The Grazing Goat Investments Pty Ltd v The Council of the City of Sydney

[2016] NSWLEC 1331

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Grazing Goat Investments Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1331
Hearing dates:	7, 8 July 2016
Date of orders:	12 August 2016
Decision date:	12 August 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application D/2015/ for the proposed extension of trading hours to the licensed premises known as “Tudor Hall Hotel”' located at 90 Pitt Street and 116 Redfern Street, Redfern is refused. 3. The exhibits are returned with the exception of exhibit A.
Catchwords:	DEVELOPMENT APPLICATION: extension of trading hours to a licensed premises – whether a suitable location for extended trading hours – potential impact on amenity of residents in the area - unacceptable social impact - public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	The Grazing Goat Investments Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Mr P Clay SC (Respondent)   Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2016/151783
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal is against the refusal of Development Application D/2015/ for the proposed extension of trading hours to the licensed premises known as “Tudor Hall Hotel”' (the Hotel) located at 90 Pitt Street and 116 Redfern Street, Redfern (the site).

2. This development application originally sought approval for extension of trading hours of the gaming room and adjacent inner courtyard from 12 midnight to 4.00 am the following day, Thursdays to Saturdays and for minor alteration works. The applicant now seeks an amendment to the original trading hours for the gaming room and adjacent inner courtyard from 12 midnight to 2.00 am the following day on Thursdays to Saturdays and for minor alteration works for a 12 month trial period. The area is to accommodate a maximum of 38 persons based on the agreed acoustic evidence.

3. The council maintains that the extension of trading hours should be refused because the proposed hours:

• do not comply with the council’s Late Night Trading Management provisions; in that it is not a suitable location for extended trading hours and will likely have an unacceptable impact on amenity of residents in the area,

• will have an unacceptable social impact, and

• are not in the public interest.

The site

4. The site is described as Lot 11 DP 1213228 and is located on the corner of Pitt and Redfern Streets, Redfern. It is generally rectangular in shape and has an area of approximately 442 sq m. The site contains a three storey building with basement cellar (the Pitt Street Building) and a two storey commercial terrace building (the Redfern Street Building). A covered inner courtyard connects the two buildings. An open terrace/beer garden is located on the northern side of the site and is accessed via the covered inner courtyard and the Pitt Street Building. The Redfern Street Building contains a gaming room with bar on the ground floor and meeting room with bar and balcony on the first floor. The Pitt Street Building contains a main bar, a bottle shop and a bistro on the ground floor and hotel rooms on the upper floors.

5. The covered inner courtyard in between the two buildings, has a tiled roof structure over its southern section and a balcony over its central and northern section. This inner courtyard has gates along the Redfern Street frontage. Pedestrian access into the buildings are provided from both Redfern and Pitt Streets although access for the extended hours is restricted to Redfern Street.

Relevant planning controls

6. The site is located in the B2 Local Centre zone under the Sydney Local Environmental Plan 2012 (LEP 2012). Clause 2.2(3) provides that the consent authority must have regard to the zone objectives when determining a development application. The zone objectives are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To allow appropriate residential uses so as to support the vitality of local centres.

7. The land directly adjacent to the site to the east and north-east is zoned R1 General Residential under LEP 2012 and to the south-east, the land is zoned B4 Mixed Use under LEP 2012.

8. Sydney Development Control Plan 2012 (DCP 2012) applies. Section 3.15 Late Night Trading Management provides requirements for licensed premises. The site is also located within the Redfern Estate heritage conservation area (C56) but is not identified as a heritage item. The Redfern Street Building is identified as a neutral building and the Pitt Street Building is identified as a contributory building although no heritage contentions were raised by the council.

Late Night Trading Management provisions

9. The Late Night Trading Management provisions are found in s 3.15 of DCP 2012. The aim of these provisions are “to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and to protect the amenity of existing residential properties” (p 3.15-1).

