7-Eleven Stores Pty Ltd v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act), against the deemed refusal by Waverley Council (the council) of Development Application 300/2004 for the operation of premises at 15 Hall Street, Bondi Beach as a 7-Eleven convenience store proposing to trade 24 hours per day, seven days per week.

2 Although the matter came before the Court as a deemed refusal of the entirety of the application, the matter has proceeded on the basis that, setting aside the objections of a number of local objectors which go wider than this issue, the matters that are to be determined by the Court relate essentially to the hours of operation for which trading should be permitted. 3 Although there is a subsidiary issue, being the issue of whether or not the treatment of the second window to the north of the Gould Street frontage of the premises should be frosted glass or of some other treatment, it is not suggested that this is determinative of the application. 4 For forensic purposes, I treat Hall Street as running east west and Gould Street as running north south.

5 I turn to deal, on a preliminary basis, with the other matters that were raised by the objectors. 6 There is a range of objections raised by Mr and Mrs Khoury who are the operators of a convenience store to the west along Hall Street. These issues relate to vandalism, security, noise, litter and the like. 7 In this context, I note that Mr and Mrs Khoury trade between 6am and 12 midnight and their problems occur during those hours. The council, at this stage, does not object to trade for the proposed store between the hours of 7am and 11pm and to the extent that such activities as the Khourys complain about arise during those hours, they are, by necessary implication, not supported by the council.

8 I am not satisfied on any of the evidence before me, either from the council or from Acting Superintendent Purcell of the New South Wales Police Force, that there would be anything relating to the operation of a 7-Eleven convenience store on the site during those hours (6am and 12 midnight) which would warrant refusal or, indeed, restriction on these bases.

9 Several of the objectors who gave evidence, including the notes tendered as encompassing Mrs Khoury's objections, object to a 7-Eleven store as a concept - as a reaction to their signage, their international franchise (as it was described), their nature and the like. These issues are also not issues that are raised by the council. There is nothing raised in these submissions which raise matters proper for me to consider pursuant to s 79C of the Act.

10 There is nothing in any of the relevant planning material tendered in the council's bundle of documents that would place an impediment to the applicant subject to the now agreed conditions including that relating to lighting.

11 The final matter that was raised by Mr and Mrs Khoury, in their written submission that was in the council's bundle, together with, by implication, the additional comments that were made on site, relates to the economic viability and additional competition that they perceive would be imported into the area if the application were to be approved. Again, the council does not press this matter and, indeed, the council's Development and Building Unit's report specifically noted that it is not appropriate for the council to have regard to issues of economic competition.

12 It is appropriate for this Court to have regard to social and similar impacts but, as dealt with by the High Court in Kentucky Fried Chicken Pty Limited v Gantidis (1979) 140 CLR 675, it is only appropriate for this Court to treat, as a planning issue, the broader economic or social impacts that might arise from the consequences of any economic competition rather than the economic competition simpliciter. Put in summary form, the fact that a competitor may introduce further competition and fragment the market is not a planning matter and it is not appropriate for this Court to deal with this application on that basis.

13 Having responded to the matters that have been put in issue by the objectors that go beyond those that were raised by the council, I turn to address the predominant issue in the proceedings - that is the hours of operation proposed for the premises.

14 During the preliminary stages of the hearing in Court, I heard evidence and received documents, on a voir dire basis, with those documents and evidence subsequently being admitted as evidence in the proceedings. 15 The material was in two separate categories: 16 The first was an affidavit of Mr Peter Brennan, the Director of Planning and Environmental Services of the council, who also gave oral evidence concerning what he described as a "policy" of the council which he described as having operated for 15 years (and effectively having been enforced for four or five years) of not permitting trading after 12 midnight in an area at Bondi Beach that is bounded by Sir Thomas Mitchell Road, Hastings Parade and Glenayr Avenue (as a rough descriptor of the area encompassed).

17 This "policy", however, has had the opportunity (during the period for which Mr Brennan describes it as having existed) to be incorporated in the Local Environmental Plan or into a Development Control Plan. It has not been so incorporated. 18 It is an unwritten "policy", with there being no specific resolution of the council to support it. The applicant was not informed of it nor was Ms Laidlaw, the Court appointed planning expert. 19 From Mr Brennan's answer in response to a question from me, it would appear that new staff to the council develop knowledge of it by some arcane process which is not capable of precise or accurate description. It is certainly not conveyed to them in any written form. 20 It appears to be an attitudinal accumulation that has arisen from a range of planning decisions made by the council or its officers over a long period of time to apply a restriction on trading to either 12 midnight or 1am in that area.

