Ozden v Council of the City of Sydney
[2011] NSWLEC 1147
•06 June 2011
Land and Environment Court
New South Wales
Case Title: Ozden v Council of the City of Sydney Medium Neutral Citation: [2011] NSWLEC 1147 Hearing Date(s): 3 June 2011 Decision Date: 06 June 2011 Jurisdiction: Class 1 Before: Moore SC
Decision: (1)The appeal is upheld.
(2)The trading hours of the premises are amended to be for a trial period of 12 months from 6 June 2011, to be:on Monday and Tuesday until 12:30 am;
on Wednesday and Thursday until 1 am;
on Friday and Saturday until 3:30 am; and
on Sunday until 12 midnight,(3)There is to be an additional condition that no alcohol is to be taken onto or consumed on the premises after 12 midnight on any night of the week; and
(4)The exhibits, other than exhibits 2, 5 and B, are returned.Catchwords: Trading hours - impacts on residential amenity
Legislation Cited: City of Sydney Late-Night Trading Premises Development Control Plan 2007
Cases Cited: Texts Cited: Category: Principal judgment Parties: E Ozden (Applicant)
Council of the City of Sydney (Respondent)Representation - Counsel: Counsel:
Mr R O'Gorman-Hughes (Applicant)
Ms M Carpenter (Respondent)- Solicitors: Solicitors:
City Solicitor's Office (Respondent)File number(s): 10153 of 2011 Publication Restriction:
EXTEMPORE Judgment
It is not unusual for late trading licensed premises, particularly those that trade until times well after midnight, to be the recipients of complaints of antisocial behaviour by departing patrons who may walk through nearby residential areas.
In this case, the Marlborough Hotel (the hotel) on the corner of Missenden Road and King Street in Newtown is one such late-night trading licensed premises. The hotel is located toward the northern end of the King Street shopping strip, at the intersection of two busy roads. Nearby is a significantly large student residential complex, providing accommodation for students at Sydney University.
Patrons departing from the hotel, some of whom must, from the nature of the resident complaints in evidence in these proceedings, be residents of that student complex, have caused disruption to residents who live in nearby streets. In particular, those who live in Campbell Street, a street that runs generally parallel to King Street to the north from Missenden Road, have been disturbed by behaviour of patrons from the premises.
The Sydney University Student Village has a number of accesses to individual residences from Campbell Street, as well as having the main entrance to the south to the complex from that street. This is the context within which I am asked to consider an application for extended trading hours by a kebab shop (the premises) located one door away from the intersection between Missenden Road and King Street, on Missenden Road and directly opposite portion of the hotel.
The hotel has a permitted patron numbers of nearly 600 on the ground floor and some 300 on the first floor. A condition of the consent for operation of the hotel requires the first floor of the premises to close at midnight. The actual trading hours of the ground floor of the hotel, on information provided to the planners who gave evidence in the proceedings, Mr Nash for the applicant and Mr Reid for the council, is that it trades on Monday and Tuesday nights until 1 am; on Wednesday and Thursday nights closing at some time between 1.30 am and 2 am; on Friday and Saturday nights closing at 4 am; and on Sunday night closing at 12 midnight.
The present application concerning the premises is founded on a consent that has ordinary trading hours until 10 pm, plus a trial period expiring in August 2011 of trading until 12 midnight. The application now seeks an extension of the trial period of its trading hours to be until 4 am seven days per week for a 12-month period from this determination.
It is not contested that part of the clientele that is attracted to the premises is passing traffic and a further element is from persons who are staff of (or visitors to) Royal Prince Alfred Hospital located some distance further away from King Street along Missenden Road. It is possible that there may be some independent attendances by students from the Sydney University Student Village that are not associated with patronage of the Marlborough Hotel.
It is appropriate, in this context, to describe briefly the regulatory regime within which I am to consider the application, and then to turn to the interaction between that regulatory regime and the operation of the premises.
