Avrocorp Pty Limited v Woollahra Council

[2008] NSWLEC 1369

Land and Environment Court

of New South Wales

CITATION:

Avrocorp Pty Limited v Woollahra Council [2008] NSWLEC 1369

PARTIES:

APPLICANT
Avrocorp Pty Limited

RESPONDENT
Woollahra Council

FILE NUMBER(S):

10165 of 2008

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations to the Grand National Hotel, car parking, amenity, noise, smoking terrace

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

19/08/08 20/08/08 and 21/08/08

EX TEMPORE JUDGMENT DATE:

21 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Pickles, barrister
Instructed by Killalea Solicitor

RESPONDENT
Ms J. Hewitt, solicitor
and Ms D. Le Breton, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

21 August 2008

10165 of 2008 Avrocorp Pty Limited v Woollahra Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal relates to a development application for alterations to the Grand National Hotel at 33 Elizabeth Street, Paddington.

2 The proposed works involve all four levels of the building including the basement and mainly comprise the reconfiguration of the bar area and bistro on the ground floor and the relocation of the restaurant to the first floor. The first floor is presently utilised for office, staff, storage and other purposes. There are a number of vacant rooms on this floor in the form of bedrooms that would originally have been used as such and associated with the hotel use. Other than the storage uses that are to be transferred to the extended basement the office and staff uses will be transferred to the second floor.

3 The site is located at the corner of Elizabeth Street and Underwood Street in a closely developed mainly residential area. It is zoned Residential 2(a) under the Woollahra Local Environmental Plan 1995 but has existing use rights under Div 10 of the Environmental Planning and Assessment Act 1979.

4 The application in its original and modified forms was advertised and some 28 submissions plus a petition were received. Whilst these submissions include a number of letters of support the majority expressed their objection to the proposal. A number of these residents were given the opportunity to explain their concerns or support when the hearing began on site. Those residents who objected to the proposal explained that:

1. On street car parking is in high demand and, given the increased patron capacity of the hotel, availability of car spaces for residents will be made more difficult because the hotel does not provide any off street car parking.
2. Because there will be more people using the hotel there will be more people in the surrounding streets whether going to or coming from the premises or making telephone calls or smoking cigarettes. The noise from these activities will increase the existing adverse impacts on residential amenity, especially at night. Present antisocial and roisterous behaviour, including inappropriate disposal of refuse and urinating in doorways is also likely to increase. Security personnel are unlikely to resolve these concerns.
3. Again, because there will be more people using the hotel there will be more deliveries to be made and more waste to be collected thus affecting residential amenity.

5 Those residents who supported the proposal explained that:

1. There are a number of other businesses, restaurants and hotels in this immediate locality and some noisy behaviour does occur but this is not too bad. Suggestions regarding antisocial behaviour are exaggerated.
2. The hotel is, by comparison with previous licensees, well managed. The nature and quality of the hotel including the provision of a quality restaurant has been considerably improved. There will be no problems associated with the additional patrons.
3. The restoration of the hotel and its façades will be of considerable benefit to the community and the streetscape.
4. The parking situation in the locality will be unchanged. Most people who come to the hotel are locals who walk and others seem to come by taxi or public transport.

6 The NSW police force in its letter dated 15 November 2007, said that it strongly supports the initiative of the hotel increasing its capacity to offer dining facilities to patrons because of the importance of a meal whilst consuming liquor in terms of harm minimisation.

7 On behalf of the respondent council expert evidence was given by Mr F Rotta (traffic) and Mr A Rowan (town planning and heritage). On behalf of the applicant expert evidence was provided by Mr G Shiels (town planning, urban design and traffic).

8 Additional evidence was provided by Senior Constable D Murphy of the Rose Bay, Paddington Local Area Command of the New South Wales Police. She noted that the Grand National Hotel is a low risk premises, explaining that the police had no reason to object to this proposal especially as dining is to become a greater focus. Despite these things the police will continue as part of their regular patrols in the area to monitor this and other nearby hotels. She also said that she understood residents’ concerns about the noisy behaviour of patrons departing the premises and suggested that this could be dealt with by ensuring that security personnel are properly managed and that wherever possible the departure of patrons should be undertaken in a progressive or staged manner.

