Hird v Newcastle City Council

[2004] NSWLEC 340

Land and Environment Court

of New South Wales

CITATION:	Hird v Newcastle City Council [2004] NSWLEC 340
PARTIES:	APPLICANT Gary John Hird RESPONDENT Newcastle City Council
FILE NUMBER(S):	10002 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :- Extension of trading hours .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Don Hodge Group Pty Limited and Liverpool City Council 2004 NSWLEC 197; Briggenshaw v Briggenshaw (1938) 60 CLR 336; .
DATES OF HEARING:	26 and 27 May 2004
EX TEMPORE JUDGMENT DATE :	05/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Costigan, barrister INSTRUCTED BY Turnbull Hill RESPONDENT Mr I Hemmings, barrister INSTRUCTED BY Harris Wheeler

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

27 May 2004

10002 of 2004 Gary John Hird v Newcastle City Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Newcastle City Council (the council) of Development Application 03/2350 for the extension of trading for the Hotel Delaney, which is located at 134-136 Darby Street, Cooks Hill, a suburb of inner Newcastle, and premises known as Lot 20 in Deposited Plan 1038322.

2 The application was determined by refusal by the Development Approvals Committee at the council’s meeting on 16 March 2004. A formal Notice of Determination to this effect was issued on 24 March 2004.

3 The premises are zoned 3C City Centre and are located within the Darby Street Commercial Precinct. A council owned carpark is located to the south west with a single entry point off Darby Street and separate entry and exit points off Council Street.

4 During the times, which are relevant to this application, parking in this carpark is unrestricted. The carpark has residential properties backing on to its western and north western edges.

5 Council Street has a mid block garden bed street closure with bollards at the western extremity of the carpark’s vehicle exit into Council Street. There are residential properties along Council Street to the west and, relevantly, along Dawson Street to the south of Council Street. Further, and relevantly, a residential precinct in Railway Street is accessed by a laneway opposite the premises between 94 and 94A Railway Street. These residential precincts are zoned 2(b) Urban Core.

6 The application is permissible with consent.

7 The Darby Street commercial zone, extends the length of Darby Street to the north and somewhat to the south of the present premises to Darby Street’s intersection with Bull Street.

8 A variety of other late trading licensed premises occur in the vicinity, including the Rendezvous Night Club, the Drop Bear Bar and the Goldberg Restaurant - although the consents as to operating hours of these latter premises particularly with respect to its courtyard is not clear.

9 There are also a number of other hotels in the vicinity. However, the agreed position between the parties appears to be that post closure attractions for patrons of the subject premises are predominantly likely to be to the north towards or within the Newcastle Central Business District.

10 In particular, the council has not suggested that the Delaney Hotel is the sole or even the dominant contributor to noise, but that it is a significant contributor to those impacts, which is the subject of the resident objections in these proceedings.

11 Although the council filed a formal Statement of Issues in these proceedings, the conduct of the proceedings, which commenced with an informal taking of residents’ evidence during the course of a view of the subject premises and the surrounding area on the first day of the hearing, has narrowed and clarified the matters that I need to determine.

12 First, as it is not proposed to extend the hours of live entertainment or music at a volume consistent with that of live entertainment, and the applicant has agreed to a condition that the beer garden not operate after 12 midnight, I am satisfied that no internal issues relating to the premises arise from my determination.

13 In addition, the council has not pressed as determinative those issues relating to incidents of urination, defecation and syringe disposal and other behaviour, which is unsavoury as well as anti-social.

14 The sole issue which is determinative in these proceedings is, “What is the likely impact of the noise from departing patrons and staff from the premises?”

15 There are no Local Environmental Plan, Development Control Plan or other planning documents imposing controls which are called into question in these proceedings.

16 The issues that arise are simple matters of social and environmental impact, relating to the amenity of residents arising pursuant to the provisions of s 79C of the Act.

