Tunborn Pty Ltd v Rockdale City Council [2010] NSWLEC 1143

Land and Environment Court of New South Wales

CITATION : Tunborn Pty Ltd v Rockdale City Council [2010] NSWLEC 1143

APPLICANT Tunborn Pty Ltd PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10885 of 2009

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT CONSENT :- Amend conditions of consent to extend hours of operation. Impact on residential amenity, particularly noise impacts

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Rockdale Local Environmental Plan 2000 Rockdale Development and Control Plan 67

CASES CITED: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99

DATES OF HEARING: 6 and 18 May 2010

EX TEMPORE JUDGMENT DATE : 19 May 2010

APPLICANT Mr M Staunton, barrister instructed by Mr K Stapleton of JDK Legal LEGAL REPRESENTATIVES:

RESPONDENT Mr J Cole, solicitor of HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

19 May 2010

10885 of 2009 Tunborn Pty Ltd v Rockdale City Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (council) of an application under s 96(6) of the Environmental Planning and Assessment Act, 1979 (EPA Act) to modify development consent (2009/57) for the Bexley North Hotel at 187 Slade Road, Bexley (the site). 2 Council granted development consent on 1 December 2008 for internal and external alterations to Bexley North Hotel, subject to conditions (the 2008 consent). The s 96 application seeks to amend condition 9 of the 2008 consent. Condition 9 reads as follows: The proposed hours of operation of the existing premises, a new alfresco gaming area shall be 5am to 12 midnight Monday to Thursdays, 5am to 1am Fridays and Saturdays, and 10am to 10pm Sundays. 3 The s 96 application initially sought to modify Condition 9 to permit the following hours of operation for the hotel: 9am to 12 midnight Monday to Thursday: 9am to 1am Friday and Saturdays: 9am to 12 midnight Sundays. With extended hours of operation (for a trial period of twelve months) for the bar, bistro and gaming areas as follows: 12 midnight to 4am Monday to Thursdays; 1am to 6am Fridays and Saturdays. 4 The applicant has now agreed to reduce the current hours of operation of the entertainment area and the outdoor beer garden to 12 midnight on Friday and Saturday nights (a reduction of one hour). The applicant has also reduced the area of the bar for which extended hours are sought, has limited the patron numbers to 60 for the extended trading hours and does not seek to trade past 10pm on Sundays for any part of the hotel. 5 The application also proposes amendments to other conditions in the 2008 consent and new conditions, which include maximum noise levels, compliance with a plan of management (POM), security arrangements and monitoring of compliance during the trial period. Site and its locality 6 The site is on the corner of Slade Road and Sarsfield Circuit, at the northern edge of the Bexley North commercial precinct. It is occupied by a single story hotel building, which dates from about 1958. Separate hotel accommodation is located on the Sarsfield Road frontage of the site. To the west, the hotel adjoins a council car park, which is accessed via Slade Road. 7 The site adjoins a residential flat building (22-40 Sarsfield Circuit) to the south. This building has ground floor commercial uses and an arcade, which connects the council car park to Sarsfield Circuit. 8 Other residential flat buildings adjoin the car park and front Sarsfield Circuit. Residential flat buildings are located to the north of the site across Slade Road. The western side of Sarsfield Circuit is developed with single dwelling houses, which front Irwin Crescent. Background 9 The history of the application, the operation of the hotel and complaints is contained in the Statement of Facts and Contentions and the report to the council meeting of 5 August 2009, which recommended approval of the s96 application. 10 The hotel is operating under the hours of operation in condition 9 of the 2008 consent. Prior to this consent, there was no development approval that restricted the hours of operation of the hotel, which operated under the hours of operation approved by the Liquor Licensing Board in March 1999. This included 24 hour trading, Monday to Saturday. As I understand, the approval of these hours by the Licensing Board was granted on the basis of a development consent being granted, however, no such consent has been granted. Planning Framework 11 The site is zoned 3(a) General Business under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposal is permissible with consent. The site adjoins a Residential 2(a) zone on the opposite side of Sarsfield Circuit. 12 Clause 12(3) of LEP 2000 provides: Except as otherwise provided by this plan, consent must not be granted for development on land within a zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of the zone. 13 The objectives of the 3(a) zone are: (a) to encourage appropriate business activities which contribute to economic growth and employment opportunities in the area, and (b) to provide a range of retail, commercial and professional services in appropriate localities, and (c) to promote urban consolidation policies by permitting the establishment of additional residential space in the form of mixed developments. 14 The parties disagreed on whether cl 12(3) applies to a s 96 application. Mr Cole, for the council, submits that it does apply. Mr Staunton, for the applicant, submits that it does not as it refers to consent for development and a s96 application is not a development consent. Nonetheless, he submits that the proposal is consistent with the objectives of the zone. 15 It is not necessary for me to adjudicate on the competing submissions in relation to the applicability of cl 12(3) to a s 96 application, but rather to determine whether the proposal is consistent with one or more objectives of the 3(a) zone, principally, whether the proposal is an appropriate business activity in an appropriate locality. This assessment is largely based on the impacts of the proposal on the amenity of surrounding residential development, which I discuss later in the judgment. 16 Rockdale Development and Control Plan 67, Crime Prevention through Environmental Design (DCP) is also relevant. Part 4 includes special requirements for different types of development. Clause 35 provides the following objectives and design suggestions for trading hours for commercial and retail development: Objective to provide adequate security to premises with extended hours of operation and to areas surrounding those premises.