Adams v Warringah Council
[2008] NSWLEC 1193
•23 May 2008
Land and Environment Court
of New South Wales
CITATION: Adams v Warringah Council [2008] NSWLEC 1193 PARTIES: APPLICANT
Respondent
Brian William Adams
Warringah CouncilFILE 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 2000CASES CITED: Randall Pty Limited v Leichhardt Council [2004] NSWLEC 277
Vinson v Randwick Council [2005] NSWLEC 142DATES OF HEARING: 12 and 13/03/2008, conditions filed 01/04/08
DATE OF JUDGMENT:
23 May 2008LEGAL REPRESENTATIVES: APPLICANT
Mr J. Robson, SC
with Mr C. Ireland, barrister
Instructed by Mr P. O'Sullivan
of Sullivan SaddingtonRESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb Staunton Beattie Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
23 May 2008
JUDGMENT11134 of 2007 Adams v Warringah Council
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 Monday through to Saturday trading and by 12.15 am after Sunday trading.
21. Any live music or live entertainment including DJ’s are to finish a minimum of half an hour before closing times referred to in Condition 20.
22. The maximum patronage of the hotel between the hours of 7.00 am and 11.00 am is to be limited to 150 persons exclusive of staff. Between 11.00 pm and closing time the maximum patronage shall be restricted to 250 persons exclusive to staff.
35. No new patrons are to be given entry to the premises from (1) hour before closing time on nights when live entertainment is scheduled, other than patrons of the premises seeking to re-enter the premises from earlier that night.
7 The consent was modified on 3 August 2005 (first modification) and was subject to a trail period of 12 months. Conditions 20, 22 and 35 were modified to read as follows:
Condition 20.
(a) The hours of operation of the premises are to be restricted as follows:
- 7.00 am to Midnight Monday through to Thursday
7.00 am to 3.00 am Friday and Saturday
7.00 am to 11.00 pm Sunday
Upon expiration of the permitted hours, all service (and entertainment) shall immediately cease, no person shall be permitted entry and all patrons on the premises shall be required to leave within the following 15 minutes.
(c) The hours of operation detailed in (a) and (b) above are for a trial period of seven (7) months and concluding on 30 April 2007.
- Note: A Section 96 application will be required to be submitted to Council by the 1 March 2007 for any additional hours and with the application a report dealing with complaints from the objectors of this particular application (2002/0212/3). The report in particular, should also address parking within residential streets (Fielding, Collaroy and Alexander Streets), and any matters to mitigate the complaints prior to the expiration of the 7-month period for the continuation of the hours detailed above."
(a) The maximum patronage of the hotel, exclusive of staff shall not exceed the following.
- 7. 00 am to 5. 00 pm 150 persons
5.00 pm to 10.00 pm 350 persons
10.00 pm to Midnight (Monday through to Thursday) 540 persons
10.00 pm to 3.00 am (Friday and Saturday) 540 persons
10.00 pm to 11.00 pm (Sunday) 540 persons
- Note. A Section 96 application will be required to be submitted to Council prior to the expiration of the 7 month period for the continuation of patronage levels detailed above.
- 1 am to 11 pm 150 persons
11 pm to 12 am 250 persons
12 am to 3 am (Friday to Saturday) 250 persons
35. No new patrons are to be given entry to the premises from midnight other than patrons of the premises seeking to re-enter from earlier that night.
8 New condition 41C was also added which states:
All live music and DJ type equipment shall cease at midnight to ensure reasonable acoustic amenity to surrounding residences.
9 The modified conditions approved in the first modification were extended by council on 24 October, 2006 for a further 7 month trial period concluding on 30 April 2007 (second modification)
10 Council approved DA 2007/222 on 6 August 2007 (2007 consent) for internal and external alterations and a change of use from a restaurant at 1064 and 1066 Pittwater Road, Collaroy (lots 20 and 21 DP 218990). This approval extends the area of the Surf Rock Hotel. Conditions of approval restrict the hours of approval to the same as those approved for the Surf Rock Hotel (1060-1064 Pittwater Road) and the patron number to those in the existing licensing. Approval of the s96 application will limit the hours of operation and patron number under both consents.
