Mill Hill Hotel v Waverley Council

[2009] NSWLEC 1206

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Mill Hill Hotel v Waverley Council [2009] NSWLEC 1206
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Mill Hill Hotel

RESPONDENT
Waverley Council

FILE NUMBER(S):
11164 of 2008
10146 of 2009

CATCHWORDS:
DEVELOPMENT APPLICATION :- extension of trading hours for existing hotel - amenity impacts

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Brown C

DATES OF HEARING:
27, 28 May 2009

EX TEMPORE DATE:
28 May 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr M Baird, barrister
SOLICITORS
JPR Legal

RESPONDENT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

28 May 2009

11164 of 2008 and 10146 of 2009  Mill Hill Hotel v Waverley Council

JUDGMENT

1. COMMISSIONER:  These are two separate but related appeals against the refusal of applications by Waverley Council for extended operating hours for the Mill Hill Hotel located on the corner of Oxford Street and Denison Street Bondi Junction. 

1. The Mill Hill Hotel currently operates between 10 am to midnight on Mondays to Saturdays and 10 am to 10 pm on Sundays, although the approved Licensing Court hours are 5 am to 12 midnight Monday to Saturday and 10 am to 10 pm Sundays.  There are no limits on the hours of operation for the hotel based on any approvals given by the council beyond the use of the internal smoking area that is to cease operation at 9 pm on Sundays.  A trial period to use this area for consumption of food and alcohol is currently underway.

1. The appeals are:

   Appeal No. 11164 of 2008 - this is an appeal against the council’s refusal to extend the operating hours from 10 pm to midnight on Sundays. 
   Appeal No. 10146 of 2009 – this is an appeal against the council’s refusal to extend the operating hours to 5 am to 3 am Monday to Saturday. 

2. Prior to the commencement of the hearing, the applicant advised the Court that it wished Appeal No. 10146 of 2008 to be dismissed.  This was not opposed by the council.

   Relevant planning controls

3. The site is within the 3(a3) Business Secondary zone under Waverly and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre.  A hotel is a prohibited use within this zone, however the site benefits from existing use rights.  The effect is that any provisions of any environmental planning instrument that derogate from the existing use rights provisions in the Environmental Planning and Assessment Act have no force or effect.

1. Draft Waverley Local Environmental Plan (Bondi Junction) 2008 also applies but there was agreement that as the draft plan has only recently concluded advertising, it could not be seen as imminent or certain.  Consequently it is not necessary to consider the contents of the draft plan.

   The resident evidence

2. The Court heard from a number of residents who live in residential flat buildings near the hotel in Spring Street and opposite the site in Oxford Street.  The general thrust of their evidence was that they were aware of the hotel when they moved into their properties and accepted the existence of the hotel but did not wish to see any extension of trading hours.  Some residents patronise the hotel and some have had reason to call the hotel because of noise on occasions, although I did not understand there to be regular or substantial objections to the operation of the hotel. 

1. The residents saw the extended trading hours on Sunday as potentially drawing people from other licensed premises in the commercial part of Bondi Junction to the more residential part of Bondi Junction around the hotel.  This would likely create additional and unacceptable disturbances when, at present there are no reasons for people seeking alcohol to travel to the area near the subject hotel on Sundays.

   The expert evidence

2. Mr Neil Gross was the single expert on acoustic matters.  He conducted noise measurements at a terrace house in Denison Street opposite the hotel and from two different balconies in a residential flat building in Spring Street.  Mr Gross also had observations made of patron behaviour on a Friday and Saturday evenings between 11 pm and midnight.  Using the Liquor Administration Board (LAB) pre midnight noise criteria of background plus 5dBA in all the octave ranges, he concludes that the current pre-midnight operations do not comply with the LAB criteria.  He conceded that with some noise control measures and additional management practices, it is possible that the hotel could comply with the pre midnight LAB criteria.

