Hot House Studio v Northern Beaches Council

[2020] NSWLEC 1134

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hot House Studio v Northern Beaches Council [2020] NSWLEC 1134
Hearing dates:	25 February 2020; 10 March 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders that: (1) Leave is granted for the applicant to amend the application to confine it to extending operating hours of the existing alfresco area and for it to be submitted under s 4.55(2) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Modification Application MOD2018/0209 to modify Development Consent N1044/99, as amended, to extend the operating hours of the alfresco area of the Palm Beach Golf Club clubhouse at 2 Beach Road, Palm Beach is approved subject to the conditions in Annexure “A”. (4) The exhibits are returned other than Exhibits 1, B, C and N.
Catchwords:	MODIFICATION APPLICATION: extension to operating hours of Palm Beach Golf Club alfresco area – Club has existing use rights – noise impacts for neighbours – compliance with the Industrial Noise Policy – whether assessment and conditions should apply to entire clubhouse and what conditions should apply – objections and support from neighbouring properties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Liquor Act 2007 Pittwater Local Environmental Plan 2014 Protection of the Environment Operations Act 1997
Category:	Principal judgment
Parties:	Hot House Studio (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant) R O’Gorman-Hughes (Respondent)   Solicitors: Shaw Reynolds Lawyers (Applicant) Northern Beaches Council (Respondent)
File Number(s):	2018/363596
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings concern an appeal by Hot House Studio (the applicant), engaged by the Palm Beach Golf Club, lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The appeal is against the refusal by the Northern Beaches Council (the Council) of Modification Application MOD2018/0209 (the application).

Background

2. The Palm Beach Golf Club (the Club) has been in existence for many years and comprises the golf course and pro shop opposite a 2 storey clubhouse which is located at 2 Beach Road, Palm Beach (the site).

3. The clubhouse has been and continues to be, used by both Club members and, under management by the Club, the general public as a venue for weddings and entertainment, including live band events in the first floor function area. The use of the clubhouse is not subject to any development consents, other than a consent issued for upgrades in 2001 modified in 2017.

4. In this regard, in April 2001, the Council granted approval to development application N1044/99 for alterations and additions to the clubhouse (the original consent). The original consent permitted modifications at both levels of the clubhouse. The Council records indicate that existing use rights for the clubhouse were established at that time having regard to the provisions of (now) sections 4.65 to 4.67 of the EPA Act.

5. Condition D232 of the original consent stated:

“No noise nuisance shall be caused through the operation of any plant or equipment at the premises. Noise is considered a nuisance when it exceeds 5dB(A) above the background noise level.”

6. No other conditions associated with the use of the clubhouse, or managing noise impacts from its operations, were imposed.

7. The Club subsequently undertook changes, without consent, to the garden area in front of the clubhouse to install paving, a wooden terrace and formalised seating. This area, referred to in the proceedings as the ‘alfresco area’, was then used, in conjunction with a temporary bar at ground floor level, as an additional area for entertainment including live music.

8. In March, 2017, the residents of 3 Waratah Road, Palm Beach lodged a disturbance complaint, supported by three other Waratah Road residents, associated with the use of the clubhouse under the Liquor Act 2007 (the Liquor Act). The complaint was lodged with the Liquor & Gaming division of the NSW Department of Industry (L&GNSW).

9. The complaint detailed 16 specific instances of disturbances (including dates, times and descriptions of the event) occurring at the venue. The complaint was that the disturbances occurred on Friday and Saturday nights (every 2 to 3 weeks) and on Sunday afternoons from the alfresco area. The complainant sought the venue to take action to mitigate disturbance by installing soundproofing to the areas where live entertainment is provided, complying with noise restrictions, and prohibiting entertainment in the alfresco area.

10. In November 2017, the Club lodged Modification Application N1044/99/S96/1 to formalise the works undertaken within, and use of, the alfresco area.

11. The application was opposed by the residents of 3 Waratah Road but was granted consent by the Council. However, due to an error in the assessment of that Modification Application, a revised Modification Application (N1044/99/S96/2) was required to be lodged which was approved in December 2017 (the current consent).

12. Conditions in the current consent limit the number of patrons using the alfresco area, also referred to as a ‘beer garden’, to 50 (condition D234) whilst condition D232 of the original consent remains. Further, condition D236 states:

“This consent does not authorise the use of the timber deck and sandstone paving area at the ground floor for the purposes of live entertainment, including the use of amplified music. A separate application is to be lodged with Council should the area adjoining Beach Road be proposed for live entertainment.”

13. Condition D237 requires a complaints register to be kept on the premises and an individual available for contact at all times should a complaint be received.

14. Through conditions D238 and D239, the hours of operation of the temporary bar and alfresco area are restricted to between 12pm and 5pm Saturday and Sunday with the alfresco area not to be used at any other time.

15. Condition D240 requires that the ongoing use of the premises/property not give rise to ‘offensive noise’ as defined under the provisions of the Protection of the Environment Operations Act 1997 (the POEO Act). The reason given is to ensure compliance with legislation and to protect public health and amenity.

16. Further condition D241 states as follows:

“Noise associated with the premises must comply with the below:

(a) The LA10, 15 minute noise level emitted from the use must not exceed the background noise level (LA90 15minute) in any Octave Band Centre Frequency (31.5 Hz to 8kHz inclusive) by more than 5dB between the hours of 1pm and 4pm on Saturday and Sunday when assessed at the boundary of any affected residence.”

17. Although referring to noise associated with the premises, the compliance requirements of condition D241 only relate to the hours of operation of the alfresco area.

18. The reason given for this condition is to minimise noise disturbance to neighbouring residential properties whilst a note to the condition states that the hours of business operation/entertainment (are) restricted to those shown elsewhere in the consent.

19. Condition D242 requires compliance with the noise assessment recommendations contained in an August 2017 acoustics report, excluding noise barriers and any live entertainment and amplified music which are not authorised by the consent.

20. Condition D243 requires certification by a suitably qualified person that the above measures, including a Noise Management Plan, which includes the acoustic report mechanisms to deal with any complaints or noisy patrons, are in place and available to staff or the Council or the police onsite, prior to trading.

21. No other conditions are included in terms of restricting noise emissions from, or use or hours of, or patron numbers in, other areas of the clubhouse.

22. In terms of the filed March 2017 noise complaint, between July 2017 and February 2018, L&GNSW considered various submissions lodged by both the resident and the Club in response to this complaint.

