Land and Environment Court of New South Wales CITATION : Khattar v Holroyd Council (No 2) [2005] NSWLEC 359 APPLICANT George Khattar PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 11636 of 2004 CORAM: Moore C Development Consent :- Modification of hours of operation of licensed premises Late night provision of entertainment KEY ISSUES: Anti-social behaviour Effectiveness of Plan of Management . Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Development Control Plan No. 2 Commercial Code . Khattar v Holroyd City Council [2005] NSWLEC 411; Zhang v Canterbury City Council [2001] 115 LGERA 373; CASES CITED: Vincent v Randwick Council [2005] NSWLEC 142; . DATES OF HEARING: 10 May, 24 and 28 June 2005 EX TEMPORE JUDGMENT DATE : 06/29/2005 APPLICANT Mr T Hale SC and Ms P Sibtain, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Maclarens Solicitors RESPONDENT Mr G McKee, solicitor McKees Legal Solutions JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 29 June 2005 11636 of 2004 George Khattar v Holroyd City Council JUDGMENT 1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Planning Act) against what was originally a deemed refusal (and subsequently became an actual refusal) of an application to modify the existing consent for the operating hours of licensed premises known as "The Crown on McCredie" at 135-138 Fairfield Road, Guildford West (the hotel). 2 The hotel is located at Lot 2 in DP 242004, and the proceedings result from an application by the licensee and proprietors of the hotel to extend the trading hours until 3am (including the having of entertainment on a number of the nights). The nights to which the extension of trading hours applies are from Monday night over to Tuesday morning through to Saturday night over to Sunday morning. 3 The application was originally considered by Holroyd City Council (the council) which, in October 2003, granted a six-month trial approval for the application. 4 As a consequence of that trial, a subsequent application by the proprietors to make those arrangements permanent and the commencement of deemed refusal proceedings in this Court with respect to that permanency application, the premises have been trading at the extended hours until the present time. 5 The applicant proposed, as part of the original consideration process for the permanency of the extended hours, a Plan of Management, which was submitted to the council in August 2004. 6 On 10 May 2005, the matter first came before me on an application by the applicant, pursuant to par 14 of the Court-appointed Expert Practice Direction, for leave to be able to call its own acoustic evidence in addition to the evidence to be provided by Mr Stephen Cooper, the Court-appointed acoustic engineer. 7 As part of the proceedings on that day, which proceedings resulted in the applicant being given leave to provide further evidence from Mr Barry Murray, its own acoustic advisor, I made a number of comments to the parties concerning the adequacy or otherwise of the August 2004 Plan of Management. Those comments were made in light of a number of matters determined in this Court concerning the nature of provisions which ought to be contained in such plans. 8 As a consequence of those comments, a modified proposed Plan of Management dated May 2005 was tendered in these proceedings. 9 On 24 June, I conducted a view of the site, during the course of which I heard informal evidence from a number of witnesses. This evidence was from Mr Eyeares, the licensee on behalf of the applicant and from Mrs Coffen, Mr Heng and Mr and Mrs Cicero, all of whom gave evidence concerning their specific concerns about and to them unacceptable incidents of anti-social behaviour in the vicinities of their residences, which behaviour arose in their opinion from events connected with or patrons of the subject premises. 10 I also heard evidence on-site from Mr Curtis, another resident. Mr Curtis' evidence was limited to his identification to me of his dwelling and the uses to which relevant rooms of it were put – Mr Hale SC, senior counsel for the applicant having indicated to me that because of the potentially prejudicial nature of the material which Mr Curtis wished to put before the Court, Mr Hale wished to have Mr Curtis available for cross-examination under oath in the Court. I acceded to Mr Hale's application in this regard. I will return later in these reasons for decision to a detailed consideration of Mr Curtis' evidence. 11 Mr Hale also made application that Mr Cicero be made available for cross-examination under oath in court. Mr Cicero was not available for that purpose as he had prior work commitments and no notice had previously been given to Mr McKee, solicitor for the council, that Mr Cicero would be required for cross-examination under oath in court. 12 As a consequence of that, subsequently Mr Hale made the submission to me that amongst other things, I ought give less weight to the evidence of Mr Cicero, than would be the case if that evidence had been given under oath and in court. I will return in some more substantial detail to general propositions of that nature shortly. However, I indicate at this stage, that I have given and consider it appropriate to give, identical weight to the evidence given by Mr Cicero on-site as if that evidence had been given in court and under oath. 13 At the commencement of the site view, although in a mildly jocular fashion in order to put the lay participants at ease, I had specifically informed all those present that, although I was not in a position to and did not propose to swear in on any holy book or otherwise, any person giving evidence before me during the site inspections, they were nonetheless under the same obligations as if they had attended in this courtroom and given evidence under oath or affirmation. 