Powerhouse Corporation v Kogarah Council

[2009] NSWLEC 1025

Land and Environment Court

of New South Wales

CITATION:	Powerhouse Corporation v Kogarah Council [2009] NSWLEC 1025
PARTIES:	APPLICANT Powerhouse Corporation Pty Limited RESPONDENT Kogarah Council
FILE NUMBER(S):	10524 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- extension of hotel trading hours - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Zhang v Canterbury City Council [2001] 115 LGERA 373
DATES OF HEARING:	27, 28/01/09
DATE OF JUDGMENT:	6 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS HPL Lawyers RESPONDENT Mr A Pickles, barrister SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 February 2009

10524 of 2008 Powerhouse Corporation Pty Limited v Kogarah Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Kogarah Council (the council) of Development Application DA 127/2008 to amend the trading hours of the Kings Head Tavern (the hotel) located at 801A King Georges Road (the site), on the corner with Connells Point Road, South Hurstville.

2 The issues raised by the council relate principally to the potential impact on the amenity of nearby residential properties by way of noise generated from within the hotel, noise generated by patrons entering and leaving the hotel and the use of on street parking.

The site and surrounding area

3 The site is Lots 2, 3 and 4 in DP 301390. The site contains a 2-storey Inter War Hotel in the Georgian Revivalist Style constructed around 1929 and located largely on the King Georges Road and Connells Point Road Street alignments. A beer garden area is located at the rear of the hotel and a detached double garage is located near the western corner. The remainder of the site is sealed and used as a car park with access from Connells Point Road and exiting to King Georges Road. The proposed development does not propose any changes to the current layout of the hotel apart from some adjustment of the car parking spaces to provide for 15 car parking spaces.

4 The site forms part of a local business centre with strip commercial development along King Georges Road and Connells Point Road. A private car park associated with a shopping development is located directly to the south-west of the hotel and adjoins a service station, more car parking and a number of specialty shops. Further car parking associated with the shopping development is located to the west and adjoins a Franklins supermarket and a McDonald's restaurant. On the opposite side of Connells Point Road (at the corner of King Georges Road) is a 5-storey mixed residential/commercial development and further to the south is the South Hurstville RSL Club and some limited retail activities. Medium density residential development is located approximately 60 m from the hotel in a north-eastern and south-western direction.

The proposal

5 The hotel has been the subject of a number of development applications and approvals over its history and these are set out in the council’s Statement of Facts and Contentions. The relevant condition for the purposes of this appeal is condition 2 in the council's determination of Development Application D/2002/644 on 29 October 2003. The condition states:

2. The hours of operation shall be limited to the following:
Monday to Saturday 5.00 a.m. to 2.00 a.m.
Sundays 10.00 a.m. to 12 midnight

6 The proposal is to change the hours of operation to:

Ground floor (whole)
Monday to Thursday 10.00 a.m. to 2.00 a.m. the following day
Friday and Saturday 10.00 a.m. to 2.00 a.m. the following day
Sundays 10.00 a.m. to midnight

Ground floor (part)
Monday to Thursday 10.00 a.m. to 4.00 a.m. the following day
Friday and Saturday 10.00 a.m. to 6.00 a.m. the following day
Sundays 10.00 a.m. to midnight

7 The effect of the proposed amendments is to extend the hours of operation for part of the hotel from 2.00 a.m. to 4.00 a.m. on Monday to Thursday and from 2.00 a.m. to 6.00 a.m. on Friday and Saturday. The opening times will be reduced from 5.00 a.m. to 10.00 a.m. on Monday to Saturday. Sunday trading times are unchanged.

8 The area of the hotel identified as "Ground floor (part)" to be used for the extended hours of operation is shown on a plan (Exhibit F) together with the maximum number of patrons. The areas and maximum number of patrons are:

• public bar - 75 patrons,
• gaming room - 30 patrons,
• covered beer garden - 20 patrons, and
• beer garden - 25 patrons.

9 A Draft Plan of Management accompanies the application. The relevant parts of this document are:

• no patrons to be admitted after 4.00 a.m. on Friday and Saturday,
• live entertainment is limited to 6.00 p.m. to midnight on Monday to Friday and midnight on Saturday and Sunday,
• a limit of 150 patrons from 2. 00 a.m.,
• prescriptive noise goals,
• controls on the number of patrons,
• at peak times, at least one to two security staff with one security guard situated outside the main door and a second guard required (Friday Saturday) to roam the ground floor, first floor and immediate vicinity,
• after midnight, a guard will patrol the surrounding area of the hotel to ensure that patrons leave in a quiet and orderly fashion,
• on Friday and Saturday, one guard will begin at 10.00 p.m. with an additional guard to begin at midnight until required, and
• when entertainment is provided there will be a minimum one security guard per 100 patrons.

