Hossain v Council of the City of Sydney
[2012] NSWLEC 1144
•01 June 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Hossain v Council of the City of Sydney [2012] NSWLEC 1144 Hearing dates: 28 May 2012 Decision date: 01 June 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed.
2. Modification Application No D/2006/699/A for extended trading hours for the existing shop 3C at 1-3 Roslyn St, Potts Point is refused.
3. The exhibits are returned except for exhibit 3.
Catchwords: MODIFICATION: application to modify consent to extend trading hours of a take-away shop; impact on residential amenity. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Mazharul Hossain (Applicant)
Council of the City of Sydney (Respondent)Representation: Counsel
Ms Lee-May Saw (Applicant)
Ms Fenja Berglund (Respondent)
Solicitors
City of Sydney Council (Respondent)
File Number(s): 10214 of 2011
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of a modification application no. D/2006/699/A (the modification application) by the Council of the City of Sydney (the Council) to extend trading hours of 'Oporto', a chicken takeaway shop (the takeaway) at 3C/ 1-3 Roslyn Street, Potts Point (the site).
Council's contentions can be summarised as follows:
- The proposal will impact on the amenity of residents in the vicinity of the proposal by way of additional noise;
- Allowing the premises to continue trading beyond its current hours is likely to discourage the dispersal of intoxicated persons, with the potential of anti-social behaviour and thereby contributing to a further loss of amenity for residents and visitors.
The site and its context
1-3 Roslyn Street, Potts Point is located on the south-western side of Roslyn Street, between Darlinghurst Road and Ward Street. The rear of the site backs onto Kellett Way. The site is an irregular shape, with an area of 306m2. The takeaway shop is identified as 3C Roslyn Street, Potts Point. The takeaway is one of three shops on the ground floor of a two storey building.
No. 1A Roslyn Street, to the north-west of the site, is a four storey residential flat building with commercial tenancies on the ground floor.
No. 5-9A Roslyn Street, to the south-east of the site, is a four storey building containing commercial uses, including a night club and restaurant.
The area consists of a very dense pattern of development and a mix of uses including residential and commercial, within an entertainment precinct.
Background and the proposal
The Council refused modification application No. D/2006/699/A on 9 January 2012.
The applicant proposes that Condition 2 of the development consent be amended to allow the takeaway to trade between the hours of 7 am and 4.30 am the following day, on Fridays, Saturdays and days preceding a public holiday. The approved hours are between 7am and 1am the following day, Sundays to Thursdays and 7 am to 3 am the follow day, on Fridays and Saturdays.
The planning framework
The site is within Zone No. 10 - Mixed Use Zone pursuant to the provisions of the South Sydney Local Environmental Plan 1998 (LEP 1998). The takeaway fallls within the definition of 'shop' under Schedule 1 of LEP 1998 and is a use permitted with consent in this zone.
The relevant principal objectives of LEP 1998 include, at clause 7:
(b) to enhance the quality of life and well-being of the local community.
Clause 10 of LEP 1998 provides that consent must not be granted unless the consent authority is of the opinion that the proposed development is consistent with the objectives of the zone.
The relevant objectives of the Mixed Use Zone, at clause 21 of LEP 1998, are:
(a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
Relevant Development Control Plans for the site are:
- South Sydney Development Control Plan 1997: Urban Design (DCP 1997)
- City of Sydney Late Night Trading Development Control Plan 2007 (DCP 2007)
Part B of DCP 1997 addresses urban design principles. Environmental amenity includes the following:
Ensure development does not cause a public nuisance to local residents or pose risk to the locality by way of:
•Noise pollution
•Working hours
Part D of DCP 1997 addresses social planning design criteria. Clause 6 'Cumulative impacts and trade-offs' states:
Objectives
• To manage cumulative impacts arising from development activity and implement strategies to avoid or minimise these.
• To identify negative social impacts of development proposals and develop avoidance, minimisation or mitigation measures to address these.
• To maximise the benefits of development proposals to the local community.
