Humphrey and Edwards Architects v Waverley Municipal Council
[2014] NSWLEC 1043
•07 March 2014
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Humphrey & Edwards Architects v Waverley Municipal Council [2014] NSWLEC 1043 Hearing dates: 18, 19 February 2014 Decision date: 07 March 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraphs [37]-[38]
Catchwords: DEVELOPMENT APPLICATION - Alterations to hotel - Trading hours - Trial period - Lockout Legislation Cited: Environmental Planning and Assessment Act 1979
Liquor Act 2007
Waverley Local Environmental Plan 1996
Waverley Local Environmental Plan 2012Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Humphrey & Edwards Architects (Applicant)
Waverley Municipal Council (Respondent)Representation: Mr P Clay SC with Mr A Isaacs (Applicant)
Mr M Staunton (Respondent)
Whittens & McKeough (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10449 of 2013
Judgment
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the conditions imposed by the respondent Council on a development consent granted on 15 April 2013 for alterations and conversion of the first floor of the Robin Hood Hotel, 203-209 Bronte Road Waverley (the Hotel).
The Hotel is located at the Charing Cross intersection of Bronte Road, Carrington Road, and Victoria Street. The Hotel is a two storey structure with frontages to Bronte Road and Carrington Road. The ground floor is used as restaurant/public bars and gaming area. The existing first floor lounge has an approved capacity of 32 persons. The trading hours of the Hotel are 10am to 3am the following day Monday to Saturday, and 10am to 10pm Sunday.
The surrounding area is retail/commercial, with residential terrace buildings along Carrington Road, and some residential units above ground floor retail/commercial premises on Bronte Road. Adjoining the site to the south is the Eastern Suburbs Legion Club, which trades to 10pm-midnight. The Charing Cross Hotel is located on the opposite side of Carrington Road at the intersection of Victoria Road, and trades to midnight.
Development Application DA-6/2012 was lodged on 10 January 2012, and was described as being for "Alterations to an existing hotel including conversion of first floor to restaurant/public bar area for an additional 150 patrons". The proposed works include the relocation of the kitchen from the ground floor to the first floor; provision of a new bar on the first floor; conversion of the previous first floor accommodation to internal and external dining and seating rooms; provision of an outdoor function room and additional toilet facilities on the first floor; and provision of new stairs and internal lift. The proposed development includes provision of a retractable roof within the new rooftop opening over the proposed outdoor lounge and dining area and outdoor function room, with two components of fixed glass. The Statement of Environmental Effects (SEE) states that the capacity of the first floor is proposed to be increased from 32 patrons to 150 patrons which will result in an overall hotel patron capacity of 461 patrons; the existing ground floor capacity of 311 persons is not proposed to be altered.
The Council granted development consent on 15 April 2013 subject to conditions. The conditions included deferred commencement conditions which require preparation and approval of a Conservation Management Plan; an archival standard photographic record of first floor areas; and provision of an updated Plan of Management. The conditions to apply once the applicant has satisfied the Council as to the deferred commencement conditions include Condition 3, which provides hours of operation, being for the first floor 10.00am-11.00pm Monday - Saturday, 10.00am-10.00pm Sunday (3(b)(i)); closure of the retractable roofs by 11.00pm Monday-Saturday and 10.00pm Sunday (3(c)(i)); and kitchen facilities to cease operation at 10.30pm with final food orders by 10.00pm (3(c)(ii)). Condition 4 provides extended trading hours to 12.00 midnight Monday-Saturday, subject to review not less than one year after the issue of the consent. Condition 5 imposes a 12.00 midnight lockout Monday-Saturday for the Hotel. Condition 7 specifies the maximum number of patrons as 311 on the ground floor, and 150 on the first floor.