21 I am satisfied that, if there be such a "policy" (and I am not prepared to determine at this stage that this should be dignified with that name), it is of such an amorphous nature that it would not warrant me giving it critical or determinative weight consistent with the principles for dealing with such policies enunciated by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.

22 Of greater concern, however, is the evidence that was given by Acting Superintendent Purcell and as set out in his letter of 15 October 2004. 23 The evidence that he gave was that, on a range of measurable property crimes, perhaps some of which may have also included offences against the person, there had been a general decrease across the entirety of the state for the last three years in crime levels when measured against those indicia. 24 However, in the eastern suburbs, there had been a greater decrease than the rate of decrease across the state. The two core areas, in dealing with these offences, as far as his knowledge was concerned, were Bondi Beach and Bondi Junction. 25 He said that a key strategy had been the closure of three late night trading premises at Bondi Beach that sold what could only be described as a range of varieties of fast food. All three were in the same block and all three fronted Campbell Parade which, he conceded, was the dominant topographic attraction area for people, from outside the district, visiting Bondi Beach.

26 It was his evidence, set out in the letter and in his oral evidence, that since there had been a degree of co-operative enforcement over recent years between the council and the police as to the hours of trading of those premises, there had been what he regarded as a further significant reduction in impact during the hours, set out in his letter, of 1am and 5am. The matters that had been identified where there were these improvements were assaults, stealing, robberies and street-level disorder.

27 It was also his evidence that the problem nights were Friday and Saturday nights, particularly in summer, and that the matters were, in his words, "not as urgent on other nights".

28 It is the council's position that the Bondi Beach area should be regarded as, effectively, a non-trading area during the early hours of the morning. 29 Ms Laidlaw's commentary concerning the hours of operation was set out in her statement of evidence and led her to a conclusion that there ought not be any restriction on the hours of trading.

30 She was provided, by the council's solicitors, after furnishing her report containing her conclusions, with the material from Mr Brennan and Acting Superintendent Purcell. She indicated in a supplementary statement that this did not cause her to reach any significant revision to her earlier conclusions. 31 She said, in her supplementary report:

From a town planning viewpoint the concerns expressed in both documents should be taken into account. However, so should the potential benefit to the general public of having a facility such as proposed seems to me that a modest convenience store is not in the same category of destination venue, ie, late night eateries and licensed premises, that Detective Inspector Purcell and Mr Brennan refer to and that the applicant has demonstrated awareness of the potential for and capacity to deal with security incidents that may occur around the proposed store. Accordingly these documents do not alter the opinion I expressed in my statement of evidence.

32 I have carefully considered the additional comment that she offered, if these matters were to remain of concern to me, that a trial period might be adopted. 33 She proposed, if I were minded to do so, that such trial should cover the period from 11pm to 7am, those being the hours proposed by the council in its without prejudice Draft Conditions of Consent. 34 She gave evidence, expressly, that her proposed hours to which a permanent consent would not apply were derived from the council's without prejudice Draft Conditions of Consent rather than from any absolute position which she adopted from a point of her professional expertise.

35 Acting Superintendent Purcell indicated that the police would be co-operative and available to establish a monitoring regime if I were otherwise minded to grant a consent which included a trial period. 36 Mr Galasso, barrister for the applicant, has suggested that a trial period ought to be for not less than 12 months and I do not understand, that if I were to impose a trial period as part of permitting such late night trading, that this is contrary to the council's view.

37 Acting Superintendent Purcell's view was that it was desirable that such a trial period encompass a summer and, as he was not aware of Mr Galasso's instructions on timing of commencement of trading - that is, that trading would not be able to commence until early in 2005 - neither he nor I, at the time he was in the witness box, understood that the premises would not be operating this summer.