Performance criteria
• Development takes into account cumulative impacts of past development activity and does not exacerbate existing negative social impacts or issues.
• Development identifies and responds to opportunities to benefit the local community and provides measures to mitigate against negative impacts.
Part E of DCP 1997 addresses environmental design criteria. Clause 6, 'Operational controls' includes:
The underlying principles of controlling the operations of development are:
• a need to protect the environmental amenity of South Sydney, particularly its residential areas;
• to ensure the operations are not in contravention to the pollution control legislation; and
• to promote and encourage environmental sustainability.
Objectives
• To ensure development minimises risk to the locality in relation to human health, life or property, or to the natural environment and that activities within buildings and on sites are kept to a minimum.
The relevant objectives of DCP 2007 include, at 2.2:
(a) identify appropriate locations and trading hours for late night
trading premises;
(b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses;
(d) encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City;
(e) encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City;
(f) encourage a diversity of night-time activity in defined Areas;
g prevent the proliferation of poorly managed high impact late
night premises;
(j) provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods;
(k) encourage premises with extended trading hours that are of a
type that do not operate exclusively during late night hours and
may be patronised both day and night;
(m) ensure a consistent approach to the assessment of applications for premises seeking night trading hours.
At clause 2.4, DCP 2007 categorises late night trading premises as either category A (high impact) or category B (low impact). The takeaway is categorised as Category B.
Clause 2.6 of DCP 2007 lists matters for consideration with regard to appropriate trading hours for night trading premises, including:
(a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises.
(g) submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain.
Clause 2.8 of DCP 2007 defines base and extended trading hours for premises within late night trading areas, as follows:
Base Hours
Base hours are the standard range of trading hours that a late night trading premises is entitled to if a development application is approved.
Extended Hours
Council may approve extended trading hours above base hours on a trial basis.
Trading hours beyond base hours may be permitted at the initial DA stage, but only where the Council has determined that the premises have been (or will be) well managed, including compliance with a Plan of Management.
At the completion of a trial period a new development application must be lodged to either renew existing trial hours or to seek an extension of trading hours.
The site is located within the Late Night Management area, as defined by DCP 2007, clause 3.2, on sheet 2 of 4 maps. The Late Night Management Area, denoted as green on the map, includes the properties fronting Macleay Street and around the corner of Roslyn Street as far as and including the takeaway site. The adjacent property at 5-9A Roslyn Street is not within the Late Night Management area.
Table 1 - Trading hours, permits category B (low impact) premises, located within the Late Night Management area, with indoor trading, to have base hours of 6 am to 2 am the following day and extended hours of 24 hours.
Public Submissions
The matter commenced on site with a view, including a view of the surrounding locality and the planning experts provided the trading hours of nearby commercial premises, including night clubs, restaurants, hotels, a small supermarket and takeaway shops (Exhibit 5).
Evidence was heard from two residents of the residential flat building at 1A Roslyn Street. The first resident said that the main problem with takeaway shops trading in the early hours of the morning is the noise generated by people talking in the street and this noise can be most intrusive between the hours of 3 am and 4.30 am. He said that because the Oporto shop is small, the customers do not eat inside the premises, instead they sit on the seats around the street trees, outside his residential flat building and talk loudly. He accepts that he lives in a late night entertainment precinct and expects some noise disturbances, however he needs to sleep in the early hours of the morning.
The second resident stated that she objects to the sustained and excessive noise from patrons of the late night trading premises when they are on the street. According to the resident, the pubs and clubs that trade during the night generally have to keep the noise contained within the premises, however places like the Oporto shop are open to the street and their patrons sit on the seats around the street trees outside her residential flat building, while they consume the takeaway food they have purchased and the noise from their voices carry. According to the resident, acoustic assessments have verified that the ambient noise levels start to reduce after 2.30 am and therefore the trading hours of the Oporto shop should not be extended from 3 am until 4.30 am. The resident stated that long term residents of the area are moving out in response to the noise levels and being replaced by a transient population which is not healthy for the local community.
