Land and Environment Court of New South Wales CITATION : Karunaretnam v Strathfield Municipal Council [2007] NSWLEC 688 APPLICANT Sinnappu Karunaretnam PARTIES : RESPONDENT Strathfield Municipal Council FILE NUMBER(S) : 10772 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- extension of trading hours for an existing restaurant LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 21/09/2007 and 25/09/2007 DATE OF JUDGMENT: 9 November 2007 APPLICANT Mr O. Stitcher, solicitor of Otto Stichter & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 9 November 2007 10772 of 2007 Sinnappu Karunaretnam v Strathfield Municipal Council JUDGMENT The Appeal. 1 This appeal was lodged against council's refusal of a development application, which proposed the extension of trading hours for an existing restaurant at 32 Burlington Road, Homebush. The change in operating hours involves: o Approved operating hours; 8 a.m. to 8 p.m., seven days per week. o Proposed trading hours; 7 a.m. to 10 p.m., seven days per week. 2 The subject site is zoned Business 3 (a) under the Strathfield Planning Scheme Ordinance. Clauses 41C and 61 GA (e) are relevant where development on land adjoins land in a residential zone. The proposal is permissible within the zone. 3 The subject site is located on the fringe of the business area of the Homebush town centre, somewhat detached from the other business uses. The majority of the uses in the main business area have opening hours generally restricted to 10 p.m. closing, or earlier. 4 The issues identified for the appeal can be summarised as follows: o Amenity impacts; in terms of unacceptable acoustic impacts on the neighbouring residential properties. o Public interest; in terms of objections raised from neighbours. 5 The parties agreed that this matter be determined by way of a s 34 Conference. Determination. 6 The issue concerning acoustic impacts arises because of the configuration of the restaurant and its ancillary basement garages. The restaurant effectively comprises 3 shopfronts to Burlington Road with kitchens at the rear, which have doors that open into an enclosed basement garage. This garage has a common wall with the residential property No 31 Rochester Street, which contains some minor openings for air circulation and overland flow path. 7 According to the neighbours' objections, some activities associated with the restaurant kitchens, cleaning and staff activity have been undertaken in the car park area, which has caused noise and disamenity to the neighbouring properties. Particular concern was expressed about the existing later night trading, which then results in cleaning activities in the car park causing noise disturbance. The neighbours spokesman referred to the openings in the common boundary wall, which allow the transmission of noise onto No 31 Rochester Street. 8 In response to these acoustic concerns, the applicant provided a report from Koikas Acoustics Pty Ltd, which assessed the noise sources identified as emanating from the kitchen area and other noise sources arising from activities in the basement carpark. According to Mr Koikas, councils' nominated noise criteria that noise from the subject premises is not to exceed the background noise level + 5dB(A), i.e. as expressed by the L eq should be achievable, subject to implementation of the following noise mitigation measures: o Noise emanating from the kitchen is to be acoustically attenuated by way of replacement of the metal security screen doors with either a 10.38 mm thick glazed or solid timber doors, fitted with perimeter and threshold drop-seals. o Management control of persons using the car park area, to minimise noise transmission through the ventilation louvres on the common boundary wall. 9 After discussions between the parties, it was agreed that the restaurant could be permitted to trade for the extended hours until 10 p.m., on the basis of a 12 month trial period. This trial period would be subject to conditions of consent being imposed to control and minimise noise disturbance to neighbouring property owners. However, the parties were unable to agree on the 'close-down' and vacation arrangements to achieve this. 10 By reference to the draft conditions of consent, I accept that it is reasonable to extend the operating hours to allow the restaurant to operate until 10p.m., for the proposed 12 month trial. Although, I note the applicant prefers that patrons be allowed to remain longer on the property until total vacation by 11 p.m., in order to complete their dining experience. Against this, the council accepts that it is reasonable to allow some time for the patrons to complete their dining, then vacate the premises in an orderly manner after the permitted closing time of 10 p.m. The council submission in this case is that this should not exceed 30 minutes. 11 The question of what is the actual vacation time for all persons from 'late-night' trading premises, after the designated closing time arises sometimes, particularly when there is no late-night trading policy. Concerns are often expressed in this regard where the late night closure is likely to contribute to anti-social behaviour or environmental disamenity in the neighbourhood. 12 In the absence of any policies, which provide specific local controls for late-night trading, but recognising the provisions of the Liquor Act 1982, I have adopted the following approach: 1. Determine the appropriate trading hours for the establishment, which are consistent with the existing/desired future character of the neighbourhood, on the basis that an additional 15 minutes is allowed for patrons to vacate the premises. 2. Consider the type of activity/service offered in terms of patrons expectations on entering the premises shortly before the closing time and determine whether it is appropriate to impose conditions, which require a management plan to detail the restriction on services prior to the close of trading time. 3. Consider the circumstances of the development proposal in terms of likely environmental impacts of patrons remaining on the premises and subsequently leaving. 