September 3 - 9, 2023: Issue 597


Pasadena restaurant has Conditions placed on licence to limit late night noise impact on neighbours

The Independent Liquor & Gaming Authority has decided to impose three conditions on the licence for the Pasadena at Church Point in relation to an Acoustic Reports' Recommendations, require the venue to install a Noise Limiter and it now has a Prohibition on amplified sound after 11:00pm.

The conditions have been made after complaints from those living in the vicinity regarding amplified noise persisting after 11pm. 

Since re-opening, the venue has been the subject of ongoing disturbance complaints to Police, Council, and L&GNSW. This is the second section 79 disturbance complaint made against the Venue where a finding of undue disturbance has been made. 

The Decision, made on August 25, comes atop the February 2023 refusal made at the Meeting of the Liquor & Gaming Board for an application to allow  the serving of alcohol at the Pasadena  to customers  who are not consuming food. That application proposed operating hours of 5.00am to 12.00 (midnight), except Sunday (10am to 10pm) and 'a maximum number of 350 patrons' - a significant increase for the prior 164 people capacity for the venue, which included staff and people in the reception areas.

The Complainant provided screenshots from a private Facebook group showing residents complaining about noise from the Venue, particularly noting a wedding being held on Monday 14 November 2022. Residents stated they were unable to contact the Venue to discuss the noise, and that one resident who did get in contact was allegedly hung up on. The submission also included a decibel reading of 81Db taken at 9:40pm on 16 December 2022 from a resident’s home on Scotland Island. This level of noise allegedly occurred despite a 25-knot southerly wind blowing at the time, which should have reduced the noise.

The submission provided details of three other specific instances of disturbance caused by functions at the Venue, including one instance where Police attended.

The Complainant’s desired outcome was that the Venue should not be permitted to run events. Failing that, they want the Venue to undergo significant sound-proofing renovations in order to minimise disturbance to the community and to ensure adherence to L&GNSW conditions. 

The Complainant submitted the current situation is untenable and the Venue has shown it cannot comply under its current structure. The Complainant proposed that until improvements have been completed the Venue should not be allowed to continue to host functions. 

When the Venue operates as a restaurant only, no noise or compliance issues appear to occur. 

The Venue alleged the complaint really stems from the long-term animosity towards the commercial properties by offshore residents over parking. In other words, the availability of parking for offshore residents is being used as an ongoing basis for their complaints even though the evidence confirms the General Store and the Venue have “existing use rights parking over the reserve”, the Venue stated. 

Further, the Respondent stated the off-shore residents go to great lengths to drive away patrons, including continually misinforming the public about parking availability which they have done on multiple occasions by commenting on the Venue’s promotional Facebook posts. 

The Venue has provisions for 6-7 car parking places on its site, the rest of its patrons find parking in and around the venue, including in the Council car park that runs from the south perimeter of the premises.

The Pasadena is located on the waterfront of Church Point, directly facing Scotland Island, approximately 400 metres away, and surrounded by the waters of Pittwater. The location means there are no sound barriers to many of the nearby residential premises, in particular those located across the water on Scotland Island. Additionally, Church Point and its surrounds are known for their quietness and hills that will resound and amplify any noise made.

The Respondent argued that the Complainant’s residence is not within immediate proximity of the Venue, which is approximately ... metres away, and it is only because there is a body of water that the sound from the venue is able to travel this far. It argued the level of noise that is considered reasonable here should be based on the location from where the licensed premises operates and that the carrying of sound is something that every waterfront home puts up with or accepts due to the trade-off of living in a waterfront property.

What the venue failed to address in these arguments is that it too must accept it is a waterfront property and must adopt reasonable measures to ensure it does not cause undue disturbance in the context of its geographical location. The distance between a venue and residence is only one factor to be considered in what noise abatements/measures are required for a venue. There are no sound barriers between the Venue and neighbouring residences on Scotland Island, and the acoustically reflective nature of the water requires the Venue to take more care of the noise it creates, the Decision stated.

