Garlick v Randwick City Council

APPLICANT Ms S. Hill, solicitor of Susan Hill Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Tomasetti SC Instructed by Marsdens Lawyers.

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 On 20 July 2000 the Randwick Council granted development consent (DA/428/2000) for the change of use of an existing shop to a pie shop at 266 Coogee Bay Road Coogee. That consent also extended the shop's trading hours to 7 a.m. to 2 a.m. seven days per week (condition 2). Subject to an appropriate lease, footpath dining (six seats and three tables) outside the shop was also approved.

2 The 45 m2 premises formerly known as Sergeant's Pies is now known as Garlo's Pies. It has an open shopfront and service counter spanning the width of the store. There is no seating or provision for customers to can assume their purchases on the premises. All of the pies sold are precooked hence there is no need for customers to wait for food to be prepared. The shop has a 24-hour, four camera, digitally recorded, video surveillance system with one of these cameras monitoring the whole of the front of the shop and the footpath directly outside the premises. 3 The applicant in the proceedings has now applied to the council under section 96(2) of the Environmental Planning and Assessment Act 1979 to vary condition 2 to extend hours of closing to 4 a.m. daily.

Council's decision 4 According to the council's Statement of Facts and Contentions: Council granted consent to the modification application on 21 October 2008 in the following manner: Condition 2 is amended to read: 2. The trading hours of the pie shop shall be restricted to the following: o Monday to Saturday: 7 a.m. to 12 midnight, o Sunday: 7 a.m. to 10 p.m. 5 Plainly, by reducing the existing hours rather than increasing them as sought, this decision is, in my opinion, a refusal of the modification application.

6 It is clear that I could uphold the appeal and extend the hours of operation as sought and, considering the development as modified, could then attach conditions for example relating to the management of the premises during the extended hours. However, I do not accept that it would be within the Court's power to reduce the existing hours of operation, as this would not involve a consideration of the whole development as modified by the application. 7 The applicant has now appealed against the council's decision, inviting the Court to uphold the appeal and to modify the consent to allow trading to continue for an additional two hours until 4 a.m. daily. Planning Controls 8 The site is zoned 3(a) General Business under Randwick Local Environmental Plan 1998 and in this zone shops are permissible with development consent. Clause 9 of the LEP requires consideration of the extent to which proposed development is consistent with the general aims of the LEP and the specific objectives of the zone. The general aims of the plan include the need to consider the environmental qualities of the city and the social consequences of decisions. The objectives of the 3(a) zone include the need to maintain the viability of existing business centres by enhancing pedestrian and public open space areas for shoppers and workers and by maintaining and improving environmental and aesthetic qualities. Possible impacts on adjoining and nearby residential zones are to be minimised. Advertising 9 The application was notified in accordance with Council's public notification development control plan and a submission was received from the Police Eastern Beaches Local Area Command objecting to the proposed extended hours.

10 The police submission explains that by extending the trading hours it is highly probable that there would be an increase in the number of intoxicated persons loitering in the area. These persons may either become the perpetrators or victims of crime. Their likely noisy and antisocial behaviour will inevitably lead to complaints. In the circumstances the trading hours should be restricted or lessened as opposed to extended in the best interest of the local community. The on-site evidence 11 When the hearing began on-site I heard from a number of objectors. Inspector Hodder of the Eastern Beaches Local Area Command gave evidence in relation to his and his officers' late night and early morning experiences in this locality. These experiences include numerous complaints of assaults and antisocial behaviour of an including crowds of people who frequent the locality especially on Friday and Saturday nights. Intoxicated persons come into the area to buy takeaway food and/or try to get into the Coogee Bay Hotel. The resulting crowds of people, including people who have been denied access to the hotel, can obstruct general pedestrian traffic and the congestion can result in frustration, aggravation and violence. He was also concerned that when purchased food is eaten and sometimes dropped on the footpath outside these outlets. This can cause a slip hazard for his officers 12 Inspector Hodder was of the opinion that the late-night food outlets are directly responsible for many assaults and antisocial behaviour because when they are open they tend to keep people in the area. Instead if these facilities were not available fewer people would come into the area thus reducing the chances of them becoming a victim or from committing an offence.