Section 96 application
11 The s 96 application was lodged on 18 April 2007. It originally sought an extension in trading hours from midnight to 1am on Thursdays, but the applicant is no longer pressing this.
12 The s 96 application seeks to retain and continue as permanent the modified conditions 20 and 22 and to amend conditions 35 and 41(c). When compared to the consent this would have the effect of:
a) Opening hours reduced from 3 am closing to midnight closing Monday to Thursday and reduced from midnight to 11 pm Sunday (condition 20(a)).
b) Maximum patron numbers increased (condition 22)
- i. 5 pm to 10 pm from 150 to 350 persons;
ii. 10 pm to 11 pm from 150 to 540 persons;
c) Limitation on new patron entry (condition 35)
d) DJ music to continue from midnight to closing time (condition 41c).
13 Other amendments are sought as a consequence of these amendments and in response to the expert evidence, which are generally agreed by the parties subject to some difference in wording.
The Issues
14 The Statement of Facts and Contentions raised 3 contentions that can be summarised as whether the proposal will have an acceptable impact on residential amenity, particularly from noise and anti social behaviour.
15 Council did not oppose approval of the s96 application but with a further trial period and a limitation on patron numbers to 400 after 10pm to closing time.
16 The applicant did not object to the trial period but sought approval for a maximum of 540 patrons after 10pm to closing time.
17 The parties also disagreed on the “lock out” time under condition 35. Council proposes no entry after midnight whereas the Applicant is seeking no entry after 1pm.
Planning framework
18 The site located within the D2-Collaroy Village Locality under Warringah Local Environmental Plan 2000 (LEP 2000)
19 The Desired Future Character for the D2 Locality relevantly requires that:
Development that adjoins residential land is not to reduce the amenity enjoyed by the adjoining occupants.
20 Clause 45 of LEP 2000 provides that:
Development is not to result in noise emission which would unreasonably diminish the amenity of the area and is not to result in noise intrusions which would be unreasonable to the occupants.
The evidence
21 The court heard expert planing evidence from Mr R Piggott, for council and Mr J Lidis, for the applicant. Mr G Askew a security consultant provided evidence for the applicant. Mr N Koikas was the parties’ single acoustic expert. Senior Constable Whitfield provided evidence on behalf of the police.
22 The Court visited the site and heard from a number of residents who objected to the proposal. In summary their principle concerns were that the existing operation of the hotel impacted on their amenity. In particular the noise of music which emanated from the hotel and the noise and antisocial behaviour on patrons arriving at and leaving the hotel including fights, urinating and vandalism. They considered the worst period to be on Saturday and Sunday mornings, particularly closing time, when intoxicated people are in the street behaving in a dangerous and unacceptable manner. They noted that there is little public transport at this time and it takes the patrons some time to disperse.
23 The residents did not consider that the hotel currently complied with its conditions of consent. They cited incidents where intoxicated people had been allowed entry after 12pm, people using the balconies when the areas are required to be closed, the retractable roof not being shut to prevent noise spill as well as concerns about the level of intoxication of patrons. They considered that the security guards did little to minimise noise and disruption and that the management did not seem to be aware of the requirements of the existing consent. The residents noted that at times the hotel does operate without disturbance when managed properly.
24 Mr Lidis, Mr Piggott and Mr Askew agreed that:
the existing Plan of Management was inadequate, that better management practices could be incorporated into the operation of the hotel and that other transport options should be adopted in order to assist with mitigating any potential impacts.
25 The experts agreed that patron noise and music from within the hotel should be able to comply with the relevant noise standards. The experts recognised that there is still the potential for disturbances on the surrounding area from patrons of the hotel, particularly when leaving.
26 Mr Askew had prepared a revised Plan of Management (PoM) to address the management of the hotel and to mitigate its potential impacts.
27 The key components of the revised PoM include:
- The presence of security guards outside the hotel,
- The dedication of a Responsible Service of Alcohol (RSA) Marshall to vet patrons who are either intoxicated or nearing intoxication,
- Imposing a total lock out of patrons after 1am,
- The dedication of a temporary taxi rank directly adjoining the premises on Pittwater Road, and
- The dedication of a booking service for maxi taxis.
