Australian Leisure and Hospitality v Manly Council (No 3)

[2009] NSWLEC 1180

Land and Environment Court

of New South Wales

CITATION:	Australian Leisure and Hospitality v Manly Council (No 3) [2009] NSWLEC 1180
PARTIES:	APPLICANT Australian Leisure and Hospitality Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	11098 of 2004
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- modification of condition of development consent - trial period for outdoor public dining - application under s 125 Roads Act - discretion to review merits of original decision and impose additional conditions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Roads Act 1993
CASES CITED:	Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
DATES OF HEARING:	17 April 2009, submissions 6 May 2009
DATE OF JUDGMENT:	10 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright, barrister SOLICITORS Deacons RESPONDENT Mrs L Finn, solicitor SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 June 2009

11098 of 2004 Australian Leisure and Hospitality Pty Limited v Manly Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Manly Council of an application to modify condition 50 of Development Consent 387/03 granted by the Land and Environment Court on 24 June 2005 (Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316) for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly.

2 Condition 50 states:

Use of Public Areas
50 (i) Consent is granted for the use of public areas adjoining or adjacent to the subject premises for outdoor seating and dining, in accordance with SK01.
(ii) The use of the public areas referred to in condition 50(i) shall be limited to a trial period of 12 months from the date of the commencement of the use. To continue the use after the trial period, a further development application must be made within the trial period.

3 The issues in the appeal are whether is it appropriate to reconsider planning issues as part of the consideration of an application under s 125 of the Roads Act 1993 and if so, has there been sufficient change to the planning regime to reconsider any planning issues, including the imposition of new conditions.

The council’s case - the use of s 125

4 Mrs Finn submits that it is open to the council to address the use of the footway for the purposes of a restaurant as part of the modification application. Section 125(1) gives unfettered discretion in granting approval under this section. It does not follow that because planning approval has been granted that a consequent approval under s 125 would automatically follow.

5 Mrs Finn submits it is highly relevant in the consideration of an approval under s 125 to reconsider the basis for the approval if the relevant planning controls have changed after the approval but prior to the consideration of the approval under s 125.

6 Mr Steven Layman, an architect and town planner provided evidence for the council. He states that the use of the public areas would obscure vistas of the Ocean Beach and the surf from The Corso and Sydney Road and would also alienate the continuous pathway awning from public use. Further, the provision of tables and chairs would impact on the weekend markets and restrict pedestrian access in Sydney Road. Mr Layman relies on the masterplan for The Corso, which provides for an integrated urban design treatment for this area. The masterplan designates only an outdoor dining area in the middle of The Corso.

7 The council's principal position is that the modification application should be rejected and with no approval under the Roads Act 1993, the outdoor seating and dining cannot take place. If the Court does not accept this position then the following words should be added to condition 50:

The use of public areas pursuant to the Roads Act approval must not commence until such time as all works the subject of the plans prepared by Altis Architecture Project Not 289/02, drawing Nos DA01-DA04 and DA 05A to DA 09A and SK01 dated 8.2.05 have been completed and an Occupation Certificate issued.

8 The council also proposes further modifications, consisting of additional conditions that provide for:

• a deferred commencement condition requiring details of furniture and equipment for the outdoor eating area (deferred commencement condition A1),
• no smoking in any part of the approved dining area (condition ANS 10 and condition 3.7 of the Roads Act Approval),
• no alcohol in any part of the approved dining area (condition ANS 16),
• the expiration of the approval if the development is not commenced within two years of the date of any approval (condition DA323)
The applicant’s case - the use of s 125

9 Mr Wright submits that the sole reason for the appeal is to give effect to condition 50 by modifying the condition to grant approval under s 125 as the council has, on two occasions refused to grant approval. The modification application seeks no other changes to the development consent granted by the Court on 24 June 2005.

10 The underlying basis for council's opposition to the modification application is to deny the applicant the use of the footway for the purposes of a restaurant on the basis that there have been changes to council policies that have occurred since the granting of development consent. The applicant rejects this contention. The council, inappropriately in the applicant’s submissions, attempts to bring into consideration matters through s 125 that are discretionary considerations under s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act). Mr Wright submits that the only step the Court has been asked to take is to grant approval under s 125 and that approval does not involve a reassessment of the merits of the use of the footway for dining.

