Land and Environment Court of New South Wales CITATION : Secheny v Blacktown City Council [2009] NSWLEC 1361 APPLICANT Mark James Secheny PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10562 of 2009 CORAM: Hussey C KEY ISSUES: :- Hotel extended trading hours; amenity, anti-social behaviour LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1998 DATES OF HEARING: 28 October 2009 EX TEMPORE JUDGMENT DATE : 28 October 2009 APPLICANT Mr C Shaw (solicitor) SOLICITOR Shaw Reynolds Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr C Drury (solicitor) SOLICITOR DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 28 October 2009 10562 of 2009 Mark James Secheny v Blacktown City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal was lodged against the conditions imposed by council on a s96 modification application for the trading hours of the Bidwell Hotel, located in Carlisle Avenue, Bidwell. 2 The application proposed changes to the operating hours on the following basis: Monday – Tuesday; 10am to 12 midnight (no change). Wednesday – Saturday; 10am to 2am (+2hours). Sunday; 10am to 10pm (no change). Sunday (when followed by a public holiday); 10am to 12 midnight as allowed by s13 of the Liquor Act. 3 Prior to the subject application, a separate application was made to the Licencing Court in May 2008, which granted conditional approval to the extended late night trading hours for a 6 month trial period. 4 The subject application was notified and attracted 2 objections. One was from a neighbour opposite the hotel who is concerned about anti-social behaviour arising from late night trading. This objector does not support the application. The other objection was from the police, who also objected on the grounds of past anti-social behaviour incidents. 5 After further consideration of the application, the parties have agreed to consent orders, which allow the extended late-night trading until 2am for a 6-month trial period. 6 The objectors have been advised of the consent orders and todays hearing but have made no appearance. The evidence 7 In determining this matter I rely on the details contained in the Statement of Facts and Contentions (17 September 2009) and the applicant's reply. I have also considered the detailed council officer's assessment of the application, which is contained in the council's bundle (Exhibit1). 8 Accordingly, I note that the site is zoned 3(a) General Business under the Blacktown LEP 1988 and that the proposed variation and extension of the operating hours may be permitted with consent by council. Clause 9(3) provides: "Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is general consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. 9 The objectives of the LEP are contained in cl 2(2). From the submissions made, I am satisfied that the proposal satisfies the following 2 (c): (c ) to allow for a variety of business uses while consolidating existing co mmercial centres. 10 The objectives for the 3(a) (Special Business Zone) are contained in cl 9 and include: (d) to support general retail and commercial development of land within Zone 3(a) in identified centres by providing land for uses which service the needs of activities carried out in those centres . 11 I am satisfied that this development satisfies this objective. 12 Other relevant development controls are contained in the Blacktown DCP 2006. Of particular relevance Part D deals with development in the business zones. Section 3 of this DCP refers to the 'hierarchy of business centres', which limits development so as to comply with an overall retail strategy. I am satisfied that there was no substantive evidence to reject the proposal due to non-compliance with the intent of the DCP. In this regard, I note that conditions of consent have been imposed to cover the relevant design guidelines, including waste disposal. 13 For my consideration of the merits of the proposal and the objections, I have taken into account the unsatisfactory past history of the hotel and understand that it was subject to major rebuilding and a change in ownership and management in 2003. 14 The Statement of Environmental Effects acknowledged this unsatisfactory past and identified the following measures that were introduced to address this situation: 1. Banning troublemakers from the Hotel in order to ensure greater prosperity in behaviour both inside and outside the premises; 2. Encouraging the responsible service of alcohol and responsible conduct of gaming by requiring all staff to complete the relevant certifications, providing all necessary signage and providing continuous supervision to ensure adherence both by the presence of the licensee or senior managers and by the CCTV system; 3. Requiring - in addition - all duty managers to complete the Liquor Act module of a hotel licensee's course so that they are more aware of the obligations and duties of the licensee; 4. Installing an extensive network of closed-circuit television (CCTV) surveillance including thirty-two cameras connected to by two digital video recorders. (This is one of the most extensive and intensive CCTV surveillance systems installed in any hotel in NSW and meets all requirements stipulated by the Police. It covers every part of the licensed premises and its surrounds.) To ensure its effectiveness, all parts of the Hotel, including nearby external spaces, are also well lit; 5. Providing a courtesy bus for , patrons (which is available Wednesday - Saturday nights as well as on special even Sundays o transport patrons to their places of residence (provided that it is within five kilometres radius of the Hotel); 6. Participating in the Mt Druitt Liquor Accord Liquor which is a voluntary group (including local businesses, community members, Police and other government departments) that works together to introduce practical solutions to liquor-related problems; 7. Preventing the removal of glasses from the Hotel to reduce littering in the surrounding area; 8. Employing experienced staff and security personnel who ensure that patrons are safe in the Hotel an. leave it in a quiet and orderly manner. Security personnel also regularly patrol both the car parks and streets near the Hotel; and, 9. Encouraging a "designated driver" campaign to reduce the prospects of patrons of the Hotel driving while intoxicated after leaving the Hotel. 15 The SEE also states that: Evidence in a recent hearing of an application to the Licensing Court for a similar extension of hours was that - in the time the applicant has been licensee - there have been no complaints lodged against the Hotel's operation or patrons despite very close scrutiny by Police. As part of that hearing, the applicant's legal representatives employed a private surveillance company, RGR Gaming Pty Ltd, to undertake random surveillance operations at the Hotel (refer to Annexure 3). They visited it on 11 - 14 January 2007, and 3 January, and 10 January, 2008. The surveillance personnel (Messrs G Cook, L Cook and Dixon) did not identify themselves to anyone connected with the Hotel and the timing of their visits was not known to the applicant or any of his staff. The reports on these surveillance operations record no anti-social behaviour in the Hotel or in its vicinity, illustrating that the security in place is effective in preventing such behaviour. The applicant has received positive recognition for the improvements that he has made to the Hotel and for its role in the community, e.g. from Chifley College. He has strong local support for his style of hotel management e.g. from the Bidwill Residents Action Group. Overall, his approach to management has greatly enhanced the performance and reputation of the Hotel and significantly reduced its impacts on surrounding residents. Conclusion 16 Having considered the evidence and undertaken a view, I am satisfied that the application relates to substantially the original application, the objectors have been notified and that on merit, the consent orders should now be granted. In reaching this conclusion on the aforementioned evidence, I give weight to the upgraded measures introduced by the new manager and the fact that this has significantly reduced anti-social behaviour impacts. However, the approval is for a 6-month trial period, during which careful scrutiny of the late night trading can occur, to then determine if any extension is warranted. Court orders 17 The Court orders by consent: 1 The appeal under section 96(6) of the Environmental Planning & Assessment Act 1979 is upheld. 2 Modification application No. 07-2629 for variation to the hours of operation of the Bidwill Hotel at Lot 105 DP 251474, being the corner of Carlisle Avenue and Tongariro Terrace, Bidwill is approved subject to the conditions in Annexure A. 3. The exhibits be returned except A, B and 2. ___________________ R Hussey Commissioner of the Court ljr 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.