North Sydney Leagues Club Ltd v North Sydney Council

Case •

[2017] NSWLEC 1002

•

06 January 2017

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: North Sydney Leagues Club Ltd v North Sydney Council [2017] NSWLEC 1002
Hearing dates: 28, 29,30 September 2016
Date of orders: 06 January 2017
Decision date: 06 January 2017
Jurisdiction:Class 1
Before: Brown C
Decision:

1. The appeal is upheld.
2. DA 78/16 for the internal refurbishment of the main clubhouse building and internal alterations to provide additional toilets, the continued use of part of the most northern bowling green and specify hours of operation and patron numbers for the North Sydney Bowling Club at 50 Ridge Street North Sydney is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit G.

Catchwords: DEVELOPMENT APPLICATION: internal refurbishment of the main clubhouse building and internal alterations to provide additional toilets and the continued use of part of one bowling green – is the use is a prohibited use in the zone - inadequate off street parking - unacceptable impacts on the local amenity
Legislation Cited: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Liquor Act 2007
North Sydney Local Environmental Plan 2013
Cases Cited: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116,
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400,
Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157,
Hastings Point Progress Association v Tweed Shire Council (2009) 168 LGERA 99,
Marpet Enterprises v. Eurobodalla Shire Council (2000) 108 LGERA 432,
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404,
Paynter Dixon Constructions Pty Ltd v. Fairfield City Council [2011 ] NSWLEC 127,
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315,
Royal Oak Pastoral Co. v. Mulwaree Shire Council [1997] NSWLEC 5.
Category:Principal judgment
Parties: North Sydney Leagues Club Ltd (Applicant)
North Sydney Council (Respondent)
Representation:

Counsel:
Mr C McEwen SC (Applicant)
Mr T To, barrister (Respondent)

  Solicitors:
Gadens (Applicant)
Sparke Helmore.(Respondent)
File Number(s): 2016/170886
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against the refusal of DA 78/16 for the internal refurbishment of the main clubhouse building and internal alterations to provide additional toilets, the continued use of part of the most northern bowling green (the Outdoor Area) and specify hours of operation and patron numbers for the North Sydney Bowling Club (the Club) at 50 Ridge Street North Sydney (the site).

  2. At present the Club has no specific hours of operation or patron numbers and the use of the Outdoor Area has not been approved although it is being used for the proposed use of dining and drinking. The Outdoor Area has seating for around 232 people and a capacity of around 250 people.

  3. The Club operates under the name of The Greens and as well as providing food and alcohol inside the clubhouse, an external area north of the clubhouse and on the Outdoor Area, utilises the two and part third bowling greens for bowling, including 'Rock 'n Bowls' where competitions are held but in a more casual atmosphere by persons who are not always regular bowlers.

  4. The hours and patron numbers sought by the applicant are:

600 patrons between 8am and 10pm, 7 days per week,

400 patrons between 10pm and midnight, 7 days per week,

900 patrons on identified special event days being identified as New Year's Day, Anzac Day, Christmas Eve, Australia Day, Melbourne Cup and the Saturday of the October long weekend and New Year's Eve where the proposal is to trade until 2am.

  1. The applicant also proposes a 12-month trial period for:

the use of the outdoor dining area between 9pm and 10pm,

the 600 patron limit between 9pm and 10pm, and

the special event days.

  1. The council raises no objection to the internal alterations to provide additional toilets but maintains that the use of the Outdoor Area should be refused for the following reasons:

the use is a prohibited use,

inadequate off street parking, and

unacceptable impacts on the local amenity.

The site

  1. The site is Lots 1104 and 1105 in DP 46990. The Club is situated between North Sydney Oval and the Freeway towards the eastern end of Ridge Street and comprises part of St Leonards Park, which is bounded by Miller Street, Falcon Street, Warringah Freeway and Ridge Street, North Sydney.

  2. The Club is located on the eastern side of St Leonards Park, adjacent to North Sydney Oval which fronts Miller Street. Vehicular access to the Club car park is via a single lane access road off Ridge Street.

  3. The Club consists of three bowling greens, a 1960s clubhouse, brick and tile service buildings in the northern comer of the site and some landscaping.

  4. Surrounding development includes dwelling houses and residential flat buildings in Ridge Street, Miller Street and Falcon Street, schools and mixed use developments in Ridge and Miller Streets.

Relevant history

  1. The Club obtained a Lease over the Crown Land in 1888.

  2. The current clubhouse building was built in 1960-61 with Building Application No.60/308 approved on 11 October 1960.

  3. On 10 February 1984 there was land exchange involving council exchanging the car park (532.6 sq m) to the south of the clubhouse (Lot 1104 in DP.46990) for equal areas of land to the north and east of the bowling greens (Lots 1106 & 1107 in DP 46990) to be transferred back to being part of St Leonards Park.

  4. Development Application No.81/12 proposed alterations to the clubhouse to provide office accommodation for the RSL Sub Branch. The application was lodged on 15 March and consent was granted on 4 April 2013.

  5. Unauthorised paving was carried out, prior to 21 November 2014 to part of the northern bowling green and the use of this paved area for the service of alcohol and outdoor dining.

Relevant planning controls

  1. The site is within Zone RE1 Public Recreation under North Sydney Local Environmental Plan 2013 (LEP 2013). The proper characterisation of the proposed use is a matter of dispute between the parties. The RE1 zone provides the following Land Use Table:

2 Permitted without consent

Environmental protection works

3 Permitted with consent

Building identification signs; Business identification signs; Community facilities; Environmental facilities; Information and education facilities; Kiosks; Recreation areas; Recreation facilities (outdoor); Restaurants or cafes; Roads; Water recreation structures

4 Prohibited

Any development not specified in item 2 or 3

  1. Clause 2.3(2) requires that the Court “must have regard to the objectives for development in a zone when determining a development application…”.

  2. The zone objectives are:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

• To ensure sufficient public recreation areas are available for the benefit and use of residents of, and visitors to, North Sydney.

  1. Clause 2.5 provides additional permitted uses on particular land and states:

2.5 Additional permitted uses for particular land

(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:

(a) with development consent, or

(b) if the Schedule so provides—without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.

(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.

  1. That part of Sch 1 that applies to the site states:

37 Use of certain land at 50 Ridge Street, North Sydney

(1) This clause applies to land at St Leonards Park, 50 Ridge Street, North Sydney, being Lots 1104–1107, DP 46990.

(2) Development for the purposes of a registered club and recreational facilities (indoor) is permitted with development consent.

  1. Clause 6.7 provides specific requirements for the RE1 zone:

  2. North Sydney Development Control Plan 2013 (DCP 2013) applies to the site.

Is the proposed use permissible?

The submissions

  1. Mr To, for the council submits that the proposed use of the Outdoor Area is not to be characterised as development for the purposes of a registered club, but instead is an independent use that is properly characterised as a 'food and drink premises', and is a prohibited use in the zone.

  2. Development for the purposes of a 'registered club' is defined in the Dictionary to LEP 2013 to mean:

a club that holds a registered club licence under the Liquor Act 2007.

  1. The definition does not mean that any activity carried on by a club on premises to which a licence applies is automatically development for the purposes of a registered club. Instead, it is necessary to consider the nature of a particular proposed use to determine how it should be characterised by engaging well-established principles of characterisation . In the present circumstances, relevant principles include those summarised in Paynter Dixon Constructions Pty Ltd v. Fairfield City Council [2011 ] NSWLEC 127 at [25]-[43].

