Ardilo Pty Ltd v Randwick City Council

The site and adjoining area 4The hotel is located on the corner of Beach Street and Dolphin Street and adjacent to Coogee Beach. It is a listed heritage item with the original building completed in December 1887 as a seaside entertainment complex. Major alterations and additions and restoration of the building were carried out in the 1980's. 5The site is joined to the west by a 5 storey serviced apartment building (161-167 Dolphin Street), further to the west by a 4 storey building with retail uses at ground level and residential apartments above (155-159 Dolphin Street), and a group of older style 3 storey mixed commercial and shop top housing buildings. To the north is a 4 storey building with retail uses at ground level and residential apartments above (128-130 Beach Street), further to the north is a 3 storey mixed commercial and shop top housing building (126A Beach Street). A 4 storey residential flat building with a retail unit at ground level is located on the corner of Beach Street and Bream Street. To the east a paved public plaza and promenade and Coogee Beach that adjoins a council car park to the south.

Background 6The hotel, and particularly the upper level of the building, has a number of approvals and actions that are relevant to the proceedings. The following is a brief chronology of the relevant events, although there were differences in some of the details in the different evidence: December 1887 - original building opened. 28 May 1985 - approval granted for "alterations and additions and restore the existing Coogee Palace Aquarium building and use for commercial purposes". Condition 6 required all tenancies are subject of a separate development application. Condition 9 required a cash contribution of $300,000 in lieu of the provision of off street car parking. The second floor was described in the council report as "A supper club/restaurant... the remaining area of the roof deck is planned as an open to the sky dining, entertainment and barbecue area" (D -73/85). 16 March 1987 - approval of development application/building application described as " two levels of shops, commercial development with a restaurant and balcony on top floor". Condition 5 restricted the restaurant level to 560 persons (DA/BA 1281/86). 28 January 1999 -approval granted to "erect 2.4 m high glass windbreak and replace existing windows with glazed bi-fold doors at the 2nd floor level" to allow the use of the second floor deck as outdoor seating for the second-floor restaurant. Condition 5 imposed a limit on the seating capacity to 300 persons (DA/785/1998). 23 March 2001 - council issued a Notice of Intention to give an Order that the second level was being used as a hotel without consent. 27 September 2001 - council advised that it was not proceeding with the issuing of the order subject to an application for a place of public entertainment being submitted. 28 December 2001 - Local Approval granted to operate the second floor level as a place of public entertainment including a maximum number of persons of 820 (LA/205/2001). 1 July 2010 - declarations made by Sheahan J that, in part, the top floor of the building was operating as a hotel and not a restaurant ( Randwick City Council v Jomaring Pty Limited & Anor [2010] NSWLEC 111). 7It was also unclear how the limitations on the number of patrons in the approvals for the second floor were determined although there was a general view by the experts that the figures were likely based on floor area requirements under the building regulations at the time. 8There was no dispute that the ground floor and first floor of a building have approval to operate as a hotel.

Relevant planning controls 9The site is zoned 3A (General Business Zone) under Randwick Local Environmental Plan 1998 (Consolidation) (LEP 1998). A "hotel" is permissible with consent within this zone. Clause 9 provides that consent may only be granted after consideration has been given to the extent to which the proposed development is consistent with the general aims of the plan and the specific objectives of the zone. The aims of the plan are found in cl 2 and the relevant zone objectives are: (a) to maintain the viability of existing business centres, and (b) to facilitate the orderly and economic development of land as business centres, for commercial, retail, residential and community purposes by: . (ii) encouraging economically viable retail course which Sentry located and in close proximity to public transport, and (c) to minimise the impact of development on adjoining nearby residential zones, and 10Clause 43 provides heritage conservation provisions. Schedule 3 provides a schedule of heritage items with the site description being "Coogee Palace, c 1887" (Inventory No 218) and having "Local" significance. 11Randwick Development Control Plan - Parking (the DCP) applies.

