Nelmeer Hoteliers Pty Ltd v Burwood Council

[2019] NSWLEC 1315

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nelmeer Hoteliers Pty Ltd v Burwood Council [2019] NSWLEC 1315
Hearing dates:	11 June 2019
Date of orders:	05 July 2019
Decision date:	05 July 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent for the extension of the trading hours of the Royal Sheaf Hotel at 77 Liverpool Road or 231 Burwood Road, Burwood, to allow the trading hours on Monday to Saturday to extend to 4am and the trading hours on Sunday to extend to 12 midnight, is granted subject to the conditions of consent in Annexure A. (3) The exhibits are returned, except for Exhibits A, C and 6.
Catchwords:	APPEAL – development application – extension of trading hours of pub – assessment of impacts – acoustic impact – acoustic environment dominated by road traffic noise – social impact – crime and safety – application of planning principle – no evidence that current operating hours causing adverse impact – additional measures to prevent adverse impact – appropriateness of trial period
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 Nelmeer Hoteliers Pty Ltd v Burwood Council (Land and Environment Court (NSW), 2 May 1995, unrep) New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) LGERA 303; [2003] NSWLEC 154 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 Vinson v Randwick Council (2005) 141 LGERA 27; [2005] NSWLEC 142
Texts Cited:	Burwood Development Control Plan 2013 New South Wales, Department of Justice, Intoxication guidelines (February 2016) New South Wales, Department of Trade and Investment, Liquor Promotion Guidelines (July 2013) New South Wales, Department of Trade and Investment, Prevention of intoxication on licensed premises guidelines (March 2015)
Category:	Principal judgment
Parties:	Nelmeer Hoteliers Pty Ltd (Applicant) Burwood Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant)   Solicitors: LAS Lawyers and Consultants (Applicant) R McCulloch, Pikes and Verekers Lawyers (Respondent)
File Number(s):	2018/131140
Publication restriction:	No

Judgment

1. COMMISSIONER: A hotel has stood on the north side of Liverpool Road, at the corner of Burwood Road, since the 1880s. Sometime in the 1930s, it became the Royal Sheaf Hotel, which now operates as a licensed pub with a bar, bistro, TAB and gaming machine room. The pub currently has trading hours Monday to Saturday from 10am to 3am the following day, and on Sunday from 10am to 10pm. It seeks to extend its trading hours on Monday to Saturday to 4am the following day, and on Sunday to 12 midnight. On 4 April 2018, Burwood Council (“the Council”) refused a development application seeking the same. Nelmeer Hoteliers Pty Ltd (“Nelmeer”) appeals to the Court against that refusal, pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The development application, as amended in the course of the proceedings, would allow up to 30 patrons to be on the premises from 3am to 4am in the Monday to Saturday trading hours, in an area restricted to the gaming room and the adjoining bar area, with the remaining pub area roped off or closed. The extension of the trading hours to 12 midnight on Sunday is not proposed to be subject to a patron limit.

3. The Council opposes the extension of trading hours on the basis that it will cause adverse impacts on the amenity of the surrounding residential properties. For the reasons set out below, I have determined that there is no evidence that the current operation has caused, or the future extended operation of the pub will cause, an adverse acoustic or social impact on the amenity of local residents. Further, as discussed below, I consider that the restrictions to the operations between 3am and 4am, and the revised Plan of Management, will manage the impacts of the extended trading hours and improve the general operation of the pub. Accordingly, I consider it appropriate to grant the extension of the trading hours subject to the imposition of a 12 month trial period.

The site and the locality

4. The subject site, on which the pub is situated, is known as either 77 Liverpool Road or 231 Burwood Road, Burwood and comprises one allotment legally described as Lot 1 in DP 652501. The site has an area of 2,288m2 and is located on the north-western corner of the intersection of Liverpool Road and Burwood Road. Liverpool Road forms part of a gazetted state highway known as the Hume Highway, and is a major arterial road between south-western Sydney and the CBD.

5. The building is two storeys in height and is art deco in style with a hipped tiled roof and brick facades built to the street alignment of Liverpool Road and Burwood Road. The building is sited in the south-eastern portion of the site, and is surrounded to the north and west by at-grade hard stand car parking. The adjoining site immediately to the north also comprises at-grade hard stand car parking that services the pub. The car park also contains a drive-through driveway, which connects Burwood Road and Liverpool Road, allowing vehicular access to the site from both Burwood Road and Liverpool Road. Vehicular access to and from Burwood Road is closed after 10:30pm daily.

6. An aerial image of the site, which shows the location of the building, the hardstand car parking, the driveway and the access from Burwood and Liverpool Roads, is shown at Figure 1.

7. The site is zoned B2 Local Centre and is within the Burwood Road Heritage Conservation Area pursuant to the Burwood Local Environmental Plan 2012 (“BLEP 2012”).

