Jomaring Pty Ltd v Randwick City Council

DATES OF HEARING: 27/11/207 and 28/11/2007

APPLICANT Mr P. McEwen, SC Instructed by Mr C. Drury of DLA Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr S. Flannigan, barrister Instructed by Ms V. McGrath of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10423 of 2007 Jomaring Pty Ltd v Randwick City Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This appeal relates to a modification application under s 96(1A) of the Environmental Planning and Assessment Act 1979, (DA1140/2003), that seeks consent for an existing unauthorised bar known as "The Sports Bar" at the rear north-western corner of the existing Coogee Palace Hotel at 169-181 Dolphin Street, Coogee.

2 The existing ground floor configuration of the hotel includes a bistro, tables and chairs, television screens, TAB facilities, a gaming room and pool tables. These areas are presently serviced by The Sports Bar and another bar located towards the northern or front part of the hotel's ground floor.

3 I understand that The Sports Bar was constructed about three years ago when the sporting and TAB facilities, including television screens, were moved to the rear of the hotel to allow the bistro to be increased in size. 4 The ground floor of the hotel has no maximum patron limit but its present capacity based on BCA requirements is over 1,000 patrons. The two upper levels of the hotel have place of public entertainment licences with a total limit of 1,620 patrons. It was not in dispute that the ground floor licensed area of the hotel that is and will be able to serviced by The Sports Bar is lawful.

5 When the hearing began on site I had the opportunity of inspecting the existing hotel and the existing bars to gain an understanding of how the entire ground floor of the hotel where The Sports Bar is located operates.

6 I also heard from the follow resident objectors: - Mr M Faulkner of unit 9, 84 Bream Street, Coogee, - Ms C Murray of unit 5, 169 Arden Street, Coogee. 7 Whilst the application was not advertised, letters of objection were received by the Council from Mr Faulkner and Ms Murray as well as from Ms R Wade of unit 4, 138 Beach Street, Coogee.

8 Matters of concern to these residents are essentially that: Coogee does not need another licensed bar; existing hotels in the area have significant adverse impact on residential amenity; and the antisocial behaviour of hotel patrons.

9 The application was dealt with in a report dated 10 April 2007 by a council planning officer who was asked to clarify the position with respect to any previous approval in relation to The Sports Bar. That report noted the long history of development applications for this hotel and that the plans accompanying development application 1120/2003 did not show a bar in this location. 10 Without discussing the merits or otherwise of the application the report recommended that the modification application be approved subject to certain conditions.

11 Effective on 24 April 2007 a notice of determination was issued by the Council refusing the modification application for reasons essentially involving adverse impacts on the amenity of the adjoining residential zone and impacts on residential amenity as a result of increased patronage of the hotel. No report was provided to show how this decision was arrived at.

12 On 3 September 2007, Commissioner Moore conducted a conference under s 34 of the Land and Environment Court Act 1979. As no consent was reached for the disposal of the matter he set out the following issues in dispute:

1. whether in fact the construction of the unauthorised bar in the north-western corner of the ground floor of the premises has intensified the use of the premises; and

2. if the answer to 1) is yes, whether the impact of such intensification causes unacceptable impacts on nearby residential properties. 13 The site is zoned 3A, General Business, under Randwick Local Environment Plan 1998. In this zone a hotel is permissible with development consent. Relevant to the issues identified by Commissioner Moore the zone objective requiring consideration of the impact of the development on adjoining and nearby residential zones is relevant.

14 The issues identified by Commissioner Moore and other issues were addressed by Mr J Lidis for the Applicant, and Mr S McDonald for the Respondent in their joint expert town planning report.

15 Mr Lidis and Mr McDonald agreed that the existence of the new bar has the potential to increase patronage intensity and trade and associated alcohol consumption in the hotel. 16 Mr Lidis believed that whilst there is the potential for some impact on nearby residential properties there was no evidence of this as a direct consequence of The Sports Bar. He undertook an inspection of the hotel one Saturday night between 7.30pm and 1am the following Sunday observing that there was no adverse behaviour in or around the hotel that would impact on the surrounding area. In this regard I note the contrary evidence of the objectors, that some antisocial behaviour occurs, and that patrons of this hotel are responsible.

