SJB Planning (NSW) Pty Limited v Waverley Council

[2007] NSWLEC 515

Land and Environment Court

of New South Wales

CITATION:

SJB Planning (NSW) Pty Limited v Waverley Council [2007] NSWLEC 515

PARTIES:

APPLICANT
SJB Planning (NSW) Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

11162 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- alterations and additions to a hotel
impact of outdoor terrace used for smoking on adjoining properties
noise impacts
visual impact of signage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Smoke Free Environment Act 2000
Waverley and Woollahra Joint LEP 1991

DATES OF HEARING:

07/03/07 and 08/03/07

EX TEMPORE JUDGMENT DATE:

9 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. B. Austin, QC
Instructed by Ms B. Dwyer, solicitor
of Back, Schwartz, Vaughan

RESPONDENT
Mr C. McEwen, SC
Instructed by Mr M. Staunton, solicitor
of Staunton and Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

9 March 2007

11162 of 2006 SJB Planning (NSW) Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (the council) of a development application (302/06) for alterations and additions to the Grand Hotel, 89 Ebley Street, Bondi Junction (the site).

The site and its context

2 The site is on the southern side of Ebley Street, between Brisbane Street and Mackenzie Street. It is L-shaped with a primary frontage to Ebley Street to the north of 43.24 metres, and a secondary frontage to Brisbane Street of 35.58 metres with a total site area of 1,664 square metres.

3 The site is developed with a 3 storey hotel with a later single storey addition. The public areas of the hotel are located at ground and basement level and include the Cock and Bull Bar, Siobhans Bar, Cellar Bar and a gaming lounge.

4 Opposite the site to the north is a 17 storey mixed residential/commercial development known as Genoa, (80 Ebley Street and 33 Bronte Road). Other development to the north is predominately mixed use commercial development. To the east is an 8 storey residential/commercial building (75 Bronte Road). West of the site is a pair of single storey semi-detached cottages, on the corner of Ebley Street and Mackenzie Street. Mackenzie Street and to the south of the site, is predominately one and two storey residential terraces.

Planning framework

5 The site is located within a Business Special (Low Intensity) 3(a4) zone under Waverley and Woollahra Joint Local Environmental Plan 1991 (LEP 1991). The use of the premises as a hotel is prohibited in the zoning, but the current operation enjoys existing use rights under ss 106 to 108 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The hotel is thought to have operated since 1886.

6 Land to the north is zoned Business Secondary 3(a2), which marks the edge of the Bondi Junction Commercial Centre. Land to the south is a Residential 2b zone.

7 The Smoke-Free Environment Act 2000 (the Act) and the Smoke-Free Environment Regulation (the Regulations) specify the requirements for a smoke-free environment and apply to the hotel.

The Proposal

8 The development application was lodged on 8 June 2006. The application was notified to nearby properties and council received 6 submissions, including a letter with 23 signatures, objecting to the proposal.

9 The council’s Development and Building Unit and Independent Hearing and Assessment Panel recommended approval of the application. Council twice deferred determination of the application for a site inspection and then for further information. Council refused the application on 23 January 2007.

10 The application is described in the Statement of Environmental Effects as being for:

· alterations and additions, to create an open terrace area suitable for smoking patrons within the Ebley Street frontage of the Cock and Bull bar.

· Internal alterations and fit-out work to the Cock and Bull bar,

· building works associated with fire safety upgrade, including the installation of a sprinkler system,

· installation of new signage,

· amended place of public entertainment (POPE) licence.

11 The application also included a proposal to lengthen by 400 mm the bi-fold windows on the Ebley Street façade. These windows were approved under Development Application 7/2003 and are currently under construction. Council opposed this change and during the hearing the applicant withdrew this aspect of the proposal.

12 The Statement of Issues contained seven issues, some of these were resolved through conditions and the amended Plan of Management. The remaining issues can be summarised as:

1. Whether the proposed outdoor terrace or smokers’ room, has an acceptable impact on residential amenity, particularly in relation to noise.
2. Whether the proposed signage is acceptable.

The evidence

13 The Court heard evidence on site from a number of residents and other interested persons. Their main concerns can be summarised as being that the current operation of the hotel adversely impacts on residential amenity through noise emanating from the hotel and unacceptable behaviour of patrons leaving the hotel. They considered the proposal will exacerbate these impacts, in particular the removal of the roof will increase noise impacts which are already considered to be unacceptable.

