Kevin Snell Pty Limited v Manly Council

Local Government Act 1919 Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: Interpretation Act 1987 Public Roads Act 1902 Roads Act 1993

Abbott v Minister for Lands [1895] AC 425; Continental Liqueurs Pty Ltd v G F Heublein and Bros Incorporated (1960) CLR 103 ; Director of Public Works v Ho Po Sang [1961] AC 901; Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541; Hamilton-Gell v White [1922] 2 KB 422; CASES CITED: Heston and Isselworth Urban District Council v Grout [1897] 2 Ch 306; Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning 107 LGERA 363; New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685; Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; Smith v Jones (1979) 24 ALR 289; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254

M Craig QC/S Duggan (Appl) Bruce Stewart Dimarco Lawyers (Solicitors - appls) LEGAL REPRESENTATIVES:

B Coles QC/H P Irish (Resp) Pike Pike & Fenwick (Solicitors - resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The applicant seeks development consent to alter an existing three-storey building at 36-38 South Steyne and use it for the purpose of an hotel. The proposal includes bars, public lounges, dining areas, dance floor and associated service facilities and amenities. 2 The plans provide for the demolition of some internal walls, the upper floors and the single storey portion at the rear of the building. They will be replaced with walls and floors of similar size to the existing and a new three-storey section is proposed to be added at the rear of the building. 3 The existing building is used at ground floor level as a bar and nightclub and as residential dwellings on the two upper levels. 4 The site is located within the Manly Town Centre and has a frontage of 13.24 metres to South Steyne and a depth of 25.87 metres with a total area of approximately 340 square metres. It is subject to a road realignment proposal approximately 4.535 metres wide along South Steyne. I shall refer to this in greater detail later in these reasons. 5 The site is situated opposite Manly Beach in a row of two to four storey buildings on South Stein between Wentworth Street and The Corso. Restaurants, cafes and the like occupy the ground floors of these buildings. The upper floors are occupied variously by commercial and residential uses. The building to the south of the site is a two-storey building wholly occupied by a restaurant. The building to the north of the site on the corner of The Corso has been used for shops and offices and is a heritage item. Development consent has recently been granted for alterations and additions to this building. 6 The Corso is a pedestrian avenue predominantly developed with two-storey commercial and retail uses. It has conservation significance and contains a number of heritage items. 7 About 50 metres west of the site is a large multi-storey residential flat building having a frontage to Wentworth Street. A number of dwellings in this building overlook the site and the beach beyond. 8 There are at least eight hotels and nightclubs in the Manly Town Centre. Statutory provisions 9 The site is zoned 3 Business under the provisions of Manly Local Environmental Plan 1988 ("the LEP"). In this zone an hotel is permissible with development consent. Manly Development Control Plan for the Business Zone 1989 (Amendment 3) ("the DCP") applies to this site. Advertising and Council's decision 10 The application was advertised and the Council received six submissions objecting to the proposal. Concerns raised in those submissions relate to: noise from hotel patrons, music, plant and machinery and garbage collection; odours; fire safety; visual impact; car parking; the excessive number of hotels in the Town Centre and the likelihood of antisocial behaviour. 11 The application was refused by the Council for reasons essentially as follows: · The proposal is an intensification of the use of the site and is unable to provide for the car parking generated by the development. · The proposal does not provide for loading and unloading on site and would introduce further conflict in the road system in order to service the increased intensity of use. · The proposal will introduce additional noise into this locality, which will have an adverse impact on the amenity of the area. · The proposed development includes hours of operation that are considered excessive and will introduce potential reduction of amenity and conflict in the neighbourhood containing residential developments. · The proposed development includes major rebuilding within the road widening area required under the Roads Act 1993, which would prolong the life of the building and hinder the achievement of the road widening. · The potential adverse social impacts, including alcohol abuse and violent behaviour relating to the provision of another and enlarged facility serving alcohol in the location, bearing on the community concerns and comments of the Precinct Committee Forum and the Community Safety Committee. The issues 12 The issues identified in the Statement of Issues are as follows: "1. The proposal is not consistent with the objectives, policies and strategies of the Manly Local Environmental Plan 1988.

The proposal is not consistent with the aims and objectives of the Manly Development Control Plan for the Business Zone 1989 Amendment No 3 and in particular objectives D7 and D3.

The proposed development should not be approved given it includes construction within the area affected by the 24 March 1961 Government Gazette notice which would prolong the life of the building and hinder the achievement of the road widening.

The proposal, being an intensification of the use of the site is not appropriate given that it is unable to provide for the car parking generated by the development.

The proposal should not be approved given the failure to provide for loading and unloading on site. The proposal would introduce further conflicts in the road system in order to service the increased intensity of use.

The proposal will introduce additional noise into this locality which will have an adverse impact on the amenity of the area.

The proposed development includes hours of operation that are excessive and will introduce potential reduction of amenity and conflict in the neighbourhood containing residential developments.

The proposed development would result in further adverse social impacts in the area, including alcohol abuse and violent and anti-social behaviour relating to the provision of another and enlarged facility serving alcohol in that location bearing in mind the community concerns and comments of the Precinct Committee Forum and the Community Safety Committee.

