Hilrok Properties Pty Ltd v Manly Council
[2006] NSWLEC 301
•05/01/2006
Land and Environment Court
of New South Wales
CITATION: Hilrok Properties Pty Ltd v Manly Council [2006] NSWLEC 301 PARTIES: APPLICANT
RESPONDENT
Hilrok Properties Pty Ltd
Manly CouncilFILE NUMBER(S): 11565 of 2005 CORAM: Bly C KEY ISSUES: Appeal :- Amendment of development application, hotel, number of patrons, hours of operation LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96
Manly Development Control PlanDATES OF HEARING: 01/05/2006 EX TEMPORE JUDGMENT DATE: 05/01/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr M McMahon, solicitor
SOLICITORS
M E McMahon & AssociatesRESPONDENT
Ms L Finn, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
1 May 2006
JUDGMENT11565 of 2005 Hilrok Properties Pty Ltd v Manly Council
This decision was given extemporaneously and has
been revised and edited prior to publication
1 On 8 July 2005 development consent was granted in relation to development application 92/05 for the carrying out of renovations to and the issue of an entertainment licence for the Ivanhoe Hotel at 27 The Corso, Manly. That consent is subject to a number of conditions including the following:
(9) The sale of takeaway food is to be limited to 9 pm each evening, after which time the food be available for sale only to customers dining within the premises.
(5) The maximum number of patrons permitted on the ground floor is limited to 250; and
2 On 15 August 2005 an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 was lodged with the council seeking amendments to these conditions such that the maximum number of patrons is 350, and the sale of takeaway food is extended until 3 am Monday to Saturday, and 12 midnight on Sundays.
3 On behalf of the applicant, Mr McMahon advised the Court that it would not object to a condition of consent in relation to the sale of takeaway food allowing sales to take place up until 1 am.
4 The site is situated in Zone 3, under Manly Development Control Plan (“the DCP”) for late night venues 2005. This DCP was adopted by the council on 19 December 2005. It applies to what it defines in an attached map as the “entertainment precinct” which includes the The Corso. The objectives of the DCP include the promotion of Manly as a safe place for the community, and the minimisation of disturbances late at night. The DCP relevantly controls the intensity of development and hours of operation. These controls apply to the entertainment precinct, and seek to limit the number of patrons capable of being accommodated within late night venues to 8,000 persons. The evidence indicates that this 8,000 persons’ threshold would not be reached by the proposal. The hours of operation controls in the DCP limit food outlets to 1 am.
5 The application was notified to the various precinct committees in Manly. One response was received from the Fairy Bower Precinct objecting to the proposal, but giving no reasons for this objection. At the beginning of the hearing on site, Mr Mathieson from the Little Manly precinct gave evidence that his committee objected to the sought changes to the conditions, citing a likely worsening of anti-social behaviour in the locality.
6 The council’s Development Assessment Unit (“the DAU”) reported on the application that in relation to patron numbers, it is acknowledged that the applicant has taken steps to control patrons within the premises and in the immediate surrounds. However, the proposal to increase the potential number of patrons is not considered justified at this point in time, particularly in view of the community concerns regarding public safety in The Corso precinct generally.
7 In relation to hours of operation for the sale of takeaway food, the DAU concluded that notwithstanding the permitted closing times of other premises in The Corso, and the availability of security arrangements, the proposal is not considered to be in the public interest, particularly in terms of the management of the public space.
8 The council refused the application on 25 January 2006 because the proposed modifications would result in adverse social impacts, and would not be in the public interest.
9 Accompanying the Class 1 application was a report in the form of a letter dated 15 August 2005, prepared by Mr J Lovell, a consultant town planner engaged by the applicant. In response to this report the respondent had a report prepared by Mr E Armstrong, a consultant town planner. Mr Lovell and Mr Armstrong subsequently prepared a joint report at the direction of the Court. They agreed that the takeaway food shop could trade internally whenever the hotel is trading.
