Botany Bay City Council v Robert John Halpin & Jenni Thelma Hapin [1998] Nswlec 124 (12 June 1998)

[1998] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:	BOTANY BAY CITY COUNCIL v. ROBERT JOHN HALPIN & JENNI THELMA HAPIN [1998] NSWLEC 124 (12 June 1998) [1998] NSWLEC 34
PARTIES:	BOTANY BAY CITY COUNCIL v. ROBERT JOHN HALPIN & JENNI THELMA HAPIN [1998] NSWLEC 124 (12 June 1998)
FILE NUMBER(S):	40137 & 10799 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Liquor Act 1982 Botany Local Environmental Plan 1995 Noise Control Act 1975
CASES CITED:	South Sydney City Council v Houlakis & Teakdale Pty Limited (see 90 LGERA 399 and 92 LGERA 401).
DATES OF HEARING:	6 and 7 April 1998
DATE OF JUDGMENT:	06/12/1998
LEGAL REPRESENTATIVES:	Mr R Bonnici, Barrister Mr S Austin, Q.C.

JUDGMENT:

1. INTRODUCTION

These Class 1 and Class 4 proceedings were listed to be heard together, with the evidence in each to be the evidence in both.

When they came on for hearing on 6 April 1998, it was agreed that the Class 1 matter should be dealt with first, and that the Class 4 matter should be adjourned to the end of the Class 1 hearing, and, if judgment were reserved, until the delivery of the judgment.

Both proceedings concern the operation of the Endeavour Hotel (“the hotel”), which has been situated at 1102 Botany Road, Botany, within the Council’s area, for more than 50 years.

Mr & Mrs Halpin purchased the hotel, and Mr Halpin became its licensee, in approximately December 1990.

Both parties tendered montages of photographs, Exhibits B4 and H4 , and the Court took a private view of the location prior to the resumption of the hearing on the second day.

The hotel is a two-storey building on a footprint of 570 square metres within a site of 900 square metres.

2. THE PROCEEDINGS

The Class 4 application was filed by Council on 12 June 1997 and seeks a declaration that the use of the hotel premises for 24 hour trading, 7 days per week, is in breach of the Botany Local Environmental Plan 1995 (“the LEP”) (see document 10 in Exhibit B3 ).

Council seeks an order restraining the Halpins from using the premises for the purposes of a hotel outside the hours of 10am-12midnight Monday to Saturday and 12noon-10pm Sunday, unless and until development consent is obtained for use outside those hours.

In the Class 1 proceedings, commenced 19 December 1997, the Halpins appeal against Council’s refusal of consent on 16 December 1997 to development application (“DA”) 98/0040, lodged on 17 July 1997, seeking extension of trading hours to “24 hours”.

In the hotel industry, “24 hours” trading means that the hotel may be open at any time between 5am Monday morning and 12 midnight Sunday night.

Council’s Statement of Issues filed on 4 February 1998 asserts the following:

“1. The proposed development does not comply with objective (a) of the 3(a) General Business Zone of Botany Local Environmental Plan 1995.
2. The proposed development does not comply with Development Controls 7(a), (b), (c), (e), (f) and (g) of the Development Control Plan for extended public house trading hours.
3. Adverse impact on the residential dwellings within the vicinity of the subject premises.
4. Significant concerns raised by the objectors about the impact of the proposal.
5. The social and economic effect of the 24 hour trading in the locality.
6. The adverse impact of the 24 hour trading on the future amenity of the neighbourhood.
7. The proposal is contrary to the public interest.”

3. THE LOCALITY AND ITS PLANNING REGIME

The hotel is located on the south-western corner of the intersection of Botany Road and Bay Street, and is bounded at the rear by Chegwyn Street.

The site is zoned 3(a) Business General under the LEP. (See Zoning Map in Exhibit B8 ).

Botany Road is a busy “State Arterial Road” linking the Sydney central business district to Port Botany. Evidence suggests it carries 23,141 vehicles per day.

The land on the opposite side of Chegwyn Street from the rear of the hotel is zoned 4(a) Industrial General “A”.

On the north-western corner of the intersection of Bay Street and Botany Road there is another small area of land zoned 4(a) Industrial General “A”. Surrounding that small

area bounded by Botany Road, Bay Street and Airport Reserve is land zoned 2(a) Residential “A”, much of which is occupied by Botany Public School, north of the hotel.

