Marvan Hotels Pty Ltd v Newcastle City Council

[2024] NSWLEC 1379

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marvan Hotels Pty Ltd v Newcastle City Council [2024] NSWLEC 1379

Hearing dates:

12, 13 February and 11 April 2024

Date of orders:

04 July 2024

Decision date:

04 July 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA2021/00962 for extended trading hours at the existing pub known as the “Delany Hotel” located at 140 Darby Street, Cooks Hill, is refused consent.

(3) The exhibits are returned, except for Ex 2, 8, 9, 10, B and C.

Catchwords:

DEVELOPMENT APPLICATION – pub – extension of trading hours

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.43, 4.15, 4.16, 8.7, 8.10, 8.14

Land and Environment Court Act 1979, ss 17, 34, 39

Newcastle Local Environmental Plan 2012

Cases Cited:

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) (2014) 86 NSWLR 527; [2014] NSWCA 105

Texts Cited:

Newcastle After Dark Night Time Economy Strategy 2018-2022

Newcastle Development Control Plan 2012

Newcastle Development Control Plan 2023

Category:

Principal judgment

Parties:

Marvan Hotels Pty Ltd (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
G Farland (Respondent)

Solicitors:
LAS Lawyers (Applicant)
Moray and Agnew Lawyers (Respondent)

File Number(s):

2023/16696

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the conditions imposed by the respondent in granting development consent to the applicant’s development application (DA2021/00962) (Development Application) seeking consent for extended trading hours at the existing pub known as the “Delany Hotel” (Hotel) located at Lot 20 in Deposited Plan 1038322 and Lots 13 and 15 in Deposited Plan 1009613, being 140 Darby Street, Cooks Hill (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 23 July 2021.

4. The Development Application concerns an existing two storey hotel located on a corner allotment with frontages to Darby Street and Council Street. Relevant to these proceedings, the Hotel consists of a bistro, general bar area, lounge, TAB, gaming room and beer garden at the ground floor. The premises also has a function room and accommodation rooms on the first floor.

5. The total number of patrons permitted in the Hotel is 990 patrons.

6. The Hotel has five separate entrances consisting of:

1. two on Darby Street (Doors 1 and 3);

2. two on Council Street (Doors 4 and 5); and

3. one to the rear (west) of the Hotel via the Council car park (Door 2).

7. There is no parking provided on the Hotel premises.

8. As set out in the Further Amended Statement of Facts and Contentions filed by the respondent on 4 March 2024 (ASOFAC) (Ex 2), the Development Application sought consent to increase the trading hours of the Hotel for two hours Monday to Sunday as follows:

Day	Existing operating hours	Proposed operations hours
Monday to Saturday	10am to 12 midnight	10am to 2am
Sunday	10am to 10pm	10am to 12 midnight

9. The Development Application was publicly notified for a period of 14 days from 27 July to 12 August 2021. 24 submissions objecting to the proposal were received (discussed further at [27]).

10. The Development Application was referred to the Development Application Committee for determination.

11. Further information was requested on 1 November 2021 and further documents and information were provided by the applicant in April 2022.

12. On 16 May 2022, the Development Application went to a Public Voice Hearing.

13. After further requests for information and the further provision of information and documents, the Development Application Committee determined the Development Application by the grant of conditional consent on 7 November 2022.

14. On 17 January 2023, the applicant commenced these proceedings against the provisions of Condition 3 of DA2021/00962, being within the appeal period prescribed by s 8.10 of the EPA Act.

15. Condition 3 is extracted below:

16. Relevantly, although the respondent approved a limited extension for one hour on each of Friday and Saturday, those hours are not presently operative due to these proceedings.

17. In these proceedings, the applicant is seeking orders that the appeal be upheld and a varied condition be imposed (see condition 40 of the applicant’s proposed draft conditions (Ex J). Condition 40 provides that the “premises may operate between 12:00am and 2:00am Monday to Saturday and from 10am to 12 midnight on Sundays for a trial period of 12 months”, following which the opening hours will revert to the hours listed in [15] above (applicant’s proposed draft condition 39), unless the applicant obtains consent to a further development application to extend the hours either permanently or for a further trial period.

18. The matter was listed for a conciliation conference under s 34 of the LEC Act on 13 July 2023. The conciliation was unsuccessful, and the conciliation conference terminated. The matter was then subsequently listed for hearing on 12 and 13 February 2024.

19. On 19 September 2023, the Court granted the applicant leave to amend its application by updating the floor plans and Plan of Management (September Amendments).

20. During the hearing on 13 February 2024:

1. At the request of the parties, the hearing was adjourned to 3 April 2024 (ultimately 11 April 2024) to facilitate consideration of the Newcastle Development Control Plan 2023 (NDCP 2023) which replaced the Newcastle Development Control Plan 2012 (NDCP 2012) and was to come into force on 1 March 2024. The parties agreed that the NDCP 2023 would have partial retrospective application to the Subject Land and therefore the Development Application.

2. The applicant was granted leave to further amend its application by updating architectural plans and replacing the Plan of Management with a proposed Plan of Management Version 8 (POM) prepared by Design Collaborative dated 13 February 2024 (collectively, Amended Development Application).

