Harbord Hotel Holdings Pty Ltd v Northern Beaches Council

[2023] NSWLEC 1270

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harbord Hotel Holdings Pty Ltd v Northern Beaches Council [2023] NSWLEC 1270

Hearing dates:

29 May 2023

Date of orders:

02 June 2023

Decision date:

02 June 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant’s written request pursuant to clause 4.6 of Warringah Local Environmental Plan 2011 (LEP) seeking a variation to maximum height of building control in clause 4.3 of the LEP, prepared by Boston Blyth Fleming dated 15 August 2021, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA2021/1620 for alterations and additions to an existing pub (Harbord Hotel) at 29-31 Moore Road, Freshwater subject to the conditions of consent in Annexure A.

(4) The exhibits are returned except for A, B, D, E, 2, 3 and 4.

Catchwords:

APPEAL – development application – alterations and additions to the Harbord Hotel – imposition of conditions relating to noise compliance, patron numbers, shuttle bus for patrons and vehicle parking – plan of management amended to give effect to conditions imposed

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.14

Land and Environment Court Act 1979, s 34(4)(b)(i)

State Environmental Planning Policy (Coastal Management) 2018 (repealed)

State Environmental Planning Policy (Infrastructure) 2007 (repealed), cl 45

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.12, 2.13; Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Warringah Local Environmental Plan 2011, cll 2.5, 2.7, 4.3, 4.6, 5.10, 5.20, 6.4; Sch 1 Item 14; Sch 5

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Building Code of Australia

NSW Noise Policy for Industry

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Harbord Hotel Holdings Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/181844

Publication restriction:

Nil

Judgment

Background

1. The Harbord Hotel has operated from its site at 29-31 Moore Road, Freshwater since 24 December 1928. The liquor licence for the Hotel, first issued on 29 April 1957, continues to authorise the service of alcohol on the premises subject to the terms of any relevant development consent.

2. Over the years, the Hotel building, which is identified as a local heritage item, has undergone various alterations and additions, the detail of which is conveniently recorded in the Heritage Impact Statement (HIS) prepared by Weir Phillips and dated August 2021. The most recent substantial development of the site was the extensive refurbishment of the ground floor level of the Hotel restaurant and bar carried out pursuant to development consent DA2020/0468 (Ex A Vol 1 Tab 7(a)), as modified by the approval of modification application MOD2020/0416 (2020 Consent) (Ex A Vol 1 Tab 8 Development Application Assessment Report (DAR)).

3. Curiously, however, the modification of the 2020 Consent did not impose any limitation on the Hotel in respect of the patron numbers, an omission that has in part given rise to the current proceedings.

Current proceedings

4. The current proceedings concern a development application (DA2021/1620) (DA) lodged by the applicant on 21 September 2021 seeking consent to carry out works at the first floor and attic levels of the Hotel to accommodate a bar function and ancillary recording studio floor space and ancillary amenities. The DA also proposes lift access to the attic level, and as this necessitates the raising of the roof in contravention of the height of buildings development standard in cl 4.3(2) of Warringah Local Environmental Plan 2011 (LEP), the applicant has lodged a written request pursuant to cl 4.6 for a relaxation of that standard. There is also a reconfiguration of the carparking to provide additional spaces and some minor upgrade works to address Building Code of Australia (BCA) requirements and acoustic mitigation works and conditions.

5. In accordance with the Council’s policy the DA was publicly notified from 28 September 2021 to 12 October 2021 and 130 submissions were received of which 101 were objections and 29 were submissions in support. Given the significant public interest in the application the DA was referred to the Northern Beaches Planning Panel (Panel) for determination.

6. The DA went before the Panel on 15 December 2021 and was deferred with a request that the applicant provide additional information. The minutes of the Panel meeting (Ex A Vol 2 Tab 9(a) folio 634) record the additional information sought by the Panel went to patron capacity (Items 1 and 2), parking surveys and mode of transportation (Item 3), acoustic assessment of the existing Hotel operations plus the proposed development including compliance of existing operations (Item 4), an amended plan of management (Item 5), details of the recording studio to demonstrate how it is ancillary to the Hotel use (Item 6) and amended plans which clearly indicate and dimension the proposed new work including car parking (Item 7).

