Land and Environment Court of New South Wales CITATION : 7- Eleven Stores Pty Limited v Waverley Council [2009] NSWLEC 1253 APPLICANT 7- Eleven Stores Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10914 of 2004 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Extension of trial period for late night store trading. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 DATES OF HEARING: 16 July 2009 EX TEMPORE JUDGMENT DATE : 16 July 2009 APPLICANT Mr K Webber (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J Smith (solicitor) SOLICITOR Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 16 July 2009 10914 of 2004 7- Eleven Stores Pty Limited v Waverley Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT Background. 1 This an application under Section 96 (8) of the EP&A Act to modify the conditions of consent for the operation of the 7 - Eleven Store at 15 Hall Street, Bondi. The operation of this store has been the subject of a number of previous assessments, resulting in it being allowed to operate on the basis of continuing trial periods. 2 The current consent was granted consent on 4 June 2008 for a further 12-month trial, principally to ensure that the late night trading did not adversely impact on the neighbourhood. On the basis of this trial period, the parties have agreed to consent orders to amend Condition 2, thereby allowing the store to continue 'late-night' for a further 3 years. The evidence 3 This application to continue the late night trading from 12 midnight -1am (7days) was supported in a detailed statement from Mr P Strudwick, the applicant's consulting town planner. He undertook a s79C assessment, including considerations of the provisions of the Waverley LEP 1996 and the Waverley DCP 2006. 4 Insofar as the store is permitted in this Business General 3(a) zone, Part E1 of the DCP then contains the controls for retail and commercial premises. As the site is in 'Area B', clause 2.4.4 applies, which restricts operating hours until 12 midnight, clause 2.4.5 contains various 'review criteria' for developments allowed on a trial basis. 5 Mr Strudwick's review of this criteria is: Criteria (a)-(g) and a response against each is provided below: Criteria Response In response to issues raised in previous trial periods by local residents (i.e. prior to the most recent trial period since 4 June 2008) 7-Eleven have developed and implemented a Management Plan. This Management Plan proactively addresses issues relating to noise control, customer management, waste control and disposal, store security and store management. (a) Security and general management of the premises A central part of this Management Plan and a matter also conditioned through Condition 3 of the consent includes the keeping of an in-store 'complaints log'. This requires the recording of all complaints and actions taken by the store to address these complaints. In addition to the above, the store contains CCTV and optimum lighting levels- both of which are measures adopted within 7-Eleven stores generally as a proactive means of deterring anti-social activity. (b) Number of and nature of substantiated complaints regarding the operation of the premises In preparation for this matter, Urbis has conducted a search of the relevant property file at Council's Chambers on 1 May. The purpose of this search was to identify whether any public submissions, either from surrounding local residents, the NSW Police or other public authorities, were lodged with Council during the 12 month trial period since 4 June 2008. This search confirmed that no complaints or submissions of any nature have been lodged by any party relating to the operation of the premises. (c) Compliance with conditions of development consent Confirmation has been received from 7-Eleven Stores Pty Ltd that all conditions of development consent have been complied with. Inspection of Council's property file did not identify any notices or other information that would suggest that any conditions have been breached during the trial period. (d) Evidence that the applicant has taken a pro-active position in terms of industry best practice (e.g. membership of relevant professional associations such as local Liquor Accords, participation in public safety initiatives, effective risk management strategies, etc.) Refer to response (a), above. (e) Record of successful waste management on site clean-up and management of waste in adjacent public domain. Condition 37 of the development consent ('Litter Patrols') was added to the consent as part of the Court's most recent determination of this matter on 4 June 2008. Part of the terms of the Management Plan requires patrols at least twice per day and for these patrols to be appropriately recorded as proof of the patrol. As indicated above, our search of Council's property file identifies that that no complaints have been received by Council' in respect to the non-compliance of this (or any other) condition. (f) Availability of transport for patrons including taxi, buses, and car parking areas Although the store primarily attracts pedestrians, the store is and conveniently located to bus routes, taxi ranks and public parking areas along Campbell Parade, as well as timed on-street parking along both Hall Street and Gould Street. Bus timetables and taxi phone numbers are both available within the store. There has been no material changes to the 'external environment' within the immediate locality of the existing store during the 12 month trial period that would cause an increase in the potential for environmental impact of the store on its locality- in particular: The operating hours of the Ravesi's Hotel remains the same. · No other 'sensitive' late night land uses have been approved in the immediate vicinity of the store. · No new residential developments or any significant re-developments that involve an increased residential component have been constructed within the immediate vicinity of the store. Also relevant in the consideration of this criteria is the social planning analysis carried out by Rose Saltman of RM Planning. This work was carried out in preparation for the previous Court Proceedings in June 2008. The following passage from Ms Saltman was included within the Joint Expert Witness Report tendered in the previous proceedings. It addressed the perception of impact in respect to anti-social behaviour and an increase in crime caused as a result of late-night trading of the subject store. Ms Saltman stated: (g) Any other matters considered relevant to the environmental evaluation of the premises The proximity of licensed premises to the subject site, Ravesis Hotel being the closest of these premises, with the Hakoah Club and the Bondi Hotel being further away. The potential for licensed premises to generate antisocial behaviour is well documented. However, I am not aware that the proximity of licensed premises to convenience stores necessarily implies the potential for antisocial behaviour to occur at the latter premises. The survey findings bear this out: the majority of patrons of the subject store had not come from and were not going to licensed premises as patrons of those premises. Of those who had come from licensed premises, the vast majority indicated they had travelled directly to the store and all indicated that they would leave directly after they had made their purchases. It is also noted that only two patrons of Ravesis attended the store during the survey period. Recorded crime statistics for general stores shows that there is a low propensity for crime to occur at such premises and that where crime does occur, it is not concentrated between the hours of 12 midnight and 6 a.m. The absence of complaints to store management, Waverley Council and the Police indicates that this store is not generating antisocial behaviour in the local area. Trends in crime for general stores, as reported by BOCSAR, appear to be stable. Few robberies are reported for general stores and trends for this category of offence appear to be stable. 6 From this review, Mr Strudwick concludes that the criteria has been satisfied to enable a further trial period of 5 years. In addition to this, he checked that there have been no substantive complaints made to the council, or the police in the recent trial period. Conclusions 7 Having considered this evidence and undertaken a view, I am satisfied the relevant criteria has been satisfied to allow the further trial period, as agreed by the parties. I rely on the evidence of Mr Strudwick and particularly note that there have been no complaints regarding adverse amenity caused by the late night trading of this store and that the external cleaning maintenance of the store has improved cleanliness of the immediate area. For these reasons the consent orders are granted. Court orders 8 The Court orders by consent: 1 The Appeal is upheld. 2 The Section 96(8) Modification Application to modify Condition 2B of Development Consent No 300/2004 to allow the 7-Eleven Store located at 15 Hall Street, Bondi Beach to continue to trade between 12 midnight and 1.00 am, 7 days per week, for a further trial period of three (3) years is determined by the grant of consent subject to the conditions in Annexure A. _______________________ R Hussey 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.