General Roberts Super Pty Ltd v City of Newcastle

General Roberts Super Pty Ltd v City of Newcastle - [2024] NSWLEC 1404 - NSWLEC 2024 case summary — Zoe

[14]

The Respondent however maintains their view that the extended trading hours will result in adverse impacts to residential properties on two grounds. Firstly, that compliance with the acoustic criteria relies heavily on conditions of consent and their implementation. Secondly, that the acoustic impacts of patrons outside the pub have not been assessed.
On the second matter the Applicant has modelled the potential acoustic impacts at residential receivers for the following scenarios. In each scenario 40% of people are speaking in a normal voice, 10% of people are speaking at a raised voice with both sustained over a 15 minute period.
- 20 people outside the pub (near the main door on Lambton Street).
- Two groups of 20 people
- Six groups of 20 people
In each of the above scenarios the acoustic assessment demonstrates that predicted noise levels are not exceeded at the nominated residential receivers. Thereby Mr Linnett concludes that typical patron activity during the period after 12am midnight from the movement of patrons to and from the venue would not result in an adverse noise impact. On Mr Linnett's evidence control C5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023 is met.
Turning to the planning controls, C 5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023 requires a two-part consideration. Firstly, an assessment of the predicted noise of patrons moving to and from the pub in the period of 9pm to 6am. Secondly, whether the development application, in this case the increased hours, will result in new or increased adverse amenity impacts. In cross examination the acoustic experts agreed that Applicant has not undertaken a qualitative assessment of the acoustic impacts of patrons under the current trading hours. Further, Mr Linnett accepted that the noise of patrons leaving the pub between 12 midnight and 2 am is 'new' noise.
Despite this limitation, in their joint report the acoustic experts agree that with appropriate measures in place within a VMP the noise impact from patrons outside the pub should not cause an adverse amenity impact. Mr Gauld accepts that based on the scenario modelled by the Mr Linnett the noise impact would not be likely to adversely impact residents. He argues however that if people from the pub were to gather closer to residential properties or speak at a higher volume residents may be impacted.

[22]

I am satisfied that the extended trading hours proposed by the development application will not result in an adverse acoustic noise impact. My reasoning follows.
Firstly, in relation to the submissions put by Mr Farrell in relation to the weight to be given to DCP 2012, I prefer and accept the submissions of Mr Poisel at [37-38] on two grounds. Firstly, this Class 1 proceeding is a merit review of the decision of Newcastle City Council and is not a judicial review of the validity of DCP 2012. Secondly, the provisions of DCP 2023 are a mandatory matter for consideration in the determination of a development application under s 4.15 of the EPA Act. Thirdly, to the extent it is a matter relevant to the weight to be given to that consideration, the amendments to provisions of DCP 2023 post the public notification phase are provided for in the statutory scheme.
As such in the determination of the development application, I have given weight to the provisions of DCP 2023. Relevant to the Respondent's contention that the extended trading hours will result in adverse noise impacts, are control C5 in Part D, Section D4 of DCP 2023 which address Acoustic Privacy: see [29]. My assessment of the acoustic modelling in the AIA is that the modelled internal noise of pub and acoustic plant noise will not exceed the acoustic noise criteria at any of the residential receivers where the conditioned management measures are implemented. This conclusion is agreed by the acoustic experts. However, in the joint report, Mr Gauld expressed two remaining areas of concern. Firstly, certainty of compliance with the management measures and secondly, the potential acoustic impact of noise from residents leaving the pub. In his oral evidence Mr Gauld concluded that, given the additional modelling and further management measures proposed by the amended VMP, the noise impacts from patrons outside the pub should not cause an adverse impact.
Thereby arising from the expert evidence, the remaining issue is the effectiveness and reliability of the proposed mitigation and management measures which are necessary to ensure acceptable acoustic impacts. On the following basis I am satisfied the measures in development application, in particular the VMP, and the annexed conditions (as amended) are satisfactory. In particular, I am satisfied that the amendments listed at [7] are necessary and responsive to the concerns of the Respondent in the Statement of Facts and Contentions and the public submissions.
Firstly, I find that the VMP should be amended by the additional as follows to provide greater reliability and certainty to the mitigation of noise from patrons leaving the pub during extended trading hours. The following additional condition is added to the annexed conditions of consent to affect this amendment.

