Iris Hotel Group Management Pty Ltd v Hunters Hill Council

[2017] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation:	Iris Hotel Group Management Pty Ltd v Hunters Hill Council [2017] NSWLEC 1303
Hearing dates:	20-21 April and 22 May 2017
Date of orders:	16 June 2017
Decision date:	16 June 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Matter No 257480/2016 – Appeal dismissed Matter No 325767/2016 – Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: extension of hotel trading hours DEVELOPMENT APPLICATION: change of use to hotel - parent’s retreat and children’s dining area
Legislation Cited:	Hunters Hill Local Environmental Plan 2012; Liquor Act 2007
Texts Cited:	Hunters Hill Development Control Plan 2013
Category:	Principal judgment
Parties:	Iris Hotel Management Group Pty Ltd (Applicant)   Hunters Hill Council (Respondent)
Representation:	Counsel: Mr P Clay SC (Applicant) Mr M Staunton (Respondent)   Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent)
File Number(s):	257480/2016 & 325767/2016

Judgment

1. Iris Hotel Management Group operate the Hunters Hill Hotel and lodged two development applications with Hunters Hill Council that relate to that hotel.

2. The first application (Matter No 257480/2016) proposes the extension of trading hours of the hotel.

3. The second (Matter No 325767/2016) proposes the expansion of the hotel into approved retail space and use of that space as a parents’ retreat/children’s play area.

4. The council had not determined either application within the prescribed period and Iris is appealing the deemed refusal of those applications.

5. The parties agreed that the matters be heard concurrently with evidence in one, evidence in the other where appropriate.

The site and its context

6. The site comprises 64-68 Gladesville Road, Hunters Hill. The Hotel is now located on Lot 101, DP 1169248 while a mixed use building occupies SP 90253 and SP 85494. The site has been redeveloped over a period of time including the construction and sale of a residential flat building on the old hotel carpark. Ground level commercial space is located below parts of that flat building with some of the space fronting Gladesville Road and the remainder accessed from an arcade off that road.

7. The access to the site and hotel’s facilities is from Gladesville Road. There are two points of access via driveways from two streets. Joubert Street is the secondary access as the heritage listed hotel turns the curved corner of the two streets.

8. The hotel is located on the north-western corner of the Gladesville Road and Joubert Street intersection within the Hunters Hill Village which performs a neighbourhood shopping centre function. To the north of the hotel is No. 18 Joubert Street which is a two storey residential flat building and to the west of the hotel is a three-storey mixed use building. Opposite the hotel on Gladesville Road are commercial premises.

9. The hotel is a two storey building over a cellar. The basement provides for 26 car parking spaces. On the ground floor is the main bar, the gaming lounge, a bistro/courtyard space partly indoors and outdoors with another bar and a bottle shop. The hotel’s kitchen is in the north-western corner of the bistro and there is an enclosed children’s play area adjacent to Joubert Street.

10. The western wall of the ground floor abuts the wall of the ground floor level of the adjoining mixed use building. The first floor can be accessed by a lift or stairs off the ground floor lobby and comprises a series of interlinked rooms which were in the original building and a new L shaped extension. There is a service bar centrally located on the first floor.

11. The adjoining ground level arcade comprises 7 tenancies with the rear two areas the subject of the development application for the parents’ retreat. That area is Lots 8 and 9 in SP90253.

Background and the proposal

12. In 2004, consent was granted to DA 2003 – 1051 for the restoration of the existing hotel and construction of a mixed use building and associated car parking. Given the juxtaposition of the residential and hotel uses, condition 214(a) of that consent was imposed on the applicant (then the owner before the sale of the residential properties) to require that ”hours of hotel operation shall not exceed terms of the present hotel licence which provides for seven-day trading between 8am and midnight.”

13. In addition, that consent requires that after 10pm on any day, access to and from the hotel shall be restricted to the Arcade from Gladesville Road and the associated lift lobby and the existing main bar doors facing Gladesville Road. Any access to Joubert Street shall be locked and not used. The required late-night access shall be clearly signposted. After 11pm, from Sunday to Thursday inclusive, patron numbers shall be limited to 40 in the beer garden. After 6pm, music played in the beer garden, terraces and balcony areas shall be background only with a noise level no higher than 65-70dB(A). The balcony at first floor level shall have shutters closed after 10pm, and shall not be occupied after midnight.

