Copatress Pty Ltd v South Sydney City Council

[2002] NSWLEC 254

Land and Environment Court

of New South Wales

CITATION:	Copatress Pty Ltd v South Sydney City Council [2002] NSWLEC 254
PARTIES:	APPLICANT Copatress Pty Ltd RESPONDENT South Sydney City Council
FILE NUMBER(S):	10008 of 2002
CORAM:	Bly C
KEY ISSUES:	Development Application :- Extended trading hours for hotel - refusal Impacts on the amenity of the surrounding area .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97(1)
CASES CITED:
DATES OF HEARING:	16 and 17 May 2002
DATE OF JUDGMENT:	06/17/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hemmings QC, solicitor Allens Arthur Robinson RESPONDENT Mr S Griffiths Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BLY C

17 June 2002

02/10008 Copatress Pty Ltd v South Sydney City Council

JUDGMENT

Judgment

Introduction

1 The recently renovated and upgraded Buckland Hotel (“the hotel”) is located on the corner of Mitchell Road and Buckland Street in Alexandria. In accordance with its present consent the hotel operates until midnight Monday to Saturday and until 10.00 pm on Sundays. The owners of the hotel have now applied to the South Sydney Council for approval to extend the trading hours to 3.00 am the following day Monday to Saturday and until midnight and Sunday (“the extended hours”). The development application was refused and the applicant has now appealed against this decision.

2 The hotel presently comprises a lounge bar, a restaurant area and courtyard, a TAB lounge and a gaming room. In addition, Council approved outdoor seating areas are available on the footpaths of Mitchell Road and Buckland Street.

3 The hotel is located in a diverse mixed-use precinct comprising residential, commercial, industrial, educational and open space uses. More particularly the site adjoins a new town house development to the east and industrial development to the south-west. Opposite the site to the north is a school and opposite the site to the west are attached houses. Mitchell Road is a busy two-way road (one lane each way) with kerbside parking on each side. Buckland Street has been treated with traffic calming measures to reflect its predominantly residential character.

Statutory Provisions

4 The site is situated in Zone No. 10 - Mixed Uses under South Sydney Local Environmental Plan 1998 (“the LEP”). In this zone a hotel is a permissible use.

5 The objectives of the Mixed Use Zone which are relevant to this application are: to allow in appropriate circumstances a mixture of compatible land uses; to promote mixed-use planning; to retain the area’s unique urban character and identity; to manage the impacts of non-residential development; to minimise any adverse impact on residential amenity; and to control the nuisance generated by non-residential development... so as to preserve the quality of life for residents in the area.

6 The site is also located within Precinct 2 - Mixed Use Transitional pursuant to the provisions of South Sydney Development Control Plan 1997 (“the DCP”). Particularly relevant provisions of the DCP are found in Part F - Design Criteria for Specific Development Types - Mixed Use Development.

Advertising and Council’s Decision

7 The development application was notified to 107 owners and 50 occupiers of adjoining and nearby properties in accordance with Council policy. Eleven objections were received expressing concerns relating to the extended hours, including: noise and anti-social behaviour; parking problems in the area; increased opportunity for gambling; increased litter in the area; and increased vandalism and vehicle break-ins.

8 A report was subsequently prepared by the Council’s Planning and Building Department recommending approval of the application subject to a number of conditions, including a six-month trial period. Notwithstanding this report the Council decided to refuse the application for reasons essentially relating to: non compliance with zone objectives; failure to preserve the quality of life for residents in this area; incompatibility with the scale of neighbouring development; unreasonable impact on the amenity of the surrounding area by way of pedestrian and traffic impacts; undesirable precedent; inconsistency with the planning intent and land use criteria of the DCP for mixed-use precincts; and the granting of consent would not be in the public interest.

