Whitehouse Properties Pty Limited v Waverley Council
[2007] NSWLEC 264
•19 March 2007
Land and Environment Court
of New South Wales
CITATION: Whitehouse Properties Pty Limited v Waverley Council [2007] NSWLEC 264 PARTIES: Whitehouse Properties Pty Limited v Waverley Council FILE NUMBER(S): 10917 of 2003 CORAM: Moore C KEY ISSUES: Development Consent :-
Modification application
Licensed premises
Impacts on residents
Trial periodsCASES CITED: Whitehouse Properties Pty Limited and Waverley Council [2004] NSWLEC 645;
1643 Pittwater Road Pty Limited v Pittwater Council (2004) NSWLEC 685;
Windy Dropdown Pty Limited v Warringah Council (2000) 111 LGERA 299;
.DATES OF HEARING: 16, 19, 23 and 27 February and 19 March 2007 EX TEMPORE JUDGMENT DATE: 19 March 2007 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr C McEwen SC
INSTRUCTED BY
Terence W Riley
Solicitor
MR S Brockwell, barrister
INSTRUCTED BY
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE C
19 March 2007
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.10917 of 2003 Whitehouse Properties Pty Limited v Waverley Council
JUDGMENTThe consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
1 COMMISSIONER: These are two appeals pursuant to s 96 of the Environmental Planning and Assessment Act 1979 concerning the Beach Road Hotel (the hotel) which is at 99 Glenayr Avenue Bondi, Beach. Essentially the main matters that is in contention in these proceedings is whether or not a restriction on the operation of the upper level of the hotel should be relaxed, and whether an original trial period, which has now expired, should be extended from the time of its expiry to a further expiry period twelve months from the date of this decision.
2 I first dealt with matters involving the hotel in Whitehouse Properties Pty Limited and Waverley Council [2004] NSWLEC 645 when, on 18 November 2004, I gave an extemporaneous decision based essentially on a series of agreed positions (although, at that time, I did determine that the then operation on the revised basis should be subject to a 12 month trial period – a period now significantly past).
3 The applicant has continued to trade as if the trial period continued pending determination of these proceedings.
4 I indicated to Mr McEwen, senior counsel for the applicant, that, at the very least in these proceedings, I felt it appropriate to regularise that trial period extension until the conclusion of my determination of this matter.
5 On the first occasion I dealt with the hotel, I heard extensive evidence from residents, and I have heard further extensive evidence in these proceedings from residents, a number of whom gave evidence in common in both proceedings.
6 On both occasions the residents’ evidence was cogent, coherent and obviously given sincerely. There are two discreet functional strands of their evidence of impacts of the premises on the residents in the vicinity of the hotel.
7 The first relates to noise generated from the premises and capable of being heard, primarily base vibration tones, at residential premises.
8 The second strand is the common strand that exists in dealing with impacts of licensed premises that are located in or very near to residential areas of anti-social behaviour of patrons of those licensed premises either going to or, more frequently, departing from those premises.
9 There is no need to undertake a lengthy recital of the types of behaviour that are objected to – they related to noise and exuberance at the more mild end of the spectrum through to a variety of genuinely anti-social behaviours such as urination, defecation, breaking of bottles and the like.
10 On the first area of concern, having inspected the premises with the legal representatives of the parties, and expressing doubts with respect to the operation of the noise limiters, the applicant has tendered a revised noise limitation condition with some changes that have evolved during the course of the proceedings. I am satisfied that the incorporation of that noise limitation condition is likely to resolve the impacts which gave rise to that resident objection.
11 Dealing with the question of anti-social behaviour is of a more difficult nature. I have had, and received considerable benefit from, the evidence of Sergeant Bolt, the licensing supervisor of the Local Area Command within which the premises are located, concerning the areas of impact of departing patrons, and how that might be dealt with.
12 Part of the evidence that came from the residents was that they believed that there was a distinct difference between the upstairs patronage in what was described as a nightclub (or nightclub cum honey pot type of attraction) and those who would otherwise patronise the downstairs more traditional drinking areas of the premises.
13 It was Sergeant Bolt’s evidence today that, primarily on the nights of Wednesday, Friday and Saturday – they being the ones of greatest impact on the residents, it was likely that the demographic was in the eighteen to thirty age group, and that although there might be some additional attraction to the upstairs area there was a broad attraction to the totality of the premises for that demographic.
14 The areas that were of particular concern to Sergeant Bolt related to the impacts of departing patrons leaving the hotel and travelling along Beach Road to the east to go to other late night venues in the vicinity. If all such departing patrons were to be funnelled away from Beach Road or controlled during the period of their traversing of it there might then become a problem in Glenayr Avenue to the south towards Curlewis Street.
15 I had the benefit of joint expert planning evidence, which showed that there were a number of matters in which the present conditions of operation were unsatisfactory. A similar position arose with respect to Sergeant Bolt’s evidence and certainly also arose out of the resident’s evidence.