8. It is located at the eastern edge of the Enfield Local Centre as nominated in the Burwood Development Control Plan 2013 (“BDCP 2013”). The Enfield Local Centre stretches to the west along Liverpool Road, and comprises a number of separated pockets of traditional two-storey shop top housing. The site is separated from the nearest shops by over 100m. Those shops are predominantly small scale retail uses that trade within regular business hours.

9. The site is surrounded to the north, south and east by low density residential areas characterised by dwelling houses on large landscaped allotments. To the east of the site, on the opposite side of Burwood Road, are dwelling houses, and adjacent to the adjoining car parking to the north is 229 Burwood Road, which similarly contains a dwelling house. There is an approved acoustic screen located within the car park at the boundary of the dwelling to the north.

10. Adjoining the site to the west is 79-81 Liverpool Road, which contains a recently constructed three-storey mixed use development with ground floor retail and residential apartments on the ground floor, first floor and second floor. Occupancy of the residential apartments commenced after the present application was lodged with the Council.

11. To the south of the site, on the opposite side of Liverpool Road, is St Joseph's Catholic Church, a heritage item pursuant to the BLEP 2012, and the associated Catholic primary school. A six-storey residential apartment development with ground floor shops is also located to the south of the site.

History of recent development consents

12. On 14 February 1983, the Council granted development consent to convert the then existing public bar, lounge and bottle sales area of the Royal Sheaf Hotel to the sale and display of hardware and home improvement items with the conversion of the garden bar to a new public bar.

13. In 1994, a development application to extend the trading hours of the casino bar on the ground floor of the Royal Sheaf Hotel from 12.00pm midnight until 3.00am daily was refused by the Council, and an appeal against that decision was dismissed by the Court on 2 May 1995 in Nelmeer Hoteliers Pty Ltd v Burwood Council (Land and Environment Court (NSW), 2 May 1995, unrep). In that decision, Senior Assessor Jensen considered the residential character of the area and the evidence of residents of past incidents and was “inclined to accept the thrust of their evidence that such incidents are likely to increase with increased patronage of the Casino in the early hours of the morning.”

14. On 25 October 1995, the Council granted development consent for the ground floor of the main hotel building to change from a retail use to a hotel. This consent included a condition limiting trading hours to between 5am and 12 midnight Mondays to Saturdays, and 10am to 10pm on Sundays. The conditions also required vehicular access to and from Burwood Road to be closed at 10:30pm daily.

15. In 2006, following a refusal by the Council of a modification application to extend the trading hours from 12 midnight to 4am, Nelmeer appealed to the Court. On 29 November 2006 the appeal was upheld and new trading hours were permitted, allowing trading on Wednesday through to Saturday to be extended until 3am the following day. The trading hours for Sunday, Monday and Tuesday remained the same. A condition was imposed limiting the patronage after 12 midnight to 90 people, and the extended hours were subject to a 12 month trial period.

16. Following the trial period, on 25 August 2008 the Council granted a modification application to permanently confirm the trading hours approved by the Court.

17. On 25 July 2008, the Council granted development consent to extend the trading hours on Mondays and Tuesdays to 3am the following day. This was again subject to a 12 month trial period. The condition limiting patronage to 90 people after 12 midnight equally applied to Mondays and Tuesdays.

18. Following the expiration of the 12 month trial period, on 14 December 2009 the Council granted development consent permanently approving the extended trading hours to 3am the following day for both Mondays and Tuesdays.

19. As a result, the current approved trading hours for the pub are 10am to 3am the following day for Monday to Saturday, and 10am to 10pm on Sundays. The conditions of the development consents continue to require that the gates for vehicular access to/from Burwood Road be closed at 10:30pm, and that patronage is limited to 90 after 12 midnight.

The proposed extension of trading hours

20. In order to reduce the potential for adverse impacts resulting from the extension of the trading hours to 4am, the development application seeks to limit patron numbers to 30 between the hours of 3am to 4am, and restrict movement during that time between the gaming room and a small area of the main bar. Nelmeer also proposes that two security persons be available for the period of 3am to 4am. Figure 2 demonstrates the restricted area of trading (marked in blue) to which the extension of trading hours would apply, and the location where the security personnel will be largely stationed.

21. The above restrictions are not sought for the hours of 10pm to midnight on Sunday.

22. Further, the development application also includes an updated Plan of Management that provides additional measures for management to prevent adverse impacts and adopts the various guidelines issued by the Secretary of the Department of Trade and Investment and the Secretary of the Department of Justice concerning the prevention of intoxication. This Plan of Management would allow these measures to be adopted throughout the existing hours of operation.

23. Whilst Nelmeer considers that there is no adverse impact as a result of the extended trading hours with these limits on operation, it agrees that it would be reasonable to impose a 12 month trial period to confirm the absence of impact before making the hours permanent on an on-going basis.

The planning controls

24. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

25. Clause 2.3(2) of the BLEP 2012 requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

26. The existing and proposed ongoing use of the site is characterised as a 'pub' which is an innominate permissible use in the B2 zone.

