Tunborn Pty Ltd v Rockdale City Council

CASES CITED: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99

APPLICANT Mr M Staunton, barrister instructed by Mr K Stapleton of JDK Legal LEGAL REPRESENTATIVES:

RESPONDENT Mr J Cole, solicitor of HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10885 of 2009 Tunborn Pty Ltd v Rockdale City Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (council) of an application under s 96(6) of the Environmental Planning and Assessment Act, 1979 (EPA Act) to modify development consent (2009/57) for the Bexley North Hotel at 187 Slade Road, Bexley (the site). 2 Council granted development consent on 1 December 2008 for internal and external alterations to Bexley North Hotel, subject to conditions (the 2008 consent). The s 96 application seeks to amend condition 9 of the 2008 consent. Condition 9 reads as follows: The proposed hours of operation of the existing premises, a new alfresco gaming area shall be 5am to 12 midnight Monday to Thursdays, 5am to 1am Fridays and Saturdays, and 10am to 10pm Sundays. 3 The s 96 application initially sought to modify Condition 9 to permit the following hours of operation for the hotel: 9am to 12 midnight Monday to Thursday: 9am to 1am Friday and Saturdays: 9am to 12 midnight Sundays. With extended hours of operation (for a trial period of twelve months) for the bar, bistro and gaming areas as follows: 12 midnight to 4am Monday to Thursdays; 1am to 6am Fridays and Saturdays. 4 The applicant has now agreed to reduce the current hours of operation of the entertainment area and the outdoor beer garden to 12 midnight on Friday and Saturday nights (a reduction of one hour). The applicant has also reduced the area of the bar for which extended hours are sought, has limited the patron numbers to 60 for the extended trading hours and does not seek to trade past 10pm on Sundays for any part of the hotel. 5 The application also proposes amendments to other conditions in the 2008 consent and new conditions, which include maximum noise levels, compliance with a plan of management (POM), security arrangements and monitoring of compliance during the trial period. Site and its locality 6 The site is on the corner of Slade Road and Sarsfield Circuit, at the northern edge of the Bexley North commercial precinct. It is occupied by a single story hotel building, which dates from about 1958. Separate hotel accommodation is located on the Sarsfield Road frontage of the site. To the west, the hotel adjoins a council car park, which is accessed via Slade Road. 7 The site adjoins a residential flat building (22-40 Sarsfield Circuit) to the south. This building has ground floor commercial uses and an arcade, which connects the council car park to Sarsfield Circuit. 8 Other residential flat buildings adjoin the car park and front Sarsfield Circuit. Residential flat buildings are located to the north of the site across Slade Road. The western side of Sarsfield Circuit is developed with single dwelling houses, which front Irwin Crescent. Background 9 The history of the application, the operation of the hotel and complaints is contained in the Statement of Facts and Contentions and the report to the council meeting of 5 August 2009, which recommended approval of the s96 application. 10 The hotel is operating under the hours of operation in condition 9 of the 2008 consent. Prior to this consent, there was no development approval that restricted the hours of operation of the hotel, which operated under the hours of operation approved by the Liquor Licensing Board in March 1999. This included 24 hour trading, Monday to Saturday. As I understand, the approval of these hours by the Licensing Board was granted on the basis of a development consent being granted, however, no such consent has been granted. Planning Framework 11 The site is zoned 3(a) General Business under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposal is permissible with consent. The site adjoins a Residential 2(a) zone on the opposite side of Sarsfield Circuit. 12 Clause 12(3) of LEP 2000 provides: Except as otherwise provided by this plan, consent must not be granted for development on land within a zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of the zone. 13 The objectives of the 3(a) zone are: (a) to encourage appropriate business activities which contribute to economic growth and employment opportunities in the area, and (b) to provide a range of retail, commercial and professional services in appropriate localities, and (c) to promote urban consolidation policies by permitting the establishment of additional residential space in the form of mixed developments. 14 The parties disagreed on whether cl 12(3) applies to a s 96 application. Mr Cole, for the council, submits that it does apply. Mr Staunton, for the applicant, submits that it does not as it refers to consent for development and a s96 application is not a development consent. Nonetheless, he submits that the proposal is consistent with the objectives of the zone. 15 It is not necessary for me to adjudicate on the competing submissions in relation to the applicability of cl 12(3) to a s 96 application, but rather to determine whether the proposal is consistent with one or more objectives of the 3(a) zone, principally, whether the proposal is an appropriate business activity in an appropriate locality. This assessment is largely based on the impacts of the proposal on the amenity of surrounding residential development, which I discuss later in the judgment. 16 Rockdale Development and Control Plan 67, Crime Prevention through Environmental Design (DCP) is also relevant. Part 4 includes special requirements for different types of development. Clause 35 provides the following objectives and design suggestions for trading hours for commercial and retail development: Objective to provide adequate security to premises with extended hours of operation and to areas surrounding those premises.