14. Whilst the consent has been modified on several occasions including by this Court, those hours have not been modified however the hotel currently operates under a licence which lists the trading hours to serve alcohol for consumption on the premises between 5am and midnight Monday to Saturday and between 10am and 10pm Sunday, Good Friday and Christmas Day and until 2am on New Year’s Day. The sale of liquor for consumption off the premises must cease at 10pm on any night. Despite the licence provisions, the hotel, according to evidence, does not open until 8am and closes at 10pm on Sundays.

15. Matter No. 257480/16 is a development application that seeks extension of trading hours at the hotel as follows:

Monday to Saturday, between the hours of 8am to 2am the following day;

Sunday, between 8am and midnight:

Good Friday and Christmas Day, between noon and 10pm; and

New Year’s Eve between 5am and 2am the following day.

16. The effect of the proposed change would be a two hour extension from midnight to 2am Monday to Saturday, no change to the approved Sunday trading hours noting that the hotel currently closes at 10pm however is permitted to operate to midnight under the provisions of the current consent. The only other change would be on New Year’s Eve where an earlier opening and extended trading to 2am on whatever day follows New Year’s Eve to 2am.

17. Since the original development application for extended trading hours was lodged with the council, the applicant proposed additional provisions in an attempt to address primarily the concerns of the police but also local residents who had objected to the extended hours. Further amendments, in particular a 12.30am lockout and more detailed close down procedures were proposed during the hearing.

18. These provisions now involve a 12.30am lockout and a staged close down starting at 10pm and all first floor windows, the Gladesville Road and Joubert Street doors would be closed with all entry and exit only through the arcade (existing requirement). At 11pm the sale of takeaway liquor would cease (Now 10pm). At midnight the first floor terrace and the balcony would be closed (not including the Gladesville Road balcony which is used as a smokers’ area) along with the ground floor courtyards and parents’ retreat. At 1am the first floor (including the Gladesville Road balcony) the TAB and front bar would be closed with liquor supply ceasing at 1:30am, music off and lights up at 1:45am and by 2am all patrons would be off the premises.

19. Matter No. 325767/2016 proposes use of Shops 8 and 9 within the existing arcade as an expansion of the hotel for use as a parents’ retreat and children’s play area. The area has already been fitted out to accord with the plans lodged with this application and is currently a separate tenancy with no interconnecting access from the hotel. The applicant sought to amend the proposal to include the construction of an opening in the common wall between the existing hotel and the retail premises and is prepared to accept a condition that would ensure that all access to the area is through the hotel rather than through the existing doors off the Arcade.

20. Condition 214 of the original consent as modified required that a hotel Plan of Management (POM) be prepared and submitted with the Construction Certificate application. A draft plan of management dated June 2016 accompanied the application to Council however the status of that plan and in particular whether management of the hotel were aware of the existence, was unclear. The police evidence is that requests for the POM had not resulted in the document being provided to them.

21. Two further POMs were prepared, Exhibit O, a POM for the parents’ retreat and Exhibit P, a POM for the hotel. Those exhibits do not provide for extended trading hours on New Year’s Eve and include different trading hours for the ground floor and first floor of the premises. The ground floor trading hours included in the POM are 8am to 2am the following day, Monday to Saturday; 10am and 10pm Sunday; noon and 10pm on Good Friday and Christmas Day and such hours as may be authorised by the Minister responsible for the administration of the Liquor Act 2007 pursuant to section 13 of that act. At the first floor, the POM provides for 8am to midnight, Sunday to Wednesday and 8am to 1am the following day Thursday to Saturday. The area that is the parent’s retreat is described as a recreation room which would be used between 8am and midnight. Sale of the package liquor for consumption away from the hotel would occur between 8am and 11pm Monday to Saturday and 10am and 10pm Sunday with no sales on Good Friday or Christmas Day. The POM also provides a pre-closure requirement however does not provide for the suggested 12.30am lockout.

22. The POM does provide for security with one security guard to be deployed at the hotel from 6pm on Friday, Saturday and Sunday night with a second security guard deployed at the hotel from 9pm on Friday and Saturday until the last patron has left the premises. On any night a function is booked to operate past midnight, a security person must be deployed from 10pm until the last patron has left the immediate vicinity of the hotel. After midnight on Friday and Saturday night, security is required to be deployed at a ratio of one security person per 100 patrons. The POM also requires the installation of CCTV within the premises and areas within a 10m radius outside the entrances.

