Land and Environment Court of New South Wales CITATION : Van New International Pty Limited v Newcastle City Council [2007] NSWLEC 28 APPLICANT: PARTIES : Van New International Pty Limited RESPONDENT: Newcastle City Council FILE NUMBER(S) : 10637 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Entertainment use Hours of operation Newcastle Local Environmental Plan 2003, (NLEP) Hunter Regional Environmental Plan 1989, (HREP) LEGISLATION CITED: State Environmental Planning Policy No 22 - Shops and Commercial Premises, (SEPP22) State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71)Newcastle Development Control Plan 2005, (NDCP) Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Carstens v Pittwater Council (1999) 111 LGERA 1 DATES OF HEARING: 12/12/2006, 13/12/2006, Notice of Motion 18/01/2007 DATE OF JUDGMENT: 25 January 2007 APPLICANT: Mr J Webster SC, instructed by Ms M Peatman, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Hunt & Hunt, Lawyers RESPONDENT: Mr T Roberston, SC, instructed by Mr B Glendenning, solicitor SOLICITORS: Harris Wheeler, Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 25 January 2007 10637 of 2006 - Van New International Pty Limited v Newcastle City Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Newcastle City Council (the council) to refuse a development application to alter, add, and refurbish the former Newcastle Post Office for use as bars, restaurant and function centre at Lot 103, DP 758769 being Nos 96-100 Hunter Street, Newcastle City, on the corner of Hunter and Bolton Streets. 2 The council granted conditional deferred commencement consent, however, the applicant was dissatisfied, in particular, by the condition restricting the hours of operation. The parties have now resolved other conditions that were in dispute and the noise control condition was the subject of the notice of motion in January 2007. 3 I visited the land in company with the parties on the morning of the first day of the hearing and I heard from local residents who mainly reside opposite the proposal at No 64 Hunter Street and from another resident who resides in Bolton Street. 4 I have concluded that internal noise may be controlled so as to be inaudible at the nearest residence. I am satisfied that with the responsible operation of the plan of management, the hours of operation of the entertainment use may be extended so as to be not incompatible with residential uses nearby and consistent with the council's policy for a 24-hour city. The land 5 The land is situated on the northeastern corner of the intersection of Bolton and Hunter Streets, Newcastle. It has a frontage to Hunter Street of 33.5m, to Bolton Street of 30.6m, northern boundary of 47.5m and a broken eastern boundary of 29.6m and an area of 1,120m2. 6 Erected on the land is the former Newcastle Post Office that occupies about 910 m2 of the land and there is a small-unbuilt-upon area on the eastern and northern sides. The building is listed on the State Heritage Register and is also listed as a State significant heritage item in the Newcastle Local Environmental Plan 2003. 7 The land is within the Newcastle Central Business District and is surrounded by commercial premises and residential apartments. Relevant planning controls Newcastle Local Environmental Plan 2003, (NLEP) 8 Under the provisions of the NLEP the land is zoned 3(c) City Centre, and the proposal is permissible with consent. Hunter Regional Environmental Plan 1989, (HREP) 9 The HREP applies to the land. State Environmental Planning Policy No 22 - Shops and Commercial Premises, (SEPP22) State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71) 10 These state policies apply to the land. Newcastle Development Control Plan 2005, (NDCP) 11 The NDCP applies to the land. The proposal and its history 12 Development application No 05/1258 was lodged with the respondent council on 14 July 2005 to alter, add, and refurbish the former Newcastle Post Office for use as bars, restaurant and function centre. The council has issued deferred commencement consent, however, the applicant brings this appeal on the basis of the council's restriction on hours of operation and other matters. 13 The proposal would involve the: · Restoration of the eastern, southern and western facades of the existing building. · Creation of a 'Basement Bar' on the basement level of the existing building. · Creation of a 'Lounge Bar' on the ground floor level of the existing building. · Alteration to layout of Mezzanine Floor Level to provide office and storage areas. · Creation of a 'Restaurant Bar' and a function centre on the first floor level of the existing building. 14 The proposed trading hours sought by the applicant are: (a) First floor restaurant and function centre: 10am to midnight, Monday to Sunday, as amended during the hearing to 10am to 5am Thursdays to Saturday; (b) Ground floor bar 10am to 3am, Monday to Saturday; Sunday 10am to midnight; (c) Lower ground floor basement bar 10am to 5am, Monday to Saturday, trade permitting and not on Sunday. 