The Venue had demonstrated through its own submissions that it is well aware of the unique qualities of water in transmitting sound.

The Venue is subject to a noise condition, condition 220, relating to LA10 noise criteria. 

This is currently defined as:

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 7:00 am and 12:00 midnight at the boundary of any affected residence.

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) between 12:00 midnight and 7:00 am at the boundary of any affected residence.

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 7:00 am

Scotland Island is only metres away from the Pasadena - which faces the island

According to L&GNSW records, the Venue has been subject to 13 complaints in addition to this and the 2019 Disturbance Complaint. One complaint was in 2018 and unrelated to noise. Three complaints were made in 2021 and nine in 2022, all related to noise from the Venue.

The 2019 Disturbance Complaint was made by 25 local residents and alleged the Venue was causing undue disturbance to the quiet and good order of the neighbourhood due to amplified sound from music and speeches at the Venue along with anti-social behaviour from patrons. That Decision established that while the Venue had at times caused undue disturbance from amplified entertainment and patron noise, there was a lack of objective evidence from Council, Police or an acoustic engineer to demonstrate the severity of the disturbance. The outcome of the 2019 Disturbance Complaint was a warning with a strong recommendation for the installation of a noise limiter at the Venue.

In responding to the new Complainants the Venue stated functions with amplified entertainment have been held at the Pasadena since the 1930s. It acknowledged that amplified entertainment has changed since that time, but argued that it had held such entertainment, in the manner that it is understood today, since the 1950s and 1960s. 

Sue Lin, Executive Director, Regulatory Operations and Enforcement, Liquor & Gaming NSW, a delegate of the Secretary of the Department of Enterprise, Investment and Trade in relation to the complaint made,  stated in her Decision it was important to note the Venue was closed for a period of around 10 years between 2008 and 2018 and that a 10-year cessation in operations is a significant amount of time not to trade. The complaint noted that since reopening, the Venue has been holding functions up to four times a week; a fact verified by the Venue’s submission.

The L&GNSW  Executive Director's Decision found that such a substantial shift in the Venue’s operations amounts to a material change in activities notwithstanding its historical use. In this context she also noted that the 2019 Disturbance Complaint was made not long after the re-opening of the Venue, on 29 April 2019, and that that Decision also noted that the re-opening of the Venue represented a significant change in business activity. 

In deciding whether the Venue has 'unduly disturbed the quiet and good order of the neighbourhood', Ms Lin balanced the submissions made by the Complainant, the Venue, NSW Police and Council.

As argued by the Venue, undue disturbance is the generation of disturbance beyond what would reasonably be expected from the Venue in the relevant context of the type of licence, and the location in which it is situated. The Venue argued that a level of disturbance from the normal operation of the Venue is to be expected, including noise from music entertainment and patrons. 

The Executive Director found, however, that was sufficient evidence to reasonably conclude that the Venue has regularly unduly disturbed the quiet and good order of the neighbourhood. Considering the finding of undue disturbance in the 2019 Disturbance Complaint, and despite warnings, authority engagement, and receiving a penalty notice for breach of a noise condition, it was reasonable to conclude that this disturbance has persisted for years.

The current complaint was supported by 27 authorising residents. This is a substantial number of people to come forward and join a noise complaint and lends considerable weight to a finding that the quiet and good order of the neighbourhood is being unduly disturbed. 

The 2019 Disturbance Complaint was made by 25 complainants on similar grounds to the current complaint. 

In the Decision for that complaint, the Venue was found to be causing undue disturbance. The 2019 Disturbance Complaint resulted in a warning, with recommendations made on ways the Venue could control noise, including the installation of a noise limiter. Despite this warning, the Venue continued to create disturbance, receive complaints and there is no evidence to suggest the noise limiter had been installed or has been installed since.

An Acoustic Directions Report was commissioned by L&GNSW following repeated disturbance complaints over several years and following inspections by L&GNSW inspectors who deemed the noise from the Venue was causing sufficient disturbance to warrant the expense of commissioning the testing. 

