Puruse Pty Ltd & Anor v Council of the City of Sydney

(4) HOURS OF OPERATION - FIRST FLOOR TERRACE - TRIAL PERIOD The hours of operation are regulated as follows: (a) The hours of operation of the first floor terrace are restricted to between 10am and 10pm Mondays to Sundays inclusive. (b) Notwithstanding (a) above, the use of the first floor terrace may operate between 10pm and 12 Midnight on Mondays to Saturdays for a trial period of 12 months from the date of the Occupation Certificate. (c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial will be based on, among other things , the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police." 6 Comprehensive conditions were also imposed in respect of amenity issues arising or likely to arise from the hotel's operations. 7 The Occupation Certificate was issued on, and the initial one-year trial period commenced on, 18 October 2007. 8 On 7 February 2008, well prior to the expiry of that trial period, the applicant made its application under s 96, seeking to amend the consent so that the hours of operation outlined in conditions 3(b) and 4(b) would continue on a permanent basis. 9 Council approved the modification on 22 April 2008 (D/2006/392/A), but on the basis of a further two-year trial of the hours (until 18 October 2010). As Mr Galasso SC for the applicant/appellant put it (T17.09.09, p4, LL30-31), the Council responded in "a positive way but not as positive as the applicant had sought". 10 Council's position was not that the extension of hours should be reversed, but that an incentive should remain for the operator to continue restricting any impact on the neighbours, who were concerned at a possible deterioration in amenity through poor management or a change in operator (see T04.3.09, p53, LL39ff). 11 A s 82A application was rejected, and the class 1 appeal was commenced on 14 November 2008. It was heard on 4 March 2009, and the Commissioner's judgment dismissing it was handed down on 2 April 2009. The Development Control Plan 12 At the centre of the appeal is the applicability or otherwise, and the actual application, of the Council's Late Night Trading Premises Development Control Plan 2007 ('DCP' - Exhibit A1, tab 4). 13 The DCP was adopted by Council on 10 December 2007 and came into operation on 1 January 2008, both those dates being relevantly after the grant of consent, and before the modification application. It applies to all land within the City of Sydney, which it divides into various categories. 14 The stated "main aim" of the DCP (Exhibit A1, tab 4, p86) is: "… to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties. … The controls in this DCP will provide greater certainty to the community and proponents of night trading premises in respect to appropriate operating hours and where such premises can locate. The provisions of this DCP do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions. As a requirement of this DCP it is particularly important for proponents of 'high impact' night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the development application stage and throughout the history of the operation of premises.

Late trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods.

The DCP identifies a constrained range of operating hours for night trading in areas within a predominantly residential context allows more flexible extended trading hours for premises located in places where adverse amenity impacts on residential neighbourhoods are likely to be lower and/or are considered capable of being adequately managed." 15 In s 2.2 of the DCP, the following "Objectives" for it are stated: "(a) identify appropriate locations and trading hours for late night trading premises; (b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses; (c) ensure that a commitment is made by operators of late night trading premises to good management through the implementation of robust plans of management; (d) encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City; … (g) prevent the proliferation of poorly managed high impact late night premises; … (j) provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods; … (l) ensure that appropriate hours are permitted for outdoor trading; and (m) ensure a consistent approach to the assessment of applications for premises seeking night trading hours. 16 Section 2.3 (fols 87-8) of the DCP applies it to particular "development applications for new and existing Category A and Category B premises", which are defined in s 2.4 as, respectively, "High Impact" and "Low Impact". The relevant applications are those that: " a seek approval for trading hours between 10pm and 7am the following day; b currently trade between 10pm and 7am the following day, and seek refurbishment, additions or extensions that will result in an intensification of an existing use; c seek an extension or renewal of trial trading hours as prescribed in this DCP; or d seek approval for outdoor trading beyond 8pm ". 