Redcape Hotel Group Pty Ltd v Council of the City of Ryde

[2016] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:	Redcape Hotel Group Pty Ltd v Council of the City of Ryde [2016] NSWLEC 1497
Hearing dates:	17-18 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. LDA2015/263 for the construction of a new building containing a hotel on the ground level comprising bar, dining and gaming areas, with three levels of parking over for 45 cars and a rear loading area to be shared by the proposal and the adjoining hotel, is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibits 1 and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION: construction of a new hotel; social impacts within the locality.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112
Category:	Principal judgment
Parties:	Redcape Hotel Group Pty Ltd (Applicant) Council of the City of Ryde (Respondent)
Representation:	Counsel: Mr M. Staunton barrister (Applicant) Mr P. Clay SC (Respondent)   Solicitors: Mills Oakley Lawyers (Applicant) Council of the City of Ryde (Respondent)
File Number(s):	152949 of 2016

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. LDA2015/263 for the construction of a new building, containing a hotel on the ground level, comprising bar and dining areas and gaming areas, with three levels of parking over for 45 cars and a rear loading area to be shared with the adjoining hotel (the proposal), at 111 Rowe Street, Eastwood (the site) by the City of Ryde Council (the Council).

2. The appeal was subject to mandatory conciliation on 12 April 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 May 2016, pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 7 June 2016 for the applicant to rely on an amended proposal.

Issues

3. The Council’s contention in the matter is that the proposal will have unacceptable social impacts within the locality for the following reasons:

• The proposal will result in a cluster of three hotels and a registered club within a 100m radius, increasing the density of hotels in the area, which will increase the likelihood of alcohol related harm within the locality;

• The immediate locality is vulnerable to the exacerbation of such harms noting the vulnerable demography; existing crime hot spots related to non-domestic assault, robbery and malicious damage, centred on existing hotels and the railway station; the proximity of residential uses; and areas of poor surveillance including the railway underpass;

• The deficit in parking to be provided by the proposal will increase the likelihood that hotel patrons will park in surrounding streets, exacerbating amenity and safety impacts in surrounding residential areas including impacts related to drunkenness, anti-social behaviour, violence and noise, nuisance and annoyance; and

• There is likely to be increased migration between premises, including by those who have been excluded from or denied access to other licenced premises in the locality.

4. During the hearing, the applicant amended the Plan of Management (exhibit F) to accord with the agreement of the planning experts. The amended Plan of Management cures the contention raised by the Council regarding an inadequate Plan of Management; however, Mr Clay SC submits that a Plan of Management is unable to address the off-site impacts of the proposal within the locality as its commitments are inevitably ineffective beyond the immediate site.

The site and its context

5. The site is the existing car park of The Eastwood Hotel. The Eastwood Hotel, at 115 Rowe Street, is on the corner of Railway Parade and Rowe Street. The site is to the east of The Eastwood Hotel, on the northern side of Rowe Street. Rowe Street, which forms part of the town centre of Eastwood, contains retail and commercial premises, with some shop-top housing.

6. Eastwood Railway Station is on the western side of Railway Parade.

7. Development approval was recently granted for a new hotel at 75 Rowe Street, ‘Moko’s Heathers Kitchen’ with a patron capacity of 140 people.

8. The Landmark Hotel is at 20 West Parade, Eastwood, on the western side of Eastwood Railway Station and is accessible from the site via a pedestrian underpass. The Eastwood Club is at 6A Hillview Road, Eastwood, to the west of the Landmark Hotel.

The proposal

9. The proposal is for a new hotel, “Red Lantern Hotel”, with pedestrian entry from Rowe Street and a rear entry from Rowe Lane and bar, dining and gaming areas on the ground floor, with three floors of parking for 45 cars over, accessed via a ramp from the rear lane. The proposal includes a loading bay accessed from Rowe Lane to be shared with The Eastwood Hotel.

10. The proposed hours of operation are 10am until midnight Monday to Saturday and 10am until 10pm on Sundays.

11. The maximum number of persons permitted in the building is 220 (condition 5, exhibit E).

12. The proposal will operate in accordance with a Plan of Management (exhibit F).

Planning framework

13. Section 79C of the EPA Act relevantly includes the following:

79C Evaluation

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

14. The site is zoned B4 Mixed Use pursuant to the Ryde Local Environment Plan 2014 (LEP 2014) and the proposal is permissible with consent. The relevant objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

Public submissions

15. Superintendent Duncan of the Ryde Local Area Command of the NSW Police Force provided evidence on site at the commencement of the hearing. The concerns of the police in relation to the proposal can be summarised as:

• The proposal will result in negative social impacts and increasing the number of licensed premises within the area will correlate to an increase in alcohol related crime. Eastwood has a higher incidence of alcohol related crime when compared to other suburbs in the LGA and LAC.