Noise The evidence 12Mr Neil Gross provided evidence for the council and Mr Steven Cooper provided evidence for the applicant. They prepared a joint report that identified the main acoustical issues as potential noise from patrons using the eastern and southern balconies on the amenity of the residents at 128-130 Beach Street to the east and serviced apartment building at 161-167 Dolphin Street to the west. 13Mr Gross accepts that 620 patrons can be accommodated on the second floor but subject to limitations on the number of patrons and time limits on the use of the eastern balcony. Mr Gross proposes a limit of 75 patrons on the eastern balcony and 225 patrons on the southern balcony to be controlled by a Plan of Management. On entertainment evenings where live or DJ entertainment is provided, the eastern balcony should not be used after 10 p.m. and also all windows and doors to this balcony should be closed after 10 p.m. For non-entertainment evenings, Mr Gross accepts that up to 30 people may occupy the eastern balcony and comply with the relevant noise criteria. He recommends, for simplicity of management, that the eastern balcony should still be closed at 10 p.m. through a screen located at the southern edge of the building. On entertainment evenings, Mr Cooper advocates the placement of a security guard at the southern end of the eastern balcony to control patron numbers rather than the screen proposed by Mr Gross. Mr Cooper states that he has monitored noise levels at the hotel for over 10 years and has found that the eastern balcony has lower noise levels compared to the southern balcony.

Findings 14On the issue of noise, I prefer the approach of Mr Gross. With the benefit of the site inspection I would agree that the eastern balcony is the more sensitive of the two balconies to noise impacts. The northern end of the eastern balcony directly adjoins a residential balcony at 128-130 Beach Street. Even though this property is located within the same 3A (General Business Zone) zone as the hotel and that it would be unreasonable to expect a level of amenity consistent with a residential zone, I accept that all attempts should be made to minimise any potential noise impacts and access to this property. 15The close proximity between the hotel and the adjoining residential property highlights the need to ensure that the potential for disturbance is minimised and in my view, this is best achieved through permanent features, such as physical screens rather than through enforcement through a Plan of Management and security staff where compliance requires strict and constant surveillance and still cannot address spontaneous noise events. 16To minimise any amenity impacts, conditions will be imposed to:

• erect a screen on the eastern balcony just to the north of the entry to the second floor plant room, toilets and lift to prevent patrons access to 128-130 Beach Street (see condition 5(d)),
• allow a maximum 75 patrons on the eastern balcony only until 10 pm on all nights (see condition 7(b)),
• require all windows and doors to the eastern balcony to be closed after 10 p.m. on all nights (see condition 5(a)), and
• erect a screen on the eastern balcony as an extension of the southern end of the building to be closed after 10 pm on all nights to prevent access from the southern balcony (see condition 5(b)). 17The dispute over additional noise conditions are addressed later in the judgment.

Fire safety 18Clause 93(1) of the Environmental Planning and Assessment Regulation 2000 applies to a development application for a change of building use from an existing building, where the applicant does not seek rebuilding, alterations, enlargement or extension of the building. Clause 93(2) requires consideration of whether the fire protection will be appropriate to the buildings proposed use and cl 93(3) provides that the change of building use must not be granted unless the consent authority is satisfied that the building complies, or will comply, with such of the Category 1 fire safety provisions as are applicable to the buildings proposed use. 19Mr Ian Williams provided evidence for the applicant and Mr Stuart Boyce provided evidence for the council; both are experts in building regulation and fire safety requirements. They prepared a joint report that identified the following areas of disagreement:

• the maximum capacity of the second floor based on the available discharge exits to open space,
• the existing hydrant system, and
• the existing automatic sprinkler system. Discharge exits 20Mr Williams and Mr Boyce accept that the capacity of the hotel (that is the ground floor, the first floor and second floor) is limited by the available exit widths. They agree that the maximum patronage numbers based on the Building Code of Australia (BCA) and available exits widths (although not necessarily the approved numbers) for the hotel use is:
• ground floor - 1100 patrons,
• first floor - 860 patrons, and
• second floor - 620 patrons. 21The patronage numbers for the first floor and second floor are however reliant on a BCA compliant stair between the first and second floors. The stair in question is a recent modification to the hotel and was constructed without approval. The stairs replaced escalators between the two floors. The council has issued a Notice of Intention to Give an Order on 5 May 2011 under s 121B of the Environmental Planning and Assessment Act 1979 that seeks "to restore the premises to the condition in which they were before the unauthorised building works were unlawfully carried out by removing the internal stairs and reinstalling the internal escalators". 22Mr Williams and Mr Boyce agree that the stair is not BCA compliant however compliance could be achieved through the infilling of the risers and adding a contrasting nosing on the edge of the stairs. I did not understand that the escalators, if reinstated, would satisfy the BCA requirements for 620 patrons. 23The evidence suggests that BCA compliance for 620 patrons could be achieved through the modified stairs, however the councils Notice of Intention to Give an Order places this outcome in some jeopardy. Clearly, the issue over the unauthorised stairs needs to be settled as it directly impacts on the use of the second floor. If the council ultimately requires the reinstatement of the escalators then the use of the second floor for a hotel cannot occur. This is a matter that cannot be addressed through these proceedings. 24I am satisfied this can be adequately addressed, in part, through the councils conditions 9 and 11 with the additional requirement that the requirements in these conditions are undertaken prior to use of the second floor for hotel activities. Automatic sprinkler system 25Mr Williams and Mr Boyce agree on the need to upgrade the existing sprinkler system and this can be adequately addressed, in part, through the councils conditions 9,10 and 11 with the additional requirement that the requirements in these conditions are undertaken prior to use of the second level for hotel uses. Hydrant system 26The upgrade of the automatic sprinkler system is linked to the adequacy of water pressure in the water supply that supplies the hotel. There was no evidence to indicate that the water pressure was adequate for the proposed alterations although remedial work to the water supply could be undertaken to provide adequate water pressure. Mr Williams and Mr Boyce differ on the process and the approvals that may be required however I am satisfied any disagreement is adequately addressed, in part, through the councils conditions 9,10 and 11 with the additional requirement that the requirements in these conditions are undertaken prior to use of the second level for hotel activities.

The evidence 27On the site inspection, the Court heard from a number of local residents and community groups in relation to the hotel and activities associated with licensed premises in the general Coogee area. Their concerns about the hotel can be summarised as:

• inappropriate and antisocial behaviour,
• increased noise levels and antisocial behaviour when the second floor was used as an outdoor bar/beer garden in 2005-2006,
• the previous use as a restaurant did not operate late at night and did not have the volume of people outside on balconies,
• potential danger to passing pedestrians from glasses being dropped from the balcony areas,
• noise is clearly audible from the hotel at adjoining residential flat buildings,
• management shows little regard for occupiers of residential properties in the area,
• noise from machinery on the roof of the hotel,
• litter thrown from balconies of the hotel,
• the difference in behaviour between a restaurant and a hotel is significant, and
• inadequate security relating to patrons of the hotel attempting to enter adjoining properties., 28The more general concerns about the Coogee area can be summarised as:
• there are already 30 licensed premises in the area,
• the hotel and the Coogee Bay Hotel have a combined capacity of 6000 patrons,
• there are regular complaints to the police over unacceptable activities from licensed premises, including the hotel,
• the use of the second floor will exacerbate the existing unacceptable levels of anti-social behaviour in the area, and
• already unacceptable community impacts on residents, particularly on Friday, Saturday and Sunday evenings. 29Evidence on this issue was provided by town planners, Mr Stuart McDonald for the council and Mr George Smith for the applicant. Both the experts provide a detailed analysis of the existing approvals on-site to support their respective positions. Mr Donald acknowledges that the potential social impact would be minimal if the patronage was limited to 350 whereas Mr Smith disagrees with the need for any limit below 620 patrons. 30Mr Smith states that the acoustic experts agree that having up to a maximum 620 patrons would not adversely impact on the aural amenity of the area, subject to limitations on amplified music, the number of patrons and time limits on the outside balconies. Mr McDonald notes that the joint acoustic experts report does not nominate 620 patrons to be an accepted maximum but concentrates on the maximum number of patrons along the eastern and southern balconies. Mr McDonald also seeks the continued use of the kitchen and the provision of meals on this level. 31Mr Smith and Mr McDonald also address the existing bar in the south-west corner of the southern balcony. Mr McDonald states that this bar does not have any approval and given the location adjoining the serviced apartments, this area has the potential to significantly impact on the reasonable enjoyment of people occupying this building. Mr McDonald states that the bar should be removed and all bar facilities provided internally. The general manager of the adjoining serviced apartments provided an affidavit stating that there had been a number of instances where guests had requested either alternate accommodation or had left the premises because of noise associated with the hotel. Mr Smith rejects the deletion of this area and states there is no evidence to suggest that this area has generated complaints from the adjoining serviced apartments. Mr Smith states that the applicant would accept a condition closing the bar at 9 p.m. each evening. 32On the question of zone objectives, Mr McDonald states that the objective "to minimise the impact of development on adjoining nearby residential zones" cannot be achieved by allowing a hotel to operate at the scale and intensity of approximately double that of the current operations. If approval is granted, the objectives may be capable of being achieved by limiting the scale and intensity of the hotel use that generally reflects the current operation, together with appropriate conditions of consent addressing potential impact in a rigorous plan of management. Mr Smith notes that the site is located within the General Business Zone where hotels are a permissible use and that all of the development near the site is on land similarly zoned, not residential. There is little or no evidence that either the hotel as a whole or the second level trading as part of the hotel has had any unreasonable or unacceptable impact on reasonable residential living since 2001. He disagrees with the need to impose limits or conditions of the kind suggested by Mr Donald.

