Copatress Pty Limited v South Sydney City Council
[2004] NSWLEC 65
•01/29/2004
Land and Environment Court
of New South Wales
CITATION: Copatress Pty Limited v South Sydney City Council [2004] NSWLEC 65 PARTIES: APPLICANT
RESPONDENT
Copatress Pty Limited
South Sydney City CouncilFILE NUMBER(S): 10008 of 2002 CORAM: Hoffman C KEY ISSUES: Appeal :- refusal of extension of trading hours for a Hotel
can the change of hourse be allowed under a s.96 application
potential for nuisance to occupants of dwellings nearby
expectations of amentiy in a mixed use zone.LEGISLATION CITED: Liquor Licensing Act
South Sydney Development Control Plan 1997
South Sydney Local Environmental Plan 1989CASES CITED: DATES OF HEARING: 01/12/2003, 02/12/2003 and 29/01/2004 EX TEMPORE
JUDGMENT DATE :01/29/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr N. Hemmings, Queens Counsel
instructed by
Ms J. Glubb, solicitor
of Allens Arthur RobinsonRESPONDENT
Mr S. Griffiths, solicitor
of Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10008 of 2002
Hoffman C
29 January 2004
Copatress Pty Ltd
Applicant
v
South Sydney City Council
Respondent
Judgment
1. This was a class 1 appeal no 10008 of 2002 between Copatress Pty Ltd v South Sydney Council in regard to the refusal of extension of trading hours for the Buckland Hotel on the corner of Mitchell Road and Buckland Street Alexandria.
2. A trial period of the extended hours had been permitted for twelve months in June 2002. It was continuing to operate whilst this appeal is heard. The approved hours are 8am to midnight Monday to Saturday, 10am to 10pm Sunday. The proposed hours are 8am to 3am the next morning Monday to Saturday and 8am to midnight on Sunday.
3. Behind the hotel was a new townhouse complex with frontage to Buckland Street. One of the townhouses, unit 5, 100 Buckland Street, was directly next to the service yard and open loading dock of the hotel, separated only by a boundary wall and a pedestrian walkway within the townhouse complex. There were no windows, however, facing the hotel. It was a blank masonry wall.
4. The owners had lodged an objection to the proposal related to the lack of care taken by the hotel management in observing existing conditions of consent to prevent such disturbances as:
(1) late night noise of moving tables and chairs and bollards on the footpath when they are removed and stacked;
(2) late night noise of kegs being moved and stacked in the service yard;
(3) sorting of bottles on the footpath with noise and also shards of glass left on the footpath;
(4) no collection of bottles, coasters, cigarette butts and rubbish left outside and in the front gardens of 100 Buckland Street as a result of patronage of the hotel;
(5) late night and very early morning collection of commercial garbage at least twice week with attendant noise of truck hydraulic rams, garbage dropping and bin dumping;
(6) noise from the use of a steel shipping container in the service yard being accessed at night as a wine store;
(7) location of the container in the service yard such that bottle and rubbish collection had to be done on the footpath instead of in the service yard;
(9) being awoken at night regularly as a result of these disturbances.(8) patrons of the hotel stopping outside number 100 to talk on mobile phones, to smoke and talk together, sometimes loud and abusively;
5. Apparently some steps had been taken by Copatress Pty Ltd to reduce these disturbances as the applicant tabled in exhibit B a letter from the resident owners of unit 5 100 Buckland Street withdrawing their objection subject to these disturbances being reduced and there being compliance with conditions of consent to ensure their quality of life and the provision of a direct line of communication to the hotel management to immediately deal with any further disturbances.
6. Next to the hotel, along Mitchell Road, was a car repair yard and then a warehouse. Across Mitchell Road from them were some Victorian terrace houses but opposite the hotel and extending along Mitchell Road some distance north of the intersection with Buckland Street was a school. This was due to Buckland T-intersecting with Mitchell, the latter being a sub-arterial busy road. Across Buckland Street was an old shop converted into a residence and then eastwards along Buckland were terrace houses and old warehouses converted to apartments facing a large park. The park occupied most of Buckland Street on the same side as the hotel, except for the townhouses at number 100 and other apartments between number 100 and the park.
7. The issues were:
(1) Whether the development to which the consent as modified relate to substantially the same development as the development for which consent was originally granted.
(2) Whether the proposal will adversely impact on the amenity of the surrounding residential area.
(3) Whether the proposal is consistent with the objectives of zone 10(b) of South Sydney Local Environmental Plan 1998 .
(4) Whether the proposal satisfies the requirements of Part E s 6 Operational Controls of South Sydney Development Control Plan 1997. (DCP1997)
(5) Whether the proposal satisfies the requirements of Part F s 4 of DCP 1997.
(6) Whether the deletion of condition 4 relating to the draft plan of management will be detrimental to the future operation of the hotel.
