Land and Environment Court of New South Wales CITATION : Cobreloa Sporting Club & Ethnical Club Limted v Fairfield City Council [2007] NSWLEC 54 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Cobreloa Sporting Club & Ethnical Club Limited PARTIES : RESPONDENT Fairfield City Council FILE NUMBER(S) : 11472 of 2005 CORAM: Talbot J KEY ISSUES: Prevention Notice :- Revocation of Direction to Take Preventative Action issued by council and direction to council to issue a Prevention Notice containing specific conditions. LEGISLATION CITED: Environmental Planning & Assessment Act 1997 s 109 Protection of the Environment Operations Act 1997 s 96 DATES OF HEARING: 30/01/07, 31/01/07 EX TEMPORE JUDGMENT DATE : 31 January 2007 APPLICANT M Carpenter (Barrister) SOLICITORS Avondale Lawyers LEGAL REPRESENTATIVES: RESPONDENT A Pickles (Barrister) SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 31 January 2007 11472 of 2005 COBRELOA SPORTING CLUB & ETHNICAL CLUB LIMITED v FAIRFIELD CITY COUNCIL JUDGMENT 1 Talbot J: These proceedings are by way of an appeal against a Direction To Take Preventative Action made by the respondent council under the terms of s 96, Protection of the Environment Operations Act,1997. 2 The premises comprise a building in the form of a hall or club room surrounded by some outdoor areas which are used in conjunction with club activities with further areas set aside for parking. All of the areas are within the precinct of Fairfield Park, a public place where members of the public enjoy unrestricted access virtually on a 24 hour basis. 3 The applicant has occupied the premises as a club since 1987. The building was erected in the early 1940's to function as a scout hall. As a consequence of the continued use of the premises prior to the coming into operation of planning restrictions and controls relevant to the use of the premises for those purposes, it is recognised that no development consent is currently required for the current use. There may be other issues in regard to the manner of carrying out the use but they are not relevant for the present purposes, except to the extent I just noted. There is no development consent. It may be symptomatic of that that problems have arisen as there is no regulatory control over the way activities are conducted on the premises. 4 Pursuant to Fairfield Local Environmental Plan, 1994 the land is within a 2(a1) Residential A1 zone. A club use is permissible with development consent. The applicant contends it has the benefit of s 109 of the Environmental Planning & Assessment Act, 1997. 5 The original direction made by the council was dramatic. It might have been described as draconian in that it effectively precluded any activities within the premises and would have resulted in total curtailment of the club's activities at the site. 6 The council has not conducted its case on the basis that it is implacably wedded to such a blanket restriction. The council contends that the activities of the club should, in general, cease by 10:00 pm. 7 The applicant concedes that such a restriction can apply from Sunday to Thursday. There is no real issue about that. The contention arises in relation to the use of the club for its purposes on Fridays and Saturdays. 8 The premises have been used as a club for the best part of twenty years. The evidence shows that any intrusion of noise into the residential locality adjoining the premises has been tolerable until the last few years. However, in the last two or three years there has been a spate of complaints, submissions and references made to the council by a number of residents in the immediate locality complaining about the activities at the club. These relate generally to the generation of noise and to a lesser extent, as a consequence of dust generated by cars travelling across what is described as an unmade track or road. 9 The dust issue is one raised by the evidence but it is not the subject of the notice issued by the council. To a very large extent that is understandable given that the dust generation occurs on council land over which the club has no direct control. 10 The difficulty for and confrontation with the neighbours commenced when the functions extended into the early hours of the morning. I heard evidence today of the fact that there have been people on the premises up until 5:00 am and even 7:00 am in the morning, either during or after a function has been held at the premises. I am not too sure what their activities were. Clearly, activities to any extent exceed a reasonable expectation of neighbourly conduct. 11 I generally accept the evidence of the residents that they experience difficulty in maintaining sleep for themselves and their families or even enjoying ordinary conversation within their homes at various times when club activities have been at their zenith. 12 I have not heard any evidence from the club that outrightly denies such activities. The president of the club, with due respect to him, was circumspect in that he was not able to give direct evidence of functions on occasions that finished late at the night and in respect of which complaints had been made. He told the Court he had not been present upon such an occasion. 13 The neighbours have expressed their concerns to the council and there are records of that. They told me that they have also complained to the police. The records in that latter respect are a little scant but nevertheless that is their evidence. They were given the opportunity to give their evidence this morning at the club premises. The obvious thrust of this is that there has been a marked increased propensity for the club to operate into the early hours of the morning. 14 The major impact on amenity in this respect is the level of noise generated by patrons talking, laughing and otherwise having social intercourse, music generated from within the premises as well as general car park noise when patrons are leaving. The general car park noise derives from loud talking in the vicinity of the cars, car doors slamming and engine start up. These are typical of complaints made when patrons are leaving clubs or commercial premises during night hours. 15 I found the evidence of the neighbours compelling and reliable, particularly as when they were pressed, they made what I consider to be reasonable concessions in favour of the club in respect of the hours it might be allowed to operate later into the night rather than just up until 10 o'clock in the evening. 16 The Court appointed expert was a noise consultant, Mr Hayden. He described the impact on amenity after 10:00 pm as being unacceptable using night time standards. Although he recognised that works of insulation could be undertaken in the club building, he insisted that the problem would nevertheless remain in respect of outdoor activities, particularly in the car park areas. 