Pacific Islands Express Pty Ltd v Hawkesbury City Council - [2009] NSWLEC 1321

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Pacific Islands Express Pty Ltd v Hawkesbury City Council [2009] NSWLEC 1321

PARTIES:
APPLICANT
Pacific Islands Express Pty Ltd
RESPONDENT
Hawkesbury City Council

FILE NUMBER(S): 10024 of 2009

CORAM: Bly C

KEY ISSUES: DEVELOPMENT CONSENT :- existing hotel, extension of tradingt hours, amenity of nearby residential area.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hawkesbury Local Environmental Plan 1989

CASES CITED: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199

TEXTS CITED: NSW Bureau of Crime Statistics and Research Study-Rules of Engagement: Policing Antisocial Behaviour and Alcohol-Related Violence in and Around Licenced Premises (J. Fleming 2008)

DATES OF HEARING: 3-4 June 2009 and 29 June 2009

DATE OF JUDGMENT:
2 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Leggat (SC)
SOLICITOR
Maddocks
RESPONDENT
Mr S Griffiths (solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

2 October 2009

10024 of 2009 Pacific Islands Express Pty Ltd v Hawkesbury City Council
JUDGMENT

Introduction

1 This appeal relates to three development consents granted by the Hawkesbury City Council in relation to the existing licenced premises known as the Clarendon Tavern. The first of these consents (0341/91) was granted in May 1993 for the construction of a “tourist facility/service station and convenience store”. The plans accompanying this consent show the now existing hotel. The hotel was initially permitted to operate between 9 am and 10 pm daily. These operating hours have since been amended to allow the a hotel to trade between 5 am to 12 midnight, Mondays to Saturdays and 10 am to 12 midnight on Sundays. The hotel has maximum capacity of 375 persons and a Place of Public Entertainment licence for 250 people.

2 A subsequent development consent (1325/03) granted in September 2003 permitted a cafe to be converted into a function room associated with the hotel. A further development consent (0518/05) granted in September 2005 was for certain building works and the creation of a gaming room, TAB bar and bottle shop in conjunction with the hotel.

3 The applicant in these proceedings now seeks to modify all three consents pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 to extend the trading hours of the hotel to allow trading on Thursday, Friday and Saturday nights until 3 am (with a midnight shut-out), on the respective following mornings. In this regard the applicant accepts that the extension of trading hours can be for a 12-month trial period so as to ascertain whether the hotel can operate "without unreasonable amenity impacts on the surrounding locality". A draft Plan of Management and suggested conditions of consent have been provided.

The site and the locality

4 The site (lot 4 SP 73508) being 244 Hawkesbury Valley Way, Clarendon is situated about 2 1/2 kilometres from Windsor, on the corner of Racecourse Road adjacent to the Clarendon Railway Station on the Richmond Railway Line. Beyond the railway line to the south are the Hawkesbury Racecourse and the Hawkesbury Showground. To the north on the opposite side of Racecourse Road is a skateboard park.

5 Opposite the site on the north side of Hawkesbury Valley Way there is a group of ten detached dwelling houses, (although there are more dwellings further to the east). Adjoining these houses and the Hawkesbury Valley Way (to the northwest) is the Richmond RAAF Base. On the site to the east of the hotel buildings is a 24-hour service station and car wash. Beyond this there is an area of vacant land (parkland?).

Applicant's conditions

6 The applicant proposes that all three consents be identically modified by the inclusion of a number of new conditions including conditions dealing with hours of operation. Relevantly these conditions include: compliance with a management plan; a 12 month trial period; a 250 person maximum for the place of public entertainment; and the exclusion of new patrons after midnight. Other matters include: the provision of security staff and their role; sound/noise/amplification controls; acoustic walls and other noise measures; no live music after midnight; entertainment and the use of the rear courtyard; and patron transport arrangements.

