Whitehouse Properties Pty Limited v Waverley Council

[2004] NSWLEC 645

Land and Environment Court

of New South Wales

CITATION:	Whitehouse Properties Pty Limited v Waverley Council [2004] NSWLEC 645
PARTIES:	APPLICANT Whitehouse Properties Pty Limited RESPONDENT Waverley Council .
FILE NUMBER(S):	10917 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Application to modify method of hotel operation
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	19 December 2003, 14 April, 16 June, 13 August and 18 November 2004
EX TEMPORE JUDGMENT DATE :	11/18/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor Storey & Gough RESPONDENT Mr S Brockwell, barrister INSTRUCTED BY Staunton & Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

18 November 2004

03/10917 Whitehouse Properties Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal against a refusal by Waverley Council (the council) of an application by the Beach Road Hotel to vary the mix of numbers of its patrons between the upper and lower level facilities of the hotel.

2 The proceedings have been conducted over a considerable period of time. During the course of the proceedings I have had the opportunity to inspect the premises after midnight one evening in company with the legal representatives of the parties.

3 In addition, during the course of the proceedings, the points of difference between the parties have narrowed and a number of ameliorative changes have been made to the management plan for the hotel which, if implemented, should provide some assistance to the residents in the vicinity of the hotel with the concerns they have expressed about the behaviour of departing patrons. Those changes will not come into effect until this consent is granted.

4 I am satisfied that it is appropriate to grant the terms of the amended application.

5 I also reached the conclusion that it was desirable that this be limited to a twelve month period in order that the council and residents may have an opportunity of assessing the effectiveness of the changed method of operation of the hotel - particularly the operation of the security guards after the closure of the hotel on the busy trading nights.

6 The council had notified all resident objectors of the fact that parties are in agreement save as to one condition and that condition related to the provision of security guards on Monday and Tuesday trading nights.

7 The council accepts that the activities of the patrons on a Monday and Tuesday is significantly lower both in the behavioural impacts and as to the number of patrons compared to other nights of the week. This is reinforced by the evidence given before me today by Mr Barry McLarty, a resident in the vicinity of the premises.

8 As a consequence of the notifications of the various objectors, the council had proposed to enter into consent orders that did not require the hotel to operate with security officers on Monday and Tuesday nights.

9 As the terms of the notification did not, in my view, strictly comply with the requirements of the cl. 9 of the Consolidated Practice Direction as to the notification of objectors of the terms of the proposed orders, I was not prepared to deal with the matter by way of consent orders.

10 However, I am satisfied on the evidence before me (and has been before me on earlier occasions) of the trading levels on Monday and Tuesday night that, consistent with the evidence given of Mr McLarty, those evenings do not warrant a requirement of security officers on duty.

11 That presumption is made on the basis that present trading patterns of the hotel and the nature of the activities that take place on Monday and Tuesday nights remain unaltered from the present position - it being the evidence of the proprietor that the hotel trades to a point in time earlier than that which is the maximum permitted and does not have entertainment of a type that might otherwise be permitted on those evenings.

12 If those circumstances were to change, the basis on which I am prepared to determine that security guards on Monday and Tuesday nights are not required would be vitiated as a consequence.

13 I am prepared to uphold the appeal and grant consent subject to the conditions which have been notified to the objectors with an amendment to condition 2 which will require that security guards according to the Environmental Management Plan to be rostered at the premises on Wednesday, Thursday, Friday, Saturday and Sunday nights and not on Monday and Tuesday nights.

Commissioner of the Court