14 In my view, consistent with the provisions of s 38 subs (1) and (2) of the Land and Environment Court Act 1979 (the Court Act), I am entitled to (and consistent with the longstanding practice of the Court, am obliged to), give identical weight to evidence given informally on-site, compared to evidence given in the more formal circumstances of a courtroom. 15 Indeed, to do otherwise would strike a telling and potentially fatal blow at the structure of Class 1 proceedings at the present time, both as to the taking of informal evidence from primarily resident objectors on-site and indeed from the taking of any evidence at all during the course of on-site hearings conducted pursuant to s 34A and following sections of the Court Act. 16 As a result, after dialogue between me and Mr Hale and Mr McKee, solicitor for the council, I referred four questions of law to the Chief Judge pursuant to the provisions of s 36(5) of the Court Act. I referred those questions, although settled in conjunction with the parties, of my own motion. Those questions were as follows: (1) Is unsworn material provided orally by a non-expert during the course of a view, to be given the same weight as if the same material had been given as sworn evidence during the Court hearing? (2) If the answer to (1) is yes , is any distinction to be drawn between such material where it relates to general matters of concern and such material where it contains assertions as to the existence of facts or the occurrence of events which facts or events if accepted, are prejudicial to a party? (3) Is it a denial of procedural fairness to allow unsworn evidence to be taken during the course of a view from a person where (a) there is no notice given of that evidence and/or (b) that person does not give evidence on oath? and (4) If the answer to (3) is no in either instance, is any distinction to be drawn between such material where it relates to general matters of concern and such material where it contains assertions as to the existence of facts or the occurrence of events which facts or events have accepted are prejudicial to a party? 17 Those questions were referred to the Chief Judge for his consideration and he heard the parties on those matters during the course of the afternoon of 28 June. The chief Judge heard and dealt with those matters – see Khattar v Holroyd City Council [2005] NSWLEC 411. 18 At the conclusion of the hearing before the Chief Judge, the matter returned to me for closing submissions. Mr Hale made no further submissions to me, save and except as relating to Mr Cicero as earlier noted and dealt with in these reasons, and as a result, I have proceeded to consider the evidence of the various objectors who gave informal evidence on-site, the letters of those who wrote to the council expressing their concern, they being public submission to which I am obliged to have regard pursuant to s 79C of the Planning Act, and the evidence of Mr Curtis given in court. 19 I have accepted the evidence of all of those submissions to the extent that they have made assertions as to the existence of facts or the occurrence of events as proof unless contradicted by other evidence of the existence of those facts, or the occurrence of those events. 20 It is proper for me to consider, what weight I should give to any of those events in the context of whether or not there is a demonstrable connection between the event or fact and the premises which are the subject of this application. 21 There were essentially two matters in the appeal which are potentially determinative. The first is the issue of the emission of noise from the premises as a consequence of the entertainment at levels which caused unacceptable disturbance and were in fact during hours after midnight, audible and disturbing in habitable rooms of nearby dwellings, contrary to the Liquor Administration Board's conditions on the license of the premises. The second is the question of the behaviour of patrons departing the hotel and whether anti-social aspects of that behaviour would have an unacceptable impact on surrounding residences. 22 These matters, in addition to being before the Court as matters of general principle, arise as a consequence of the council's Development Control Plan No. 2 Commercial Code which in Pt 3 'Aims and Objectives' at subs (4) states an aim to preserve as far as practicable the amenity of residents in the surrounding locality of each centre. It is not contested by the applicant that that Development Control Plan does not apply to the premises. 23 The emphasis that I should give to such a development control plan is the subject of guidance by the Court of Appeal in Zhang v Canterbury City Council [2001] 115 LGERA 373. 24 From what was said in Zhang by Spigelman CJ at par 75 on pp 386-387, three propositions emerge. 25 First, although the Court has a wide-ranging discretion, that discretion is not at large and is not unfettered. 