Evenrace Pty Limited v Woollahra Municipal Council - [2008] NSWLEC 1522

Land and Environment Court

of New South Wales

CITATION: Evenrace Pty Limited v Woollahra Municipal Council [2008] NSWLEC 1522

PARTIES:
APPLICANT
Evenrace Pty Limited
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10528 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Consent :- Consent Orders, to add administrative offices and staff rooms into the roof space at Woollahra Hotel, heritage item.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Regulation 2000
Disability Discrimination Act
Woollahra Local Environmental Plan 1995
Woollahra s 94A Development Contributions Plan 1995
Woollahra Heritage Conservation Area Development Control Plan 2003
Woollahra Access Development Control Plan 2004
State Environmental Planning Policy No 55 - Remediation of Land
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

CASES CITED: Randall Pty Ltd v Leichhardt Council [2004] NSWLEC, paras 25, 26, and 27

DATES OF HEARING: 08/12/2008 and 09/12/2008

EX TEMPORE JUDGMENT DATE: 9 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Green, solicitor
with Ms J. Reid, solicitor
of Pikes Lawyers
RESPONDENT
Mr S. Simmington, solicitor
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 December 2008
10528 of 2008 Evenrace Pty Limited v Woollahra Municipal Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This is a Class 1 Appeal No 10528 of 2008 between Evenrace Pty Ltd and Woollahra Council in regard to an application to put administrative offices and staff rooms in the roof space of the Woollahra Hotel.

2 The hotel is on the corner of Queen Street and Moncur Street, Woollahra. It is a two-storey heritage item above a cellar. The current administrative offices are on the first floor in a room already approved by council as a function room, and approved by the Liquor Administration Board as part of the licensed floor space.

3 The parties had negotiated before this hearing and came having agreed Consent Orders, but not in writing except for agreed conditions and a Plan of Management as hand-annotated in Exhibit 8.

4 The statutory controls applicable are the Environmental Planning and Assessment Act, 1979 and Regulations 2000, the Woollahra Local Environmental Plan 1995, and Woollahra s 94A Development Contributions Plan 1995, Woollahra Heritage Conservation Area Development Control Plan 2003, the Development Control Plan for Off-Street Car Parking Provision and Servicing Facilities, the Woollahra Access Development Control Plan 2004, State Environmental Planning Policy No 55 - Remediation of Land, and the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

5 The site is located in zone 3(C) neighbourhood business under the Woollahra Local Environmental Plan 1995, and hotels are prohibited in that zone. However, the use of the site as a hotel is an existing use pursuant to s 106 of the Environmental Planning and Assessment Act 1979, and the proposal is permissible with consent of the determining authority.

6 The site is located within the Queen Street precinct of the Woollahra Heritage Conservation Area. The land surrounding the subject site is a mixture of residential and commercial development. Retail premises within the Queen Street precinct are generally characterised by two-storey terraces with retail premises on the ground floor and residential premises above. Heritage items within the vicinity of the site include the post office on the southwest corner of the intersection of Queen Street and Moncur Street, a converted café at 101-103 Queen Street, and a Victorian residence at 115 Queen Street.

7 In regard to Exhibit 8, the agreed conditions, and Plan of Management, some of the conditions in both relate to the overall operation of the hotel, not specifically the proposed administrative offices. The applicant said, “it had offered these additional matters in negotiating consent orders, partly in response to the objections received from nearby residents, and partly because the hotel was sincere in its wish to be a good neighbour in the Woollahra Village, and to have good management practices that would minimise impact upon local residents and their lives, and foster good relationships within the community.”

8 The respondent put, and the applicant concurred, that there is some weight applicable from the planning principle in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC, paras 25, 26, and 27, that require such measures to overcome concerns about existing impacts with the hotel on residential amenity.

9 Since the parties have agreed, I do not have to canvas that matter in great detail, save to say that the council in the past has approved the deletion of the administrative office space in the hotel and approved the same space as a function room as part of the public area of the hotel.

10 The impact of taking the existing offices out of the function room and using it as a public space has already been considered and approved by council in the past. If the applicant wants to use the function room for patrons, then if this development application were to be refused, one option is to move the offices to another building nearby.

11 It seems to me that puts the proposal in proper perspective. Relocating the offices to the roof space does not of itself intensify the use of the hotel since the approved public area floor space does not change. Some of it just comes into use for which it has already been approved by council.

12 For completeness, I list the issues that led to the original refusal of the development application.

The proposed office space is not fully accessible to employees with a disability. Particulars. Accommodation of staff requiring disabled access within the current safe room on the first level is inappropriate in circumstances where all of the staff will have access to the proposed office space, change room, and terrace facilities.

13 The original development application had 92 objectors, and the council had advised them all of the consent orders and this hearing. They had also received a letter from the applicant as attached to the joint traffic expert’s report, Exhibit 5, that addressed some apparent misconceptions that the objectors may have had. Whether it is a result of that or for other reasons, only two objectors came to press their objections at the consent orders hearing.

14 Mrs Cooke of Moncur Lane said her main concerns are antisocial behaviour in the lane behind her house. The Plan of Management requires security staff of the hotel to patrol the lane in future, and the Plan of Management was amended to require such during the hearing.

15 Mr Winfield of 61 Moncur Street, lives diagonally opposite the hotel and has a number of concerns. In summary, there are four main ones, three of which relate to the overall operation of the hotel. I will list them hereunder.

16 Firstly. The use of a first floor balcony on the Moncur Street elevation, which is referred to as the Moncur balcony. It is not a large balcony, but has room enough to hold some small tables along the inside wall with a small circulation space between it and the masonry balustrade. Under the agreed conditions, there is use of the balcony for dining and smokers, and for persons at a function inside the first floor lounge bar who may want to come out on the balcony. The balcony is to be closed at 10.30pm.

17 Mr Winfield would prefer that the balcony be used only for diners and for smokers without drinks. He says the noise of loud talking on the balcony projects across to his house. He says that diners are quiet, and he does not object to that use. The problem seems to occur when smokers have drinks in their hands, which causes them to stay and talk on the balcony, whereas without drinks he believes they would have their smoke and go back inside.