15 The veranda and balcony facing onto Hunter Street and to the east is to be locked off, so that there would be no patrons on the upper level after 6pm and on the ground after 10pm. There would be people leaving the building by the Hunter Street entrance after midnight. 16 Also, the applicant agreed to be bound by a condition that would require that no patrons enter the premises after midnight. Thus after midnight there would be no possibility of people leaving other entertainment venues to come to this one. 17 People leaving by taxi are to be encouraged call first and to go directly to the waiting taxi in the street thus reducing the opportunity for noise caused by talking and chatting. 18 The plan of management provides that security personnel are to be policing the area near the centre from 9.00pm to one hour after closing, to 6.00am. Two security personnel are to patrol the streets around the centre at 15-minute intervals and one (1) additional security personnel is to patrol the lane to the side of the apartment building opposite at No 67 Hunter Street and other security personnel would patrol the centre. Of the latter, two would be attached to the entry to the Basement Bar, and two to four would supervise the internal functions of the premises depending on demand. 19 The plan of management also requires the applicant to install security cameras (CCTV) inside and out to monitor activity along Hunter and Bolton Streets on a 24/7 basis. Neighbours are to be encouraged to report to the licensee any incidents of malicious damage. A system of monitoring complaints and response to these is to be set up. Notification 20 The application was notified to nearby owners and occupants between 23 August 2005 and 6 September 2005, and the council received seventy-six (76) submissions and of those sixty-four were form letters. Concerns raised by objectors included: · noise nuisance due to late night trading; · increase in anti-social behaviour and property damage; · general conflict with nearby residential occupancies; · access, parking and traffic, and · heritage issues, including that the proposed use would be inappropriate to the context. 21 On 23 February 2006 a 'Public Voice Session' that was held after a number of amendments to the application had been received. 22 On 12 April 2006 the respondent notified and publicly exhibited the Social Impact Assessment Report submitted to it on 29 March 2006 and submissions were invited until 1 May 2006. To this advertising there were fourteen (14) letters of objection. A further 'Public Voice Session' was subsequently held. 23 By letter dated 4 November 2005 the NSW Heritage Office granted conditional consent under s 83 of the NSW Heritage Act 1977. 24 The council's development and environment group reported that the Newcastle Urban Strategy includes objective and principles that apply to the proposal, [Note: Exhibit 1]: · accept that heritage places are integral to the City's identity; · adapt existing buildings to new uses whenever possible; · provide magnet attractions; · provide a complementary and balanced activity mix; · provide a diverse mix of uses throughout inner Newcastle; · there is a, …need for a 24-hour city… Future development in the Newcastle City Centre will contribute to a diverse range of uses by ensuring street blocks and buildings (both new and recycled) have a wide variety of uses within them. This will generate activity around the clock and ensure the City Centre becomes a safe and vital place to live, a place for economic and social exchange and a place of employment. The council's decision 25 The respondent granted conditional deferred commencement consent on 28 June 2006. The hearing 26 The appeal was filed on 21 July 2006. 27 On behalf of the respondent council nearby residents gave evidence on site: · Mr H Robinson and Mrs T-A Robinson, objectors, resident at No 1/67 Hunter Street, Newcastle; · Mrs A Rose, objector resident at of 2/67 Hunter Street, Newcastle; · Mr A J Goodwin, objector resident at of 2/12 Bolton Street, Newcastle. · Mr B J Suters and Mrs Suters, objectors resident at No 3/67 Hunter Street, Newcastle; · Professor R L Clancy, and Mrs C Clancy, objectors, resident at No 4/67 Hunter Street, Newcastle; · Dr and Mrs A Pell, objectors, resident at No 5/67 Hunter Street, Newcastle; and · Mr A J Goodwin, objector of 2/12 Bolton Street, Newcastle; · Mr R Tumney, respondent's acoustic expert. 28 On behalf of the applicant Ms E M Davis-Meehan, gave evidence relating to social criteria. Also, on behalf of the applicant, Mr S Brady, acoustic expert gave evidence. 29 Mr G Newton, Manager Development & Building Services (town planner) prepared the statement of basic facts dated 12 September 2006. The issues 30 On 12 September 2006 the council filed a statement of issues. Condition 1.2 - Hours of Operation Amend the current hours of operation prescribed in the Development Consent from: "The hours of operation of the bars, restaurant and function centre being restricted between 10am and midnight, Monday to Sundays inclusive..." to: "The hours of operation being restricted as follows: (a) Function Centre 10am to midnight; (b) Ground floor bar 10am to 3am; (c) Lower ground floor bar 10am to 4am..." (Now to 5am) Condition 1.8 - Should be deleted and replaced with: 1.8.1 The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - 8kHz inclusive) by more than 5dB between 07:00 am and 12:00 midnight at the boundary of any affected residence. 