Qasem v Council of the City of Sydney

[2014] NSWLEC 1118

Land and Environment Court

New South Wales

Case Title:	Qasem v Council of the City of Sydney
Medium Neutral Citation:	[2014] NSWLEC 1118
Hearing Date(s):	20 June, 2014
Decision Date:	24 June 2014
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	1. The appeal is dismissed. 2. Modification Application No. D/2000/177/A to modify the trading hours of the "City Convenience Store" at 137 King Street Newtown is refused. 3. The exhibits, other than exhibit 2, are returned.
Catchwords:	MODIFICATION APPLICATION: modify trading hours; non-compliance with Local Centre Area trading hours; amenity of neighbouring residences; precedent.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Segal & Anor v Waverley (2005) NSWLR 177 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Ozden v Council of the City of Sydney [2011] NSWLEC 1147
Category:	Principal judgment
Parties:	Anan Qasem (Applicant) Council of the City of Sydney (Respondent)
Representation
- Counsel:	Ms L. Saw Barrister (Applicant) Mr A. Simpson Solicitor (Respondent)
- Solicitors:	Ross Creighton (Agent) (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10168 of 2014

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Modification Application No. D/2000/177/A to modify the trading hours of the "City Convenience Store" (the proposal) at 137 King Street, Newtown (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 22 May 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation conference, it was terminated pursuant to s34(4) of the LEC Act. Following the termination of the conciliation conference, the applicant amended the proposal to modify the trading hours sought.

Issues

1. The Council's contentions in the matter can be summarised as:

   ·The proposed extension of trading hours has the potential to impact on the residential amenity of properties to the north and north-east of the site, by way of noise and anti-social behaviour;

   ·The proposed extension of trading hours is inconsistent with the maximum trading hours permitted by the planning controls.

The site and its context

1. The site is on the north-eastern corner of the intersection of King Street and Missenden Road, Newtown.

2. Asma Alti Kebab House, at 170-172 Missenden Road, is adjacent to the site.

3. The Hotel Marlborough is opposite the site, on the north-western corner of the intersection of King Street and Missenden Road.

4. The site is within the retail and commercial strip of King Street.

Background and the proposal

1. The existing trading hours of the "City Convenience Store" are 7 am until 12 midnight, 7 days per week.

2. The proposed hours of operation are as follows (exh 3, par 1.5):

   ·Sunday 7 am to 12 midnight;

   ·Monday - Tuesday 7 am to 12.30am following day;

   ·Wednesday - Thursday 7 am to 1am following day;

   ·Friday - Saturday 7 am to 3.30am following day.

3. The proposal includes amending the existing Plan of Management for the premises to reflect the proposed hours of operation (exh 1, tab 3).

Planning Framework

1. Section 79C of the Environmental Planning and Assessment Act 1979 includes, at (3A)(b), the following in regard to the provisions of a development control plan:

   if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development

2. The site is within the B2 Local Centre zone, pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and is permissible with consent. The objectives of the B2 zone are as follows:

   · To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
   · To encourage employment opportunities in accessible locations.
   · To maximise public transport patronage and encourage walking and cycling.
   · To allow appropriate residential uses so as to support the vitality of local centres.

3. The aims of LEP 2012 includes, at subcl 1.2(h), 'to enhance the amenity and quality of life of local communities'.

4. The Sydney Development Control Plan 2012 (DCP 2012) includes, at Schedule 3, provisions for late night trading. The provisions identify a hierarchy of three late night trading areas located throughout the City of Sydney. The three types of late night trading areas are as follows:

   ·Late Night Management Areas;

   ·City Living Areas; and

   ·Local Centre Areas.

5. Late Night Management Areas are places with a distinct late night entertainment character, such as Kings Cross and Oxford Street, Darlinghurst. City Living Areas are characterised by diversity and potential to accommodate a range of lower impact late night trading premises which can cater to the entertainment and cultural needs of people in the city, however, unlike Late Night Management Areas, concentrations of late night trading premises are not encouraged, particularly when located in close proximity to residential areas.

