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[2009] NSWLEC 1321
Land and Environment Court (NSW)
2009-06-04
Original judgment source is linked above.
35 The external semi-enclosed courtyard when used after midnight and before 3am shall be restricted to a maximum of ten (10) persons at any time. No drinking is to occur in this area between these hours.
36.1 The rear courtyard acoustic walls shall be reconfigured and constructed to a height of not less than 3 metres above the finished courtyard level. The maximum height of the courtyard wall shall be no more than 4 metres above existing ground level and its external colours are to be in keeping with the external colours of the hotel building. The wall can be constructed of masonry, lapped and capped timber fencing, clear polycarbonate, modular wall system, cement panelling and timber framework or an acoustic equivalent. Details to be provided to Council for approval prior to extended hours of the hotel commencing.
Acoustic absorption panels to 50% of the internal walls of the semi-enclosed external smoking area shall be provided. These panels are to be 50mm thick fibreglass building blanket (35 kg/m2) faced with perforated metal, or timber. 36.2. The external semi-enclosed smoking area is to comply with the restrictions and requirements of the Smoke Free Environment Act 2000 and the Smoke Free Environment Regulations 2007.
36.3. Doors, windows and other openings (including the airlock to the smoking area) are to be kept closed except when patrons are leaving the ground floor public bar.
36.4. No speakers or PA systems are to be used in any external areas or the semi-enclosed smoking area between the hours of 12am to 3am, excluding emergencies.
Development Consent DA 0733/04 5. Addition of the following conditions in Development Consent DA 0733/04: 9. (a) The hours of operation of the premises are to be restricted as follows: (i) 5.00 am Friday to 2:00 am Saturday; (ii) 5:00 am Saturday to 2:00 am Sunday; (iii) 5.00am - midnight - Monday to Thursday; (iv) 10.00am - midnight on Sunday, (b) The hours of operation detailed in (a) above are for a trial period of twelve (12) months from the date of this modified consent notice. A Section 96 application will be required to be submitted to Council prior to the expiration of the twelve (12) month period for the continuation of the hours detailed above.
17 The external semi-enclosed courtyard when used after midnight and before 3am shall be restricted to a maximum of ten (10) persons at any time. No drinking is to occur in this area between these hours.
18.1 The rear courtyard acoustic walls shall be reconfigured and constructed to a height of not less than 3 metres above the finished courtyard level. The maximum height of the courtyard wall shall be no more than 4 metres above existing ground level and its external colours are to be in keeping with the external colours of the hotel building. The wall can be constructed of masonry, lapped and capped timber fencing, clear polycarbonate, modular wall system, cement panelling and timber framework or an acoustic equivalent. Details to be provided to Council for approval prior to extended hours of the hotel commencing.
Acoustic absorption panels to 50% of the internal walls of the semi-enclosed external smoking area shall be provided. These panels are to be 50mm thick fibreglass building blanket (35 kg/m2) faced with perforated metal, or timber. 18.2. The external semi-enclosed smoking area is to comply with the restrictions and requirements of the Smoke Free Environment Act 2000 and the Smoke Free Environment Regulations 2007.
18.3. Doors, windows and other openings (including the airlock to the smoking area) are to be kept closed except when patrons are leaving the ground floor public bar.
18.4. No speakers or PA systems are to be used in any external areas or the semi-enclosed smoking area between the hours of 12am to 3am, excluding emergencies.
T A Bly Commissioner of the Court ljr
1.0 Introduction This document sets out the methods by which the Hotel Management will address potential issues that may be of concern to neighbours of the Hotel, the Police, Council, the OLGR and the owners of the Hotel.
The key aspects of the Management Plan relate to: - The hours of operation of the Hotel. - Responsible Service of Alcohol. - Patron behaviour and patron control. - Security issues. For assistance in understanding this Management Plan a Floor Plan has been included as Schedule 1 and a Site Plan has been included as Schedule 2. Detailed on the Floor Plan are:
CCTV Camera Positions CCTV Control position/monitors Speaker Positions Speaker Control Positions Location of external Plant Waste Collection and Storage points
Detailed on the Site Plan are the Security Patrol Areas.
