Caverstock Group Pty Limited (ACN 073161707) v Minister for Planning - [2009] NSWLEC 1297

Land and Environment Court

of New South Wales

CITATION: Caverstock Group Pty Limited (ACN 073161707) v Minister for Planning [2009] NSWLEC 1297

PARTIES:
APPLICANT
Caverstock Group Pty Limited (ACN 073161707)
RESPONDENT
Minister for Planning

FILE NUMBER(S): 10208 of 2009

CORAM: Hussey C

KEY ISSUES: MODIFICATION APPLICATION :- Trading hours/acoustic and heritage impacts.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan

DATES OF HEARING: 13 August 2009

EX TEMPORE JUDGMENT DATE: 13 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tomasetti (barrister)
SOLICITOR
Mr P Hines (solicitor)
RESPONDENT
Mr M McDonald (solicitor)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 August 2009
10208 of 2009 Caverstock Group Pty Limited (ACN 073161707) v Minister for Planning

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

Background.

1 This appeal was lodged against the Department’s refusal to modify conditions of consent regarding the adaptive reuse of the Lee Wharf Building C at Honeysuckle Drive, Newcastle. This development was granted approval on 9 July 2008.

2 Insofar as the application was for a number of modifications, those remaining in contention for the appeal concerned the deletion of the following conditions:

A6 Hours of Operation

(2) The outdoor deck area is to operate between the hours of 10.00AM and 10.00PM, seven (7) days a week. No patrons are permitted in this area after 10.00PM.

(3) A maximum of 2 special events per calendar year are permitted …

Any additional events to this area to be subject to a separate approval from Newcastle City Council

3 The applicant contended that these conditions were unnecessary, impractical and rendered the development unviable. The amendments were sought to enable the use of the outdoor deck area to be consistent with the trading hours of the remainder of the hotel and restaurant.

4 As these conditions mainly relate to noise amenity impacts, the applicant provided a further acoustic report from Dr Tonin from Renzo Tonin & Associates. The associated issues concern heritage impacts of any structural alterations, which have been assessed by Mr Collins (heritage architect) and other objections, including anti-social behaviour and other objections raised, which have been addressed by Mr Lovell, the applicant’s consulting town planner.

5 Following the review of all of this evidence, the parties have agreed to consent orders.

Planning controls

6 The site is within the Newcastle City Centre Local Environmental Plan 2008 ('City Centre LEP') and is listed as a general heritage item within the Newcastle City Centre Heritage Conservation Area under the City Centre LEP. Lee Wharf building C is itself un-zoned. However, adjacent to the east, south and south-west is a mixed-use zone and land adjacent to the west is a public recreation zone.

7 Cause 5 of Schedule 2 of State Environmental Planning Policy (Major Development) 2005 identifies the site as part of an area known as 'Newcastle - Honeysuckle', being a "Specified Site" to which Part 3A of the EP&A Act applies for certain specified types of development. Relevantly, the Respondent was the consent authority for the Project Approval.

8 There are no other controls within the City Centre LEP relevant to the use of the outdoor deck area or to the construction of the proposed acoustic screens.

The evidence

9 The full details of the proposal are contained in the statement of facts and contentions on which I rely. It appears that the modification of Condition A6 (2) was initially refused because of concerns that an extension to the trading hours could cause negative impacts on the amenity of nearby residential properties.

Acoustic impacts

10 Dr Tonin’s undertook noise assessment from the use of this outdoor deck for the period between 10pm and 12am. He concluded that a 4.27m high acoustic barrier should be erected at each end of the deck. He says this will satisfy the forecast noise levels. In supporting the proposal on this basis, he says:

“The noise source levels used in the modelling are therefore realistic and conservative because noise levels are far below the acceptability criteria and patron numbers will ultimately be less than the assumed number of 380 as space taken by furniture and the necessity for patrons and staff to move about.”

11 He provided draft conditions of consent for consideration by the Department of Planning.

12 Dr Tonin also addressed in detail the various concerns raised by the 8 objectors. His response is tabulated as follows:

No.