3. The respondent was granted leave to file and serve the ASOFAC as a result of the Amended Development Application and NDCP 2023.

4. The planning and Crime Prevention Through Environmental Design (CPTED) experts were required to confer in relation to the Amended Development Application and produce a further joint report.

21. The Amended Development Application was publicly notified for a period of 14 days from 15 February to 1 March 2024.

Contentions

22. The contentions pressed by the respondent at the hearing and raised by objectors can be summarised as whether the proposed development:

1. will have an unacceptable noise and amenity impact on the local area;

2. provides inadequate safety and security measures and proposes a POM that lacks appropriate detail and procedures necessary to support the operation contemplated by the Amended Development Application;

3. is inconsistent with the Newcastle After Dark Strategy dated March 2018 (NAD Strategy); and

4. is incompatible with the character of the local area.

23. For the reasons that follow, I have determined that the appeal must fail on its merits having regard to the first two contentions set out above.

The Amended Development Application

24. As set out in the ASOFAC, the Amended Development Application proposes:

1. Various internal and external works, largely to address acoustic concerns, that are in addition to those proposed by the Acoustic Report prepared by Acoustic Logic dated 26 February 2021 (Acoustic Report) (Ex A) comprising part of the Development Application as lodged, including:

1. external works to the ground floor, including replacing existing doors at Door 4 and Door 5 to Council Street, replacing various existing windows and replacing various existing frameless doors with framed doors;

2. external works to demolish the existing door at the top of the existing fire stair, and repair the existing external fire stair and gate;

3. external works to construct an acoustic wall around the air conditioning unit, and acoustic enclosure to the ground floor refrigeration, air intake and discharge to incorporate acoustic louvres; and

4. internal works to the ground floor to replace car park airlock door to acoustic specifications, install various new internal air lock doors to acoustic specifications and installation of new specified sliding doors.

2. An updated POM which proposes changes to the operational arrangements of the Hotel, including:

1. clarifying the location and use of part of the first floor of the Hotel for accommodation;

2. specifying that the minimum number of staff deployed from:

1. 10pm, Monday to Saturday, would be the Duty Manager, one floating staff and one staff for each bar area operating (being the Gaming Room, the Lounge Bar, Public Bar and First Floor); and

2. 10pm, Sunday, would be the Duty Manager and one staff for each bar area operating (being the Gaming Room, Lounge Bar, Public Bar and First Floor),

3. removing the requirement for internal management control points and removing the requirement that in the event these control points are not available, or cannot be enforced, the Hotel may not trade past midnight;

4. providing that after midnight, the maximum capacity of the Hotel is to be reduced to:

1. 300 patrons between midnight and 1am on Friday and Saturday nights; and

2. 120 patrons at all other times,

3. of which, no more than 80 patrons may be present within the Gaming Room (noting that accommodation guests in their rooms are not included in the above patron capacity limits that apply to public bar areas only);

5. patron numbers would be managed by headcount, then mechanical or electronic counters;

6. queuing and crowd management is no longer proposed for patrons as part of the staged shutdown process;

7. from midnight, one security guard is to patrol Darby Street, Council Street and the car park, to control patrons in the public domain;

8. all security, bar managers and the Duty Manager are to be contactable via two-way radio;

9. from 10pm, entry to the Hotel shall be from Door 1 or Door 2. Door 3 may only be used in accordance with the staged shutdown process prescribed by the POM;

10. from midnight, Door 2 shall be closed and only used for emergency egress (therefore entry to the Hotel will be limited to Door 1 from midnight);

11. visual alarms are to be installed to alert bar and security staff if select doors to be closed as part of the staged shutdown are opened by patrons;

12. the ratio of security or RSA Marshalls to patrons changed from 1 to 75 patrons to 1 to 100 patrons;

13. security will be deployed at the following minimum numbers and times:

1. one security guard from 10pm, Monday to Thursday, until all patrons have left the immediate vicinity of the Hotel; and

2. two Security guards from 6pm, Friday and Saturday, until all patrons have left the immediate vicinity of the Hotel;

14. security will undertake regular (not less than every 30 minutes) patrols between Door 1 and the Council car park;

15. the Door 1 security guard is to monitor patrons waiting at the taxi stand and request patrons to wait closer to the Council Street intersection; and

16. provides for certain circumstances when the POM can be amended without the need for consultation with NSW Police or the respondent.

The Subject Land and its context

25. The following is extracted from the ASOFAC:

1. The Subject Land is zoned MU1 Mixed Use under the Newcastle Local Environmental Plan 2012 (NLEP) (however, was located in the B4 Mixed Use zone at the time the Development Application was lodged).

2. The Subject Land adjoins the R3 Medium Density Residential zone under the NLEP to the west (see zoning map extract below):

3. The Subject Land is located within the Cooks Hill Conservation Area under the NLEP.

4. Darby Street is characterised by a variety of business and commercial land uses including several takeaway food and drink premises, cafes, restaurants and small bars.

5. Council Street predominantly includes a mix of residential buildings of single and two storey scale, comprising of attached and semi-detached single dwellings, dual occupancies and multi-dwelling housing development.