16 Even if I were not to proceed in the fashion that I propose to follow, there is a significant risk of an increased adverse impact on the residents if the applicant were to take the course of surrendering the existing consent and reverting to an earlier less constrained one.
17 I am satisfied, consistent with the decision in 1643 Pittwater Road Pty Limited v Pittwater Council (2004) NSWLEC 685 that it is appropriate to impose additional ameliorative conditions as part of the s 96 amendment application – provided those conditions themselves relate to or arise out of the matters that are the subject of the s 96 application.
18 I am satisfied that a number of significant benefits can potentially be obtained for the residents by adopting most (but not all) of that which is now proposed by the applicant in these proceedings as discussed with, and arising out of, Sergeant Bolt’s evidence this morning.
19 I have in evidence Exhibit E which proposed a re-arrangement of the security operations. This re-arrangement provides a much greater degree of certainty than the present description of the objectives of the external residential patrols set out on p 6 of the existing security protocol for the hotel.
20 In particular the existing security protocol for the hotel says, relevantly:
- “Security officers are the most important ingredient to achieving a positive outcome in each of these areas. For this reason security officers working at the Beach Road Hotel are required by management to conduct regular foot patrols of the area surrounding the hotel. These patrols are required to be conducted continually from 10pm every night security is rostered, and takes one guard 15 minutes to complete or two guards 7 minutes to complete.”
21 There have been conflicting versions of what the residents might have expected that to mean and what the hotel has taken that to mean.
22 The residents assumed that continually meant continuously, whereas it is obvious from the evidence that was given by Mr Delaney that the hotel meant that if it was at 10pm, 11pm and 1am (with a hiatus for the hotel’s operational reasons at midnight) that was continual and regular but not continuous. The residents, quite understandably, had an expectation that the beat would have been walked on what amounted to a never ending path during that period of time.
23 I am satisfied that what is offered in Exhibit E, as modified in light of the discussions with Sergeant Bolt this morning and excluding Glasgow Avenue, with two additions, provides a suitable basis upon which to permit a further trial period for the hotel – based on a 12 midnight lock down of the hotel.
24 The first addition is that there would be a requirement for somebody representative of the hotel management (and not necessarily a licensed security person) to undertake what might loosely be described as an observation mission along the western areas of Beach Road and Glenayr Lane in lieu of that being undertaken by security personnel as presently required.
25 Second, given the evidence of Sergeant Bolt that there is some impact of persons being recruited to the hotel but turned away at time of lock down that it would be appropriate for the person who is to be on permanent rotating or mobile patrol of Glenayr Avenue, particularly towards Curlewis Street, should commence at 11.30pm in order to have that continuous patrolling presence during the half hour prior to lock down. This is required so that those persons who might be being attracted during that period could be provided with warnings of the lock down and the problems associated with attraction and turning away should be, at least to some extent, addressed.
26 I am satisfied that, under those circumstances, if there is a lock down from 12 midnight, it is unnecessary to have a limitation on the persons who are able to be upstairs beyond any limitation that might ordinarily arise by the operation of the Building Code of Australia.
27 I am satisfied of that for a number of reasons. The first is the complexity and difficulty in undertaking an appropriate counting system that counts persons into the premises and counts them upstairs and downstairs on a regular basis, and particularly in turning away from returning to upstairs those persons who may have been upstairs and who went downstairs after the previous 11pm restriction on new access to the upstairs area.
28 I am also satisfied that Sergeant Bolt’s evidence - that there is a desirable ability on management to use a balancing arrangement between the various elements of the hotel - provides an appropriate but minor adjunct reason for that to occur.
29 Finally I note that, if the applicant were minded to do so, it could transfer the totality of its nightclub style activities to the ground floor and still be consistent with the place of public entertainment permit as it presently operates.
30 I am therefore satisfied that, subject to the various matters that I have enunciated, that the new regime for the premises should operate for a twelve month trial period from the date of the Orders to give effect to my decision, and that the previous twelve month trial period should be extended until the date of those Orders from the date of its prior expiry, I am satisfied that that last provision is capable of being undertaken consistent with the decision of Talbot J in Windy Dropdown Pty Limited v Warringah Council (2000) 111 LGERA 299.
31 I am also of the view that granting the application in the form that I have, with the additional conditions, means that the modified operation (subject to a further trial period) will still be substantially the same as that which has been operating in the earlier trial period and that the only changes that have been made to it are those that are likely to be of benefit to the residents in this regard, particularly the elimination of the 12 midnight hiatus leading to the adoption of continuous two guard patrols in Beach Road from 11pm onward.
32 I therefore propose that the parties need a period of time to settle the terms of revised conditions of consent to give effect to my decision. I therefore give the following directions:
- The respondent is to file settled revised conditions by the close of business on 2 April;
- Callover before the Registrar on 4 April;
- Liberty to re-list on one days notice on after 2 April;
- The exhibits are returned; and
- Callover will be vacated and Orders made in Chambers if the conditions in (1) are filed electronically in accordance with Practice Direction 2 of 2005 and a separate email provided to the Court alerting that that has happened.
Tim Moore
Commissioner of the Court
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