23. A decision was then issued by L&GNSW under s 81 of the Liquor Act on 28 April 2018 comprising a warning to the Club that the Club secretary must ensure no future undue disturbance is caused by live entertainment in the alfresco area.

24. L&GNSW noted in their decision that the Club had, since the complaint was filed, implemented a range of measures to control disturbance. This included engaging with the police, the Council and the complainant, constructing a fixed wall on the balcony to mitigate noise (on the Barrenjoey Road side), ceasing live entertainment in the alfresco area as of 30 July 2017, and undertaking to implement recommendations made in the noise assessment report should entertainment in the alfresco area recommence.

The proposed modification application

25. On 27 April 2018, the current modification application was lodged with the Council. As lodged, the application proposed to amend the conditions of the current consent as follows:

1. To modify condition D234 to increase the number of patrons permitted in the alfresco area from 50 to 120; and

2. To modify conditions D238 and D239 to extend the hours of operation of the temporary bar and alfresco area to 10am to 10pm, 7 days a week.

26. An acoustic report by Noise and Sound Services dated April 2018 was included with the application to address the noise impacts associated with the proposed modifications.

27. The application was notified to 44 adjoining and surrounding landowners. One objection was received in response, from the residents of 3 Waratah Road, again raising concerns with the noise impacts associated with the change of hours of the alfresco area and enclosing details of the complaint to L&GNSW, including their diary of the various disturbances over several years preceding that complaint.

28. The primary grounds for the objection were that increasing the number of patrons from 50 to 120 in the alfresco area would substantially increase the level of noise emitted from the alfresco area to a level far higher than what is reasonable. An increase of 140% of patron numbers would also potentially increase risks from excess alcohol consumption. Further, extending the operating hours for the alfresco area and temporary bar to between 10am and 10pm would substantially extend the level of noise emitted from the area and the potential patron disturbance risk 7 days a week. If the application was approved, the Club could potentially have 120 patrons drinking from their temporary bar in the alfresco area for 12 hours a day every day. This would turn the Club into a pub with increased noise levels and more patrons consuming alcohol over an extended period, which the residents of Palm Beach did not want and which would have adverse impacts on the residents of neighbouring properties.

29. In May 2018, the application was modified to reduce the proposed hours of operation of the alfresco area to 10am to 6pm Australian Eastern Standard Time (AEST) and 10am to 8.30pm Australian Eastern Daylight Time (AEDT); in essence, to daylight hours.

30. Following the termination of conciliation held under s 34 of the Land and Environment Court Act 1979, the application was further amended to not increase patron numbers and to restrict Sunday operating hours to 10am to 7pm. An updated acoustic report was provided in November 2018, which also proposed the provision of an acoustic screen on the eastern edge of the alfresco area. No music was to be played in the alfresco area and there were no proposed changes to any other aspect of the operations of the clubhouse.

31. In June 2018, the application was refused and the appeal lodged.

32. A Statement of Facts and Contentions (SFC) was filed with the Council in response to the appeal (Exhibit 1).

33. The first of only two contentions raised by the Council was that the application was inconsistent with the provisions of s 4.55(1A) of the EPA Act which require that the impacts associated with a modification are minor.

34. Albeit this was disputed by the applicant, to resolve this contention, Leave was subsequently sought by the applicant, and granted, to amend the application so that it was made under s 4.55(2), as sought by the Council; the relevant provisions of that section being as follows:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be…

35. The following provisions at s 4.55(3) were also agreed to be relevant noting that s 4.15(1) of the EPA Act contains matters for evaluation by a consent authority in assessing such applications:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

36. The Council did not contend that the development was not substantially the same as the approved development and confirmed that the modification application had been notified as required.

37. During the proceedings, it was agreed that the reference to the consent that is sought to be modified should consider any relevant aspect of the original consent in 2001 but also needs to relate specifically to the modification of that consent in 2017, as it was only the 2017 modification which approved the alfresco area, and which introduced the conditions in the current consent relating to the alfresco area, now sought to be modified.

38. The second, and only other, contention was that the modification sought was inconsistent with section C2.10 Pollution Control of the Pittwater 21 Development Control Plan 2014 (the DCP). In particular, that the noise assessment was inadequate in terms of assessing potential noise impacts on neighbouring residents, and the mitigation measures unacceptable.

39. Section C2.10, as relevant, is as follows:

“C2.10 Pollution Control

Land to which this control applies

All land in the Pittwater LGA including the Pittwater waterway but NOT including Elanora Heights Village Centre - P21DCP-BCMDCP93

Uses to which this control applies

Business Development

Occupation/change of use of an existing premises

Rural industry

Shop top housing

Outcomes

Development does not adversely impact public health, the environment or other lands. (S, E)

Controls

All developments must be designed, constructed, maintained, and operated in a proper and efficient manner to prevent air, water, noise or land pollution.Development and business operation must comply with the Protection of the Environment Operations Act 1997, and any relevant legislation.

Compliance with the NSW Environment Protection Authority Industrial Noise Policy (January 2000).

Variations

Nil

Advisory Notes

…”

40. It was only the second contention which was the subject of expert evidence and the basis on which the Council contended the modification application, as amended, could be approved, but only with new conditions sought by the Council but opposed by the applicant.

41. In essence, the only issue between the parties was whether or not the noise assessment, and any proposed conditions of consent for the modification sought, should relate to only the alfresco area or to the whole of the clubhouse.

Other statutory considerations

42. The site is zoned E4 Environmental Living under the provisions of the Pittwater Local Environmental Plan 2014 (the LEP) where the use of registered clubs is not permissible. However, the Club has existing use rights under the provisions of the EPA Act.

43. The objectives of the E4 zone in the LEP are as follows:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To provide for residential development of a low density and scale integrated with the landform and landscape.

• To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

44. The requirement for consent for existing uses is dealt with at Part 5 of the Environmental Planning and Assessment Regulation 2000 (the Regulations). At cll 41 and 42 of the Regulations, an existing use may be enlarged, expanded or intensified. However, consent is required for any such enlargement, expansion or intensification.

45. The Council submitted that what was proposed was an intensification of the use. In any event, it was agreed that the relevant provisions of s 4.15 and s 4.55 of the EPA Act need to be met in order for consent to be granted.

The evidence

46. Expert evidence was confined to that of the acoustic experts and related solely to potential noise impacts and appropriate conditions of any consent granted. The evidence was provided by Mr Scannell for the applicant and Mr Gross for the Council.

47. Mr Scannell had undertaken background noise measurements and prepared the acoustic reports to support the application. Mr Gross had reviewed these reports and had also undertaken short-term background noise measurements.

