Australian Leisure and Hospitality Pty Limited v Manly Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Manly Local Environmental Plan 1988

CASES CITED: Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193

APPLICANT Mrs M L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11098 of 2004 Australian Leisure and Hospitality Pty Limited v Manly Council

JUDGMENT Introduction 1 This is an appeal against the deemed refusal of Development Application No. 387/03 by Manly Council (the council) for major alterations and additions to the New Brighton Hotel at 71 The Corso, Manly (the site). 2 The site and surrounding area was inspected on the morning of the first day of the hearing with representatives from both parties. A number of local residents and nearby business operators provided their evidence at this time. 3 For the reasons set out in the following paragraphs, we have concluded that the appeal should be upheld and development consent granted subject to conditions. The site 4 The site is described as Lot 1 in DP 63249 and Lot 1 in DP 86449. It is located on the southern side of the intersection of The Corso and Sydney Road and is generally triangular in shape. The site has a frontage of 26.355 metres to The Corso and a frontage of 40.0 metres to Sydney

Road. The remaining boundary is 30.135 metres giving a total area of 422 square metres. 5 The site is occupied by a three-storey building with a flat roof and basement level. It is currently used as a hotel. 6 The locality consists of a mix of two and three-storey retail, commercial and residential flat buildings. The property to the south is developed with a part 3 and part 4-storey building containing retail and ground level and backpacker accommodation on the remaining upper levels. The property on the opposite side of Sydney Road is developed with a part 2 and part 3-storey building containing retail and ground level with restaurant and office space above. Also opposite the site in Sydney Road is a three-storey hotel. Development along the opposite side of The Corso is generally two-storey with retail at ground level. The proposal 7 The proposal provides for extensive alterations and additions to the existing three-storey building. 8 The existing basement storage level containing is to provide toilet facilities, storage space, office space, staffroom and toilets, garbage room, new stair and new lift. 9 The existing ground level bar, bottle shop, toilets and gaming room is to altered to provide for a new gaming room, new bar area, new lift and new stairs. The proposal also includes the demolition of the existing walls and windows to The Corso and Sydney Road and the provision of glazed bi-fold doors between the remaining columns. An outdoor eating area under the existing awning in The Corso and Sydney Road is also proposed. 10 The existing lounge, bar, toilets, office, stairs and trafficable awning on the first level are to be altered to provide for a new bar, new kitchen, new lift, new toilets and new stairs. The proposal also provides for glazed doors to a portion of the existing The Corso and Sydney Road facades and an extension of the trafficable portion of the Sydney Road balcony. 11 The seven bedrooms, lounge room, staffroom, managers office, reception office, common area, staff room, toilets, lightwell and stairs on the second level are to be altered to provide for a new cocktail bar, new lounge, new lift, new toilets, new stairs and the reinstatement of the original lightwell. A new glass awning over the first floor of balcony to The Corso and Sydney Road is also proposed. 12 A roof terrace and decking is to be constructed on the existing roof area. The area is to be serviced by the new lift and new stairs. A largely glass structure provides separation between the outdoor open deck and the bar, internal restaurant and dining areas. New plant for the hotel is provided on this level. 13 The proposal also provides for a change in the trading hours. The existing trading hours on Monday to Saturday are 5.00 a.m. to 3.00 a.m. and the proposal seeks to trade from 8.00 a.m. to 5.00 a.m. On Sundays, the existing trading hours are 12.00 midday to 12.00 midnight and the proposal seeks to trade from 9.00 a.m. to 12.00 midnight. 14 The proposal also provides for the general operation of the hotel through an Operations Plan of Management. Relevant planning controls 15 The site is within Zone No. 3 - Business under Manly Local Environmental Plan 1988 (the LEP). The proposed use is permissible with consent within this zone. Clause 3 provides aims and objectives, cl 4 provides policies and strategies for specific matters, Clause 17 provides requirements for the protection of particular land and specifically whether a development will have a detrimental effect on the amenity of the Foreshore Protection Area. 16 The existing building is identified as an item of the environmental heritage, is located in the vicinity of other items of environmental heritage and is also located within the Town Centre Conservation Area in Schedule 4 of the LEP. For this reason, cl 18 provides requirements for items of environmental heritage, c19 provides requirements for development in the vicinity of an item of environmental heritage and cl 21 provides requirements for conservation areas. 17 Manly Development Control Plan for the Business Zone 1989 (Amendment 4) (DCP 1989) applies to the application. Part 1 provides the general provisions for the Manly Town Centre, specifically in relation to floor space ratio (FSR) (cl 1.1), building heights (cl 1.2), setbacks (cl 1.3), townscape (cl 1.4) and parking and access (cl 1.5). 18 Manly Town Centre Urban Design Guidelines 2002 (the Guidelines) also apply to the proposed development. The issues 19 The council filed a Statement of Issues containing 11 individual issues and addressing 9 specific areas. The loss of residential hotel accommodation (Issue 7) and noise (Issue 8) were not pressed by the council although noise was still seen as an issue by local residents. The lack of owners consent from the council for that part of the application that proposes use of The Corso and Sydney Road was also not pressed by the council as the Court has all the functions and discretions of the council through s 39(2) of the Land and Environment Court Act 1979. 20 The remaining issues can be conveniently grouped into the following main areas: 1) whether the proposed development will create unacceptable social impacts through the proposed hours operation and the use of public space in The Corso and Sydney Road (Issues 1,2 and 6) 2) whether the proposed FSR is acceptable (Issue 3), 3) whether the proposed height is acceptable (Issue 4), 4) whether the proposed development would detract from the townscape qualities of the Manly Town Centre (Issue 5), 5) whether the proposed development adversely impacts on the heritage qualities of the building, buildings in the vicinity and the Town Centre Conservation Area (Issue 10) and, 6) whether the satisfactory arrangements have been made for car parking (Issue 9). 21 While not raised as a separate issue, the local residents and nearby business operators raised further issues beyond those identified by the council.

