Alzoubi v Council of the City of Sydney

[2009] NSWLEC 1404

Land and Environment Court

of New South Wales

CITATION:	Alzoubi v Council of the City of Sydney [2009] NSWLEC 1404
PARTIES:	APPLICANT Muh'd Alzoubi RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10536 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT CONSENT :- Modification application Convenience store 24 hour trading
CASES CITED:	Borg Architects Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1305 Garlick v Randwick City Council [2009] NSWLEC 1012 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Zhang v Canterbury City Council (2001) 115 LGERA 373 Stockland Pty Ltd v Manly Council [2004] LGERA 472
DATES OF HEARING:	19 November 2009
DATE OF JUDGMENT:	3 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Dr S Berveling, barrister INSTRUCTED BY ANB Lawyers RESPONDENT Mr A Hawkes, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

3 December 2009

10536 of 2009 Muh’d Alzoubi v Council of the City of Sydney

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by the Council of the City of Sydney (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent D/2004/294 for premises at 38-46 Oxford St Darlinghurst (the premises).

2 The premises are located on the ground floor of a three-storey building on the northern side of Oxford Street Darlinghurst, between Liverpool Street and Oxford Square, and operate as a convenience store. Development consent D/2004/294 was granted on 30 April 2004 for fit out and use of the ground floor shop as a convenience store, with approved hours 8 am to 11 pm Mondays to Saturdays and 10 am to 10 pm Sunday. On 31 October 2006 a s96 application was approved to enable 24-hour trade seven days for a 12 month trial period. On 8 April 2008 a further s96 application was approved for 24-hour trade seven days for a further 12 month trial period, and the base hours of operation were increased to 6.00 am to 2.00 am the following day.

3 The applicant sought in the modification application that is the subject of these proceedings approval for 24-hour trade seven days for a further two-year period. The Council refused the application on the ground that unrestricted trading may affect the environmental amenity of the area and would not be in the public interest, and amended condition 46 to restrict hours of operation to between 6.00am and 2.00am the following day.

4 The issue between the parties is whether the proposed modification will result in detrimental impacts on the amenity of surrounding properties, including residents.

Planning controls

5 The applicable planning controls are the South Sydney Local Environmental Plan 1998 (the LEP), the South Sydney Development Control Plan 1997: Urban Design (South Sydney DCP 1997), and the City of Sydney Late Night Trading Premises Development Control Plan 2007 (the Late Night Trading Premises DCP).

6 The premises are within the Zone No 3 Business Zone under the LEP. Included in the principal objectives of the LEP are “to enhance the quality of life and well-being of the local community” (cl 7(b)). The objectives of Zone No 3 include “(a) to encourage suitable types of mixes of business activities including retail, commercial, professional and entertainment related land uses that increase employment opportunities and contribute towards the economic and social vitality of the area” and “(c) to improve the amenity and accessibility of commercial strips and centres for residents, workers and visitors in those areas”.

7 Part D of the South Sydney DCP 1997 provides Social planning design criteria, including Section 6 Cumulative Impacts and Trade-offs. The objectives are to manage cumulative impacts arising from development activity and to implement strategies to avoid or minimise this impacts, and to identify negative social impacts of development proposals and develop avoidance, minimisation or mitigation measures to address these. The performance criteria require development to take into account cumulative impacts and not exacerbate existing negative social impact or uses. Part E of the South Sydney DCP 1997 includes provisions for environmental design criteria.

8 The main aim of the Late Night Trading Premises DCP is to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties (cl 2.1). The Late Night Trading Premises DCP identifies a number of locations within the council area as Late Night Management Areas. The Character Strategies for these areas are provided in Appendix 1:

Late Night Management Areas are places within the City that:
• have historically been the focal points for varied late night social and recreational activity; or
• are, at least in part, places with a distinct late night entertainment character; or
• where this character is evolving and the Area is considered by the Council to have the capacity for an increase in late night trading premises

These places should be vibrant and multifunctional places where people can go out late at night in safety without affecting the amenity of nearby and residents. Patrons of late night trading premises should be able to take advantage of a diverse range of cultural and entertainment opportunities in close proximity to each other; without one particular type of late night use dominating which may usurp the diversity and attraction of the area.

9 The site is located within a Late Night Management Area and is classified under the Late Night Trading Premises DCP as “Category B Premises - Low Impact”:

e. Any other commercial premises which in the opinion of the Council may impact on the amenity and safety of a neighbourhood resulting from its operation at night.
Note: ‘e’ above may include such premises as restaurants, ‘BYO’ premises, cafes, theatres, karaoke venues, convenience stores, takeaway food shops and the like.