17 There was some discussion about the type of works that could be carried out. These included filling in the ceiling. However, there is not sufficient particularity and specification for the court to embark upon a specific direction in that respect. Nevertheless, it would clearly be in the club's own interests to take such steps that are available to it in economic terms, to soundproof the premises as far as is practicable. 18 If Mr Hayden had his way, the work contemplated would, on his own admission, result in a totally closed environment. This obviously may have other consequences. The criteria used by Mr Hayden is based on an inflexible application of standards that do not take into account any discretionary elements, such as the historical use of the premises, location within a public park, the advent of more recent development or in this case, the intensification of residential development by the improvement and upgrading of existing residences. 19 I have taken account of the period of time over which the club has operated and its location in a public park other unrestricted activities take place on an ad hoc basis. Nevertheless, it is apparent to me that the tolerance of the neighbours has been sorely tested in recent years. They are entitled to the court's assistance in gaining some respite from the continuous intrusion into their weekend time for relaxation and rest. 20 At the same time, as Ms Carpenter rightly points out in her submissions, the club must be allowed to operate in a feasible way for the benefit of its members. This gives rise to the Court seeking a happy medium. I perceive the very fact of a formal control over the club's activities will bring some comfort to the neighbours who can then have a reasonable expectation of when and in what manner activities will be conducted at the club rather than the more random, uncontrolled, unscheduled existing program. This element of certainty will also assist the club to conduct its activities in a way that is perceived by the Court to be a reasonable and rational way thereby compromising the needs of the club with the amenity of the residential neighbourhood. 21 Immediately prior to inviting the respective counsel to make submissions and after visiting the site this morning, I indicated what I, at that point, considered to be reasonable conditions that could be imposed under a notice pursuant to s 96 in terms directed by the Court following the hearing of the appeal. 22 Ultimately, the applicant sought but one further indulgence. Whereas I had indicated that it appeared to be reasonable to require that the premises be vacated by midnight on both Friday and Saturday nights, Ms Carpenter put to me upon her instructions, that as the club members had traditionally conducted card nights and bingo nights on Friday nights after completing their work, they would prefer to be allowed at least a further half an hour or even an hour up to 1 o'clock to enjoy these activities. 23 Mr Pickles, on behalf of the council responded to that request and indicated I think quite reasonably that the Court should appreciate that midnight is in a sense a Cinderella time. People expect that after midnight there should be a total respect for the amenity of a residential area irrespective of what other commercial activities or club activities might be interposed into that locality. 24 I appreciate that club members enjoy the opportunity for these card nights and bingo nights, and still they may. The Court does not agree with the council that all activity should cease at 10:00 pm. Nevertheless, I intend to draw the line at midnight. That is part of reaching the happy medium I referred to a moment ago. Compromise is a part of life and the rights, interests and comforts of individuals must be mutually respected. Accordingly, I proposed to require that the patrons vacate the premises on both Fridays and Saturday nights by 12 midnight and that the premises be closed and vacated by 12.30 am. 25 I will reiterate what form a notice should take. I will take further submissions in a moment as to whether the Court should make a formal order to this effect or whether having articulated the conditions of the notice the council is prepared to accept a direction by the Court to issue a notice in that form. Prior to making those submissions, I find that the notice should contain the following direction:- Pursuant to s 96(2) of the Protection of the Environment Operations Act, 1997:- a) There shall be no use of the premises after 10:00 pm from Sunday to Thursday. b) On Fridays and Saturdays the use of the premises shall be regulated as follows:- 1. No organised or formal use of the outdoor areas of the club premises after 10:30 pm. 2. No amplified music or other volume enhanced noise generating entertainment to be produced within the club premises on Friday nights or after 10:30 pm on any Saturday night, except one Saturday night in each calendar month being at least three weeks apart. 3. Patrons to vacate the premises by 12 midnight. 4. Premises to be closed and vacated by 12:30 am. 5. No operation of the kitchen fan after 10:00 pm except on the Saturdays nominated as an exception in 2. 6. That a designated member of the club patrol and supervise the car park area with the object of noise minimisation after 10:00 pm. c) A sign is to be displayed in legible size in a prominent position near the exit from the club building demanding that patrons of the club leave quietly and respect the amenity of the neighbours after 10:00 pm. d) Rubbish bin removal and replacement is to be limited to the hours between 7:00 am and 7:00 pm. e) That the Direction To Take Preventative Action issued by council on 21 November 2005 be revoked and that in lieu thereof the council issue a Prevention Notice pursuant to s 96(2) directing the club to carry on its activities in accordance with the conditions prescribed. 26 I will have the judgment taken out so there can be no doubt as to the intention of a) b) c) and d). 27 The formal orders of the Court are: 1. That the Direction To Take Preventative Action issued by Council on 21 November 2005 be revoked and that in lieu thereof the Council forthwith issue a Prevention Notice pursuant to s 96(2) Protection of The Environment Operations Act, 1997 directing the club to carry on its activities in accordance with the conditions contained in the judgment. 2. The exhibits may be returned. 3. No order as to costs. 26/02/2007 - The name of the applicant appeared as Ethical. It should be Ethnical.The representation by solicitors has been reversed. - Paragraph(s) - 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.