23. In view of the amendments made to both applications during the hearing and the need for the applicant’s acoustic consultant to carry out more testing following the joint conferencing process the council sought costs thrown away as it was not possible to conclude the hearing in the two days originally allocated to the hearing.

The planning controls

24. The site is zoned B4 Mixed Use under the provisions of Hunters Hill Local Environmental Plan 2012 (LEP). Clause 2.3(2) requires that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure that new buildings provide an appropriate transition between the business zones and surrounding residential localities.

• To maximise levels of pedestrian and business activity along street frontages.

25. The hotel is identified as a heritage item under the provisions of the LEP, the item being of local significance.

26. Hunters Hill Development Control Plan 2013 (DCP) applies to the site. Part 4.5 applies to the Hunters Hill Village and has the following objectives:

(a) Ensure that future development respects and enhances the environmental character and amenity of the Hunters Hill Village.

(b) Promote high standards of architecture, landscaping and urban design.

(c) Improve commercial and retail functions of the Hunters Hill Village while recognising that its role is secondary to the Gladesville Village Centre.

(d) Encourage additional residential development as a component of mixed

developments within the commercial core precinct of this Village.

(e) Ensure that environmental heritage is conserved.

(f) Protect the amenity of residential neighbourhoods which surround the Hunters Hill Village.

27. The site is within the village core precinct and the following character controls apply to that precinct:

(i) Emphasise this precinct as the primary focus of the Hunters Hill Village.

(ii) Encourage a mix of residential accommodation above commercial and

retail uses at street level.

(iii) Respect heritage values and positive architectural characteristics of the

Village.

(iv) Respect the scale and form of existing buildings.

(v) Protect the amenity of adjoining residential neighbourhoods.

(vi) Improve winter-time solar access to ground floor areas while ensuring

summer-time shade.

(vii) Ensure high levels of street-amenity by encouraging active uses at street

level, and by improvements to the public domain.

(viii) Provide additional landscaping along streets.

(ix) Promote shared use of Howard Place by vehicles and pedestrians.

The issues

28. Through the submission of additional information and by way of amendments made to the plans in particular the creation of an opening to link the parents’ retreat area to the main hotel premises, all of the original contentions in the Matter No. 325767/2016 were either resolved or capable of resolution through conditions of consent. The Council seeks to limit the hours of use of this area to 12 midnight and the applicant accepts that restriction.

29. The council has filed conditions of consent in the form of deferred commencement provisions that reflect the areas of agreement between the parties and Mr Staunton, for the council, submits that there are no reasons why that application should not be approved in accordance with those conditions. Some of these conditions are opposed by the applicant and this issue is discussed below in my findings.

30. In regard to Matter No. 257480/16 the council opposes the proposed extended hours of hotel trading. The contentions in that case that remain are:

• The extension of hotel trading hours to create a late opening hotel in the Hunters Hill Village in such close proximity to residential properties will introduce an inherent land use conflict with the long-term potential for the continuation of the current land uses, which is antipathetic to the original basis upon which development consent was granted;

• The extension of trading hours will give rise to impacts on the amenity of adjoining and surrounding residential premises in terms of noise and activity of patrons between 12 midnight and 2am six days per week;

• The proposal will unreasonably impact the amenity of adjoining and surrounding residents and the broader community of Hunters Hill. A significant number of objections have been received in relation to to the proposed extension of hours.

31. Contentions regarding lack of information and inadequacy of noise impact assessment were addressed through the hearing and contributed to the additional time taken to hear the matter.

The evidence

32. The hearing commenced on site with evidence heard from a number of objectors to the application for extended hours. The issues raised in those objections are summarised as follows

• concerned that intoxicated people entering and leaving the hotel would impact on amenity;

• the proposed extended hours will bring larger groups of patrons to the area for a longer period of time which will cause significant sleep disturbance;

• concern on the practical application of the plan of management and security management plan and the ability of security guards to successfully control noise from patrons leaving the premises and the fact that security would not be employed every day of the week;

• concerned in relation to the social and crime factor of a late trading hotel and the amenity and noise caused;

• speakers and DJ noise from the hotel travels over the overpass to units in Church Street with the noise audible as though someone is playing music next door to apartment;

• lockouts in other areas mean that more people are likely to move on to the hotel which will result in people leaving en masse when the hotel closes;

• the extended hours would mean there would be an overflow of people coming over the corner of Church Street and Reiby Road trying to get taxis;

• midnight is an appropriate closing time for the locality;

• preference that no music be played in the outdoor areas of the hotel after 6 PM.