[32]

As such I find that the VMP, in concert with the amended conditions, are an appropriate means of controlling and mitigating any potential impacts of development on residential amenity, and is unlikely to impose a high burden placed on Council to enforce conditions or the plan of management, to control the amenity impacts of the proposal.
Fourthly, in considering the submissions of Mr Poisel I give weight to the uncontested evidence of Mr Simpson, the current owner of the pub, of both the current patron numbers across the weeks nighttime trade and the absence of complaints to Council or the other agencies about the operation of the pub. Further, the AIA in logging the background noise at the various residential receivers and at the entry to the pub on Lambton Road provides an indication of current noise levels during existing trading hours. I am satisfied that these considerations along with the expert evidence of the acoustic experts provide the basis for the Courts consideration of both the likely impacts of the proposed development and the compliance of it with Control C 5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023.
Fifthly, pursuant to s 4.15(3a) of the EPA Act I find that the Applicants VMP, which incorporates the agreed mitigation measures, and the additional requirement for security to assist with management of patrons outside the pub, is a reasonable alternative solution to control C5 in 5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023.
Finally. I find that the submissions of Mr Poisel about the Vibrancy Reforms are addressed by the imposition of condition 7 which has the effect of approving the extended trading hours for a 12 month. Whilst the reforms are in draft and are matters for consideration, I don't find them sufficiently imminent to be given material weight. Further, at the conclusion of the 12 month period the consent will cease to operate with the effect of ending the extended trading hours. If the Vibrancy Reforms are enacted, this may be a relevant matter that will be a consideration if the extended trading hours are sought to be reinstated at that time.
I find that the Respondent's contention that the extended trading hours will result in an unacceptable noise impact on the amenity of the neighbours is not made out and any potential detrimental acoustic impacts of the extended hours do not warrant the refusal of the development application.

[46]

Mr Tesoriero disagrees that the pub forms part of an organic cluster under NADS. His reasoning is firstly that the features that Mr Rippingill relies on, such as McDonald Jones Stadium, are a significant walking distance from the pub. Secondly, that the pub does not meet the other characteristics in Section 7.3 of NADS, namely impacts on surrounding neighbours are well managed and there is transport connectivity between 12 midnight and 2 am. Further, he disagrees that the right suite of measures has been proposed as part of the development application for extended trading hours for it to be considered a low impact venue. Further he relies on the evidence of Mr Gauld about the potential adverse acoustic impacts and the fact that the patron capacity of 250 people exceeds the 120 person capacity of a low impact venue. Giving weight to these matters and the definition in DCP 2023 he concludes the proposed extended trading hours are not consistent with the characteristics of a low impact venue.
In relation to control C-11 the planning experts agree two relevant matters; firstly, that the development application will contribute to the regional economy, and secondly that the pub would add venue diversity between midnight and 2am when Wests and Rosella's Perch are also open.
The Court was assisted by expert CPTED evidence. The experts prepared two expert reports and provided oral evidence. At the conclusion of their evidence their disagreement centres on the need for security during the extended trading hours. In essence Mr John Van Der Veen argues that Security is not necessary during extended trading hours and that patron management is adequately addressed by hotel staff. Further, he notes the VMP requires a minimum of three hotel staff at the midnight lockout. In contrast Ms Kristine Cianci favours the use of security personnel to manage patrons after they exit the pub during extended trading hours.
Given my findings on the acoustic evidence and the imposition of the additional conditions detailed at [58] and [59], it is unnecessary to determine the difference in view between the CPTED experts as I have found it is necessary to impose the requirement for security on acoustic grounds.

