Canangles Creek Pastoral Co. Pty Ltd v Leichhardt Council

Case •

[2009] NSWLEC 1023

•

23 January 2009

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Canangles Creek Pastoral Co. Pty Ltd v Leichhardt Council [2009] NSWLEC 1023
PARTIES:

APPLICANT
Canangles Creek Pastoral Co. Pty Ltd

RESPONDENT
Leichhardt Council
FILE NUMBER(S): 10466 of 2005
CORAM: Hussey C
KEY ISSUES: SECTION 96 MODIFICATION :- make permanent late night trading hours, Amenity impacts, antisocial behaviour
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan
DATES OF HEARING: 23/01/2009
EX TEMPORE JUDGMENT DATE: 23 January 2009
LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Staunton, barrister
Instructed by Wilshire Webb Staunton Beattie

RESPONDENT
Ms J. Reid, solicitor
of Pikes Lawyers

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Hussey C

      23 January 2009

      10466 of 2005 Canangles Creek Pastoral Co. Pty Ltd v Leichhardt Council

This decision was given extemporaneously.


It has been revised and edited prior to publication.


      JUDGMENT

1 This matter concerns a s 96 AA application to modify the conditions of consent, particularly to make permanent the late night trading conditions for the Annandale Hotel, situated on the corner of Parramatta Road and Nelson Street, Annandale.

2 The consent was granted by the Court on the 6 February 2007 and included a trial period to allow the hotel to extend its trading hours from 12 midnight until 1am on Thursday, Friday and Saturday. Other restrictions were placed on the use of the outdoor beer garden. This application is to make permanent those extended hours from 12 midnight to 1am.

3 The conditions of consent required compliance with a Plan of Management, which required the maintenance of a complaints register to allow, amongst other things, review of the hotel’s performance in being a good neighbour within the surrounding neighbourhood.

4 The s 96 application has been assessed by council officers who recommended it be approved and the parties have accordingly basically agreed to consent orders, subject to the final detailing of some conditions.

5 Notwithstanding this, the application was notified and a number of written and oral objections made and they have been considered. These objections can be summarised in the following categories.


      Antisocial behaviour;

6 According to some neighbours, there is still some late night activity in this neighbourhood arising from patrons to the hotel and the other three nearby hotels and McDonalds, which causes them concern. However, I do not consider that there was any particular evidence, which establishes that the patrons of this hotel have caused such material disamenity to warrant the rejection of the 1 hour extension to 1am.

7 Instead the operator has instituted security patrols around the neighbourhood streets to provide a visual presence and introduced the complaints register to which minimal complaints by the neighbours have been registered. But when any complaints have been notified to the operator, it appears to me that they have been satisfactorily responded to.

8 It also appears to me that the hotel management initiatives to have regular meetings with the neighbourhood is worthwhile and provides a forum to deal with any antisocial behaviour issues. However most of the residents have not availed themselves of the opportunity to discuss any issues with the hotel management. Ultimately I do not consider that there has been any compelling evidence presented to reject the additional 1 hour trading on the basis of this antisocial behaviour.

Traffic

9 According to the objectors, there is a problem with car parking in terms of availability of car parking spaces and noise/antisocial behaviour when people access their vehicles late at night.

10 This parking issue was originally addressed on the basis of the expert evidence, which supported the application. Nevertheless, I accept that there is obviously competition for the limited available parking spaces in this neighbourhood and that there are various management options to deal with this.

11 In this regard, the Court was informed that a ‘Resident Parking Scheme’ option has been considered, but not given sufficient support to gain council approval. Such scheme would presumably give priority parking to the residents. This indicates to me that the current level of on-street parking service is considered acceptable.

12 Notwithstanding this, I am satisfied from the original evidence that there is available car parking for the development and the residents, although this involves a degree of competition for the spaces and it may not be to the level of service expected by some of the residents. I am satisfied that it could be addressed by a review of parking policies.