10. The Hotel is categorised as “Category A - High Impact Premises” in the Definitions to s 3.15. The Hotel is located within a “Local Centre” area for the purposes of s 3.15.2 of DCP 2012. Table 3.7 provides the following trading hours for a Category A premises in a Local Centre area:

• Base hours: 10am to 10pm (Indoor) and 10am to 8pm (Outdoor)

• Extended hours: 10am to 12am (Indoor) and 10am to 10pm (Outdoor)

11. Section 3.15 provides Objectives that state:

(a) Identify appropriate locations and trading hours for late night trading premises.

(b) Ensure that late night trading premises will have minimal adverse impacts

on the amenity of residential or other sensitive land uses.

(c) Ensure that a commitment is made by operators of late night trading

premises to good management through the monitoring and implementation

of robust plans of management.

(d) Encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City.

(e) Encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City.

(f) Encourage a diversity of night-time activity in defined areas.

(g) Prevent the proliferation of poorly managed high impact late night premises.

(h) Ensure that new late night trading premises do not reduce the diversity of retail services in an area.

(i) Ensure that applications are accompanied by sufficient information so that

proposals for late night trading premises can be fully and appropriately assessed.

(j) Provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods.

(k) Encourage premises with extended trading hours that are of a type that do not operate exclusively during late night hours and may be patronised both day and night.

(l) Ensure that appropriate hours are permitted for outdoor trading; and

(m) Ensure a consistent approach to the assessment of applications for

premises seeking late night trading hours

12. The history of approvals on the site is relevant. Since 1993, there have been a number of development applications for the Hotel, however for the purposes of the current application, only Development Consents U93-00870 and U98-01148 have direct relevance.

13. On 8 December 1993, Development Consent U93-00870 was granted for alterations and additions to the Hotel. Condition 2 of this consent relevantly states:

2. 'That the hours of operation of the hotel shall be those specified in the previous hotel licence ie. 5.00 a.m. to 12.00 midnight Mondays to Saturdays and 10.00 a.m. to 10.00 p.m. Sundays;'

14. On 24 February 1999, Development Consent U98-01148 was granted for alterations and additions to the Hotel. Condition 4 of this consent relevantly states:

4. That the hours of operation shall be restricted to between 5.00 a.m. to 12 midnight Monday to Saturday, and 10.00 a.m. to 10.00 p.m. Sundays;

15. The existing approvals are relevant as the Note to s 3.15.1 of DCP 2012 states:

Note: These provisions are not retrospective and do not derogate from existing consents.

16. While the development consents limited operation to 12 midnight, it was disputed that the previous owners of the hotel operated up to 4 am on some nights.

The evidence

17. Expert town planning evidence was provided by Mr Robert Chambers for the applicant and Mr Keith Ng for the council.

18. Mr Chambers states that In the broad array of zones which are adopted by Sydney LEP 2012, the B2 Local Centre zone is one in which many reasonable people would expect to be able to avail themselves of the services of, and facilities generally found in, a hotel; including a hotel which trades after midnight. The location of the Hotel in a B2 Local Centre zone, in an inner-metropolitan setting, on a main street, in the "Global Economic Corridor" of Sydney and (centrally) in the Redfern-Waterloo Growth Centre should be a sufficient strategic basis to warrant flexibility on a case-by-case basis in the 12 midnight closing time dictated by the Late Night Trading Management provisions in DCP 2012.

19. Mr Chambers maintains that the flexibility that is intended to characterise DCP's generally, in accordance with s 79C(3A) of the Environmental Planning and Assessment Act 1979 (EPA Act) is being unreasonably denied by the council particularly having regard to:

• introduction to the Hotel as a whole, and for all of the trading hours of the Hotel, required compliance with a Plan of Management,

• the relatively limited extent of the part of the Hotel in which the proposed extended trading hours will be conducted,

• the location of the entry to, and exit from, the above-mentioned part of the Hotel, being off the main street as opposed to a residential street,

• the ameliorative acoustic measures which are proposed,

• the experience of the operator, and

• the absence of complaints on amenity or other grounds during the period that the premises have traded the hours for which consent is now sought.

20. These circumstances, coupled with the imposition of a one year trial period on any approval that might be granted, are sufficient to ensure that the probability of adverse amenity impacts arising are not so great as to warrant refusal of the application.

