Land and Environment Court of New South Wales CITATION : Woolworths Limited v Canada Bay Council [2004] NSWLEC 64 APPLICANT Woolworths Limited PARTIES : RESPONDENT Canada Bay Council FILE NUMBER(S) : 11003 of 2003 CORAM: Hoffman C Appeal :- extension of hours of trading adverse impacts on the amenity of dwellings adjoining and adjacent KEY ISSUES: delivery trucks manoeuvring near houses to enter and leave the loading bay proximity of the loading bay to dwellings overflow customer and staff parking in the residential street and associated nuisances. LEGISLATION CITED: Concord Planning Scheme Ordinance 1969 CASES CITED: DATES OF HEARING: 27/01/2004, 28/01/2004 and 29/01/2004 EX TEMPORE 01/29/2004 JUDGMENT DATE : APPLICANT Ms J Jagot, barrister instructed by Ms E Carroll, solicitor of Cors Chambers Westearth LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird, solicitor instructed by Ms J Wauchope, of Maddocks JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11003 of 2003 Hoffman C 29 January 2004 Woolworths Limited Applicant v Canada Bay Council Respondent Judgment 1. This was a class 1 appeal number 11003 of 2003 between Woolworths Limited and Canada Bay Council in regard to the refusal of consent for extension of hours of trading and deliveries at a supermarket on the corner of Concord Road and Station Street North Strathfield. 2. The supermarket was in the Business 3A zone under the Concord Planning Scheme Ordinance 1969 as amended to 8 July 2003. The site directly abutted Residential zone 2A that is the low density detached housing zone under the same instrument. 3. The loading dock at the supermarket directly adjoin Nos. 25 and 25A Station Street, a dual occupancy. To get into the dock trucks had to manoeuvre on the street and reverse in almost the full length of the allotment of Nos. 25 and 25A. Once in the dock the truck stopped adjoining the kitchen and living room windows of No. 25A and its back door and rear veranda. In that position the truck was still outside the loading bay with only its rear loading platform under cover. The whole cab of the truck and the refrigeration compressor unit was above the fence level when seen from 25A. There were about twenty-four trucks per day plus garbage trucks in addition using the loading bay. 4. Opposite the entry off the street to the loading dock and customer car park was No. 26A Station Street. It was a house attached to a service station fronting Concord Road. The house was in the zone 3A area, and being on a corner lot its backyard was adjoining Station Street. Station Street sloped down slightly from Concord Road, and beyond the 3A zone was a pleasant tree-lined street with mainly detached houses of the 1920s and 1930s period many with renovations. 5. The issues were: 1. Whether the proposal to extend the trading and delivery hours would cause unacceptable noise during these additional hours impacting on the amenity and acoustic privacy of adjoining and adjacent residential properties. 2. Whether the proposal should be approved having regard to the increased duration of traffic activity likely to arise from the extended operating hours and the likely detrimental impact on the amenity of the residential precinct. 3. Whether the proposed development should be approved having regard to the cumulative effect of unacceptable noise and increased duration of traffic activity during the proposed extended operating hours. 4. Whether there are any alternative retail outlets in the locality that satisfactorily service community shopping needs in the late hours of the evening. 5. Whether the proposed development is in the public interest. 6. Issues raised by objectors including inadequate loading facilities; insufficient car parking and traffic and parking congestion; detriment caused by abandoned trolleys and litter; late night demand for trading being provided by other supermarkets in the locality. 6. The extension of hours sought by the applicant was in exhibit B page 21 and showed trading Monday to Saturday to open at 7am instead of 8am and on Sunday 8am instead of 9am. At night it sought to go from a 7pm close Monday, Tuesday, Wednesday to a 10pm close; Thursday from 9pm close to 10pm; Friday from 8pm close to 10pm, and Saturday from 6pm close until 10pm, and Sunday from 4pm close to 9pm close. 7. For deliveries it did not change the existing 7am start each day except for Sunday when there were no existing deliveries. In the evenings it sought to have trucks delivering until 9pm Monday to Friday, instead of 8pm at present Monday to Wednesday, and 9pm on Thursdays and 8pm on Fridays. On Saturday the applicant sought to have deliveries until 8pm in lieu of 6pm. It sought to introduce deliveries on Sunday from 9am to 4pm. During the hearings Sunday deliveries were deleted. 