4. Take into account any Plan of Management (POM) for the establishment, which includes measures to control disamenity, i.e. whether there are security patrols of the area. 5. Consider any requirements for staff/cleaners to remain on the premises after closing time and the necessity to impose specific conditions of consent. 13 From this approach I have adopted the following: Planning Principle ; Trading Hours. The closing time stipulated in conditions of consent for late night trading premises is always the time that the doors close and trading ceases and which requires all patrons to vacate the premises within a further 15 minutes. It is up to the management of the hotel/restaurant/club etc to establish the cut-off time for entering the premises, or for placing orders, that is necessary to comply with the condition relating to the closing time. After patrons leave, staff will be left on the premises to clean and lock up. Their noise is likely to be less when they leave because they are fewer in number and they are unlikely to have consumed alcohol. It will not ordinarily be necessary to specify the time by which staff must leave the premises unless there are special circumstances such as a high number of staff or specially noisy cleaning procedures or sensitive land uses (such as a nursing home) nearby. 14 Applying this principle to the current matter, my assessment of the evidence is that this existing restaurant is located on the periphery of the Homebush commercial area where the general closing time of commercial premises is before 10 p.m. The property has an enclosed sub-basement car parking area, forming a common boundary with adjoining residential property, which has attracted objections from the neighbours on the basis of excessive staff and cleaning noise emanating from the car park. 15 However, all patrons access to the restaurant is via the entrance doors in Burlington Road, which is oriented away from the rear, residential properties and should restrict direct noise disamenity from patrons. 16 The evidence indicates to me that a reasonable closing time is 10 p.m. to maintain reasonable compatibility with character and amenity of this immediate neighbourhood, which includes residential properties. However the restaurant menu is comprehensive indicating that patrons dining experience could comfortably exceed 1 hr. Accordingly, late entering patrons should be advised that no service is available after 10 p.m., so that the desired neighbourhood amenity is maintained and in this regard, the parties agree that there is to be no cooking or food preparation after 10 p.m. 17 Consequently, I accept the councils submission that for the 12-month trial period for this particular development, the patrons should be required to vacate these premises by 10.30 p.m., rather than the afore-mentioned 15 minute vacation time. This restriction is to be included in the conditions of consent. 18 Whilst the majority of patrons will enter/exit the premises from Burlington Road, nevertheless any users of the basement carpark could potentially cause unreasonable noise disturbance to neighbours. In these circumstances, management arrangements should be made that also require the vacation of the car park by patrons by 10.30 p.m. 19 As the noise generated by staff and cleaners was raised as an issue in this case, the applicant has presented a cleaning management plan which provides for the kitchen areas opening onto the carpark to be cleaned first and completed by 11.30 p.m. 20 The other internal cleaning can be undertaken as determined by management, subject to compliance with the acoustic conditions of consent imposed on the development. The conditions of consent can cover this. 21 In this case, I accept that the manager lives on the premises and some staff are required to remain on the premises for a period to effectively close down the operation and supervise cleaning and other activities. Providing this is undertaken in accordance with the acoustic conditions, I do not consider it necessary to impose specific conditions on staff limitation hours. However I accept the parties agreement that during the trial period, 2 staff members can remain after midnight. This is on the basis that any associated restaurant activities in the car park comply with the noise limitation condition. 22 The other outstanding matter concerns use of the car parking area for storage associated with the restaurant. On the basis of health considerations, I accept the council submission is that there should be no food preparation, cooking or storage of food products in the garage. If however space is available for appropriate storage shelves adjacent to the car parking spaces to allow are storage of "non food items" such as cleaning equipment, this can be undertaken, providing it complies with the overall conditions of development consent. Conclusion 23 In summary then, I am satisfied that the extended hours of operations should be allowed for this restaurant on the basis of a 12 month trial period and in accordance with the attached conditions of consent. During the trial period the applicant is required to enforce the closure of the restaurant by 10 p.m. and ensure all patrons have vacated the premises by 10:30 p.m. Cleaning is to be undertaken in accordance with the conditions of consent, to minimise disamenity to the neighbourhood. 24 In light of the objections received, I consider it also reasonable for the restaurant operator to maintain a ' Complaints Register' during the trial period, to register any formal complaints and response action. Such register should make provision for a complaints contact telephone number. Court Orders 1. The appeal is allowed. 2. Development consent is granted to DA 2007/092 for the extended trading hours of 7 a.m. to 10 p.m. for a trial period of 12-months, for the restaurant at 32 Burlington Road, Homebush, subject to the conditions in Annexure A. ___________________ 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.