(a) Monday through to Wednesday 5.00am - 12.00am (b) Thursday 5.00am - 3.00am (c) Friday 5.00am - 3.00am (d) Saturday 5.00am - 3.00am (e) Sunday 10.00am - 12.00 midnight.
2.2 No live music entertainment on Thursday, Friday or Saturday is to extend past 12.00 am. 2.3 Liquor Service will cease 15 minutes prior to close of trade.
3.0 Patron Capacity On any day or night when the premises trades after midnight the number of patrons is not to exceed 250 at any one time.
4.1 Responsible Service of Alcohol 4.1.1 It is the Management policy, in addition to being a condition of the Liquor Licence that all laws are complied with, in particular with regard to the sale/consumption of alcohol on the premises.
4.1.2 It will be the Management's responsibility to educate the staff in order to help ensure the safety of customers. The Management's primary responsibility is for the safety and well being of all the patrons, staff and Management.
4.1.3 Staff and the Manager on duty will be responsible for not serving alcohol to intoxicated persons and minors or allowing intoxication on the premises.
4.1.4 Management and staff are responsible for adhering to all the policies on alcoholic beverage service.
4.1.5 Prior to any staff member serving alcoholic beverages, they must undergo and complete a Responsible Service of Alcohol Course approved by the Authority (NSW Casino Liquor and Gaming Control Authority).
4.1.6 Food in the form of a light meal will be available on the premises during all trading hours.
4.2 Identification Policy 4.2.1 A strict identification policy will be enforced to ensure that proper, valid identification of age is presented upon request before patrons are allowed to enter the premises. Minors may enter to attend the Bistro & Beer Garden area only if accompanied and in the immediate presence of a parent or guardian. No children will be permitted to the gaming area that is screened from view. 4.2.2 The Management will only accept the following as forms of identification: * A valid driver's licence with a photo; or * A valid passport with photo; or * A valid Photo Card.
4.3 Gambling The Management will focus on the following measures and strategies in relation to gambling: - Management and security personnel will be vigilant to make sure there is no underage gambling on the premises. - Brochures are & will be available to provide information about gambling responsibility and contact phone numbers available for problem gambling. - Signs are & will be displayed advising the unavailability of credit. - Signs are & will be displayed advising of the availability of problem gambling counselling services. - Links are & will be established with community organisations in the area such as problem gambling and other counselling services, health centres, local doctors, hospitals, local councils, legal centres and welfare organisations. - All signage required to be placed on or in the immediate vicinity of any gaming machine in the premises are & will be so placed. Management will conduct on a weekly basis an audit to ensure such signage remains posted as required,
5.1.1 All Security Personnel will: - Be licensed under the appropriate Security Industry legislation and have completed a recognised RSA course. - Wear distinctive uniforms that display "Security" and wear a badge with their name and security licence number. - Maintain a well-kept, tidy and professional appearance and be at all times easily recognisable to other staff and patrons. - Be respectful of people and treat people in a dignified manner. - Maintain and carry in working order effective communication devices (walkie-talkies) in order to facilitate effective communication with all other security personnel on duty at the Hotel and Hotel Management. 5.1.2 Management will, on nights when the premises trade through the extended hours ensure that security is available at the premises provided on a ratio of 1:100 patrons or such additional security as is deemed necessary by Management having regard to anticipated trading conditions.
5.1.3 The minimum level of security required for the Hotel may be varied by agreement between the Local Licensing Officer for the area and the Licensee provided that notice of such change is given to the Authority.
5.2 Security Officers Duties during Extended Trading Hours
5.2.1 General patrolling the area of the Hotel in the immediate proximity of the premises from 9.00pm till the last patron has left the immediate proximity of the premises.
5.2.2 General patrolling of the internal areas of the Hotel to ensure compliance with harm minimisation principles of the Liquor Act. 5.2.3 Prevention of food and drink entering the Hotel.
