7 Eleven Stores Pty Limited v Waverley Council

[2008] NSWLEC 1205

Land and Environment Court

of New South Wales

CITATION:	7 - Eleven Stores Pty Limited v Waverley Council [2008] NSWLEC 1205
PARTIES:	APPLICANT 7 - Eleven Stores Pty Limited RESPONDENT Waverley Council
FILE NUMBER(S):	10914 of 2004
CORAM:	Hussey C
KEY ISSUES:	Appeal - Section 96 Modification :- s.96 Modification to conditions for 1 year trial period for 24 hours/seven days per week operations
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 (WLEP) Waverley Development Control Plan 2006 (WDCP 2006)
CASES CITED:	Architectural Property Services 1999 [NSW LEC 83]
DATES OF HEARING:	29/04/2008
DATE OF JUDGMENT:	4 June 2008
LEGAL REPRESENTATIVES:	Mr James Johnson, barrister Instructed by Deacons Lawyers Mr Stephen Patterson, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4 June 2008

10914 of 2004 7-Eleven Stores Pty Ltd v Waverley Council

JUDGMENT

Background

1 This appeal was lodged against Council’s refusal of a Section 96 application to modify the conditions of consent for the 7-Eleven Store situated at the corner of Hall and Gould Streets, Bondi. The applicant is seeking the removal of conditions that allowed a 12 month trial period for trading on a 24 hour 7 day (24/7) basis, so the development can operate these hours on a permanent basis.

2 Accordingly, the Council contends that:

• The proposal does not satisfy the objectives of the 3(a) Business Zone, namely 1(c), which seeks to control the physical and functional characteristics so as to minimise their impact on neighbouring residential properties.
• The proposed extended trading hours are excessive in this designated ‘Area B’, according to the DCP provisions.
• The extended trading hours are not in the public interest.

3 The consent for the store was originally granted by the Court on 15 November, 2004. The conditions of consent included:

2(a) The hours of operation of the premises shall be from 6.00am to 12 midnight 7 days a week, and
2(b) The hours of operation of the premises shall be from 12 midnight to 6.00am 7 days a week for a trial period of 12 months commencing from the date of occupation of the premises (“Trial Period”).

4 Subsequently, the store commenced operations on 24 March 2005.

5 Then on 4 July 2006 a Section 96 modification was granted to extend the 1 year trial period for 24/7 trading for another 5 year trial period subject to condition 2(b) being amended as follows:

2(b) The hours of operation of the premises shall be from 12 midnight to 6.00am 7 days a week for a trial period of 12 months commencing from the date of approval of the Section 96AA lodged with Waverley Council on 8 March 2006 (“Trial Period”). Any deliveries to the premises shall only be undertaken between the hours of 7.00am and 6.00pm

The extension in the trial period is solely related to the existing use. A separate application for hours of operation will need to be submitted to Council should the current use cease to operate and a new use is proposed.

6 On 8 January 2007, the Court granted consent to a further s 96 modification, including the following conditions:

2(b) The hours of operation of the premises shall be from 12 midnight to 6.00am 7 days a week for a period of 12 months commencing from 8 January 2007 ("Trial Period").

7 In response to matters raised by the neighbours, the following condition 36 was also added:

36. The Applicant will be at the Applicant's sole cost and expense arrange for parking surveys to be undertaken in Hall Street between the hours of 10.00pm and 12 midnight at five and 10 months during the Trial Period. The surveys shall be undertaken by an independent traffic consultant appointed by the applicant and approved by the Council. The applicant shall give the Council 7 days notice of when each survey will take place and a copy of the report shall be promptly submitted to the Council following completion with a letter advising that the survey has been undertaken in accordance with this condition of consent.

8 WaverleyLocal Environmental Plan 1996, (WLEP). The site is within the Business General 3(a) zone and the development is permissible with consent. The following zone objective is relevant:

1.(c) to control the physical and functional characteristics of business centres so as to minimise their impact on residential areas.

9 Waverley Development Control Plan 2006 (WDCP 2006). This comprehensive DCP came into operation after the initial lodgement of the development application and its approval was granted.

