> Land and Environment Court of New South Wales CITATION : Stokeston Projects Pty Limited v Liverpool City Council [2003] NSWLEC 185 APPLICANT: Stokeston Projects Pty Limited PARTIES : ACN 069 908 005 RESPONDENT: Liverpool City Council FILE NUMBER(S) : 10652 of 2001 CORAM: Lloyd J KEY ISSUES: Development Consent :- modification application - extention of tavern trading hours - social impact - modification refused LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 Liverpool Local Environmental Plan 1997 cl 2 cl 47 CASES CITED: Zang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 15/02/2002; 18/02/2002; 19/02/2003 and 20/02/2002 EX TEMPORE JUDGMENT DATE : 02/20/2002 APPLICANT: Mr S B Austin QC and Mr P R Clay (barrister) SOLICITORS: Bruce & Stewart LEGAL REPRESENTATIVES: RESPONDENT: Mr P J McEwen SC SOLICITORS: Marsdens Law Group JUDGMENT: - 3 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10652 of 2001 Lloyd J 20 February 2002 STOKESTON PTY LIMITED ACN 069 908 005 Applicant v LIVERPOOL CITY COUNCIL Respondent EXTEMPORE JUDGMENT HIS HONOUR: 1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 against the failure of the respondent, Liverpool City Council ("the council"), to determine an application to modify a development consent for a tavern, so as to extend the trading hours. 2 The development consent for which modification is sought was granted on 17 March 1997. That was a development consent for the erection of a shopping centre incorporating a tavern with a hotel licence within the suburb of Wattle Grove. 3 The development consent was granted subject to a condition, condition 14, limiting the hours of operation of the shops from 9.00 am Monday to 8.00 pm Sunday; but for the tavern or hotel, which includes a bottle shop and a TAB outlet, the hours were limited to 8.00 am to 12 midnight Monday to Saturday and 9.00 am to 10.00 pm on Sunday. 4 Condition 14 was subsequently modified in June 1999 to permit the supermarket within the shopping centre to operate 24 hours a day, seven days a week. The present application is to modify the condition to allow the hours of operation of the tavern to be from 8.00 am Monday to 10.00 pm Sunday continuous, effectively 24 hours a day except for the proposed closing time of 10.00 pm on Sunday. 5 The applicant also proposes, as part of the application for a modification, the incorporation of a plan of management to control the manner in which the tavern or hotel is operated. The applicant also proposes a time limited consent on a trial basis. 6 Wattle Grove is a planned suburb which has about two and a half thousand houses and having a population of about eight thousand eight hundred people. The shopping centre of which the hotel is a part is sited centrally within the suburb. 7 The grounds upon which the council resolved to oppose the appeal are largely the same as the issues raised in the appeal. Those issues are set out in a statement of issues filed on behalf of the council and are as follows: 1. The proposed modification will result in there being an unacceptable impact upon the existing amenity of persons residing in the nearby residential area in terms of: a. Noise generated by patrons both on and off the site during the early hours of the morning; b. Anti social behavior [sic] of patrons off the site including violence, street drinking, vandalism, graffiti and litter. 2. The proposed modification will result in a development that is inconsistent with the established character of the area. 3. The proposed modification is inconsistent with objectives (c) and (e) in clause 2 of the Liverpool Local Environmental Plan 1997 (LEP 1997). 4. The information supplied with the application is inadequate in respect of likely noise and social impact. 5. Whether the proposed development will have an adverse social impact on the locality in terms of: a. The welfare and safety of the local community; and b. Anti social behavior [sic] of patrons off the site including violence, street drinking and vandalism. 6. Approval of the application would not be in the public interest having regard to the large number of persons in the local community who have objected to the proposed modification. 7. There is a lack of public transport to and from the hotel during the early hours of the morning. 8. The proposed modification is not sensitive to potential problems in terms of safety, security and criminal activity. 