The Evidence

9 On behalf of the respondent Council Mr K Nash, a town planner gave expert evidence. Resident objector evidence was given by:

• Miss A Heath - 149 Buckland Street
• Mr C Pike - 101 Belmont Street
• Mr R Firth - 100 Buckland Street

10 On behalf of the applicant Mr G Smith a town planner, gave expert evidence.

The Issues

11 A Statement of Issues was provided which, in essence, identifies the following issues.

Whether the hotel’s operation during the extended hours would:
• Have adverse impacts on the amenity of the surrounding residential area.
• Be consistent with the LEP objectives for zone No. 10 and the requirements of Part F of the DCP.
• Create an undesirable precedent.
• Be in the public interest.

12 Regarding the matter of precedent, I do not accept that this is a reason for the refusal of the application. While there are a number of hotels and other non-residential uses in the neighbourhood that have restricted trading hours, I heard no evidence to persuade me that the circumstances of these non-residential uses, are the same as those associated with this hotel. Hence this application can be decided on its own merits, as could any possible future application for extended hours involving any one of those other non-residential land uses.

13 As for suggestions that the extended trading hours would not be in the public interest I have not been persuaded that there is any public interest question to be answered here. The matter of public interest is to be distinguished from matters of public objection which are dealt with as matters of merit in the context of amenity impacts generally and the requirements of the statutory instruments.

Amenity Impacts and the Requirements of the LEP and the DCP

14 Mr Nash was of the opinion that the extended hours would have a detrimental impact on residents living in the vicinity of the hotel. In reaching this conclusion he took into account three factors:

• The location of residential development relative to the hotel
• Likely travel patterns for patrons attending and leaving the hotel
• Prospects for nuisance and anti-social behaviour associated with the hotel and their patrons

15 He noted that the predominant land use in the vicinity of the hotel is residential and that in recent years a number of industrial precincts and sites have been redeveloped for medium density housing. This trend is expected to continue.

16 Mr Nash accepted that the hotel would mainly rely on local residents and workers for its clientele but expected that with refurbishment and extended hours it would be likely to attract additional patronage from outside the local area. There are a number of other hotels within walking distance which have earlier closing hours and the hotel’s extended hours would be likely to attract patrons from these other premises. During the extended hours the attraction will be the availability of poker machines and alcohol. Special events such as televised overseas sporting events will also attract additional patronage.

17 The paths of travel for pedestrians to get to the hotel will include Mitchell Road, Buckland Street, Anderson Street, Brown Street, Suttor Street and Belmont Street. These paths of travel are predominantly past residential development and much of this housing is located on or close to the street alignment. Because the hotel does not provide any off-street parking those patrons who drive to the hotel would most likely park in Buckland St, Mitchell Road and Anderson Street.

18 In attempting to forecast likely nuisance and anti-social behaviour which might result from the extended hours, Mr Nash made reference to a research paper prepared by the NSW Bureau of Crime Statistics and Research titled AB02: Assaults on Licensed Premises in Inner Urban Areas (“the study”). While this inner Sydney study did not investigate the suburb in which the hotel is located it was his opinion that the results could be applied here. He quoted a number of conclusions from the study including:

• The analysis also found that assault incidents on licensed premises were concentrated late at night or early in the morning and on weekends. Licence types identified, as being the most problematic for violence on licensed premises were hotels and nightclubs. In particular, hotels with extended or 24-hour trading recorded a greater number of assaults compared to those trading standard hours.
• The number of the assault incidents on licensed premises during the study period increased markedly from 6:00 pm onwards peaking between midnight and 3 am… increased intoxication levels of patrons during these peak-times and the pooling of intoxicated patrons into premises with later closing times are possible explanations for this temporal pattern.
• However, when examining both the time and the day on which the incident was reported to occur it becomes evident that the early hours of Sunday morning between 12 am and 3 am is the most likely time for assaults to occur on licensed premises. Similarly, assaults frequently occurred in the early hours of Saturday morning between 12 am and 3 am.

19 It was Mr Nash’s opinion that the findings of the study at least indicate that there is likely to be the prospect of some anti-social behaviour associated with the extension of trading hours from midnight to 3 am. He concluded that the extended trading hours would result in nuisance and anti-social behaviour that would affect local residents living in the vicinity of or adjoining the paths of travel to and from the hotel. More particularly the disturbance to residents, by patrons who are intoxicated or otherwise, would involve talking loudly to associates, slamming car doors, motor vehicle ignition and also anti-social behaviour such as urinating on the footpaths and front gardens and fighting. Such behaviour would come from people who lived locally and were walking home and from people walking to their cars parked in nearby residential areas.