26 Second, the provisions of a DCP are to be considered as a fundamental element in or a focal point to my decision making process, particularly as is the case in this instance where there are no issues relating to compliance with the Local Environment Plan. 27 Third, a provision in the DCP directly pertinent to the application is entitled to significant weight but is not in itself determinative. 28 It is in that framework using the objective of Development Control Plan Number 2, to which I have referred, as the focal point of my decision that I turn to consider this application. 29 In Vincent v Randwick Council [2005] NSWLEC 142 at par 13, I set out the planning principles to be applied when assessing the applications for an extension of trading hours or the addition of further attractions at licensed premises, both of those being relevant in this context. 30 As I have reached the broad conclusion, that subject to a number of matters of detail, a further trial period is appropriate, I turn to consider the reasons for and the conditions subject to which I consider that such a further trial period might be operated. 31 I turn first to the issue of noise. 32 I have had the assistance of written evidence from Mr Cooper and written evidence and oral evidence from Mr Murray. Mr Murray, in his usual fashion, gave forthright assistance to the Court. 33 It is the agreed position of the experts that subject to a number of prophylactic measures being implemented, noise impacts on surrounding residential properties can be eliminated. 34 A number of those noise impact amelioration measures have already been implemented, and a number of further measures are to be implemented. 35 As those are technical matters, I do not propose to go over the technical standards that are required to be met, but merely note that a number of matters are appropriate to be confirmed in the conditions and Plan of Management to ensure that these noise standards are applied appropriately. 36 The first relates to the airlock at the north-eastern entrance to the area within in which the entertainment is to be provided. Mr Murray agreed that it was appropriate that reed switches, which automatically disable the music within the premises, should be installed on these doors in addition to and not in substitution for a human security guard presence seeking to ensure that both doors to the airlock were not open at any one time. That approach, that is, the human plus the mechanical, is in my view essential and appropriate to be required by condition. 37 The applicant in his proposed revised conditions suggested that the time delay for the suppression of music should both doors to the airlock be open, should be four seconds. I do not have any expert assistance on this point. However, Mr Murray had indicated, with respect to the noise limiter within the premises, that a two-second time delay was appropriate. In the absence of any expert evidence from the applicant in support of a four-second delay for the airlock, and reliance on an extrapolation from Mr Murray's evidence concerning the time delay for the internal limiter, I am satisfied that the time delay for the reed switch suppression of music for the airlock should be two seconds rather than four. 38 There is a second door to the room within which entertainment is to be provided – somewhat to the west of the airlock door. It is required for the purposes of emergency fire exit and is, subject only to lock bar activation, to be able to be used as an exit. The applicant does not propose human supervision, on any regular basis, of this door but proposes to isolate it by having a curtain across it during all relevant times when entertainment is to be provided in the vicinity. 39 Mr Murray agreed that this door should also have a reed switch for the suppression of music. The applicant proposes that there should be a four-second delay on this. I indicated during the course of the hearing (and I now confirm as part of these reasons) that accepting that the door is required for the purposes of fire exit, in the absence of human supervision of the door, I am satisfied that there should be a zero tolerance on the reed switch of that door and that any opening of that door, during the provision of entertainment, should result in the immediate cessation of music for the suppression period operating by the limiter. 40 With respect to the general issue of the limiter, Mr Murray's opinion was that a two-second delay was appropriate, that being consistent with the written advice provided by Mr Cooper. Mr Cooper had indicated that, in the circumstances of a two-second delay rather than a longer delay, it might be appropriate to consider a higher permitted noise level. I am not prepared to do that, as I indicated to the parties during the course of the proceedings. Hence, the noise limiter is now agreed to be subject to three effective controls: o it will set at the lower noise limit as originally discussed between Mr Murray and Mr Cooper; o it will be set to be activated on a two-second delay exceedance basis; and o the keys to the noise limiter will be held by the council and these will be the only keys so that there can be no adjustment to either the timing or level of the noise limiter unless that is done in conjunction with an officer of the council. 