Lanadell Pty Limited v Canada Bay City Council

[2004] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION:

Lanadell Pty Limited v Canada Bay City Council [2004] NSWLEC 43

PARTIES:

APPLICANT
Lanadell Pty Limited

RESPONDENT
Canada Bay City Council

FILE NUMBER(S):

10956 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- Extension of trading hours of the Five Dock Hotel
Environmental impacts
Consent orders

LEGISLATION CITED:

Drummoyne Local Environmental Plan 1986, (the DLEP)
Drummoyne Comprehensive Development Control Plan, (the DCDCP)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING:

16/2/04

EX TEMPORE
JUDGMENT DATE :

02/16/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Austrin, QC, instructed by
Mr C Drury, solicitor
for Phillips Fox

RESPONDENT
Mr S Patterson, solicitor
for Wilshire Webb

JUDGMENT:

Lanadell Pty Limited
v
Canada Bay City Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Canada Bay City Council (the council) to refuse a development application for the permanent extension of trading hours at the Five Dock Hotel at Lot 25, DP 178013; Lot A, DP 324414; Lot 82, DP 379890; Part Lot 1 Sec 5, DP 884; being No 74 Great North Road, Five Dock.

2 Prior to the hearing the extension of hours was limited to the games room and lounge bar within the Five Dock Hotel.

3 I visited the land in company with the parties on the day of the hearing. Consent orders were made on-site.

4 I have concluded that the proposal is worthy of approval subject to conditions. One of the conditions requires a 12-month trial period.


The land
5 The land and premises is situated within the Five Dock commercial shopping strip on the northeastern corner of Great North Road and First Avenue. Erected on the land is a three storey hotel building, a TAB and drive through bottle shop.

6 To the rear is a council car parking area access from Waterview Street. Commercial premises surround the land. There are residential properties in Waterview Street to the east of the land.


Relevant planning controls

Drummoyne Local Environmental Plan 1986, (the DLEP)
7 Under the provisions of the DLEP the land is zoned General Business 3(a) and the proposal as an hotel is permissible with consent.

8 The Five Dock Hotel is listed as an heritage item under Schedule 1 of the DLEP and under cl 21 the consent authority is to consider the impacts of the development on the heritage significance of the item. There are no physical works proposed.


Drummoyne Comprehensive Development Control Plan, (the DCDCP)
9 Under the DCDCP there are no prescriptive controls that apply. There are objectives that seek to ensure that development is in keeping with the area and that negative impacts are minimised.

The proposal and its history
10 Development application No 195/ 2003 was lodged with the respondent council on 24 March 2003 for the permanent extension of trading hours at the Five Dock Hotel.


Notification
11 The application was notified to nearby owners and occupants and the council received twenty-one submissions. A petition was received in support.


The council’s decision
12 When the appeal was filed the council had not finally determined the application and thus it was a deemed refusal.


The hearing
13 The appeal was filed on 14 August 2003.

14 At the hearing the court received written and oral evidence on behalf of the respondent council from:

• Ms E Westaway, town planner whose planning report was tendered;
• Mrs J McGill, resident of No 12 Waterview Street;
• Ms A D’More, local member.
15 On behalf of the applicant written evidence was given by:
• Mr G W Smith, town planner;
• Mr W Boyle, town planner;
• Mr J Coady, town planner and traffic engineer.

The issues
16 On 2 October 2003 the council filed a statement of ten issues.

17 The salient issues related to the resident concerns including traffic noise.


The evidence and findings
18 I have carefully considered the evidence in relation to the extension of hours limited to the games room and lounge bar within the Five Dock Hotel. It is proposed to limit the patronage to 50 persons by condition. The conditions in Exhibit 2 as amended by the new Condition No 21 in Exhibit 3 have been agreed between the parties and would ameliorate as far as possible any adverse environmental impacts.

19 The application as modified by the conditions would be worthy of approval by the Court when considered under s 79C of the Environmental Planning and Assessment Act 1979.

20 For the above reasons, the appeal is upheld by consent.


Conditions
21 The conditions are those in Exhibit 2 as amended by Condition 21 in Exhibit 3.


Consent orders
22 My orders by consent are:


1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 195/ 2003 lodged with the respondent council on 24 March 2003 for the permanent extension of trading hours at the Five Dock Hotel at Lot 25, DP 178013; Lot A, DP 324414; Lot 82, DP 379890; Part Lot 1 Sec 5, DP 884; being No 74 Great North Road, Five Dock, is approved subject to Conditions 1 to 21 in Annexure A.

3. The exhibits are retained.
S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

Lanadell Pty Limited
v
Canada Bay City Council


Development Application No: 195/2003
Five Dock Hotel
No 74 Great North Road, Five Dock

Advisory

In this consent the following definitions apply:

Original trading hours: 9am until midnight, Monday to Wednesday, Friday and Saturday; 5am until 1am (the following day), Thursday; and 10am until 10pm, Sunday.

Extended trading hours: Monday to Saturday – 9am – 5am (the following day), Sunday - 10am - 10pm

1. Consent


Development shall take place and operate generally in accordance with this consent.

Please read the conditions of this development consent carefully and make sure that you understand all the conditions that have been imposed.

Any minor modification to the approved plans will require the lodgement, and assessment of an “Application to Modify Consent” under Section 96 of the Environmental Planning and Assessment Act, 1979, (as amended ). Major modifications to the approved plans shall require the lodgement, and consideration of a new Development Application.

