Canangles Creek Pastoral Co. Pty Ltd v Leichhardt Municipal Council

Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 ; CASES CITED: Vinson v Randwick Council [2005] NSWLEC 142; Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83

DATES OF HEARING: 18-19/10/2006 and 14/11/2006

APPLICANT Mr P Clay, barrister Instructed by: Mr M Staunton, solicitor Of: Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10466 of 2005 Canangles Creek Pastoral Company Pty Ltd v Leichhardt Municipal Council

JUDGMENT Background 1 This appeal was lodged against council's refusal to grant development consent for extended trading hours until 3 am at the Annandale Hotel, Annandale. The hotel is situated on the northern side of Parramatta Road (Nos. 17 - 19), at the junction with Nelson Street. This site has an area of approximately 234 sq m and contains a 2-storey building, which has been substantially altered internally to accommodate live performance music. The rear of the site is utilised for outdoor dining purposes in association with the restaurant that operates as part of the premises.

2 The locality consists of two distinct areas. Firstly, Parramatta Road consists of numerous shops, restaurants and miscellaneous businesses and secondly, there are a number of side streets, which connect onto Parramatta Road. These secondary streets are generally dominated by residential uses, without off-street parking.

3 The operations of the hotel have been subject to a number of consents, with the most recent being granted in September 2003. This consent allowed the following hours of operation: (a) The hours of operation of the premises shall be restricted as follows: Monday to Saturday - 10 a.m. midnight, Sunday - midday to 10 p.m. (b) Notwithstanding (a) above the premises may operate from: Monday, Tuesday and Wednesday - 10 a.m. to 12 midnight

Thursday, Friday and Saturday - 10 a.m. to 3 a.m. the following morning Sunday - 10 a.m. to 12 midnight; for a trial period of 12 months from the date of commencement of these extended hours. The licensee shall inform council in writing of the date on which these extended hours commenced. (c) The hours are subject to the following restrictions: (i) the outdoor beer garden is to cease use at 11.30 p.m. on any night, with all patrons being moved inside no later than 11.45 p.m. access restricted after that time. (ii) on Thursday, Friday and Saturday nights there is to be no live entertainment after 1 a.m., (the following morning). (iii) on Sunday, Monday, Tuesday and Wednesday evenings as the no live entertainment after 11.30 p.m. (d) A further application may be lodged to continue the trading outlined in (b) above before the end of the trial period for council's consideration. Such consideration will be based on, inter alia, on the performance of the operator in relation to compliance with development consent conditions had any complaints received, and any views expressed by the Police. It should be noted that the trial period and consent may be deemed not to have commenced unless the full range of hours approved has continually occurred during the trial.

4 The hotel commenced operations on this basis on 22 November 2003. The applicant subsequently lodged the application for permanent trading for the extended hours, after the trial period had lapsed.

5 During the trial period a number of complaints were made by nearby residents and these matters are incorporated in the issues identified for the appeal, which can be summarised as follows: o the proposal is inconsistent with provisions of the Leichhardt LEP and DCP, particularly provisions concerning operational working hours; o the proposed extended trading hours will have an unacceptable and detrimental impact on the amenity of the local community surrounding the hotel due to increased noise from patrons and vehicles, increase in antisocial behaviour, loss of parking for residents and excessive noise emanating from the hotel entertainment; o inadequacies in the Plan of Management (POM); o public interest considerations.

The proposal 6 The application seeks consent to permanently extend the trading hours of the Annandale Hotel as follows: Thursday to Saturday 10 a.m. to 3 a.m. on the following morning, and Sunday to Wednesday 10 a.m. to 12 midnight.

Planning controls Leichhardt Local Environmental Plan 2000 7 Under this LEP this site is within the Business Zone and located within a Conservation Area. The proposal is for extended working hours for a hotel and "hotel" is listed in cl 21(3) as being a development allowed only with development consent. Accordingly, the proposal is permissible development.