6. Opposite the Subject Land to the north, within the MU1 Mixed Use zone, are commercial premises.

7. Adjoining the Subject Land to the south, and opposite to the east, are commercial land uses and shop top housing.

26. The Subject Land is located within the Darby Street Precinct for the purposes of the NAD Strategy.

Public Submissions

27. As set out above at [9], the Development Application was publicly notified for a period of 14 days from 27 July to 12 August 2021. As a result of this notification, 24 submissions objecting to the proposal were received. The views expressed by these submitters are summarised in the ASOFAC (at p 7) and included in the respondent’s bundle (Ex 3), but primarily included:

1. the residential area in which the Subject Land is situated;

2. an anticipated increase in anti-social behaviour such as litter, property damage, fighting, and other alcohol related behaviour as a result of increased hours – some residents noted that they had experienced vomit and urination on their properties from patrons departing the existing Hotel;

3. increased noise from the premises and significant increases in pedestrian activity in the surrounding residential area up until 2.30am;

4. inadequate security;

5. inadequate management of patrons, including when they depart the Hotel;

6. precedent;

7. the poor management of the existing operations of the Hotel;

8. insufficient documentation and information provided with the Development Application;

9. validity issues associated with the Acoustic Report and noise monitoring undertaken; and

10. adverse impacts to the character of the Cooks Hill Heritage Conservation Area.

28. As set out above at [21], the Amended Development Application was publicly notified for a period of 14 days from 15 February to 1 March 2024 where a further 12 written submissions were received objecting to the amended application with one written submission in support (included at Ex 15, tab 3). The objections primarily related to the existing and anticipated exacerbation of noise issues from the Hotel, amenity of residents and damage to private property from patrons after exiting the Hotel, the proposal being inconsistent with the character of the area, alcohol related violence, and concerns regarding the feasibility/efficacy of the proposed operation of the Hotel as set out in the POM.

29. There is significant overlap between the objectors’ submissions and the contentions raised by the respondent in its ASOFAC. The issues have therefore been consolidated as appropriate and considered accordingly.

The site view

30. The Court attended a site view on the morning of the hearing, accompanied by the parties. The Court also heard evidence from three objectors which largely supplemented their written objections in relation to the Development Application as lodged and the Amended Development Application. The oral submissions of one resident were also supplemented by a further written submission (Ex 18).

31. The Court also walked around the permitter of the Hotel including the Council car park at the rear of the Hotel and surrounding streets, including Darby Street, Council Street, Dawson Street, Bull Street, Railway St and Aidens Lane.

Expert evidence

32. The applicant relied on the evidence of Mr David Rippingill (town planning and CPTED) and Mr Thomas Taylor (acoustic).

33. The respondent relied on the evidence of Mr Ben Tesoriero (town planning), Ms Kristy Cianci (CPTED) and Mr Adam Shearer (acoustic).

34. The following joint reports were filed and subsequently tendered at the hearing:

1. Joint Town Planning and CPTED Report prepared by Mr Rippingill, Mr Tesoriero and Ms Cianci, filed 10 January 2024 (Joint Town Planning Report) (Ex 7);

2. Supplementary Joint Town Planning and CPTED Report prepared by Mr Rippingill, Mr Tesoriero and Ms Cianci, filed 19 March 2024 (Supplementary Joint Town Planning Report) (Ex 8);

3. Joint Acoustic Report prepared by Mr Taylor and Mr Shearer, filed 9 January 2024 (Joint Acoustic Report) (Ex 9); and

4. Supplementary Acoustic Report prepared by Mr Taylor and Mr Shearer, filed in Court on 11 April 2024 (Supplementary Joint Acoustic Report) (Ex 10).

The role of the Court on appeal

35. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

…

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

36. Section 8.14(1) of the EPA Act gives the Court broad powers on an appeal against the refusal or deemed refusal of a development application, as follows:

In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

37. Section 4.16 of the EPA Act relevantly provides that:

(1) General A consent authority is to determine a development application by –

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

38. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration by a consent authority in determining a development application.

Planning Framework

39. The Subject Land is zoned MU1 Mixed Use under the NLEP. The MU1 zone objectives to which I have had regard in the assessment of the Amended Development Application, are extracted below:

1   Objectives of zone

•  To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To support nearby or adjacent commercial centres without adversely impacting on the viability of those centres.

40. On 1 March 2024, the NDCP 2023 commenced. The NDCP 2023 revoked the NDCP 2012 pursuant to s 3.43(4) of the EPA Act. The savings and transitional provisions of the NDCP 2023 (set out in section 11) provide that:

“DCP 2023 does not apply to any development application lodged but not finally determined before its commencement. Any development application lodged before its commencement will be assessed in accordance with any previous development control plan (DCP).”

41. Importantly however, section 11 goes on to specify various “exemptions” as follows:

“The above Savings and transitional arrangements do not apply to the following sections:

D4 Commercial

…

Development applications to which these sections apply will be assessed in accordance with DCP 2023.”

42. The parties agree that the D4 Commercial Section of the NDCP 2023 (D4) applies to the Subject Land as it is zoned MU1 Mixed Use (see section 2 of D4). The parties differ as to the correct application and effect of this section.

43. The objectives of D4 are set out at section 4 and are extracted below:

“1. Ensure commercial development integrates with the surrounding environment and built form and makes a positive contribution to local context.