18 Mr Cooper, the acoustic expert, in his report has recommended acoustic treatment of the balcony that he believes will reduce the noise to acceptable levels for the Winfields, and allow the level of use agreed by the parties. The parties assure me that even the overall conditions on noise limits will enable enforcement of any non-compliance.

19 Secondly The item of concern to Mr Winfield is conditions on the hours of deliveries. He says the conditions are too flexible and allow deliveries outside business hours and that could easily lead to unacceptable impacts.

20 The parties have agreed that deliveries and garbage pickups will take place in business hours, and the condition as worded only allows for an occasion when a new contractor or an unfamiliar supplier arrives earlier or later than permitted. This is expected to be very occasional, and if it occurs, the applicant would ensure that the contractor or supplier is properly instructed so that it does not reoccur. The council is confident that the conditions would enable enforcement.

21 Thirdly, The matter of concern to Mr Winfield is the patrols of security guards. In the draft conditions of agreement, the patrols were different to those that he knew had been approved by the Liquor Administration Board. During the hearing, the parties changed the agreed conditions to match those of the Liquor Administration Board requirements, and that would satisfy Mr Winfield on that matter.

22 Fourthly, The item that Mr Winfield was concerned about was that the offices would be used for more businesses than just the administration of the hotel. The applicant assured the Court, and the respondent said, that the consent was only for administration offices and the only external function would be the accountants handling the administration of accounts for the Bellevue Hotel and other premises owned by the applicant. The parties were satisfied that such would not materially change the proposal.

23 Another item, which I will number the fifth, of concern to Mr Winfield was that the “incidents” or “complaints” report book, which is required to be kept by the hotel, requires names and addresses to be given, and that local residents would be unwilling to give these details. He feared that factual recording of the number of incidents may not be done as a result, and sought that all incidents be recorded.

24 The applicant advised the Court that even anonymous complaints are currently recorded. But it is difficult to respond. at the time of an incident to assist and send security people if the complainer will not say where the antisocial incident is occurring. Security staff of many hotels have this sort of problem, and it is normal practice to require the name and address of any complainer. The applicant also said that there were a number of licensed premises nearby so that the perpetrator of any antisocial behaviour could be from one of those.

25 The parties had agreed on the format for the Incident Register, and I must say it is likely to be a difficult component of administration for any licensed premises. Since the Plan of Management has been volunteered by the applicant when there has been none before, it is my opinion that it should result in improved amenity for the neighbours, and does give council an extra means of enforcement in future. Since it also puts controls on the Moncur balcony of concern to Mr Winfield, when balcony has had no controls previously, that should improve too.

26 A noisy ventilation grille on the Moncur Street façade likewise will now be subject to noise limits. That will require the hotel to find a remedy if the noise it produces is as loud as Mr Winfield says.

27 The evidence on the provision of disabled access to all public areas of the hotel, and the provision of an accessible office on the first floor, and a requirement for meetings to be held on the first floor which has lift access, shows it is reasonable to invoke the hardship provisions of the Disability Discrimination Act to allow the offices in the second floor roof space. The provision of the offices there without disabled access does not prevent or deny any rights of a disabled person who might have reason to take action against the hotel as a result of that lack of access.

28 The traffic engineers of both parties are satisfied that the offices will not increase traffic or parking impacts in the vicinity of the hotel.

29 The heritage experts of both parties are satisfied there is no issue of heritage impact. In fact they do not want any lifts extended to the second floor as it would result in structures poking through the roof and being visible in the streetscape. The town planning experts final report and any remaining concerns have been resolved by the conditions proposed.

30 Overall, I have come to the conclusion that there is nothing sufficient to justify refusal of the consent orders sought by the parties, subject to the imposition of the agreed conditions and Plan of Management. Therefore the Orders of the Court, by consent of the parties are:

___________________

K G Hoffman

Commissioner of the Court

Annexure “A”

Conditions of Consent

Evenrace Pty Ltd ats Woollahra Municipal Council

A. General Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 (“the Act ”) and the provisions of the Environmental Planning and Assessment Regulation 2000 (“the Regulation ”) such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act.

Standard Condition: A1

Unless specified otherwise words have the same meaning as defined by the Act , the Regulation and the Interpretation Act 1987 as in force at the date of consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.

AS or AS/NZS means Australian Standard ® or Australian/New Zealand Standard ®, respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate .

Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney’s eastern suburbs (see the brochure titled “Local Native Plants for Sydney’s Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils).
Stormwater Drainage System means all works, facilities and documentation relating to:

a. The collection of stormwater,
b. The retention of stormwater,
c. The reuse of stormwater,
d. The detention of stormwater,
e. The controlled release of stormwater; and
f. Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site .

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act .

Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

Road has the same mean as in the Roads Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995
Work for the purposes of this consent means:

a. the use of land in connection with development,
b. the subdivision of land,
c. the erection of a building,
d. the carrying out of any work,
e. the use of any site crane, machine, article, material, or thing,
f. the storage of waste, materials, site crane, machine, article, material, or thing,
g. the demolition of a building,
h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,
i. the delivery to or removal from the site of any machine, article, material, or thing, or
j. the occupation of the site by any person unless authorised by an occupation certificate .

Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.

Standard Condition: A2

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp “Approved DA Plans” unless modified by any following condition . Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s)

0529-DA-01B
05029-DA-02B,
05029-DA-03B,
05029-DA-04B. Architectural Plans Alexander Tzannes Associates 5 March 2007

Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .)

Standard Condition: A5

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the owner’s expense.
Note : This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs.

Standard Condition: A8

Prescribed conditions in force under the Act and Regulation must be complied with.
Note : It is the responsibility of those acting with the benefit of this consent to comply with all prescribed conditions under the Act and the Regulation . Free access can be obtained to all NSW legislation at

Standard Condition: A30

No approval is granted for hotel patrons to access level two.

No approval is granted for an increase in patron numbers to the hotel. The total number of patrons, staff, entertainers etc is limited to 460.

Prior to the issue of the Construction Certificate, a Plan of Management is to be adopted for the operation of the Hotel. The Plan of Management is to be consistent with Annexure ‘B’ of this appeal orders of the Court as amended to reflect the following matters:

condition A7

The number of staff permitted on the outdoor deck on the uppermost level be limited to a maximum of four (4) at any one time.