7 The applicant's management plan reiterates a number of the applicant's conditions with a number of additional matters:

The location and operation of the CCTV camera positions, loudspeakers, external plant and waste collection and storage points.
Liquor service is to cease 15 minutes prior to the close of trade.
Enforcement of responsible of service of alcohol requirements of the liquor licence including training of staff and management.
The availability of food during all trading hours.
Identification policy and gambling measures and strategies.
The number of and licensing of security personnel as well as their patrolling and other responsibilities.
Incident reporting and registering of complaints.
The provision of a complimentary bus service for patrons.
Signage associated with the bus service, the midnight lockout etc.
Noise management and use of the rear courtyard.
A mechanism for the amendment of the management plan.

Planning controls

8 The site is zoned Mixed Agricultural under the Hawkesbury Local Environmental Plan 1989. Adjacent lands to the west, south and east are variously zoned for Open Space purposes. The dwellings opposite are zoned for Residential purposes. The RAAF base is zoned for Special Uses purposes.

9 The land use matrix in cl 9 of the LEP indicates that hotels are permissible with consent in the Mixed Agriculture zone. Clause 9A(1) requires that prior to the granting of development consent the consent authority must be of the opinion that the carrying out of the development is consistent with the relevant objectives of the zone. The objectives of the Mixed Agriculture zone deal with: sustainable agriculture; rural land-use conflicts; land fertility and fragmentation; protection of water catchments; vegetation conservation; landscape values; traffic generation; outdoor advertising; and economic demands on public amenities or services. The test that development be " consistent with the relevant objectives" does not require strict compliance but instead requires compatibility or harmonious coexistence.

10 Failure to meet these objectives was not raised in the contentions and this is understandable given that they principally relate to the use of land for agricultural purposes. In this case the Mixed Agriculture zone is limited in its extent, is not used for agricultural purposes and does not extend beyond the site of the hotel and the service station/car wash. For the reasons given in this judgment, to the extent that any of these objectives might be said to apply, I am satisfied that the requisite compatibility can be achieved by this development.

11 The application was advertised and the council received eight submissions objecting to the proposal. Matters of concern raised in these objections essentially include:

The hotel's history of unlawful and antisocial behaviour by its patrons that has and will continue to adversely affect the amenity of the locality especially for the residents of the dwelling houses opposite and in Hawkesbury Valley Way generally.
The noise likely to be generated from the use of the hotel, including music and departing patrons and vehicles during the proposed extended trading hours will also adversely affect this amenity as has occurred in the past when the hotel had late trading.
Extended operating hours will increase the number of intoxicated persons that will result in an increased level of crime in the area including drink-driving and resulting traffic accidents.

12 The modification application was considered at length by a council planning officer who recommended that the consent be modified to allow trading until 3 am on Friday/Saturday and Saturday/Sunday nights subject to a six-month trial period. According to the report:

"Concerns of neighbouring property owners have been considered and as detailed previously in this report it is noted that the management of the Tavern has changed since the period in which it was operating beyond its approved hours of operation. Given the concerns raised it is considered reasonable to allow a six (6) month trial period in order to determine the impact of the extension of trading hours to neighbouring residential properties. The extended hours are to be limited to Friday and Saturday nights only. Upon expiration of this period of further application will be required in order to enable these hours to continue".

13 Despite this recommendation the council refused the application on 9 December 2008 for the following reasons:

The likely negative impact on the amenity of the locality.
The occurrence of antisocial behaviour in the vicinity of the premises previously when this business operated for extended hours.
The concerns of Hawkesbury Local Area Command Of the NSW Police that increased incidence of malicious damage, assaults and drink-driving foreseeable.
That lack of public transport in the area after midnight.
The absence of evidence of tourist demand for such facilities after midnight. The proposed "no entry after midnight" restriction would preclude operation as a tourist-focused facility.

14 According to the council's Statement of Facts and Contentions the contentions said to warrant refusal of the application are essentially as follows:

The proposal is generally at odds with the permitted use of the premises, which is as a tourist facility to operate in conjunction with a service station and convenience store.
The extension of trading hours until 3 am will have a negative impact on the amenity of the locality arising from the number and conduct of patrons.
The proposal is neither reasonable nor necessary for the use of the premises as a tourist facility particularly having regard to its potential adverse impact.
The proposal is not in the public interest taking into account the above concerns, additional traffic and the concerns of the NSW Police.