2. Enable and support the Newcastle After Dark vision as outlined in the Newcastle After Dark, Night-time Economy Strategy by limiting night-time and late-night trading to the specific precincts identified in the Strategy.

3. Promote street activation which encourages pedestrian traffic and ensures a safe and accessible environment.

4. Ensure residential development has a high level of privacy, comfort, security, amenity and liveability.

5. Promote the adoption of best practice water efficiency and energy efficiency measures to create healthy work environments.”

44. Relevant to the consideration of this matter is the definition of “low impact venue”, which is defined in section 6 of D4 as follows:

“Low Impact Venue - A venue will be classified as low impact or otherwise throughout the development assessment process based on relevant matters for consideration. A low impact venue may be a small bar or smaller local business that contains low levels of impact on the surrounding environment. A Pub (as defined under LEP 2012) is not a low impact venue and would automatically be classified otherwise due to potential for larger or more cumulative impacts on the surrounding environment.”

45. Relevant sections of D4 have been extracted below.

7.0 Application requirements

…

Development category	Application requirements	Explanatory notes
Any development that may require an acoustic report or a noise impact assessment.	An acoustic report or noise impact assessment is warranted when a noise-producing development is proposed near noise-sensitive areas or, conversely, when a noise-sensitive development is proposed in a noisy area. An acoustic report should:  • consider and apply relevant noise guidelines or policies – for example, those nominated by planning authorities in planning instruments (e.g. development control plans and/or planning approvals) or in pre-DA meetings for a development • clearly describe assessment methodologies and include calculation data • adequately consider relevant factors such as the effects of weather, extraneous noise sources, potentially annoying characteristics of noise sources and operating conditions at the time of measurements • ensure any recommendations concerning acoustic attenuation are feasible and can be practically implemented.	A noise-sensitive development may include but is not limited to residential accommodation, educational establishments, early education and childcare facility, health services facility, place of public worship or the like.  More guidance can be found in the Noise Guide for Local Government, 2023 (NSW Environment Protection Authority) and, Approved Methods for the Measurement and Analysis of Environmental Noise in NSW, 2022 (NSW Environment Protection Authority).

…

12.0 Amenity – internal and neighbour

Objectives

…

6. Concentrate the night-time (after 9pm) and late-night (after 12am - midnight) economy in the seven nightlife precincts: East End, Civic-CBD, West End, Hamilton, Darby Street, Honeysuckle, and Junction-Merewether and support safe and activated public places after dark.

7. Ensure that commercial development does not generate adverse amenity impacts on residential and other sensitive land uses.

Controls (C)

C-10. Late-night development (after 12am - midnight) is not located outside the seven nightlife precincts identified in the Newcastle After Dark, Night-time Economy Strategy.

C-11. Growth in the late-night economy must represent low impact venues to facilitate continued progress in venue diversity.

…

16.0 Acoustic privacy

Objectives

1. Minimise sound transmission and noise pollution.

2, Ensure that commercial development that operates at night-time (after 9pm) or late-night (after 12am, midnight) does not generate adverse amenity impacts on residential and other sensitive land uses.

Controls (C)

Explanatory notes

C-1. Adequately address noise sources impacting residential habitable areas to ensure appropriate internal noise levels are achieved, including by reference to appropriate legislation, guidelines and standards. This may require applicants to obtain an acoustic report or a noise impact assessment from an appropriately qualified and experienced acoustic engineer to support their application.

Newcastle After Dark Strategy - Night-time Economy Strategy reiterates that that a developer responsible for building a residential complex needs to ‘design in’ reasonable noise mitigation (for example double glazing). Conversely, a late-night venue seeking to extend venue space or hours of operation which may include live performance would need to ensure noise impacts are appropriately defined and managed through preparation of a plan of management. Refer to C7 Safety and security.

For further guidance on noise attenuation, refer to the relevant sections of the National Construction Code, associated handbook, including: 

• Part F5 ‘Sound transmission and insulation’ in Volume One for Class 2, 3 and 9c buildings 

• Handbook: Sound transmission and insulation in buildings.

• And the relevant NSW Environment Protection Agency guidelines, being: 

NSW Road Noise Policy 

Further information is in sub-section 7.0 Application requirements.

C-2. Exterior facades are designed to minimise the opportunity for sound transmission.

C-3. Where development adjoins a residential development, locate mechanical plant equipment and building services away from the residential building, be screened and have appropriate acoustic insulation.

C-4. Mechanical plant and equipment are designed and located to minimise noise nuisance.

C-5. For development that is proposed to operate during any part of the period 9pm to 6am, the acoustic impacts from the movement of persons to and from the development upon residential and other sensitive land uses are to be specifically assessed.  The application must demonstrate that the acoustic impacts from the development and the movement of people associated with the development, does not result in new or increased adverse amenity impacts to such uses.

Contentions

Will the Amended Development Application have unacceptable noise and amenity impacts?

46. A key issue in the ASOFAC and raised by objectors was that the Amended Development Application will have an unacceptable noise impact on the local area.

Applicant’s position

47. The applicant relies on the evidence of the acoustic experts to demonstrate that the Amended Development Application will not have unacceptable noise and amenity impacts on the local area and has resolved all contentions regarding noise.