14 The objectors also considered that the proposed area to be an outdoor terrace rather than a smoking room, and that people being allowed to eat and drink in the area, would encourage the prolonged use of the area by smokers and other patrons.

15 The following experts provided evidence:

For the council

· Mr K Nash town planner, and

· Mr L Challis, acoustic engineer.

For the applicant,

· Ms A McCabe, town planner, and

· Mr S Cooper, acoustic and vibration engineer.

Amenity

16 The main concern of council and the residents related to the likely noise impacts of the proposal. Mr McEwen SC, for the council, submitted that the proposal should preserve or improve existing amenity.

17 Mr Austin QC, for the applicant, submitted that the proposal did not involve a change to the operating hours or patron numbers already approved for the hotel. The area of live entertainment was also being reduced. In relation to the patron numbers, the proposal involved a redistribution within the hotel, rather than an increase in numbers. The total number is unchanged. If the outdoor terrace could not be used due to weather, the patron numbers in the bars could not be increased to compensate. Ms McCabe stated that in this situation the overall numbers proposed would be less than already approved.

Findings

18 As the hours of operation and patron numbers are not changing, the key issue that needs to be considered is whether the change of an internal bar area to an outdoor terrace, will result in any unacceptable impacts.

19 The proposal involves the provision of a courtyard area with an area of about 76 square metres, excluding the entrance area. Ms McCabe stated that the purpose of the courtyard is to ensure that the premises can comply with the Act. The object of the Act is:

to promote public health, by reducing exposure to tobacco and other smoke in enclosed public spaces.

20 The Act prohibits people smoking in an enclosed public area, known as a ‘smoke-free area’. Clause 8 of the Regulations provide guidelines for determining what is an enclosed public space. These can be summarised as being where 75% of the space is enclosed.

21 The planning experts agreed that the outdoor terrace or smokers’ room, although enclosed by walls on four sides and partially roofed with acoustic baffles, met the requirement of cl 8 of the Regulations and was therefore not an enclosed public area, where smoking was prohibited. Clause 10 of the Act provides that reasonable steps must be taken to prevent smoke from the smokers’ room penetrating the smoke-free area.

22 The Act and Regulations do not require that a smokers’ room must be provided, nor specify any requirement such as maximum area per person, or that food or alcohol cannot be consumed.

23 A concern of the residents and council was that the application was for a smokers’ room, but was actually providing an outdoor terrace. The understanding was probably based on the planning reports, which described the application as being for an outdoor smokers’ terrace.

24 The application is described in the Statement of Environmental Effects as an outdoor terrace, which will satisfy the requirements of the Act. It is therefore appropriate to assess the application on the basis of it being for an outdoor terrace. This is the basis upon which Mr Nash undertook his assessment.

25 The terrace will be used by both smokers and non-smokers and will cater for up to 100 people. Food and drink will not be served in the area, and live or amplified music will not be played. The bi-fold windows to the area will be closed by 8pm on Sunday to Wednesday and 9pm on Thursday, Friday and Saturday. These hours were approved under DA 7/2003.

26 I accept that the amenity provided by the area will enable smokers to stay in the area and therefore facilitate smoking. However, encouraging smoking is not a matter which is addressed by the legislation and is beyond that to be considered as part of a development assessment, except insofar as it will impact on amenity.

27 The noise experts agreed that the proposal would be able to meet the Liquor Administration Board (LAB) noise criteria, and provided conditions which imposed a noise monitoring regime to ensure that this would be achieved.

28 Mr Cooper stated that the proposal would result in an improvement in the current noise levels as the area would be segregated and no longer used as an area for live or amplified music. Work was proposed in the Cock and Bull Bar which would reduced noise levels. In Mr Cooper’s opinion, the proposed baffles would provide greater noise attenuation than the existing lightweight roof.

29 Mr Challis agreed that these measures would reduce noise, but was more conservative in his conclusion, stating that while there may not be an improvement in the overall noise level from this area, it would not be worsened.

30 Both Mr Challis and Mr Cooper acknowledged that providing an airlock between the Cock and Bull Bar and the terrace would reduce noise and smoke penetration between the areas. But in relation to noise, the experts did not think that it was necessary for an airlock, as the other measures proposed satisfied the LAB criteria.