1. Mr Gross noted that a critical area of noise control is the management of smoking areas for the hotel.  At present, the internal smoking area can only be used until 9 pm on Sundays.  This results in patrons either using the footpath area or the gaming room that has little noise attenuation (because of the open louvres on Denison Street).  Mr Gross further states patrons departing the hotel have the potential to disturb people in the residential properties in Denison Street and along Oxford Street.  In his experience, unruly behaviour is more likely when alcohol is involved.  Any impacts are exacerbated at night when background noise levels are lower and in areas of residential development where there is an expectation of a quiet neighbourhood.  His observations indicate around 50% of patrons leaving the hotel travel south along Denison Street. 

1. Town planning evidence for the council was provided by Mr Kerry Nash and for the applicant by Ms Sue Francis.  Ms Francis originally proposed a 12 month trial period although further suggested that this could reduce to a 6 month trial period to coincide with the trial period for the use of the indoor smoking area for consumption of food and drink.  Mr Nash opposed a trial period based on the likely amenity impacts but accepted that if the Court accepted the extended trading hours, then a trial period was appropriate.

1. Sergeant Brooks from the Eastern Suburbs Local Area Command provided evidence.  While not opposing the extended Sunday trading hours, he was of the opinion that there would be additional complaints over the behaviour of patrons during the proposed extended hours.

   Findings

2. In taking into account the evidence of Mr Gross I am not satisfied that the extended trading hours on Sundays can be supported, even for a trial period as there are fundamental problems with the proposal that were not satisfactorily addressed at the hearing.  The location and context of the hotel is an important consideration.  In this case, the hotel is located opposite residential terraces in Denison Street and high density residential flat buildings to the south and south-east of the hotel in Spring Street.  Occupants of these properties, in my view, not unreasonably expect a reasonable level of residential amenity, albeit commensurate with their mixed use location.  My understanding of the evidence given by the local residents is that their expectations of amenity were not unreasonable given their location. 

1. I am not satisfied that a reasonable level of amenity is likely if the trading hours are extended on Sundays, largely because of the inability to control patrons who wish to smoke after 9 pm. There are only two areas available for smokers. The first area is the footpath. The use of this area has obvious problems because of the inability to controls any noise, even if the noise is not excessively loud. The lower background noise levels after 9 pm will exacerbate any noise generated by patrons on the footpath. Whilst some emphasis was placed on a Plan of Management and a Security Plan of Management, both Mr Nash and Ms Francis accepted that the documents provided by the applicant were unacceptable. No replacement documents were provided to the Court. In any event, I am not satisfied that even more detailed or updated documents can satisfactorily address noise from normal conversations and spontaneous outbursts on the footpath when residential properties are located in such close proximity to the hotel.

1. The second area for patrons who wish to smoke after 9 pm is the gaming room. This room is located on the Denison Street frontage. It has louvres for security but is open to the street. Mr Gross describes the noise attenuation of the louvres as resulting in little acoustical difference to having the room open to the street because sound will easily escape between the louvres. Mr Gross states that the room could potentially satisfy the LAB criteria but only with restrictions on the number of patrons and restrictions on the activities. As stated previously, I am not satisfied a Plan of Management or a Security Plan of Management can properly address these issues when residential properties are located in such close proximity to the hotel.

1. The use of the hotel after 10 pm on Sunday also legitimately raises issues over the placement of licensed premises in Bondi Junction.  As Sergeant Brooks states, attempts have been made to restrict late night premises to the eastern and more compatible end of Bondi Junction.  It is a sensible and practical approach to limit late night licensed premises to areas where there is good public transport and reduced impact on residential properties.  I agree that this is approach would be threatened as no other hotels in the area trade after 10 pm on Sundays.

   Orders

2. For Appeal No. 10146 of 2009:

   1. The appeal is dismissed, by consent.
   2. The Development Application to extend the operating hours of the Mill Hill Hotel to 5 am to 3 am Monday to Saturday is refused.

3. For Appeal No. 11164 of 2008:

   1. The appeal is dismissed.
   2. The Development Application to extend the operating hours of the Mill Hill Hotel to extend the operating hours from 10 pm to midnight on Sundays is refused.
   3. The exhibits are returned.

   ___________________

   G Brown
   Commissioner of the Court

AMENDMENTS:

22/07/2009 - By Consent was deleted for Matter No. 11164 of 2008 - Paragraph(s) Par 18 Order No. 1