Grice Lynch Architecture and Interiors v Waverley Council
[2007] NSWLEC 676
•19 October 2007
Land and Environment Court
of New South Wales
CITATION: Grice Lynch Architecture & Interiors v Waverley Council [2007] NSWLEC 676 PARTIES: APPLICANT
RESPONDENT
Grice Lynch Architecture & Interiors
Waverley CouncilFILE NUMBER(S): 10283 of 2007, 10284 of 2007 and 10598 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- three smoking lounges at Beach Road Hotel, noise, Amenity of residents, compliance with authorities standards. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006CASES CITED: Whitehouse Properties Pty Ltd v Waverley Council [2007] NSWLEC 264 DATES OF HEARING: 23/08/2007, 24/08/2007 and 17/10/2007
DATE OF JUDGMENT:
19 October 2007LEGAL REPRESENTATIVES: APPLICANT
Mr G. Green, solicitor
of Pike Pike and FenwickRESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
19 October 2007
JUDGMENT10283 of 2007, Grice Lynch Architecture & Interiors v
10284 of 2007, Waverley Council
10598 of 2007
1 These are three Class 1 Appeals Nos 10283 of 2007, 10284 of 2007 and 10598 of 2007, between Grice Lynch Architecture & Interiors and Waverley Council. They are in regard to three (3) smoking lounges proposed at the Beach Road Hotel, Bondi. The hotel is located on the corner of Beach Rd and Glenayr Avenue, Bondi. The area has a mix of uses including detached dwellings, residential flat buildings, apartments above shops/commercial premises.
2 Appeal 10283 is referred to as “the Balcony” because it is on the first floor of the hotel overlooking Beach Road and detached houses and a pre-school to the south. It is proposed by taking out a street-side wall to create the balcony within the existing floorspace of the bar. It proposes new glazed bi-fold doors on the inside of the balcony giving direct access during daytime and early evening to the bars on the first floor. There is an airlock corridor for access when the bi-fold doors are closed. Natural ventilation is provided by the balcony being open to the south.
3 Appeal 10284 is referred to as “the Bottleshop” because it is on the Ground floor adjacent the existing bottle shop and hotel carpark, and residential flats and commercial premises beyond on the north side of the building. There is an airlock corridor to it from the public bar. The airlock also serves as a lobby outside existing toilets. There is a power sliding door from the smoke room into the poker machine room. The smoke will be kept out of the machine room by pressurised air-conditioning forcing any smoke-room air backwards when the door is open. Natural ventilation will be provided because the room will be open to the bottleshop driveway under its carport roof, and there will be another opening to the sky in the ceiling.
4 Appeal 10598 is referred to as “the Poolroom” because it is located where some existing pool tables are on the first floor. The area will be glazed in and get natural ventilation by an opening to the sky in the ceiling. The opening is almost as large as the lounge. An airlock corridor is provided for access from the pool table area. Another external door is provided from the smoke room to the fire escape. Otherwise the smoke room is internal to the building. In the original proposal windows into the bar from the smoke-room are to be operable.
The Site
5 The site is located on the north western corner of Glenayr Avenue and Beach Road. The site contains the three storey hotel known as the Beach Road Hotel. The site being a corner lot has a primary frontage and entry to main Lobby is on the south from Beach Road and a secondary frontage to Glenayr Avenue, which services the drive-in bottle shop and parking area of the hotel.
6 The footpath level of the façade on Glenayr has been almost completely opened up with bi-fold doors, so that it gives direct access to the very large public bar.
7 The public areas of the Hotel are located at ground and first level, whilst the second floor serves as the Hotel's offices, accommodation and storage. The use of the premises as a Hotel is prohibited within the zoning. But it has existing use rights under s106-108 of the Environmental Planning and Assessment Act 1979, as the hotel has been in operation since the early 60's.
8 The site is not listed as an item of heritage significance, is not within a heritage conservation area and is not located within a residential character study area.
The locality
9 The site is located within a Business Neighbourhood 3(c) zone that forms a small pocket business zone on both sides of Glenayr Avenue. However the site is generally surrounded by residential development: in Beach Road, the land opposite is zoned Residential 2(c1) Medium and High Density and adjoining and west of the hotel the land is zoned Residential 2(a) Low Density. At the rear of the site it is zoned Residential 2(b) Medium Density.
