Land and Environment Court of New South Wales CITATION : Burgess v Baulkham Hills Shire Council [2008] NSWLEC 1443 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Graham Burgess PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10688 of 2008 CORAM: Moore C KEY ISSUES: Development Application - Development Control Plan :- CASES CITED: Ireland V Cessnock City Council (1999) 110 LGERA 311, [1999] NSWLEC 250 DATES OF HEARING: 21 October 2008 EX TEMPORE JUDGMENT DATE : 21 October 2008 APPLICANT Mr R Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr C Winn, solicitor Baulkham Hills Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 21 October 2008 10688 of 2008 Graham Burgess v Baulkham Hills Shire Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the granting of a development consent subject to conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER : An existing shop at 305 Old Northern Road, Castle Hill has been fitted out to operate as tattoo and body piercing parlour since early in 2008. It has been operating for most, if not all, of that period for those purposes. 2 The applicant has sought development approval from the Council for the fitout and use of the premises for those purposes. 3 As indicated to the parties at the commencement of the hearing, as the fitout has already occurred, the Court does not have jurisdiction to grant retrospective development consent for that fitout and the applicant and has agreed, through his agent Mr Creighton, to apply to the Council for a building certificate dealing with the adequacy of the fitout. 4 I have carefully inspected the fitout and I am satisfied that it does not involve structural works. Therefore, it is not necessary to go through the two-step process, discussed by Bignold J in Ireland V Cessnock City Council (1999) 110 LGERA 311, [1999] NSWLEC 250, of satisfying myself as the structural adequacy before turning to consider the question of the proposed use. I am satisfied, given the non-structural nature of the fitout that it is appropriate to consider and determine the use - provided the question of the structural fitout is dealt with in the fashion I have foreshadowed. 5 Essentially, the dispute that remains between the parties (as a consequence the resolution of a number of matters relating to the signage and the like) boils down to what should be the permitted hours of operation of the business. 6 There are a number of relevant facts for me to take into account in this consideration. First, I observe that the hours of operation on Sunday to Thursday are not the subject of disagreement between the parties but the hours of operation proposed for a Friday and Saturday (on the application, extending until 3 AM the following day) are in dispute. 7 The position is that the applicant seeks unconstrained consent for activity until 3 AM on the Saturday and Sunday morning following Friday and Saturday night trading but, as I understand the position, is prepared (consistent with the evidence of Mr North, planner for the applicant) to accept a conditional trial period for midnight until 3 AM on those two evenings. 8 The Council's position is that trading until midnight should be permitted on a conditional, trialled basis from 9 PM until midnight but that no trading should be permitted, under any circumstances after those hours. 9 The only relevant control to which I been taken, in the Council's planning documents, is contained in cl 3.9 of Part C, Section 8 of the Baulkham Hills Development Control Plan which deals with the hours of operation of businesses. The single objective that is prescribed for this element of the DCP is to ensure that commercial/retail developments operate in a manner compatible with adjoining land uses . 10 It continues with a number of development controls, the first which is the one prayed in aid by the Council, is the proposed hours of operation must be compatible with adjoining land uses . 11 It is in the context of that and how I interpret the words of that provision that I turn to consider the evidence which I have received. 12 First, I have had evidence from Ms Ryan, who is the manager of the premises and who has managed the premises, subject to any minor breaks which may have been occasioned for personal reasons, since March 2008. The business has been trading during the period of her management during the hours which have been sought on Friday and Saturday nights. Ms Ryan was specifically asked whether there had been any behavioural issues with customers during that period. Ms Ryan indicated that there had not been and that there had been no need for the police to attend the premises or otherwise be called in. The evidence of Senior Constable Fellows, an officer of the New South Wales Police who has given evidence in these proceedings, is consistent with that of Ms Ryan. 13 The Senior Constable is the crime prevention officer located in The Hills Local Area Command at Castle Hill Police Station. The evidence of the Senior Constable is that there has been no specific incident of any nature requiring the attendance of the police at the premises. 14 The Senior Constable has provided (and it has been tendered by the Council) an analysis of entries in the COPS database of the New South Wales police force in two bundles. The first is for a 12 month period from October 2006 to September 2007 when 319 incidents were reported. The second is from October 2007 to September 2008 when 427 incidents have been reported. 15 The Senior Constable's specific concerns are, as I understand them, the likelihood that persons who are occupying a park immediately across Old Northern Road from the premises, known as the Arthur Whitling Park, will be less amenable to appropriate monitoring and regulation by the police if the premises are operating at the hours sought and that may then provide an excuse for those persons to be in the vicinity with the consequence that the police will not be able to use their "move on" powers to deal with them. I will return to the COPS entries shortly 16 The businesses that are in the immediate vicinity comprise a sports memorabilia store, adjacent to the north-east, which does not trade at any hours that are remotely resembling those proposed by the applicant; there is a tyre retailer immediately on the other side; some further food or more conventional shop activities further toward Baulkham Hills; and, finally on the second premises toward the north-east, there is a service station which trades 24 hours a day. Mr Winn, solicitor for the Council, has properly conceded that, although the Council has not been able to find a development approval that permits 24 hour trading for those premises, the service station in fact trades 24 hours. It is further conceded that the Council has taken no regulatory activity nor have proceedings commenced seeking to terminate or otherwise control the hours of operations of these premises. 17 It is in the context of that business activity and the evidence that I have from Ms Ryan and Constable Fellows and the COPS summaries that I turn to consider cl 3.9 of the DCP. 18 I make this observation concerning the COPS entries. The Senior Constable properly conceded that he had no immediate information about the precise hours of day that any of the entries occurred. A number of them note minor vehicle accidents or incidents at locations simply recorded as Old Northern Road, Castle Hill. He also conceded that these were not relevant to these proceedings and that the matters to which I should have particular regard are those incidents which have taken place in Arthur Whitling Park immediately opposite the premises. 19 I have earlier noted that the premises have been trading since the beginning of 2008. For the period October 2006 to September 2007, 319 incidents were entered into the COPS reports of which 65 are noted as occurring in Arthur Whitling Park – that is an incidence of 20.3%. During the period October 2007 to September 2008, 427 incidents (that is an increase of approximately 25% in the number of incidents reported). The number of incidents reported in Arthur Whitling Park was 38 which constitute 8.89% of the total and is, in round terms, only somewhat over half the number that were reported during the previous 12 month period. 20 Had there been any aspect of the premises causing an "attraction element" adding to the police difficulties in Arthur Whitling Park during the period of trading of the premises, one would have reasonably expected those figures to have been reversed. 21 The fundamental question, posed by the DCP, that I am required to address is what constitutes compatibility. I am satisfied that "compatible", in broad terms, as I put to Mr Winn means "not interfering with". It does not mean "consistent with" or "identical with" as this would impose a meaning that goes beyond the ordinary English language meaning of the words contained in the DCP. 22 There is an element of legitimate concern – given the number of incidents in Arthur Whitling Park with persons being warned by the police. On the other hand, I am satisfied that there is no basis upon which it would be reasonable to refuse permitting trading by the premises to the hours that are sought by the premises. However, I am also satisfied that, taking a cautionary approach, it would be appropriate to apply the extended hours beyond midnight to 3 AM on a trial basis for 12 months. 23 I also note the observation that was made by the Senior Constable, in his evidence, where he made the proper concession that the concerns about incidents in Arthur Whitling Park particularly arose after 9 PM on Thursday nights – that being a time that does not impact on and is not related to matters in issue concerning the hours of trading of the premises. Tim Moore Commissioner of the Court 03/11/2008 - Correction of date - Paragraph(s) Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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