[47]

In addition to his submissions at [36] about the weight given to DCP 2023, Mr Farrell makes the following submissions about whether the controls in DCP 2023 related to the night time economy precincts be varied.
Firstly, he acknowledges that factually the site is outside the seven nightlife precincts in detailed in NADS. However, he submits that in applying control C10 and C11 in Section 13 Part D of DCP 2023 the Court should have regard to the objects of the control in accordance with s 4.15(3A) of the EPA Act. He directs the Courts attention in particular to objective 6 and 7 (extracted at [27]).
In relation to those objectives, he states that if the Court holds that there was no unacceptable acoustic impacts from the extended trading hours proposed in the application, it would concordantly find that objective 7 is met. In relation to objective 6, Mr Farrell makes the following submissions:
- increasing surveillance of Tartan Reserve, achieved through the introduction of new CCTV cameras in the development application, furthers the objective of supporting safe and activated spaces after dark.
- That the unchallenged oral evidence of Mr Rippingill that the wording of the objective to "concentrate" nighttime economy in the seven precincts was a lower test than that in control C10.
- That given the small numbers of patrons proposed in the VMP to occupy the pub during the extended trading hours, and the large capacity of Wests adjoining the site, the additional patronage facilitated by the development application will be imperceptible.
Mr Farrell concludes that despite the variation to controls C-10 and C-11 in Section 13 Part D of DCP 2023, the Court would conclude that the objectives of the control are met and therefore the controls should be flexibly applied in accordance with s 4.15(3A)(b) of the EPA Act.
In contrast to the submissions of Mr Farrell, Mr Poisel argues that DCP 2023 intends to change the nightlife character of the Newcastle LGA in two ways. First, by restricting it to the seven nightlife precincts identified in NADS: see control C10. Secondly, by limiting growth in the late night economy to low impact venues. When applying these controls to the proposed development Mr Poisel argues that the Court should accept and prefer the evidence of Mr Tesiorero that the Applicant has not demonstrated that, despite not complying with the controls in DCP 2023, the objects of the controls have been achieved.
In conclusion Mr Poisel directs the Court to the reasoning of Preston CJ in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 (Saffioti) at [27-28]. In particular to the finding that the reasonable alternative solutions referred to in s 4.15(3A)(b) of the EPA Act are reasonable alternative solutions embodied in the development that is the subject of the development application and that the onus is on the Applicant to proffer these alternatives.
I note that in his submissions in reply Mr Farrell submits that the reasonable alternative solution proffered by the Applicant is the VMP which forms part of the development application.

[48]

Applying DCP 2023, the development application varies control C-10 in that it is late-night development that is located outside of the seven nighttime precincts in NADS. Further, applying the definitions in Section D4 of DCP 2023, as the use of the site is as a pub it falls outside a 'low impact venue' thereby the development application varies control C-11.
When the Precinct Level Planning section of NADS is read in context in my view it firstly, does not seek to discourage the type of nighttime, or late nighttime, economy proposed by this development application. Secondly, the strategic priorities and action plan in NADS do not directly seek to limit any new venues to only those precincts. On my reading, to the extent NADS is a matter for consideration, it is less restrictive or definitive than Control C-10 in DCP 2023. For example, NADS acknowledges both organic and emerging clusters which are not encompassed in the controls in DCP 2023.
The development application relies on a variation to these controls. Pursuant to s 4.15(3A)(b) of the EPA Act the controls should be flexibly applied and the consent authority should allow reasonable alternative solutions that achieve the objects of those standards. I accept the submission of Mr Poisel that applying the reasoning in Saffioti that reasonable alternative solution is embodied in the development that is the subject of the development application. I accept the submission of Mr Farrell that the reasonable alternative solution proffered by the Applicant is the VMP which forms part of the development application.
The relevant objectives of the controls are extracted at [27]. Objective 6 seeks two outcomes, firstly the concentration of nighttime economy (specifically to the seven nighttime precincts in NADS) and secondly to support safe and activated public spaces after dark.
Taking the first part of the objective I accept the evidence of Mr Rippingill that the intent to 'concentrate' nighttime and late-night economy in objective 6 is a lower requirement than the terms of the control in C10. I am satisfied that the development application is consistent with both parts of objective 6 in two ways. Firstly, the location of the pub is in an urban context that includes a number of existing late-night venues. Further, I accept that given the small numbers of patrons proposed in the VMP to occupy the pub during the extended trading hours, and the large capacity of Wests adjoining the site, the additional patronage facilitated by the development application will be imperceptible. In my view the proposed extension of hours is consistent with the objective to concentrate late night economy. This view is consistent with the second part of the objective which seeks activate and safe public spaces where such late-night trading occurs. In my view the presence of late-night trading in proximity to other late-night venues will result in these spaces being more activated than a single venue operated in a single precinct. Further, the VMP, which forms part of the development application, includes provisions to ensure safety of patrons and the management of any impacts on residential land uses. The development application is consistent with objective 6.
Given my findings at [54]-[68] I find that the development application is consistent with objective 7 in that it will not generate adverse amenity impacts on residential and other sensitive land uses. On this basis I accept that it is appropriate to vary control C-10 and C-11 of Part D Section 13: Amenity of DCP 2023 as the amended development application contains a reasonable alternative solution that meets the objectives of the controls.

