Wonarla Pty Ltd v Council of the City of Sydney (No 2)

[2009] NSWLEC 1424

Land and Environment Court

of New South Wales

CITATION:

Wonarla Pty Ltd v Council of the City of Sydney (No 2) [2009] NSWLEC 1424
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Wonarla Pty Ltd v

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

10340 of 2009

CORAM:

Brown C

KEY ISSUES:

DEVELOPMENT APPLICATION :- increased numbers of patrons for the place of public entertainment areas of the Imperial Hotel - submissions on conditions relating to inclusion of public holidays, numbers of security staff and noise complaint procedures

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Wonarla Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1350

DATES OF HEARING:

Written submissions on conditions 11 December 2009

 
DATE OF JUDGMENT: 

18 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mrs M L Taylor, solicitor
SOLICITORS
Bartier Perry

RESPONDENT
Mr S Kondilios, solicitor
Mr M Winram, solicitor
SOLICITORS
Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 December 2009

10340 of 2009 Wonarla Pty Ltd v Council of the City of Sydney (No 2)

JUDGMENT

1 COMMISSIONER: Development Application D/2008/1350 sought to increase the existing capacity of the Place of Public Entertainment (PoPE) areas of the Imperial Hotel located at 35-37 Erskinville Road, Erskinville from 442 patrons to 788 patrons. The extended patronage provides for 288 patrons in the ground floor Cabaret Bar and 500 patrons in the basement level Priscilla and Cellar Bars of the hotel.

2 On 21 October 2009 Development Application D/2008/1350 was determined by the Court (Wonarla Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1350) by allowing a one-year trial period for 788 patrons in the PoPE areas on Friday night and Saturday night.

3 Prior to the issuing of Final Orders, additional conditions and the amendment of the council's draft conditions of approval were required to address the findings in the judgment. The parties also agreed that there were other conditions that required further discussion and these discussions could take place after the Court had determined the findings on the merits of the proposed increased patronage in the PoPE areas.

4 On 21 October 2009, directions were made for the filing of conditions that reflected the judgement after discussion with the parties. Liberty was also be granted to the parties to approach the Court on 24 hours notice if there was any disagreement on the preparation of the amended conditions or if some clarification was required.

5 At a telephone mention on 8 December 2009, the parties were directed to file their preferred conditions (of those in dispute) together with short submissions on their reasons for their preferred conditions by close of business on 11 December 2009.

6 Following the filing of the parties submissions, the conditions in dispute are conditions 3, 6(b), 6(b)(i) and 11.

Condition 3

7 The applicant proposes to amend condition 3 by including the following:

(c) Where a public holiday falls on a Monday, Tuesday, Wednesday, Thursday or Friday, the maximum number of patrons permitted in the Cabaret Bar and the Cellar Bar between 5 a.m. on the day before and 5 a.m. on the day following the public holiday shall be 788.

8 The applicant seeks to amend condition 3 by including an additional sub-condition that allows the PoPE areas of the hotel to accommodate 788 patrons on the night before a public holiday when it falls on a Monday, Tuesday, Wednesday, Thursday or Friday night. The applicant submits that the licensing laws already recognise exceptions to standard hours of operation on special days of celebration and the consent should reflect this entrenched cultural practice. For example, this year New Year's Day falls on Friday and it would be unreasonable to restrict numbers merely because it happens to fall on a weekday. It must also be remembered that the consent is for a trial period and if amendment proves unsatisfactory, it can be remedied at the end of the trial period.

9 The council submits that the additional patronage on the night before public holidays was not the subject of any evidence and should be the subject of a s 96 modification application.

10 The purpose of restricting the additional patronage to Friday night and Saturday night in the PoPE areas was to respond to the proximity of the residential development near the hotel and allow the occupants of these properties some relief from the potentially higher patronage during the week when it could reasonably be expected that the nearby occupants would work and should be able to experience less disturbances to their sleep. If this general approach is adopted for the nights prior to a public holiday then there is some support for the applicant’s submissions. It must be remembered that this application addresses only additional patronage of PoPE areas and not the overall operation of the hotel. I am also mindful that any impacts would be assessed at the end of the trial period.

Condition 6

11 This condition deals with the Plan of Management and the Security Management Plan. The area of disagreement relates to condition 6(b) and 6(b)(i) and the amount of security staff to be provided outside the hotel. The applicant submits that the requirement for six security staff after the patronage numbers reach 442 is unreasonable and unnecessary and comes solely from the expert acoustical report of Dr Renzo Tonin, the single expert on acoustics in the proceedings.