1.8.2 The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Bank Centre Frequency (31.SHz - 8kHz inclusive) between 12.00 midnight and 07.00 am at the boundary of any affected residence. 1.8.3 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 07.00am. Condition 1.9 - Concerning the Limit of Sound Levels within the Function Room: That this condition be deleted. Condition 1.10 - Concerning the Need to Conduct an Acoustic Assessment within the Noise Source and Receiver Locations. The appropriate condition is: An Acoustic Assessment is to be conducted by a suitably qualified acoustic consultant at the nearest residential receivers in Hunter Street, Bolton Street and Scott Street while all areas within the premises are operating simultaneously. Measurements are to be conducted at the exterior facade of each residence on two occasions within the first month of the operation of the premises. The results of the acoustic assessment, including any recommendations to reduce potential noise impacts and ensure compliance with the conditions of consent, are to be provided to Council within one month of the completion of the assessment and implemented within timeframes as nominated by Council. Condition 3.1 - Concerning the Method of Construction of Acoustic Blinds The appropriate condition is: Acoustic blinds being installed in the outdoor verandah areas on the ground floor and first floor, such to be pre-constraint Ferrari blinds or a material of comparable performance. The acoustic blinds are to be installed so as to completely enclose the outdoor areas except for access points into the building, with full details to be included in the Constructions Certificate application. 31 The noise conditions were resolved before the hearing. The acoustic blinds were agreed to be unnecessary if access to the balcony were restricted in time. 32 The question of the hours of operation was the salient issues. The evidence and findings Hours of operation 33 The residents of No 67 Hunter Street explained that they had responded to the council's encouragement and refurbished a heritage building to provide fine apartments and now that they are living there they would like to protect their amenity. 34 As a compromise they are content with the 12-midnight closing time that the council imposed on the refurbishment consent and they would not like to see the hours extended, even in the manner proposed. 35 They were concerned that the late-night trading proposed for the premises, opposite their dwellings, would be likely to exacerbate noise and anti-social behaviour that presently occurs in the vicinity of their building and might cause greater incidences of malicious damage in surrounding streets. 36 They were also concerned that noise from social gatherings in the street would disturb. They instanced people talking in the street at 3.30am and 4.00am presently that would be sufficient to disturb sleep. 37 Mr Goodwin of Bolton Street, an entertainer, was concerned for the noise in the street and also for the prospect that he would no longer be able to park his car and be able to conveniently transport his valuable acoustic equipment, as he presently does. He was concerned that he would have to compete for on-street car parking with the patrons of the proposal. 38 Ms Davis-Meehan told the Court that she believed that the proposal operating to 5am would be in the public interest. She considered that many of the existing amenity problems associated with on-street noise and anti-social behaviour would be addressed by the plan of management proposed by the applicant. In her report in Exhibit A, she supported her contention giving six reasons including: · staggered hours of closing of the various sections of the proposal would prevent spill of pedestrians onto the streets and a high peak taxi demand; · entertainment is a key component of the late night economy and the council seeks to encourage a 24-hour city for sound town planning reasons; · entertainment in the city is now predominantly a 10pm to 5am culture and the proposal would augment that; · 21 of the 76 licensed premises in the Newcastle local government area are licensed to 3am and 22 are licensed to 5am and there is one licensed premises for 1022 people over 18 in the Newcastle CBD against the state-wide average of 1287; · potential negative impacts of trading between midnight and 5am would be mitigated by following the plan of management; and · the physical refurbishment of the former Post Office would be positive and there would be increased surveillance in eastern Hunter Street between 9pm to 6am. 39 In oral evidence Ms Davis-Meehan confirmed her view that the proposal "…if well run" would be compatible with this part of the CBD taking into account the presence of dwelling and she prepared the plan of management to ensure this outcome. 