Parties

Applicant/Plaintiff:

General Roberts Super Pty Ltd

Respondent/Defendant:

City of Newcastle

Legislation Cited (9)

Liquor Act 2007(NSW)

Gaming and Liquor Administration Act 2007(NSW)

Environmental and Planning Assessment Act 1979

Liquor Administration Act 2007

Land and Environmental Court Act 1979

Environmental Planning and Assessment Regulations 2021

Planning and Assessment Act 1979

Planning and Assessment Regulation 2021

Environment Court Act 1979

Cases Cited (16)

Weight to be given to DCP 2023.

The Applicant makes the following broad arguments to the Court seeking for the provisions in DCP 2023 to be given a reduced weight in the assessment of the merits of the development application: 1. That DCP 2023 commenced on 1 March 2024 without the benefit of a savings provision and thus applies to the development application despite it being lodged on 4 August 2022. 2. That whilst the provisions of a development control plan must be considered as the 'focal point' in the decision-making process, that consideration was given clarification by the decision of Preston CJ in Wakworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [119]-[235] as follows: 1. Where legislation required a decision maker to take into consideration certain matters, but does not indicate the weight to be given to those considerations, each must be considered but the weight accorded to each consideration is a matter for the decision maker. 2. There is no blanket rule as to the weight to be accorded to matters that are required to be considered. 3. The context of the legislation and the circumstances of each case may mean that some matters may clearly be more important than others. 1. That the provisions of DCP 2023 should be implemented flexibly. Firstly, as s 4.15(3A)(b) of the EPA Act requires the consent authority to apply provisions of a development control plan flexibly and allow reasonable alternative solutions that achieve the objects of the standards. Secondly, because DCP 2023 itself, in Section A1, Part 13.0, acknowledges the need for flexibility in its implementation. 2. That significant operative provisions of DCP 2023 were not the subject of community consultation and, applying the principle in Stockland Development Pty Ltd v Manly Council [204] NSWLEC 472 at [87] (Stockland v Manly), those provisions should be given less weight.
Mr Poisel for the Respondent disagrees with Mr Farrell's submissions and argues that the provisions of DCP 2023 are the focal point of the assessment and should be given significant weight for the following reasons: 1. Assessing the five principles enunciated in Stockland v Manly, the provisions of DCP 2023 are consistent with LEP 2023. And a draft of DCP 2023 was the subject of consultation and was notified for 28 days. Further, the Council was permitted to adopt the draft of DCP 2023 with alterations that the Council considers appropriate: s 14(1)(b) of the EPA Regulation. 2. The development application must be determined by the consent authority, or the Court in this instance, in accordance with the facts and the law that exist at the time of determination: Tomasic v Port Stephens Council [2021] NSWLEC 56 at [44] and [87]. 3. DCP 2023 is valid unless it is otherwise declared by the Court. The validity of the instrument is a matter which is outside the jurisdiction of the Court in Class 1 proceedings: Charara v Ku-ring-gai Council [2019] NSWLEC 183. 4. There is no evidence that DCP 2023 has not been consistently applied by the Council. 5. There is no evidence that DCP 2023 will bring about an inappropriate planning solution or is inconsistent with policies adopted at a State or Regional level. Further, DCP 2023 seeks to implement NADS.
In conclusion Mr Poisel argues that the Court should reject the submissions of Mr Farrell that DCP 2023 to be given a reduced weight in the assessment of the development application. He concludes that the Respondent accepts that the draft DCP 2023 was amended after consultation and not re-notified prior to adoption. But he argues that does not make the amended draft DCP 2023 a new DCP that was required to be notified as asserted by Mr Farrell. Mr Poisel argues that applying the decisions of the Court in Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347 at [160] and Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [180] the requirement for exhibition of public comment is not a unlimited requirement that arises for any or all changes implemented prior to adoption.