Findings 33Mr McDonald and Mr Smith examine the previous approvals for the second floor and disagree on their relevance however, in my view, it is not necessary to deal with these disagreements. It may well be that the proposed development could be regarded as an intensification if tested against the restaurant use in DA -785/98 where 300 patrons was permitted or a less intensive use if tested against LA/205/2001 where 820 patrons was permitted. The relevant matter is that the second floor has no approval to operate as a hotel and while other uses have been approved by the council, some with higher numbers of patrons and some with less number of patrons than proposed in this application, they are different uses and have different characteristics. In this case, the Court is required to determine whether the second floor can be used for a hotel with up to 620 patrons between 11 a.m. to midnight, Monday-Sunday with the different levels of entertainment. This assessment does not need to be based on a comparison with previous approvals for the second floor over many years but rather the particular characteristics of this application. 34The evidence indicates that there have been a number of complaints over noise from the hotel, including complaints to the former Liquor Administration Board. The evidence of local residents indicated that noise impacts increased with events that attracted large number of patrons. I am however, satisfied that the issue of noise has been satisfactorily addressed by the acoustical experts for 620 patrons (but subject the resolution of the BCA issues). The use of the second floor is to cease at midnight and with the additional conditions imposing restrictions on the time and number of patrons on the eastern balcony and the closing of the doors and widows to the eastern balcony, noise impacts are minimised. I am also mindful that the floor ground floor and first floor of the building operate under less onerous and separate approvals from the council and the Office of Liquor and Gaming and are able to trade until 3.00 am on specified days. 35On the issue of general anti-social behaviour, I am satisfied that this not a sufficient reason to refuse the application. This issue needs to be considered in the context that hotels are a permissible land use and a degree of impact is of unavoidable given the fundamental component of a hotel is the consumption of alcohol. In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118], McClellan CJ states: planning decisions much generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.... In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 36It is always difficult to conclude that a specific hotel is the direct cause of anti-social behaviour, particularly considering a locality such as Coogee where there are a large number of licensed premises and a tourist orientated character that attracts patrons to the area. The hotel operates with approval on the ground and first floors and while it is likely that some patrons will leave the second floor at midnight and remain in the hotel on the lower floors, I am not satisfied that it would necessarily contribute to anti-social behaviour around the hotel to a level that would warrant the refusal of the application. 37Importantly, the Eastern Beaches Local Area Command of the NSW Police Force raise no objection to the proposed development and state: It is the opinion of the Licensing Police that the Aquarium Level has operated as a hotel rather than a restaurant for the past nine years. Numerous Business Inspections have been conducted on the premises over that period which indicated the premises are generally run in a professional manner. The numerous License conditions in place at the Beach Palace greatly assist Police in managing the hotel. 38I accept that the existing bar in the south-west corner of the southern balcony is acceptable with the condition prohibiting the use of the bar after 9 pm each evening and with a further condition restricting access to the small area that adjoins the serviced apartment building and the balcony edge (see condition 5(c)). I note the concerns of the general manager of the adjoining property and the potential conflicts that could occur between residents of the serviced apartments in the units near and adjoining the hotel and patrons on the southern balcony, however it would be unreasonable to expect a total absence of noise from the hotel given the commercial zoning of both sites and the tourist orientated character of Coogee. The limitations on the use of the bar and restrictions on access directly adjoining the serviced apartments are, in this context, an acceptable response to the relationship between the two buildings. 39Clause 9 provides that consent may only be granted after consideration has been given to the extent to which the proposed development is consistent with the specific objectives of the zone. The relevant zone objective is to minimise the impact of development on adjoining nearby residential zones (objective (c)). In considering cl 9, I am satisfied that the proposed development is consistent with objective (c) as it minimises the impact through operating only to midnight and has appropriate conditions to address noise impacts from the balconies and the use of the second floor. The proposal also must be seen in its context of being appropriately zoned for the proposed use, part of an existing hotel and not directly adjoining residentially zoned land. I note that a literal reading of objective (c) requires consideration against "nearby residential zones" rather than development within the General Business zone however the matters identified as minimising impacts also have a beneficial effect on uses adjoining and near the site in the General Business zone.

