Gallagher v Council of the City of Ryde

Land and Environment Court (NSW)|2020-12-08

Introduction

The Royal Hotel at 68 Blaxland Road, Ryde has served the community of Ryde since about 1924. For the last nearly 100 years the hotel has operated during various hours permitted by the applicable liquor legislation and planning legislation and presently is permitted to trade to 2am Monday to Saturday nights (more correctly till 2am Tuesday to Sunday).
The advent of gaming machines being permitted in hotels since 2001 has been a commercial boon for many hotels, and it is notorious that a large number of hotels rely upon profit from gaming machines to remain a viable commercial operation.
There are strict controls on gaming machines and gaming rooms within hotels, largely pursuant to the Gaming Machines Act 2001 (Machines Act). The Council, and this Court on appeal exercising the power of the Council, has no power to regulate or restrict the operation of gaming machines having regard to s 209 of the Machines Act: 209 Relationship with Environmental Planning and Assessment Act 1979 (1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels or on the premises of clubs or any other premises. (2) If an environmental planning instrument contains any provision in contravention of subsection (1), the provision is taken to have no effect. (3) A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979) cannot - (a) as a condition of any development consent under that Act, prohibit or otherwise regulate or restrict the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a club or any other premises, or (b) refuse to grant any such development consent to a hotel or club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a club. (4) The installation, keeping or operation of an approved gaming machine in a hotel or on the premises of a club is not an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979. (5) Any approval or authorisation under this Act to keep an approved gaming machine in a hotel or on the premises of a club is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.

Site and surrounds

The Hotel is on the land being Lots 16 and 17 in Deposited Plan 9692 known as 68 Blaxland Road, Ryde (Site). It is on the southern side of Blaxland Road at the corner of Edward Street to its east.
The site has a frontage to Blaxland Road of 28.14m and to Edward Street of 30.4m with an area of 858 sqm. The built form of the hotel, including an outdoor beer garden, occupies the whole of the site and no on-site parking is provided.
This part of Ryde has undergone significant redevelopment in recent times. The site is within a mixed-use neighbourhood which includes commercial retail, residential, recreational, education and community uses. Adjacent to the site to the south (rear) as well as across Edward Street and Blaxland Road are residential flat buildings. The buildings on Edward Street and the other side of Blaxland Road are of relatively recent construction.
Blaxland Road is well known as a busy road which carries significant amount of traffic particularly during the day, as it is a link between Ryde Road to the west and Victoria Road to the east and provides access to Top Ryde Shopping Centre.

The Royal Hotel

The hotel is a relatively modest two storey suburban hotel. It provides a sports bar, TAB, bistro, beer garden and indoor/outdoor gaming room together with toilet and "back of house" facilities, all on the ground floor. There are 30 gaming machines. Smoking is possible in the beer garden and the outdoor gaming area, both of which areas are said to comply with the Smoke Free Environment Act 2000 and cognisant regulation.
There is hotel room accommodation on the first floor, but no public access to it, other than for the accommodation guests and staff.
There are a number of doors allowing entry and exit both from Edward Street and Blaxland Road. There is a doorway which is about 15m from Blaxland Road accessible down a pathway alongside the building and from which the gaming room is accessible. There is a lockable gate on Blaxland Road to secure access to and from that pathway and door (Blaxland Road gate).
The hotel is licensed under the Liquor Act 2007 (licence). The operation of the hotel is controlled by the provisions of the licence, consents and modification of consents and the Operational Plan of Management (POM) compliance with which is required by the existing development consent and the licence.
It is unnecessary to set out the history of the development consents and modifications, but the important aspects of the operation of the hotel derived by operation of the licence, POM and existing development consent are: 1. The hotel is authorised to trade Monday to Saturday from 10am to 2am the following day and 10am to midnight on Sunday; 2. Trading after midnight is limited to the gaming room area and associated servery bar; 3. There is no limitation on the number of patrons at the premises prior to midnight; 4. There can be no more than 50 patrons on the premises after midnight; 5. The areas of the hotel other than the gaming area are to be closed at midnight and the doors giving access thereto from the gaming room are to be locked; 6. Alcohol is not served or supplied after midnight; 7. Between 11.30pm and 11.45pm there is a limit of two drinks per person which can be sold; 8. Between 11.45pm and midnight there is a limit of one drink per person which can be sold; 9. There is no prohibition on the consumption of alcohol after midnight; 10. No entertainment other than background music is provided after midnight; 11. After midnight entry and exit is only available from the Blaxland Road gate; 12. If trading after a midnight, one security person is to be engaged from 9pm until half an hour after closing to supervise the premises and patrol the (undefined) vicinity of the hotel; 13. There is no "lockout" at midnight or any other time. That is, there is no restriction on potential patrons arriving at the hotel after midnight and gaining entry (other than the usual reasons for refusal of entry such as drunkenness).
There are other matters of more detail, and they will be referred to, to the extent necessary, when discussing the issues.
Approval for trading after midnight was granted by the Council for a trial period of 12 months in 2016 and then after the conclusion of that trial period, the extension was made permanent in 2017. There has therefore been approximately three years of pre-Covid-19 trading after midnight, and a further year or so during Covid-19 pandemic conditions.