33. In addition to residents, the licensing supervisor of the Ryde Local Area Command, Gladesville Police Station provided evidence and objected to the extended hours even with the proposed 12:30am lockout and other security measures proposed by the applicant. The police evidence notes that 43% of alcohol-related incidents in the Ryde Local Area Command (LAC) occur between 12 - 3am, there is a lack of late night public transport from the hotel including minimal buses and the fact that the closest train station, St Leonards, is over 3 km away. The police have concerns in relation to the continual non-compliance with the existing consent conditions which provide for the reasonable amenity of residents living in the vicinity of the hotel and have issued an infringement for breach of consent conditions.

34. Police are concerned that security is not provided on every night that trading is proposed until 2am, that late night trading venues are at greater risk of armed hold-up and there is not sufficient security proposed to deal with that risk, that the provisions of the Plan of Management need to better reflect and define when incidents should be reported. CCTV coverage should be improved within the hotel and easy to enforce conditions imposed in relation to noise as police are not noise experts and don't have the resources to prove that the noise is over a specific sound level. The police are concerned at the social impact of the proposal and are of the opinion there is no community need for a late night venue as the Hunters Hill Village is a residential area and a late trading venue is not suitable to that locality.

35. The police do not object to the development application for the parents’ retreat provided access is through the hotel and any doors to the arcade are closed other than for emergency exit requirements and strong conditions put forward in relation to noise so that it is a child friendly area and cannot become an entertainment area including the prohibition of live music.

36. The police maintain their objection to any trading past midnight however, recommend other measures that could be taken to address their concerns in the event that the Court found that a trial period for the extended trading hours were appropriate. This includes the provision of a courtesy bus to drop patrons home after midnight; prohibit music in the outdoor area from a certain time in the night; provide security on every night past midnight; a lockout preventing patrons entering after a certain time for example 12 midnight or 12:30am to stop patrons pushed out of the city and Balmain that have likely been drinking coming to the hotel. They considered this may stop people coming and being denied entry and disrupting local residents.

37. The applicant has embraced some but not all of these recommendations in the amendments made to the application during the hearing.

38. Expert acoustic evidence was heard from Mr S Cooper for the applicant and Dr R Tonin for the Council. Mr Cooper had prepared an initial acoustic report relating to the extended hours (Exhibit C) and, as a result of the joint conferencing process, a joint report, Exhibit 5 was prepared. That report identified a number of areas of disagreement between the experts and, an agreed position that further physical testing was required. That joint report was filed in accordance with the timetable established by the Court however the additional testing agreed necessary between the experts was undertaken by Mr Cooper with a monitoring period between Saturday 15 April and Tuesday, 18 April 2017 which meant that the supplementary joint report was not filed until the first day of the hearing. That report, Exhibit 8, did not lead to resolution of the matters that were considered outstanding and therefore, further conferencing and testing was conducted.

33. That testing was carried out in accordance with agreed criteria and, as a result of the report prepared by Mr Cooper following completion of that logging (Exhibit R), Dr Tonin has recommended the imposition of a number of consent conditions which, if met, he is satisfied that the operation of all plant and equipment and any electronic equipment used for music or any power amplifier would result in noise of an acceptable standard. He advises that the council’s proposed deferred commencement conditions in that application would not be required as the operational conditions would apply and ensure compliance with the criteria established.

34. At the conclusion of the hearing the parties had not agreed on the extent of conditions required should the Court determine the application for extended hours could be approved. The POM had not been finalised either and would need to reflect the recommendations of the acoustic experts.

35. Expert town planning evidence was prepared by Mr D Rippingill for the applicant and Mr M Adamson for the Council. These experts prepared a joint report, Exhibit 6 relating to the parents’ retreat and Exhibit 7 relating to the extension of hours. The experts were not required for cross examination.

36. Whilst there are differences between the experts in relation to the application for the parents’ retreat, given the council’s position that the application merits consent subject to imposition of the recommended conditions, there is no reason to elaborate on the extent of those contrary opinions.