10 Opposite the site in Beach Road is located the single storey Moriah Preschool centre (No 113-115 Glenayr Ave.) south of the pre-school are detached houses. Westwards, there are a number of 3 and 4 storey blocks of home units. Adjoining the hotel in Beach Road and separated by part of the hotel's car park are single storey cottages. To the hotel site's rear and separated by Glenayr Laneway are a number of older flat buildings.
11 The relevant Council statutory instruments applying to the subject site are:
- Waverley Local Environment Plan 1996
12 The relevant Development Control Plan applying to the subject site is:
- Waverley Development Control Plan 2006.
- The Issues re: the Balcony smoke area.
1. Whether the location of an elevated smokers' balcony fronting directly onto a residential area is appropriate.
- Particulars
The numbers and behaviour of patrons using the balcony may lead to unacceptable noise levels impacting on the residential area on the opposite side of Beach Road.
- Particulars
The provision of bi-fold doors separating the smokers' balcony from the Pavilion lounge is unacceptable. These doors being operable, will allow for the transmission of noise generated from the premises to be emitted towards residential premises as well as allow Environmental Tobacco Smoke to drift from the outdoor area back inside to the lounge area.
- Particulars
The balcony is elevated and fronts directly onto Beach Road and may promote excessive and unacceptable dialogue between patrons and pedestrians below.
- Particulars
The current design fails to provide adequate egress from the smokers' balcony since the proposed bi-fold doors cannot be used as a point of exit. The applicant has failed to establish demonstrate that the proposed alterations will impact on egress from the building.
- Particulars
(a) Sound level readings taken to measure the existing background noise levels in the area were obtained whilst the hotel was operating and therefore would include other noise emissions generated by the hotel including patron behaviour, amplified music and mechanical plant;
(b) Background noise levels should be taken from locations unaffected by noise generated from the hotel; and
(c) In the absence of accurate background noise levels it is not possible to properly assess the acoustic impact of the proposed development.
6. The proposed development should be approved having regard to matters raised in submissions received by Council.
The Issues re: the Bottleshop smoke area.
Acoustic Impacts
1. Whether the location of the smoker's area backing partially onto a residential area is appropriate.
- Particulars
The number and behaviour of patrons using the smoking area may lead to unacceptable noise levels impacting on the residential area on the opposite side of Beach Road.
- Particulars
The applicant has proposed a perimeter wall as a means of mitigating unacceptable noise that may be generated from the smoking area.
- Particulars
The provision for metal hand rails will not be effective in preventing patrons from moving into the driveway or further congregating in the hotel's car park.
- Particulars
The balcony fronts directly onto the bottle shop driveway and may promote excessive and unacceptable dialogue between smokers and patrons using the bottle shop and accessing the car park.
- Particulars
(a) Sound level readings taken to measure the existing background noise levels in the area were obtained whilst the hotel was operating and therefore would include other noise emissions generated by the hotel including patron behaviour, amplified music and mechanical plant;
(b) Background noise levels should be taken from locations unaffected by noise generated from the hotel; and
(c) In the absence of accurate background noise levels it is not possible to properly assess the acoustic impact of the proposed development.
Fire Safety
- Code of Australia.
Particulars
The proposed design incorporates an exit from the gaming room into the smoking terrace area which can be closed off with security roller doors. When theses roller doors are closed, egress from the building may be compromised.
7. Whether the proposed development should be approved having regard to matters raised in submissions received by Council.
The issues re: the Pool Room smoke area.
1. Whether the proposed internal walls and operable glazing between the interior of the licensed premises and the proposed smokers' court area will provide required noise attenuation to comply with Condition 5(a) and (b) of the Land and Environment Court Consent (Proceedings 10917 of 2003).
2. Whether the use of the proposed smokers' court area should be restricted to a maximum of 120 patrons and between the hours of 7:00am and 12:00 midnight only.
3. Whether the proposed smokers' court area should be restricted to smokers only and not be used for drinking.
13 The respondent’s evidence came from:
- Mr K. Nash consultant town planner.
- Mr G. Atkins consultant acoustic engineer.
- Mr M. Rose objector and resident #11/80 Beach Rd.
- Mr S. Gerber objector and resident #9/66 Beach Rd and in the tendered submission from him, other objecting residents of Units 1, 4, 5, 8 14 and 15 at 66 beach Rd had also signed.