The proposal

The Applicant seeks to extend trading in the gaming room and adjacent servery bar from 2am to 4am the mornings after Monday to Saturday. It is the same area which presently can trade until 2am.
The applicant initially proposed that the extended hours be the subject of a reviewable condition pursuant to s 4.17(10B) of the EP&A Act, however he ultimately proposed that the extended hours be the subject of a trial period for 12 months. That is, the extended hours would end after 12 months unless the Applicant makes a further development application or modification application to further extend the period or make permanent the extension of hours which is granted by the Council or Court on appeal.
All of the conditions in [16] above would apply to trading from 2am to 4am with one exception.
The evidence, the Applicant's submissions in chief and the Council's submissions all proceeded on the basis that the Applicant was pressing that the maximum number of patrons in the hotel from 2am would be 50, the same number permissible between midnight and 2am. That was the Applicant's application. Notwithstanding the temporary reduction in the maximum number of patron numbers as a consequence of orders made under the Public Health Act 2010 due to the Covid-19 pandemic, it was common ground that the assessment of the application should be based on a maximum of 50 patrons permissible in the hotel after 2am.
At the commencement of submissions in reply by counsel for the Applicant, he announced that the Applicant now proposed that there be no more than 25 patrons in the hotel after 2am. The maximum number was thereby reduced by half. Whilst, like the Court, the counsel for the Council was taken by surprise at the announcement and its unsatisfactory timing, the Council confirmed that it did not alter its position that the DA should be refused.
The DA also includes minor work to the gaming room and noise amelioration works.

Statutory context

The site is zoned B4 Mixed Use pursuant to Ryde Local Environmental Plan 2014 (RLEP 2014) and lies within the Ryde Town Centre under provisions in RLEP 2014 and Ryde Development Control Plan 2014 (RDCP 2014).
Development for the purposes of 'commercial premises' is permitted within the B4 zone. The hotel is a 'pub' for the purposes of RLEP 2014 and 'pubs' are one of the uses within the definition of 'commercial premises' in RLEP 2014 and thereby are permissible with development consent in the B4 zone.
The objectives of the B4 zone to which regard must be had by virtue of cl 2.3 of RLEP 2014 are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure employment and educational activities within the Macquarie University campus are integrated with other businesses and activities. • To promote strong links between Macquarie University and research institutions and businesses within the Macquarie Park corridor.
The only relevant objective for this appeal is the first, requiring the Court to have regard to the compatibility of land uses.
The Ryde Town Centre is dealt with in Part 4.4 of RDCP 2014. The relevant provisions follow. "2.1 Vision Ryde Town Centre will be an attractive place to live, work and visit. The future character of Ryde Town Centre will build on its historic role as a community and retail hub catering for leisure and learning, shopping and business. This Part identifies strategies and controls that will shape the future development of Ryde Town Centre to create an attractive, accessible and unique environment in which to live, work, shop, and visit. High quality built form will define and edge public spaces."
Planning principles are then set out followed by the Objectives of the Part including: "6. To develop a sustainable town centre that balances social, economic and environmental objectives a. Encourage efficient and appropriate land-use. ….. g. Ensure personal safety and security in the public domain."
Section 7 of Part 4.4 is concerned with residential amenity, including acoustic privacy in the following terms, relevantly: "7.4 Acoustic Privacy Potential unwanted noise sources increase in more densely developed areas where there are more people living, more closely together. Loud noise affects the amenity of places. In mixed-use areas developments need to consider the amenity of a range of occupants. The impact of commercial and retail noise on residential development and pedestrian amenity needs to be considered. Residential, commercial and retail developments can be designed and managed to minimise noise generation and intrusion."
This statement in RDCP 2014 recognises that noise affects residential amenity, the impact of noise from commercial operations must be considered and effectively that the design and management of commercial premises should minimise noise generation and intrusion.
The controls seek to fulfil what is a statement of objective (though not described as such) and includes: "h. Where retail and commercial development adjoins residential development, the use of mechanical plant equipment and building services will be restricted and must have acoustic insulation. i. Loading and unloading facilities must not be located immediately adjacent to residential development. j. Design restaurants and cafes to diminish the impact of noise associated with late night operation on nearby residents."
It is control 'j' which the Council emphasises. Some observations need to be made about the provision.
First, the control refers to 'restaurants and cafes' and not hotels. That said, it is common sense to apply such a control to the late night operation of an hotel. It cannot have been the intention of the Council that this part of RDCP 2014 would not intend that such a control would apply to a hotel and that a hotel is less constrained than a café or restaurant.
Second, the control is to 'diminish' the noise, not to eliminate it, or to ensure there is no noise associated with the use in the late night.
Third, the control refers to noise 'associated' with late night operation. In my opinion this must embrace the noise generated by patrons arriving at or departing from such premises, not simply the noise generated from within the premises. When a patron makes noise starting their motor vehicle after departing the premises late at night, as an example, then that noise is associated with the late night operation.
Fourth, the phrase 'late night operation' is not defined or explained in RDCP 2014. Similarly, there is no control of hours of operation in RDCP 2014.
Section 7.5 of Part 4.4 deals with buildings facing named busy roads including Blaxland Road. The objectives are: "1. To ensure the impacts of noise on residential development will be mitigated through appropriate design and the use of insulation. 2. To ensure the operation of commercial and retail developments will protect the amenity of residential and public spaces."
The controls which follow only provide for construction standards of residential buildings. There is no control which guides the achievement of the objective to protect the amenity of residential spaces.
The Ryde Town Centre is divided into precincts by other provisions of RDCP 2014. The site is in the Main Street Precinct which is described in Section 8 as follows: "Main Street Precinct will be attractive, vibrant and safe with a diverse range of neighbourhood shops, living and business accommodation and a high quality public domain that encourages social interaction."
The objectives of the Main Street Precinct are: "1. To reclaim a role as the "main" street through public domain enhancements and encouraging development that activates the streets through at least a twelve-hour day. 2. To discourage through traffic. 3. To encourage new mixed-use development that includes residences, retail and commercial activities and will meet emerging work and lifestyle needs. 4. To adapt, re-use and recycle existing early twentieth century building stock, which underpins the established character of the precinct. 5. To establish a vibrant atmosphere with outdoor dining, markets and the like particularly in Church Street."
The controls which follow are prescriptive about design matters such as active uses on ground level street and public domain frontages, floor to ceiling heights and laneway use. There is no control relating to hours of operation nor giving a more expansive understanding of the phrase 'at least a twelve-hour day' in the first objective.
In 2016 the Council commissioned and received a 'Night Time Economy Study' (NTE Study) which reported on an audit and mapping of the existing night time economy and opportunities and barriers for the activation and management of the night time economy. There were no site specific recommendations nor recommendations relating to constraints on operating hours.
The NTE Study formed one of the bases for the Council's Draft Local Strategic Planning Statement 2019 (LSP Statement). The LSP Statement, when approved by the Department of Planning, will ultimately lead to changes to local planning, with a new or amended local environmental plan and development control plan.
The LSP Statement is progressing to Departmental approval without significant change to the draft. It does not intend to make any change to the planning regime in the vicinity of the site and the vision for the Ryde Town Centre is in very similar terms to that set out at [27] above. The LSP Statement makes no mention of an intention to regulate trading hours in any manner.
The Council relies upon the NTE Study and the LSP Statement as matters in the public interest to demonstrate that there is no apparent current planning intention to change the desired future character of the Main Road precinct or the Ryde Town Centre. Whilst the relevance of the documents may well be question, one being a study and the other a statement yet to be implemented in any form, any debate about relevance is unnecessary because the documents make no difference to the planning structure within which the proposal is to be assessed. It is assessed on the basis of the terms of RLEP 2014 and RDCP 2014 in any event.

