General Roberts Super Pty Ltd v City of Newcastle

1. 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.

1. 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] NSWLEC 213; (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.

1. The Respondent contends that the development application does not demonstrate that the noise impact from the proposal will not generate adverse amenity impacts on adjoining residential land uses. This contention was the subject of expert evidence. At the hearing the remaining particular is:

"The noise impact from patrons outside the Hotel has not been assessed and will result in increased adverse amenity impacts to residential premises"

(Exhibit 1)

1. The Acoustic Impact Assessment (AIA), which forms part of the development application, establishes background noise levels for seven residential properties in proximity for the pub, and for the site itself. The AIA then adopts the Independent Liquor and Gaming Authority (ILGA) criteria as follows:

"The LA10 noise levels emitted from the licensed premises shall not exceed the background noise level in an Octave Band Centre Frequency (31.5Hz - 8Hz inclusive) by more than 5db between 7.00am and 12.00 midnight at the boundary of any affected residence.

The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in an Octave Band Centre Frequency (31.5Hz - 8Hz inclusive) between 12.00 midnight and 7.00 am at the boundary of any affected residence.

Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am."

(Exhibit B)

1. As part of the proceedings, in response to the Respondent's contentions, the Applicant undertook further unattended monitoring in proximity to residential premises at 50 Thalaba Road and 265 Lambton Road. The criteria nominated as "AC01" represents the monitoring undertaken at the midpoint of the pub on the Lambton Road frontage. Following this additional work, the Applicant adopts these acoustic criteria for the development:
2. After completing noise modelling based on the documented assumptions and the noise emitted from mechanical plant the AIA determines operational noise predictions for each of the residential receivers. The AIA concludes that nearby receivers are "unlikely to experience any significant change in noise contributions from the project as a result of the proposed change in the operational hours outlined in the report". (Exhibit B) This conclusion is reconfirmed in the further acoustic assessment submitted by the Applicant who adopts the following management controls which are incorporated in the VMP (Exhibit B).
   • All doors and windows at the venue will be closed between 12am and 2am, with the exception of doors required for patrons' entry and exit. Entry and exit doors will be equipped with an automatic closing mechanism to prevent unnecessary noise breakout.
   • Entry and exit during the extended trading hours will only occur through the main bar entry door off Lambton Road.
   • A live CCTV feed of the 'gaming door' will be displayed in the main bar.
   • Specific management measures implemented by staff at closing time which include:

-approximately 30 minutes prior to closure, and music must be limited to background levels; and

- announcements being made over the PA system advising them of the upcoming closing time.

• Limitations on the types of live entertainment within the venue.
• Specific procedures for the refusal of service, removal and minimisation of disturbance to the neighbours.
• Signage
• Incident register

1. 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.
2. 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
3. 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.
4. 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.
5. 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.

1. Mr Poisel raises two key arguments in support of his submission that the development application should be refused as the development will have an unacceptable noise impact. Firstly, that control C 5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023 requires an assessment of the acoustic impacts. He argues that assessment should include an assessment of the impact of 258 patrons leaving the pub at 12 midnight, 130 patrons leaving the pub at 1 am and 120 patrons leaving the pub at 2am. He argues such an assessment of the 'worst case scenario' is necessary to truly consider the likely impacts of the development. Secondly, that the proposed extended trading hours in the development application will only have an acceptable noise impact if the management plans and the conditions of consent are complied with and that the proposed legislative reforms proposed in the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Bill 2023 (NSW) (Vibrancy Reforms) have the potential to override or suspend the management plans and the conditions of consent.
2. In support of his first argument Mr Poisel argues that as this 'worst case scenario' has not been assessed and that the Court does not have before it an assessment of the potential adverse acoustic impacts arising from the proposed extended trading hours. Further, he argues that the implementation of a trial period for the extended trading hours does not obviate the need for the Applicant to undertake the required assessment of the impacts arising from the development. Mr Poisel concludes that neither control C 5, nor its objective to ensure night-time and late-night trading does not generate adverse amenity impacts on residential and other sensitive land uses, are achieved.
3. Advancing his second argument Mr Poisel notes that the Vibrancy Reforms propose to introduce new provisions in the EPA Regulation, the Liquor Act and the Gaming and Liquor Administration Act 2007 (NSW) as follows:

(1) Proposed s 97A of the EPA Regulation:

97A Conditions relating to noise at licensed premises

A condition of a development consent that regulates noise generated from licensed premises ceases to have effect to the extent the condition relates to noise arising from the matters set out in the Liquor Act 2007, section 79B(1)(a) or (b).

(2) Proposed S 79B of the Liquor Act:

79B Making disturbance complaints

(1) A person may make a complaint (a disturbance complaint) that the quiet and good order of the neighbourhood in which licensed premises are located are being unduly disturbed, or unreasonably and seriously disturbed, because of -

(a) the way in which the business of the licensed premises is conducted or

(b) the behaviour of persons after the persons leave the licensed premises, including the occurrence of anti-social behaviour or alcohol related violence.

