Blairgrove Pty Ltd v Burwood Council

[2019] NSWLEC 1027

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Blairgrove Pty Ltd v Burwood Council [2019] NSWLEC 1027
Hearing dates:	29 – 30 October 2018
Date of orders:	06 March 2019
Decision date:	31 January 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	Directions at [100]-[101]  See final orders at [102]
Catchwords:	DEVELOPMENT APPLICATION: hotel; pub; relative disadvantage; social impact; alcohol related harm; trading hours; street crime; amenity; noise; trial period
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Liquor Act 2007
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 Redcape Hotel Group Pty Ltd v Council of the City of Ryde [2016] NSWLEC 1497 WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161
Texts Cited:	Burwood Development Control Plan EPA NSW Road Noise Policy NSW EPA Noise Policy for Industry NSW Domestic Violence Deaths Review Team Report 2015-2017
Category:	Principal judgment
Parties:	Blairgrove Pty Ltd (Applicant) Burwood Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) T To (Respondent)   Solicitors: Hatzis Cusack Lawyers (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2017/327660
Publication restriction:	No

Judgment

1. This appeal, within Class 1 of the Court’s jurisdiction, is made under the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Burwood Council (Council) of Development Application (DA) No. 2017/41. The DA is for the change of use of an existing three-level building to a pub, and includes various building alterations associated with this change of use.

2. Council believes the application should be refused because of two related but independent contentions: (1) it would result in adverse social impact (principally by reason of alcohol related harm), and (2) it would result in unreasonable adverse local amenity impacts as a consequence of noise and antisocial activity on the part of patrons or people intending to attend the pub.

Site and Locality

3. I rely on Council’s Amended Statement of Facts and Contentions filed 31 August 2018 (SOFAC) for much of the particulars below. The site is 21-23 Belmore Street Burwood or Lot 1 DP 172938, and Lot A DP 390101. It has a total site area of approximately 201m². The site is almost square in shape with a frontage of 15m to Belmore Street to the south, a 14m western boundary, a 15m northern boundary with part access to Clarendon Lane and a 12m eastern boundary.

4. According to Exhibit A (Class 1 Application), the site is occupied by retail development at ground level, with two levels of commercial above. Two car parking spaces are provided on site.

5. In regard to the locality, the site is some 200m from Burwood Station, and approximately 50m from bus stops on Burwood Road.

6. Adjacent to the west is a two storey mixed use development (25 Belmore Street) identified as occupied primarily by retail and commercial uses. Further to the west along Belmore Street and within approximately 100m of the site are numerous residential apartments or residential accommodation, with some in medium and high density buildings.

7. The joint expert social planners’ report (Exhibit 5, p3) indicates that there are currently 21 licensed premises within 200m of the proposed site, of which two are hotels, two are clubs and the remainder are on-premises liquor licences. The Burwood Hotel is about 200m south of the site near the station and the Avondale Hotel is north of the railway line and about 300m from the site.

8. Council has previously and relatively recently permitted nearby land uses to operate until 2.00am, including the following applications:

1. Development application 35/2017 approved on 4 December 2017 at 27-31 Belmore Street for an indoor recreational centre (bowling, lounge and electronic darts) including the service of liquor

2. Development application 194/2015 approved on 21 April 2016 at 27-31 Belmore Street for karaoke rooms.

9. East of the site is a small walkway from Belmore Street which leads to the rear of the Bakery located at 167-167A Burwood Road. North of the subject site is 165 Burwood Road, and currently operates as a Restaurant.

10. Opposite the site on Belmore Street and extending to Burwood Road is 171 Burwood Road which is identified as Local Heritage Item I27 in Burwood Local Environmental Plan 2012 (LEP). The Heritage item is a two storey brick building with a number of different commercial and retail uses and, according to the owner, residential uses above the ground level.

The proposal

11. The proposal’s three levels would comprise the following arrangements:

• Ground floor – Entrances, TAB, bar, dining, smoking area.

• Level 1 – Gaming area, main bar, dining, toilets.

• Level 2 – Sports bar, dining, kitchen, smoking balcony.

12. Trading hours are proposed as:

• 9am to 2am the following day Monday to Wednesday.

• 9am to 3am the following day Thursday to Saturday.

• 10am to midnight Sunday.

The applicant indicated agreement to a condition which would adopt these trading hours as a trial for a period of 12 months, with the default trading hours as 10am to 12 midnight Monday to Saturday and 10am to 10pm Sunday.

13. Takeaway packaged liquor sales would be available over the counter until 11pm.

14. Particulars of the proposal, as provided for in the applicants Plan of Management (Exhibit M), include provision for a maximum of 250 occupants, comprising 239 patrons at any one time plus staff.

15. A voluntary planning agreement is proposed to address Council car parking requirements.

Statutory framework

16. The site is zoned B4 Mixed use under the LEP. The zone objectives are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

17. A “pub” is a permissible land use within the B4 zone, and is defined as follows:

pub means licensed premises under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises.

18. The proposal is comfortably under the Floor Space Ratio and Height Controls applying under the LEP.

19. Burwood Development Control Plan (DCP) applies to the site. The only particular of real note is the designation of the site in the Burwood Town Centre Area Map (See DCP Section 3.3.2). The falls within the “Middle Ring Area” (ie outside the “Commercial Core Area”, but both of these areas are described as the “inner parts” of the Burwood Town Centre (DCP, ibid)). Land across Belmore Street to the immediate south and south-west falls within the town centre’s “Transition Area”, and land to the south- east is within the “Perimeter Area” according to the DCP.