Issues raised by objectors including: · Noise from plant/machinery, patrons, garbage collection, (including bottles) music and entertainment. · Emergency egress. · Odours. · Adverse visual impact of plant and machinery on roof. · Increase in floor area of bar/nightclub. · Carparking. · Loading and unloading. · The proposal will potentially exacerbate conflict between residential and commercial/entertainment uses. · Manly does not need more drinking venues. · Will add to drunkenness and anti-social behaviour in the area. · Will create undesirable precedent. 13 Apart from the legal question raised by the road widening issue the most significant issue is the likely social impacts of the proposal and the potential for anti-social behaviour to impact on the amenity of the locality. The question of law 14 Part of the land, the subject of the application, was incorporated into the proposed realignment of the road known as South Steyne which was approved by the Governor and notified pursuant to the Public Roads Act 1902. Notice of the approval was published in the Gazette on 15 March 1961. The notice was in the following terms: " Sydney, 15th March, 1961 REALIGNMENT OF STREET (PUBLIC ROAD) UNDER THE PUBLIC ROADS ACT, 1902, AND SECTION 262, LOCAL GOVERNMENT ACT, 1919 I, Lieutenant-General Sir ERIC WINSLOW WOODWOOD, Governor of the State of New South Wales, with the advice of the Executive Council, do hereby notify that, in pursuance of section 262, Local Government Act, 1919, the undermentioned aligned street (public road) has been realigned under the Public Roads Act, 1902, in order to widen the street (public road) the plan thereof M. 35-2,193 which has been approved in conformity with the abovementioned Acts is deposited in the Department of Lands, Sydney. Rds. 51-509. E.W. WOODWARD, Governor J.B. RENSHAW, for Minister for Lands STREET (PUBLIC ROAD) REFERRED TO Municipality and Village of Manly South Steyne, from the Corso to Ashburner-street; total width 56 feet and variable. This is a realignment in order to widen the road or part of the alignment shown on plan M. 31-2,193 and affects the south-western side only. Parish Manly Cove, county Cumberland." 15 The power to initiate the realignment of a road at the time when the Notice was published was provided in the Council by s 262 of the Local Government Act 1919, which was repealed in 1993. Section 262(1) of the repealed Act provided that a council could cause any aligned public road to be realigned under the Public Roads Act 1902. 16 However, although the alignment was changed, by reason of s 262(7) of the repealed Act, it was not carried into effect, and the land between the old alignment and the new alignment did not form part of the road, until the relevant land was brought into the ownership of the Council. Section 262(2) provided that any realignment could be carried into effect by the Council acquiring the land pursuant to the power provided by s 532 of the Act, or utilising "the realignment method" provided by the subsequent provisions of s 262. 17 Section 262(3) provided that where the Council elected to use the realignment method of acquiring the land "it shall serve notice accordingly upon the owners of lands affected." Until the notice was served the interests of the owners of the land were not affected. If a notice was served, s 262(4) provided the basis and date for the determination of compensation and the date upon which the land would vest in the Council. Section 262(5) provided a restriction on the development of the affected land and was in the following terms: "Where any public road is realigned, and where the realignment method is applied, the owner of any land or building or work affected by such realignment shall not construct, build, place, reconstruct, rebuild, replace, or repair any building or work or portion of a building or work standing upon the land between the old alignment and the new. Provided that the Council may approve the execution of minor and not substantial repairs and improvements in order to permit of the reasonable preservation and temporary use of any existing building or work, but not so as to violate the intention of this section." 18 Section 262(7) provided that the land did not form part of the road "until the Council has acquired title to such land, or a dedication thereof as a public road." 19 When the Local Government Act 1919 was repealed the Public Roads Act 1902 was also repealed and the Roads Act 1993 was enacted. Rather than the Local Government Act continuing to provide the power in a council to realign a road, Division 2 of the Roads Act provided for the widening of a road. If the Minister approves a proposed plan of widening, s 25 of the Act now provides for an order to be published in the Gazette and the owner of the land to be served with a notice. Restrictions on the development of land affected by a road widening order are provided by s 26 which is in the following terms: (1) A person must not construct, replace or repair a building or work on land to which a road widening order applies.

(2) This section does not prevent a person from carrying out minor repairs or improvements to a building so long as:

(a) they are designed merely to enable the reasonable preservation of the building for temporary use, and (b) they are carried out with the consent of the appropriate roads authority.

(3) A consent may not be given with respect to a classified road except with the concurrence of the RTA.

(4) If, in contravention of this section, a person constructs, replaces or repairs a building or work on land affected by a road widening order, the roads authority may direct the owner of the land to carry out such work as is necessary to restore the land to the state it was in before the contravention occurred. 20 The affected land which is required for the road widening is now acquired under the Land Acquisition (Just Terms Compensation) Act 1991 and compensation is payable in accordance with its provisions. 21 In the present case, although the Council had applied for, and the Governor had approved, the realignment of South Steyne and notice of the realignment was published in the Gazette in 1961, the Council had not, before the Local Government Act 1919 was repealed, served the notice referred to in s 262(3). Such a notice was only served on 20 December 2004. The Council now submits that this notice was validly issued and operates to restrict development pursuant to s 26 of the Roads Act 1993. 22 The Council's argument draws upon s 30 of the Interpretation Act 1987, which operates to preserve "reserved rights" which the Council submits has the effect that the notice served in 2004 is valid and, by virtue of cl 47 of Schedule 2 Savings, transitional and other provisions of the Roads Act 1993 operates as a road widening order within the meaning of the Roads Act 1993. For the purpose of s 30(1) of the Interpretation Act, the Council submits that the relevant right can be described in the following terms: "The right acquired by the Council is the right to carry into effect the realignment already effected pursuant to s 262(1) of the Local Government Act 1919 by the acquisition of the necessary land under the provisions of s 262 relating to the realignment method of acquiring land." 23 It is further submitted that: "This right was acquired by the Council upon the publication on 24 March 1961 of the Gazette notice recording that: 'in pursuance of section 262, Local Government Act 1919, the undermentioned aligned street (public road) has been realigned under the Public Roads Act, 1902, in order to widen the street (public road) … " 24 The applicant takes a different position to the Council. It says that s 30 of the Interpretation Act has no application because an intention to the contrary is evinced in the relevant legislation and, accordingly s 5(2) of the Interpretation Act operates, and no relevant right exists in the Council. 25 Section 5(2) of the Interpretation Act is in the following terms: "This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned." 26 The applicant submits that the relevant contrary intention is clearly expressed for the following reasons:

(a) The savings and transitional provisions consequent upon the repeal of the Local Government Act 1919, as reflected both in the Local Government Act 1993 and the Roads Act 1993 (Division 3 of Schedule 2), almost exclusively deal with circumstances where an event has occurred which crystallised into an entitlement prior to the repeal. The exception to this general proposition is the general savings provision which permits an act to be completed only where the act could have been commenced under the new provisions (Schedule 7 to Local Government Act 1993 cl 3 and Roads Act 1993 Sch 2 cl 16). The clear legislative intent was to limit the continuance of the "effect" of the Local Government Act 1919 to only those cases where the step had been completed or the act comprised a matter which was contemplated by the new legislative package.

(b) In particular, the savings and transitional provisions which relate to the powers under s 262 of the Local Government Act 1919 were expressed so as to limit the operation only to preserve the entitlement to pursue the method of acquisition known as the "realignment method " to those cases where the Council had already taken steps to instigate that method of acquisition; ie the circumstances where the notice required under s 262(3) had been served at the date of repeal of the Local Government Act 1919.

(c) The Local Government Act 1993 had introduced a new system of acquisition, namely that set out in Part 12 of the Roads Act 1993. The new system of acquisition and the savings provision evinced an intention that the "peculiar" method of acquisition provided for under s 262(3) was only to continue where the process to trigger that method had in fact commenced at the date of acquisition: Smith v Jones (1979) 24 ALR 289 at 297-298.

(d) The savings provision merely acts to preserve the status quo: those realignments where the realignment method of acquisition had been adopted were permitted to continue, however, where no such election had been made, the Council was required to pursue the ordinary means of acquisition (as was provided for in s 262 of Local Government Act 1919). To construe the repeal otherwise would produce a peculiar and inequitable outcome.

(e) The contentions of the Council operate to undermine the statutory presumption that legislation is presumed not to interfere with property rights without making provision for adequate compensation unless the provisions of the statute are clear and unambiguous: Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning 107 LGERA 363 at 379-381.

(f) As at the date of repeal of the Local Government Act 1919 s 262 of that Act made provision to limit both the extent of compensation payable and the extent to which a landowner could use the land for an otherwise lawful purpose. The provision was clear and unambiguous. The ability to so affect a person's land was predicated upon the giving of the statutory notice. The notice was not merely procedural, but rather was the manner in which the property rights were "removed" by the triggering of the statutory provisions.

(g) As at the date of repeal the only persons whose rights were so affected were those upon whom a notice had been served under s 262(3). All other persons had the "right" to continue to use their land unaffected by any obligations. As at the date of repeal the Roads Act 1993 the legislative scheme operated to remove the distinction of acquisition and the affection upon use. Sections 25 and 26 of the Roads Act 1993 require all land which is the subject of realignment under that Act to be curtailed in use. Therefore by acceding to the Council's submission the applicant is being denied a right accrued to it at the date of the repeal of the Local Government Act 1919 to continue to use its land without restraint and to require compensation to be paid in accordance with the usual entitlement prescribed under the Land Acquisition (Just Terms Compensation) Act. The construction of s 30 contended for by the Council in this case permits an interference with property rights in a manner clearly not envisaged by the legislation. 27 I am not persuaded that s 5 of the Interpretation Act has the effect which the applicant contends. Although the Roads Act 1993 did not reproduce the "realignment method" of widening a road, its provisions are not entirely incompatible with the previous method. So much is plain from the fact that cl 47 provides for a notice served under s 262 to have effect under the Roads Act. In these circumstances, if there is the relevant right in the Council, the intention of the legislature was that it would continue but operate pursuant to the Roads Act. 28 The applicant submits that the various clauses in Schedule 7 evince an intention that cl 47 would only operate in relation to notices which have been given. 29 However, this submission must face the difficulty that the words of cl 47(1) are capable of relating to a past or future notice. Many of the other clauses are expressed in terms which make it clear that the required legal or factual circumstance must have existed at the date of repeal, eg "an order in force" (cl 48), "a permit in force" (cl 44) and perhaps more significantly "a notice in force" (cls 23, 35, 41). 30 The submission is not comfortably reconciled with cl 13 of the Schedule which makes plain that the alignment of a road as fixed under the previous legislation is to continue. Accordingly, it may be assumed that it was intended that the mechanism to give effect to that alignment would also be continued. 31 To my mind, the controversy must be resolved by determining whether a relevant right exists in the Council which could support an entitlement in the Council to serve the notice and perfect the road widening. To resolve that issue it is necessary to understand s 30 of the Interpretation Act 1987 which is in the following terms: "(1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

(2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect:

(a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule.