The Acoustic Directions Report found the Venue had breached its noise condition. 

It was acknowledged the Respondents commissioned Acoustic Group Report alleged there were several issues with the Acoustic Directions Report, including that there was no evidence of a breach “over the entire monitoring period.” However, as raised in the Venue’s submission, this decision does not require a determination as to whether this condition was in fact breached. 

The Acoustic Directions Report identified loud music and patron noise emanating from the Venue, at times, with music from the Venue noticeably louder after 9.30pm when a live band started performing. Notably, while the Acoustic Group Report commissioned by the Venue claims the Venue’s noise condition had not been breached overall, it did identify several incidents where the noise emanating from the Venue exceeded the background noise by more than 5db on a night when it was aware acoustic testing was being conducted.

Police submitted they believe the noise from the Venue constitutes undue disturbance. Police have recommended a number of conditions be imposed to address this issue.

Police noted they have received repeated complaints about noise from the Venue and believe that steps need to be taken to avoid further non-compliance with the Venue’s obligations.

Council submitted it had also received several complaints about the Venue, and stated it believes a fresh development application with a merit assessment that represents the current associated impacts of the Venue would be appropriate, especially given the age of the current approvals are around 60 years old. 

This demonstrated that Council, too, believes measures should be taken to address the issues with the Venue, as noted in the Executive Director's Decision.

''The Venue is not situated in a commercial business district. It is in a relatively remote area, with many of the numerous complainants living offshore on an island that can only be accessed by water. While residents should not expect silence from the Venue, the evidence before me shows that the level of disturbance being experienced by residents is beyond what would reasonably be expected from the Venue in its context.

The complaint also raised issues related to parking, but this is outside the scope of issues that can be addressed by L&GNSW.'' the Executive Director, Regulatory Operations and Enforcement Decision states

''In deciding the appropriate regulatory outcome in this instance, I have considered the statutory criteria, the material set out in Annexure 2, and the above finding of undue disturbance. I acknowledge that the order of occupancy is in favour of the Venue.

However, I also acknowledge (as was noted in the 2019 Disturbance Complaint) that reopening the Venue in 2018 after a 10-year closure represents a significant change in business activity requiring careful planning and consideration. On this point, I note there is no material before me to suggest that any prior version of the Venue caused any noise disturbance issues to the neighbourhood.''

''The Venue was warned, and strong recommendations made in the decision following the 2019 Disturbance Complaint were not followed by the Venue, and it is clear that regulatory intervention is now required to address this ongoing issue.'' 

Having considered the material the Executive Director determined to impose a condition on the Venue’s licence requiring the Venue to ensure all amplifiers or noise generating equipment is under the control of a noise limiter. Following the 2019 Disturbance Complaint which resulted in a finding of undue disturbance, L&GNSW recommended the Venue install a noise limiter. This recommendation does not appear to have been followed, and disturbance complaints have continued to be received regarding the Venue. Police had also identified a noise limiter as an appropriate response to the disturbance complaints and recommended this condition be imposed. To ensure the Venue now implements this measure, it is appropriate to impose this as a stand-alone condition on the licence.

The Executive Director also determined to impose a condition on the Venue’s licence requiring the Venue to implement all of the recommendations made in the Acoustic Group Report dated 19 April 2023, detailed at which recommended that “when entertainment is provided that may be associated with functions or similar, then the doors and windows to the restaurant/covered area are to be closed and access to the outside is to be via the sound locks or the front door of the venue,”.

The Respondents had submitted this should only apply from 8:00pm onwards. The Executive Director, did not accept this amendment to the recommendation. The Acoustic Group Report specifically stated it found there was compliance with the LA10 noise condition when the doors to the premises were closed. This recommendation was clearly made on the basis of this finding and appears to be a crucial measure in ensuring compliance.