11 Mr Michael Neustein, an architect and urban designer provided evidence for the applicant. He disagrees with Mr Layman that views will be lost to Ocean Beach and the surf from The Corso and Sydney Road. Any views that would be lost would be from a viewing height below 1.1 m (because of people sitting at the proposed tables and chairs). Based on studies undertaken of pedestrian movements along this part of The Corso, Mr Neustein states that in fine weather the majority of pedestrians do not use the area under the awning where the outdoor seating and dining is proposed. In his opinion, the planning controls that applied to the area in question at the time of the approval are not materially different from those that currently apply.

12 The applicant proposes that condition 50 be modified to read (additional requirements are shown bold):

50 (i) Consent is granted for the use of public areas adjoining or adjacent to the subject premises for outdoor seating and dining, in accordance with SK01.
(ii) Approval is granted under Section 125 of the Roads Act 1993 (NSW) to use the footway adjacent to the subject premises for restaurant purposes for a period of seven years, subject to the conditions and the approval annexed hereto and marked "Annexure B"
(iii) The use of the public areas referred to in condition 50(i) shall be limited to a trial period of 12 months from the date of the commencement of the use. To continue the use after the trial period, a further development application must be made within the trial period.
(iv) The use of the public areas pursuant to the Roads Act Approval must not commence until such times as all works the subject of the plans prepared by Altis Architecture Project Not 289/02, drawing Nos DA01-DA04 and DA 05A to DA 09A and SK01 dated 8.2.05 have been completed and an Occupation Certificate issued.

13 The applicant objects to the additional conditions proposed by the council and also the requirement for a Pavers Bond (condition 3.24 of the Roads Act Approval). The applicant proposes that the term of the Roads Act Approval be 7 years, rather than 2 years proposed by the council (condition 50(ii) and condition 1.1 of the Roads Act Approval).

Findings - the use of s 125

14 As a starting point, I did not understand there to be any dispute between the parties that s 39(2) of the Land and Environment Court Act 1979 provides the relevant source of power to exercise the council's functions, and in this case grant approval to use of part of the public footway for outdoor seating and dining under s 125.

15 The principle question is whether it is appropriate, as part of the consideration process of an application under s 125, to reconsider the planning aspects of the development consent previously granted by the Court in 2005. In my view, the question must be answered in the negative.

16 I do not accept the submissions of Mrs Finn that s 125(1) gives unfettered discretion in granting approval under this section. Section 125(1) provides:

125 Approval to use footway for restaurant purposes
(1) A council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road (being a public road that is vested in fee simple in the council) to use part of the footway for the purposes of the restaurant.

17 While this section undoubtedly provides a wide discretion to council in granting an approval under this section, any discretion must be limited by the overall constraints imposed by the Act itself. Section 3 provides the objects for the Act. These are:

(a) to set out the rights of members of the public to pass along public roads, and
(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and
(c) to establish the procedures for the opening and closing of a public road, and
(d) to provide for the classification of roads, and
(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and
(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and
(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and
(h) to regulate the carrying out of various activities on public roads.

18 There is no provision in the Roads Act 1993 that would suggest that the powers extend beyond the matters identified in s 3, and particularly to matters relating to the reconsideration of planning matters normally exclusively dealt with by s 79C of the EPA Act. I agree with the submission of Mr Wright that the only practical explanation for the requirement for approval under s 125, in this case, is to give effect to condition 50. The approach is similar to the way a Construction Certificate gives effect to conditions of a development consent. I do not accept that there is any basis to conclude that s 125 is to provide a further opportunity to reconsider issues that were previously considered and determined as part of the merit assessment of the development application.

19 For these reasons, I accept the applicant’s version of condition 50 (see par 12).

Conditions

20 For the reasons given in the preceding paragraphs that the discretion to reconsider merit matters as part of the s 125 considerations is not unfettered, it follows that any additional conditions sought to be imposed by the council must relate to the modification application (that is, condition 50 and the application for approval under the Roads Act 1993). Additional conditions are inappropriate if they have the effect of raising issues that were or should have been appropriately addressed at the consideration of the development application. The additional conditions sought to be imposed by the council are:

21 Deferred commencement condition 1A - this deferred commencement condition requires the applicant to provide details of furniture and equipment to be used in the outdoor dining area. The details provided in SK01 identify the number, location and the extent of the area for tables and chairs for the outdoor seating. This detail was considered appropriate at the time of the previous hearing and in my view, still provides sufficient certainty. I note that the Roads Act Approval provides requirements for furniture and equipment (Condition 3.4). This matter has been appropriately addressed at the consideration of the development application. Deferred commencement condition 1A can be deleted.