28 The experts agreed that if the revised PoM was successfully implemented the impacts on surrounding properties would be acceptable. However, as this relied largely on management the approval should be for a trial period. Mr Piggott considered that due to the issues involved with the previous operation of the hotel the patron numbers should be limited to 400 after 10pm to assess the effectiveness of the revised measures. Mr Piggott and Senior Constable Whitfield had no concerns about the proposed numbers prior to 10pm.
29 Mr Lidis considered the trial period should be based on the larger patron number of 540. He stated that the hotel has been operating with this number since the approval of the first modification in 2005. With the approval of the extension of the hotel into 1066 Pittwater Road in 2007, the site area of the hotel had now increased from 720 sqm to 1034 sqm with no increase in patron numbers. Both he and Mr Askew considered that a larger area with less patrons can be managed more easily. Further they stated that incidents result more from management practices than from numbers. In their opinion it is appropriate to trial the proposed number of 540 rather 400 to assess the effectiveness of the PoM. Mr Lidis estimated that under the Building Code of Australia (BCA) the hotel area could accommodate over 1000 patrons. The license issued under the Liquor Act permits 540 patrons after 10pm. The Place of Public Entertainment (POPE) currently provides for 250 patrons reflecting the conclusion of the trial period.
30 Senior Constable Whitfield stated that the principle concern of the police related to the 1 hour increase on Thursday night to 1am on the basis that ‘there will be a measured increase in alcohol related incidents in and around the vicinity of the Surf Rock Hotel’. The applicant no longer proposes this amendment.
31 Senior Constable Whitfield did not support the increase in patron numbers as he considered this:
Places further pressures on licensed premises. Increasing the number of patrons allowed inside the licensed premises places further pressures on both security and bar staff. Larger numbers inside a licensed premise makes it harder for security staff to screen patrons. Larger patron numbers makes it significantly more difficult for security to check for signs of intoxication and under age drinkers. Larger patron numbers also places pressure on bar staff to serve more patrons faster making it harder for them to detect and act on signs of intoxication. Larger numbers also congest the egress of patrons throughout the hotel, around bars, toilets and dance floor.
32 Senior Constable Whitfield referred to the Alcohol Linking Reports for the period January 2006 to 23 February 2008. This report provides information about where a victim or an offender consumed their last alcoholic drink and if the incident occurred on or off the premises. He noted that while there had been a decrease in the number of alcohol related incidents linked to the Surf Rock Hotel during this period, the number of serious incidents had not dropped. He stated that in February 2008 the licensee was given an official caution for permitting intoxication.
33 Senior Constable Whitfield considered that any changes to management practices should be in place for at least six months before any increase to patron numbers and operating hours should be considered. He acknowledged that this opinion was based on increasing the patron numbers from 250 approved under the 2003 consent and not the 540 that had been permitted since 2005 under the trial periods. Further he notes that the hotel had increased in area in 2007 and that this larger area will release pressure and provide more opportunity for supervision inside the hotel which would assist in reducing incidents outside the hotel.
34 Senior Constable Whitfield noted that measures such as a dedicated taxi rank are effective in clearing people from the area as taxi drivers are more inclined to accept passengers from a taxi rank, particularly if this is supervised by security staff. He agreed that factors such as the number of security staff, training, overcrowding, poor design and no food being available effect the behaviour of patrons, not just the numbers.
35 Mr Askew was of the opinion that the measures in the revised PoM, particularly the RSA Marshall, number of security staff and transport arrangements would address the concerns of Senior Constable Whitfield and the objectors in relation to the impact of inebriated persons in the vicinity. In his opinion, for the PoM to be effective, independent compliance audits need to be undertaken. The applicant has agreed to a condition to this effect.
36 Mr N Koikas undertook measurements of the noise emanating from the Hotel. His initial test found that the noise levels did not comply with the Liquor Licensing Board (LAB) criteria. The non compliance largely resulted from modification of the sound system’s amplification settings and the equipment connected to it. Following adjustments to the sound system the noise levels, complied on subsequent visits.