17 Relevantly, in s 3.1 (Table 1, at fol 93), there appears a chart, in terms of which the subject premises are "Category A premises", located in what the relevant maps (in s 3.2) identify as a "Local Centre Area" (described in more detail in Appendix 1, at fols 103-4). 18 According to the chart/table, the prescribed "base" indoor trading hours for Coopers Hotel are 10am-10pm, the "extended" indoor trading hours are 10am-midnight, the "base" outdoor trading hours are 10am-8pm, and the "extended" outdoor trading hours are 10am-10pm. 19 At the end of s 2.3 the following "note" appears (at fol 88): " this DCP is not retrospective nor does it derogate from existing consents ". 20 "Trial periods" as such, "trading hours", and "plans of management" are dealt with in some detail in s 2.7, s 2.8, and s 2.9 of the DCP. Appendix 2 (fols 105-111) prescribes guidelines for plans of management. 21 Section 3.1 (fol 93) deals with "trading hours and trial periods" in the following terms: "(a) A renewal or extension of trading hours may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a plan of management (or management checklist) following the completion of a satisfactory trial period. (b) Category A and B premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory. (c) Trial periods may be permitted up to the following durations: i. First trial - 1 year ii. Second trial - 2 years iii. Third and subsequent trials - 5 years (d) Once the full range of extended trading hours are reached (as prescribed in Table 1), a DA must be lodged every 5 years to renew trading hours. (e) If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base late night trading hours; or whatever hours have been approved as the maximum trading hours prior to the commencement of this DCP)." 22 Section 3.3 (fol 98) deals with the requirement that plans of management should accompany specified types of development applications for "late night trading premises". Those applications relevant to Category A premises are:

"(a) New Category A premises; (b) Existing Category A premises that seek a renewal or extension of existing approved trading hours; (c) Existing Category A premises that seek extensions, additions or refurbishment which will lead to an intensification of that use; … (e) Applications for outdoor trading on the same lot as a Category A and Category B premises." Judgment of Commissioner Hoffman 23 In his decision delivered on 2 April 2009 ([2009] NSWLEC 1095), Commissioner Hoffman set out the background to the appeal before him (at [1]-[15]). 24 The applicant submitted in the present appeal that the Commissioner was in error when he stated (at [2]) that the DCP applied, providing for a "usual 8pm closing" time for outdoor areas (but see [18] above). 25 At pars [16]-[45] of his judgment, the Commissioner set out (1) the relevant statutory instruments and controls applicable to the proposal, (2) the Council's contentions on the appeal before him, (3) the evidence of the local residents (at [18]-[29]), and then (4) the evidence of the respective planning experts (at [30]-[45]). 26 Before me the applicant drew particular attention to pars [18] and [19], where the Commissioner noted that the Licensing Unit of Newtown Police raised no objections to the proposal, and noted that there have not been "recent s 104 complaints" to the Liquor Administration Board (emphasis added by the Commissioner, who went on to explain that the previous owner had backpackers' accommodation on the upper floor). 27 The Commissioner went on to note (at [23]) that the current operators had achieved "an acceptable balance between residential amenity and reasonable operation of the hotel", and (at [31] and [40]) that both planners had found that the first one year trial had been "successful". 28 The Commissioner set out (at pars [46]-[49]) some extracts from the DCP, including extracts from its aims and objectives, and dealt (at [50]-[54]) with its applicability to the subject premises, finding (at [54]) that the:

"evidence in this case shows that the amenity impacts of the hotel on adjoining and nearby dwellings are in a fine balance ." 29 The Commissioner concluded (at [55]) that he could find in the evidence no grounds to "curtail the provisions of" the DCP, "as applied in the existing conditions of development consent". Accordingly, he dismissed the appeal. Grounds of appeal 30 Section 56A(1) provides an avenue of appeal against a Commissioner's decision "on a question of law". 31 The grounds of appeal in the applicant's Amended Summons dated 25 August 2009 assert that the Commissioner "erred in law" in: 1. finding that the provisions of the DCP applied to the modification application. 