10 The indoor trading hours for a Category B Premises in a Late Night Management Area are Base: 6am to 2am the following day, and Extended: 24 Hours.

Evidence

11 The hearing commenced with a site view. Expert planning evidence was given on behalf of the applicant by Mr Anthony Betros and on behalf of the Council by Mr Kerry Nash. Senior Constable Kate Baker, Crime Prevention Officer at Surry Hills Local Area Command, NSW Police, gave evidence on behalf of the Council.

Impacts on amenity

12 The Council’s contentions relating to detrimental impacts on the amenity of the surrounding properties were in three parts: disturbance in terms of noise due to the congregation of intoxicated people along the footpath adjacent to the premises, contrary to cl13(1)(c) for Zone 3 Business under the LEP, and part 2.2(b), (c) and (g) objectives under the Late Night Trading Premises DCP; exacerbation of existing social and amenity impacts that local residents experience in terms of noise from people using Oxford Street after normal business hours, contrary to Part D: Social Planning Criteria- Cumulative Impacts and Trade-Offs in the South Sydney DCP 1997 and part 3.1 of the Late Night Trading Premises DCP; and the potential for congregation of persons leaving local pubs and clubs especially during lock out hours leading to the greater likelihood of anti-social or criminal activity in the immediate vicinity.

13 The Council also relies on the submissions made by adjoining and nearby owners and occupiers of buildings. The Council received four written submissions, including three objections. Those objections raised two primary issues of concern, the first being that late-night trading of the store would encourage people to remain in the area after leaving licensed premises resulting in noise, disturbance and antisocial behaviour; and secondly that the site contributes to the waste left by bar and night club patrons on the street.

14 In their reports Mr Betros and Mr Nash provided details of premises on Oxford Street between Taylor Square and Whitlam Square which have late night trading. Licensed premises on the same side of Oxford Street as the site and west of Crown Street include The Exchange Hotel, the Oxford Art Factory and The Gaff. The Burdekin Hotel is 200m further east on Oxford Street. Other licensed premises in the vicinity include the Colombian Hotel, on the southern side of Oxford Street. Senior Constable Baker identified four late trading convenience stores within a three block radius of the site: 35 Wentworth Avenue, 150 Liverpool Street, Pelican Street, and 103 Oxford Street. Mr Betros identified a number of late night trading food outlets, including a pizza shop, a kebab shop, and a Hungry Jacks on the opposite side of Oxford Street.

15 Senior Constable Baker provided a report to the Council as part of its assessment of the application. This report, dated 15 April 2009, recommended that the Council refuse the application, on the basis of there being cause for concern regarding the potential for increased antisocial and criminal behaviour. Particular issues of concern were the potential for the premises to provide a point at which persons might loiter, and which might act as a magnet for intoxicated persons who might, rather than leaving the area after departing nearby licensed premises, remain, causing various antisocial problems and leaving themselves open to victimisation or involvement in other illegal activities. Senior Constable Baker noted concerns that the interior layout did not allow for adequate visual surveillance; and noted that on her inspection of the premises on 15 April 2009 there had been extensive stockholding of drug-related paraphernalia on open display for sale in the store. Senior Constable Baker provided charts with details of incidents and offences in the area obtained from the Police COPS system. In her written statement prepared for these proceedings Senior Constable Baker commented:

The information gathered from COPS and BOSCAR, coupled with my own experience of the environment of the section of Oxford Street which includes the Cave Convenience Store, leads me to conclude that the majority of problems relating to antisocial behaviour and drug and alcohol-related crimes occur in the period midnight until 0600 hours on Fridays, Saturdays and Sundays. Whilst it is true that specific incidents cannot be directly attributed to the subject location, the very fact that such a business is open during what are clearly peak crime times for Surry Hills LAC presents a number of what I contend are contributory factors to the ongoing problems being experienced in the area. As I stated in my Development Application response (Annexure C, page 5),
“… A business such as this can provide a plausible reason for persons to be in the area where they may observe potential victims to be targeted. This premise also houses an external ATM, and this, coupled with the locations proximity to late trading licensed premises, could provide even greater opportunities for victimisation.”

16 In oral evidence Senior Constable Baker identified the licensed premises on Oxford Street subject to a lock out and those not subject to a lock out. Senior Constable Baker noted that from her observations on the site view there had been a significant change in layout of the premises and produce sold in the store since her report of 15 April 2009; there had formerly been hot food for sale, and on the site view there was no evidence of drug-related paraphernalia being for sale.

