Tsang and Lee Architects Pty Ltd v Ashfield Municipal Council

[2007] NSWLEC 133

Land and Environment Court

of New South Wales

CITATION:	Tsang and Lee Architects Pty Ltd v Ashfield Municipal Council [2007] NSWLEC 133
PARTIES:	APPLICANT Tsang and Lee Architects Pty Ltd RESPONDENT Ashfield Municipal Council
FILE NUMBER(S):	10854 and 21222 of 2006
CORAM:	Tuor C
KEY ISSUES:	Development Application :- Place of Public Entertainment Application Continued use as a place for public assembly and a karaoke lounge. Consumption of alcohol without a liquor licence Impact on amenity of the area parking and noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 Ashfield Local Environmental Plan 1995
DATES OF HEARING:	01 and 19 December 2006
DATE OF JUDGMENT:	16 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, Barrister SOLICITORS Christopher Levingston & Associates RESPONDENT Mr A Simpson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

16 March 2007

10854 of 2006 & Tsang & Lee Architects Pty Ltd v
Ashfield Municipal Council

21222 of 2006

JUDGMENT

1 These are two appeals relating to premises at the first floor 283-285 Liverpool Road, Ashfield (the site). Appeal No 10854 of 2006 is against Ashfield Council’s (the council) refusal of a development application (DA 2006.066.1) under the Environmental Planning and Assessment Act1979 (EPA Act) for continued use of the site as a place for public assembly (social gatherings and presentation room) during the day and a karaoke lounge in the evening and night. Appeal No 21222 of 2006 is against the deemed refusal of an application under the Local Government Act1993 (LGA Act) for the continued use of the site as a Place of Public Entertainment (PoPE application).

2 The parties agreed that the appeals could be heard together and that if I were to approve the development application the PoPE application should also be approved, subject to the agreed conditions filed on 21 December 2006.

The site and its context

3 The premises is in the first floor of an existing three storey commercial building which is located on the northern side of Liverpool Road between Fox Lane to the east and Chessell Lane to the west. The ground level is used as a shop and the second level as an Internet and billiard room. Until recently the first floor has been used as a place of public assembly and karaoke lounge by the Applicant but the use has currently ceased. It has an area of about 406 sq m. The building has a total area of about 1200 sq m. The rear of the site is vacant and has access to The Esplanade via a right of way.

4 Development to the east, south and west of the site is predominantly commercial/retail uses. To the immediate north of the site is a two-storey residential flat building.

5 A single storey heritage building is located adjacent to the site at 281 Liverpool Road/ 7 The Esplanade.

The proposal and background

6 Development Application 2003.97 was lodged seeking approval to change the use of the first floor of the existing commercial building for social gathering/presentation room and a karaoke lounge in the evenings. Council approved the application on 22 July 2003 subject to a 12-month trial period.

7 Following the 12-month trail, Development Application 2004.233 was lodged seeking consent for the permanent use of the first floor for the same use. This application included the sale and consumption of alcohol on the premises. Council approved the application on 9 November 2004 subject to a 12-month trial period. A liquor licence was not issued during this period.

8 Both applications limited the hours of operation to Monday to Sunday 10 am to 12:30 am the following day.

9 Section 96 modifications were submitted to both applications. These were both withdrawn, as firstly, a new development application was lodged and secondly the time limited consent had lapsed.

10 The subject application was lodged on 13 April 2006. Council notified the application and two objections were received. The main concerns related to noise and signage. A petition in support of the application signed by 18 businesses in Ashfield was lodged on 29 August 2006. Council refused the application on that day.

11 The application proposes to use the first floor as a place of assembly (social gathering/presentation room) during the day and karaoke lounge in the evening and night. The application proposes the permanent use of the first floor.

12 The proposed hours are 10 am to 1 am (the following day) Monday to Thursday and 10 am to 4 am (the following day) Friday to Sunday. The use of the karaoke lounge will not commence before 6pm each day.

13 The application originally sought approval for the sale and consumption of alcohol but has subsequently been amended to only seek approval for the consumption of alcohol. An application for a Liquor Licence is not being sought.

14 The PoPE application was lodged on 10 April 2006 and at the time of the hearing had not yet been determined by council.

Planning framework

15 The site is zoned 3(a) General Business under Ashfield Local Environmental Plan 1995 (LEP 1995). The proposal is permissible with consent.

16 Ashfield Town Centre Strategy and Development Control Plan applies to the site but does not provide any specific controls that are relevant to the proposal.

The issues

17 The Statement of Issues for appeal No 10854 of 2006 contained four issues. The fire safety issue was not pressed.

18 The remaining issues can be summarised into the key issues of whether the proposal will adversely impact on the amenity of the area.

The evidence

19 The Court visited the site and heard evidence on behalf of the NSW Police which confirmed that the official position of the Police in regard to the application was contained in the letter to Ashfield Council from Sergeant K Moran dated 19 June 2006 (the Police letter). The subsequent letters from police officers were withdrawn as indicated in the letter to council (undated) from the Local Area Commander, D Graham.

