The Local Inn Hotel Pty Ltd v City of Ryde Council [2021] NSWLEC 1001

Land and Environment Court New South Wales

Medium Neutral Citation: The Local Inn Hotel Pty Ltd v City of Ryde Council [2021] NSWLEC 1001 Hearing dates: Conciliation conference on 23 December 2020 Date of orders: 4 January 2021 Decision date: 04 January 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent No. LDA1999/085 dated 27 March 2001 is modified as set out in accordance with Schedule "A" hereto. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: The Local Inn Hotel Pty Ltd (Applicant) City of Ryde Council (Respondent) Representation: Counsel: S Berveling (Applicant) M Chillari (Solicitor) (Respondent)

Solicitors: Hatzis Cusack Lawyers (Applicant) City of Ryde Council (Respondent) File Number(s): 2020/233588 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council of the City of Ryde's (the Council) refusal of Modification Application No. MOD2020/0092 to Development Consent No. LDA1999/ 0805, (the consent) for an extended trail period for extended trading hours at Ryedales Tavern at 18-26 West Parade, West Ryde (Lot 1 DP 176872, Lot B DP 385609, and Lot 837 DP 752035 (Site) 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 December 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved amending the Modification Application to extend the period of extended trading on the following terms: "Condition 2 of the Consent is modified by addition of the following: (a) Notwithstanding condition 2, the premises may operate between 12:00 midnight and 3:00 a.m. Monday to Thursday; between 2:00 a.m. and 3:00 a.m. Friday and Saturday; and between 10:00 p.m. and 12:00 midnight on Sunday for a trial period of 24 months. (b) At the expiration of the trial period, the opening hours shall revert to the hours approved under condition 2 above. (c) The applicant may apply to Council prior to the expiration of the trial period, but no earlier than a 12-month period from the commencement of this consent, to make the extended hours outlined in (2(i)A) above permanent. Any decision to make the hours permanent will be based on the performance of the operator during the trial period and may include (but not limited to) factors such as: • evidence to be furnished by the operator as to whether the trial has actually occurred; • any justified complaints received and investigated by the police and/or the council; • comments and advice received from the Ryde Police Area Command and as a result of the new section 4.55 application being referred to them; Condition 7 of the Consent is maintained: 7. Servicing of alcohol. No alcohol is to be sold or supplied between 12:00 midnight and 3:00 a.m. Monday to Thursday and no alcohol sold or supplied between 2:00 a.m. and 3:00 a.m. Friday and Saturday. The following conditions are added to the Consent: (a) Condition 2B is to be inserted to read; The number of patrons after midnight is limited to 50 Monday to Thursday nights (i.e. Tuesday to Friday mornings) and 100 Friday to Saturday nights. (b) The Plan of Management is to be updated to reflect the hours of operation, the number of patrons, and the limitation on service of alcohol as set out in conditions 2, 2A and 2B above, and to include: (i) That there be recorded in a Register full details of any disturbance complaint/s made by a person to management or staff in respect to the manner in which the business of the premises is conducted and/or the behaviour of persons entering or leaving the premises. Such recording will include time, date, nature of the complaint/s and any complainant details if provided. (ii) That any disturbance complaint/s be responded to in a timely and effective manner. All actions undertaken by management / staff to resolve such compliant/s shall be recorded in the Register. (iii) That the Register be made available to Council, NSW Police and Liquor and Gaming Authority. A copy of the updated Plan of Management shall be forwarded to the Council by 31 January 2021. Condition AA: Noise from licensed premises (c) The noise from the licenced premises shall not exceed the following: (i) The LA10* noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8Hz inclusive) by more than 5dB between 7:00am and 12:00 midnight at the boundary of any affected residence. (ii) The LA10* noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8Hz inclusive) between 12:00 midnight and 7:00am at the boundary of any affected residence. (iii) Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 7:00am. (iv) For the purposes of this condition: • the LA10 can be taken as the average maximum deflection of the noise emission from the licensed premises. • the background noise level is the resultant background level from all plant and equipment complying with condition 5 of consent no 99/805 dated 27 March 2001 and background noise from distant traffic and any other premises. • 'affected residence' includes a lot in the strata scheme or any other strata scheme. • 'boundary' includes any balcony, window or elevated window of an affected residence. • 'licensed premises' means premises licensed under the Liquor Act 2007 Condition CC: Acoustic Audit – Trial Period (d) A suitably qualified and experienced acoustic engineer shall be engaged by the Applicant to conduct an acoustic audit on three separate occasions on a Friday or Saturday night between the hours of 11:30PM and 3:30AM the following morning within the trial period. (i) At some time after midnight there must be at the venue, a minimum of 75% of the approved maximum number of patrons for that time period. If these requirements are not satisfied, the acoustic audit shall be repeated. A patron count on the hour (or more frequently if necessary) shall be submitted with the report of the acoustic audit demonstrating compliance with this requirement. (ii) The date of the audit shall not be communicated to any person associated with the premises. (iii) The acoustic audit shall confirm that the requirements in condition AA are being complied with at the most affected residential boundary of No 1-55 West Parade, West Ryde and any other location as directed by Council. (iv) The acoustic audit shall include an assessment of noise from patrons leaving the premises. (v) If the acoustic audit concludes that the noise levels in condition AA are exceeded with, then it shall make recommendations to remedy the non-compliance. (vi) A report of the acoustic final audit and recommendations shall be submitted to Council within 21 days of the date of the audit to the satisfaction of Council. (vii) The Applicant must comply with the reasonable recommendations of the acoustic audit and shall provide evidence of compliance to Council including an additional acoustic audit as specified in these conditions within 30 days of the date of the aforementioned acoustic audit to the satisfaction of Council. Condition DD: Coronavirus (COVID-19) Provision (e) COVID-19 legislation is undergoing continuous amendment which may limit the capacity for the Applicant to comply with the time periods and patron limits specified in condition CC Acoustic Audit. If, as a consequence of COVID-19 legislation, an acoustic audit cannot be carried out within the time periods and patron limits specified in condition CC Acoustic Audit, the Applicant must provide a report to Council providing reasons why the acoustic audit could not be carried out and proposing a further period for testing to be approved by Council. Condition EE : Complaint Investigation (f) Council acting reasonably may, upon the receipt of a valid complaint by one or more affected residents, direct the Applicant to engage a suitably qualified and experienced acoustic engineer to investigate the complaint including a requirement to conduct an acoustic audit on one occasion but otherwise as specified in condition CC Acoustic Audit – Trial Period. Condition FF : Qualifications of Acoustic Engineer (g) In these conditions, reference to a suitably qualified and experienced acoustic engineer means an experienced acoustic engineer who possesses the qualifications to render them eligible for membership of both the Australian Acoustical Society and Institution of Engineers Australia at the grade of member or an experienced acoustic engineer who is employed by a member firm of the Association of Australasian Acoustic Consultants (AAAC)." 1. The parties agreed that the amendments made to the Modification Application are minor within the meaning of s 8.15(3) of the EPA Act. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act. 4. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, because the modification is confined to an extension of the trial for extended trading of the existing hotel. 5. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 6. The Court orders: 1. The appeal is upheld. 2. Development consent No. LDA1999/085 dated 27 March 2001 is modified as set out in accordance with Schedule "A" hereto.