Issue

Response

1 The proximity of the Lee Wharf Building C (The Pub) outdoor deck is located immediately adjacent to a significant number of residential complexes. The computer modelling I have undertaken takes into account the proximity of all residential buildings in the area, including A1, A2, A4, A5 and A6.

Any use of this outside deck as a drinking and entertainment venue beyond 10pm will severely and adversely affect the quality of my lifestyle due to the noise that will emanate from the external use of this venue. Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as the LAB) criterion with an ample margin.

We also believe the proposal to build a 4.95m high wall at either end of the outside deck will have little or no impact on lessening the noise [to] residents. It should be noted that all the residential complexes are multi level (i.e. above the 4.95m wall height) with no residences on the ground floors. The 4.95m high acoustic screen has specifically been designed to that height to provide the required amount of acoustic shielding to the upper storeys of all residential buildings in the area.

We further object to any proposal to allow external loud speakers or music amplifiers at any time of the day or night that would also further significantly inconvenience local residents. The draft conditions of consent prevent the use of external loud speakers or music amplifiers on the outside deck.

2 Pro-forma letter same as 1 above.

3` We are also concerned your Department agreed to remove one of the important conditions relating to patron numbers. The acoustic modelling assumes 380 patrons will utilise the outside deck. This is a conservative number as explained in my report.

4 The adjacent area is hight density residential. Noise will definitely be an issue for the residents if the hours outside are extended. Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as LAB) criterion with an ample margin.

5 Pro-forma letter same as 1 above.

6 Pro-forma letter same as 1 above.

7 The proximity of the development and large outdoor deck area is located immediately adjacent to a number of residential buildings. Our residential buildings is one of these, situated only soe 30 metres away and ‘consisting of four floors and some 25 apartments. We look down and directly at the development and outdoor area. The computer modelling I have undertaken takes into account the proximity of all residential buildings in the area, including A1, A2, A4, A5 and A6.

The use of this outside deck as a drinking and entertainment venue beyond 10pm will severely and adversely affect the quality of our lifestyle due to the noise that will emanate from the external use of this venue. Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as LAB) criterion with an ample margin.

We are also very concerned about potential anti-social behaviour that will be amplified by the use of this outside area. This will obviously not be limited to official “operation hours” on the outdoor area, but will extend beyond operating hours’ as it takes time to move drinking patrons away from any drinking establishment. The control of noise from patrons leaving the premises is addressed in the Laundry Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provision of two licensed uniformed security persons patrolling the hotel from 7,.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.

The increase in- trading hours for the outdoor area up to 11pm weekdays and 12 midnight weekends will see an influx of young drinkers to the outside area as designed and targeted by the Tavern owners, trying to capture the pre night club market. It is obvious tha tthere will be a different customer using the deck area up to approximately 10pm (dining) than 10pm to 12 midnight when food will no longer be available. This is a current trend with other licensed establishments in Newcastle. The acoustic modelling includes realistic source data from prominent Sydney hotels with outside drinking areas targeting young drinkers.

People leaving the Tavern at and after the proposed closing times, will be intoxicated, loud, not mindful of residents, and make their way to the east to the night6 clubs in the CBD of inner Newcastle prior to ‘lock down’ of those night clubs. The desire line for these people is between, in front and around our residential buildings and other buildings to the east. The control of noise from patrons leaving the premises is addressed in the Laundy Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provisions of two licensed uniformed security persons patrolling the hotel from 7.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.

We also believe the proposal to build a 4.95m high wall at either end of the outside deck will have little or no impact on lessening the noise residents. It should be noted that all the residential complexes are multi level (i.e. above the 4.95m wall height) with no residences on the ground floors! This wal proposal may have a minimal impact on ground level areas which are all retail premises and most retail operators will not be there past 10pm, however all the resident families on levels one and above will be negatively impacted by the noise. The 4.95m high acoustic screen has specifically been designed to that height to provide the required mount of acoustic shielding to the upper storeys of all residential buildings in the area.