Site visit and objector evidence

20. The hearing commenced with a site view, at which a number of objectors spoke. The concerns of relevance can be summarised as follows:

• Noise impact on nearby residential apartments, especially given late operating hours; desire for peace and quiet at night to allow for sleep. Lots of late night noise and shouting already, considerable portion of which was suggested as associated with approved development to the west of the subject site (see [8]).

• Potential for problems with violence in the street, and associated safety concerns, again evidenced by existing problems. It was indicated Police were regularly called but take 20-30 minutes to arrive.

• Concerns with effects of smoking outside the pub in the street.

• Proposal and its facilities not needed because there are already plenty of other gaming and alcohol venues available.

21. I note also that Council’s bundle (Exhibit 1 – Tab 8 in a “Table of Objectors”) references a total of 56 objector submissions when the DA was publically notified.

Issue 1 - Social impact

Delineating social impact considerations in this appeal

22. There are a considerable number of social impact considerations raised by Council. I will consider the issue by delineating it into two subtly different although certainly inter-related considerations. The first consideration is concerned with whether this particular location is, on social impact grounds, idiosyncratically unsuitable for a pub (including ancillary takeaway liquor outlet). Here the Council relies on arguments that the site locality evidences social disadvantage to the extent that it is prone to a particular risk of alcohol related harm; and further that the site is located within certain relevant crime “hotspots”. The second consideration is more general, and argues that the proposed use will result in adverse social impacts, per se. This argument is less reliant on the pub locality and where patrons might live in respect to the site.

Locality suitability

Alcohol related harm, relative disadvantage and pub location

23. Council’s argument was that the venue would draw significant patronage from a localised, (as Council argued) relatively disadvantaged area. It then argued, with support from experts on both sides, that disadvantaged people were inclined to have a particular susceptibility to alcohol-related harm.

The mapping of disadvantage

24. Council’s social planning expert, Dr Ziller (in her individual expert report at Exhibit 4), provided demographic mapping based on small area data (known as Statistical Area Level 1 or SA1 and suggested as commonly accommodating about 400 persons) based on the 2016 census. The mapping indicated the population in the immediate site environs, and more generally around Burwood Station is subject to financial disadvantage, including high proportions of: low income households, households experiencing rental stress, people not fluent in English (which is said to limit employment prospects), and people attending university. There are also low rates of home ownership in these areas. An association was drawn with the high density housing located in these areas, and in the immediate environs of the site (Exhibit 4, p18). There was a marked differentiation with data for the remainder of the Burwood area (ie away from the town centre, and especially to the south) which shows much lower evidence of disadvantage.

25. The Australian Bureau of Statistic’s Socio-Economic Indexes for Areas (SEIFA), which now include 2016 census data, was a focus of evidence. Of the SEIFA indexes, Dr Ziller found the SEIFA Index of Relative Socio-Economic Disadvantage (IRSD) more pertinent to this case. It showed similar patterns to the financial disadvantage mapping outlined above (relative disadvantage spatially concentrated around Burwood centre with much lower relative disadvantage to the south).

26. Mr Rippingill painted a considerably different picture in his evidence on social mapping. Mr Rippingill’s spatially based data was taken principally on a suburb and LGA basis. It highlighted high relative education levels, and high proportions of persons not born in Australia (particularly from non-English speaking countries), a group at lower level risk of alcohol-related impacts, according to Mr Rippingill’s evidence. Mr Rippingill also referred to SEIFA indexes. However he preferred the SEIFA Index of Relative Socio-Economic Advantage and Disadvantage (IRSAD). This indicator showed no concerning levels of relative disadvantage in Burwood suburb or the LGA. Mr Rippingill noted the IRSD indicator for Burwood LGA indicated the LGA as falling in the second quintile, and 30 percentile (to explain: the first quintile exhibits the highest level of disadvantage and fifth quintile the lowest disadvantage). However, material from the SEIFA Technical Paper (Exhibit K, p24) was used by Mr Rippingill to argue that this (ie the suburb level IRSD indicator) was not particularly concerning given the distribution of IRSD scores in the middle deciles meant there would be little difference in scores across a moderate range. Mr Rippingill indicated Burwood LGA, at the 30 percentile, fell within this moderate range.

Considering different SEIFA indexes for use in evaluation

27. The SEIFA Technical Paper (Exhibit K) indicates the variables involved in developing the indexes cover, but also go beyond, financial factors, and include: income, education, employment, occupation, housing and other (eg jobless parents with young children, disability, poor english, no car, no internet).

28. Dr Ziller argued the particular socio-economic factor which is pertinent to social impact assessment is the presence of disadvantage in the area relevant to pub patronage. The IRSD was seen as a more accurate guide to the presence of disadvantage, whereas the IRSAD would tend to “obscure” disadvantage.

29. Mr Rippingill’s explanations to support the use of IRSAD (over IRSD) included that it was the indicator used by the Office of Liquor and Gaming and Racing in the assessment of liquor applications (Joint Expert Report, Exhibit 5, p4), which might be thought of as a justification more than an explanation. He expanded on this point in oral evidence to suggest that relative advantage was a lead indicator for less problems related to alcohol. The suggestion seemed to be that relative advantage might balance out some of the negativities associated with relative disadvantage.