17 As to the possible noise which might be made by staff departing from the premises, I am satisfied that these should not be regarded as a determinative issue in these proceedings, as they can be dealt with either by way of a parking condition (as proposed by the council) or employer control and discipline and risk to employment or a combination of both.

18 At the commencement of the formal proceedings in Court after the view, I drew the attention of the legal representatives of the party to a decision that I had given in Don Hodge Group Pty Limited and Liverpool City Council 2004 NSWLEC 197. I provided a copy of that reference to the parties and drew their attention particularly to a number of paragraphs dealing with evidence given by Ms Manion in those proceedings.

19 I did so because I considered that it was proper to do this as Ms Manion's evidence is put to me in those proceedings related to matters of principle relating to academic research and anti-social behaviour.

20 I am satisfied from the response to these matters, in the evidence given orally by Ms Davies-Meehan, social planner on behalf of the applicant, that she has adequately considered and taken into account those matters and that there are no issues arising from those studies that I need to have regard to in reaching my determination in these proceedings.

21 At the commencement of the second morning of the hearing, I provided to the legal representatives of the parties six questions, which I considered were the appropriate frame work in which I ought to determine these proceedings. They were:-

1. What are the present impacts of the premises on the local residents at and after the present closing time?

2. To what extent should these impacts be regarded as the responsibility of the applicant (the carpark question)?

3. If the answer to question 2 is that some of the present impact should not be regarded as the responsibility of the applicant, is this position altered by the proposed extension of trading hours?

4. To what extent is it likely that, absent additional ameliorative measures by the applicant, extension of trading hours until 2am on Thursday, Friday and Saturday evenings would transfer all or a substantial portion of the existing impacts to that later hour or times after it?

5. If all or a substantial portion of the existing impacts would be transferred to that later or after it, to what extent will those addition ameliorative measures proposed by the applicant lessen those impacts?

6. In light of the answer to 5, are the remaining impacts, after taking into account the additional proposed ameliorative measure, acceptable?

22 The applicant agreed that this was an appropriate framework for my consideration and as the respondent did not demur to that position, I have applied that framework for the purposes of this decision.

23 I turn to the issue of the present impact to the premises on the local residents. I was provided with a map of the location of the objectors, including those who gave evidence in those and the immediate vicinity who had either signed a petition that was prepared by the Cooks Hill Community Group or who had written individual letters.

24 It appears to me, from both the oral evidence and the tenor of those submissions, that there is a general, albeit reluctant, acceptance of the present impacts of the hotel with its present closing hours.

25 Indeed, it was necessarily implicit from the evidence of witnesses such as Mr Barnes and Mr Fitzgibbon, that they accepted that they came either as purchasers or tenants to operating premises rather than the premise coming to them, and that as a consequence, they accepted the right of existence in trading of the premises to their present hours.

26 Mr Walmsley noted however, that the activities and noise impacts the present premises caused him to work a shift as a postal worker until 2am, because he is unable to sleep if he is at home in his residence at earlier hours. Mr Fitzgibbon, similarly, is nurse on a 7 day rotating shift roster and indicated that the noise impacted on his enjoyment of his premises, particularly as to his sleeping quarters.

27 Ms Walmsley, who has been a resident for 18 years, accepted the present activities of the hotel, but put to me that I should say, “enough is enough”.

28 Mr Papichio was the sole resident to give evidence who resided outside the Council Street, Dawson Street element of the precinct within which the hotel is located. He is a resident of 96 Railway Street, which is accessed from the premises by the laneway between at 94 and 94A Railway Street. He indicated that this laneway had the effect of funnelling noise, in his opinion, from those patrons of the hotel standing outside on the intersection of Council Street and Darby Street at the time of their departure, and he gave evidence of a number of specific matters of concern to him which were of comparatively recent occurrence.

29 It was his position that confining the exiting of patrons from the premises, if the present application were to be granted, to the Darby Street entrances only, would merely make matters worse for him.

