Ducester Pty Limited v Randwick City Council
[2012] NSWLEC 1316
•05 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Ducester Pty Limited v Randwick City Council [2012] NSWLEC 1316 Hearing dates: 5 November 2012 Decision date: 05 November 2012 Jurisdiction: Class 1 Before: Fakes C Decision: 1. Appeal upheld
2. Consent granted to modify development consent DA-98/2010 in respect of the property know an the Duke of Gloucester Hotel, 2 St Marks Road, Randwick, in respect of condition 9, relating to hours of operation of the beer garden, and condition 10, relating to the maximum number of patrons permitted in the beer garden.
3. Development is granted subject to the consolidated set of conditions annexed and marked "A".
Catchwords: CONSENT ORDERS: Modification application - conditions of consent; acoustic issues Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environmental Court Act 1979
Randwick Local Environmental Plan 1998Category: Principal judgment Parties: Ducester Pty Limited (Applicant)
Randwick City Council (Respondent)Representation: Applicant: Mr S Gallagher (solicitor)
Respondent: Mr P Rigg (solicitor)
Applicant: Shanahan Tudhope Solicitors
Respondent: Norton Rose Australia
File Number(s): 11047 of 2011
Judgment
COMMISSIONER: This is an application made under s97AA of the Environmental Planning and Assessment Act 1979 (the Act) against Randwick City Council's determination of a s 96 modification application (DA/98/2010/A) for modifications to conditions of consent for alterations and additions to the Duke of Gloucester Hotel, St Marks Road Randwick.
The key differences between the parties regarding the hours of operation, number of patrons, and acoustic issues arising from the proposed extension to the courtyard beer garden have been resolved and the parties seek consent orders from the Court.
The site, locality and relevant planning controls
The Duke of Gloucester Hotel is located on the corner of St Marks Road and Frenchmans Road Randwick.
The land on which the hotel sits is zoned Residential 2C under Randwick Local Environmental Plan 1998 (RLEP). Hotels are prohibited on land within that zone however the hotel enjoys existing use rights.
The hotel, c1934, is listed as a locally significant heritage item in Schedule 3 RLEP.
There is a dwelling to the south (rear) of the hotel and a residential flat building to the west of the existing garage. The rear of the hotel has an outdoor courtyard attached to a gaming area. The garage and existing beer garden are located at the western end of the site. The proposed extension of the beer garden, in part, requires the demolition of the garage.
Relevant background
In February 2010, the applicant lodged a s 96 development application (DA/98/2010) with Randwick City Council for alterations and additions to the Duke of Gloucester Hotel.
In September 2010 Randwick City Council granted consent, subject to conditions, to the proposed development described as:
Alterations and additions to the existing Duke of Gloucester Hotel including relocation of kitchen and restaurant upstairs; demolitions of existing garage and dining room; upgrading of beer garden; and a new external entry and exit stairs with disabled access to the upper floor; closing time for beer garden 10:00 pm (Heritage Item)
The council imposed a number of conditions of consent that are relevant to the matter now before the Court. Those conditions are:
- 1 - approved plans
- 7 - installation of an external stair
- 9 - restrictions of opening hours (Monday to Sunday 10:am to 10:00pm)
- 10 - number of patrons in the outside courtyard/ beer garden (not to exceed 25 at any time)
- 16-18 - requirements for acoustic reports
In December 2010, the applicant lodged a s96 development application (DA/98/2010/A) to modify the consent by amending condition 1, deleting condition 7, modifying conditions 9 to permit longer hours of operation (Monday to Saturday 10:00am -midnight; Sunday 10:00am -11:00 pm), and 10 to increase the number of patrons (from 25-98) deleting conditions 16 and 17, and modifying condition 18.
In September 2011, the council approved the modification application by modifying condition 1, deleting conditions 7and 17, amending 9, 10, 16 and 18, and imposing new conditions 96-106.
Specifically, condition 9 was amended to reduce the opening hours of the outdoor courtyard to:
- Sunday to Thursday 10:00am to 9:00pm, and
- Friday to Saturday 10:00am to 10:00pm
Condition 10 was modified to restrict patrons in the beer garden to 30 people at any one time.
In November 2011, the applicant initiated Class 1 proceedings with the Court regarding conditions of consent imposed by council's determination of modification application DA/98/2010/A).
The hearing and consideration
The proceedings commenced as a conciliation conference under s 34 of the Land and Environmental Court Act 1979 (the Court Act). During that process, a number of local residents gave oral evidence in support of their written submissions.
The written objections largely deal with concerns arising from an increase in patron numbers and hours of operation that could lead to increases in noise, sleep disturbance, demand for parking on nearby residential streets, and anti-social behaviour.
Following the termination of the s 34 conciliation under s 34(4) of the Court Act, the parties continued to negotiate an agreement. The parties reached an agreement to limit the use of the beer garden to 40 patrons until 9.00pm from Sunday to Wednesday to 50 patrons until 10.00pm from Thursday to Saturday.
Based on these numbers and times, and taking a holistic approach, further acoustic modelling by Wilkinson Murray indicates that these numbers of patrons and hours of operation will generally achieve acceptable noise levels. While some noisy individuals may lead to some non-compliance on some occasions, overall the outcome should be acceptable to nearby residents.
The acoustic report recommends the imposition of a number of conditions setting specified noise levels. These recommendations have been incorporated into the conditions of consent as conditions 15-17. Conditions 9 and 10 have amended to include a requirement for council review within 6 and 12 months of the date of the commencement of the extended use of the outdoor beer garden.
Apart from limiting the numbers of patrons and hours of operation, the proposal includes extending the western wall of the beer garden to the full length of the site in order to minimise the acoustic impacts on the adjoining residential flat building. This change takes the hotel's heritage values into account.
In regards to the objectors, on 10 October 2012, council wrote to each of the objectors who had made written submissions and informed them of the proposed changes to the conditions and the date of the consent orders hearing. No objectors attended the hearing and I am satisfied that an appropriate opportunity was afforded them.
Conclusions and orders
I am satisfied that the issues between the parties and issues raised by the objectors have been adequately addressed and that the consent orders sought by the parties may be granted.
By consent, the Orders of the Court are:
(1) The appeal is upheld.
(2) Consent is granted to modify development consent DA-98/2010 in respect of the property known as the Duke of Gloucester Hotel, 2 St Marks Road, Randwick, in respect of condition 9, relating to hours of operation of the beer garden, and condition 10, relating to the maximum number of patrons permitted in the beer garden.
(3) Development consent is granted subject to the consolidated set of conditions annexed and marked "A".
(4) Exhibit 1 is returned.
_______________________
J Fakes
Commissioner of the Court
Decision last updated: 08 November 2012
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