The significance of local crime “hotspots”, and crime in the wider locality

30. The experts agreed that the site is in a high density hotspot for non-domestic assault and for malicious damage to property (reference BOCSAR data in Exhibit 4). It is also agreed that the local (Burwood LGA) rates of incidents for these matters (as well as for non-domestic alcohol-related assault) are lower than the State average (Exhibit 5, p10-11 and Exhibit H).

31. The experts agreed that the site is “in a medium density hotspot for domestic violence and close to a high density hotspot” (Exhibit 5, p14).

32. Mr Rippingill evidenced that the level of alcohol related domestic violence is low at one third the rate for NSW, and that according to crime data over a five year period, alcohol related crime rates (non-domestic assault and domestic assault) were relatively low in Burwood suburb and LGA (Exhibit H).

33. Dr Ziller referenced the NSW Coroner's Office, Domestic Violence Deaths Review Team's Report for 2015-2017 which recommended the following:

“For any applications pertaining to an extension of trading hours, or the development of new liquor outlets or bottle-shops in domestic violence hot spots, there should be a rebuttable presumption against granting the application.”

34. There was disagreement on the value of the BOCSAR hotspot mapping.

35. Mr Rippingill referenced a BOCSAR document entitled “Understanding crime hotspot maps” and quoted it as follows:

“LGAs with crime hotspots do not necessarily have a high count of incidents relative to other LGAs. This is because hotspots reflect the density of incidents in specific areas, not the number of incidents in the entire LGA. Hotspots are not adjusted for the number of people residing in or visiting the LGA and so do not necessarily reflect areas where people have a higher than average risk of victimisation.”

Mr Rippingill saw hotspot mapping as not more than “a tool to indicate where incidents have occurred”:

“The fact they are occurring in a CBD with a large shopping centre and railway station – places where large numbers of people gather – is not surprising.”

36. Mr Rippingill believed that in any event the potential for impacts in these areas could be managed and that:

… in the context of the low rates of incidents compared to the State average, well-advantaged area and burgeoning population that the risks are acceptable. Subject to the adherence to the Plan of Management … and good management generally, unacceptable levels of harm are not considered likely to eventuate.

37. Dr Ziller quoted the same BOCSAR document (“Understanding crime hotspot maps”) to suggest the hotspot maps as useful precisely because they show the spatial clustering of events, showing areas of “high crime density relative to crime concentrations across NSW”. A hotel at this site is likely to increase the occurrence of these crimes. She disagreed with the notion that good management within the pub would have a major beneficial effect as the referenced crime generally does not occur in the environs managed by the venue.

38. The advice from the Burwood Police Area Command (Police) (Exhibit 1, Tab7C) raised concern about late trading and is referenced in particular when trading hours are considered below. But I acknowledge the evidence that the criminal activity raised by Police in this advice was street crime (assault and damage to property) rather than domestic violence (ie notwithstanding the BOCSAR identified hotspot).

Consideration – Locality Suitability

Statutory setting

39. Section 4.15(1) of the EPA Act provides the evaluative criteria for development applications. It points directly to the consideration of social impact in a locality, providing (relevantly) as follows:

4.15 Evaluation

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

…

(b) the likely impacts of that development, including … social … impacts in the locality,

…

40. The evaluative challenge before the Court, in this matter, is in considering the substance and significance of social impact which would likely occur in the locality as a consequence of the operation of the pub; then balancing this against the other requirements under s4.15(1). I also note a point referenced in previous Court judgements, a point accepted by both parties, that as liquor outlets are a legal land use, some degree of impact is consequently deemed to be acceptable by society (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [71] and Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [75]).

This locality, the pub catchment and relative disadvantage

41. The link between disadvantage and vulnerability to alcohol related harm is argued clearly by Dr Ziller. This suggestion is not that there is more alcohol consumption by disadvantaged groups, or even more excessive drinking, but that similar consumption patterns bring greater risk of harm to disadvantaged groups. In particular the Lancet study is pertinent in its demonstration of this link (even after accounting for other disadvantage-related pathologies), and seems to align with Dr Ziller’s point that disadvantage is itself a health hazard (Exhibit 4, p31).

42. There are two sub-questions here: (1) what is the pub’s geographic catchment, and (2) how might the level of disadvantage of this geographic catchment be characterised. It would also be remiss to not consider any spatio-demographic idiosyncrasies in regard to the question of alcohol consumption relationships.

43. The Social Impact Assessment prepared by Mr Rippingill’s firm (Exhibit C) inferred the suburb of Burwood as the “local community” potentially affected by the proposed pub. It also referenced a “broader community” for the pub as being the LGA, and somewhat beyond (Exhibit C, p5). Mr Rippingill’s written evidence generally explored Burwood suburb as the pub’s catchment. However, in his oral evidence, Mr Rippingill agreed with Mr To’s suggestion that most patrons would walk to the pub, and that most would be walking from within 500m of the site.

44. Dr Ziller’s written evidence included commentary to suggest a somewhat wider spatial configuration for the pub’s patronage, with Dr Ziller’s social impact assessment providing (Exhibit 4, p7):

“The customer catchment of the hotel is likely to rely on patrons walking to the

premises or using public transport as there will be no parking on site. However, this catchment may extend a short distance along the railway line in both directions – and thus into adjacent LGAs.”

45. There is also commentary from Dr Ziller in the joint expert report, partly in response to the suggestion that the customer base may include local workers, which might suggest a narrower customer catchment (Exhibit 5, p8):

“This Hotel would be situated within an large area of relative disadvantage but on the edge of the Burwood CBD. In my opinion this means that patrons are not likely to be workers in or visitors to the CBD but residents in the area.”

