Liapis v Camden Council

10 The application was referred to the police at the Camden Local Area Command. On 23 November 2009, Senior Constable Millman, the Crime Prevention Officer, replied to the council and listed recommended conditions of consent that should be imposed in order to ensure security of operation. The conditions detailed aspects of surveillance, lighting, and access to and security of walkways. It is noted that no recommendations were made for the imposition of a trial period.

11 It appears that as a result of the submissions, the council asked the applicant to prepare and submit a detailed 'community impact statement' to be assessed by council.

12 The community impact statement was prepared by Back Schwartz Vaughan - Solicitors and Attorneys and required community consultation. This was undertaken, and with the exception of the police, no individual or group, including the principal of Currans Hill Primary School and the coordinator of the ABC Developmental Learning Centre, raised any concerns or issues.

13 The community impact statement includes a "Statement of Impact". This document contains a detailed analysis of the potential impacts of the proposed development on the local community and the broader community including several areas identified as 'sensitive'. These sensitive areas include Jack Nash Reserve, Sedgwick Reserve, a public reserve to the rear of site, Currans Hill Primary School, ABC Development Learning Centre and the Currans Hill Community Hall and are within about 250m of the proposed development. This document includes detailed references to published reports, papers and statistical information. 14 The Statement of Impact finds that, on balance, the overall social impact of the proposed development will not be detrimental to the well being of the local community or to the broader community. 15 The report from the council's Director of Development and Health went to the Ordinary Council Meeting held on 11 May 2010. In part, the conclusion reads: The application has been publicly notified and the five submissions received have been considered. The application has also been assessed in accordance with s 79C of the Environmental Planning & Assessment Act 1979. It is considered that the proposed liquor shop represents an appropriate form of development for the Currans Hill Neighbourhood Centre in that it will provide for the needs of the surrounding residential area and it is not anticipated to have any significant impacts upon safety and amenity. However, to further evaluate potential impacts, it is a recommended development consent condition that the use be approved for a 12 month trial period only. Consequently this development application is able to be recommended to Council for approval, subject to the draft development consent conditions shown below.

16 The development application was approved and a Notice of determination issued on 11 May 2010 including the condition subject to the appeal.

The issues 17 As previously stated, the applicant contends that there is no basis on which the trial period should be imposed and submits that is unreasonable. 18 The council maintains that condition should be imposed as the development is close to residential development and a number of sensitive land uses. It considers it will allow the council and the community to evaluate the impacts of the proposed liquor store while operating and then determine whether to grant permanent approval. This they say is supported by the police. The council also contends that the proposed development is a fit-out, and as such, could be converted to another use should permanent approval not be granted.

Planning controls 19 The site is zoned 2(d) (Residential "D" (Release Areas) Zone) in the Camden Local Environmental Plan No 47 (CLEP). The relevant zone objective is, in part: 1(c) to ensure the provision of accessible and convenient commercial, social, recreational, community and employment facilities…. 20 The proposed development is permissible within the zone with development consent as it is a commercial premises as part of a neighbourhood centre. A 'neighbourhood centre' is defined in the CLEP as 'a comprehensively designed small centre having a total site area of not more that 7,500 square metres and including any or all of the following: (a) shops having a combined total net floor area of not greater than 60% of the total site area, …..

21 Another relevant control is the Camden Development Control Plan 2006 (CDCP). Part G, Chapter 3 of the CDCP relates to Currans Hill. Clause 4.4 states that the land use objectives of the "Neighbourhood Centre" are: (a) to identify adequate land to enable the provision of a full range of neighbourhood retail, commercial services and community facilities to meet the demand and needs of the population of the Currans Hill neighbourhood; (b) to provide flexibility for a mix of development in accordance with the concept of a "Neighbourhood Centre" including residential development and encourage the early provision of services and facilities for the surrounding development.