We also object to any use of any external speakers or music amplifiers at any time during day or night that would also significantly inconvenience or impact on local residents. The draft conditions of consent prevent the use of external loudspeakers or music amplifiers on the outside deck.

8 These same people will leave the Tavern at and after the proposed closing times, intoxicated, loud, not mindful of residents, and make their way to the east to the night clubs in the CBD of inner Newcastle. The control of noise from patrons leaving the premises is addressed in the Laundy Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provision of two licensed uniformed security persons patrolling the hotel from 7.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.

It is noted that as part of the increased trading hours there is proposal to build a 4.95m high wall at either end of the outside deck. This is a complete nonsense and it’s acoustic intention, contrary to amended acoustic reports is a ‘joke’. Residents in nearby apartments will still see patrons over the wall. If they can see the patrons, they hear the patrons. How desperate are the developers to suggest such a hideous proposal to get the ‘late night show’ up and running. The 4.95m high acoustic screen has specifically been designed to that height to provide the required mount of acoustic shielding to the upper storeys of all residential buildings in the area.

13 In the absence of any compelling contrary evidence, I rely on Dr Tonin’s evidence that the compliance with the conditions of consent should result in a satisfactory acoustic outcome.

Heritage impacts

14 With regard to the heritage impacts of the proposed acoustic barriers and in response to the provisions of cl 46 of Newcastle LEP, Mr Collins has prepared a Statement of Heritage Impact and concluded:

15 Mr Collins also responded to aspects of the objections that the wall will be unsightly and out of character as follows:

16 In considering the heritage aspects, I have also taken into consideration the following assessment by the department officers:

TAG E.

The proposed screens have been assessed by the Department's Senior Heritage Planner and the Department supports the conclusions of the Statement of Heritage Impact. The proposed screens can be designed to provide minimal impacts on significant fabric of the existing building and are reversible if considered appropriate in the longer term, should the nature of uses in this area alter. The proposed screens also do not affect the interpretability of the two Lee Wharf buildings (A and C), which will continue to seen as a pair of structures along the waterfront.

The acoustic wall is also to provide for heritage interpretation to be etched into the glass, which will satisfy the requirements of Condition D1(1) of the Conditions of Approval. Accordingly having regard to the criteria of clause 46(4) of the Newcastle City Centre LEP, lit is considered the proposed screens are appropriate elements and additions to the public domain and such that they does not have any adverse impacts on the heritage significance of the existing building, or on the City Centre Heritage Conservation Area.

17 I am satisfied to rely on this expert evidence that the heritage impacts are acceptable.

Objections

18 There were a number of objections lodged against the modifications and they have been assessed by Mr Lovell (consulting town planner). His overall assessment on potential anti-social impacts and the other issues is summarised as follows:

The current Application does not seek to extend the trading hours of the facility as a whole and seeks only to facilitate the use of the outdoor deck during the same trading hours as the remainder of the facility. Similarly, the Application does not alter the requirement to implement the approved Plan of Management, and the implementation of the Plan of Management remains a Condition of the consent.
In the circumstances, the Application does not increase the potential for anti-social behaviour, and does not alter the responsibilities of the licensee to take all reasonable measures to ensure the conduct of the business does not impact adversely on the surrounding area in accordance with the approved Plan of Management.
The Noise Impact Assessment concludes that the noise levels generated by the proposed use of the outside deck will be far below the acceptability criteria when measured from all of the surrounding residential apartments, and the noise source levels used in the modelling are realistic and conservative.
Finally, the Heritage Impact Assessment concludes that the proposed acoustic screens will have minimal impact on the heritage significance, and that the proposed development will have a positive impact upon the heritage of the site by opening up public access to the building and grounds, and providing site interpretation.
The concerns relating to potential anti-social behaviour seem premised on the misunderstanding that the Application seeks to extend the trading hours of the approved facility. Again, the Application does not seek to extend the trading hours of the facility as a whole and seeks only to facilitate the use of the outdoor deck during the same trading hours as the remainder of the facility.
Further, patrons using the outdoor deck must enter and exit the premises via the main public entrance. That is, the outdoor deck can only be accessed by patrons via the hotel and there is no separate access to/from the outdoor deck.
In addition, Condition G4 of the consent requires the implementation of the measures incorporated in the approved Plan of Management (prepared by Altis Architecture dated 16 May 2008) at all times.
The Plan of Management incorporates strict measures relating to the behaviour of patrons, and staff and security, including the provision of two (2) licensed uniformed security persons patrolling the hotel from 7.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm the patrols shall include the vicinity of the hotel and be continuous.