15 In the light of the evidence, the essence of these contentions involves the question of whether the proposed extended trading hours will adversely affect the amenity of the locality especially that of the residents who live nearby.

Substantially the same development?

16 Additionally raised is the issue of whether, for the purposes of s 96(2) of the EPA Act the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

17 In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J in dealing with a modification application adopted a meaning for "substantially" as "essentially or materially or having the same essence". And in Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199 Talbot J held that:

"The extension of the hours of operation alone does not change the inherent character of the development itself. There may be some additional environmental impact but that is a matter to be considered as part of the deliberations on the merits."

18 Taking these findings into account together with my acceptance that the modification application fundamentally involves the extension of trading hours and that this does not change the inherent character of the development as a hotel that will remain substantially the same, I find that the application falls within the ambit of s 96 (2) of the EPA Act.

19 When the hearing began on-site, the parties’ experts and several resident objectors gave evidence. The concerns of the residents are essentially those described above and in essence involve:

The antisocial problems and the criminal behaviour of the past will return if the tavern trades for extended hours and that the police and the hotel's own security will not be able to contain this.
Loud music, antisocial behaviour and vandalism has been occurring as recently as April 2009 and continues to adversely affect residential amenity.

NSW Police evidence

20 Also giving evidence on site on behalf of the New South Wales Police Sgt S. Gagan, the Crime Coordinator, Hawkesbury Local Area Command (Windsor). He explained that the police are concerned about some of the history of the Clarendon Tavern and are generally very concerned about alcohol-related crime and the impact of alcohol on the community.

21 He described how, in 2005, the hotel commenced trading until 3 am on Thursday, Friday and Saturday nights when there was a significant increase in alcohol-related crime, noise complaints and antisocial behaviour. Hotel patrons both inside and outside the premises "were not managed appropriately" and despite negotiations between police and management alcohol-related crime and antisocial behaviour continued resulting in the hotel being ordered to return to operating in accordance with the relevant development consent and liquor licence. This occurred and the level of antisocial behaviour, noise complaints and alcohol-related crime decreased considerably. Police are now rarely called to incidents at the Clarendon Tavern.

22 As for the future Sgt Gagan referred to the NSW's State Plan that sets specific goals of "Keeping People Safe and Building Harmonious Communities" giving responsibility to the NSW Police to reduce rates of crime, particularly violent crime and also to reduce levels of antisocial behaviour including public drunkenness. Relevant measures to achieve these goals included reduced hotel trading hours and "shut-outs" where after a certain hour, no patron admission into the hotel is permitted.

23 Despite the applicant proposing a midnight shut-out he was still concerned that the extended trading hours would be contrary to these initiatives and would increase the risk to the community. This is because the extended trading hours will enable hotel patrons to drink more alcohol, become more intoxicated thus increasing the likelihood of antisocial behaviour and criminal activity. Compounding the problem is the deficiency of local transport, particularly taxis, in the early hours of the morning. As he said:

"There will be brawls, there will be assaults, there will be intoxicated persons causing trouble inside and around the premises. This will increase the more alcohol that is consumed and the longer the Tavern trades. It is fate accompli, it will happen. The best plans and the best security cannot stop these things. The more people drink the more the risk increases." In turn this can and does have adverse indeed devastating effects on the community.

Expert evidence

24 On behalf of the respondent council expert town planning evidence was provided by Miss A McCabe and acoustic evidence by Mr G. Atkins. On behalf of the applicant expert town planning evidence was provided by Mr R Chambers.

Impacts on the amenity of the locality

25 According to the NSW Bureau of Crime Statistics and Research Study-Rules of Engagement: Policing Antisocial Behaviour and Alcohol-Related Violence in and Around Licenced Premises (J. Fleming 2008) one of a number of ways that licenced premises contribute to alcohol-related problems is the availability of late-night licenses, this being in addition to the areas of: irresponsible serving practices; promotion and marketing; and premises layout (P 12). Also, late night licenses can contribute to significant increases in levels of intoxication and incidents of assault essentially because extending licensing hours increases the number of people drinking more for longer, which results in more violence and disorder (p 13).