17 Mr McDonald was of the opinion that there would be some impact, noting that the existing operations of the hotel do have a detrimental impact. He has inspected the hotel and noted that patrons in The Sports Bar area used that bar exclusively.

18 Whilst the experts were unable to quantify any increase I accept that there will be an increase in patronage in the hotel as a result of The Sports Bar and there will thus be an intensification of the use of the premises. Plainly this increase in patronage will not come from any additional floor space. Indeed the contrary is likely given that The Sports Bar itself occupies some floor space that would otherwise have been available for hotel patrons. 19 Instead I expect that the increase in patronage is likely to come from the improved service that will and has resulted from the bar being in close proximity to the TAB and other facilities. Having contemplated the manner in which the hotel would operate in its present form but absent The Sports Bar I conclude that by comparison the additional patronage would be quite small.

20 Taking into account the observations of the residents, the hotel in its present configuration has some adverse impacts on the surrounding residential area. This, it seems, has occurred despite regular patrols by the police and the hotel's own management and its security regime.

21 There have been two s 104 inquiries under the Liquor Act, one of which is incomplete. These inquiries do not indicate any adverse findings against the hotel. Conversely I note that in recent months the hotel has been issued with a series of penalty infringement notices in relation to responsible service of alcohol issues. 22 But these matters do not answer the question of whether the intensification as a result of this proposed sports bar causes unacceptable impacts on nearby residential properties. Whilst I do not accept that any antisocial behaviour is acceptable there was no evidence to suggest that the behaviour of the additional hotel patrons outside the premises is anywhere near being considered critical. If this was so I would have expected that the s 104 inquiries would have indicated this.

23 Given my conclusion that The Sports Bar will have generated a quite small increase in hotel patronage one could expect a proportional increase in antisocial behaviour. However in the circumstances I am satisfied that any impacts associated with this small increase in patronage would not be discernable and as a consequence I have decided that the modification application should be approved. 24 The respondent invited the Court, should I decide to uphold the appeal, to incorporate into the existing consent a number of additional conditions. These are detailed in Exhibit 5. But for proposed conditions 38 and 39 the remaining conditions in that exhibit, and as amended during the hearing, are accepted by the Applicant.

25 Condition 38 would deny the entry of new patrons or re-entry of patrons after 12 midnight on those nights when the hotel can trade until 1am and 3am. Condition 39 would set a maximum of 400 patrons for the ground floor of the hotel.

26 Mr Lidis believed conditions 38 and 39 were unreasonable and should not be imposed. Conversely, the conditions are supported by Mr McDonald because they would assist in neutralising any adverse impacts associated with The Sports Bar. He suggested that the ground floor of the hotel should be limited to 400 patrons notwithstanding that there is no present patron limit and its present capacity is over 1,000 patrons. He also believed that the impact of the ongoing operation of The Sports Bar should be monitored but did not explain how this could be achieved taking into account the ongoing operation of the hotel as a whole. 27 Mr Lidis did not believe that such a limit was necessary given that there is no evidence that The Sports Bar has, of itself, generated any adverse impacts. Also given that the ground floor provides a thoroughfare for the two upper levels of the hotel that can each accommodate some 800 patrons, monitoring would be very difficult.

28 Mr McDonald also argued that the "no further entry policy" provided for in condition 38 is an appropriate means of managing the discharge of patrons from the hotel.

29 I agree with Mr Lidis that the these conditions should not be imposed because I believe that their effect would be significantly disproportionate to the likely small impacts associated with The Sports Bar. At present the ground floor of the hotel could theoretically lawfully accommodate up to 1,000 persons and the introduction of The Sports Bar as proposed could not reasonably be seen as a reason to reduce this capacity down to 400. 30 Mr McDonald is probably correct in his contention that condition 38 provides an appropriate means of managing the discharge of patrons from this large hotel however again, this is a disproportionate response to this application, especially as it would significantly impact on those parts of the hotel not affected by this application. I thus do not accept that this modification application, taking into account that there will be only be a small intensification of the use of the ground floor, should be utilised to make such significant changes to this large hotel even taking into account its present known impacts.

31 I have therefore decided to uphold the appeal and modify the development consent in accordance with exhibit 5, subject to the above mentioned amendments. Exhibits 5 and D are retained.

          T Bly
          Commissioner of the Court
          cc/ljr

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