Whiteway House (No. 348) Pty Ltd v Waverley Council
[2004] NSWLEC 695
•11/10/2004
Land and Environment Court
of New South Wales
CITATION: Whiteway House (No. 348) Pty Ltd v Waverley Council [2004] NSWLEC 695 PARTIES: APPLICANT
Whiteway House (No. 348) Pty LtdRESPONDENT
Waverley CouncilFILE NUMBER(S): 10040; 10982; 10983 of 2004 CORAM: Murrell C KEY ISSUES: Existing Use Rights :- Impact on residential area LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 121B CASES CITED: DATES OF HEARING: 21/07/04, 30/07/04, 16/09/04, 23/09/04, 7/10/04, 15/10/04, 27/10/04 and 10/11/2004 EX TEMPORE
JUDGMENT DATE :11/10/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr A Galasso, barrister (First day only)
SOLICITORS
Mr C Gough & Ms B Gough
Storey & Gough
Mr J E Robson, barrister (First day only)
SOLICITORS
Mr G Hartley
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
10 November 2004
JUDGMENT10040; 10982; 10983 of 2004 Whiteway House (No. 348) Pty Ltd v Waverley Council
1 This is a verbal judgment for a matter that commenced before me on 21 July 2004. The appeal is in respect of an order that was issued by Waverley Council under s 121B of the Environmental Planning and Assessment Act (the Act). The order is to cease the unauthorised use of the premises for backpackers’ accommodation and revert the premises to its approved use as a boarding house. The reasons given by council for issuing the order are:
(2) The premises was converted from its approved use as a boarding house to an unauthorised use, backpackers’ accommodation, without development consent being obtained from the council.(1) That the premises are being used for a purpose, that is backpackers’ accommodation, that is prohibited within the Residential 2(b) Zone; and
2 Council gave the applicant 28 days to comply with the order. The applicant subsequently appealed under s 121K of the Act against the order that was issued by the council.
3 When the matter first came before me, there were a number of issues raised including that the premises did not enjoy “existing use rights” and it was argued on the first day of the proceedings before me. Subsequent to that, there have been numerous mentions in this matter and both parties have co-operated in the resolution of this matter, to the point where today it comes before me by way of consent (agreed) orders.
4 The Court heard the arguments with respect to “existing use rights”, however this is no longer contested. Through the goodwill of the parties, a management plan has been finalised which is to manage the premises such that it provides for a neighbourly development in terms of minimising the adverse impacts of the use of the premises as backpackers’ accommodation on the adjoining residential area. The purpose of the management plan is to ensure that the backpackers’ establishment co-exists harmoniously with minimal adverse impacts on the adjoining residential properties where it is located.
5 The subject premises is one that is within the iconic area of Bondi and clearly attracts numerous international backpackers to its premises, as well as no less domestic clients as well.
6 The management plan has now been agreed to with the assistance of the parties. This now covers numerous areas including the parking of vehicles. During the Court process, some seven car parking spaces in terms of permits are to be made provided by the council to the applicant for the management of the premises and these are to be made available to the guests of the premises.
7 There are issues with respect to night management, alcohol rules, parking rules, smoking rules and the noise that is emitted from the premises and the use of the outside terrace areas and other communal areas within the premises.
8 The parties have also come up with a set of house rules which would be the minimum in terms of the management plan. If the management wishes to add any rules, he/she may do so. Furthermore, the rules may be amended from time to time to reflect the monitoring in terms of the liaison committee that is to be established between council and the residents and the operator of the premises.
9 The house rules state that “a breach of these rules may result in warnings from the manager or your eviction”. Other rules include:
- (1) No consumption of alcohol in the public areas around the premises;
(2) No smoking is permitted in or around the premises except in the designated smoking room, balcony, courtyard;
(3) No drunkenness or offensive behaviour at any time;
(4) No alcohol, glassware, amplified music is permitted on the terrace balcony;
(5) No excessive noise will be permitted at any time;
(6) No parking without a permit from the reception in an area defined; and
(7) No object shall be thrown from the terrace balcony.
10 As I stated, the management may add what it considers to be other appropriate house rules. As well, it was also agreed that the house rules be displayed prominently in a number of locations, including the foyer, on the back of doors to guests’ rooms and in the dining and lounge area. House rules relating to specific areas must be displayed in that area, for example the one with respect to the use of the terrace balcony.
11 On the basis of the evidence that has been submitted to me, I am satisfied that the consent orders now handed to the Court are ones that will provide for parameters under which the backpackers’ establishment is to operate so that it does not adversely significantly interfere with the residential amenity of the area.
12 This is an establishment that is not permitted in the current zone but from the evidence presented to the Court, “existing use rights” operate. It is noted that the definitions of backpackers’ establishments and other definitions have changed over the years and others have been introduced and that this establishment commenced some time ago, prior to the current planning controls and definitions.
13 I see no reason why the Court should not agree to confirm and endorse the consent orders as handed up between the parties.