No alcohol is to be consumed on the outdoor deck on the uppermost level.

A copy of the adopted plan of management must be provided to the Council prior to the issuing of a construction certificate.

B. Conditions which must be satisfied prior to the demolition of any building or construction

Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.
Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

C. Conditions which must be satisfied prior to the issue of any construction certificate

approved plans

Construction Certificate

Certifying Authority

Regulation

a) An accessible office space is to be established within Level 1 of the hotel to accommodate staff or business guests with a disability

b) Handrails are to be provided on both sides of the stair leading to level 3 and designed in accordance with AS1428.1

c) Indicative contrast strips are to be provided on the step nosing of the stair leading to level 3.

d) The metal deck roof must be pitched from behind and below the existing ridge so that no part of the new roofing material will be visible from Queen Street or Moncur Street.

Note

Construction Certificate

Act

Note

Regulation

Construction Certificate

Certifying Authority

Note

Regulation

Construction Certificate

Standard Condition: C4

The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees prior to the issue of a construction certificate.

Description	Amount	Indexed	Council Fee Code
LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy	Contact LSL Corporation	No
SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit - making good damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates	$8,000	No	T600
DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded from our website .
Development Levy	$3,000 + Index Amount	Yes, quarterly	T94
INSPECTION FEES under section 608 of the Local Government Act 1993
Security Administration Fee	$163	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$11,163 plus any relevant indexed amounts and long service levy

How must the payments be made?

1. Cash deposit with Council,

2. Credit card payment with Council, or

3. Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:

How will the section 94A levy be indexed?

To ensure that the value of the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2005 sets out the formula and index to be used in adjusting the s.94A levy.

Do you need HELP indexing the levy?

Please contact our customer service officers. Failure to correctly calculate the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).

Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005

Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where:
a) the guarantee is by an Australian bank for the amount of the total outstanding contribution;
b) the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first;
c) the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and
d) the bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

A certificate from a professional engineer (Structural Engineer), certifying the adequacy of the existing supporting structure to support the additional loads proposed to be imposed by the development, must be submitted with the Construction Certificate application.

Note

Standard Condition: C35

Construction Certificate

professional engineering

Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate .

Note:

Standard Condition: C36

Construction Certificate

Regulation

Stormwater Drainage System

Where any new Stormwater Drainage System crosses the footpath area within any road, separate approval under section 138 of the Roads Act 1993 must be obtained from Council for those works prior to the issue of any Construction Certificate .

All Stormwater Drainage System work within any road or public place must comply with Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

Note:

Note

Note : Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003 and Council’s draft Development Control Plan Stormwater Drainage Management (draft version 1, public exhibition copy dated 23 August 2004) can be downloaded from Council’s website:
Standard Condition: C49

The Construction Certificate plans and specification required to be submitted pursuant to clause 139 of the Regulation must be accompanied by a certificate from a professional engineer (acoustic engineer) certifying that noise from the operation of mechanical plant and equipment will not exceed the background noise level when measured at any boundary of the site.

Where sound attenuation is required this must be detailed.

Note:

1. Australian Acoustical Society

—

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2. Association of Australian Acoustical Consultants

—

Standard Condition: C62

Pursuant to clause 94 of the Environmental Planning and Assessment Regulation 2000 Council, the consent authority requires the building to be brought into total/partial conformity with the Building Code of Australia as the measures contained in the building are inadequate to protect persons using the building, and to facilitate their egress from the building, in the event of fire, and to restrict the spread of fire from the building to other buildings nearby.

D. Conditions which must be satisfied prior to the commencement of any development work

the Home Building Act 1989

In this condition, a reference to the BCA is a reference to that code as in force on the date the application for the relevant construction certificate is made.

Note

overhead protective structure

The principal contractor or owner builder must pay all fees associated with the application and occupation and use of the road (footway) for required hoarding or overhead protection.

The principal contractor or owner builder must ensure that Overhead Protective Structures are installed and maintained in accordance with WorkCover NSW Code of Practice - Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995. This can be downloaded from: .

Security fencing, hoarding and overhead protective structure must not obstruct access to utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the like.

Note : The principal contractor or owner must allow not less than two (2) weeks from the date of making a hoarding application for determination. Any approval for a hoarding or overhead protection under the Roads Act 1993 will be subject to its own conditions and fees.

Standard Condition: D11

The Principal Contractor or owner builder must ensure that the sign required by clauses 98A and 227A of the Regulation is erected and maintained at all times.

1. For the purposes of section 80A (11) of the Act , the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.

3. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

4. This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.

5. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.”

Note : PCA and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which imposes a penalty exceeding $1,000).
Note : If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder who must ensure that the sign is erected and maintained as required by Clause 98A of the Regulation .
Standard Condition: D12

Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

In this condition:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Local Government (Approvals) Regulation 1993.

approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Note

Standard Condition: D13

principal contractor

owner builder

Soil and Water Management Plan

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

Where there is any conflict The Blue Book takes precedence.

Note : The International Erosion Control Association – Australasia ( ) lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association – Australasia.
Note : The “Do it Right On Site, Soil and Water Management for the Construction Industry” publications can be down loaded free of charge from .
Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution” Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of their occupation of the land being developed.
Standard Condition: D14

The erection of the building in accordance with this development consent must not be commenced until:

a. a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and
b. the person having the benefit of the development consent has:
i. appointed a principal certifying authority for the building work, and
ii. notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

b1. the principal certifying authority has, no later than 2 days before the building work commences:
i. notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
ii. notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

b2. the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
i. appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
ii. notified the principal certifying authority of any such appointment, and
iii. unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
iv. given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.

Note: Building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure.
Note : New building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building.
Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.
Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council’s website .
Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act.
Standard Condition: D15

E. Conditions which must be satisfied during any development work

This condition does not apply:

a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4) of the Regulation, or
b. to the erection of a temporary building.

In this clause, a reference to the BCA is a reference to that Code as in force on the date the application for the relevant construction certificate is made.