The applicant appealed, seeking amendment of condition 3(b) to permit trading hours for the first floor to midnight Monday-Wednesday and 2am Thursday-Saturday; and the deletion of conditions 3(c), 4, and 5. During the course of the hearing the parties reached agreement on amended conditions. Agreed condition 3(b) would permit the first floor to operate 10.00am-12.00 midnight Monday - Saturday, and 10.00am-10.00pm Sunday; condition 3(c) provides extended hours for a trial period of one year after the issue of an occupation certificate to 2.00am on Thursday, Friday and Saturday; and the parties agreed that the conditions specifying closing of retracting roofs and ceasing of kitchen facilities and food service could be deleted. The parties agreed that a revised Plan of Management should be prepared and finalised so as to be included in the development consent, rather than being subject to a deferred commencement condition. The parties also agreed on conditions addressing acoustic issues, including condition 7 specifying patron numbers, including condition 7(c) that before midnight there be no more than 40 patrons in total across the three outdoor lounge/dining areas on level 1 and 8 patrons on the northern balcony, and after midnight no more than 30 patrons in total across the three outdoor lounge/dining areas on level 1 and no patrons on the northern balcony; and condition 7B providing for acoustic compliance testing.
The issue remaining in dispute between the parties is whether there should be a lockout imposed for the Hotel. Condition 5 as proposed by the Council provides a lockout, with no patron to be admitted or re-admitted after 12.00 midnight. The Council's position is that in the absence of a lockout, it is not appropriate for condition 3(c) to permit a trial period of extended trading for the first floor to 2.00am on Thursday-Saturday. The applicant opposes the imposition of condition 5.
Planning Controls
At the time the development application was lodged, the Waverley Local Environmental Plan 1996 (the 1996 LEP) applied. The Hotel was located in the 3(c) Business Neighbourhood zone, in which hotels are not a permissible use. The Waverley Development Control Plan 2010 Part E1 Retail and Commercial Premises provided at 2.3 for Hours of Operation. For a Type A Premise (which includes licensed premises that allow consumption of alcohol without the consumption of food such as a pub, hotel) in the 3(c) Business Neighbourhood zone, the general maximum hours were to 11.00pm seven days a week, with trading to midnight on a trial basis, or midnight on Thursday, Friday and Saturday nights on a trial basis for premises where residential uses are in close proximity.
The Waverley Local Environmental Plan 2012 (the 2012 LEP) came into force on 26 October 2012, and includes the standard savings provision in cl 1.8A. The Hotel is in the B4 Mixed Use zone, and use for the purposes of a hotel is permissible with consent.
Evidence
The hearing commenced on site with a view of the Hotel, and along Bronte Road towards Bondi Junction, including the Charing Cross Hotel which is on the other side of Carrington Road, and the Grand Hotel, the Tea Gardens Hotel and the Eastern Hotel, which are in Bondi Junction, approximately 900m away from the Hotel.
Evidence was given on site by Ms Julie McAlpin, a resident in Carrington Road, and Ms Mora Main, a resident in Judges Lane. Ms McAlpin had provided a written submission to the Council (exhibit 2, p10), in which she raised concerns as to potential use of the first floor for large functions which would create excessive noise and increase anti-social behaviour; noise and disruption associated with the kitchen facilities and waste removal; and additional problems with noise and music resulting from an increase in patron numbers. In her oral evidence Ms McAlpin supported the midnight lockout, noting that the residents agree in principle with the proposed restaurant but not to late night trading. Ms McAlpin outlined a number of incidents of anti-social behaviour between May-August 2009 which had negative effects on the community and a cost to the community including policing, and stated that since 2009 there has been co-operation and a collaborative approach to issues management and complaints management. Ms McAlpin stated her concern for the flow on effect of late night trading for other businesses wanting to extend their trading hours. Ms Main stated that she is a member of the precinct committee and a local resident. Her concerns related to the impact on people living above the shops, and the loss of the present good relationship. She supported midnight closing for the first floor.
The Council received a written submission from the Convenor of the Charing Cross Precinct (exhibit 2, p9), which states that the Charing Cross Precinct meets bi-monthly with the Robin Hood Hotel and Charing Cross Hotel Management, bringing together neighbours to discuss issues related to the operation of the hotels and the effect in terms of noise and alcohol related anti social behaviour on residents. The submission objects to the increase of 150 in patron numbers and states support for the establishment of a sustainable restaurant, subject to conditions including a maximum 75 additional patrons, prohibition on large functions, acoustic measures, and closure of the kitchen at 11.00pm Friday and Saturday.