41 The final matter with respect to noise arises from a proposal by the council that Mr Cooper should carry out a number of random inspections during any further trial period and that that should be conducted at the applicant's cost. 42 I am satisfied that that is a modest and reasonable price for the applicant to pay. Mr McKee asked, rhetorically, during the course of closing submissions – applicable both to noise and to ant-social behaviour – "Should the residents be the enforcers of the Plan of Management?" It is quite clear that the answer to that question is "No, the enforcers of the Plan of Management ought to be the management of the premises." 43 However, to give the residents and the council a degree of certainty with respect to the noise matters, I am satisfied that it would be appropriate to require that Mr Cooper conduct three inspections during the further trial period, those to be at times of Mr Cooper's selection whilst entertainment is being provided at the premises and that testing should be at the cost of the applicant, with the results of that testing to be provided in writing to both the council and the applicant within a fortnight of such testing taking place. 44 I turn now to the question of anti-social behaviour. As I indicated earlier, evidence concerning anti-social impacts considered by various witnesses to arise from the operations of the hotel was given on-site and in court. I have had the assistance of a variety of public submissions concerning this matter contained in both the council's original bundle of documents, which was tendered before me on 10 May, and the council's supplementary bundle of documents which was tendered during the course of these proceedings. 45 The pattern of complaints clearly indicates that, as originally undertaken, there was a reasonably wide spread level of disquiet in the vicinity of the premises. It is important, in my assessment, to note that since the implementation of noise measures as part of the revised Plan of Management after the application before me on 10 May, there have been a significant reduction in the number of persons complaining about the activities of the premises. 46 Mr Eyeares gave evidence that, although inaccurate in one respect concerning the number of security guards in the car park, there had been additional activity including the operation of the noise limiter. I am satisfied that the applicant has made some significant progress in the implementation of elements of the Plan of Management since the middle of May and that that is reflected in the complaints concerning anti-social behaviour. 47 To some extent, this can also be reinforced by a consideration of the detailed list of events contained in Mr Curtis' diary, which was transcribed and presented as part of the supplementary bundle. 48 I note that after 10 May, the number of complaints made by Mr Curtis or recorded by Mr Curtis, concerning noise emitting from within the premises has lowered significantly and that there are complaints of 3 and 17 June only. 49 Whilst I do not have details of them, I am satisfied that the additional measures concerning reed switches and the like, may (but only may) have further ameliorative benefits for the local residents in this regard. I also ruled, during the course of the proceedings, that I would reject additional material concerning events about which Mr Curtis wished to complain, subsequent to the view, on the basis that effectively apart from submissions from the parties, the case had closed. 50 Mr Curtis' diary however, does provide a significant bundle of material for me to consider. I am satisfied that Mr Curtis' diary, which in many respects encompasses all or virtually all of the incidents complained about by others, falls into three categories. 51 The first is his recording of processes of absolutely all incidents which disturbed him. These are not all matters of fact from which I should draw any inferences adverse to the applicant, but do lead me to some remarks I will make towards the conclusion of these proceedings as to how the residents and the hotel should interact during the future trial period. 52 The second is that his material contained notes of some incidents where it is not possible for Mr Curtis to note other than the fact that he had been disturbed, but from all of which I could not draw, to the degree of satisfaction I consider would be appropriate, the necessary inference that the behaviour related to or arose out of the activities of the hotel. An example of this for instance, occurs on the evening of Saturday 22 January to Sunday 23 January where at 1.36 am Mr Curtis notes cars screeched tyres turning into McCredie Road and at 1.54 am, car horn, godfather theme sounds at traffic lights. 53 The third are incidents noted by Mr Curtis which are directly attributable to the activities of the premises, such as yelling in the car park, conversations in the car park, disturbances and the like, and incidents such as those observed by another witness of a person urinating on a sign in the car park. 54 Whilst there is a significant list of matters consistent with non-compliance with the tests which I enunciated in Vincent, I am also obliged to consider whether the proposed security and noise management plan, being bundled into the one document, could be turned into an appropriate and acceptably structure regime to be applied to the premises. 