Lands on the western side of the school site, the north-western side of Bay Street generally, and nearby to the west and south-southwest, are zoned 5(a) Special Uses, and designated particularly for Sydney Kingsford Smith Airport.

On the eastern side of Botany Road, from a short distance north of its intersection with Bay Street, a couple of blocks south from Bay Street, and on the western side of Botany Road south of the hotel, is Botany Shopping Centre, all within the 3(a) Business General zone.

Lands east and south-east of that zone, are zoned 2(a) Residential “A”.

There are busy bus-stops on Botany Road, at the corner of Bay Street.

Much of the shopping centre is two-storey, but it is not clear how much residential accommodation it contains.

From this description, it will be clear that this suburban hotel operates alongside a busy road, within a rather busy commercial area, but extremely close to rather densely populated residential areas.

The evidence also indicates that there are many residential properties within the industrial areas to the west and south-west of the site, including three properties facing the rear of the hotel in Chegwyn Street. The evidence suggests that there may be at least 80 residential properties within 200 metres.

It would appear that the only other late night uses in the vicinity are the Captain Cook Hotel at 1114 Botany Road and a licensed Club at 1421 Botany Road, both south of the hotel.

The LEP was made on 30 June 1995 and the zone objectives appear in the Table to Clause 10 (see page 69 of Exhibit B3 ).

The primary objective of the 3(a) zone is stated as “to reinforce the historical development of business and shopping locations in the local government area of Botany by providing for a range of retail, business and professional service activities which will provide services and employment opportunities for the community”.

Objective (a) is included in a list of “secondary objectives” and provides as follows: “to control the physical and functional characteristics of commercial areas in order to minimise their impact on adjoining residential areas”.

24 hour hotel trading is permissible with consent.

Document 11 in Exhibit B3 is “City of Botany Bay Development Control Plan for Extended Public House Trading Hours” (“the DCP”) made 28 October 1997, cl 3 of which provides:

“The main objectives of the Development Control Plan are:

(1) to ensure that careful planning consideration is given to the environmental impact of late-night public houses trading on the amenity of surrounding land uses;

(2) to ensure that the surrounding amenity of residential uses are not detrimentally affected by the operations of public houses with trading hours which may encroach into the hours between 12.00 Midnight and 6.00 a.m. on any day;

(3) to protect areas from inappropriate development and to ensure that, in particular, residential amenity, health and safety is maintained or improved.”

The relevant Development Controls which are referred to in the Statement of Issues are those in cl 7 which provides as follows:

“(a) that adequate acoustical measures and works can be undertaken to ensure that patrons arriving and departing from the public house and their associated activities in doing, do result in adverse noise impact on exposed residences;

(b) a proper management control plan is provided;

(c) acoustic criteria:

· The use of the premises shall not give rise to ‘offensive noise’ as defined in the Noise Control Act 1975.

· The operation of any plant and equipment on the [sic] shall not give rise to ‘offensive noise’ as defined in the Noise Control Act 1975.

· The use of the premises and the operation of any plant and equipment shall not give rise to any transmission of vibration to any place of different occupancy.

· The L [sic] noise emitted from the premises shall not exceed 5dB above the background level in any Octave Band Centre Frequency (31.5Hz-8kHz inclusive) at the nearest affected residential boundary between the hours of 7.00am to Midnight. The background level shall be measured in the absence of noise emitted from the music/entertainment provided in the premises.

· The L [sic] noise level emitted from the premises shall not exceed the background level in any Octave Band Centre Frequency (31.5Hz-8kHZ inclusive) from 12.00 midnight to 7.00 am at the nearest affected residential boundary. The background level shall be measured in the absence of noise emitted from music/entertainment provided in premises.

· Notwithstanding compliance with Condition No.10 and 11, the noise from the premises shall not be audible within any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am.

….
(e) the provision of adequate on-site car parking for the period of the extended hours for which development application is sought and in determining the adequacy or otherwise of the on-site parking, Council will take into account the provisions of its Off-Street Parking Development Control Plan;

(f) adequate control measures in place to restrict the possibility of disorderly conduct in the vicinity of the premises.
(g) there must be no residential premises within a 200 metre radius of the licensed premises.”