37 Mr Koikas concluded that:
Provided the sound system is no longer tampered with, the LAB noise criterion will be achieved for all operating hours. In order that the amplification system is not tampered with, the key must be kept off the premises.
38 Mr Koikas stated that the two main potential sources of noise nuisance that may impact on the amenity of the area are music in the hotel and the behaviour of patrons outside the hotel. He noted the measures proposed in the PoM and made further recommendations in relation to security guards and surveillance cameras and signs. He concluded that:
When the above noise mitigation measures are implemented, it is my opinion that the incidence of anti social behaviour will be significantly reduced. Offenders could be dealt with by the proper authorities and repeat offenders should be denied access to the premises. By these means, it is my opinion, based on similar sites that I have assessed, that antisocial behaviour can be curtailed over time and therefore reduce noise to surrounding residents.
39 Mr Koikas also recommended that the noise be monitored on a regular basis and further conditions of consent including the settings and levels for the sound system. The applicant has agreed to these conditions.
Findings
40 The experts all agree that, if properly managed, the hotel can operate in a manner that will not adversely affect residential amenity. The parties do not raise any objection to the continuation of the proposed hours of operation in modified condition 20(a) as these are less than the hours approved in the 2003 consent. I have therefore not made this subject to further trial period.
41 The key disagreement relates to the continuation of 540 patrons after 10pm in modified condition 20(b); an increase from 250 under the 2003 consent. There is no disagreement about continuing the maximum number of 350 prior to that time.
42 Mr Hudson, on behalf of the council, submits that there is concern about the existing operation of the hotel from the police and residents and that a further trial period should be imposed with patron numbers limited to 400 and a midnight lockout to assess whether the measures in the revised PoM will be successfully implemented by management. He submits that there is concern about compliance with a number of conditions of the 2003 consent and its modifications, but recognises that this was not raised in the Contentions nor has evidence been adduced to this effect or any monitoring of the previous trial periods.
43 Mr Robson SC, for the applicant, submits that the hotel has operated successfully with 540 patrons since August 2005. He acknowledged the concerns of the police and the residents but states that these concerns relate to the behaviour of some patrons but do not provide a basis for establishing patron numbers at 250, 400 or 540. Further he notes that all the concerns cannot be directly linked to the Surf Rock Hotel given the number of other licensed premises in the area.
44 Mr Robson states that under the 2007 consent the available floor space has increased by about 30% with no increase in patron numbers. He notes that the 1991 consent permitted 150 patrons in one lot, about 25% of the size of the current hotel. There has therefore effectively been an increase in the area available for use by patrons.
45 Further Mr Robson submits that the revised PoM prepared by Mr Askew and the additional conditions will improve the operation of the hotel. These conditions include the requirement that the hotel operate in accordance with the PoM (conditions 38 (a) and (c)) and that compliance with the PoM be independently monitored every three months during the trial period and annually thereafter (condition 38 (e) and (f)). The conditions also include that the level of security staff be reviewed (condition 38 (b) and (f)) and the provision of a maxi taxi service (condition 82). Independent monitoring of compliance with the noise criteria is also required (condition 26(a)) and CCTV cameras are to be maintained outside the hotel (condition 39).
46 The other condition in dispute is condition 35. Mr Robson submits that the current wording of condition 35 restricts entry to the hotel after midnight except for patrons seeking to re-enter the premises from earlier that night. This has proved difficult to enforce. The applicant accepts the deletion but considers the lock out should be changed to 1am. Mr Hudson submits that a midnight lockout is more appropriate to deter patrons from other hotels such as the Sands Hotel, which closes at 12pm, from then entering the Surf Rock Hotel.
47 In relation to condition 35, I accept Mr Hudson’s submission. While patrons from the Sands Hotel may still seek entry prior to midnight this is likely to have less impact than at 1am. Mr Koikas evidence is that the background noise levels drop off considerably after midnight and residents’ sensitivity to noise will therefore be markedly increased. I do not consider that the deletion of the re entry provision needs to be traded off with a later lock out time.
48 Mr Robson submits that the proposal meets the requirements of LEP 2000 and complies with the planning principles in Randall Pty Limited v Leichhardt Council [2004] NSWLEC 277 and Vinson v Randwick Council [2005] NSWLEC 142.