The first joint Expert Report

48. A joint Expert Report was filed by the acoustic experts prior to the proceedings commencing (Exhibit G). In it, the experts disagreed on the way to approach the assessment of potential noise impacts.

49. In summary, Mr Scannell considered it should only address the extended hours of use of the alfresco area. He was also of the understanding that, by allowing the increased use of the alfresco area, there would be a reduction in the number of patrons in the upstairs areas, particularly on the existing first floor balcony.

50. He argued that the only legal requirement for noise pollution compliance in NSW is contained in the POEO Act and relates to ‘offensive noise’, defined as noise:

(a) that, by reason is of its level, nature, character or quality, or the time at which it is made, or other circumstances–

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time or in other circumstances, prescribed by the regulations.

51. As the amended application involves no increase in the overall number of patrons, extended hours, or footprint, Mr Scannell considered that there will be minimal noise impact, and that offensive noise will not result from the proposed extended hours of use of the alfresco area. In fact, if a number of patrons move from the open first floor balcony to the alfresco area, the noise level would be reduced at the nearest neighbouring residential premises. This is because the nearest point of the alfresco area is further away from that premises than the nearest point of the open first floor balcony.

52. Nevertheless, the Club had agreed to construct a noise barrier between the alfresco area and the nearest neighbouring premises which will reduce the noise level still further.

53. Mr Scannell also noted that the Club has a licence to operate which does not include any noise limits. Further, L&GNSW do not provide any noise criteria on their current website but it does state, in terms of neighbourhood disturbances, as follows:

“It’s reasonable to expect some level of noise or activity from licensed venues due to people arriving and leaving, or in the general operation of the venue. A disturbance is likely to be one of two things, or both: 1 excessive noise – from activities inside the venue or people leaving the venue and 2. anti-social behaviour from people leaving the venue – littering, damage to property, or alcohol- related violence”.

54. He considered that disturbances relating to either of these scenarios (or any other scenarios) highly unlikely associated with the proposed extended hours of use of the alfresco area. Further, the Club will provide security, a Noise Management Plan and a community consolation program to ensure this type of excessive noise or anti-social activity does not occur at any time.

55. However, Mr Gross considered Mr Scannell’s approach flawed as it relied on the assumption that patron numbers in the two outdoor areas won’t increase.

56. When the clubhouse is not operating beyond the capacity of the first floor balcony, and patrons can choose to be on the first floor balcony or the ground floor alfresco area, he agreed with Mr Scannell regarding a reduction in noise. However, if the first floor balcony is at capacity, those wanting to eat or drink outside may use the alfresco area, thus increasing the total number of patrons outside to whatever number can be typically accommodated on the first floor balcony (approximately 100) plus a further 50 in the alfresco area.

57. Mr Scannell considered this an extreme hypothetical scenario which will not occur in practice. He advised that the typical, realistic scenarios will be:

1. approximately 10 people in the alfresco area having a quiet drink and talk. This will be inaudible at all neighbouring residential premises; and

2. busy times with up to 25 in the alfresco area which may be just audible at the closest neighbouring residential premises but of minimal noise impact.

58. As the application proposed up to 50 patrons in the alfresco area, Mr Gross considered it necessary to assume these patron numbers, even if they only occur a few times per year. However, he accepted that lower noise levels will be generated on a more regular basis with fewer patrons and also that patron numbers are likely to be lower in the winter than summer months. He would therefore accept some limitation on the number of times the realistic numbers expected could be exceeded, but this is likely to be only a few times a year. He sought conditions of consent which manage total patron numbers including in the alfresco area and on the first floor balcony.

59. In summary, Mr Gross believed it necessary to consider existing consent conditions dealing with noise, the background noise levels at residences affected by the premises, what criteria should apply to the whole clubhouse, determining whether the current operations comply with those criteria, predicting the likely noise levels as a result of the proposal, the cumulative emissions from both existing and proposed operations, and mitigation and management measures to minimise noise from both existing and proposed operations. The application provides an opportunity to reduce noise emissions and impose appropriate consent conditions relating to the whole clubhouse, with a beneficial outcome.

60. He was critical that there was insufficient collection of background noise levels during the summer and particularly the peak holiday period, to confidently set noise criteria at the time the Club was most likely to be busiest. In this regard, the experts did agree that there will be different background noise levels at different times, acknowledging the area is busier in summer than winter, generally busier on weekends than weekdays, and busiest during the summer school holidays. It was appropriate that background noise levels reflect these different periods.

61. However, Mr Scannell disagreed with the cumulative approach as the proposed modification involves only changes to the hours of operation of the alfresco area. If genuine noise complaints arise concerning the use of the first floor balcony and bar areas, and if the current operations of the premises do not achieve appropriate noise criteria, this should be addressed separately and not at the time of a minor modification, such as that now before the Court.

62. The experts did agree that there are several residential receivers to the east, west and south of the premises. Further, that the residence to the east (3 Beach Road) is the most affected dwelling and compliance at this receiver is expected to result in compliance at all other receivers, or dwellings. (This would include at 3 Waratah Road).

63. Both experts noted that L&GNSW have standard criteria which require the L10 noise level from licensed premises not to exceed the background level by more than 5dB when assessed in Octave Bands. However, Mr Scannell noted that these criteria are no longer published on the agency’s website, that Octave Bands are only useful for amplified music assessments, and that L10 is not a practical descriptor in this instance as it is not relevant to the proposed modification.

64. Mr Gross argued that these criteria are still applied to licensed premises and exist as consent conditions on numerous venues. The current consent, at condition D241, also already reflects the requirement to assess the L10 in Octave Bands, albeit in a limited time period when the alfresco area is being used.

65. However, Mr Scannell considered that this condition had been incorrectly set by the Council, given there is no amplified music, and is not relevant to the proposed modification. His preference was to use the overall A-weighted level and LAeq.

66. Mr Goss accepted that, since the cumulative use with the alfresco area is limited until 8.30pm, achieving LAeq of background + 5dB would not result in unacceptable impacts.

67. However, he considered that, whatever noise criteria applied, it should apply to all noise emissions from the premises, not just the alfresco area. Looking at cumulative impacts, Mr Gross’s calculations indicated exceedance of the winter background + 5dB criteria with 100 patrons on the first floor balcony consuming alcohol. This number of patrons was based on the available size of the first floor balcony and the number of patrons it could comfortably accommodate, assuming 200 people were also inside upstairs (so 300 patrons in total upstairs), rather than using specific patron numbers provided by the Club for typical usage at various times.