(3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected.

(4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes: (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and (d) a reference to: (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance." 32 Whether the right claimed by the Council is a right contemplated by s 30(1)(c) is a difficult question which research indicates has not previously been considered. However, as Lord Evershed said in Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 "the distinction between what is and what is not "a right" must often be one of great finesse" (p 552). 33 In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Windeyer J observed that "the words 'any right privilege obligation or liability acquired accrued or incurred' which the Acts Interpretation Act uses, … are all general and abstract terms." His Honour concluded that when referring to a liability acquired or incurred the section had in contemplation a liability which was complete when the relevant statute was repealed "rather than a situation in which some future event must occur to make the effect of past events create a completed liability" (p 584). 34 In Abbott v Minister for Lands [1895] AC 425 the Privy Council emphasised that the critical issue is not whether there was, under the repealed legislation, a power to take advantage of the statute which may be termed a right, rather the question is whether it is a "right accrued" (p 431). Before it can be a "right accrued" there must have been some act done by the person claiming the right directed towards availing himself of the right. 35 In Heston and Isselworth Urban District Council v Grout [1897] 2 Ch 306 a local authority served a notice under the relevant statutory provision requiring the sewering of local properties. Under the legislation, if the frontagers did not do the work within a defined time, the local authority had a right to do the work and recover the cost from the property owners. The owners did not do the work and the local authority took steps to carry it out. However, before it had done the work it also adopted provisions in other legislation which had the effect that the relevant provisions of the Act, under which the notice had been served, no longer applied to the district. It was held that the giving of the notice under the previous Act entitled the local authority to both do the work and recover the costs notwithstanding that a new notice could not have been given. The critical element in the reasoning of Lindley LJ is that having served the notice the "right" to do the work and recover the cost had "crystallised" and the relationship between the authority and the landowners was thereby relevantly altered. Although a "contingent right" it was nevertheless preserved. 36 In Hamilton-Gell v White [1922] 2 KB 422 a landlord gave a tenant a notice to quit which entitled the tenant to claim compensation under legislation provided relevant notices were given within prescribed times. Before the second of those times had expired and the tenant not having given the requisite notice, the legislation was repealed, although the tenant subsequently made his claim within time. Notwithstanding the repeal the tenant was held to be entitled to compensation. The Court held that the "right" in the tenant to claim compensation arose when he received the notice to quit. That right, having "crystallised", was an "acquired right" which would accrue to the tenant when he left the property (see Atkin LJ at 431). 37 In Director of Public Works v Ho Po Sang [1961] AC 901 the Privy Council determined that the repeal of an ordinance under which a lessee, in certain circumstances, could apply for a rebuilding certificate which could be granted in the exercise of a discretion, did not give rise to any relevant right. In these circumstances, the lessee had no more than a hope or expectation that it may be given a rebuilding certificate. 38 The High Court has held that in the circumstances where an application for an order that a trade mark be removed from the register was pending in the court when the provision, under which the application was made, was repealed, the "right" to pursue the application was preserved Continental Liqueurs Pty Ltd v G F Heublein and Bros Incorporated (1960) 103 CLR 422. Critical to the reasoning of the court was that a step had been taken by filing the application in the court which "crystallised" the right. 39 In New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 the Court of Appeal was required to consider the situation where under the Aboriginal Land Rights Act 1983 aboriginal land councils were given a right to make a claim for "claimable land", which, if granted, would vest in fee simple. However, by an amendment to the Act in 1986 the title was confined to a lease in perpetuity. The question was whether a claim which had been made before the amendment would, if granted, require a vesting of the fee simple or the lease as provided by the amendment. 40 Hope JA provides a lucid discussion of the difficulties in deciding whether a relevant right exists. His Honour emphasises that if what is identified is a mere right existing in members of a relevant class of the community to take advantage of an enactment without the person taking any steps to avail him or herself of the right the Interpretation Act will not preserve it (see also the discussion of this aspect in Continental Liqueurs to which Hope JA refers). 41 In the present case, the Council had sought and obtained the realignment of the road under the Public Roads Act 1902, subject to s 262(7) of the Local Government Act 1919. Accordingly, it had exercised the power given to it by s 262(1). However, by the time of the repeal of the Local Government Act 1919 in 1993, it had not taken any step to acquire the land. Accordingly, to my mind, it had not taken the step which would have been necessary to "crystallise" its right to acquire the land by the realignment method which would have brought the relevant subsection of s 262 into operation. This could only occur when notice under s 262(3) was given. Although, undoubtedly, the right to serve the notice existed by reason of the exercise of the power in s 262(1), that did not operate to affect the relationship between the Council and the property owner. That relationship could only be affected by the issue of the notice under s 262(3). 42 To my mind, the position of the Council is no different to the situation where a power under a statute, although available to be exercised and, accordingly, a "right" held by the relevant body, was not exercised before the enabling statute was repealed. The "right", although prospectively available, had not "crystallised" because the relationship between the Council and the landowner had not been affected, as it could have been if the notice had issued. Accordingly, there was no "accrued right" within the meaning of s 30 of the Interpretation Act 1987and the current application may be determined without reference to s 26 of the Roads Act 1993. The position if s 26 of the Roads Act applies 43 Against the possibility that my opinion that s 26 is of no application, I should consider the factual questions which would arise. Section 26 contains a prohibition to which s 26(2) provides an exception. The exception has two effective limbs, both of which must be satisfied. The relevant questions raised by the subsection are: s Do the proposed building works comprise minor repairs or improvements to a building? s Are the proposed building works on land affected by the road widening designed merely to enable the reasonable preservation of the building for temporary use? 44 In my opinion, the purpose of the provision is clear. The Parliament was endeavouring to ensure that the value of land to be acquired for road widening purposes would not be significantly increased by improvements made to existing facilities, whilst, at the same time ensuring the continued economic use of affected land and buildings until the acquisition takes place. As is made plain in the present case, the time between the formation of an intention to widen the road and the implementation of that intention may be considerable. It is in this context that the facts of each case must be considered. 45 In the present case the proposed building works are designed to facilitate the conversion of the existing nightclub and two floors of residential apartments to three floors of hotel. A considerable amount of building work is required. Although the external walls and the roof structure will remain, three new concrete floors and associated supporting columns are proposed together with an extensive building refit. In addition to the structural works in the front part of the building, the street facade will be modernised and provided with new windows and doors. 46 The floor areas associated with the front part of the building comprising the area affected by the road widening proposal represent approximately one fifth of the total floor area of the whole building. The proposed building works comprise the construction of new floors and new internal walls. 47 Of particular relevance is the fact that the new floors and associated structural columns have been purposely designed so that when the area of land affected by the road widening is required, the relevant part of the building can be demolished without any adverse effect on the structural or functional integrity of the remaining part of the building. Following demolition, a new facade can be readily installed on the remaining smaller building, which can then continue to fulfil its intended function. The applicant is prepared to accept a condition designed to ensure that the value of the land required for road widening is not increased by reason of the structural improvements proposed for that land. 48 It follows that the works proposed on the land required for road widening are intended to preserve the whole building in its present form until acquisition is required. Accordingly, the proposed works can appropriately be described as temporary being works which enable the use of the building until the land is required for road widening. 49 With respect to the question of whether the works comprise minor repairs or improvements to a building, the applicant faces greater difficulties. To my mind, the works proposed are not repairs but constitute improvements. If for no other reason, contemporary fire safety requirements for an hotel make concrete floors essential. However, the nature and extent of the works which involve the complete replacement of the floors and internal walls could not be described as minor. Although the proposed works are no more than is reasonably necessary to facilitate the continued use of the building until such time as the road widening takes place and are designed in a manner compatible with that widening, if the Roads Act applied, they would not be permissible.