The evidence 22 The parties agreed to the appointment of Mr Lindsay Fletcher as the Court appointed town planning expert and Mr George Porter as the Court appointed social planning expert. 23 Mr Brian McDonald provided heritage evidence for the council and Ms Jennifer Hill provided heritage evidence for the applicant. 24 Mr Michael Neustein, provided additional town planning evidence for the applicant. 25 In considering the evidence of local residents and local business operators the Court had the benefit of a bundle of documents containing the written submissions that were provided to the council when the development application was advertised in addition to the evidence provided on site. Social impacts 26 Mr Porter states that his evidence addresses the two issues identified by the council rather than an assessment of the social impact of the whole operation. The two issues are the trading hours and the proposed outdoor dining area.

Trading hours 27 The existing trading hours on Monday to Saturday are 5.00 a.m. to 3.00 a.m. and the proposal seeks to trade from 8.00 a.m. to 5.00 a.m. On Sundays, the existing trading hours are 12.00 midday to 12.00 midnight and the proposal seeks to trade from 9.00 a.m. to 12.00 midnight. The council seeks to maintain the 3.00 a.m. closing time while providing for no patrons to be permitted to enter the premises after 2.00 a.m. (Conditions 61 and 63). 28 Mr Porter notes that the total proposed hours are less than the current trading hours although the major source of concern is the extension of trading from 3 a.m. until 5 a.m. and to a lesser extent when the proposal is to open on Sunday mornings at 9 a.m. instead of 12.00 midday. The concerns of the community relate to the potential anti-social behaviour and crime that occurs in the town centre and noise disturbance to residents living in the area and on nearby tourist accommodation. 29 He accepts that emotive social impacts could result from the proposal, although the impact of the increased capacity of the hotel will probably be at least as significant as the proposed changed trading hours. If the hotel implemented the Restricted Entry policy under the Manly Liquor Accord (i.e., no entry after 2 a.m. on Friday and Saturday nights) he concludes that any additional impact should be minimal. Impacts could also be significantly reduced by requiring appropriate security measures in and around the hotel and noise controls including controls on live or recorded music late in the evening. 30 Mr Porter further states there is potential for a significant benefit from the proposed change as it could allow progressive closure of one part of the hotel at a time, thus avoiding large number of people leaving at one time. 31 On this particular issue, we accept the proposed trading hours are acceptable for a number of reasons. Firstly, the Court was advised that the proposed hours are consistent with the Manly Liquor Accord. We acknowledge that considerable work has been undertaken to address the issue of anti-social behaviour in the Manly Town Centre. The Court was provided with a copy of the Manly After Midnight Working Party Recommendations and Mr Porter considered its recommendations when preparing his statement of evidence. 32 The applicant has accepted a condition requiring no patrons be permitted to enter the hotel after 2.00 a.m. (Condition 63) and the hotel areas are to be closed progressively to ensure the orderly and gradual dispersion of patrons (Condition 62). 33 Secondly, the potential concerns of Mr Porter over noise were not pressed by the council. As we understand, the council accepts the applicants conditions on noise attenuation that are based on the standard conditions of the Liquor Administration Board and specific management requirements set out in the hotel's Operations Plan of Management (Conditions 51 to 57). 34 Thirdly, the potential concerns of Mr Porter over security are adequately addressed through hotel security staff managing the behaviour of patrons and intending patrons within an agreed radius of the hotel in consultation with the Manly Licensing Police (Condition 51(vi)). 35 Fourthly, the proposed trading hours are less than some nearby hotels. The Steyne, Ivanhoe of Manly and the Manly Pacific are permitted to trade 24 hours. 36 Fifthly, the extension to the Sunday trading times is not likely to have any significant impact on the area considering the availability of other establishments with 24 hour trading nearby. 37 In Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193 the Chief Judge dealt with a development application to construct a hotel near the site of this application. The judgement contains a comprehensive review of the activities undertaken by the council and the community to address the social and amenity impacts experienced in the Manly Town Centre. 38 Importantly, His Honour acknowledges, at par 76, although there are real problems from anti-social behaviour in the Manly commercial area that will continue to give rise to conflict with residents, the application was still worthy of approval. In coming to this conclusion, he relies on measures contained within the conditions of consent and the proposed management plan to address the concerns raised by the local community. 