27. At the rear of the site and to the east, the site adjoins the R2 Low Density Residential zone. This is illustrated in Figure 3.

28. The objectives of the R2 zone are as follows:

•To provide for the housing needs of the community within a low density residential environment.

•To enable other land uses that provide facilities or services to meet the day to day needs of residents.

29. Part 3.5.2.2 of the BDCP 2013 provides provisions specifically for the Enfield Local Centre, but the controls therein are confined to built form and do not assist in the assessment of the present development application.

30. The overview of the Enfield Local Centre, contained in Pt 3.5.2, is as follows:

“Enfield Local Centre (Figure 18) comprises the retail and commercial activities located along Liverpool Road from Burwood Road in the east and continuing onto Coronation Parade in the west.

Near the intersection of Liverpool Road and Coronation Parade/The Boulevarde the centre comprises a mixture of traditional linear shops and newer buildings of a similar height and style. Around the intersection of Liverpool Road and Burwood Road the buildings include a mixture of traditional linear shops, older style residential flat buildings and newer commercial buildings as well as the cultural landmarks of the Royal Sheaf Hotel and the heritage listed St Joseph’s Church.”

31. The desired future character of the Enfield Local Centre includes the following statement:

“… redevelopment within the three areas that make up the Enfield Local Centre is likely to comprise new infill floor space or new construction that optimises provision of shop top housing where residents can take advantage of good public transport access and local services.

The land on the northern side of Liverpool Road between Burwood Road and Quandong Avenue that includes the Royal Sheaf Hotel site, is subject to lower development standards of 11m maximum building height and 1.5:1 FSR, in recognition of the historical development controls and the acknowledged heritage quality of the Hotel building and the Conservation Areas to the north and east.”

Evidence

32. The development application was publicly notified from 26 October to 16 November 2017. One submission was received, from a resident of premises on Liverpool Road. The submission refers to an earlier concern raised on a prior application to extend trading hours, which relates to patrons sitting outside his/her apartment and across the road at the bus stop “at late hours of the evening carrying on and yelling.”

33. Residents of the adjoining residential apartments at 79-81 Liverpool Road commenced their occupancy after the public notification period. As such, they did not have an opportunity to make a submission with respect to the application.

34. In response to the referral of the development application to the NSW Police, the NSW Police letter included the following:

“Burwood Police do not support the request of change of hours.

Police records show that various crimes and anti-social behaviours occur within and surrounding these locations. These include but are not limited to:

- Assaults

- Malicious damage

- Stealings

- Intoxication

- Noise complaints

Over the past 3 months Police have had adverse dealing with members of the public in the vicinity of these premise, who have behaved in a manner requiring Police to utilise street based powers, including searching and moving on of people in the area, in particular between the hours of midnight.to 5am: Some of this behaviour includes alcohol as an associated factor.

The location of Royal Sheaf Hotel has been subject to information received through intel reports and Crime Stoppers stating the location has been an interest of robberies of the past years.”

35. However, there are no records in the Computerised Operational Policing System (“COPS”) that support the assertion that the above crimes and anti-social behaviour occurred in the vicinity of the site or are connected with patrons who were at the pub.

36. There were no residents or members of the NSW Police in attendance at the hearing.

Expert town planning and social planning evidence

37. Mr James Arnold, a town planner engaged by the Council, and Mr David Rippingill, a town planner engaged by Nelmeer, prepared a joint report that was tendered at the hearing and also gave concurrent evidence on the planning and social impacts of the proposal.

38. Mr Arnold and Mr Rippingill agree that, from 2013 onwards, the Council has no record of any complaint about the operation of the premises. They agree that there is no record of COPS events during the period referred to in the letter from NSW Police, and that no specific incidents have been cited by the Police which demonstrate a direct impact on residential amenity linked to the operation of the pub

39. Mr Arnold and Mr Rippingill also agree that the operation of the pub results in a general increase in activity in the area, and that security guards are limited in their power to intervene with patrons once they have left the premises. They both indicate that they are not aware of any other businesses open late in the area.

40. They also agree that the proper implementation of the proposed Plan of Management would reduce the risk of significant adverse impacts on residential amenity.

Expert acoustic evidence

41. Mr Stephen Gauld, an acoustic consultant engaged by the Council, and Mr Steven Cooper, an acoustic consultant engaged by Nelmeer, gave evidence on the acoustic impact of the application to extend the trading hours. Their evidence includes the applicable acoustic criteria for determining whether there is an adverse acoustic impact, and whether such an adverse acoustic impact will arise if trading hours are extended as proposed. Mr Cooper’s evidence includes results from measurements obtained from two noise loggers with audio recording capability that were installed on the site in December 2018, and from measurements obtained from attendance on the site with a sound level meter on 2 and 6 April 2019 for the purpose of the joint report. Mr Gauld provided measurements by a sound level meter outside the door of three residential units adjacent to the western boundary of the site.