10 The applicant offers the extended hours as a 12-month trial period.

Relevant planning controls

11 The site is zoned Business 3(a) – Business (Local Centre) under Kogarah Local Environmental Plan 1998 (LEP 1998). Hotels are a permissible use within this zone with consent. There are no provisions in LEP 1998 or any development control plans that are relevant to the issues raised by the council.

The evidence

12 The principal issue in the appeal is the likely impact on nearby residential properties. This involves a consideration of acoustic, traffic and parking and more general town planning issues. Expert evidence from both parties was provided for each of these areas as well as from the Police. Additionly, evidence from a number of local residents was taken on the site view. The Court also had the benefit of the submissions provided to the council when the development application was advertised.

Acoustic evidence

13 Mr Neil Gross provided evidence for the council and Mr Steven Cooper provided evidence for the applicant. Mr Cooper and Mr Gross disagree on the appropriate sound power level for patrons voice levels in the covered and outdoor beer garden and whether the sleep disturbance criteria are satisfied for the townhouse at 5/67-73 Connells Point Road. The source of noise for this property is from vehicles using 7 car parking spaces within the existing shopping centre car park adjoining the side boundary of the townhouse. A coloured aluminium fence is located on part of the common boundary with the remaining length unfenced.

14 Mr Gross states that the adopted sound power level for the beer garden is too low for background music and up to 45 patrons. He adopts a sound power level of 94dBA based on his measurements at the Winston Hill Hotel for a "lively" beer garden. This needs to be compared to 85dBA for just people and 86dBA for people and music adopted by Mr Cooper. To provide suitable sound power levels, Mr Gross would require limitations on the number of patrons and restrictions on music, alcohol and congregation of patrons.

15 To achieve the appropriate sleep disturbance criteria, Mr Gross states that a 2.4 m barrier along the common boundary between the townhouse and the car park is required. While the traffic report indicates that the applicant does not rely upon the shopping centre car park, it is clear that patrons use this car park will walk through the existing gap in the fence to access the hotel. For this reason, a barrier is warranted as the use of the car park needs to be considered particularly as the application allows for more people to arrive and leave after midnight.

16 Mr Cooper states that the outdoor areas of the hotel operate as an outdoor smoking terrace with some drinking. He disputes Mr Gross’s comparison with a "lively" beer garden. Mr Cooper does not accept that a maximum of 20 people in the covered beer garden and 25 people in the outdoor beer garden constitutes a "lively" beer garden. He states that the extended period from 2.00 a.m. to 6.00 a.m. will provide only a slight increase in the number of patrons than currently exists but the characteristics of the hotel will not change. There is no entertainment after midnight so there is no reason for a dramatic increase in patronage.

17 In relation to the satisfaction of appropriate sleep disturbance criteria, Mr Cooper relies on the traffic report that states that the car park is not to be used for the development application and as such no extension of the fence on the common boundary is required.

Traffic/parking evidence

18 Mr Craig McLaren provided evidence for the council and Mr John Coady provided evidence for the applicant. Based on the 316 sq m of floor area to be used for the extended trading hours, a maximum patron level of 150 persons, a typical patron car driver rate of around 20%, a maximum workforce of 5 persons and 15 on-site car parking spaces, Mr McLaren and Mr Coady estimate there is no deficit parking for the proposed trading hours for 50 persons however for 100 persons there will be deficit of 8 spaces and for 150 persons there will be a deficit of 18 spaces.

19 Mr McLaren and Mr Coady accept that it is appropriate to assess the car parking requirements on 150 persons although Mr Coady states it is unlikely that this number of patrons will visit the site. Each expert adopts a similar approach to address the deficit car parking spaces. Both use on-street parking to address the deficit however Mr McLaren limits on-street parking to those spaces, which are not located along the frontage of any residential property. This limits the available on-street parking and would require a condition restricting the maximum patrons to 90 persons and suitable security personnel patrols being implemented under a Plan of Management.

20 Mr Coady disagrees with Mr McLaren in restricting car parking in front of residential dwellings. He states that car parking in King Georges Road, Connells Point Road and the northern end of Greenacre Road is acceptable. Mr Coady also states that the public car park of Allen Street can be used to accommodate any excess parking.

Town planning evidence

21 Ms Allison McCabe provided evidence for the council and Mr James Lidis provided evidence for the applicant. Ms McCabe states that the extended hours of operation are more typically found in commercial/entertainment precincts rather than a local centre. Notwithstanding the proposed mitigation/management measures, the extended hours and additional capacity will have an unacceptable and unreasonable impact on residents. The level of public opposition suggests that the existing hotel operation currently impacts on adjoining residential properties. Ms McCabe states that the extended hours would result in a more intensive use of the hotel by providing the opportunity for more people over longer hours to congregate thereby creating additional amenity impacts from patrons entering and leaving the premises at later hours, increased potential for anti-social behaviour and potential congregation of patrons on the footpath.