39 His Honour also notes that the council planning controls recognise the role of recreational facilities and tourism in the Manly commercial area at par 82, where His Honour states: "….the LEP permits hotels in this area. Furthermore, its objectives and strategies are designed to encourage and cater for tourism, including the recreational needs of residents and visitors". 40 In our view, the proposed development provides sufficient measures through conditions of consent and the contents of the Operations Plan of Management to address the important issue of anti-social behaviour and amenity impacts brought about by the change in trading hours. Use of public space 41 The proposal provides for outdoor seating and tables for patrons along The Corso and Sydney Road frontages. Mr Porter's written evidence was based on the original plans however these were amended to addresses some of the concerns of Mr Porter. The amendments involved the removal of all fixed seating, planter boxes and supporting columns for the awning and a reduction in area for the portable seating and tables. 42 While accepting that the amendments are an improvement, Mr Porter still expresses a concern over the location of the seating and tables. He states that the seating and tables could conflict with the weekend markets in Sydney Road by restricting pedestrian access. In relation to The Corso, he states that the pedestrian access in this area is already narrow and will be even narrower if the proposed development proceeds. He also expresses the concern that this area will not be adequately controlled and will be used for the consumption of alcohol even though the applicant proposes that it will be used for dining purposes only. 43 The council maintained that the public areas of The Corso and Sydney Road should be free of any seating or tables. In response, the applicant offered to remove all seating and tables by 11.00 p.m. and further offered a condition that provides for a 12 month trial to determine any impact on pedestrian movements. If the seating and tables are to continue beyond 12 months, the condition requires the submission of a further development application within the 12-month trial period. The council further submits that if the trial period is acceptable to the Court all seating and tables should be removed by 10.00 p.m. 44 With the benefit of the site inspection, we are of the view that a 12-month trial has some merit. The amendments have considerably reduced the potential impact on pedestrian flows along The Corso and Sydney Road by the removal the permanent seating, planter boxes and supporting columns and the amount of public area used for the temporary tables and chairs to the point where a trial period is a viable option. 45 As we understand, the general use of public space for dining is not, in itself, an issue as there are numerous examples along The Corso and Sydney Road, presumably with the consent of council. The issue relates principally to the potential impact on pedestrian flows. In this regard, the areas adjoining the shops along The Corso is the principal area of pedestrian travel. The central area of The Corso contains features such as children's playgrounds, dining areas, public seating and entertainment facilities. With the reduced area proposed for the temporary seating and tables along The Corso frontage it is possible that sufficient area will still be available to allow for the free flow of pedestrians. A trial period will allow this possibility to be tested. 46 The potential for the interruption of pedestrian flows along the Sydney Road differs from The Corso in that its central area is not constrained by any form of development. Outside dining at the western end of Sydney Road generally adjoins the shops leaving the central part of Sydney Road vacant. We accept Mr Porter's observations that temporary tables and chairs in this location may impact on the operation of the weekend Manly Markets. It may well be that after the trial period some limitations may need to be placed on dining facilities in this area to avoid any overlapping with the weekend Manly Markets. Again, this is a matter that can be more readily considered after a trial period. 47 For these reasons we propose to adopt the applicants condition for a 12 month trial period for the use of the public area for temporary tables and chairs in accordance with the plan described as SK - 01. In coming to this conclusion we have had regard to the character of the Manly Town Centre and the existing promotion of outside dining facilities that are part of the objectives and strategies for the area. We are not convinced that even if the council's worst fears are realised and that outdoor dining is ultimately disallowed that the impact would be so significant and deleterious to the area that a trial period should not be contemplated.