Standard Condition: E1

Standard Condition: E2

Standard Condition: E4

Critical stage inspections must be called for by the principal contractor or owner builder as required by the PCA, any PCA service agreement, the Act and the Regulation .

Work must not proceed beyond each critical stage until the PCA is satisfied that work is proceeding in accordance with this consent, the Construction Certificate(s) and the Act .
critical stage inspections means the inspections prescribed by the Regulations for the purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service Agreement.

Note

pliance Certificates

work

This condition has been imposed to mitigate the impact of work upon the amenity of the neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour, traffic and parking impacts.

Note

Protection of the Environment Operations Act

Protection of the Environment Operations (Noise Control) Regulation

Note

.
Note : see

Standard Condition: E6

principal contractor

owner builder

work

Road Transport (Safety and Traffic Management) Act

Roads Act

Local Government Act

Road Transport (Safety and Traffic Management) (Road Rules) Regulation

Note

Road Transport (Safety and Traffic Management) Act

Note

Roads Act

Note

Local Government Act

Council

Standard Condition: E7

The principal contractor or owner builder must ensure that the following monitoring, measures and controls are maintained:

a) Erosion and sediment controls,
b) Dust controls,
c) Dewatering discharges,
d) Noise controls;
e) Vibration monitoring and controls;
f) Ablutions;

Note: See for additional information.
Standard Condition: E11

The principal contractor or owner builder must maintain water pollution, erosion and sedimentation controls in accordance with:

a) The Soil and Water Management Plan required under this consent;
b) “ Do it Right On Site, Soil and Water Management for the Construction Industry ” published by the Southern Sydney Regional Organisation of Councils, 2001; and
c) “ Managing Urban Stormwater - Soils and Construction ” published by the NSW Department of Housing 4th Edition (“ The Blue Book ”).

Where there is any conflict The Blue Book takes precedence.

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Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning. It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution”. Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of the occupation of the land being developed whether or not they actually cause the pollution.

Standard Condition: E15

Site Crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards.

Cranes must not swing or hoist over any public place unless the principal contractor or owner builder have the relevant approval under the Local Government Act 1993 , Crown Lands Act 1989 or Roads Act 1993 .

The crane must not be illuminated outside approved working hours other than in relation to safety beacons required by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth).

No illuminated sign(s) must be erected upon or displayed upon any site crane.
Note : Where it is proposed to swing a crane over a public place the principal contractor or owner builder must make a separate application to Council under section 68 of the Local Government Act 1993 and obtain activity approval from Council prior to swinging or hoisting over the public place.
Note : Where it is proposed to swing a crane over private land the consent of the owner of that private land is required. Alternatively, the principal contractor or owner builder must obtain an access order under the Access to Neighbouring Land Act 2000 or easement under section 88K of the Conveyancing Act 1919 or section 40 of the Land & Environment Court Act 1979 as appropriate. The encroachment of cranes or the like is a civil matter of trespass and encroachment. Council does not adjudicate or regulate such trespasses or encroachments.
Standard Condition: E19

The principal contractor or owner builder must ensure that all waste storage containers, including but not limited to skip bins, must be stored within the site unless:

a) Activity Approval has been issued by Council under section 94 of the Local Government Act 1993 to place the waste storage container in a public place, and
b) Where located on the road it is located only in a positions where a vehicle may lawfully park in accordance with the Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.
Note : Waste storage containers must not be located on the footpath without a site specific activity approval. Where such site specific activity approval is granted a 1.5m wide clear path of travel is maintained free of any trip hazards.
Standard Condition: E21

There must be no burning of any waste or other materials. The burning of CCA (copper chrome arsenate) or PCP (pentachlorophenol) treated timber is prohibited in all parts of NSW. All burning is prohibited in the Woollahra local government area.
Note : Pursuant to the Protection of the Environment Operations (Control of Burning) Regulation 2000 all burning (including burning of vegetation and domestic waste) is prohibited except with approval. No approval is granted under this consent for any burning.
Standard Condition: E22

Dust mitigation must be implemented in accordance with “ Dust Control - Do it right on site ” published by the Southern Sydney Regional Organisation of Councils.

This generally requires:

Note

Dust Control - Do it right on site

or obtained from Council’s office.
Note: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from and Other specific condition and advice may apply.
Note: Demolition and construction activities may affect local air quality and contribute to urban air pollution. The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when spraying for pest management. Precautions must be taken to prevent air pollution.
Standard Condition: E23

F. Conditions which must be satisfied prior to any occupation or use of the building (Part 4A of the Act and Part 8 Division 3 of the Regulation)

Act

Note

final occupation certificate

new building

a certifying authority must be satisfied that a final fire safety certificate has been issued for the building.

interim occupation certificate

new building

a certifying authority must be satisfied that a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.

Note

interim fire safety certificate

final fire safety certificate

new building

G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate

No relevant conditions.

H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate (s109C(1)(c))

principal contractor

owner

Note

Final Occupation Certificate

Standard Condition: H12

I. Conditions which must be satisfied during the ongoing use of the development

I.1 DELETED

I.2 Use of Level Two of the building

The use of the approved areas on level 2 is limited to hotel staff. No members of the public are permitted within these areas.

The operation of all three levels of the Hotel must be undertaken in accordance with the adopted Plan of Management: see condition A8..

Outdoor lighting must comply with AS 4282-1997: Control of the obtrusive effects of outdoor lighting . The maximum luminous intensity from each luminare must not exceed the level 1 control relevant under table 2.2 of AS 4282. The maximum illuminance and the threshold limits must be in accordance with table 2.1 of AS 4282.

All lighting to be installed on the roof terrace will be recessed lights or will be surface wall/balustrade mounted lights at a maximum height of 600 mm above the finished floor level of the roof terrace.

This condition has been imposed to protect the amenity of neighbours and limit the obtrusive effects of outdoor lighting.
Note : Council may consider, subject to an appropriate section 96 application relaxation of this condition where it can be demonstrated, by expert report, that the level of lighting in the existing area already exceeds the above criteria, where physical shielding is present or physical shielding is reasonably possible.