6. The site is located within a Local Centre Area (Late Night Trading Areas Map Sheet 002 of DCP 2012). The character statement for Local Centre Areas, at sub-section 3.3.1 of DCP 2012, relevantly includes the following:

   Local Centre Areas are primarily located within shopping streets and retail spines in the City of Sydney and consist of active places that are the commercial and cultural focus for the local community.

   Local Centre Areas are active and vibrant places at night, although the intensity of activity is distinctly lower than in Late Night Management and City Living Areas. Premises such as restaurants and licensed hotels will generally have shorter trading hours than their counterparts in other areas. This is due to the proximity of Local Centre Areas to residential and other sensitive land uses and thus greater potential to impact upon the liveability of local residents.

7. The use of the site is defined as 'Category B - Low Impact Premises', at Section 3.15 Category B, (v), 'any other commercial premises'. The late night trading base hours for a category B premises within a Local Centre Area are 8am to 11pm and extended hours are to 12 midnight (table 3.7 of DCP 2012). Trading hours for Local Centre Areas relevantly includes the following:

   Careful consideration will be given to the residential context of the area and existing hours of other late night trading premises in close proximity when assessing applications in these areas. Trading hours up to the maximum extended hours of operation permissible for local centre areas are acceptable where it is considered that the use:

   (a) will have minimal impact on residential amenity;
   (b) is characteristic of other uses in close proximity; and
   (c) where it will not contribute to the clustering of Category A premises.

8. The relevant objectives of section 3.15 are as follows:

   (b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses.

   (d) Encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City.

   (e) Encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City.

   (m) Ensure a consistent approach to the assessment of applications for premises seeking late night trading hours.

Expert evidence

1. Expert planning evidence was provided by Mr Andrew Rees on behalf of the Council and Mr Kerry Nash on behalf of the applicant.

2. The experts agreed on the following:

   ·Asma Alti Kebab House (formerly Aydin Turkish House) (the Kebab shop) has variable trading hours equivalent to those sought by the applicant;

   ·there are premises within the vicinity of the site that trade beyond midnight and some trade 24 hours, 7 days;

   ·the 7-Eleven Convenience Store at 206-208 King Street has 24 hour trading; and

   ·the majority of premises in the vicinity of the site cease trading at 12 midnight.

3. According to Mr Rees, within a 75m radius of the site, 7 out of 50 premises have trading hours beyond midnight and all those consents were issued prior to the introduction of the Council's Late Night Trading Premises DCP, 2007. Mr Rees says that the Council has maintained the local centre atmosphere in Newtown by consistently restricting trading hours to midnight, in recognition of the balance between creating a vibrant village atmosphere and maintaining the residential village life of the local community. In Mr Rees' view, the proposal would create an undesirable precedent for other premises to operate beyond midnight and this is demonstrated by this proposal which seeks to extend its trading hours to match those of the Kebab shop next door.

4. According to Mr Nash, the site is surrounded by commercial premises, as the closest residential zone is the northern side of Longdown Street off Missenden Road and the nearest shop-top housing within the B2 zone is located in Bucknell Street as part of 132A King Street. Mr Nash noted that the convenience store does not trade in alcoholic beverages nor does it provide hot food, other than coffee and hot chocolate and it's primary clientele are the residents of the residential university colleges nearby, so it would therefore not have any amenity impacts, nor would it contribute to the cumulative impacts from licensed premises and hot food outlets. Mr Nash noted that there were no objections to the proposal and the NSW Police Service, Newtown Local Area Command were supportive of the proposal (exh 1, tab 4).

5. The experts disagreed on whether the proposal meets the relevant objectives of section 3.15 of DCP 2012. According to Mr Nash, the proposal meets the relevant objectives of section 3.15 of DCP 2012. In his view, the application of the hours of operation for low impact category B premises set out in DCP 2012 are unreasonable in the context of the location of the premises and the character of the immediate locality. He says the proposal will provide an important shopping destination at late night hours that will be convenient for the many resident students living proximate to the site.