Floor space ratio 48 Clause 1.1 of the DCP for the Manly Town Centre provides for a maximum FSR of 2.5: 1. The proposed development has an FSR of 3.74: 1. 49 Mr Fletcher states that the existing building has a gross floor area of 1544 square metres representing an FSR of 3.66: 1. With amendments to the original plans the increase in actual gross floor area is 4 square metres, representing an FSR of 3.67:1. 50 Because the increase in FSR is minor when compared to the existing building, Mr Fletcher states it would be unreasonable to expect strict compliance with the FSR requirement in the DCP. 51 We concur with this conclusion and find that the breach of the FSR control can be supported in this case. Height 52 Clause 1.2 of the DCP for the Manly Town Centre provides for a maximum wall height of 10 metres. The existing building has a parapet height of 12.4 metres above the ground level on The Corso. The proposed development has a maximum height of 14.35 metres measured from the ceiling height of the upper roof level to the ground level on The Corso. 53 In his assessment, Mr Fletcher accepts the argument put by the applicant that the breach of the height requirement relates only to the proposed roof additions. This element is setback from the external walls of the building on all three sites and behind the existing parapet. He agrees that this part of the proposal should be treated as a roof element that does not contribute to, and will not be read as part of the existing wall height. Further, the part of the proposal that breaches the maximum wall height requirement will not be highly visible and will not conflict with the overall townscape objectives of the DCP. 54 Mr Fletcher further states that the provision of a roof element that is not visible, or is only visible from limited vantage points would not be unreasonable from a town planning perspective given the context of the site and precedent for similar roof elements in the immediate vicinity. 55 He suggests that the scale of the roof addition should be further reduced by increasing the setback from both The Corso and Sydney Road with the objective of reducing its visibility from the pedestrian level in The Corso. In this regard, the plans were amended to address the concerns of Mr Fletcher although not to the point where he was totally satisfied. 56 In considering this issue, cl 1.2 of the DCP states: 2) The Council will only agree to increases in the building height as a detailed in 1(iii) above where it is satisfied that: (i) the structures are designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with the overall townscape objectives; (ii) any roof space is not designed or used as habitable space. 3) In relation to item 1(ii) above the council is seeking in its townscape objectives to ensure that the height of new buildings equate with both the overall height and the height of particular architectural details (e.g. floor levels, parapet details) of adjoining buildings and important end - buildings in the particular street block. …. 57 The Townscape Requirements in the DCP designate the majority of the site as an "important corner". The requirements seek to: ensure development has strong height and facade elements. Construct to boundary. Maintain and reuse existing development if it achieves objectives. 58 The intersection of The Corso, Sydney Road and Henrietta Lane is designated "Important end of vista sites" in the DCP. The requirements state the: Appearance of street elevation requires special attention. 59 Clause 2.1.5 of the General Urban Design Guidelines provide requirements on height. The relevant parts state: - Habitable rooms in roof spaces are not appropriate in development in the town centre (see Sketch 1). - At street corners the higher street wall height is permitted to return along the adjoining street through distance up more to 12 metres (see Sketch 2).