  2. To support such a position, Mr To submits that the Court would find firstly, that prior to the unauthorised works to create the outdoor area over part of one of the three bowling greens; food and drink was served by the Club inside the club house, and in the small outdoor seating area to the north of the clubhouse. Second, that service of food and drink was for the benefit of those persons coming to the Club and was, in the planning sense, ancillary to the use of the premises for the purposes of a registered club.

  3. The use of the Club was relatively low in scale and in intensity, as shown by the bowling club members (120) and the numbers of 'Rock 'n Bowls' bowlers (9,436 bowlers in the year from September 2013 to August 2014 - an average of 182 per week). The takings of the Club were, in August 2014, $17,000. After the works to create the Outdoor Area, the Club members have slightly declined to 100 and the numbers of 'Rock 'n Bowls' bowlers have increased (22,840 in the year from September 2015 to August 2016 - an average of 439 per week). However, the number of persons attending the Club has (other than special days such as ANZAC Day) been up to 350 per day. Membership specific to the Greens since the works to create the Outdoor Area has grown from nil to 22,400 - more than doubling the membership of the applicant Club. The takings of the Club climbed to $313,000 in August 2014 and an average of $464,000 in the 13 months between November 2014 and December 2015.

  4. From this, Mr To submits that the Court would comfortably conclude that the use of the Outdoor Area has been the attraction generating such increased patronage, and takings, and in the main, the increase is driven by opportunities to drink or dine.

  5. Mr To maintains that a disputed issue of some importance is how the Outdoor Area is used. Mr Lidis, the applicant’s expert town planner, did not concede that the primary use of the outdoor area is for the service and consumption of alcohol; rather he maintained that the purpose was both alcohol and food. It is not in dispute that the outdoor area is able to provide some 232 seats but the tables and chairs can, and are moved aside to accommodate more than 250 patrons. This results in more standing room, and naturally, a lessened capacity for the Outdoor Area to be used for consumption of food.

  6. Although not accepted by Mr Lidis, the applicant's own evidence demonstrates that the primary purpose of the Outdoor Area in the evenings is the consumption of alcohol. The patron surveys reported by Mr McLaren, the applicant’s traffic engineer, in late November and early December 2015 indicate that in the summer months when the outdoor area can be expected to be most popular, the vast majority of patrons were not dining, but instead drinking.

  7. Mr To submits that the use is primarily for consumption of alcohol , the substantial increase in patronage of the Outdoor Area, the proposed increase in patron limits, even above those surveyed (some 600 compared to less than 350) and the known amenity impacts that create a serious problem. When compared to the low intensity use before the creation of the Outdoor Area, it should lead the Court to conclude that the nature and extent of the Outdoor Area use is a far more intense than previously was the case.

  8. It is a proposed use that should properly be characterised as an independent use, not part of the use as a registered club. The fact that it is related to the Club by sharing a kitchen or staff or offering the same food or drink does not deprive it of that character: (see Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 ). The proposed use is of such a scale and intensity that it does not subserve the Club's use ; rather, it can be seen from the most increase in Rock 'n Bowls numbers but vast increase and patron numbers that it is independent: (see Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157 ).

  9. On the evidence, council accepts that the use of the Outdoor Area during the day time as a 'restaurant or cafe' is not objectionable in principle. In the evening period, it is the nature of use that is problematic; both in terms of permissibility and in creating adverse amenity impacts.

  10. Mr McEwen SC, for the applicant, submits that it is difficult to see how the use of the Outdoor Area could be characterised as other than one and the same use as the use of the remainder of the Club. In much the same way as the use of the smaller outdoor space to the north of the clubhouse (which Council indicates had previously been approved as outdoor dining) is one and the same use as the use of the remainder of the Club. The food and drink that is served in the Outdoor Area is prepared in the Club. The bathroom and other faculties provided for patrons accessing the Outdoor Area are contained within the Club. The staff attending to patrons in the Outdoor Area are employees of the Club and come and go regularly between the Outdoor Area and the clubhouse. In every way, the use of the Outdoor Area is the same use as the remainder of the Club.

  11. Further, the use of the site is for the purpose of registered club. It is not "club" or some other purpose not specified in LEP 2013 (see Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116 at [32] - [34]). The purpose of a registered club is, necessarily, a composite of the uses or activities that constitute a "club"; the provision of food and drink to patrons being unarguably an intrinsic component of a registered club use (see Pet Carriers at [86] - [89]). Mr Mossemenear, the expert town planner for the council, conceded as much in oral evidence when he accepted the proposition that it is a normal function of most clubs to offer dining and that many people become members of clubs because of their food and beverage offerings.

  12. In undertaking the task of characterisation, Mr McEwen submits it is not necessary or appropriate to ask whether each element of that composite use is "ancillary" to the overall use or otherwise. To do so would lead to absurd results. For example; in undertaking the task of characterisation of an RSL club, it is not appropriate to dissect the gaming area from the bistro, restaurant, children's play equipment and outdoor recreation areas. Each of those areas are an intrinsic component of the use. As Preston J said in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400 at [45], "the characterisation of the purpose of development must also be done in a common sense and practical way". Contrary to the normal characterisation decisions, it is not a question of considering whether a part of a development (i.e. a road or driveway leading to the development) is subordinate to or independent from the dominant purpose of the development as, in this case, it is one and the same purpose. The question is rather whether the suite of activities comfortably are part of a 'registered club' use. If the answer is yes, that is an end of the inquiry because that use is permissible (see Pet Carriers at [72] and [76]).

  13. By dint of cl 2.5, cl 37 of Sch 1 and the Dictionary to LEP 2013, development for the purposes of a registered club (being "a club that holds a club licence under the Liquor Act 2007") is permissible on "land at St Leonards Park, 50 Ridge Street, North Sydney, being Lots 1104-1107, DP 46990". That land clearly encompasses the land the subject of the application. It is similarly contentious that the applicant holds a "club" Liquor Licence issued under the Liquor Act 2007.

  14. If it is contended by the council that the Outdoor Area is not contained within the "Licenced area" under the Licence, Mr McEwen does not accept this proposition. There is no cause for reading the Licenced area to be other than St Leonards Park North Sydney NSW 2060. The proposal, including the use of the Outdoor Area, is development for the purposes of a registered club, which is permissible on the site.

  15. Mr McEwen further submits that even if the Court considered, contrary to the earlier submission, that the use of the Outdoor Area ought to be characterised as an independent use, then it ought to be characterised as the use of the area as a restaurant or cafe, which is permissible in the zone .

  16. The Dictionary to LEP 2013 provides the following definitions:

food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following:

a) a restaurant or cafe,

b) take away food and drink premises,

c) a pub,

d) a small bar.

Note. Food and drink premises are a type of retail premises—see the definition of that term in this Dictionary.

restaurant or cafe means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided.

Note. Restaurants or cafes are a type of food and drink premises—see the definition of that term in this Dictionary.