(7) Whether the amenity of the local residents was affected during the trial period of the extended trading hours for the hotel.
(8) Whether the extended hours of operation during the trial period resulted in an increase in antisocial behaviour in relation to the hotel and/or its patrons.
(9) Whether adequate information has been provided in order to satisfy condition 3(b) of the conditions of development consent granted by the Court.
(10) Whether the proposal is consistent with the draft South Sydney Development Control Plan Late Night Premises and particularly the performance criteria and controls in relation to local hotels.
(12) Issues raised by objectors.(11) Circumstances of the case in the public interest.
8. The Court heard the respondent’s evidence from:
- Mr S Banstra, objector and resident of unit 5, 147 Buckland Street;
- Ms C Lewis, objector and director of the company owning one of the townhouses in 100 Buckland Street, the third townhouse from the hotel;
- Mr L Challis, acoustic engineer;
- Mr K Nash, town planner.
9. The applicant’s evidence was heard from:
- Mr DW Smith, town planner.
10. There were some submissions about the s 96 application to amend the consent issued on 19 June 2002 for the trial period by deleting the condition about the trial period and inserting the proposed hours of operation. The respondent said a fresh application was required. The Court notes the original development application was for the same hours as now proposed and they were the same hours as the trial period. Also, Commissioner Bly said at paragraph 33 of his judgment
“I have decided that the application for extended hours should, with some changes, be approved.”
- and in paragraph 40 said
- “I accept that a trial period of twelve months as sought by the applicant would be reasonable. I have also amended the condition in relation to its reference to the lodgement of a further development application to continue the hours of operation beyond the twelve month trial.”
11. In this hearing, the Court has formed the opinion from reading the original draft condition 3 and the approved conditions 3(a) and 3(b) that the option was open to the applicant to lodge either a s 96 application or a fresh development application. The assessment of a s 96 application is different to that of a fresh development application. The Court does not revisit the whole of the original reasons for the approval. The Court must look at the proposal with and without the modification to see if the modification would make it too big, too ugly or in this case too noisy and too great a loss of amenity for the neighbours.
12. It was interesting that Mr Challis, the acoustic expert, and Mr Nash, the town planner, did not visit the site between midnight and 3am, although there was noise measuring equipment set up by Mr Challis on the first floor balcony of unit 5, 100 Buckland Street, the closest residence to the hotel. Nine days of twenty four hour noise measurements were taken.
13. When it came to a Court view, the parties agreed the most active night time period would be 10pm to 11pm on Thursday of the week of the hearing. That was the period the view was carried out.
14. Mr Challis agreed that for neighbours there was no noise nuisance from inside the hotel. The building had been specifically changed with recent alterations and additions to prevent internal noise escaping the building. It was evident on the view and from Mr Challis’s evidence and the objectors that it was external impacts of patrons arriving and departing that had, during the trial, caused some impacts and would cause some impacts in the future if the s 96 was allowed.
15. The main question for the Court to consider was whether or not there might be such a number of nuisances and such types of disturbances that would have unacceptable impacts on the amenity of neighbours.
16. There were no police objections to the extension of hours, even though there had been incidents of two holdups, the discharge of a firearm inside the premises and two break and enters during the trial period. The security logs had been kept during the trial and had been perused by both parties. Incidents had been recorded but none had eventuated in formal complaints to the hotel, except for those now withdrawn by the owners and occupants of unit 5, 100 Buckland Street.
17. Some complaints had been received by council however and there were seven objections lodged to the extended hours. There had not been, during the trial period, an application under s 104 of the Liquor Licensing Act to the Liquor Administration Board to review the hotel’s operations, although some nearby residents had attempted to rally support for such an action.
18. The reason for this apparent lack of need to visit the site between midnight and 3am could partly be found in Mr Challis’s noise measurements showing that between midnight and 3am the major noise source was vehicles in Mitchell Road. Apart from the noise of vehicles passing, there was a traffic counter near the corner of Buckland and Mitchell that went bump, bump as each car passed over it. Mr Challis found that the background noise level during the day was between 50 and 60 dBA and at night from midnight to 1am was 5-15 dBA below that and from 1am to 3am was 5-18 dBA below the daytime level. This brought late night and early morning background noise levels to around the 40 dBA level which is good for sleeping. He recorded sound levels of a rowdy departure from the hotel with car engines, door slams and loud talking that was 35 dBA above background measured at the nearest house, that is unit 5, 100 Buckland, and the noise would not be much less for other houses nearby. That amount of noise is sleep arousal if it gets inside a bedroom.
19. The evidence was Ms Lewis’s company townhouse had double glazed windows and was air conditioned. Mr Challis said when he put the noise equipment on unit 5 number 100 Buckland there was double glazing in that townhouse too, but no door seals, and the cracks between the door and the door frame were such that he could fit his cables through and still close the door. This would minimise the benefit of double glazing in his opinion. He thought the noise in the bedroom would still cause sleep arousal.