13 In this regard, I have also considered that the regular controls by the security personal should provide a reasonable presence to limit antisocial behaviour for those people go into the residential area to retrieve their cars and leave the area and that there is no compelling evidence to reject the application on the grounds of unsatisfactory parking.

Rubbish

14 Concern about unsatisfactory disposal of paper waste, packaging and beer bottles was expressed by a number of the objectors. However, the examination of these complaints did not substantiate that they are solely attributable to the Annandale Hotel.

15 The conditions of consent require the hotel to regularly undertake a specific street cleaning program in the hotels environs. I understand this has been undertaken in the trial period and I am satisfied that this condition should result in a reasonable level of street cleaning resulting from the hotel operations. Considering that some of the complaints are about the rubbish from other venues e.g. hotels and McDonalds, then if a high level of community street cleaning is required, it seems to me that this is also a broader policy matter for consideration by council.


16 My conclusions that having considered the evidence I am satisfied that:

          i) The s 96 application refers to the approved development.
          ii) The application has been notified and the objections considered.
          iii) Under these circumstances I have considered the merits of the application, which is predominately to permit the extension of the trading hours from 12 midnight to 1am on Thursday, Friday and Saturday night. Accordingly, I am satisfied appropriate consent orders along the lines of Exhibit 4 could be made.

17 However, some further review of conditions is required to better address some of the matters raised by the objectors. These matters include:

      • Response arrangements by the security personnel.
      • Specific arrangements for regular neighbourhood meetings.

18 In addition to the foregoing reasons, I have considered the support letters from a number of other members of the community and businesses in the area that compliment the hotel on the initiatives it has taken during the trial period resulting in improved amenity of the area. I also note that the application was referred to the police department who raise no objection to the extended hours.

19 Taking into account these circumstances, then I think that appropriate consent orders could be granted, subject to appropriate conditions agreed by the parties. Such orders to be in the form of Exhibit 4, but modified with a shorter order to go with the consolidated set of conditions. Accordingly, I direct the parties to file and serve updated draft orders/conditions by next Thursday. The matter is stood over for mention at 9.30am on Monday 2nd February 2009.

___________________

      R Hussey
      Commissioner of the Court
      ljr

Annexure ‘A’


Conditions of Consent

    Canangles Creek Pastoral Company v Leichhardt Council
    17-19 Parramatta Road Annandale - The Annandale Hotel

    Pursuant to Section 80(1) of the Environmental Planning & Assessment Act 1979 the consent authority grants consent to Development Application No. D/2004/684 (amended by the Land and Environment Court on 6 February 2009) for the extension of trading hours at 17-19 Parramatta Road, Annandale subject to the following conditions:

    General Conditions

    1 Approved plans
        The development shall be implemented in accordance with the details set out in the statement of environmental effects prepared by ABC Planning dated October 2004 and the acoustic assessment prepared by the Acoustic Group dated 14 February 2005 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder.

    2 Class and rise of Building
        The building is classified as a Class 9b building having a rise of 2 under the Building Code of Australia.


    3 Intentionally omitted.

    Conditions that must be satisfied prior to the commencement of the extended operating hours permitted under this consent and are an ongoing requirement of Development Consent (amended by the Land and Environment Court on 6 February 2009)

    4 Intentionally omitted (deleted by the Land and Environment Court on 6 February 2009)

    5 Acoustic works (amended by the Land and Environment Court on 6 February 2009)

    (a) The hydraulic door closer fitted to the door at the western end of the main bar area adjacent to the northern end of the stage that provides patron access to and from the beer garden shall be maintained. The door shall be fitted (on all four sides) with acoustically effective sealing elements, that ensure that when the door is closed, it will achieve the optimum (maximum) level of airborne sound attenuation.

    (b) The western exit doors from the ground floor entertainment area incorporate two sets of double doors. The inner set of double doors are to be modified to reduce the large gap at the bottom of the doors. Acoustic drop seals are to be installed on the bottom of the inner doors. The existing acoustic seals on both sets of doors are to be examined, adjusted or replaced as required. Following the installation of the side, head, threshold and astragal (at centre junctions) seals the contractor and/or acoustic consultant shall initially confirm the adequacy of the installation by optically testing them by means of a high intensity light source that shall move progressively over each section of the doors perimeters and astragal junctions. The procedure requires the contractor and/or consultant to visually confirm that there is no trace of light leakage and confirmation by the contractor and acoustic consultant is to be submitted to the Council.

