Doncaster Operations v Randwick City Council (No 2)
[2007] NSWLEC 188
•30 March 2007
Land and Environment Court
of New South Wales
CITATION: Doncaster Operations v Randwick City Council (No 2) [2007] NSWLEC 188 PARTIES: APPLICANT
RESPONDENT
Doncaster Operations Pty Limited
Randwick City CouncilFILE NUMBER(S): 11535 of 2004 CORAM: Brown C KEY ISSUES: Appeal :- modification of conditions of approval for alterations and additions to a hotel - noise LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 30/03/07 EX TEMPORE JUDGMENT DATE: 30 March 2007 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr C McEwen SC
SOLICITORS
Staunton Beattie
Mr J Kildea, barrister
SOLICITORS
Shaw Reynolds Bowen & Gerathy
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
30 March 2007
JUDGMENT11535 of 2004 Doncaster Operations Pty Limited v Randwick City Council (No 2)
1 COMMISSIONER: This is an appeal against a condition requiring a trial period imposed by Randwick City Council (the council) on an application to modify Development Application 733/2004. This approval provided for alterations and additions to a hotel at 268 – 270 Anzac Parade Kensington (the site). The alterations and additions have been completed.
2 The modification application seeks to modify conditions 2, 9, 117, 121 and corresponding requirements in the Plan of Management. These conditions restrict the operating hours of the first floor terrace of the hotel and require a foldable screen to confine a maximum 50 patrons to a smaller section of the terrace. These conditions were imposed to ensure compliance with noise conditions of the Licensing Court.
3 The applicant subsequently lodged and received approval from the Full Bench of the Licensing Court to modify the licensing conditions to allow for the use of the whole terrace and extend the hours of operation from 6pm until 10pm. The modification application seeks to amend the comparable conditions in Development Application 733/2004 to reflect the changes approved by the Licensing Court.
4 On 13 February 2007, the council approved the application to modify conditions 2, 9, 117, 121 and corresponding requirements in the Plan of Management. However, in it’s consideration of the modification application the council added a further condition; condition 137. This condition states:
A separate application must be made to the Council, prior to the expiration of the 1 year trial period, in accordance with the relevant provisions of the Environmental Planning and Assessment Act 1979 to continue use of the terrace after the 1 year trial. The application should demonstrate that the use of the terrace area has not resulted in adverse impact to the amenity of residents in the locality and shall be determined under the delegated authority of the Director of City Planning.137. The use of the first floor terrace is limited for a trial period of 1 year from the day of issue of the occupation certificate.
5 The sole issue in the appeal is whether the trial period imposed by condition 137 should be deleted and specifically whether the absence of the trial period provides sufficient certainty against unacceptable noise impacts.
6 Mr Kildea, for the council submitted that the uncertainty over potential noise impacts justified the imposition of condition 137, particularly considering the proximity of residential properties in Doncaster Avenue and the recently constructed Capella Apartments in Anzac Parade. Even though the conditions were approved by the Licensing Court, the terms of the approval are not consistent with the standard conditions normally imposed by the Licensing Court. In this case, noise measurements are to be taken from inside the individual lots within the Capella Apartments with doors and windows closed rather than at the residential boundary. As such, this non-standard approach could not be said to be sufficiently certain to allow the deletion of the trial period.
7 The Court also heard from Ms Suzanne Egan who resides at 172a Doncaster Avenue. She opposed the modification application and cited a number of instances of unacceptable behaviour from patrons of the hotel where she (and her mother who also resides at the premises) were disturbed at night.
8 Mr McEwen SC, for the applicant submits that there was no uncertainty over potential noise impacts and the imposition of condition 137 cannot be justified. There was no disagreement between the council’s expert, Dr Tonin and the applicant’s expert Mr Cooper that the modified conditions of the Licensing Court can be satisfied at the Capella Apartments in Anzac Parade.
9 Mr McEwen SC also submits that on 23 August 2003, a Deed was executed between the registered proprietor of the land on which the hotel is constructed and the developer of the Capella Apartments. This Deed provides, amongst other things that the Capella Apartments incorporate glazing to ensure that noise from the hotel, prior to midnight, when measured inside any habitable room of any residential lot with doors and windows closed would satisfy the noise goal of background level plus 5dB(A). Mr McEwen SC submits that the Deed provides that compliance with noise goals rests with the developer of the Capella Apartments and not the hotel.
10 In balancing the competing submissions, I am satisfied that condition 137 can be deleted. The leading judgment on the suitability of trial periods is Zhang v Canterbury City Council [2001] NSWCA 167. Spigelman CJ (at 83) states, “It is possible to “take into consideration” matters even though their full significance cannot be known with precision”. In this case, I accept that the significance of the modifications are known within the normal bounds of noise assessment. While noise affects different people differently, this does not mean that noise assessment criteria are uncertain. Noise assessment is undertaken within guidelines established by the Department of Environment and Conservation (previously the Environment Protection Authority) and Australian Standards. When these guidelines were applied in this case there was no evidence to suggest that the appropriate noise goals would not be achieved. The only expert evidence provided to the Court was from Dr Tonin, Mr Cooper and the reporting council officer. All supported the modification application.
11 The particular circumstances of this case also cannot be ignored. As explained to the Court, the windows in the Capella Apartments need to be closed to satisfy the noise goals nominated in the Environmental Criteria for Road Traffic Noise because of the proximity to Anzac Parade and Doncaster Avenue. This requirement forms part of the approval for the Capella Apartments. It would be clearly inappropriate to set noise goals for the hotel that do not take into account the existing requirements for the Capella Apartments.
12 In relation to the concerns of Ms Egan and her mother, the evidence on the original approval indicates that based on the relevant noise goals, there is no impact on their property even without the restrictions on the hours of operation and patrons on the first floor deck. The restrictions were placed on the approval to overcome the non-compliance with the Licensing Court noise goals for the Capella Apartments and some upper level apartments in Doncaster Avenue but not the dwelling occupied by Ms Egan and her mother. As I understand any noise impacts to the upper level apartments in Doncaster Avenue were addressed through additional glass acoustic walls located on the first floor deck facing Doncaster Avenue.
13 Ms Egan raised a number of other matters on site and in her written submissions relating to the operation of the hotel, including non-compliance with conditions of approval during construction, the supervision of patrons by security staff, the behaviour of patrons around Anzac Parade and Doncaster Avenue and the potential conflict with cars on these roads. In accepting that these may be valid concerns, they are matters do not relate to the modification application and as such are not matters that can be given any weight in these proceedings.
14 The orders of the Court are:
1) The appeal is upheld.
2) The application to modify Development Application 733/2004 for alterations and additions to a hotel at 268 – 270 Anzac Parade Kensington is approved by the deletion of condition 137.
3) The exhibits are returned with the exception of exhibits 3 and 4.
- G T Brown
Commissioner of the Court
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