14 Therefore, the Court orders by consent:
1. The s 121B order the subject of these proceedings is substituted with the following order:
- “The use of the premises as backpacker accommodation shall cease unless the use operates in accordance with the Plan of Management annexed and marked “A”.”
2. The exhibits except for Exhibit 12, are returned.
The Court notes the following:
1. The respondent acknowledges that the premises enjoy existing use rights for backpacker accommodation for no more than 95 occupants.
2. The agreement of the parties that there be no order as to costs.
___________________
J S Murrell
Commissioner of the Court
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Annexure “A”
Conditions of Development Consent
WHITEWAY HOUSE (No. 348) PTY LIMITED
PLAN OF MANAGEMENT
63 FLETCHER STREET, TAMARAMA
_______________________________________________________
This Plan of Management (“Plan”) relates to the Premises located at 63 Fletcher Street, Tamarama (“Premises”).
A copy of this Plan and the House Rules under paragraph 5 below will be displayed prominently within the Premises.
OPERATIONS
The Premises shall operate in accordance with the following terms and conditions:
1. Full Time Manager
1.1 The Bondi Lodge shall be under the supervision of a suitably trained full time manager (“Manager”) and/or staff who will be in attendance at the Premises from 8.00am to 9.00pm daily to ensure that the Premises are managed in accordance with this Plan.
1.2 The Manager and staff will be responsible for compliance with all terms and conditions of this Plan.
1.3 Details of the identity, contact, training and experience of the Manager or any change in Manager must be provided to Waverley Council within 48 hours of written request by Waverley Council.
1.4 There may be more than one Manager however there must always be at least one Manager or staff on the Premises between 8.00am and 9.00pm. Any additional Manager(s) must be identified to Waverley Council in accordance with clause 1.3.
2. Night Manager
2.1 The Bondi Lodge shall be under the supervision of suitably trained night managers (“Night Managers”) who will be in attendance at the Premises from 9.00pm to 8.00am daily to ensure that the Premises are managed in accordance with this Plan.
2.2 The Night Managers will be responsible for compliance with all terms and conditions of this Plan.
2.3 Details of the identity, contact, training and experience of the Night Managers or any change in Night Managers must be provided to Waverley Council within 48 hours of written request from Waverly Council.
3. Alcohol Rules
3.1 No Manager or Night Manager or any other person involved in the management or operation of the Premises shall consume alcohol on the Premises or while on duty.
3.2 The Managers and staff will use their best endeavours to ensure that no guest or visitor shall consume alcohol in any public place immediately adjoining the Premises or in the park on the opposite side of Fletcher Street from the Premises.
4. Smoking Rules
4.1 There shall be an indoor smoking room provided within the Premises.
4.2 Smokers shall be encouraged to use the smoking room provided in accordance with clause 4.1.
4.3 The Managers and staff will use their best endeavours to ensure that no smoking shall occur at the Fletcher Street entrance to the Premises or in any public space immediately adjoining the Premises.
5. House Rules
5.1 As soon as possible after the date of this Plan there shall be an appropriate set of house rules established for the Premises (“House Rules”).
5.2 The House Rules must include but are not limited to:
A. No consumption of alcohol in the public areas around the Premises.
B. No alcohol, glassware or amplified music is permitted on the terrace balcony.
C. No smoking is permitted in or around the Premises except in the designated smoking room, balcony and courtyard.
D. No drunkenness or offensive behaviour at anytime.
E. No excessive noise will be permitted at anytime.
F. No parking without a permit in the streets referred to in 17.1.
G. Rubbish bins and sand filled ashtrays must be provided on the terrace balcony and courtyard.
H. No objects shall be thrown from the terrace balcony.
5.2 Upon a guest arriving at the Premises for the first time the House Rules will be explained to the guest in a way which emphasises the need to respect the local community in which the Premises are situated.
5.3 Guests shall be immediately evicted upon serious or repeated breaches of the House Rules. If necessary the Police shall be called to escort the offender from the Premises.
5.4 The House Rules shall be modified from time to time in order to address any Incident referred to in clause 18.
6. Court Yard Activities
6.1 Any organised activities shall take place in the central courtyard or other common areas in order to minimise disturbance to surrounding residences.
6.2 The central courtyard will not be used by guests between 12.00pm and 8.00am and the Courtyard shall be locked during that period.
6.3 There will be no organised activities on terrace after 9.00pm.
7. Lounge and Games Room
7.1 The lounge room fronting Fletcher Street may be used for passive recreation at all times provided that no noise from the lounge room can be heard outside the building. If noise can be heard outside the building after 10.00pm then the lounge room shall be closed until 8.00am the following day.
7.2 The games room shall be open at all times provided that no noise from the games room can be heard outside the building. If noise can be heard outside the building after 10.00pm then the games room shall be closed until 8.00am the following day.