2. (a) finding that the provisions of the DCP should be applied, and/or (b) failing to hold that the objects of the DCP had been complied with, in the absence of evidence " to the contrary of good management performance and compliance with a plan of management (or management checklist)". (The words in italics in ground 2 are adapted from s 3.1a of the DCP). Consideration 32 When reviewing, in a s 56A appeal, a decision given by a Commissioner, in a class 1 appeal, the court must not adopt what has been described as "a fine-tooth comb approach" to the Commissioner's judgment. That primary judgment has to be examined as a whole, and individual comments reviewed in that context. The s 56A appeal is not a rehearing of the merits. See, e.g. Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Castle Constructions Pty Ltd v North Sydney Council [2009] NSWCA 169 at [31]; Botany Bay City Council v Premier Customs Services Pty Ltd ("Premier") [2009] NSWCA 226 at [32]. 33 Clearly, the Environmental Planning and Assessment Act 1979 requires the Commissioner to "have regard to" the DCP in reaching his decision on the merits. The DCP is a "mandatory relevant consideration". See s 79C(1)(a)(iii) and s 96(3) of the Act, and the Court of Appeal decisions in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 278-279, (per Mahoney JA, Meagher and Powell JJA agreeing), Zhang v Canterbury City Council ("Zhang") [2001] NSWCA 167, (2001) 51 NSWLR 589, and Premier. 34 The applicant submits that the DCP does not apply to a modification application made in the circumstances of this case, because (1) the DCP was not in place when the consent was granted, (2) the "note" at the end of s 2.3 of it clearly states that the DCP cannot "derogate" from a pre-existing consent, and (3) the application is made under the terms of the consent, ie conditions 3(c) and 4(c), rather than those of the DCP. 35 The applicant submits that to apply it is "an error of law ... of significant moment" (written submissions par 33), but a strict application of that submission would render the DCP nugatory in achieving its stated aims and objectives, and I reject it. A modification application is a new application and the evidence shows that the Council applied the DCP to other s 96 applications (T 04.03.09, p15, L47 to p16, L8). 36 The respondent says that none of these arguments on ground 1 of this appeal was put to the Commissioner in any form, as a filed contention or as an oral submission, let alone in the form put to me, that both sides assumed before the Commissioner that the DCP applied, and that such submissions should not now be entertained in this appeal. 37 However, counsel for the respondent was prepared to strongly contest ground 1 on its merits in case I was against him on that primary submission. The respondent's case on ground 1 is that the DCP had to be considered, and the words of conditions 3(c) and 4(c) cannot confine the Council's discretion on the modification application, which, it is submitted, comes clearly within one or more pars (a), (c) and (d) of s 2.3 ([16] above). 38 Numerous authorities on not allowing a new argument to be raised by a party in a s 56A appeal were considered and summarised by Biscoe J in Bankstown City Council v Mohamed el Dana ("El Dana") [2009] NSWLEC 68, at [44]-[53]. Appeals heard by Commissioners are adversarial in character - Commissioners must address the real issues joined and argued before them, and the parties remain bound by the way their respective cases are conducted. Before the Commissioner in this case, counsel for the applicant submitted that the court should "give primary focus" to the DCP (T04.03.09 at p46, L38ff), as required by Zhang. 39 The applicant expressed concern that the application of the DCP could mean a "rolling series of trial periods", which would create "complexities" for, and not provide certainty to, a proponent. That submission would indicate that the applicant contended before the Commissioner that the DCP should not be applied (on a discretionary basis), rather than does not apply (as now argued in this appeal). 40 While the principles adopted in El Dana almost certainly require me to dismiss ground one, I am firmly of the view that it should not succeed in any event. 41 The Commissioner applied the DCP to his consideration of the present application, and both the Council and the Commissioner were clearly correct in doing so. 42 The "note" at the end of s 2.3 does not form part of the substantive terms of the DCP, but it can be used to inform its interpretation and application; for example, such notes can help resolve ambiguity in appropriate circumstances. (See s 35 of the Interpretation Act 1987, which does not apply to DCPs, and, eg, Pain J's observations in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109, at [42] and [46]). However, there is no ambiguity in this DCP - applying it to an application to modify a pre-DCP consent in no way either applies it retrospectively to that consent or derogates from it. 43 In the second and third grounds of appeal (2(a) and (b) in [31] above), the applicant submits that the Commissioner committed one or more errors of law in his actual application of the DCP. The applicant relies on established authorities that an error of law will exist where there is no evidence of a primary fact that is crucial to a decision: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139, at 151; Bonim Stanmore v Marrickville Council (2007) 156 LGERA 12, at [9]-[14]; Mine Subsidence Board v Vervoon (2008) 165 LGERA 346, at [153] and [157]. 