38 Having considered all of that material, I have reached the conclusion that it would be appropriate to permit the premises to trade on a 24-hour basis, subject to a trial period for part of the late evening hours. 39 In doing so, I give no significant weight to the council's "policy" as a consequence of the circumstances attaching to it as set out earlier. 40 I am satisfied that the trial should be permitted as there are significant differences in location and types of trading operation of that proposed compared to the three premises on Campbell Parade which had attracted adverse elements in the past. 41 However, the matters raised by Acting Superintendent Purcell's evidence are sufficient to set aside any permanency of the late night trading. 42 I have concluded that the trial should be for a 12-month period commencing, it is anticipated, in February next year. 43 The applicant has agreed to a condition that would require the giving of 28 days notice to the New South Wales Police Force of the intention to commence trading so that an appropriate monitoring regime can be established.

44 I have carefully considered what should be the hours for which the trial period should apply. I have found the easiest to determine to the concluding time for the trial period. Various alternatives are available to me.

45 Acting Superintendent Purcell's letter nominates 5am as the time when his peak period of concern appears to cease. Some initial consideration by the council and the evidence of Mr and Mrs Khoury would cause me to believe that it is likely that other premises in the vicinity would commence trading no earlier than 6am. The council, in its without prejudice Draft Conditions, has suggested 7am. 46 For reasons that also lead to the conclusion I have drawn as to the time at night from which the conditional period should commence, I am of the view that 6am is the appropriate time for the conclusion of the trial trading period. I do so as I consider consistency with surrounding trading patterns is desirable.

47 As to the time of night for commencement of the trial trading period, although Acting Superintendent Purcell draws my attention to 1am as being the relevant appropriate time, in the third paragraph of his letter, he refers to the "enforcement of the cessation of trading on the premises along Campbell Parade at midnight". 48 He referred, as a consequence of that, to the transfer of the difficulties to another location at the corner of Curlewis Street and Glenayr Parade where there was a convenience store that was also, on my understanding of his evidence, trading after midnight contrary to its conditions of consent.

49 I think it would be a desirable position, also for the consistency of the monitoring and for general consistency in the vicinity (particularly if, at the conclusion of the trial period, the applicant were not to be permitted to trade past the permanent ceasing time), for the trial period to commence at 12 midnight, that being a time consistent with the time of expiry of other consents in the area. 50 Particularly, if there continues to be a pattern of enforcement of other periods of closure, this will provide a better element of statistical validity for there to be a clear period of conditional trading for the applicant that coincides with the prohibited periods of trading for other premises in the vicinity against which it might be compared.

51 I have contemplated whether or not, given Acting Superintendent Purcell's evidence, I should impose some differing regimes between the four nights of the week that he said were of less importance and the three that were of greater difficulty and whether I should impose some difference between the summer of 2005/2006 compared to the trading period between the anticipated start-up in February 2005 and the commencement of that summer period. It would seem to me that in order to have a full cycle of statistical validity, it is more appropriate that the premises be permitted to trade on the envisaged basis throughout the entirety of that 12-month trial period and on all nights.

52 Hence, with respect to trading hours, I would propose that there be two conditions, which can be brought to me in the revised Conditions of Consent, one of which gives an ongoing and unlimited consent to trade for the premises between 6am and 12 midnight, and the other a conditional trading period of 12 month's validity between 12 midnight and 6am commencing on the date upon which the premises start trading.

53 I, therefore, turn to the remaining issue which is in contention between the parties and that relates to the issue of the presentation of the premises to the Gould Street frontage.

54 Ms Laidlaw's original statement of evidence dealt with it in Delphic brevity but reached the conclusion that the frosted treatment should be limited to the bottom half of the relevant window. During the course of her oral evidence, she explained why she considered that an active retail presentation, whether by double sided freezer cabinets or some other active retail presence derived from a re-arrangement of the internal layout of the shop, would be desirable.

55 In response to that, the applicant presented a statement of evidence of Mr Peter Strudwick which suggested a number of alternatives. These included decoration, possibly of a mural nature, or depictions on that portion of the wall of products that might be sold in the shop. It is a very difficult position for members of this Court when they come to be arbiters of taste on those types of matters.

56 However, I am satisfied, having considered the presentation contained in appendix 2 to Mr Strudwick's report which identifies the window and shows the relevant streetscape in Gould and Hall Streets that it would be, on a very fine balance, more desirable that there be the active retail presence than the passive position which might appear more capable of being interpreted as either advertising or inanimate muralism or facadism. It is a matter that I have not found easy to determine but the conclusion which I have reached is a matter which would enable the applicant to re-address it with the council at some stage in the future if it wished to do so. 57 I am therefore satisfied that, at least in the short term, it would be more appropriate to adopt the position advanced by Ms Laidlaw as it is a position that is better able to be resiled from by the applicant by seeking a variation pursuant to s 96 of the Act at some stage in the future if it proved to be an unsatisfactory arrangement.