46. In oral evidence Mr Rippingill indicated the “local area” to be Burwood suburb or LGA, whereas Dr Ziller indicated it to be smaller than a suburb, indicating an area within 500m of the site.

47. Most of the expert evidence considered a wider pub catchment than 500m walking distance. I consider it unreasonable to give great weight to the view expressed orally in cross examination by Mr Rippingill that most patrons would be walking from within 500m of the site, a quite confining criterion. If walking convenience was the central criterion 1000m might be a more reasonable distance to adopt. To adopt 500m walking distance would place an unrealistic weight on this proximity factor as the central pub “attractor”. This is over-simplistic in a setting like suburban Burwood, even acknowledging the higher density areas nearby (areas which as discussed below [50] also seem to exhibit some characteristics which may make residents less likely visitors to the pub).

48. My conclusion on geographic catchment is that certainly there could be a draw from nearby residents (including lower quintile areas in IRSD terms), but the pub would also draw significantly from the wider area, including the near south (including upper quintile areas in IRSD terms), and the commercial activity around Burwood centre, and from train travellers and bus travellers.

49. I now turn to the question of the characterisation of this catchment in terms of disadvantage and, partially the related link to alcohol consumption. Dr Ziller’s oral evidence along with much of her written evidence concentrated on the proximity of the IRSD Quintile 1 and 2 (SA1) areas to the site (Quintile 1 representing most disadvantage with Quintile 5 the least disadvantage).

50. Mr Rippingill preferred the IRSAD data for the suburb which shows the area as “well advantaged” (Exhibit 5, p4). Mr Rippingill challenged the extent of disadvantage even within the IRSD Quintile 1 and 2 (SA 1) areas. I note some anomalies in the link between disadvantage and IRSD, as inferred by Mr Rippingill: first, in regard to poor English as an indicator of disadvantage when compared to the indicated relatively low levels of drinking by the non-English speaking immigrant population (Exhibit 5, p5-6); second, in regard to “no car” as an indicator of disadvantage when this particular locality (near Burwood Station and buses) might be seen as having relatively less need for car dependence in regard to “ability to participate in society”. The link between disadvantage in this particular locality and high proportions of people in tertiary education also seems somewhat unconvincing.

51. While I accept the evidence that there would be many household’s located near the site which would be exhibiting severe disadvantage, the evidence is not available to support the view that patronage would be drawn solely or even principally from the IRSD Quintile 1 and 2 areas nearby. Setting aside these areas, the pub catchment exhibits low levels of relative disadvantage. Exhibit H confirms the relatively low levels of alcohol-crime in Burwood suburb over recent years, and the positive data in regard to IRSAD for the suburb has already been referenced.

52. The pub catchment would not be characterised as a setting which (unlike the case in some disadvantage parts of Sydney and areas in wider NSW) is beset by circumstances that compromise access to “material and social resources”. My principal finding on this point is that the pub’s catchment cannot be reasonably considered as a socially disadvantaged one.

The significance of crime “hotspots” and crime in the wider locality

53. I am more inclined to the opinion expressed by Mr Rippingill in regard to the significance of the crime hotspots. To say that there is a higher occurrence of crime in localities where there are more people, does not tell me much of use in assessing the merits of this application. I acknowledge the pub would be located in a quite dense part of Burwood, but this area is where the land is zoned to permit pubs.

54. I have reviewed the content of the NSW Domestic Violence Deaths Review Team Report 2015-2017 [1] , in regard to its Recommendation 14 (cited at [33] above in reference to Dr Ziller’s evidence. The report (p101-102) provides in part as follows:

As the literature indicates that domestic violence and alcohol use are positively correlated …approvals of licensing arrangements must take into account domestic violence rates within each Local Government Area as reported by BOCSAR when assessing applications for liquor sales outlets. Accordingly, for applications being determined in areas identified by BOCSAR as domestic violence hotspots, the Team is of the perspective that the (Independent Liquor and Gaming Authority) should be required to consider several additional criteria when making determinations.

1. Downloaded 3/1/2019 from:

55. The report immediately goes on to make in its Recommendation 14(1) of a “rebuttable presumption” against new liquor licenses, in areas identified as domestic violence hot spots.

56. The quotation above links “domestic violence rates within each Local Government Area” with situations where liquor license applications are sought in “domestic violence hotspots”. Evidence was presented that Burwood LGA has relatively low rates of domestic violence (at well under 50% NSW rates – Exhibit H); and there was also evidence that hotspot locations “do not necessarily reflect areas where people have a higher than average risk of victimisation” (see [35]). While I am mindful of the report, and the gravity of the topic under consideration here, there is not the required association when one considers this immediate setting to presume against the current DA in this instance. This is not a criticism of the NSW Domestic Violence Deaths Review Team or its Recommendation 14(1). Recommendations 14(2) and (3) account for local idiosyncrasies. I also note that the team’s recommendation is in regard to liquor license applications to the Independent Liquor and Gaming Authority, rather than for DAs or appeals to this Court. The team’s recommendation stands and would be a matter for attention with any license application itself. I give further consideration to the more general question of domestic violence, as compared to the location of hotspots below.