7. The applicant also submitted to the Panel a Supplementary Statement of Environmental Effects (SEE) (Ex A Vol 1 Tab 2(e) folios 156-163) which included the following documents:

• Attachment 1 - Current Liquor Licence (Ex A Vol 1 Tab 6 folio 497)

• Attachment 2 - Existing premises patron capacity advice prepared by Trevor R Howse (Ex A Vol 1 Tab 2(e) folios 163a-163d)

• Attachment 3 - Patron distribution plan (Ex A Vol 2 Tab 10 folio 671)

• Attachment 4 - Transport modes surveys prepared by Colston Budd Rogers and Kaffes Pty Limited (Ex A Vol 1 Tab 2(e) folios 163e-163g)

• Attachment 5 - Acoustic Compliance Report prepared by AKA Acoustics (Ex A Vol 1 Tab 2(i) folio 230)

• Attachment 6 - Updated Plan of Management (Ex A Vol 1 Tab 2(p) folio 345)

• Attachment 7 - Amended site plan (Ex A Vol 2 Tab 11 folio 672)

8. A memorandum dated 10 March 2022 prepared by the Assessing Officer assessing the applicant's additional information was provided to the Panel with a recommendation for changes to conditions (Ex A Vol 2 Tab 12).

9. The Panel met on 1 April 2022 and reconvened on 8 April 2022 to determine the DA and granted consent to the DA subject to conditions (Ex A Vol 1 Tab 2(c)).

10. The applicant was dissatisfied with conditions 37, 39, 43 and 45 and contended that those conditions should be deleted and or amended for the reasons set out in the Statement of Facts and Contentions (SOFAC) (Ex A Vol 1 Tab 3) and the Addendum to the SEE (Ex A Vol 1 Tab 5(a)).

11. The conditions at issue are as follows:

Condition 37

“The car parking area shown on the approved drawings must be used for vehicle parking only. Loading and unloading of vehicles and delivery of goods to the land must be carried out within the site. Any loading or unloading of materials of potential environmental damage must be appropriately bunded with adequate spill response equipment in place to ensure nil runoff from the site.”

Condition 39

“Noise caused by the operation of amplified music must not be audible beyond the boundary of any residence between the hours of 10pm and 8pm on any day”

Condition 43

“The number of patrons within the venue shall be limited to a maximum of 650 at any time.”

Condition 45

“The applicant/operator is to provide a shuttle bus service between the subject premises, Manly CBD and other locations as required, operating in line with the amended Plan of Management. The shuttle bus service is to operate during operating hours as follows:

• Thursday and Friday- 4pm to thirty minutes after close

• Saturday, Sunday and Public Holidays - 11am to thirty minutes after close

• Any events or functions where it is expected a large number of patrons will be attending the period the event is occurring to thirty minutes after the even concludes.”

12. Although the appeal is against conditions, the consent ceases to have effect by operation of s 8.14(1) of the EPA Act therefore I am required to exercise the functions and discretions of the consent authority and determine the DA pursuant to ss 4.16 and 4.17 of the EPA Act.

Section 34 conference

13. Before the matter proceeded to hearing the Registrar of the Court directed that the proceedings be listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), and I presided over the conference. The conference took place over an extended time on 28 September 2022, 24 October 2022, 13 December 2022, 17 January 2023, 9 March 2023 and was ultimately terminated on 14 March 2023 on the basis that I determine the matter following a further hearing under s 34(4)(b)(i) of the LEC Act commencing onsite with a view.

14. It was also agreed that the matters discussed at the conference be allowed into evidence. To that end, the Court granted the applicant leave to amend its application on 19 April 2023 to incorporate the further plans and expert reports prepared by the applicant during the conciliation. The amended application was then notified to the original submitters and the further submissions received by the Council were included in the evidence.

15. The parties have also prepared and filed a joint planning report dated 5 May 2023 and a supplementary joint planning report dated 23 May 2023 from Mr Greg Boston and Mr Kerry Nash.

Statement of Facts and Contentions

16. The applicant’s SOFAC filed on 11 August 2022 identifies that the land is zoned R2 Low Density Residential pursuant to the LEP, and Pubs are a prohibited land use in that zone. However, they are permissible on the land as an additional permitted use pursuant to cl 2.5(1) and Item 14 of Sch 1 of the LEP. (Clause 2.5(2) provides that cl 2.5 has effect "despite anything to the contrary in the Land Use Table or other provision of this Plan").

17. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

18. The second objective is the relevant objective, and the development is consistent with it.

19. Clause 2.7 of the LEP permits demolition with development consent. To the extent that demolition is proposed, the impacts have been considered and conditions have been proposed which satisfactorily address those matters.