68. Adopting a much higher background level for a summer month, the exceedance was even greater. These exceedances were significant. With only half the patron numbers assumed, and with a normal voice effort rather than a raised voice, the criterion would be met for LAeq but would still exceed L10 in Octave Bands by 6dB. The exceedences were with just 50 patrons in the alfresco area consuming alcohol and with the screen in place.

69. However, given the high noise levels from the existing first floor balcony, when it is busy (100 patrons), his assessment was that there would be no measurable increase in noise at 3 Beach Road associated with the simultaneous use of the alfresco area for up to 50 people. Mr Scannell agreed.

70. Mr Gross then nominated patron numbers for both the first floor balcony and the alfresco area at different time periods which he considered would not result in unacceptable noise impacts to neighbours based on the likely typical use of the clubhouse at various times of the day and year and with assumptions regarding background noise levels. These maximums were, for the first floor balcony, between 75 and 100 patrons and, for the alfresco area, between 30 and 50 patrons when the alfresco is operating. These assume however, that a screen is installed on the eastern end of the first floor balcony and that doors from the function room to that balcony remain closed when amplified music is playing.

71. Mr Scannell maintained that any noise from the first floor is not relevant to the proposed modification. However, he agreed with Mr Gross that enclosing the eastern end of the first floor balcony with a solid screen would reduce the existing noise egress and assist with controlling patron numbers on that balcony.

72. Both experts agreed that the proposed ground floor acoustic screen is required between the building façade and the front boundary (in a similar position to the existing signage) to reduce noise levels from the alfresco area to the residence to the east.

The supplementary individual Expert Report

73. In response to the criticisms raised by Mr Gross in the joint Expert Report (Exhibit G), a supplementary individual Expert Report was subsequently filed by Mr Scannell (Exhibit J). The report comprised a letter dated 20 February 2020 in which Mr Scannell advised that further background noise monitoring was carried out during the summer months from the rear yard of 3 Beach Road.

74. An updated model was used to predict typical worst case scenario noise levels in 15 minute intervals for a summer day, a summer evening, winter day and winter evening at the front boundary of 3 Beach Road with 50 people in the alfresco area, noting this was unlikely to occur more than 5 days a year.

75. The analysis concluded that the findings were unchanged from previous reports with a maximum level of 53dB(A) at this location and, with the acoustic barrier/screen, 45dB(A). The most affected position of 3 Beach Road, being where residents are likely to use their outdoor area, has a predicted noise level not more than 35dB(A). For the ‘more typical’ maximum of 30 people, the predicted level at the boundary with the screen was 44dB(A).

The onsite view and evidence

76. Noting this additional report findings, at the commencement of the hearing the Court, the parties and the acoustic experts viewed the site and surrounding residential dwellings, including the location of the objector’s residence in Waratah Road. No objectors were in attendance to give evidence.

77. However, the Court heard from the nearest adjoining residential neighbour at 3 Beach Road, Mr O’Brien, who supported the application. Mr O’Brien submitted a letter (Exhibit A) and provided oral evidence to this effect. In essence, he stated that he had lived next door to the Club for 13 years, the Club had never been a source of noise or hindrance and he had never complained about its operations, and he would not like to see a solid wall along the boundary in order to reduce noise. Further, having the alfresco area available more often would enable him to use the facility more as he was disabled (in a wheelchair) and therefore unable to readily access the upstairs facilities. He enjoyed listening to the music from the venue and the social interaction of seeing patrons visiting and using the Club.

78. The Court and the parties then inspected the clubhouse and heard from the Club’s General Manager, Ms Fitzgerald. Ms Fitzgerald advised that disabled and elderly patrons of the Club have limited accessibility and rely on, and would utilise, the alfresco area which the Club would like to market to the local elderly community for use during weekdays. The Club was also establishing a programme for disabled golfers and had lodged a grant application for funds to assist with upgrading facilities, including to provide a disabled lift.

79. The Club also hosted a number of weddings, approximately 1 per month, where guests had exclusive use of the clubhouse. It would improve the experience to allow guests use of the alfresco area for drinks before moving upstairs to the dining area, as currently occurred on the weekends when the alfresco area was allowed to be used. The balance of the clubhouse facilities, in particular the upstairs area, was used for functions including band nights and trivia and comedy nights but any live entertainment did not start before 8.30pm. There are no current regulatory controls over patron numbers or operating hours for these activities and they are an important source of income for the Club.

80. She did not consider that the alfresco area would be an attractive location for weddings given its limited space. She also advised that weddings were not as large as they used to be, being typically around 70 guests. She thought the clubhouse had a maximum capacity of 280 patrons but the most they ever have is around 220 upstairs, one night a year for their most popular band. Finally, there would be no live music during the day when the alfresco area was open.

Additional joint Expert Report and oral evidence

81. Following the site view, the acoustic experts filed a further brief joint Expert Report (Exhibit 5). In it, they agreed as follows:

1. Background level of 40dB(A) should be adopted and therefore a criterion of 45dB(A) (equating to background +5dB(A));

2. There will be a range of patron noise levels subject to patron numbers and vocal effort;

3. Based on historical patron numbers in the alfresco area, for the majority of times the noise criteria will be achieved;

4. However at the capacity of 50 patrons, and with higher vocal effort, the noise criteria will be exceeded;

5. It would be preferable for the alfresco area to be limited to 30 patrons, with an allowance of 50 patrons for a limited number of days per year; and.

6. If cumulative noise from the balcony is considered then, because it is closer, unscreened, and can accommodate more people, the noise criterion would be exceeded.

82. Oral evidence was given with regard to the NSW Industrial Noise Policy 2000 (the INP) referenced in the DCP albeit this is now superseded (Exhibit K). The noise sources which the INP deals with include commercial premises (p2).

83. The applicant referenced the statement at section 1.4.7 of the INP in setting noise limits in consents as follows (Exhibit K p6):

“In setting noise limits, the regulatory/consent authorities need to consider the technical practicalities of mitigation, the amount of noise reduction provided, community views, benefits arising from the development and cost of achieving the project-specific noise levels recommended here, along with the environmental consequences of exceeding the project-specific noise levels. It is important that the project-specific noise levels are not automatically interpreted as conditions for consent, without consideration of the other factors…”

84. The experts considered the recommended noise level criteria in the INP for premises impacting on residences as set out in Table 21, and agreed that the area was ‘suburban’ in terms of the ‘Indicative Noise Amenity Area’. The criteria are therefore as outlined in the following extract from Table 21:

85. In terms of the ‘Time of Day’ referenced in the table, ‘day’ was from 7am to 6pm Monday to Saturday and 8am to 6pm on Sunday and public holidays, ‘evening’ was from 6pm to 10pm, and ‘night’ the remaining periods.

