Ryan v Marrickville Council - [2007] NSWLEC 27

Land and Environment Court

of New South Wales

CITATION: Ryan v Marrickville Council [2007] NSWLEC 27

PARTIES:
APPLICANT
Joe Ryan
RESPONDENT
Marrickville Council

FILE NUMBER(S): 10664 of 2006

CORAM: Hussey C

KEY ISSUES: Development Application :- s 96 Modification for late night trading hotel, noise, anti social behaviours

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001

CASES CITED: Vinson v Randwick Council [2005] NSWLEC 142

DATES OF HEARING: 28/11/2006 and 29/11/2006

DATE OF JUDGMENT:
25 January 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Young, barrister
Instructed by Mr J. Ryan, solicitor
of Joe Ryan Solicitors
RESPONDENT
Mr M. Wright, barrister
Instructed by Mr G. Christmas, solicitor
Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 January 2007

10664 of 2006 Joe Ryan v Marrickville Council

JUDGMENT
Background.

1 This appeal was lodged against council's refusal of a s96 Modification to confirm extended trading hours until 3a.m. at the Queen Hotel at 167 – 169 Enmore Road, Enmore.

2 The hotel has previously operated with late night trading hours for a 12 month trial period ending 21 December 2005. During this trial period a number of amenity concerns arose, resulting in the following issues being identified for the subject appeal:

disturbances caused by patrons departing the hotel at closing time,

disturbances caused by patrons using the external areas of the hotel,

non-compliance with previous conditions of consent involving noise mitigation measures and the requirement for maintenance of an effective complaints register.

The site.

3 The site is known as 167 - 169 Enmore Rd., Enmore and is described as Lot 1 in DP 557694. It is situated on the northern side of Enmore Rd with rear access from Belmore Lane.

4 The Queen's Hotel is a 2-storey brick building that is situated on the site. It contains various hotel rooms (bars, lounge, billiards, games) and bottle shop on the ground floor, together with an office and accommodation space on the first floor.

5 There is a door off the lounge area, which leads to a side passage giving access to Belmore Lane. Some drinking tables have been placed in this side passage. There is also a rear, partially open terrace/courtyard, accessed through sliding doors from the billiard room.

6 The site is adjoined by commercial development to the east and west along Enmore Road. Residential development is located to the north (at the rear the subject property) on the opposite side of Belmore Lane. There are some dwelling is located on the first floor of the commercial buildings along Enmore Road.

The proposal.

7 This modification of the trading hours is sought to permit;

10 a.m. to 3 a.m. on the following day, Monday to Saturdays, and

10 a.m. to 12 midnight on Sundays and public holiday.

Planning Controls.

a) Marrickville Local Environmental Plan 2001 (LEP). Under this LEP, the site is zoned General Business 3(A) and development for the purpose of a hotel is permissible with consent.

b) Hotel Trading…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 27
Decision Date: 25 January 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Joe Ryan, appealed against the respondent, Marrickville Council's refusal of a s 96 modification to confirm extended trading hours until 3 a.m. at the Queen Hotel at 167-169 Enmore Road, Enmore. The hotel had operated with late-night trading hours for a 12-month trial period ending 21 December 2005. During this period, several amenity concerns arose, resulting in the appeal issues: disturbances caused by patrons departing the hotel at closing time, disturbances caused by patrons using the external areas of the hotel, non-compliance with previous conditions of consent involving noise mitigation measures and the requirement for maintenance of an effective complaints register. The applicant sought to permit the hotel to operate from 10 a.m. to 3 a.m. on Mondays to Saturdays, and 10 a.m. to 12 midnight on Sundays and public holidays. The court had to determine whether the proposed modifications merited approval based on a further trial period of 12 months.

The court considered the evidence and submissions and found that the proposed modifications merited approval on the basis of a further trial period of 12 months. The applicant had implemented a more responsive management system to address the objections, including operating the hotel within the provisions of an updated Plan of Management. The court applied the principles set out in Vinson v Randwick Council [2005] NSWLEC 142 to assess the application for an extension of trading hours. The court found that the building improvement works, including double-glazed windows, securing the side exit door, enforcing the early closure of the sliding door to the terrace area and restricting the side corridor pedestrian use, should contain adverse noise amenity within reasonable levels. The court also found that further conditions were to be imposed regarding limitations on entertainment noise generation levels and the provision of two security guards to undertake reasonable patrols in and around the hotel environs to check antisocial behaviour. The court also found that the provision and maintenance of a satisfactory complaints register to effectively acknowledge complaints and monitor action taken was an appropriate measure.

The court found that the planning/amenity matters could be reasonably covered by the conditions, which included the requirement for two security guards. Other licensing concerns were subject to separate determination. The court found that the modification related to the same development, had been notified and the objections considered, and the proposal now merited conditional approval subject to the provisions of the council's policy. The court made the following orders to allow the extended trading hours, subject to finalisation of the conditions of consent, which required the building upgrading works to be completed prior to the commencement of late-night trading and the provision of an independent noise assessment to ensure that the building works contained noise to the approved levels. The appeal was upheld, approval was granted for the s 96 Modifications to Application No 199901519.04 for alterations to the conditions of consent in accordance with Attachment A, and exhibits may be returned except for 1, 2, 5, 5, 7, 8, C, D and E.

Orders