20. Clause 4.3(2) of the LEP prescribes a maximum height of building development standard of 8.5m. The existing Hotel building already contravenes the height limit. The development proposes a further contravention by raising the roof at its south-eastern corner by 950mm, which results in a contravention of 9.8m at its southern end and 10.7m at its northern end. Diagrams depicting the existing and proposed height contraventions are shown diagrammatically on pp 2, 3 and 4 of the written request pursuant to cl 4.6 of the LEP seeking a variation of cl 4.3 prepared by Boston Blyth Fleming dated 15 August 2021 (Clause 4.6 Request) (Ex A Vol 1 Tab 2(f) folio 164).

21. Clause 4.6 of the LEP allows the Court, exercising the functions and discretions of the consent authority, to grant consent to the DA notwithstanding the contravention of cl 4.3(2) subject to it being satisfied that the relevant preconditions in cl 4.6 have been met.

22. For the purposes of cl 4.6(4), I am satisfied that:

1. the Clause 4.6 Request has adequately addressed the matters required to be demonstrated by subcl (3), and

2. the development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

23. The Clause 4.6 Request addresses cl 4.6(3)(a) by demonstrating that the objectives of cl 4.3 are achieved notwithstanding that the development contravenes the numerical standard consistent with test 2 set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 decided by Preston CJ (see Ex A Vol 1 Tab 2(f) folios 172-179).

24. The Clause 4.6 Request demonstrates that there are sufficient environmental planning grounds to justify the contravention by demonstrating that the height variation facilitates disabled access to the attic level in the most appropriate location and in the form of a pitched roof that is a better design outcome than a compliant flat roof having regard to the heritage significance of the Hotel (see Ex A Vol 1 Tab 2(f) folios 181-182).

25. The Clause 4.6 Request states why the development is consistent with the relevant objectives of the R2 zone (see Ex A Vol 1 Tab 2(f) folio 179). As the Clause 4.6 Request demonstrates that the objectives of the building height standard are achieved, and that the development is consistent with the objectives of the R2 zone I am satisfied that the development is in the public interest (cI 4.6(4)(a)(ii)).

26. The Court can grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act but should take into account the matters in cl 4.6(5). In this case the development is local development with a minor non­ compliance and an adequately justified breach of the height standard. In the circumstances of this case the contravention of cl 4.3(2) of the LEP does not raise any matter of significance for State or regional planning and there is no public benefit in maintaining the standard as regards the determination of the DA.

27. The Panel agreed that the Clause 4.6 Request was well founded and the Council has not raised any contention that the Clause 4.6 Request should not be upheld (Ex A Vol 1 Tab 2(c) folio 86).

28. Clause 5.10 of the LEP applies to the development as the Hotel is listed as a local heritage item (I174) in Sch 5. A HIS was submitted with the DA (Ex A Vol 1 Tab 2(k)) and was considered by the Council's Heritage Officer who was satisfied that the development would not have an unacceptable impact on the heritage significance of the Hotel (Ex A Vol 1 Tab 2(b) folio 59).

29. Clause 5.20 of the LEP applies to the development as the development is in relation to licensed premises. Under cl 5.20(1), the Court must not refuse consent on the grounds, amongst others, that music is played or performed on the premises or that dancing takes place on the premises. Further, under cl 5.20(2) the Court must not refuse consent on the grounds of noise caused by the playing or performance of music, if the consent authority is satisfied the noise may be managed and minimised to an acceptable level. I am satisfied on the basis of the acoustic reports and the proposed noise conditions that noise caused by the playing or performance of music will be managed and minimised to an acceptable level.

30. Clause 6.4 of the LEP applies as the land is mapped as Area B on the Landslip Risk Map. The land has already been developed for the purpose of a hotel and has been in existence since 1924. The development does not propose any earthworks that would increase the risk of landslide. The Hotel has existing stormwater drainage to which the new works will connect. The development does not involve excavation or works that will impact sub-surface flows (Ex A Vol 1 Tab 2(b) folio 67).

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

Coastal Management

31. Chapter 2 of the RH SEPP applies because the land is in the coastal zone.

32. The land is mapped as being within the coastal environment area. Accordingly, s 2.10 applies. In addition, ss 2.12 and 2.13 apply.

33. These matters were considered in the DAR under the provisions relating to the State Environmental Planning Policy (Coastal Management) 2018 which have now been transferred into the new SEPP (Ex A Vol 1 Tab 2(b) folios 53-54).