Planning controls 50 Section 79C(1)(b), (d) and (e) of the Environmental Planning & Assessment Act 1979 provides that in determining a development application, a consent authority is required to take into consideration social impacts in the locality, any submissions and the public interest. 51 Clause 3(1)(l) of the LEP provides that: "3. Aims and objectives

(1) The general aims and objectives of this plan are- (l) to increase safety and amenity of residential, commercial and industrial precincts without downgrading accessibility." 52 It is relevant to again note that the proposal is permissible with consent in the Business Zone and that the LEP does nothing to directly discourage the introduction of additional hotels. Indeed, conversely, cl 3(1)(d) and (f) of the LEP provide: "3. Aims and objectives (1) The general aims and objectives of this plan are- (d) to encourage further development of the commercial centres to cater for the retail, commercial, entertainment, welfare and recreational needs of residents and visitors; (f) to recognise that tourism is a major industry and employer in Manly and to endeavour to encourage its growth and continuing viability." 53 The tourism policies and strategies are contained in cl 4 of the LEP: "4. The policies and strategies of this plan are-

(b) in relation to tourism - (i) to encourage and concentrate tourist development in the Tourist Area; (ii) to encourage tourism to co-exist with local residents to their mutual advantage; and (iii) to develop tourism as an industry for the purpose of gaining employment, economic, cultural, social and recreational benefits in the community." 54 The site is not within a designated Tourist Area on the LEP map and, accordingly, tourism policy/strategies (i) and (ii) are of limited relevance. Lands so zoned and designated are situated some distance away from the site. However, policy/strategy (iii) is of greater significance. There is no doubt that the proposal will, by providing an entertainment and recreational facility, bring economic and employment benefits to the area. However, whether it will bring unacceptable social problems is a significant issue in the resolution of this appeal. 55 I note that apart from being permissible in the Business Zone, tourist facilities including hotels are also permitted with consent in the Residential Zone. Whether this is an appropriate conjunction of uses having regard to the way in which Manly has developed, may require review. However, it is plain that a tension exists between hotel and residential uses and it is likely to occur in both residential and business areas. Social and Amenity Impacts 56 Mr Chambers, an experienced town planner was appointed by the Court to give evidence to assist in the resolution of the appeal. In his report Mr Chambers identified the existing social environment of the locality in which the proposed hotel is to be situated. To assist him he considered a number of existing reports including: · The Manly After Midnight Report. · The Manly Crime Prevention Plan. · The Manly Social Plan. · The Corso Precinct Committee Forum comments. · The Community Safety Committee comments.