    (c) The rear doors from the ground floor entertainment area to the bistro area are to be adjusted for correct operation and all threshold and acoustic seals replaced. The space between the two doors is to have acoustic absorption fixed to the underside of the ceiling and the upper portion of the walls from a height of 2.0 metres. The acoustic absorption is to be 50 mm thick polyester or fibreglass building blanket with a density of not less than 48kg/m2 and faced with painted perforated metal having a minimum open area of not less than 18%.
            Confirmation the works required by conditions 5 (a), (b) and (c) above have been completed shall be provided to Council. Following implementation of the works required by this condition the seals shall be maintained to ensure compliance with condition 17 of this consent.

    Conditions that are ongoing requirements of Development Consent

    6 Approved use

    The premises shall not be used for any purpose other than that stated in the Development Application, i.e. hotel without the prior consent of the Council unless the change to another use is permitted as exempt development under Leichhardt Development Control Plan 35 – Exempt and Complying Development .

    The use of the premises as a hotel is defined under the Leichhardt Local Environmental Plan 2000 as follows:
        Hotel means premises, including a tavern, specified or proposed to be specified in a hotelier's licence granted under the Liquor Act 1982, whether or not the premises provide accommodation.

    7 The hours of operation are regulated as follows (amended by the Land and Environment Court on 6 February 2009) :

    (a) The hours of operation of the premises shall be restricted as follows:
        • Monday, Tuesday and Wednesday: 10:00am to 12 midnight
        • Thursday, Friday and Saturday: 10:00am to 1:00am (the following morning)
        • Sunday: 10:00am to 12 midnight

    · The outdoor beer garden is to cease use at 11:00pm on any night and all patrons are to be moved inside the premises no later than 11:30pm and access to the beer garden area is to be restricted after that time.

    (b) Intentionally omitted (deleted by the Land & Environment Court on 6 February 2009)

    (c) The hours of operation are subject to the following restrictions (amended by the Land and Environment Court on 6 February 2009) :

    i. No live entertainment is to be provided in the beer garden at any time;

    ii. On Thursday, Friday and Saturday nights there is to be no live entertainment after 12:30am (the following morning);

    iii. On Sunday. Monday, Tuesday and Wednesday nights there is to be no live entertainment after 11:30pm;

    iv. Service of alcohol is to cease at 12:30am on Thursdays, Fridays and Saturdays, and at 11:30pm on Sundays, Mondays, Tuesdays and Wednesday;

    v. No entry to the premises by patrons is permitted on Thursdays, Fridays and Saturdays after 12:30am (the following morning).

    (d) Intentionally omitted (deleted by the Land & Environment Court on 6 February 2009)

    8 Management Plan (Amended by the Land & Environment Court on 6 February 2009)
        8.1 The operation of the Hotel is to be implemented in accordance with the Plan of Management - Version H (shortform) - for the Annandale Hotel prepared by Daniel John Rule, dated 30 January 2009 as amended in accordance with 8.2.
    8.2 The Plan of Management shall be amended to reflect the hours of operation approved as part of M/2008/204 and shall include the following:
      • All reasonable endeavours are to be used to answer the mobile telephone residents are to contact to make a complaint when the hotel is operating. Security will carry this phone when on patrol and will check this phone before and after each patrol for missed calls. If a call is missed for any reason then either security or the Duty Manager will return the call within the hour and prior to the Hotel closing for the night. This phone must have a message bank..
      • The Hotel is to convene meetings with local residents every 3 months to discuss any matters arising from the operations of the Hotel.
      • The Hotel is to maintain the newly installed CCTV in an operating condition and at least two weeks of recordings shall be retained and made accessible to the Police upon request for the purpose of a criminal investigation.
        except where modified by the conditions of development consent.
    9 The number of persons on the premises at any one time (including staff and entertainers) shall not exceed 296 persons.
        9.1 When live entertainment is playing at the hotel, the Duty Manager is required to use a hand held counting device to record the number of persons on the premises on an hourly basis and record the figure in a register. Such register is to be maintained by the Manager and is to be in a diary form providing crowd details and the number of security on duty for each day of the year. The Licensee will be responsible for retaining the register for the past calendar year. This register must be provided to officers of Leichhardt Council and/or the NSW Police upon request.