44 I can find no such error. 45 Making good an "absence of evidence" ground requires a total "absence", and the Commissioner's judgment, summarised above, spells out the evidence before him. The applicant contended, in its Statement of Facts and Contentions, that the absence of official/statutory complaint requires the Council, or the Commissioner on appeal, to "entrench" the extended hours, but the DCP says that such complaints are to be considered "among other things", and the Commissioner was clearly correct in responding to objector/neighbourhood concerns, in the absence of statutory complaints. The objector concerns appeared to him, and now appear to me, to be balanced and moderate in tone. (The submissions made to Council on both the DA and the modification application were before the court). 46 The Commissioner's comment (in [54]) about "fine balance" was clearly based on the evidence that the residents were willing to tolerate current levels of impact on their amenity. (See their written submissions in Exhibit A2 at tabs 4 and 5, and the notes of their evidence on site - Exhibit 1 before the Commissioner, and tab 1 of Exhibit A1 before me). 47 The Council further contends that the expression "fine balance" is an acceptance of the submissions of the Council, concerning the evidence of the residents, by the Commissioner. In the proceedings, Ms Burns for the Council noted (T04.03.09, p9, L7ff): "…it's at a level at the moment that they are willing to tolerate but anything beyond that, they wouldn't think would be reasonable impact on their amenity. So it's a very fine balance on the basis of that evidence , … [and] any slippage I guess in terms of the standard of management would tip the level of tolerability of that impact over the edge as far as the residents are concerned." (emphasis added). 48 The Commissioner summarised the residents' evidence thus (at [25]): "they do not want the current nuisances to become worse… the trial periods provide some assurance that the existing owners and any new owners will run the hotel to the current standards." 49 The Commissioner further detailed the amenity impact on residents nearby (at [27]), and made particular reference to the resident who lives adjacent to the hotel (at [29]). 50 The applicant's submission that the finding was made without evidentiary foundation relevant to the terms of the development consent also cannot be supported. Conditions 3(c) and 4(c) allow the consent authority to consider "other things" besides substantiated complaints from statutory authorities. This leaves the Commissioner, on appeal, to have regard to other evidence, as dictated by s 79C(1), such as submissions from residents. 51 It is plain from the judgment that the Commissioner's finding (at [54]), is perfectly compatible with the evidence before him as well as his summary of the residents' evidence in [25], [27] and [29]. Accordingly, no error of law arises. 52 In respect of the applicant's third ground of appeal (2(b) in [31] above), that the Commissioner failed to find the objects of the DCP had been complied with, there was, indeed, evidence before the Commissioner demonstrating good management during the trial period. He dealt with the hotel's compliance with conditions under the DCP (at pars [48] and [49] of his judgment), and went on to find (in [54]) that "the DCP requires demonstration of long term success in hotel management maintaining that [fine] balance". 53 The Council contends that this ground of appeal canvasses issues already covered in the earlier grounds and that it should be rejected on the same bases. It further contends that the DCP's aims includes a requirement to "demonstrate responsible management over time" and "an ongoing commitment to good management" (emphasis added). 54 The Commissioner, having identified potential amenity impacts that were acceptable but finely balanced, reasonably found that the one year trial had not demonstrated "long term success", based on all the available evidence. Even if he had formally found that the aims and objects of the DCP had been complied with, he was still entitled to apply the relevant provisions of the DCP in his assessment of the s 96 modification. Conclusion 55 No error of law has been established in this appeal, and it is dismissed, with costs. 56 All the exhibits may be returned.

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