30 This, of course, is not intended to be other than a summary of the evidence given by the residents. However that general position might be summarised, as previously indicated as a general, if somewhat resigned, acceptance of the present hours and impacts on their amenity.

31 The evidence of Ms Slade, who is the present licensee, and who has been employed at the premises in various capacities (including managerial capacities) for some years, was that she first became aware of the concerns as to noise from the residents by her attendance at a precinct committee meeting some two years ago, and that during the whole of her period of employment with the premises, she was only aware of one complaint having been made to management.

32 That absence of complaint is consistent with the evidence given by the resident objectors who indicated that, with the exception of Mr Barnes who is resident next door at number 13 Council Street, they had not complained to the hotel about its operations. Indeed, Mr Barnes conceded that on the sole occasion when he had complained to the hotel concerning noise, the matter had been attended to promptly.

33 The evidence of Mr Hird, who is the proprietor of the premises, was that he first became aware of residents’ concerns as to noise from the premises or from departing patrons in the context of the 2003 Licensing Court proceedings, which proceedings have approved the extended trading hours within the liquor administration legislative framework.

34 Mr Hird was questioned to some extent as to the timing of his knowledge in this regard, but I am satisfied that as to whether or not this was before or after the Licensing Court proceedings is not material in the present proceedings.

35 Mr Hird indicated that he had commissioned a consultancy called RGR Gaming Pty Limited, to undertake a number of surveillance inspections of the operations of his hotel, for the purposes of ascertaining the standards of behaviour and conduct of the premises.

36 It was his uncontradicted evidence that these operations were carried out without notice to or awareness of the manager of the hotel, Ms Slade, or any staff employed at the premises.

37 These surveillance operations were carried out on Friday, 7 March 2003, on Friday 14 March 2003 and on Saturday 15 March 2003.

38 No surveillance was carried out on a Thursday evening, but given that it appears to be the consensus of the evidence that the preponderance of the impacts are likely to occur on a Friday or Saturday evening, the absence of surveillance on a Thursday evening is also not apparently material in these proceedings.

39 To the extent that I am able to obtain any relevant information in these proceedings from the reports of RGR Gaming, they come from the report of 7 March on page 4 of that report, at the third last bullet point on that page which reads:

At 12.20 am, Messrs Cook and Sullivan walked to the corner of Council and Dawson Streets, to the west of the hotel. Standing at this location, Messrs Cook and Sullivan could still hear the music from this restaurant referring to other premises. A short time later they returned to the corner of Darby and Council Streets to continue their observation. There was no other observation made by those gentlemen on that occasion other than in the immediate proximity of Darby and Council Streets at any time, after the cessation of trading of the premises.

40 On Friday, 14 March, there is nothing in the report after the cessation of trading that deals with observations, other than observations in the immediate vicinity of the premises at the corner of Darby and Council Streets.

41 On Saturday 15 March, observations away from that immediate vicinity are dealt with separately at pages 4 and 5 of the report where, in the first instance it states:-

12.25am Messrs Ng and Sullivan walked to the corner of Council and Dawson Streets to the west of the hotel. Standing at this location Messrs Ng and Sullivan did not observe any persons, hotel patrons or otherwise loitering in the surrounding streets. A short time later they returned to the corner of Darby and Council Streets to continue their observations.

42 The report further records that those gentlemen at 12.45 am, proceeded to walk around the surrounding residential streets to continue observations. No persons, hotel patrons or otherwise, were observed loitering in residential areas.

43 Of some relevance in the present proceedings, there does not appear from any point in any of the three RGR Gaming reports, that any attention was given by those undertaking that observation or process of the laneway leading to Railway Street, or of Railway Street itself.

44 I am satisfied on the basis of the evidence from the residents, coupled with the limited nature of the evidence in response, that there are real and significant impacts that are caused of a noise nature on the residents that arise, at least, in some substantial part from patrons departing from the present operational times of the premises.

45 To what extent should these impacts that arise from the council carpark at the rear of the premises be regarded as the responsibility of the applicant?

