McHugh Holdings Pty Ltd v Manly Council

Land and Environment Court (NSW)|2010-06-17|Before: Mr P

CITATION : McHugh Holdings Pty Ltd v Manly Council [2010] NSWLEC 1160

APPLICANT McHugh Holdings Pty Ltd PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10979 of 2009, 10980 of 2009, 10981 of 2009

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Liquor Act 2007 Manly Local Environmental Plan 1988 Manly Development Control Plan for Late Night Venues 2005

Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193 Stockland Development Pty Ltd v Manly Council [2004] CASES CITED: Hilrok Properties Pty Ltd v Manly Council [2008] NSWLEC 1526 Zhang v Canterbury City Council [2001] NSWCA 167 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 Vinson v Randwick Council [2005] NSWLEC 142

APPLICANT Mr P McEwen (SC) SOLICITOR Bruce Stewart Dimarco LEGAL REPRESENTATIVES:

RESPONDENT Mr A Hatzis (barrister) SOLICITOR HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10979 of 2009 McHugh Holdings Pty Ltd v Manly Council 10980 of 2009 10981 of 2009

JUDGMENT 1 These are three separate but related appeals against the deemed refusal by Manly Council (council) of applications under s 96 of the Environmental Planning and Assessment Act, 1979 (the EPA Act) to modify development consents for the Shore Club, 32-38 South Steyne, Manly. The parties have agreed that the appeals should be heard together and that the evidence in one appeal is evidence in the other.

2 Appeal No. 10979 of 2009 is an application under s96AA to modify development consent 46/2004 approved by the Court on 27 May 2005 (Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193) for alterations and additions and use of the building as a hotel.

3 The application, as amended, seeks to modify conditions of consent in 46/2004 principally to increase trading hours from 2am to 3am, remove the 12.30am lock out, permit the second floor to trade after 12 midnight, amend the security requirements and adopt an amended Plan of Management. Other operational conditions are proposed which are generally not in dispute between the parties.

4 Appeal No. 10980 of 2009 is an application under s 96(2) to modify development consent 505/2007 approved by council on 14 March 2008 for the continuation of extended trading hours until 2am.

5 The application, as amended, seeks to modify conditions of consent in 505/2007 consistent with changes sought in Appeal 10979 of 2009.

6 Appeal No. 10981 of 2009 is an application under s 96(2) to modify development consent 411/2006 approved by council on 19 December 2006 for "alterations and additions including second floor, outdoor dining lounge/bar, façade and parapet alterations".

7 The application seeks to delete conditions of consent in 411/2006 relating to the closing time of the second floor and construction matters. Site and locality 8 The site is located opposite Manly Beach between The Corso and Wentworth Avenue and is occupied by a three storey building. Each level is used for hotel purposes: the ground floor ("Sand Bar") has approval for 164 patrons until 2am, except Sundays: the first floor ("Sound Bar") has approval for 135 patrons until 2am, except Sundays; the second floor ("Sun Deck") has approval for 101 patrons until 12.00 midnight. This floor has a retractable awning and provides an area suitable for smoking. The hotel has a "lock out" from 12.30am.

9 The surrounding area is characterised by a mixture of retail, commercial and residential development. The Peninsula Apartments are diagonally to the rear of the site in Wentworth Avenue. There are a number of other late night trading venues in Manly with varying opening hours (Exhibit 15). Planning Controls 10 The site is zoned 3 Business under Manly Local Environmental Plan 1988 (the LEP). The proposed modifications are permissible with consent.

11 Manly Development Control Plan for Late Night Venues 2005 (the DCP) came into force on 20 December 2005. The site is within the Entertainment Precinct shown on the map to the DCP, which is the principal area to which the DCP applies. 12 The DCP defines late night venues as: Late night venues include but is not limited to hotels, clubs, nightclubs, restaurants and premises which have a liquor licence, fast food outlets and take away food shops that propose to trade after 10.00pm. 13 The objectives of the DCP are: o to promote the CBD of Manly as a safe place for all the community late at night. o to minimize disturbances to the public late in the evening and extending into the early morning hours. o to have the Entertainment Precinct recognized as a place where people can be safely entertained and socialize without disturbing the peace of the community. o to achieve an image for Manly as a place of excellence in terms of safety and security while enabling the enjoyment of recreational pursuits. o to provide for all members of the community to use and enjoy the highly valued natural amenity qualities of the Manly CBD as a place for leisure and entertainment. o to regulate late night venues to achieve the other objectives of this DCP. 14 The DCP provides controls to achieve these objectives, including limitations on the intensity of development through patron numbers, noise controls, requirements for security, and the hours of operation for hotels limited to 5.00am to 2am, with a 12.30am restricted entry policy Evidence 15 The Court visited the site and heard evidence from residents. Their evidence reflected the submissions lodged in response to the s 96 applications. The main concerns relate to the impact on residential amenity resulting from the number of hotels in Manly and their late night trading. The residents stated that Manly, particularly around The Corso, the beachfront and the harbour-side, is unsafe due to the anti-social behaviour of people affected by alcohol. They raised concerns about noise impacts, and even residents who live some distance from the entertainment area, provided examples of being woken up in the early hours of the morning by the noise of people affected by alcohol, presumably on their way home.