8 The shopping centre is subject to the Liverpool Local Environmental Plan 1997 ("the LEP"). Clause 2 of that instrument sets out the general objectives of the plan. Two of the objectives in particular are relevant. (c) to facilitate economic activity within the city of Liverpool without adverse social, economic or environmental impacts, and … (e) to protect and improve the amenity of the City of Liverpool… 9 The Wattle Grove Plaza shopping centre is located on land within a 3(a) business zone. It is common ground that the development is permissible with development consent. Clause 47 of the LEP applies to development within the 3(a) zone. It relevantly provides as follows: Consent may be granted for a building on land within the 3(a) zone only if it would be compatible with the character and amenity of the existing and likely future nearby residential areas in terms of … (b) its operation, and… … (d) noise, light, dust and odour nuisance, and … … (g) hours of operation, and … 10 The application to modify the consent was advertised. It attracted 101 submissions objecting to the application and 31 submissions plus a petition supporting the application. After the appeal to the Court was lodged, the application was considered by the council's Independent Hearing and Assessment Panel and then at an ordinary meeting of the council. The council resolved to adopt the recommendation of the Independent Hearing and Assessment Panel to oppose the extension of the operating hours proposed in the application and to defend the deemed refusal in the Court. 11 The predominant land use in the area surrounding the shopping centre in which the hotel is situated is residential dwellings. St Marks Coptic Orthodox School is next to the shopping centre and is separated from the hotel by a loading dock. There is a church at the opposite end of the shopping centre. There is also a community facility building in the shopping centre. 12 The Court has heard evidence from a number of residents of Wattle Grove who object to the proposed modification of the consent. The Court has seldom heard from resident objectors as impressive as these. They were intelligent, sincere and objective. Their objections are based upon the fact that the tavern is at present the source of a number of problems of a behavioural nature which have an adverse social effect upon the amenity of the nearby residential areas. 13 The adverse social effect observed by residents and related to the tavern which occurs at present includes acts of vandalism in the adjacent car park caused by drunken patrons, altercations in the vicinity of the tavern by drunk patrons, noise and bad language made by departing patrons, discarded and broken beer bottles and cans purchased in the tavern and which frequently litter the streets and walkways, fences being set on fire by drunken patrons, local signs being torn down or run over by drunken patrons and a lack of control by the hotel's security staff to control such behaviour. 14 There is also in evidence a number of studies demonstrating a link between adverse social impact and the consumption of alcohol. The adverse social impact is as follows: An increase in assaults and interpersonal violence relating to the consumption of alcohol. An increase in rates of malicious damage to property. An increase in rates of offensive behaviour. An increase in theft and house-break and the opportunity for persons with gambling problems to further compound those problems. 15 The linking of the use of the subject hotel with the kind of behaviour described in the studies is not, however, established by any direct evidence; but the studies themselves cannot be ignored. 16 Mr E P Smith, a director of the applicant, gave evidence that the applicant was the developer of the Wattle Grove Shopping Centre. When the shopping centre was opened before the tavern opened, there was vandalism to property (especially graffiti), damage to street signs and the smashing of bottles on footpaths in and around the shopping centre. 17 The evidence of the objectors, however, cannot be ignored. The court has no reason to doubt the accounts given by the objectors of an increase in anti-social behaviour described by them since the opening of the tavern and their observations attributing such behaviour to drunken persons who had come from the tavern. 18 Some evidence was called from residents who support the application. In my opinion, greater reliance can be placed on the evidence of those residents who live closest to the hotel and who thereby have had a greater opportunity to observe and experience the conduct of which they complain. Those residents were totally opposed to the application. 19 One resident objector, whose evidence I completely accept, attested to the poor management of the facility: The Wattle Grove Hotel is known by soldiers based at Holsworthy as a good location to drink as they will continue to serve alcohol until patrons are paralytic drunk. The claim that the hotel enforces a responsible service of alcohol policy is completely false. In my experience, as the Senior Operations Officer at Headquarters Fire Brigade 1998 to 2000, the Army Area Commander's Headquarters for the Liverpool Military area provided me direct evidence that responsible serving of alcohol does not occur at the Wattle Grove Hotel. 20 The tavern, as I have said, is the present source of an adverse social effect under its existing limited hours of operation. That being the case, the residents say, and I agree with them, that the present adverse effect would become worse and would be extended over a longer period if this application were granted. 