12 The applicant submits that this requirement is well above the industry standard of one security guard for every 100 patrons. It is submitted that Dr Tonin is not an expert on security and has advocated, for acoustic purposes, that there be no queuing of patrons outside the hotel. The security staff suggested by Dr Tonin are to achieve an acoustic result rather than a security result. The applicant has accepted this approach to address the question of queuing to gain entry. The Plan of Management sets out the appropriate way in which security will be managed to both inside and outside the hotel and should be preferred over the comments of Dr Tonin on the number of security staff.

13 The council relies on the evidence of Dr Tonin where he states that "it is my experience that to minimise noise impacts from patrons outdoors, a strong security presence is required at the door. As previously stated, this reflects a strong management policy against anti-social behaviour and is likely to result in a reduction in adverse noise in the local streets". The requirement for six security guards outside the buildings comes directly from Dr Tonins evidence.

14 On this condition, there can be little doubt that Dr Tonin’s observations of a strong security presence reduces noise impacts is correct, however it is unclear why the circumstances of this particular hotel require security personnel at ratio higher than the generally accepted standard of one security personnel for every 100 patrons. I understood that there were some issues with noise associated with queuing of patrons on the street waiting to gain entry to the hotel although queuing was not prohibited by any conditions of development consent. There is agreement by the applicant that queuing was not desirable and has agreed to a condition providing that patrons shall not be permitted to queue outdoors at any time and shall be turned away and/or accommodated within the hotel (condition 6(b)(ii)). If patrons are managed in accordance with this condition the noise impact should be minimised and the levels of security suggested by Mr Tonin at the entry of the hotel may not be necessary.

15 For these reasons, I accept the applicant submissions on security staff numbers and again, the adequacy of the security staff numbers can be reviewed at the end of the trial period if found to be unacceptable.

Condition 11

16 This condition addresses noise complaints. The council proposes the following condition:

Should substantiated complaints or breaches of noise regulation occur, the Council may employ a suitably qualified acoustical consultant to measure noise emanating from the building and to recommend appropriate action. The reasonable cost of such appointment and associated work shall be borne by the licensee.

17 The applicant proposes the following condition:

Should substantiated complaints or breaches of noise regulation occur, the Council may employ a suitably qualified acoustical consultant whose appointment is agreed by the applicant, to measure noise emanating from the building and to recommend appropriate action. The reasonable cost of such appointment and associated work shall be borne by the licensee, in the event that a breach of the regulations or the conditions of this consent is found.

18 In considering the two different conditions, I agree with the applicant that it is not appropriate for the council to employ an acoustical consultant without reference to the applicant particularly when the cost is to be borne by the applicant. For the condition to have any meaning, the test of unacceptable noise impacts must be against the appropriate noise standards rather than just complaints from adjoining residents however there was agreement by the parties to the use of the words "substantiated complaints or breaches of noise regulation" is acceptable as the trigger for the need of a further assessment by a suitably qualified acoustical consultant. In my opinion, the acoustical consultant may be appointed by agreement between the council and the applicant and any remedial works required should also be done within a reasonable period of time. I do not accept the applicant's version of the condition in so far as costs should only be borne by the licensee in the event of a breach of the regulations of the conditions of consent. I would presume that the words "substantiated complaints or breaches of noise regulation" should mean that a breach of the regulations or the conditions of the consent has been established prior to the need to appoint an acoustical consultant.

19 Condition 11 should read:

Should substantiated complaints or breaches of noise regulation occur, a suitably qualified acoustical consultant may be engaged, with the Council and the licensee agreeing on the acoustical consultant to measure noise emanating from the building and to recommend appropriate action. The reasonable cost of such appointment shall be borne by the licensee and any works recommended by the acoustical consultant shall also be borne by the licensee and carried out in a reasonable time.
Orders

20 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application D/2008/1350 for alterations and increased numbers of patrons for the public entertainment areas for the Imperial Hotel located at 35-37 Erskinville Road, Erskinville is approved subject to the conditions in Annexure A.
3. The exhibits are returned.

_____________
G T Brown
Commissioner of the Court

ANNEXURE “A”

CONDITIONS OF CONSENT

Wonarla Pty Ltd -vs- Council of the City of Sydney

Land and Environment Court Proceedings No. 10340 of 2009

35-37 Erskineville Road, Newtown

: Some conditions in Schedule 1A are to be satisfied prior to issue of a Construction Certificate and some are to be satisfied prior to issue of Occupation Certificate, where indicated.