Contamination

34. Chapter 4 of the RH SEPP applies to the land and requires consideration of whether the land is contaminated and if so whether it is suitable for the proposed use with or without remediation.

35. The Hotel has been in continuous operation since 1928 with no history of contaminating activities. The development does not propose the disturbance of the land.

36. In the circumstances I am satisfied that the site is suitable for the proposed use (being the continuing use of a Pub) without the need for remediation.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

37. The DA was referred to Ausgrid pursuant to the provisions of cl 45 of the former State Environmental Planning Policy (Infrastructure) 2007 which has been transferred into the new TI SEPP as s 2.48. Ausgrid raised no objections to the DA (Ex A Vol 1 Tab 2(b) folio 52).

Contentions

Contention 1 – Audibility of Amplified Music (Condition 39)

38. Condition 39 as imposed on the Consent provides:

"Noise caused by the operation of amplified music must not be audible beyond the boundary of any residence between the hours of 10pm and 8pm on any day."

39. The applicant contends that this condition should be deleted because it is contrary to the recommendations in the Acoustic Reports submitted with the DA to the Council (Ex A Vol 1 Tabs 2(h) & 2(i)) and is inconsistent with the noise condition that currently applies to the Hotel and which the Hotel was assessed against in those Acoustic Reports. Conditions 1, 18 and 19 of the Notice of Determination (Ex A Vol 1 Tab 2(a)) are sufficient to ensure compliance with the existing noise criteria that applies to the Hotel.

40. The Hotel is subject to a noise condition on its licence in the standard OLGR form (Noise Condition) that requires:

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

The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz - BkHz 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 licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 07:00am.

Interior noise levels which, although restricted in accordance with the above condition still exceed safe hearings levels are in no way supported or condoned by the Authority."

(Ex A Vol 1 Tab 6 folio 498)

41. This noise condition is incorporated in the proposed conditions of consent and referred to in the Plan of Management (POM).

42. It is also incorporated in Condition 21 of the earlier 2020 Consent. That is, the existing Hotel operations are required to comply with the Noise Condition (Ex A Vol 1 Tab 7(a) folio 509). Condition 17 (Ex A Vol 1 Tab 7(a) folio 508) of the 2020 Consent and par 33 (Ex A Vol 1 Tab 7(e) folio 574) of the POM approved by the 2020 Consent also refer to the Noise Condition. The 2020 Consent was also assessed against the Noise Condition (Ex A Vol 1 Tab 7(b) folios 529-530).

43. The DA was accompanied by an Acoustic Report prepared by AKA Acoustics dated 27 July 2021 (Ex A Vol 1 Tab 2(h)) which assessed the proposed first floor and second floor (attic) for acoustic compliance against the Noise Condition (Ex A Vol 1 Tab 2(h) folio 208) and made recommendations for mitigation works and conditions to ensure compliance.

44. At the meeting of the Panel on 15 December 2022, the Panel requested that the applicant provide additional information including the provision of:

“An amended acoustic report that addresses all noise generation sources from the operations of the hotel, including the existing use of the ground floor and all outdoor areas. The measurement of noise generated by existing use is to be undertaken on the same night as point 3.”

45. Point 3 required that the applicant:

“Undertake at least one traffic and parking survey on an evening where there is an event or function being held. The survey shall include the travel modes of the patrons attending.”

46. Due to the COVID-19 pandemic, events at the Hotel were restricted however surveys were undertaken on 1, 18, 26 and 31 January 2022 (Ex A Vol 1 Tab 2(e) folios 163e-163g). These surveys showed peak patron attendance of 305 patrons on 1 January 2022. This should be contrasted with a peak patron attendance prior to the COVID-19 pandemic on 29 February 2020 of 549 patrons. It is also of relevance that the 1 January 2022 event had 600 tickets issued all of which were sold but half of which did not attend due to the COVID-19 pandemic risks (Ex A Vol 1 Tab 2(e) folio 157).

