O'Hara v Sydney City Council
[2006] NSWLEC 222
•05/05/2006
Land and Environment Court
of New South Wales
CITATION: O'Hara v Sydney City Council [2006] NSWLEC 222 PARTIES: APPLICANT
RESPONDENT
Dan O'Hara
Sydney City CouncilFILE NUMBER(S): 11253 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Refurbishment and alterations to a hotel, hours of operation, security arrangements, public interest LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 27/02/2006 and 08/03/2006
DATE OF JUDGMENT:
05/05/2006LEGAL REPRESENTATIVES: APPLICANT
Mr C Drury, solicitor
SOLICITORS
Phillips FoxRESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
5 May 2006
JUDGMENT11253 of 2005 Dan O’Hara v Sydney City Council
Background
1 This appeal was lodged against conditions of consent imposed on a development application involving refurbishment and alterations to the " Nags Head Hotel", located at 162 St Johns Road, Glebe. The alterations include the transfer of the gaming room containing 15 electronic machines into the ground floor of the adjoining terrace in St Johns Road. This property was previously used as a pizza restaurant.
2 Development consent was granted subject to a number of conditions and the appeal was lodged in respect of the conditions covering the following matters:
- hours of operation,
- a 1 year trial period for the new gaming area, between 10 p.m. - 12 midnight, Monday to Saturday and 10 a.m. – 11.30 p.m. Sundays,
- security arrangements,
- public interest.
3 Insofar as a number of other issues were raised initially, these matters were resolved by conferencing between the parties. Notwithstanding this, a considerable number of objections were lodged and the Court had the opportunity of hearing the neighbours’ concerns, together with considering the written objections. I note that there was a correspondingly large bundle of support letters.
4 For the appeal, the parties agreed to Mr R. Chambers being the Court appointed expert for planning and his report is Exhibit A. Ms S. Scarano, council’s area planning manager also presented a detailed report, Exhibit 4.
The site
5 The Nags Head Hotel is a 2 storey corner pub built in the 1860s. It is situated on the south-western corner of Lodge Street and St Johns Road. The hotel has frontages to St Johns Road of approximately 12 m and to Lodge Street approximately 30 m.
6 The hotel generally comprises the following areas and facilities:
At ground level;
a public bar in the front western part of the premises which is accessed primarily through a recessed doorway in the St Johns Road frontage - the public bar includes a small stage for musical entertainment;
gaming room in the front eastern part of the premises - the gaming room (which occupies part of the original former public bar) contains 15 machines and is accessed primarily by a recessed door at the corner of St Johns Road and Lodge Street. Patrons within the gaming room can enter the public bar either via a passageway, off which there are ground level toilets, at the southern end of the bar counter, or via that part of the existing bar located to the north of the bar counter;
a lounge bar (22 patrons), in the central western part of the premises which lies between the public bar, from which is separated by a stair, and "Stables Brasserie" at the rear of the hotel;
an enclosed courtyard and restaurant (Stables Brasserie) at the rear of the hotel which seats 70 patrons. It is open for lunch;
and for dinner:
between 12 midday and 2:30 p.m., Monday - Wednesday;
between 12 midday and 3 p.m. Thursday - Sunday;
- between 6 p.m. and 9:30 p.m. Monday - Wednesday; and
- between 6 p.m. and 10:30 p.m. Thursday - Sunday.
7 At first floor level there is:
- a "loft bar" with seating for around 24 patrons. This has a retractable roof over at which is open in fine weather conditions are not when musical entertainment is provided at night;
a "loft lounge" with seating for around 30 patrons and a single pool table;
a small external veranda at the corner of Lodge Street and St Johns Road, which the hotel licence restricts use by no more than 12 persons at any one time.
8 The public bar and lounge bar areas and the ground level of the hotel are approved as a place of public entertainment (POPE) with a capacity for 145 persons. Entertainment is generally provided on Thursday, Friday and Saturday nights and on some Sunday afternoons. At present the hotel has the following trading hours:
Monday to Saturday: 9 a.m. to midnight;
Sundays: 12 a.m. to midnight;
9 However, the hotel is able to trade from 5 a.m. Monday to Saturdays, in accordance with the standard Liquor Administration Board (LAB) hours.