20 The official comments of the Police letter are:

Pedestrian traffic around the premises is quite high. Vehicle traffic is also heavy with very limited parking available. The DA states that no parking will be set aside for patrons. This poses an issue with very limited parking within the Ashfield CBD. The DA also indicates that up to 100 patrons may be present at any given time which could increase vehicle traffic in and around Ashfield CBD.

The DA states that staff would have “an understanding of light food and beverage service”. A concern of police with the re issue of an entertainment licence is that there is no way police can ensure that alcohol is only brought in by patrons and consumed at a safe level. Police would recommend that if alcohol is to be consumed on the premises that the owners apply for a full liquor licence.

This would ensure that all staff serving alcohol will have to complete the Responsible Service of Alcohol Court prior to having any involvement in the selling of alcohol. If the premises is licensed the licensee must ensure that all signage is displayed as required by law. This would enable police to conduct regular audits to ensure compliance. All persons consuming alcohol would need to establish proof of age prior to consuming alcohol on the premises.

Any security operatives working for the business must be fully licensed with a current security licence. Consideration will need to be given to have a security operative walking around inside the business to ensure there are no disturbances.

Noise levels are of a concern if the business was to run until 4am. Levels inside the premises and outside the premises need to be considered. If this application is approved the 4am finish should be negotiated to an earlier finishing time.

The DA does not mention anything in relation to other security issues, such as CCTV. CCTV for this type of venue would be highly recommended. In incidents were police may become involved it will assist police in investigation of the complaint. Further lighting will need to be assessed. The lighting will need to be of a sufficient in the stairway leading up to the business and on the street where the entry to the business is located.

21 Extracts from Police Incidents reports were also tendered by council.

22 The Court heard expert evidence from Mr C Young, the court appointed planner. Mr Young considered that the key issue related to the impact of the proposal on residential amenity. The main impacts related the consumption of alcohol, parking and noise. He stated:

No evidence of adverse impacts upon the residential areas by patron behaviour has been provided for the period of operation for the premises.

Based on this I conclude that the impact of the existing operation on the residential area is acceptable.

Consumption of alcohol

23 Upon reviewing the Police reports, Mr Young stated that the main concern appeared to relate to alcohol being consumed or served on the premises. He did not consider it appropriate to condition the consent to prohibit the consumption of alcohol as this is integral to the operation of the Karaoke Lounge. He considered that this aspect of the proposal could be managed and that the proposed land use was reasonable for the Ashfield Town Centre.

Parking

24 The other comment made by the Police related to parking. The previous approvals and the current application do not provide parking. Mr Young stated that a considerable number of parking space are available on Liverpool Road and the top level of Ashfield Mall, which does not close. He noted that parking in Ashfield is at a premium during the day but after the 6pm the traffic restrictions cease and there would be ample parking to meet the needs of the Karaoke Lounge. Further he noted that the site is close to Ashfield station and nite ride buses operate throughout the night.

25 Further, Mr Young stated that the DCP does not require additional parking if there is no change in use. The proposed use has already been approved and an assessment of the demand for parking would have been undertaken at the time of the initial approval. The previous approvals did not require parking and it was not raised in the council assessment of this application nor was it raised as an issue in the proceedings. No objections or complaints have been received by council about the current parking arrangements. In Mr Young’s opinion the parking arrangements were satisfactory and would not impact on the amenity of the area, particularly the residential area which is to the rear of the site but not easily accessed from it.

Noise

26 In relation to noise, acoustic measures have been introduced as part of the previous approvals. The council report notes that:

The noise levels and the existing attenuation measures have been reassessed and an acoustic statement has been submitted to Council. This statement concludes that the existing measures are adequate to provide inaudibility outside the site.

27 Mr Young raised concern about noise breakout through the rear fire door that may permit noise to escape towards residential properties to the rear. His concerns were satisfied by the imposition of a condition which restricts access to and from this door except in emergencies or for deliveries outside the hours of operation of the karaoke lounge. Noise generating from the premises was not raised as an issue in the proceedings.

Findings

28 The principle concern of council and the police was the consumption of alcohol on the premises without a liquor licence and the likelihood that this may result in inappropriate behaviour, which will impact on the amenity of the area, particularly residents.

29 The application proposes a “BYO” arrangement, where patrons bring their own alcohol to be consumed on the premises. A limit on the amount of alcohol per patron is proposed. The submissions of both Mr Simpson, for the council, and Mr Hemmings, for the applicant, are that there is no requirement for a “BYO” arrangement to be licensed. The purpose of liquor licensing is to control the sale of alcohol. If alcohol is not to be sold, it is up to a proprietor to decide whether alcohol can be consumed on a premise.