A letter objecting to the proposed extended hours of the takeaway was sent to Council by Superintendent Susan Waits, Commander Kings Cross LAC (Exhibit 3). According to Superintendent Waits, late night food stores are not a necessity, as all licensed premises must serve food if they serve alcohol. When patrons are using the footpath outside the takeaway premises to consume food, they increase congestion and overcrowding which results in an increased risk of alcohol related crime, as these incidents often occur on the streets in the vicinity of late night food outlets. She says that encouraging intoxicated patrons to remain in the area longer than they normally would, only serves to increase the risk of alcohol related criminal offences occurring. Superintendent Waits explains in her letter that there is currently a temporary legislated liquor license freeze in the Kings Cross area due to over saturation of licensed premises and she believes that supplementary to the liquor license freeze, Council should also consider freezing late night extended trading hour consents.
Expert planning evidence
Expert planning evidence was provided by Mr Kerry Nash on behalf of the applicant and Mr Phil Jamieson on behalf of the Council.
The planning experts agree that the takeaway has a floor area of 16 m2, with 8 seats on the premises and two outdoor tables (until 10 pm) and therefore the majority of the patrons of the takeaway eat elsewhere and not on the premises.
The planning experts agree that for the purposes of this application, the existing trading hours of 7 am until 3 am, as determined by the development consent for the takeaway, can be classified as the base trading hours under the definition of base trading hours in DCP 2007, notwithstanding that the base indoor trading hours as defined by DCP 2007 for Category B premises within the Late Night Management area are 6 am until 2 am the following day.
The planning experts agree that the proposal is for extended trading hours, as defined by DCP 2007 and if approved, should be subject to a 1 year trial period. Under the provisions of DCP 2007, extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory (clause 3.1(b) DCP 2007).
The planning experts disagree whether the proposed extended trading hours of the takeaway would result in additional disturbance to residents. According to Mr Nash, the operation of the takeaway would have no measurable impact, due to the character of the noise from the Late Night Management area. According to Mr Jamieson, the operation of the takeaway, for the proposed extended hours, would result in additional disturbance to residents, on the basis of the accumulative impact on noise levels.
According to Mr Nash, the operation of the takeaway is complementary to the licensed premises, it does not attract people to the area, but rather it allows patrons of the licensed premises to purchase food and thereby mitigates the effects of the consumption of alcohol. According to Mr Jamieson, the extended trading hours of the takeaway would encourage patrons of licensed premises to stay in the area rather than disperse, which may result in anti-social behaviour.
The planning experts disagree on the interpretation of the objective and control clauses for extended trading hours, as defined by DCP 2007, as follows:
2.2 Objectives, includes:
(j) provides the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods.
3.0 Controls
3.1 Trading hours and trial periods, includes:
(a) A renewal or extension of trading hours may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a plan of management (or management checklist) following the completion of a satisfactory trial period.
According to the applicant, the provisions regarding extended trading hours refers specifically to satisfactory management of the premises being demonstrated during a trial period. As the takeaway has not been subjected to a trial period for extended hours, the past performance of the takeaway's management is not relevant to a consideration of whether it should be granted a trial period for extended trading hours.
According to the Council, the provisions of DCP 2007 allow the Council to take into consideration the past performance of the management of the takeaway when considering an application for extended trading hours, regardless of whether the past performance was during base trading hours or a trial of extended trading hours. The Council provided its log of complaints of the takeaway (Exhibit 1, tab 10), including reports from rangers that the takeaway was trading after 3am in January 2012. The Council submits that the past non-compliance of the takeaway with its permissible trading hours should be taken into account and consequently, the proposal for extended trading hours should be refused, as the takeaway has demonstrated unsatisfactory management of the premises in the past.
