Land and Environment Court New South Wales Medium Neutral Citation: Thomas v The Hills Shire Council [2013] NSWLEC 1108 Hearing dates: 14 June 2013 Decision date: 25 June 2013 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: DEVELOPMENT MODIFICATION - Hotel - Trading hours - Noise - Amenity impacts - Plan of Management - Trial period Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Baulkham Hills Local Environmental Plan 2005 The Hills Local Environmental Plan 2012 Cases Cited: Andrew Thomas v Parramatta City Council [2006] NSWLEC 387 Andrew Thomas v Baulkham Hills Shire Council [2006] NSWLEC 388 Vinson v Randwick Council [2005] NSWLEC 142 Zhang v Canterbury Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Andrew Thomas (Applicant) The Hills Shire Council (Respondent) Representation: Mr A Whealy, Gadens Lawyers(Applicant) Mr M Pearce, The Hills Shire Council (Respondent) File Number(s): 10039 of 2013 Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by the respondent Council of an application made under s 96AA of the Act to modify conditions of a development consent granted by the Court on 23 August 2006 and a Plan of Management for a hotel at 168 Caroline Chisholm Drive Winston Hills (the site). 2The site is located on the corner of Caroline Chisholm Drive and Junction Road. The north western boundary of the site adjoins Winston Hills Shopping Centre. The northern boundary of the site adjoins the M2 Motorway. To the south and south west are residential dwellings. 3At the time the hotel commenced operating in around 1973, the site was in the Blacktown local government area. The site is now traversed by the boundary between Parramatta and The Hills local government areas. 4That part of the site within The Hills local government area is zoned 3(a) (Business 3(a) (Retail)) under the Baulkham Hills Local Environmental Plan 2005, and B2 Local Centre under The Hills Local Environmental Plan 2012 which commenced on 5 October 2012. The development is permissible under both instruments. The objectives of development under the Baulkham Hills Local Environmental Plan 2005 include that development should respect, improve and integrate with the local character of the locality in which it is carried out (cl 2(2)(a)(v)), maximise positive social impacts and minimise potentially detrimental social impacts (cl 2(2)(b)(v)), and protect localities from inappropriate development and ensure that local amenity is maintained and enhanced (cl 2(2)(c)(i)). The zone objectives include (e) to ensure the scale and type of business development is compatible with the character and amenity of surrounding land. Clause 13 provides that consent must not be granted for development unless the consent authority is satisfied that the development is consistent with one or more of the aims of the plan and any relevant objectives for development, and is not contrary to achieving the objectives of the relevant zone. Clause 2.3 of The Hills Local Environmental Plan 2012 requires that consideration be given to the objectives for development; the B2 zone includes the objective of providing a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. 5The development consent granted in 2006 (Andrew Thomas v Baulkham Hills Shire Council [2006] NSWLEC 388) approved alterations and additions to the existing hotel. Pursuant to that consent, the hotel now incorporates motel accommodation and back of house facilities on the eastern side. On the southern side near the main entrance in the centre of the hotel is a gaming room, and smokers courtyard. At the rear of the gaming room is the Winston Bar and external courtyard. The Woolshed Restaurant and Bar is located on the western side of the building. The external courtyard at the northern side of the building opens on to the car park. There is a drive through bottle shop at the north eastern side of the building. 6Conditions 17 to 23 of the 2006 development consent provide the hours of operation, requirements for provision of security personnel, provision of transport for patrons, and require compliance with a Plan of Management dated July 2006. Condition 17 specified the trading hours of the hotel as Monday to Saturday 7am to midnight, and Sunday 10am to 10pm. 7The Modification Application No. 1899/2005/HB/B lodged on 16 March 2012 sought a variation of conditions 17 and 23, deletion of conditions dealing with matters updated in a new Plan of Management, and the addition of conditions relating to acoustic testing. The proposed amendment to the approved trading hours would permit the Woolshed Bar/Restaurant, and the south west smokers' courtyard, to operate until 2am on Thursday, Friday and Saturday nights instead of midnight, and to midnight on Sunday instead of 10pm. Proposed condition 17 as now agreed between the parties is as follows: 17. Except as altered by declarations and exemptions pursuant to the Liquor Act 2007, in conjunction with the relevant consent applying in the City of Parramatta, the trading hours of the Hotel shall be restricted to the following times: (a) 10.00am to 12 midnight - Monday, Tuesday, Wednesday (whole of Hotel); (b) 10.00am to 12 midnight - Thursday, Friday and Saturday (the Restaurant and Dining/Bar including the associated alfresco area under the pavilion and louvered roof, south western smoking terrace); (c) Despite (b) above the Restaurant and Dining/Bar (including the associated alfresco area under the pavilion and louvered roof), south western smoking terrace may operate 10.00am to 2.00am - Thursday, Friday and Saturday for a trial period ending 12 months after the date of approval of the relevant application by the Independent, Liquor and Gaming Authority/Office of Liquor, Gaming and Racing; (d) 10.00am to 3.00am - Thursday, Friday and Saturday (The Winston Bar including its associated courtyard, Gaming Room and south eastern smoking terrace); and (e) 10.00am to 12 midnight - Sunday (whole of Hotel). 