Design suggestions Allocate security guards to patrol the area surrounding the building and instruct patrons when they leave the building to be mindful of residential uses in close proximity and to keep noise levels down. Issues and Evidence 17 The Court visited the site and heard evidence from residents whose principle concern was that the operation of the hotel has unacceptably impacted on their amenity. In particular, the residents referred to the use of the entertainment area as a nightclub, which had resulted in noise and music from the premises as well as noise and antisocial behaviour and from people outside the venue in the early hours of the morning. The residents were also concerned that there had been little response to their complaints from either the hotel or relevant authorities. They noted that since the nightclub had ceased operation, incidents had reduced. Other than a party on Anzac Day in the hotel accommodation, the residents did not refer to any recent incidents. 18 The residents of 20-40 Sarsfield Avenue were concerned about antisocial behaviour in the arcade and car park in their building. They stated that council has refused requests for the arcade to be closed after business hours. This would appear to be a reasonable option to limit anti social behaviour in the arcade, however, it is not a matter that can be dealt with under the current application. 19 The Court heard planning evidence from Ms N Sadek, for the council and Mr J Lidis, for the applicant. Mr G Atkins, for the council and Mr N Koikas, for the applicant, provided acoustic evidence.

Residential amenity 20 The key contention between the planners is the potential for adverse impacts resulting from the proposed extended hours on the amenity of residents in the nearby residential units of the dwellings. Mr Lidis acknowledged the sensitivity of the nearby residential development in both the 3(a) and 2(a) zones, and agreed that: The site is unsuitable for extended trading hours if the activities involve entertainment, large number of patrons and the hotel markets itself as a destination hotel. 21 Mr Lidis stated that the proposed extended hours for the proposed use are acceptable because it is of low intensity being limited to a small part of the hotel with limited numbers, providing only gaming facilities and a small bar area. In his opinion, the hotel would not become a destination hotel during the extended hours, as it will primarily be used as an attractor for people using the gaming facilities. Consequently, there would not be any significant adverse impacts on the amenity of the surrounding area. 22 Ms Sadek considered that the previous operation of the hotel has demonstrated that it is not suitable for late night trading, as there had been adverse impacts on the amenity at nearby residences. Ms Sadek relied on the history of complaints outlined in the council report, the resident evidence given on site and at a public meeting in formulating her opinion regarding the unsuitability of the site for late night trading. She acknowledged that there had been no complaints since the 2008 consent had become operational. She also accepted that past performance of an unregulated hotel would not be the basis for the assessment of a regulated hotel, and that a trial period is an appropriate way to assess any impacts from the operation of the extended hours. 23 Ms Sadek also acknowledged that the controls proposed in the POM and the conditions were acceptable provided they were implemented and monitored. She accepted that one additional security guard was adequate up to 1.30am, provided the route was extended into Sarsfield Circuit and the car park, and that a staff member attended the door for the few minutes when the security guard was on patrol.