58 Having reached those conclusions, I comment more generally with respect to the manner in which the material from Mr Brennan and Acting Superintendent Purcell reached the Court. 59 Mr Brennan's affidavit and the letter from Acting Superintendent Purcell were provided by the council in a fashion that was clearly, as conceded by Mr Staunton, designed to go beyond merely responding to and sought to subvert the conclusions that Ms Laidlaw reached as the Court-appointed witness. I say this as the "policy", discussed earlier and which forms the basis for this material, could and should have been disclosed to the applicant and to Ms Laidlaw at a much earlier time. It is in no way fresh or recent or new material.

60 The material was provided to Ms Laidlaw and to the applicant's lawyers, effectively (on the exhibits that are before me) simultaneously so that the applicant and the applicant's legal advisers had no opportunity to consider whether or not it was appropriate that that material should be provided to Ms Laidlaw or not. The material was provided to her on 15 October, being last Friday, and sent by facsimile, at least with respect to the Inspector Purcell material, at a time after 6.30pm, thus making it difficult if not impossible, for the applicant to respond to it over the intervening weekend.

61 I contemplated whether or not I should invite Mr Galasso, and put Mr Staunton on notice of my intention to do so, to make a specific submission on costs on that matter. He is still at liberty to make any submission on costs that he might wish to do so, but having considered the matter further, issuing such an invitation would be tantamount to treating the issue of costs as being punitive rather than restorative, I have therefore come to the conclusion that it would not be appropriate for me to issue such an invitation. 62 The orders that I propose to make in the substantive appeal are: 1. The appeal is upheld; and 2. Development Application 300 of 2004 is granted Development Consent subject to conditions which remain to be settled between the parties in light of this decision. Costs decision 63 In these proceedings there has been an application by Mr Galasso that the entirety of the costs of the proceedings should be given to the applicant as a consequence of the conduct of the council. 64 He puts to me that it is fair and reasonable that that ought to occur because of the way the concluding phase of the proceedings has been necessarily run as a consequence of my determination to admit the evidence of Mr Brennan and Acting Superintendent Purcell.

65 Mr Staunton, solicitor for the council, in reply, opposed the making of any order for costs but obtained instructions that his client would not oppose an order for costs that dealt with the costs of the additional consideration by Ms Laidlaw of the Brennan and Purcell material that was provided to her after the preparation of her statement of evidence together with the applicant's additional costs in dealing with that material. 66 Had Mr Staunton not received those instructions I would certainly have to determine if I would have sought the consent of the Chief Judge pursuant to s 69(8) of the Land and Environment Court Act 1979 for the Chief Judge's concurrence in my making an order that all costs as actually billed by Ms Laidlaw for dealing with the Brennan and Purcell material should be costs to the Council not to the applicant and that the costs of the applicant as agreed or assessed in dealing with that material should also be costs to the applicant. 67 However, in light of the concession made by Mr Staunton, I do not have to determine this element. I therefore propose to seek the consent of the Chief Judge to making such an order limited to those costs.

68 As to whether I should make a more expansive order than that, I am satisfied that I ought not do so. I have so conclude for the following reasons. 69 I consider, as I noted in my primary judgment, that the method and timing of providing of the Brennan and Purcell material was entirely unsatisfactory. 70 However, there is no doubt that the question of the hours of operation of the premises has been the dominant issue in the proceedings and has been one which was in play in the proceedings since at least the filing of the Statement of Issues on 27 August and, possibly, through discussions and documents available to the applicant prior to that.

71 The matters that Mr Brennan and Mr Purcell have raised in the proceedings have gone to a clarification and refinement of that issue but it is not an issue that could have been described as ambushing the applicant as to its generality - although perhaps to its specificity relating to the "policy".

72 I therefore decline to award to seek the Chief Judges' concurrence to an award of costs on a broader basis. I consider that it would not be fair and reasonable to award costs as the dominant issue which has led to the proceedings requiring my adjudication has been in play for a period of some two months prior to now.

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