13 The resident objector evidence essentially involves the changes that have occurred to the local environment as a result of the noisy, offensive, violent, alcohol-related antisocial behaviour that they associate with the late closing hotels and take away food premises. This is compounded by the noise associated with the frequent attendances of police vehicles and ambulances. 14 I was also provided with copies of correspondence sent to the council in 2005 describing late night and early morning drunken antisocial behaviour in the Coogee Bay Road area. At least one objector suggests that the problems might be able to be dealt with by limiting the trading hours of the licenced premises as well as those of the take-away food premises. The principal issue 15 According to the council's contentions the principal matter of concern to the council is essentially as follows: The existing and proposed trading hours is likely to result in an increased potential for incidents of alcohol-related violence and antisocial behaviour. In turn this will adversely affect the amenity of nearby residences and pedestrians in the street The site's context 16 The pie shop is located in the main Coogee retail area directly opposite the Coogee Bay Hotel. Adjoining the site in Coogee Bay Road there are several other fast food shops including a pizza shop and a kebab shop that both operate until 4 am or later. Also there are other late opening take-away food shops nearby in Arden Street. Much of the development in the retail area is two-storey, including some shop top housing. Further to the west three-storey buildings with the upper two storeys accommodating residential flats. Beyond this there are other residential flat buildings. Mr McDonald's evidence 17 In his report Mr S. MacDonald, the council's consultant town planner explained that this part of Coogee is identified as one of a number of locations in NSW identified by the NSW Bureau of Crime Statistics and Research as having high concentrations of non-domestic violence related assaults. It has the highest concentration of such assaults in the Randwick local government area and is identified as a "hotspot". The available statistics also confirmed that there are many alcohol-related assaults that occur between midnight and 6 a.m. 18 In addition to the Coogee Bay Hotel there are other licenced premises in the vicinity of the existing take-away food premises in Coogee Bay Road and Arden Street and it is the late trading nature of these hotels and clubs that sustain the late opening of the take-away food premises. The patrons of nearby licenced premises, being attracted to the take-away food premises, tend to congregate in the streets, waiting to purchase and subsequently consuming purchased food in the streets. It is these gatherings of persons under the influence of alcohol and possibly intoxicated that increases the potential for alcohol-related incidents of violence and antisocial behaviour. 19 Whilst he acknowledged that other late trading takeaway food premises would continue to operate, this is not a reason to extend the hours of the pie shop. Indeed a better outcome would be to reduce the existing hours of operation.

20 Any increase in the potential for incidents of alcohol-related violence and antisocial behaviour will adversely affect the amenity of pedestrians and residents living in nearby dwellings. Mr Graham's evidence 21 In his report Mr A Graham the council's Coordinator Regulatory Projects describes his observations in relation to a number of late-night and early morning inspections of the environs of the pie shop and the Coogee Bay Hotel. These inspections took place in 2005 and 2008. 22 During these inspections he variously observed late trading hotel patrons (predominantly from the Coogee Bay Hotel) congregating around the existing take-away food outlets including the pie shop. Several of these were recorded on video. He observed significant numbers of variously intoxicated persons and several altercations including instances attended by the police. Mr Betros' evidence 23 In his evidence Mr A Betros the applicant's consultant town planner explained that he has been a resident of Coogee for over 30 years and is well familiar with the Coogee Town Centre. Prior to the preparation of his report he carried out several weekend inspections including during several hours after midnight. During these inspections he noted that the pie shop's patronage is at its busiest at night but this is mainly confined to a steady stream of singles, couples or occasionally three or four persons that did not result in any queuing or inappropriate behaviour. Patrons are usually in and out of the shop in less than one minute and would commonly walk away from the area or catch a taxi. Others might eat their pie standing on the footpath. 24 Mr Betros acknowledged that the premises traded, albeit unlawfully, 24 hours a day until October 2007 when the owner was required to comply with condition 2 of the consent that requires 2 a.m. closing. He also noted that the premises have otherwise operated without any objections or complaints since it became Garlo's Pies in August 2004. In his assessment the operation of the premises has not been responsible for any adverse impacts over this time and consequently it can operate into the future without impacting surrounding residential and retail premises. It will also assist with the viability of the Coogee Town Centre. 25 He noted that the council's contentions do not refer to any impact that has occurred directly related to the pie shop. Instead the contentions are based on general crime statistics for the Coogee Town Centre generally and in this regard he notes that there are no incidents directly related to the subject premises. He also observed that there is no evidence of a reduction in criminal or antisocial activities since the ceasing of the pie shop's 24-hour operation in October 2007 that would otherwise have been anticipated if Council's contention were correct.

