Adams v Warringah Council - [2008] NSWLEC 1193

Land and Environment Court

of New South Wales

CITATION: Adams v Warringah Council [2008] NSWLEC 1193

PARTIES:
APPLICANT
Brian William Adams
Respondent
Warringah Council

FILE NUMBER(S): 11134 of 2007

CORAM: Tuor C

KEY ISSUES: Development Consent :- modify a development consent for an existing hotel,
impact on residential amenity, patron numbers, noise, antisocial behaviour, trial period.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

CASES CITED: Randall Pty Limited v Leichhardt Council [2004] NSWLEC 277
Vinson v Randwick Council [2005] NSWLEC 142

DATES OF HEARING: 12 and 13/03/2008, conditions filed 01/04/08

DATE OF JUDGMENT:
23 May 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Robson, SC
with Mr C. Ireland, barrister
Instructed by Mr P. O'Sullivan
of Sullivan Saddington
RESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb Staunton Beattie Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

23 May 2008

11134 of 2007 Adams v Warringah Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (DA 212/2002) for an existing hotel at lots 21, 22 and 23 DP 218990, known as the Surf Rock Hotel 1060, 1062 and 1064 Pittwater Road, Collaroy (the site).

The sites and surrounding area

2 The site is situated on the eastern side of Pittwater Road, approximately 20 metres to the north of its Intersection with Collaroy Street in the retail and business area of Collaroy Beach. The Surf Rock Hotel (1060 –1066 Pittwater Road) is part of a group of terraces built during 1901 – 1925 known as the ‘Arlington Amusement Hall’ (1056-1066 Pittwater Road), which includes other uses that are compatible with the hotel including restaurants and a club.

3 The four lots that comprise the Surf Rock Hotel have a combined area of 1034 sqm. The site (3 lots) has an area of 720sqm.

4 The site adjoins Collaroy Beach to the east and to the north a public parking area. To the south and the east the Collaroy Beach Club and another public parking area adjoin the site. Directly across Pittwater Road are a number of buildings containing shops and commercial premises, such as offices or mixed use buildings containing ground floor shops and offices with residential apartments above.

Background

5 Council approved DA 1990/441 by notice of determination (91/81) dated 18 March 199 for the conversion of a restaurant into a hotel at lot 21 DP 218990 (1064 Pittwater Road). The approval limited patron numbers to 150 (1991 consent).

6 On 5 June 2003, council approved DA 212/2002 (2003 consent) subject to conditions. The conditions as originally granted which are relevant to this appeal are:

20. The hours of operation of the premises are to be restricted as follows: 7 am to 3 am Monday through to Saturday 7 am to midnight Sunday. All patrons are required to leave the premises by 3.15 am after…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 1193
Decision Date: 23 May 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Brian William Adams, appealed against Warringah Council's refusal to modify the development consent for an existing hotel at lots 21, 22, and 23 DP 218990, known as the Surf Rock Hotel, located at 1060, 1062, and 1064 Pittwater Road, Collaroy. The applicant sought modifications to the development consent to extend trading hours and increase patron numbers. The primary issues before the court were whether the proposed modifications would have an acceptable impact on residential amenity, particularly in terms of noise and antisocial behavior.

The court heard expert planning evidence from both parties, as well as residents' concerns about the hotel's impact on their amenity. The residents cited incidents of noise, antisocial behavior, and non-compliance with the existing consent conditions. The experts agreed that better management practices and additional transport options could mitigate potential impacts, but the effectiveness of these measures was uncertain due to the lack of objective monitoring.

The court found that the hotel could operate without adversely affecting residential amenity if properly managed, but it was not possible to conclude whether the impacts were acceptable based on the available evidence. The court accepted that the key difference between this and previous trial periods was the requirement for ongoing independent monitoring of compliance with the revised Plan of Management and noise conditions. The court approved the applicant's appeal, subject to conditions that included a further trial period with the proposed patron numbers, ongoing independent monitoring, and the provision of a maxi taxi service at the licensee's cost. The court also required the sound system key to be kept off the premises and directed the applicant to seek approval for a temporary taxi rank.

The court's orders were that the appeal was upheld, the application to modify the development consent was approved subject to specified conditions, and the exhibits could be returned except for certain documents.

Orders