7-Eleven Stores Pty Ltd v Waverley Council

[2007] NSWLEC 5

Land and Environment Court

of New South Wales

CITATION:

7-Eleven Stores Pty Ltd v Waverley Council [2007] NSWLEC 5

PARTIES:

APPLICANT
7-Eleven Stores Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

10914 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Section 96 modification to late night trading for store

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

01/12/2006 - Judgment/Orders 08/01/2007

 
DATE OF JUDGMENT: 

8 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Johnson, barrister
SOLICITORS
Deacons

RESPONDENT
Mr M Staunton, solicitor,
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 January 2007

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

JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

Background

1 This appeal was lodged against Waverley Council’s refusal of a s 96 Modification application to alter the late night trading hours of a 7-Eleven Shop at 15 Hall Street, Bondi. The location is within the Bondi town centre. The full details of the site and planning controls contained in the Statement of Basic Facts on which I rely. Reference to the evidence shows that the 7 Eleven Store was approved by the Court and Orders made on 15 November 2004. Of relevance in these particular proceedings are the following conditions:

2A The hours of operation of the premises shall be from 6 am to 12 midnight 7 days a week
2B The hours of operation of the premises shall be from 12 midnight to 6.00 am 7 days a week for a period of 12 months commencing from the date of occupation of the premises (Trial Period).
2C If the applicant makes an application to council to modify this consent to permit 24 hour trading 7 days a week on a permanent basis within 30 days of the expiration of the trial period then the trial period will be extended by 60 days.
2D The Applicant or person acting upon this consent must no later than 28 days prior to commencing trading during the hours referred to in clause 2B notify the NSW Police at Waverly of its intention to commence trading.

2 Consequently, the development has proceeded on the basis of the 12 months trial period, operating for 24 hours per day. However, the s 96 modification application was subsequently lodged and it sought to modify these conditions 2 A to 2D, to allow a continuation of the 24 hour trading for 5 years as follows:

2A Hours of operation of the premises are permitted to continue 24 hours 7 days on a further trial period commencing from the date of this consent as modified;

2B If the applicant makes an application to council to modify this consent to permit 24 hour trading 7 days a week on a permanent basis within 30 days of the expiration of the trial period, then the trial period will be extended by 60 days and it was on the basis of a further 5 year trial period basis.

• Waverley Local Environmental Pan 1996,
• Waverley Development Control Plan No. 14 - Land Use and Transport,
• Waverley Development Control Plan No. 29 - Advertising and Notification of Development Applications.
• Retail and Commercial Policy (15 November 2005).
The evidence

3 In refusing this s 96 Modification, council acknowledged that it was prepared to allow a concession for a further conditional trial period on a basis for 12 months. Notwithstanding this, the appeal was lodged and the proceedings notified to the objectors.

4 A number of objections were lodged about general noise disamenity, antisocial behaviour of persons in vicinity of the shop and a particular concern was the noise emissions from the 7-Eleven delivery vehicle, including its compressor noise at late night hours.

5 After considering these objections the applicant responded by amending the application so that the 24 hour operation of the 7-Eleven Store is confirmed, on the basis of another 12 month period. This trial period would allow assessment of the amended service delivery arrangements, which are contained in Exhibit A. These arrangements specify the route of service vehicle, where it should stop and where it should turn off its compressor. Importantly it allows for these deliveries from 10 to 12 pm at night from Hall Street.

6 Having heard the evidence and the submissions, I am satisfied that the intent of the original consent has been substantially satisfied. I note that in the interim period from the original consent council has adopted its retail and commercial policy, which then is a matter for consideration. Interestingly and relevantly it deals with the hours of operation, trial periods and delivery vehicles.

7 I note these general guidelines refer to a range of commercial development, some of which are obviously more sensitive in terms of amenity impacts, such as licensed premises near residential properties. Nevertheless, the guidelines do allow for trial periods in the different trading areas whereby the subject site is in Area B, which allows the period from 7 am to 12 midnight 7 days a week. The effectiveness of the development is then to be reviewed on the basis of the following evaluation criteria contained in s 3.3.5:

(a) compliance of the premises in terms of security and its general management;
(b) number and nature of substantiated complaints regarding the operation of the premises;
(c) compliance with conditions of consent; and evidence that the applicant has taken a pro-active stand in terms of industry best practice (eg membership of relevant professional associations such as local Liquor Accords, participation in public safety initiatives, effective risk management strategies etc).
(d) record of successful waste management on-site and cleanup and management of waste in adjacent public domain;
(e) availability of transport for patrons including taxis, buses, and parking areas.
(f) any other matters considered relevant to the environmental evaluation of the premises.

8 It appears from the evidence that the subject application demonstrates substantial compliance with this evaluation criteria, except for the delivery van arrangements. I note there have been no significant complaints to the Police Department and there are no formalised records of amenity complaints made to Council that have been produced.

9 However, the modification of the application is based on the delivery van being scheduled as per Exhibit A, which requires it being able to park in Hall Street and make the deliveries without undue disamenity. It is however, apparent that the delivery van will face strong competition for a parking space in Hall Street in the 10 to 12 pm period, particularly as other entertainment venues are operating in this attractive area.

10 In this event, it is likely that double parking may occur at times. But this is probably not uncommon in this busy commercial centre during normal day time hours, where regular deliveries are required. Consequently, the further trial period should enable assessment of the safety and efficiency of the proposed delivery arrangements.

11 In light then of the generally accepted operation of the 7-Eleven store during the initial trial period, I consider its 24 hour trading should be allowed to continue on the trial basis of the refined service delivery proposal outlined in Exhibit A. However, I consider that a cautious approach should be adopted so that in the event that this service van delivery does not work satisfactorily during the further 12 months period, then the continuing 24 hour operation of the 7-Eleven would likely need to be reviewed in terms of other acceptable delivery arrangements, which are not currently apparent.

12 In reaching this conclusion, I note that council was prepared to exercise some discretion so as to grant a further 12 months conditional trial period. I consider that this is a reasonable approach, particularly as the 24-hour operation is outside the recently adopted trading hours.

13 In summary then, I consider the s 96 Modification application should be allowed on the basis of a further 12 months trial period, subject to conditions being imposed relating to the service van delivery arrangements, introduction and maintenance of a complaints register and a reasonable parking survey to assess the late night parking availability. This should allow the establishment of an appropriate relationship between late night commercial activity and residential amenity in the commercial centre.

14 In this regard the view indicated that in the nearby lane between Hall Street and Roscoe Street, there is a convenient loading bay that is currently time restricted to 6 pm. A review and possible extension of this restriction would likely facilitate effective deliveries to the 7-Eleven and other commercial premises after usual trading hours, without any significant disruption to general parking in the area.

15 Accordingly, the 12 months trial period could facilitate this so that there is an overall public interest benefit. For these reasons then, I am satisfied that this s 96 Modification firstly relates to substantially the same development. Secondly that the objectors have been notified and their concerns considered and thirdly the merits had been carefully considered as above, which results in the following orders being made.

Court orders

1 The appeal is allowed.

2 The s 96 Modification to the conditions of consent for the 7-Eleven Store at 15 Hall Street, Bondi Beach, is allowed subject to the conditions in Annexure A.

3 The exhibits may be returned except for A and 4.


___________________

R Hussey
Commissioner of the Court
rjs