Manly After Midnight Report 57 Because of concerns raised with the Council about various late night happenings and occurrences in the Manly central business district, the Council decided to prepare a development control plan for the area. To assist this process the Council formed the Manly After Midnight Working Party ("the working party"). Membership of the working party includes representatives of the Council, Manly Chamber of Commerce Manly Liquor Accord and Manly Police, and members of the Manly Community Safety Committee. 58 The working party has undertaken a consultation process with interested parties resulting in a number of submissions, including submissions from the Little Manly Precinct Community Forum, the Salvation Army, the New South Wales Police Service ("the police service"), several local clubs, hotels and private citizens. Concerns raised in these submissions include antisocial behaviour such as fighting, graffiti, littering and vandalism. Concerns were also raised regarding the effectiveness of policing, litter collection, lighting, inadequate public transport, underage drinking and illegal drug use. Several submissions describe measures to overcome some of these concerns including more conspicuous policing, closed circuit television recording and continued enforcement of the Manly Liquor Licensing Accord. 59 Although considerable evidence of behavioural problems arising from the conjunction of many young people in the area and the abuse of alcohol are apparent, the Council has not yet prepared a development control plan. I do not intend any criticism of the Council for the obvious conflicts are no doubt in part a product of the success of the Council in attracting tourism and entertainment facilities to the area and any future constraint on that form of development will require careful consideration. However, the potential conflict with the needs of residents is obvious and policies need to be put in place to define acceptable uses and the appropriate intensity of development. 60 The submission from the police service comments that Manly has an excellent reputation as a late night entertainment area for dining and socialising in a wide range of bars, nightclubs and restaurants. It states that the behaviour of the majority of visitors is acceptable. However, a small number of people can make visits to the area unpleasant. The submission does not suggest that there should be no additional hotels in this area. Rather, concerns were expressed in relation to late closing food outlets that encourage people, especially those affected by alcohol, to remain in the area. This can result in offensive behaviour as well as adding to the generation of noise and rubbish. 61 In a separate submission, in relation to this particular application, the Local Area Commander of the police service has advised that they are not considering an objection to any liquor licence application, for the subject premises provided conditions designed to discipline patrons and control the activities to appropriate hours are imposed.

The Corso Precinct Committee Forum comments 62 The Corso Precinct Community Forum ("the community forum") provided comments in which it opposed the application for the following reasons:

1. Manly does not need more drinking venues.
2. There will be increased noise levels from this venue, this will increase the ambient noise levels in The Corso which will allow for increased noise levels to be generated for any future venue that has entertainment licences.
3. The venue will encourage even more people into the area to consume alcohol.
4. There is insufficient access/parking on South Steyne to handle increased levels of deliveries for this venue.
5. Approval will create a precedent for other properties in the South Steyne strip to lodge similar applications.

Community Safety Committee comments 63 The Manly Council Community Safety Committee considered the proposal at its meeting held on 18 March 2004. The minutes of that meeting note that: "Discussion concerned the perceptions versus the reality of approval of the development. Committee agreed that in reality the relatively small scale of this development in the larger scheme of late night Manly, will probably not have too much impact." 64 The safety committee nevertheless decided: "That the Manly Community Safety Committee does not believe more late night liquor venues are appropriate in Manly, however if the application for a hotel at 36 - 38 South Steyne is to proceed the following conditions be applied: · That a security manager be appointed on staff. On-staff security rather than contract security is far more successful in the safe operations of a hotel, in managing patron behaviour and in engaging with the community and its issues. · That the licensee must become an active member of the Manly Liquor Licensing Accord. · That the hotel licensee be responsible for the management of their patron behaviour and crowd control on their departure from the hotel by ensuring efficient and quiet dispersal from streets for at least one block radius of the hotel. · That the hotel licensee consult and negotiate with the Manly Police Commander regarding numbers of security staff considered necessary."

Manly Crime Prevention Plan 65 The Manly Crime Prevention Plan 2000 - 2004 prepared by Council's Community Services Planning and Development Group deals with strategic planning for Manly with a particular emphasis on problems of increasing crime levels and social instability. The plan notes that whilst the Manly LGA is a relatively safe place and currently holds a safe reputation for visitors:

"Most of the crime in the Manly Council area is concentrated in a relatively small area, that is, the Manly Town Centre. … The Corso, Manly Wharf, South Steyne including the beach front and the immediate surrounding streets is a crime hot spot." 66 The crime prevention plan notes that The Corso and its immediate environs is a heavily used meeting place with hotels, nightclubs, restaurants, food outlets and associated late-night social activities. The police have identified this area as a problem location particularly at night with alcohol seen as a major contributor to the problem. Manly Social Plan 67 The Manly Social Plan 2004-2009 ("the social plan") was published by the Council following consultations with the community and service providers. The social plan deals with seven major issues including community safety, crime and antisocial behaviour in The Corso, including violence, noise and vandalism. An action plan was prepared which includes objectives relating to the improvement of community safety and crime prevention.