  1. Council's contention that the use of the Outdoor Area is properly characterised as an independent use of part of the subject site for the purposes of 'food and drink premises' is premised on two incorrect bases. First, if it is suggested that the use is not properly characterised as a restaurant or cafe but as one of the other species of use within the genus of "food and drink premises", the Court would not accept that submission. It is clear from the layout of the tables and chairs on the Outdoor Area, the hours of operation proposed for the Outdoor Area and the Plan of Management (PoM), that the principal purpose of the area is the consumption of both food and drink, not only alcohol (cf. definition of "pub").

  2. Alternatively, if Council's argument is that the innominate prohibition on "food and drink premises" in the RE1 zone overrides the permissibility of restaurants or cafes (being species within the genus of food and drink premises) then the argument does not stand to reason. This is not a situation where a use may be properly characterised in two different ways, one of which is permissible and one of which is prohibited, and where, by dint of the dual characterisation, the development is prohibited. The clear intent of LEP 2013 is that restaurants or cafes are permissible in the RE1 zone. It is not relevant to the question of permissibility of restaurants or cafes that such a use may be a species within the genus of a use that is said to be an innominate prohibited use.

  3. The proper construction to be applied to the RE1 zoning table as regards the use of land within that zone for the purposes of "food and drink premises" is that use for the purposes of a restaurant or cafe is permissible, whereas use for the purposes of any one of the other species within the genus is prohibited (Pet Carriers at [49] — [50]).

Findings

  1. The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 for a supermarket where His Honour includes the relevant cases and relevantly states (at 27 and 28):

27 In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.

28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: at 508.

  1. His Honour further relevantly states (at 33 to 36 and 45):

33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different.

34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.

35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.

36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.

…

45 The characterisation of the purpose of development must also be done in a common sense and practical way…

  1. The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a common sense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. For reasons explained later in the judgment, the question of whether the proposed use is ancillary to the purpose of a registered club does not arise.

  2. If considered in the approach identified in Chamwell, I agree with the submissions of Mr McEwen that the use of the Outdoor Area is characterised as development for the purposes of a registered club; being the same as the remainder of the Club. As stated in Chamwell, [at 34] “the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose”. In this case, the purpose is a licensed club and the uses that make up the licensed club include the provision of food and alcohol (amongst other uses). It cannot be reasonably be argued that licensed clubs do not have a social aspect that draws people to become members simply because of the facilities, such as food and alcohol, that are provided at a particular facility. Potential patrons need not be confined to bowlers for a bowling club, sailors for a sailing cub, rowers for a rowing club or the like. This was a conclusion accepted by both expert town planners and North Sydney Bowling Club is no different.

  3. There was no evidence that was produced that suggested that there are special requirements needed to gain access to the Outdoor Area so members of the Club have access to all areas of the Club, including the internal area of the clubhouse, the approved outside area, to make use of the facilities provided by the Club. Mr McEwen’s submission that “the food and drink that is served in the Outdoor Area is prepared in the Club. The bathroom and other faculties provided for patrons accessing the Outdoor Area are contained within the Club. The staff attending to patrons in the Outdoor Area are employees of the Club and come and go regularly between the Outdoor Area and the Club. In every way, the use of the Outdoor Area is the same use as the remainder of the club” clearly supports the conclusion that the Outdoor Area is characterised as development for the purposes of a registered club.

  4. Also, I am not convinced that the submission of Mr To that the use of the Outdoor Area is primarily for consumption of alcohol based on the substantial increase in patronage of the Outdoor Area is necessarily a submission that goes to the question of permissibility given that a Club Licence authorises the licensee to sell liquor by retail on the licensed premises to a member of the club (or a guest of a member of the club) for consumption on or away from the licensed premise (s 18(1), Div 3C, Liquor Act 2007). In my view, the patronage numbers are clearly a relevant factor in issuing a Liquor licence or the terms of a Liquor licence but not the question of permissibility of the proposed use.

  5. The question of the Licenced area remained uncertain at the time of the hearing although it is not a matter that will stop the determination of the application. No plan for the Licenced area that relates to the Liquor Licence could be produced by the Club or by the Licencing Police. While the council has stated that the Licensed area is limited to the club building and a smaller outdoor space that had previously been approved as outdoor dining, I accept the submission of Mr McEwen that the "Premises" identified on the Licence is "St Leonards Park North Sydney NSW 2060". There are no conditions on the Licence which limit the extent of the Licence to particular buildings or areas on the "Premises".

  6. Given that the use of the Outdoor Area is characterised as development for the purposes of a registered club, it is a permissible use in the RE1 zone and the merits of the proposal can be considered.

The merit assessment - cl 2.5 and cl 6.7

The submissions

  1. The parties disagreed on the extent of the merit assessment of the application, based on the provisions of cl 2.5, cl 6.7 and cl 37 of Sch 1 of LEP 2013 which state:

  2. Clause 2.5 states:

2.5 Additional permitted uses for particular land

(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:

(a) with development consent, or

(b) if the Schedule so provides—without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.

(2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.

  1. That part of Sch 1 that applies to the site states:

37 Use of certain land at 50 Ridge Street, North Sydney

(1) This clause applies to land at St Leonards Park, 50 Ridge Street, North Sydney, being Lots 1104–1107, DP 46990.

(2) Development for the purposes of a registered club and recreational facilities (indoor) is permitted with development consent.

  1. Clause 6.7 states:

6.7 Development in Zone RE1 or Zone RE2

(1) This clause applies to land in the following zones:

(a) Zone RE1 Public Recreation,

(b) Zone RE2 Private Recreation.

(2) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the following:

(a) the need for the proposed development on the land,

(b) whether the proposed development is likely to have a detrimental impact on the existing or likely future use of the land,

(c) whether the height and bulk of any proposed building or structure has regard to the existing vegetation and topography,

(d) whether the proposed development will adversely impact on bushland and remnant bushland,

(e) whether the proposed development will adversely impact on stormwater flow,

(f) in the case of land in Zone RE1 Public Recreation, whether the proposed development will significantly diminish public access to, and use of, that public recreation area.

(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that:

(a) the proposed development is consistent with the objectives of the zone of any adjacent land, and

(b) the proposed development is not likely to result in any adverse impacts on development that is permissible on any adjacent land, and

(c) the proposed development is consistent with the most restrictive development standards applying to any adjacent land in the following zones in relation to the height of buildings, floor space ratios and setbacks:

(i) Zone R2 Low Density Residential,

(ii) Zone R3 Medium Density Residential,

(iii) Zone R4 High Density Residential,

(iv) Zone B1 Neighbourhood Centre,

(v) Zone B3 Commercial Core,

(vi) Zone B4 Mixed Use,

(vii) Zone IN2 Light Industrial,

(viii) Zone IN4 Working Waterfront,

(ix) Zone E4 Environmental Living.

  1. Mr To submits that it is not in dispute that cl 6.7 ordinarily requires that development in the RE1 zone be considered against the matters in subclause (2) and, additionally, that there are preconditions to be satisfied before consent may be granted in subclause (3). One of those preconditions is satisfaction of consistency with the objectives of adjacent zones.

  2. One of those adjacent zones (and acknowledged to be the most sensitive) is the R2 zone containing the residential development closest to the subject premises, on the south side of Ridge Street. Mr To submits that 'Adjacent land' means land that is "near to" and is wider in meaning than 'adjoining' which means "next to": (Royal Oak Pastoral Co. v Mulwaree Shire Council [1997] NSWLEC 5) and "near to, close or neighbouring" (Marpet Enterprises v Eurobodalla Shire Council (2000) 108 LGERA 432 at [21]-[27]).