• The site is unsuitable as the premises is located within an alcohol free zone. The proposal does not offer anything that is not already offered close to the site. There are sufficient existing liquor outlets provided in the community.

• The Eastwood Hotel has later trading hours when compared with the proposal and patrons of the proposal will be able to enter The Eastwood Hotel directly after the proposal closes, without having to enter the street and so without RSA [Responsible Service of Alcohol] checks being completed.

• Which premises will be responsible for the security of the area between the two premises?

• The proximity of the two premises will create difficulties for police investigated licensing breaches being able to determine which premises a patron has attended.

• If the proposal is approved, a condition imposing the Plan of Management on the consent is requested.

16. Superintendent Duncan’s objection to the proposal in regard to RSA checks not being completed when patrons of the proposal move premises to The Eastwood Hotel and whether the proposed hotel will be responsible for the security of the area between the two hotels is addressed by the Plan of Management (exhibit F) ‘Security Street Patrol’.

17. Mr Koh provided evidence on site at the commencement of the hearing on behalf of the Korean Chamber of Commerce in Eastwood, Epping & Ryde Inc. His objection to the proposal can be summarised as follows:

• Eastwood is already sufficiently serviced with venues for patrons to enjoy the services of drinking and gambling with gaming machines; and

• There are 60 gaming machines in the area and they have a negative social impact within the Korean community.

18. Mr Koh was informed by Mr Clay SC that the Court is not permitted to refuse development consent for a reason that relates to the operation of approved gaming machines in a hotel.

Expert evidence

19. The Council relied on the social planning expert evidence of Dr Judith Stubbs and the applicant relied on the social planning expert evidence of Associate Professor Roberta Ryan.

20. Evidence on planning issues was provided by Mr Jon Shillito on behalf of the applicant and Mr Jeff Mead on behalf of the Council. The planning experts provided a joint report (exhibit 7) and were not required for cross-examination. Evidence on traffic issues was provided by Mr Paul Corbett on behalf of the applicant and by Mr Daniel Pearse on behalf of the Council. The traffic experts provided a joint report (exhibit 3) and were not required for cross examination.

Consideration

Parking

21. The traffic experts agreed that the proposal, which includes 45 parking spaces (of which 27 spaces are to replace the existing off-street parking provided on the site for the patrons of The Eastwood Hotel), falls short of the parking demand by 16 car parking spaces.

22. The parties agreed that the parking shortfall of 16 car parking space can be addressed by way of a monetary contribution of $574,183.84 towards the provision or improvement of amenities or services, pursuant to s 94 of the EPA Act (condition 32, exhibit E).

23. The Council submits that while the parking contention is cured by the monetary contribution, the short fall of 16 parking spaces will result in those cars being parked on the street, at least until the appropriate infrastructure is provided, and the additional on-street parking will result in amenity impacts on residents in the nearby area.

24. The social planning experts agreed that the deficit in parking spaces on the site will increase the likelihood that hotel patrons will park in surrounding streets, which will increase the likelihood of impacts in the locality related to drunkenness, including anti-social behaviour, violence and noise, nuisance and annoyance.

25. I am satisfied that the provision of an agreed monetary contribution under s 94 of the EPA Act satisfactorily addresses the Council’s contention regarding the short-fall of parking provided on the site. By accepting the monetary contribution, the Council is taking responsibility for the provision of appropriate infrastructure to accommodate the 16 car parking spaces and any interim impacts caused by a delay in the provision of that infrastructure must be dealt with by the Council by providing an appropriate and temporary alternative to the infrastructure.

Social impact

26. The assessment of the likely social impacts of the proposal focuses on the risk of alcohol related harm in the locality. The extent of likely social impacts and whether the proposal adequately mitigates those impacts is the only dispute between the parties. Past decisions of the Court and appellate courts have established a framework for considering social impacts resulting from alcohol related harm in relation to a proposal for a liquor outlet. Those decisions reveal the following principles that may assist in determining the relevant considerations for likely social impacts of a proposed development for a liquor outlet within a locality:

• Section 79C(1)(b) of the EPA Act requires the Court to consider "the likely impacts of that development, including ... social … impacts in the locality", where the reference to "likely" impacts means "a real chance or possibility": (Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 at [46]).

• “Locality” in s 79C(1)(b) is not defined in the EPA Act and is a question of fact; the identification of what constitutes a relevant impact in a particular case and what constitutes the appropriate locality within which to consider the impact is for the consent authority to determine, subject to identifiable outer limits of connotation (Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 199 at [42]). The locality should be confined so as to enable a meaningful consideration of the impacts of the addition of the proposed development (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [68]). Experts in matters before the Court have often identified a primary and secondary locality.