The NSW Police made a written submission to the Council (exhibit 2, p 13), which noted that a direct nexus can be drawn between an increase in patronage to noise, patron migration and alcohol related crime, all affecting the quiet and good order to the amenity of the community; and that precinct meetings between the Charing Cross Hotel, Robin Hood Hotel and local residents had been taking place for a substantial period with police present on occasion, where the most common issues related to noise emitting from either or both hotels being a composite of patron noise and amplified music, patron migration into surrounding streets, malicious damage and on occasion alcohol related crimes including assaults. The submission states that based on information reports associated with the hotel, alcohol related crime associated with the venue "is relatively minor when compared to other venues of the same size". An increase in patron numbers will directly contribute to the intensification of noise during the general operation of the hotel, and the submission recommended among other things that the first floor level be closed off at 12.00 midnight so patrons are ushered to the ground floor level with management to assess patron numbers to remain at 311 and manage any over crowding issues. Police are concerned that the renovations will attract local and new patronage, and that patrons exiting other licensed premises as a result of closing may be inclined to continue their festivities and migrate towards the Hotel. The Hotel is positioned on the edge of a commercial zone and is surrounded by a residential zone; no commercial/retail premises operate after midnight in the area and as a consequence little or no noise impact is created other than the impact created by the Hotel's exiting patronage at 3.00am. No public transport is available at that time and patrons are forced to catch taxis or walk, and they are likely to stand in the street or migrate towards Bondi Junction where taxis are more frequent: remaining in the vicinity of the hotel will create ongoing and prolonged impact on the residents, and by migrating north, patrons create an impact through residential areas not currently affected. Police believe a lockout of 12.00 midnight should be imposed on all nights of trade: that would provide consistency with other hotels within the Bondi Junction area and offer some means of control over patron migration and patron numbers. A lockout prevents the hotel from reaching capacity after midnight and allows patron numbers to dwindle at a more controlled dispersion rate, and once potential patrons are aware of a lockout mass patron migration paths do not arise.
Expert evidence was provided by Mr Lindsay Fletcher on behalf of the applicant, Mr Kerry Nash on behalf of the Council, and Sergeant Peter Bolt, Licensing Supervisor at the Eastern Suburbs Local Area Command, NSW Police.
In their joint report (exhibit 4) Mr Fletcher, Mr Nash and Sergeant Bolt agreed that the Hotel is the only business in the business precinct that presently trades after midnight, and that the business precinct is of a very different character to that of Bondi Junction. They agreed that the establishment of the Charing Cross Pubs and Residents Sub-Committee has been a very effective mechanism to establish open lines of communication between the stakeholders and to resolve matters of concern, and that at the present time there is not a problem causing concern with patrons migrating to the Hotel from other venues. They agreed that the increase in capacity is 118 persons, or 34 percent.
In relation to the proposed lockout, the experts agreed that implementation and enforcement of lockout conditions do not require subjective judgments. They disagreed as to whether a lockout is necessary and appropriate in the circumstances of this application.
Mr Nash supported a lockout, stating (exhibit 3, p 12) that it would ensure that no new path of travel would be created along Bronte Road between the Tea Gardens and Grand Hotels and the Hotel, as there would be consistency between the venues in terms of when entry to premises is permissible. Mr Nash's oral evidence was that the change in the character of the establishment with the additional facilities on the first floor will change the Hotel from a traditional old style hotel. The alterations to the ground floor and the complete refurbishment of the first floor including the addition of a substantial kitchen, will attract patrons to dine and attract others to drink; the nature of the clientele will depend on the marketing and the quality of the services provided. Mr Nash accepted that there is no present need for a lockout in terms of the present operation of the Hotel. In his opinion the issue is whether the addition of the extra space and facilities on the first floor is likely to create a pattern of migration which could create a new disturbance. He agreed that there is no change in the nature of use of the ground floor, and that the first floor is suitably treated to avoid acoustic impacts.
Mr Fletcher did not consider that an increase in the capacity of a venue would increase the likelihood of occurrence of the scenario of patrons exiting other licensed venues and migrating towards the Hotel, and in his opinion, regulation of the operations of the premises through conditions such as a lockout or operating hours restrictions are more appropriately dealt with through the liquor licensing system rather than conditions of development consent (exhibit B, p 8).