Paragraph 7(d) provides that “musical bands or loud music shall not be played after 12.00 Midnight and before 8am”, and it is common ground that this paragraph does not apply to the relevant development application because the hotel does not accommodate bands - it has no stage facilities. It relies only on a CD jukebox, and also, apparently, a solo entertainer from 7pm to 11pm Fridays.

The Council was consulted on, or at least made aware of, from time to time, movement in the hotel’s trading hours (see generally Exhibit H1 p5ff).

In a development application in late 1994 , trading hours were nominated as “24 hours”, and Council said it had no record of any alteration from those notified in 1983 , which were Monday to Saturday 10am-11pm and Sunday 12noon to 10pm.

However, there is some evidence that when Halpin applied in 1991 for a 3am permit, Monday to Saturday, and 12 midnight Sunday, Council was notified of proposed hours, and did not object to the application.

In early 1995 , Halpin told Council he had a 24 hour permit, but was trading Monday to Saturday 6am to 12midnight and Sunday 10am-10pm. Council considered those hours reasonable and granted a consent restricting operations to those times. It appears that that consent (No.3377) was never taken up. However, such a restriction was also imposed as a condition of consent 97/0357, and an appeal against that condition was discontinued in October 1997 .

The relevant report to Council regarding the development application involved in these proceedings appears at pages 46 to 59 of Exhibit B3 .

4. THE HOTEL’S CASE

The Halpins were new to the hotel industry in 1990, and found the Endeavour Hotel to be very run down and “tired”. It had a working class clientele and what Mr Halpin described in evidence as a certain “rough” element.

Since then they have made substantial physical improvements to the hotel, and have gradually lifted its tone by taking a very hard line on behaviour, barring unruly customers, and pursuing a policy of responsible service of alcohol.

In 1991, when they sought permission from the Liquor Administration Board (“LAB”) to extend their trading hours to 3am on an occasional basis, the Council lodged no objection and the application was granted.

The right to stay open beyond 12 midnight was exercised only on an occasional Friday night, or when, for some reason, there was a substantial crowd in attendance.

Within a reasonable distance of the hotel there are many 24 hour industrial undertakings, including the airport, ICI, Port Botany, etc, and in June/July 1993 Halpin sought and obtained from the LAB a 24 hour permit.

He was not aware that the Council objected, somewhat late, to that application, and he did not implement the 24 hour trading permit until January 1996 , at which time he was still living on the premises.

However, the bottle shop closes at 12 midnight Monday to Saturday and 10pm Sunday, and the rear “beer garden” entrance closes at 7pm.

The hotel has been patronised, since it extended its hours, by, amongst others, taxi drivers and other shift workers.

Since the advent of poker machines in hotels on 7 April 1997, the gambling facility at this hotel has become a big attraction, even after midnight. Halpin’s experience is that gamblers are not big drinkers, and that their behaviour is relatively good.

Mr & Mrs Halpin moved out of the hotel with LAB permission on 14 July 1997, but are about to embark on an extensive programme of renovation and extension, probably spending up to $700,000 improving many of their fundamental facilities, such as their toilets, to 5 star standard.

It is also intended that a restaurant will be added to the lounge bistro facility, and the pool table area will be extended. The glass at the Chegwyn Street side will be double glazed and a 7 foot double brick fence will be erected on the Chegwyn Street frontage.

The catering facilities at the hotel are already well patronised. The bistro area seats only 80, but 200 lunches were served on a Friday just before the hearing. Breakfast is offered every day, and is well supported, and dinner is currently offered only on a Friday night.

The clientele of the hotel is now essentially local residents or those outsiders who work locally.

Halpin willingly attended a mediation meeting at Mascot Police Station and met with several local residents who are now objectors to this application. As he had anticipated that those citizens would have made direct contact with him if they had further problems after the mediation, he was surprised at their objections to this application. He is aware of the entitlement of residents and other citizens to take advantage of s 104

of the Liquor Act 1982, which provides a structured consultation process to resolve complaints, and welcomes the opportunity to participate in such consultations.

In respect of his failure to lodge a development application until the Class 4 proceedings had been commenced, Halpin gave evidence that he was unaware he was required to do so.

He also gave evidence that he was unaware of certain letters sent to consultants acting for him in respect of the hotel, which made it clear that the Council sought the right to approve or disapprove his proposed extension of trading hours (see Exhibit B7 ).