48. As set out in the Joint Acoustic Report (which annexes the “Revised Acoustic Report” prepared by Mr Taylor dated 22 December 2023 (Taylor Report)), the acoustic experts agree that:

1. The noise survey undertaken in the Taylor Report is representative of the current noise environment for relevant noise receivers (residences) to the Subject Land. It correctly identified the nearest residential receivers, identified appropriate noise goals and contained appropriate logging data.

2. The Taylor Report has examined the noise impact to each of the relevant residential receivers and provided building and management requirements necessary to achieve compliant noise levels at these residences.

3. The noise impact associated with ejecting 690 patrons (12am), 180 patrons (1am) and 120 patrons (2am) is considered in the Taylor Report:

1. At 12am, ejecting 690 people would have less acoustic impact compared to the current operating scenario (990 people ejected at this time).

2. At 1am, the experts understand that the Hotel’s trading until 1am is permitted in this area (provided that the site itself meets noise emission requirements). Given the site is located in a predominantly commercial area (and provided that patron egress is managed by security), ejecting 180 people must be considered reasonable.

3. At 2am, the experts understand that Low Impact Venues (no live music, capacity no more than 120 people) are permitted in this area (provided that the site itself meets noise emission requirements). Given the site capacity is limited to 120 people at this time, and music is limited to background levels only (as per recommendations in Section 8 of the Taylor Report), ejecting 120 people must be considered reasonable (provided that patron egress is managed by security).

4. The building controls and management/security proposed by the Taylor Report will enable adequate control of patron noise during the staged shutdown procedure.

5. Provided the acoustic treatments used to address noise to the nearest residences are implemented and noise emissions to the nearest residences meet relevant EPA and Office of Liquor and Gaming acoustic requirements, compliant noise levels will also be achieved at the nearest commercial development as noise emission requirements to commercial development are less stringent.

6. The Taylor Report identifies noise emission requirements for mechanical plant, identifies plant items with the potential to cause an exceedance of these noise goals, and presents acoustic treatments to these plant items in order to ensure the plant and equipment noise will meet noise emission requirements when operated in the extended trading period.

49. The applicant confirms that the Supplementary Joint Acoustic Report addresses and resolves Mr Tesoriero’s concerns that a shop top house at 141 Darby Street had not been assessed by the acoustic experts, with the Joint Acoustic Report concluding that if the acoustic treatments and management controls identified in the Taylor Report are adopted, noise emissions to 141 Darby Street will be compliant with relevant noise emission criteria.

50. In relation to the commencement of D4 of the NDCP 2023 which has retrospective application to the determination of the Amended development Application, the applicant:

1. Refers to the decision in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [191]-[235] to state that it is a matter for the decision maker to determine what weight should be given to a matter in circumstances where legislation requires the decision maker to take certain matters into consideration but does not indicate the relevant weight to be attributed (Applicant’s written submissions (AWS) at (17)).

2. Submits that “the DCP is also to be read with s 4.15(3A) of the [EPA] Act which requires the consent authority to apply DCP standards flexibly and allow reasonable alternative solutions that achieve the objects of the standards” (AWS at (18)).

3. Submits that the control contained in Control C-5 in section 16 Acoustic Privacy of the NDCP 2023 must be read in the context of the whole of the instrument, which seeks to increase vibrancy in late night trading districts, subject to appropriate impacts on residential uses. Further, Control C-5 does not set any particular criteria for assessment but instead requires demonstration that the acoustic impacts from the development and movement of people associated with the development does not result in new or increased adverse amenity impacts to such uses. Mr Rippingill states in the Supplementary Joint Town Planning Report that Control C-5 “as it is written is too uncertain to be enforceable” (AWS at (17)).

4. Submits that although Control C-15 in section 16 Acoustic Privacy, is not specifically referenced in the Taylor Report of Joint Acoustic Report (coming into force after the preparation of these documents), the acoustic experts considered the impacts of the extended trading hours and the specific management and security regime proposed and agreed that these measures and controls would enable the Hotel to operate until 2am while complying with relevant noise emission requirements and appropriately address the movement of people associated with the development.

5. Submits that on the basis of Mr Rippingill’s evidence, there is unlikely to be queues in the extended hours to re-enter the Hotel due to the staged shut down procedures, a lock out is not supported by the acoustic evidence, and the applicant is prepared to accept a condition prohibiting queues (see Condition 46 of the applicant’s proposed conditions filed 11 April 2024).

Respondent’s position

51. The respondent submits that the agreed views of the acoustic experts in relation to noise generated from inside the Hotel are dependent upon all of the recommendations specified in the Taylor Report being implemented. It is the respondent’s view that the Amended Development Application does not in fact propose to implement all of these measures.

52. In relation to potential noise impacts from patrons departing the Hotel during extended trading hours, the respondent submits that different staggered closing times means that the departure of patrons will occur later into the night, with obvious potential for noise impact when the background noise is lower. Further, the respondent submits that the conclusions reached in the Taylor Report in relation to acoustic impacts outside the premises have no empirical basis and cannot be accepted (Respondent’s written submissions (RWS) at (49)).