The Venue had agreed to the balance of the recommendations in the Acoustic Group Report. However, the Executive Director noted that it had only offered to undertake these measures if a decision is made confirming that it must carry out the work and noting that town planning approval would be required before this can commence. 

''Given that the Venue had already been put on notice of the need to implement noise abatement measures in 2019, it could have initiated the process for obtaining planning approval while awaiting this decision.

Delaying remedial works recommended by its own acoustic expert demonstrates a disregard for the Venue’s obligations and for its community.'' the Executive Director's Decision states.

''Finally, I have determined to impose a condition on the Venue’s licence requiring all amplified music and the use of any sound system to cease at the Venue by 11:00pm.''

The material provided by the Venue advised that events regularly run until 11:00pm. The complaint material advised of numerous occasions when music noise from events could clearly be heard later than this.

''The Venue has demonstrated an unwillingness to work with residents to find a mutual solution to the complaints. Calls to the Venue reporting disturbance result in no action or go unanswered and much of the Venue’s response to this complaint highlights that it considers the concerns of its neighbours to be unreasonable. 

Given the objective views put forward by Police and Council that intervention is required, and on the balance of the remaining material before me, I do not consider this position to be tenable.'' the Executive Director's Decision records

''The Venue is not a music venue and, as outlined above, is uniquely situated in a relatively remote location. The Venue operates as a restaurant and event space (primarily hosting weddings). The elimination of amplified noise from 11:00pm does not prevent the Venue from continuing to conduct these operations and carries no significant impost, financial or otherwise, and is in line with the Venue’s Plan of Management. It will, however, in conjunction with the other measures to be implemented by the Venue, provide some respite to nearby residents by formalising the requirement for amplified sound to cease at 11:00pm and is appropriate given the unique geographical location and features of the Venue and its surrounds, and the frequency of disturbance generated by the Venue over a long period of time.''

The Venue  was made aware that if fresh and direct evidence is presented demonstrating continued undue disturbance and/or non-compliance with any of the conditions imposed, it is open for this matter to be reconsidered and for further regulatory action to be taken which could include measures such as limiting the activities permitted at the Venue.

The Executive Director also noted to the complainants that the Venue is permitted to hold functions which include the provision of entertainment, and that a reasonable level of noise is to be expected from the ordinary operations of the Venue. 

''The complainants should note the conditions being imposed by this decision, including the recommendations made in the Acoustics Group Report, which the Venue has agreed to, are substantial measures which are being undertaken to mitigate the emanation of noise from the Venue. I include this reminder to ensure the complainants are aware that while they should not be subject to undue disturbance, they should not expect the Venue to be completely silent, even after these measures have been enacted.'' the Executive Director's Decision states.

The licensee must now implement all the recommendations, including all recommended capital works, made on pages 19 and 20 of the Acoustical Assessment report prepared by The Acoustic Group, dated 19 April 2023. 

The recommendations are to be implemented by the following dates:

1. The ’immediate works’ are to be implemented on the date this condition becomes effective.

2. The recommendation that ‘when entertainment is provided that may be associated with functions or similar, then the doors and windows to the restaurant/covered area are to be closed and access to the outside is to be via the sound locks or the front door of the venue’ is to be implemented on the date this condition becomes effective.

3. The ‘sound system controls’ are to be implemented within 28 days of the date this condition becomes effective.

4. Regarding the balance of the recommendations, the licensee must apply for the relevant approvals within 28 days of the date this condition becomes elective. The recommendations must be completed within 90 days of the relevant approvals being granted. Date condition effective: 26 August 2023

Noise Limiter

At all times when amplified music is conducted, the licensee must ensure all amplifiers or noise generating equipment are under the control of a noise limiter.

1. The noise limiter levels must be set by an acoustic engineer; and

2. The noise limiter controller must be contained within a locked container or secure area and is to be only accessible by venue management. Date condition effective: 22 September 2023

Prohibition on amplified sound after 11:00pm

The licensee must ensure all amplified music and the use of any sound system has ceased by 11:00pm. Date condition effective: 26 August 2023