22 Mr Lidis states that the maximum 150 patrons are within the existing capacity of the hotel and this number of patrons can use the hotel up to 2.00 a.m. under the existing consent. There is little to attract patrons from other venues to the hotel after 2.00 a.m. except those persons interested in a quick drink or to play the gaming machines. Those looking for entertainment will access other premises in the Hurstville CBD.

23 While there is the potential for amenity impacts, Mr Lidis states the proposed noise and security measures, the current management practice of the hotel, the fact that the hours are for a trial period and the small number of patrons likely to be arriving and departing at the same time leads to a conclusion that the proposal is not likely to have any significant adverse demonstrable impacts, subject to the imposition of conditions. Mr Lidis further states that there is no record of objection held by the council on the operation of the hotel.

Police evidence

24 Sergeant Kelvin O’Reilly from the Redfern Local Area Command provided a statement opposing the proposed extension of hours. Sergeant O'Reilly was previously the Licensing Coordinator for the hotel when stationed at the Hurstville Local Area Command. He states that there is a likelihood that there would be increased pedestrian traffic on the surrounding streets in the early hours of the morning which may well provide an increase in the number of "soft targets" for criminals, particularly assaults and robberies. Attached to his statement is a summary of enquiries made through the Computerised Operational Policing System (COPS) since 23 October 2006 that are linked to the hotel.

Resident evidence

25 The following residents and interested parties provided oral evidence on the site on the morning of the first day of the hearing:

• Mr Graham Young,
• Mr Jim Colquhoun,
• The Reverend Chris Albany,
• Ms Patricia Dolan,
• Mr Raymond North,
• Mr Philip pike,
• Ms Melanie Roe,
• Mr John Forrest,
• Mr Niel Scholsz, and
• Mr Warren McDonald.

26 The main areas of concern are:

• the hours of operation are not appropriate for a local centre,
• the existing operation creates unacceptable noise and will be exacerbated by the proposed extended hours,
• there will be additional anti-social behaviour, including damage to property,
• a trial period is not appropriate, and
• additional facilities for alcohol consumption and gambling should be discouraged in the wider public interest

27 The advertising of the development application by the council resulted in 103 submissions including 2 petitions of 1501 signatures and 155 pro-forma letters. A further submission from Mr Rex Merten was received after the hearing concluded and as such was not considered.

Findings
How should amenity be considered?

28 In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) Lloyd J made the following relevant comments on amenity:

61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.

62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).

63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that “... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]” (see also Dixon at [48]).

29 The decision in New Century Developments makes the following points on amenity:

• there is room for opinions to differ in weighing the same objective criteria,
• evidence on amenity impacts must be objectively assessed before a finding can be made of an adverse effect on the amenity of the area,
• little, if any, weight can be given to amenity impacts if there is no objective, specific, concrete, observable likely consequence,
• a fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact, and
• a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development.

What is the amenity of the area likely to be affected?

30 The South Hurstville local business centre extends along King Georges Road and Connells Point Road from the intersection of these two roads. Medium density residential development generally adjoins the business centre with single dwelling residential development being the predominant form of development with increasing distance from the centre. The amenity of these residential areas are affected by noise and traffic from King Georges Road and to a lesser extent Connells Point Road and some activities within the business centre. The main activities in the business centre that are likely to affect the amenity of the adjoining residential area are the hotel and the South Hurstville RSL Club. The hotel currently ceases operations at 2.00 a.m. and the RSL club at 1.00 a.m. A pizza shop, located diagonally opposite the hotel, operates at similar hours to the hotel.

31 The amenity of the residential properties near the centre is affected by their location on relatively busy roads and the operation of the hotel and the RSL Club. Because of these factors, it would be unreasonable to expect a level of amenity similar to that expected in a residential area that consisted predominantly of residential development. It would be reasonable to expect higher levels of amenity with the increasing distance from the centre.

32 Many of the residents who gave evidence at the hearing and who provided letters to the council spoke of the adverse impact of activities associated with the commercial centre on their amenity. Impacts such as noise and unacceptable behaviour early in the morning and damage to property were common concerns from the residents who resided close to the business centre and also at a greater distance from the centre. Specific occurrences of these impacts were provided by some who provided oral evidence to the Court and in many of the submissions provided to the council.

What is the likely affect on the amenity of the area?

