

likely refers to the planning concept … of an activated streetscape. In planning terms this was generally understood to mean a development which provides or allows interaction with the public ([eg] illuminated colourful windows instead of blank walls to the public realm), a use whereby people come and go regularly to encourage pedestrian activity on the street including the opportunity for activity to occur out of hours and introduce passive surveillance.

As for the meaning of ‘walkable’, the Court held:

… as a planning concept, is not limited only to access by foot – it encapsulates consideration of distance, permeability, and accessibility. It means a person can easily walk to a place, not that they must. Further, in the context of a land use goal, I do not believe the intent of “walkable” in PO 1.1 is to specifically exclude any land use which, by its very nature, necessitates the attendance by a person in a vehicle.

Despite a car wash being a vehicular-based use, the Court still considered it met the intent of PO 1.1 in being a complementary non-residential use that supported an active, convenient and walkable neighbourhood.

Further Issues of Interpretation

In assessing the merits of the proposed development against the relevant Code provisions, further issues of interpretation and application arose.

PO 1.2

The Court held that whether a proposed non-residential development is ‘located and designed to improve community accessibility to services’, does not necessitate an analysis of ‘whether the service is presently available to the community it seeks to serve’. Nor does it require:

… any consideration of its location (whether that be central to, on the edge, or elsewhere) within the GNZ. The desire expressed in PO 1.2 that non-residential land uses be located to improve community access restates (or reinforces) the zone intent that services and facilities (or employment and community services uses) are to be located ‘within easy reach’ (DO 1) and ‘convenient’ (PO 1.1) to the population they are to serve … the addition of any such use improves community access, even if the use duplicates a service already provided.

Whether the proposal was a ‘small scale commercial’ use, was held to require an assessment of its intensity/operational capacity, and due to its operating hours (7 am to 10 pm, 7 days a week) and ability to service three vehicles at a time, it was not considered a small scale commercial use.

PO 1.3

PO 1.3 states ‘Non-residential development sited and designed to complement the residential character and amenity of the neighbourhood’.

The Court found difficulty with this policy, stating:

…it is difficult to envisage how development may be sited and designed to complement amenity.

It therefore applied a different test, finding that the only sensible basis on which assessment might occur pursuant to PO 1.3 is if ‘the amenity goal of PO 1.3 … is not that development (through its siting and design) complement amenity but that it not adversely impact upon amenity’.

PO 1.4

Again in PO 1.4 the Court applied a different test to the express language in the policy, finding that the goal that ‘development maintain residential amenity’, should be read as a test requiring that ‘development, by virtue of its scale and type, not unreasonably impact residential amenity’.

Overlap between ‘Design’ and ‘Design in Urban Areas’

In reviewing the proposed development against the Design and Design in Urban Areas (DUA) general development policies, the Court held that there is:

significant policy overlap and duplication between the modules and there are instances where these policies, if not in direct conflict, are not harmonious. At best the application of these policies is confusing and at worst there are policies that cannot be sensibly applied. I can only conclude it was not intended for the policies in these modules to apply concurrently.

Rather than apply both, the Court applied the DUA module, having determined that these were most relevant to the matter before the Court.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or AMiegel@normans.com.au or Stephan Koefer on +61 8 8217 1368 or SKoefer@normans.com.au.