8 Clause 16(8) deals with conservation area considerations but is not activated in this case because the proposal does not involve any of the defined works. Clause 7(3) requires the consent authority to take into consideration the objectives relevant to the proposal, which includes: Vision of the Plan - Clause 12

The vision of the plan is to conserve and enhance the quality and diversity (social and physical) of the natural, living, working and leisure environment of the local government area of Leichhardt. The protection of the amenity of residents should be pre-eminent.

9 Development consent is not to be granted for development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives.

10 The general objectives are contained in cl 13 and the following are relevant in the subject appeal: (2) (d) maintain amenity and contribute to a sense of place and community, and

(g) accommodate the existing and future needs of the locality concerned, and … Leichhardt Development Control Plan 2000 (DCP 2000) 11 DCP 2000 contains the detailed development controls for the various suburbs/precincts within the local government area. It has been subject to a number of amendments, with the most recent being Amendment No. 11, becoming operational on 11 April 2006. Of relevance in this matter are the following controls: Part C3.1 - Noise and vibration generation "Principle: Minimise the impact of noise and vibration by proposed operations and on proposed developments of existing and projected future sources of noise and vibration." Part C3.4 - Working hours "Principle: Ensure the operations of the proposed development will not cause nuisance to residents by way of working hours." Part C4.9 - Development Type 10 Licensed Premises "Principle: Introduce area based controls relating to licensed premises to ensure the amenity of surrounding areas are protected and maintained. Establish a two tier layer of control that clearly defines areas where council would consider on merit development applications for licensed premises to operate longer trading hours and areas where extended trading hours are not encouraged due to the potential impacts from licensed premises. 12 The stated rationale for this type of development is: The ' identified longer trading hours precincts' identified in this section (see attached maps) have been identified as areas where night-time commercial activity is appropriate and it is therefore appropriate that in certain instances licensed premises been permitted to trade beyond midnight Thursday to Saturday. Licensed premises outside these areas are not considered appropriate for trade after midnight due to the potential interface issues with residential areas. While there are licensed premises in and outside these areas currently permitted to trade beyond midnight, controls for licensed premises within these future designated areas reaffirms the desired future character of these areas.

13 Part C4.9 specifies a number of controls for hotels and nightclubs, which includes the requirement for a noise abatement report being prepared by a suitably qualified acoustic consultant detailing existing and proposed noise attenuation measures to ensure that designated noise performance outcomes are achieved.

14 A security management plan is also required to be prepared. This plan is to detail the measures that are to be employed to ensure that the safety of patrons and methods to ensure the orderly behaviour of patrons in and outside the subject premises. The associated hours of operation provisions are: Extending the hours of operation beyond midnight for licensed premises outside the 'identified longer trading hours precincts' are not supported.

The maximum hours of operation that will be considered for hotels and nightclubs within the 'identified longer trading hours precincts' are as follows: o 10 am to 12 midnight Monday, Tuesday, Wednesday and Sunday o 10 am to 1.0 0 am (the following morning) Thursday, Friday and Saturday … 15 The subject premises are not located within the 'identified longer trading hours precincts'. The evidence 16 Detailed technical evidence addressing the issues was presented to the Court on the basis of the following the joint expert reports: o Joint planning report (Exhibit 8) from Mr K Nash (council's consulting town planner) and Mr G Boston (applicant's consulting town planner); o Joint acoustic reports (Exhibits 9 and 12) from Mr L Challis (council's consultant) and Mr S Cooper (applicant's consultant).

17 Mr D Rule (Licensee) provided a detailed statement outlining the proposed upgraded management arrangements.

18 Apart from this, a number of written objections were lodged and these were considered in conjunction with the oral evidence presented by residents during the hearing.

19 It is apparent from the evidence presented to the Court that the threshold issue concerns the hotels ability to operate at the extended trading hours, whilst maintaining a reasonable level of amenity for the surrounding residents. A number of these residents acknowledged the benefits of some of the hotels operations but expressed dissatisfaction with previous management practices, that has resulted in a considerable number of complaints lodged both in the original trial period and subsequently. Some of these complaints also referred to the managements inability to satisfactorily respond to the complaints.