33 In considering the evidence of the experts and local residents I can comfortably conclude that the proposed extended trading hours will likely have an unacceptable impact on the amenity of the adjoining residential area from number of reasons. First, I generally agree with the conclusions of Mr Gross that noise emanating from the uncovered outdoor area is more akin to a "lively" beer garden rather than a smoking area where the patrons are more transitory and infrequent. In coming to this conclusion, I accept that there are potential ways of addressing the noise from this area and if this was the only matter at issue then it would not be a reason to refuse the application given the distance to the nearest residential property. My understanding of the resident evidence was that the principal concern was not necessarily noise emanating from the hotel but from patrons using the nearby streets when entering and leaving the hotel.

34 Second, the hotel provides inadequate parking on site and that necessitates the use of on-street car parking, particularly early in the morning. While Mr McLaren and Mr Caody adopt the use of on-street parking as a means of addressing the shortfall of parking on site; this has its own negative impacts in this case. The general principle of using unused on-street car parking to address a shortfall on-site is sound except when it is at a time when it is likely that the use of the on-street parking would impact create unacceptable impacts on adjoining properties. In principle, I would adopt the approach by Mr McLaren that parking outside residential properties should be prohibited however this is essentially an academic argument as there is no ability to control the use of on-street parking. Potential patrons of the hotel will simply park in the most convenient location irrespective of whether it adjoins commercial or residential development.

35 This also includes the shopping centre car park located between the hotel and Mr McDonald's property. It is private property but its use is unconstrained (except for the area directly adjoining the service station). While it was suggested that security staff could direct patrons away from the 7 spaces adjoining the townhouse, I have given little weight to this approach because the shopping centre car park is private property and security guards would be trespassing without permission to enter the car park. Also, the ability of a security guard to be available at all times is questionable based on the range of duties for the security guards as set out in the Draft Plan of Management. Even if the directions were given from the public area before entering the shopping centre car park, there is no ability to enforce of any direction given by the security guards.

36 Third, I do not accept that noise generated from patrons entering and leaving the hotel can be adequately controlled. This has added importance because of the hours that any further disturbances are likely to occur is between 2.00 a.m. and 4.00 a.m. on Monday to Thursday and from 2.00 a.m. and 6.00 a.m. on Friday and Saturday. Even though the residential areas surrounding the hotel have a lesser level of amenity than other residential areas, there is no valid reason to further impact on the reduced amenity of these properties. At present, the activities at the hotel cease at 2.00 a.m. so it can be reasonably assumed that after this time there will be no disturbances from patrons of the hotel. This is not an unreasonable expectation for the residential use of land notwithstanding its location near a commercial centre and busy roads.

37 I do not accept that security guards can address all impacts from patrons entering or leaving the hotel. They cannot address spontaneous noisy outbursts from patrons or unacceptable behaviour or noise at locations away from the hotel. The evidence from local residents was clear in that these unacceptable amenity impacts often occur at locations away from the hotel that would be outside the control of security guards. In any event, security guards can only issue directions to patrons to stop certain activities as they have no powers of enforcement. This must be left to the police. It is also likely that even conversations at normal levels could disturb residents because of the low background noise levels in the early hours of the morning.

38 I accept that the impacts identified by local residents in their oral evidence on the site view and the submissions to the council, such as noise and unacceptable behaviour early in the morning and damage to property, are specific and concrete and not a fear or concern without rational or justified foundation. While some of these events could be attributed to patrons from the South Hurstville RSL Club, it would not be reasonable to attribute atleast some of the events to the patrons of the hotel. Given the history of unacceptable events in area surrounding the commercial centre, it is an unescapable conclusion that at least some similar events would occur during the extended operating hours of the hotel. While these events could go largely unnoticed in other areas where there is a greater buffer between licensed premises that operate into the early hours of the morning and residential properties; this is clearly not the case at South Hurstville.

Is a trial period appropriate?

39 The issue of a trial period is addressed in Zhang v Canterbury City Council [2001] 115 LGERA 373, where it relevantly states:

83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker “take into consideration” both the “likely impact of the development” and “the suitability of the site for the development”. It is possible to “take into consideration” matters even though their full significance cannot be known with precision.

84 Where, as in this case, the nature of the development application is for the “use” of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion.

85 The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the “likely impact” or “suitability” will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. 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. The focus is then on “likely impact” during the probationary period.

40 Based on the comments in Zhang, a trial period can be used even though the full significance of matters, required to be considered in the assessment of a development application is not known with precision.

41 In this case, I am satisfied that there is there is no basis for a trial period. There is a fundamental incompatibility with the proposed extended trading hours and the proximity of residential development brought about by the inability to contain any adverse impacts on the site and the inability to address impacts associated with the extended trading hours. In my view, and even considering that the proposal is for the "use" of existing premises, no experimentation of operating conditions would overcome the unsuitability of the site for the proposed hours of operation.

Orders

42 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application DA 127/2008 to amend the trading hours of the Kings Head Tavern located at 801A King Georges Road, South Hurstville is refused.
3. The exhibits are returned.
____________
G T Brown
Commissioner of the Court