7-Eleven Stores Pty Ltd v Waverley Council
[2004] NSWLEC 591
•10/21/2004
Land and Environment Court
of New South Wales
CITATION: 7-Eleven Stores Pty Ltd v Waverley Council [2004] NSWLEC 591 PARTIES: APPLICANT
RESPONDENT
7-Eleven Stores Pty Ltd
Waverley CouncilFILE NUMBER(S): 10925 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Conversion of a building into a convenience store - economic impact and competition - traffic congestion and goods unloading - security and anti-social behaviour
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 21/10/2004 EX TEMPORE
JUDGMENT DATE :10/21/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr A Galasso, barrister
Mr M A Staunton, solicitor
SOLICITORS
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
21 October 2004
JUDGMENT10925 of 2004 7 – Eleven Stores Pty Ltd v
Waverley Council
1 This appeal involves a development application for the change of use and fit out of an existing two-storey commercial building for a 24-hour, seven days per week convenience store. Works associated with the proposal include alterations to the external facade including new doors and signage. The ground floor level will be used as a retail space and the upper level of the building will be utilised as an office space associated with the convenience store.
2 The site comprises No 1 Bronte Rd., Bondi Junction being Lot X in DP 313798. The subject building forms part of a row of retail shops nine has 1-3 Bronte Rd which have their "retail facade" listed as a heritage item. No issue was raised in the heritage context.
3 The site is zoned Business General 3(a2) under the Waverley and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre. The proposal is permissible with development consent.
4 The predominant character of the locality is one of mixed retail, commercial and residential, with high pedestrian use. Just to the north of the site is the Bondi Junction transport interchange
5 The matter began on site with an inspection of the premises and its locality together with a discussion between myself, the applicant, Mr Galasso, Mr Staunton. Various documents were tendered including the report of Miss Debra Laidlaw – the Court appointed expert town planner. That report dealt with all of the issues raised by the council and concluded that the proposal is reasonable and suitable for approval subject to a number of conditions. The single objector Mr D Black also gave evidence explaining his concerns.
6 Following those events the hearing resumed at its premises in Macquarie Street where I heard submissions from Mr Galasso and Mr Staunton. Mr Staunton explained to the Court that the council now accepts the report of Miss Laidlaw, notwithstanding the objection, subject to a number of conditions. The conditions have been incorporated into a set of conditions of consent which the council has invited the Court to incorporate into a consent should the Court decide to uphold the appeal.
7 Despite this Mr Staunton invited the Court to give particular consideration to Mr Black’s objections. In the objection Mr Black identified 4 separate matters of concern to him. He is the national operations and development manager of Night Owl Convenience Stores Australasia. That organization I gather is the umbrella company associated with Night Owl Convenience Stores, one of which is operated by a franchisee in the nearby vicinity of the subject site.
8 The matters of concern raised fall under the headings of suburb ambience, traffic congestion, mall security and economic rationale.
9 Miss Laidlaw has effectively dealt all of these matters in her report, and she found no support for any of them but I should nevertheless consider them.
10 Dealing firstly with the issue of economic rationale, Mr Black refers to the likelihood of an adverse effect on the turnover of existing convenience stores in the locality. Clearly this is a matter of competition and as Mr Galasso submitted there are a number of authorities on this issue to the effect that direct competition is not a planning consideration and should not be taken into account. There is of course the proviso that if a particular development results in a reduction of facilities or services in a particular locality and where those facilities or services would be important to the community then it could be taken into consideration. However, this is a case where the proposal will reinforce the present situation rather than take anything away. In the circumstances, I agree with Miss Laidlaw’s conclusion that this is not a determinative matter. In addition, in this context and more generally, Miss Laidlaw dealt with the matter of there being 4 convenience stores within 100 m – 500 m of the site. She noted that council has no particular policy in this regard despite council having recently undertaken community consultation as part of its strategic plan for Bondi Junction.