37. In relation to the application for the extended hours, the experts agree that there is a potential for conflict on two bases. Firstly, internal noise transference and secondly, noise from departing patrons. They agree the internal noise transference is to be addressed by the acoustic experts. They also agree that appropriate management provisions will mitigate the risk of impact from patrons departing from the hotel however Mr Adamson does not believe impacts can be controlled to within acceptable levels regardless of management provisions imposed. Mr Rippingill says the impacts can be mitigated to within acceptable levels having regard to the site context, particularly if a trial period is imposed. He recommends the imposition of a 12 month trial period in order to review those provisions proposed in the POM before the trading hours can be made permanent. He says the following measures would be sufficient to mitigate the potential for adverse impact to within acceptable level subject to the adoption of that trial period:

• the pre-close procedures noted above which will encourage a steady departure of patrons through the extended trading hours rather than a mass exodus of patrons which would be less readily controlled;

• requiring the deployment of two security persons on Friday and Saturday night;

• requiring regular patrols of the immediate vicinity on Friday and Saturday nights between 11pm until all patrons have departed the hotel to assist in ensuring patrons depart the area quickly and quietly;

• prohibit high risk drinks after midnight such as shops, high alcohol cocktails and premixed beverages to reduce potential for intoxication;

• require RSA marshals to be deployed between 9pm and 1.30am on nights where a function operates with more than 50 patrons past midnight. The purpose of these provisions is to actively mitigate potential for intoxication and provide proactive intervention;

• 24-hour complaint and incident register;

• Security to be provided on Thursday night whenever a function is booked to operate past midnight;

• Security to be provided after midnight on Friday and Saturday at a rate of one security person per 100 patrons or part of thereof.

44. Mr Adamson is of the view that no degree of additional management provisions could make trading beyond midnight appropriate in the circumstances. He notes the hotel is located within a development that contains residential units including a unit directly above the proposed parents’ retreat expansion area and is also adjoined by a residential zone. Whilst he accepts the proposed security measures are generally consistent with accepted methodologies he believes these are most effective in commercial cores or centres. He believes the sensitive residential receptors and the ability for impacts to easily extend beyond the zone of influence of the hotel are unreasonable and contrary to the intent of the original approval and planning objectives for the location.

45. Mr Rippingill notes that late trading hotels in business zones in close proximity to residential neighbours is not unusual, and, subject to good management, is considered acceptable.

46. The experts agree that subject to satisfactorily managing adverse impacts, the application can comply with the objectives of the zone to be a compatible use and due to its proximity to a bus stop, is accessible. However, Mr Adamson believes that in the circumstances the adverse impacts will not be able to be satisfactorily managed to ensure that it is a compatible land use that integrates well with the surrounding residential uses. He refers to the objective of land use compatibility in the zone objectives and proximity of residential land uses surrounding the hotel both within the same building and within Joubert Street. He believes the impacts of the extended trading hours coupled with the increase in increased intensity (increased floor space and patrons) will be incompatible with residential uses where external behaviour is commensurate with the use cannot be successfully managed by hotel staff. Having regard to accessibility, he acknowledges the bus stop however, during late-night period he believes the bus stop with limited function cannot be relied on to demonstrate it is in an accessible location for the purpose of late night trading.

47. The experts also agree that subject to satisfactorily managing adverse impact the application complies with the objectives and controls of the DCP however Mr Adamson reiterates his concern that those impacts cannot be satisfactorily managed and notes the zone objectives regarding compatibility are further reinforced by the Hunters Hill Village objectives specifically to protect the amenity of residential neighbourhoods which surround that village and protect the amenity of adjoining residential neighbourhoods. He says the introduction of late night trading adjacent to residential living does not protect amenity. It has the potential to seriously negatively impact upon it. This is demonstrated by its need to encourage security and an extensive POM for it to successfully operate. This is in itself a clear indicator the parties recognise the potential for adverse impact on the amenity of the location. Therefore the amenity of the location becomes entirely reliant on the hotel’s successful management. He says the impacts beyond the zone of influence of the hotel staff and security cannot be controlled. This may involve patrons waiting for transport beyond the patrolled area of the hotel and/or other antisocial behaviour associated with intoxicated persons.

48. At the request of the Court, the Council provided information in relation to trading hours of food premises within the Hunters Hill Village. Those details (Exhibit 12) extend beyond the Hunters Hill Village to restaurants that operate in Alexandra Street Hunters Hill and Woolwich and Woolwich Road in Woolwich.