(Reason: Statutory requirement and to clarify the terms of the consent)

2. Trading Hours

The hours of trade of the Hotel with the exception of the gaming room and the lounge bar shall be the original trading hours. The hours of trade of the gaming room and the lounge bar only shall be the extended hours as follows:
Monday to Saturday – 9am – 5am (the following day)
Sunday - 10am - 10pm

3. Trial Period

Notwithstanding the extended hours there shall be a trial period of 24 months of the extended hours.
The trial period shall commence on the day that Council receives written confirmation that conditions number 5, 6, 7, 8, 9 and 21 below has been complied with.
If on or shortly prior to the end of the trial period the Council issues to the licensee a notice in writing to the effect that the hotel has been conducted without unreasonable impact on the amenity of its neighbourhood during the trial period (“letter of approval”) the trial period shall cease and the gaming room and the lounge bar of the hotel may continue to trade the extended hours. The hours of trade of the hotel with the exception of the gaming room and lounge bar shall remain the original trading hours.

If no letter of approval has been issued by the end of the trial period and if any development application made within thirty (30) days after the end of the trial period (“application for confirmation”) is refused by Council or the Land and Environment Court (in the case of any appeal from Council’s refusal) the hours of trade of all areas of the Hotel shall revert to the original trading hours from the date of that refusal. The approval by the Council or the Land and Environment Court on appeal of the application for confirmation shall result in the permanent continuation of the extended hours for the gaming room and lounge bar only.

During the trial period the gaming room and lounge bar must trade during the extended trading hours.

4. Maximum number of patrons

The maximum number of patrons within the gaming room and lounge bar from midnight to 5am shall be limited to fifty (50).

5. Lighting to Public Carpark

Additional lighting is to be installed to Council’s Waterview Street public carpark to the area immediately behind the existing bottle shop adjacent to the Hotel. Flood lighting should be fixed to the rear of the bottle shop and be oriented to minimise light spill and nuisance to adjoining properties. Lighting shall also be provided over the pedestrian access way leading from the public carpark to First Avenue, between the Hotel and the Bottle Shop. All lights shall remain on while the Hotel is operating.

6. Video Surveillance

Video surveillance with recording capacity shall be installed, covering the immediate area of Great North Road and First Avenue, and to Council’s Waterview Street Carpark, and the accessway leading to it from First Avenue. A monitor is to be provided within the lounge bar, in a location able to be viewed by staff within the Hotel.
Recordings from the video surveillance are to be kept for a minimum period of twenty-one (21) days and are to be made available on demand by Council or the NSW Police Service.
Signage is to erected within the Hotel and at the entrance to the carpark, that the carpark is monitored by video surveillance.

7. Closure of Public Bar

The public bar (which shall not operate during the extended hours) shall be closed off by means of physical barrier from the lounge bar and gaming room during extended trading hours.

8. Signage

A sign, with a minimum area of 1m2 shall be erected at the exit of the Waterview Street carpark. Signage shall advise that persons are now entering a residential area and to please minimise noise.

9. Existing Signage to be Amended

Existing signage on the premises relating to trading hours shall be amended to reflect the trading hours approved by this consent.

10. Live Entertainment

No live music or entertainment shall take place on the premises after 12 midnight.

11. Glass or Containers

No person shall be permitted to take glasses or open containers of liquor off the licensed premises when leaving. In particular, patrons shall not be permitted to drink on the footpath outside the premises. Any patron not complying with a direction to move inside the premises shall be refused further service.

12. Quiet and Good Order:


A clearly visible sign shall be permanently erected immediately adjacent to the entry/exit doors indicating that patrons are to leave in an orderly fashion and shall leave the vicinity of the premises in a manner that does not disturb the quiet and good order of the neighbourhood.

13. Security Personnel

A minimum of one (1) uniformed security personnel licensed under the Securities Industry Act, 1975 (NSW) shall be engaged by the licensee/secretary on Monday - Saturday between the hours of 7pm and 11pm. On Monday to Thursday one additional security person, and on Friday and Saturday two additional persons shall be engaged from 11pm until the close of the premises. Security personnel shall patrol the area (including the Waterview Street carpark) to ensure that patrons of the licensed premises do not loiter or linger in the area nor cause any nuisance or annoyance to the quiet and good order of the neighbourhood.

14. Bottle, Can or Garbage Disposal:

No bottle, can or garbage disposal shall take place between the hours of 10.00pm and 5.00am daily.
15. Noise from the Licensed Premises :

The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any octave band centre frequency (31.5Hz – 8 Hz inclusive) between midnight to 5.00am at the boundary of any affected residential premises.

16. Noise:
Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12.00 midnight to 5.00 am.

17. Harm Minimisation Principles :

The licensee shall implement forthwith Harm Minimisation Principles and any Industry Code(s) of Practice in relation to the responsible serving of alcohol. Any employee shall undergo necessary training modules to satisfy current requirements.

18. Acoustic Survey
Noise due to the extended trading hours of the Hotel shall not cause any nuisance or disturbance to adjoining or nearby premises. In the event of any noise compliant being received by Council, the applicant shall, at their own expense, engage an appropriately qualified acoustic consultant who shall liase with Council to undertake a comprehensive acoustical survey/investigation. The results of any survey shall be submitted to Council in the form of a report and the applicant shall implement those recommendations of the consultant.

19. Liquor Accord
The Hotel shall agree to support the Liquor Accord of NSW Police (Burwood Local Area Command).


20. Newsletter
A quarterly newsletter shall be published by the Hotel and distributed to the residents of Waterview Street and First Avenue between Great North Rd and Park Road. The newsletter shall provide comprehensive contact details for the Hotel, including those of Duty/Shift managers.
21. Plan of Management

The applicant will implement and comply with a plan of management to be agreed between the parties but generally in the form of the draft plan of management dated February 2004 being Annexure 4 to the statement of evidence of G W Smith filed in these proceedings.
S J Watts
Commissioner of the Court