Noise 24 The residents identified noise from within the hotel and from patrons using the car park and surrounding area as the main impact of the hotel. They were particularly concerned about music and entertainment during the existing hours of operation of the hotel, and any proposed extension of these activities would be unacceptable. 25 Mr Koikas and Mr Atkins have agreed on the background noise levels and the appropriate criteria for noise levels from the operation of the hotel with the exception of sleep disturbance. The experts have also recommended conditions requiring works to be carried out to ensure that the existing operation of the hotel, particularly the entertainment area, beer garden and alfresco gaming area, meet the noise criteria. The applicant has agreed to carry out these works prior to the commencement of the extended hours. 26 The noise experts have also recommended an in-house sound system with a compressor limiter be installed in the entertainment area, and that no other sound system be used in this area or live entertainment provided. The limiter is to be set at a level to ensure compliance with the noise criteria. No bands or amplified music, other than background music are to be permitted in the hotel during the extended training hours. 27 The experts disagreed on the use of the sleep disturbance criteria. Mr Koikas stated that the existing unrestricted operation of the car park and the noise from Bexley Road and Slade Road would already breach the criterion. In his opinion, the limited use of the hotel during the extended hours would not materially add to this disturbance. Mr Atkins considered that the criterion was relevant and would be breached by the patrons using the council car park. Both experts agreed that hotel management and security could reduce noise events in the car park and minimise disturbance to the surrounding residents.

Findings 28 Both Mr Lidis and Ms Sadek recognise that the location of the hotel and the close proximity of the residential development and the potential for land use conflicts and adverse impacts on amenity. The previous operation of the hotel has clearly adversely impacted on the amenity of the residents who are understandably concerned about an increase in the hours of operation of the hotel. 29 Ms Sadek places considerable weight on the previous history of complaints as an indicator that the site is unsuited to extended trading hours. Mr Lidis accepts that the site is unsuited to extended trading hours for uses such as a nightclub or general hotel usage such as has occurred in the past. I agree with his evidence that a low intensity use operated in accordance with an appropriate management regime, for a trial period with monitoring, is appropriate. I also agree that the reduction in the approved operation hours of the entertainment area and the beer garden from 1am to 12 midnight on Friday and Saturday nights, and the works and controls recommended by the noise experts and included as conditions of consent will improve the existing situation. 30 Mr Staunton referred to the decision of Preston CJ in Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99, where His Honour outlines the weight to be given to past use. In particular, at paras 37 and 38, he states:

…. that mere unlawfulness of past use is not a relevant factor, does not mean, however, that past use - without any consideration of its unlawfulness - cannot ever be relevant.

For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of the prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 31 In this case, the proposed use is different in its character, extent and intensity to the past use, which clearly had unacceptable impacts. However, the past use provides a guide to the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. 32 The proposal seeks extended trading hours for a limited part of the hotel for a limited number of people, primarily for gaming purposes. The impacts of this use are clearly likely to be less than that of a nightclub or more extensive use of the hotel. 33 The applicant has proposed a number of conditions, which address the existing operation of the hotel as well as specific conditions for the extended hours. The impact that is most likely to have the potential to adversely affect the amenity of residents is noise. The proposed conditions will limit noise emanating from within the building to an acceptable level for the existing and proposed operation of the hotel. The security measures, including the patrol of the car park and surrounding block, will limit noise of patrons outside the hotel. 34 Given the limited number of patrons and the nature of the use, I accept that the conditions, if implemented appropriately, will limit any adverse impacts of the extended hours to a reasonable level. Further, the proposal is for a trial period during which its compliance with the conditions and the POM will be monitored. A further approval is required to continue the extended hours, at which time its operation can be assessed. 35 I note that the police did not oppose the extended hours on the basis of a six month trial. I accept that a 12 month trial, as proposed, is more appropriate so allow a sufficient period during different seasons to assess the operation of the extended hours. 36 The proposal is therefore consistent with the objectives of the 3(a) zone and is not likely to adversely impact on residential amenity. Orders 37 Orders of the Court are: 1. The appeal is upheld. 2. The application under s 96(6) of the Environmental Planning and Assessment Act 1979 to modify development consent (2009/57) for the Bexley North Hotel at 187 Slade Road, Bexley is approved. The consent is amended as set out in Annexure A. 3. The exhibits, except Exhibit D, may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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