86. The Court was advised that there had been no complaints made to the Council about the noise from the Club in the last 12 months and the Club had implemented measures to minimise noise impacts to neighbours as outlined in the summary of the 2017 L&GNSW investigation.

87. However, Mr Gross remained concerned that the current operation of the clubhouse, namely the upstairs balcony area at capacity, would already exceed required noise limits and the additional use of the alfresco area would compound this. He did accept that, for the majority of times there would likely be less than 50 patrons in the alfresco area, and even with 50 patrons a few times a year that would be acceptable but daily would be unacceptable. At 30 patrons generating less noise, and with the ground level screen installed at 1.8m as proposed, the use of this area would comply with noise limits.

Conditions of consent

88. Conditions of consent to the modification application were subsequently filed with the Court in which the applicant agreed to limit the number of patrons in the alfresco area at all times to 30 other than up to 26 times per year, primarily to accommodate weddings.

89. However, the applicant continued to oppose any controls over the balance of the operations of the clubhouse.

90. The parties agreed to delete obsolete conditions referring to compliance with old acoustic assessments (conditions D242 and D243) and to current patron numbers and operating hours for the alfresco area (conditions D234, D238 and D239).

91. The parties also agreed to new conditions requiring installation of the acoustic screen on the ground floor adjoining the boundary to 3 Beach Road (condition D254) and to require a Noise Management Plan reflecting the latest acoustic report (condition D243). A 12-month trial period for the extended operating hours of the alfresco area was also agreed (condition D251) but the applicant disagreed with the Council’s proposed wording that the trial period should apply to the whole clubhouse.

92. In total, five conditions were in dispute between the parties. In essence they primarily related to whether or not conditions should be imposed only on the alfresco area or should apply to the clubhouse generally. In addition to the disagreement in regard to confining the trial period to the alfresco area, the parties disagreed in terms of the whether compliance should be to dB(A) limits set by the INP, as sought by the applicant, or to Octave Band Centre Frequency, as sought by the Council at condition D241, and whether compliance with these limits should be required for the alfresco area only or for the entire clubhouse.

93. As proposed by the Council, condition D241 would read as follows:

“D241. Noise associated with the premises must comply with the below:

(a) The LA10,15minute noise level emitted from the use must not exceed the background noise level (LA90,15minute) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 5dB at all times *when assessed at the boundary of any affected residence.

Note:  Hours of business operation/entertainment restricted to those shown elsewhere in this consent.

For the purpose of this condition during the hours of operation of the alfresco area, the following LA10,15 minute limits apply:

Reason: To minimise noise disturbance to neighbouring residential properties.”

94. As proposed by the applicant, condition D241 would read as follows:

“D241. Noise associated with the alfresco area must comply with the below:

(a) The LAeq noise level emitted from the use must not exceed a maximum of 60dB(A) during the day, 50dB(A) during the evening and 45dB(A) at night when assessed at the boundary of any affected residence.

Note:  Hours of business operation/entertainment restricted to those shown elsewhere in this consent.

For the purposes of this condition time of day means:

Day: the period from 7:00 am to 6:00 pm Monday to Saturday; or 8:00 am to 6:00 pm on Sundays and public holidays

Evening: the period from 6:00 pm to 10:00 pm

Night: the remaining periods.

Reason: To minimise noise disturbance to neighbouring residential properties.”

95. Mr Gross opposed using the dB(A) limits in the INP in the condition as the clubhouse is a licensed premises, albeit he accepted dB(A) limits were widely used to control noise emissions other than for licensed premises and that the alfresco area would meet the maximum dB(A)’s in Table 21 of the INP.

96. The disagreement with the new proposed condition D250 was whether summer trading, other than during the December and January school holidays, should be until 8pm or 8.30pm. The Council also sought to limit numbers on the first floor balcony to 100 patrons, whereas the applicant opposed any patron limits other than in the alfresco area. The Council also sought to be notified in advance when up to 50 patrons were proposed to be allowed in the alfresco area.

97. Finally, the applicant opposed a condition seeking to close doors to the upper level balcony when there was amplified music (condition D252) and to require installation of an acoustic screen at the first floor level (condition D253), arguing that these conditions were unrelated to the modification sought in the application. However, the applicant did agree to limit the use of the first floor balcony for amplified music, at condition D252, being the same prohibition as for the alfresco area.

Submissions

The applicant’s submissions

98. Dr Smith, counsel for the applicant, submitted that the proposed modification to the approved alfresco area complied with the requirements of section C2.10 of the DCP with the use defined as ‘business development’. It also met the requirements of the INP at Table 2.1, albeit the reference in the DCP was to a superseded version of that document.

99. Specifically, in terms of the controls at section 2.10, the alfresco area would continue to be designed, constructed, maintained and operated in a proper and efficient manner to prevent noise pollution. It would also comply with the requirements of the POEO Act and other relevant legislation and met the only numerical controls referenced in section C2.10 being extracted from the INP.

100. The applicant did not rely on s 4.15(3A) of the EPA Act, being the flexibility to vary provisions of the DCP, on the basis of a modification application not being a development application. However, regard should be had to the decision of the Court in Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167.

101. That decision was that, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. In this regard, the provisions of the DCP are to be considered as a fundamental element in, or focal point to, the decision-making process particularly if there are no issues relating to compliance with the LEP. The provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. Therefore, the Council should not require something more onerous than the standard set by the DCP.

102. In terms of meeting noise pollution requirements, the proposed conditions will ensure this occurs. In particular: the INP standards have been incorporated into the applicant’s proposed wording of condition D241; there is a requirement for preparation of a Noise Management Plan at condition D243; patron numbers in the alfresco area are reduced from an existing approved 50 to a maximum of 30 on the basis of the advice of the acoustic experts, other than 26 times a year when up to 50 patrons are permitted (condition D250); there will continue to not be any amplified music in the alfresco area (condition D252); and, the proposed conditions will ensure that noise pollution requirements are met.

103. Specifying a noise limit for the alfresco area based on Octave Band Centre Frequency, as sought by the Council at condition D241, was not appropriate as, although the Club was a licensed premises, live or amplified music was prohibited in the alfresco area, the use of which was all that was sought to be modified. There was no reference to using this control in the INP which the DCP requires compliance with. Further, it could never be measured and therefore it would be beyond the power of the Court to impose.