11 The next matter of concern to by Mr Black was that of suburb ambience involving the over supply of convenience stores and the consequences associated with traffic and loading and unloading of goods for the shop. I note that there is no loading facility requirement by the council for shops of this size. I also note that there is no loading zone other than a truck zone opposite the site that this store would be able to use in the immediate vicinity of its front door. There are however loading zones a short distance away and whilst such facilities appear to be at a premium I do not expect that unloading and delivery of goods for this shop would be so unreasonable, taking into account existing congestion, that this is fatal to the application. This was not of critical concern to Miss Laidlaw who also concluded that taking into account that this shop will rely primarily on passing trade and despite the absence of any specific car parking for this shop this should not be problematical. It is also relevant to take into account the fact that that this is an existing shop in a group of shops none of which has any off-street parking. Again I agree with her that this not a determinative matter.
12 Also, dealing with the matter of traffic congestion, concerns about illegal parking are matters for the appropriate authorities and it is not for the Court to presume that unlawful traffic activities will take place as a result of this development.
13 Turning now two the issue of security; there is no disagreement that the nearby Oxford Street Mall is one where people congregate not only during the day but also throughout the night. Mr Black and Miss Laidlaw agreed that these people from time to time behave in a manner that might be described as anti social. Mr Black suggested that should this shop proceed on a 24-hour basis the "bad elements" from the Mall will be encouraged to gather in Bronte Rd causing further security problems. The security provided by this shop will not in this context be sufficient to cope.
14 In response to these concerns Miss Laidlaw argued that the provision of a well lit store with appropriate security would be of some benefit in creating a night-time presence in this locality. She disagreed that this shop would be a source of behavioural problems although it cannot be denied that those persons frequenting the Mall late at night might come to this and indeed other convenience shops during late night hours.
15 Miss Laidlaw pointed to the council’s strategic plan preparation and as part of that process it was concluded that there is a need for a thriving business and retail centre where a large range of good quality retail services are available, including the provision of quality night time activities. The proposal she said is responsive to this. More generally she pointed out that the strategic plan reflects a community concern over safety but also a feeling that if Bondi Junction was more alive at night then this might assist in addressing security issues.
16 More generally the problems presently existing in the Mall are management issues, which are appropriately, dealt with in the context of the centre at large and council’s strategic plan includes this as a fundamental issue to be addressed. She concluded that there was no reasonable justification to preclude this shop on amenity, security or environmental grounds.
17 I agree with Miss Laidlaw, notwithstanding Mr Black’s concerns. It cannot be said that this shop will by itself generate anti-social behaviour. Moreover even though persons utilising the Mall late at night might be attracted to this shop, it should not take direct responsibility for the behaviour of those persons. Secondly I particularly agree with what she said about how the provision of a well lit shop with appropriate security would benefit this locality by creating a night time presence
18 In all of the circumstances I have decided that the appeal should be upheld and conditional development consent granted in accordance with the conditions in Exhibit 3.
19 The Court orders that:
1. The appeal is upheld.
2. Development application No. 327/04 for the conversion of the existing building at 1 Bronte Road, Bondi Junction, to a convenience store is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.
3. Exhibits 3, A and B are retained.
Annexure “A”
Conditions of Development Consent
- 7 – Eleven Stores Pty Ltd v Waverley Council
That the Council, as the consent authority, approve development application DA-327/04 change the use of the existing retail space at 1 Bronte Road, Bondi Junction to a “7-Eleven” 24 hours per day 7 days per week convenience store, subject to the following conditions:
General Conditions of Consent
1. Compliance in all respects with plans numbered 2041-02 and 2008-03 Revision C and 2041-SP Revision C drawn by Clifton Development Consultants, dated 12/5/04 and accompanying Statement of Environmental Effects prepared by Urbis JHD, received by Council on 10 June 2004 except where amended by the following conditions:
2. Deleted.
3. Activities to be conducted in a satisfactory manner so as not to cause an nuisance or disturbance to the amenity of the surrounding neighbourhood.