21. Furthermore, if the objectives set out in s 3.15 of DCP 2012 were to be read in a context where such flexibility might be afforded, then the council would not be able to assert the same degree of inconsistency with the objectives that it currently does. Absent the consistency with the trading hour restrictions, Mr Chambers maintains that the proposal is generally consistent with the objectives in s 3.15 of DCP 2012.

22. Mr Ng states that the proposal does not comply with objective (a) in s 3.15.3(1) as the Hotel is not in a location where late night trading hours beyond 12 midnight for Category A premises are appropriate. The Hotel is located in a Local Centre area adjacent to residential uses. Certain late night trading hours may be acceptable or appropriate in this neighbourhood and s 3.15 does allow for well-managed venues to operate constrained late night trading hours, subject to conditions. However, Mr Ng is of the view that there are more appropriate locations for well-managed hotels to operate late night trading hours beyond 12 midnight in Late Night Management and City Living areas and possibly areas not adjacent to residential or other sensitive uses.

23. The proposal does not comply with objective (b) according to Mr Ng. The operator has not demonstrated that the proposal will have minimal impact on the amenity of surrounding residential uses. Although there may be means to manage some of the detrimental amenity impacts associated with late night trading beyond 12 midnight for a hotel in the subject location, such measures will not effectively "manage out" all significant adverse impacts. As persons travel to and from the premises or as patrons congregate outside or near the premises, the proposal will cause significant amenity impacts, including:

• potential noise disturbances from loud conversation amongst patron groups, patrons calling out to each other or to others, patrons' cars starting,

• potential noise disturbances occurring as a result of patrons being ejected from the premises due to their level of intoxication or other reasons,

• external noise disturbances associated with intoxicated persons travelling to the premises, who are denied entry by security due to their intoxicated state or for other reasons, and

• anti-social behavior, although such behaviour may not be frequent or regular, the proposed increase in hours will also increase the likelihood of anti-social behavior.

24. The amenity impacts associated with the proposal are not restricted to the maximum 38 patrons within the premises after 12 midnight. The potential impact must also include those persons attracted to and leaving the premises. It is not unreasonable to conclude that there will likely be significant amenity impacts on neighbouring residences at closing time at 2.00 am when 38 persons leave the premises at the same time.

25. Mr Ng states that the proposal does not comply with objective (c). The commitment to demonstrating good management of the subject premises was not demonstrated by the previous operators, particularly given that they allegedly traded beyond 12 midnight in contravention of their development consent and erected an unauthorised banner indicating that their trading hours include until 4.00 am on Thursdays, Fridays and Saturdays. The current operator has failed to adequately demonstrate a commitment to good management by keeping the unauthorised banner up and contravening the premises' development consents in a number of areas including the use of the first floor meeting room as a space for comedy nights, using the premises for live music and using the first floor deck as an outdoor dining area.

26. The proposal does not comply with objective (m), according to Mr Ng as there has been a consistent approach to the assessment of applications concerning late night trading hours in Redfern by council where the hours in Table 3.7 have been enforced and which has resulted in no approvals being granted for extended trading beyond 12 midnight for venues along Redfern Street.

27. The proposal has the potential to set an undesirable precedent and will encourage many other similar venues within the vicinity to seek trading hours outside those recommended by s 3.15. Mr Ng concludes by stating that the impact of approving this application is not restricted to permitting a venue with a capacity of only 38 persons to trade beyond midnight for three nights per week. The potential precedent it creates has a far greater impact on the neighbourhood. Given that late night trading hours are a privilege and considering that the premises does not comply with the objectives of s 3.15, the proposed extended hours beyond the hours set out in Table 3.7 should not be supported.

Findings

28. In considering the different evidence from Mr Chambers and Mr Ng, I agree with the conclusions of Mr Ng but not for all the reasons he stated. The Late Night Trading Management provisions in s 3.15 of DCP 2012 should be regarded in the same manner as other DCP provisions (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [83]-[92], Zhang v Canterbury City Council [2001] 115 LGERA 373 at [75] and s 79C(3A) of the EPA Act). Care needs to be taken that the DCP provisions in s 3.15 are not raised to a level above that normally afforded a DCP by strict reliance on the trading hours in this section. In this case, s 3.15 does not make provision for trading hours beyond 12 midnight (being the “Extended Hours”’ for a Category A premises in a Local Centre area) however this does not mean that trading hours beyond 12 midnight cannot be considered and approved, if found acceptable.. Consistent with other variations to any DCP requirement, the merits of any such variation would need to be assessed. Mr Chambers and Mr Ng did this assessment through the objectives in s 3.15 but with different conclusions.