26 In this context I was referred to statistical evidence that shows that the number of police reported incidents for the Clarendon Tavern in 2005, when the hotel had late-night trading (apparently unlawfully) was 156 incidents including at least one incident involving "large crowds" of patrons. This is to be compared with years 2004, 2006, 2007 and 2008 when the hotel did not have late-night trading (ie had midnight closing) where there were respectively 24, 31, 27 and 20 incidents. This analysis appears to be consistent with at least some of the letters of objection from residents.

27 According to Ms McCabe, any impacts during the "quiet time" after midnight are unacceptable and unreasonable given the remote location of the site and the residents’ reasonable expectation "of enjoying a residential amenity that is relatively undisturbed". She acknowledges that at present all patrons are required to leave the premises at midnight and that there would be a level of disturbance for a period after this time. She also acknowledges that the current proposal would mean less people leaving at midnight "but would extend the impact for a longer period into the early hours of the morning, an impact that doesn’t exist at the moment". In this regard she acknowledged that the majority of patrons would leave the hotel by car, bus or taxi but her main concern was in relation to hotel patrons walking to Windsor or the RAAF base.

28 According to Mr Chambers the revised draft Plan of Management will minimise the prospects for adverse amenity impacts associated with the operation of the hotel including the period after midnight. In his opinion, once the midnight shutout arrangement becomes familiar, impacts from patrons arriving after midnight who cannot gain entry to the hotel would be unlikely. Also the lockout period until 3 am "will result in a more gradual dispersal of patrons. The impacts of the more gradual dispersal of patrons are to be managed to minimise adverse amenity impacts." Also, taking into account the measures contained within the draft Plan of Management and "the physical relationship of the Clarendon Tavern with its surrounds, there is not such a high probability of adverse amenity impacts as to warrant refusal of a trial period" (referring here to the council officers recommendation that a trial period was reasonable in the circumstances).

29 In his submissions on behalf of the applicant, Mr Leggatt argued that approval of the extended hours subject to a trial period would be an appropriate method of determining whether or not these hours are appropriate. He refers here to the decision of Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 599 who recognizes that in certain circumstances a trial period can be considered appropriate and that:

"The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended".

30 Mr Leggatt explained that there would be little or no likelihood of unacceptable adverse effects occurring during the trial period taking into account the following circumstances and the conclusions drawn by Mr Chambers. First the NSW Office of Liquor, Gaining and Racing in its letter dated 8 May 2009, following an inspection of the hotel and interviews with the licensee provided a positive assessment of its operation. Second, since September 2006 the hotel has been run by an experienced management consultant and licensee and during this period there have been no breaches of any conditions of the liquor licence. Third, the acknowledged bad record of the hotel in 2005 (the period of unlawful late-night trading) is attributable to poor management (there was no plan of management) not to the extended trading hours. Fourth the draft Plan of Management has been prepared expressly for the Clarendon Tavern by a highly experienced and highly regarded consultant management company.

31 Mr Leggatt also submitted that it would be unfair to give weight to adverse impacts that arose from unlawful behaviour carried out by a third party as distinct from the present licensee. Also, there has been a significant decrease in noise complaints, alcohol-related crime and associated antisocial behaviour in and around the hotel. He also explained that 12 month trial period would be appropriate to assess the management plan throughout all four seasons and that the existing capacity of the hotel did not need to be varied.

Respondent’s submissions

32 In his submissions on behalf of the council Mr Griffiths raises concerns that the site is unsuitable for a hotel with extended trading hours because it is in a "semi-rural" location and it zoning is Mixed Agriculture. More significantly it is located directly across the road from land that is zoned for and developed with housing and there are no other late-night venues or complimentary uses adjoining. The absence of a buffer zone between the residences and the hotel is a serious deficiency.

33 There is no public transport to cater for departing patrons. According to Mr Atkins noise generated by pedestrians leaving the premises would be audible at the dwellings opposite the site in Hawkesbury Valley Way and this could give rise to levels that could exceed sleep arousal criteria. There have been ongoing complaints about the operation of the hotel during 2008 and 2009.