(1) APPROVED DEVELOPMENT
(a) Development must be in accordance with Development Application No. D/2008/1350 dated 11 August 2008, and consistent with the layout plans 0931/1001, 0931/1002 and 0931/1003, prepared by Antonio Caminiti, dated 2 September 2009 and as amended by the conditions of this consent.
(b) This consent relates only to the use and capacity of the rooms containing the Priscilla, Cabaret and Cellar bars, and does not include approval for the building works shown on the plans referenced in (1)(a).
(2) LAND AND ENVIRONMENT COURT AND COUNCIL CONDITIONS
Conditions of this approval are to be read in conjunction with the conditions contained in D/2006/495, D/2006/2196, D/2006/495/A, D/2008/107 and D/2008/1350. In the event of inconsistencies between the previous consents and the conditions of this consent, this consent shall prevail.
(3) CAPACITY
(a) Between 5.00pm on Friday and 8.00am on Sunday, the maximum capacity of the rooms containing the Priscilla, Cabaret and Cellar bars is 788 persons, including patrons, staff and entertainers. This figure includes the capacity of the Cabaret Bar, as stipulated in Condition (3)(b).
(b) The maximum number of persons permitted in the Cabaret Bar is 288, including patrons, staff and entertainers.
(c) Where a public holiday falls on a Monday, Tuesday, Wednesday, Thursday or Friday, the maximum number of patrons permitted in the Cabaret Bar and the Cellar Bar between 5am on the day before and 5am on the day following the public holiday shall be 788.
(d) At all other times, the capacity of the Hotel is to be in accordance with D/2008/107 (a maximum of 442 patrons in the rooms containing the Priscilla, Cabaret and Cellar bars, for a trial period of one year).
(e) To ensure that the maximum number of persons is not exceeded at any one time, licensed security guards shall be stationed at the entries to the Cabaret and Cellar Bars to count – using hand-held counting devices – the numbers of persons who enter and leave each Bar. The counting is to commence when the bars open.
(f) The operator must notify Council, in writing, prior to the exercising of this consent.
(4) TRIAL PERIOD FOR INCREASED PATRON NUMBERS
With regards to Conditions (3)(a), (3)(b) and 3(c) above:
(a) The period during which the capacity is approved to operate is restricted to a trial period of one year from 21 October 2009. After that time, the capacity must revert back to that approved under D/2006/495 (a maximum of 306 people in the rooms containing the Priscilla, Cabaret and Cellar bars).
(b) Notwithstanding (a) above, a further development application may be lodged before the expiration date of this consent for Council’s consideration of the continuation of the capacity. Council’s consideration of this further application will take into account the compliance of the operation in terms of conditions of consent; the number and nature of substantiated complaints regarding the operation of the premises; and any views expressed by the NSW Police Service.
(c) If an application to continue the capacity approved under the trial period has not been determined prior to the final day of the trial period, the trial period will be extended until the application has been determined.
(5) STILETTO SIGNAGE
The rooftop stiletto signage is not approved and does not form part of this consent.
(6) PLAN OF MANAGEMENT / SECURITY MANAGEMENT PLAN
(a) The Plan of Management prepared by John Boers Consulting (dated August 2008), submitted to Council as part of the development application, is not approved.
(b) The Plan of Management prepared by Design Collaborative Pty Limited, dated 11 December 2009 is approved and must be implemented. It is to include the following:
(i) Upon patron numbers exceeding 442, security personnel must be provided in accordance with the Plan of Management.
(ii) Patrons shall not be permitted to queue outdoors at any time and shall be turned away and/or accommodated within the premises.
(iii) Security guards shall direct patrons seeking to use taxis to the designated taxi rank. The designated taxi security guard shall assist patrons in this endeavour.
(iv) Taxies shall be discouraged from picking up patrons from anywhere other than at the approved taxi rank on Erskineville Road. This shall be done by motioning taxies to move on.
(v) Security personnel shall bid goodnight to patrons, remind them of the need to respect the quiet and good order of the neighbourhood if they appear to be rowdy and ask where they are proceeding to. If the response is that their destination is via Union Street, the security person shall actively discourage this route by recommending a taxi or bus instead.
(vi) Security personnel stationed outside shall wear a uniform with reflective vests, shall carry long torches and shall be in communication at all times by two-way radio.
(c) A Security Management Plan is to be prepared and implemented as part of this consent. The Plan shall include, training of staff, uniforms, the number of security staff at various times, surveillance, weapon detection, management of street noise and other security and response methods used to manage the public and private domains. A copy of the Plan is to be provided to the Council and NSW Police before this consent is implemented.
(7) SIGNAGE
(a) A sign is to be displayed in the window of the Hotel’s gaming room facing Erskineville Road, clearly identifying the types of entertainment permitted in the building and the total number of people permitted in the entertainment areas at various times.
(b) A sign is to be displayed at the entrance to the rooms containing the Cabaret, Priscilla and Cellar bars, specifying the maximum number of persons allowed in each room.
(8) NEIGHBOURHOOD AMENITY
The licensee shall ensure that the behaviour of patrons entering and leaving the premises does not substantially affect the amenity of the neighbourhood. In this regard, the licensee shall be responsible for the control of noise, loitering and litter generated by patrons of the hotel and shall ensure that people leave the hotel and area in an orderly manner.

