Land and Environment Court New South Wales Medium Neutral Citation: Newtech Ventures Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 1088 Hearing dates: 28 March 2012 Decision date: 28 March 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: Consent orders - development application - retail liquor store - hours of operation - deliveries - CCTV recording Legislation Cited: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 Category: Principal judgment Parties: Newtech Ventures Pty Ltd (Applicant) Leichhardt Municipal Council (Respondent) Representation: Counsel Mr P Clay (Applicant) Solicitors Ms A Spizzo, Lander & Rogers Lawyers (Applicant) Ms R McCulloch, Pikes Lawyers (Respondent) File Number(s): 11209 of 2011 EX TEMPORE Judgment 1COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the respondent Council of consent to Development Application D/2011/162 for the change of use and fit out to create a retail liquor store at 243 Darling Street, Balmain (the site). 2The site is zoned Business under the Leichhardt Local Environmental Plan 2000 (the LEP) and is in the centre of the Darling Street commercial and retail precinct. The site is close to a number of restaurants and there are other licensed premises in the vicinity. The site was previously occupied by a newsagency on the ground floor, and has residential development on the first floor. 3In January 2011 the Council approved alterations and additions to the building containing the site, which included extending the commercial floor space, adding associated car parking and a new first floor dwelling. The application before the Court concerns only the commercial floor space, and the residential unit is not associated with the present application. 4The Council initially refused consent on 14 June 2011. The applicant sought a review under s 82A of the Act on 8 October 2011, and the application reduced the proposed hours of operation, provided a social impact assessment, provided a delivery management plan dealing with parking and traffic movement, and made provision for CCTV to limit opportunistic crime including secondary sales to minors. The s 82A review application was refused on 13 March 2012, on the basis of inadequate loading facilities, parking and traffic impacts, unacceptable delivery arrangements and social impact. 5The Council is now satisfied that it is appropriate to grant consent to the application, and the parties are seeking consent orders from the Court. In considering whether it is both lawful and appropriate that I make consent orders as sought by the parties, I must consider the planning controls as they apply to this development; the objections that were made to the original proposal and the s 82A review proposal; and the broad assessment of social impact, and traffic and parking, which formed the basis of the initial refusal by the Council. Objectors 6The Council notified the original development application and received a significant number of objections. Those objections related to concerns expressed about the negative impact of a new liquor outlet on independent liquor stores in the area, a current oversupply of liquor stores in Balmain, the nature of the proponent and the potential for competitive prices and cheaper liquor to encourage younger people to drink at riskier levels, potential social problems of increased liquor consumption in the vicinity, proposed deliveries and loading and unloading at Hoffmans Lane at the rear of the subject site, and traffic issues and impacts relating to loading and unloading of supplies in Hoffmans Lane. 7The NSW Police made a submission objecting to the proposal on the basis that they believed that the proposed development would increase incidence of underage drinking, increase the supply of alcohol into the Balmain area, and contribute to alcohol related crime. 8The Council's representative has informed me that all objectors to the original development application and to the s 82A review application have been notified of the proposal to seek orders by consent, and that one of those objectors, who resides at 27 Curtis Road, Balmain has maintained her objection. The Council's tendered bundle includes the text of the written objection made by that resident, and broadly speaking her concerns relate to the change in character of the Balmain area, and more particularly, garbage collection, and traffic and deliveries to the site using Hoffmans Lane. 9The Council's representative has informed me that the NSW Police had maintained their objections to the proposal, but are now satisfied with the proposal as a consequence of the amendment to condition 14 relating to CCTV camera recording. Planning controls 10The proposed use is permissible under the LEP. Clause 12 of the LEP provides that the vision of the LEP is to conserve and enhance the quality and diversity (social and physical) of the natural, living, working and leisure environments of the local government area of Leichhardt, and that the protection of the amenity of residents should be pre-eminent. Clause 13 provides general objectives for ecologically sustainable development, the built and natural environment and amenity, and transport and access. 