21 Acoustical evidence was called for by the applicant and the council respectively. The evidence of Mr G Atkins, the acoustical engineer who gave evidence for the applicant, was in relation to noise generated within the building and in the car park. His evidence does not deal with the problems identified by the resident objectors, namely persons shouting and using bad language on the walkways and pathways adjacent to the residents' houses. It is self-evident that such behaviour on walkways or pathways adjacent to houses would be extremely annoying, particularly at night. This impact was noted by the acoustical engineer called by the council, Mr A Day. As I have noted, such behaviour has in the past disturbed some of the objectors who gave evidence. 22 The application to modify the consent is also strongly opposed by the New South Wales Police. Sergeant Grove-Jones, the Licensing Supervisor at Liverpool, referred in his evidence to numerous occasions on which police have been called out to control drunken behaviour of persons who had been drinking at the tavern. He also referred to police records showing numerous occasions on which persons found driving with the prescribed concentrations of alcohol had come from this tavern. In his opinion, any extension of hours would cause further problems in what should be a quiet and orderly neighbourhood. 23 The proposed plan of management may offer increased security in the car park, but not necessarily in the surrounding residential area. Unfortunately there has hitherto been a lack of control by the applicant's security staff to restrict the behaviour of which the residents complain. This does not engender confidence in the ability of the management to implement the management plan, neither does it engender confidence that the management plan will resolve the problems highlighted by the residents. 24 There is nothing in the proposed management plan itself which gives me confidence that the management can control altercations and bad language, the throwing of bottles, and the other conduct of which the residents complain. 25 The facts to which I have referred show that the proposal does not comply with objectives (c) and (e) of the objectives of the Liverpool Local Environmental Plan 1997 to which I have referred. Neither does it comply with paragraphs (b), (d) or (g) of cl 47 of the LEP to which I have referred and which provides that consent may be granted only if the development is compatible with the character and amenity of the existing nearby residential area. 26 The applicant submits that the application should be approved on a time limited basis. Reliance is placed on the observations of the Chief Justice in Zang v Canterbury City Council (2001) 115 LGERA 373 at 387 and 388: I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision-maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to take into consideration matters even though their full significance cannot be known with precision. Where, as in this case, the nature of the development application is for the "use" of existing premises – and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion. The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the "likely impact" or "suitability" will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent, were not, in the event, extended. The focus is then on likely impact during the probationary period. 27 In the present case, however, a time limited consent or probationary period would not be appropriate. This is because the existing use of the premises under the existing hours of operation has been demonstrated to be both inappropriate and unsatisfactory. There is no utility in having a probationary period. The adverse effects of the existing use of the premises have been demonstrated. It is self-evident that any extension of the trading hours would only compound those existing adverse effects. 28 The applicant points to two other taverns which are operated, one at Campbelltown and the other at Leumeah, both of which operate for 24 hours a day on most days and without any apparent adverse social or amenity impacts. Neither of those facilities, however, are in areas where the predominant land use in the surrounding area is that of residential dwellings. The tavern at Campbelltown is located within an industrial area and the tavern at Leumeah, although having some residential development in its proximity, appears to be in an area which is largely commercial and retail. Moreover, none of the residences at Leumeah are as close to the tavern as those at Wattle Grove. In neither of those cases is the location comparable to Wattle Grove. 29 It follows from what I have said that issues 1, 2, 3 and 5 in the statement of issues are determined in favour of the council. For these reasons the following formal orders are made: (1). The appeal is dismissed. (2). The application to modify condition 14 of development consent No. 409/97 granted by the respondent on 17 March 1997 so as to amend the hours of operation for the tavern to permit trading from 8.00 am Monday continuously until 10.00 pm Sunday is refused. (3). The exhibits may be returned. I hereby certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 20 February 2002 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.