34 The management plan will be difficult to enforce to the extent that residential amenity will be protected. It is not an excuse to say that past problems simply arise from management inadequacies. Even with a revised management plan and even with the best intentions the problems of the past are likely to be experienced again because of difficulties with the location of the site and enforcement difficulties. In this context the applicant's adverse management history should be taken into account.

35 As concluded above the central issue in this case involves the question of whether the proposed extended trading hours (including the midnight lock-out) will adversely affect the amenity of the locality, especially that of the residents who live nearby. For the reasons that I will shortly give I have concluded that limited extended trading hours may not necessarily so affect the amenity of these residents that a trial period (in the manner anticipated by Spigelman CJ in Zhang) for these hours is warranted, so as to test the applicant's management regime and other proposed measures. In reaching this conclusion I have taken into account the expert evidence, the concerns of the residents and a number of matters as follows:

A hotel is permitted with consent on this isolated Mixed Agricultural zoned site that is surrounded by non-agricultural and non-residential uses apart from, importantly, the dwellings opposite. Also relevant is what I accept as being the satisfactory relationship between the other land uses on the site and the hotel.
The hotel's history that includes an unsatisfactory management regime and adverse impacts on nearby residential amenity. This includes the period of late-night trading in 2005 when a courtesy bus and security guards were utilised and acoustic consultants were involved.
Sgt Gagan's evidence that police are now (with midnight closing) rarely called to incidents at the Clarendon Tavern. The NSW Office of Liquor, Gaining and Racing in its letter dated 8 May 2009, following an inspections and interviews with the licensee have provided a positive assessment of the hotel's operation. Since September 2006 the hotel has been run by an experienced management consultant and licensee and during this period there have been no breaches of any conditions of the liquor licence.

36 Having considered the evidence it has become plain that impacts on the residents who live opposite the site, can come from noise generated by the hotel itself and from the behaviour of departing hotel patrons.

37 In relation to noise generated by the hotel's activities I am satisfied that the various acoustic measures in the proposed conditions of consent (including the management plan) are capable of being complied with to the extent that residential amenity will not be adversely affected. These measures include standard noise conditions, plant noise, location of loudspeakers and acoustic upgrading of doors and windows etc. Also live music/ bands will not perform after midnight nor will microphones or public address systems be utilised. These measures will be able to be tested during the trial period. Their success or otherwise will be an important consideration should the applicant lodge a further modification application.

38 As regards possible impacts associated with patron behaviour when departing the hotel, I understand that most of the patrons will, given the distance of the hotel from the majority of surrounding residential areas, travel by car, utilise the hotel's courtesy bus or travel by taxi. Others will walk to Windsor or to the RAAF base. Because the maximum number of patrons that the hotel's licence permits is not to be increased it can be anticipated that the number of vehicles departing from the hotel will remain substantially the same. Despite this if the late-night trading option becomes popular there may be a tendency for the capacity to be achieved more often. Alternatively with an improved courtesy bus service the actual number of vehicles could be reduced. Relevantly these departures will variously be dispersed over the period until closing rather than around midnight. Assuming lawful behaviour this vehicular traffic should blend in with the normal traffic using Hawkesbury Valley Way and Racecourse Road including the traffic generated by the 24-hour service station.

39 Similarly, in the context of the hotel's capacity, the number of patrons departing the hotel as pedestrians should be little changed, again dispersing over the longer period. In this regard I note the evidence of Sgt Gagan that more alcohol will be able to be consumed during the extra hours and the link between late night trading, intoxication and antisocial behaviour as identified in the Fleming study. I also understand his concerns that "the best plans and management" cannot prevent this inappropriate behaviour from happening. On this basis I have decided that the trial period should be until 2.00 am not 3.00 am as recommended by the council planning officer.

40 Despite these concerns I accept the evidence of Mr Chambers that the proposed management regime together with the more gradual dispersal of patrons should assist in minimising possible adverse amenity impacts. Also, as he explained the patrons walking towards Windsor would most likely use the south side of Hawkesbury Valley Way where there is a bicycle lane thus reducing possible impacts associated with inappropriate patron behaviour on the dwellings on the north side of the road.