10 Part E1 contains the controls for retail and commercial premises, wherein the objectives relevantly include to:

(a) apply consistent controls to retail/commercial premises within the LGA;
(b) minimise any potential adverse impacts from retail/commercial premises on the surrounding environment;
(d) provide a basis to regulate the trading hours of retail/commercial premises;
(e) allow for the monitoring of operations of retail/commercial premises, primarily through the use of trial periods for extended trading hours;
(g) ensure the operation of retail/commercial premises are compatible with adjoining residential uses and are in accordance with the amenity expectations of this Part and the subject site and locality’s zoning(s);

11 To achieve these objectives, the DCP lists the hours of operation for various type premises. The subject premises are classified as:

2.4.2 Type B Premises
1. Business Zones (General)
Subject to all other aspects of the development being satisfactory, Type B premises in 3(a2) (Business General Zone) under JLEP 1991 and in 3(a) Business General zone under WLEP 1996 shall be permitted to trade as follows:
(a) General maximum hours: 7.00am – 12.00 midnight 7 days a week; or
(b) 1 year trial hours:
(i) 7.00am to 1.00am 7 days a week unless residential uses are in close proximity.

12 Section 2.4.4 prescribes the following trading hours for Bondi Beach:

(b) Area B – 7.00am to 12.00 midnight 7 days a week.
Note: Where residential uses are in close proximity, more restrictive trading hours may be applied. Furthermore, an extension of the core hours will be considered on a trial basis only.

13 Section 2.4.5 lists the matters Council will consider in applications for extended trading hours and review of trial periods. This section notes that trading hours outside of standard trading hours will not be granted on a permanent basis.

14 Part F5 contains controls for Local Village Centres and Part I the controls for Land Use and Transport.

15 A detailed joint town and social planning report was tendered from:

• Ms A Rossi; Planner, Waverley Council,
• Mr P Strudwick; Consulting planner – Urbis,
• Ms R Saltman; Consulting social planner – RM Planning.
  

16 A number of neighbours expressed their concerns orally and these have been considered in conjunction with the written objections. These objections relate to:

• Anti-social behaviour such as noise, violence,
• Traffic noise associated with delivery and garbage trucks,
• Adverse impact on residential amenity,
• Littering,
• Increase in crime.

17 From this evidence, the main issue concerns the amenity impacts of the early morning (midnight – 6.00am) trading, in terms of compliance with the business zone objectives, DCP controls and consequential impact on residential amenity.

18 As previously noted, the extended trading hours in the previous consents were granted on a ‘trial basis’, in part because there was no relevant development controls. Then during the course of the trial period WDCP 2006 (as amended) was adopted. It now contains the preferred operating hours for the subject premises, which is located within Area B, in the Bondi business area. Accordingly, the standard hours allowed are 7.00am to midnight 7 a week.

Zone objectives

19 Ms Rossi says that the proposal does not comply with the zone 1(c) objective because the premise is located within close proximity to Campbell Parade and other commercial activities, including restaurants, bars and hotel as well as residential units. These premises generate noise and activity associated with nightlife activities, which interfere with residential amenity. As there are no other commercial premises operating on a 24/7 basis as proposed, this is out of character with the area and likely to diminish residential amenity.

20 Against this, Mr Strudwick says that notwithstanding the existence of nearby residential dwellings, the site sits amongst a variety retail and commercial uses, which attract high levels of activity throughout the day and night. Therefore the amenity is not akin to a quite suburban area and the convenience store is acceptable on the basis that conditions of consent, including a plan of management (POM) can control this.

DCP Controls

21 This issue concerns the development’s trading from midnight to 7.00am (ie. early hours) and compliance with DCP. Ms Rossi does not support the extended trading hours because she considers the intention of these controls is for this part of Bondi Beach to effectively be a non-trading area during early hours of the morning. Furthermore, the classification of a convenience store as a “Type B” premises acknowledges the fact that it is an unlicenced premises, which nevertheless continues to warrant non-operation during the early hours of the morning.

22 As such, she says that the 24/7 trading encourages people to remain in the area after the closing time of nearby restaurants, bars and hotels close at night. This allows unreasonable opportunities for adverse impacts on the surrounding neighbourhood due to anti-social behaviour, increased noise, crime and increased littering.