Standard Condition: I44

The use of the premises must not give rise to the transmission of offensive noise to any place of different occupancy. Offensive noise is defined in the Protection of the Environment Operations Act 1997 . This condition has been imposed to protect the amenity of the neighbourhood.

Note : Council will generally enforce this condition in accordance with the Noise Guide for Local Government ( ) and the Industrial Noise Guidelines ( ) publish by the Department of Environment and Conservation. Other state government authorities also regulate the Protection of the Environment Operations Act 1997.

Useful links :
Community Justice Centres — free mediation service provided by the NSW Government ( ).
Department of Environment and Conservation NSW , Noise Policy Section web page ( ).
New South Wales Government Legislation home page for access to all NSW legislation, including the Protection of the Environment Operations Act 1997 and the Protection of the Environment Noise Control Regulation 2000 ( ).
Australian Acoustical Society — professional society of noise-related professionals ( /index.php ).
Association of Australian Acoustical Consultants — professional society of noise related professionals
( ).
Department of Gaming and Racing - ( ).

Standard Condition: I50

The LA10* noise level emitted from the licenced premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5 Hz – 8k Hz inclusive) by more than 5 dB between 07:00 am and 12:00 midnight at the boundary of any affected residence.

The LA10* noise level emitted from the licenced premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5 Hz – 8k Hz inclusive) between 12:00 midnight and 07:00 am at the boundary of any affected residence.

Notwithstanding compliance with the above, the noise from the licenced premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 07:00 am. This condition has been imposed to protect the amenity of the neighbourhood.

Note:

Licenced premises

Liquor Act 1982,

Registered Clubs Act 1976.

Note

Liquor Act 1982,

Registered Clubs Act 1976

Liquor Act 1982

Registered Clubs Act 1976

).
Note : Interior noise levels which still exceed safe hearing levels are in no way supported or condoned by Council.

Standard Condition: I52

Noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest lot boundary of the site. Where noise sensitive receivers are located within the site, noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest strata, stratum or community title boundary.

This condition has been imposed to protect the amenity of the neighbourhood.

Note

NSW Industrial Noise Policy

)
ISBN 0 7313 2715 2, dated January 2000, and
Noise Guide for Local Government ( )
ISBN 1741370671, dated December 2004.
Standard Condition: I53

It is to be hotel policy that all meetings with guests are held in the areas of the hotel that are fully accessible.

The new office space on the second floor is not be permitted to be subleased or used by any other business activity.

Staff using the new office space are to be substantially employed in the activities relating to the Woollahra Hotel and Bistro Moncur.

J. Miscellaneous Conditions

No relevant conditions.

K. Advisings

Failure to comply with this development consent and any condition of this consent is a criminal offence. Failure to comply with other environmental laws are also a criminal offence.

Issue Penalty Infringement Notices (On-the-spot fines);
Issue notices and orders;
Prosecute any person breaching this consent; and/or
Seek injunctions/orders before the courts to restrain and remedy any breach.

Warnings as to potential maximum penalties

Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or custodial sentences for serious offences.

Warning as to enforcement and legal costs

Should Council have to take any action to enforced compliance with this consent or other environmental laws Council’s policy is to seek from the Court appropriate orders requiring the payments of its costs beyond any penalty or remedy the Court may order.
This consent and this specific advice will be tendered to the Court when seeking costs orders from the Court where Council is successful in any necessary enforcement action.

Note

the Crimes (Sentencing Procedure) Act

and the Attorney General’s .

Standard Advising: K1

K.2 Dial before you dig

The principal contractor , owner builder or any person digging may be held financially responsible by the asset owner should they damage underground pipe or cable networks. Minimise your risk and Dial 1100 Before You Dig or visit .

When you contact Dial Before You Dig, you will be sent details of all Dial Before You Dig members who have underground assets in the vicinity of your proposed excavation.

Standard Advising: K2

The Disability Discrimination Act 1992 (DDA) makes it against the law for public places to be inaccessible to people with a disability. Compliance with this development consent, Council’s Access DCP and the BCA does not necessarily satisfy compliance with the DDA.

The DDA applies to existing places as well as places under construction. Existing places must be modified and be accessible (except where this would involve "unjustifiable hardship”).

If you have any further questions relating to the application of the DDA you can send and email to HEROC at [email protected] .
Standard Advising: K3

The Rose Bay Local Area Command closely aligns with the boundaries of the Woollahra local government area.

Council and Police approval is required prior to a partial or full temporary road closure. If you are seeking a partial or full temporary road closure you must comply with the relevant conditions of this consent and you must also gain the approval of the Traffic Sergeant, Paddington Police Station, 16 Jersey Road, Paddington. Phone No. 02 8356 8299 or Fax No. 0283568211.

Warning

Standard Advising: K4

Section 81A of the Act requires among other matters that the person having the benefit of the development consent, if not carrying out the work as an owner-builder , must appointed a principal contractor for residential building work who must be the holder of a contractor licence.

Further information can be obtained from the NSW Office of Fair Trading website about how you obtain an owner builders permit or find a principal contractor (builder): .

The Owner(s) must appoint the PCA . The PCA must check that Home Building Act insurance is in place before the commencement of building work. The Principal Contractor (Builder) must provide the Owners with a certificate of insurance evidencing the contract of insurance under the Home Building Act 1989 for the residential building work.

Standard Condition: K5

The PCA does not undertake detailed quality control inspections and the role of the PCA is primarily to ensure that the development proceeds in accordance with this consent, Construction Certificates and that the development is fit for occupation in accordance with its classification under the Building Code of Australia. Critical Stage Inspections do not provide the level of supervision required to ensure that the minimum standards and tolerances specified by the “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8 are achieved.

The quality of any development is a function of the quality of the principal contractor’s or owner builder’s supervision of individual contractors and trades on a daily basis during the development. The PCA does not undertake this role.

The NSW Office of Fair Trading have published a “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8. The guide can be obtained from the Office of Fair Trading by calling 13 32 20 or by Fax: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta NSW 2124.

The Guide can be down loaded from:

Council, as the PCA or otherwise, does not adjudicate building contract disputes between the principal contractor , contractors and the owner.
Standard Condition: K6

The Occupational Health and Safety Act 2000 No 40 and subordinate regulations, codes of practice and guidelines control and regulate the development industry.