4. The applicant is advised that a Policy prohibiting the installation of roller shutter or grilles, in from of, or in place of standard window or shop front, came into effect in this Council at 23 June 1992. The Policy requires the retention of a glass shop front for window display purposes.
5. Minimum clearance between the underside of the under awning sign and the footpath to be 2.6 metres.
6. Under awning sign to be located not less than 1 metre from the northern boundary of the subject premises, nor closer than 3 metres to the existing under awning sign on the adjacent premises.
7. Deleted.
8. Deleted.
9. Full waste management plan must be submitted to Council to include all waste removal arrangements such as the Contractor, recyclables and other waste (collection and disposal) prior to the occupation certificate being issued.
10. A Pest and Vermin Control Management Plan must be implemented. Details of which are to be submitted to Council.
11. The premises must comply with the Food Act, Foods (General) Regulation and Food Standards Code thereunder
12. A report from a suitably qualified acoustic consultant shall be submitted to Council or PCA prior to occupation confirming that noise emissions from the operation of the installed mechanical plant and equipment do not give rise to:
· Transmission of unacceptable vibration at any place of different occupation
· A sound pressure level at any affected residential premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5 dB(A); and
· A sound pressure level at any affected premises that exceeds the DEC, INP recommended acceptable noise levels modified to account for the existing level of stationary noise at the receiver location.
13. Deleted.
14. Deleted.
15. Confer with Sydney Water regarding whether a trade Waste Agreement is required. A copy of the agreement shall be forwarded to Council if one is entered into with Sydney Water.
16. The premises shall not provide prepared food to its customers in any non-recyclable or non-biodegradable polystyrene foam packaging for such purposes. This condition is imposed having regard to Section 79C (1) of the Environmental Planning and Assessment Act 1997 to prevent the use of environmentally harmful materials.
17. Deleted.
18. The applicant must arrange for an inspection by Councils Environmental Health Surveyor prior to Occupation.
19. Premises to be registered with Council’s Planning and Environmental Services (Health) department prior to Occupation.
20. A deposit or guarantee satisfactory to Council for the amount of $1,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
Note: This deposit or guarantee must be submitted be submitted before a construction certificate is issued. The full amount of the difference after recovery of Council’s cost for any repair of damage to Council property, will be refunded after satisfactory completion of the building work.
21. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.
22. The building work must not be commenced until:
(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act 1979; and
(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(2)(b) of the Environmental Planning & Assessment Act 1979 and Form 7 of Schedule 1 of the Regulations; and
(c) Council is given at least two days notice in writing of intention to commence the building works.
Should Council be appointed the Principal Certifying Authority, the applicant/owner is to pay an inspection fee in accordance with Council’s Pricing Policy prior to commencement of any works.The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principal Certifying Authority.
23. All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council’s footpath, nature strip, or road reserve without having obtained prior approval. Applications or enquires for the occupation of Council’s footpath can be obtained from Council’s Technical Services Section.
24. A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act 1979 have been satisfied.
25. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
26. The Principal Certifying Authority must be informed in writing before any site work, building or demolition commences of:
(a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work; or
(b) the name and permit number of the owner/builder who intends to do the work; and
(c) any change to these arrangements for doing of the work.
27. A smoke alarm is to be installed within the premises in accordance with requirements of the Building Code of Australia.
ACCESS
28. An accessible path shall be provided at least between the entry door and the sales counter in accordance with AS 1428.1.
a ILLUMINATION
29. Illumination of the footpath by light fittings installed internally or to the awning must provide the following maintained illuminance levels in both the horizontal and vertical plane, when measured 1.5 metres above the footpath:
a. a minimum average illuminance level of 10 lux;
b. a maximum illuminance level of 200 lux; and
c. an illuminance ratio (Eavg/Emin) not exceeding 4:1 to ensure the safe movement of pedestrians.
i. DELIVERIES
30. The applicant shall use its reasonable endeavours to schedule deliveries to the premises outside the period 12.00 noon to 2.00 pm.
________________
T A Bly
Commissioner of the Court
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