55 Second, the presumption is inherent in these Court's proceedings that if there were conditions attaching to the consent, the person bound by those conditions would abide by them. 56 I note in the context of this application, that there is correspondence from the Holroyd Local Area Command of the New South Wales Police, through its licensing officer, stating that the New South Wales Police do not oppose the extension of the trading hours or to the entertainment. The police have indicated that on both their COPS recording system and their incident despatch systems, there are comparatively few incidents reported to them concerning the hotel. 57 I noted in Vincent, at par 88, it is well recognised in proceedings of this nature that it is impossible for any licensed premises, no matter how well managed or vigorously patrolled (both within the premises and the immediate neighbourhood) to eliminate entirely all instances of anti-social behaviour. What I must consider is whether that which is proposed in the final version of the Plan of Management that is dated July 2005 (and as to be modified further in light of this decision), can sustain a further trial. 58 I am satisfied that I should confirm that I am not prepared to grant a permanent extension of the hours nor to grant an extensive further trial period. 59 I consider that a trial period which operated for a period of nine months from the date of this decision (or effectively until the end of February 2006) would be an appropriate period with the applicant being obliged to lodge any further application to the council not earlier than after the expiry of six and a half months – that is by mid-January 2006. 60 I am satisfied that for there to be a proper assessment of whether the Plan of Management has been effective or not, it is necessary that the trial period extend during a number of the summer months as I am of the view (and commonsense dictates) that there is a greater likelihood of persons both attending the entertainment during those warmer months, and secondly, being likely walk in the vicinity of the premises rather than use vehicles for transportation purposes. 61 It is during the first six and a half months of that trial period that I would envisage that Mr Cooper will conduct the additional unannounced, random testing of the noise controls. 62 It was Mr Eyeares' evidence that there was a significant shift in the clientele from his regular patrons to a differing clientele on the evenings when entertainment was offered. Founded on that, the applicant seeks that I approach the matter by granting it a permanent extension of the late trading and a further trial period of the entertainment element of that during the evenings upon which such entertainment is offered. 63 Mr Hale sought and obtained a deal of support for that in the pattern of complaints contained in Mr Curtis' diary, which indicates that, although not exclusively, the overwhelming predominance of the complaints by Mr Curtis which were linked to the hotel occurred on nights when entertainment is permitted. 64 I found this aspect of the matter the most finely balanced of the matters that require my determination. Although there is a deal of attraction to the counterproposition offered by the applicant that the extended hours should be made permanent and only the entertainment element made subject to a further trial, I consider that an appropriately cautious approach should be adopted and that the totality of the operations of the premises after its permanently approved hours should remain the subject of the further trial. 65 During the course of the hearing, a number of other matters arose upon which it would seem to me appropriate that I give the parties determinations to enable them to settle the conditions and the Plan of Management. 66 The first isthat some form of modest fencing structure atop the present brick fence might deter persons from sitting on the fence and yelling or otherwise behaving in a disturbing fashion, together with the gating of the aperture in the brick fence to the north-eastern corner. The applicant, as I understand it, has agreed to such a condition and subject to agreement with the council about the nature of that modest deterring fence, that will be incorporated in the conditions of consent. 67 I have had an indication to me that the parties are to discuss further the nature and level of security staffing during the later trading hours. Having considered the operational pattern within the premises as outlined to me by Mr Eyeares during the course of the view, I am of the view that a minimum of four security guards is essential on nights when entertainment is offered. 68 Those four security guards are required, in my view, for the following purposes: o One to patrol internally within the premises; o One to undertake limited patrolling in the airlock and in the vicinity of the airlock and bottle shop area; and o Two to patrol the car park grounds and, on the extended basis to be settled between the parties, the residential areas in McCredie Street, both to the east and west of Fairfield Road and in Fairfield Road to both the north and south of McCredie Street. 69 The pattern of that patrolling and its geographic limits should be set out in the Plan of Management. 