9 Whilst the respondent council submitted that the resident objections should be taken into consideration in deciding whether or not to uphold the appeal the only fundamental issue in dispute with the applicant and for which there is expert evidence is car parking. All of the other matters are of less significance and should be able to be dealt with by conditions of consent. Of these matters it is only the dimensions and detailing of the existing large ground floor windows and the smoking terrace adjacent to Elizabeth Street that continue to be in dispute.

10 In addition to the car parking issue the council submitted that the concerns of the residents including car parking and the likely impacts on residential amenity should also be taken into account in deciding whether or not the appeal should be upheld.

11 The parties have otherwise agreed on a set of conditions including plans of management and security that relevantly deal with security measures. These plans have now incorporated the suggestions of Senior Constable Murphy.

12 As for the ground floor windows in the Elizabeth Street façade Mr Rowan says that the lowering of the sill of the westernmost window would achieve a more appropriate stepping in the fenestration to Elizabeth Street and a more typical proportion for a ground floor commercial use in the conservation area. Mr Shiels disagreed, suggesting that lowering the sill would be more in keeping with a shopfront than a hotel and would result in an asymmetrical appearance to Elizabeth Street.

13 In my opinion it would not be appropriate in the absence of detailed evidence regarding the architectural history of the building to seek to replicate the fenestration that might originally have existing. Plainly the walls on this part of the building have been the subject of much alteration area the more than one hundred years that the hotel has existed. I also conclude that, in terms of the overall presentation of the building, there would be little difference between a window with a lowered sill that reflects the downward slope of Elizabeth Street and one that does not. I thus agree with Mr Shiels and conclude that there is no compelling evidence that the sill needs to be lowered.

14 Mr Rowan suggested that if the sill is not to be lowered then a condition of consent should be imposed essentially requiring that the three large windows in Elizabeth and Underwood Streets should each have a single central vertical mullion. Mr Shiels agreed that this would be a better solution by comparison with the multi-panelled arrangement shown on the plans. I also agree and therefore, the condition of consent dealing with this matter should be amended accordingly.

15 As for the smokers’ terrace, I note that the town planners have no disagreement in relation to the now proposed balustrade and screen in terms of streetscape, presentation and acoustics. I also note that there is to be a condition to the effect that the terrace cannot be used by persons whilst consuming food or drinks. However, they disagree in relation to whether there should be a limit on the number of persons using the terrace at any one time and in relation to when the terrace should be closed.

16 Mr Rowan suggests that the terrace be limited to five persons at any one time and should be closed at 10pm in order to protect residential amenity especially in relation to noise impacts on nearby dwellings. Mr Shiels disagreed, explaining that the noise impacts from smokers using the terrace are likely to be less than those generated by smokers using the nearby footpath. Hence there are benefits if the people that might otherwise have used the street are able to use the terrace. Also, if it were close at 10pm, smokers would be inclined to use the footpath imposing a greater impact on residential amenity at the more sensitive time between 10pm and midnight. He also said that given the small size of the terrace and thus its capacity, its use would be reasonably self-regulating. For the reasons that he has given I prefer the evidence of Mr Shiels and agree that the condition of consent requiring a limitation on the number of persons or the closure at 10pm should be deleted.

17 The car parking issue was dealt with in the joint report of Mr Rotta and Mr Shiels. In this report Mr Rotta contends that the proposal will result in an intensification of the site which will increase demand for the limited available on street car parking. Consequently some drivers will park illegally and thus affect traffic safety. The reduced demand for car parking will also be to the detriment of residents who park in the streets surrounding the hotel. Hence, because no car parking can be provided on site and because any increase in demand will have an impact on residents, no further increase in the intensity of use of the hotel should be permitted. Mr Shiels disagreed, contending that any increase in car parking would have very little impact. He reached this conclusion relying on a survey undertaken by his office that shows that most patrons will either walk, come by taxi or by bus whereas only 14% would drive and 8% would come as a passenger in a car.