Sergeant Bolt (exhibit 4, p4) considered that a lockout would minimise harm and would be appropriate because apart from the commercial strip, the premises are located in a predominantly residential area. Midnight would be appropriate because it represents the general cessation of all commercial activity in the precinct; it represents the start of the period of extended trade for the hotel; numerous other licensed premises including restaurants and other venues are ceasing trade at 12 midnight; and hotels within the Bondi Junction precinct also become subject to lockout conditions. Premises operating post midnight experience increased management pressures as the assessment of prospective patrons must become more intrusive, and instances of refused entry because of intoxication and other behavioural issues become significantly more common and with that noise related issues, street disorder and violence does occur. If the Hotel trades in accordance with its current capacity and further increased capacity at the upper level, it can be expected that adverse incidences referred to would intensify accordingly, and the introduction of a lockout provides for trade to continue whilst balancing residential amenity issues. As knowledge of a lockout condition becomes known that would assist in ensuring that patrons wishing to enjoy the amenity of the Hotel make a proactive decision to attend prior to the lockout.
In oral evidence Sergeant Bolt stated that the Hotel is a destination venue, in a sensitive precinct which is relatively quiet after midnight. Patrons arriving after midnight require additional security management, and arguments can arise where a subjective assessment is required as to whether someone should be admitted, which impacts on residential amenity. If the Hotel is permitted a trial period to 2am for 12 months without a lockout, and if an adverse situation arises, the police would have to police their way out of it which is a cost to the community and requires allocation of police resources. There is power under the Liquor Act 2007 to act, including under s 54 for imposing additional conditions on a licence which could include a lockout, however that requires evidence over a period of time; and 12 months is a long time to wait until the end of a trial period if there are problems.
Consideration
The applicant submits that the operation of the Hotel in general terms is now satisfactory, and that there are no present issues with migration of patrons arriving between midnight and 3.00am; while it is legitimate to regard the increase in number of patrons as an intensification because of the greater capacity, and while there will be different spaces available, there will not be a change in character. There is no basis for imposing a lockout now, and while the Police concern about the possible need to wait until the end of a trial period is understandable, the use of trial periods as a planning tool is well entrenched. The applicant submits that on the evidence there is no basis to conclude that adverse changes are likely to happen.
The Council submits that the location of the Hotel is significant, as other than the Hotel everything in the locality closes at midnight. There is a greater intensity in scale in an increase, from the existing patron numbers or from the approved 311 patrons, if an additional 118 patrons are allowed. While the Council accepts that the Hotel has existing use rights, the provisions of the Waverley Development Control Plan 2010 are relevant and would provide for 11.00pm closing with a trial period to midnight. There is a need to manage impacts from outside the Hotel, and while that can be done now, the Hotel is operating well below capacity. There is a potential for conflict if the management denies entry after midnight, whereas a lockout is not subjective. There are already people coming late to the Hotel who are refused entry. Having a lockout requires people to plan ahead, and would also deter and prevent a migration of patrons and the consequent impacts. If there is a trial period but no lockout there is no opportunity to do anything until the trial period ends, and in that case the cost to the community is not reversible or recoverable.
It was common ground that there are lockouts imposed on three of the hotels in Bondi Junction: the Grand Hotel at midnight (imposed 5 years ago); the Tea Gardens at 1.00am (imposed 2-3 years ago); and the Eastern Hotel at 1.30am (imposed 18 months ago). The Grand Hotel and the Tea Gardens Hotel trade to 2am on Thursday-Saturday nights; the Eastern Hotel trades to 3.30am. The Charing Cross Hotel trades to midnight (10pm on Sunday), with no lockout; the Legion Club trades until midnight on Friday and Saturday.