40 She surveyed business operators in the CBD and indicated, "…the 5.00am closing was not supported by half of the respondents as they were concerned for anti-social behaviour". She said, "…people want to see something happen with that site but not something that is not well run regardless of closing hours." 41 When asked about nighttime activity in Bolton Street she said, "People make noise just being in the city. I have no concern about that sort of noise. I do have concern about anti-social behaviour." 42 She explained that smoking on street would be not possible after 10.00pm under the plan of management. 43 Carstens v Pittwater is authority that in the public interest, a consent authority, and the Court on appeal, should take into account its policies when assessing development applications. The Newcastle Urban Strategy adopted by the council seeks to encourage owners of both new and recycled building to use them for new uses that would contribute to a diverse range of uses. It promotes the concept of a 24-hour city. The present applicant has responded to this call, as did the owners of No 67 Hunter Street and in practice it is necessary to as far as is possible to protect the amenity of each use. 44 I am satisfied the applicant, in this case, has prepared a development application that would be likely to achieve a satisfactory level of amenity for each use. The applicant has adopted a principle that noise within the premises shall be inaudible in nearby dwellings. It is prepared to enforce a plan of management aimed at reducing to a minimum, noise impacts and anti-social behaviour by providing security personnel in the streets surrounding the premises until one hour after closing. 45 I accept the evidence of Ms Davis-Meehan, that the proposed staggered hours of closing for the various sections of the proposal, would prevent 'tidal wave' spill of pedestrians onto the streets. The 'tidal wave' of patrons flowing onto the streets at the closing of entertainment establishments would thus be avoided. Some patrons might be expected to flow out onto the streets at the 5.00am closing time; however, the security personnel are required to patrol the streets until 6.00am. 46 Throughout the night, patrons leaving the premises, probably in small numbers, would be controlled by the presence of the security personnel. I am satisfied that the applicant, if the plan of management is implemented responsibly, (and there is no reason to doubt that from the evidence before me), that the residential uses nearby and entertainment uses would co-existence and the amenity of each would be respected. In this way the 24-hour city sought by the council may be achieved. 47 I endorse the amended hours of operation sought by the applicant. I impose conditions of consent to incorporate those hours. Noise 48 Before the hearing the parties reached agreement on steps to be taken to ameliorate noise. The principle behind the agreement was that the activities within the premises should be inaudible at the nearest residential dwelling. Conditions are agreed to that would achieve that end. 49 For the above reasons, the appeal is upheld. Conditions 50 The conditions are those in Exhibit 2 as amended during the hearing. Addendum to reasons for decision 51 Around midday on 24 January 2007, the Court registry delivered a late submission by Mr Robertson, SC, in respect of this matter. He had reviewed the Newcastle City Centre Plan, Vision, Draft LEP, Draft DCP and Draft Civic Improvement Plan. His submission is dated 24 January 2007 and was to have been filed on Friday last 19 January 2007. I have not made this document an exhibit, however, I have carefully considered its contents and I have also briefly reviewed the attached documents. 52 Apparently, there is no mention in these documents of the concept of a '24-hour city' as was contained in the policy. However, I can find nothing to suggest the contrary either. 53 The Vision statement, for instance, particularly aims: · "to promote the economic vitalisation of the Newcastle city centre; · to strengthen the …Newcastle city centre as a multi-functional and innovative centre…; · to protect and enhance the vitality, identity and diversity of the Newcastle city centre"; · other admiral aims. 54 The Newcastle city centre Vision and draft plans are in the very early stages of consideration by the council and although I may have regard for them, there is nothing that I have gleaned that would cause me to review my decision. 55 In the light of these conclusions in respect of the submission of Mr Robertson, SC, I consider it unnecessary to wait to hear from Mr Webster, SC, in reply. Orders 56 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 05/1258 lodged with the respondent council on 14 July 2005 to alter, add, and refurbish for use as bars, restaurant and function centre, the former Newcastle Post Office premises at Lot 103, DP 758769 being Nos 96-100 Hunter Street, Newcastle City, is approved subject to a deferred commencement and Conditions 1 to 5.18 in Annexure A, together with advisory matters. 3. The exhibits except for Exhibits 1 and B are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.