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 House Policy (Policy) . This policy was adopted on 6 September 2005. It provides that any approval granted for extended hotel trading hours would be limited to a trial period to ensure that the extended trading hours are reviewed and assessed in the light of the performance of the hotel and to ensure that the extended trading hours to not interfere with the amenity of locality. Under this policy, the length of trading periods are as follows:
( i) Initial Application

An application for extended trading hours of a hotel considered suitable for approval would be subject to an initial one (1) year trial period.

Subject to the satisfactory conduct of the hotel premises during that initial trial period, an application for a continuation of the extended trading hours approved in the initial trial period may be granted for trial period of two (2) years.

(iii) Third and Subsequent Applications.

Subject to the satisfactory conduct of the hotel premises during the second (or subsequent) trial period., an application for continuation of the extended trading hours approved in the second (or subsequent) trial period may be granted for a trial period of four (4) years.

The Evidence.

8 The main issue concerns noise disturbance and anti-social behaviour attributed to hotel patrons. The noise aspect was addressed by Mr S. Cooper, an acoustic consultant.

9 Objections to the proposal were made by the Newtown Local Area Police Command, in terms of late night trading on Sundays and anti-social behaviour in the area. Inspector Nimms gave evidence of a number of incidences apparently arising from hotel activities.

10 The hotel owner Mr A Brown provided a statement indicating that during the past few years the hotel has been managed and operated under license and that he was unaware of any disturbances caused by the hotel patrons.

11 A number of objections were also lodged from neighbours about various noise disturbances arising from the hotel. In particular, an objection was lodged by Mr Lu who owns the neighbouring property. His concern was mainly about noise emanating from people travelling, drinking and smoking in the side passageway adjacent to his property.

12 Mr G Mavridis also objected to noise from the hotel and parking issues relating to availability of car spaces and damage to vehicles.

13 For his noise assessment, Mr Cooper undertook a site visit and reviewed an acoustic assessment prepared by Renzo Tonin & Associates. From this, he says that the outstanding issues can be resolved by the completion of noise mitigation measures in the hotel and subsequent compliance with satisfactory conditions of consent.

14 Firstly, Mr Cooper says that the doorway leading to the side passageway on the eastern side of the hotel, adjacent to 165 Enmore Road, should be permanently closed and locked, so as to restrict disturbances arising from the use of this area. Also the windows to the rear of the building to be bricked up or soundproofed with double glazing and permanently closed.

15 Next, the bi-fold glass doors leading to the open terrace at the rear of the billiard room to be closed at midnight Monday to Saturday's and 10 p.m. on Sundays.

16 Mr Cooper also says that there should be consistency with the noise conditions so that the hotel is required to comply with LAB noise criteria. In this regard, he supports the conditions proposed by Renzo Tonin & Associates relating to noise control. In addition to this, Mr Cooper says that conditions should be imposed to control any amplified live or electronic entertainment noise emissions to acceptable levels.

Conclusions.

17 Having considered the evidence, the submissions and undertaken a view I consider the proposed modifications merit approval on the basis of a further trial period for 12 months.

18 It is apparent from the evidence of the applicant that a different and more responsive management system has been put into place to deal with the objections. This includes operating the hotel within the provisions of an updated Plan of Management.

19 I note that councils hotel trading hours Policy allows for a merit based approach for extended trading hours, subject to a series of trial periods. Interestingly however, no hours of operation are identified. But council previously considered the extended trading hours to 3a.m. appropriate for this hotel, and I now accept a further trial is reasonable.

20 In determining this matter, I note the submissions regarding Vinson v Randwick….

In Vinson v Randwick Council [2005] NSWLEC 142 , Moore C set out (at para 12) the general principles applied by Tuor C in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 . He then set out (at para 13) the principles to be applied when assessing applications for an extension of trading hours, increased in permitted patron numbers or additional attractions for licensed premises. He said that the tests to be applied were:

• What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities?
• What measures are in place to address those impacts?
• How are those measures documented?
• Have those measures been successful?
• What additional measures are proposed by the applicant or might otherwise be required?

He also set out, for each point, a range of matters relevant to its consideration.

21 Adopting and applying those principles to the present case, the identified adverse impacts concern noise arising from the premises and from patrons leaving the premises, particularly when returning to their vehicles parked in surrounding residential streets.

22 I am satisfied that the building improvement works involving 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 (except in an emergency as required by the BCA), should contain adverse noise amenity within reasonable levels. Further conditions are to be imposed regarding limitations on entertainment noise generation levels, together with requirements for the provision of 2 security guards to undertake reasonable patrols in and around the hotel environs to check antisocial behaviour.

23 The other measures include the provision and maintenance of a satisfactory complaints register to effectively acknowledge complaints and monitor action taken. In this regard, I have taken into account the police objections and consider that the planning/amenity matters can be reasonably covered by the conditions, which includes the requirement for 2 security guards. Other licensing concerns are subject to separate determination.

24 For these reasons then, I am satisfied that the modification relates to the same development, they have been notified and the objections considered and the proposal now merits conditional approval subject to the provisions of councils Policy. The Court intends to make the following orders to allow the extended trading hours, subject to finalisation of the conditions of consent, which require 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 as the building works contain noise to the approved levels.

Court Orders.

1. The appeal is upheld.
2. Approval is granted for the s 96 Modifications to Application No 199901519.04 for alterations to the conditions of consent in accordance with Attachment A.
3. Exhibits may be returned except for 1, 2, 5, 5, 7, 8, C, D and E.

___________________

R Hussey
Commissioner of the Court
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