The Statement of Environmental Effects stated (exhibit D, tab 2, p7) that based on the previous development consents granted and modifications approved in 2005, 2008, 2009 and 2011, 311 patrons are presently permitted on the ground floor of the Hotel, and 32 patrons are approved for the first floor lounge area; the present application proposes to increase the patron capacity of the first floor to 150 resulting in a total patron capacity of 461 for the Hotel. While the 2009 Plan of Management applying to the Hotel (exhibit 6, tab 7) provides that the maximum number of patrons generally in the Hotel at any one time is 298 persons, the Council accepts (exhibit 1) that the conversion of the first floor to a restaurant/public bar for 150 patrons (which would include the 32 persons already approved) will result in the total patron capacity of the Hotel increasing from 343 to 461. Mr Nash, Mr Fletcher and Sergeant Bolt gave their evidence on the agreed basis that the proposed increase in capacity is 118 persons, or 34 percent.
It was common ground that the Hotel is not presently trading to its approved capacity. A Traffic and Parking Assessment undertaken by Mr John Coady provided to the Council with the development application (exhibit D, tab 3) included details of a survey undertaken in September 2011. The weekly daytime (before 5.00pm) patron accumulation was less than 50 persons each day, with a peak accumulation in the order of 100 persons around 1.00pm on the Sunday surveyed. The peak nighttime (after 5.00pm) patron accumulation of 208 persons was recorded around 8.00pm on the Saturday night surveyed, with the peak patron accumulation on other nights of the week at less than 100 persons, apart from 119 recorded around 7.00pm on the Friday night. Mr Coady noted an average maximum attendance during the week at daytime of 35, and 85 at night; and on the weekend 75 persons during the daytime and 120 persons at night.
I accept that the increase of 118 patrons, whether compared with the present approved 311 or with a lower actual number as recorded by Mr Coady, and which is agreed by the experts to be in the order of a 34 percent increase, is a substantial increase in patron numbers, and represents an intensification of the activities and use of the Hotel. I accept that the pattern of use of the Hotel facilities may change, for example as patrons come to the Hotel to dine on the first floor, and that the use of the first floor will change as the accommodation is removed and the new dining and lounge areas, retaining some of the existing internal walls, are used. The existing ground floor bar areas and the gaming area remain substantially unchanged. However, while there will be an intensification of use, I am not persuaded that the alterations to the first floor, in particular the likely increase in the number of patrons dining with the expansion of the kitchen, and with the use of the dining and lounge areas, are such that the character of the Hotel as a whole, including the ground floor which remains substantially unchanged, is likely to change to a significant extent.
The parties differed in their assessment of the likely impacts of the increase in patron numbers and use of the first floor. The Council submits that the relevant factors are that the proposed development involves an increase of 118 persons, or one third, with consequent potential conflict when patrons are arriving or leaving the Hotel; that the present approved capacity of the Hotel is unused; the strong probability of the likely activities; the agreed intensification of the use; and the evidence of Sergeant Bolt based on his experience. The applicant submits that there is no basis in the available evidence to conclude that adverse changes are likely, and that the potential or possibility of adverse impacts can be tested in a trial period.
The Council contended in its Statement of Facts and Contentions in Reply (exhibit 1) that the operation of the Hotel in the past has been the subject of complaint by local residents, and that a review of the Hotel incidents register indicates a poor level of management responsibility for the operation of the licensed premises. Mr Nash examined the Hotel Incident Registers between August 2011 to August 2013, and data from the NSW Police COPS system for the period 2009 to 2013, and in his Statement of Evidence (exhibit 3) he included copies of 8 COPs reports that are not entered in the Incident Register (Appendix 3) and extracts from the Incident Registers for the period of review (Appendix 4). In his opinion while there were 28 Incident Reports completed for the period of review, there were a further 16 incidents reported as an Incident Log that should also have been completed as an Incident Report to enable more details of the incident to be provided which could be of benefit to management of the premises and police if the matter needs to be followed up. In Mr Nash's opinion (exhibit 3, p 13) the Incident Registers are poorly managed and inadequate in providing an accurate picture of the operation of the premises; the Incident Registers and COPS data indicate that the management of intoxication of patrons on the premises is a major weakness; and that there is a deficiency in the management of the premises indicated in a comment by a manager that she is often left in the pub by herself with no patrons, staff or security around the 2.00am to 3.00am time period. Mr Nash acknowledged that both the Incident Registers and the COPS data indicate that the security staff are doing a good job at refusing entry to intoxicated persons seeking to enter the premises. In oral evidence, Mr Nash accepted that impacts have been ameliorated since 2009, however in his opinion it is not a benign environment now. His concern is both for the existing scenario, based on his consideration of the Incident Register and the COPS data, and the potential changes to the activity with increased patron numbers together with the change in character of the establishment. In oral evidence Mr Nash accepted that some of the entries in the Incident Log and Incident Register included in Appendix 4 to his Statement of Evidence in fact demonstrate good management, including incidents where patrons were removed from the Hotel in some instances with police assistance.