- Dr P. Oosterhurs objector and resident of 121-123 Glenayr Ave, and in his tendered submission 17 other nearby residents had signed from Nos 62 Beach Rd and Nos.119, 121, 123, 128 and 130 Glenayr.
14 Also in tendered evidence a number of residents from the above addresses and from Glasgow Ave and Blair Street flats on the north side of the hotel had written similar individual complaints about the hotels operation. They did not appear to give oral evidence.
15 The applicant’s evidence came from:
- Mr A Smith, consultant town planner.
- Mr S. Cooper, consultant acoustic engineer.
- Ms W. Lynch, architect.
16 The applicant submitted that the hotel was very popular and had a licence for extended hours beyond midnight, none of those matters are the subject of these appeals. The proposed works will actually reduce impacts on neighbours because it will provide on-site places for people to smoke. At the moment, due to new laws banning smoking inside licensed premises, patrons of the hotel who wish to smoke have to go outside onto the footpaths of Glenayr and Beach, or into the carpark or into the beer garden.
17 A summary of the residents objections is:
- The smokers’ balcony on the first floor overlooking Beach Rd is unacceptable. The noise from it will just add to the disturbances already suffered by the residents at their homes. The smokers will be talking probably raucously amongst themselves, and calling to others in the street below.
- Being open to the south with just a balustrade, smokers can throw or drop glasses, cigarette butts and other items into the street. There is no awning over the footpath at the ground floor level so even accidently dropped items could hit people below.
- The proposal has large bi-folding doors across the whole width at the back of the balcony. These will open the balcony to the whole of the first floor lounge bar. All the noise from it including live bands 3 nights/week will come out to the residents on the south of Beach Rd and Glenayr Ave.
- Hotel is licensed for 1200 persons and 650 of them on the first floor. They cram in like sardines now. They are mostly young, active, noisy and excited after drinking alchohol or dancing or listening to live music.
- The balcony will be popular with non-smokers too, and is big enough for 80 people. Even with the bi-folding doors shut 80 people can make a lot of noise, and the glass doors will reflect all of it out to the south where the houses and flats are.
- At the present time, at least, there are no openings on the south of the hotel first floor to create noise nuisance. Even so, the neighbours have to put up with a lot of disturbance and nuisance at the present time. The balcony will make it worse and being elevated will project more noise to houses and flats that currently get less noise. The balcony should not be approved.
- Blair St and Glasgow Avenue residents wrote that since the legislation requiring smokers to be outdoors, they have noticed an increase in noise from the northern carpark of the hotel due to people talking raucously etc. Also empty bottles are smashed into collection bins after 10pm at night. Hotel managers always say it is an inexperienced staff member doing glass recycling and it will be stopped, but it still happens intermittently.
- Glasgow Ave and Glenayr residents north of Beach Rd also wrote of concerns about increased impacts on amenity by the proposal.
- Existing impacts of the hotel, apart from the above are:
- 1. Lack of on-street parking due to hotel patrons cars. Patrons parking across or partly across driveways.
2. Patrons queuing in street to enter the hotel, obstructing the footpath and being noisy, occasional fights.
3. Police intervention needed occasionally with related activity.
4. There is already an outdoor beer-garden at the west end ot the hotel that causes a lot of noise for residents in Beach Rd and Glenayr Lane and Glasgow Ave and Blair St.
5. Litter in the streets of all kinds including empty and part-empty beer bottles.
6. Revellry in the streets as people arrive, come out onto the footpath for a break from the crush and noise inside the hotel, and as they depart early in the morning.
7. Loud thumping music that can be heard in nearby houses when live bands play 3 times per week.
8. Security staff at the hotel cannot control anti-social behaviour of patrons in the street. They have no jurisdiction.
18 The majority of objectors appeared to accept the Bottleshop and Poolroom provided they did not increase impacts, but there remained major objections to any approval of the Balcony.
19 Dr Oosterhus said he felt defeated by the hotel and its expansion over the years. He had been brought up at his address a few houses south of Beach on Glenayr. When he was a boy, the hotel was a pleasant local corner pub, it closed much earlier than now. It just got bigger and bigger and now has a licence until 1am with re-opening at 5am permitted. Some of the current impacts at his house are:
- On the footpath there are fights, drinking, bottles, glasses, cans, repeated yelling, urinating, throwing up, noisy groups passing or stopping outside to revel.