104. Instead, the application proposed the noise limits set out in the INP for the various times of the day in which the alfresco area operates. Both acoustic experts agreed the use of the alfresco area would comply with these controls.

105. In addition, there is a proposed acoustic screen to be installed on the ground floor at condition D254, which the applicant is offering to do, albeit the current alfresco area can operate at 50 patrons without the screen.

106. The applicant also agreed to a 12 month trial period to ensure that, if amended in accordance with the modification application, the operation of the alfresco area would meet required conditions in terms of noise impacts.

107. A review of the Club’s incident register (Exhibit M) demonstrated that there had been no complaints in the last 12 months and indeed since the cessation of live music in the alfresco area and following the L&GNSW 2017 investigation, with the Club adhering to the recommendations arising from that investigation. Further, the most affected residential neighbour supported the modification application and no objectors gave evidence at the hearing.

108. Finally, the parties acknowledged that the upper balcony is currently used with no restriction on patron numbers and the only restriction on patron numbers is for the alfresco area, which the applicant has agreed to reduce half the time. The acoustic experts also agreed that the alfresco area would contribute no measurable increase in noise when the first floor balcony was used in accordance with current approvals.

109. Further, it would be difficult for the Club to install a screen on the first floor balcony and it would be difficult to control and manage the use of this area.

110. The evidence of the Club’s General Manager (Exhibit 4) was that the primary purpose of the modification was to permit the use of the alfresco area for disabled and less mobile customers who presently have to be turned away during the week when the alfresco area is closed.

111. In conclusion, the Court could therefore be confident that the impacts of the modified development will be acceptable and will be appropriately managed through the conditions and, importantly, the trial period.

112. Finally, if the Court imposes the conditions sought by the Council, the applicant would prefer a refusal, or would simply not take up the approval and will continue to operate as it currently operates with a higher number of patrons permitted in the alfresco area and no acoustic screen.

The Council’s submissions

113. Mr O’Gorman-Hughes, counsel for the Council, stated that the Council remained concerned as to the noise impacts on neighbouring residential premises associated with an intensification of the use of the alfresco area, and the clubhouse generally, noting that the history of complaints about noise from the Club was well documented.

114. The original consent and the 2017 modifications to that consent were inadequate in addressing noise compliance. For example, an existing condition references noise levels relative to background noise levels but those background noise levels were not known or specified. The Council accepted that the noise issue could be dealt with by conditions but sought to impose conditions that were not supported by the applicant.

115. In this regard, the relevant matters referred to in s 4.15 of the EPA Act must be considered, in particular the likely impacts of the development. A likely impact of this development is noise and there is a power to impose a condition if it relates to a planning matter.

116. New conditions were warranted which recognise the cumulative impacts from the operations of various parts of the clubhouse including the increased use of the alfresco area as proposed in the application. The ongoing uncontrolled use of the upstairs area could have significant impacts on the amenity of neighbours in the residential area in which the clubhouse is situated, and this will be exacerbated by enabling the alfresco area to be open for longer hours. Further, the nearest existing adjoining neighbour may not object now, but the amenity of future neighbours in that residence has to be considered.

117. The proposed modification increases the area available for functions and other activities which exacerbates noise impacts to neighbours. This is not confined to the use of the alfresco area. All of the areas of the clubhouse are related, noting the Club’s General Manager’s statement that downstairs and upstairs areas will be used for the same functions. Therefore, the increase in size of the available space for functions may increase the frequency and intensity of the use.

118. The creation of two entertaining areas also creates potential for more frequent use of the upstairs function and balcony areas whilst permitting the downstairs alfresco area to remain as a venue for Club members. Further, music played in the upstairs areas may be for the benefit of people in all areas of the Club including the alfresco area.

119. The Council’s submissions focussed on what conditions should be imposed rather than opposing the patron number changes sought.

120. The applicant sought to amend condition D241 so that the noise limit applied only to the alfresco area rather than the premises as a whole. This condition was not raised during the evidence of the acoustic experts and raises issues as to how to enforce such a condition. The Council queried how breaches of the noise limit from one part of the Club could be proven if the upstairs balcony area is operating concurrently with the alfresco area? Further, a band could be playing upstairs for the benefit of the audience in the alfresco area.

121. Mr Gross supported condition D241 as proposed by the Council as Octave Band Centre Frequency limits equate to the limit of 45dB(A) referred to in the additional acoustic joint Expert Report (Exhibit 5). Mr Scannell accepted that it was better to have a limit based on Octave Band Centre Frequency if music was played.

122. In terms of condition D250, the limit on the number of patrons was suggested by Mr Gross as, at a limit of 100 people on the first floor balcony, it would meet the standard.

123. Condition D251, being the imposition of a trial period, was agreed to by the applicant. If the Court imposes the restrictions on noise and patron numbers sought by the Council as part of the consent, then the trial period should extend to all of the clubhouse.

124. Condition D252 relates to closing the first floor doors to the balcony to control noise generated by amplified music upstairs which may be played for the benefit of those in the alfresco area and may impact on neighbours. This proposed condition was not challenged by the applicant during the hearing but an amendment was then sought to this condition even though it was not the subject of expert evidence. 

125. Condition D253 relates to the installation of an acrostic screen on the upper level balcony which both experts agreed would reduce noise. It was only opposed by Mr Scannell as he was concerned that it was unrelated to the proposed modification.

126. Finally, the conditions imposed should address noise impacts not just on current occupants of neighbouring properties but future occupants.  Allowing an increase in intensity of use without adequate and reasonable noise conditions is, in this case, an unacceptable outcome.

127. In summary, the Council was prepared to support the increased hours sought in the application for the alfresco area but on the basis that conditions be imposed on the numbers and noise limits for the entire clubhouse and with modifications required dealing with the use of the first floor balcony.

Findings

128. As amended, the modification application before the Court sought only to extend the hours of use of the alfresco area of the Palm Beach Golf Club to, in essence, daylight hours throughout the week, which is currently not permitted.

129. In return, the applicant agreed to reduce the maximum number of patrons able to be accommodated in this area from 50 to 30, other than for 26 times in the year (to a maximum of 5 days in any month). This equates to having up to 50 patrons in the area on average fortnightly, whereas that number is currently permitted every Saturday and Sunday.

130. In addition, the applicant agreed to install an acoustic screen adjoining the ground floor level of the clubhouse to reduce the noise emanating from this area.

131. The applicant also agreed to retain or amend a number of conditions of consent which impose noise limits and management requirements on the Club for the use of the alfresco area.

132. No concerns with what was proposed were raised by the Council other than possible adverse noise impacts associated with this modification. Even then, the only issue was the conditions that should be imposed accordingly.