When he eventually sought legal advice, he was informed of the Court of Appeal’s 1996 decision in South Sydney City Council v Houlakis & Teakdale Pty Limited (see 90 LGERA 399 and 92 LGERA 401).

His solicitor then advised him that it would be necessary to make the development application, and he lodged it on or about 17 July 1997. Halpin’s evidence is, therefore, that, once he realised it was necessary for him to do so, he made the necessary development application to Council.

He had only become aware of the letters of objection in the last few weeks before the hearing. He says that if he had known of the subject matter raised in those letters, he would have done something earlier. He was able to explain that problems that were aired at the mediation meeting could not be sheeted home exclusively to the Endeavour Hotel, but would be attended to, to the best of his ability.

Halpin gave evidence that he thought that any problems with 24 hour trading could be handled by “responsible service of alcohol” policies and practices. He proposes also to have food available for 24 hours (mostly snack food).

Security has been engaged at the hotel since 26 October 1997, following one or more incidents in which staff at the hotel had been abused for refusing service. The hours of the security were, at one relevant time, limited to Friday 9pm to Saturday 7am, Saturday 11pm to Sunday 7am.

Having now being informed of the objections and the behaviour underpinning those objections, Halpin believes that he should accept the advice of the expert surveillance witnesses to the effect of improving his security arrangements.

Halpin attended the Council meeting on 3 December 1997, but had not seen the document appearing at pp46 ff (item 8) in Exhibit B3 . Page 46 records that the press and public were excluded from the Council meeting as “information that is subject to legal professional privilege” was involved.

The Court also notes that Mr Halpin has served as a district President of the Australian Hotels Association.

5. THE PLANNING EVIDENCE

(a) Council’s expert

The Council relied upon a Statement of Evidence ( Exhibit B1 ) and oral testimony by Harvey Sanders , a planner or consultant of 30 years standing, and currently a director of Design Collaborative Pty Limited.

His starting point was that the number of residences within close proximity to the hotel was more significant than the zoning map. This is an old established suburb of mixed residential and industrial uses. He was critical of the surveillance being taken at a particular time rather than through the span of hours 12 midnight to 6am.

He himself went to the hotel on a Saturday morning at 3am and found little other noisy activity in or near the hotel. The RSL Club and the Captain Cook Hotel were both closed.

He also visited the area just after midnight and found no undue disturbance.

It is Sanders’ view that the acceptability of a hotel use in this location was largely and directly related to the limited hours of operation involving closure at 11pm Monday-Saturday and 10pm on Sundays.

He conceded that this is a very noisy location. During the day there is heavy industrial traffic, and aeroplane noise until 11pm.

He says that the unauthorised extension to the hours of operation of the hotel constitutes a significant change to the nature of the use. “Noise and activity associated with the hotel now occur, or have the potential to occur … not just in the hotel, but in the surrounding areas” at hours that were hitherto not so affected.

He also believes that 24 hour opening attracts patrons from outside the local area, who are likely to be less inclined to behave in a neighbourly fashion, and are more likely to drive, or use taxis. “The disturbance caused by patrons travelling to or from the hotel has been causing a serious impact on the local area”. (par 5.5).

Few of the industrial and commercial uses in the area generate traffic after midnight. “Hence, in the early hours of the morning, noise and activity generated by the hotel is noticeable to residents living close by”. He believes that “to legitimise this unsatisfactory situation would constitute a serious breach of planning control”. (par 5.7).

Sanders believed that the acoustical information provided to the Council adequately addressed noise sources emanating directly from within the hotel, but failed to adequately address the remainder of the requirements relating to the control of patrons arriving and departing from the public house. In particular, he criticised the report for failing to detail the location of the residences potentially affected by noise. The Management Control Plan addressed a number of these issues adequately, but, in his view, did not deal properly with the control of patrons outside the premises and of potential patrons who may be refused service.

Sanders was also concerned about traffic and parking. He pointed out that between 1am and 5am only two buses run each way on Botany Road, so patrons from further afield would either have to drive or use taxis. This would generate noise and disturbance, given that inadequate parking arrangements mean that hotel patrons would park outside residential properties in the vicinity.

Control 7(g) requires that there must be no residential premises within a 200metre radius of the licensed premises. Sanders’ report includes a map showing a significant amount of residential accommodation within that distance, including directly opposite the hotel in Botany Road, and directly behind it in Chegwyn Street.