53. The respondent criticises Mr Rippingill’s evidence that Control C-5 of D4 is too uncertain as to be enforceable, stating that the control is clear in its terms and there has been no attempt to assess any baseline for acoustic impacts, the impacts of people leaving the premises, or people in the likely queue outside the Hotel, despite the fact that there are very significant complaints made about people leaving the Hotel with its presently approved hours (RWS at (53)).

54. The respondent relies on the evidence of Mr Tesoriero who states that the acoustic impacts from the movement of people associated with the proposed development have not been properly considered (see Supplementary Joint Town Planning Report at (19)), such as the impacts of patrons:

1. arriving at the Hotel and queuing out the front of Door 1;

2. ejected because of the staged shut down re-joining the queue in front of Door 1;

3. waiting at the taxi stand once they have left the Hotel;

4. walking past residences on Council Street to the car parking areas to the rear of the Hotel; and

5. walking past residences on Darby Street to the car parking areas to the rear of the Hotel.

55. In respect of the issue of queueing, the respondent relies on the evidence of Mr Tesoriero who relevantly states (Supplementary Joint Town Planning Report at (30)) that with the large numbers of patrons being ejected from the Hotel, and the Hotel remaining open until 2am, Mr Tesoriero disagrees with Mr Rippingill that a queue to re-enter the Hotel eventuating is unlikely. Mr Tesoriero states (Supplementary Joint Town Planning Report at (27) and (34)) that without a noise impact assessment of patrons queuing to enter the Hotel, and in the absence of a lock out arrangement, the consent authority cannot properly consider the noise impacts on nearby residential receivers, the suitability of the Subject Land for proposed late-night trading, or the ability of the proposal to comply with the provision of Control C-5 in D4.

56. The respondent submits that in the absence of adequate consideration of Control C-5 in D4, the Amended Development Application should be refused.

Consideration

57. There are two key issues that must be considered in relation to noise and associated amenity impacts in determining the Amended Development Application. The first is internal noise generated from within the Hotel and whether this noise is acceptable having regard to the facts of this case. The second is external noise generated from patrons who are entering or exiting the Hotel and whether these noise impacts are acceptable.

58. I accept the applicant’s argument that any internal noise created within the Hotel during extended trading hours could be appropriately resolved by the implementation of the building works and noise mitigation measures recommended in the Taylor Report and agreed to be acceptable by the acoustic experts in the Joint Acoustic Report. I also accept that all of the proposed mitigation measures set out in the Taylor Report would be implemented by the applicant if the Amended Development Application was approved, noting the applicant’s preparedness to fulsomely adopt these recommendations by way of condition.

59. In respect of external noise created outside of the Hotel by patrons frequenting the Hotel, Control C-5 in section 17 of D4 of the NDCP 2023 specifically requires consideration of external noise impacts from proposed development. Noting the applicant’s submission that it is a matter for the decision maker as to what weight to assign to Control C-5, if any, it is in my view, necessary to consider the external noise impacts of the proposed extended trading hours of the Hotel in assessing the merits of the Amended Development Application and whether it is in the public interest.

60. Whilst I agree with the applicant that there is no specific criteria for assessment under this control, I accept the respondent’s submission that there has been no material consideration of the external noise impacts of patrons entering and departing the Hotel.

61. The acoustic experts agree that the positioning of guards to ensure orderly egress of patrons and no loitering in the public car park (in addition to building controls) will enable adequate control of patron noise during the staged shut down procedure (Joint Acoustic Report at (49)-(50)). However, this does adequately consider where patrons go when they leave the immediate vicinity of the Hotel, what noise they will make when they leave, and the impacts to residents in the area.

62. Further, given the large number of patrons that could be ejected from the Hotel (for example up to 690 patrons at midnight and 180 patrons at 1am on Friday and Saturday nights), I accept Mr Tesoreiro’s evidence that queueing is not unlikely if the Hotel operates until 2am and a lock out is not applied. Although I note the applicant’s proposed Condition 46 to not permit queuing, I agree with the respondent’s submission that this condition is “unworkable and likely to fail” (T 11 April 2024 p 40 line 46). The potential noise impacts associated with a queue or patrons waiting to re-enter the Hotel have not been considered.

63. I note that the POM (Ex C) refers to security guards patrolling Darby and Council Streets and the car park to “monitor and control patrons in the public domain until those patrons have left the immediate vicinity of the Hotel” (see for example, POM, (33)). The term “immediate vicinity” is defined in the POM at (51) as “publicly accessible walkways and parking areas adjoining the Premises”. However, this provides no consideration to residents and the community regarding the management of noise and amenity impacts once patrons have left the “immediate vicinity” of the Hotel.

64. This is particularly salient in this case noting that the Subject Land adjoins a residential receiver and there are multiple other residences in close proximity to the Hotel that would fall outside of the definition of “immediate vicinity”. The objector submissions detailing existing complaints from neighbours regarding noise from patrons departing the Hotel as currently operated (including vomiting, loud mobile phone calls, arguments, yelling and laughing) is also a matter to which I have given weight in the determination of the Amended Development Application.

65. Although I accept that the respondent has identified the Darby Street Precinct as a location identified for late night trade through the NAD Strategy, this desire must be appropriately balanced with the privacy, comfort, security, amenity and liveability of residents, as per the objectives of D4.

