Parras v Waverley Council

[2006] NSWLEC 482

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Parras v Waverley Council [2006]  NSWLEC 482

PARTIES:
APPLICANT
Colin Parras

RESPONDENT
Waverley Council

CASE NUMBER:        10294  of        2006

CATCH WORDS:       Development Application

LEGISLATION CITED:
Waverley and Woollahra Joint Local Environmental Plan 1991
Bondi Junction Commercial Centre DCP
Waverley Council Retail and Commercial Policy (Policy)
Protection of the Environment Operations Act 1997

CORAM:          Hussey C

DATES OF HEARING:            01/08/2006

EX TEMPORE DATE:             02/08/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr S Austin, QC
Instructed by: Mr T Schwartz
Of: Back Schwartz Vaughan

RESPONDENT
Mr I Hemmings, barrister
Instructed by: Mr M Staunton
Of: Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 August 2006

10294 of 2006  Colin Parras v Waverley Council   

JUDGMENT

This decision was given extemporaneously and has
been revised and edited prior to publication.

Background

1. This appeal was lodged against council's refusal of a development application for the extension of trading hours for the Eastern Hotel at Bondi Junction to allow late night trading from 3 a.m. to 5 a.m. Monday to Saturday.

1. The site is located on the northern side of Oxford Street midway between its intersection with Grosvenor Street and Adelaide Street. It comprises a 3-storey hotel building formerly known as the Bondi Junction Hotel. The building is listed as a Heritage Item in the 1991 Waverley/Woollahra Local Environmental Plan.  The Hotel has recently been fully refurbished and incorporated within the Westfield shopping complex.  It has access from Oxford Street at the front and at the rear from within the shopping complex at two levels.

1. There are a number of residential apartments in proximity to the subject site, with the nearest residential apartments being those in Stanford, in 1 Hollywood Avenue, which is some 60 m distance to the nearest point of the subject site.

1. The issues identified for the appeal can be summarised as follows:

   whether the extended trading hours are consistent with Council’s Retail and Commercial Policy,

   whether the site is suitable for the extended hours,

   whether the extended hours will result in antisocial behaviour,

   public interest considerations.

2. In order to address these issues, the parties agreed to Mr R Chambers being the Court-appointed expert in planning and he prepared a detailed assessment proposal (Exhibit 3), which resulted in his support for the proposal subject to appropriate conditions.

1. Following consideration of this assessment, further conferencing between the parties has resulted in an agreed set of conditions, which now results in council support for the proposal on the basis of a 1 year trial period.

Planning controls

Waverley and Woollahra Joint Local Environmental Plan 1991

1. Under this LEP the site is zoned 3 (a2) Business General and hotels are permissible with consent.  The objectives of this 3 (a2) zone are as follows:

1to establish a core business zone which provides for wide range of retail and commercial uses, ancillary light industrial uses, entertainment, social and recreational uses and residential development mixed with those uses;

2to provide the opportunity for major redevelopment to occur in the core area in order to control the overall physical form of the centre and minimise impact on adjoining residential areas;

3to limit the amount of residential development and encourage employment generating uses any interest in maintaining a strong retail and commercial core and providing a more efficient use public transport infrastructure; and

4to promote the retail function and vitality of the centre by supporting the retention and establishment of shops and other shopper oriented uses on ground for frontages on certain streets.

1. Dwelling houses and residential flat buildings are prohibited in the 3(a2), except where they form part of a mixed-use development.

Bondi Junction Commercial Centre DCP

1. This DCP is primarily related to urban design outcomes, wherein the preamble states as follows:

   Bondi Junction Commercial Centre brings together a diversity of users, including local residents, regional shoppers, office workers, tourists, restaurant and club patrons, and people using public transport who pass through Bondi Junction on the way to the City …

2. The DCP identifies a number of these positive attributes but has limited application to the subject proposal.

Waverley Council Retail and Commercial Policy (Policy)

1. This policy was adopted on 15 November 2005, after the subject development application was lodged on 14 October 2005.  According to Mr Chambers’ investigation, the Policy was prepared and exhibited as a draft DCP.

1. The objectives of the Policy are as follows:

1.Apply consistent controls to retail/commercial premises within the Waverley Local Government Area (LGA);

2.Minimise any potential adverse impacts from retail/commercial premises of the surrounding environment;

3.Enhance the scenic quality and amenity of streetscapes and public places within the Waverley LGA;

4.Provide a policy basis to regulate the trading hours of retail/commercial premises;

5.Allow for the monitoring of operations of retail/commercial premises, primarily through the use of trial periods for extended trading hours;

6.Promote more sustainable retail/commercial operation;

7.Ensure the operation of retail/commercial premises are compatible with adjoining residential uses and are in accordance with the amenity expectations of this Policy and the subject site and localities zoning (s);

8.Enhance the commercial amenity and economic viability of the commercial centre; and

9.Promote active street level frontages in commercial precincts.

1. The Policy categorises hotels as "Type A premises" and provides a number of restrictions including permitted times of trading in various localities.