10 The adjoining 2 storey retail/commercial terrace is known as No. 164 St Johns Road. It is currently vacant, although it has been occupied as a pizza restaurant offering eat-in and takeaway service in the past.
Planning controls
11 The site is zoned Business under the provisions of Leichhardt LEP 2000 and hotels are permissible with consent. The hotel is also listed as an Item of Environmental Heritage and it is within a Conservation Area and is located within the vicinity of an item of Environmental Heritage of State significance being the former Glebe Town Hall. This LEP contains a number of objectives for the Business Zones, which includes:
(b) to ensure sustainable growth of Leichhardt’s economy by retaining existing employment uses and fostering a range of new industrial and business uses, to meet the needs of the community, and…
12 The objectives also provide for the protection of the amenity of residents to be pre-eminent.
13 Policy on Trading Hours for New and Existing Premises. This policy was adopted by council on 27 August 2001 and contains general provisions, which relate to amenity concerns from the extension of hours for late trading/24-hour pubs and like uses which may have detrimental effects on their neighbourhood.
14 Clause 1.2 of the policy defines the area that is covered by the policy. However the subject site is outside the specified plan area.
The evidence
15 The principal issue in this matter concerns amenity impacts on the nearby residents arising out of the reconfiguration and transfer of the gaming room into the adjoining terrace at No. 164 St Johns Road. These impacts concern noise generation/disturbance, antisocial behaviour of patrons leaving the premises and effects on the existing commercial character of the area.
16 In order to address these concerns, council approved the development and imposed conditions to restrict the hours of operation of the hotel development. Condition 2(a) restricts the hours of operation of the restaurant and outdoor courtyard from 10 a.m. to 11:30 p.m. seven days a week. Condition 2(b) restricts the operation of hotel bars and gaming room from 10 a.m. to 12 midnight Monday to Saturdays and 11 a.m. to 11:30 p.m. Sundays.
17 Having heard the various evidence, it is apparent to me that these conditions endeavour to further restrict the permitted hours of operation of existing components of the hotel and this is consistent with the objectors expectations. However, taking into account that the hotel is an approved POPE and the lack of formal complaints regarding the hotel's existing operations, which has not resulted in the issue of any directions/notices/licence conditions to change its operations, I do not consider there is any substantive evidence which should reasonably be imposed on the subject development, to restrict the hours of operation of the existing components.
18 The incremental change proposed by the development is to transfer the existing 15 gaming machines into the new area in the adjoining ex-pizza restaurant. Consequently, this will allow restoration of the old gaming area back to a small bar area. To facilitate this transfer, it is proposed to create direct internal connection to the existing main bar area, with secondary street access from St Johns Road.
19 But the applicant accepts the proposed conditions of consent that the doors of the existing hotel to St Johns Road and Lodge Street, together with the front door of No. 164 St Johns Road, are to be kept shut at all times, to minimise noise disturbance. Also, that street entry via the door to No. 164 be time controlled, so that all public access to the gaming room after a designated time, will be via the existing hotel doors, which substantially maintains the existing entry/exit arrangements. It therefore seems to me that the potential for further disamenity, as the incremental change is minimal, providing direct street entry from the No. 164 door is restricted after 10 p.m.
20 In this regard, I understand from the evidence that the pizza bar operated late night trading, so the aforementioned controls for No. 164 should reduce access disamenity from the use of this commercial area.
21 In so far as the neighbours prefer the current operating hours to be restricted and this is supported by Ms Scarana, nevertheless Mr Chambers considers that the subject proposal should be allowed to operate within the terms of the existing liquor licence, as follows:
- 5 a.m. to midnight, Monday to Saturday;
- 10 a.m. to 10 p.m. Sunday (with an approved extension between 10 p.m. and midnight on Sunday); and
- Noon to 10 p.m. on Restricted Trading Days (RTD) (Christmas Day and Good Friday).
22 My assessment of this issue is that there is no compelling evidence, which in this case supports the restricted hours of operation imposed by council. Instead, I consider it reasonable to adopt a consistent approach to the hours of operation by maintaining those allowed by the Liquor Administration Board (LAB) licence. In this regard, I note that if the hotel operator fails to satisfy its conditions of licence, including causing disamenity to the neighbours, then prompt remedial action is available under s 17 of the Act.