Findings

I am satisfied that the extended trading hours proposed by the development application will not result in an adverse acoustic noise impact. My reasoning follows.
Firstly, in relation to the submissions put by Mr Farrell in relation to the weight to be given to DCP 2012, I prefer and accept the submissions of Mr Poisel at [37-38] on two grounds. Firstly, this Class 1 proceeding is a merit review of the decision of Newcastle City Council and is not a judicial review of the validity of DCP 2012. Secondly, the provisions of DCP 2023 are a mandatory matter for consideration in the determination of a development application under s 4.15 of the EPA Act. Thirdly, to the extent it is a matter relevant to the weight to be given to that consideration, the amendments to provisions of DCP 2023 post the public notification phase are provided for in the statutory scheme.
As such in the determination of the development application, I have given weight to the provisions of DCP 2023. Relevant to the Respondent's contention that the extended trading hours will result in adverse noise impacts, are control C5 in Part D, Section D4 of DCP 2023 which address Acoustic Privacy: see [29]. My assessment of the acoustic modelling in the AIA is that the modelled internal noise of pub and acoustic plant noise will not exceed the acoustic noise criteria at any of the residential receivers where the conditioned management measures are implemented. This conclusion is agreed by the acoustic experts. However, in the joint report, Mr Gauld expressed two remaining areas of concern. Firstly, certainty of compliance with the management measures and secondly, the potential acoustic impact of noise from residents leaving the pub. In his oral evidence Mr Gauld concluded that, given the additional modelling and further management measures proposed by the amended VMP, the noise impacts from patrons outside the pub should not cause an adverse impact.
Thereby arising from the expert evidence, the remaining issue is the effectiveness and reliability of the proposed mitigation and management measures which are necessary to ensure acceptable acoustic impacts. On the following basis I am satisfied the measures in development application, in particular the VMP, and the annexed conditions (as amended) are satisfactory. In particular, I am satisfied that the amendments listed at [7] are necessary and responsive to the concerns of the Respondent in the Statement of Facts and Contentions and the public submissions.
Firstly, I find that the VMP should be amended by the additional as follows to provide greater reliability and certainty to the mitigation of noise from patrons leaving the pub during extended trading hours. The following additional condition is added to the annexed conditions of consent to affect this amendment. 2. Licensed Premises - Venue Management Plan - Operation The operation of the premises must comply at all times with the approved Venue Management Plan referenced in Condition 1, subject to the following amendments: (aa) Section 9.3 Security working in the venue should be amended to require only security to be utilised (not RSA Marshalls) in assist in crowd control between midnight and 2 am in circumstances where: (i) If there is a specific need which identifies the likelihood of the venue having more that 125 patrons after midnight; or (ii) On any occasion when McDonald Jones Stadium has a ticketed even and the event finishes after 10 pm. …

Submissions

In addition to his submissions at [36] about the weight given to DCP 2023, Mr Farrell makes the following submissions about whether the controls in DCP 2023 related to the night time economy precincts be varied.
Firstly, he acknowledges that factually the site is outside the seven nightlife precincts in detailed in NADS. However, he submits that in applying control C10 and C11 in Section 13 Part D of DCP 2023 the Court should have regard to the objects of the control in accordance with s 4.15(3A) of the EPA Act. He directs the Courts attention in particular to objective 6 and 7 (extracted at [27]).
In relation to those objectives, he states that if the Court holds that there was no unacceptable acoustic impacts from the extended trading hours proposed in the application, it would concordantly find that objective 7 is met. In relation to objective 6, Mr Farrell makes the following submissions:

increasing surveillance of Tartan Reserve, achieved through the introduction of new CCTV cameras in the development application, furthers the objective of supporting safe and activated spaces after dark.
That the unchallenged oral evidence of Mr Rippingill that the wording of the objective to "concentrate" nighttime economy in the seven precincts was a lower test than that in control C10.
That given the small numbers of patrons proposed in the VMP to occupy the pub during the extended trading hours, and the large capacity of Wests adjoining the site, the additional patronage facilitated by the development application will be imperceptible.