41 I am thus satisfied that taking into account the revised management regime as proposed and if this is properly and consistently implemented, the reduced extended hours would, on balance probably not adversely affect the amenity of the locality to a significant extent. In the circumstances I have decided that the applicant should be given an opportunity to prove that this is the case and agree that a 12-month trial period would be appropriate to assess the management plan throughout all four seasons. I also agree with the council planning officer's recommendation that rather than for three nights the trial period should be for two nights (Friday and Saturday). Should the trial period prove to be successful then the council could consider whether a further trial period for three nights and/or until 3 am is warranted.

42 Whilst I have not been persuaded that there is any need to modify the maximum patronage for the extended trading hours (ie 250 persons), this may, (depending upon what happens during the trial period), need to be considered as part of any further modification application. Similarly the hours of operation may also need to be reconsidered. Such a modification application in dealing with these matters may need to take into account changing circumstances and especially the performance of the hotel in seeking to achieve an appropriate balance between the amenity of the residents and the hotel's operations and the behaviour of its clientele. Of course if this cannot be achieved, extended trading hours should not be available

43 Taking all of the above matters into account I have decided to amend the management plan and the conditions (as proposed by the applicant) to allow for extended trading for a trial period as follows:

Late-night trading on Friday and Saturday nights only, until 2 am the following day otherwise trading is to cease at midnight.
The trial period is to be for 12 months after which a further modification application will be required to be submitted to the council.
The bus service is to be available from 11 pm (not midnight) until close of business on Friday and Saturday nights.

rders

44 The orders of the Court are therefore:

___________________

T A Bly

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Pacific Islands Express Pty Ltd v Hawkesbury City Council

Development Consent DA 0341/91

1. Condition No. 28 in Development Consent DA 0341/91 being modified as follows:

28. (a) The hours of operation of the premises are to be restricted as follows:

(i) 5.00 am Friday to 2:00 am Saturday;
(ii) 5:00 am Saturday to 2:00 am Sunday;
(iii) 5.00am - midnight – Monday to Thursday;
(iv) 10.00am - midnight on Sunday,

(b) The hours of operation detailed in (a) above are for a trial period of twelve (12) months from the date of this modified consent notice. A Section 96 application will be required to be submitted to Council prior to the expiration of the twelve (12) month period for the continuation of the hours detailed above.

2. Addition of the following conditions in Development Consent DA 0341/91:

34. The maximum patronage of the tavern, for the place of public entertainment, exclusive of staff, shall not exceed 250 persons.

35. No new patrons are to be given entry to the premises from midnight onwards other than patrons of the premises seeking to re-enter from the designated outdoor smoking area.

36. Security staff are to ensure that patrons of the premises do not loiter or linger in the immediate surrounding area and do not cause noise or other nuisance in the immediate area including car parking areas and adjacent businesses to the site.

37. An appropriate number of Security staff are to be provided to control patron behaviour within the premises, access to the premises and within the vicinity of the site.
38. The Management Plan annexed and Annexure B shall be complied with at all relevant times.

39. Noise emitted from the licensed premise shall comply with the standard noise conditions issued by the OLGR.

a Noise from the Licensed Premises

For the purposes of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licensed premises.

b Noise from mechanical plant installed on the Premises

In accordance with assessment procedures recommended in the DECC, INP modifying factor corrections shall be applied to the source noise to account for tonality, intermittency, etc.

c All speakers shall be removed from the front (Richmond Road frontage) of the Premises.

d No entertainment shall be provided in the courtyard at any time.

e Access to the rear courtyard when entertainment is provided inside the premises shall be via the rear sound lock door arrangement only.

f The sound lock servicing the courtyard shall be reconfigured such that one door is closed at all times.

g All amplified sound equipment installed on the premises shall be installed and operated with sound limiting controllers.

h Access and egress for the Premise between 10.00pm and midnight shall be restricted to the rear door and front door.

i Access and egress for the Premise after midnight shall be restricted to the rear door only.

j Patrons waiting for transport shall not congregate outside the Premises after 10.00pm.