20 While Mr Nash accepted that a significant percentage of the hotel’s patronage would be local he nevertheless insisted that patrons would still be attracted from outside the locality resulting in up to 15 taxis and 15 cars coming to or departing from the hotel during the extended hours. These vehicle movements would add to the impacts on the surrounding area.

21 Because of the likely adverse impacts upon the amenity of the surrounding residential areas Mr Nash believed that the extended hours would not be consistent with zone objectives relating to: compatible land uses; impacts associated with non-residential development; the minimisation of adverse impact on residential amenity; and the control of nuisance generated by non-residential development to ensure the quality of life for residents. These inconsistencies are of particular concern given that housing is the predominant land use in the precinct surrounding the hotel.

22 Mr Nash also made reference to a number of provisions for mixed use zones in the DCP and noted that the emphasis is on the compatibility of land uses and the need to respect the amenity of residential uses and to ensure the amenity of the locality is not detrimentally affected. In this context he referred to changes that have occurred to the hotel over recent years including its upgrading and extension of hours of operation. He also referred to the changing character of the environment in which the hotel now operates being predominantly residential rather than commercial and industrial.

23 It was his opinion that the prospects for disturbance and nuisance to the amenity of residents in the vicinity, arising from the extension of trading hours, are high and as a consequence the extended hours would not be consistent with the objectives, performance criteria and controls embodied in the DCP. The application should therefore be refused.

24 The residents who gave evidence, expressed concern that the present amenity impacts caused by the hotel especially on Friday and Saturday nights would extend even further into the night. Such impacts include: the slamming of car doors the starting of engine and cars accelerating away; fighting, shouting and swearing; shouting to hail taxis; patrons using mobile phones in the street; and noise from rubbish disposal and recycling activities.

25 Mr Smith noted that concerns about noise related to the activities of patrons outside the premises as they depart but not from within the premises per se. Based on surveys of persons attending the hotel in April 2002 the number of people attending the hotel during the extended hours is likely to be small and given appropriate management and effective security, patron noise outside the premises can be controlled to acceptable levels. The surveys include one of the busier nights at the hotel on an annual basis and he believed that a maximum of about 120 patrons seems to be a reasonable number to adopt in examining likely impacts on a busy night. However this maximum would be a rare event and would occur earlier in the night. By midnight there would be a maximum of 80 people on the premises.

26 Based on his 30 years of experience across many hotels he expected that where there is no live entertainment, patronage would fall away towards the later closing time in much the same way as it does it towards the present closing time. More particularly the number of patrons would typically decline, probably by about 50% per hour with only about 15 patrons remaining at 2:30 am, despite the fact that such a pattern is not precisely supported by the surveys. This tapering off of patron numbers occurs because there is to be no entertainment provided although this would be less so if there were to be a late night sporting broadcast on television.

27 Consequently there would be a similar pattern of vehicle departures with about 14 patrons vehicles leaving the area during the proposed extended trading hours. Because these cars could be parked in any of the four or five surrounding streets the patrons walking to these cars would travel in a number of different directions thus dispersing any possible impact. Taxis would most likely be hailed in Mitchell Road near the front entrance of the hotel and away from the more sensitive Buckland Street.

28 In relation to concerns that the proposed extended hours would worsen existing problems Mr Smith said that no resident has complained to the applicant or its staff about patrons leaving the hotel causing a disturbance and the that the likely late night patronage does not provide a grim picture for the future. Moreover because the applicant is offering to provide security personnel to patrol nearby streets to moderate behaviour on those streets as well as taking steps to advise patrons to respect the amenity of the area, the additional hours of trade sought are not likely to result in degradation of amenity. Also the provision of uniformed security personnel should restrict the likelihood of littering, vandalism and break-ins by persons who may or may not be hotel patrons. However he was not aware of any evidence to show that a late trading hotel necessarily causes increased vandalism or car break-ins. Management can ensure that patrons do not leave the hotel in large groups. Instead pairs of people leaving the premises are not likely to awaken residents.