18 Following a discussion with Mr Rotta and applying this data to the 24 additional seats in the restaurant and taking into account the pre and post dining area for the restaurant it was revealed that by relocating the restaurant to the first floor and extending the bistro area on the ground floor there would be a demand for between five and seven extra parking spaces. Despite this Mr Shiels contends that because of the existing shortage of available on street parking patrons are not likely to drive cars to the hotel, hence any impact is likely to be indiscernible. Also to be taken into account is that the hotel is unlikely to operate at full capacity and its general operation is not proposed to be changed nor are the trading hours. He also notes that characteristically the other hotels in the area do not provide any off street car parking.

19 Mr Shiels also agreed that any theoretical increase in demand needs to be balanced against the demand otherwise generated by the floor space that is effectively displaced by the relocated restaurant. The restaurant will now effectively occupy the entire first floor including the perhaps nine rooms that could and probably have in the past been used as bedrooms. These bedrooms are presently in a dilapidated state but could be renovated and legitimately let out to persons. The parking demand associated with these rooms should thus be taken into account.

20 My attention was also drawn to the council officer’s report dealing with this matter that recognises that on street parking in Paddington is at a premium as many of the terrace houses do not provide on site parking. This is the basis upon which a residential parking scheme for residents was introduced. That report notes that on street parking spaces are currently heavily utilised both day and night and recognises that the proposes will increase the on street parking demand. Despite council’s traffic engineer’s concerns about the car parking shortfall the report concludes that the increase in demand is acceptable, taking into account that a major portion of patrons will be local residents that will frequent the hotel on foot. The report concludes that:

The proposed development although numerically will create an increase in terms of on street parking demand, patrons attending the hotel as well as other hotels within the Paddington area are aware that street parking is at a premium and therefore will be inclined to travel to and from the hotel in a taxi or use regular and convenient public transportation.

This, coupled with the intended use of the hotel to move away from the stereotypical pub scene to an environment in which food and restaurant dining is the predominant use, should be encouraged and is therefore supported notwithstanding the deficiency in on street parking.

21 In a practical sense there can be little double that the proposed changes to the hotel will generate an additional demand for car parking in this locality and in terms of the associated impacts I expect that this will be at its worst at weekends and that at most other times the hotel will operate significantly below its capacity. Despite the consequences of this demand being an increased competition for parking spaces I have not been persuaded that this is a reason to refuse this application. In reaching this conclusion, I have given determinative weight to the argument that any possible demand for additional parking spaces associated with the restaurant should be considered and balanced against the demand for car parking spaces that would otherwise have been generated by the displaced uses and rooms on the first floor of the hotel. I also accept the above quoted reasoning used by the council officer who supported this application notwithstanding the likely deficiency in on street parking.

22 Turning now to the matters of concern to those residents who objected to the proposal, particularly those concerns regarding impacts on residential amenity. In this regard and in a more general sense I first refer to the advice of Senior Constable Murphy that this is a low risk premises, there being no reported incidents and that it is likely to become even less so as dining becomes a greater focus for the hotel’s business. This is one indication that the behaviour of hotel patrons when arriving and leaving the premises is likely to be more reasonable than if the hotel were a more conventional drinking pub. Added to this are the conditions of consent and the management security plan that has been developed in response to the advice of Senior Constable Murphy. Of particular relevance are the requirements for the provision of security personnel and the phased closure of the hotel each evening. The security personnel will, apart from their more usual duties, have the responsibility of moderating patron behaviour in the streets especially in relation to noise. Importantly the door to Underwood Street, the residential area that is particularly sensitive to the hotel, is to be subject to earlier closure at 10pm. The provision of the smoking terrace will also be of benefit by keeping at least some smokers off the street.

23 The management plan also deals with deliveries, although because garbage is collected by the council I understand that this cannot be controlled by the applicant. Despite this the greatest concern in this regard seems to involve the collection of glass bottles, this being particularly noisy. However, I accept the neighbours’ evidence that this has been occurring mid Saturday mornings and that this is a not unreasonable arrangement and I understand that this arrangement is to continue.

24 Finally, I agree with those residents who support the proposal and who say that this is an area that contains a number of hotels and businesses that have been operating as such for many decades and that some impacts are to be expected and are within reason and part of the local environment.

25 For the above reasons I have decided that the appeal should be upheld and conditional development consent granted. The conditions will be those conditions that I understand have been agreed between the parties but subject to the findings that I have already indicated. The exhibits are returned with the exception of Exhibit A.

___________________

T A Bly
Commissioner of the Court
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