29. In my view, there a number of factors that militate against the approval of the extended hours even though I accept that the matters raised by Mr Chambers, such as a plan of management, the limited area used for the extended trading hours, the maximum number of patrons and the ameliorative acoustic measures were positive aspects of the extended hours. The factors that outweigh these matters relate to potential amenity impacts on nearby residential properties.

30. While Mr Chambers maintains that the B2 Local Centre zone is one in which people would expect to be able to have access to a hotel, including a hotel which trades after midnight; I do not accept that this to be necessarily correct. The B2 Local Centre zone is a zone that has an objective that seeks “to allow appropriate residential uses so as to support the vitality of local centres”. The zoning table allows a range of residential development in the B2 zone. In my view, the majority of people would, not unreasonably, expect a level of amenity after 12 midnight that reflects residential use of the area around the Hotel. Not necessarily the same level of amenity achieved in a low density zone in Ku-ring-gai but nonetheless a level of amenity commensurate with a zone that anticipates a range of residential development in an inner city location.

31. The proximity of residential development to the site was observed on the site inspection. The zoning map indicates the properties on the opposite side of Pitt Street (on both sides of Redfern Street) are zoned R1 General Residential and B4 Mixed Use. The R1 zone has objectives that focus on the residential use of the land and the B4 zone seeks to integrate suitable business, office, residential, retail and other development. The land directly to the north in Pitt Street is within the B2 Local Centre zone but is used, in part, for residential use. The land opposite the site in Redfern Street within the B2 Local Centre zone has been recently redeveloped for residential use, above street level.

32. Even accepting that the acoustic environment within the premises can be addressed and that the appropriate noise goals can be achieved, I agree with the evidence of Mr Ng that the extended hours raise the potential for disturbance to the residential amenity of the area when patrons leave the hotel after 12 midnight even though it would be unlikely that, as suggested by Mr Ng, all 38 patrons would leave the site at the same time.

33. When combined with the absence of any other licensed premises (or any premises in general), that trade beyond 12 midnight in the area, I do not accept that a likely, if infrequent, burden of disturbance after 12 midnight should be placed on the existing and future residents near the site.

34. I am also mindful that the question of precedent could be validly argued for an extension of hours beyond 12 midnight for other premises in the area given that there are no special or particular qualities of this application that would distinguish it from other applications that may be lodged for a similar extension of trading hours. I note that the social planning evidence indicates 9 hotels within 500 m (including the Hotel) and 34 hotels within 1km of the site.

35. I find that the proposed extension of trading hours is in conflict with objective (a) in s 3.15, in that it is not an appropriate location for the trading hours sought and is in conflict with objective (b) in that the proposed trading hours are likely to have an unacceptable impact on the amenity of existing and future residents near the site.

28. The general contention raised by the council on public interest is addressed in the preceding paragraphs on the Late Night Trading Management provisions in s 3.15 of DCP 2012.

Social impact

The evidence

37. Expert social planning evidence was provided by Associate Professor Roberta Ryan for the applicant and Dr Judith Stubbs for the council.

38. Dr Stubbs states that the location of the hotel has demographic characteristics that indicate a high level of vulnerability to increased alcohol-related harm. These includes pockets of extreme disadvantage in a number of small areas that rank them in the bottom 1% of most disadvantaged areas in the State, and very high rates of public housing, indigenous and other vulnerable groups. Increased harm above a base rate would be expected in this demographic context, including elevated levels of alcohol abuse and health related impacts; increased levels of problem gambling with indirect impacts related to alcohol abuse and safety; increased amenity impacts including related to malicious damage and drunkenness; and increased levels of domestic and non-domestic violence.