    10 Security personnel - licensed premises
        10.1 Number of Guards
            (a) A minimum of two (2) uniformed security personnel licensed under the Security Industry Act 1975 shall be engaged by the licensee to perform security duties on:
    - Thursday, Friday and Saturday nights;
    - any night when there is live entertainment playing; and
    - any other nights where organised entertainment ceases after 11 pm.

            (b) An additional security person licensed under the Security Industry Act 1975 shall be provided when an event is fully booked or has more than 200 patrons attending. That is, three (3) uniformed security personnel will be provided when an event is fully booked or has more than 200 patrons attending.
        10.2 Security Hours

    (a) When security is on duty the first security guard will commence at 8:00pm and any further security guards will commence at 9:30pm.

    (b) All security guards will remain on duty until the later of close of business and the time when the streets and patrol area have been cleared of patrons from the Hotel.
            (c) If no contracted security guards are on duty then a staff member with a security industry license shall perform the function of security inside the Hotel and conduct the external residential patrols commencing at 10:00pm and continuing until the later of close of business and the time when the streets and patrol area have been cleared of patrons from the Hotel.
            (d) When security guards are not on duty or are stationed on the street then staff must perform the security sweeps and duties inside the Hotel.
        10.3 Access arrangements

    (a) From 8 pm all entry points to the hotel are to be closed except for the Parramatta Road entrance and the bistro/beer garden entrance.

    (b) From 10 pm the only access into the hotel is to be from the Parramatta Road entrance. There are to be signs affixed next to the other points of access identifying this restriction and directing patrons to the Parramatta Road entrance after the nominated time.
        10.4 Stationing of Personnel and Patrols

    (a) The Parramatta Road entry point is to be stationed by one (1) security person or one (1) doorman until the later of close of business and the time when the streets and patrol area have been cleared of patrons from the Hotel. The person on the door must ask departing patrons to leave quietly and quickly.

    (b) Another one (1) security person is to perform duties within the premises and conduct half-hourly external residential patrols as detailed in the approved Plan of Management.

    (c) The external patrols will commence at 10:00pm and continue each half hour until the later of close of business and the time when the streets and patrol area have been cleared of patrons from the Hotel.
            (d) From 12 midnight until 1:45 am or until the time when the streets and patrol area have been cleared of patrons from the Hotel, all security guards on duty shall be stationed on the street and shall patrol between the corner of Parramatta Road and Nelson Street and along the patrol routes attached to the Plan of Management. One security guard will be stationed in the zone between the Northern entrance to the beer-garden and Albion Street and a second security guard will be stationed in the zone between the Southern side of Albion Street and a point one hundred metres to the North West of Albion Street. The second security guard shall also make short forays to both the West and East along Albion Street at those times and on those occasions when observing people that are believed to be patrons of the Hotel entering Albion Street.
        10.5 Clothing
            The security guards or any Hotel personnel performing external residential patrols must wear a reflective vest labelled “SECURITY” and carry a powerful torch and wireless communication system whilst conducting patrols and must be fully briefed on the Hotel’s security protocol including how they should address and or caution potentially inebriated or unusually vocal patrons or pedestrians in order to minimise their likelihood of disturbing the quiet and good order of the neighbourhood.
        10.6 Duties
            When on the street the security guards or any Hotel personnel performing external residential patrols must ask any departing patrons making noise to leave quietly and quickly and must ask any patrons loitering to move on.