20. Mr Banstra lived about 100 to 120 metres from the hotel along Buckland Street. He had several instances during the twelve months trial that caused him to hear noise from the hotel and hear patrons come past his house still being rowdy. He was a taxi driver and had transported people to the hotel late at night and seen one passenger urinate on the fence of 100 Buckland Street before entering the hotel. He had seen dried vomit on the footpath outside the hotel in Mitchell Road that remained for weeks. He had heard the applicant’s submissions that there was no migration from other hotels in the locality that closed at midnight. Those that wanted to continue to drink could do so at the Buckland Hotel because it closed at 3am. As a taxi driver, working late at night in the area and as a local resident, he knew persons came from Botany Road hotels to the Buckland.
21. Cross-examination indicated that not all of the incidents Mr Banstra complained of were related to the hotel, but some were.
22. Ms Lewis said the company townhouse was used to house staff, sometimes with their families, who had to travel to Sydney on business. She often had to discuss business with them after hours and came to the Buckland Street unit. She had never seen security staff outside the hotel and had seen rubbish bins on the footpath with overflowing rubbish blowing around. She said staff staying at the unit had complained of being woken at 1am to 3am, also her experience had been that parking in Buckland Street was very congested at night. This was confirmed during the view by the Court. Cars were parked all along Buckland Street both sides, including adjoining the park, but in Mitchell Road there were hardly any cars parked, even though there was ample space. Ms Lewis said her company had never complained to the hotel as her staff were only temporary residents and her company had expected the council and the police to closely observe the hotel during the trial period. She had come to give evidence because she did not think that had been done.
23. Mr Challis’s evidence was somewhat lessened in weight because he had written his report assuming the hotel did not operate between midnight and 3am after expiry of the trial period which was during his noise level recordings. He relied on his staff saying the lights dimmed at midnight and persons they assumed to be staff left shortly thereafter. It seemed the hotel turned off the external lights at midnight and the outside doors were closed, some earlier than midnight, and the security staff stood inside the glass doors and only admitted persons they considered to have acceptable presentation and behaviour and not displaying obvious drunkenness.
24. It was curious that Mr Challis, and he said his staff, and Ms Lewis, all said they never saw security personnel patrol the locality. However, when questioned, Mr Challis had only visited the site on three occasions, on each occasion for less than one and a half hours. Ms Lewis presumably was only in the street a short time going from car to house and Mr Challis’s staff were not called for cross-examination. Security logs of patrols were in evidence, so it appeared patrols were done.
25. Mr Nash’s evidence was that the zoning was 10(b), a mixed use zone. The objectives of the zone included provisions to minimise impacts on residential amenity that might be caused by non-residential uses. Part of the objectives was to control activities that could cause nuisance by restricting operating hours, specific impact mitigation requirements and controlling noise, vehicular and pedestrian traffic or other factors.
26. The Alexandria area is going through a transition where many industrial sites are being redeveloped with high density apartment complexes. The increased residential occupancy emphasises the need for protection of residential amenity. The council has exhibited a draft Development Control Plan for control of late night premises. Under the applicable section on local hotels and trading hours it is intended that:
- they not trade between midnight and 7am and
- any public entertainment cease by 10pm Sunday to Thursday and 11.30pm Friday and Saturday and
- the external footpath tables should be used only up to 10pm Monday to Saturday and 8pm Sunday.
27. It also has controls on garbage collection, bottle sorting and other nuisance generating activities, including the need for a plan of management.
27. Mr Nash’s opinion was that the existing statute and South Sydney Development Control Plan 1997 aimed at the sorts of specific controls contained in the draft Development Control Plan and there would be late night impacts on residents if extended hours were permitted. Even with good management of the hotel, some events were inevitable. The opportunity to prevent those impacts was refusal of this s 96 application in his opinion.
28. Mr Smith’s evidence showed that the hotel did trade most nights during the trial period until 1.30am and 3am and closed only occasionally at midnight. After 1am there were rarely more than ten patrons in the hotel, according to the log books. Maximum numbers occasionally reached over 117 persons in the evening up until 10pm, dropping to fifty persons around midnight, thirty eight at 1am and twenty two at 2am. If persons did migrate from other hotels that closed at midnight it did not result in a build up of numbers at the Buckland Hotel. He thought these trading numbers would remain similar if extended hours were granted. No public entertainment in the premises was proposed that would increase the numbers.
29. The robberies and firearm discharge during the trial period were not related to the late night trading he said and no objectors had indicated any awareness of the incidents, so they did not impact on local amenity and had not given rise to any objection by the police to extended hours.