- In his front yard there are bottles, glasses, cans, his letterbox has been vandalised or taken from time to time, a statue in his front yard has been stolen.
- In his house particularly when he is on-call and needs sleep, the noise of activity prevents it. The worst noise occurs between 1am – 2am when people are leaving the hotel, or tarrying in the street after leaving it.
- Mechanical equipment noise from the hotel cuts in and out all night often loud enough to wake him, his wife and young child.
- The noise from the hotel is heard in his back yard too.
20 The first floor balcony would be a disaster, he said, as it would add further raucous talking and yelling possibly during the day and definitely all night while the balcony is used, and worse when the bi-fold doors are open to the first floor lounge bar and music.
21 The town planners Mssrs Nash and Smith had conferred and produced a joint report and concurrent evidence was heard from them and Mr Atkins and Mr Cooper.
22 They agreed that the Bottleshop needed to have its original proposal for doors from the public bar deleted and replaced with fixed double glazing, and access to be through an airlock. The sliding gate and open balustrade is to have no gate and balusters so that smokers could not move from the room into the carpark or under the bottleshop carport. Also an acoustic barrier fence and landscaping is to be built around the boundary of the carpark. With those amendments the experts agreed this proposal is now compliant with both Liquor Administration Board (LAB) and Dept of Environment & Conservation (DEC) Noise Control Manual.
23 A decision by Moore C in Appeal 10917 of 2003 was referred to as imposing a requirement to measure the background noise levels without any mechanical equipment or patron or other noise emanating from the property. I shall discuss that later.
24 The respondent wanted numbers to be limited to 40 persons in the Bottleshop smoke room from 7am to midnight and closed after that. The applicant wanted no restriction on numbers from 7am-midnight; and after that to lower shutters on the outside of the smoke room, and restrict it to 12 persons from midnight to 1am. They agreed on the changes to the balustrade so that patrons could move into the bottleshop driveway or carpark.
25 As an explanation the size and people capacity of a smoke room is dependent on the amount of open air exposure provided. In this case however, maximum capacity cannot be allowed because of the acoustic requirements. Hotel security staff will have to control the numbers.
26 In regard to the Poolroom they agreed the original proposal for bi-fold windows into it from the pool table area must be deleted and fixed double glazing substituted. This would comply with LAB, DEC and Appeal 10917 of 2003 up to midnight, but is likely only to comply with LAB requirements between midnight and 1am. The roof opening requires a raised parapet around the outside to funnel noise upwards and away from dwellings. This would be visible from the street, but the planners felt its simple geometric shape fitted in with the hotel appearance that is composed of a number of simple geometric shapes.
27 The respondent said numbers had to be a maximum of 120 persons between 7am and midnight and closed after that. The applicant wanted no restriction on numbers and able to be used until 1am closing time.
28 Mr Atkins said the reason he was not sure if the Poolroom would comply with DEC requirements or Appeal 10917 of 2003, is due to there being no background noise measurements without the hotel in existence. Even when it is shut the hotel has air-conditioning and refrigeration equipment and exhaust fans running. The DEC requirements and Appeal No. 10917 of 2003 say that the background noise should be measured without the proposal in operation. That works for new development that is not built yet. It doesn’t work in cases such as this. The hotel had not volunteered to shut all noise sources down for a time to enable such a measurement.
29 Mr Cooper said that the “new development not yet built” is the smoke rooms in this case, and therefore the background noise measurements taken are the appropriate ones.
30 Mr Atkins said the fault in that argument is that it enables “development by creep”. That is each successive stage of development increases the background noise level and enables a further increase to occur. That could not be the intention of the legislation because it would mean a locality could go over a number of years and a series of “additions and alterations” from peaceful low background noise to totally unacceptable amenity. The hotel growth, as evidenced by the objectors, especially Dr Oosterhus, support this reasoning.
31 Mr Atkins added that another fault in Mr Coopers calculations was that he used background noise levels on Friday and Saturday nights. The hotel operates 7 days per week so the correct background noise levels to use are Mr Atkins whose equipment logged the whole week including nights when there was no live entertainment. Also Mr Cooper used background noise levels measured between 10-11 pm. The elevated background noise levels Mr Cooper used enabled him to justify the proposals. Also he claimed there was no contribution to background noise to properties south of Beach Road, but Mr Oosterhus is woken by it.