There is no doubt in my mind that the particular relevant aspect for the Business Zone, Zone 3 in the Local Environmental Plan of the former South Sydney City Council [within which former local government area the premises are located and which has now been absorbed by the Council of the City of Sydney (the council)], has the relevant zone objectives being those set out in (b) and (c) that are engaged by the application. To the extent that there is argued to be a conflict, the conflict arises from my consideration of zone objective (c), relating to the amenity of residents in the vicinity of these premises and of the licensed premises.
More particularly, the relevant development control plan that is engaged is the City of Sydney Late-Night Trading Premises Development Control Plan 2007 (the Development Control Plan). It sets out a framework that generally provides for premises such as these that are not coloured green in the relevant map and are regarded as part of a local centre for the Newtown area, rather than being in the green area around the railway station which is designated as a late-night management area.
The presumption in the Development Control Plan is that premises such as these will have base trading hours until 10 pm and may be permitted on a trial period basis, as is presently the position, to trade until 12 midnight. However the Development Control Plan also envisages that there may be instances where hours outside these base and trial period hours may be contemplated, as I understand the Development Control Plan. Although the presumption is in favour of the minimum hours, there are set out in the Development Control Plan a number of general matters for consideration for night trading premises (set out as primary issues), and then in a second and separate area dealing with Local Centres, a provision dealing with trading hours that would permit, in exceptional circumstances, longer trading hours to be allowed.
It is a curious but useful element of the Development Control Plan that it does not appear to envisage that any late-night trading beyond base hours will ever be made permanent, but must be the subject of rolling and ongoing trial periods.
The Development Control Plan envisages an initial trial period of any extension of the base trading hours of one year; if that is completed successfully, a possibility of a further extension for two years (but if not completed successfully, a reversion to a base trading hour regime); subsequent extensions for a trial period of two years and, if completed successfully, rolling maximum five year trials thereafter are envisaged.
Importantly, in my consideration of this matter, it is clear that if a trial period were to be granted, as is presently the position with respect to the trial period until midnight, and that trial were not to be successfully concluded without significant impact on the surrounding residential areas, then it is a reasonable expectation, subject to any independent assessment that might take place at that time, that the premises would revert to the base trading hours.
Clause 2.6 of the Development Control Plan sets out the primary issues to be considered, the relevant ones in these proceedings are the location and context of the premises and their location adjacent to a residential area, the nature of the premises, the existing operational hours of surrounding business uses, and the size and patron capacity of the premises.
It is in the context of those matters that I then turn to the specific provision relating to trading hours, dealing with Local Centres. The relevant paragraph reads as follows:
Careful consideration will be given to the residential context of the area and existing hours of other late-night trading premises in close proximity when assessing development applications in these areas longer trading hours are acceptable in exceptional circumstances where it is considered that:
·the use will have minimal impact on residential amenity,
·is characteristic of other uses in close proximity, and
·it will not contribute to the clustering of high impact premises such as hotels.
In these proceedings, I am satisfied that the fact that the premises have been trading until 4 am in the morning for a number of years, without complaint, is a matter that I can take into regard as to whether or not there are "exceptional circumstances". Contra the position with respect to licensed premises, such as the Marlborough Hotel, where there are specific complaints made by residents, there is no instance known to Mr Reid where there have been specific complaints concerning the operation of this kebab shop, and I am satisfied that, reading those provisions in the Local Centres portion of the Development Control Plan, that that is something that can constitute "exceptional circumstances".
I then need to turn to the three subsequent tests that are set out in the Development Control Plan. First, whether the proposal will have minimal impact on residential amenity. Second, whether it is characteristic of other uses in close proximity, and third, whether it will contribute to clustering of high impact premises.
It is easy to deal with the third of those elements in short order, as it is not proposed that these premises will constitute (or will they attract any) high impact premises.