42. In considering the measurements, Mr Gauld and Mr Cooper agree that the traffic on Liverpool Road and Burwood Road dominated all measurements, and that noise from patrons inside the pub was inaudible at the residential boundaries.

43. The experts agree that the acoustic criteria issued by Liquor & Gaming NSW are appropriate for assessing noise from the pub during the extended hours. Both Mr Gauld and Mr Cooper have attended the premises at night and have not observed any breaches of the Liquor & Gaming NSW acoustic criteria. These criteria are known as the LA10 noise criteria, and are in two parts according to different times of day. The pre-midnight criterion allows noise emissions from licensed premises to exceed the background noise level by 5dB in any octave band, whereas the post-midnight criteria require that the noise emission from any licenced premises is not to exceed the background noise level within the same octave bands used in the pre-midnight criteria at any residential boundary. The post-midnight criteria also require noise emissions from the premises to be inaudible in any habitable room of any residential premises. Mr Gauld and Mr Cooper agree that the LA10 noise condition currently contained on the consent requires the pub to limit its noise emission to the LA10 noise criteria at all residential premises at all times of operation.

41. Mr Gauld and Mr Cooper agree that whilst the Noise Policy for Industry (“NPI”) does not strictly mandate compliance with particular criteria for premises of this type, it is appropriate to use it for mechanical plant noise utilising the intrusiveness criterion for a noise contribution, assessed as an LAeq level over 15 minutes not exceeding the Rating Background Level (“RBL”) by more than 5 dB(A). Whilst Mr Cooper identified some breaches of this acoustic criterion by mechanical plant noise, this has now been resolved through some adjustments to the offending mechanical plants.

42. They also agree that whilst there is no longer a sleep arousal target applied outside bedroom windows in the NPI, there is now a threshold limit that is applied and events that exceed the threshold must be further assessed to identify the context, the number of events that exceed the threshold, the maximum number of events and what happens in the existing environment. With respect to a threshold limit of 59 dB(A) (RBL plus 15 dB(A)) for maximum events at night, the monitoring results of the existing operations resulted in two breaches of that limit. An analysis of the results shows that the number of events from the car park is insignificant when compared to the existing ambient maximum events as a result of traffic on Liverpool Road. That is, whereas there were 83 instances where the 59dB(A) limit was exceeded between 2:14am and 3:14am, only 3 were attributed to use of the car park. As such, Mr Cooper and Mr Gauld agree that when the use of the car park is placed in the context of the existing acoustic environment (for elevated location 4 on the western residential boundary), the maximum noise levels from the car park are insignificant when compared to the existing ambient maximum events as a result of traffic on Liverpool Road.

43. Mr Cooper also notes that the mixed use development at 79-81 Liverpool Road, containing residential apartments, was required by the State Environmental Planning Policy (Infrastructure) 2007 to incorporate noise control measures. On the basis of Mr Cooper’s measurements, those measures required an attenuation from outside to inside of not less than 30 dB(A), which he notes cannot be achieved by an open window. Notwithstanding the requirement for such measures, Mr Cooper and Mr Gauld note that acoustic attenuation was only provided to units along the Liverpool Street frontage (and not to those units that are immediately adjacent to the western boundary of the site).

44. Mr Cooper has also calculated the acoustic impact for the gaming room operating at a maximum capacity of 30 machines. Based on the assessment of the impact of the pub operations at the elevated location on the western boundary, and disregarding the controls that should be required of the apartments in the mixed use development, he considers that additional absorption is required in the outdoor gaming room to ensure full compliance with the LA10 condition. This is not disputed by Mr Gauld, and is proposed as a condition of development consent.

Acoustic impact

48. The Council’s position is that given the location of the site, immediately adjacent to a low density residential zone, the extension of the trading hours will lead to further noise and disturbance from patrons entering and leaving the premises. The Council submits that given the predominantly residential nature of the area, and the adjacent residential apartments in the mixed use development to the west, any noise or anti-social behaviour from patrons during the extended trading hours will be disturbing to residents and early morning commuters in the area. Whilst the Council concedes that the noise from the mechanical plants and equipment, and the noise from patrons within the premises, will be acceptable with appropriate conditions of development consent, it remains the Council’s position that noise from patrons outside of the premises will cause an unacceptable impact on the amenity of local residents.

The evidence in support of an acoustic impact

49. This position is supported by the evidence Mr Arnold, who opines that whilst the impacts may not be what one would normally define as ‘significant’, any impact at 3-4am in the morning, six nights per week, is not acceptable in this location. He considers that the general activity that may cause disturbance to surrounding residents includes staff/patrons entering and leaving the pub, the sounds of doors opening/closing and security screening and talking to patrons, staff closing the venue including closing and locking doors and engaging alarm systems, cars arriving and leaving the car park, cars being started, car doors being slammed, staff/patrons sitting in their cars idling and potentially with car radios on, staff/patrons talking to one another or on the phone in the surrounding area including within the car park or at the nearby bus stops, security guards patrolling the area and talking with each other and patrons, police attending the pub to conduct inspections and respond to incidents, patrons being asked to leave the venue, patrons loitering in the surrounding area, alarms and mechanical plant and equipment. He considers that none of these general activities have been the subject of acoustic testing and may not be captured by formal testing.