• Whether the location of the site, such as on a main road, makes it accessible to a wide area and consequently broadens the patronage of the proposal (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [96] and Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [71]).

• Weight must be given to the zoning in the resolution of a dispute as to the appropriate development of any site, although the fact that a particular use is permissible may be a neutral factor (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117]) As liquor outlets are a legal land use, some degree of impact is consequently deemed to be acceptable by society (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [71] and Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [75]).

• The socio-economic demography of the locality is a relevant consideration because there is generally agreement that the relevant literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [52] and [89], Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [41], Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [66]). The socio-economic characteristics of a locality are established using Australian Bureau of Statistics (ABS) Socio-Economic Indexes for Areas (SEIFA) based on the most recent census data.

• The prevalence of alcohol related crime in the locality is a relevant consideration, including “hot spots” for alcohol related violence as determined by the NSW Bureau of Crime Statistics and Research (BOCSAR). A Crime Prevention through Environmental Design (CPTED) analysis may be appropriate in order to identify crime risk and minimise opportunities for crime.

• The use of academic literature and surveys can be helpful in assessing the likely social impacts of a liquor outlet, however, the provision of evidence should be proportional to the concern raised (Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [65] and [98]).

• The relationship between the type of liquor outlet and the socio-economic demography of the locality may be a relevant consideration (Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [26]) and the relationship between the price of liquor and demand may be a relevant consideration (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [93]).

• The density of liquor outlets in the vicinity of the site is a relevant consideration, including whether the proposal contributes to a cluster of liquor outlets or is within an entertainment precinct, notwithstanding that the density of liquor outlets may be reflective of the zoning where the only zone in which a liquor outlet is a permissible use is within a town centre.

• Whether existing uses in the immediate context of the proposal result in the proposal being inappropriate (Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [42]-[44]).

• The Court, as the consent authority, is not permitted to refuse development consent for a reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or registered club (Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at [41]).

• Whether the identified likely social impacts of the proposal in the locality are able to be adequately mitigated by the management and other strategies proposed.

Locality

27. The experts agreed that the locality, for the purpose of s 79C(1)(b), comprises an immediate locality within 500m to 1000m of the site. The suburb of Eastwood is a secondary locality. I accept their agreement.

Socio-economic character of the locality

Immediate locality

28. According to Dr Stubbs, the demography of the immediate locality has an SEIFA index of relative disadvantage that places the area in the lowest third of areas within NSW and it is in the lower 13th percentile of NSW areas for SEIFA index of economic resources.

29. The immediate locality has a greater proportion of young males when compared to the concentration of young males in the wider Ryde Local Government Area (LGA).

30. The immediate locality has a greater proportion of apartments and a high rate of private rental accommodation when compared to the Ryde LGA.

31. The immediate locality has a high proportion of the population born in China and South Korea when compared to the Ryde LGA and Greater Sydney. A high proportion of the population born overseas does not necessarily indicate an increased vulnerability to alcohol related harm (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [87]).

32. The immediate locality within the 500m radius of the site has a population with a higher level of education when compared to the Ryde LGA.

Secondary locality

33. The experts agreed that within a 1km radius of the site the population is substantially less disadvantaged on average, with a SEIFA disadvantage score in the 59th percentile for NSW, as Eastwood is a relatively advantaged suburb.

34. There is an area extending approximately 1km from the site to the north, towards Epping, which is significantly more disadvantaged than average across a range of indicators. Given the proximity of the area to the north of the site to Macquarie University and coupled with Associate Professor Ryan’s evidence that the area has a higher educational status that average and a significantly higher number of people attending a tertiary educational institution when compared to NSW; I am not convinced that the indicators of disadvantage in this particular area necessarily correlate with increased vulnerability to alcohol related harm.

35. I am satisfied that the risk profile within the locality is not cohesively one of disadvantage which would alone warrant refusal of the application.

The prevalence of alcohol related crime in the locality

36. In relation to the Council’s contention regarding the vulnerability of the locality to the exacerbation of social harms, I accept the evidence of Superintendent Duncan in his letter of objection, sent on behalf of the NSW Police Force, which includes the statement, ‘Police do not dispute the Ryde Local Government Area and Ryde Local Area Command has a lower rate of alcohol related crime than many other Local Government Areas and policing commands within the State of NSW’ (exhibit 2, tab 11). I am satisfied that the proposal will not have a sufficiently deleterious impact on the identified crime ‘hot spots’ in the Eastwood area so as to warrant the refusal of the proposal.