Note

or through their head office: Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover NSW, Locked Bag 2906, LISAROW 2252, Phone (02) 4321 5000, Fax (02) 4325 4145.

Standard Condition: K7

Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW.

Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence.

The Occupational Health and Safety Act 2000;
The Occupational Health and Safety Regulation 2001;
The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)];
The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1998)] ]; and
The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors.

Note

or one of Workcover NSW’s offices for further advice.

Standard Advising: K8

It is beyond the scope of this consent to provide detailed information about dealing with lead paint. Painters working in an area containing lead-based paint should refer to Australian Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS 4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints may contain lead. Lead is used in some specialised sign-writing and artist paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in commercial and residential paints from the late 1800s to 1970. Most Australian commercial buildings and residential homes built before 1970 contain lead paint. These paints were used both inside and outside buildings.

Standard Advising: K9

Ozone Protection Act

Standard Advising: K12

under

Ozone Protection Act

Ozone Protection Regulation

Standard Advising: K13

An application must be made to Council by the person who paid the security for release of the securities held under section 80A of the Act .

The securities will not be released until a Final Occupation Certificate has lodged with Council, Council has inspected the site and Council is satisfied that the public works have been carried out to Council’s requirements. Council may use part or all of the security to complete the works to its satisfaction if the works do not meet Council’s requirements.

Council will only release the security upon being satisfied that all damage or all works, the purpose for which the security has been held have been remedied or completed to Council’s satisfaction as the case may be.

Council may retain a portion of the security to remedy any defects in any such public work that arise within 6 months after the work is completed.

Upon completion of each section of road, drainage and landscape work to Council's satisfaction, 90% of the Bond monies held by Council for these works will be released upon application. 10% may be retained by Council for a further 6 month period and may be used by Council to repair or rectify any defects or temporary works during the 6 month period.

Note: The Application for Refund of Security form can be downloaded from
Standard Condition: K15

The building is licensed as a place of public entertainment
The building is being increased in RIS from 2 to 3
Const Type for RIS 3 Class 9b is Type A
No smoke hazard management system appears on the annual fire safety statement accordingly upgrade is recommended

________________________

ajl/ljr

Annexure “B”

Conditions of Consent

Development Consent DA166/2007

The Woollahra Hotel

Plan of Management

Table of Contents

1.0 Introduction p.3

2.0 Hours of Operation p.3

3.0 Mode of Operation p.3

4.0 Arrival, Departure & Congregation of Patrons p.4

5.0 Mitigation of Noise p.5

6.0 Deliveries p.6

7.0 Security p.6

8.0 Harm Minimisation & RSA p.10

9.0 Gaming p.11

10.0 Community Liaison p.13

11.0 Education and Training of Staff p.13

Plan of management – Woollahra Hotel

This Plan of Management is additional to conditions of consent and provides more detailed management practices for the operation of the Woollahra Hotel with a primary aim of minimising any potential adverse impacts on the residential neighbourhood in the vicinity of the Hotel. Noise minimisation and the responsible service of alcohol are at the forefront of hotel policy. The Hotel trades within its licensed hours, and operates using initiatives that are mindful of Woollahra residents.

The Hotel also provides harm minimisation measures by specifically concentrating on:

The expectations and needs of the community;
The harm associated with the misuse of alcohol;
Responsible practices related to the promotion and supply of liquor;
A quality, readily available food offer;
The harm associated with the misuse of gambling.

This Management Plan will be amended to include additional measures to protect the amenity of the neighbourhood should the need arise.

Licensed Hours

The Woollahra Hotel is licensed according to the “standard operating hours”.

Operating Hours

The hours of operation are from 12.00 noon until 12.00 midnight from Monday to Saturday, and between 12.00 noon and 10.00 pm on Sundays.

On some occasions, the hotel may close earlier than the operating hours specified above. On some occasions, the hotel may extend the trading hours when the OLGR extends the standard operating hours to provide for a specific special event

The ground floor area of the hotel is available for dining, the consumption of alcoholic and non-alcoholic beverages and gaming.

The first floor area is of the hotel is available for dining and the consumption of alcoholic and non alcoholic beverages.

The arrival and departure of patrons are to be supervised by staff members during the day and the evening.

Staff members are to ensure that patrons arrive & depart in an orderly fashion.

Management and security guards will politely remind all patrons entering, re-entering or departing the hotel to respect the residential amenity of the neighbourhood.

Signage is placed at all entrances/exits asking patrons to leave the hotel quickly & quietly and to “consider our neighbours and respect the residential amenity of the neighbourhood”.

STA timetables are available, on request, to all patrons regarding the bus services in the area.

Taxis will be called on request for patrons, without charge.

To minimise concentration and congregation of patrons at closing time, a phased closure will operate. The sequence of closure will be determined by the activity levels within the hotel but most commonly will be according to the following pattern. Bistro Moncur will close first, followed by Moncur Terrace, followed by the Back bar and finally, the Woollahrabar. This sequence will be facilitated by the following actions:
(i) Last meal orders in Bistro Moncur at 10.30 pm Monday to Saturday and 9.00 pm on Sunday;
(ii) Last drinks orders at Bistro Moncur 11.30 pm Monday to Saturday and 9.30 Sunday;
(iii) Last Meal orders at Moncur Terrace to be at 10.30 pm Monday to Saturday and 9.00 pm Sunday;
(iv) Last drinks orders at Moncur Terrace to be at 11.30 Monday to Saturday and 9.30 pm Sunday;
(v) Last drinks on ground floor at 11.40 pm Monday to Saturday and 9.40 pm Sunday;
(vi) All patrons shall be encouraged to vacate the premises by closing time, with the final patrons leaving from the door to the Queen and Moncur Street corner.

As required, the manager on duty or the security guards will be outside the hotel at closing time asking guests to move on quickly and quietly, to hail taxis and to minimise disturbance in the locality.

Security staff members are to ensure arrival and departure in an orderly and quiet fashion whenever security guards are present (See Part 7 below).