50. Mr Arnold opines that the context is not appropriate for the existing late night operations, let alone any further extended hours. He reaches this opinion as he considers that the surrounding context is almost exclusively residential, and the pub is an isolated business on the far edge of a small B2 Local Centre zoned shopping strip, with no other late night business or complementary land uses in the area. He considers that there is no buffer zone between the pub and the surrounding residences, and that activity in the car park area includes patrons talking and cars starting or idling, which has the potential to disturb the immediately adjacent residential apartments and dwellings, which include a bedroom window within a few metres of the car park.

51. Mr Gauld also gave evidence that, whilst residents will habituate to the sound of traffic passing, they will not habituate to sounds that are acoustically different to the noise that they are habituated to. As such, whilst they may not be disturbed by passing cars, they may be disturbed by the sound of a loud conversation or door slamming, even though that would not be measurably different on acoustic testing. His evidence is that this is because it is more annoying than a noise of the same level with a steady or continuous character.

52. Mr Gauld also points out that the L90 at 2:59am is 42dB(A), which means that for 10% of the time the noise level is at or below 42dB, which he considers to be quiet. As such, he opines that when dealing with the noise from people within the carpark it is very hard to predict how loud people will be, and so a very loud person could cause noise disturbance when there is traffic noise, or a normal conversation might cause disturbance when there is no traffic noise.

Nelmeer’s position on the acoustic impact

53. To the contrary, Mr Pickles SC, counsel for Nelmeer, submits that there is no evidence that there is an adverse acoustic impact. He points out that there is no evidence of any noise complaints to the Council or to NSW Police.

54. Nelmeer relies on the evidence of Mr Cooper that the car park location and the adjacent residential apartments to the west experience road traffic noise levels greater than that recommended by the EPA for residential premises in proximity to major arterial roads. His evidence is that the logger results reveal that road traffic noise dominates the acoustic environment, even in the early hours of the morning. For the hours of concern the LAeq levels on 15 minute sample bases were above 60 dB(A) and the area cannot be described as quiet. As such, Mr Cooper opines that, with respect to the car park noise under the assessment criteria applied inside the apartments, the Leq contribution from the car park would have no impact on the Leq contribution as a result of traffic on Liverpool Road. His evidence is also that, similarly, the maximum levels from Liverpool Road occur significantly more often than the car park levels, and give rise to levels significantly greater than that obtained from the car park.

55. Mr Cooper’s evidence is also that the attended monitoring confirmed that the operation of the gaming room complied with the LA10 after midnight residential boundary criterion, and, by reason of there being no measurable increase above the ambient background level, he opines that it can be concluded that the inaudibility criterion would be satisfied for the ambient background levels that were measured.

56. Mr Cooper disputes Mr Gauld’s evidence concerning the potential for noise disturbance from the car park. He points out that the existing noise levels are more than 10 dB above the amenity noise levels recommended in the NPI for areas where traffic noise is the dominant noise source. As such, the EPA have this area classified as a high traffic noise level. In that context, Mr Cooper opines that noise from people in the car park would be similar to the road traffic noise, and by averaging, would be less than the road traffic noise that’s occurring. Any events in the car park therefore merge into the noise events and potential disturbance caused by the traffic on Liverpool Road. He also points out that in none of the measurements that have been undertaken either by him, by someone on his behalf, or by Mr Gould, is there identification of any noise disturbance from people talking in the car park. In circumstances where only one in twenty of the events that exceed the threshold limit for sleep arousal arise from activity in the car park (the remainder occurring from the traffic on Liverpool Road), he considers that if they will be disturbed by the noise in the car park then they’re likely also disturbed by the traffic throughout the night. With respect to a different type of noise from the car park, such as someone talking, Mr Cooper considers that you can’t say with any certainty that someone would be disturbed by such noise, especially when such a disturbance would rely on a break in the traffic and for all other traffic noise to be disregarded.

Findings on the acoustic impact

57. For the following reasons, I am not satisfied that there will be an unreasonable acoustic impact from noise inside or outside the premises occasioned by the extension in the trading hours.

58. Firstly, I do not accept that the evidence of Mr Gauld or Mr Arnold establishes evidence of an actual adverse acoustic impact occasioned by patrons in the carpark. That is, their opinions are assertions as to potential impacts without support by evidence that can be objectively assessed. There is no objective, specific or measurable evidence by them of the impact that they perceive will arise. For example, there is no attended measurement that demonstrates an impact caused by a discussion between patrons in the car park in the early hours of the morning (such as at the current closing time of 3am).