  3. The context and statutory purpose behind cl 6.7(3) is to protect land in vicinity of development on RE1 and RE2 zoned land. That purpose does not compel any narrow construction of 'adjacent'; the ordinary meaning of 'near to' is at least comprehended in this context. Applying this meaning, the R2 zoned land on the south side of Ridge Street is adjacent land for the purposes of cl 6.7(3) and is separated by Ridge Street. This does not detract from such a conclusion, particularly where "adjoining"; a narrower concept, has been construed to include situations where land is separated by a road.

  4. Clause 6.7(3)(a) requires that the consent authority be satisfied that the development is consistent with the objectives of the zone of adjacent the R2 zone. Two of those objectives are the protection of amenity of surrounding areas, and to ensure that a high level of residential amenity is achieved and maintained.

  5. Mr To rejects the applicants submission that cl 6.7 does not apply, because it is overridden by clause 2.5(2) and the concluding words of the subclause. The function of cl 2.5 is to define additional permitted purposes of development, in addition to what the LEP 2013 otherwise permits through cl 2.3 and the Land Use Table. The concluding words in cl 2.5(2) have work to do, and recognise that the Land Use Table has no operative effect on its own, but is given force because of cl 2.3(1).

  6. Further, the consequence of the applicant's interpretation is that whenever an additional permitted purpose of development is allowed, it means that all other provisions of LEP 2013 have no force or effect. This would be a highly surprising result that has no planning rationale.

  7. The applicant's construction also flies in the face of the express aims and objectives of LEP 2013, relevantly cl 1.2(2)(a), (b)(ii) and (d)(ii) - all of which are expressly directed to protecting and enhancing amenity and in particular residential amenity. Such a construction, which would avoid the consistency test in cl 6.7(3)(a), does not promote the objectives of LEP 2013.

  8. In construing LEP 2013, a construction which promotes the objectives of the LEP must be preferred (ss 5(6) and 33 of the Interpretation Act 1987). The proposed use is to increase the ordinary patronage to up to 600 persons daily and 900 on special occasions. The evidence demonstrates that such levels will result in much higher parking demand arising from the use and there is insufficient parking in the vicinity, but particularly in the closest residential streets to accommodate such demand. The inevitable corollary of such demand is increased traffic in the streets, circulation by cars attempting to find parking, additional manoeuvres as cars are unable to find close parking, and conflicts graphically described by the objectors. Such evidence, which was not challenged, shows that there were, and continue to be amenity impacts including in 2016. Given that they occur at patronage levels far less than the level for which consent is now sought, this should lead the Court to not be satisfied that the development is consistent with 'achieving and maintaining a high level of residential amenity'.

  9. Mr McEwen submits that the use of the site is for the purposes of a registered club, this is an "additional permitted use" of the land, as identified in Sch1 of LEP 2013. By reason of this, a number of provisions within LEP 2013 apply in a modified way, or not at all, to the use.

  10. Clause 2.5 has two consequences. First, by combination of the effect of cl. 2.3(2), 2.3(4) and 2.5(2) of LEP 2013, the Court is not obliged to have regard to the objectives of the RE1 zone when determining the development application. Further, contrary to the position of council by dint of cl 2.5(2), cl 6.7 of LEP 2013 has no application to the development.

  11. Clause 2.5 is a clause whereby a use that would otherwise be prohibited in a particular zone, is made permissible by designation in Sch 1. Clause 2.5(2) expressly provides that the clause has effect despite anything to the contrary "in the Land Use Table or other provision of this Plan". The first limb of the phrase in parenthesis has an obvious target, that being to overcome the "prohibited" designation in the zoning table. The second limb of the phrase must be given work to do. In Mr McEwen’s submission, it is directed to clauses such as cl 6.7. Clause 6.7 does not set a standard or other qualitative criterion that must be taken into account by a decision maker. One potential scenario would be a provision of that type may arguably not be inconsistent with or contrary to a clause such as cl 2.5, which is principally directed to the lawfulness of the use. However, rather than setting a standard or qualitative criterion that must be taken into account by a decision maker, cl 6.7 sets a pre-condition that must be satisfied before council, or the Court in these proceedings, has power to approve the development. In other words, it is also a provision which is principally directed to the lawfulness of the use. In circumstances where cl 2.5(2) expressly states that it operates despite anything to the contrary in any other provision of the plan, cl 6.7 is not applicable to the development.

  12. Expressed another way, the question to ask is whether cl 6.7 is contrary to cl 2.5. Clause 2.5 gives rise to a site specific designation of permissibility with development consent for registered clubs on the site. Clause 6.7 identifies a range of pre-conditions that must be satisfied generally in the RE1 zone before development consent may be granted.

  13. On this basis, cl 6.7 is contrary to cl 2.5 because it mandates that consent be refused unless each of those conditions is satisfied (Hastings Point Progress Association v Tweed Shire Council (2009) 168 LGERA 99 at [8 and 9]).

Findings

  1. I agree with the submissions of Mr McEwen on this matter. The Court is bound by the words in cl 2.5 and the words in cl 2.5(2) that this “clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan” are clear and unambiguous. The Court is not obliged to have regard to the objectives of the RE1 zone when determining the development application or any other matter in cl 6.7of LEP 2013; being a “provision of this Plan”.

  2. While Mr To sought to address the consequences of not applying the provisions of cl 6.7; this is not a matter that goes to the application of cl 2.5(2) in the circumstances in this case. In any event, the merits of the application must be considered through s 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), such as “ the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality” (s 79C(1)(b)), even though through s79C(1) provides less specific criteria than provided by cl 6.7 of LEP 2013.

Traffic/parking

  1. The council raised specific concerns in relation to inadequate and inaccessible on-site parking, overflow of parking on adjacent streets and the consequent amenity impacts on nearby residential properties. Expert evidence was provided by Mr Chris Hallam, for the council and Mr Craig McLaren for the applicant. Both are experienced traffic engineers.

Inadequate and inaccessible on-site parking

  1. It was agreed that there are a maximum of 30 spaces able to be provided on site. The traffic report submitted with the development application (the Coady report) and relied upon by Mr Hallam and Mr McLaren states (at p 5) that "only 4 members of the workforce of The Greens are permitted to park in the on-site carpark at any one time". This report estimated that the workforce parking demand at The Greens during the daytime on Friday-Sunday was 8-12 spaces, and was 10-15 spaces on Friday-Sunday nights. Thus of the 30 on-site parking spaces, four would be occupied by staff, leaving 26 spaces for use by patrons.

  2. Mr Hallam and Mr McLaren agree that the on-site parking does not provide for all patron vehicles at typical peak times, with the result that patron parking usually overflows onto the adjacent street network and was a matter raised by local residents in their opposition to the proposal.

  3. Mr Hallam and Mr McLaren acknowledge that the on-site parking area is accessed from Ridge Street via a single lane access driveway some 3.0-3.5m wide and approximately 80m long. They also acknowledge that the access driveway width does not satisfy Australian Standard 2890.1-2004 where for a Class 2 parking facility with 25-100 parking spaces accessed off a local street, a driveway is required to have a 6.0-9.9m width.