Density of hotels in the locality

37. I accept the agreed evidence of the experts that the addition of another hotel will result in a cluster of hotels; as there will be three hotels within 70m following the recent approval at 75 Rowe Street; there will be four hotels within 200m including the Landmark Hotel; and there is a registered club within 250m of the proposal.

38. The experts agreed that alcohol related impacts are generally experienced closer to licenced premise and the immediate vicinity of the hotel can be adequately managed by the Plan of Management (exhibit F).

39. The experts agreed that there is a high density of pedestrians within the Eastwood Town Centre and railway station and the lighting of the public domain is poor in some areas and there is a lack of footpaths.

40. The experts agreed that the immediate area of the site is busy until approximately 10pm and then becomes considerably quieter. They agreed the proposal will attract more people to the Eastwood town centre in the later part of the evening after 10pm. There will be an increased risk of conflict when patrons of the proposal move to other hotels with later trading hours and increased migration between the hotels is likely due to increased choice.

41. I am satisfied that the agreed Plan of Management (exhibit F) adequately deals with any risks in relation to migration of patrons (to the extent that it can within the immediate vicinity of the site) because the proposed hotel will be responsible for the security of the area between the two hotels and around and within the proposed hotel.

42. The experts agreed that Eastwood currently has a lower density of hotels than NSW and the density would remain lower than NSW if consent is granted to the proposal, with a density of hotels that is less than 2 per 1000 residents. In terms of liquor outlet density and assault incidents, density is positively associated with the rate of assault, controlling for socio-demographic variables (‘The effect of liquor licence concentrations in local areas on rates of assault in New South Wales’ by Neil Donnelly, Patricia Menendez and Nicole Mahoney in Crime and Justice Bulletin Number 181 December 2014 [Donnelly article] exhibit 6). The density of hotels per 1000 population if consent is granted to the proposal places the Ryde LGA within the lowest range for DV assault rate (see Figure 1). The Donnelly article concludes that increases in the density of hotels above 2 per 1000 residents are of greater concern than increases in the density of premises with other types of liquor licence. The experts agreed that while the Donnelly article is comprehensive, it is limited by the fact that the research carried out counted hotels and not patron capacity or sales.

Figure 1 from ‘The effect of liquor licence concentrations in local areas on rates of assault in New South Wales’ by Neil Donnelly, Patricia Menendez and Nicole Mahoney in Crime and Justice Bulletin Number 181 December 2014 (exhibit 6)

43. I accept the agreement of the experts that the density of liquor licences is relatively low in the Ryde LGA, being less than 2 per 1000 residents, and I am satisfied that the clustering of four hotels and a club in the Eastwood town centre is primarily a function of the zoning, as hotels are a permissible use in the B4 zone but not in the nearby R4 and R2 zones, pursuant to LEP 2014.

Conclusion

44. I accept the agreement of the social planning experts that the locality, for the purposes of s 97C(1)(b), comprises an immediate locality within 500m to 1000m of the site and the suburb of Eastwood is a secondary locality.

45. I am satisfied that the risk profile of the locality is not cohesively one of disadvantage, and that the lower than average SEIFA indexes for income, employment and private rentals in some pockets of both the immediate and secondary localities are not reflective of disadvantage that necessarily correlates with increased vulnerability to alcohol related harm, as the indexes may in part be explained by high proportion of university students and non-English speaking residents living in the area.

46. I accept the agreement of the experts that the density of liquor licences is relatively low in the Ryde LGA and I am satisfied that the clustering of four hotels and a club in the Eastwood town centre is primarily a function of the zoning, as hotels are a permissible use in the Eastwood town centre zone but not in the surrounding residential zones. I am satisfied that the density of hotels created by the proposal is acceptable and that any increased risk of social impacts caused by the proposal are adequately mitigated by the agreed management strategies proposed in the Plan of Management (exhibit F), including the limited opening hours of the proposal when compared to existing consents and the presence of security personnel on the site, and because the proposal is well serviced by public transport, both rail and bus.

47. I accept the agreement of the parties that the Plan of Management provides adequate measures to satisfactorily manage the proposed hotel within the immediate vicinity of the site. The Plan of Management (Annexure ‘B’) is imposed on the consent, as it is attached to the conditions of consent (Annexure ‘A’) at condition 111.

Orders

48. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. LDA2015/263 for the construction of a new building containing a hotel on the ground level comprising bar, dining and gaming areas, with three levels of parking over for 45 cars and a rear loading area to be shared by the proposal and the adjoining hotel, is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibits 1 and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

152949.16 - Annexure A (196 KB, pdf)

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Decision last updated: 28 October 2016