30. He acknowledged that the coming and going of patrons late at night and the refusal of entry to intoxicated or badly behaved persons would have the potential to impact late night amenity of local residents. He considered the conditions of consent and the plan of management of the hotel would minimise these occurrences.
31. He noted the council report of 29 November 2001 recommended approval of the extended hours subject to conditions that the applicant accepted. The report had noted there were individual uses next to the hotel on Mitchell Road, and the school opposite that, late at night, provided ample on street parking close to the hotel. People with cars would use that and not the heavily parked-out residential street of Buckland. As a result, noise nuisance from cars stopping, starting, doors slamming et cetera, would be away from most nearby houses.
32. The hotel is on Mitchell Road, a heavily trafficked street. The noise measurements showed that traffic was the major noise source in early morning hours; the hotel was not. The zoning intends the area to have a mixed use character containing “vibrant, non-residential uses” according to the applicable controls. The hotel is one such use that directly relates to lifestyle, relaxation and social interaction within walking distance of hotel patrons’ houses. The amenity of the area therefore should not be expected to be the same as quiet suburbia.
33. The plan of management provides for minimisation of nuisances to residential neighbours and s 104 of the Liquor Act is available to residents to seek to have operating hours reduced and more controls imposed if activity of the hotel becomes unacceptable. The applicant said it would accept the draft conditions put by the respondent in exhibit 12, including annotations made in writing, although the applicant put to the Court condition 3 requiring amendment of the Plan of Management was unnecessary.
34. The existing Plan of Management with a signature on it was exhibit D, annexure 7, dated July 2002 by Design Collaborative. A reading of it made clear to the Court that it would have to be updated to reflect the draft conditions in exhibit 12 in the event of any consent and there being no updated draft at this hearing the amended version must be to council’s satisfaction.
35. One of the main concerns the Court has, having heard the evidence, is the potential disturbances by persons refused entry to the hotel. Technically they are not patrons and if they are refused entry for reasons of intoxication or unacceptable behaviour, their disappointment may be visited on the nearest neighbours and other households along their direction of walking. The same could apply to persons ejected from the hotel for similar reasons. The management plan makes some mention of such persons and proposes patrols by security persons in Mitchell Road as far as Buckland Lane and Fountain Street, and in Buckland Street from Mitchell Road to the Cleveland High School boundary at the park. Cleveland High School is another school in the locality, not the one opposite the hotel.
36. Important in keeping the numbers of such persons to a minimum is the draft condition that the hotel not become a place of public entertainment, because that would cause it to become a destination for many more persons than simply as a hotel to serve the local population.
37. The respondent put that the consent for the trial period has lapsed and did lapse before this s 96 application. As a question of fact, the respondent put the s 96 application is of no effect.
38. The applicant put, if that is the case, it would continue to trade on prior approvals to midnight without the controls afforded by conditions of consent and Plan of Management in the current application before the Court. Also, the applicant put that the lapsing of the previous consent would be a question of law which should have been raised prior to this hearing. The Court takes this no further as it was not pressed by either party.
39. The respondent did not argue the existence of the option of continuation of operation of the hotel with midnight closing without the controls afforded by conditions of consent and the plan of management in this appeal.
40. The Court also concluded as previously stated, the consent for the trial period was amended by the Commissioner in a way that allowed the option of a s 96 application such as this for continuation of extended hours. This application is for substantially the same development. The Court is comforted because the trial period was a real trial period. In other cases the Court has been given evidence that approved extended trial trading hours had never been operated during the trial period. In this case, the log books and the evidence showed that on most nights the hotel was open until 3am and the number of incidents were limited.
41. There is further comfort that the hotel is not embedded in residential occupancies on all sides. It has commercial and school uses in Mitchell Road and ample parking outside them late at night that would not disturb residents. There is the potential, if well run by management, for the hotel to cause little adverse impact on neighbours as demonstrated by the withdrawal of objections by unit 5/100 Buckland Street, after management of the hotel attended properly to its duties.
42. The draft Development Control Plan for late night premises is not yet adopted by council and can have little weight in these proceedings and apart from the hours of operation the draft conditions put by the council in exhibit 12 have regard to the provisions of the draft DCP.
43. Overall, the Court is satisfied the extension of hours should be granted subject to the conditions in exhibit 12 as hand annotated.
44. Therefore, the orders of the Court are:
(1) The appeal is upheld.
(3) The exhibits are returned to the parties except exhibits 2, 3, 12 and B and D.(2) The s 96 application to amend the consent dated 19 June 2002 for the Buckland Hotel at 50-52 Mitchell Road Alexandria is granted by the deletion of the whole of the annexure A conditions attached to that judgment and their replacement with the conditions in exhibit 12 of this appeal as hand annotated and reproduced in annexure A hereto.
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Commissioner of the Court
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