133. Given this, and based on the evidence and having regard to the circumstances, including the support from the nearest adjoining resident, I consider the modification application as amended should be approved on the basis of specific new conditions, but with these conditions relating generally only to the alfresco area.

134. My reasons for this finding are as follows.

135. In essence, I do not agree with the Council’s argument that the modification application should provide the opportunity to impose more stringent controls over the use of other areas of the clubhouse when it was not demonstrated that the use of such areas contributed to the likely impacts of the modification proposed. Nor does it link the amended or proposed conditions to the modification as sought.

136. The Council had the opportunity, in assessing and granting approval to modify the original consent in 2017 (specifically to accommodate the alfresco area) to require the cumulative noise assessment now sought for the entire clubhouse. Also, to impose controls on the use of the alfresco area having regard to the impacts of the then new alfresco area relative to the use of the balance of the clubhouse. This was prior to, or in return for, granting consent to that application. The Council chose not to do this.

137. What is now proposed is a minor modification to the operating hours of that approved use which, on the evidence, of itself will have no unreasonable or adverse noise impacts, or indeed any other impacts, on the amenity of surrounding residents.

138. The current conditions of consent, being those conditions imposed when the alfresco area was approved in 2017, may be inadequate. However, it is not the role of the Court to rectify the Council’s decision of that time, particularly when the evidence did not suggest that there has been any adverse consequences in terms of noise impacts as a result of the approved operation of the alfresco area in accordance with those conditions. This appears to be largely because the Club has ceased using the alfresco area for live entertainment, as the consent requires. No change to that prohibition is proposed.

139. The Council seeks for the Court to, in effect, impose retrospective controls on the operation of an existing use through the determination of the current application which is for a subsequently separately approved modification to that use. This is even though the modification now sought is minor and will not substantially or materially alter the use of other areas of the clubhouse, with no changes to those areas proposed.

140. In approving the modified hours to the alfresco area, being the only modification now sought to the current consent, I am satisfied that the development as modified will be consistent with the objectives of the E4 zone, to the extent that the objectives are relevant, and noting the agreed existing use rights that the Club has to operate.

141. In this regard, I am also satisfied that the requirements of s 4.55(2) of the EPA Act are met in that the development the subject of the consent as modified will remain substantially the same development as the development for which consent was originally granted, and before that original consent was modified. This is noting however, that, as so modified, approval has already been granted to the use, namely the alfresco area. It is only when that use can operate that is now proposed to be modified, along with the conditions of consent associated with that operation.

142. I am also satisfied that the requirements of s 4.55(3) of the EPA Act are met. I have considered the relevant matters referred to in s 4.15(1) of the EPA Act, in particular the noise impacts of the modification proposed, and have had regard to the reasons given by the Council for the grant of the consent that is sought to be modified, being the 2001 consent. As indicated, I have also noted the modification of that consent in 2017 which approved the establishment and use of the alfresco area, and the conditions imposed associated with that use at the time.

143. I have also considered the objection lodged to the application but note that it was against the modifications proposed at the time. These sought to more than double patron numbers and allow night time use of the alfresco area. I agree with the sentiments in that objection that such modifications would have the potential for adverse impacts on the amenity of surrounding residential neighbours. However, the application (as amended) no longer proposes any increase in patron numbers or night time use of the alfresco area and I do not consider the objector’s concerns will therefore eventuate in approving the modification now proposed.

144. I have also had regard to the fact that the most directly affected neighbour supports the modification, in part as he is a disabled visitor to the Club who could more readily access and use the Club through the accessible alfresco area with the modification proposed. I also note the evidence was that there had been no objections to the use of the alfresco area, or indeed to the clubhouse itself, for at least 12 months, and that the Club is now being managed and operated as a ‘responsible neighbour’ in the terms outlined by the L&GNSW in their review of operations in 2017.

145. I consider that ‘noise pollution’, as it is defined under the POEO Act, is highly unlikely to result from the extended hours of use of the alfresco area, being confined to daylight and the early evening, and with limits on patron numbers, and therefore also consider that the only measurable provision of the DCP at section C2.10 is met. I also note non-compliance with section C2.10 was the only remaining contention in the proceedings in terms of the filed SFC.

146. In any event, condition D240 of the consent remains and requires that the ongoing use of the premises/property not give rise to ‘offensive noise’ as defined under the provisions of that Act, with the reason given being to ensure compliance with legislation and to protect public health and amenity. This will continue to be the case for the whole clubhouse not just the alfresco area.

147. Mr Gross was concerned that, when the first floor balcony is at capacity for those patrons wanting to eat or drink outside, if the alfresco area is available, they may prefer to sit outside, thus increasing the total number of patrons outside to whatever number can be typically accommodated on the first floor balcony. This is approximately 100 patrons plus a further 50 in the alfresco area. However, there was no evidence that the upstairs area would ever be at capacity during the hours when the alfresco area would be operating.

148. The only evidence was that the busiest times were when bands played upstairs from 8.30pm at which time the alfresco area is not able to be used. I therefore do not share this concern or accept it as a likely scenario that a band will play upstairs for the benefit of the people in the alfresco area.

149. Based on the evidence of the Club General Manager, I also do not consider it likely that approval to the extended hours sought for the alfresco area, being essentially confined to daylight, would lead to an increase in the maximum patronage of the first floor area of the clubhouse. In this regard, the evidence was that, when the clubhouse was at operational patron capacity on the first floor, any additional noise from the alfresco area would be largely indiscernible. Further, as already indicated, Ms Fitzgerald’s evidence was that the Club only operates at capacity, and therefore at its noisiest, after 8:30pm when live entertainment starts upstairs but when the alfresco area downstairs is required to be closed.

128. In terms of the conditions of consent in dispute, I consider that they should only apply to the alfresco area. That is the only area for which a modification is sought, and given my conclusion that the modification will not materially change, or contribute to any adverse impacts associated with, the current operation of the balance of the clubhouse.

129. References in proposed conditions D251 and D252 to areas, or works required in areas, outside the alfresco area, are removed accordingly, including in terms of the first floor balcony.

130. I do note however, that the applicant has not opposed wording sought by the Council in condition D252 that amplified music is not permitted in either the alfresco area or on the first floor balcony. Thus, live or amplified music will be confined to the function room only and, albeit it would still be heard on the first floor balcony, this would reduce the Council’s concerns that it may also be for the benefit of alfresco area patrons, should the Club start having live or amplified music upstairs during the day.