29 Mr Smith also identified a number of factors that are indicators of a likely satisfactory relationship with the surrounding area:-

• Patronage of this hotel will be very much local, with 42% of patrons walking.
• Recent changes to the hotel’s character have resulted in it now being a stylish restaurant and bar with a higher level ambience consistent with and responsive to the general changes in the physical and social character of the area .
• The hotel is not the only generator of traffic in the street - the density of residential development in the surrounding area means that there will be traffic in the streets at all hours.

30 Mr Smith did not believe that the findings of the study should be utilised to determine whether or not this application should be approved. He distinguished this hotel from the kind of premises considered in this study because the Buckland Hotel was a local venue rather than a destination hotel in an entertainment area.

31 In relation to the objectives of the zone he did not accept that any of these were infringed by the proposal. As for the DCP he noted that the relevant planning intent suggests that the ambience or amenity of mixed-use precincts is expected to differ from that of purely residential areas. This is logical given that the relevant planning intent facilitates compatible vibrant non-residential uses, which would include the hotel. He stressed that in these circumstances consent authorities should not succumb to claims that the area around this hotel is a residential area and should not apply criteria applicable to residential areas. He nevertheless accepted that while this is not, strictly speaking, a residential area it contains an increasing proportion of residential development and as a result the applicant has incorporated measures in its proposal aimed at ensuring that environmental amenity is protected and if anything improved.

32 Mr Smith concluded that the applicant is managing it (the hotel) properly and effectively, and that with added controls in the plan of management, the extra hours will not render the hotel an unacceptable development in the locality.

Court's Conclusions

33 Having considered all of the evidence and having taken a view of the site and its environs I have decided that the application for extended hours should, with some changes, be approved. This is mainly because I accept that the extended hours will not be inconsistent with the planning regime applicable to this area.

34 In essence the provisions of the LEP and the DCP anticipate in the Mixed Uses Zone, a mixture of compatible vibrant non-residential uses with residential uses, with an emphasis on the protection of the amenity of residential uses. These provisions reflect the fact that this is not a residential zone in the conventional sense where non-residential uses are discouraged. As a consequence there is no reason not to accept that this precinct will continue to comprise a mixture of land uses despite the number of new dwellings which have been constructed in recent times. In these circumstances I accept Mr Smith’s contention that the standard of residential amenity in the Mixed Uses Zone cannot be expected to be the same as in a residential zone. In this regard I have been persuaded by his evidence that while some social or amenity impacts will continue to occur, the likelihood is that these impacts will be relatively infrequent and will not be of a high order. Such impacts will certainly be within the range of what is reasonable in this Mixed Use Zone and while the management plan cannot provide guarantees it should nevertheless be effective.

35 There is no doubt that the consumption of alcohol can lead to anti-social behaviour as is revealed by the study. Extended trading hours can facilitate an increased consumption of alcohol and with it the potential for anti-social behaviour in the early hours of the morning. However I agree with Mr Smith that the Buckland Hotel can be distinguished from those premises, which were considered in the study and that the study’s findings in relation to anti-social behaviour cannot be simply transposed to the extended hours under consideration here. Indeed I accept that many hotels do not contribute to assaults and in this regard the tone of the hotel is an important factor, particularly the recent upgrading which has led to it having a club like atmosphere.

36 Another aspect, which distinguishes this hotel from the premises examined in the study, is the fact that there was no police objection to the proposed extended hours. Moreover the council has no record of problems associated with the hotel although it is clear that a number of nearby residents have experienced anti-social behaviour which can be related to this hotel. The only incident of serious concern, which was brought to the attention of the Court, involved a fight, which was not reported to the police but was eventually resolved by hotel security personnel. This hotel nevertheless has an excellent record and while there is some risk, I do not accept that there is a high risk of potential for harm to surrounding residents sufficient to warrant refusal of the application. I also do not accept the suggestion that because security personnel have been provided in the past that this is an indication of an existing problem. Nor do I accept the proposition that because the applicant proposes to provide security personnel that this is an indication that anti-social behaviour will necessarily occur in the future. The relatively small public response to the extensive notification of this proposal is another factor here.