He recounts the problems experienced by residents since the hotel extended its hours of opening. They are stated to include theft and vandalism to property, smashed bottles, disturbance from fights and arguments in the street, abuse and harassment of local residents and business owners in the morning, car accidents involving drunken persons, and vomiting and urinating in the street. The Endeavour is the only hotel in the locality opening 24 hours and the objectors have dated the commencement of their problems to the extension of those hours. Often they say that they have seen the trouble makers entering or leaving the hotel. Sanders believes the Management Control Plan is inadequate in its proposal to deal with disorderly patrons outside the hotel.

He also draws attention to the closeness of the site to Botany Primary School and the Kindergarten.

In summary, he believes that the applicant has failed to show how the adverse impacts on the amenity of the area can be effectively ameliorated. The proposal is inconsistent with the LEP and the DCP; its effects are adverse on the amenity of the locality and the economic and social elements of it; the proposal has an unacceptable relationship to development on adjoining land and other land in the locality; it makes inadequate provision for parking; it has an unacceptable impact on the existing and likely future amenity of the neighbourhood; and the approval of the application would not be in the public interest.

(b) Halpins’ expert

The Halpins relied upon Lindsay Fletcher of Gary Shiels & Associates Pty Limited, a planner of more than 20 years experience, including in senior offices in local government (See Exhibit H1 ).

His fundamental position, unchanged by the perusal of later material including Sanders’ report, is that the premises are suitable for 24 hour trading with appropriate controls.

Fletcher sees “no reason why a well managed and operated hotel would not comply with all relevant objectives of the general business zone under Botany LEP” and “the proposed development is not inconsistent with secondary objective (a) of zone 3(a)”.

The DCP was adopted and came into effect more than 4 years after extended trading hours for the Endeavour Hotel were granted by the Licensing Court, and more than 3 months after the subject DA was lodged with the Council.

Items 7(a) and 7(c) of the DCP relate to acoustical measures and criteria and these are dealt with, apparently to the satisfaction of Council, in the report by Steven Cooper Acoustics.

Paragraph 7(b) requires that a proper Management Control Plan be provided and cl 6(6) of the DCP outlines what should be included in that plan. Fletcher tested Halpin on the plan, and particularly the security arrangements in respect of the environs, and he came to the conclusion that the management arrangements were satisfactory and that evidence of their effectiveness was provided by the almost total absence of complaints received by Council or the police since the extended hours approved by the LAB had been operating. He also believed the Management Control Plan addresses the requirements of 7(f).

In respect of 7(e), Fletcher makes the point that the additional trading hours sought by the DA do not correspond with peak trading times of the hotel, and “generally correspond with high availability of car parking in the locality”. This is an old hotel with a single garage, so on-site car parking is impossible.

Paragraph 7(g) provides for the 200 metre radius. The nearest residences are those on the opposite side of Chegwyn Street, but they are within the general industrial zone.

The nearest properties in Bay Street in the residential zone would be 60 metres from the hotel, but on the opposite side of Botany Road and buffered by the premises within the Botany strip shopping centre.

In Fletcher’s view, persons arriving and departing the premises in cars, which might otherwise park in Botany Road, are unlikely to cause a noise nuisance to residents, due to the relevantly high ambient noise level existing in the locality, and the lower numbers of patrons he expects during the extended midnight hours.

Fletcher points out that there is no unsolicited complaint to Council in respect of the 24 hour operation.

He also comments at p18 of Exhibit H1 :

“one’s expectation of residential amenity must have regard to the particular circumstances of the locality. The amenity that can reasonably be anticipated in city suburbs close to shopping centres and major roads differ significantly from that to be expected in quiet residential cul-de-sacs in distant suburbs. The hotels in the Botany area have been there for many years and have as much right to exist as residents have the right to enjoy reasonable amenity. However, in my opinion, people who reside in a house within or near a General Industrial Zone and adjacent to what is in effect the rear service road of a business centre, particularly a business centre which contains a significant number of businesses providing dining and entertainment facilities, such as hotels, licensed restaurants, and the like, cannot realistically expect to enjoy the same quality of amenity as those who choose to live in purely residential localities.”

In summary, I am of the opinion that approval of the Development Application will not have an adverse impact on residential dwellings within the vicinity of the subject premises or on the future amenity of the neighbourhood.”