46 Tendered in these proceedings, at my request, is a copy of a noise assessment report prepared for the council by VIPAC Engineers and Scientists Limited dated January 2001.

47 That report was referred to by Mr Bridges, the acoustic engineer called to give evidence on behalf of the council, and it is a report that deals with the anticipated noise levels for the construction and subsequent operation of the council carpark at the rear.

48 There is absolutely no doubt from the content of that report that such impacts that arise from the departure of patrons from the present operating hours of the premises, using that carpark and accessing that carpark in vehicles parked there, was foreseen by VIPAC and drawn to the attention of the council prior to its decision to go ahead with the construction of the carpark.

49 Although there were a number of ameliorative measures proposed in that report, the evidence of Mr Bridges was that, particularly with respect to the premises at 2/37 Dawson Street, they were inadequate, and that for any ameliorative sound fencing measures to have been of any degree of amelioration, they would have needed to have been some five or more metres in height - which they were clearly not observed to be on the view.

50 I am satisfied that the respondent took a conscious decision to permit the construction of the carpark, knowing that it would have, with the present operation of the premises, an adverse impact on those portions of residences in Dawson and Council Street, and possibly Darby Street, and that that was an adverse and unsatisfactory impact.

51 Therefore, I am satisfied that it would not be appropriate to hold the applicant responsible for the present impacts of noise from the carpark.

52 That however, does not determine the issue as to whether that vitiation of responsibility for present noise impacts from the carpark would extend to noise impacts which would arise if the hours of operation of the hotel were to be permitted to be extended.

53 I am satisfied that such noise impacts, at least in part, from the carpark, would be transferred in time to a later hour of the earlier hours of the morning. However, the extent to which this would occur might well be minimal in light of the survey figures uncontradicted that are before me in the statement of evidence of Mr Bridges, by virtue of his adoption and implicit incorporation of the statement that was prepared for the original development application, and dated 13 September 2003, where at page 13, it is clear from the chart on that page that a significant number (although not the totality of the number) of vehicles that have parked in the council carpark have left within what might be regarded a reasonably proximate time of the cessation of existing trading of the premises.

54 As a consequence, I am satisfied that there would be some impact (although it would not necessarily be a large one) that would be transferred to the later hour. However, it would be open to the respondent to determine to close the carpark, and, if I were to conclude that the carpark would be the sole basis for refusal, I would not consider it appropriate to do so in light of the shared responsibility for noise from it.

55 To what extent, absent ameliorative measures, would there be likely to be a transfer of the adverse noise impacts of a later closing?

56 It is clear from Mr Bridges’ September 2003 statement, at pages 3 and 15 of that statement, that it is likely that there would be a significant number of patrons present on Friday and Saturday nights, at the cessation of trading between 1.30 and 2am, he postulating that there would be some 150 patrons present on Friday and Saturday nights at that hour.

57 At page 12 of her statement of evidence, Ms Ellen Davies-Meehan states that the principal issue relating to anti-social behaviour, apart from some irresponsible persons failing to take personal responsibility for their behaviours is late night transport or at least, by necessary implication, a lack of late night transport.

58 Although that comment is made in a citywide context, it is also, by further necessary implication from the reading of Ms Davies-Meehan’s report, a specific matter that she presses with respect to the possible causes of noise and such behaviour at the subject premises.

59 This is confirmed by her evidence of an interview with Ms Melissa Dial, Manager of Community Partnerships, employed by the council who is cited on page 18 of Ms Davies-Meehan’s evidence saying that the single biggest problem is that people cannot get home.

60 I therefore conclude that it is certain that a significant number of departing patrons, although I am not able to quantify precisely what that number would be, who would be leaving the subject premises, if it were permitted to trade until 2am, would be leaving by private vehicle between the hours of 1.30 and 2am.