Conclusions on the locality question

57. If it were to be found that the location was unsuitable for a pub on social impact grounds, the weight of argument would need to be such as to rebut any assumption to the contrary based on the site zoning and the permissibility of the use within the zone. To contextualise I can paraphrase McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties) at [118]:

“In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

58. While “most cases” (BGP Properties, ibid) does not mean all cases, it seems to me there would need to be demonstration of a strong causal link which indicated that the existence of a pub at this site, as a particular consequence of (demonstrated) local (socio-demographic) characteristics, would result in additional alcohol consumption by at risk individuals to the extent that an unreasonable risk of significant social impact would follow. The causal link has not been established for me in my appreciation of the evidence presented in this case.

Considering more general social impacts which may be associated with the pub

59. In considering more general social impacts, I do not discount or ignore the issue of relative disadvantage. It is acknowledged that alcohol-related harm is inclined to fall most heavily on those experiencing disadvantage. In this section social impacts, and thus, most acutely, those impacts felt by affected disadvantaged persons, are considered independently of where they might live in respect to the site.

Health

60. Dr Ziller indicated that “the relationship between alcohol and health is established” and that “(alcohol) is a known carcinogen and its consumption has a number of long and short term health risks”. She suggested data “supports the view that alcohol related harm increases as the density of liquor outlets and the availability of alcohol increases” (sources were provided at Exhibit 4, p46).

61. Dr Ziller said the rate of alcohol related hospitalisations of Burwood LGA residents had been increasing since 2007 (data is provided up until 2013-15 – see Exhibit 4, p42). Mr Rippingill said that the rate is under the NSW average, with data indicating it to be “significantly below” the State average (Exhibit 4, p41).

62. It is clear that alcohol consumption brings significant health risks and related costs. However, alcohol consumption is a common societal behaviour which will continue with or without this pub. In regard to the question of density of liquor outlets, I find persuasive the uncontested particulars that this would be the first new pub in the Burwood area since 1960s, whereas the Burwood LGA population has increased significantly. I am not persuaded that this pub would provide for an overconcentration of liquor outlets to the extent that health risks would increase to an extent that warrants refusal.

Trading hours

63. Dr Ziller referenced evidence (Exhibit 4, p45) that late trading was associated with increased intoxication, violence and public nuisance. Dr Ziller indicated that the “presence of security staff will not address these issues once a patron has left the immediate vicinity of the hotel”.

64. A BOCSAR study had shown that “reductions in trading hours led to statistically significant reductions in non-domestic assaults in both Kings Cross / Sydney CBD and in Newcastle”. A reference which had involved a “systematic review of the literature” was quoted as finding:

“A series of robust, well-designed Australian studies demonstrate that reducing the hours during which on-premises alcohol outlets can sell alcohol late at night can substantially reduce rates of violence. The Australian studies are supported by a growing body of international research.”

65. The advice from Police (Exhibit 1, Tab7C) raised concerns in regard to late night trading. The concerns were in regard to the otherwise low levels of street activity in Belmore Street (thus limiting natural surveillance), and various crime and antisocial activity already occurring in the area. A particular reference is made to certain existing internet establishments having an association with this crime and antisocial activity. The concern seems to be the linking up of drinking, gambling and leaving premises late at night in this otherwise quiet location, with limited natural surveillance, would result in significantly increased crime risk. To quote from the Police advice:

“Police see potential negative impacts that may result due to the proposed operating hours because most other businesses do not operate past 10:00pm Monday to Friday and as a result there will be significantly less foot traffic in the areas for when patrons choose to leave the location after 10:00pm.”

66. The Police advice also references increased noise in Belmore Street as a consequence of pub patrons:

“The late (trading) hours are a concern in particular Sunday to Thursday nights with the business not only located in a residential area but located directly across the road from this premise are 5 levels of residential units. The later trade would most likely increase the number of calls to Police regarding noise complaints.”

67. It is noted that the Police advice included a set of recommendations, none of which suggested any direct restriction on proposed trading hours.

68. The Police concerns in regard to the association of safety issues and crime risk associated with late night trading are combined with technical evidence on noise effects of late night trading below.

Takeaway liquor sales

69. Dr Ziller referenced evidence of a particular relationship “between packaged liquor outlets and domestic violence”. Dr Ziller noted that the pub would “function as a packaged liquor outlet after bottle shops in the area have closed (most by 9.00 pm and two by 10.00 pm) and after most online sources of package liquor have ceased delivery” and that the pub “would be able to sell packaged liquor till 11.00 pm”.

70. Mr Rippingill believed that given the proximity of other similar premises there would be no noticeable increase in the availability of off-premises liquor and consequently, no likely increase in domestic violence could be expected.

71. In regard to packaged liquor sales, Dr Ziller also referenced Redcape Hotel Group Pty Ltd v Council of the City of Ryde [2016] NSWLEC 1497 (Redcape), where the question of density of liquor outlets was considered. The relevant citation on this point in Redcape (at [26]) is as follows:

The density of liquor outlets in the vicinity of the site is a relevant consideration, including whether the proposal contributes to a cluster of liquor outlets or is within an entertainment precinct, notwithstanding that the density of liquor outlets may be reflective of the zoning where the only zone in which a liquor outlet is a permissible use is within a town centre.

72. It could be that the proposal would provide a particular assistance to those seeking late takeaway alcohol and living to the south of the site (ie recognising that Burwood Hotel and Avondale are both to the north), or the high density area along Belmore Street in the immediate site environs. However the proximity of Burwood Hotel (only some 200m to the south), which can also sell packaged alcohol between 10pm and 11pm, inclines me to the view that the availability of takeaway sales would have no significant adverse social effect. I would not think the notion that three pubs in the Burwood town centre are selling packaged liquor between 10pm and 11pm (ie after other outlets closed) as a concerning clustering of liquor outlets mindful of the findings in Redcape.