With respect to the second element, it is appropriate to analyse in a little greater detail, the nature of the premises that operate in close proximity to the premises that are the subject of this application. First, immediately opposite, is as I have earlier described, the Marlborough Hotel with the trading numbers and hours to which I have referred. Second, immediately adjacent to the premises and on the precise corner of Missenden Road and King Street, is a convenience store that trades 24 hours per day, seven days per week and which sells a variety of foodstuffs, including hot pies. Third, slightly toward Newtown station along King Street but on the same side, is another kebab shop which trades on Friday and Saturday nights until the late hours of the morning, although it closes at midnight on other nights of the week. Those, in my opinion, are the relevant characteristics of other uses in close proximity that are necessary to be considered in whether or not I should extend beyond midnight the trading hours of these premises.
The final and critical matter is whether or not any increase in trading hours will have a minimal impact on residential amenity.
In this context, Mr O'Gorman-Hughes, counsel for the applicant, has offered a condition of consent that would say that after midnight no alcohol was to be taken onto or consumed on the premises.
However, the applicant presses a 4 am trading seven nights per week regime. It is clear, from the evidence that was provided both in writing by those living in Campbell Street and by a resident who gave evidence during the course of the proceedings, that the impact on those residential areas comes from departing patrons of the hotel, whether they are departing at closing time, or whether they are departing at some intermediate time during the evening. The behaviour of which complaint is made is that which is usually associated with such premises - being complaints of noise, litter, fighting, and of urinating on private property.
In the context of the present application, it would be entirely inappropriate to permit any extension of trading hours that had the effect of retaining hotel patrons in the area, beyond the trading hours of the hotel, as I am satisfied, on the resident objections, that that would exacerbate the problems that would be caused by the antisocial behaviour of patrons from the hotel. However, I am not convinced that there is any evidence that would demonstrate that the activities of the kebab shop, if constrained to operating to a point that it did not provide any retention for patrons of the hotel, would increase any impact on the surrounding residential area.
As a consequence, although I am of the view that a trial period of a modest extension of trading hours should be permitted, the only basis upon which it would be reasonable to do so would be if the trading hours were to be confined so that the premises ceased trading prior to the cessation of the trading hours of the hotel and did so in a sufficiently foreshortened fashion, so that those patronising the kebab shop could not be detained beyond the time when the patrons of the hotel might ordinarily otherwise be expected to depart at the closing of the trading of the hotel.
As a consequence, I consider that it would be consistent with the relevant provision for the extension of trading hours in the Development Control Plan, to adopt the proposal advanced by Mr O'Gorman-Hughes that no alcohol is to be consumed or taken onto the premises of the kebab shop after 12 midnight. For the trading hours, the following is appropriate:
First, on the nights when the hotel trades until 1 am, that is Monday and Tuesday nights, the kebab shop should be required to close at 12.30 am;
Second, on Wednesday and Thursday when the trading hours of the hotel cease at between 1.30 and 2 am, the kebab shop should be required to close at 1 am; and
On Friday and Saturday nights, when the hotel trades until 4 am, the kebab shop should be required to close at 3:30 am; and
On Sunday nights when the hotel trades until 12 midnight and the present permitted trial period for the kebab shop is to close at 12 midnight, there should be no extension to the trading hours of the kebab shop.
The trial period for these changed hours should operate on those hours, for 12 months from today.
As a consequence, the orders of the Court are:
(1)The appeal is upheld.
(2)The trading hours of the premises are amended to be for a trial period of 12 months from 6 June 2011, to be:
·on Monday and Tuesday until 12:30 am;
·on Wednesday and Thursday until 1 am;
·on Friday and Saturday until 3:30 am; and
·on Sunday until 12 midnight,
(3)There is to be an additional condition that no alcohol is to be taken onto or consumed on the premises after 12 midnight on any night of the week; and
(4)The exhibits, other than exhibits 2, 5 and B, are returned.
Tim Moore
Senior Commissioner
0
0
1