23 However Mr Strudwick says that the DCP provides for trial periods and the results to be reviewed under cl 2.4.5. On this basis, the proposal is acceptable because:

• The local Police have not received any complaints regarding the stores 24-hour operation during the 2 x 12 month trial periods in which the store has operated, meaning that both trials have been successfully completed.
• The two incidents of theft that have occurred in connection with the premises did not necessarily constitute ‘failure in the trial period’.
• That on review of Council’s file, the issues for consideration within points (a) – (g) within cl 2.4.5 have been satisfactorily addressed during both trials.
• Those residents that potentially could be most affected by the proposal (ie those units located directly above the existing store) had not lodged a complaint in the past 12 months, nor had lodged an objection in response to Councils public notification.
• Various conditions that seek to control vehicle and human noise disturbance are currently included within the existing development consent and proposed Plan of Management.

24 On this basis, Mr Strudwick supports the proposal because he considers it has satisfied the DCP trial criteria.

25 In addition to the planning evidence, Ms Saltman undertook a survey and assessment of the land usage in the neighbourhood. This survey provided a profile of patrons, their place of residence, movement patterns in relation to the store and buying patterns. Some 451 persons responded to the survey.

26 The survey results include:

• 58% were male and 42% were female,
• age distribution, distance to residence, access mode, reason for use store, next destination,
• an analysis of store patrons who had come from licensed premises,
• the most prevalent purchases by patrons were food (hot food, chips, pies, muffins etc), drinks, cigarettes, grocery items, phone cards and bus tickets.

27 Ms Saltman also reviewed complaints in respect of the store, finding no substantive record of complaints.

Conclusions

28 Having considered the evidence, submissions and undertaken a view, I do not consider this application for permanent 24/7 trading merits consent.

29 Whilst the controls permit the subject store, it is on the basis that any such developments demonstrate reasonable compliance with the zoning provisions and relevant development controls. Accordingly, the zone objectives require a balance between commercial and retail activity/usage, so as to achieve a satisfactory level of amenity for neighbouring, residential properties.

30 In this case, there are residential properties in close proximity to the store. This includes residential units above the store in the same building and the adjoining apartments above the neighbouring ground level shops. The amenity of these residents warrants consideration.

31 Detailed evidence was given by a number of the neighbours, who say that they have experienced reduced amenity in the late night/early morning period due to antisocial behaviour, harassment, noise disturbance and increased truck movements by service delivery vehicles. They attributed a significant part of this “problem” to the patrons of the store. However, the direct connection of all these disturbances by the store patrons was not fully established in my assessment.

32 This is generally consistent with the evidence on behalf of the applicant that there is no substantial record of adverse amenity arising from its operations in the trial period. In support of its application, the applicant’s submission is that the conditions of consent have been complied with, including the implementation of the service delivery plan to minimise noise disturbance is. Also a CCTV camera is installed and there is a complaints register, which has not recorded any significant problems.

33 In light then of this disparate evidence concerning the amenity impacts in the "early-morning" period, I note the site is located within Area ‘B’, which Ms Rossi says is not intended for 24/7 trading. This is to achieve the desired level of residential amenity in this secondary Area B. I accept the evidence that nearby parts of Bondi, particularly Campbell Parade, which is differently classified as primary Area A, contains late-night trading developments, the majority of which close at midnight.

34 As a consequence, I also accept that some of the patrons leaving these premises will use Hall Street for various purposes, possibility causing some disturbances or reduction in amenity for the residential users, as stated by Ms Rossi. It then seems to me the controls recognise the mixed commercial and residential uses and endeavour to achieve a reasonable balance between these different uses. This balance involves no early morning trading in the subject “Area B’.

35 If the subject development is allowed to continue early morning trading, I consider it’s opening will attract patrons to this area with the likelihood of diminution of residential amenity, which is contrary to the controls. The trial period confirms this based on the objector’s evidence, which I consider should be given some weight rather than being disregarded. As such, it is unlikely to satisfy zone objective 1(c), which is to control the functional characteristics of the business centre so as to minimise impact on the neighbouring residential areas.

36 In reaching this conclusion, I also consider some weight should be given to the opinion of Detective Inspector Smith whose experience shows that convenience stores and fast food outlets trading in close proximity to late trading premises will attract intoxicated persons leaving those premises. Such gatherings of intoxicated persons inevitably result in an increase in incidents of assault, robbery, malicious damage and general anti-social behaviour.