59. Secondly, the monitoring conducted by Mr Cooper did not detect any disturbance by patrons conversing when leaving the premises. That monitoring made notes of the nature of each noise event in the car park, including the utility vehicle with a large load, but did not detect any noise event caused by people conversing in the car park.

60. Thirdly, I am satisfied that the evidence of Mr Cooper establishes that the acoustic environment is dominated by road traffic noise. The evidence clearly establishes that, even when considering the maximum dB(A) from 2:14am to 3:14am, the maximum noise levels from the car park are insignificant when compared to the existing ambient maximum events as a result of traffic on Liverpool Road.

61. Fourthly, there are no submissions from or complaints by residents that reflect a current adverse acoustic impact of trading to 3am. The single submission received provided an example of an occasion which arose prior to a previous application, and provides little detail. Whilst I acknowledge that residents of the newly constructed adjacent residential apartments have not had the opportunity to make a submission on the development application, I do not accept Mr Arnold’s evidence that no conclusions can be drawn from the lack of other resident submissions. Given the history of the operation of the pub and the prior appeals in the Court, it is clear from the evidence that development applications have attracted significant local interest. In Nelmeer Hoteliers Pty Ltd v Burwood Council, the Senior Assessor notes that the application resulted in “the receipt of a substantial number of objections and a petition.” The evidence of some of those residents is later discussed in that judgment. On the present development application, only one such objection was received. Additionally, there are no complaints on record with the Council or the NSW Police since the extension of the trading hours to 3am. The absence of objections and complaints supports the proposition that there are no adverse acoustic impacts at present, and that there is therefore no evidence of an adverse acoustic impact with an extension of trading hours.

62. Fifthly, much of the evidence of Mr Arnold and Mr Gauld relies on an uncharacteristic noise occurring between 3am and 4am within the 10% of time in which the background level is less than 42dB(A). I accept the opinion of Mr Cooper that there is no certainty that an uncharacteristic noise would occur during that period (which represents 6 minutes spread across an hourly period), and that if it does, it is likely to disturb in a way that the traffic noise does not.

63. Sixthly, the existing conditions of consent require compliance with the LA10 acoustic post-midnight criteria for noise from within the premises, which require that the noise emission from the licenced premises not exceed the background noise level in any Octave Band Centre Frequency, and that noise emission is inaudible in any habitable room of any residential premises. I am satisfied that these conditions are appropriate to ensure that there is no adverse acoustic impact occasioned by the extended trading hours between 3am and 4am.

64. Finally, with respect to the extension of the trading hours on Sunday between 10pm and 12 midnight, there is no evidence of any current exceedance of the LA10 noise criterion for pre-midnight, and therefore no evidence that an extension to 12 midnight on Sundays will cause an adverse acoustic impact.

65. For those reasons, I am not satisfied that there is an adverse acoustic impact occasioned by the proposed extension in trading hours.

Social impact and safety risk

66. The Council also contends that the proposed extended trading hours may adversely affect crime and safety in the local area, and have an adverse social impact. The Council says that the isolated location of the pub raises concerns for the safety of patrons and members of the public, and that the presence of intoxicated patrons in the residential areas surrounding the pub raises concerns for safety in the local area.

67. The Council relies on the evidence of Mr Arnold, who opines that there is both a perceived and real risk of adverse crime and safety impacts associated with a pub and extending the hours serves to extend that risk over a longer period.

68. Mr Arnold’s evidence is that the extra hours of trading will result in patrons drinking for longer and dispersing over a longer period, therefore increasing the likelihood and the time period within which alcohol related anti-social behavior would occur. Mr Arnold is concerned that the proposed 4am closing time begins to intersect with departing patrons with early morning commuters in the area, which may result in residents perceiving a threat to their safety.

69. Mr Arnold also opines that the period over which the hours will be extended, from 3am to 4am, is a “high risk period” where casual surveillance and street activity is at its lowest. He considers that it will also become an attractive venue for those who seek late night venues following the introduction of lock-out periods in inner Sydney areas.

70. Further, Mr Arnold opines that the pub car park presents opportunities for concealment and the proposed extended hours will prolong this issue during the most risky time in the late night, and that the one security guard that would patrol the outside of the premises will be focused on the pub entrances and not the car park at the rear.

Nelmeer’s position on the social impact and safety risk

71. Nelmeer’s position is that there is no evidence of any adverse social impact, or of any actual increase in actual or perceived risk to safety. Nelmeer says that it is an experienced owner and operator of licensed hotels and has in place appropriate systems and procedures, including a documented plan of management and the engagement of qualified security personnel, to minimize any adverse impact on the local community. It considers that this has been successful, as the only incident that has occurred in the previous 2.5 years was a single armed robbery that occurred prior to 10pm.

72. Nelmeer relies on the evidence of Mr Rippingill, who considers that if there was a perceived threat of increased crime or of safety impacts, this would be reflected in the submissions received on the application. As such, Mr Rippingill points out that there is no evidence to support the community concern that Mr Arnold expresses.