20 Against this, I also note that there is a considerable volume of support for the extended trading hours. The proposal has been referred to the Police Licensing Unit Department, which has advised that it has no objections to the permanent late-night trading hours for the hotel. Evidence was also presented that the police has undertaken covert operations of the hotel and its surroundings following various complaints, but this has not revealed any significant problems, which would alter its support for the extended late-night trading hours.

21 Notwithstanding this, I am satisfied from the evidence presented that some of the events presented by the hotel has attracted relatively large crowds, which has caused disamenity for the neighbours. This is in the form of noise disturbance from internal noise sources, noise and antisocial behaviour from patrons leaving the hotel in the early hours, the deposition of bottles and rubbish in the public domain and inconvenience due to competition for the limited on-street car parking spaces in the vicinity of the hotel.

22 I also accept the evidence of some of the residents that when complaints have been made to the hotel in the past, the response has been less than satisfactory on occasions. However the applicant now contends that these past problems can be overcome by more effective management practices involving internal controls, closing down arrangements and on-street supervision, which are incorporated into a revised and upgraded Plan of Management (POM).

23 In response to the noise issues, this has been addressed by the acoustic experts who attended the site and surroundings on various night time occasions and undertook independent sound level measurements. From this, they agreed that certain modifications to be carried out to the electronic controls incorporated within the hotels sound amplification system, together with specific building element improvements (e.g. provision of doors seals) and other controls to contain noise within the building. On this basis, the external sound levels should comply with the formal acoustic goal guidelines of the NSW Liquor Administration Board as well as the relevant emission requirements that have been adopted by the Leichhardt Council.

24 Consequently the acoustic experts have agreed on a number of conditions of consent to be imposed, which will contain any internal noise emissions to reasonable levels. Therefore, I am satisfied to rely on the evidence of these experts that these conditions address this particular issue.

25 The other aspect of noise nuisance concerns that generated by patrons following their departure from the hotel, mainly to access vehicles parked in the surrounding residential streets. According to Mr Challis, nocturnal background measurements confirmed that the post midnight noise levels can drop to levels below 35dBA during the midweek period. He considered that the NSW Department of Environment and Conservations sleep disturbance criteria may be exceeded on weekday nights and may potentially also create problems early Saturday morning and early Sunday mornings, by the inconsiderate behaviour of some patrons.

26 However, Mr Cooper's measurements at the nearest residential boundaries recorded significantly higher background levels as a result of traffic levels on Parramatta Road. His measurements at the bedroom facade of the nearest residence from patrons, revealed L1 (1 min) levels less than the background + 15 dB(A) sleep arousal criterion. Accordingly, he says that the peak noise levels of traffic is similar to and higher than noise from patrons external to subject premises. Also, his monitoring of patrons after midnight at the nearest residential boundaries did not observe any undue disturbance and therefore he did not consider it reasonable to reject the proposal on these grounds.

27 In light of these differences, the acoustic expert's undertook a further review of external late night noise disturbance complaints, in terms of the ambient background levels, the critical time periods and potential for departing patrons to cause annoyance to neighbourhood. This included reference to the ROAR parking data concerning the location and access to available car parking spaces, relating to events at the hotel. From this, they agreed that the majority of the patrons departing to the north parked their cars in the zone lying between Parramatta Road and Albion Street, with a smaller proportion of patrons parking their cars in Nelson Street to the north of Albion Street. Their interpretation of the data indicated that approximately 7 vehicles were involved and by extension the number of patrons who walked in those cars could potentially be between 14 and 21 patrons.

28 Mr Challis said that any disturbances generated by these patrons should be capable of control by security guards during the period of midnight to 3.45 am. The designated security guards are to control specified areas and these details should incorporated in any conditions of consent. Mr Cooper agreed that any late-night disturbances could be controlled by effective management procedures.