47. An Acoustic Compliance Report prepared by AKA Acoustics dated 23 January 2023 (Ex A Vol 1 Tab 2(i)) was submitted to the Panel. This Report carried out measurements on 1 January 2022 between 2.15pm and 5.10pm and focussed on the front courtyard area (Ex A Vol 1 Tab 2(i) folio 244). At the time of measurements, the peak capacity of the front courtyard was 200 patrons (Ex A Vol 1 Tab 2(i) folio 244 Table 7). The Acoustic Report found that noise emissions were dictated by the music played through the outdoor speakers and had the potential to lead to non-compliance with the noise criteria (Ex A Vol 1 Tab 2(i) folio 246). To address this non­compliance, the Acoustic Compliance Report made three recommendations in relation to positioning and settings of the outdoor speakers (Ex A Vol 1 Tab 2(i) folio 247). The Acoustic Compliance Report also made recommendations in relation to improving the acoustic screening around the front courtyard (Ex A Vol 1 Tab 2(i) folio 248). The Acoustic Compliance Report determined that with the adjustments to the outdoor speakers and the changes to the acoustic screening that the 250 persons in the courtyard would comply with the Noise Condition between 7am and 10pm and that after 10pm the number of patrons in the courtyard should be reduced to 125 to ensure compliance (Ex A Vol 1 Tab 2(i) folio 249). It also made recommendations for control of loud voices in the courtyard which is dealt with at par 51 of the Updated POM (Ex A Vol 2 Tab 22 folio 836).

48. The Consent imposes conditions requiring the implementation of the acoustic mitigation measures and conditions recommended in the Acoustic Reports (Conditions 1, 18 and 19).

49. The town planning experts at par 2.1.1 of the joint report (Ex A Vol 2 Tab 13) agree that the recommendations in the Acoustic Reports address the issue of amplified music and that Condition 39 can be deleted.

50. The DAR and the relevant referrals do not provide any explanation for the formulation of Condition 39. The effect of Condition 39 would be to impose a new restriction on the existing operation of the Hotel that does not arise from the proposed development.

51. The Council does not have any specific planning control in relation to noise emissions from licensed premises. Section 03 of the Warringah Development Control Plan 2011 refers to a criteria of background + 5dba for mechanical plant and equipment and otherwise refers to the NSW Industrial Noise Policy which has been replaced by the NSW Noise Policy for Industry (Ex A Vol 2 Tab 15 folio 724) which expressly does not apply to licensed premises (Ex A Vol 2 Tab 15 folio 724d).

52. In these circumstances I accept that the Noise Condition being the OLGR standard condition for noise emissions from licensed premises is the appropriate noise criteria which applies to the Hotel and should continue to apply and will be met by the development and that Condition 39 which is contrary to that condition and the existing approved operations of the Hotel should be deleted.

Contention 2 - Patron Numbers (Condition 43)

53. Condition 43 of the Consent provides:

“The number of patrons within the venue shall be limited to a maximum of 650 at any time.”

54. Like Condition 39, this condition seeks to apply a limitation to the whole of the Hotel premises including the ground floor which is currently operating without any limitation on patron numbers.

55. The genesis of the limitation appears to be a concern by the Panel that the development could result in an intensification of the use of the Hotel (Ex A Vol 1 Tab 2(c) folio 102).

56. In an endeavour to limit any intensification, the Panel sought to ascertain through patron surveys the maximum capacity of the Hotel. Because of the COVID-19 pandemic it was not possible to survey the Hotel when it was operating at maximum capacity. Instead, the Panel resorted to using the ‘deemed to satisfy’ provisions of the BCA having regard to the floor area of the Hotel to determine the maximum capacity of the ground floor area of the Hotel. By applying the ‘deemed to satisfy’ rate of 1 person per sqm, the Panel came up with a number of 650 patrons (Ex A Vol 1 Tab 2(c) folio 102 and Vol 2 Tab 16).

57. This calculation was contrary to the BCA Report and documents that were before the Panel and failed to have regard to the fact that the table from the BCA relied upon by the Panel to determine numbers was not the only method that could be used to determine numbers (Ex A Vol 2 Tab 17(b)). This, in any event, was not correctly applied as the table allowed increased numbers along bar frontages and on dance floors both of which exist at the Hotel and were either not shown or not correctly shown on the plans before the Panel (Ex A Vol 2 Tab 17 folio 728).

58. The latest BCA Report (Ex A Vol 1 Tab 5(d) folio 475) filed with the application confirms that, when applying the BCA, the maximum population load on the ground floor of the Hotel is 800 - with up to 275 in the ground floor courtyard. The BCA Report confirms that the existing first floor is capable of accommodating a population of up to 175 people making a total population of 975 within the Hotel (Ex A Vol 1 Tab 5(d) folio 476 par 2.2.6).