10 Despite the applicant agreeing that the takeaway food shop could cease trading externally at 1 am in accordance with the DCP, Mr Armstrong continued to be of the view that it should close at 11 pm. This is because opening later than 11 pm is likely to create crowds at this end of The Corso where behaviour will be disruptive to the general public, and will adversely affect the amenity of residents living nearby. He stressed that late night fast food outlets tend to encourage the congregation in The Corso of patrons from late night venues, where those venues have closed, and where those patrons might otherwise depart from the locality.
11 Conversely Mr Lovell stressed that the DCP clearly anticipates food outlets being open until 1 am. It does not seek to distinguish between this end of The Corso and the north-eastern end, which is well known as an area where there are significant occurrences of anti-social behaviour including assaults. He pointed out that this hotel is well recognised for its good management, and this management would ensure that the sale of takeaway food, would not result in any unreasonable level of anti-social behaviour.
12 In my view the conservative approach advocated by Mr Armstrong, and indeed that of the council, is appropriate, notwithstanding that the DCP anticipates facilities of the kind here proposed operating until 1 am. I accept that anti social behaviour is not likely to be the norm, and that the sale of takeaway food from this hotel in this location will not, on the whole, directly result in such behaviour. I am nevertheless concerned by the evidence that the late night and early hours in the morning opening of such premises has in the past and not very far away from this site, generated anti social behaviour.
13 I have therefore decided that Condition 9 should be amended to require that the sale of takeaway food be limited to 11 pm each evening. Despite this, it may be that the concerns regarding the anti-social behaviour occurring nearby may not necessarily occur as a consequence of this proposal. Hence I have decided that a one year trial period be made available to the applicant for opening until 1 am and 12 midnight on Sundays. I have reached this conclusion, particularly taking into account the 1 am closing time indicated in the DCP and the existence of other very late opening takeaway premises within the entertainment precinct.
14 Should the trial be successful in terms of there being little or no anti-social behaviour in the vicinity of the premises that can be reasonably attributed to these premises, an application can be made for an amendment to the condition. I invite the council to prepare an appropriate condition to this effect.
15 In relation to the maximum number of patrons, allowable on the ground floor of the premises, Mr Armstrong was not concerned that the additional 100 people would be likely to result in any anti-social behaviour or amenity impacts on The Corso. He was however concerned that 350 people would be too many for the ground floor area of approximately 190 sq m, notwithstanding that this was in the order of the density anticipated in the BCA for such premises. He explained that taking into account the layout of the premises, including the provision of seating, there would be overcrowding with consequential inappropriate behaviour and associated impacts. He also said that this overcrowding would result in an inability to have effective on-site management, including the responsible service of alcohol.
16 Conversely, Mr Lovell believed that the use of this floor of the hotel with up to 350 people therein, would be able to be effectively controlled in accordance with the plan of management which incorporates hotel staff, security staff and CCTV.
17 Taking into account the present capacity of the ground floor and the design of the floor, including the removal of the poker machine room and the need for circulation space, including internal access to the takeaway food facility, and to the stairs to the basement and first floor, and the notional capacity indicated by the BCA, I accept that the ground floor could accommodate more than the 250 patrons recommended by the council, but not the 350 sought by the applicant. In these circumstances, it seems to me that the maximum number of patrons for the ground floor could be set at 300. Condition 5 will therefore be amended to this effect.
18 Therefore the orders of the Court are:
- 1. The appeal is upheld.
2. Condition 5 of the Development Consent dated 8 July 2005 issued by Manly Council to Development Application DA92/05 for modification works at 27 The Corso, Manly, is amended by deleting the figure 250 and by inserting in lieu thereof, the figure 300.
3. Condition 9 of the consent is amended by deleting “9 pm” and inserting in lieu thereof “11 pm”. That condition is also amended by the addition of the following words:
- ”The 11 pm time limit is extended for a trial period of twelve months: on Sunday night to midnight; and to 1am on other nights. The trial period is to commence on the date upon which the first takeaway food is sold.”
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T A Bly
Commissioner of the Court
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