30 April 2020
Burwood Social House Wins Court Approval for Pub DA: Followed by Grant of Hotel Licence and Gaming Threshold for 20 Poker Machines
Hatzis Cusack Lawyers congratulates one of our hotel clients, who recently won a DA for a new hotel through the Land & Environment Court, and then obtained approvals from the Independent Liquor & Gaming Authority for a hotel licence with a gaming machine threshold of 20, for its premises at 21-23 Belmore Street, Burwood.
Our client's application for a pub DA was refused by Burwood Council. Our client appealed to the Land & Environment Court.
The Council argued that the social impacts from the proposed hotel would be unacceptable. Council argued there were pockets of relative socio-demographic disadvantage within the local community. In Council's view, those disadvantaged persons would be particularly vulnerable to possible alcohol-related harm from another hotel.
Council also argued that the operation of a hotel was likely to result in increases in crime. Council pointed to a number of "hotspots" for particular types of crime in the locality.
Council also expressed concerns about potential noise from the hotel's operations in the later hours of the night.
The Land & Environment Court noted that a pub is a permissible use at the site, under the zoning for the area.
The Court defined its task as evaluating the substance and significance of impacts that are likely to arise from the operation of the pub. As a liquor outlet is a legal land use, some degree of impact is deemed to be acceptable by society.
After considering the socio-demographic characteristics of the whole of the locality (the suburb of Burwood), the Court found that, on the whole, that area could not be reasonably considered to be a socially disadvantaged one.
Although there was evidence of the existence of some "hotspots" for crime within Burwood, that hotspot mapping merely shows the geolocation of particular incidents of crime, but is not a reliable indicator of the risk of crime occurring in a particular locality. In this case, the rates of crime as published by the Bureau of Crime Statistics and Research (BOCSAR) suggested only modest levels of crime in the local community.
The Court said that where an application is made for a permissible land use (such a pub), it could be expected that the Court will approve a DA for that use, provided that the use is likely to result in acceptable environmental impacts.
The Court said that in order to refuse the application, there would need to be demonstration of a strong causal link that the existence of a pub at the site would result in an unreasonable risk of significant social impact.
In the Commissioner's judgement, such a causal link had not been established by Council.
The Commissioner also gave some weight to the fact that this would be the first new pub in the Burwood area since the 1960s, noting there had been a very significant increase in the local population over that time.
The Commissioner found that the grant of a DA for the pub would facilitate social interaction and recreation amongst residents and contribute to the vibrancy of community life.
On the question of trading hours, the Commissioner adopted a more restrictive approach. There were some apartment buildings located nearby. Residents had given evidence of disturbance caused by patrons of other late-trading licensed premises (such as a nearby karaoke venue). There was also a suggestion that patrons from the new pub might congregate on the street outside to smoke.
In deference to concerns about disturbance to those residents, the Commissioner granted a DA but approved trading only until 10.00 pm Sunday to Thursday and until midnight Fridays and Saturdays. The Commissioner allowed trading until midnight Monday to Thursday for a trial period of 12 months.
In early 2020, the Independent Liquor & Gaming Authority granted our client's application for a hotel licence.
In doing so, the Authority particularly referred to the substantial population growth experienced in recent years.
The licence application was granted despite an objection from NSW Police. Police expressed concerns about higher than average licence densities, and the risk of increased crimes, including assault.
The Authority was satisfied that licence densities in the area were acceptable. The Authority was also satisfied that the risk of crime was mitigated by the relatively small size of the hotel, its modest trading hours, relatively modest crime rates in the local community and the rigorous conditions imposed in its Plan of Management.
The Authority also approved a gaming machine threshold of 20 for the premises.
Hatzis Cusack Lawyers acted for the applicant throughout the Land & Environment Court and ILGA proceedings.