  4. It was noted in the parking surveys in the Coady report and surveys organised by Mr McLaren’s company (the McLaren report) that the on-site parking area is under-utilised. The Coady report noted:

"The 80m long one-way access driveway off Ridge Street which provides access to/from the carpark can cause significant delay to vehicles entering/departing the carpark because of traffic conflicts on the one-way access road. It is not possible for motorists approaching the access driveway to see whether there are vacant parking spaces in The Greens off-street carpark, a characteristic which could discourage motorists from trying to access the carpark."

  1. However, Mr McLaren notes that the access driveway has existed for many years, was approved in its current form and is proposed to be managed at peak times by Club staff trained in car park management to assist taxi and patron parking use of the on-site car park and drop-off/pick-up area. He states that this will be an improvement on the current operation and should be conditioned. The applicant further offered to provide other facilities such as passing bays or signals at the access point in Ridge Street to improve access and safety as well as security staff to manage and guide patrons to taxi’s so as to minimise disruption to local residents. These measures can form part of a Plan of Management (PoM).

Overflow of parking on adjacent streets

Day

Time

Excess parking Parking onto Street

Friday daytime

1.00pm

32 vehicles

Friday night-time

6.00pm

18 vehicles

Saturday daytime

3.00pm

80 vehicles

Saturday night-time

8.00pm

100 vehicles

Sunday daytime

1.00pm

47 vehicles

Sunday night-time

6.00pm

35 vehicles

  1. Mr Hallam notes that traffic and amenity conflicts have been observed and pointed out by local residents resulting from overflow parking from The Greens. Mr Hallam sees the main focus in the Coady report and the McLaren report as being the quantification of the extent of the parking overflow onto Ridge Street and other streets. The Coady report (p 12) states that there is a projection of the excess parking demand, after assuming the on-site 30 spaces are fully utilised, for the "average maximum week". This projected parking spillover is as follows

  2. Mr Hallam notes that the "Estimated Car Drivers" in the McLaren report is based on patron surveys but does not include staff parking. Adding in the staff parking and assuming the 30 on-site spaces are fully occupied leads to the projected excess parking spillover to the street for the seven different days shown below:

Day

Patron Drivers

Staff Drivers

Excess Parking Street

Fri 27/11/15

48

12

30

Sat 28/11/15

88

15

73

Fri 4/12/15

38

12

20

Sat 5/12/15

78

15

63

Fri 12/8/16

29

12

11

Sat 13/8/16

60

15

45

Sat 20/8/16

47

15

32

  1. The assertion that "the lack of available on-site car parking has resulted in a significant number of vehicles parking in Ridge Street and surrounding streets" is clearly proven, according to Mr Hallam.

  2. In addressing the additional patronage sought in the application, Mr Hallam states, based on the surveys undertaken; this peak patronage is likely to be on a Friday or Saturday night, with current Saturday patronage levels generally higher than Friday levels. Mr Hallam understands that the existing approved Club facilities have a capacity of 350 patrons. From the McLaren mode split surveys over four Saturday nights, an average of 25% of current patrons drive to the site or nearby street. Thus providing for 88 cars (350 persons x 0.25). Added to this should be 15 cars driven by staff (Coady report) for a total of 103 cars. If it is assumed that an improved PoM is prepared so that all of the 30 parking spaces at the Club are fully utilised, this will mean an overflow onto the street of 73 cars, or 71% of the total demand. In the absence of a proposal to expand the on-site parking area, Mr Hallam considers that this is the limit of what is reasonable in this location. This patronage limitation could best be achieved by not approving the use of the external bowling green for other than lawn bowls.

  3. In relation to Mr Hallam’s concerns, Mr McLaren considers that the PoM can address noisy patrons by a number of measures, including limiting patronage to 400 persons after 10pm, installing signs within the club foyer advising patrons to leave quietly to protect local amenity of nearby residences and possibly by security guards that remind patrons to leave quietly. There are existing clubs where measures similar to these are employed. Mr McLaren also notes that there is now a club operated courtesy bus transport system in place that was not in place at the time of the Coady report, nor was there a detailed PoM that has recently been developed. The courtesy bus service commenced operation in September 2015 and will be continue and be advertised and encouraged for use by club patrons.

  4. Mr McLaren considers that little weight can be given to the Coady report findings particularly as it was conducted within the first 12 months of operation of use of the paved area of part of the northern bowling green, which was opened in November 2014. It is usual practice in the traffic engineering to avoid the first 12 months of activity for changes to an existing licensed premises as patronage levels are normally inflated given that many patrons are attracted to observe and experience the changes. This conclusion was not accepted by Mr Hallam.

  5. Mr McLaren also considers that the parking table derived by Mr Hallam states that all of the spillover parking will occur on-street but this ignores that patrons could use the Ridge Street public car park that has a capacity of 196 car spaces with low fees. Surveys show that there is significant spare parking capacity at the Ridge Street public car park, in excess of 150 spaces after 6pm on Fridays and Saturdays. While the Ridge Street public car park might have spare capacity, Mr Hallam stresses that it is rarely used by Club patrons; instead, patrons choose to look for on-street parking.

Findings

  1. The normal approach to the evaluation of car parking is to start with the requirements of the relevant development control plan; in this case DCP 2013. Section 79C(1) mandates that consideration must be given to” any development control plan” (s 79C(1)(iii)). Section 10 of DCP 2013 provides requirements for Car Parking and Transport with Table B 10.3 providing parking rates for a range of non-residential uses. “Registered clubs” are to provide parking at a maximum rate of “1 space/100 sq m (licensed floor area)” (my emphasis). There was no disagreement that the Club satisfied this requirement.

  2. The parking rate is not high, in comparative terms, but is explained by the approach adopted by the council in the objectives in Section 10 where the objectives relevantly seek to ensure that "public transport, including walking and cycling, is the main form of travel mode” (O2, cl 10.1.1); “to minimise the reliance on private car usage” (O2, cl 10.2.1), "to facilitate the use of public and alternative transport modes including walking and cycling" (O3, cl 10.2.1)). DCP 2013 also specifes a maximum, rather than minimum number of off-street parking spaces and relates the parking requirements to licenced floor area rather than patronage. Mr Mossemenear, the council’s town planner, agreed that the approach of the council was to constrain parking and to encourage people to travel to the area by public transport and means other than private motor vehicles.

  3. As submitted by Mr McEwen, the natural corollary of a parking provision of this type is that patrons driving private motor vehicles will inevitably be required to make some use of off-street parking, to the extent it is available, and otherwise use alternative modes of transport or park on the street. This is the context in which the question of overflow parking must be considered. It is not a reasonable approach to minimise on-site parking and encourage the use of public transport then object to vehicles parking in surrounding streets.

  4. Mr Mossemenear also conceded that, while residents had complained of impacts on amenity arising from patron noise and behaviour whilst accessing vehicles parked in streets surrounding the site, none of the resident complaints had included concerns with respect to the residents own ability to park their vehicles.

  5. For these reasons, I do not accept that it can be reasonably argued that the absence of sufficient parking on-site and the potential use of adjoining streets for parking is a valid reason to refuse the application.