11The Council staff assessed the amended proposal in accordance with the provisions of the LEP and in their report recommending approval of the s82A review application stated that they were satisfied that the proposal is now satisfactory when assessed against the provisions of cl 12 and 13 of the LEP, as the revised hours of operation and the scale of the use are consistent with comparable surrounding land uses. The proposal will not detract from the amenity afforded within the locality. The Council officers were satisfied with the proposed deliveries to the site coming from Darling Street rather than Hoffmans Lane. 12The applicable development control plan is the Leichhardt Development Control Plan 2000 and the Council officers accepted that the proposal satisfies the provisions of Part C3.4 Working Hours, as in their assessment it is now consistent with the comparable retail outlets in the locality. Social impact 13The significant issues raised in the assessment of this application by the Council and the objectors relate first to the social impacts of the proposal. The s 82A review application was accompanied by a social impact assessment prepared by Urbis, and that assessment considered in detail the objections made by local residents and by NSW Police, and the concerns raised by Council staff to the initial proposal. 14I have heard oral evidence from Ms Roberta Ryan, the principal of Urbis, relating to the impacts of licensed premises providing alcohol for consumption off the premises in an area where there are other licensed premises where alcohol is supplied for consumption on the premises. 15The significant difference from the proposal as originally put to the Council and that which is now before the Court relates to the hours of operation. The hours of operation are now limited so that the proposed liquor store will close earlier than licensed premises in the locality where alcohol is supplied for consumption on the premises. In Ms Ryan's opinion that reduces the social impacts that can result when people leave licensed premises and purchase additional alcohol to take away after closing time. 16Ms Ryan also addressed the issue of concerns relating to underage drinking, which she notes were a factor in relation to the nearby Gladstone Park. Her evidence was that that has reduced over the last four to five years, which she attributes to a high awareness of the issues of secondary supply and underage drinking, and a change in the demographics of the surrounding area. Traffic and deliveries 17The additional issue which was of significance in the assessment of the original application related to deliveries to the premises, and the use of large trucks required for that purpose and loading and unloading of those vehicles. The applicant has provided a Delivery Management Plan which addresses those concerns by requiring deliveries to be limited to Darling Street so that Hoffmans Lane will not be used; and identifying the types of deliveries, their frequency, the vehicles used, and how deliveries can occur without having significant impact on surrounding traffic and residents. Conditions 18Condition 11 restricts the hours of operation to 10pm on Tuesday through to Thursday, 10.30pm on Friday and Saturday, and 9pm on Monday and Sunday. 19The proposed conditions incorporate obligations to comply with the Delivery Management Plan. The conditions include condition 13, that loading and unloading operations must be carried out using the entrance in Darling Street between 7am to 5pm. The evidence before me is that that will be facilitated by the issue of what is known as a B3 permit, to permit vehicles to use the parking spaces on the street on Darling Street for that purpose. 20Condition 14 relates to closed circuit television which is to operate during business hours. Condition 14 specifies the location of the camera, the extent of visibility of the view of the person's face for people entering the premises, and a requirement that transactions at the counter can be viewed. There is additional provision that the copies of the recordings of the CCTV system are to be able to be provided on request to NSW Police, OLGR inspectors, and other regulatory officers. Conclusion 21Having considered the evidence before me, which I accept, and having considered the conditions that are proposed, I am satisfied that it is lawful to approve this development application; that the objections made to the application by residents and by NSW Police have been properly taken into account; and that it is appropriate to grant the consent in accordance with the conditions that are proposed. I note that the parties agree that each party is to bear their own costs of the proceedings. 22Accordingly the orders of the Court are, by consent: (1) The appeal is upheld. (2) Development consent is granted to Development Application D/2011/162 subject to the conditions in annexure A. (3) The exhibits are returned except for exhibits A and B. Linda Pearson Commissioner of the Court 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. Decision last updated: 12 April 2012