(i) Permissibility
The subject site is zoned R1 General Residential pursuant to SEPP (Sydney Region Growth Centres) 2006.
The applicant submitted legal advice on the permissibility of the development which is provided in Attachment 6. Further, the applicant’s Statement of Environmental Effects provides the following:
This request is accompanied by the requisite information and is submitted to enable the assessment to be revisited in light of the significant negative impacts upon the viability of the subject site and the inability of the site to now support the outcomes expressed within the SEPP and DCP. For example, to create a vibrant, mixed use Neighbourhood Centre that provides a range of small-scale retail, business and community uses which serve the needs of people who live and work in the surrounding neighbourhood (Part 5.2.1 of North Kellyville Precinct DCP- Hezlett Road Neighbourhood Centre).
The suitability and appropriateness of a restaurant within the Hezlett Road Precinct is further endorsed by the following Objectives of the R1 General Residential zone, which state –
• to enable other land uses that provide facilities or services to meet the day to day needs of residents.
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
• to allow for low intensity tourist and visitor accommodation that does not interfere with residential amenity.
Given that the Land Use Table encourages tourist and visitor accommodation, it is critical that support services such as restaurants, cafes, health consulting rooms and the like are accommodated within the Precinct.
The Aims of the Policy are clear in stating that the Policy aims -
(d) to enable the establishment of vibrant, sustainable and liveable
neighbourhoods that provide for community well-being and high quality local amenity,
It is difficult to envisage a vibrant neighbourhood without any restaurants or cafes.
The interpretation of the proposed restaurant as a retail use and therefore a prohibited use within the R1 General Residential zone under the Sydney Region Growth Centres SEPP is flawed and does not recognise the following:
• the relevant Aims of the Policy - (d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity;
• the relevant Objectives of the R1 General Residential zone - To enable other land uses that provide facilities or services to meet the day to day needs of residents and to allow for low intensity tourist and visitor accommodation that does not interfere with residential amenity;
• the Objective of the North Kellyville Precinct DCP for the Hezlett Road
Neighbourhood Centre - To create a vibrant, mixed use Neighbourhood Centre that provides a range of small-scale retail, business and community uses which serve the needs of people who live and work in the surrounding neighbourhood.
Further to my assertion that the earlier interpretation was flawed in categorising the proposal as a prohibited use (namely retail) under the Land Use Table for the R1 General Residential Zone I provide the following extracts from the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 –
• 3 Permitted with consent
Attached dwellings; Bed and breakfast accommodation; Boarding houses; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses;
Educational establishments; Group homes; Home businesses; Hostels; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings;
Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Studio dwellings; Any other development not specified in item 2 or 4 (emphasis added)
• 4 Prohibited
Agriculture; Amusement centres; Biosolid waste applications; Bulky goods premises;
Business premises; Canal estate developments; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Electricity generating works; Entertainment facilities; Extractive industries; Freight transport facilities; Home occupations (sex services); Industries; Information and education facilities; Marinas;
Passenger transport facilities; Public administration buildings; Retail premises; Rural workers’ dwellings; Shop top housing; Storage premises; Tourist and visitor accommodation;
Vehicle sales or hire premises; Waste or resource management facilities; Wholesale supplies
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
NOTE – Restaurants are not specified in item 4 as prohibited.
Clause 3 Interpretation - (1) In this Policy………..
(2) The Dictionary at the end of this Policy defines words and expressions for the purposes of this Policy. (emphasis added)
The Dictionary under the Policy defines the relevant uses as follows-
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 take away meals and beverages or entertainment are also provided.
retail premises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).
It is relevant that the proposal is submitted under, and is to be assessed under, the Growth Centres SEPP 2006.
The SEPP, under Clause 3 states that 1) Subject to section 74(1) of the Act, in the event of an inconsistency between this Policy and another environmental planning instrument whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
To summarise, the proposed restaurant IS a permissible use under the Growth Centres SEPP as it is separately defined within the planning instrument, is not a prohibited use and is not a subset of retail uses as was claimed during the assessment of the original DA 1124/2020/HA and the permissibility issue is, in my view, set aside to allow the 8.2 Review to be assessed as a permissible use.
Comment:
The proposed use for a restaurant is separately defined in the SEPP as follows:
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 take away meals and beverages or entertainment are also provided.
The land use table for the R1 General Residential zone is provided below.
Land Use Table
Zone R1 General Residential 2 Permitted without consent Home occupations
3 Permitted with consent
Attached dwellings; Bed and breakfast accommodation; Boarding houses; Centre- based child care facilities; Community facilities; Dual occupancies; Dwelling houses;
Educational establishments; Group homes; Home businesses; Hostels; Multi dwelling
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
housing; Neighbourhood shops; Places of public worship; Residential flat buildings;
Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Studio dwellings; Any other development not specified in item 2 or 4
4 Prohibited
Agriculture; Amusement centres; Biosolid waste applications; Bulky goods premises;
Business premises; Canal estate developments; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Electricity generating works; Entertainment facilities; Extractive industries; Freight transport facilities; Home occupations (sex services); Industries; Information and education facilities; Marinas; Passenger transport facilities; Public administration buildings;
Retail premises; Rural workers’ dwellings; Shop top housing; Storage premises;
Tourist and visitor accommodation; Vehicle sales or hire premises; Waste or resource management facilities; Wholesale supplies
The proposed use for a restaurant is considered to be permitted with consent in the R1 General Residential zone being a use captured under “any other development not specified in Item 2 or 4 (development permitted without consent or prohibited development)” if the SEPP was read in a traditional manner, given that the SEPP is not a Standard Instrument LEP with specific group term references.
The proposal is considered satisfactory with respect to permissibility.
(ii) Zone Objectives
The site is zoned R1 General Residential under State Environmental Planning Policy (Sydney Region Growth Centres) 2006. The objectives of the R1 General Residential Zone are:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To encourage medium density housing in locations of high amenity adjoining open space and accessible transport corridors.
• To support the well being of the community, including educational, recreational, community, religious and other activities and, where appropriate, neighbourhood shops if there will be no adverse effect on the amenity of proposed or existing nearby residential development.
• To allow for low intensity tourist and visitor accommodation that does not interfere with residential amenity.
• To provide for a variety of recreational uses within open space areas.
The proposal is consistent with the stated objectives of the R1 General Residential zone, in that the proposal will enable other land uses that provide facilities or services to meet the day to day needs of residents.