Inducement to betting

73. Dr Ziller is concerned about the visibility from the street of the TAB at the ground floor level, which in her view would contribute to the likelihood of adverse social impacts arising from betting. Mr Rippingill opined that “betting availability of all sorts is regularly advertised in public and is a ubiquitous part of Australian culture” (Exhibit 5, p22). He indicated that Council’s controls require active street frontages.

74. Another concern is the relationship between alcohol consumption and impaired decision making associated with gambling, which also can relate to late trading hours. Dr Ziller referenced a Productivity Commission report which noted (Exhibit 4, p48):

“There is evidence that higher risk gamblers represent a much greater share of those people playing late at night. Moreover, at that time, gamblers are more likely to be playing under the influence of alcohol, reducing the capacity for informed consent on a potentially very costly activity where impulsivity and faulty cognitions are already widespread.”

Conclusions on social impacts

75. For the reasons outlined above, I have concluded that the adverse social impact risks associated with the pub at this site, generally, are within the ambit of acceptability. In coming to this conclusion I note the positive social impacts raised by Mr Rippingill, which he suggested to include the provision of opportunity for social interaction and recreation while contributing to the “vibrancy of community life”. Employment opportunities are also cited (Exhibit A, p24).

76. It will be seen, however, in the final section of the judgement, that I think it necessary to impose certain controls on operating hours. This will have the effect of minimising some of the adverse impact risks raised in the evidence.

Noise and associated amenity effects

Patron-related noise and local amenity

77. Evidence was provided by acoustics experts (Mr Aubusson for the applicant and Mr Ottley for the Council).

78. An anomaly (at least from my point of view) arose in the examination of the expert acoustic evidence. The joint expert report found that the proposal could meet a set of nominated noise criteria provided certain noise controls were implemented (Exhibit 2, p7). These were: (1) NSW EPA Noise Policy for Industry requirements in regard to plant and equipment (which have regard to the effects of such plant and equipment on external residential amenity), and (2) the standard requirements of the Independent Liquor & Gaming Authority (apparently concerned with ensuring noise from within the bounds of a licensed venue does not affect outside amenity).

79. It follows that the noise criteria which was adopted did not examine the question of external noise created by patrons entering and leaving the pub, or stepping outside to smoke. A statement in the joint acoustic report (Exhibit G) provided as follows:

“The issue of street noise and patrons leaving the premises (on the surrounding public streets) in Contentions 1(d) and 2(a) is not directly assessable as part of the consent as the potential noise generation is via members of the public outside the premises. There is the potential for noise disturbance to nearby residences and an updated Plan of Management must include requirement that staff ensure patrons leave in an orderly manner and that the hotel displays prominent notices reminding patrons to keep noise to a minimum whilst departing.”

80. I was not agreeable with the first sentence of the above, jointly held, position. In my view it is not at all unusual for the impacts of proposed development outside of a subject premises to be “directly” assessed in the evaluation of whether approval should be granted to a DA. The most common issue given such attention is perhaps traffic. I indicated to the acoustic experts that the questions raised by objectors in regard to impacts associated with noise external to the premises created by patrons (approaching and leaving, and congregating outside the venue) were legitimate matters for consideration in the evaluation of the proposal (under s 4.15(1)(b) of the EPA Act), and invited the acoustic experts to assist the Court by undertaking further evaluation of these noise effects outside the premises.

81. A supplementary joint report was subsequently provided by these experts (after further conferencing) to assist in this regard. This report (Exhibit 8) details the various assumptions adopted. The experts indicated there was no “approved” framework for such an analysis but agreed that the most current policy documents which provide guidance on sleep disturbance evaluation were NSW EPA Noise Policy for Industry (NPI) and EPA NSW Road Noise Policy (RNP).

Noise from patrons approaching the venue

82. Predicted sleep disturbance LAmax noise levels were provided In regard to the noise of patrons walking along Belmore Road, after leaving the venue (I assume it could equally apply to patrons approaching the venue). Three scenarios were investigated as patrons walked along Belmore Road after midnight: (1) patrons talking (“at raised voice levels”), (2) patrons shouting (lower range), and (3) patrons shouting (upper range). The experts indicated (Exhibit 8, Table 3) that both the NPI and RNP criteria were satisfied with the conditions indicated in Scenario 1. However, Scenarios (2) and (3) exceeded each of the NPI and RNP criteria. It was also noted that the predicted (inside) levels for Scenarios (2) and (3) (56dB LAmax and 62dB LAmax respectively) were below the RNP guidance for intermittent atypical noise events, with the following RNP quotation referenced:

“One or two noise events per night, with maximum internal noise levels of 65-70dB LAmax are not likely to affect health and wellbeing significantly.”

Patron noise directly outside the venue

83. At the baseline level there is the general question of how management might ensure that patrons are quiet while entering and leaving the venue. The acoustic experts had already indicated the need for particular attention to this matter, and it is a matter considered in the PoM. However some factors regarding patron smoking also warrant mention as they open a possibility of intermittent concentration of patrons outside the pub, including after 12 midnight.

84. The plans provide for two smoking areas. The ground floor smoking area has a capacity of 12 patrons maximum, and the Level Two smoking area (described in plans as a “smoking balcony”) has a capacity for nine persons and must close at midnight (a recommendation from the acoustic report – Exhibit G, p13). If, after midnight, more than 12 patrons did wish to smoke, they would not be allowed to do so within the premises. There is the distinct possibility that some patrons wishing to smoke may move outside the premises onto Belmore Street to do so. Exhibit 8 included an investigation of the noise effects of this. Two scenarios were investigated: (1) five patrons smoking and talking outside on Belmore Street, and (2) 15 patrons smoking and talking outside.