    11 Closing Procedures

    The following actions are to occur at least 30 minutes prior to closing every evening to encourage patrons to leave:
        a) The lighting will be turned up;
        b) The air conditioning will be turned up; and
        c) The bars will stop serving alcohol.


    12 Closing Announcements

    Announcements will be made at the cessation of live entertainment to the effect that patrons should make use of the toilet facilities prior to departure and leave the premises and the vicinity quickly and quietly to avoid disturbance of the neighbourhood.

    13 No drinks or glasses to leave premises

    Patrons will not be permitted to leave the premises with drinks, bottles or glasses.

    14 Sign-advice to patrons leaving premises
        A clearly visible sign shall be permanently erected immediately adjacent to the entry/exit doors indicating that patrons are to leave in an orderly fashion and shall leave the vicinity of the premises in a manner that does not disturb the quiet and good order of the neighbourhood.

    15 Complaint handling
        (a) A sign shall be placed on the Nelson Street frontage of the hotel advising residents to forward any complaints regarding the operation of the premises to the Duty Manager of the hotel and providing a current phone number. The sign should state that complaints can be made 24 hours a day, 7 days per week.
        (b) All complaints are to be recorded in the Complaints Register / Incident Book in accordance with the procedure outlined in the Plan of Management.
        (c) In the event of a complaint being received by the licensee from a neighbouring resident with respect to a disturbance to the quiet and good order of the neighbourhood, the licensee or his/her employee(s) shall respond to such a complaint in a sympathetic and effective manner.

    16 Responsibilities of the Duty Manager
        (a) A suitably qualified and trained licensee or duty manager must be on the premises at all times during trading hours. The licensee or duty manager shall conduct at least two evening inspections outside the nearest potentially affected residence when amplified music, whether live or recorded, is played to confirm using a hand held noise monitoring device that noise emissions from the Hotel’s amplified system are complying with the Hotel’s noise related consent and license conditions. If non-compliance is observed, the licensee or duty manager must immediately take all necessary steps required to rectify the non-compliance. The results of each inspection must be recorded in a permanent log book provided for that purpose and must be signed off by the licensee or duty manager. This log book shall be made available for inspection by Council officers, the NSW Police and the LAB if required.
        (b) The licensee or duty manager is to ensure that all litter generated by the hotel is to be collected in a quiet manner. Litter collection should take place between 8 am and 10 am each morning.

    17 Acoustic Conditions

        (a) Operation and use of the premises shall not give rise to: “offensive noise” as defined in the Protection of the Environment Operations Act, or “disturb the quiet and good order of the neighbourhood: as required by the Liquor Administration Board.
        (b) The operation of the subject premises shall comply with the noise emission requirements set down by the New South Wales Environment Protection Authority and standard criteria issued by the Liquor Administration Board.
        (c) The LA10* noise level emitted from the licensed premise or restaurant shall not exceed the background noise level in any octave band centre frequency (31.5Hz – 8KHz inclusive) by more than 5dB between 7:00 am and 12:00 midnight at the boundary of any affected residential premises.

            The LA10* noise level emitted from the licensed premise or restaurant shall not exceed the background noise level in any octave band centre frequency (31.5Hz – 8KHz inclusive) between 12:00 midnight and 7:00 am at the boundary of any affected residence.

            Notwithstanding compliance with the above, the noise from the licensed premises or restaurant shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 7:00 am.
            * For the purposes of this condition, the LA10 can be taken as the average maximum deflection of a conventional sound level meter with a d’arsovinal meter movement (class 1 meter) of the noise emission from the licensed premise or restaurant.

        (d) All amplification of sound in the main bar must be operated via the installed front of house system. No additional items of electronic equipment, such as additional fold back systems, supplementary sound amplification systems, or other amplified equipment not controlled by the limiters on the front of house system and/or fold back system shall be permitted within the Hotel that could provided further increases in sound amplification levels.