Issues

Broadly the issues are:

Whether the proposed extension of hours is a compatible land use given its proximity to residential premises, the present operation and likely future impacts, including noise of patrons and smoke escape.
Whether the extension of hours will operate as a precedent such as to excite other applications the cumulative impact of which is a change in character from the desired future character.

Police

Oral evidence was given by Senior Constable Perigo in support of the Police submission made in response to notification of the DA. The evidence of local residents was limited to their written submissions, and oral evidence was given by experts in acoustics and planning in support of their written material.
There were two submissions from the NSW Police Force (Police) in evidence, one of 7 January 2019 and a later submission dated 10 August 2020. (The earlier submission was made in response to notification of a modification application for the same extension of hours. A party related to the Applicant appealed against the refusal of the modification application, but that appeal was discontinued because it had no utility. The parties accepted that both submissions could be considered in this appeal.)
The Police objections are best summarised in the penultimate paragraph of the submission dated 10 August 2020: "Police object to this application as it will result in negative social impacts for both the local and broader community. The location is a mixed-use location of both residential and retail premises which is not suitable for the development proposed."
The social impacts were the disturbance to the local residents by noise emanating from the premises and of patrons coming and going to and from the hotel. The submissions also outlined what were described as the 'serious incidents since the late trading was first approved by the Council in 2016:

17 January 2017 2.00am Armed robbery;
18 April 2017 2.45am Armed robbery;
10 July 2019 8.45pm Fight in beer garden;
19 October 2019 11.10pm Fight between patrons outside hotel;
18 June 2020 10.17pm Fight between patrons outside hotel.

In oral evidence Senior Constable Perigo added the following incident:

21 October 2020 11.55pm assault by patron, 300m from hotel.

It can immediately be noticed that apart from the armed robberies, the serious incidents did not occur during the late trading period after midnight. There is no doubt in the view of the Police that alcohol played a part in the fights, a conclusion which is well justified.
The Police submissions did not assert that the premises were badly managed, rather that certain impacts were inevitable and that there would be disturbance to the nearby residents. The submissions did not specifically address the proposal that alcohol would not be served or supplied after midnight.
In her oral evidence Senior Constable Perigo, a very experienced local officer, supported the Police submissions emphasising that the hotel is amongst residential use and therefore is not an appropriate site for the extended hours, and is not in the public interest to grant the application. In relation to the potential for further armed robberies she said that whether the trading is to 2am or 4am the risk of armed robbery is much the same, although there may be a slightly higher risk with the later opening. Senior Constable Perigo said that in her experience typically armed robberies of hotels occurred at or just prior to closing time when gaming machines are being or have been emptied and large amounts of cash are available to be purloined.

Local residents

The resident evidence comprised the submissions made to the modification application and the DA. The submissions were general in nature and tended not to address the specific application for trading from 2am to 4am. There was no specific incident occurring after midnight which was identified.
The following extract from the submission of a nearby neighbour is reasonably typical of the concerns of the objectors: "I am writing to express my concerns surrounding the submission for extended hours of operation of the Royal Hotel. I have been a resident of the same unit for the last 4 years and noise disturbance has always been the largest factor especially from Thursdays to Saturdays. There has (sic) been daily instances of loud, drunken and disorderly patrons leaving from the premises until the current trading hours of 2am which I have witness (sic) the Police being called out on a few occasions. During pre-Covid times, I would need to endure loud karaoke singing by drunken patrons on a weeknight which would last until 12am."
Concerns have also been expressed about illegal parking and illegal u-turns on Edward Street. One objection referred to patrons loitering outside the premises, others referred to the increasing family related character of the area, but the common thread was concern about disturbance from patron noise after they leave the premises.