49. In terms of premises within the village, the latest hours of closure under consent conditions (apart from the hotel) are a pizzeria that is permitted to trade until midnight Monday to Saturday however, it only trades until 11pm on those days with the majority of other food premises closing between 10 and 11pm Monday to Saturday and 10pm on Sundays. The Woolwich Pier Hotel is approved to open from 10am to 11pm Monday to Wednesday 10am to 12 midnight Thursday to Saturday and 10am to 10pm Sundays and public holidays. All other food premises in Woolwich included in the list close by 11pm.

50. Mr Rippingill is of the view patrons would wait for taxis and Uber cars on Gladesville Road given likely departure routes. He notes there are no controls in the DCP which restrict or otherwise discourage late trading in the Hunters Hill Village. The trading hours proposed are relatively common and the potential for adverse impact is addressed through the POM.

51. The experts agree the potential for impact is greater during later trade due to patrons departing during a sensitive time over a longer period. With respect to the size of groups departing from the hotel, Mr Rippingill considers there will be sufficient security proposed (in addition to bar staff and management) to manage typical patron numbers. During his observations at the hotel he counted approximately 320 patrons. His discussions with management revealed the peak trade of the hotel occurs between 7 and 8pm and 300 patrons is considered to be a “busy night”. He observed around 120 patients in the premises between 11 and midnight before close, including those partaking in a function at the first floor.

52. Mr Rippingill says the phased shutdown will encourage patrons to leave throughout the night steadily. These smaller groups will be more readily monitored by external security required under the POM. Moreover, proactive measures such as an RSA Marshall are proposed to reduce the potential for intoxication that could arise through the additional one half hours access to liquor.

53. Whilst Mr Adamson believes the closure of the courtyard at midnight is a positive approach and accepts there is some logic in the phased shutdown, accepting the strategy assists the hotel in managing patrons in a more centralised area within the confines, he believes the issues external to the hotel will remain, albeit slightly modified. Some patrons may depart, however, others are likely to simply relocate into the remaining open sections of the hotel and leave at a later time. He is also concerned that by spreading or staging the departures the issues associated with amenity impacts as a result of noise, protracted departures and any antisocial behaviour will be spread over a greater period of time every evening. On this basis, negative impacts will spread over a greater time period as a percentage depart earlier or remain the same as some groups who choose to simply relocate within the hotel.

54. Mr Rippingill says that because the application incorporates a 1.30am cessation of liquor sale condition, it is a less attractive option for those relocating from other venues, or travelling back from the city, as there are many later trading options in relatively close proximity to the site. He attached a plan which nominates hotels at Woolwich, Longueville, St Leonards, Drummoyne, Balmain, Gladesville and Ryde. Mr Adamson was of the view the issue of people migrating to the hotel is a genuine issue and said the hotel would be an equally attractive option than the alternate venues. He says the Woolwich Hotel is the closest venue and closes at 10pm on Sunday, 11pm Monday to Wednesday and midnight Thursday to Friday. The hotel, providing later operating hours, would draw patronage of those wishing to stay out later either by migrating earlier in the evening or making the hotel an alternative venue of choice based on opening hours. It would also attract people from restaurants after dining that close earlier. He notes that the map provided by Mr Rippingill shows later night trading venues, but says there are many hotels in close proximity to the site with earlier (or up to midnight) closing times that may give rise to patrons migrating to the venue that remains open until 2am as well as coming from nearby restaurants.

55. The experts agree that with the increased consumption of liquor there is an increased potential for intoxication which may then increase the propensity for poor behaviour. Mr Rippingill says this is addressed with respect to the provision of appropriate levels of security, RSA marshals and the provisions of the POM. Mr Adamson notes that the multiplying effect of greater intoxication with the quieter background noise later in the evening will exacerbate the impact on residential amenity. The lack of easy public transport at that time in this location may result in those persons loitering in proximity of the hotel for longer periods, giving rise to further antisocial behaviour associated with intoxication and potential damage to private property. Whilst he agrees the POM will assist in reducing the potential for adverse impact he does not consider that it would be sufficient to permit trading beyond midnight.

56. Sergeant K Barnard provided evidence in support of the NSW Police Force’s letters of objection that had been lodged with the council. Having been made aware of the draft POM contents and the option of a 12 month trial period, she maintained her objection to the extended hours and also opposed the trial period.