  6. Notwithstanding the comments in the preceding paragraphs, I am satisfied that, in most events at the Club, there is reasonable on-street parking availability in the streets surrounding the site, based on the surveys of the kerb side parking available, including any time restrictions, with the adjustments to the surveys accepted by Mr Hallam that on-street parking spaces with a maximum parking limit of 1 hour should be excluded from the calculation of available on-street parking.

Amenity impacts

The evidence

  1. The council is of the view that intensification of the use and substantial increase in patron capacity has adversely affected the amenity of surrounding residential properties due to noise impacts arising from patrons on site, patrons off site when entering and leaving the premises, noise from patrons and their vehicle movements when parking in surrounding streets. It was agreed that noise from within the premises can be controlled by appropriate conditions including noise monitoring based on expert acoustic evidence that was not in dispute.

  2. Expert evidence was provided by Mr Geoff Mossemenear, for the council and Mr James Lidis for the applicant. Both are experienced town planners.

  3. Mr Mossemenear maintains that the noise impacts are a direct result of the intensity of the development in terms of patron numbers, the inappropriate location of the use, the intensity proposed in relation to the zoning of the site and surrounding residential development and the inability by the applicant or any security staff to control both patron and vehicle noise generated by patrons who have left the premises. Mr Mossemenear’s principal position is that the Outdoor Area should be reinstated back to a bowling green which would in itself, limit patron numbers on site as well as control the type of activity on site (that is, revert back to a clubhouse providing dining and bar facilities).

  4. Alternatively, should the Court allow the use of the Outdoor Area to continue, then patron numbers and the hours of operation need to be limited to minimise impacts. A limit of 350 patrons is preferred as it relates to the maximum capacity of the clubhouse before works were carried out on the northern green for the Outdoor Area and this number would not place an unreasonable demand on the available on street parking. Further, the use of the Outdoor Area as a beer garden should be limited to daytime only and not used at night at all or limited to dining for booked tables/groups only. If the Outdoor Area is limited to no more than 150 patrons at night for dining only (with the remainder in the club building) then it is likely that the clientele at night will change and be less likely to cause noise to neighbours. The weekend afternoon beer garden clientele are then more likely to leave the premises earlier in the evening, again with less impact on neighbours. A phased shutdown is more likely to reduce incidents with leaving patrons.

  5. Mr Mossemenear states that the location of the premises within the park adjacent to residential areas does not warrant increased patron numbers or extended hours. Extended hours of operation should only be allowed on New Years Eve and increased patron numbers on Anzac Day having regard to the club's affiliation with the sub branch and the War Memorial in the park.

  6. Mr Lidis states that there is no limit presently imposed on the patron capacity of the Club. There is also no limit presently imposed on the hours of operation of the Club and there is no PoM and the normal mitigation measures set out in a PoM. Importantly, Mr Lidis states that Mr Mossemenear provides no evidence to support his assumption that the clubhouse has a capacity of 350 and why this figure should be enforced.

  7. Mr Lidis suggests that the regularisation of the Club is best addressed through a PoM where all parties know what is required. Mr Lidis states that the existing approved northern outdoor seating area has an estimated capacity of 100 patrons (based on one patron per square for 98sqm). It could readily hold 200 patrons if furniture was removed and operated more akin to a beer garden rather than an outdoor dining area. There is no impediment to doing this, as Mr Mossemenear suggests this area forms part of the licensed area for the Club. Also, each bowling green (prior to the unauthorised work) could readily cater for 100 patrons, comprising five bowling lanes and two teams of five on each side, for a total of 300 patrons. This number of playing patrons has occurred from time to time in the past under the 'Rock & Bowls' operations, which have been conducted at the Club for about a decade and are regularly delivered to the Club by bus. Consequently, even before the unauthorised work, the Club as approved had sufficient floor area for 900 patrons.

  8. Mr Lidis states that the publicly accessible floor area inside the clubhouse is some 390 sq m, which provides a capacity of around 400 patrons. Specific controls on patron numbers and hours of operation are now offered through the PoM to limit the daily operation of the Club to 600 patrons which is to be reduced to 400 after 10pm, except on special event days. Having regard to the fact that there is presently no mechanism to review the on-going operation of the Club, the offer of a trial period through the application (in addition to the restrictions and management provisions proposed through the PoM) is considered to be a positive factor in favour of approving the application. The PoM also incorporates specific provisions aimed at reducing adverse impacts as patrons depart. In particular, the phased shut down of the premises prior to 10pm, at which time, the maximum patron capacity is reduced from either 900 on special days to 600 on other days, to 400 persons. A phased shutdown of the Club achieves two simultaneous aims of encouraging patrons to leave early and progressively and lowering the number of patrons at the Club when it does finally close.

  9. The council accepts that in the event that the Court determines that consent for the use of the Outdoor Area should be granted, the council seeks the imposition of the following conditions:

I1 Hours of Operation

The hours of operation are restricted to:

8am to 12 midnight, Monday to Saturday

10am to 10pm, Sunday

Upon expiry of the permitted hours:

(a) all restaurant service (and entertainment) must immediately cease;

(b) no person shall be permitted entry; and

(c) all customers on the premises must be required to leave within the following 15 minutes.

(Reason: to ensure that amenity of the surrounding locality is maintained and

hours of operation are consistent with those in surrounding locality)

Trial period

12. The use of the premises pursuant to this development consent shall be for a trial period of 12 months only from the commencement of such use.

13. The Applicant must notify the Council in writing, not later than three (3) days after the commencement of the use of the premises pursuant to this development consent of the date of such commencement

14. If the Applicant wishes to extend the use of the premises as approved by this development consent beyond the 12 month trial period then it must make a development application or modification application not later than 9 months after the commencement of such use.

15. The Applicant may continue the use of the premises beyond the 12 month trial period pending the determination by the Council of the Applicant's application referred to in the preceding condition. If the Council determines to refuse the application then, provided that the Applicant shall have filed an appeal to the Land and Environment Court not later than 28 days after the date of such determination, the Applicant may continue the use of the premises as approved by this development consent until the final determination of the Applicant's appeal.

16. When submitting an application to extend the trial period, such application must be accompanied by the following information or documentation:

An acoustic report not more than 28 days old at the date of the application, reporting as to compliance or otherwise with any conditions of this development consent that seek to control the emission of noise

Evidence of compliance (or otherwise) with any conditions of this development consent that seek to control patron numbers

Evidence of any complaints received by the Applicant as well as evidence of the response by the Applicant to each of those complaints in the period from the commencement of the use approved by this development consent up until the submission of the application for an extension or removal of the trial period

17. The Applicant shall notify residents within the locality by means of signs at the Club premises and such other means as may reasonably be approved by the Council (such as newspaper advertisements) that the Applicant has a system of receiving complaints from residents (including by telephone to a telephone number to be notified to the public). The Applicant shall upon reasonable notice from the Police or the Council provide to the Police or to the Council details of such complaints and of the measures undertaken by the Applicant to respond to such complaints

  1. The other main issue in dispute is the patron limit. Council's position is that Part B, condition 11 should be imposed and which states:

Outdoor Paved Area

11. The outdoor paved area shall be used for seated dining only after 6pm with no outdoor bar facilities and restricted to no more than 150 patrons. The 150 patrons are to be within the total maximum number of 350 patrons permitted on the premises.