73. Mr Rippingill also gave evidence that the Police have not identified any issues of public safety or crime linked to the pub in their submission. The single violent incident of an armed robbery demonstrates that there has been one violent incident in a period of approximately 2.5 years, which he opines is not indicative of a problematic venue.

74. Further, Mr Rippingill’s evidence is that, as a result of the incident, the licensee entered into a voluntary local licensing agreement for crime scene preservation. In the Plan of Management prepared by Mr Rippingill in these proceedings, that agreement forms part of the requirements. As such, if the development application is granted, the crime scene preservation guidelines would no longer be voluntary.

75. Mr Rippingill points out that there is no indication from Police that the pub has a lax attitude toward intoxication, and that there have been no breaches of licensing conditions for intoxication. This is supported by his detailed review of the COPS events, which show on average less than 18 patrons present in the pub on each occasion that the Police carried out an inspection. He considers that the potential for intoxication will continue to be managed by pub staff, and that between 3am and 4am the pub will trade primarily as a gaming room, with a maximum of 30 patrons, without entertainment and with only a small portion of the bar remaining open. He therefore opines that, given the focus on gambling activities, the constrained pub area during the extended trading hours, and the limit on patron numbers, it is unlikely that there would be any impact on the safety of residents or other people in the area as a result of the additional hour of trade to 4am.

76. Further, Mr Rippingill opines that the car park is not considered high risk for robbery of patrons. The potential is mitigated through provision of active security, lighting and CCTV. Mr Rippingill’s evidence is that a criminal would be more likely to choose a softer target away from surveillance and the likelihood of intervention and capture.

Findings on the social impact

77. I am not satisfied that there will be an unreasonable social impact, a perceived safety risk or a measurable increase in criminal activity, occasioned by the proposed extension in the trading hours. I reach this conclusion for the following reasons.

78. Firstly, Mr Arnold’s assertions and opinions concerning actual and perceived risk to safety are not supported by measurable evidence that can be objectively assessed. He draws his opinion from generalisations about the nature of pubs, rather than from objective data that is applicable to the present development application. He assumes that people will leave the premises intoxicated and in a manner and direction that disturbs local residents, but has no evidence to support these assumptions. He also assumes a level of concern by residents that is not supported by evidence of any complaints or any submissions.

77. Secondly, the limits on the patronage and on the area to be occupied means that activities within the premises during the 3am to 4am period will be directed at the gaming machines. As conceded by Mr Arnold in cross-examination, the antisocial behaviour that occurs with intoxication is typically generated by groups of people, rather than with individuals engaged in gaming activities. I accept the evidence of Mr Rippingill that the focus on gambling activities, the constrained pub area during the 3am to 4am period, and the limit on patron numbers, means that there is unlikely to be any impact on the safety of residents or other people in the area that arises from operating to 4am.

78. Thirdly, consistent with the agreement of Mr Rippingill and Mr Arnold, I accept that the Plan of Management provides an effective way of managing the premises, the patrons and their behavior, as well as preventing intoxication.

79. Fourthly, I do not accept that there is potential for concealment of criminal activity in the car park in circumstances where it is visible from both Burwood Road and Liverpool Road. I accept Mr Rippingill’s opinion that it is not considered high risk due to active security, lighting and CCTV.

80. Finally, there is presently no evidence of any adverse social impact or of any safety risk to local residents. There are no COPS incidents that demonstrate an impact on residential amenity by the pub and its patrons, and there is no evidence of any breaches of licence conditions as a result of antisocial behaviour or intoxication. Indeed, in the last 12 months, there is no complaint or action that required police intervention outside the hotel. I accept that this demonstrates that the pub has been operating within its current trading hours in a manner that does not cause an unacceptable social impact or safety risk.

81. For the above reasons, I can reasonably conclude that the extended trading hours will similarly be effectively managed to ensure that there is no adverse social impact or safety risk.

Should the extending trading hours be permitted?

84. In the absence of a provision in the BDCP 2013 concerning trading hours (such as that found in development control plans that apply in the local government areas of Randwick and Sydney), the planning principle in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 and confirmed in Vinson v Randwick Council (2005) 141 LGERA 27; [2005] NSWLEC 142 provides a useful approach for determining whether an extension of trading hours should be granted.

85. In Randall Pty Ltd v Leichhardt Council Tuor C stated as follows:

“25. Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are:

 First, is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. 

 Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable?

26. In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact.”

86. Moore C (as His Honour then was) expanded on this in Vinson v Randwick Council by reference to the following questions:

• What are the adverse impacts of the present trading hours?

• What measures are in place to address those impacts?

• How are those measures documented?

• Have those measures been successful?

• What additional measures are proposed by the applicant or might otherwise be required?

87. With respect to the last question, Moore C stated (at [13]):

“If any extension of hours, numbers or activities is likely to be acceptable but only subject to additional measures to reduce noise or anti-social behaviour, a trial period may be appropriate to test those measures.”