Conclusion and findings

57. The first matter that is to be determined is the council’s application for costs thrown away as a result of amendments made to the application during the hearing. Those changes and the lack of detail in relation to acoustic reporting meant that the hearing was not finalised in the two days allocated and a third day required. The changes made involved different hours, the introduction of a lockout, consideration of a 12 month trial period, changes to the access to the parents’ retreat area, reassessment of acoustic criteria, obtaining owner’s consent and refinement of the POM amongst others. Those changes cannot be considered minor. For that reason I find that the provisions of s97B(2) of the EP&AAct apply and the applicant is to pay the costs of the council that are thrown away as a result of amending the development application.

58. Matter No. 257480/2016 now proposes the extension of trading hours of the hotel as detailed at [15 and 16] with a 12.30am lockout. The applicant advised the Court that should there be some concern about the effectiveness of the management measures proposed during the extended hours that a 12 month trial period would be an appropriate option to allow the assessment of those measures.

59. Section 79C of the EP&AAct sets out those relevant matters a consent authority is to take into consideration in determining a development application. Firstly, the provisions of any environmental planning instrument, in this case, the LEP with regard having to be had to the objectives of the B4 zone.

60. Having regard to those objectives, I am not satisfied that the extended trading hours accords with those relevant to determination of the application. That is because there is an objective to provide a mixture of compatible land uses. Whilst the hotel is an existing business in the Hunters Hill Village, it currently closes no later than midnight. It is apparent from the evidence provided by objectors to the application that it is currently adversely impacting the amenity of adjacent land uses. Whilst the applicant is proposing to improve the acoustic impacts of the hotel and introduce improved management practices and security, I am not satisfied that a use that extends the potential impacts from midnight to 2am is a compatible land use. The enjoyment of adjacent residential land uses is likely to be adversely impacted despite the measures proposed by the applicant, in particular after patrons leave the hotel but also by people arriving at the hotel late at night which would not occur with the midnight closure.

61. There is no dispute that the site is not well serviced by public transport after midnight and whilst this fact may necessitate patrons walking/cycling to the hotel, that is likely to result in adverse amenity impacts to nearby residents which is out of the control of the hotel management. Similarly, in this case it is not appropriate to maximise levels of pedestrian and business activity along street frontages late at night.

62. The evidence is clear that there are no premises within close proximity of the site that trade beyond midnight. That, along with the lack of good public transport options, is an important consideration in this case. To be compatible with other land uses in the Hunters Hill Village, a use would have to have similar trading hours or no external amenity impacts. A proposal that changes the character of the village by introducing late night trading would not be compatible as it would not exist in harmony with those other uses.

63. The DCP is another consideration and the objectives and character controls for the Hunters Hill Village anticipate development that respects, enhances and protects the amenity of residential areas. For the reasons outline above, I consider the extended trading hours would not ensure the amenity of the area is enhanced but rather it is likely to be adversely affected. In the circumstances of a locality that has no late night trading, the hotel being the last premises to close, the extended hours would not achieve the objectives of the DCP. The fact that the DCP is silent on trading hours and whether the area is or is not identified as an area where late night trading is appropriate does not imply that extended trading would be acceptable. The objectives and character controls are clear. In the circumstances of the case and based on the evidence before me, I find the extended hours would not respect, enhance or protect the amenity of residential areas in the vicinity of the site.

64. The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are also considerations and in this regard I accept the evidence of Mr Adamson and Sergeant Barnard that there are likely to be adverse impacts to the built environment and adverse social impacts on the locality that are beyond the control of the hotel management. The POM can only address behaviour within the hotel and its immediate surrounds.

65. The attraction of persons to the village late at night is currently not occurring and the proposed extended hours will change the focus of the centre from one that contains uses that close from 10pm to midnight to one that provides for later trading. That is a significant change and not one anticipated under the planning controls.

66. For those reasons I find the site is not suited for the extended trading hours as proposed and, having regard to the submissions received, is not in the public interest.

67. The applicant seeks a 12 month trial period for the extended hours however, based on my findings that the site is not suitable for those hours under any circumstances, the trial period would not be appropriate.

68. Matter No. 325676/2016 is for the use of shops 8 and 9 as an extension to the hotel trading area and specifically for use as a parents’ retreat/children’s play area. With the amendments made to the application, in particular, through restricting entry to the area through the existing hotel rather than providing direct access to the area from the arcade and with the POM, the council did not oppose the extension of trading area. Similarly, subject to the hours of use of the area being limited to 12midnight closure, the police did not oppose the use of the area.