Use of the outdoor paved area shall cease at 9pm and all customers must be required to leave the outdoor paved area within the following 15 minutes

Reason (To protect neighbourhood amenity)

  1. Mr To submits that these conditions are necessary given the potential for amenity impacts increases as more patrons are accommodated. Any impacts would occur from the Outdoor Area if this area is used as a drinking area or 'beer garden' where the service and consumption of alcohol is the primary use. Thus a condition that restricts the use to seated dining appropriately guards against this potential.

  2. In relation to the seven special event days where the patron limit is up to 900 persons to 10pm, and 400 thereafter; it is the council's position that the Club should be permitted to trade to these levels only on ANZAC Day and New Year's Eve. If the applicant can demonstrate that there are no amenity impacts then any modification to extend these days may be worthy, on merit. But it is for the applicant to demonstrate it in the first instance -and allowing the two occasions is a balanced approach

  3. Mr McEwen submits that Mr Mossemenear and Mr Lidis agreed that the PoM was appropriate by reference to the 8-point test articulated in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315. Mr McEwen also submits that that the level of objection was low for this type of application. The Police objection confirmed that noise and disturbance could be addressed by conditions which the applicant generally accepts. There has been minimal complaint to the Club, the Police or the council over the last 12 months and no cause for Police to attend the club since 25 April 2016. This was a general check and not in response to a complaint. On that day there were approximately 890 patrons and there is no evidence that this number of patrons caused any unreasonable adverse impact. It must be assumed that the minimal disturbance is due to pro-active management.

  4. A complaint was made to the liquor authorities in May 2015 by residential property in Ridge Street. A thorough investigation was conducted over a 16-month period and included Police input and covert surveillance. The 81 decision by Secretary in relation to complaint issued on 13 September 2016 is favourable to the applicant in relation to this investigation.

  5. For these reasons there are no town planning related issues that would warrant the refusal of the application and the imposition of conditions that provide for the following is warranted:

600 patrons between 8am and 10pm, 7 days per week,

400 patrons between 10pm and midnight, 7 days per week,

900 patrons on identified special event days being identified as New Year's Day, Anzac Day, Christmas Eve, Australia Day, Melbourne Cup and the Saturday of the October long weekend and New Year's Eve where the proposal is to trade until 2am.

  1. A 12-month trial period for:

the use of the Outdoor Area between 9pm and 10pm,

the 600 patron limit between 9pm and 10pm, and

the special event days.

Findings

  1. Clause 7 of DCP 2013 addresses Late Night Trading Hours. The Introduction at cl 7.1 states, in part:

Late night trading premises can positively contribute to the character of an area through increased vitality and vibrancy of the urban environment outside of normal business hours. Conversely, the operation of such premises and associated actions of patrons also has the potential to adversely impact upon the amenity of nearby residential or other sensitive land uses.

This section of the DCP aims to assist in the management of impacts from the operation of late night trading premises on the sites and neighbourhoods in which they are located and in particular, to protect the amenity of local residents. This is to be primarily achieved through restricting trading hours dependent upon a premises location and promoting ongoing good management practices.

  1. Clause 7.1.2 applies to all development applications for non-residential uses seeking to operation wholly or in part for trading hours between 8pm and 7am that involve refurbishment, additions or extensions that will result in an intensification of an existing use (cl 7.1.2(d)).

  2. Clause 7.2 identifies the matters that are to be considered when determining operating hours. These are:

(a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises;

(b) the specific nature of the premises (e.g. pub, nightclub, restaurant etc) and the proposed hours of operation;

(c) the existing hours of operation of surrounding businesses;

(d) the size and patron capacity of the premises;

(e) the availability of amenities provided to premises;

(f) the impact of the premises on the mix, diversity and possible concentration, of late night uses in the locality;

(g) the likely operation of the proposal during day time hours;

(h) submission of a Plan of Management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain;

(i) the diversity of retail services within an area and the impact of a late night proposal on this diversity;

(j) measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises;

(k) the accessibility and frequency of public transport during late night trading hours.

P2 Consideration of all of these factors provides the basis for a consistent approach to the determination of appropriate trading hours and creates greater certainty both for the community and proponents of late night trading premises.

P3 Once these factors are taken into consideration late night trading hours may be permitted in appropriate circumstances, particularly in areas of North Sydney that already exhibit or have an emerging vibrant night-time character, as opposed to parts of the LGA that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage.

  1. Clause 7.3.1 addresses maximum trading hours and states:

Maximum allowable trading hours have been established that are considered to represent the desired late night trading character for each zone identified in the subsection. The clause states that a development application for late night trading will only be granted the maximum trading hours where an application can demonstrate the use of the premises during these hours will satisfy all provisions within this DCP Section and result in acceptable impacts upon the surrounding locality.

Many of these late night trading areas directly adjoin residential zones. The impacts of late night premises within these interface areas must be carefully considered. In addition, many late night premises are located within mixed use buildings where residences are located directly above. Where these impacts cannot be reasonably addressed, these sites may be granted trading hours less than the maximum hours set out within the table.

Council will consider the extension of trading hours within the North Sydney CBD up to 24 hour trading but only where the uses are suitable for the locality. These uses will be subject to on-going trial periods with the maximum 5 year trial period permitted. This will enable monitoring of premises within the CBD to ensure these uses do not detract from the character of the area.

  1. The objectives for trading hours are:

O1 To ensure that trading hours are consistent with the desired character of each zone.

O2 To minimise adverse amenity impacts on nearby residents.

O3 To encourage a vibrant late night economy within North Sydney.

O4 To ensure a reasonable balance is achieved between late night uses and residential amenity.

O5 To ensure that residential zones located within the interface to late night trading areas are reasonably protected.

O6 To minimise amenity impacts resulting from parking and traffic caused by late night uses.

  1. The maximum trading hours are shown in Table B-7.1 but address only the specific B3 Commercial Core zone, the B4 Mixed Use zone and the B4 Mixed Use zone. Understandably, the RE1 Public Recreation zone is not specifically addressed within Table B-7 however the site would fall within “All other zones” in Table B-7.1 where the maximum hours are 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week. The most generous trading hours are in the B3 Commercial Core zone where the maximum hours are 6am to midnight (indoor) and 7am to 11pm (outdoor), 7 days per week.

  2. Further, cl 7.3.2 addresses Trial Periods and cl 7.4 provides requirements for Premises Management Checklists and Plans of Management.

  3. In considering the outstanding matters of hours of operation, patron numbers and the trial period, DCP 2013 provides some direction. Late night trading is said to positively contribute to the character of an area through increased vitality and vibrancy of the urban environment outside of normal business hours but has the potential to adversely impact upon the amenity of nearby residential or other sensitive land uses (cl 7.1). Table B-7 suggests that the maximum hours are 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week for the zones not identified in the table. I accept that these hours should not be seen as an automatic entitlement but subject to the considerations elsewhere in cl 7 and the general considerations in s 79C(1) of the Environmental Planning and Assessment Act 1979. DCP 2013 also acknowledges that a PoM and trial periods are a valid method to address potential amenity impacts (cl 7.4). DCP 2013 does not guarantee that there will be no impacts from late night trading but only that adverse amenity impacts are “minimised” (O2), a “reasonable balance” is achieved between late night uses and residential amenity (O4) and residential zones located within the interface to late night trading areas are “reasonably protected” (O5).