39. Dr Stubbs states that the crime context is also highly unfavourable, with the hotel located in a major hotspot for alcohol-related domestic violence, alcohol-related non-domestic assault, malicious damage, and alcohol-related robbery. Redfern suburb has almost 3 times the NSW rate of alcohol-related domestic assault. There appears to be evidence that a range of policy measures introduced since 2009 by State and local government are having some effect, with a real reduction in alcohol-related assault and alcohol-related robbery positive in this regard. However, the continuing very high rates of alcohol-related crime in the locality indicate a need for extended hours for any hotels.

40. Dr Stubbs also finds that there is a very high density of hotels in Redfern suburb (3.4 times the NSW rate), as well as the clustering of hotels (9 within 500 m including the Hotel and 34 hotels within 1km). This density and clustering assists in explaining the rates of crime in Redfern, although demography is also likely to be interacting with density to create such very high crime rates in the locality. Again, this is highly unfavourable to any increase in temporal alcohol access, and the cumulative impacts that could be occasioned by the setting of a precedent in this zone.

41. Also, Dr Stubbs notes that there are a wide range of sensitive uses in the locality in close proximity of the subject hotel, including health and welfare services likely to attract the most vulnerable in the community; and residential uses adjoining and close to the premises that report existing problems with violence and amenity, and express reasonable concerns about a continuation or worsening of these issues.

42. Associate Professor Ryan notes that the Redfern suburb has a lower rate of hotel licenses per 1,000 residents compared to the City of Sydney LGA and other similar town centre areas of Surry Hills and Darlinghurst. The density indicator of hotels within Redfern of 1.2 per 1,000 residents is not viewed as a risk factor in this context, given the overall rate of hotel licenses within the Redfern suburb is lower than that of the threshold identified by NSW Bureau of Crime and Statistics and Research (BOCSAR) research of 2.0 per 1,000 residents.

43. As the hotel has been operating until 4am for at least the past 18 years, Associate Professor Ryan believes that reducing the closing time to 2 am will not increase adverse social impact and that the application submitted is seeking to confirm these long-established trading hours, and in fact potentially reduce them. The proposed 2 am closing time is also strengthened by an improved Plan of Management that supports good management and increased acoustic measures to contain noise impact.

44. The extended trading hours do not constitute an additional hotel license and the hotel has operated beyond the proposed 2 am closing time for many years. The proposed hours of operation would not be a specific cause or factor to exacerbate nor increase alcohol related harm according to available research and previous hours of operation to 4 am and therefore not creating precedent.

Findings

45. Associate Professor Ryan and Dr Stubbs disagree on the social impact. Essentially, Dr Stubbs relies on the demographic characteristics, crime statistics and density of hotels in the area as reasons not to support the application whereas Associate Professor Ryan places greater emphasis on the limited extended operating hours and the fact that the hotel has operated until 4 am for the last 18 years to conclude that the extended hours are acceptable.

46. In considering the different approaches, and accepting that the demographic characteristics, crime statistics and density of hotels in the area can be valid indicators of increased alcohol-related harm, I am satisfied that the social impact of the extended hours would not have a measurable impact on the existing social environment. I agree with Associate Professor Ryan that it would be a different question that would need to be answered if the application sought approval for a new licensed premises rather than an extension of hours for an existing premises.

47. I have also not given any weight to the previous operations at the hotel that extended beyond 12 midnight. Even putting aside that these hours were beyond the approved 12 midnight trading hours, no evidence was provided that could be used as a comparison with that proposed in this application. While there seems no doubt that the previous operator of the hotel operated beyond 12 midnight; no details were provided the days that these hours operated, the areas of the hotel that were operating and the number of patrons after 12 midnight. Associate Professor Ryan indicated in her evidence that the hotel had operated for 18 years beyond 12 midnight although no evidence was produced to confirm this.

48. I am satisfied that any social impact brought about by the proposed extended trading hours would not be a reason to refuse the application.

Orders

49. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2015/ for the proposed extension of trading hours to the licensed premises known as “Tudor Hall Hotel”' located at 90 Pitt and 116 Redfern Streets, Redfern is refused.

3. The exhibits are returned with the exception of exhibit A.

_________________

G T Brown

Commissioner of the Court

Decision last updated: 12 August 2016