31 Overall, I am satisfied the proposed outdoor terrace will not result in adverse noise impacts from sound leaving the area. Further, the regime of monitoring will confirm that the LAB criteria can be met. I note Mr Austin’s submission that it is unreasonable to expect that no noise will be generated from the hotel, but it must be demonstrated that the LAB criteria can be met.

32 In relation to the noise of patrons in the street, the proposed development does not increase patron numbers or hours of operation. It provides an updated Plan of Management that incorporates the conditions of previous approvals into one document which will facilitate easier understanding of the expected operation of the hotel, particularly security arrangements and supervision outside the premises, as well as providing the contact number of hotel staff for residents to use.

33 While I acknowledge the potential advantages of an airlock, the experts’ evidence is that this is not required to mitigate noise impacts. The condition is therefore not required. However, I note that this should be confirmed through monitoring of the proposal. The airlock is also not necessary to meet the requirements of the Act in relation to the penetration of smoke to smoke-free areas. The proposed self-closing doors and air-conditioning of the bar constitute “reasonable steps” to address this issue.

34 In relation to condition 23, I accept Mr McEwen’s SC submission. The evidence of the noise experts was based on the outdoor courtyard not providing live entertainment or music. The experts acknowledge that the noise associated with large sporting events being played on TVs would probably exceed the LAB criteria. It is not realistic to manage or enforce a condition that the use of TVs be limited. Further, the outdoor terrace should be an outdoor area without the service of food or alcohol or other facilities such as TVs, particularly as the area, with the approved bi-fold windows, interacts directly with the public domain and pedestrians’ use of the street. For these reasons condition 23 is retained.

Signs

35 The application proposed alterations to existing signs, and additional signage. The signs in dispute were the illuminated top hamper sign, illuminated window box signs and the existing parapet sign.

36 In relation to the parapet sign, it is proposed to paint the existing sign black. Mr Nash considered this would “remove the attractive elements of the parapet sign at any time in the day or night”. I do not accept this opinion and consider the proposed colour change will have no material impact or change how the sign is perceived.

37 The illuminated top hamper sign will replace an existing painted sign. The difference in opinion between the experts was that Mr Nash considered that there were already a number of signs on the Ebley Street frontage of the hotel, which were of different styles and appearance that resulted in visual clutter. He considered that any further signage should be undertaken in a coordinated manner, in accordance with a signage strategy. Mr Nash also held the view in relation to the proposed window box signs on Ebley Street. The window box signs in Brisbane Street, Mr Nash considered to be acceptable, if reduced in size, as there is currently no signage along the Brisbane Street frontage.

38 Whereas Ms McCabe considered illuminated signs to be characteristic of a business area and that there were numerous examples across Ebley Street. She stated that the building is not a heritage item or in a conservation area, and therefore the proposed signage would have an acceptable visual impact on the building and the area. Ms McCabe also considered a signage strategy to be unreasonable as this would normally be required as part of a major upgrade of the building.

Findings

39 The parties disagreed on whether the illuminated window boxes were approved and this was not determined within the hearing. If the boxes were approved they clearly appear as if they were intended for signage, and therefore static signage behind the retained window frame may be appropriate. However, in the absence of any evidence of such an approval, I consider that the addition of five window boxes used to advertise products of the hotel and the illuminated top hamper sign to be excessive.

40 The hotel already has a number of signs, and these appear as ad hoc with no consistency of theme. I accept Mr Nash’s opinion that a signage strategy should be prepared before additional signage (particularly illuminated signage) is proposed. I consider that a strategy is not a requirement only for a heritage building, or a building in a conservation area, or for major upgrades. But it is appropriate when a large number of signs, both identification and advertising of products are proposed particularly for a building on a prominent corner which is relatively attractive. Additional signage can add to visual clutter and impact on the appearance of the building and the area. While I accept that signage, including illuminated signage, is appropriate in a commercial area, this should be done in a coordinated manner, which does not detract from features of the building such as its ground floor windows.

41 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application (302/06) for alterations and additions to provide an outdoor terrace suitable for smoking and the provision of signage at the Grand Hotel, 89 Ebley Street Bondi Junction, is approved, subject to the conditions in Annexure A.
3. The Exhibits, except exhibits A, B, D, G, K and 4 may be returned.

___________________

Annelise Tuor
Commissioner of the Court
DK/ljr