Wonarla Pty Limited v Council of the City of Sydney

[2005] NSWLEC 704

Land and Environment Court

of New South Wales

CITATION:

Wonarla Pty Limited v Council of the City of Sydney [2005] NSWLEC 704

PARTIES:

APPLICANT
Wonarla Pty Limited

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

10090 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Application - Development Consent :-
Consolidation of conditions on modification
Trading hours of licensed premises

DATES OF HEARING:

25 and 26 May and 23 November 2005

EX TEMPORE JUDGMENT DATE:

11/23/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Craig QC (23 November)
INSTRUCTED BY
Woolf Associates

Mr B Woolf, solicitor (25 May)

RESPONDENT
Mr A Hudson, solicitor
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

23 November 2005

04/10090 Wonarla Pty Limited v The Council of the City of Sydney

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal concerning the trading hours of and proposed alterations to a hotel operating in Erskineville at 35 Erskineville Road. The premises have a number of bars on several levels and have in the past been subject to a variety of uses, which might be described as both informal and formal, in parts.

2 The works that are proposed to be undertaken to the hotel, which is essentially a gay male entertainment venue, will include a number of matters to regularise and make compliant activities which have been undertaken at the premises informally in the past and include the imposition of a codified plan of management for the operations of the hotel. The works will also include significant noise attenuation works.

3 I had the opportunity to inspect the premises in company with the legal advisers of the parties on 25 May 2005 and to hear evidence from a variety of community members, both from those opposed to the increase in trading hours which forms part of the application and from persons who were in support of that application.

4 During the course of those proceedings, it became obvious to me that it was desirable that there be a consolidated set of conditions of consent and that, notwithstanding the concerns of the objectors, on balance, the works proposed to be undertaken and the implementation of a satisfactory management plan (including security measures to be incorporated in that plan) would, also on balance, be of benefit to the local community rather than a detriment to it.

5 Although the local resident objectors expressed concern as to noise from the premises; parking; activities of an anti-social nature caused primarily by departing patrons; and noise associated with persons being dropped off by taxis in the vicinity of the hotel in Erskineville Road, I am satisfied that the measures that are presently to be put in place will have sufficient positive benefits to outweigh any unsatisfactory impacts which might arise.

6 I am satisfied that the noise control conditions (including the requirement of which I have informed the parties today – that all keys to the noise limiting device are to be held by officers of the council and none are to be retained on the premises), will have the effect, if not entirely eliminating the impact of noise on local residents from the entertainment operating on the premises, of virtually entirely doing so.

7 Indeed, it is the intention of the noise limiting conditions, which are consistent with those imposed by the Liquor Administration Board, that there shall be no significant adverse noise impact on local residents and that, as specified in the conditions, at particular times of the evening there is to be no noise heard in an habitable room of an adjacent residential premises.

8 Under all the circumstances, I am satisfied that the application, consistent with the documents handed up to me of the proposed consent orders and attached documents, should be approved subject to a number of amendments that I have discussed with the parties this morning and that I require to be made.

9 The first relates to the requirement that all keys to the noise limiter are to be held by the council.

10 The second is that, in the proposed plan of management with respect to security personnel, there should be a number of triggering thresholds that provide a greater degree of specificity as to when security personnel will be present on what might be regarded as low patronage evenings. Those details will be settled by the parties and provided to the Court in light of the suggestions I have made this morning.

11 The third is that there has been a correction to require that the security guard on the main door of the hotel will remain until thirty minutes after closing time or all patrons have left the hotel, whichever is the later, rather than the draft provision which would have had a security officer departing at the earlier of those two times.

12 Finally, with respect to the incident book which records all matters of complaint to or concern arising from staff observation, this book shall be available not merely by copy to the council and the police within seven days, but shall be available for inspection by the council or the police at any time during which the premises are trading.

13 In addition, importantly in my view for the benefit of the residents in the surrounding streets, the applicant has readily agreed to a suggestion that the incident book should be available for inspection for those residents on one afternoon per month between the hours of 4pm and 6.30pm so that the residents themselves will have a regular opportunity to review the activities undertaken at the premises if they wish to do so.

14 As a consequence, I propose to make the orders that are proposed by agreement between the council and the applicant and those orders will be made in Chambers after the electronic filing of the revisions to the conditions of consent and the plan of management and, if it has not already happened, the electronic filing of any other documents that need to be incorporated in those orders.

15 In order to ensure that the Court retains control of the process, I formally set the matter down for callover before the Registrar on Thursday 14 December, but I will do so on the basis that if the documents are filed electronically in accordance with the provisions of Practice Direction 2 of 2005, I will make orders in Chambers and vacate the callover.

Commissioner of the Court