Acoustic evidence

Acoustic evidence was given by Mr V Fattoretto retained by the Applicant and Mr C Gordon retained by the Council. The acoustic engineers provided individual reports, a primary joint report and a supplementary report. They also gave oral evidence.
The acoustic engineers had focussed on whether there would be any noise from within the premises which would be audible after midnight at the nearest affected residential premises. As a consequence of the joint conferencing process the Applicant prepared amended plans which provided additional acoustic attenuation measures. As a result of those additional measures Mr Gordon (the Council expert) agreed with Mr Fattoretto that the modelling of the attenuation measures showed compliance with the standard of inaudibility at the nearest affected residence after midnight and that it is unlikely that any noise from the premises would be audible in any nearby residence. He added that even patron cheering to celebrate a jackpot win would be inaudible.
I accept the conclusion of the acoustic engineers. The attenuation work to be carried out will achieve compliance with the inaudibility criterion and therefore noise from within the premises is not a reason for refusal. The Council did not submit otherwise.
The primary joint report did not address the question of disturbance by patrons arriving or departing from the premises. The experts were asked to address that question and did so in the supplementary joint report.
The first task of acoustic engineers in a case such as this is to test whether or not the noise from the premises met an objective standard. That is done by making an assumption about the source of noise then by using a complex modelling technique ascertain the level of noise at a particular receiver. That is a largely scientific exercise in which the assumptions relating to the measurement hotel noise are largely agreed within the acoustic engineer profession.
Noise of patrons having left an hotel provide a more difficult assessment process. Acoustic engineers can assist the Court by identifying the loudness of typical external noises such as a motor vehicle starting and being driven off, loud talking or shouting. The experts can then model the level of noise at the nearest residential receiver to such an event and compare that to an inaudibility criterion or a sleep arousal criterion. In my opinion, however, it is not for acoustic engineers to determine what the likely occurrence of such noise incidents are and whether it is reasonable for such noise incidents to occur at whatever their frequency may be.
It is for planners to understand the effect of a relevant noise incident and then opine as to its likely occurrence, its frequency of occurring and whether the likely frequency is acceptable or otherwise having regard to the planning regime.
In the supplementary joint report, the acoustic engineers identified that the nearest affected residence would be the apartment building across the road in Edward Street. Parking on Edward Street is only permitted on the eastern side, which is opposite the hotel and on the same side of the street as the apartment building. They identify the loudest noise events of a vehicle leaving Edward Street as follows:

Car door slamming - 97 dB(A) Lmax sound power level;
Car starting - 90 dB(A) Lmax sound power level;
Car driving away 90 dB(A) Lmax sound power level. (Lmax is the instantaneous sound power level with no averaging.)

A logarithmic exercise is then conducted to calculate a sound pressure level inside the open window of the nearest apartment. That showed:

Car door slamming - 62 dB(A) Lmax;
Car starting - 55 dB(A) Lmax;
Car driving away 55 dB(A) Lmax.

The sound pressure levels are then typically compared to the background noise levels (L90) plus 15 dB after midnight as an indication of likely sleep arousal. The background is 38 dB(A) and so what the experts describe as the trigger for further analysis in this case is 53 dB(A) Lmax which is exceeded by each of the examples that were modelled.
The acoustic experts referred to the EPA Noise Policy for Industry (NPfI) which provides that when the "trigger level" is exceeded then a detailed maximum noise level assessment should be carried out. The guidance in NPfI is limited but the matters it suggests be considered include:

The extent of exceedance;
The number of times the exceedance will occur;
How often other high noise events will occur;
The distribution of likely events across the night time period;
Whether there are times of day when there is a clear change in the noise environment (such as early morning shoulder periods);
Scientific literature available regarding impact of maximum noise levels at night.

The NPfI says that "Some guidance on possible impact is contained in the review of research results in the NSW Road Noise Policy (RNP).
The acoustic experts referred to Section 5.4 of the RNP which provides: "From the research on sleep disturbance to date it can be concluded that: Maximum internal noise levels below 50-55 dB(A) are unlikely to awaken people from sleep One or two noise events per night, with maximum internal noise levels of 65-70 dB(A) are not likely to affect health and wellbeing significantly."
The acoustic experts observed that the car door slamming is above the 50-55 dB(A) range but below the 65-70 dB(A) range whilst the car starting and driving off events are at the top of the 50-55 dB(A) range for sleep disturbance. They then concluded that the impact of one vehicle departing with two occupants is not likely to affect the health and wellbeing of residents significantly. They said that similar impacts would be expected in other locations where patrons have parked outside residences, but those on Blaxland Road would also be affected by a number of other maximum noise events such as passing vehicles at night, particularly buses, which makes the noise from a patron leaving less likely to cause sleep disturbance.

Planning evidence

Planning evidence was given by Mr D Rippingill retained by the Applicant and Mr B Tesoriero retained be the Council. The planners prepared a joint report and gave oral evidence.
In summary Mr Rippingill said:

The impact of smoke on a neighbouring property is unlikely;
The acoustic evidence about noise from within the hotel should be accepted;
Noise levels (sic) from departing patrons would be typical for this area even at 4am, including traffic, buses, people arriving home after work or leaving for work;
There can be no precedent because there is no other hotel in the Ryde Town Centre;
There have been no incidents at the hotel after midnight other than the armed robberies and the extended hours would not increase the risk of armed robbery, only alter the time at which it may occur;
The behaviour of hotel patrons in a gaming room and without the availability of alcohol is different to the behaviour of patrons consuming alcohol in the beer garden or general areas of the hotel, in that they are significantly less likely to be rowdy or noisy, and are more likely to leave quickly and quietly;
There have been no recorded complaints about the operation during the presently approved late trading hours of the hotel;
The evidence from the objectors is general in nature and no conclusion can be drawn about present impact from late trading and appear to be observations about the usual impacts from hotels;
Gaming/gambling is a solitary activity rather than a 'party' activity;
There is a low potential for impact and with the POM and a trial period the DA should be approved.

