Alahmad v Randwick City Council

[2011] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alahmad v Randwick City Council [2011] NSWLEC 1240
Hearing dates:	14 July 2011
Decision date:	16 August 2011
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	Appeal dismissed, development consent refused
Catchwords:	DEVELOPMENT APPLICATION - extended hours, late-night trading, anti-social behaviour
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Randwick Development Control Plan
Cases Cited:	Garlick v Randwick City Council [2009] NSWLEC 1012 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004
Category:	Principal judgment
Parties:	Yasser Alahmad (Applicant) Randwick City Council (Respondent)
Representation:	Counsel Mr J Doyle (Applicant) Solicitor Mr P Rigg (Respondent)
File Number(s):	10243 of 2011

Judgment

Background

1. This appeal was lodged against council's refusal of application to modify the hours of operation of a convenience store located at 250 Coogee Bay Road, Coogee.

1. The shop is located within a two-storey building situated between Arden Street and Brook Street. It has a 4.6m frontage. The locality is within the general business strip of Coogee, which predominantly consists of restaurants and take-away foods facilities with shop top/first floor residential accommodation.

1. The Coogee Bay Hotel is located immediately across the road and extends towards the intersection of Coogee Bay Road and Arden Street. A Woolworths supermarket is located in the Coogee Bay Village centre and trades up until 10 pm, 7 days a week.

1. Development consent was granted to the convenience store in September 2008, subject to the operating hours of 6 am to 12 am Monday to Saturday and 6 am to 10 pm on Sunday. The modification sought is to operate from 6 am to 3 am, 7 days a week.

1. The main issue identified by Council concerns social impacts arising from late-night trading.

Planning controls

1. The property is subject to the controls contained within the Randwick Local Environmental Plan 1998 (LEP), under which the site is zoned 3A General Business. Neighbourhood shops are permitted with consent within the zone. The LEP contains a number of aims, from which the following was identified as of particular relevance:

(k)   to encourage consideration of social consequences when decisions are made in the implementation of this plan, and

1. Clause 13 contains the following relevant zone objectives:

(a) to maintain the viability of existing business centres, and...

(b) to facilitate the orderly and economic development of land as business centres, for commercial, retail, residential and community purposes by: ...

1. The provisions of the Randwick Development Control Plan also apply and there is also the Randwick Council Crime Prevention (CCP)/and Community Safety Plan (CSP) i.e. CP. It identifies the Coogee Beach precinct as a 'hot spot' for alcohol related crime. The CP states that in order to reduce the potential for incidence and alcohol-related anti-social behaviour during late-night periods, between 12 midnight and 6 a.m. the Council shall impose a maximum 12 midnight trading hour on late night food premises in Coogee.

The evidence

1. Detailed planning evidence responding to the issues was presented by:

• Mr L Winnacott; consulting planner for the applicant,
• Mr G Turrisi; consulting planner for respondent.

1. Constable S Williams, Maroubra police crime prevention officer presented a crime risk assessment for the subject development. This was based on the provisions of the Crime Prevention through Environmental Design (CPTED) document, which is a situational crime prevention strategy that focuses on the design, planning and structure of cities and neighbourhoods. It aims to reduce opportunities for crime by employing design and place management principles that minimise the likelihood of essential crime ingredients from intersecting in time and space.

1. Applying the risk assessment methodology, Constable Williams concludes that the approval of the development would result in a high overall project crime risk rating .

1. Mr Turrisi reviewed other late trading establishments in the area and confirmed that the principal concern is that extended trading hours will likely contribute to the current unsatisfactory level of anti-social behaviour in Coogee by enabling people to stay longer in the area. Accordingly, he refers to the CP wherein Coogee is identified as a "hotspot" for alcohol related assaults, which occur mainly on weekends, predominantly between midnight and 6.00am.

1. Mr Turrisi says that significant weight should be given to the CP because it has been prepared involving widespread community consultation. Accordingly, he considers that the proposal to extend late night trading is contrary to the CP policies, which are to minimise crime and anti-social behaviour in the Coogee area by restricting the number of late night trading premises after midnight.

1. As part of his assessment of the proposal, Mr Winnacott considered the range of products sold and supports the application on the basis that:

• The subject premises have been trading as a convenience store since 2008 with approved trading hours Monday to Saturday 6am - 12 midnight and Sunday 6am - 10pm.
• Products for sale in the store include confectionery , grocery items including various packaged foods , soft drinks , milk , toiletries , pharmaceuticals (non prescription) , tobacco , general merchandise for people visiting the beach and tourists .
• The premises do not operate as a takeaway food shop or involve any food preparation .
• No seating facilities are provided within the premises for customers and purchasers are usually completed in approximatel y 2-5 minutes with customers then leaving the store and proceeding on foot along Coogee Bay Road in either direction.
• Customers of the store are drawn from ;

- Residents of the surrounding area, including shift workers,

- Residents of backpacker establishments ,

- Visitors to the area, including patrons of other businesses including licensed premises and restaurants etc,

- Hotel staff, including when coming off shift,

- Late night cleaning staff working in the area,

- Guests of the hotel opposite ,

- Taxi drivers,

• Security facilities have been included in the premises including; - 4 ceiling security cameras within the shop and a display screen ,

- Security door to cashier counter ,

- Buzzer for cashier to alert Police of any incidents ,

- Front door lockable key at cashiers' desk. It is proposed that after midnight the front door will be locked and only opened by the cashier for customers deemed to be suitable for entry to the premises .