8. The Court heard the respondent's evidence from Mr G Sideris of No. 26A Station Street, Mr F Fazzino owner and prior resident of Nos. 25 and 25A Station Street. Mr A Giunta of 24 Station Street, resident of twenty-three years and Mr M Evesson consultant town planner. There was an expert report by Mr R Tonin an acoustic expert but he was not required for cross-examination. 9. The applicant's evidence was heard from Mr SE Cooper acoustic engineer, Mr I Cadey town planner and Mr B Masson traffic engineer. 10. A summary of the respondent's evidence was that there was no buffer between the commercial zone and the residential zone and so there had to be compromise between the two conflicting requirements of retail trade and residential amenity. The council and the objectors said the existing hours were a reasonable compromise for residential amenity, and the residents currently put up with many adverse impacts, and more impacts caused by longer trading hours were totally unacceptable. 11. The applicant sought to show in summary that the earlier and later hours of trading were in periods when fewer customers than the maximum needed to shop, and the impacts from those additional activities would not create unreasonable impacts. 12. In regard to deliveries, the noise environment off Station Street during the extra hours of delivery were shown as having many peak noises from sources other than the Woolworths truck movements, for example from Concord Road, with arterial high volume traffic. In that noise environment it was put that truck movements would be masked except for immediate neighbours. Woolworths offered to double glaze the neighbours windows and air condition their houses to reduce impacts there from. This was not an acceptable solution to the residents, as they see it it virtually meant they were prisoners in their houses and in any case they did use their yards and the noise was present in the yards without the possibility of any noise attenuation. 13. The traffic evidence of the applicant on Station Street's ability to take the additional moving vehicular traffic was not really to the point. What was of concern was: a) on street parking of Woolworths' customers, b) the rattle of shopping trolleys, c) banging of boot lids and tailgates and car doors, d) engine starts and engine revving and e) the arrival and departure of trucks with engine noise, refrigerated compressor engine noise, the whistle of air brakes, reversing beepers and start/stop noises of manoeuvring and gear changes and f) general activity that would occur earlier and later than at present. 14. The cross-examination of the acoustic evidence revealed that after 10pm the noise of customers and trolleys and cars outside houses would breach noise controls and cause sleep arousal. 15. It was shown to the Court's satisfaction that there was a wind down period of about forty-five 45 minutes after closure of trading for the last customers to leave the area and staff to close up the building. The extension of hours would mean these noises would add further negative impacts and a longer period of disturbance to the already marginal amenity of the residents. 16. The existing carpark held eighteen (18) cars. It was accessed off Station Street. The size of the supermarket by current RTA guidelines in exhibit 9 showed several times that number of carparks were required for a building of this size. As a result there was an inevitable overflow of parking into Station Street. Mr Masson's evidence sought to show that the eighteen car carpark and about eight car spaces on Concord Road would take all the parking needed in the extended hours' periods. This was not the experience of the residents, either now in existing evening trading, nor in a trial period in 1999 and 2000 when the supermarket traded until midnight for a time. The trial period was several months, I think a figure of eight months was mentioned at one point. 17. The Court heard during the view at 9.30am on a weekday morning from inside No. 26A and No. 25A, the noises of a truck manoeuvring in the street, with compressor motor running, and reversing into the loading bay, and whilst in the loading bay. It could be heard throughout the houses despite the elevated background noise levels of that time of day. 18. The Court has concluded overall that the respondent's evidence has the greater weight. A reasonable balance exists between the competing interests of Woolworths retail trade, and the residents need for some amenity in an already depleted situation. The existing residential amenity of Station Street should not be made worse. Members of the public being able to have longer periods to shop and the benefit to Woolworths of having access to greater trading hours were not such, in the public interest, that the existing residents should be further penalised. 19. Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except exhibits 5, 6, 7, 8, 9 and C. _______________ K G Hoffman Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.