Mr Tesoriero took a different view. In summary he said:

Based on the public submissions the existing operations of the hotel already create sleep disturbances and that the extended hours have exacerbated that impact;
A further increase in hours will extend the duration of the acoustic impacts;
Residents could be subject to noise impacts from up to 50 patrons until 4am in the morning, as well as the additional time to depart the venue, together with potential noise from patrons arriving from elsewhere, having consumed alcohol at the other premises;
The fundamental character of the area would be altered if this DA is approved because it may lead to other commercial premises (not a hotel) seeking late trading hours, although Mr Tesoriero accepted that the approval of trading until 2am had not spawned any other applications to date;
It is not reasonable to expect any noise impacts, irrespective of how infrequent they may be, that are associated with a commercial use that operates between 2am and 4am;
To the extent there is an encouragement of the 'night time economy' this does not equate to operations between 2am and 4am, but rather evening 'eat streets' and family entertainment;
The late trading proposed is not compatible with the B4 zone when the hotel is largely surrounded by residential uses;
There is very limited activity in the vicinity of the hotel by 4am and there is more activity at 2am than 4am, and no other businesses in the vicinity open after midnight;
Cigarette smoke has the potential to generate health and amenity impacts on those living in close proximity to the hotel, and Mr Tesoriero could perceive the smell of smoke on one of the two occasions he attended the premises after midnight;
The mitigation measures in the POM are not sufficient to mitigate the potential impacts, but if approved, there should be two security guards from 2am to 4am rather than just one;
A trial period of the extended hours is not warranted.

Submissions

The Applicant's submissions reflected the evidence of Mr Rippingill and the acoustic experts. The Applicant further submitted that noise from within the premises was resolved, and that the potential for disturbance from patrons arriving or departing was minimal. The evidence from the Police and objectors did not address the proposed extended hours, nor point to any specific issues with trading from midnight to 2am.
The use as an hotel is compatible in the B4 zone and in the absence of evidence about disturbances the extended hours will not lead to incompatibility. There have been no applications for extended hours by other premises since 2016 and it is difficult to conclude that a further extension of hours for the hotel would generate any such applications.
As to precedent the Applicant submitted that the proper principle to apply is - if a proposed development is unobjectionable but there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent may operate as a precedent may be taken into consideration. The oft-quoted ratio in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 at 110, incorrectly says 'objectionable in itself' when it should say 'unobjectionable in itself', based on prior authority and the earlier observations by Lloyd J in that case.
The Applicant points to the absence of evidence of impact of escaping smoke on neighbours.
In applying the planning principle in Vinson v Randwick Council (2005) 141 LGERA 27; [2005] NSWLEC 142 (Vinson), the Applicant submits that the impact of the present operation is acceptable and if not, the additional noise amelioration measures will render the impact acceptable. To the extent there are infrequent anti-social behaviour the POM and the existence of security with no alcohol served after midnight will successfully deal with that behaviour.
The Applicant resisted the notion of a 'lock-out' whereby no new patrons are admitted to the premises after 2am but said that in the context of a trial period in combination with the POM there was a sufficient certainty that the impacts will be acceptable.
The Council's submissions relied on the evidence of the Police and the local residents and the evidence of Mr Tesoriero. The Council accepted generally the evidence of the acoustic experts but submitted that the 'test' apparently adopted by the acoustic experts of 'not likely to affect the health and wellbeing of residents significantly' was not the relevant test to apply to disturbance to the local residents.
The Council submitted that the time period from 2am to 4am is markedly different to the time period between midnight and 2am because it is further into the 'dead of night' and truly before the early morning begins, and so is a necessarily more quiet and sensitive to disturbance time period.
The test in Vinson is appropriate to be considered the Council says, and that the proposal fails that test because of the existing impacts and there being no great change proposed to the management of the premises to deal to prevent the continuation of those impacts. The Council pointed to the incompatibility of trading between 2am and 4am in an area where there are no other premises trading those hours and the proximity to residential premises. It also submits that the proposed extended hours changes the character of the area, but even if this proposal does not, it may lead to other applications which when considered with the extended hours of the hotel would lead to that character change, in both scenarios inconsistent with the zone objectives and objectives of the Town Centre in the RDCP 2014.

Consideration

I will deal with the issues of precedent and smoke impact initially before turning to the central issue which is the question of likely disturbances and the operation of the hotel in the context of the planning regime.

Precedent

The Applicant's approach to the question of precedent set out at [78] above is attractive. However, it is unnecessary to consider the analysis in detail for two reasons. First, the application is for a 12 month period only. It is highly unlikely that an approval for 12 months will operate as a sufficient precedent to attract other applications, which if approved would lead to a change in character by their cumulative impact. Second, there has not been any application by any commercial premises to extend their hours after midnight based upon what has now been more than four years of the hotel trading from midnight to 2am.
Those matters lead to the conclusion that there are not likely to be repeated applications as a consequence of an approval in this case. It follows that precedent is not a reason for refusal.