5.2.4 Prevention of any glassware leaving the Hotel (other than packaged liquor sales allowed under the Hotel Licence).
5.2.5 Ensure that all patrons leaving the Hotel do so quickly and quietly and from 12.00 midnight onwards and continually request patrons leaving the Hotel to do so quickly and quietly. 5.2.6 Assist patrons leaving the premises by either arranging taxis or assisting patrons onto the courtesy bus provided by the Hotel.
5.2.7 All staff and security personnel will ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the area.
5.2.8 Report to Police any drinking or antisocial behaviour of persons in the area (be they by patrons or other parties) in particular in any Alcohol Free Zones in the locale of the Hotel premises.
5.2.9 Prevent any patron or person (other than staff) entering the Hotel premises after 12.00 midnight (other than from the external smoking area).
5.2.10 Ensure that one security guard is stationed at the rear exit/entrance to the Hotel from 12.00 midnight till close of business.
5.2.11 All employed security officers are to perform security duties only and are not to be employed or used for other duties at the hotel.
5.2.12 Security will supervise vehicles vacating the car -park areas to ensure any patrons exit in a responsible manner, any patrons leaving in vehicles in a manner deleterious to the amenity of the immediate locale of the Hotel will be recorded and where appropriate/possible patrons counselled.
5.2.13 If queuing outside the premises does occur, management will ensure adequate numbers of security are in attendance and are to erect if necessary: - temporary ropes and bollards; - maximum queue numbers will be set determined by the nature of the event or occasion giving rise to such any queue; and - staff will ensure all patrons queuing to enter the premises behave in an orderly manner.
5.2.14 From 9.00pm until 3.30am (or until the last patron has left the area - whichever is the earlier) on the following morning; (i) 1 or 2 Security will patrol the area of the Hotel, including the car park of the Hotel to ensure that patrons do not loiter or linger in the area or cause nuisance or an annoyance to the neighbourhood. (ii) 1 or 2 Security will regularly (at least every hour) patrol along Richmond Road 300 metres either side of the Hotel (such patrols to be at the discretion of Management in inclement weather) in accordance with the arrows on the Site Plan at Schedule 2. (iii) A minimum of 1 licensed uniformed security guard will be at each entry or exit point used during the extended trading hours from 12.00 am. Only the rear door will be utilised for entrance/egress to the Hotel from 12.00 midnight (apart from emergencies). (iv) On Thursday, Friday or Saturday nights when extended trading hours are utilised a minimum of 2 licensed uniformed security guards will be employed at the premises from 9.00 pm until 3.30am or until the last patrons have left the area (whichever is the earlier).
5.3.1 The Management shall direct Security to refuse entry if guests: * Do not meet the dress code requirements; and/or
5.3.2 Guests must at a minimum be dressed in smart or casual attire, wearing suitable footwear having regard to the locality of the Hotel.
5.3.3 No guests will be allowed access (except from designated smoking areas) to the Hotel building on Thursday, Friday or Saturday after 12.00 am.
Management will ensure that security personnel monitor and maintain occupancy/capacity levels in the premises in accordance with their approved capacity of the Hotel (as from time to time provided for in any entertainment approval or relevant standard).
6.1 Incident Report Management will provide the premises with an Incident Register in the Form issued by the OLGR. Management or security shall record in the "Incident Register" details of any matters upon which security has reported. Security or Management shall note in the incident register details of all incidents as provided for in the Incident Register.
The Hotel shall make known to any complainants the Hotel phone number. Any complaints received must be directed to the Manager on duty who must upon receipt of such complaint;
a) Enter same into the Complaints Log to be kept at the Hotel; b) Investigate the complaint and take any action necessary to alleviate any disturbance to the quiet and good order of the neighbourhood if necessary; c) Record details of what action has been taken; d) Ensure that the complainant is spoken to the next day to determine that action taken to successfully resolve the matter complained of.
6.3 Operational Management Report An Operational Management Report shall be kept on a daily basis identifying the nature of entertainment, the approximate number of patrons and the time of closing.