59. The BCA Report confirms that following the proposed development the Hotel would be capable of accommodating a population of 650 on the ground floor (excluding terrace), 320 on the first floor and 100 on the attic level which equates to 1070. A further 150 would be permitted in the courtyard terrace which equates to 1,220 (Ex A Vol 1 Tab 5(d) folio 477 par 4.3.9).

60. These calculations are slightly different to the conclusions of the town planners at par 2.2.1 of their joint report because the planners have added 275 population in the front courtyard. However, only a total of 800 are allowed on the ground floor including the courtyard. As the 1,070 population already includes 650 on the ground floor, there can only be an additional 150 in the courtyard.

61. Notwithstanding the potential capacity of the Hotel, the applicant is prepared to accept a condition which limits the number of patrons to 750 except for 12 events in any calendar year where the number of patrons may exceed 750 but not exceed 800. The applicant proposes this amendment by way of inclusion of the patron limitation in the POM together with additional limitations on patrons numbers in particular areas of the Hotel to reflect acoustic and/or BCA requirements (Ex A Vol 1 Tab 5(c) folio 421).

62. The town planning experts have agreed that the applicant’s proposed amendment is acceptable at par 2.2.1 of their joint report (Ex A Vol 2 Tab 13).

63. The experts opine that:

“...it would be beneficial for the local community to have certainty as to a maximum patron capacity for the whole of the Licensed premises including the ground floor with such capacity reflected in an amendment to Condition 43 and the Plan of Management.”

64. The experts further opine that:

“The experts agree that the adoption of these maximum patron numbers provides better planning and residential amenity outcomes compare (sic) to the current unrestricted patron capacity for the Harbord Hotel with the amended Plan of Management providing certainty to residents in relation to the ongoing operation and management of the hotel premises.”

65. Consistent with the 2020 Consent and the Liquor Licence, the DA did not seek any limitation on an overall population for the Hotel other than limitations on outdoor areas to achieve acoustic compliance.

66. The proposal for a limitation originated from the Panel in relation to the whole of the Hotel notwithstanding that the DA proposed works to the first floor and attic levels. In an endeavour to resolve concerns raised by the Panel, the applicant offered to accept a limitation of 870 which would have resulted in an increase of 50 based upon the BCA Report submitted with the DA (Ex A Vol 1 Tabs 2(a) and 2(e)). That report indicated that the ground floor of the existing premises could accommodate 820.

67. The Traffic and Parking Report submitted with the DA (Ex A Vol 1 Tab 2(j)) determined a driver rate for patrons of 6% and a driver rate for staff of 61% (Ex A Vol 1 Tab 2(j) folio 265). The report also determined a staffing rate of 1 staff per 14.4 patrons. These rates were based on actual surveys. Assuming that the 800 patrons on 12 days a year was an intensification, then those additional 50 patrons would result in a demand for 3 car spaces (50 x 6%) and a need for 4 additional staff with a carparking demand of 2.11 cars. The DA proposes to provide 5 additional car spaces and a courtesy bus (22-30 capacity) which will address the additional car parking demand.

68. The proposal to now accept 750 as a base with an increase to 800 on 12 occasions in a calendar year strikes an appropriate balance given that there will now be an enforceable limit on patron numbers together with a rigorous plan of management together with additional acoustic measures to mitigate noise emissions from the existing Hotel operations as well as the new operations above ground floor.

Contention 3 - Shuttle Bus for Patrons (Condition 45)

69. Condition 45 of the Consent provides:

“The applicant/operator is to provide a shuttle bus service between the subject premises, Manly CBD and other locations as required, operating in line with the amended Plan of Management. The shuttle bus service is to operate during operating hours as follows:

• Thursday and Friday- 4pm to thirty minutes after close

• Saturday, Sunday and Public Holidays - 11am to thirty minutes after close

• Any events or functions where it is expected a large number of patrons will be attending the period the event is occurring to thirty minutes after the even concludes.”

70. The DA as lodged included a SEE (Ex A Vol 1 Tab 2(d)), Traffic and Parking Report (Ex A Vol 1 Tab 2(j)) and Plan of Management (Ex A Vol 1 Tab 2(p)). The SEE (Ex A Vol 1 Tab 2(d) folio 113) and Traffic and Parking Report (Ex A Vol 1 Tab 2(j) folio 264) indicated that a courtesy bus would be provided to and from Manly at busy times. The February 2022 POM (Ex A Vol 1 Tab 2(p) par 86) said that the courtesy bus would be provided in peak periods on Friday and Saturday night and would commence at 9pm until 12am and will drop off guests at Manly, Dee Why or Brookvale at their request. At par 87 the POM stated that the courtesy bus service will be provided on special event days and other days it deems necessary.

