Jones v Mosman Municipal Council

[2006] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION:	Jones v Mosman Municipal Council [2006] NSWLEC 40 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Michael Jones RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10480 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Noise from licensed premises .
DATES OF HEARING:	19 January 2006
EX TEMPORE JUDGMENT DATE:	01/19/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister INSTRUCTED BY Gadens RESPONDENT Mr S Griffiths, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

19 January 2006

05/10480 Michael Jones v Mosman Municipal Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of a modified development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
JUDGMENT

1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act1979 against conditions imposed by Mosman Municipal Council (the council) on the Buena Vista Hotel (the hotel) at 76 Middle Head Road, Mosman in response to Development Application 8.2003.284.1.

2 A number of matters are dealt with as part of these proceedings involving the retrospective approval, as is possible pursuant to a s 96 amendment application, of works already undertaken but not in accordance with the original approved development consent plans.

3 Not all of the matters, which have been undertaken and are subject of the application, are objected to by the council nor are they objected to by the resident objectors from whom I have heard this morning during the course of an on-site inspection with the legal representatives of the parties and with the Court-appointed acoustic expert, Mr Murray.

4 The primary matters that were of concern to the residents relate to noise which is emitted not merely from the bistro area of the hotel (which is the subject of the s 96 application) but also from the doors and windows to the existing two bars in the hotel building to the west of the bistro area in the hotel.

5 During the course of this morning’s inspection, I had the opportunity to hear from and inspect the premises of Dr Ellis, a resident of Mosman Mews, 139 Middle Head Road, Mosman (which is diametrically opposite the hotel across Middle Head Road and, in general terms, to the north of the hotel), and from Ms Tracey Williams, also a resident of Mosman Mews. A number of other objections in writing, canvassing essentially the same matters, have been tendered in evidence.

6 As a result of Mr Murray’s reports undertaken in August and November 2005, and of this morning’s inspection and discussions on site involving Mr Murray, a number of changes have been proposed to the applicant and accepted by him.

7 The first of those is the proposal for the timing of the closure of the bi-fold windows facing Middle Head Road. These are now proposed to be closed at 9pm each day and not to be reopened before 7.30am on the next day.

8 I asked Mr Murray during the course of the site inspection whether there would be any significant difference between the seasons of the year. It was my understanding of his evidence that, although there might be some lessening of activity and noise in the vicinity of the premises during winter, that was likely to be reflected by a lessening of activity and noise within the premises and the likelihood that at times of inclement or cold weather the windows would be shut at an earlier hour for the convenience of patrons.

9 I therefore accept that it is not appropriate for me to impose seasonally different times for closure of the bi-fold windows facing Middle Head Road and that those times which have been agreed to by the applicant and the council, in light of Mr Murray’s report, should be accepted.

10 With respect to the gates from the courtyard leading to Middle Head Road, the applicant has accepted that the roll-down clear plastic shutter, which rolls down to a height some 25-30mm above the plinths on top of the gates, should be lowered from 7pm each evening rather than from 9pm as proposed by Mr Murray.

11 This arises as Mr Murray gave evidence that he had not had complete regard to what he now understood to be the intensity of activity taking place in the courtyard and that the lowering of that plastic shutter would have an ameliorative effect.

12 The applicant, for similar reasons, has agreed to a condition that would have the gate, that is the eastern of the two gates to the courtyard used for access purposes, fitted with a self-closing device, which would be rendered operational at 7pm on each day.

13 I accept that combination of those measures, together with the limitation on seating in the courtyard confining such seating to 6 stools only together with a prohibition on the consumption of bistro food in the courtyard, will lessen the likelihood of intense activity in the courtyard. This will be reinforced by a limit of 20 persons permitted to be in the courtyard at any time.

14 I am satisfied in light of Mr Murray’s comments on his further consideration of the courtyard that these additional measures will have an ameliorative impact on the noise from that courtyard.

15 The residents also raised with me the question of the noise from the two bars to the west of the bistro area, those bars not being subject to noise amelioration matters involved in the s 96 modification application.

16 I am satisfied that I do have jurisdiction to impose conditions arising from the operation of the premises that generate noise, that being an issue in contention in the s 96 proceedings.

17 This, fortunately, is not a contested matter as the applicant has agreed to a condition that says that the doors to those two bars shall be kept closed by their self-closing devices after 9pm at night and that the two windows which face Middle Head Road in those bars shall also be fixed closed after 9pm at night.

18 An issue had arisen in addition in the proceedings where Mr Hemmings, barrister for the applicant, had initially pressed an application to amend the application to delete the requirement for carpet in the bistro area.

19 However, in light of evidence given by Mr Murray that there would be some modest improvement in the acoustic impact if that carpeting were to be installed (it not being presently installed) that application to amend was not pressed and the additional benefit to the residents of that carpeting will thus be provided.

20 A condition requiring that carpeting should be incorporated in the consolidated conditions of consent that are to arise from these proceedings.

21 The final two matters are of a lesser nature.

22 The first is that, during the course of discussions on site, Mr Murray advised that, during his earlier inspections, there had been an agreement that an under eaves metal meshed area, both on the northern and eastern faces of the bistro roof, would be enclosed and made solid. It has been made solid on the north but is yet to be made solid on the east. The conditions should reflect a requirement that this be done.

23 Finally, there is the comparatively trivial matter of the lack of fit of the door to the eastern of the two bars and the conditions should require that that be rectified so that when self-closing device operates the door closes completely.

24 Subject to the incorporation of all of those matters in consolidated sets of conditions, I am satisfied that I should accept Mr Murray’s evidence that the hotel, when operating in that mode, will satisfy the requirement that background plus 5 dBA will not be exceeded at the residences of the objectors.

25 Indeed, in light of Mr Murray’s evidence and the additional measures to be undertaken, there may be some modest (and potentially significant) further amelioration of those impacts.

26 As a consequence of all of that in terms of the amended conditions of consent, and a number of matters of detail relating to the plan of management (which I have raised with the parties during the course of these proceedings), the appeal will be upheld and the conditions of consent will be amended as discussed.

27 Subject to the matters dealt with in the directions below, the orders of the Court will be:

1. The appeal is upheld;
2. The conditions for Development Application 8.2003.284.1 for the Buena Vista Hotel at 76 Middle Head Road, Mosman are modified so as to be those contained in Annexure A; and
3. The exhibits, other than Exhibit A, are returned.

28 I therefore give the following directions:

1. The respondent is to file and serve revised consolidated conditions by 3.30pm on 24 January.
2. The applicant is to file and serve document to be known as the Security Protocol for the Buena Vista Hotel by 3.30pm on 24 January.
3. The applicant is to file and serve a revised plan of management by 3.30pm on 24 January.
4. The matter is to callover before the Registrar on 7 February 2006.
5. Liberty to relist before me at 9am on two days notice of any matters require further consideration arising out of directions 1, 2 and 3.
6. If matters covered by directions 1, 2 and 3 require no further consideration, and the documents are filed electronically in accordance with Practice Direction 2 of 2005, I will make orders in chambers and vacate the callover.

Tim Moore
Commissioner of the Court

13/02/2006	-	Incorrect annotation - Paragraph(s) Catchwords
15/02/2006	-	Incorrect time corrected - Paragraph(s) Paragraph 12