  4. In this context, I propose to adopt some of the trading hours and patronage numbers sought by the applicant, but not all, for a number of reasons.

Operating times

  1. Table B-7 provides for maximum hours of 7am to 10pm (indoors) and 8am to 8pm (outdoors), 7 days per week for the site. The council sought an opening time of 8am however Mr Mossemenear accepted that a 7am opening time would cause no impact and this time would be reasonable, in the circumstances. The applicant seeks to extend the opening hours from 10pm to midnight (indoors) and from 8pm to 10pm (outdoors) but with a trial period between 9pm and 10pm for the Outdoor Area. The council’s condition of consent (condition I1) proposes 8am to 12 midnight trading on Monday to Saturday and 10am to 10pm on Sunday but the Outdoor Area can only be used until 9pm (condition I11).

  2. The difference between the trading hours sought by the applicant and those sought by the council in their conditions is not significant in the evenings and I propose to adopt the following trading hours:

7am to 12 midnight, Monday to Saturday

7am to 10pm Sunday.

trial period for Outdoor Area between 9pm and 10pm, 7days.

7am to 2am on the following day for special events days.

  1. I am satisfied that the departure from the trading hours in Table B-7 can be justified in this case because:

the Club and external areas are relatively isolated from any residential properties,

it was agreed that the acoustic environment in the clubhouse can be controlled,

any potential source of noise in the Outdoor Area is to be subject to a trial period between 9pm and 10pm, and

the PoM was considered acceptable to the council.

Patronage levels

  1. Clause 7 of DCP 2013 understandably provides no guidance on maximum patronage levels given that the number would be dependent on the area of the site in question. The applicant proposes 600 patrons up to 10pm, 7 days per week with a trial period for 600 patron between 9pm and 10pm, 400 patrons between 10pm and midnight and 900 patrons on special event days.

  2. The council seeks a maximum of 350 patrons on the premises with no more than 150 patrons of the maximum 350 patrons using the Outdoor Area between 6pm and 9pm for dining only.

  3. It was agreed that the Liquor Licence has no maximum patron numbers and while Mr Lidis and Mr Mossemenear disagreed on the potential patronage, it was generally accepted that one patron would occupy around 1 sq m. Based on this relationship; the clubhouse could accommodate around 400 patrons, the existing approved northern outdoor seating area can accommodate around 100 patrons, the Outdoor Area can accommodate around 250 people and 300 bowlers can use the greens for a total of 1150 patrons although I accept that this is an unlikely scenario.. It was also accepted that a higher patronage level could be achieved by the removal of seating from the Outdoor Area and the northern outdoor seating area.

  4. The number of patrons have the potential to create unacceptable amenity impacts. While the clubhouse is relatively isolated from any residential properties, the potential amenity impacts arise from patrons leaving the Club, particularly late at night. The Court heard from a number of residents and watched recordings of anti-social behaviour. The evidence however suggested that the type of anti- social behaviour experienced by the local residents had diminished through different management at the Club and more effective use of security staff. The PoM and 12 month trial are important measures to ensure that any impacts on local residents are minimised, as is the phased shutdown, suggested by Mr Lidis. The suitability and effectiveness of these measures needs to be tested through the 12 month trial period. In my view, the 12 month trial should be extended to period between 10pm and midnight where a maximum of 400 patrons is proposed. This would also include the identified special event days. I also propose to limit the number of patrons of the Outdoor Area to 250 patrons and contrary to the position of the council; no restriction is to be placed on this area for dining only, for the trial period.

  5. I am satisfied that the following proposed hours and maximum patron numbers are appropriate:

a maximum 600 patrons between 7am and 10pm 7 days per week, with the 600 patron limit between 9pm and 10pm being for a 12 month trial,

a maximum 400 patrons between 10pm and midnight 7 days per week but with a 12 month trial.

for special event days, a maximum 900 patrons until 10pm and a maximum 400 patrons between 10pm and 2am, 7 days per week but with a 12 month trial.

  1. I am satisfied that the departure from the patron numbers proposed by the council can be justified in this case because:

the opportunity exists with the 12 month trial period to fully address any impacts associated with the late night use of the Club,

there has been minimal complaint to the Club, the Police or the council over the last 12 months and on 25 April 2016 there were approximately 890 patrons at the Club and there is no evidence that this number of patrons caused any unreasonable adverse impact, and

the PoM and 12 month trial are legitimate measures identified in DCP 2013 so that potential impacts on local residents are minimised.

  1. I do not accept the number of special event days suggested by the applicant is appropriate at this time. Seven days are excessive given the 2am closing time and the potential 900 patrons. In my view, the special event days should be limited to New Year's Eve, at this stage. Celebrations for Anzac Day could reasonably be expected to fit within the normal operating hours, with the trial period although the 7am opening time should be deleted given the Dawn Service on Anzac Day. Depending on the results of the 12 month trial period, additional special event days may be considered.

  2. Based on these findings, the following condition is to be imposed:

Hours of operation/patron numbers

The normal hours of operation and maximum patron numbers are:

• 7am to 12 midnight, Monday to Saturday.

• 7am to 10pm, Sunday.

• the Outdoor Area is to cease use at 9pm, 7days per week.

• a maximum of 600 patrons between 7am and 9pm, 7 days per week.

• a maximum 400 patrons between 9pm and midnight, Monday to Saturday and 9pm to 10pm Sundays.

• a maximum 900 patrons for special event days, from 7am to midnight, 7 days per week irrespective of the other normal hours of operation and maximum patron numbers.

• Anzac Day, no opening time but subject to normal hours of operation for closing and maximum patron numbers.

Except as amended or restricted by the following:

• the Outdoor Area may operate with a 250 patron limit between 9pm and 10pm, 7days for a 12 month trial period,

• the Club may operate with a maximum 600 patron limit between 9pm and 10pm for a 12 month trial period,

• the Club may operate with a maximum of 400 patrons between 10pm and midnight, Monday to Saturday for a 12 month trial period.

• the Club may operate for special event days with a maximum 900 patrons until midnight and a maximum 400 patrons between midnight and 2am the following day, irrespective of the other normal hours of operation and maximum patron numbers, 7 days per week for a 12 month trial period.

Definitions

“Outdoor Area” is the area of the most northerly bowing green covered and used for drinking/dining and shown on survey plan from LTS Lockley, Ref No 42549DT, Sheet 1 of 2.

“Special event days” are New Years Eve.

“Trial period” is the period where the Club may operate beyond the normal hours of operation for a 12 month period. The trial period is to commence within 4 weeks of the orders of the Court and the council must be advised of the date of the commencement of the trial period. Clause 7 of DCP 2013 provides the requirements if the trial period is sought to extended or amended.

Orders

  1. The orders of the Court are:

1. The appeal is upheld.

2. DA 78/16 for the internal refurbishment of the main clubhouse building and internal alterations to provide additional toilets, the continued use of part of the most northern bowling green and specify hours of operation and patron numbers for the North Sydney Bowling Club at 50 Ridge Street North Sydney is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit G.

____________

G Brown

Commissioner of the Court

170886.16 (C) gtb (311 KB, pdf)

Decision last updated: 06 January 2017

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Cases Cited

8

Statutory Material Cited

4

Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147
Shire of Perth v O'Keefe [1964] HCA 37
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48