71. It is apparent that Condition 45, as imposed, is beyond the scope of what has been offered. There was no justification offered by the Council for the discrepancy.

72. In its contentions, the applicant proposed that the courtesy bus operate generally in accordance with the DA documents except that it would drop off guests at Manly only.

73. The experts deal with the contention at par 2.3.1 of their joint report and have agreed on a hybrid form of the condition that provides:

“A courtesy bus service must be available between the subject premises, Manly CBD and other locations as required, operating in line with this Plan of Management. The courtesy bus service is to operate during operating hours as follows:

(a) Friday and Saturday- 9pm to 12.30am

(b) Days where there are more than 500 patrons at the Hotel from 9pm to 12.30am

(c) Any other day deemed necessary by Hotel Management.

The courtesy bus driver shall be notified by Hotel Management when the Hotel is at or approaching capacity at which time the shuttle bus operation will be limited to transporting patrons away from the Hotel only."

74. The applicant is prepared to accept the condition in form proposed by the experts and based on the evidence, I am satisfied that it should do so.

Contention 4 - Vehicle Parking (Condition 37)

75. Condition 37 of the Consent provides:

“The car parking area shown on the approved drawings must be used for vehicle parking only. Loading and unloading of vehicles and delivery of goods to the land must be carried out within the site. Any loading or unloading of materials of potential environmental damage mut be appropriately bunded with adequate spill response equipment in place to ensure nil runoff from the site.”

76. The applicant’s contention relates only to part of this condition and in particular to keg deliveries.

77. This condition is discussed by the experts at par 2.4.1 of the joint report. The experts note at par 2.4.1 that the Hotel has a keg room located in the basement of the premises which is accessed via an access hatch from the Charles Street frontage. The experts further note that the Hotel has a long-standing arrangement of keg delivery from Charles Street via the access hatch with all other deliveries occurring from within the property.

78. The applicant's proposed alternate condition seeks to maintain the status quo by providing all loading and unloading within the site with the exception of kegs which will continue to be delivered from Charles Street via the access hatch as follows:

''The car parking area shown on the approved drawings must be used for vehicle parking only. Loading and unloading of vehicles and delivery of goods to the land, except the delivery of kegs, must be carried out within the site. Any loading or unloading of materials of potential environmental damage mut be appropriately bunded with adequate spill response equipment in place to ensure nil runoff from the site."

79. The experts agree at par 2.4.1 of their joint report that in the absence of any identified traffic impacts that the maintenance of this long established and historical keg delivery arrangement is acceptable provided all other deliveries occur from within the site. There is no expert evidence that suggests any unacceptable traffic impacts currently occur or will occur from keg deliveries.

80. The Council’s internal traffic engineer suggested that the signage on Charles Street be altered to provide a loading zone to facilitate keg deliveries and to otherwise provide short-term parking for pick-up and drop-offs. The applicant through the Addendum SEE (Ex A Vol 1 Tab 5(a)) proposed an ancillary condition to the following effect:

"An application shall be made to the local traffic committee for signage to be installed in Charles Street adjacent to the hotel which provides for a loading zone to operate between 7am and 12pm Monday- Saturday. The signage shall provide short term (10 minute) parking after this time from 12pm to 12am Monday to Saturday. If approval is granted the signage will be installed at the cost of the Applicant. Should approval not be granted by the local traffic committee, no signage is required to be installed.

Reason: to provide for deliveries to the hotel and to provide for set down and pick up operations at the hotel, including taxis, ride-share and min-buses."

81. The experts considered this ancillary condition at par 2.5.1 and were of the opinion that the condition as drafted conflicts with Condition 37.

82. The experts prepared a supplementary joint report on 23 May 2023 which further considered the ancillary condition at par 2.5.1 of their original report. The experts agreed that the ancillary condition should be amended to read as follows to clarify any inconsistency with Condition 37:

“An application shall be made to the local traffic committee for signage to be installed in Charles Street adjacent to the keg room access hatch which provides for a loading zone for keg deliveries between 7am and 12pm (noon) Monday - Saturday. The signage shall provide short term (10 minute) parking after this time from 6pm to 12am (midnight), Monday to Saturday. If approval is granted the signage will be installed at the cost of the Applicant. Should approval not be granted by the local traffic committee, no signage is required to be installed.