Resident's objections 68 Whilst on site I heard evidence from a number of resident objectors in relation to the problem of living in this part of Manly, due to unacceptable behaviour especially in The Corso, North and South Steyne and the beach, as well as surrounding residential areas. Precinct committee members for The Corso and Little Manly also gave evidence. 69 Little concern was expressed regarding the behaviour of people during daylight hours but, it is plain that on Friday, Saturday and Sunday nights, the behaviour of some people can be entirely unacceptable. Numerous incidents of antisocial behaviour were described including: fighting, noisy, drunken and abusive behaviour; underage drinking; vomiting and urinating in public places; damaging of property; littering, including inappropriate disposal of bottles, food wrappers, syringes and the like; and intimidation of residents and others. These concerns were said to be attributable to the existing hotels in the vicinity of the site. It was suggested that the consequence of an additional hotel would be further drunkenness and antisocial behaviour. 70 Similar concerns are expressed in the six written submissions objecting to the proposal, which were received when it was advertised. Conditions of consent and the management plan 71 If approved, the applicant accepts that there should be conditions of consent, many of which are designed to address behavioural issues. Conditions 46 - 50 restrict noise emissions. Condition 60 requires the installation and maintenance of surveillance cameras and recorders to provide surveillance of the footpath in front of the premises to the north and to the south. Condition 61 requires the engagement of licensed uniform security personnel to patrol the area in the vicinity of the premises prior to and after closing time. Conditions 64 and 65 require that security personnel be trained in the responsible service of alcohol and that the licensee comply with standard harm minimisation requirements. Condition 68 requires that the licensee become an active member of the Manly Liquor Licensing Accord. 72 The applicant's plan of management is proposed to be incorporated as a condition of consent. The plan of management contains various management requirements relating to: limiting noise generated by the premises; storage and removal of garbage; suppliers of goods and services; control of patron behaviour; responsible service of alcohol; security personnel; video surveillance; the liquor accord; and the like. Mr Chambers' conclusion 73 Mr Chambers has come to the conclusion that the proposal would, subject to appropriate conditions, be satisfactory and could be approved. He had regard to the aims, objectives, policies and strategies of the LEP including general objective (l), which is to increase safety and amenity without downgrading accessibility. He considered the views of the safety committee and the community forum and the concerns of the residents. He also took into account the advice of the New South Wales Police Service that the locality surrounding the intersection of North Steyne/South Steyne and The Corso is a "hot spot" for alcohol related assaults. 74 Mr Chambers acknowledged that licensed premises can give rise to adverse social impacts resulting from the consumption of alcohol and the resulting antisocial behaviour of some patrons can have adverse impacts on amenity. However, it was his opinion that this proposal, which is for an upmarket, well-managed quality hotel, will provide the potential social benefit of a modern licensed facility in a beachside location, and would not give rise to a significant increase in antisocial behaviour or crime in the locality. In reaching this conclusion he relied on the characteristics of the proposed premises as revealed by the plans, the detailed description of the proposal and its planned mode of operation including the draft Plan of Management. In his opinion a well-managed hotel would contribute positively to the Manly Town Centre and complement its role as a major tourist/visitor attraction and provide a new meeting place for socialising for a substantial number of people. 75 More generally, Mr Chambers notes that this is an area where the Council has a policy of encouraging a concentration of night time activities, evidenced by the numerous licensed and unlicensed restaurants/cafes and nightclubs in the locality. It is a vibrant and multifaceted entertainment precinct especially at night. In his opinion the proposed hotel will be complimentary to the tourism role of the Manly Town Centre and will be attractive to many visitors. He also noted that the proposed hotel is to replace a now closed nightclub. Findings 76 Although I am persuaded that there are real problems from anti-social behaviour in the Manly commercial area, which will give rise to continuing conflict with residents, I am of the opinion that the current application may be approved subject to conditions. 77 In reaching this conclusion I am mindful of the comments provided by the police service to the working party that the behaviour of the majority of bar, nightclub and restaurant patrons is acceptable and that only a small number of people are responsible for the kind of behaviour to which the community, rightly, objects. Notwithstanding the identified problems, the police do not believe that there should be no additional hotels in this area. 78 I have also taken into account the safety committee's acceptance that the proposal will probably not have a significant impact and that its suggestions in relation to security, patron behaviour and crowd control, security staff and the liquor accord are all reflected in the conditions of consent and the proposed management plan. Concerns communicated to the working party in relation to the need for more conspicuous policing, closed circuit television and enforcement of the Liquor Accord are similarly dealt with. 79 The community forum opposes the proposal, being of the opinion that additional hotels are not required in this location and that increased noise levels will be a problem. However the evidence from the experts identifies the fact that the noise controls which are to be incorporated in the conditions of consent will adequately control the potential for noise to emanate from the premises. 80 With respect to the question of whether or not an additional hotel is required in my opinion that is largely a matter for the market place. The Council has not sought by either an LEP or DCP to discourage hotel development, indeed the opposite is true. In these circumstances, it would not be appropriate for this Court to enter upon the task of assessing the need for or likely commercial success of the venture. There may be good reason to address these questions but this should be done through a suitably structured study and, if thought appropriate, controls incorporated into the LEP or DCP. In this respect I appreciate that work has commenced but is at an early stage. 81 In Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 I commented upon the role which development control plans and other adopted policies of councils can play in the effective resolution of planning conflicts. Just as their preparation and adoption will be of assistance in documenting the community's aspirations, a lack of adopted policies will have the consequence that consideration of an application must be confined to the objectives and requirements of the LEP together with consideration being given to the nature and acceptability of possible adverse impacts and any benefits which may come from the grant of consent. 82 With respect to the present application, 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. 83 I do not overlook the fact that the LEP also contains the objective of increasing the safety and amenity of residential and commercial precincts without downgrading accessibility. Without controls this proposal would be unlikely to meet this objective. However, given the proposed conditions of consent and implementation of a management plan, this objective can be fulfilled. 84 The proposed hours of operation of the hotel are: · Mondays to Saturdays until 2:00am with a prohibition on customer entry to the premises after 12:30am. · Midnight on Sundays. 85 Mr Chambers does not believe these hours would be excessive having regard to the trading hours of the nightclub which formerly occupied the ground floor of the building and the trading hours of other nearby licensed hotels. He nevertheless suggested that if consent is to be granted a twelve-month trial period would be appropriate to allow the impacts to be assessed and the hours of operation reviewed. 86 I believe this is a sensible approach and being one which the applicant does not oppose should be adopted. Access and Car Parking 87 The existing building on the site extends across the full frontage of the property. There are no on-site car parking or loading/unloading facilities and none are to be provided. 88 Mr Chambers has provided a comprehensive analysis of the off-street car parking and on-site loading/unloading requirements in the planning instruments and notes that such facilities would normally be required for a hotel development of this kind. However, in the circumstances of this application, he concludes that they need not be provided. 89 In relation to car parking, Mr Chambers examined existing public car parking facilities and concluded that the additional three car parking spaces required by this application could be readily accommodated in such facilities. In relation to loading/unloading facilities the nature of deliveries, rubbish removal and the like will be fundamentally the same as for the former nightclub, although quantities will be greater. This is undertaken by vehicles standing in The Corso and it is proposed that this should continue. The greater volumes will not translate into any significant increase in delivery vehicle numbers instead more product will be delivered or taken away with each vehicle. Vehicle standing time may increase but this will not cause unacceptable impacts.