22 The conclusion of the council report, given in para 14, shows that the council considers the proposed development to be appropriate for Currans Hill. The report to council states that the proposed development meets the zone objectives in the CLEP and the controls in the CDCP. 23 The applicant notes that there are no controls in either the CLEP or the CDCP that provide for the imposition of trial periods for liquor stores or other uses. 24 Under s 79C(1)(a)(ii), the Court must consider the provisions of any proposed instrument that is or has been the subject of consultation under the Act and that has been notified to the consent authority. It appears that the gazettal of the Camden Local Environmental Plan 2010 (2010 LEP) is imminent. Under the 2010 LEP, the site will be zoned B1 Neighbourhood Centre. Neighbourhood shops are permitted with consent. 25 The objectives of the B1 zone are: * To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. * To encourage mixed use developments to present an active frontage to the street by locating business, retail and community uses at ground level. * To minimise conflict between land uses within the zone and land uses within adjoining zones. * To enable other land uses that are complimentary to and do not detract from the variability of retail, business and community uses within the zone. 26 Under the 2010 LEP, the adjoining land to the west of the site is zoned R3 - medium density residential and the remaining surrounding land is zoned R2 - low density residential. The council has no issues that the use is permissible under the 2010 LEP however it presses the contention that the imposition of a trial period meets the objective listed in the third dot point above. As required under 79C, this is noted for consideration.

Evidence 27 The hearing commenced with an inspection of the site. There were no resident objectors. The premises were inspected and the proposed location of security cameras was pointed out. 28 There is an access way between the IGA tenancy and the site in which there are public toilets. At the western end of this access way is a narrow passage between the commercial development and the dividing fences between the neighbouring residential properties. This passage runs the full extent of the commercial building from the frontage with Currans Hill Drive to the carpark at the rear of the building. The police highlighted these spaces as areas of concern for security. The narrow passage is proposed to have locked gates at each end. The access way with the toilets is proposed to have a locked gate with a grill above at the eastern end. The gate is proposed to be locked at the close of business. The provision of an additional surveillance camera for this access way was discussed on site. 29 We walked through a small area of public open space in which there is a gazebo. This was mentioned in public submissions as an area in which antisocial behaviour occurs. This small park adjoins the ABC childcare centre and the community centre. Some vandalism of the childcare centre is said to have occurred in the past. Some graffiti was pointed out. 30 We walked along a vegetated cycle/ pedestrian way past the playing fields of Currens Hill Public School to Jack Nash Reserve to the west of the site. It was stated that there is pedestrian access through the park to Mount Annan shopping centre. This park is mentioned in a police statement as being an area known for under-age drinkers. We proceeded back to the site via a cycle/ pedestrian way along a landscaped drainage easement to Currans Hill Drive. During the site visit, the addresses of the resident objectors were pointed out. All except one were people residing in dwellings in very close proximity to the site. 31 We viewed the location of liquor outlets at Mount Annan shopping centre and Harrington Park.

Police evidence 32 Senior Constable Millman prepared a statement of evidence in relation to the matter. SC Millman also prepared the response to the council described in para 10. This report was based on a "safer by design" evaluation and recommendations for security were made. In her statement of evidence she outlines 17 offences that have occurred in the locality this year and other general behavioural problems in the broader community. Some of the recorded offences included 'stop and search' incidents. She states that licensed premises in the district have a problem with theft of alcohol from bottle shops. 33 In oral evidence, SC Millman stated that the reported incidents in the proximity of the site occurred after dark. She agreed with Mr Clay, for the applicant, that nearby liquor outlets also include hotels. She was not unaware of the Statement of Impact and its findings, nor was she aware of any literature or reports on the impacts of liquor stores on the amenity of a neighbourhood. SC Millman was unable to produce any specific evidence linking the recorded offences with particular liquor outlets. 34 SC Millman was also unaware of any trial periods being required for any stand-alone liquor stores in the Camden local government area. She also confirmed that her report to the council did not include a recommendation for the imposition of a trial period although she stated the police would support one if it were conditioned. When questioned by Mr Clay, she also stated that she was aware of the relevant sections of the Liquor Act 2007 No 90 regarding the licensing requirements for packaged liquor sales and of the disturbance complaints procedure relating to the operation of licensed premises. 35 In further discussions of the security issues associated with the proposed premises, she recommended an additional locked gate at the western end of the access way between the LGA tenancy and the site. It was also considered that changing the proposed closing time of the liquor shop from 10:00pm to 9:00pm, to coincide with the closing time of the supermarket, would address some of the concerns over security.