Parking/ public transport 40The contention provides that the change of use from a restaurant to a hotel will generate additional car parking and transport requirements, which are not addressed by the application. The contention addresses the need for additional parking and questions accessibility to public transport.

The evidence - additional parking 41Evidence on the need for additional parking was provided by traffic engineers, Mr Chris Hallam for the council and Mr John Coady for the applicant. They agree that no parking is available on the site. They also agree that restaurants and hotels have a similar car driver rate of around 13% of patrons (based on the Coogee Late Night Transport Report ). They also both rely on previous conditional approvals granted by the council nominating patron numbers for their assessment, although with different results. These include 620 persons based on the BCA, 560 person occupancy for the restaurant and balcony area (condition 5, DA/BA 1281/86), the "seating capacity" of the restaurant (inside and out) of 300 patrons (DA 785/98) and approval as a place of public entertainment for 820 persons (LA/205/2001). 42At a patron driver rate of 13% the following the potential parking demand result for the different patron numbers:

• 300 patrons - 39 spaces,
• 560 patrons - 73 spaces,
• 620 patrons - 81 spaces, and
• 820 patrons - 107 spaces. 43Mr Hallam and Mr Coady acknowledge that a contribution of $300,000 was required, and paid, for off street car parking by condition 9 of D -73/85, assuming the building would be used for retail, commercial and restaurant uses. Neither expert was aware how the contribution was calculated although they acknowledge that when council approved the hotel use for the first two floors of the building, there was no requirement to pay any additional contribution for additional off-site parking. 44Mr Hallam relies on the approved restaurant capacity of 300 patrons (or 339 patrons if allowance is made for the restaurant reception area) that, at 100% capacity, creates a demand for 39 spaces (or 44 spaces). Using the DCP rate for a gross floor area of 1098 sq m (not 824 sq m used by the council), 53 spaces are required. Mr Hallam calculates the parking required for a hotel, using the DCP rate, at 144 spaces. This provides a deficit of 91 spaces, which in his assessment is not covered by the proportional contribution of $300,000 previously made. The proposed change of use will significantly increase the demand for car parking and as no additional parking is provided and no offers of a voluntary contribution had been made, the application should be refused. 45Mr Coady adopts a maximum patronage of 620 for his assessment. He relies on the Parking, Transport and Traffic Report he prepared for the proposed development that concludes:
• the DCP does not provide a reliable indication of the actual parking demand for a restaurant or a hotel use,
• the potential parking demand for the restaurant, calculated with the approach recommended by the RTA Guidelines is 124 spaces, indicating there is no significant difference in the parking demand for a hotel based on the DCP rate,
• based on surveys of patrons relied on in Jomaring, the "average maximum patron accumulation" on the second floor level when trading as a hotel is in the order of 400 persons, and the average maximum parking demand is in the order of 70 to 90 spaces,
• as the site provides no off-street parking, any parking demand is likely to be accommodated in the nearby public car parks or on-street,
• the changes to the liquor licensing laws which now permit restaurants, operating under a liquor license endorsed with a Primary Service Authorisation, to serve alcohol beverages to customers without the need for those customers to partake of a meal, and
• given that the second floor has been operating as a hotel for some time, the approval will not result in any change to parking conditions in and around the hotel. 46Mr Coady also notes that it would also be reasonable to assume that the previously paid contribution of $300,000 included use of the second floor of the building. Also, the parking assessment undertaken by Mr Coady indicates that this contribution would cover the cost of parking demand generated by the second level of the building, for either a restaurant or a hotel.