8Proposed new condition 17A provides that in determining an application to continue the extended trading hours after the trial period, consideration would be based on among other things the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police. 9The issues identified by the Council in its Statement of Facts and Contentions in Reply were that the proposal was not in the public interest, as the hotel is surrounded by existing residential development and adjacent to a residential shopping centre, and based on the objections from residents there was current anti-social behaviour by patrons at closing time; there would be unacceptable social impacts on the neighbourhood; and the proposal was opposed by the NSW Police Parramatta Local Area Command and the Winston Hills Mall. The Council identified a number of statutory provisions raising the public interest contention, including the objectives of the Baulkham Hills Local Environmental Plan 2005 and the Business 3(a) Retail zone. 10The matter was listed together with 10038 of 2013 (Thomas v Parramatta City Council) for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) which commenced on site on 21 March 2013, and which continued in court. During the conciliation process the parties discussed and agreed on a number of amendments to the Plan of Management and conditions of consent, however no agreement was reached under s 34(3) of the Court Act. The conciliation was terminated. The parties consented to my determining the appeal under s 34(4) of the Court Act and the two appeals were heard together. The parties consented pursuant to s 34(12) of the Court Act to the admission of the evidence given on site and the site view. 11The position of the Council now is that many of the issues raised by the Council, the NSW Police and the objectors in relation to noise and the need to control the behaviour of patrons have been addressed in the revised Plan of Management, which applies to the hotel as a whole. The Council accepts that having in place more stringent controls including over that part of the hotel where trading is already permitted until 3am is an important concession, and on balance the Council accepts that it is appropriate to allow the trial period for extended hours to proceed. Evidence Objector evidence 12Ten objectors gave evidence when the conciliation conference commenced on site: Mr Ian Whitehouse, Mr Robert Cole, Mr John Naylan, Ms Jennifer Midham, Mr David Bridge, Mr Darren Hamburger, Ms Jackie Bazouni, Mr Gerard Marshall, Mr Barry Morgan, and Mr Bill McPhee. The objections included concerns about existing impacts on the amenity of the residential neighbourhood from anti-social behaviour experienced when patrons leave the hotel, including littering of bottles, broken glass, vandalism of signposts and letterboxes, noise, offensive language, urination and vomiting, fighting and violence; the noise of vehicles leaving; concerns about health impacts of excessive alcohol consumption; difficulties in contacting hotel management; the need to call police; and noise from internal music. Notes of the evidence given on site, as provided by the representative of the Council, are included in exhibit 4. Parramatta City Council tendered a response, providing additional detail of the evidence given by Mr Barry Morgan (exhibit 5). There was some dispute as to the evidence given by Ms Bazouni, which was clarified in the course of the hearing to be that a road sign had been uprooted together with its concrete footing, and thrown. The evidence given on site was consistent with the written submissions received by the Parramatta City Council during its assessment of the related modification application, which were also in evidence (exhibit 1). 13At the request of the Court, Parramatta City Council notified the objectors of the hearing date, and advised them that they were entitled to attend to provide any additional evidence relating to the proposed amended Conditions and Plan of Management. Mr Marshall and Mr Morgan gave evidence, which included responses received from others in the local community. Mr Marshall lives on the other side of Caroline Chisholm Drive at the corner of Junction Road. In his opinion nothing has changed about impacts on amenity, and there will be people leaving with attendant noise at 2am instead of midnight. There are some good things in the revised Plan of Management, including the lockout and no walk through sales after 8pm, however he is concerned that he was not involved in the process of revising the Plan of Management. The community was never consulted about the 3am trading approval or about allowing live music. He is concerned about who is to police the security. Mr Morgan lives next door to Mr Marshall. His evidence was that very little has changed. He is concerned about the proposed 12 month trial period as it has already had a trial period over several years. Effectively only a small part of the hotel has had late trading hours and this will open up the whole hotel to late hours. He is concerned about the clientele that will be