The evidence

1. In addition to Mr Chambers’ detailed assessment, a number of written objections were presented as contained in council’s bundle of documents (Exhibit 2).  Some further objections were expressed by the residents at the site inspection and have been considered.

1. The application was referred to the Police - Eastern Suburbs Local Area Command, who responded with support for the proposal subject to the imposition of specified conditions, including the 12 months trial period and a "Lockdown period", which prevents entry or re-entry to the premises after 2 a.m.

1. Having considered the evidence, particularly the Court-appointed expert’s assessment, I am satisfied that the proposal demonstrates reasonable compliance with the objectives of the relevant controls.  The hotel has been redeveloped in conjunction in the Westfield development and has existing approval to operate until 3 a.m. under its current conditions of consent.  These conditions of consent require the hotel to implement and maintain a comprehensive "Management and Security Plan", which provides that:

   the premises complies with any noise conditions required by the council and Licensing Court of NSW,

   any recorded music, live music or entertainment played or provided within the premises will be controlled to comply with requirements of the Environmental Noise Control Manual, 1985 and Protection of the Environment Operations Act 1997,

   security arrangements be maintained within the hotel and its surrounds and all security issues are to be logged in an incident log book,

   all the complaints are to be noted in a complaints register…

2. Accordingly, I have considered the objections/public interest considerations to the subject proposal, which is to predominantly extend the existing trading hours from 3 a.m. to 5 a.m. within the context of the existing approval and also council’s decision to not oppose the development, subject to the imposition of the 1 year trial period.  Also the conditions which maintain reasonable amenity levels for residents and users of the commercial centre.

1. The residents’ objections can be summarised as involving:

1.noise nuisance emanating from the hotel activities, particularly the top level smoking area,

2.noise and antisocial behaviour from patrons leaving the premises in the early hours of the morning,

3.concerns that extended trading hours will result in increased alcohol consumption with consequential negative community impacts.

1. From my observations on the view, I accept that uncontrolled activities on the top level (atrium) area could cause unreasonable noise disturbance. However whilst some of the objectors have expressed concerns in this regard, they do not appear to have registered any complaints with the hotel management for listing in the (aforementioned) complaints register.  But I understand that when 2 other noise complaints were made, the hotel responded by way of arranging an independent acoustic consultants assessment.  This assessment determined noise emissions to be in accordance with accepted criteria.

1. Taking into account then, that separation distances to the nearest residential units is in the order of 60 m and some diminution of noise could be expected over this distance, I am satisfied that the proposed conditions of consent can reasonably address this concern during the trial period.  These noise conditions are contained in Condition 8, which requires compliance with accepted noise criteria and also relevantly Condition 8(c) provides:

   Notwithstanding compliance with the above clauses, the noise from licensed premises shall not be audible within any habitable room in any residential premises between the hours 12 midnight and 7 am.

2. The associated concerns about antisocial behaviour from patrons leaving the premises will also be addressed to a reasonable extent by the other conditions of consent which generally require:

   the hotel to prominently display internal signage advising patrons to minimise any disturbance when leaving the hotel, this includes signage at the exit doors,

   the provision of CCTV cameras both internally and externally to monitor patrons leaving the premises, so that disturbances can be minimised,

   the provision of security guards to patrol Oxford Street between Hollywood Avenue/Adelaide Street and Grovenor Street so as to ensure the quiet and orderly departure of patrons. 

   Conclusions

3. Having considered the evidence and undertaken a view, I am satisfied that the proposal to extend the trading hours of operation for the Eastern Hotel from 3 a.m. to 5 a.m. should be allowed for the one year trial period, subject to the agreed set of conditions.

1. The Hotel is located within the 3(a2) Business General zone where the objectives are to establish a core business zone which provides for wide range of activities including entertainment and social and recreational uses and a limited amount of residential development.  Insofar as the Policy limits the operating hours, nevertheless it allows for discretion to be exercised for trial periods, which I accept is appropriate in the subject case.  This is consistent with the assessment of the Court-appointed expert Mr Chambers and council’s assessing officer’s report, contained in the bundle of documents.

1. Considering that the LEP limits the amount of residential development within the core business zone, it therefore seems reasonable that the level or balance of amenity for residents may vary from that expected in a predominant residential zone.  This is due in part to the type and timing of business and commercial activities, which may cause some level of disamenity, but otherwise offer a higher level of convenience of access to the commercial and transport facilities.

1. On balance, I am satisfied that the agreed conditions of consent are reasonable for the proposed one year trial period, which Police Department also agreed to.  Importantly, the conditions require the hotel to maintain a complaints register, which is clearly identified and records any actions taken, which can be used in controlling the on-going and future operations of the hotel.

Court orders

1. Therefore the orders of the Court are:

1.The appeal is upheld.

2.Development consent is granted to development application 648/2005 for extended trading hours from 3 a.m. to 5 a.m. Monday to Saturday for the Eastern Hotel at Bondi Junction, subject to conditions in Annexure A.

3.Exhibits may be returned except for Exhibits 3, 4, A and B.

___________________

R Hussey.

Commissioner of the Court

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