Khattar v Holroyd Council (No 2) - [2005] NSWLEC 359

Land and Environment Court

of New South Wales

CITATION:
Khattar v Holroyd Council (No 2) [2005] NSWLEC 359

PARTIES:
APPLICANT
George Khattar
RESPONDENT
Holroyd City Council

FILE NUMBER(S):
11636 of 2004

CORAM:
Moore C

KEY ISSUES:
Development Consent :-
Modification of hours of operation of licensed premises
Late night provision of entertainment
Anti-social behaviour
Effectiveness of Plan of Management
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Development Control Plan No. 2 Commercial Code
.

CASES CITED:
Khattar v Holroyd City Council [2005] NSWLEC 411;
Zhang v Canterbury City Council [2001] 115 LGERA 373;
Vincent v Randwick Council [2005] NSWLEC 142;
.

DATES OF HEARING: 10 May, 24 and 28 June 2005

EX TEMPORE JUDGMENT DATE:
06/29/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Hale SC and
Ms P Sibtain, barrister
INSTRUCTED BY
Maclarens Solicitors
RESPONDENT
Mr G McKee, solicitor
McKees Legal Solutions

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

29 June 2005

11636 of 2004 George Khattar v Holroyd City Council
JUDGMENT

1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Planning Act) against what was originally a deemed refusal (and subsequently became an actual refusal) of an application to modify the existing consent for the operating hours of licensed premises known as “The Crown on McCredie” at 135-138 Fairfield Road, Guildford West (the hotel).

2 The hotel is located at Lot 2 in DP 242004, and the proceedings result from an application by the licensee and proprietors of the hotel to extend the trading hours until 3am (including the having of entertainment on a number of the nights). The nights to which the extension of trading hours applies are from Monday night over to Tuesday morning through to Saturday night over to Sunday morning.

3 The application was originally considered by Holroyd City Council (the council) which, in October 2003, granted a six-month trial approval for the application.

4 As a consequence of that trial, a subsequent application by the proprietors to make those arrangements permanent and the commencement of deemed refusal proceedings in this Court with respect to that permanency application, the premises have been trading at the extended hours until the present time.

5 The applicant proposed, as part of the original consideration process for the permanency of the extended hours, a Plan of Management, which was submitted to the council in August 2004.

6 On 10 May 2005, the matter first came before me on an application by the applicant, pursuant to par 14 of the Court-appointed Expert Practice Direction, for leave to be able to call its own acoustic evidence in addition to the evidence to be provided by Mr Stephen Cooper, the Court-appointed acoustic engineer.

7 As part of the proceedings on that day, which proceedings resulted in the applicant being given leave to provide further evidence from Mr Barry Murray, its own acoustic advisor, I made a number of comments to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 359
Decision Date: 06/29/2005

CaseChat Overview and Summary

The case of Khattar v Holroyd City Council (No 2) involved an appeal by George Khattar, the applicant, against the Holroyd City Council's refusal to grant a permanent extension of trading hours for a licensed premises known as "The Crown on McCredie" located at Guildford West. The applicant sought to extend trading hours until 3am, including entertainment on certain nights. The case was heard by the Land and Environment Court of New South Wales.

The key legal issues that the Court had to decide were whether the extended trading hours would result in unacceptable noise levels and anti-social behaviour in the surrounding area, and whether the proposed Plan of Management could mitigate any such impacts. The Court also had to consider the weight to be given to unsworn evidence provided during an on-site inspection.

The Court found that noise impacts could be mitigated through the implementation of certain measures, including the installation of reed switches on doors, and that the proposed Plan of Management could be an effective structure to manage these impacts. However, the Court was concerned about the anti-social behaviour of patrons departing the hotel, and it found that the proposed Plan of Management could potentially address this issue. The Court considered that a further trial period of nine months would be appropriate to assess the effectiveness of the Plan of Management.

The Court concluded that the proposed Plan of Management should include a modest deterring fence, gating of the aperture in the brick fence, and the provision of a minimum of four security guards during the later trading hours. The Court also suggested that the hotel manager should make himself available for consultation with local residents on two occasions each month, and that the hotel should designate a contact phone number for residents to report complaints.

The final orders included directions for the parties to settle a revised Plan of Management and consolidated conditions of consent, and for the matter to be stood over to call-over on 21 July 2005. If the parties were unable to settle the revised Plan of Management, liberty was granted to the parties to re-list the matter before the Court for determination of any unresolved matters.

Orders