Young v Marrickville Council
[2011] NSWLEC 1262
•24 August 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Young v Marrickville Council [2011] NSWLEC 1262 Hearing dates: 29 June 2011, 18 August 2011 written submissions Decision date: 24 August 2011 Jurisdiction: Class 1 Before: Brown C Decision: A. For Appeal No 10895 of 2010, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in annexure "A".
3. The exhibits are to be returned.
For Appeal No 10896 of 2010, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in annexure "A"..
3. The exhibits are to be returned.
For Appeal No 10147 of 2011, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in annexure "A".
3. The exhibits are to be returned.
B. The parties are to file an agreed set of consolidated conditions including all modifications since the approval granted by Land and Environment Court of NSW on 28 October 2003 by 31 August 2011.
Catchwords: MODIFICATION - modification of conditions of consent to allow additional access and patron numbers to existing hotel - noise - impact on nearby residential properties Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Kathy Young (Applicant)
Marrickville Council (Respondent)Representation: Counsel
Mr M Staunton, barrister (Applicant)Mr J Strati, solicitor (Respondent)
Marrickville Council (Respondent)
Solicitors
JDK Legal (Applicant)
File Number(s): 10895 of 2010, 10896 of 2010, 10147 of 2011
Judgment
COMMISSIONER: These are three separate, but related appeals in relation to the refusal of applications by Marrickville Council (the council) for the modification of conditions of consent under s 96AA(3) of the Environmental Planning and Assessment Act 1979 for the operation of The Zanzibar Hotel located at 323 King St, Newtown (the site).
Background
The Court approved Development Application No. DA 200200553 (the Court approval) on 28 October 2003 to "carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden". Condition 3 required that the extended hours of the use of the rooftop were subject to a 12 month trial period and condition 10 allowed for the provision of background music on the rooftop without further development approval. The council granted extensions to the trial period on 9 December 2005, 9 December 2006 and 7 March 2007; the latter for a 2-year period.
The appeals
Appeal Nos. 10895 of 2010 and 10895 of 2010 were heard as a s 34 conference on 18 January 2011 where the s 34 conference was adjourned, in part because of a undetermined development application that was currently before the council and was linked to Appeal Nos. 10895 of 2010 and 10895 of 2010. There was agreement between the parties that in the event that the council refused the development application then an appeal would be lodged and three appeals would be best heard concurrently. The development application ultimately became Appeal No. 101476 of 2011 and the Registrar made directions on 24 March 2011 that the three appeals are to be heard together.
On 18 January 2011, the parties also agreed that Mr Stephen Cooper, an acoustic engineer, should provide a single expert report to address the acoustical issues that formed a substantive part of the three appeals.
The appeals are:
- Appeal No. 10895 of 2010 - this is an appeal against the refusal by the council to modify condition 3 of the Court approval to allow extended trading hours of the rooftop area of the hotel for a further 4-year trial period.
- Appeal No. 10896 of 2010 - this is an appeal against the refusal of the council to modify the Court approval by:
i) modifying condition 4 to permit ingress and egress to the gaming room from Eliza Street after 10 p.m., and
ii) modifying condition 10 to permit entertainment in the hotel but excluding the rooftop area.
- Appeal No. 101476 of 2011 - this is an appeal against the refusal of the council to modify the Court approval by:
- (i) modifying condition 4 to allow the trial period to operate for a further four years,
- (ii) modifying condition 5 to permit up to 500 patrons in the hotel when the rooftop area is operating and 370 patrons at any other time'
- (iii) including new condition 6A to require at least one security guard per 100 patrons,
- (iv) modifying condition 10 to allow amplified music on the rooftop provided the speakers to the rooftop are limited to an output of 90dB(A), and
- (v) deleting condition 11 so that up to 130 patrons will be allowed on the rooftop.
The resumed s 34 conference was heard on 31 March 2011 and as no agreement was reached, the s 34 conference was terminated. The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). The appeals were referred back to the Registrar on 14 April 2011 and a hearing date was set for 29 June 2011.
The evidence
The hearing on 29 June 2011 commenced on-site and residents from two properties, one adjoining the site in Eliza Street provided evidence, as did Constables Price and McKenzie from the Newtown Local Area Command. The adjoining residents indicated that the hotel had created less problems since amplified music on the rooftop ceased however security was still a problem. The owners opposed the extension of time for the use of the door to the gaming room in Eliza Street because the door is approximately 20 m from their dwelling. They stated that they currently suffer disturbances from patrons who leave the hotel to smoke and congregate in Eliza Street near their property. The other resident expressed the view that it was not just a matter of noise but any further expansion of hotel activities could not be justified because of the number of existing hotels in the area.
