Quarantine Investments Co Pty Ltd v Manly Council

[2011] NSWLEC 1309

Land and Environment Court

New South Wales

Case Title:

Quarantine Investments Co Pty Ltd v Manly Council

Medium Neutral Citation:

[2011] NSWLEC 1309

Hearing Date(s):

23 February 2011, 1 April 2011, 17 May 2011 and 23 June 2011, written submissions 1 July 2011 and 14 July 2011.

Decision Date:

18 August 2011

Jurisdiction:

  Class 1  

Before:

Brown C

Decision:

1. Appeal upheld, in part.
2. The application to modify DA 238/2002 (as previously modified) in respect of the Manly Wharf Hotel located at shop 21, Manly Wharf, The Esplanade, Manly is approved by the modification of existing conditions 5 and 75 and the imposition of new conditions 79, 80, 81 and 82.

Catchwords:

MODIFICATION: modify the trading hours of existing hotel for dining on the restaurant and southern deck of the hotel - acoustic impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Quarantine Investments Co Pty Ltd (Applicant)

Manly Council (Respondent)

Representation

- Counsel:

Mr C Drury, solicitor and Mr P Marincowitz, solicitor (Applicant)

Mrs L Finn, solicitor (Respondent)

- Solicitors:

Sparke Helmore (Applicant)

HWL Ebsworth Lawyers (Respondent)

File number(s):

10146 of 2010

JUDGMENT

1. COMMISSIONER: This is an appeal against the refusal by Manly Council (the council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify the consent to DA 238/2002 (as previously modified) in respect of the Manly Wharf Hotel located at shop 21, Manly Wharf, The Esplanade, Manly. The modification application seeks to modify the trading hours for the hotel, specifically for the southern deck of the hotel.

2. The proceedings commenced on site on 23 February 2011 as a conciliation conference under s 34 of the Land and Environment Court Act 1979 where the contentions were discussed. With the agreement of the parties, the conciliation conference was adjourned to allow existing noise assessments to be considered and additional noise assessments carried out. A resumed s 34 conference was held on 1 April 2011 however the additional noise assessment had not been undertaken and the resumed s 34 conference was adjourned. The second resumed s 34 conference was held on 17 May 2011 where the parties advised that an agreement had been reached and directions were made for the filing of the agreement.

3. As the agreement had not been filed in accordance with the directions made on 17 May 2011, a mention was held on the 23 June 2011 where the parties advised that a disagreement had arisen in the formulation of the agreement. This disagreement centred on the appropriate form of barrier to restrict patron access to the eastern end of the southern hotel deck. At the mention, the applicant was directed to file and serve their preferred condition and amended Plan of Management by 1 July 2011 and with the council to respond by 14 July 2011, following which the Court would determine the outstanding matter based on the written submissions of the parties.

4. In coming to a position that the proposed modification was generally acceptable, the parties agreed on a number of revised conditions and additional new conditions. There was agreement between the parties on a revised condition 5 (overall operating hours for the hotel) and a revised condition 75 (hours of operation for the outdoor eating areas). There was also agreement on new condition 79 (number of patrons, operating hours and restrictions on the use of the southern deck), new condition 80 (number of patrons, operating hours and restrictions on the use of the restaurant deck) and new condition 82 (number of patrons and operating hours of the western deck).

5. New condition 81 relates to the erection of a temporary barrier at the eastern end of the south facing deck of the main bar, to prevent patrons from obtaining access to the eastern deck. The parties agreed that the access should be denied after 10 p.m. however differ on the form of the temporary barrier. The applicant proposes an "airport style bollard" with movable metal bases and poles with a retractable nylon belt whereas the council proposes a "1 m high solid and lockable barrier".