131. In terms of the new condition D250, being the hours of operation and patron numbers, these are only applied to the alfresco area, given that was the basis of the modification in the first place, and given my findings that there is no basis to limit hours or patron numbers elsewhere in the clubhouse. The agreed limit of 30 patrons in the alfresco area, other than as otherwise agreed in the balance of the condition when 50 patrons can be accommodated, is imposed accordingly. I do agree with the Council however, that it is reasonable that the Council be notified in advance when up to 50 patrons are proposed to be allowed in the alfresco area, in order that this can be monitored and referenced in any assessment of noise impacts on those days. The condition has this requirement accordingly.

132. I also do not consider there to be any material difference in terms of the impacts between the alfresco area closing at 8pm or 8:30pm and there should therefore not be this difference in closing time between the summer school holidays and the rest of summer. There seems little logic in reducing the closing time by half an hour for the balance of summer given that comprises only a limited additional period and when it was agreed that this time would not be as busy as during the summer school holidays. Condition D250 therefore allows operation of the alfresco area until 8.30pm throughout all of summer.

133. I have also simplified the condition to reference only two times of the year; being summer and the rest of the year, given the hours agreed do not now vary between the days, and that referencing only summer and winter would not deal with the approved hours in autumn and spring.

134. I finally turn to the amendments to condition D241 as sought by the Council which is to impose noise limits in terms that would typically be imposed for licensed premises where there is live music. I have already indicated that any new or modified conditions should only reference the alfresco area where live or amplified music is not permitted. Further that, despite the existing wording of condition D241 referencing ‘premises’, the only noise limits applied are for the current opening hours allowed for the alfresco area, and the condition was therefore likely intended to apply only to noise limits for that area.

135. The Council’s only remaining contention in the proceedings, based on the SFC, related to the need for the modification to comply with the noise pollution section of the DCP (section C2.10). That section references, in specificity, only the INP which sets the noise limit controls which the applicant’s wording of an amended condition D241 seeks to comply with.

136. For these reasons, I therefore agree with the applicant that, in this instance, it is appropriate to impose condition D241 by reference to the noise limits set in the INP, albeit having regard to the expert evidence. This results in limits which are unrelated to live or amplified music given such music is not able to be provided in the alfresco area. This is also notwithstanding that I accept that this area remains part of licensed premises.

137. However, in doing so, I do not agree with allowing the ‘Maximum’ dB(A) limits in the INP as sought by the applicant for commercial premises in a suburban area. These maximums were not supported by the evidence and are, as termed, maximums. The INP also includes lower ‘Acceptable’ limits and it is those limits which I consider appropriate to impose. The evidence was that, based on agreed background levels, the criterion should be 45dB(A). Acknowledging background levels vary over different periods, the ‘Acceptable’ criterion in the INP for evenings is 45dB(A), with ‘evening’ defined as after 6pm. Use of the alfresco area after 6pm (until 8.30pm) is proposed in summer when the alfresco area is likely to be at its busiest. A 45dB(A) limit is imposed for this evening use accordingly.

138. I also consider it appropriate to impose the ‘Acceptable’ limit of 55dB(A) during the day as recommended in the INP given it was accepted that, during the day, the Club would not be at its busiest, will likely only have 30 patrons, and Mr Gross accepted occasional exceedence of 45dB(A) assuming 50 patrons.

139. The condition also does not need to reference a night time limit as no night time use of the alfresco area is sought or approved and, for the purposes of the condition, the definition of ‘day’ and ‘evening’ should relate to the approved daily hours of operation rather than the INP definitions, so as to make it clear when the alfresco area can be open.

140. Condition D241 is therefore imposed as follows:

“D241. Noise associated with the alfresco area

The LAeq noise level emitted from the use of the alfresco area must not exceed a maximum of 55dB(A) during the day and 45dB(A) during the evening when assessed at the boundary of any affected residence.

Note:  Hours of business operation/entertainment restricted to those shown elsewhere in this consent.

For the purposes of this condition:

day: means the period from 10:00am to 6:00pm

evening: means the period from 6:00pm to 8.30pm.”

163. In terms of the agreed conditions, I note that the applicant is still required, and agrees to, provide and comply with a Noise Management Plan developed in accordance with the updated acoustic report, and to continue to maintain a complaints register on site.

164. Significantly, and unlike what the current consent requires, the applicant also agreed to a trial period to determine if any noise impacts arise from the modified hours of operation proposed for the alfresco area. That condition, D251, is imposed accordingly but, consistent with my findings on other conditions, refers only to the trial period being for the changes to the use of the alfresco area, not to the operation of the entire clubhouse.

165. The agreed wording of the condition requiring the installation of the ground floor acoustic screen is imposed, but is renumbered to be condition D253 not D254. This is because I have deleted the Council’s proposed condition D253 requiring the provision of acoustic screening for the first floor balcony.

166. Finally, I note that the General Manager’s evidence was that the Club was seeking a grant to upgrade facilities to enable improved access for disabled or less mobile persons, including disabled golfers and the elderly in the local community, who are otherwise limited from accessing the Club when the alfresco area is closed during the week.

167. That such visits can be facilitated by the modification proposed during the working day week is not only, in my view, of community benefit but is unlikely to have any adverse impacts, with only 30 people likely to be accommodated in the alfresco area at these times.

168. Given the evidence and the circumstances in which the Club operates, under the only consent that exists for it, it is not surprising that, should the Court not impose the conditions sought by the applicant, the Club may simply revert to its current operations. In that event, the neighbouring community would not have access to the alfresco area during the week, nor the benefit of the installation of the ground floor acoustic screen, nor the reduced number of patrons permitted in the alfresco area for the majority of time, as was supported by both acoustic experts.

169. The modified operation of the alfresco area will be in accordance with the conditions agreed by both parties, and with the amended or new conditions proposed by the applicant other than where I have modified a condition for the reasons I have outlined. In my view, this modified operation will have a more beneficial outcome for the local community than if the clubhouse, including the alfresco area, continues to operate as it currently does.

Orders

170. The Court orders that:

1. Leave is granted for the applicant to amend the application to confine it to extending operating hours of the existing alfresco area and for it to be submitted under s 4.55(2) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Modification Application MOD2018/0209 to modify Development Consent N1044/99, as amended, to extend the operating hours of the alfresco area of the Palm Beach golf club clubhouse at 2 Beach Road, Palm Beach is approved subject to the conditions in Annexure “A”.

4. The exhibits are returned other than Exhibits 1, B, C and N.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (236 KB, pdf)

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Decision last updated: 20 March 2020