17 Mr Nash was of the opinion that the extension of trading hours would provide a source of attraction for patrons from The Exchange Hotel and The Gaff to congregate during the lockout period of 2.00am to 5.00am and potentially interfere with patrons queuing for entry to the Oxford Art Factory. Mr Nash noted from his observations on the site view that there had been an improvement in the premises, including the installation of extra CCTV cameras. He was of the opinion that there was merit in the police concerns about Thursday, Friday and Saturday being the critical times, and supported a reduction in trading hours to 12 midnight on Friday, Saturday and Sunday mornings. Mr Nash accepted that the concerns relating to loitering and incidents of antisocial behaviour were not associated with the convenience store, but rather with intoxicated people leaving licensed premises including The Gaff and the Exchange Hotel. There was potential for incidents when people stop at food outlets, or through interaction between groups of intoxicated people.

18 Mr Betros was of the opinion that there was no evidence that the proposed use is responsible for any adverse impacts which would warrant any contemplation of a reduction in hours, and that premises such as convenience stores should be encouraged as they sell food and drink which assists with dehydration and reduces the effects of alcohol. Mr Betros accepted that departure from the provisions of the Late Night Trading Premises DCP might be warranted if there were evidence of antisocial behaviour or non compliance with conditions concerning waste, noise and security, and referred to the two trial periods of 24 hour operation which he said gave him confidence that the premises could operate in accordance with conditions. Mr Betros also relied on his observations on two occasions after midnight, when he had not observed any issues with people moving along Oxford Street. Mr Betros was of the opinion that the convenience store provides a benefit to the locality, by providing access to water, food and cigarettes, and that loitering is not an issue.

Findings

19 I am satisfied that the application is consistent with the objectives of Zone No 3 Business in the LEP, in particular objective (a), as it contributes to the mix of retail uses in the vicinity and provides employment. It was common ground that there have been no recorded complaints to the police or council concerning the premises during the trial periods of 24 hour trading, the first running for 12 months from 31 October 2006 and the second since 8 April 2008. The parties differed as to the weight to be given to this, and the weight to be given to the provisions of the South Sydney DCP 1997 and the Late Night Trading Premises DCP.

20 The evidence of Mr Nash was that the approach of the 1997 DCP was to look at elements of social impact. Mr Betros’ opinion was that the 1997 DCP was primarily focused on urban design. Accepting that the focus of the 1997 DCP is on urban design, the concerns for cumulative impacts and negative social impacts relate to development in the broadest sense, and the need to avoid exacerbating negative social impacts is relevant in considering this application. There is no evidence of particular negative social impacts attributable directly to these premises during either of the two trial periods of extended hours.

21 In considering the weight to be given to the Late Night Trading Premises DCP, both parties relied on the discussion of McClellan J in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87]:

87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are:
· A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
· A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
· A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
· A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
· Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

22 It was common ground that the Late Night Trading Premises DCP had been adopted after widespread consultation. The applicant submits that the DCP has been consistently applied by council in determining applications for extended trading hours for both licensed and unlicensed premises in Oxford Street. The Council submits that in taking into account this DCP the Court should also have regard to the more recent amendments to the Liquor Act 2007 which have introduced lockout provisions, and on this basis the intent of the Late Night Trading Premises DCP has been largely overtaken.

23 Part 2.7 of the DCP provides for Trial periods for any extended hours, and states:

2.7 Trial periods
Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity.
Any extended hours (ie. beyond the “base” hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management.
If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base hours. Council will consult with an applicant prior to making such a determination.
Development applications for a renewal or extension of trial trading hours should be lodged within 30 days of the expiry of a trial period and applicants will be allowed a period of ‘grace’ from the termination of the trial period until the new development application has been determined.
During this period, the premises may continue to trade during existing approved trial hours.
...

24 Part 3 of the Late Night Trading Premises DCP provides:

3.1 Trading Hours and trial periods
a A renewal or extension of trading hours may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a plan of management (or management checklist) following the completion of a satisfactory trial period.
b Category A and B premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory.
c Trial periods may be permitted up to the following durations:

i. First trial – 1 year
ii. Second trial – 2 years
iii. Third and subsequent trials – 5 years
d Once the full range of extended trading hours are reached (as prescribed in Table 1), a DA must be lodged every 5 years to renew trading hours.
e If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base late night trading hours; or whatever hours have been approved as the maximum trading hours prior to the commencement of this DCP).

25 The Council accepts that the application the subject of these proceedings is consistent with these provisions of the Late Night Trading Premises DCP, however submits that the relevant issue is the cumulative impacts of late night trading in a crime hotspot.