• A plan of management for the business has been submitted with the modification application .
• During the early and mid evening periods the commercial strip along Coogee Bay Road is very busy with people visiting the various business premises including restaurants, shops and licenced premises. However by 11.30pm the restaurants and shops have closed and the only businesses operating are the licenced premises, the takeaway food shops opposite the hotel and in Arden Street, the McDonalds Restaurant in Arden Street, Dominos Pizza shop and the convenience store in the subject premises. At this time most concentration of people activity along Coogee Bay Road is at the eastern end towards Arden Street with little activity other than occasional customers in the vicinity of the convenience store . At this time also numerous taxis are queued in Coogee Bay Road and Arden Street to provide transport for patrons of the hotel. Security staff patrol the hotel entrances in Coogee Bay Road.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, it is apparent that the threshold issue concerns the weight to be given to the CP's restriction on late-night trading after midnight. Insofar as the CP is not an adopted DCP, it appears to have gone through an extensive, widespread public consultation process and subsequently applied as a council policy.

1. It seems to me that this policy approach is consistent with that outlined by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004, where he examined the status of development control plans and other policy documents and stated that:

88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court.

89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210).

90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.

92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

the extent, if any, of research and public consultation undertaken when creating the policy;

the time during which the policy has been in force and the extent of any review of its effectiveness;

the extent to which the policy has been departed from in prior decisions;

the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

1. Applying these points to the subject CP policy, my assessment is that:

·   The policy has been adopted after detailed community consultation.

·   I understand that council has been consistently applying the policy since its adoption in December 2008 and that it provides for an annual progress report. Furthermore, council contributes towards an annual budget of $50000 for public transport in the area.  This involves maintaining the Pumpkin Bus that transports patrons leaving the licenced premises to public transport nodes.

·   The policy is consistent with the current controls wherein the 3A zone objectives relevantly include:

§   (j)  to enhance individual and community economic well – being and welfare and safeguard the welfare of future generations,

§   (k)  to encourage consideration of social consequences when decisions are made in the implementation of this plan,

·   The policy is consistent with the crime prevention guidelines issued by DUAP in April 2001 that highlight council’s obligations to ensure that a development provides safety and security to users and the community.  This obligation is exercised under the s79C considerations of:

o   The likely impacts of that development, including the environmental impacts on the natural and built environments, and social and economic impacts on the locality.

o   The public interest.

·   In an overall sense, the policy is therefore consistent with the provisions of the LEP so as to be accorded significant weight.

1. As noted, reference to the CP then confirms that based on consideration of crime data, consultation with community, stakeholders and agency partners that Coogee is clearly identified as a crime "hotspot" for alcohol related anti-social behaviour after midnight. Whilst there are a number of approved late-night trading establishments, including the Coogee Bay Hotel, it appears that some patrons still cause anti-social behaviour.

1. In order to address this unsatisfactory situation, the CP does not allow for the proposed extended hours. It appears from the evidence that when the subject use was first applied for in mid 2008, the council assessment report identified that:

"For sometime, concerns have been raised with Council in regard to the late night operation of food premises at Coogee. The late night operation of food premises encourage patrons to of the surrounding hotels/night clubs to loiter in the area, leading to or exacerbates incidents of violence and alcohol related anti-social behaviour in Coogee.

1. Accordingly, I do not consider there was any compelling evidence submitted that indicates some significant change of circumstances that would now result in the setting aside of the CP policy. From my observations, the products in the store include a significant area for souvenirs, basic snacks, confectionary and other toiletries, the restricted sale of which after midnight is unlikely to cause any material disadvantage to the general public. This takes into account the existing operating hours of the Woolworth supermarket and the other existing approved late-night trading premises, which sell food.

1. Insofar as submissions were made to the decision in Garlick v Randwick City Council [2009] NSWLEC 1012, wherein consent was granted in January 2009 for late-night trading to 4am for a "pie shop" nearby at 266 Coogee Bay Road, that judgment makes no reference to the CP. In the circumstances where I am satisfied that the CP should be given significant weight, I do not consider the "pie shop" consent results in any precedent to be followed. Notwithstanding this, the "pie shop" is located closer to the Arden Street than the subject premises and consequently it seems that this would be the preferred direction for departure of patrons, rather than encouraging them to traverse further into the "closed down" western part of Coogee Bay Road.

1. In summary then, I am satisfied that the overall public interest considerations of public safety should override the private interest of late-night trading in the current matter. Coogee is a crime "hot spot" where there are detailed policies in place to deal with this. They are supported by the police with one of the principal strategies is to assist patrons leave the area after midnight, rather than provide more opportunities to stay in the area, which would be the case with the approval of the subject application.

Court orders

1. The Court orders that:

(1)   The appeal is dismissed.

(2)   Development consent for late-night trading until 3 a.m. for the convenience store at 250 Coogee Bay Road, Coogee is refused.

(3)   The exhibits may be returned except 3, 7, 8 and A.

R Hussey

Commissioner of the Court

Decision last updated: 16 August 2011