37 These concerns are consistent with the experience of the objector’s evidence. In these circumstances, I give reduced weight to the apparent lack of reporting of complaints/anti social behaviour because often members of the public are often not prepared to act or report this in the early morning hours. Accordingly, I do not consider the public interest is well served by allowing the continuation of the 24/7 trading.

38 Accordingly, I therefore consider heightened weight should be given to the provisions of section 2.4.4 of the DCP, so that the zone objectives are achieved.

39 Insofar as Mr Strudwick supports the development because it satisfies the tests in section 2.4.5 dealing with trial periods, I do not consider this is an appropriate test, in the circumstances, to be given determinative weight. It seems to me that the planning controls seek to restrict ‘early morning’ trading in this Area B to achieve the appropriate balance for residential amenity. The aforementioned test mainly applies to designated trial periods, which would be for a 1 hour extension to 1am in the business zone, not 24/7 trading. Therefore, I do not consider the apparent absence of environmental disamenity warrants a significant change to the planning intentions for this area.

40 In support of the application reference was made to various cases including Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSW LEC 83, where His Honour Lloyd J said at paragraph 16:

… That is not to say that the standards and controls in Development Control Plan No 35 should be ignored. They should be taken into consideration. A failure to comply therewith, however, will not necessarily be fatal to the application provided that it is otherwise satisfactory. Although the previous development control plan (Development Control Plan No 20) is now repealed. Its controls may also be taken into consideration as indicative of standards and controls which applied when the development application was made.

41 From this, I am satisfied that it is reasonable to take into consideration the provisions of DCP 2006, in considering the subject application. Accordingly the DCP does not allow 24/7 trading, so as to achieve to desired level of residential amenity. As stated previously, I have given the DCP heightened weight due to the amenity concerns and public interest matters raised by the objectors and the fact that there were no relevant development controls when the trial period was granted.

42 In the matter of North Sydney Council v Michael Standley & AssociatesPty Ltd [1998] 43 NSWLR 468 at 483, the approach to be undertaken in modification applications confirmed the need to assess the impact and effect of the modification on that already approved and take into account relevant effects or impacts. Accordingly, I consider that the trial period has resulted in the diminution of residential amenity based on the objectors evidence, which I give heightened weight and that the approval for permanent 24/7 trading would result in a fundamental change and adverse amenity effects and impacts, which is inconsistent with the amenity balance stated in the LEP objectives.

43 Reference was also made to Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council [2005] NSW LEC 747 (23 December 2005), which dealt with the statutory modification power available when the relevant planning law has changed between the original grant of consent and the making of the modification application.

44 In summary then, I acknowledge that the detailed development controls, particularly the ‘early morning’ trading hours came into effect after development consent was granted. However the conditions imposed were provisional in that the 24/7 trading was allowed for a 12 month trial period, in the absence of any detail development controls for the area.

45 The more recent DCP contained objectives and associated controls the operating hours in the commercial area, which are to achieve the desired amenity in this mixed-use commercial zone. In the current circumstances, I am satisfied that these controls should be given some weight rather than set aside. On this basis, the premise is in a secondary commercial area, as compared to the primary commercial area in Campbell Parade, where desired residential amenity does not include 24/7 trading.

46 In the ultimate, I give heightened weight to the DCP provisions in section 2.4.4 and the evidence of the neighbours that the early morning trading during the trial period has increased adverse impacts on the residential amenity of this area, rather than minimised it and therefore the public interest in not well served by permanent 24/7 trading for this store.

47 Notwithstanding this, I accept from the surveys that there is some benefit to residents from late trading and consider it reasonable for early morning trading from 12 midnight until 1.00am could be permitted for a 12 month trial period, which is generally in accordance with the DCP provisions for the business area. Also that the store can open at 6.00amm for this further trial period. This will allow monitoring of resultant amenity impacts to facilitate future decision-making regarding the appropriate commercial/residential amenity balance in this mixed-use zone.

1 The appeal is upheld in part.
2 The s 96 modifications to DA 300/2004 for the 7-Eleven Store at Hall Street, Bondi are allowed subject to the conditions in Annexure A.
3 The exhibits may be returned except for 2, 4 and B.

___________________

R. Hussey
Commissioner of the Court
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