69. Having regard to the evidence, it is apparent that the use of the area can be satisfactorily managed and acoustic issues addressed. For those reasons, subject to the imposition of appropriate conditions of consent and a finalised POM, there is no reason why consent should not be granted to that application.

70. The parties were to file agreed conditions of consent in both matters following the agreement reached during the hearing and where there was not agreement, details of the reasons for disagreement were to be noted and it was agreed that the Court would determine the appropriate conditions.

71. In view of my decision that the application for extended trading hours should not be approved, there is a need to determine the final form of the consent conditions that will apply to the use of the area as a parents’ retreat and also the contents of the POM. The parties recognise the need to finalise a POM for the operation of the hotel as a whole as this has not been completed as required under the original consent.

57. The council proposes the parents’ retreat should be approved on the basis of deferred commencement because of the extent of unauthorised works that has been carried out and the need to obtain a building certificate and surrender a Complying Development Certificate that had been issued. The council maintains that certificate should not have been issued due to the fact that the site is a heritage item.

58. It is not necessary for the Court to form any opinion on the validity of the certificate as the applicant agrees that the issue can be remedied through the consent and a building certificate, the area of disagreement is whether the requirement should be the subject of deferred commencement provisions.

59. I consider that it is appropriate in the circumstances that any consent granted for the use of the area as a parents’ retreat should be the subject of deferred commencement provisions rather than prior to a construction and occupation certificate. That is because the works have already been completed and it is important that appropriate authority for that existing work is obtained prior to further works and use commencing. More importantly, as the conditions of consent for the hotel will not change in view of my decision to refuse consent to the amended hours, the acoustic treatment of the premises should be ensured prior to any further work commencing.

60. There is an issue about whether the council should impose a condition that provides for an additional acoustic audit to be carried out at any time on the reasonable basis that the noise levels stipulated in other conditions of consent are exceeded, the cost of which is to be borne by the Hotel. In view of the likely noise generated from the use of the parents’ retreat, I am satisfied that the other conditions that apply to acoustic works and auditing are appropriate and provide the necessary level of certainty however, where the council incurs costs in arranging access to adjacent residential properties those costs should be reimbursed by the hotel.

61. Another disputed condition relates to the allocation of staff within the parents’ retreat area. The applicant prefers a condition that allocates a staff member to the area when it is operating whereas the council seeks to ensure that a staff member is on duty at all times within the area rather than allocated to the area with other duties within the hotel also falling within the responsibility of that staff member. It is the applicant’s position that when the use of the area is quiet it is commercially unviable and overly restrictive to allocate a fulltime staff member to the area. I accept this argument as there may be times that only a few people are in the area and resources would be better allocated to the remainder of the hotel. I also note that the conditions of consent provide for a maximum of 85 persons within the retreat area which includes children.

62. The final condition in dispute is whether drinks should be served in plastic or containers made from other non-breakable material. The council says the containers should not be glass so as to ensure the safety of all patrons as broken glass is particularly dangerous given many children at play, the provision of a sandpit and the fact that acrylic glasses are very common in hotels. The applicant proposes a condition which provides that children’s drinks in the retreat area shall not be consumed from or served in glass containers. This would allow drinks consumed by adults to be served in glass. Having regard to the nature of the use of the area, the fact that a separate bar is provided within the parents’ retreat, I consider that it is appropriate to ensure the safety of children within the area that all drinks be served in containers that are not glass.

63. In view of my findings in relation to the conditions, similar amendments would be incorporated into the POM.

64. The Orders of the Court are:

1. The applicant is to pay the respondent’s costs thrown away in relation to the amended application pursuant to the provisions of s97B(2) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

In Matter No. 325676/2016:

2. The appeal is upheld.

3. Development Application DA20161103 for change of use of the existing vacant retail tenancy, Lots 8 and 9 in SP90253, to a parents’ dining retreat and children’s play area is approved subject to the conditions in Annexure A.

In Matter No. 257480/2016:

4. The appeal is dismissed.

5. Development Application DA2016/1114 for use of the Hunters Hill Hotel between the hours of midnight to 2am the following day, Monday to Saturday is refused consent.

6. The exhibits, other than exhibits A, B, F, 1 and 2, are returned.

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Commissioner Morris

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325767.2016 (C) Annexure A (138 KB, pdf)

325767.2016 POM Annexure B (697 KB, pdf)

Decision last updated: 16 June 2017