Open containers of alcohol will not be permitted to be taken off the licensed premises. This policy will be strictly enforced by Hotel management and security staff.

Security and hotel staff shall ensure that the number of patrons in the hotel does not exceed the permitted capacity and monitor the number of patrons for the purposes of 7.1(o).

Plant Noise

All equipment will meet noise emission requirements as specified in conditions of consent.

Patron Noise

In addition to the practices in 4.0 above to minimise congregation of patrons, the following noise minimisation measures will be used:

Other Noise Issues
- Staff members will move empty bottles at the end of the evening wholly within the building.
- The first floor balcony overlooking Moncur Street will be used primarily for dining. However, there may be occasions when some patrons will use the balcony purely as a smoking area. The balcony will be closed to the public no later than 10.30 pm.
- All windows in the ground floor bar facing Queen and Moncur Streets will be closed during periods of live entertainment.
- The single door in the main bar adjacent to Bistro Moncur will not be used except for emergency purposes during periods of live entertainment.
- Bands will cease playing at 11.00 pm weekdays and 9.30 pm Sundays.

Times of Deliveries

Delivery and removal of bottles and garbage collection to the hotel will be between the hours of 7.30 am and 5.00 pm except on Sundays when it must be between 8.00am and 5.00pm. However there may from time to time be unavoidable exceptions to this time frame.

All other deliveries must be made during trading hours, but not later than 6pm.

Location of Deliveries

Delivery drivers will be encouraged by the hotel to use the loading zone outside the hotel on Moncur Street or Moncur Lane and to park legally.

Managers on duty are to receive delivery orders in a quiet, fast and orderly fashion to ensure minimal time of delivery vehicles parked outside the hotel.

Security forms a critical part of the overall management plan of the Woollahra Hotel and focuses on the responsible service of alcohol, noise minimisation and the prevention of congregation of patrons outside the hotel.

The Woollahra Hotel will engage an independent Security provider to supply trained and registered security guards to the hotel. Guards will be employed on the busier nights of trading including Thursday to Sunday from 7.00 pm to to no less than 15 minutes after closing or until the last patron has vacated the areaOn Thursday, Friday and Saturday nights as well as some Sundays (depending on trading) at any one time, 2 guards will patrol the footpaths directly outside the hotel premises and monitor the entry/exit points. One (1) guard will roam inside and outside the hotel from 8:00pm at intervals no longer than 45 minutes and will patrol the areas away from the hotel that include both sides of Queen Street from Moncur Street to Victoria Avenue/Halls Lane; and both sides of Moncur Street from Rush Street to James Street and Moncur Lane. The role of the security guards is more fully described below. The number of guards engaged will depend on trading levels within the hotel but generally will be three guards on the nights that guards are employed.

a. All security guards will clearly display visible identification in accordance with the Security Industry Act & Regulations.
b. All security guards will hold a current security licence and be trained in first aid.
c. All security guards will commence their duty in security uniform. A reflective vest will be worn for patrols away from the immediate vicinity of the hotel.
d. All security guards will hold a Responsible Service of Alcohol Certificate from a provider approved by the Liquor Administration Board.
e. Security Company management will certify to the hotel that all guards maintain current security licenses, RSA Certificates and First Aid Certificates prior to commencing work at the hotel.
f. All security guards on duty at the Hotel will sign on and off on security time sheets ensuring they provide their full name, their security license number, the time their shift commenced and the time their shift concluded.
g. Guards will be directed to patrol areas by hotel management
h. An incident register will be kept at the Hotel. All incidents are to be recorded, noting the security guard’s name, date, time and nature of the incident as well as a full account of the response by staff and management of such incident. This book will be made available to the hotel management, police and liquor and gaming authorities if required.
i. All security guards will be fully qualified in first aid. A first aid kit will be kept on premise for use as required.
j. All security guards will be briefed at the commencement of their shift by Hotel management. This briefing will outline the role of the security guards in ensuring compliance by the Hotel in respect to harm minimization, RSA principles, conditions imposed on the Liquor License of the Hotel and Council Development Application, adherence to hotel policy and any current issues including complaints by neighbours or patrons.
k. For the safety of patrons and staff, security guards will always ensure that they are compliant with the law.
l. Security guards will remain in constant communication with hotel management and each another.
m. In accordance with the principles of the company, security guards contracted to the hotel will perform their duties with regard to equality, tolerance, diplomacy, vigilance and integrity.
n. Security guards will ensure that any complaint made to them by neighbours or patrons of the Hotel is reported immediately to management to ensure prompt and immediate action. Any complaint made by neighbours or patrons will be recorded in the Security Incident Register.
o. Security Guards will monitor the presence of patrons frequenting the footpath areas outside the Hotel. Patrons will not be permitted to leave the Hotel to smoke a cigarette carrying a drink. Patrons will not be permitted to congregate in a fashion which impedes the flow of pedestrian traffic on footpath areas. Guards monitoring these areas are to remind patrons that the Hotel is located in a residential neighbourhood and to keep their voices down and noise to a minimum. Patrons are to be encouraged to leave the premises quietly. The guard on duty is to ensure the front door of the Hotel remains closed when not in use when live entertainment is operating, when 50 or more patrons are in the ground floor front bar, or when the front bar area is being used for viewing of televised sporting events, performances or any similar event where promoted by notices, advertising or the like by the Hotel . The guard will check the identification of patrons who appear to be under the age of 25 years who are attempting to enter the Hotel.
p. Security guards when on duty inside the hotel move throughout the hotel and identify people that appear to be under the age of 18 years or who are being loud, abusive, staggering, slurring their words or acting out e.g. swearing or mock fighting. All disorderly people will be requested to leave. If an intoxicated person is identified, security guards will advise the patron that they will not be served further alcoholic drinks. The identified patron will be offered water or a soft drink, the intoxicated person will be identified to hotel staff members who will be advised to stop serving the intoxicated patron and to ensure that other patrons do not purchase alcoholic beverages for the patron refused service. If such a person is seriously intoxicated security guards will ask the person to leave, stop or refuse service and/or call the police. Once the patron is removed from the hotel, guards will not allow the person to loiter in the vicinity of the Hotel. Guards will ensure that the intoxicated person has safe passage from the hotel, call a taxi or assist in hailing a taxi. Guards will advise friends of the intoxicated person the reasons why the patron has been asked to leave the premise. They will explain that they have acted in accordance with the law and refer to ‘No More it’s the Law’ signage. Patrons should be encouraged to leave the Hotel in small groups.
q. With regard to patrons exiting the Hotel to use a mobile telephone, the security guard on duty will encourage such patron to remain in the vicinity of the principle entry door at the corner of Queen and Moncur Streets and not to wander beyond the hotel boundary to take the call. Patrons using mobile phones will be reminded that they are entering a residential neighbourhood and to be mindful of neighbours and respectful of the neighbourhood amenity.
r. At intervals no longer than one hour, security guards will patrol the neighbouring streets and pick up any discarded glasses or bottles. The area of patrol will include both sides of Queen Street between Moncur Street and Hall Lane, both sides of Moncur Street from Rush Street to James Street and Moncur Lane. If during patrol of these areas, a guard is aware of any intoxicated person causing a nuisance to persons or property, they shall advise them to move on and/ or seek police assistance as appropriate.