29 This issue of antisocial behaviour and resultant neighbourhood disamenity was also addressed in the joint planning conference, on the basis of the original proposal to extend trading hours to 3 am. The planners' referred to parking surveys undertaken by Project Planning Associates after a major event ("Jebidiah"), which they agreed was reasonably indicative of car parking demand of the hotel at capacity. Whilst Mr Nash expressed some concerns about availability of parking spaces due to competition from residents, nevertheless Mr Boston said that: "the total number of car parking spaces available to residents between 6 p.m. and midnight will not change given that the patron numbers are not being increased. The only potential impact will occur as a result of cars being parked for a longer period of time, however such potential impact will only be felt by residents who live adjacent to areas, A, B, C, G, I and J who arrive home after midnight on the nights when the hotel is at capacity. Given the availability of car parking generally within 300 metres of the hotel throughout the night, such impact is considered to be reasonable."

30 The planning experts also identified a number of deficiencies in the initial Plan of Management, which were subsequently amended by the applicant. They also considered that the provisions of Pt C4.9, DCP and agreed that the subject site is not within an identified "longer trading hours precinct" and therefore was inconsistent with these provisions, irrespective of any adverse amenity impacts arising from the development.

31 However, Mr Boston notes that these provisions came into operation on 20 September 2005, and that the approval for the initial trial period pre-dates the introduction of these provisions. His opinion is that the intent on of these provisions can be achieved through the implementation of the Plan of Management and Security Protocol as detailed, particularly given the proximity of site to Parramatta Road and the eclectic form of land uses established in the immediate vicinity of the site. Conclusions 32 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this long established hotel offers attractive entertainment events for its patrons, which have some support in the local community. However its late night trading record over the previous trial period resulted in a considerable number of complaints about the various disamenity concerns to the nearby residences, attributed to some patrons of the hotel. Unfortunately, the complaints register that was required to be maintained over the initial trial period was stolen, which has made reconciliation of the complaints with responses difficult.

33 Notwithstanding this, I consider that heightened weight should be given to the objections and that any consent for extended late-night trading hours should ensure that the amenity of surrounding areas is protected and maintained as stipulated in the LEP and DCP controls. In this regard, I have considered the various submissions regarding the planning principles set out in: Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 (Tour C), and Vinson v Randwick City Council [2 - 5] NSWLEC 142 (Moore C). 34 In Vinson v Randwick Council [2005] NSWLEC 142, Moore C set out (at par 12) the general principles applied by Tuor C in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277. He then set out (at par 13) the principles to be applied when assessing applications for an extension of trading hours, increase in permitted patron numbers or additional attractions for licensed premises. He said that the tests to be applied were: o What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? o What measures are in place to address those impacts? o How are those measures documented? o Have those measures been successful? o What additional measures are proposed by the applicant or might otherwise be required? o He also set out, for each point, a range of matters relevant to its consideration. o Adopting and applying those principles to the present case it seems to me that the objectors have produced credible records indicating that the late night trading of the hotel in the past has created adverse residential amenity impacts.

35 In accordance with the aforementioned principles, I am now satisfied that the draft conditions relating to noise control and abatement, security arrangements and management arrangements, presented by the applicant and respective planning and acoustic experts in the appeal, provides adequate measures to reasonably address the objections.

36 However, any decision to allow the extended trading hours is to be made in the context of the existing planning controls and policies. Of particular relevance in this case are the provisions of Pt C4.9, which is a relatively recent amendment that specifically identifies 'longer trading hours precincts'. The rationale is that late night trading of licensed premises in these precincts represents a reasonable balance in maintaining the amenity and reaffirms the desired future character of the adjacent residential areas.

37 In the designated 'identified longer trading hours precincts' the maximum hours of operation for hotels are 10 am to 12 midnight on Monday, Tuesday, Wednesday and Sunday. On Thursday, Friday and Saturday, the maximum hours are 10 am to 1.00 am (the following morning).

38 However the proposed hours of operation until 3 am are outside the current policy provisions and the application of the policy provisions restricts late-night trading to midnight, in this precinct.