Findings - additional parking 47I am satisfied that the question of whether the change of use from a restaurant to a hotel will generate additional car parking and warrant the refusal of the development application must be answered in the negative. 48I agree with Mr Coady that the $300,000 contribution from D -73/85 could reasonably be seen to cover any deficiency in car parking on the site because of the actions of the council since the payment of this contribution. There was no documentation available that enabled Mr Hallam or Mr Coady to gain an understanding of how the contribution was calculated, how it was to be applied, whether it had been spent and if it was spent, where it was spent. The only certainty was that the contribution had been paid. 49The approval in 28 May 1985 provided for alterations and additions and use for commercial purposes. I am satisfied that the words "commercial purposes" in this approval is a generic description of a range of commercial activities and must be given its widest meaning. Support for this conclusion comes from the fact that it does not refer to specific land uses and importantly, no issue has been raised by the council over car parking for the different approved uses since the 1985 approval. 50The chronology of approvals on the site indicates a number of changes of the use to the building from the 1985 approval, including approvals (but not necessarily development approvals) that allow patrons on the second floor in excess of the maximum 330 patrons relied on by Mr Hallam without the need to provide additional parking. These approvals are:

• DA/BA 1281/86 - 16 March 1987 - 560 patrons, and
• LA/205/2001 - 28 December 2001 - 820 patrons. 51Both applications could have been rejected by the council if, as in this case, it was thought that additional parking was required. This however was not the case. I also accept the evidence of Mr Coady that the approvals for the change of use of the ground floor and first floor areas from shops, restaurants, food outlets (D -73/85) to hotel use without the need for an additional contribution also support this position. 52I also note that the council was aware in 2001 that the second floor was used for a hotel, however for whatever reason, any attempt to address this was not pursued. 53Considering these matters, I do not accept that it can be reasonably argued that additional parking should be provided given the actions of the council in the past of approving changes of use for other similar and identical uses, as proposed in this application. 54Much of the evidence of Mr Hallam related to the difference between the parking calculations based on the rates in the DCP for restaurants and hotels (53 spaces and 144 spaces, respectively based on a GFA of 1098 sq m) however Mr Coady's evidence raises some doubt over the differences in the difference between the amount of parking when the RTA rates for restaurants (124 spaces for 824 sq m GFA or 165 spaces for 1098 sq m GFA) is applied. While it is not clear whether a GFA of 824 sq m or 1098 sq m applies, I do not accept that this is necessarily determinative. In my view, and in the absence of more evidence, it is not a matter that would disturb my principal findings in the previous paragraphs that the development application should not be refused on the basis of a deficiency of car parking spaces.

The evidence - accessibility to public transport 55Mr Hallam and Mr Coady agree that public transport accessibility of the site is good until midnight. The experts also agree that hotel patrons currently do not have a high use of public transport, based on the findings of the Coogee Late Night Transport Report and that patrons leaving after midnight would have easier access to public transport if the "Pumpkin Bus" continued to operate. Mr Hallam suggest that the applicant should consider the part funding of the bus (although the extent of the funding was not provided) however Mr Coady considers that any funding should be the joint responsibility of all hotels and clubs in the Coogee Beach area.

The findings- accessibility to public transport 56Considering the evidence of Mr Hallam and Mr Coady and that the proposed use of the second floor is to cease at midnight, I am satisfied that accessibility to public transport would not be a reason to refuse the development application. I acknowledge that patrons leaving the second floor at midnight may move to other areas in the hotel however it would be inappropriate, in my view, to impose additional requirements on the hotel for an application where the experts have agreed that transport accessibility until midnight is good. 57While greater accessibility to public transport is a laudable aim, it should be addressed in its wider context of the licensed premises in the Coogee area that trade beyond midnight.