attracted. He does not accept that it will be possible to minimise the noise. There are serious problems in the area already and people have problems sleeping. There is nothing to console him with the new Plan of Management that there will not be an effect on the community. Parramatta City Council's representative advised that Mr McPhee had also wanted to attend, however he was unwell. NSW Police 14The Council consulted the NSW Police during the course of its consideration of the modification application. In a letter to the Council dated 15 June 2012, Senior Constable John McCulloch, Licensing, Parramatta Local Area Command, stated his concerns that if the restaurant area is allowed to trade until 2am a further 300 persons will be able to avail themselves of the area for alcohol consumption only, and it would also allow for the hotel if desired to create a nightclub ambience by moving dining room furniture; that creates problems where large numbers of patrons attempt to relocate themselves within the hotel and will impact on local residential area (exhibit 7). Data on traffic and other offences for the period April 2010 to April 2012 was provided (exhibit 1). Winston Hills Mall 15The manager of the Winston Hills Mall, which is adjacent to the hotel on Caroline Chisholm Drive, objected to the proposed extension of hours, raising concerns about security for the shopping centre based on past damage caused by intoxicated patrons leaving the hotel (exhibit 4). The Winston Hills Mall was informed of the outcome of the discussion between the parties and the revised Plan of Management (exhibit 4, tab 13). The Council's representative informed the Court that no response had been received in relation to the amended Plan of Management. Acoustic evidence 16The applicant provided with the modification application an acoustic assessment undertaken in October 2010 by Renzo Tonin & Associates (exhibit B), and subsequently provided a review of that assessment and report by Mr Steven Cooper (exhibit C). Mr Cooper noted that the Office of Liquor Gaming and Racing criteria applicable after midnight are more stringent and require that the noise emissions from any licensed premises are not to exceed the background noise level within the same octave bands used in the pre-midnight criteria at any residential boundary, and that any noise emissions from licensed premises be inaudible in any habitable room of any residential premises. Mr Cooper reported a marginal breach of the before midnight boundary criterion that requires minor noise controls, and stated that the sound level contribution for the Restaurant and Dining Area operating after midnight at full capacity would comply with the after midnight noise criteria provided the windows and vergolas that are part of the roof structure are closed. Mr Cooper recommended that provision of a roll down blind at the northern end of the external terrace would significantly reduce the emission of music and would be a positive noise control measure to ensure compliance. Mr Cooper also recommended measures to reduce the emission of structure-borne low frequency noise from the music in the public bar, noting that at present the speakers in the public bar are rigidly attached to the ceiling joists that permits the transfer of low frequency energy into the roof structure. Further details of the recommended blind were provided on 16 April 2013 (exhibit D). The proposed conditions include new condition 24 requiring the operator to incorporate vibration isolation to the fixing of speakers, and install a blind, as recommended by Mr Cooper, and condition 25 requiring acoustic testing after the commencement of trading under the extended hours of operation. Plan of Management 17The revised Plan of Management (exhibit 2) incorporates the agreed Trading Hours outside and during the agreed trial period. Clause 6 Entry and Exit from Hotel requires taxi pick up after 10pm only at the northern entry to the hotel; requires the licensee to telephone for a taxi on behalf of a patron on request, provide a minibus for a 5km radius, and close the front entry (facing Caroline Chisholm Drive) at midnight so that patrons enter or leave from the northern entry; and not permit patrons to enter the premises between 1am and 3am (the lock out period). Clause 7 Security specifies the number and location of CCTV cameras required to record while the hotel is trading and for at least 30 minutes afterwards; and the number of security personnel required depending on the night and the number of patrons at the hotel, and patrol requirements including along Caroline Chisholm Drive and Junction Road. Clause 8 requires signage requesting patrons not to take liquor in open containers off the premises. Clause 9 Noise minimisation contains provisions for the Restaurant and Dining/Bar after midnight, including no live or nightclub style entertainment, prohibition on ticketed functions or events, monitoring by security personnel of music emitting from the hotel, and a restriction of 250 patrons in the Restaurant and Dining/Bar area after midnight. Clause 11 Litter and Garbage prohibits take away sales from the Winston Bar and the Restaurant and Dining/Bar, and sales to pedestrian customers in the Drive Through Bottle Shop after 8pm on Friday and Saturday nights. Clause 12 Incidents and Complaints includes provision for a mobile number to receive telephone calls from residents when the hotel is trading and for 30 minutes after closure, and provision for community liaison meetings to be held on an "as needs" basis or when reasonably called by the Councils or NSW Police, at least once every six months. Minutes of the community liaison meetings are to be circulated by email to the Councils and to those who attended and provided an email address. The Councils agree to make available copies of the minutes to any resident who does not have an email address. Consideration 18The applicant submits that the extension of the operating hours for the Restaurant/Bar is intended to provide an opportunity for people to dine and stay and socialise. There is no formal record of complaints in the past. The implementation of a trial period and the well-documented Plan of Management means that there will be hard evidence of any documented complaints at the end of the trial period. 