37 Despite there being no car parking provided on the site of the hotel this was not presented as being an issue of serious concern apparently because there is likely to be a sufficiency of on street parking in various streets surrounding the hotel during the extended hours. While I accept the contention that this is a local venue, as distinct from a destination hotel in an entertainment area there could still be an influx of patrons during the extended hours, aided by the availability of parking. Despite this I prefer the evidence of Mr Smith as to the likely tapering of numbers of patrons who will be in the hotel and their progressive departure during these hours. These patrons will either return to their homes on foot, or walk to their cars or hail a taxi. Also, patrons living locally are probably likely to be more sensitive to possible impacts as they walk home.

38 Again I accept the evidence of Mr Smith that given the nature of this hotel and its management plan and despite the fact that many residences in this area are located close to the street frontage that the behaviour of patrons should not be such as to result in impacts of such concern in the context of the Mixed Use Zone that the extended hours should be denied.

39 It is therefore the decision of the court that the development application for the extension of the hours of operation of the Buckland Hotel should be approved.

Conditions

40 The council officer who reported on this matter recommended approval subject to proposed condition 3 which requires a six-month trial period. This seems to be a reasonable approach to test the proposal and ensure that the impacts will be within reason, however I accept that a trial period of 12 months from the commencement of the extended hours 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 12 month trial period. When the further application is lodged I would expect that a review of the extended hours including the opening and closing times for each day of the week would be undertaken.

41 Condition 2 was objected to because it seeks to introduce a 10.00 am starting time, two hours later than the 8.00 am starting time referred to in the application. The later starting time was sought to be included because of the likely noise associated with the setting up of outside tables and chairs in preparation for an 8:00 am start, especially at the weekends, would be problematical. While there was little evidence provided in relation to this condition I nevertheless agree in principle with this concern. I have no difficulty in accepting that the hotel can open at 8:00 am but the use of tables and chairs on the footpath should be restricted to an 8:30 am set-up/commencement time at weekends. This aspect can be reviewed at the end of the twelve-month trial period. Condition 2 and condition 8 are amended accordingly.

42 Condition 8 attempts to deal with the existing problem of noise nuisance associated with the sorting of glass bottles and the setting up of tables and chairs. This condition was deleted and the respondent instead seeks to include a similar condition 8(a) together with a five additional conditions 8(b), (c), (d), (e) and (f) relating to the use of the existing loading and storage area at the side of the hotel. Conditions 8(c), (d) and (e) were essentially unopposed and I have included them subject to a change to condition 8(d) as referred to in the discussion regarding condition 2.

43 The applicant opposed condition 8(a) because it seeks to control the use of the loading area during times other than the extended hours sought in this application. Despite this I have decided that the condition is entirely reasonable because at least some of the glass bottles to be sorted will be generated during the extended hours and because of the need it to manage noise nuisance to surrounding residences. Condition 8(b) requires a rearrangement of the garbage and waste storage facilities. I have decided to delete this condition because of the practical difficulties associated with the size of the facility and its implementation.

44 Condition 8(f) requires the submission of a plan providing for the enclosure of the garbage, loading and storage area with the enclosure or being constructed of suitable acoustic material to prevent noise nuisance to surrounding residences. I accept the applicant’s objection to this condition because it was not a matter in issue before the Court nor does it reasonably relate to the application. I would nevertheless urge the applicant to seriously consider the matters raised by the deleted conditions 8(b) and (f).

45 The orders of the court are therefore:

1. The appeal is upheld.
2. Development consent is granted for the extension of the trading hours of the Buckland Hotel at 50-52 Mitchell Road, Alexandria, subject to the conditions in Annexure “A” hereto.
3. The exhibits are returned.

T A Bly
Commissioner of the Court