57. In light of the number and proximity of residential receivers to the Hotel, I have placed material weight on the acoustic impacts from the movement of persons to and from the proposed development upon residential land uses between 12am and 2am Monday to Saturday and 10pm to midnight on Sundays, and the potentially significant noise and amenity impacts on residents. I accept the respondent’s position that Control C-5 is a relevant consideration in this matter and the Amended Development Application has not demonstrated that the acoustic impacts from the development and the movement of people associated with the development will not result in new or increased adverse amenity impacts to such uses.

58. As the Court cannot be satisfied that the Amended Development Application will have acceptable noise and amenity impacts, the appeal must fail on its merits.

Does the Amended Development Application propose adequate safety and operational measures?

68. An issue raised in the ASOFAC and by objectors is whether the Amended Development Application proposes adequate safety and operational measures to manage the potential for safety and amenity impacts, namely through the POM.

Applicant’s position

69. The applicant submits that the POM and proposed draft conditions of consent will impose sufficient safety and security controls to ensure that the proposal will be adequately managed. The applicant further submits that the proposed staged shut down will manage the departure of patrons in an orderly manner to the street, rather than dispersing 990 patrons at midnight as is currently approved.

70. The applicant relies on the evidence of Mr Rippingill in the Supplementary Joint Town Planning Report who relevantly states:

1. The impacts are capable of being adequately managed both on a quantitative and qualitative basis. Noise breakout from the venue has been assessed by the acoustic consultants and agreed to be acceptable. A robust POM provides for the monitoring and control of the venue and immediate vicinity which includes a public car park that will be used by patrons of other venues. It also conforms to the objectives of the applicable controls by reducing the intensity of trade to reflect a small bar, which is expressly said to be appropriate.

2. It is ultimately the Licensee who is responsible for the management of the venue and the consequences of any non-compliance with the POM or impacts, that might lead to the loss of a trial period continuation. The POM designates the Duty Manager as the day to day person responsible for those tasks to avoid confusion about ultimate responsibility.

3. The POM requires there to be a minimum of two security guards on Friday and Saturday nights, regardless of capacity. If more than 200 patrons on those nights, there would be three security guards. On all other nights that security are required, assuming full capacity, there would also be two security guards. On these nights, sufficient security numbers are deployed to allow a constant security presence at Door 1 whilst the second security person conducts a patrol.

4. On such nights where there are 100 or less patrons (Monday-Thursday), whilst a security patrol is undertaken, the Duty manager could manage the door whilst a patrol is undertaken. Such a patrol should take about two minutes. Having the Duty Manager temporarily monitor entry is more appropriate than deploying a second guard for a patrol undertaken every 30 minutes.

5. The overall capacity of the venue would be controlled by a single entry point after midnight. This is the primary point of capacity control and highly typical. The other head counts are verification headcounts prior to staged shutdowns, so the Duty Manager can double check whether patrols are to be ejected or relocated internally. Each bar area has a radio and staff, security have radios and staff at the front door would have a radio. Relaying this information is not an onerous task. Manual clickers and recording of data as required by the conditions is typical.

6. The controls proposed including doors, signage, visual alarms, sound locks and hotel staff and security are sufficient to direct patrons to exit via Door 1 to Darby Street. The contentions regarding Doors 3, 4 and 5 potentially not remaining closed, whilst possible, are not probable.

71. The applicant confirmed in oral submissions that it was prepared to accept a condition requiring security guards in the ration of 1:75 as per an earlier version of the POM (see condition 46 of the applicant’s proposed draft conditions and T 11 April 2024 p 21, lines 22 to 30).

72. The applicant submits that there is no requirement for a s 4.55 application in the event the POM requires amendment, stating “consistent with the planning principles for Plans of Management, it is appropriate for plans to be updated (with Council endorsement) without the requirement for modifications pursuant to s 4.55” (at (109) of AWS). However, I note that condition 46 of the applicant’s proposed draft conditions relevantly provides that “Note: Any further amendments or proposed variation to the approved Plan of Management require approval from Council through the submission of a s 4.55 modification application.”

73. The applicant submits that “to the extent Council’s experts hold concerns they are based on a “what if” basis which can be effectively demonstrated through the trial period through the implementation of the POM” (AWS at (77)). Further, if the application is approved, the applicant cannot commence the trial period until the relevant building noise mitigation works are complete and these building works will endure and benefit the community regardless of whether the application is approved beyond the trial period (T 11 April 2024, p 14 at 45-50). The applicant concludes (at AWS (110)) that “it is in the public interest to approve an application consistent with the Council’s controls, subject to condition and a trial period to ensure that there is a satisfactory impact on the community”.

Respondent’s position

74. The respondent submits that “despite being a critical component of the application, POM8 is confusing and complicated” (RWS at (102)), does not provide adequate safety and security measures (at (99)), and the Amended Development Application should therefore be refused.

