Tanwar v Marrickville Council

APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister SOLICITORS Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of an application to modify Determination No 9898 granted by the council on 8 May 1985. Determination No 9898 provided for the use of the property at 281 New Canterbury Road, Marrickville for the; "installation of an underground fuel storage tank and the extension of the existing canopy over the driveway area and to continue with the existing use of the premises as a service station". 2 Condition 3 states: 3. The hours of operation being restricted to 7.00 a.m. to 7.00 p.m. Mondays to Saturdays and 9.00 a.m. to 6.00 p.m. Sundays and Public Holidays. Council reserving the right to reduce these hours if it is considered that trading at such hours is causing and inconvenience or loss of amenity to the surrounding residential locality. Reason: To confirm the applicant submissions and to protect the amenity of the residential locality. 3 Condition 5 states: 5. All lighting of buildings and signs on the premises to be carried out so as not to cause inconvenience or nuisance to the occupants of nearby residences particularly between the hours of 9.00 p.m. to 7.00 a.m. the following morning of each day. Reason: To protect the amenity of the residential locality 4 The site is zoned Residential 2(A) under Marrickville Local Environmental Plan 2001 (LEP 2001). A "service station" and "car repair station" are both prohibited within this zone, however the site benefits from existing use rights. This has the effect that the provisions of the planning controls of the council that relate to the site apply only insofar as they do not derogate from existing use right provisions of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000.

5 The site is located in a predominantly residential area with the exception of the northern boundary where it adjoins Lewisham Public School. The residential development is varied and consists of single dwellings, townhouses and residential flat buildings. New Canterbury Road carries relatively large amounts of commuter traffic in the morning and afternoon peak periods although in non-peak periods traffic levels are not excessive and decrease during the evening and at night. 6 The applicant seeks to modify condition 3 to extend the hours of operation of the service station to 5.00 a.m. to midnight daily. The application also seeks approval to allow for a security guard to be positioned inside the premises outside the proposed extended trading hours although this was not pursued by the applicant at the hearing.

7 In response, the council proposes the following modifications: Modify condition 3 to : 3. The hours of operation for petrol sales and the shop are restricted to 7.00am to 10.00pm seven days a week. Modify condition 5 to : 5. All lighting- on the site, including the advertising signage, is to be switched off between the hours of 10.00pm to 7.00am seven days a week. Add the following conditions : 3A. The property is not to be used as a taxi change over base. 3B. All deliveries of fuel or any other products are limited to the hours of operation authorised by condition 3. 3C. All products, goods or equipment stored in front of the shop area are to be stored so that they do not extend more than 1.8 metres from the front wall of the shop. 3D Items of merchandise located inside the shop and adjacent-to the front window are not to. be stacked any higher than 1.3 metres above the floor level of the shop. This is to ensure uninterrupted lines of sight from the service counter-. 3E. All products, goods or equipment stored in front of the shop area are to be moved and stored within a building on the site when the premises is closed. 3F. The hours of operation of the mechanical workshop on the site are to be in accordance with condition 12 of Development Consent No. 199902079 dated 19 September 2001. 8 The hearing commenced on-site with Mr Charlie Formosa of 292 New Canterbury Road (directly opposite the site) and Senior Constable Steve Jacka from the Marrickville Local Area Command providing evidence on site. Mr Formosa stated that the existing service station currently operates outside its approved hours of operation and while not opposing some extension of the operating hours; he opposes the hours sought by the applicant. He has experienced unacceptable impacts on his amenity through early-morning deliveries of petrol, the use of the facility as a taxi change over base and light spill. These disturbances have occurred at all times of the night. Mr Formosa provided a petition from a number of residents in the area opposing the extended trading hours. 9 Senior Constable Jacka provided details of the unsafe nature and recent armed robberies that have occurred at the site. In Senior Constable Jacka's opinion, these activities are related to the particular characteristics of the site and its building. He states that the site is especially vulnerable to criminal activity because of its location away from other commercial activities, particularly when the surrounding area is dark and the inadequate facilities provided to protect employees. These include the absence of a safe room, CCTV, the absence of any method to pay for petrol at night without entering the shop and the inability to properly observe potential criminals because of the layout of the existing shop. For these reasons, Senior Constable Jacka did not support the extended trading hours.

10 Expert town planning reports were provided by Mr Anthony Betros for the applicant and Mr Jamie Erken for the council. Mr Betros supports the application on the basis that the site is not within a traditional residential zone. In his opinion, the location is not a typical residential area as it located on a busy four-lane arterial road and on two sides by a school. As the proposed use does not generate excessive noise or other amenity impacts it is acceptable. 11 Mr Erken comes to the opposite conclusion. He places some emphasis on the residential zoning and considers the proposed hours of operation are excessive and would likely result in reduced levels of amenity for residents of adjoining and surrounding properties. He dismisses any reliance on the site's location on New Canterbury Road as a basis for approval as traffic is significantly less on this road outside peak times. 12 With the benefit of the site view, an understanding of the relationship of the site with the adjoining residential properties, the evidence of Mr Formosa, Senior Constable Jacka and Mr Erken the proposed extension of the operating hours is clearly inappropriate. For expediency, the parties were advised on-site that there is a fundamental problem in allowing the extension of the operating hours for the service station given the proximity to residential development and the general operation of a service station. The parties were also advised that the Court would not be prepared to support the proposed extension of operating hours based on the evidence of Senior Constable Jacka because of the poor security for employees in the shop late at night. The applicant was directed to consider whether reduced operating hours from that proposed in the modification application could be entertained. 13 At the resumption of the hearing, Mr McMahon for the applicant accepted the draft conditions proposed by the council (see par 7) plus a further amendment to condition 3 modifying the hours of operation to 6.00 a.m. and 8.00 p.m. seven days per week and a corresponding change to condition 5. Mr Hemmings, on behalf of the council, raised no objection to the further modifications proposed by Mr McMahon.

14 With the further modified conditions, I am satisfied that the appeal can be upheld as the modified consent now provides greater protection to the residential properties surrounding the site while allowing some change to the operating times for the service station. Based on the evidence of Senior Constable Jacka, the modified operating hours should not place undue risk on the employees of the service station. Orders 15 The Orders of the Court are:

2. Determination No 9898 granted by the council on 8 May 1985 for the use of the property at 281 New Canterbury Road, Marrickville for a service station is modified in the following manner: Condition 3 is deleted and replaced with: 3. The hours of operation for petrol sales and the shop are restricted to 6.00 am to 8.00 pm seven days a week. Condition 5 is deleted and replaced with: 5. All lighting- on the site, including the advertising signage, is to be switched off between the hours of 8.00 pm to 6.00am seven days a week. The following conditions are added: 3A. The property is not to be used as a taxi change over base. 3B. All deliveries of fuel or any other products are limited to the hours of operation authorised by condition 3. 3C. All products, goods or equipment stored in front of the shop area are to be stored so that they do not extend more than 1.8 metres from the front wall of the shop. 3D Items of merchandise located inside the shop and adjacent-to the front window are not to. be stacked any higher than 1.3 metres above the floor level of the shop. This is to ensure uninterrupted lines of sight from the service counter-. 3E. All products, goods or equipment stored in front of the shop area are to be moved and stored within a building on the site when the premises is closed. 3F. The hours of operation of the mechanical workshop on the site are to be in accordance with condition 12 of Development Consent No. 199902079 dated 19 September 2001.

      G T Brown
      Commissioner of the Court

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