He goes on to confirm that, in his opinion, approval of the subject DA will not have an adverse social or economic effect on the locality, but indeed its refusal may have an adverse social effect.

The zone requirements and DCP do not talk about residential premises, they talk about residential areas.

While there is some evidence that the advent of problems coincided with 24 hour trading, not all the objectors say that. Overall, the experience of the trial period has been good. Earlier concerns were addressed and some of those have been revived since the advertisement or notification of the application.

Fletcher’s view is that, “properly managed”, this use will not disturb the local residents.

Conditions and diligence should meet all the concerns.

6. LOCAL EVIDENCE

Letters of objection are included at pages 29 to 44, and summarised at pages 50 to 53, of Exhibit B3.

The Council called four resident objectors to give oral evidence. One is not strictly resident, but conducts, in conjunction with her daughter who is a resident, the local newsagency, virtually opposite the hotel, at 1391 Botany Road.

The Halpins also called two local witnesses.

· Mrs Rebecca Rae lives at Gymea, but has run the newsagency for 3 ½ years. She believes it is the first shop in the Centre to open in the morning. Her Statement of Evidence appears in Exhibit B5 and her letter of objection at pages 41-43 of Exhibit B3 .

She conceded that the situation was a lot worse when the mediation was organised than it is now, but she was not conscious of any difficulties prior to the commencement of 24 hour trading.

She arrives for work at approximately 4.15am on the mornings when she opens the shop. She can see the doors of the hotel from her counter and has seen several fights when people were thrown out of the hotel between 4.30am and 6.30am. She estimated she had seen 5 such fights this year, but usually on weekend mornings.

During 1997 there were 1 or 2 incidents of unknown persons urinating on her newspaper supplies. She was critical of the security people for not stopping adverse street behaviour.

She has not been inside the hotel. If further problems arise she will attend a further mediation, but she does want security proactive on the street - at least 1 security person should control the street.

· Rebecca Rae’s daughter, Kyleigh Maher , has lived above the newsagency for some 2½ years with her 5 year old son. She was there 6 months before the 24 hour trading began. Her statement appears also in Exhibit B5 and her letter of objection at p 39 of Exhibit B3 .

She represented her business at the Maroubra mediation, following which there was a dramatic improvement for a period of 6-8 weeks and then a gradual recurrence of the previous standards. Security was good at around Christmas time.

In her oral evidence, she recounted several incidents within the last year, including one in recent weeks, involving an altercation and a collision between two vehicles. There was no security in attendance because it occurred on a Thursday at approximately 11.30pm.

While she cannot link incidents of vomiting and urination to any particular patrons or any particular hotel, the Endeavour is the only place open at the times when these incidents occur. Maher rings the police approximately once a month regarding adverse incidents and they generally come within 10-15 minutes.

She has some concern regarding the safety of herself and her son.

The newsagency opens at 4.30am Monday-Saturday and 5.15am on Sunday. It closes at 8pm Monday and Wednesday, 7.30pm Tuesday and Thursday, 7pm Friday, 1.30pm Saturday and 12.30pm Sunday.

She was quite complimentary regarding a couple of particular security guards.

· David McInnes of 71 Bay Street, a High School teacher who has lived there for 5½ years and Peter Danks of 73 Bay Street, a self employed carpenter, who has lived there for 10 years, both gave evidence. Their written statements appear in Exhibit B5 ; with Danks’ letter at p 44 and McInnes’ letter at p 35 of Exhibit B3 .

Danks was unable to attend the mediation but has called the police on occasion. He believes that there were no real problems before the 24 hour trading began and that the mediation did quieten things down somewhat.

On hearing arguments in the middle of the night, he quite frequently leaves his house to investigate. The Endeavour is the only place open. He has never noticed any security guards, nor can he vouch for the fact that the people whose behaviour he complains about, actually came out of the Endeavour hotel.

He is concerned about anti-social behaviour in the presence of children at 7am in the morning.

David McInnes has experience in the liquor industry including a period as night manager of a hotel at Clovelly.

He believes that security on the street is the only answer to the difficulties of which he complains, even though some incidents do occur with security officers.

He agreed that the Endeavour hotel was really a “small neighbourhood hotel” but he has not been in since the renovations. He has not worked in a 24 hour hotel during his experience in the liquor industry.