k No patrons shall be permitted to consume beverages provided at the Premises outside the licensed area.

l The fire doors servicing the Premises shall be acoustically upgraded or replaced with a sound lock.

m The fire door shall be fitted with an automatic switch installed to shut off power to the bar lighting if the doors are opened after 10.00pm or when any amplified music is provided within the Premises.

n Prior to occupation of the Premise for the extended hours of trading an acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations have been implemented and effective. A report shall be submitted to Council for approval prior to extending trading hours.

o During the first two weeks of trading an acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations are operating effectively and the level of noise emitted from the Premises satisfies the approval noise conditions. A report shall be submitted to Council to present the findings.

p Within six (6) months of trading a second acoustic audit shall be undertaken by a suitably qualified person (approved by Council) to certify that all noise mitigation recommendations are operating effectively and the level of noise emitted from the Premises satisfies the approval noise conditions. A report shall be submitted to Council to present the findings.

40. There shall be no live music provided on the premises between midnight and 3am.

41 The external semi-enclosed courtyard when used after midnight and before 3am shall be restricted to a maximum of ten (10) persons at any time. No drinking is to occur in this area between these hours.

42. The following additional noise control measures to the hotel shall be carried out:
42.1. The rear courtyard acoustic walls shall be reconfigured and constructed to a height of not less than 3 metres above the finished courtyard level. The maximum height of the courtyard wall shall be no more than 4 metres above existing ground level and its external colours are to be in keeping with the external colours of the hotel building. The wall can be constructed of masonry, lapped and capped timber fencing, clear polycarbonate, modular wall system, cement panelling and timber framework or an acoustic equivalent. Details to be provided to Council for approval prior to extended hours of the hotel commencing.

Acoustic absorption panels to 50% of the internal walls of the semi-enclosed external smoking area shall be provided. These panels are to be 50mm thick 35kg/m2 fibreglass faced with perforated metal, or timber providing an open area of not less than 21%.

42.2. The external semi-enclosed smoking area is to comply with the restrictions and requirements of the Smoke Free Environment Act 2000 and the Smoke Free Environment Regulations 2007.

42.3. Doors, windows and other openings (including the airlock to the smoking area) are to be kept closed except when patrons are leaving the ground floor public bar.

42.4. No speakers or PA systems are to be used in any external areas or the semi-enclosed smoking area between the hours of 12am to 3am, excluding emergencies.

ADVISORY NOTE:

1. The applicant is to ensure that the fire safety provisions applicable to this hotel are met at all times.
2. If there is an inconsistency between the consent conditions and the plan of management then the consent conditions prevail.

Development Consent DA 1325/03

3. Condition No. 19 in Development Consent DA 1325/03 being modified as follows:

19. (a) The hours of operation of the premises are to be restricted as follows:

(i) 5.00 am Friday to 2:00 am Saturday;
(ii) 5:00 am Saturday to 2:00 am Sunday;
(iii) 5.00am - midnight – Monday to Thursday;
(iv) 10.00am - midnight on Sunday,

(b) The hours of operation detailed in (a) above are for a trial period of twelve (12) months from the date of this modified consent notice. A Section 96 application will be required to be submitted to Council prior to the expiration of the twelve (12) month period for the continuation of the hours detailed above.

4. Addition of the following conditions in Development Consent DA 1325/03:

28. The maximum patronage of the tavern, for the place of public entertainment, exclusive of staff, shall not exceed 250 persons.

29. No new patrons are to be given entry to the premises from midnight onwards other than patrons of the premises seeking to re-enter from the designated outdoor smoking area.

30. Security staff are to ensure that patrons of the premises do not loiter or linger in the immediate surrounding area and do not cause noise or other nuisance in the immediate area including car parking areas and adjacent businesses to the site.

31. An appropriate number of Security staff are to be provided to control patron behaviour within the premises, access to the premises and within the vicinity of the site.
32. The Management Plan annexed and Annexure B shall be complied with at all relevant times.

33. Noise emitted from the licensed premise shall comply with the standard noise conditions issued by the OLGR.