Constables Price and McKenzie opposed additional patrons on the site given the existing size of the hotel and inadequate footpath width to accommodate smokers. Observations of the hotel by Constables Price and McKenzie have shown patrons over flowing on to the roadway of Eliza Street because of the inadequate footpath width and the reluctance of patrons to move off the roadway to allow the vehicles to pass. Constables Price and McKenzie also oppose the use of the Eliza Street doorway.
Mr James Lidis, a town planner, provided evidence for the applicant. He states that the Eliza Street access is used principally for the convenience of gaming room patrons. In his opinion, they are a different form of clientele to the normal hotel patrons and are more desirous of privacy and a discreet entrance. To avoid general hotel patrons using the Eliza Street access, Mr Lidis states that there will be a security guard at this entrance from midnight to 4.00am to restrict access to gaming room patrons only with general patrons referred to the King Street entrance. This requirement will be included in the Plan of Management (PoM).
In his opinion, the use of the Eliza Street access by general hotel patrons will be relatively low as not all patrons know that this access exists. In terms of amenity impacts, Mr Lidis acknowledges that there is potentially a greater impact on the adjoining residential property but advocates the use of a security guard on Friday and Saturday nights. When combined with a 12-month trial period, Mr Lidis maintains that the extended use of the Eliza Street access can be supported.
Mr Coopers single expert report
The principal findings of Mr Cooper's report are:
- a maximum of 270 patrons in the premises will satisfy the relevant noise criteria,
- of the 270 patrons, a maximum of 75 patrons on the rooftop will satisfy the relevant noise criteria provided the rooftop does not operate after midnight,
- all amplified music or entertainment provided on the rooftop before midnight will satisfy the relevant noise criteria,
- entertainment in the form of a band, disco or similar would not satisfy the relevant noise criteria before midnight however further clarification is required on the existing level of music,
- amplified music may only be played on the rooftop, before midnight, if strictly controlled by a noise limit,
- an RMS limiter is to govern all amplification on the rooftop and is to be set at a maximum noise level,
- while there is no change to the mechanical plant proposed as part of this application, there is some doubt whether the accepted noise criteria is satisfied, and
- the Koikas & Associates acoustical report previously prepared for the site does not properly assess the inaudibility criterion for the use of the gaming room door and in the event that the Court considered the use of this access acceptable, a security guard or staff member should be stationed at the door when in use. In practical terms, the door should not be used after midnight.
Based on Mr Cooper's report, and further discussions between the parties, the following matters were agreed by the parties:
- compliance with a PoM (new condition 1A),
- a one-year trial period for the rooftop area, including staffing and security measures (new condition 3),
- a one-year trial period for increased patronage figures in the hotel and subject to a number of patrons of the rooftop first floor and ground floor area, with special requirements for Thursday, Friday and Saturday nights (new conditions 5A and 6A).
- maintenance of the exhaust fans (new condition 9A), and
- additional controls on amplified music and speakers (new conditions 10A and 10B).
The remaining contention
On the basis of Mr Cooper's report, and further discussions between the parties, substantive agreement was reached between the parties on many of the council's contentions. The only remaining dispute related to the use of the gaming room door for public access (condition 4 of Appeal No. 10896 of 2010).
In considering the differing opinions on whether access should be available after 10 p.m. to the Eliza Street gaming room entrance, I am satisfied that, for a number of reasons, the existing restrictions should remain. First, I accept the evidence of Mr Cooper that there was insufficient evidence to confirm that the inaudibility noise criteria after midnight would be satisfied when this door was used. Second, I do not accept that use of security or hotel staff can adequately address all potential noise impacts, particularly spontaneous noise. Third, the close proximity of a residential dwelling to the Eliza Street would likely increase unacceptable noise and amenity impacts on this property. Fourth, the use of this door will encourage potential patrons to use Eliza Street to gain entry to the hotel when pedestrian movements should be encouraged to use King Street where the character and land uses are predominantly commercial in nature. I do not accept the evidence of Mr Lidis that the Eliza Street access would remain a secondary or largely unknown access for general hotel patrons after it became operational or that this can be reasonably enforced through a security guard or a provision in a PoM.
Orders
A. In Appeal No 10895 of 2010, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in Annexure "A".
3. The exhibits are to be returned.
In Appeal No 10896 of 2010, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in Annexure "A".
3. The exhibits are to be returned.
In Appeal No 10147 of 2011, the orders of the Court are:
1. The appeal is upheld in part.
2. Development consent No. 200200553 to carry out alterations and additions to the Zanzibar and use of the roof of the Zanzibar (formerly the Oxford Hotel) as a beer garden granted by Land and Environment Court of NSW on 28 October 2003 as subsequently modified is further modified as set out in Annexure "A".
3. The exhibits are to be returned.
B. The parties are to file an agreed set of consolidated conditions including all modifications since the approval granted by Land and Environment Court of NSW on 28 October 2003 by 31 August 2011.
G T Brown
Commissioner of the Court
Decision last updated: 06 September 2011
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