39 In considering these proposed hours of operation, I note Mr Clay's submissions regarding the weight to be given to these DCP provisions, taking into account its adoption after the lodgement of the initial development application. He referred to the matter of Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83, where Lloyd J stated: 16. The consent authority must take into consideration the provisions of any development control plan (s 79C(1)(a)(iii)). Since an appeal to the Court is by way of rehearing, the appeal must be determined by reference to the facts as they exist when the appeal is heard (Land & Environment Court Act, s 38(3); Sofi v Wollondilly Shire Council (1975) 31 LGRA 416, per Waddell J; Janlz Constructions Pty Ltd v Randwick Municipal Council (1976) 35 LGRA 70, at 72-73 per Glass JA; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 at 130 per Mahoney JA). In the circumstances of the present case, however, where the relevant development control plan commenced after the development application had been made, it should not be given determinative weight. That is not to say that the standards and controls in Development Control Plan No. 35 should be ignored. They should be taken into consideration. A failure to comply therewith, however, will not necessarily be fatal to the application provided that it is otherwise satisfactory. Although the previous development control plan (Development Control Plan No. 20) is now repealed , its controls may also be taken into consideration as indicative of standards and controls which applied when the development application was made. 40 It seems to me that the circumstances in the subject matter are somewhat different because the controls are new and not a replacement or upgrading of previous controls. They have been introduced in order to establish an appropriate balance between amenity of residential areas and late night trading of nearby licensed premises.

41 Nevertheless, taking into account the locational context of the Annandale Hotel with its frontage to the relatively busy, noisy Parramatta Road, the availability of on-street parking spaces and the conditions proposed by the respective expert in this matter, I consider it reasonable to exercise the discretion allowed by the DCP.

42 The exercise of this discretion would be to allow the Annandale Hotel to operate on the basis of the provisions for 'identified longer trading hours precincts'. This means that late night trading for Thursday, Friday and Saturday nights is until 1.00 a.m. (following morning). Such consent would be on the basis of a further 12 month trial period to allow an effective assessment of the hotel's operations in accordance with the updated Plan of Management and other conditions of consent.

43 I do not consider it appropriate to extend the discretion to allow later trading until 3 a.m. In my opinion, this would require further policy considerations in terms of the relative balance between residential amenity and late night trading impacts. Presumably this policy question could be considered during the 12 month trial period.

44 On this basis then, the conditions of consent require internal performance controls for the noise sources, together with improved security arrangements including regular patrols of the neighbouring residential streets to minimise residential disamenity. The trial period also requires the maintenance of an effective complaints register with response initiatives, that should enable an objective assessment of the hotel operations, in terms of its ability to be a "good neighbour" in ensuring that the amenity of surrounding areas is protected and maintained, as required by Pt C4.9 of the DCP.

45 As I have stated previously, I do not consider it appropriate to give diminished weight to the DCP provisions, because it was made after the lodgement of the initial development application. Instead it seems the public interest is well served by careful consideration and application of the two-tiered layer of controls, which are endeavouring to achieve an appropriate balance between late night operating hours and residential amenity, for the different precincts in the area.

46 In summary then, I am satisfied that this proposal merits conditional consent, subject to the aforementioned conditions. The compliance with these conditions should then reasonably satisfy the objectives of the LEP and DCP and the objections lodged by residents. In this regard, I particularly note that no objections were made by the Police Licensing Unit against the proposed extended trading hours. The 12 month trial period should also allow opportunities to review the extent of 'the longer trading hours precinct' and whether any extension of the late-night closing policy from 1 am to 3 am is appropriate in the circumstances and context of this area. Furthermore, the trial period should also enable more detailed parking surveys to be undertaken over a longer time frame, so that parking concerns raised by the residents can be objectively assessed at the appropriate time in the future. Court orders 1. The appeal is upheld. 2. Development consent is granted to DA 040684 for the operation of the Annandale Hotel, in accordance with the conditions in Annexure 'A'. 3. The exhibits may be returned except for 8, 9, 12, 13, 14, 15, K, L, M and N. ___________________ R Hussey Commissioner of the Court rjs

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