The extracts from the Incident Log and Incident Register included in Appendix 4 of Mr Nash's Statement of Evidence include records of patrons being refused entry, patrons being asked to leave, and patrons being removed from the Hotel, sometimes with police assistance, after midnight. Some of the records relate to incidents such as arguments or altercations which have continued outside the Hotel. The reports include an instance on 7 January 2012 where Police were called to address a situation where patrons outside the Hotel at 3.00am refused requests not to make excessive noise, and other incidents when staff contacted Police for assistance. I accept, based on these records, that patron behaviour when refused entry, or asked to leave, at times requires intervention by Hotel staff and by Police.
Mr Nash and Sergeant Bolt were of the opinion that the Hotel is in a sensitive location, with residences on the other side of Carrington Road and above the shops on Bronte Road. Mr Fletcher accepted that wherever there is an interface between residential uses and others there is a degree of sensitivity. I accept, based on that evidence, that the presence of residences on Carrington Street and above the shops on Bronte Road increases the sensitivity of the location, and that potential impacts on residential amenity need to be considered in the context where surrounding businesses close by midnight. The written submissions and the oral evidence by objectors is that there are noise impacts for residents, in particular in relation to music. That evidence also supports the benefits observed since 2009 in improving management of impacts with the operation of the Charing Cross Precinct's Pubs and Residents Subcommittee. The records provided in Mr Nash's Statement of Evidence in general, support his concession that many of the incidents arising in the course of managing patrons demonstrate good management, and support the objector evidence of an improvement in the situation since 2009. I am satisfied, based on the evidence in the NSW Police submission to Council, that alcohol related crime associated with the venue is relatively minor when compared to other venues of the same size; and based on the agreed evidence of Mr Nash, Sergeant Bolt and Mr Fletcher, that there is not presently a problem with patrons migrating from other licensed premises to the Hotel between midnight and 3.00am.
I accept, based on the evidence of Sergeant Bolt and the Incident Logs and Records provided in Mr Nash's Statement of Evidence, that the process of managing patrons who are refused entry or asked to leave can generate conflict and resultant noise impacts, both inside and outside the Hotel, depending on where those incidents occur. It is reasonable to expect that the proposed increase in patron numbers and intensification of the activities of the Hotel may result in more incidents generating such impacts.
The Council does not oppose the increase in patron numbers, and agrees to the first floor operating until midnight other than on Sunday, with restrictions on the numbers permitted in the lounge/dining areas on the first floor and the northern balcony. Those restrictions implement the recommendations arising from the assessment of acoustic impacts undertaken by Dr Renzo Tonin (exhibit D tab 6), based on patron and music noise emission from the premises and noise from mechanical plant. Dr Tonin noted that the predicted noise levels indicated that the proposed design is in accordance with applicable pre-midnight noise criteria, and for after midnight operations, compliance with the external noise criteria but some non compliance of inaudibility targets inside premises, with levels at least 7dB below background noise level compared with the target of 10dB below background; the low levels indicated that if noise was to be audible it was unlikely to be clearly discernable. Dr Tonin recommended assessment of inaudibility once areas are operational to determine any additional mitigation or management measures. Dr Tonin's recommendations have been incorporated into agreed conditions 7(c) and 7B.