49 I accept Mr Robson submission. The increase in the size of the hotel with no increase in numbers will enable better surveillance of patrons than that which existed under the previous trial periods. The introduction of the RSA Marshall whose role is to detect intoxicated persons should relieve pressure on bar and security staff. Senior Constable Whitfield recognised that patron numbers and behaviour was also linked to the size of the venue and to the level of supervision as well as to other factors such as design and the availability of food. There is no evidence presented to the Court that the maximum number of patrons suggested by council is appropriate. The key matter is the effective management of the number of people whether 400 or 540.
50 I am satisfied that the revised PoM in combination with the conditions of consent should mitigate impacts of the hotel on residential amenity. The question is whether the PoM will be implemented. Neither Mr Robson nor Mr Hudson submits that the existing conditions of consent have not been complied with. However, the concerns of the residents, the non compliance with the noise criteria and with requirements of the modified consent such as the requirement to engage transport to facilitate patrons leaving the area (condition 82) are of concern and place doubt on the ability of management to successfully implement the requirements of the PoM.
51 Also of concern is that there has been no objective monitoring of compliance with the conditions of consent and therefore there is little factual criteria by which to assess the operation of the trial period or the basis for further approval.
52 Even though there have been two trial period and the modified consent has operated since 2005 it is not possible to conclude whether the impacts on residential amenity are acceptable. From the resident evidence there have clearly been unacceptable incidents, however, their evidence also demonstrates that the hotel can operate in an acceptable manner if properly managed, clearly this is the opinion of the experts.
53 I therefore find that a further trial period with the current number of 540 patrons is appropriate. In reaching this decision I accept that the key difference between this and other trial periods is the requirement for ongoing independent monitoring of compliance with the PoM and the noise conditions. I am also mindful that the provision of the maxi taxi service would assist in removing patrons from the area. However, the proposed wording of the condition (condition 82) only requires that a maxi taxi is permanently booked by the hotel and on call between 1.30am and 3.30am (Saturday and Sunday) to transport patrons within a five km radius of the hotel. The condition does not make it clear who is to pay for the maxi taxi.
54 As I understand the evidence, the maxi taxi is to fulfil the role of courtesy buses that are offered by other establishments. The evidence of Senior Constable Whitfield is that courtesy buses are most effective when they are provided free of charge by the licensee and when this is made clear to patrons. The late trading on Friday and Saturday nights is the time most likely to result in adverse impact on residential amenity particularly by patrons waiting for transport. This is exacerbated by the limited public transport and the absence of a taxi rank. To encourage usage of the maxi taxi I consider that it should be provided at the cost of the licensee, as it only takes patrons for a 5km radius I do not consider this to be an unreasonable impost on the licensee. I have amended the condition accordingly (condition 82 (a)).
55 I also support the evidence of Senior Constable Whitfield and the recommendation of the PoM that a temporary taxi rank be provided. This will require approval and cannot be required as a condition of this consent. However, I have included a condition (condition 82 (b)) that within two month of the grant of this consent the applicant is to seek approval for such a taxi rank.
56 I have also included a condition (condition 26(d)) which requires the sound system key to kept off the premises as recommended by Mr Koikas.
57 The parties disagreed about the maximum number of patrons that should be permitted in the event that a further s 96 application to make the patron numbers permanent is refused at the end of the trial period. I have accepted council’s version, which reverts to the 2003 consent. This is a conservative approach but it is appropriate that any further approval of patron numbers be based on the monitoring that is required as part of this consent.
58 The parties disagreed about minor wording of some of the conditions. I have accepted the council’s version.
Orders
59 For the above reasons the Orders of the Court are:
1. The appeal is upheld.
3. The exhibits, except Exhibits 1, A, and F, may be returned.2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (DA 212/2002) for expansion to an existing hotel at lots 21,22 and 23 DP 218990, known as the Surf Rock Hotel 1060, 1062 and 1064 Pittwater Road, Collaroy is approved subject to the conditions in Annexure A.
__________________
Annelise Tuor
Commissioner of the Court
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