85. The NPI and RNP were again used for framing criteria. But Mr Ottley raised an additional factor in regard to concentrated smoking at the front of the premises. Mr Aubusson disagreed with Mr Ottley’s position. I quote from the supplementary expert report (par 2.2, Exhibit 8):

“With regards to noise from patrons using a 'smoking area' at the front of the venue, on Belmore Street Mr Ottley believes that this noise, if being part of the condoned operation of the venue, occurring for a significant portion of a 15-minute period (e.g. more than 1.5 minutes) and involving persons who are on-going customers of the hotel (i.e. patrons who are directed outside to smoke and then return inside) should be assessed in the same way as patron noise occurring on the premises (i.e. to the Liquor and Gaming Standard Noise Conditions).

With respect to patrons of the hotel smoking externally on the Belmore Street, the hotel has not designated this area as a "smoking area". Mr Aubusson is of the opinion that the criteria of the Liquor and Gaming Standard Noise Conditions would only apply if:

a) Belmore Street were a designated smoking area of the Hotel, which it is not; or

b) The Hotel explicitly directed patrons to smoke on Belmore Street, which is not proposed.”

Mr Aubusson further suggests (par 2.7, ibid):

“…The Liquor and Gaming NSW Standard Conditions state that formulated 33dB(A) L10 noise emission criteria applies to:

“ .... noise level emitted from the licensed premises.”

Belmore Street is public land, not licensed, and therefore not subject to the Standard Conditions for Liquor and Gaming NSW.”

86. The Court’s interest here needs to go beyond noise levels emitted from within any future licensed premises. The concern is the noise levels emitted as a consequence of any approved pub and likely amenity effects locally.

87. The “standard” acoustic requirement imposed by the Independent Liquor and Gaming Authority in the after midnight period was indicated to be “LA10 33 dB at the residential boundary (i.e. outside)”. Both experts agreed this was a “very stringent” control. There was no evidence on the reasoning behind this criterion, although it was indicated by experts that the intended effects were that there be no noise, at all, at the receiver from the licensed premises. This can be compared to the INP and RNP criteria which suggest a concern with risk of sleep disturbance (ie rather than nil effect at all). I am comfortable with the notion that this wider test of “consequence” of behaviour external to the licensed premises should be aligned with the principles behind the INP and RNP criteria, which I understand to be what I might call “risk of consequence-based”, rather than complete inaudibility.

88. The experts indicated (Table 1, Exhibit 8) that NPI criteria would be satisfied with the conditions indicated in Scenario 1 (5 patrons) but would not be satisfied with the conditions indicated in Scenario 2 (15 patrons). For the record neither of the scenarios would satisfy the Independent Liquor and Gaming Authority criterion.

Conclusions on trading hours

89. I have already concluded that the site is suitable for a pub in general terms. Here I referenced the principles in BGP Properties (see [57] of the current judgement) and the weight which is appropriately given to land use permissibility in the evaluation of development proposals. However, it seems to me that BGP Properties also makes clear that giving weight to permissibility does not remove the requirement to look closely at the particulars of a proposal. The reference to “in some form” at [117] of BGP Properties, is helpful to me here and is reproduced in part below:

“… planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.”

90. When considering the question of trading hours, and “likely” “impacts” under s 4.15(1)(b) of the EPA Act, it is important to give close consideration to the land use context. While the zoning is B4 Mixed Use, as it is for the whole of the Burwood town centre environs, Belmore Street in the site environs exhibits a strong residential element. This physical land use presentation is reflected somewhat in the “Area-Based” DCP provisions indicating this area as within the “Middle Ring” rather than the “Commercial Core” with the residential to the south located in the “Transition Area”.

91. I am mindful here of submissions from local residents on noisy incidents through the night at present, and the suggestion of their occurrence with some regularity, including from existing licensed premises closing at 2am (see [8]). While I accept Mr McEwen’s advice that these submissions were from lay objectors rather than experts, I give weight to the evidence of reasonably regular late night disturbance (under existing conditions), and the concerns about prospects for such events to increase with a late operating pub. It aligns with the advice from Police that “later trade would most likely increase the number of calls to Police regarding noise” (Exhibit 1, Tab7C).

92. The acoustic evidence would provide supporting evidence that were occasional shouting to occur this would disturb the sleep of local residents. The Police do not say to what extent the number of calls would “increase”, but it would be reasonable to think it other than minimally if raised by Police in their advice. I would also think it the case that it would not be only crime events that would cause loud voices outside of pubs after hours. I should say here, that I concur with the experts that good management has only limited powers to keep patrons quiet beyond the immediate bounds of the pub.

93. I acknowledge the evidence of the town planning experts (Mr Turrisi for Council and Mr Rippingill for the Applicant) in support of the application (provided acoustic and social planning experts were satisfied). In oral evidence, Mr Turrisi expressed the view that as the nearby residential development was higher density, it followed that a different and (as I understood the evidence) higher degree of amenity impact might be reasonably expected, than might generally be the case in residential areas. I partially accept this evidence, but note that this does not excuse the need for consideration of context, or the particularities of the higher density area in question. In that sense, this part of Belmore Street (which includes, quite proximately, five-storey apartments, and on the evidence of an owner some older style units, located at the edge of Burwood town centre) is reasonably seen as significantly different from more urban parts of Sydney, or even Burwood when the notion of late night hotel trading is under consideration.