Planning evidence 36 Mr A Ison, a planner from Camden Council gave planning evidence on the council's behalf. Mr C Weston gave evidence on behalf of the applicant. Mr Ison and Mr Weston prepared a joint statement. 37 The joint planning statement addressed the contentions raised by the applicant that, in summary, there is no evidence or material before the council that a liquor store in a neighbourhood such as Currans Hill has any impacts of the type which would warrant the imposition of a trial period, particularly where a significant capital investment is required for the implementation of the development. Also that the imposition of a trial period is unreasonable and unnecessary as is the requirement to apply for a further development consent after a period of 9 months. 38 There was no agreement between the planners. The council relies on the police report and the concerns of the residents who made submissions and presses the trial period as the most appropriate way of addressing these concerns. 39 Mr Weston's opinion is that the recommendations made by the police with respect to security have been included in the conditions of consent and will be implemented. He states that there is no evidence to substantiate the opinions of the resident objectors and that the Community Impact Statement confirmed that the impact of the proposed development will not be detrimental to the wellbeing of the local and broader communities. He also considers that the installation of extensive cool rooms and surveillance equipment would not be required for the fit out of any other retail shop other than another liquor store. Mr Weston also refers to the provisions under the Liquor Act and the NSW Casino, Liquor and Gaming Control Authority. In conclusion, Mr Weston considers the imposition of a trial period to be unreasonable especially as no such trial periods have been imposed on similar outlets. 40 The condition in contention states that the 12 month trial period is to commence from the date of the development consent. Development consent was granted on 11 May 2010. 41 Mr Clay questioned Mr Ison on the practicality of this condition given that the building is still under construction and the premises are not in operation. Mr Ison stated that this was the council's position and he considered this would give the council more time to collect any necessary information. He stated that it would leave the situation open for the consent authority to extend the trial period if it considered they didn't have enough time, presumably in the 9 months from the date of determination to the applicant making of a new application, to assess the impact. 42 Mr Ison did not appear to grasp the concept that in order to assess the impact of the operation of the proposed liquor store on the local community, the liquor store has to be operating. It was suggested to Mr Ison that it was inappropriate in a planning consent to impose a trial period in order to determine a base line. Mr Ison restated the concerns of the resident objectors and considered that, essentially, these should be given considerable weight in determining the social impact of the proposal. Mr Ison did not appear to have considered the findings in the Statement of Impact. 43 Mr Shaw for the council questioned Mr Weston on the existence of the "Site Management Security Plan" referred to in the 'Statement of Environmental Effects' (SEE) prepared by Mr Weston on behalf of the applicant. The details of what this plan is to cover are listed in the SEE but it appears that the plan has not been provided to the council or to the Court.

Submissions 44 Mr Clay submits that the Court's determination of this appeal should consider the structure of the assessment process, the planning regime and the evidence. He contends that Mr Ison's approach to the conditioning of the trial period is wrong on many levels, particularly as the proposed development is not in operation, and that there is now uncertainty as to the extent of the trial period. Mr Clay tendered quotes for the proposed fit-out. These amounted to a sum of about $246,000. This sum does not include the stock. The minimum lease term for the premises is 5 years. As such, he concludes that uncertainty associated with the trial period has considerable financial consequences for the applicant. 45 Mr Clay asserts that there is no evidence to link potential impacts on the community with the existence of the proposed liquor store. If the proposal were for a hotel, there would be a greater need to consider the concerns raised by the residents. He contends that the Statement of Impact demonstrates that the proposed development will not have a detrimental impact on the community. He concludes that the condition requiring a trial period is unreasonable. 46 Mr Shaw stressed that the concerns of the council are not baseless and referred to SC Millman's statement of evidence. Mr Shaw referred to the report to council prepared by council planners and contends that the condition is well founded. He restated, that the council has approved the development but on the basis of this condition.