Mr Nash, in his statement of evidence (Exhibit A at 5) provided the conclusions of research undertaken by the Council, including a table, which maps pedestrian densities by precinct on a Saturday night. The table demonstrates that the peak pedestrian density in Kings Cross is between 1 am and 2 am, with approximately 5600 pedestrians (during the hour) on Darlinghurst Road between Roslyn Street and Bayswater Road. The pedestrian density steadily decreases after 2am. The pedestrian numbers in Roslyn Street were not included in the analysis. The research indicates that the number of visitors to the Kings Cross entertainment precinct steadily declines from 2am onwards.
Findings
The objective of the Mixed Use zone, most relevant to this proposal, is:
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
Clause 10 of LEP 1998 provides a threshold test. If the development is not consistent with the relevant zone objectives, the application must be refused. If consistent, the merits of the proposal can be examined and approval granted if the merits are acceptable. Conversely, if the merits are not acceptable, the application should be refused.
The relevant objectives can be summarised as providing the opportunity for a mixture of compatible land uses, in appropriate circumstances, providing that any adverse impacts on residential amenity are minimised and any potential nuisances are controlled, so as to preserve the quality of life for residents.
As the peak times for pedestrian traffic on weekends is 1 am to 2 am and the pedestrian traffic decreases from 2 am onwards, the existing trading hours of the takeaway coincides with the busiest pedestrian traffic in the area. Extending the trading hours from 3 am until 4.30 am would encourage patrons of the licensed premises and visitors to the area to linger in Roslyn Street while they purchase food from the takeaway and eat it in the street.
The impact of the takeaway on residential amenity arises from patrons spilling out onto the footpath and their use of the informal seats around the street trees outside 1A Roslyn Street while they wait and/or eat their takeaway food. This creates a potential conflict with pedestrian traffic, according to Superintendent Waits and results in noise impacts from voices, according to the resident objectors.
Activities within the premises can be managed in accordance with a Plan of Management, in order to ameliorate impacts on the amenity of residents within the Mixed Use zone. The limited seating area for patrons within the takeaway requires the majority of patrons to consume food, purchased from the takeaway, while standing on the footpath or sitting on the bench around the street trees, including the area outside the residential flat building at 1A Roslyn Street. It is not possible for the applicant to manage or ameliorate the acoustic impact of this activity on residential amenity, because the activity is in the public domain and not on the premises. The proposal will result in the takeaway's patrons lingering in the street to consume food and consequently, in increased noise levels between 3 am and 4.30 am (the following day) on Fridays, Saturdays and days preceding public holidays, which will disturb the residents of the residential flat building at 1A Roslyn Street.
For this reason, the proposal is not consistent with the zone objectives, pursuant to clause 10 of LEP 1998, because the proposed extended trading hours will result in unacceptable impacts on the amenity of residents and it is a nuisance that cannot be controlled, as it occurs in the public domain and not the premises of the takeaway.
For completeness, I will briefly deal with the other issues disputed by the parties.
Category B (low impact) premises within the Late Night Management area have indoor trading hours of 6 am until 2 am and extended trading hours up to 24 hours. Outdoor trading hours for premises in the same category cease at 10 pm, with extended trading hours until 1 am. There are only the two distinctions within Category B premises, indoor and outdoor trading hours. A takeaway is characterised by the Council as indoor trading.
While the location and context of the premises, within the Late Night Management area, would provide some flexibility in considering a proposal for extended trading hours; the specific nature of the premises, being its small size and limited internal patron seating capacity, results in unacceptable impacts on the amenity of residents in the vicinity of the takeaway between 3 am and 4.30 am (the following day) on Fridays, Saturdays and days preceding public holidays, because patrons eat on the footpath.
The words, in the provisions of DCP 2007 regarding extended trading hours, specifically refer to trial periods. The intention of the control is for the consent authority to grant or refuse consent for extended hours based on their assessment of the performance of the management of the premises during a trial period of extended hours.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Modification Application No D/2006/699/A for extended trading hours is refused.
3. The exhibits are returned except for exhibit 3.
Susan O'Neill
Commissioner of the Court
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Decision last updated: 01 June 2012
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