1. The Vibrancy Reforms have not yet being enacted. However, Mr Poisel argues they are relevant pursuant to s 4.15(1)(e) of the EPA Act, and if enacted have potential of removing the mitigation measures in the VMP and conditions of consent which make the impacts of the development acceptable. He concludes that if conditions are required to make the noise impacts acceptable, and those conditions are overridden by the Vibrancy Reforms the Court could not be satisfied that the development will have an acceptable noise impacts.
2. In contrast Mr Farrell for the Applicant argues that the Court should give weight to the following matters in assessing the development application's compliance with Control C5:

(1) The particular context of the site which is at the intersection of an arterial road and adjoins Wests Development which is a much larger venue with extensive trading hours.

(2) The agreed position of the acoustic experts that with appropriate measures in the management plan the noise impacts from the patrons outside the pub should not cause an adverse amenity impact. Mr Farrell notes that these measures are agreed by the Acoustic Consultants.

(3) The management obligations in the VMP, and

(4) Conditions of consent including the supervision of the exist door and patrolling of Lambton Road by security or Responsible Service of Alcohol (RSA) Marshall. Mr Farrell noted that in his oral evidence Mr Gauld accepted that:

(a) The pub was doing 'all it could' to minimise acoustic impacts from patrons leaving the venue; and

(b) With the addition of a security guard or an RSA Marshall patrol any amenity impact was properly resolved.

1. In light of these matters, Mr Farrell concludes that applying s 4.15(3A)(b) of the EPA Act is not strictly necessary to demonstrate compliance with control C 5 in Part D, Section D4, 17: Acoustic Privacy of DCP 2023 as the objective of the control is met.
2. I note that since the close of the hearing the Applicant has provided an updated VMP which now incorporates the proposed conditions of consent.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

...

1. Further, I impose the following additional ongoing condition on the development consent:

That patrolling of Lambton Road and the pedestrian footpaths in proximity to the pub is to be undertaken by security personnel at least every 20 minutes from 11.30pm when the extended hours are in force.

1. Secondly, Chief Justice Preston in Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 at [35] concluded that the Court should approach the decision making process with the view that conditions will be complied with:

"[35] Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."

1. Thirdly, the agreed conditions propose a 'trial period' of extended trading (Condition 7). Such reviewable conditions are empowered by s 4.17(10B) of the EPA Act as follows:

(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.

1. I am satisfied that such a trial period and review is appropriate given the use at a sensitive time of day and the proximity of residential uses.
2. The conditions, at Condition 1 and 2, require that the development is to be carried out in accordance with the VMP. In considering whether a plan of management is appropriate for a particular use or situation Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54] outlines a series of questions to be considered to ensure the effectiveness of the plan of management. In the circumstances of this case the I find that the answers to these questions are as follows:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

Yes

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

No

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

Yes

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

No

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

Yes

6. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?

Yes

7. Does the Management Plan contain complaint management procedures?

Yes

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

Yes

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Should the development controls in DCP 2023 related to the night time economy precincts be varied?

1. The Respondent argues that the development application is inconsistent with DCP 2023 in two further ways. Firstly, it varies Control C-10 of Part D, Section 13: Amenity of DCP 2023 as the extended trading hours are sought in an area which is not located in one of the seven nightlife precincts in the NADS. Secondly, it varies control C-11 in the same section of DCP 2023 as the pub is not a low impact venue. Those controls are:

C-10. Late-night development (after 12am - midnight) is not located outside the seven nightlife precincts identified in the Newcastle After Dark, Night-time Economy Strategy.

C-11. Growth in the late-night economy must represent low impact venues to facilitate continued progress in venue diversity.

1. The relevant objections of Section 13: Amenity are as follows:

...

6. Concentrate the night-time (after 9pm) and late-night (after 12am - midnight) economy in the seven nightlife precincts: East End, Civic-CBD, West End, Hamilton, Darby Street, Honeysuckle, and Junction-Merewether and support safe and activated public places after dark.

7. Ensure that commercial development does not generate adverse amenity impacts on residential and other sensitive land uses.

1. DCP 2023 defines a low impact venue as follows:

Low Impact Venue - A venue will be classified as low impact or otherwise throughout the development assessment process based on relevant matters for consideration. A low impact venue may be a small bar or smaller local business that contains low levels of impact on the surrounding environment. A Pub (as defined under LEP 2012) is not a low impact venue and would automatically be classified otherwise due to potential for larger or more cumulative impacts on the surrounding environment.