94. The Police advice also raises the potential for safety impacts and crime risk for patrons leaving the premises in later hours, due to the relative quietness of Belmore Street after 10pm (Police say that many of the businesses in Belmore Street don’t open later than 10pm).

95. For amenity and public safety reasons, and mindful of the fact that the pub’s setting has a strong residential component and (unlike other more commercially active areas in the night-time) does not exhibit significant levels of motor vehicle or foot traffic during late hours, I am not convinced that the pub should trade after midnight in this location. For the same reasons, I also believe there are significant safety-associated risks with trading even up to midnight on quieter evenings. I accept that limiting hours as such will minimise some of the positive impacts of the proposal (summarised at [75]). But in my view the risks of negative impacts, in particular in public safety and amenity terms, justify this action. I also note there are operating alternative premises nearby for patrons seeking late hours licensed venues.

96. I am mindful of the submissions on the good record of the intended licensee and submissions that operations at Burwood Hotel, which involves considerable late night trading, were not subject to complaints. While the Burwood Hotel, adjacent to the station which for example would exhibit its own foot traffic, is a quite different setting, it seems to me it is reasonable to grant a trial period for the proposal for Monday-Thursday trading to midnight. The examination of the implications of noise external to the premises during the hearing was useful but somewhat “on the run”. The question of sleep disturbance implications of Monday to Thursday trading between 10pm and midnight should also be a consideration in the review of trading hours after the trial period.

97. Trading hours should be as follows:

• 9am until 10pm Monday to Thursday.

• 9am until 12 midnight Friday and Saturday.

• 10am until 10pm Sunday.

Notwithstanding these baseline trading hours, the premises may operate for a trial period of 12 months from the date of issue of an occupation certificate for the following hours:

• 9am until 12 midnight Monday to Saturday.

• 10am until 10pm Sunday.

98. An application to make the trial period hours permanent should be subject to neighbour notification, and notification to Burwood Police Area Command.

99. I make these findings mindful of Liquor and Gaming NSW standard hotel trading hours (including in regard to Sundays), but in consideration of the need to consider locality impacts under s 4.15(1)(b) of the EPA Act.

Directions

100. For the reasons outlined above I am satisfied that the proposal is acceptable on its merits subject to the imposition of finalised conditions. There will be a need to amend the agreed without prejudice conditions to reflect the above findings. A final Plan of Management will also be required to reflect these findings.

101. Accordingly, the parties are directed to file an electronic version of the conditions of consent in accord with the above within seven days. Subject to the conditions being agreed and otherwise being satisfactory I will make final orders in Chambers.

Addendum 6 March 2019

102. In accordance with the directions in paragraphs [100] and [101] of my judgment of 31 January 2019, the parties provided me with agreed conditions of consent. As indicated in my judgment, there was also a need to amend the Plan of Management (PoM), which is referred to in the conditions, to reflect the changes to approved trading hours. In seeking to address my directions, a disagreement arose between the parties in regard to one condition of the PoM. The PoM, in the form presented to the hearing, included a requirement for management to actively engage “in conversation” with patrons to assess sobriety – this requirement would occur after midnight only. The applicant’s view is that, as the judgment provided for no trading after midnight, this requirement should be deleted from the final PoM. The respondent sought the inclusion of a condition to provide for active assessment of sobriety of patrons through direct conversation for the two hours prior to the pub’s closing time. The respondent saw this requirement as addressing the link between the closing time of the pub (and the necessary departure of patrons from the premises – be that 3am, midnight or earlier) and the Court’s decision in regard to the management of public safety and amenity impact risk as patrons leave the premises. My decision in regard to trading hours was associated, particularly, with after midnight risks. There are adequate provisions in the PoM for the monitoring of patrons in regard to sobriety up until midnight without the explicit inclusion of this requirement regarding conversation with patrons. That is not to say conversation with patrons may not occur as part of this monitoring requirement. Having regard to the general agreement on conditions and the particular matter discussed above, I accordingly make orders in chambers as follows:

1. The applicant is granted leave to amend the application in accordance with the final plans listed at Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application (DA) No. 2017/41 for the change of use of an existing three-level building to a pub, including various building alterations associated with this change of use, is approved in accordance with the conditions set out in Annexure A (noting the commentary above in regard to final Plan of Management content).

4. The exhibits are returned, with the exception of Exhibits A, E, 4 and 5.

……………………….

P Walsh

Commissioner of the Court

Annexure A

Plans_Part1

Plans_Part2

**********

Endnote

Amendments

12 February 2019 - Pursuant to UCPR 36.17, the slip rule, amend paragraph [97] of the judgment to remove the words “to Thursday” in the text “10am until 10pm Sunday to Thursday” in regard to trading conditions, for both the baseline and trial period.

As a result, paragraph [97] now reads:

“97 Trading hours should be as follows:

• 9am until 10pm Monday to Thursday.
• 9am until 12 midnight Friday and Saturday.
• 10am until 10pm Sunday.

Notwithstanding these baseline trading hours, the premises may operate for a trial period of 12 months from the date of issue of an occupation certificate for the following hours:

• 9am until 12 midnight Monday to Saturday.

• 10am until 10pm Sunday.”

12 March 2019 - For final orders - see Addendum 6 March 2019 at [102]

Decision last updated: 12 March 2019