90 Mr Chambers also notes that the absence of off-street parking loading/unloading facilities is common to many other commercial premises in this locality that do not have a rear access, including those adjoining the subject property and in The Corso. He also points out that to provide a vehicle crossover from the South Steyne carriageway would have adverse townscape impacts and would undesirably interrupt pedestrian flows. 91 Whilst it is obviously desirable for new developments to provide their own car parking and loading/unloading facilities, I accept the evidence of Mr Chambers that in this case such facilities are not essential. In particular, I agree that the kind of vehicle crossover that would be required to access the site would be inappropriate. The footpath in this location is relatively wide and overlooks the beach. Adjoining properties, as I would expect the proposed hotel, utilise part of this footpath for outdoor dining. A vehicle crossover would be inappropriately disruptive both visually and from a safety viewpoint. It is far better to accept the minimal inconvenience of the use of The Corso for deliveries than to require such an unacceptable intrusion into the vibrant and attractive amenity which is presently available. Other issues 92 The only other significant issue of concern to the respondent and to those resident objectors who reside in the vicinity of the hotel was that of noise outside the premises. However, given that this proposed hotel is situated in the Business zone and indeed in the part of the Manly Town Centre where tourism and recreation activities are encouraged, noise levels typical of a residential area cannot be anticipated. Noise, at a level commonly associated with commercial development, must be accepted. I am satisfied that the noise controls contained in the conditions of consent should restrict noise generation to appropriate levels. 93 For these reasons I have decided that the application may be approved subject to conditions. Conditions 94 Two of the proposed conditions of consent remain in dispute. 95 Condition 71 refers to the proposed plan of management, which in clause 12.2 provides that waste and recyclable materials shall only be removed during defined hours which include 9 am to 10 am on Sundays. Clause 5.7 is consistent with clause 12.2. The Council submits that there should be no removal of these materials on Sundays. 96 It seems to me that given the likely generation of waste and recyclable materials on Saturday nights it would be reasonable for there to be a limited opportunity for these materials to be removed on Sunday mornings. Clause 12.2 should provide for the removal of these materials between 9 am and 11 am on Sundays. Clause 5.7 should be made consistent with clause 12.2. 97 Condition 71 also contains provisions dealing with the finalisation of the plan of management including its ultimate approval by the Council. The draft provides in condition 71(e) that liberty be available to apply to the Court in respect of future amendments that may be required by the hotel licence and the place of public entertainment approval which are yet to be issued. Although it is likely that the parties will be able to agree the final form of the plan of management liberty should be provided in the orders of the Court for an application to be made to the Court in the event of any difficulties. Accordingly, condition 71(e) should be deleted. 98 Proposed condition 73 requires the applicant to respond promptly to any notice from the Council seeking to implement the realignment identified in the Gazettal Notice of 24 March 1961. Because I am of the opinion that that Notice is now of no consequence, condition 72 would not seem to be appropriate. However, the condition was offered by the applicant and it may be, having regard to these reasons, the applicant is prepared to make some other offer which will have similar effect. 99 It is necessary for the conditions to be engrossed to reflect these reasons. Accordingly, I direct the respondent within seven days to provide a complete set of conditions together with a copy of the proposed plan of management consistent with these reasons. 100 I further direct the parties to consider whether a condition to the effect of proposed condition 73 is appropriate. I will provide a date upon which any further submissions in relation to conditions can be made. Otherwise the orders which I will subsequently make will be the following: Orders

1. The appeal is upheld. 2. The development application for the carrying out of alterations and additions to the existing three-storey building at 36-38 South Steyne for the purposes of an hotel is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit 3 is retained. 4. There is no order as to costs. 5. Liberty to apply in relation to condition 71 of the conditions in Annexure A. **********

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