Conditions 58The following conditions are in dispute: Deferred commencement conditions 1(a), 1(b) and 1(c). 59The council proposes that commencement conditions requiring amended plans to include a 2.4 m high screen on the eastern balcony (condition 1(a)) the deletion of the external bar area (condition 1(b)) and the replacement of the external bar with a non-trafficable and non seating area (condition 1(c)). I am satisfied that condition 1(a) is necessary but as an operational condition (condition 5(b)). Having found that the external bar area is appropriate given the limited hours (condition 6) and the additional barrier adjoining the serviced apartments to the west (condition 5(c)) conditions (b) and (c) can be deleted. Conditions 2 and 3 60These conditions relate to trading hours for the ground and first floor area of the hotel and as they are outside the scope of this application, the conditions can be deleted. Conditions 4(b), (c) and (d) 61These conditions propose a 12 month trial period however having found that the proposed development is acceptable in terms of noise and given the use of the ground floor and first floor of the building for a hotel for many years and its location in the tourist orientated character of Coogee, I do not accept that a trial period is justified in this case. Condition 7 62Condition 7(a) addresses patron numbers for the second floor. The fire safety experts agree that 620 patrons can use this level but subject to the connecting stair between the first floor and second floor satisfying BCA requirements. The condition limits patrons to 590 until the BCA certification has been achieved. Similar requirements are placed on conditions 7(a) and (b) for use of the eastern and southern balconies. Conditions 7(d) and (e) have been deleted as they relate to patron numbers for the ground and first floor area of the hotel and are outside the scope of this application, Conditions 9, 10, and 11 . 63These conditions address fire safety within the building. The applicant proposes the deletion of these conditions and their replacement with a condition requiring compliance with the joint report provided by the experts in the proceedings. 64I agree with the council that these conditions should be imposed as they are directly related to the patron numbers. Proper certification for the stairs, the fire hydrant systems and sprinkler system should be provided to enable the maximum 620 patrons proposed by the applicant. Conditions 13 and 14 65Part of condition 13 seeks to impose specific noise goals in different octave band levels, for various locations around the hotel. As this requirement is potentially inconsistent with the standard noise levels in the Office of Liquor Gaming and Racing license for the hotel, the specific noise goal should be deleted. Conditions 15 and 16 66These conditions requires an acoustical report to determine the background levels of adjoining properties for the purpose of completing the specific noise goals identified in condition 13 and 14. Having found that conditions 13 and 14 can be deleted, conditions 15 and 16 should also be deleted, given the existence of the standard noise level requirements in the Office of Liquor Gaming and Racing license for the hotel. Condition 24 67This condition states: The Hotel is to provide ongoing funding and support for an after midnight bus service to be known as the Pumpkin Bus. 68I agree with the applicant's submission that the condition should be deleted for the reasons mentioned earlier in the judgment. Also, the condition lacks certainty and could not reasonably be enforced. Condition 25 69This condition addresses a Plan of Management for the hotel. The applicant relies on the Plan of Management (Annexure 4, Exhibit B) provided by Mr Smith with some alterations. The council seeks a new plan of management based on the requirements identified in their preferred condition. 70Having considered the Plan of Management prepared by Mr Smith and the requirements identified in the council's condition, I see no reason why the Plan of Management prepared by Mr Smith should not be adopted, with the identified corrections. As I understand, much of Mr Smith's Plan of Management is uncontroversial however where there are differences between the applicant and the council, preference should be given to requirements that are consistent with Mr Smith's evidence as they reflect the Office of Liquor Gaming and Racing license for the hotel. Conditions 26 to 33 71The applicant opposes the conditions as they are essentially advisory and restate the law. In accepting that the conditions are designed to provide guidance, the applicant's submission is correct and the conditions can be deleted.

Orders 72The Orders of the Court are:

1. The appeal is upheld.
2. DA No 649/2010 for the use of the second floor of the Coogee Palace Hotel at 169-181 Dolphin Street, Coogee for hotel activities is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1 ,B and F. G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2011