Findings 47 The Court's determination must consider s 79(C) of the Act. With respect to s79(C)(1)(a)(i),(ii) and (iii), I was not taken to any controls in the Camden Local Environmental Plan No 47 or the imminent 2010 LEP regarding time-limited controls. It is agreed by the parties that the proposed development is a compliant and appropriate use and meets the objectives of the LEPs. I concur with their findings. There are no specific relevant controls in the Camden Development Control Plan 2006. 48 I was taken to a number of authorities where trial periods have been in contention. In Zhang v Canterbury City Council [2001] NSWCA 167 one of the issues was whether or not a time limit period was permissible in the circumstances of that matter. Section 80 A(1)(d) of the Act enables a consent authority to impose such a condition. In doing so, the matters under s 79(C) must be considered, as must the merits of doing so. 49 Consideration of the DCP is relevant, not only in regard to the findings in Zhang regarding DCPs in general, but with respect to the extent to which a council has considered the need to include the provision for a trial period in its DCP. In Reserve Hotels Pty Limited v Council of the City of Sydney [2010] NSWLEC 1135, Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown v Sydney City Council [2009] NSWLEC 1095 and Fiorenza v Waverley Council [2009] NSWLEC 1269, the evidence went to specific provisions in the City of Sydney Late Night Trading Premises Development Control Plan 2007 and the relevant Waverley DCP. These councils have detailed controls specifying requirements for trial periods. As stated above, there are no such controls in the Camden DCP. 50 Clearly under s 80A(1)(d), such a condition can be imposed by a consent authority, the council in the first instance, or by the Court in exercising its powers under s 39 of the Land and Environment Court Act 1979. 51 In regards to the appeal before the Court, I find that the imposition of a trial period is unreasonable and unnecessary for the following reasons. 52 The condition is drafted in a form that is counterproductive to its intent, that is, the trial period is to start from the date of the determination rather from a point at which the business is operational. Mr Ison was adamant that the condition remains as drafted. As discussed previously in this judgment, in order to assess the impact of the liquor store on the community, the liquor store must be in operation. Zhang at para 85 states in part The focus is then on "likely impact" during the probationary period. At para 93 There was a considerable body of evidence before the Commissioner as to the actual effect that the operation of the brothel had on the locality over a period of time prior to the trial…. 53 There is no evidence before me of a trial on the impact of the operation of a liquor store in a comparable location. I have no evidence before me to lead me to conclude that the condition should be redrafted for a trial period to commence from the issue of an occupation certificate. If the council were determined to assess the impact of the operation of the liquor store on public amenity, then it would seem that would have been a more appropriate starting point. 54 Mr Ison's evidence was such that there could be no certainty that the trial period, if ordered, would not be extended indefinitely. There is no explanation in the council report as to how any impacts would be evaluated. There are no criteria in the CDCP relating to trial periods against which compliance could be tested. 55 The council relies heavily on a generalised list of offences recorded by police. No evidence has been produced to prove the nexus between the offence and the existence of premises such as the one subject to this appeal. No trial period has been imposed on any similar premises. 56 Similarly, the council has placed considerable importance of the submissions of 5 residents. There is no doubt that those that made submissions have strongly held opinions, however the facts of this matter are that the use is permitted within the zone and it is consistent with the land use objectives for neighbourhood centres given in Part G, Chapter 3 of the CDCP - Currans Hill. However, this is not to say that the concerns of residents should not be taken seriously. It is noted that there were no objections from the principal of the primary school or the coordinator of the childcare centre. 57 The appeal before the Court is for the fit-out of a liquor store and not for a liquor licence. Should a licence be approved, there are provisions under the Liquor Act 2007 that enable the community, the council and the police to make disturbance complaints to the Director-General, Communities NSW.

58 The fit-out and stocking of the liquor store will require a substantial financial investment. The term of the lease is a minimum of five years, I consider that the degree of uncertainty inherent in the condition and in Mr Ison's evidence, places the applicant in an unreasonable situation. 59 In conclusion, I find, in the circumstances of this case, that there is no evidence of likely impacts that warrant the imposition of a trial period. However, I find that to address some of the community concerns, the following conditions should be imposed: - The opening hours of the liquor store are to be limited to 10:00 am until 9:00 pm, 7 days per week. The closing hours are to be consistent with the closing hours of the supermarket. - The access way between the supermarket and the liquor store is to have a locked gate at the western end and a surveillance camera is to be appropriately located to monitor this area. - A Site Management Security Plan as referred to in the applicant's Statement of Environmental Effects is to be prepared to reflect the criteria listed in s 3.6 of the SEE and the findings in this judgment.

60 The Orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for the fit-out and use of Units 2 and 3, 9 Iando Way Currans Hill as a liquor shop subject to the conditions of consent in DA1264/2009 other than Condition 1.0(16). Condition 1.0(16) is to be deleted. 3. The final conditions of consent are to be amended to reflect the findings in this judgment at paragraph 58. The conditions and the Site Management Security Plan are to be lodged electronically with the Court by close of business 31.08.2010. Both the conditions and the Site Management Security Plan will be appended to the Orders. 4. All exhibits except 4, A, B and C are returned.

J. Fakes 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.