        In the event that hired entertainers wish to utilise self powered or self amplified equipment the use of that equipment shall only be permitted where it can be shown that the peak amplification levels that such equipment is capable of providing will not result in unweighted sound pressure levels in excess of 100dB as measured at a distance of 1 metre from the face of the loudspeaker (s) that may be incorporated therein.
        (e) No changes shall be permissible or may be made in the operating parameters of the existing sound amplification system.
        (f) The musicians who are contracted to play at the Hotel must utilise the Hotel’s existing sound amplification system (the house system) for which permission has been granted and which is restricted to the equipment currently installed with their current amplification settings. The manager or lead musician of each group of musicians who are engaged to play at the hotel shall sign a contract with the Hotel which informs them of this and obtains their agreement to comply with the conditions of this consent.
        (g) The provision of amplified entertainment (or rehearsals) in the ground floor entertainment area can only occur with the Nelson Street doors and windows to the entertainment area closed.

        (h) All amplification equipment used in the premises is to be controlled by a root mean square (RMS) noise limiter, calibrated by an acoustic engineer. All supplementary covers provided for the RMS volume limiting setting equipment and its controls shall be covered by a sturdy metal cover fabricated from electro-galvanised steel not less than 1.6mm thick with appropriately folded edges to preclude tampering with the controls. The cover shall be secured by sturdy and strong hinges whose fittings and/or fixings are inaccessible when the cover is closed and securely locked.

        The key for the lock on the cover for the limiter controls shall not be held by the Licensee or the Hotel’s management and must be held by the hotel’s sound system contractor who shall make the key available to the acoustical engineer responsible for the periodic calibration of the controls and/or the Council should it request the key.

        In the event that the locked panel is opened for servicing, or checking of the controls and related functions associated with the system calibration and certification, then a certificate shall be issued on each occasion that shall specify the nature of the work that was carried out and confirm that the control settings have not been altered.

    18 Garbage disposal – licensed premises.
        No bottle, can or garbage disposal shall take place outside of the building between the hours of 6:00 pm and 10:00 am daily.

    19 Loading of Equipment
        Loading and unloading of band equipment shall not occur on Nelson Street after 8pm.

    20 CCTV ( added by the Land and Environment Court on 6 February 2009 )
        The existing security cameras shall be maintained in an operating condition and at least two weeks of recordings shall be retained and made accessible to the Police upon request for the purpose of a criminal investigation.

    ________________________
    R Hussey
    Commissioner of the Court
    ljr

    Advisory Notes

    1. Intentionally deleted. (deleted by the Land & Environment Court on 6 February 2009)

    2 Copy of Development Consent to be kept on site.
        For the duration of any work on site, the builder must maintain a copy of the specification, stamped approved plans, copy of Development Consent and Construction Certificate on site.

    3 Other approvals
        This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, including:
        • an Application for Approval under Section 68 of the Local Government Act 1993 for a Place of Public Entertainment if proposed. Further building work may also be required for this use in order to comply with the Building Code of Australia. If there is any doubt as to what constitutes “Public Entertainment” do not hesitate to contact Council’s Fire Officer.
    4 Modifications to your consent - prior approval required

        Works or activities other than those authorised by the approval including changes to building configuration or use will require the submission and approval of an application to modify the consent under Section 96 of the Environmental Planning & Assessment Act 1979 . You are advised to contact Council immediately if you wish to alter your approved plans or if you cannot comply with other requirements of your consent to confirm whether a Section 96 modification is required.

        Warning: There are substantial penalties prescribed under the Environmental Planning and Assessment Act 1979 for breaches involving unauthorised works or activities.


    5 Advertising Signs

    Unless development consent has been obtained or can be assumed in accordance with Leichhardt Development Control Plan 35: Exempt and Complying Development , a development consent is to be obtained, prior any advertising structure, sign, notice, device or representation in nature of an advertisement being erected, fixed or displayed on the land or on any building thereon.

    6 Amendment to the Plan of Management

    If the terms of the Plan of Management referred to at condition 8 of this consent are to be amended the Applicant must lodge a Section 96 Modification Application to Council.
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