8. Terrace Balcony
8.1 The Terrace Balcony must be locked and access not permitted between 10.00pm and 8.00am each day.
8.2 No alcohol, glassware or amplified music is permitted on the terrace balcony at anytime.
8.3 No objects shall be thrown from the Terrace Balcony.
9. Music & TV
9.1 Amplified music is not permitted at the Premises at anytime between the hours of 10.00pm and 8.00am.
9.2 All audio devices which are centrally controlled are to be turned off at 10.00pm.
10. Laundry Areas
10.1 All laundry areas at the Premises shall be locked and no access permitted after 10.00pm and shall not be re-opened until 8.00am.
11. Rubbish Bins
11.1 Rubbish Bins shall be stored safely and securely within the Premises except on the day of collection.
11.2 Rubbish Bins shall be taken from the footpath back onto the premises by 9.30am on the day of rubbish collection, or, if collection has not occurred by 9.00am, within two hours of collection.
12. Surf Safety
12.1 Surf safety information will be made available on the Premises to all guests.
13. Illicit Substances
13.1 No illicit substances are permitted on the Premises at anytime.
13.2 Any person found using, supplying or possessing illicit substances shall be immediately evicted. If necessary the Police shall be called to escort the offender from the Premises.
13.3 Any breach of clause 13.1 shall be reported to the Police as soon as possible but no later than 72 hours after the breach.
13.4 For the purposes of this Plan “Illicit substances” include any substances made illegal by the laws of the State of New South Wales or the Commonwealth of Australia.
14. Closed Circuit Television Cameras
14.1 Closed circuit television cameras (“CCTV”) shall be installed at the Premises to provide 24 hour monitoring of the entrances to the premises on Fletcher & Dellview Street adjoining the Premises.
14.2 All footage shall be recorded and retained on the Premises for a period of at least 6 months and shall be made available to officers of Waverley Council for inspection on request.
15. Registration
15.1 All Guests are to register when they check in to the Premises (“Guest Register”).
15.2 Registration must include name, address, date of arrival and departure and vehicle registration details of the Guest.
15.3 The Guest Register is to be kept at the Premises at all times.
15.4 The Guest Registrar must be kept for a period of at least 7 years.
14.3 Subject to any privacy legislation the Guest Register or part of it shall be made available to officers of Waverley Council for inspection within 7 days of a request being received from Waverly Council in writing.
The Managers and staff must use their best endeavours to ensure that noise emanating from the Premises is kept to a level which will not unreasonably disturb the amenity of neighbours and persons living in the vicinity of the Premises.
16.1 In particular the Managers and staff must use their best endeavours to ensure that no noise which could disturb the sleep of the neighbours and persons living in the vicinty of the Premises shall emanate from the Premises or guests staying at the Premises between 10.00pm and 8.00am.
17.1 It will be a condition of stay at the Premises and a House Rule that Guests must not park vehicles in the following “Restricted Areas” without a permit issued in accordance with clause 17.2:
A. Fletcher Street between Sandridge Street & Silva Street
B. Dellview Street between Fletcher Street and Carlisle Street
C. Dellview Lane between Dellview Street and Silva Street
D. Silva Street between Fletcher Street and Carlisle Street
E. Roland Avenue between Fletcher Street and Wilga Street
17.2 The Manager may issue permits authorising parking in the Restricted Area provided that there shall never be anymore than five parking permits on issue at anytime. The Manager must keep a record of whom parking permits are issued to and the duration of issue of the parking permit. These records must be made available for inspection by Waverley Council on demand.
17.3 Guests will only be permitted to park their vehicles in the Restricted Area with a permit issued by the Manager. All other guests must be instructed to park outside the Restricted Area.
17.4 If Guests park vehicles in the Restricted Area without a validly issued permit the Manager must warn the guest responsible not to park in the Restricted Area. If a guest fails to complying with a warning then the offending guest shall be evicted from the Premises. If necessary the Police shall be called to escort the offender from the Premises.
17.5 If the Manager receives information from any person that a Guest’s vehicle is parked in the Restricted Area without a validly issued permit, the Manager must investigate the information and if the information is verified clause 17.4 then applies.
17.6 All advertising for the Premises must state the words “Parking Restricted”.
18. Incident Book
18.1 An “Incident” includes:
(a) any breach of this Plan; or
(b) any complaint by any person about the operation of the Premises; or
(c) any event that may cause alarm or concern to residents or persons passing the Premises as a result of the conduct or act of any person identifiable as a Guest of the Premises at that time.
18.2 The Manager or Night Manager as the case requires must maintain an “Incident Book” recording details of any Incident that occurs including the time of the Incident, a detailed description of the Incident and any actions taken by the management of the Premises in response to the Incident.
18.3 The Incident Book must be updated within 24 hours of any Incident.
18.4 The Incident Book must be made available to Waverley Council officers for inspection upon written request from Waverly Council.
18.5 The Incident Book must be kept for a period of at least 7 years.
19.1 Waverley Council’s officers shall be permitted to enter and inspect the Premises upon written request.
20.1 The maximum number of guests staying at the Premises at any one time must not exceed 95.
_____________
J S Murrell
Commissioner of the Court
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