6. According to Mr Rees, the wording of DCP 2012 does not provide discretion to the consent authority in relation to the hours of trading beyond the extended hours for Local Centre Areas. Mr Nash disagreed, on the basis of the flexibility afforded by s79C(3A)(b) of EPA Act in applying the provisions of the DCP.

Ozden v Council of the City of Sydney [2011] NSWLEC 1147 (Ozden)

1. The applicant submits that the Senior Commissioner's decision in Ozden is a relevant matter for consideration. This decision approved a trial period for trading hours for the Kebab shop, which are the same trading hours as those sought by this appeal.

Findings

1. The provisions of DCP 2012 in relation to late night trading represent an important exercise in strategic planning for the City of Sydney. The provisions seek to identify areas appropriate for night-time social and recreational activity and to distinguish those areas into a hierarchy of types of late night trading; ranging from vibrant and multifunctional places with a range of cultural and entertainment opportunities in close proximity, to local areas within shopping streets with less intensity of activity and shorter trading hours.

2. The site is located within an area identified as a Local Centre Area, which is the type of late night trading with the least intensity of late night activity and shorter trading hours. The approved trading hours of the "City Convenience Store" are the same as the extended trading hours for Local Centre Areas in DCP 2012.

3. For the strategic vision embodied in the late night trading provisions of DCP 2012 to be successful, the fundamental hierarchy established by the provisions must be respected. Inevitably, there will be individual exceptions to the identification of the hierarchy of areas for late night trading which pre-date DCP 2012, but granting consent to individual exceptions to the late night trading base and extension hours of DCP 2012 undermines and erodes the hierarchy established by the provisions.

4. I accept the applicant's submission that the provision of s 79C(3A)(b) require a flexible approach to applying the provisions of DCP 2012 in relation to late night trading hours, to allow reasonable alternative solutions that would achieve the objectives of the standards. However, I am not satisfied that the proposal meets the DCP 2012 objectives to ensure that late night trading premises will have minimal adverse impact on the amenity of residential and other sensitive land uses, nor would it ensure a consistent approach to the assessment of applications for premises seeking late night trading hours, for the reasons set out in the following paragraphs.

5. While I accept that the proposal is unlikely to have significant or frequent amenity impacts, as it would serve, for the most part, individuals or small groups of students and locals buying non-alcoholic drinks, snacks, cigarettes and so on; it is not possible for the applicant to manage or ameliorate any, even if occasional, amenity impacts such as noise and anti-social behaviour, once it's patrons have left the premises. The residential properties in Campbell Street, backing onto Longdown Street, are in close proximity to the site and lie on the path between the site and the Sydney University village. The occupants are likely to be disturbed by the flow of students past their front doors between midnight and 3.30am the following day on Fridays and Saturdays.

6. Precedent is a valid planning consideration, in accordance with the views of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. I accept Mr Rees' evidence that there is a reasonable probability of further applications to extend the trading hours of nearby retail and commercial premises, if the proposal is approved. This appeal, which seeks the same idiosyncratic late night trading hours of the neighbouring Kebab shop, is evidence of the precedential effect of planning consents.

7. I am not bound to follow the Senior Commissioner's decision in Ozden (Segal & Anor v Waverley (2005) NSWLR 177). Importantly, Ozden was assessed pursuant to the provisions of a previous development control plan.

Conclusion

1. For the reasons set out in the judgment, I am not satisfied that the proposal is consistent with the strategic aims of the late night trading provisions of DCP 2012, nor that it meets the objectives of those provisions.

Orders

1. The orders of the Court are:

   (1)The appeal is dismissed.

   (2)Modification Application No. D/2000/177/A to modify the trading hours of the "City Convenience Store" at 137 King Street Newtown, is refused.

   (3)The exhibits, other than exhibit 2, are returned.

   Susan O'Neill
   Commissioner of the Court

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