· Michael Galea was also called by Council, although he did not submit a statement or a letter of objection.

He has lived at 4 Chegwyn Street for 42 years, on the opposite side of Chegwyn Street but midway between the rear of both hotels facing Botany Road, and his major complaint is noise.

· The Halpins called Martina Daly , a dispatch clerk at a nearby factory who has lived upstairs in the hotel for some 2 years.

She frequently catches the bus to work from opposite the hotel at approximately 6am in the morning Monday-Saturday and returns by bus at approximately 5.15pm Monday-Friday and 12 noon on Saturday.

There are usually 3 or 4 people standing with her on the bus stop for southbound services and she observes 8-10 outside the hotel waiting for northbound services.

She has never seen anti-social behaviour at the bus stop or in the environs of the hotel and she regularly goes to sleep at about 9 or 9.30am and has been rarely woken and then only by Botany Road traffic or a loud aeroplane.

· The Halpins also called John Hertz , a solicitor who has conducted his business next door to the hotel on Botany Street for some 12 years.

He frequently attends his office, or drives through the locality to check that all is well, at odd hours of the day and night and says that he is often in the vicinity at

6am, 2-3am, or 10pm on weekdays and on weekends. He is not a patron of the hotel but he also has a share in a bus business which sends its drivers past the office premises from time to time as well.

He has never seen any problems with the hotel nor experienced the noise difficulty through his windows, nor could he agree that he had ever seen bad behaviour involving patrons of the Endeavour Hotel.

He says that his office was frequently robbed prior to the beginning of 24 hour trading but that he has not had an incident since then. He attributes this to the better presence of security and the fact that some activity at the hotel, lighting, etc. deters thieves.

7. Surveillance and Security

The Court was assisted by evidence from Albert DiFloriano , a Ranger with the Botany Bay City Council, and by George Askew , the principal of George Askew & Associates, who is a highly reputable auditor of the security measures employed at licensed premises.

Although now a Ranger, DiFloriano has had 17 years experience in the security industry and has done a lot of work in the pub and club industry.

He recounted several incidents on 21 and 22 May during his surveillance and was somewhat critical on the lack of proactivity on the part of the security guards.

Askew is a great supporter of the Liquor Act s 104 procedure when difficulties occur in the neighbourhood.

He prepared his report and some supplementary materials all of which are included in Exhibit H3 , not always with the knowledge and support of the applicant.

He observed small numbers of patrons on each occasion but believes that security could be more active in the street and more proactive in the vetting of patrons.

He does not believe that a 200 metre radius is an appropriate measure of residential impact, or patrol, but he does believe there should be more regular patrolling around the hotel than was proposed in Council’s condition 14(e). He believes that security should monitor departing patrons in whichever direction they move.

From his experience he supports 24 hour trading rather than 3am closure. A fixed closing time necessarily involves bulk egress from the premises.

He believes that two security guards should be more than sufficient for the patronage of the hotel. On a scale of 1-10, with 10 indicating high security need, he regards the hotel as warranting a rating of 4 or less.

8. ACOUSTIC EVIDENCE

The acoustic issues that were in evidence during the course of the consideration by Council of the application appear to have abated with the presentation of the report of Steven Cooper Acoustics Pty Limited in March 1998 ( Exhibit H2) which was not controversial.

Mr Cooper has practised as an Acoustical Consulting Engineer for 19 years.

His research found the existing entertainment provided in the hotel to be completely inaudible and well within the criterion issued by the LAB. He would therefore support the 24 hour operation of the subject premises.

9. THE POLICE EVIDENCE

On 22 October 1997, the City of Botany Bay Council wrote to the officer in charge of Botany Police Station ( Exhibit H6 ) urging the police to assist the Council to “establish whether any reported incident can be attributed to a particular hotel or whether an incident can only be linked to a hotel in the Botany area”.

The police response appears at p 45 of Exhibit B3 .

The relevant officer indicates that while there has been problems with the “general behaviour of patrons who frequented the licensed premises during the late evenings of Friday and Saturday”, he had no real concerns. Consultation had been held and management appeared to be displaying “increased awareness” of its responsibility to the responsible serving of alcohol and the harm minimisation guidelines laid down by the Department.

10. CONDITIONS

During the course of the hearing of all the evidence in the Class 1 proceedings, the parties moved closer to reaching total agreement on the conditions that should attach to any consent the Court may see fit to issue.