Again, the Application does not alter the requirement to implement the approved Plan of Management, and the implementation of the Plan of Management remains a Condition of the consent.

19 Consequently, Mr Lovell concludes that in the circumstances, the application does not increase the potential for anti-social behaviour, and does not alter the responsibilities of the licensee to take all reasonable measures to ensure the conduct of the business does not impact adversely on the surrounding area in accordance with the approved Plan of Management.

Conclusion

20 Having considered the evidence and the submissions, I am now satisfied that the amended application merits consent. The additional details provided during the course of the appeal, particularly the detailed acoustic assessment and associated heritage assessment distinguishes this from the original application and confirm that the relevant provisions of cl 46 of the Newcastle LEP are satisfied, in my assessment.

21 I am also satisfied that the application has been notified and the resultant responses adequately addressed, as previously mentioned. The objectors have been notified of today’s hearing of the consent orders but no further submissions made. In the circumstances then, I consider it reasonable to rely on the expert evidence submitted that compliance with the agreed conditions of consent, particularly the plan of management requirements will result in a satisfactory environmental outcome.

22 Consequently, the respondent has reviewed these conclusions and on the basis that the additional information provided distinguishes the proposed remedial acoustic barriers from that originally submitted, now agrees to the conditional consent orders, which I now consider are reasonable to grant.

Court orders

23 The Court orders by consent.

R Hussey

Commissioner of the Court

CITATION:	Caverstock Group Pty Limited (ACN 073161707) v Minister for Planning [2009] NSWLEC 1297
PARTIES:	APPLICANT Caverstock Group Pty Limited (ACN 073161707) RESPONDENT Minister for Planning
FILE NUMBER(S):	10208 of 2009
CORAM:	Hussey C
KEY ISSUES:	MODIFICATION APPLICATION :- Trading hours/acoustic and heritage impacts.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Newcastle Local Environmental Plan
DATES OF HEARING:	13 August 2009
EX TEMPORE JUDGMENT DATE:	13 August 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti (barrister) SOLICITOR Mr P Hines (solicitor) RESPONDENT Mr M McDonald (solicitor)