Mr Farrell concludes that despite the variation to controls C-10 and C-11 in Section 13 Part D of DCP 2023, the Court would conclude that the objectives of the control are met and therefore the controls should be flexibly applied in accordance with s 4.15(3A)(b) of the EPA Act.
In contrast to the submissions of Mr Farrell, Mr Poisel argues that DCP 2023 intends to change the nightlife character of the Newcastle LGA in two ways. First, by restricting it to the seven nightlife precincts identified in NADS: see control C10. Secondly, by limiting growth in the late night economy to low impact venues. When applying these controls to the proposed development Mr Poisel argues that the Court should accept and prefer the evidence of Mr Tesiorero that the Applicant has not demonstrated that, despite not complying with the controls in DCP 2023, the objects of the controls have been achieved.
In conclusion Mr Poisel directs the Court to the reasoning of Preston CJ in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 (Saffioti) at [27-28]. In particular to the finding that the reasonable alternative solutions referred to in s 4.15(3A)(b) of the EPA Act are reasonable alternative solutions embodied in the development that is the subject of the development application and that the onus is on the Applicant to proffer these alternatives.

Are the proposed trading hours consistent with the character of the area?

I note that this contention of the Respondent is not referable to a planning control in LEP 2012 or DCP 2023. The contention itself includes the following particulars: 'The proposed development is not compatible with the character of the locality. a) Other pub premises within the locality do not operate later than 12 midnight. Specifically, the following pubs within an approximate one-kilometre distance of the Site have the following trading hours: Lambton Park Hotel - 19A Morehead St, Lambton. Modification to Development Consent (MA2023/00017)- approved hours 10am -12 midnight Mon-Sat 10am- 10pm Sunday. Duke of Wellington - 69 Regent Street New Lambton Liquor License hours only- 10am - 12 midnight Mon-Sat and 10am- 10pm Sunday. b) As the pub is located outside the seven nightlife precincts identified in the Strategy late night development is not supported by the NDCP 2023 (Control C-10 in Paragraph 12 Part D4 Commercial). c) As particularised in Contention 3 below, the proposed development does not comply with Objective 7 of Paragraph 12.0 Part D4 Commercial of the NDCP 2023 as it will generate adverse amenity impacts on residential land uses.'
During their oral examination the town planning experts agreed on the extent of the 'locality' of the Pub. That locality comprises the block containing the pub, Wests, the Executive Inn, the multi-storey car park for Wests, residences and commercial development.
This contention was the subject of evidence from both the planning and CPTED experts. I have reviewed that evidence, and the parties submissions, in considering this contention. Where relevant I have summarised those in my reasoning which follows.
I am satisfied that the extension of trading hours proposed in the development application is compatible with the character of the area. My reasoning follows:
The particulars in the Respondent's contention seeks to limit the question of compatibility of the development proposed (the pub's proposed extended trading hours) to compatibility with other pubs. It excludes consideration of premises such as Wests which both trade in the late-night period and are in close proximity to the site. Such a limit to the question of compatibility in my view is to artificially constrain the assessment artificially. Understanding the character of the locality is informed and shaped by:

existing and approved development can have a function in defining existing and desired future character.: see Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2) which states at [54]: "…The desired future character for a neighbourhood or area can evolve over time, responding not only to the provisions of [the applicable planning instrument] but also to developments carried out in accordance with development consents granted under [the applicable planning instrument] and the EPA Act."

(2006) 144 LGERA 408

(2005) 141 LGERA 80

(2009) 178 LGERA 347

(2014) 86 NSWLR 527