(9) NOISE - USE
(a) The L _A10 noise level emitted from the hotel must not exceed the background noise level (L _A90 ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 5dB between the hours of 7.00am and 12-midnight when assessed at the boundary of any affected residence.
(b) The L _A10 noise level emitted from the hotel must not exceed the background noise level (L _A90 ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) between the hours of 12-midnight and 7.00am when assessed at the boundary of any affected residence.
(c) Notwithstanding compliance with (a) and (b) above, the noise from the hotel must not be audible within any habitable room in any residential property between the hours of 12 midnight and 7.00am.
(d) The L ₁₀ noise level emitted from the hotel must not exceed the background noise level (L ₉₀ ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 3dB when assessed indoors at any affected commercial premises.
(e) The use of the premise shall be controlled so that any emitted noise is at a level so as not to create an “ offensive noise ” as defined in the Protection of the Environment Operations Act 1997 to any affected receiver.
(10) ADDITIONAL NOISE CONDITIONS FOR LICENSED PREMISES
During the first 60 days of this consent being exercised, the following acoustic measures must be undertaken:
(a) A suitably qualified acoustic consultant must be appointed (such appointment to be made before the consent is exercised) to:
(i) Measure and verify that the noise emanating from the premises complies with the noise criteria in the “Noise - Use” condition; and
(ii) If necessary, make recommendations to ensure that the noise emanating from the premises complies with the noise criteria in “Noise - Use” condition.
(b) The noise measurements must be:
(i) Undertaken without the prior knowledge of the applicant, manager or operator of the premises;
(ii) Taken on at least three different occasions on three different days of the week (excluding Monday, Tuesday and Wednesday) from 11pm until the live shows cease or the close of business, whichever occurs first; and
(iii) Submitted to Council’s Licensed Premises unit within 7 days of the testing.
(c) If the acoustic consultant recommends that additional treatment or works be undertaken under condition (a)(ii) above, those recommendations must be:

(i) Submitted to Council with the noise measurements as required in (b)(iii) above; and
(ii) Implemented to the acoustic consultant’s satisfaction before the end of the first 60 days of this consent being exercised.
(d) If the acoustic consultant’s recommendations are not implemented in accordance with this condition, the increased patron numbers on Fridays and Saturdays must cease until such time as the recommendations are implemented and verified.
(11) NOISE COMPLAINTS
Should substantiated complaints or breaches of noise regulation occur, a suitably qualified acoustical consultant may be engaged, with the Council and the licensee agreeing on the acoustical consultant to measure noise emanating from the building and to recommend appropriate action. The reasonable cost of such appointment shall be borne by the licensee and any works recommended by the acoustical consultant shall also be borne by the licensee and carried out in a reasonable time.
(12) SECURITY - PUBS, HOTELS, BARS AND NIGHTCLUBS
(a) The licensed security officers are to remain at the main entrance/exit point until 30 minutes after closing (even when the last patron has left the premises) and shall assist in managing the patrons as they leave the premises.
(b) Licensed security officers at a ratio of no less than 1 security officer per 100 patrons (or part thereof) are to be employed whenever the premises is being utilised for entertainment.
(c) At times when licensed security officers are present, all patrons entering the premises may be subject to a search by a hand-held metal detector.
(d) Licensed security officers and management shall communicate by hand-held radios at all times, so that additional security officers can be summoned, if required, at short notice by the licensee or duty manager.

____________
G T Brown
Commissioner of the Court

29/01/2010 - amendments - Paragraph(s) Condition 4 and Condition 12(b)