Vinson v Randwick Council - [2005] NSWLEC 142

Reported Decision: 141 LGERA 27

Land and Environment Court

of New South Wales

CITATION:
Vinson v Randwick Council [2005] NSWLEC 142

PARTIES:
APPLICANT
D Vinson
RESPONDENT
Randwick City Council
.

FILE NUMBER(S):
11356 of 2004

CORAM:
Moore C

KEY ISSUES:
Development Application :-
Place of Public Entertainment Authority
Planning Principle - Extension of trading hours
increase in permitted patron numbers or additional attractions for licensed premises
Noise impact
Parking
Social impact
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
.

CASES CITED:
Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277;
.

DATES OF HEARING: 10 and 11 March 2005

DATE OF JUDGMENT:

04/06/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Clay, barrister
INSTRUCTED BY
Yardy Legal
RESPONDENT
Mr J Kildea, barrister
INSTRUCTED BY
Bowen and Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

6 April 2005

04/11356 Vinson v Randwick Council
JUDGMENT

Introduction

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Randwick City Council (the council) of Development Application 715/2003 for a Place of Public Entertainment Authority (POPE) for a hotel known as the Coach and Horses Hotel (the premises) located at 147 Avoca Street, Randwick. The council refused the application on 19 October 2004.

2 The original application was lodged in the name of Mr Williams, the then licensee of the premises. During the course of the hearing, leave was granted to substitute Mr Vinson, the present licensee, for Mr Williams.

The locality

3 The premises are located at the corner of Alison Road and Avoca Street on the south-eastern quadrant of the intersection. The premises are, obviously, a location where a hotel has been established for a considerable period of time.

4 In the immediate vicinity of the premises are a number of residential flat buildings and some mixed commercial/residential buildings. There are also a number of restaurants in the vicinity which trade in the evenings. Nearby streets, such as Victoria and Albert Streets, are residential. Several new or adaptive reuse residential developments can be expected in the vicinity in the foreseeable future.

5 In company with the representatives of the parties, I had the opportunity, prior to the formal Court proceedings, to inspect the premises; visit the residence of an objector, Ms Lai, at 205 Alison Road and to walk the locality. Informal evidence was taken from resident objectors during this process.

6 Mr Murray, the court appointed acoustic expert, also attended the inspection of the premises to explain his original recommendations and to respond to matters arising during the inspection.

The application

7 The application initially sought a POPE to conduct entertainment in the public bar of the premises between 6 p.m. and midnight on Thursday to Sunday inclusive.

Issues

8 Although the council filed a formal Statement of Issues in the proceedings, effectively three matters are in contention. These are:

whether or not noise from within the premises, if entertainment is to be…

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: [2005] NSWLEC 142
Decision Date: 04/06/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with an appeal by Mr. Vinson, the current licensee of the Coach and Horses Hotel, against the refusal by Randwick City Council to grant a Place of Public Entertainment Authority (POPE). The applicant sought permission to extend trading hours, increase permitted patron numbers, or introduce additional attractions such as entertainment. The key issues before the court were whether the proposed changes would cause noise disturbance, parking difficulties, or antisocial behavior that could adversely affect the surrounding residential areas. The court assessed the current and proposed impacts against the planning principles for such applications, considering evidence from residents, expert reports, and the applicant's proposed management plans.

In its reasoning, the court found that noise impacts could be adequately managed through proposed conditions and measures to address existing noise issues. Regarding parking, the court concluded that while the additional demand could likely be absorbed within the broader area, there would be increased competition for parking in the immediate vicinity, warranting a trial period and further surveys. However, the court was most concerned about the potential for increased antisocial behavior among patrons leaving the premises later in the evening. Despite the applicant's proposed security and noise management plan, the court lacked confidence in its effectiveness due to the applicant's past non-compliance with security requirements and the absence of a satisfactory history of behavior management. The court ultimately decided that the uncertainty regarding the management of antisocial behavior warranted the refusal of the application.

The court ordered that the appeal be dismissed, the development application refused, costs reserved, and exhibits returned.

Orders