26 In effect the extension of trading hours will not increase the number of patrons of the licenced premises and will make little difference to their behaviour. It will provide the benefit of giving these patrons' greater food choice and quicker service. It may also reduce queuing. Given the history of the premises there is no basis upon which attribute criminal and antisocial behaviour to it. In the circumstances and taking into account the existence of other late trading take-away food shops, Council's reasoning is flawed. 27 Finally Mr Betros suggests that the determination of applications such as this should be made in the context of existing planning controls and policies, not as has happened here in an unreasonable and haphazard fashion. A strategic planning approach is required but unfortunately the council has no particular policy that reflects its concerns.

Court's conclusions 28 There is no denying that the late-night and early morning trading licenced premises in this part of Coogee attract considerable numbers of people to the area and that many of these people become affected by alcohol. Some become seriously intoxicated and behave in an antisocial or criminal manner. Antisocial behaviour seems to occur on a frequent basis. Assaults and resulting attendances by the Police are not uncommon.

29 Some of this inappropriate and unlawful behaviour occurs outside the existing take-away food shops in Coogee Bay Road including the pie shop. However I have not been persuaded that this behaviour can be directly attributed to these shops that simply seek to cater for the demand for take-away food. It is nevertheless likely that many of the people attending these shops late at night or in the early hours of the morning are affected by alcohol. At times when there are groups of such people purchasing or consuming take-away food on the footpath tempers can and do flare for various reasons and altercations can occur. If alcohol were not involved such occurrences I expect would be far less likely. Hence it is unreasonable to simply lay the blame for inappropriate behaviour on the take-away food shops. Despite this if the take-away food shops were closed late at night and in the early hours of the morning when it seems people are more likely to be affected by alcohol it would be less likely that people would gather in groups in the street and would instead be more likely to disperse. 30 Having reviewed the evidence in relation to late-night and early morning behaviour, it seems to me that the vast majority of the patrons of the licenced premises come to this area to enjoy themselves and behave appropriately or at least in a non-offensive manner. Part of this enjoyment seems to involve the consumption of take-away food before going home. It is only a small number of people who cause problems.

31 The question that thus arises is whether allowing this pie shop to remain open for an additional two hours in circumstances where other take-away food shops can and do trade at the same time would result in changes of any significance to the behaviour of the patrons of licenced premises that would adversely affect the amenity of residents or other passers-by. Whilst some people might come to this area late at night or in the early hours of the morning to purchase food from the take-away food shops I agree with Mr Betros that it would be unlikely that an increase in the opening hours of the pie shop would make any difference. The existing time of closure simply sends purchasers to the neighbouring take-away food shops. 32 I also agree with Mr Betros that the extended trading hours as sought will not increase the number of patrons of the licenced premises and will make little difference to their behaviour. Conversely by providing greater food choice and quicker service, queuing and congestion could be reduced. I do not expect that there will be any adverse cumulative effect by increasing food choice.

33 In these circumstances I have not been persuaded that the additional opening hours would adversely affect the amenity of this area. In reaching this conclusion I have taken into account what Mr Betros said about the 24 hours a day trading of the premises that has otherwise operated without any objections or complaints since it became Garlo's Pies in August 2004.

34 Finally, in response to the concerns about discarded food and food wrappings on the footpath causing a safety hazard I have decided to include a new condition in the consent to ensure the maintenance of the footpath in a clean and tidy condition. Also, to assist in the management and supervision of persons in the immediate vicinity of the premises I have included a second new condition requiring the maintenance of existing security cameras and the retention of recordings. I also agree to the removal of conditions 8 and 9 of the consent that presently enable use of the footpath area for outdoor dining in the interest of reducing footpath congestion. Orders 35 The orders of the Court are therefore:

1. The appeal is upheld.

2. Development consent DA/428/2000 for the shop premises at 266 Coogee Bay Road Coogee is amended as follows:

(a) Condition 2 is amended to read: The trading hours of the pie shop shall be restricted to 7 a.m. to 4 a.m. seven days per week.

(c) A new condition 19 is inserted as follows: The shop's proprietor/manager and staff shall ensure that the footpath area outside the shop is maintained in a clean and tidy condition and free of grease and other foodstuffs at all times. (d) A new condition 20 is to be inserted as follows: The existing security cameras (including the camera trained on the footpath area outside the shop) shall be maintained in an operating condition and at least six weeks of recordings shall be retained and made accessible to the Police or the council upon request.

      T A Bly
      Commissioner of the Court
      ljr

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