60 In considering these requirements on-site and with the helpful explanation from the experts, we agree with the conclusions of Mr Fletcher. Even though the proposed extensions exceed the 10 metre height limit in the DCP we have taken into account that the existing building already exceeds this requirement by some 2.4 metres. When combined with the setbacks, the lightweight construction of the proposed additions at this level and a similar roof form on the adjoining Steyne Hotel we can comfortably conclude that there will be no conflict with the overall townscape objectives outlined in the DCP. 61 In supporting the further amendments to the plans, Mr Fletcher still maintained that a small part of the solid roof form would still be visible when viewed from eastern end of The Corso through the glass awning. In accepting that his assessment is correct, we are not convinced that it is a sufficient reason to require further amendments because it relates to only a very small portion of the building and only when viewed from a particular point on The Corso. Even if the plans were amended to address Mr Fletcher's concerns, the small part of the upper roof form would still be visible from a more easterly position on The Corso. Overall, we accept that the upper level additions sit comfortably in The Corso townscape. 62 We also find that the proposed additions are not inconsistent with the provisions in the DCP and the Guidelines requiring a particular emphasis to the corner location. Even though the DCP and the Guidelines seek to restrict roof space for habitable purposes, we are not convinced that the proposed upper level structure should be considered to be roof space, particularly considering Sketch 1 referred to in cl 2.1.5 of the Guidelines. 63 For these reasons, we find that the breach of the height control can be supported. Townscape/heritage considerations 64 There was an overlap in the issues relating to townscape and heritage although each has different requirements. The issue of height was also an important matter in the consideration of this issue. 65 In relation to heritage, cl 18(2) of the LEP states that consent cannot be granted unless an assessment has been made of a number of specific matters. Relevantly, the significance of the item (cl 18(2)(a)) and the extent to which to carry out of development would effect the item and the site (cl 18(2)(b)). 66 Clause 19 states that Council shall not grant consent unless it has made an assessment of the effect that the development will have on the significance of the item and it's setting. 67 Clause 21(2)(a) states that Council shall not grant consent unless it has made an assessment of the effect that the development will have on the significance of conservation area. 68 The DCP provides Aims and Objectives at cl D. Relevantly, D.6 states: 6. To introduce building heights, setback and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality. 69 The DCP provides Design Principles at cl E. Part 1 provides specific provisions for the Manly Town Centre. Clause 1.4 Design For Townscape states: Regardless of whether a building is listed as an item of environmental heritage in the Manly Local Environmental Plan 1988 a council must be satisfied that the design of any new development has given due attention to the site's position within and contribution to the overall existing and future townscape quality of the Manly Town Centre and Pittwater Road areas. A definition of townscape and a list of those matters to be dealt with when designing for townscape is given in the Preliminary to this Plan. 70 The areas of disagreement between Mr McDonald and Ms Hill were limited to aspects of the roof addition (following the submission of the amended plans) and the first floor glass awning. 71 On the roof addition, there was general agreement between Mr McDonald and Ms Hill on the use of this area and the type of construction proposed however Mr McDonald was of the view that further reductions of the roof structure should be made to reduce its impact. Ms Hill was satisfied that the proposal, even without the most recent amendments, was satisfactory in heritage terms. She states that the silhouette of The Corso is varied and height and style and in this context the proposal does not require any further treatment. She notes a similar addition to the adjoining Steyne hotel. 72 The question of height was addressed in pars 52 to 63 and while the heritage provisions place additional assessment requirements on the application, we accept that the conclusions reached in these paragraphs are equally as valid when considered in a heritage context. Mr McDonald expressed some concern on-site at the proximity of the lift overrun and the visibility of this structure particularly from the western end of The Corso. The most recent amendments relocate the lift away from The Corso frontage, and in our opinion, provide a more acceptable relationship with the existing hotel and The Corso. 73 The proposed awning is designed as a series of individual awnings located within each vertical bay of the facade set by the existing structure and detail. The awnings will be suspended and constructed of translucent frameless glass. The individual placing is in keeping with the original design that had awnings in these locations. 