6. The applicant submits that the "airport style bollard" is appropriate as it would offer a higher level of occupants egress safety and would be superior in terms of options that a more solid, less movable type of barrier. As an alternative, the applicant offers a 12 month trial period to assess its effectiveness. The applicant preferred condition states:

   81. At 10.00 p.m, a temporary bollard is to be placed at the eastern end of south facing deck off the main bar to prevent patrons from obtaining access to the eastern deck. The Council shall allow the applicant to use an airport style bollard for this condition on a trial basis for 12 months. If at the end of such trial period the council asserts that a more substantial barrier is required, the Court may order the Applicant to provide such barrier and in the absence of any appeal by the Applicant against such order, the Applicant shall install the barrier required by the council within 42 days of being ordered to do so.

7. The council submits that the "airport style bollard" does not represent a sufficient deterrent to customers to prevent them migrating around to the eastern balcony after 10 p.m. and consequently a more substantial form of barrier is required. The council preferred condition states:

   81. A 1(one) metre high solid and lockable barrier shall be provided to the junction of the southern and eastern boundaries to Council's satisfaction. This barrier is to be closed every night at 10 p.m. to prevent patrons from migrating from the southern deck to the eastern balcony area.

8. In balancing the two different conditions, I prefer the applicant's condition because of the proposed trial period where the effectiveness of the "airport style bollard" can be assessed over a period of 12 months. If it proves to be ineffective and does not stop patrons from obtaining access to the eastern deck then the more substantial structure suggested by the council should be installed.

9. The orders of the Court are:

   1. The appeal is upheld, in part.
   2. DA 238/2002 (as previously modified) in respect of the Manly Wharf Hotel located at shop 21, Manly Wharf, The Esplanade, Manly is modified in the following manner:
   2.1 Condition 5 is deleted and replaced with the following condition:
   5. The hours of operation of the hotel is not to exceed 7.00 a.m. to 12 midnight Monday to Wednesday and Sunday and 7.00 a.m. to 1.00 am Thursday to Saturday without the prior consent of the Council.
   Reason: To ensure amenity of the surrounding locality is maintained and hours of operation are consistent with those in the surrounding locality.

   2.2 Condition 75 is deleted and replaced with the following condition:
   75. All outdoor seating areas of the hotel, except the southern deck and the restaurant deck facing south and the western deck, are not to be served after 9:30 p.m. and are to be closed to customers by 10 p.m. every night. This applies to the eastern verandah and the exterior bar area.
   Reason: To ensure amenity of the surrounding locality is maintained and hours of operation are consistent with those in the surrounding locality.

   2.3 New condition 79 that states:
   79. The number of persons on the southern deck is not to exceed 25 persons between the hours of 10:00 p.m. til midnight subject to the following:
   (i) a 12 month trial period of 37 persons on the deck to run from the date of the these orders, being 18 August 2011,
   (ii) the closure of all doors facing the southern deck at 10 p.m.
   (iii) the Plan of Management (PoM) being amended to put in place procedures in relation to these changes in the barrier that is to prevent patrons from migrating from the southern deck to the eastern deck, and
   (iv) there is to be no service of alcohol on the southern deck after 10 p.m.
   Reason: To maintain the amenity of the surrounding residential developments.

   2.4 New condition 80 that states:
   80. The restaurant deck, facing south, is to be used or seatng of a maximum of 60 persons until 12 midnight every night, subject to the plastic blinds being pulled down by 10 p.m. every night.
   Reason: To ensure the amenity of the surrounding locality is maintained.

   2.5 New condition 81 that states:
   81. At 10.00 p.m, a temporary bollard is to be placed at the eastern end of south facing deck off the main bar to prevent patrons from obtaining access to the eastern deck. The Council shall allow the applicant to use an airport style bollard for this condition on a trial basis for 12 months. If at the end of such trial period the Council asserts that a more substantial barrier is required, the Court may order the Applicant to provide such barrier and in the absence of any appeal by the Applicant against such order, the Applicant shall install the barrier required by the council within 42 days of being ordered to do so.
   Reason: To mitigate noise concerns by preventing patrons from migrating to the eastern balcony after 10 p.m..

   2.6 New condition 82 that states:
   82. Up to 12 patrons may be on the western deck between 10 p.m. and midnight every night.
   Reason - To ensure the amenity of the surrounding locality.

   G T Brown
   Commissioner of the Court