75. The respondent relies on the evidence of Mr Tesoriero and Ms Cianci in the Supplementary Joint Town Planning Report who detail the complexities and inadequacies of the POM as follows:

1. The security guard has too many roles to cover under the POM, meaning that the security guard will not be able to effectively manage access control to the premises. For example, under the POM, the security guard is responsible for:

1. patrolling Darby Street, Council Street, and the rear car park no less than every 30 minutes to monitor and control patrons in the public domain until those patrons have left the vicinity of the Hotel;

2. ejecting patrons at the staged shut down, as well as conducting external patrons to ensure the dispersal of patrons ejected from the staged shut down;

3. monitoring and managing patrons at the taxi stand;

4. restricting entry and ensuring patron capacities are met; and

5. harm minimisation, the Responsible Service of Alcohol, preventing intoxication or any indecent or quarrelsome conduct of patrons.

2. In fulfilling all of these functions, the security guard will be frequently called away from Door 1 (being the only point of entrance after midnight) and for extended time periods. Leaving Door 1 unattended is unacceptable as there would be no control over patrons entering and exiting. If the Duty Manager was to step in and fulfil the role of monitoring Door 1 when the security guard had to attend to other duties (as suggested by Mr Rippingill) this would leave the Duty Manager unable to carry out their other duties. This is particularly salient on Sundays, where the POM indicates there will be no security guards.

3. There are ambiguities regarding who will be responsible for access control when the security guard is called away from Door 1 given the various delegations that can occur under the POM, namely that an obligation or responsibility under the POM assigned to the Duty Manager may be undertaken by another member of staff, as delegated by the relevant manager.

4. Patrolling the rear carpark every 30 minutes would leave the car park unmonitored most of the time and is inadequate to ensure the noise generated by patrons leaving at 1am and 2am is acceptable.

5. The control of Doors 4 and 5 (which are to be closed and only used as emergency exits from 10pm) and Door 3 (only to be used for egress from 10pm in accordance with the POM) to control noise and patron numbers is reliant on visual alarms. There will be reduced ability for security or the Duty Manager to observe the visual alarms, or do anything about an alarm once triggered, with the roles and responsibilities required of them under the POM.

6. The POM proposes manual headcounts over several visually disconnected rooms located on two floors. This assessment must be undertaken four times between 11pm and 12.45am and two counts are within 15 minutes of the first. This is a significant task and will be undertaken by the Duty Manager.

76. The respondent submits that “POM8 is entirely inadequate to manage the extension of operating hours, so the application should be refused” (RWS at (118)). Further, the respondent submits that the proposed 12-month trial period proposed by the applicant does not answer or address the problems that the respondent says are inherent in the Amended Development Application (see RWS at (122)-(125)) and the Amended Development Application should be refused.

Consideration

77. Having considered the submissions of the parties and evidence of the town planning and CPTED experts, I accept the respondent’s submissions regarding the deficiencies in the POM, namely that it is overly complex, confusing and ultimately inadequate to manage the extended trading hours proposed by the Amended Development Application.

78. The Hotel is a large venue that contains multiple doors, multiple areas open to the public across two floors, and three effective street frontages. The shutdown procedures prescribed by the POM are required to be implemented at multiple times across multiple locations across the venue by various personnel. Based on my consideration of the evidence and submissions of the parties, relying on the proposed security ratios, whether they be 1:100 or 1:75, is too simplistic to ensure the efficient and effective operation of the Hotel, given its size and layout across multiple rooms and floors, and the requirement for a complicated staged shut down process involving significant numbers of patrons.

79. I accept Mr Tesoriero’s evidence that the security guards and Duty Manager have too many tasks that have the real potential to come into conflict such that the POM is unworkable.

80. The responsibilities assigned to the Duty Manager in the POM are numerous and significant to the effective operation of the Hotel, with many important operational decisions being at the discretion of the Duty Manager. General amenity management measures for which the Duty Manager is responsible are listed at (50) of the POM. Further, the Duty Manager is responsible for headcounts, determining whether shut down procedures should be commenced earlier, and establishing restricted entry to the Hotel if required to ensure patron number controls are adhered to. To this end, Mr Rippingill states (Supplementary Joint Town Planning Report at (174)) that “the POM designates the Duty Manager as the day to day person responsible for those tasks to avoid confusion about ultimate responsibility”.

81. However, pursuant to the POM (at (9)), “an obligation or responsibility under this Plan assigned to a Duty Manager may be undertaken by another member of staff, as delegated by the relevant manager”. I accept Mr Tesoriero’s evidence that the delegation provisions in the POM, particularly considering its complexities, create uncertainty regarding accountability for its compliance and therefore uncertainty regarding the effective operation of the Hotel during the proposed extended trading hours.

82. I accept the respondent’s submission that a 12-month trial period is an inappropriate means by which to address the noise impact and operational management issues associated with the Amended Development Application that I accept are inherent deficiencies in the proposal.

Conclusion

83. For the reasons above, after an assessment under s 4.15 of the EPA Act, I have decided that the application should be refused development consent and the appeal dismissed.

84. It is therefore unnecessary for me to specifically consider the remaining contentions set out at [22].

85. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA2021/00962 for extended trading hours at the existing pub known as the “Delany Hotel” located at 140 Darby Street, Cooks Hill, is refused consent.

3. The exhibits are returned, except for Ex 2, 8, 9, 10, B and C.

N Targett

Acting Commissioner of the Court

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Decision last updated: 04 July 2024