23 The associated issue then concerns the condition requiring 12 months trial period. This condition was supported by Ms Scarano, based on the provisions of council’s Policy on Trading Hours for New and Existing Premises, which she says covers all land within the City of Sydney and particularly refers to a situation where there is a reconfiguration of electronic gaming machines within the premises.
24 Ms Scarano says:
"that trial periods are imposed as a compromise between the rights of the owner to carry out a legitimate activity and the rights and needs of surrounding residents to maintain good level of amenity. The environmental impacts of certain land uses are determined by their ongoing management and trial periods are the mechanism favoured by the City to regulate the management of these uses".
25 Accordingly she says that the following factors in the subject application, should be considered in the imposition of the trial period:
a) the close proximity of the new area to existing residential properties (between 5 and 20 m away in both St Johns Road and Lodge Street),
b) the nature of the intensification of use. The relocation of gaming machines is an expansion, rather than reorientation,
c) the history of the pub, in particular both the objections and letters received in respect this application and the objections made to the police and are Liquor Licensing Court in the past,
d) the opportunity to assess actual noise emissions as result of the operations of the development.
26 Against this, Mr Chambers does not consider a trial period is required because the proposal is not for an extension of the trading hours of operation, as provided for in the Policy. Instead the proposal will operate within its already approved hours, and therefore Mr Chambers says this policy is not applicable. In this regard, I also note Mr Drury’s submissions that the plan in the Policy does not cover the subject site. Notwithstanding this, the document does refer to the area controlled by the City of Sydney and under certain circumstances the application of this policy is appropriate.
27 Therefore in this case, whilst I have considered the Policy, in terms of its status and applicability to the subject site, nevertheless I consider it can be given diminished weight, because the incremental change proposed still results in it operating within the overall approved hours for the hotel. In my assessment, these circumstances reduce the need for a trial period.
28 But more importantly, I note that the applicant has submitted a Management and Security Plan (Plan) that has been prepared in consultation with the local licensing police. Furthermore, the applicant has accepted the draft conditions requiring compliance with this Plan. By reference to this draft Plan and the other conditions of consent, I consider that compliance with these conditions should result in the development achieving an acceptable level of amenity, taking into account the existence and operation of hotel over some 140 years, its approval as a POPE and its location within the business zone. Notwithstanding this, I still consider that the amendments should be made to this draft Plan and I deal with them subsequently.
29 As I noted initially, conferencing between the parties resulted in resolution of some of the issues raised by council and the residents by way of conditions of consent. This applies to the noise issue, which has been subjected to on-site testing by recognised acoustic experts. The agreed conditions on "noise issues" contain the following restrictions on the overall development:
- restrictions on transmission of vibration in accordance with AS 2679.2,
- specific criteria for limitation of noise generation at neighbouring properties, relative to background noise levels,
30 For the proposed gaming room at No. 164 St Johns Road, the following treatment is required:
- specified insulation of the ground floor gaming room wall, which is common with the adjoining commercial tenement,
- provide acoustic underlay for the gaming room floor,
- no speakers are to be mounted on the common wall and any background music in the gaming room is to be controlled by an acoustic limiter,
- the two openable windows are to be acoustically treated so that any noise created within the Hotel is not audible in the side passageway,
- the rear exit door is to be kept in close position (not locked) when the gaming room is being used,
- all mechanical plant is to operate within specified noise limits,
- the front door to No. 164 St Johns Road is to be kept closed at all times and all windows closed from 10 p.m.
31 From the evidence presented to the Court, I am satisfied that compliance with these conditions of consent restricting noise emissions, should result in an acceptable level of amenity for this neighbourhood, in terms of the operation of the proposed development. Notwithstanding this, I accept that the hotel is located within the Business Zone, where there are other entertainment facilities such as restaurants and hotel, with late-night trading that also attracts customers. It therefore seems to me that the level of residential amenity, within a business or mixed-use zone is likely to be compromised somewhat, when compared to that experienced within a predominant residential zone. Mr Chambers agreed with this proposition.