61 In this context Mr Bridges made the following concessions, quite properly.

62 Firstly, that the car-park noise effectively could never be satisfactorily reduced or screened so as to satisfy Environmental Protection Authority guidelines for noise for sleep disturbance or sleep arousal. However, given the conclusion that I have reached earlier concerning the carpark, that is not a matter that I need address further.

63 However, he also properly conceded that there would be significant exceedances of the relevant EPA guidelines by door slamming, loud conversation and, in the case of some older vehicles, possible noises from engine startings which would exceed the sleep disturbance, sleep arousal levels of the relevant EPA residential guidelines. I am therefore satisfied that the answer to the question of whether the problems would be sufficiently transferred to the later hour to be of concern is yes.

64 To what extent with the additional ameliorative measures lessen those impacts?

65 The ameliorative measures that are likely to impact on these are essentially a proposed courtesy bus, additional security numbers, exiting to Darby Street only after midnight, no new admissions to the premises after midnight and what Ms Davies-Meehan described as being an outward looking security attitude - that is patrolling a significantly wider area and doing it in perhaps a more constructive fashion.

66 Although there is some conflict in the views taken by the applicant and the respondent as to how the conditions for this patrolling should be imposed and the absence of any proposed patrolling, in either of their versions, of Railway Street, I am satisfied that if I were to grant consent this would be able to be dealt with by appropriate conditions.

67 What is the test to be applied?

68 I am satisfied, consistent with that which I enunciated in the Don Hodge Group decision which was referred to earlier, that the issue that I am required to address is whether the reasonably foreseeable impact of the proposed alteration to trading hours is sufficient to be unacceptable.

69 I adopt this, consistent with the view I took in that case, as there is no present (or certainly if any only a de minimus present impact) from the present premises and the present trading hours at any time significantly at or after 2 am in the morning.

70 I am satisfied that there may well be, as a result of the proposed ameliorative measures, a significant impact and improvement on the present adverse effects that are felt by the neighbourhood.

71 I accept Ms Davies-Meehan’s proposition that it would also be likely to have a similar effect on pre-midnight behaviour if implemented with respect to the present trading hours, and therein lies the dilemma for me and, as a consequence, for the applicant in assessing what is the appropriate response to the question that I have posed; Are the likely impacts after 2 o’clock, taking into account the ameliorative measures, acceptable?

72 The onus lies on the applicant to demonstrate to me that they are.

73 I am not satisfied that the applicant has discharged this onus to the degree of comfortable satisfaction that I am required to have on a Briggenshaw v Briggenshaw (1938) 60 CLR 336 test.

74 This is particularly the position, given the number of people likely to be leaving by private motor vehicle and the necessary conclusions that I draw as to the significant number of noise incidents that might be likely to arise by such departures by private motor vehicle from the 150 or so patrons that Mr Bridges gave evidence are likely to be present at the premises between 1.30 and 2 am.

75 However, these proceedings are not such where the applicant should be left with the view that the application is without hope of possible future success.

76 If the applicant were to implement Ms Davies-Meehan’s measures, or at least some elements of those, at its sole discretion, it might be able to demonstrate a sufficient reduction in the present impacts to the residents under its present trading hours, as to demonstrate that reductions of impacts rendered those impacts acceptable in the present context and therefore likely to be acceptable in a 2am context.

77 However, absent such concrete evidence of a determinative nature, I am not able to be satisfied to the degree of appropriate comfortable satisfaction on the hypothetical basis of the ameliorative measures that have been put to me.

78 I note that such an approach of adopting the measures presently, and seeing whether they were satisfactory, would be completely consistent with the evidence of Mr Hird as to his desire to be a good commercial citizen and neighbour.

79 The orders of the Court therefore are:

1. The appeal is dismissed.
2. Development application 03/2350 for the extension of trading hours until 2am on Thursday, Friday and Saturday nights for the Hotel Delaney, being premises at 134-136 Darby Street, Cooks Hill, lot 20 in deposited plan 1038322 is determined by the refusal of development consent and
3. The exhibits, other than exhibit D, may be returned.

Commissioner of the Court