In considering whether the first floor of the Hotel should be permitted to operate until 2.00am on Thursday, Friday and Saturday on a trial basis for 12 months, the first issue is whether a trial period is appropriate, or would simply defer consideration of fundamental issues. In Zhang v Canterbury City Council (2001) 115 LGERA 373 the Court of Appeal held that a time limited condition imposing a probationary or trial period may be an appropriate exercise of the discretion conferred by s80A(1)(d) of the Act. Spigelman CJ, with whom Meagher and Beazley JJA agreed, held:
83 I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to "take into consideration" matters even though their full significance cannot be known with precision.
84 Where, as in this case, the nature of the development application is for the "use" of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion.
85 The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the "likely impact" or "suitability" will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on "likely impact" during the probationary period.
While it is reasonable to expect that an increase in patron numbers and intensification of the activities of the Hotel may result in an increase in incidents involving management of patrons, including generation of noise, it is relevant in the circumstances of this application that alcohol related crime associated with the venue is presently relatively minor when compared to other venues of the same size; that there is a mechanism established to assist in managing impacts from the Hotel operation through the Charing Cross Precinct's Pubs and Residents Subcommittee; that proposed condition 7(c) would limit the number of patrons permitted in the three outdoor lounge/dining areas on level 1 and not permit any patrons on the northern balcony after midnight; and that any adverse effects associated with the additional patron numbers and two hours of operation would cease if trading on level 1 reverted to midnight at the conclusion of a trial period. In those circumstances, I am satisfied that while the full significance of impacts associated with the increase in patron numbers between midnight and 2.00am on Thursday, Friday and Saturday is not known with precision, it would be appropriate to permit the extended hours of operation, subject to a trial period in the form proposed in condition 3, which would require detailed assessment of any impacts during the trial period. Condition 3(d) provides for a further development application or modification application to be made to continue the extended hours, and specifies the matters to be taken into account in consideration of such an application, including security and general management of the premises, the number and nature of substantiated complaints regarding the operation of the premises, compliance with conditions of consent and the plan of management, and evidence that the applicant has taken a pro-active position in terms of industry practice.
I accept that the addition of a lockout would, for the reasons given by Sergeant Bolt, assist in management of patron behaviour by removing the subjective element involved in assessment by security staff as to whether to refuse entry to prospective patrons because of intoxication or other behavioural issues between midnight and the present approved closing time of 3.00am. Sergeant Bolt's evidence that once it becomes known that a lockout applies patrons plan ahead, was not challenged. In considering whether condition 5 should be imposed as urged by the Council, it is relevant that lockouts already apply from midnight, 1.00am and 1.30am at the Grand Hotel, the Tea Gardens and the Eastern Hotel, which are located in Bondi Junction; that the closest hotel, the Charing Cross Hotel, closes at midnight; and that the agreed evidence was that there is not presently a problem with patrons migrating from other licensed premises to the Hotel between midnight and 3.00am. Based on the reports included in Mr Nash's Statement of Evidence, I agree with his acknowledgement that it appears that security staff are presently managing entry of intoxicated patrons seeking to enter the premises after midnight appropriately. Based on this evidence, I am not persuaded that it has been established that the intensification of use and the addition of the first floor facilities is likely to result in impacts that would warrant the imposition of a lockout together with, or as part of, a trial period for the extended hours of operation for the first floor. The reassessment required at the conclusion of the trial period would include consideration of security and management of the premises, which would include management of the entry of prospective patrons.
Accordingly, condition 3(c) and (d) should be imposed in the form proposed in exhibit 7; and proposed condition 5 should be deleted.
Conclusion
For the reasons above, I am satisfied that it is appropriate to grant development consent to the development application DA-6/2012 subject to the conditions as now proposed in exhibit 7, subject to any further amendments required as a consequence of the inclusion of condition 3(c) and (d), the deletion of condition 5, and the implementation of Dr Tonin's recommendations. As agreed between the parties, the Plan of Management should be revised to reflect the conditions and annexed to the development consent, and included in condition A.1, rather than being the subject of a deferred commencement condition.
I will make directions in consultation with the parties for the provision of revised Conditions of Consent, and Plan of Management, following which final orders will be made in chambers.
Linda Pearson
Commissioner of the Court
Amendments
11 March 2014 - Mr A Isaacs added to appearances
Amended paragraphs: coversheet
Decision last updated: 11 March 2014
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