22 Condition ANS 10 and condition 3.7 Roads Act Approval - this condition prohibits smoking in any part of the approved dining area. The additional condition relating to a prohibition on smoking was not raised at the previous hearing but appears to be a standard condition on the Roads Act Approval. I agree with the applicant’s submissions that the location of the areas where smoking is prohibited is best left to the specific legislation that addresses this issue. Condition ANS 10 and condition 3.7 of the Roads Act Approval can be deleted.

23 Condition ANS 16 - this condition prohibits alcohol in the outdoor dining area. The additional condition relating to a prohibition on alcohol consumption was not raised at the previous hearing. An Alcohol Free Zone applies to the Manly CBD, including the site and the whole of The Corso. This restricts the consumption of alcohol 24 hours per day, seven days a week for a period of three years from 28 December 2007. The Alcohol Free Zone restrictions postdate the approval granted by the Court. Because this was not a matter raised at the previous hearing, I accept the applicant’s submission that condition ANS 16 can be deleted. The deletion of the condition however, does not relieve the applicant from the obligations imposed by the Alcohol Free Zone. This is a separate (although related) requirement and the obligation to satisfy all requirements relating to the consumption of alcohol on The Corso rests with the applicant.

24 Condition DA323 - this condition states that the approval for the alterations and additions to the hotel will expire if the development is not commenced within two years. In my view, this is not a matter that falls within the scope of the modification application and inappropriately seeks to raise an issue that should have been properly considered at the previous hearing. Condition DA323 can be deleted.

Condition 50(ii) and condition 1.1 - Roads Act Approval

25 These conditions, in conjunction with Item 6 in the Schedule to the Roads Act Approval sets the term of the approval. The council maintains that 2 years is the appropriate time whereas the applicant seeks a 7 year term. The applicant maintains that the 7 year term is appropriate as it gives effect to the correct operation of s 125(5). The approval is still subject to the 12 month trial period that requires a further consent be obtained at the end of the trial period. The 7 year period is to avoid having to bring a multiplicity of proceedings if approval is not granted under the Roads Act 1993.

26 While the reasoning of the applicant is not without some merit, I agree with the council that a 2 year term is appropriate given the potential need for the council to monitor and reconsider activities on The Corso. As I understand, this timeframe is also consistent with other Roads Act Approvals given by the council for The Corso.

Condition 3.24 - Roads Act Approval

27 This condition requires the payment of a bond against damage to the pavers in the area of the proposed dining, as defined by SK01. The applicant opposes this condition (and the subsequent calculation of the security deposit in Item 12 in the Schedule to the approval) on the basis that there is no evidence of the policy supporting this condition, the need for such a condition on the merits of this case or any evidence as to the basis upon which the level of bond has been calculated, let alone reasonable.

28 In my reading of the condition, it is simply to provide a bond against damage that may occur to the council paving material in the area of the proposed tables and chairs. As the paving material is a council asset, I see no reason why a bond should not be imposed against potential damage by the applicant. For this reason, the condition should remain. The amount of the bond was not provided by the council but should be provided with an amended Roads Act Approval that addresses the findings in this judgement. In the absence of the bond, the opportunity will be provided for the parties to provide short written submissions, if there is no agreement on the amount of the bond.

The Arts and Crafts Markets

29 The Arts and Crafts Markets operate in Sydney Road adjoining the hotel on weekends. The markets were operating in 2005 when the Court heard the original appeal and the proposed trial period was included to monitor, in part, whether any limitations should be imposed on the dining area because of the potential overlapping with activities associated with the markets.

30 There was no evidence to suggest that the activities associated with the markets had changed since the Court’s consideration of the appeal in 2005.

The need for a restaurant

31 Mrs Finn submits that s 125(1) requires that the person who operates the approval must also be operating a restaurant adjacent to the footway. She submits that there is no restaurant, as required by this legislation, being conducted at the hotel.