6.4 Security Telephone number The Tavern's management shall (during times that the Tavern is) trading arrange for the display of a telephone number at the premises to clearly identify a number to be rang in relation to any complaints or issues in relation to the operation of the Tavern.
7.1 Provision of Bus Service The Hotel shall provide a bus service on Friday & Saturday nights for patrons to utilise upon their departure from the premises. The route of that bus service will be displayed inside the entrance to the premises. Announcements will be made from 11 pm to close of business that the bus service is available and the times that it will be leaving. Security is to register the names of any patrons wishing to utilise the bus service and advise such patrons when the bus service is leaving. Security will ensure that patrons waiting for the bus remain inside the premises. Security will use their best endeavours to ensure that those patrons waiting for the bus service are notified that the bus is leaving at least 5 mins prior to its departure. The Bus Driver is to remain in contact with Security and shall advise security when he/she they are returning to the Hotel.
A daily log shall be kept identifying the number of patrons using the bus service. The daily log shall also include any incidents associated with the use of the bus.
8.0 Signage Board The Licensee will erect a signage board, at the entrance and exits of the Hotel, which shall include appropriate notice as to available transport and policies relating to leaving the Hotel area. That signage board will also have clearly written on it that no glasses are to be taken from the premises together with a request that patrons leave quietly. The signage posted will advise of the availability of the Hotel bus service including the route the bus service takes and the expected departure times from the Hotel as well as the capacity of the bus.
Separate signage will be provided to inform patrons of the "lock out policy". 9.0 Entertainment & Acoustic Measures
Entertainment and acoustic measures will be carried out in accordance with this Management Plan.
10.1 Management will ensure all CCTV cameras are operating in accordance with manufacturers specifications and any fault is rectified as soon as practicable after detection.
10.2 Management will adopt as a minimum the OLGR guidelines on the provision of CCTV cameras in licensed premises.
10.3 CCTV surveillance recordings will be maintained for 28 days in normal circumstances.
10.4 Management and or appropriate staff will provide copies of any footage recorded within a reasonable time of any request by an appropriate officer of the NSW Police Service, the OLGR or Council.
11.1 Noise from the Licensed Premises - The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5 Hz - 8 kHz inclusive) by more than 5 dB between 07:00am and 12:00 midnight at the boundary of any affected residence. - The noise level emitted from the licensed premise shall not exceed the background noise level in any Octave Band Centre Frequency (31.5 Hz - 8 kHz inclusive) between midnight and 07:00am 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 house of 12:00 midnight and 07:00am. For the purposes of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licensed premises.
11.2 Noise from mechanical plant installed on the Premises - The LAea noise level emitted from mechanical plant installed and operated on the Premises shall not exceed the background noise level by more than 5 dB when assessed at any point on a residential property. In accordance with assessment procedures recommended in the DECC, IMP modifying factor corrections shall be applied to the source noise to account for tonality, intermittency, etc. 11.3 All speakers shall be removed from the front (Richmond Road frontage) of the Premises.
11.4 No entertainment shall be provided in the courtyard at any time.
11.5 No amplified sound shall be permitted in the rear courtyard between 7.00pm and 12.00 mid-day, seven (7) days a week.
11.6 The rear courtyard acoustic walls shall be reconfigured and constructed to a height of not less than 3 metres above the finished courtyard level. Details to be provided to Council for approval prior to construction.
11.7 Sound absorption panels shall be applied to 40% of the internal walls, equivalent to 50mm thick 35kg/m2 fibreglass faced with perforated metal or timber providing an open area of not less than 21%.
11.8 Access to the rear courtyard when entertainment is provided inside the premises when-shall be via the rear sound lock door arrangement only.
11.9 The sound lock servicing the courtyard shall be reconfigured such that one door is closed at all times.
11.10 After midnight a maximum of 10 persons shall occupy the rear courtyard and their activities limited to smoking only (no drinking).