No.	Issue	Response
1	The proximity of the Lee Wharf Building C (The Pub) outdoor deck is located immediately adjacent to a significant number of residential complexes.	The computer modelling I have undertaken takes into account the proximity of all residential buildings in the area, including A1, A2, A4, A5 and A6.
Any use of this outside deck as a drinking and entertainment venue beyond 10pm will severely and adversely affect the quality of my lifestyle due to the noise that will emanate from the external use of this venue.	Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as the LAB) criterion with an ample margin.
We also believe the proposal to build a 4.95m high wall at either end of the outside deck will have little or no impact on lessening the noise [to] residents. It should be noted that all the residential complexes are multi level (i.e. above the 4.95m wall height) with no residences on the ground floors.	The 4.95m high acoustic screen has specifically been designed to that height to provide the required amount of acoustic shielding to the upper storeys of all residential buildings in the area.
We further object to any proposal to allow external loud speakers or music amplifiers at any time of the day or night that would also further significantly inconvenience local residents.	The draft conditions of consent prevent the use of external loud speakers or music amplifiers on the outside deck.
2	Pro-forma letter same as 1 above.
3`	We are also concerned your Department agreed to remove one of the important conditions relating to patron numbers.	The acoustic modelling assumes 380 patrons will utilise the outside deck. This is a conservative number as explained in my report.
4	The adjacent area is hight density residential. Noise will definitely be an issue for the residents if the hours outside are extended.	Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as LAB) criterion with an ample margin.
5	Pro-forma letter same as 1 above.
6	Pro-forma letter same as 1 above.
7	The proximity of the development and large outdoor deck area is located immediately adjacent to a number of residential buildings. Our residential buildings is one of these, situated only soe 30 metres away and ‘consisting of four floors and some 25 apartments. We look down and directly at the development and outdoor area.	The computer modelling I have undertaken takes into account the proximity of all residential buildings in the area, including A1, A2, A4, A5 and A6.
The use of this outside deck as a drinking and entertainment venue beyond 10pm will severely and adversely affect the quality of our lifestyle due to the noise that will emanate from the external use of this venue.	Noise from the outside deck will comply with the NSW Office of Liquor, Gaming and Racing (OLGR – formerly known as LAB) criterion with an ample margin.
We are also very concerned about potential anti-social behaviour that will be amplified by the use of this outside area. This will obviously not be limited to official “operation hours” on the outdoor area, but will extend beyond operating hours’ as it takes time to move drinking patrons away from any drinking establishment.	The control of noise from patrons leaving the premises is addressed in the Laundry Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provision of two licensed uniformed security persons patrolling the hotel from 7,.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.
The increase in- trading hours for the outdoor area up to 11pm weekdays and 12 midnight weekends will see an influx of young drinkers to the outside area as designed and targeted by the Tavern owners, trying to capture the pre night club market. It is obvious tha tthere will be a different customer using the deck area up to approximately 10pm (dining) than 10pm to 12 midnight when food will no longer be available. This is a current trend with other licensed establishments in Newcastle.	The acoustic modelling includes realistic source data from prominent Sydney hotels with outside drinking areas targeting young drinkers.
People leaving the Tavern at and after the proposed closing times, will be intoxicated, loud, not mindful of residents, and make their way to the east to the night6 clubs in the CBD of inner Newcastle prior to ‘lock down’ of those night clubs. The desire line for these people is between, in front and around our residential buildings and other buildings to the east.	The control of noise from patrons leaving the premises is addressed in the Laundy Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provisions of two licensed uniformed security persons patrolling the hotel from 7.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.
We also believe the proposal to build a 4.95m high wall at either end of the outside deck will have little or no impact on lessening the noise residents. It should be noted that all the residential complexes are multi level (i.e. above the 4.95m wall height) with no residences on the ground floors! This wal proposal may have a minimal impact on ground level areas which are all retail premises and most retail operators will not be there past 10pm, however all the resident families on levels one and above will be negatively impacted by the noise.	The 4.95m high acoustic screen has specifically been designed to that height to provide the required mount of acoustic shielding to the upper storeys of all residential buildings in the area.
We also object to any use of any external speakers or music amplifiers at any time during day or night that would also significantly inconvenience or impact on local residents.	The draft conditions of consent prevent the use of external loudspeakers or music amplifiers on the outside deck.
8	These same people will leave the Tavern at and after the proposed closing times, intoxicated, loud, not mindful of residents, and make their way to the east to the night clubs in the CBD of inner Newcastle.	The control of noise from patrons leaving the premises is addressed in the Laundy Hotels Security Management Plan for the Lee Wharf Hotel. The Management Plan includes the provision of two licensed uniformed security persons patrolling the hotel from 7.00pm until 30 minutes after the hotel has ceased to trade, and after 10.00pm there is a requirement to continuously patrol the vicinity of the hotel.
It is noted that as part of the increased trading hours there is proposal to build a 4.95m high wall at either end of the outside deck. This is a complete nonsense and it’s acoustic intention, contrary to amended acoustic reports is a ‘joke’. Residents in nearby apartments will still see patrons over the wall. If they can see the patrons, they hear the patrons. How desperate are the developers to suggest such a hideous proposal to get the ‘late night show’ up and running.	The 4.95m high acoustic screen has specifically been designed to that height to provide the required mount of acoustic shielding to the upper storeys of all residential buildings in the area.