32 In regard to the Balcony the applicant proposed changes from the original such as a grill 1.8 m high instead of a balustrade to stop people deliberately or accidentally throwing or dropping things from the balcony. The grill has horizontal louvres so that sight down to the street is restricted to avoid people seeing and yelling at others below or above. The bi-fold doors are deleted and solid double-glazing substituted. Access is to be only via an airlock. It cannot comply with DEC noise requirements or Appeal 10917 of 2003.
33 The respondent maintained the balcony must be refused. Even in the applicant’s evidence, the numbers on the balcony have to be restricted to 30, and only used between midday and 10pm and closed after that to comply with LAB. Mr Atkins calculated 23 persons maximum on a balcony big enough for 80 persons to comply with the LAB. He noted that part of the reasons the LAB is easier to comply with, is that equipment noise and off-site noise contributions are not within its jurisdiction even if they relate to the hotel.
34 In considering the applicant’s evidence another aspect is relevant. I asked of the acoustic experts had the noise calculations and background noise levels been taken at or near ground level in the streets around the hotel? They said yes at street level and adjacent receptor houses/dwellings in the street-front.
35 They agreed the measurements reflect background noise in the street-fronts not in the backyards of houses or flats that are to the south of Beach Rd where the background noise level would be lower. I asked then, if the elevation of the Balcony and its ability to project noise at a higher level to those places would mean they would hear noise that, currently, they do not hear. And, if they do hear noise now, would the Balcony noise be louder?
36 Mr Atkins said with no ability to provide noise barriers at the higher levels, and line of sight being the surest route of noise from the Balcony, some houses and flats and back yards would be affected.
37 In my opinion, and considering the existing amenity impacts suffered by the residents south of Beach Rd, the Balcony smoke area must be refused.
38 In regard to the other appeals the primary decision is whether to restrict times of use and numbers of persons as sought by the respondent. That depends on whether or not the DEC and Appeal 10917 of 2003 conditions should apply to the smoke rooms. I have formed the opinion that being separate applications for minor installations in the hotel they can be determined in their own right, and allow the subject of Appeal 10917 of 2003 to comply with its own conditions. It involves a trial period that is not yet completed. Changing the conditions could prejudice the trial. The applicant sought that I amend that judgment on the basis that there was no acoustic evidence in that case and Commissioner Moore just adopted the condition tendered. If that is the case a s.96 application can be made to seek amendment presumably at the end of the trial period.
39 It seems impractical to prevent the use of the smoke rooms during the hours of operation of the hotel. There would probably be patrons who want to smoke. The only alternative for them would be the street or the beer garden at the west end of the hotel, and both are closer and less acoustically buffered than the smoke rooms.
40 The Poolroom appears to be the best acoustically buffered and have the greatest capacity with the least potential to disturb neighbours. Any disturbance/nuisance must be less than residents experience now with smokers in the street. The Bottleshop is to be staged down in numbers after midnight under the applicants condition and have increased buffering after midnight to minimise impacts, once again to much less impact than residents experience now.
41 The parties sought to negotiate further on draft conditions and Directions were given accordingly. These were filed on 12th September 2007. Some drawings nominated in the draft conditions are different to the final amended plans in Exhibit J for the Bottleshop. Similarly for the Poolroom drawings in Exhibit L. I recalled the parties in regard to these matters and the updated drawings related to the revised conditions were handed up.
42 The Orders of the Court are:
________________________
1. Appeal 10283 of 2007 is dismissed.
2. Appeal 10284 of 2007 to provide a smokers’ area adjacent the bottleshop and acoustic barrier fencing of the Beach Road Hotel at No.71 Beach Rd, Bondi is granted as shown in drawings in Exhibit J being drawing nos. DA/101B, /102A, /103D, /104C, /105D, /106C, /107D and /108D by Grice Lynch Architecture+Interiors, all as amended by and built in accordance with the conditions in Annexure A hereto.
3. Appeal 10548 of 2007 to provide a smokers’ area adjacent the first floor pool table space of the Beach Road Hotel at No.71 Beach Rd, Bondi is granted as shown in drawings in Exhibit L being drawing nos. DA/301A, /302C, /303C, /304B, /305C, /306B by Grice Lynch Architecture + Interiors, all as amended by and built in accordance with the conditions in Annexure B hereto.
4. The exhibits are returned to the parties except Exhibits A, B, C, N, O and 10, 11, 12, 14 and 20.
K G Hoffman
Commissioner of the Court
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