11.11 Amplified sound is not permitted for private functions held within the rear courtyard.
11.12 All amplified sound equipment installed on the premises shall be installed and operated with sound limiting controllers.
11.13 Access and egress for the Premises between 10.00pm and midnight shall be restricted to the rear door and one front door.
11.14 Access and egress for the Premises after midnight shall be restricted to the rear door only.
11.15 Patrons waiting for transport shall not congregate outside the Premises after 10.00pm.
11.16 No patrons shall be permitted to consume beverages provided at the Premises outside the licensed area.
11.17 The fire doors servicing the Premises shall be acoustically upgraded or replaced with a sound lock.
11.18 The fire door shall be fitted with an automatic switch installed to shut off power to the bar lighting if the doors are opened after 10.00pm or when any amplified music is provided within the Premises.
11.19 Prior to occupation of the Premise for the extended hours of trading an acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations have been implemented and effective. A report shall be submitted to Council for approval prior to extending trading hours.
11.20 During the first two weeks of trading an acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations are operating effectively and the level of noise emitted from the Premises satisfies the approval noise conditions. A report shall be submitted to Council to present the findings.
11.21 Within six (6) months of trading a second acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations are operating effectively and the level of noise emitted from the Premises satisfies the approval noise conditions. A report shall be submitted to Council to present the findings.
11.22.1 There is to be no entertainment in the rear courtyard at any time.
11.22.2 The speakers affixed to the rear wall of the tavern are not to be used after 7.00pm.
11.23 Internal music and other noise sources after midnight 11.23.1 Noise from any DJ or juke box shall not exceed 85 dB(A) measured at 2.0m from the noise source.
11.23.2 Noise from any TV shall not exceed 80 dB(A) measured at 1.0m from the noise source.
11.23.3 No microphones, public address systems, or projections are to be used after midnight.
11.23.4 No live music bands are allowed to perform after midnight. 11.24 Emergency doors in front (northern) elevation of eastern public bar facing Richmond Road 11.24.1 The emergency doors in the front (northern) elevation of the eastern public bar are to be acoustically upgraded to include 9.8mm compressed sheet 11 on the outside with a centric rebate of not less than 25mm, plus an acoustic seal.
11.25 Restriction of use of rear courtyard area to smokers only after midnight
11.25.1 The rear courtyard is only to be used by no more than ten (10) smokers after midnight.
11.25.2 Access by smokers into the outdoor courtyard area is to be via the exit with the air lock door.
11.25.3 A sliding gate or similar shall prohibit access to the rear courtyard for the main rear entry of the Tavern for operation after midnight.
11.25.4 The area designated as a smoking area is to comply with the restrictions and requirements of the Smoke Free Environment Act 2000 and the Smoke Free Regulation 2007.
11.25.5 No consumption of alcohol is permitted in the outdoor courtyard area after midnight.
11.26 Front (northern) elevation facing Richmond Road
11.26.1 The verandah seating area adjacent to the front (northern) elevation is not to be used by patrons at any time when entertainment is being provided and not after 10.00pm on other occasions.
11.26.2 Patron access after 10.00pm on any night is to be restricted to the rear of the premises. 12.0 Amendment to this Plan
If, in circumstances where experience shows that it is reasonable or desirable to modify any provision of this plan for the better management of the Clarendon Tavern, that modification shall be made to the plan only after consultation with Windsor LAC and upon receipt of the consent the Hawkesbury City Council's Director of City Planning, of which such consent shall not be unreasonably withheld. The provisions of this plan shall be reviewed in writing by the Applicant at least once each year. The written review shall be provided by the Applicant to Windsor LAC and Hawkesbury City Council, Director of City Planning.
........................................ ……………………………………….. Licensee Pacific Islands Express Pty Limited
………………………………….. Sanders Hospitality Management & Consulting
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.
Pacific Islands Express Pty Ltd
Hawkesbury City Council
CITATION : Pacific Islands Express Pty Ltd v Hawkesbury City Council [2009] NSWLEC 1321
CASES CITED: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199
(2001) 51 NSWLR 599