The Council submits that caution should be exercised

88. In circumstances where the immediate locality surrounding the pub is becoming increasingly densely occupied by residential development, the Council submits that caution should be exercised in extending the trading hours of the pub beyond the already existing long trading hours. The Council points out that the pub does not currently operate to full capacity, and so compliance with the acoustic criteria at full capacity within the existing trading hours has not been tested. The Council says that this presents a risk, given that the trading hours operate in rem and would allow future operators to operate within the long trading hours at maximum capacity. In circumstances where the proposed extended hours provides no benefit to the local community and where the pub already has generous trading hours in a location surrounded by residential development, the Council submits that the benefits of the extended hours do not outweigh the potential risk of a future impact caused by those additional hours.

The proposed extension of hours is acceptable

89. There is no requirement in s 4.15 of the EPA Act to consider the benefits of a proposal, except insofar as that section requires considering the public interest. As is clear from the planning principle in Davies v Penrith City Council [2013] NSWLEC 1141, the assessment is generally confined to the reasonableness of the proposal and its impacts. There is no requirement to assess its necessity. Nor can the risk of a future impact be taken into account in circumstances where there is no objective or measurable evidence of an adverse impact. As stated by Lloyd J in New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) LGERA 303; [2003] NSWLEC 154, at 316 (in speaking of fears and concerns expressed in public submissions):

“Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.”

90. Consistent with the planning principle in Randall Pty Ltd v Leichhardt Council and Vinson v Randwick Council, my findings above with respect to the acoustic and social impact demonstrate that I am satisfied that there is no evidence of any adverse impacts of the present trading hours, and that therefore the Plan of Management and the pub management generally has been effective in managing those impacts.

91. Whilst I accept that the pub has not been operating at full capacity, the evidence of the current use and associated acoustic testing is informative of how that use will be carried out in the extended trading hours and what the impact will be.

92. Further, consistent with fifth question in Vinson v Randwick Council, additional measures are proposed to manage the impacts of the extended trading hours and also improve the general operation of the pub. In particular, the extension of trading hours is supported by additional controls limiting the number of patrons in the pub between 3am and 4am, limiting the area of the pub that is open during the hours of 3am and 4am, and precluding entertainment between 3am and 4am other than TAB, racing, sports, gaming, televised events and background music. Whilst no controls of the same nature are proposed on Sundays between 10pm and 12midnight, the operation of the pub is sought to be managed through a revised Plan of Management that incorporates additional measures to manage patrons and prevent intoxication, as well as to record incidents and complaints. I note also that the telephone number for complaints will also be provided to residents of the newly occupied mixed use development at 79-81 Liverpool Road, and that they will be informed that the Plan of Management can be made available to them. Additionally, the proposed conditions of consent require compliance with acoustic criteria, the installation of acoustic treatment to the outdoor gaming area, and installation of CCTV. I accept that all of these measures are appropriate to manage the operations of the pub, to prevent an adverse acoustic impact on neighbouring residents, to prevent the intoxication of patrons and to respond appropriately to complaints and incidents.

93. The use for the purposes of a pub is permissible in the zone, and there is an absence of controls with respect to trading hours for uses of this nature. I have found that there is no evidence of an adverse impact and that the extension of hours is supported by additional measures to prevent adverse impacts. In these circumstances, I consider that the proposed extension of hours is acceptable.

The imposition of a trial period is appropriate

94. In favour of the exercise of caution sought by the Council, I accept that the imposition of a trial period of 12 months is appropriate. This will allow evaluation of the effectiveness of the procedures outlined in the Plan of Management. The trial period will enable the acoustic impact of the operation of the premises in those extended hours to be measured, and will also allow the Council to consider any complaints it receives concerning the operation of the pub, particularly insofar as they concern the hours during which trading has been extended.

95. Additionally, a development application for the permanent extended hours, or for a further trial period, will be the subject of public notification that will bring forth any evidence of an adverse impact as experienced by local residents throughout the trial period, including the residents of 79-81 Liverpool Road. That development application will also provide an opportunity for further acoustic testing to be carried out to establish whether the acoustic criteria have been complied with.

The final orders

96. For all of the above reasons, I accept that it is appropriate to grant development consent for the extension of trading hours, subject to the imposition of a trial period and the conditions of consent as agreed between the parties.

97. The Court orders that:

1. The appeal is upheld.

2. Development consent for the extension of the trading hours of the Royal Sheaf Hotel at 77 Liverpool Road or 231 Burwood Road, Burwood, to allow the trading hours on Monday to Saturday to extend to 4am (the following day) and the trading hours on Sunday to extend to 12 midnight, is granted subject to the conditions of consent in Annexure A.

3. The exhibits are returned, except for Exhibits A, C and 6.

……………………………

J Gray

Commissioner of the Court

Annexure A (24.2 KB)

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Decision last updated: 05 July 2019