32 The other significant issue discussed during the appeal relates to the management and security of the hotel operations. In this regard, I note that the proposal was referred to the NSW Police Service, who raised no objections or suggested any additional conditions of consent. Consequently, the draft conditions include a number of conditions relating to management and security, with particular reliance on the Management and Security Plan (updated 2/02/06). Having carefully considered this plan, I am satisfied it deals with the basic concerns raised, subject to more specific detailing of a number of matters.
33 Insofar as the Plan contains controls to demonstrate that the Hotel can operate on a "good neighbour" basis, this is to be achieved to some extent by designated hotel staff undertaking regular external noise checks, which is logged on the "Noise Management Sheet". As the Plan requires these noise checks to be carried out every 15 minutes after 8 p.m., it seems to me that any undue disturbance arising out of the hotel activities can be readily identified and appropriate remedial action taken. This may involve requests for additional security presence and this procedure should be identified.
34 Accordingly, I consider following matters in the Plan, which should be an attachment to the conditions consent, require further detailing: -
- Section 6 – Noise; the six different external points for noise checks should be agreed by council and identified on an attached plan,
- The details in s 5.1 of the noise control management sheet, should be revised to avoid duplication and incorporated into s 6,
- The licensee, or designated nominee from time to time, should be authorised to complete the Security Licence,
- The Plan should identify what the security arrangements are to deal with identified disturbance or antisocial behaviour, within the proximity of the hotel,
- Complaints Register; the Plan should identify the licensee's responsibility for maintaining the complaints register and indicate how complaints may be registered, what subsequent action has been taken and that it should be available for council inspection,
- Noise Management Sheets should be co-ordinated and maintained in conjunction with the complaints register,
- Plan review; more specific arrangements are required to allow it to be reviewed on an annual basis and stipulate what changes, if any are to be made and approved by the appropriate authorities.
Conclusions
35 Having considered the evidence, the submissions and undertaken a view I am satisfied that the appeal should be upheld and the conditions of consent revised to some extent. In my assessment, the original conditions of consent, which further restricted the hours of operation from that currently allowed for the existing hotel, are unreasonable in the circumstances of this case, considering the incremental changes incurred by the transfer of the existing gaming room of 15 machines into the adjoining, commercial premises. In my assessment the approved LAB hours of operation should apply.
36 Likewise, the conditions requiring a trial period also do not seem reasonable considering this incremental change and also the fact that the hotel is to operate within its approved hours of operation, without extensions whereby a trial period in councils Policy is invoked. In this regard, I rely on the detailed assessment by the Court appointed expert Mr Chambers, who does not consider it necessary or reasonable to maintain the trial period condition in this case.
37 In reaching this conclusion, I have given particular attention to the applicant's Management and Security Plan, which has been incorporated into the revised conditions of consent. In my assessment, satisfactory resolution of the aforementioned detailing matters should reasonably address the outstanding issues and matters raised by the residents, to enable final orders and revised conditions to be made.
38 With respect to the other disputed conditions of consent, my conclusions are:
- the streetscape presentation of No. 164 requiring the provision of a satisfactory internal screen to prevent direct viewing of the gaming machines from the street, whilst maintaining the heritage characteristics and desired active streetscape frontage can be incorporated into Construction Certificate application for determination of the final design,
- with regard to the conditions restricting late patron entrance, I consider this should be addressed as part of the management Plan, to ensure that the approved LAB closing hours are complied with,
- draft condition 7 can be deleted,
- draft condition 8 may be a note,
- draft condition 17 to be amended, providing the revisions to the Plan adequately cover the arrangements for necessary security and backup in emergency or major event circumstances,
- draft condition 19 is to be retained at and reflect the acoustic experts recommendations for external noise monitoring,
- draft condition 26A to be amended to prevent direct street access to No. 164 after 10 pm, so that all access to the gaming room after this time, is controlled through the existing hotel doors,
- draft condition 35 is to be maintained to ensure adequate street lighting to maintain pedestrian safety and security.
Court orders
39 The parties then are directed to file and serve final conditions, incorporating the revised Plan , to facilitate the following final orders being made.
40 The orders of the Court are:
1. The appeal is upheld.
3. The exhibits may be returned except for Exhibits 2, 4, 11, A, B and G.2. The conditions of consent for development application D/2005/550 concerning alterations to the Nags Head Hotel, are varied as shown in Annexure “A”.
___________________
R Hussey
Commissioner of the Court
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