a. A security supervisor will be appointed to the Hotel. He/She will be on duty whenever security guards are required so as to co-ordinate personnel, liaise with hotel management and police, ensure that guards are adequately aware of their duty and areas of responsibility and to take control of any incident which may occur.
b. The supervisor will be in charge of and oversee the issue and maintenance of security equipment supplied to guards, sign guards on and off duty, sign off on any incident recorded in the security register.
c. The supervisor is responsible for ensuring and reporting upon Occupational Health and Safety issues for security guards.
a. The security company will allocate time for one meeting per month to meet with hotel management and staff to discuss and evaluate security arrangements and procedures.
b. Entries in the security register and the hotel management diary will be kept at the hotel as the basis for the evaluation of procedures and for the improvement of service.

7.4 Legislative Compliance

Hotel management will ensure that security company management is familiar

with the legislative requirements and policy of the Hotel and shall require the security company to inform all of its guards working at the Hotel of that information.

A total of 16 surveillance cameras are be provided both inside and outside the hotel for both security and monitoring purposes. The system is digital and operates on real time delivery of pictures.

The Woollahra Hotel, in the best interest of its patrons and the community, will promote responsible serving of alcohol and sees it as vital for legal, health and community reasons.

The Woollahra Hotel will adopt the following strategies for the Responsible Service of Alcohol:

The meaning of ‘intoxicated’ as per the Liquor Act.

The person’s speech, balance, co-ordination or behaviour is noticeably affected, and
it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor.
It will be the policy of the Woollahra Hotel not to allow intoxicated, violent, or quarrelsome behaviour in or around the hotel.

Compliance with relevant guidelines

The Woollahra Hotel will comply with all relevant RSA, Signage and Licensing guidelines. Staff will be trained and instructed to ensure that the provisions of the act are complied with.

Supervision

Bar and Restaurant staff will be under supervision by senior management staff in the policing and practice of RSA training.

The Woollahra Hotel, in the best interest of its patrons and the community, will promote responsible conduct of gambling and sees it as vital for legal and community reasons.

The Woollahra Hotel will adopt the following strategies for the Responsible Conduct of Gambling:

The Woollahra Hotel will affect these strategies by:

Compliance with relevant guidelines

The Woollahra Hotel will comply with all relevant RCG and Signage guidelines. Staff will be trained and instructed to ensure that the provisions of the act are complied with.

Supervision

Staff members working in the gaming area of the hotel will be under supervision by senior management staff in the policing and practicing of RCG training.

Resident Liaison

The Hotel’s licensee shall be a member of the Rose Bay & Paddington Local Liquor Accord. The accord comprises a membership of stakeholders in the area representing licensed premises such as hotels, registered clubs, nightclubs, restaurants and bottle shops. It also has representation from the Director of Liquor & Gaming, police and the local council. This forum allows for local issues to be canvassed and the accord has the ability to see through any action plan deemed necessary.

The Woollahra Hotel will provide an open line of communication with residents. All residents may have direct access to the licensee. All complaints will be registered by the manager on duty in the incident logbook, and will be followed up by the licensee. The licensee and/or manager will deal with all resident complaints directly.

A mobile telephone number has been provided to residents who may from time to time wish to inform management of a specific matter of disturbance or lodge a complaint.

Complaints

Should a complaint be received the procedure shall be as follows:

Details of the complaint are to be taken by the responding staff member, these should include:

11.0 Education and Training of Staf

The Hotel shall be focused on providing every employee with an environment where they can be a part of a team and excel. It is an important part of every new staff member’s development and training to familiarise themselves with their working environment, policies and procedures. As part of the Hotel’s commitment to developing the skills of employees. it will undertake regular staff meetings and training sessions. These meetings and sessions will be compulsory.

_______________________

K G Hoffman

Commissioner of the Court

aj/ljr

CITATION:	Evenrace Pty Limited v Woollahra Municipal Council [2008] NSWLEC 1522
PARTIES:	APPLICANT Evenrace Pty Limited RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10528 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- Consent Orders, to add administrative offices and staff rooms into the roof space at Woollahra Hotel, heritage item.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Regulation 2000 Disability Discrimination Act Woollahra Local Environmental Plan 1995 Woollahra s 94A Development Contributions Plan 1995 Woollahra Heritage Conservation Area Development Control Plan 2003 Woollahra Access Development Control Plan 2004 State Environmental Planning Policy No 55 - Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
CASES CITED:	Randall Pty Ltd v Leichhardt Council [2004] NSWLEC, paras 25, 26, and 27
DATES OF HEARING:	08/12/2008 and 09/12/2008
EX TEMPORE JUDGMENT DATE:	9 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G. Green, solicitor with Ms J. Reid, solicitor of Pikes Lawyers RESPONDENT Mr S. Simmington, solicitor of Lindsay Taylor Lawyers

Reference	Description	Author/Drawn	Date(s)
0529-DA-01B 05029-DA-02B, 05029-DA-03B, 05029-DA-04B.	Architectural Plans	Alexander Tzannes Associates	5 March 2007