Smoke impact

There is little evidence of potential impact other than a concern that smoke from patron smoking could be perceived at the residential unit to the south of the site which is near to the outdoor component of the gaming room. The notion of an 'outdoor' component is somewhat misleading because it is a walled area but with no ceiling. There are noise attenuation materials above the 'outdoor' area, but it is possible for smoke to rise and leave the hotel.
The potential for impact is presently no more than speculative. Mr Tesoriero noted the smell of smoke on one occasion of his two visits to the hotel late at night. The gaming room is to be the subject of some work, particularly noise amelioration works, and it is not possible to conclude simply from that experience that after the works are carried out that there will be smoke to the same degree coming from the gaming room, nor indeed that it will be perceptible in the nearby apartment.
Whilst some objectors in their submissions referred to smoke or smoking, the source and timing of that smoke is not identified, and no conclusion can be drawn. The potential for impacts from smoke is not a reason for refusal.

Noise disturbance and the planning regime

There is really little difference, if any, between the parties about the context of the planning regime and its objectives.
The relevant objective of the zone is compatibility of land uses. Whilst this is a matter to which consideration must be given rather than a finding of compatibility, the parties conducted their cases on the basis that compatibility of uses ought to be achieved having regard to control a. of the RDCP 2014 dealing with the desired future character of this precinct.
A compatibility of uses really means no more than the uses can exist side by side without unreasonable impacts one on the other.
An 'appropriate' land use is encouraged ([30] above), the design and management of commercial premises should 'minimise' noise generation and intrusion ([31] above). The design of premises such as the hotel should 'diminish' the impact of noise ([33] above) whilst the operation of commercial developments should protect the amenity of residential spaces ([39] above).
There is no control of hours of operation in RLEP 2014, RDCP 2014 or any other applicable policy.
The application is for a trial period of 12 months. It is convenient to recall the task required when assessing an application which includes a trial period. The power to grant consent for a 'trial period' is an exercise of the power in s 4.17(1)(d) of the EP&A Act to limit the period during which development may be carried out in accordance with the consent so granted. In the seminal case (for other reasons) of Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang), Spigelman CJ said the following: "80 I do not accept Talbot J's characterisation of the Commissioner's decision as having "effectively postponed determination of an essential matter for one year". As I understand the Commissioner's decision, he was not satisfied that the likely impact was such that an unlimited consent should be given. He was satisfied that the likely impact during a period of twelve months was such that a consent for that period should be given. This involved an assessment of the merits which was open to him. There was no error of law in this respect. ….. 83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to "take into consideration" matters even though their full significance cannot be known with precision. 84 Where, as in this case, the nature of the development application is for the "use" of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion."
The words of Spigelman CJ are apposite here. The assessment is to be made based upon, amongst other things, an expectation of human behaviour. Whilst generally predictable, there is no certainty about such a prediction, and the Applicant recognises that a trial period is necessary if development consent is to be granted because the full significance of the DA cannot be 'known with precision'. It is not, however, the case that a trial period is simply a 'suck it and see' approach. The assessment must be made on the basis that the likely impacts are acceptable for a period of 12 months, noting that the impacts are reversible, in the sense observed in Zhang, that the impacts, if any, will cease at the end of the 12 month period.
The planning regime obviously calls for an assessment of the impacts of the proposed trading from 2am to 4am, to then determine whether the proposed operation is compatible with its surrounding largely residential land uses, having regard to the objectives of minimising noise intrusion and protecting the amenity of the residential neighbours. In my opinion to do so requires attention to the following matters: 1. The conduct of the present operation; 2. The nature of the proposed operation; 3. The likely acoustic impacts; 4. The proposed or other ameliorative measures.
The relevant conduct of the present operation in my opinion is the period from midnight to 2am. The nature of that use is clearly different from the pre-midnight operation. Presently there is a maximum of 50 persons after midnight whereas there is no limitation on the pre-midnight operation. There is no alcohol served after midnight but it is served before midnight. There is an effective closure of part of the hotel at midnight with only the gaming area operating thereafter.
It is in that context that the evidence from the Police and the objectors must be considered. None of that evidence focussed on the midnight to 2am trading period. One resident said that impacts continued until 2am, and referred to Police being in attendance after midnight, although the records of the Police (COPS records) do not show any attendance by the Police after midnight other than for the two armed robberies in 2017.
It would not be surprising for there to be some noise disturbance after midnight associated with patrons leaving the premises at midnight when most of the hotel closes. However, the evidence does not support the proposition that trading between midnight and 2am presently causes undue noise disturbance. I accept however, having regard to the acoustic evidence that is discussed below, that there are likely to have been occasional disturbances caused by patrons leaving the premises, without there having been anti-social behaviour. It will have been, I infer, the potential for those occasional disturbances, but in the midnight to 2am hours, which led the Council to approve first the trial period of one year then the permanent extension of hours.
I accept the evidence of Mr Rippingill that the behaviour of patrons who are utilising the gaming room is different from the behaviour of patrons in the general area of an hotel, particularly in the period after midnight when only the gaming room operates and no alcohol is served or supplied. That is part of the explanation as to why there have been no recorded complaints about trading in the period midnight to 2am and there has been no cause for the Police to attend (save for the armed robberies).
The evidence from S-C Perigo does not differentiate between the general trading of the hotel and the existing approved hours. There is a proper basis to concern about the potential impact on the neighbouring residential properties between 2am and 4am, including the time taken for patrons to leave the vicinity, but not based upon specific evidence of existing issues during the earlier period.
The proposed operation is a continuation of the trading between midnight and 2am, with the maximum number of patrons reduced from 50 to 25. By 2am no alcohol has been served for 2 hours, although it could have been consumed for some period after midnight if purchased shortly before midnight. It remains part of the Applicant's proposal that person who have been elsewhere including other licensed premises where alcohol could be consumed, can arrive at the hotel between 2am and 4am.
I agree that patrons will generally be quiet in their activity and the prospect of boisterous behaviour is very low. Patrons are likely to drive to the hotel or utilise the services of taxis or ride share companies. Accordingly, there will be activity of patrons arriving and departing, including some who have more recently been consuming alcohol. Whilst there is a maximum number of patrons of 25, there is the very real possibility of patrons arriving without knowing if the gaming area is 'full' and therefore will be turned away. The potential for noise impacts is from more than simply 25 patrons. It is from the cumulative number of patron movements of those who have stayed in the hotel after 2am and leave closer to 4am, and those who leave well before 4am but are 'replaced' by others arriving at the hotel.
The potential for anti-social activity generating noise is low because of the lack of alcohol service and the nature of gaming and of those who engage in that pastime. I would have used the appellation 'minimal' if patrons from other premises were not permitted to enter the premises after 2am, notwithstanding the reduced maximum of 25 patrons in the gaming area.
The acoustic evidence about noise from departing patrons makes it clear that there is the potential for noise disturbance cause by patrons, even those who do not engage in antisocial activity. The act of slamming a door can occur in the normal course of human endeavour. So can the starting of a motor vehicle and driving off. These are not of themselves anti-social activities and yet they can cause noise disturbance. No matter how well run a hotel is, there can be such noise impacts which are unacceptable depending upon their time and frequency.