32 I do not accept this submission. A perusal of the approved plans indicates a first floor kitchen and ground floor servery. The test of compliance with s 125(1) must be with the approved plans not to the current operation. Condition 50 (and the subsequent Roads Act Approval) forms part of the approval for operations and additions to the hotel. There is no application for a Roads Act Approval for the existing operation.

A change to the planning regime?

33 The relevant controls are the Manly Urban Design Guidelines (the Guidelines), Development Control Plan for the Corso (The Corso DCP) and the masterplan. The Guidelines were considered in the previous hearing and was a reason for the imposition of a trial period for the outdoor dining being considered appropriate.

34 The Corso DCP postdates the previous hearing (20 December 2005) however contains no specific requirement for the prohibition of outdoor dining. Clause 5.5 requires critical views to be kept open and particularly identifies "down Sydney Road, from Fairlight looking east to Shelly Beach headland" (cl 5.5(ii)). With the benefit of the site view, an understanding of the location of the seating and the views, I agree with the conclusions of Mr Neustein that the views identified in cl 5.5(ii) and to the ocean will not be unacceptably impacted by the proposed seating.

35 The status of the masterplan was in dispute between the parties. Mr Layman took the view that the masterplan was the physical representation of the policies and objectives imbedded in The Corso DCP and the Guidelines. That masterplan identifies the location for specific activities such as outdoor eating areas, stage and a playground as well as lighting and tree locations. Mr Neustein states that the masterplan, while being public exhibited, is essentially a landscape plan for The Corso and not a definitive planning document.

36 The council adopted the masterplan on 12 December 2005 after exhibition and consultation in November 2005, including a public meeting. Mrs Finn submits that the masterplan satisfies the first relevant requirement in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and that significant weight should be given to this document.

37 In considering the documentation provided by the council on the masterplan, I am more inclined to accept the conclusions of Mr Neustein. The master plan (as provided in Exhibit 3) consists of a multiple A3 plans for the extent of The Corso identifying the location of features such as rubbish bins, phone booths, post box, drinking fountains, existing trees and types of proposed paving and new trees. A larger coloured plan was also provided. There is no written document. The A3 plans were prepared by Taylor Gullity Lethlean. The company (based on their title block) is involved in Landscape Architecture, (my emphasis) Urban Design and Community Consultation.

38 In my view, the details provided in Exhibit 3 are what would reasonably be expected for a landscape masterplan. If a comprehensive approach was to be taken to the planning for The Corso, it could reasonably be expected that it would more than likely take the form of The Corso DCP (or an amendment to The Corso DCP) where the many different elements associated with the future planning of The Corso are addressed. For the masterplan to achieve the status suggested by Mrs Finn, I would have expected an accompanying written statement that clearly stated that there was to be no dining on areas beyond those areas identified on the plans. In the absence of any clear statement on dining on The Corso, I am satisfied that the documentation in Exhibit 3 is simply a landscape masterplan for The Corso and not a comprehensive planning document.

39 It follows that if I am incorrect in concluding that s 125 does not allow reconsideration of the planning issues, then the planning regime for The Corso has not changed to any meaningful way since the previous hearing and as such cannot be the basis for the reconsideration of the merits addressed by the Court in 2005.

Directions

40 As final orders cannot be made because of the need for the paver bond to be calculated, the following directions are made:

1. The parties are to file conditions of development consent that reflect the findings in the judgment by close of business 17 June 2009.
2. The parties are to file conditions for the Roads Act Approval that reflects the findings in the judgment by close of business 17 June 2009.
3. If agreement cannot be reached on the paver bond, the parties are to provide short written submissions on their respective positions by close of business 17 June 2009.
4. Final orders will be made in Chambers.

41 On satisfactory compliance with the above directions, the Orders of the Court will be:

1. The appeal is upheld.
2. The application to modify condition 50 of Development Consent 387/03 of the development consent granted by the Land and Environment Court on 24 June 2005 for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly is approved. The proposed development is approved subject to the conditions in Annexure A.
3. The application under s 125 of the Roads Act 1993 is approved subject to the conditions in Annexure B.
4. The exhibits are returned.
_______________
G T Brown
Commissioner of the Court