Reason: to provide for keg deliveries to the hotel and to provide for set down and pick up operations at the hotel, including taxis, ride-share, mini-buses and courtesy bus operations.”

83. It is understood that the short-term parking is responsive to a request by the Council for the implementation of arrangements to enable pick-up and drop-off of guests to avoid double parking and traffic congestion around the Hotel. The experts have modified the condition to maintain the status quo from 12pm to 6pm with the short-term drop-off/pick-up occurring from the busy operating period at 6pm to midnight. This change was to balance concerns raised by residents against concerns raised by Council. The applicant's primary position is that the ancillary condition is not necessary because the applicant’s Condition 37 reflects the status quo. However, the applicant does not oppose the imposition of the condition and the installation of the signage at its expense provided that should the traffic committee not support the condition then no signage will be required.

84. During the hearing Condition 37 was amended to remove any reference to minibuses and courtesy bus operations after it was decided that those activities would be carried out on site in accordance with Condition 47.

Ancillary Condition - POM (Condition 29)

85. The Amended DA includes an updated POM (Ex A Vol 2 Tab 22) which gives effect to the amended conditions agreed by the experts together with other improved management requirements that came out of discussions between the experts.

86. Condition 29 of the Consent as imposed by the Panel requires amendments to the POM filed with the DA. As the POM has been updated to include the required amendments, Condition 29 can now be deleted.

Objectors’ evidence

87. At the commencement of the s34 conference, the Council co-ordinated oral submissions from several objectors who wished to address the process. Some of these submitters also gave evidence at the site view held at the commencement of the hearing (Ex 2). Their written submissions (Ex 4) together with the other submissions received by the Council have been tendered as part of the Council’s case and read. Collectively, the residents who object to the proposal, particularly those most proximate to the site, said that an approval of this DA will exacerbate the already unacceptable noise and amenity issues they presently suffer. They strenuously oppose any further loss of their quiet enjoyment of their home/residential amenity and seek a limitation on the number of patrons attending the site. They are also concerned about the lack of onsite parking and the movements and pick-up location of the proposed courtesy bus which is to operate in accordance with the POM to ferry patrons from the premises shortly before closing time. They suggest that the pick-up be located within the site rather that the public street or in some cases private driveways as has been their experience. They also request that the area historically used for the delivery of kegs be removed to an onsite location rather than the street frontage. Several submitters asked for improved surveillance by the Hotel’s security staff to move on unruly noisy patrons leaving the site.

88. As I have outlined above a number of the objectors’ demands have been acted upon. The application was amended with the Court’s leave to provide that the courtesy bus park and load onsite. To that end, Condition 47 was amended to provide that car spaces 01 and 02 on plan DA000.011(B) be nominated as being available to be used for the parking and standing of the courtesy bus whilst in operation. And all other deliveries, other than the kegs (which are to be delivered from Charles Street between the hours of 7am and 5pm Monday to Saturday (within a loading zone if applicable with the applicant making such application to the local traffic committee)), are also to be carried out on site.

87. The POM has been amended to require the windows of the premises on the western side of the Hotel to be key locked at 9pm whenever entertainment is being conducted. Similarly, the conditions of consent were clarified to include a condition (Condition 48) referencing the maximum noise levels permitted at the Hotel as endorsed on the Liquor Licence and the recommended acoustic measures included in the AKA Acoustics Compliance Reports.

Conclusion

90. There is no expert evidence before the Court to support a refusal of this DA. I accept the agreed expert evidence and conclusions put to the Court. The terms of the consent will introduce new regulation of Hotel use - that but for this consent - would not be in place. On that basis, I find that an approval of this application is in the public interest; as it offers appropriate mitigation strategies in the form of conditions which are enforceable.

91. The Court orders:

1. The applicant’s written request pursuant to clause 4.6 of Warringah Local Environmental Plan 2011 (LEP) seeking a variation to maximum height of building control in clause 4.3 of the LEP, prepared by Boston Blyth Fleming dated 15 August 2021, is upheld.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA2021/1620 for alterations and additions to an existing pub (Harbord Hotel) at 29-31 Moore Road, Freshwater subject to the conditions of consent in Annexure A.

4. The exhibits are returned except for A, B, D, E, 2, 3 and 4.

………………….

S Dixon

Senior Commissioner of the Court

Annexure A (777824, pdf)

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Amendments

20 June 2023 - Correction to typographical errors at [2] and [3].

Decision last updated: 20 June 2023