The noise of a car door slamming exceeds the sleep arousal criterion whilst the starting of a car and driving off also exceeds the criterion and is at the very limit of the range within which the RNP says it is unlikely to awaken people from sleep.
I do not accept that the 'test' adopted by the acoustic experts is appropriate. The issue of whether there is a significant effect on the health and wellbeing of a resident is not the question to be answered when considering this DA in the context of the planning regime and, indeed, simply assessing the impacts of the development pursuant to s 4.15(1)(b) of the EP&A Act.
The evidence shows that there is the very real potential for sleep disturbance each time a patron returns to their vehicle when it is parked outside a residence. It is common ground that patrons are likely to park in Edward Street immediately outside the residential flat building opposite the hotel. Patrons are also likely to park near other residential premises, but it is difficult to be precise. Also, I do accept that the environment of Blaxland Road itself is likely to have a little traffic noise including from an occasional bus, and that therefore it is a slightly less quiet environment than Edward Street.
It follows that the operation past 2am has the potential to disturb the sleep of nearby residents. It is nonsense to suggest that provided such sleep disturbance is not so regular as to cause health impacts then it is acceptable. The annoyance of awakening from disturbance is a real impact, whether or not it leads to health or wellbeing impacts over a longer time.
The frequency of such disturbance is of course difficult to determine and is almost speculative. The nature of the users, the absence of influence from alcohol for the most part, together with the other measures in the POM leads to the conclusion that the disturbances will be sporadic rather than consistent, but nevertheless regular in the sense that a noise event could well occur not less than 2 or 3 times every couple of weeks. This conclusion takes into account patrons arriving after 2am, who have consumed alcohol elsewhere, and the real possibility of patrons arriving and being turned away.
I accept the Council evidence and submission that the period between 2am and 4am is a more sensitive period than the period from midnight to 2am. It is truly the 'dead of night' and disturbance in that period is more significant than earlier disturbance. I do not accept that activity levels at 4am are the same as at 2am, nor that there is no real difference between midnight and 2am compared to 2am to midnight. There is much more likelihood of local residents who have been at entertainment venues returning to their homes between midnight and 2am than later, and there is no evidence that shift workers are more likely to be returning home between 2am and 4am creating the sort of level of activity which occurs in the 2 hours after midnight.
I do not consider that the level of disturbance which is likely is acceptable and consistent with the objectives referred to at [95] above. The potential noise has not been minimised and residential amenity has not been protected. The disturbances are not expected to be minimal nor of no moment. The level of disturbance is in excess of a reasonable expectation having regard to the zone objective of compatibility of land uses.
The amelioration measures emphasised by the Applicant which include that no alcohol has been served since midnight, the total number of patrons at any one time has been reduced to 25, there is one security guard on duty, a staff member will be available to accompany patrons to their motor vehicles, if requested so to do by a patron. These are not sufficient to reduce the potential disturbances identified.
A patron is not likely to request being accompanied to their motor vehicle unless they have concerns for their own safety. There is no evidence that there are likely to be such concerns on a regular or consistent basis. I do not regard it as likely that as a matter of course patrons will request being accompanied to their car, being the claimed opportunity for the staff member to ensure there is no disturbance. There will be very few patrons accompanied to their motor vehicles.
Whilst the Applicant's reduced the maximum number of patrons to 25, that is the maximum number within the premises at any one time, it is not the total number of patrons present at or in the vicinity of the hotel during the period from 2am to 4am and shortly thereafter. There is more patron activity likely than that simply generated by 25 patrons in total over that period. The assessment is not of simply 25 patrons, but a number in excess which is not known with any certainty, which includes arrivals after 2am to "replace" those who are leaving, and then leave themselves later in the night/early morning.
The Applicant proposes nothing in relation to potential patrons arriving after 2am having consumed alcohol elsewhere. It is common ground that the consumption of alcohol increases the potential for noise disturbance, even when a person is not intoxicated. A person moderately affected by alcohol is in a more 'relaxed' state of mind and less likely to consider the potential consequences of their ordinary activities such as loud talking, shouting 'good night', driving off in their vehicle in a noisier fashion.
There remains consideration of the Council's without prejudice conditions, and whether the imposition of those conditions, with the addition of other conditions would render the proposal acceptable.
The Council's proposed without prejudice conditions include the requirement for two security guards, a condition opposed by the Applicant. In my opinion two security guards would be necessary to ensure the quiet of the neighbourhood - one needs to remain at the premises (other than in an external emergency) and the other is to ensure no patron disturbs the residential amenity. That task is beyond one security guard. It is also notorious within the hospitality industry that an identified security guard is more likely to ensure good behaviour and quiet departure of patrons than a regular staff member.
In his submissions the Applicant said that such an obligation was onerous. When challenged by the Court as to whether it was said to be commercially onerous when no information about the revenue generated by two hours of operation of the gaming room was before the Court, the Applicant reframed the submission as the requirement was simply unnecessary.
The Council did not propose any other additional conditions.
The Court asked the question of the Applicant as to whether a lockout was proposed, and the reply was that it was not. The Council did not include such a condition in its 'without prejudice' draft conditions and did not address such a condition in its submissions. Nevertheless, the parties were aware that the Court had considered such an option and ought not be taken by surprise that it has been considered.
The effect of a lockout is that only patrons who are in the gaming room at 2am can remain and no other patrons can be admitted to the hotel. Those patrons would not have been consuming alcohol, and the maximum number of patrons who have the potential to cause disturbance is 25 during the period of 2am to 4am. There are no additional movements of patrons to the premises, the only consequence of extending the hours will be a potential later departure of the patrons (a maximum of 25) who are already in the gaming room at 2am.
It is possible that whilst alcohol is not served or supplied between midnight and 4am, it could be consumed, either having been purchased prior to midnight at the hotel or brought onto the hotel. The purpose of the 'no consumption' provision is to ensure that the objective of the no sale or supply of alcohol, which is to ensure patrons are not drinking alcohol, is not subverted. The Council when granting consent to the trading from midnight to 2am did not impose such a condition and the Court here is restricted to the period after 2am. If there was power the Court would have imposed the 'no consumption' condition from midnight.
In my opinion with a combination of the Applicant's conditions, the Council's requirement for two security guards and additional conditions the proposal is acceptable. In the absence of evidence sufficiently cogent to establish unreasonable disturbance by gaming room patrons after midnight, I am satisfied that with the additional measures of the conditions I propose the potential for disturbance is minimal for the purposes of assessment for a time limited consent of 12 months.
The patrons will be in general accompanied to their vehicles by a security guard and will thereby be acutely aware of the need to leave quietly. There will be limited movement of people over the two hour period, and given the lockout, it is unlikely all 25 patrons will leave at 4am, it is far more likely that they will leave progressively over time. One cannot eliminate the possibility of a disturbance, but that prospect is minimised by the conditions, and at its highest there will only be a very occasional noise event and that is unlikely to affect residential amenity.
In summary, the conditions must provide for:

A 'lockout' at 2am - no patrons to be admitted after 2am;
Two security guards to be at the hotel from 2am to 4am;
One security guard shall have the responsibility to accompany leaving patrons to their transport and to ensure there is no noise disturbance;
The same security guard is to patrol the vicinity of the premises, particularly Edward Street, to ensure there is no noise or other disturbance;
No liquor shall be consumed on the premises after 2am.

With the imposition of these conditions, for the reasons set out above, the potential for noise disturbance has been minimised, the residential amenity is preserved and there is compatibility between land uses for the purposes of a time limited consent - a trial period for 12 months.
The Council made submissions about other provisions of RDCP 2014 concerning matters such as street activation, 'vibrant atmosphere' and the like. Such matters have no role to play in considering this DA, which is only an application to extend hours after 2am.
The Council also argues that there is an inevitable change in character if the DA is approved, relying upon Mr Teoriero's evidence that providing a commercial activity for 50 people from 2am to 4am must change the character. Mr Tesoriero did not, for obvious reasons, address the Applicant's very late change to 25 patrons, but for the reasons I have found the necessary compatibility for the purposes of a trial period, there is no change in character of the precinct or the area.

Conclusion

The impacts are likely to be minimal, with the imposition of the conditions proposed, and for the purposes of a time limited period of 12 months the proposed extension of hours is acceptable. There will need to be an amended POM prepared and the conditions of consent re-drafted.
The parties may wish to make submissions about how the matters I have determined are to be addressed, and the consequential amendments to the POM, therefore I will list the matter for mention with a view to then making directions to enable the final orders to be made.

Direction

The Court directs that the matter be listed to mention by arrangement with the List Manager between 14 and 21 days after the date of these reasons.

Addendum made on 16 April 2021

Following delivery of the above reasons, the matter was listed for mention on 23 March 2021 at which the parties' representatives and the Court discussed the conditions and amendments to the plan of management required to give effect to my decision. On 26 March 2021, the conditions and amended plan of management were filed and which properly reflect my decision. Accordingly, I make the following orders: 1. The appeal is upheld. 2. Development consent is granted to development application LDA2020/0089 to enable trading in the gaming room and the adjacent servery bar (accessible only from the gaming room) from 2am to 4am Tuesday to Sunday for a trial period of 12 months at the Royal Hotel 68 Blaxland Road, Ryde, subject to the conditions in Annexure A hereto. 3. The exhibits, other than exhibits B, F and 2 be returned.

Acting Commissioner of the Court Annexure A (165728, pdf) Plan Of Management (736112, pdf)

Amendments 20 April 2021 - See addendum at [136] 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. Decision last updated: 20 April 2021

(2002) 121 LGERA 101

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