1. NADS is relevant to the assessment of the development application in two ways. Firstly, in the application of control C-10 in Section D4 Commercial. Secondly, as a council policy that is part of the consideration of the public interest at s 4.15(1)(e) of the EPA Act.
2. NADS encourages late night trading in seven nominated "nightlife precincts" and acknowledges that major town centres across the local government area support minor night clusters. This approach is detailed in NADS as follows [emphasis added]:

Section 7.2: Precinct Planning

Newcastle After Dark has embraced the emergence of district precincts. Acknowledging that night-time activity happens in a variety of locations across the city and each has a diverse local character and identity, mix of offerings and cultural dynamics. The majority of Newcastle's night time economy takes place across seven nightlife precincts: East End, Civic CBD, West End, Hamilton, Darby Street, Honeysuckle, and Junction-Merewether. These precincts are existing City of Newcastle planning elements, and are established ways of understanding the nightlife areas of the city centre.

...

(Exhibit 2)

1. It is agreed that the site is not located within one of the seven identified planned nightlife precincts under NADS. Further, the planning experts agree that NADS does not limit trade to these seven "nightlife precincts" but does aim to strategically encourage clustering of nighttime development.
2. NADS considers two further regimes for the development of late nightlife precincts. The are categorised under Section 7.3: Cluster Planning and Curation as:

1. Planned Cluster: A self sufficient planned arrangement of venues and spaces collectively targeting night time leisure.

2. Organic Cluster: An unplanned grouping of venues around appropriate public spaces and facilities, often led by a cultural focus or leisure theme.

3. Emerging Cluster: A cluster currently growing in popularity as a destination, and progressively gathering additional cluster characteristics.

(Exhibit 2)

1. Mr Rippingill argues that the pub falls within an organic cluster, or as a minor night cluster in a major town centre. In both ways he argues that the proposed extended trading hours for the pub are consistent with NADS and do not rely on a variation to the controls in DCP 2023 as the objectives of the control are met. He points to the fact that the pub is located on the same block as Wests and nearby public facilities led by cultural facilities, in particular sporting fields, stadiums, showgrounds, and entertainment facilities. On this basis Mr Rippingill argues the development application is consistent with NADS.
2. In addition to arguing the extended trading hours are consistent with NADS, Mr Rippingill argues that the pub could also be considered a low impact venue. He states:

"49. With the right suite of measures (such as Acoustic Assessment recommendations and adoption of a Plan of Management) and compliance monitoring (such as through a trial period) there is no reason why a pub cannot be considered a low impact venue. Subject to the resolution of Contentions 3, 7, 8 and 10 by other experts, approval of the Application would have no impact on the character of the locality and thus would be a low impact venue."

(Exhibit 8)

1. 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.
2. 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.
3. 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.
4. 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.

1. 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.
2. 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]).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
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.

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

1. 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.'

1. 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.
2. 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.
3. 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:
4. 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."

• by the applicable planning controls (in this case LEP 2012 and DCP 2023) but not exclusively, the existing development that forms the built context of the site is also relevant: Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161;
• the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [20];

1. Given my findings earlier in the judgment the development proposed is compliant with the controls in LEP 2012 and is either compliant with, or achieves the objectives of, the relevant controls in DCP 2023. The applicable planning controls support a conclusion of compatibility.
2. Further, the existing development in proximity to the site (see [13-14]) is relevant and includes a number of licensed late night trading venues. In particular it is appropriate to give weight to the adjoining Wests development which occupies a significant footprint within the bounds of locality agreed by the planning experts. These factors support a conclusion that the proposed development is capable of existing in harmony with the existing urban context of the site and its existing uses.
3. To the extent that it can be argued that DCP 2023 seeks to change the late- night character of Newcastle by restricting late night economy to the seven precincts, these provisions cannot be interpreted without reference to existing venues within the LGA. Existing late night trading venues exist in close proximity to the pub and are part of the character of the locality. Late night trading in the locality is not an element of the character introduced by this development application. Further, the development application seeks to extend the trading hours of an existing venue that is also part of the character of the locality. The pub is likely to remain part of the future character of the locality.
4. Finally, in my assessment the pub seeks to operate for these extended trading hours in a manner that is compatible with both the existing and future character and with no unacceptable adverse impacts on adjoining residential properties.
5. On the evidence and the above reasoning the Respondent's contention that the extended trading hours sought in the development application is incompatible with the area is not made out.

1. As required by cl 6.5 of LEP 2012 in determining the development application I have considered the impact of the extended trading hours on public safety. I find that any impact on public safety is adequately mitigated and managed to a satisfactory level by the amendments to the development application, including the VMP, and the annexed conditions.
2. I have found that none of the contentions raised by the Council have been established as grounds for refusal of the development application and I am satisfied that the proposed extended trading hours will not impact on the amenity of surrounding properties or the character of the neighbourhood. Further, there are no jurisdictional impediments to the grant of development consent subject to the annexed conditions.

(1) The appeal is upheld.

(2) Development application DA2022/00844, seeking consent for the alteration of trading hours of the General Roberts Hotel located at 258 Lambton Road, New Lambton (at Lot 101 in DP 561894), is determined by the grant of consent subject to the conditions of consent in Annexure A.

(3) That the Exhibits with the exception of Exhibit A and 1.

Commissioner of the Court

Annexure A