19The Council submits that while not discounting the concerns expressed by residents, there is an opportunity for the applicant to get its house in order in a way not previously possible, for example through provision of the lock out. There are now proposed stronger controls relating to noise and the opportunity to rectify the existing breach identified by Mr Cooper, and stronger provisions for managing the behaviour of patrons, including the community liaison committee. The Council submits based on the information provided by NSW Police that while assaults and other antisocial behaviour has occurred, the number is not out of the ordinary. The hotel has not been operated in a satisfactory way and the revised Plan of Management is an opportunity to improve and to implement stricter controls with a more objective set of tests against which the operations can be measured. The conditions and revised Plan of Management put rigor back and provide the tests for delivery by the operator. 20I agree with the parties that the approach identified in the planning principle established in Vinson v Randwick Council [2005] NSWLEC 142 is appropriate in considering the present application. In that decision, Moore C said: 12 In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277, Tuor C considered the principles to be applied when assessing an application for an extension or intensification of a use which may have an adverse impact on residential amenity. She said: 25. Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are: First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable? 26. In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact. 13 In amplification of the broad principles set out in Randall, the planning principles for testing an application for licensed premises to extend trading hours, increase permitted patron numbers or for additional attractions such as music or other entertainment require addressing the following questions: What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? Evidence of anti-social behaviour at or linked to the premises taken from records such as the police COPS system and/or other police records and/or diaries kept by local residents is preferable to generalised anecdotal evidence that cannot be tested by the applicant against any records kept by the operator of the premises. A similar position applies to complaints about other amenity impacting behaviour such as noise from people on the premises or its plant and equipment; noise from entertainment provided on the premises or the noise necessarily arising from patrons such as car doors, engines starting or late-night conversations in residential streets in the vicinity. Demand for on-street parking may also be relevant. In assessing the likely adverse impact of increased trading hours, permitted number of patrons or permitted activities for licensed premises, the objectors' fears of adverse impacts, no matter how genuinely felt, are relevant only to the extent that there is a reasonable probability that impacts will occur. What measures are in place to address those impacts? Measures include the number and times of engagement of security personnel, designated duties performed by them together with patrolling patterns. Identification of and responses to specific trouble spots should be considered. The method and timing of street litter collection are also relevant. For premises that provide entertainment, noise control measures that do not require intervention by an operator may also be relevant. How are those measures documented? A well-documented management plan for the premises and its availability to local residents is a positive factor. The measures that are currently in place to record and respond to complaints made by residents are also relevant. Have those measures been successful? The period during which the control measures (for the current trading hours, permitted number of patrons and permitted activities) have been operating is relevant to enable assessment of the likely success of their being applied to extended hours. If the present management regime has been in operation for a relatively short period, or has been unsuccessful or not fully implemented, less weight can be given to it than to a management regime which has succeeded in reducing antisocial behaviour. What additional measures are proposed by the applicant or might otherwise be required? If any extension of hours, numbers or activities is likely to be acceptable but only subject to additional measures to reduce noise or anti-social behaviour, a trial period may be appropriate to test those measures. 