Leave was granted at the conclusion of the hearing for the joint submission of a conditions document within seven days. A schedule of 16 agreed conditions was duly submitted on 17 April 1998.

Having heard all the evidence, the Court is satisfied with those agreed conditions , but Council has also asked the Court to impose a 12 months “ sunset clause ” on any consent the Court might grant.

11. SUBMISSIONS

(a) Council

Council submits that the problems evidenced by the residents seem to have arisen since 24 hour trading began (cf Askew).

Council has taken seriously the objections expressed by its residents and is concerned that the applicant licensee does not appear to be aware of them.

The hotel conducts its business in close proximity to many of these residents. Admittedly, the area is extremely noisy during the day, but those residents are entitled to a peaceful rest at night.

Despite two years of “doing his best” with 24 hour trading, the applicant still has his problems. Fundamentally, this is not a good locality for a 24 hour hotel operation. After a trial period and a mediation, four of the closest locals still have serious concerns.

Any consent should be for a further trial period.

(b) Halpins

The Halpins submit that the planning objective is to minimise the impact on adjoining residential areas. Sanders’ evidence is based on hearsay and he has seen no evidence of disturbance. In cross-examination he agreed there could be some beneficial impacts from 24 hour operation. The benefits to the community of granting the application outweigh the negatives.

There is always a potential for disturbance, and, realistically, the objective can only be to minimise it. Any adverse impacts can be adequately controlled by the conditions.

The relevant conditions and the utility of s 104 of the Liquor Act will be less effective if there is a 12 month “sunset” provision imposed on the approval.

The 200 metres provided for in the DCP is a “crude control”. Already the noise issue has been resolved, and Mr Galea’s complaints in this regard are unsubstantiated - in fact there is contrary evidence.

There is no real evidence to link the objections to the operations of the Endeavour Hotel and the nearest commercial resident believes that the activity of the hotel and security arrangements are a positive benefit to the area.

Mr Halpin is committed to, and has been working towards, continuous improvement in the performance of the hotel including its security and neighbourhood arrangements. Now that he has been made aware of the objectors’ continued concerns, he is dealing with those concerns and is prepared to negotiate appropriate conditions and to be accountable to his performance against those conditions.

Some of the objectors do not even recognise that the 24 hour operation has been in place for some 2 years. While Mr Danks complains of hearing fighting outside the hotel, Ms Daly upstairs did not hear any such disturbance.

Askew is an expert auditor of security at licensed premises and Halpin has agreed to retain him and to adopt the conditions he recommended.

12. CONCLUSION ON THE CLASS 1 PROCEEDINGS

Mr Halpin was an impressive witness and the Court accepts that he is a keen new publican who is trying hard.

I am satisfied that he and his staff realise the serious nature of their obligations under the law, and particularly under the schedule of draft conditions to which they have agreed.

I have come to the conclusion that, given the comprehensive and stringent conditions that have been agreed upon, and after considering all the evidence that has been described above, the potential adverse impacts of this development are not such as to warrant refusal.

I accept Mr Austin’s submission that the proposed conditions and the other complaint procedures available will be less effective if there is a sunset clause.

Accordingly, I have come to the view that the appeal should be upheld , and that the 24 hour operation application should be approved by the granting of consent on those agreed conditions, without a sunset clause.

13. THE CLASS 4 PROCEEDINGS

All the evidence heard during the two day hearing was agreed, and ordered, to be evidence in both the Class 1 and the Class 4 proceedings.

It appears that the only question that will remain for determination in the Class 4 proceedings is that of costs, the proceedings having been commenced to elicit from the applicant the DA which ultimately became the subject of the Class 1 appeal.

If the parties cannot now resolve the Class 4 proceedings, they can be set down for final disposition by the Court.

14. ORDERS

Accordingly the orders of the Court will be that:

(a) The appeal in Matter No.10799 of 1997 be upheld.

(b) Development Application DA98/0400 is determined by the grant of consent, subject to the 16 conditions set out in the document attached to this judgment.

(c) Matter No.40137 of 1997 is adjourned to the Registrar’s Callover list on Friday 19 June 1998 for the purpose of its being set down for hearing in the event of the parties not being able to agree upon consent orders to dispose of it.

(d) The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 26 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:

Dated: 12 June 1998