Hilrok Properties Pty Ltd v Manly Council

[2007] NSWLEC 224

Land and Environment Court

of New South Wales

CITATION:

Hilrok Properties Pty Ltd v Manly Council [2007] NSWLEC 224

PARTIES:

APPLICANT
Hilrok Properties Pty Ltd

RESPONDENT
Manly Council

FILE NUMBER(S):

10765 of 2006

CORAM:

Murrell C

KEY ISSUES:

Development Application :- for extension to Ivanhoe Hotel to include gaming facility and smoking area. Impact on public domain and consistency with active street frontage.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

5/12/2006, 6/02/2007 and 2/04/2007 (part days only)

EX TEMPORE JUDGMENT DATE:

2 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. McMahon, solicitor
of McMahon & Associates

RESPONDENT
Ms L. Finn, solicitor
of HWL Layers incorporating
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

2 April 2007

10765 of 2006 Hilrok Properties Pty Ltd v Manly Council

This determination was given extemporaneously
and it has been edited prior to publication


JUDGMENT

1 This is an extempore judgment for a matter that commenced as an on-site hearing. The subject property has frontage to ‘The Corso’ at Nos. 27-35 ’The Corso’, Manly and rear access to Market Lane. The applicant proposes to utilise part of the existing Commonwealth Bank premises for the purpose of providing a gaming facility and the provision of a central toilet area at the rear of the subject site, which backs onto Market Lane.

2 The Court initially met on site and heard from Mr Michael Ball, the Court-appointed expert in the proceedings concerning the development application. Mr Ball did not object to the proposed application that was then before the Court which showed a smoking terrace onto ‘The Corso’ and the gaming facility behind.

3 The Court at that point in time expressed concerns about the fact the proposed does not represent an active street frontage to ‘The Corso’. It subsequently transpired that council has a policy for active frontages to ‘The Corso’, and also tendered in the proceedings is a policy/plan with clear objectives for ‘The Corso’ which is the main pedestrian plaza from the harbour through to the beach of Manly.

4 The applicant provided amended plans to the Court and a number of alternatives were looked at in terms of providing a café for part of the frontage to provide an active frontage to ‘The Corso’ as well as a smoking terrace area. There was also an option which looked at providing the smoking facility to Market Lane and this required a reconfiguration of the toilet area. However, the applicant today has provided a further preferred plan in Exhibit J to show a café for the total frontage of ‘The Corso’ with the main entry to the gaming facility also from ‘The Corso’ and deletion of a smoking area for patrons.

5 It is noted that the gaming facility must be operated within licensed premises and the proposal is for this part of the Commonwealth Bank that adjoins the current Ivanhoe Hotel to be operated as part of the Ivanhoe Hotel establishment and there is internal access from the Ivanhoe Hotel from its ground floor dining area. The Ivanhoe Hotel also operates over three levels, and a development application has been approved for certain alterations within the Ivanhoe Hotel itself. It is to operate as a dining pizza area on the ground floor. The first floor will also provide for dining facilities and there is a pool room at the rear of the Ivanhoe Hotel to Market Lane. On the second floor of the premises there is the opportunity for private functions to be held with a bar at that level and a terrace at the rear to Market Lane which is enclosed with a pergola.

6 The application before the Court is for the gaming room and toilets in that part of the premises to be converted from the Commonwealth Bank adjoining the Ivanhoe Hotel. The applicant has indicated that its preference is for the plan which would allow for part of the frontage to ‘The Corso’ to be utilised for a café/takeaway coffee shop with some seating and for a smoking terrace, whether that be setback with a water feature or planter but setback from ‘The Corso’ itself. Or there is an option that the smoking facility be immediately adjoined to ‘The Corso’.

7 The applicant has indicated that it does not consider it would be an appropriate option that the smoking facility located at the rear to Market Lane because of a number of conflicts with the management and operation of a smoking facility near the main toilet facilities for the ground floor operation of the hotel. The Court therefore would not impose a smoking facility at the rear which is not supported by the applicant because of security and operational issues and I must have regard to the applicant’s experience in terms of the operation of such premises.

8 The Court, however, does not support a smoking area directly onto ‘The Corso’. Whether it be setback by way of a water feature or a planter is immaterial, a smoking facility at the pedestrian level of ‘The Corso’ is not supported and it is also not consistent with an active street frontage.

9 The proposed option Exhibit J that has come forward this morning whilst it is not the applicant’s first preference, it is the applicant’s second preference in terms of the configuration to provide a gaming facility within the subject premises and also to provide for a café/coffee shop with a takeaway within the front of the premises to give the active street frontage and, an entrance to the gaming facility from ‘The Corso’. The gaming facility is also accessed through the adjoining existing Ivanhoe Hotel premises, which is required by law. The plan, Exhibit J, allows for the toilet facilities for the ground floor to then be self-contained within the rear part of the subject site to Market Lane without the conflict of locating a smoking area adjacent to same.

10 The Court this morning has looked at what opportunities there would be to provide some form of smoking area within the frontage to ‘The Corso’, however, I have concluded that it is inappropriate to provide for a smoking terrace at ground level to ‘The Corso’. It is clearly against the objectives of council’s policies or planning regime in terms of both an active street frontage and in terms of ‘The Corso’ being a smoke free public domain area.

11 I understand that this is not the applicant’s preferred position and that the applicant has expressed concerns to the Court about consistency of decision-making in terms of other premises being allowed to have smoking terraces to street frontages. The opportunities or constraints of this site are such that it is not appropriate to provide the smoking facility to ‘The Corso’ the main pedestrian thoroughfare from the ferry wharf on the Harbour to the Beach. The other establishment referred to in separate proceedings, did not allow the smoking terrace to ‘The Corso’ but in fact to an alternative street frontage.

12 The council originally came to the Court with consent orders and I note that the applicant has assisted the Court in trying to provide a number plans for alternatives to satisfy the concerns of the Court to arrive at an acceptable outcome. The council supports Exhibit J and does not consider that the other alternatives proposed would satisfy or meet its requirements in terms of its policies.

13 In my overall consideration though I am not persuaded that a smoking area/terrace to ‘The Corso’ is appropriate in the circumstances of this case and therefore frontage of the gaming room entrance and the coffee shop as shown in Exhibit J is approved by the Court today in these proceedings. Amended conditions have also been provided to reflect the amended plan in Exhibit J and they will be part of or attached to the consent issued by the Court.

14 Accordingly, the formal orders of the Court in these proceedings are:

1. The appeal in respect of the property known as 27- 35 ‘The Corso’ Manly is upheld

2. The development application submitted to Manly Council and as amended and shown exhibit J is approved subject to the conditions in Annexure 'A'.

3. The exhibits with the exception of Exhibit 6 and J are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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