70 The trigger for the provision of additional security guards that is contained in the draft of the Plan of Management should be assessed at 11.15 pm based on the number of persons in the main bar, and that that number should be one hundred as contended for by the council, rather than 150 as contended for by the applicant. 71 I have reached that conclusion because at 11.15 pm in licensed premises, at the location of the present site, one hundred persons is still a sufficiently significant number to be capable of causing disturbance in the neighbourhood if any or all of them were to act in an anti-social fashion. 72 I conclude by noting this. During the course of the inspection, Mr Curtis outlined (in a fashion which I do not need to provide any detail of in these reasons) the basis upon which he and his partner inhabited the various bedrooms of their dwelling – those circumstances warrantting a considerable degree of sympathy by me and by those who are aware of them. The matters that have been raised in the Plan of Management (as to be modified in light of this decision), I hope will go someway toward assisting Mr Curtis and his partner in that regard. 73 I note that in the Plan of Management, cl 15.1 proposes that the hotel manager (by which I assume the applicant means the licensee Mr Eyeares and if not, that should be clarified to make it clear that this be the case) will be available on the first Tuesday of each month of each quarter at 11 am to consult with members of the local community. 74 This is not a matter that arose during the course of the proceedings, therefore to some extent, my raising it at this stage might well be a denial of procedural fairness to the applicant. 75 However, the comments that I propose to make, in my view, are merely matters of commonsense and ought not be prejudicial to the applicant. 76 It seems to me that purely making himself available at 11 am on a Tuesday automatically virtually excludes any person in employment from having the opportunity to consult with him, if that resident wished to do so. It would seem to me that it might well be appropriate for Mr Eyeares to make himself available on two occasions, one during the course of a day and the second at some appropriate time to be settled between the parties at 6 or 6.30pm one evening for those purposes. 77 Second, I note in the Plan of Management that I was not able to find a requirement that the hotel designate a contact phone number which residents could call if they had complaints at any time during the trading of the hotel. 78 It seems to me a matter of commonsense and good neighbourliness that such a phone number be designated by the hotel and that initially (and on some regular basis that I do not propose to require as a matter of condition or in the Plan of Management), the hotel should letterbox the neighbours in the vicinity – probably in the area coincident with the area proposed to be patrolled by the security guards) of that telephone number, so that the residents are able to make contact with the hotel. 79 The single matter that I note out of Mr Curtis' evidence, which in his diary evidences a significant degree of perhaps understandable frustration and anger, is that Mr Curtis' complaints have been directed primarily to the police and the council rather than to the hotel. I would encourage Mr Curtis and his fellow residents to take the opportunity to take their grievances to the hotel in the first instance, in order to try and ensure that the Plan of Management works during the trial period because such an outcome is that which is desirable for all parties. 80 Having said that, the appropriate way to proceed further, is for me to require the parties to settle consolidated conditions of consent. I do not wish to, nor do I propose to publish as part of my orders in these proceedings, simply conditions that reflect amendments. 81 It is, in my view, desirable both for the operators of the hotel and those residents who wish to inspect them, together with council officers who are charged with enforcing conditions of consent, that there be a consolidated document that contains all of the conditions and the Plan of Management as an attachment in a single document. 82 Therefore I give the following directions: 1. The matter is stood over to call-over on 21 July 2005; 2. In the event that the parties are unable to settle a revised Plan of Management or consolidated conditions of consent in light of my reasons this morning, liberty is granted to the parties to re-list the matter before me on two days notice at 9am for my determination of any matters unable to be resolved or for dealing with any matters arising out of these reasons that the parties are unable to settle between them; 3. If the parties do settle revised, consolidated conditions and a revised consolidated Plan of Management with the conditions being annotated so that it is obvious which conditions have been amended as a result of this decision, I will make orders in Chambers and vacate the call-over on that occurring, providing I am satisfied with the terms of the Plan of Management as filed. 83 The parties are reminded, that any documents to be filed electronically in satisfaction of this direction, are to be filed in rich text format compliant with Practice Direction 2 of 2005. Tim Moore Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.