7-Eleven Stores Pty Ltd v Waverley Council [2004] NSWLEC 607

7-Eleven Stores Pty Ltd v Waverley Council [2004] NSWLEC 607

The objections outside the hours issue did not justify refusal. The council's alleged policy against late night trading was unwritten, undisclosed and amorphous, so it was given no significant weight. Police evidence about late night crime and disorder justified making trading between midnight and 6am subject to a 12-month trial, but did not justify refusing 24-hour operation altogether because of the differences between the proposed convenience store and the Campbell Parade premises. The appeal was therefore upheld and development consent granted subject to conditions, including ongoing trading from 6am to midnight and a 12-month trial for trading from midnight to 6am.

Jurisdiction
Australia
Judgment Date
20 October 2004
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Ex Tempore Judgment and Costs Decision
Outcome
Appeal upheld; Development Application 300/2004 granted development consent subject to conditions to be settled. A broader costs order was refused, while the Commissioner proposed to seek the Chief Judge's consent for a limited costs order concerning the Brennan and Purcell material.
Legal Topics
['hours of Operation' 'convenience Store Trading Hours' 'deemed Refusal Appeal' 'unwritten Council Policy' 'economic Competition as a Planning Consideration' 'trial Period for Late Night Trading' 'costs Arising From Late Evidence']
['environmental Planning and Assessment' 'development Consent' 'costs'] ['hours of Operation' 'convenience Store Trading Hours' 'deemed Refusal Appeal' 'unwritten Council Policy' 'economic Competition as a Planning Consideration' 'trial Period for Late Night Trading' 'costs Arising From Late Evidence']

Case Brief

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Ex Tempore Judgment and Costs Decision

Legal Issues

  1. 1 ['Whether Development Application 300/2004 for operation of premises at 15 Hall Street, Bondi Beach as a 7-Eleven convenience store should be approved.' 'Whether the premises should be permitted to trade 24 hours per day, seven days per week, or have restricted hours of operation.' "What weight should be given to the council's unwritten policy concerning late night trading in the Bondi Beach area." 'Whether objections based on vandalism, security, noise, litter, signage, franchise character and economic competition justified refusal or restrictions.' 'Whether the Gould Street frontage window should have frosted glass or an active retail presentation.' "Whether the applicant should receive costs because of the council's conduct in providing the Brennan and Purcell material."]

Ratio Decidendi

The objections outside the hours issue did not justify refusal. The council's alleged policy against late night trading was unwritten, undisclosed and amorphous, so it was given no significant weight. Police evidence about late night crime and disorder justified making trading between midnight and 6am subject to a 12-month trial, but did not justify refusing 24-hour operation altogether because of the differences between the proposed convenience store and the Campbell Parade premises. The appeal was therefore upheld and development consent granted subject to conditions, including ongoing trading from 6am to midnight and a 12-month trial for trading from midnight to 6am.

Court Disposition

Appeal upheld; Development Application 300/2004 granted development consent subject to conditions to be settled. A broader costs order was refused, while the Commissioner proposed to seek the Chief Judge's consent for a limited costs order concerning the Brennan and Purcell material.

Orders

  • ['The appeal is upheld.' '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.']