74 While the design of the awning is contemporary, we accept that the awning does not unacceptably impact on the significance of the heritage item or the conservation area. The design is not overly obtrusive when viewed from surrounding areas and has elements that reflect past awnings. In our view it is a suitable response to the proposed major alterations and additions to the heritage item and the use of the building as a hotel. 75 In heritage terms, we agree with the conclusions of Ms Hill and in accordance with cll 18, 19 and 21 of the LEP, we find that the proposal will not affect the heritage item on the site, any other heritage items or the Conservation area. 76 Similarly, we find that the proposal has given due attention to its position within the Manly Town Centre and will contribute to the existing and future townscape quality of this area. Car parking 77 There was no dispute that any deficiency in car parking would need to be provided by way of a s 94 contribution because there is no opportunity to provide parking on-site. The council proposed a condition based on the Manly Section 94 Contributions Plan. 78 The contribution was amended on a number of occasions during the hearing however the council's final position was that a contribution of $27,528 for one parking space was required based on the increased floor area of 4 square metres. In actual terms, a 4 square metre increase in floor area generates the need for 0.1 car parking spaces. 79 The difference between the parties on this issue on was whether the 0.1 car parking space should be rounded up or rounded down. If rounded down, no contribution would be required and if rounded up, a contribution for one space would be required. 80 In our view, the additional increase in floor area is so small that it would be unreasonable to require a contribution for one car parking space. Consequently, the condition requiring the payment of a contribution should be deleted. Community concerns 81 On the site view, the Court heard from the following: * Mr Ian Miller, the owner of commercial premises at 2 and 4 - 10 Sydney Road. His concerns related largely to the proposed outdoor seating on the ground level. He maintained that the seating would adversely affect pedestrians turning into Sydney Road and the general flow of pedestrians along The Corso. * Mrs Skerratt, the owner of the adjoining backpackers establishment. She raised a number of specific concerns in relation to the impact on the backpacker's establishment. She stated that the hours of operation and noise associated with a hotel are an existing problem. She raised further issues relating to security, overshadowing and loss of views from the roof terrace. * Mr Brian Fitzgerald, the owner of an apartment at 737/25 Wentworth St., Manly and a representative of the Owners Corporation. His concerns related largely to the impact of noise from hotel on his unit and other units on the southern side of the building although he raised some concern over the outside seating. 82 In considering the community concerns, the use of The Corso and Sydney Road for outdoor seating is addressed in pars 41 to 47 where we are satisfied that a 12 month trial is appropriate to consider any potential impacts. 83 Noise was not an issue raised by the council but was a consistent concern in the submissions provided to the council. In addressing this issue we have placed considerable weight on the conditions and specific requirements of the hotel's Operations Plan of Management. The Court was advised that the specific noise requirements are consistent with the conditions imposed by the Liquor Administration Board. 84 The adjoining backpackers establishment was inspected as part of the site view. With the most recent amendments to the proposal, we are satisfied that overshadowing is not a significant concern and with the relocation of the lift overrun, any loss of views is minimal, at worst. The most recent amendments also addressed security concerns by restricting access between the buildings at the upper level. On this basis, there are no substantive reasons why the development application should be modified or refused on the basis of any potential impacts on the adjoining backpackers establishment. 85 It is necessary for the Operations Plan of Management to be amended to reflect the findings in this judgement. Accordingly, we direct the parties to confer and provide an amended Operations Plan of Management within 7 days. Liberty is granted to restore the matter with 48 hours notice if no agreement is reached on the amended Operations Plan of Management. Orders 86 For the foregoing reasons the Orders of the Court are:

1. The appeal is upheld. 2) Development Application No. 387/03 for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits A, F and H. 4) Liberty to restore with 48 hours notice if no agreement is reached on the amended Operations Plan of Management.

      T Bly
      Commissioner of the Court

      G T Brown
      Commissioner of the Court

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