30 Mr Simpson and Mr Hemmings made different submissions on the appropriateness of such a “BYO” arrangement. Mr Simpson submitted that the proposal should be refused or conditioned that no alcohol is to be served. He stated that a liquor licence provides a point of sale for alcohol, which enables staff to better control its distribution to intoxicated persons. A liquor licence also imposes controls such as the requirement for staff to be trained in the responsible service of alcohol (RSA), display of signage and proof of age. A liquor licence also imposes a regime of complaint and inspection with the ultimate sanction being the loss of a licence. The Police recommended that if alcohol is to be consumed on the premises the applicant should apply for a full licence. The “BYO” proposal is unworkable as it is unrealistic to expect staff to check whether up to 100 people in separate rooms are intoxicated. If intoxicated, it relies on the people being evicted from the premises into the public street which can potentially result in disturbance to the area or pose a threat to the intoxicated person. The Police Reports indicated that the consumption of alcohol on the premises had not operated in a satisfactory manner in the past.

31 Mr Hemmings submission was that the Plan of Management and the conditions of approval provided similar requirements to those imposed by a Liquor Licence, thereby addressing the concerns of the Police. The karaoke lounge had operated during two trail periods during which there have been a number of inspections by Police. In response to this application, the Police have not recommended that it not be approved or that it should only be approved subject to a full liquor licence. Rather the Police have raised concerns about its operation and made recommendations that have been incorporated into the consent. The Police reports indicate isolated incidents of inappropriate behaviour but not a systematic problem. There is no evidence of complaints from residents or people in the area that would warrant the refusal of the application.

32 I accept Mr Hemming’s submission. It appears an anomaly that the sale and service of alcohol is strictly regulated through liquor licensing but that alcohol can be brought to a commercial premise and consumed without regulation. However, the parties agreed that this is the statutory framework in which the application must be assessed.

33 The use has been previously approved twice on a trial basis. The proposal seeks to extend the hours of operation but in other respects is generally the same as previously approved.

34 Mr Young relies on the lack of complaints from residents in reaching his conclusion that the proposal is acceptable. It is understandable that there have been no complaints as the residential area is not in close proximity to the proposal. However, I do not accept that the assessment of impact should be limited to resident’s complaints but to the likely impact that may result from a proposal. If nobody lives nearby there is nobody to hear noise being generated but this does not mean that it is acceptable for a use to permit the noise to occur. Nor would it be acceptable for a use to provide an environment that enables people to become intoxicated within its premises and to then use the street. Such a situation is unacceptable not only for the other users of the premises and the street, even if these are few and far between, but also for the intoxicated person.

35 The Ashfield Town Centre has other late trading uses and this entertainment aspect of the centre is clearly encouraged by the DCP. It is important that these activities, which have the potential to impact on amenity, are well managed. The Ashfield Town Centre is also an area were mixed use developments are encouraged and the present absence of residential development is not necessarily something that will continue into the future. It is therefore important that a consent for a use such as a karaoke bar, if unlimited, will be acceptable in the long term, particularly in an area which is undergoing change.

36 The nature of the use, particularly the consumption of alcohol, has the potential for adverse amenity impacts and to be a burden on the Police if not properly managed. The evidence before me is that the proposed conditions and Plan of Management, if correctly implemented, will mitigate these impacts to an acceptable level.

37 The conditions of consent and the Plan of Management incorporate similar requirements that would be imposed for a licensed premise, including RSA training for staff, signage and proof of age. The proposal also requires fully licensed security guards and the instillation of CCTV. The expert evidence is that the proposal has an acceptable parking and noise impact. These matters were the matters raised by the Police and have been satisfactorily addressed by the proposal.

38 There have been two previous trial periods, one with the consumption of alcohol. Neither trial period however, involved the trading hours proposed in this application, nor is there evidence that the trial periods were monitored. Mr Hemmings submission is that there is insufficient evidence to demonstrate that the previous operation of the karaoke lounge has had an adverse impact. While this submission has some merit, it does not address the later trading hours proposed in this application. In my view, the use has the potential to impact on the present and future amenity of the Ashfield Town Centre, if not managed in a responsible manner.

39 While relatively isolated from residential properties, the Police letter indicates potential concerns with the consumption of alcohol as the premises does not intend to apply for a liquor licence. The consequence of this is that there is little formal control over the consumption of alcohol on the premises. I am not satisfied that reliance on a Plan of Management should be supported without a trial period and independent monitoring.

40 I acknowledge that this concern is not sufficient to warrant refusal of the application, so I propose that there be a twelve month trial period with appropriate independent monitoring during this period.

41 In this regard, I will allow a period of 7 days for the parties to prepare appropriate conditions for the trial period and independent monitoring. If there is any dispute over these conditions the parties are to file short written submissions within this period.

42 In relation to the PoPE, there are no additional issues that would warrant refusal of the application and the parties agreed that if the development application were to be approved, consent for the PoPE Licence should also be granted.

___________________

Annelise Tuor
Commissioner of the Court