26 The Late Night Premises Trading DCP commenced operation on 1 January 2008. Based on the Council records in Exhibit C, the Council has since April 2008 consented to extensions of trading hours consistent with, or more generous than, the Late Night Trading Premises DCP for 7 non-licensed premises on Oxford Street. In some instances NSW Police raised objections based on location within a high crime area and the risk of alcohol related crime; however, in the absence of complaints concerning the specific premises, approval was granted notwithstanding those objections. I agree with the applicant that the Council has consistently applied the approach adopted in the Late Night Trading Premises DCP, and that approval of this application would be consistent with that approach. However, while the provisions of the DCP, in particular parts 2.7 and 3.1, are to be considered as a fundamental element in, or focal point to, the decision-making process (Zhang v Canterbury City Council (2001) 115 LGERA 373), they are not determinative.

27 Part 2.6 of the Late Night Trading Premises DCP identifies issues to be taken into consideration in determining appropriate trading hours for night trading premises. These include the location and context of the premises, the specific nature of the premises, existing hours of operation of surrounding business uses, size and patron capacity, impact of the premises on the mix, diversity and possible concentration of late night uses in the locality, diversity of retail services within the area, and measures for ensuring adequate safety, security and crime prevention. These premises are located in an area where late night and early morning trading licensed premises attract considerable numbers of people to the area. The premises are located close to three licensed premises, The Exchange Hotel, The Gaff, and the Oxford Art Factory, which generate pedestrian traffic and queuing outside those venues. While the premises are located close to a number of licensed premises, the evidence before me does not establish that the premises themselves are linked to unacceptable antisocial behaviour, as was the case in Borg Architects Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1305 (which concerned The Gaff). The evidence before me of the two trial periods of 24 hour trading does not establish that the operation of this convenience store is likely to increase the number of patrons of the licensed premises or contribute to noise or instances of antisocial behaviour. There has been a change in the nature of food sold from the premises, and the evidence of Senior Constable Baker and Mr Betros was that this convenience store would operate differently to a food outlet serving hot food where patrons might stay longer to consume purchased food. On that basis, while it is possible that extended hours of operation might lead to more movements along the footpath, I am satisfied that there is little potential for customers to loiter outside the premises. There has been an improvement in security through the installation of additional CCTV cameras. The premises contribute to the diversity of food and drink outlets in the locality. I am satisfied that the circumstances of this case are, as submitted by the applicant, similar to those in Garlick v Randwick City Council [2009] NSWLEC 1012, an appeal against a refusal to extend trading hours for a pie shop in Coogee. I am not persuaded that it would be appropriate to reduce the trading hours, as suggested by the Council. I am satisfied that the continuation of the present 24 hour trading would not adversely affect the amenity of the area. Condition 46 of development consent D/2004/294 should be amended in the terms as sought by the applicant.

28 The Council pressed for the inclusion of an additional condition 59 in the following terms:

The following security measures must be implemented during fit out and use of the development:
a) high quality door and window locks must be fitted to all openings that are accessible by the public;
b) A security gate system must be fitted to the end/s of the main counter to assist in restricting unauthorised entry to the “staff only” area;
c) Signs must be placed within the shop to alert patrons that CCTV is in operation and to indicate “staff only” areas;
d) Staff must be provided with a secure and safe place to leave their belongings (e.g. lockers) whilst at work;
e) The cash register must be regularly skimmed to keep the total cash held in the register under $250 or as minimal as practicable and the skimmed cash must be placed directly into a time-delay safe.

29 The applicant opposed this, on the basis that it would be inappropriate and unnecessary, and of doubtful validity in the context of an application to modify trading hours: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685. I agree with the applicant that such a condition is unnecessary where there is no evidence as to security concerns for the current operation of the premises, including during the two trial periods of 24 hour trading.

Orders

30 The orders of the Court are:

1. The appeal is upheld.

2. Development consent D/2004/294 for the premises at 38-46 Oxford St Darlinghurst is amended by the amendment of condition 46 to read:

46 The hours of operation are regulated as follows:
(a) The hours of operation must be restricted to between 6.00am and 2.00am the following day, 7 days.
(b) Notwithstanding (a) above, the use may operate 24 hours per day, 7 days per week for a trial period of 2 years from 3 December 2009.
(c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council’s consideration of a proposed continuation of the hours permitted by the trial will be based on, among other things, the performance of the operator in relation to compliance with development consent conditions, any substantiated complaints received and any views expressed by the NSW Police.

3. The exhibits are returned.

Linda Pearson
Commissioner of the Court