21In the circumstances of this case, there is evidence of adverse impacts of the present operating hours from the residents in the locality, and as provided by NSW Police. I accept the evidence of the residents as to their experience of past instances of antisocial behaviour in the locality, including yelling and offensive language, damage to public and private property, and litter and broken bottles; however much of that evidence cannot be tested against specific records of complaints to the hotel management. The issue raised by the Council in its contentions related primarily to anti-social behaviour by patrons leaving the hotel. Most of the incidents recorded in the NSW Police submission for the period April 2010 to April 2012 occurred outside the premises; most related to driving offences, primarily mobile and stationary RBT. Three related to incidents outside the premises late at night, including malicious damage to property. There were three incidents recorded that included assaults inside the premises late at night. 22The applicant accepts that there are at present adverse impacts from the emission of noise from the music at the premises; that is supported by the report by Mr Cooper, and is consistent with evidence of the objectors. 23In considering what measures are in place to address those impacts, I agree with the parties that the revised conditions and Plan of Management are a significant improvement on the present position. The conditions include provision to address the noise issue, as noted at [16] above. The Plan of Management includes specific provision for the numbers and timing of security guards, and the requirement for them to conduct patrols outside the hotel and monitor noise levels. The Plan of Management includes provisions for CCTV recording in specific locations; a prohibition on the sale of shots between midnight and 3am and a limit of four alcoholic drinks for supply to the same person at any one time; a requirement for staff and security personnel to take reasonable measures to prevent patrons leaving with open containers of liquor; the lock out after 1am; and limits the number of patrons permitted in the Restaurant and Dining/Bar area after midnight to 250. The Plan of Management includes provisions intended to assist in the orderly departure of patrons from the hotel including calling taxis and providing a courtesy bus and restricting entry and exit to the northern side of the hotel. I agree with the Council that it is significant that these provisions apply to the whole hotel, including those parts already permitted to trade until 3am, and will continue in place after the trial period of extended hours for the Restaurant/Bar if those hours are not further extended. 24In considering documentation of measures, it is relevant to note that the revised Plan of Management includes provisions for notification of a contact telephone number, records of complaints, and the community liaison committee. I agree with the parties that those measures should assist in minimising adverse impacts, and in providing substantiation of any evidence of anti-social behaviour and adverse impacts. 25The applicant accepts that there needs to be change in management to avoid or minimise adverse impacts, and submits that there is now in place a well-document plan of management that provides measures against which performance can be tested. I agree with the parties that the proposed trial period will allow an opportunity to for the hotel management to demonstrate compliance with those measures. The proposed conditions include a condition requiring compliance with the Plan of Management; that obligation would continue regardless of the identity of the operator. 26Having regard to these factors, I agree with the Council that determination of the application requires a weighing up of the competing considerations. I agree that the evidence as to past adverse impacts on the locality, through anti-social behaviour and noise, cannot be discounted. I also agree that the proposed conditions and revised Plan of Management provide a much stronger set of controls to minimise or avoid potential adverse impacts on the amenity of the residential locality both for the proposed extended operating hours for the restaurant/Bar and for the hotel as a whole. It is appropriate in my view that any extended operating hours are subject to a trial period to enable the operator to establish the effectiveness of those controls and test those measures; as was the situation in Zhang v Canterbury City Council (2001) 115 LGERA 373, any adverse effects would be readily reversible by return to the existing approved hours, or possibly addressed by adjustments to the Plan of Management or amendment of the acoustic measures. Conclusion 27I am satisfied that it is appropriate to approve the modification application subject to the conditions now proposed, which require compliance with the revised Plan of Management, and subject to the imposition of a 12 month trial period as agreed between the parties. 28The orders of the Court are: 1. The appeal is upheld. 2. Modification Application No. 1899/2005/HB/B to modify conditions of a development consent granted by the Court on 23 August 2006 and a Plan of Management for a hotel at 168 Caroline Chisholm Drive Winston Hills is approved, subject to the conditions in Annexure A. 3. The exhibits may be returned except for exhibits A, E, F, 2, 3, 6, 8 and 9. Linda Pearson Commissioner of the Court 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. Decision last updated: 25 June 2013