16 While the residents could not specifically identify that the disturbance was caused by patrons of the Shore Club they considered that it, and other hotels in the vicinity, acted as an attractor to Manly and that generally the area, particularly on Friday and Saturday nights, had a "carnival atmosphere fuelled by alcohol".

17 Mr Wallace on behalf of the owners corporation of the Peninsula Apartments and as a representative of the Manly Corso Precinct stated that the existing operation of the Shore Club impacts on their amenity. In particular, he referred to the noticeable increase in noise after the Shore Club commenced trading and to the queuing that regularly occurs outside the club. In his opinion, the Shore Club did not comply with the current conditions of consent, particularly in relation to security guards controlling patron behaviour outside the premises and in the queue. He considered that increasing the hours to 3am and permitting the second floor to operate after 12midnight would only exacerbate the situation and further impact on residents' amenity.

18 Mr Wallace was particularly concerned about the potential for noise impacts to the Peninsula Apartments as a result of the second floor trading past 12 midnight. In his opinion, the background noise varied according to the surf, mechanical plant and the operation of restaurants. The background noise drops significantly after 12 midnight and therefore the noise from the upper second floor, in his opinion, would be audible. Further, he considered that a number of mechanical plants in the area did not comply with relevant controls and indicated that an audit is to be carried out by the council.

19 Mr Wallace referred to the shortage of public transport and taxis, particularly at the 3am change over period. He supported the staggered closing of venues to spread the times when people are leaving Manly and better facilitate their orderly dispersal. He also supported the 12.30am 'lock out' as a mechanism to limit people coming to Manly from venues that had closed outside the area.

20 Mrs Wallace supported her husband's comments and provided an example of security at the Shore Club not intervening in unacceptable behaviour, which she had experienced when a man in the queue outside the Shore Club accosted her.

21 Superintendent Darcy and Leading Senior Constable Orrock of Manly Police also attended the site inspection and provided evidence. They were not required for cross-examination.

22 The Court heard expert evidence for the council from Mr N Islam, planner and Mr G Porter, social planner. Mr J Lidis, planner and Mr G Askew, security consultant, provided evidence for the applicant.

23 Mr G Atkins, for council, and Mr S Cooper, for the applicant, provided expert acoustic evidence in relation to the noise impacts from the extended use of the second floor. These experts were not required for cross-examination.

24 The key areas of dispute between the parties relate to the changes to conditions to extend the hours of operation and remove the 12.30am lock out.

Weight to be given to the DCP 25 The proposed changes do not comply with the DCP, however, the parties disagreed on the weight that should be given to the DCP. Mr McEwen SC, for the applicant, and Mr Hatzis, for the council, referred to the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] where at [92] he discusses the matters which are relevant when determining the weight to be given to an adopted planning policy. These include: o The extent, if any, of research and public consultation undertaken when creating the policy. o The extent to which the policy has been departed from in prior decisions. 26 Mr McEwen SC, raised no issues that the DCP met the first matter but submitted that the council had applied the DCP inconsistently and that it should therefore be given little weight. To support this submission he referred to the Ivanhoe Hotel, which was approved by the Court on 17 December 2008 (Hilrok Properties Pty Ltd v Manly Council [2008] NSWLEC 1526). Both Mr Islam and Mr Lidis provided evidence in that appeal.

27 Conditions imposed as part of the Ivanhoe consent permit trading beyond 2am. Mr Islam's evidence is that the conditions were negotiated during the hearing to bring the development, as close as possible, into compliance with the provisions of the DCP given that the Ivanhoe Hotel had a 24 hour trading licence. Mr Lidis stated that a 24 hour licence is not an impediment to reducing hours through a development consent. Mr McEwen initially also referred to the New Brighton Hotel as another example of inconsistency, however this was approved by the Court in June 2005, prior to the adoption of the DCP.

28 Without going into the specifics, the Hilrok judgment indicates that the circumstances of that case appear to be sufficiently different to the matters in this appeal. On the merits of the issues in dispute between the parties in Hilrok, the Commissioner considered a variation to the DCP to be warranted. I do not accept Mr McEwen's submission that this one application, which was determined by the Court, is sufficient to draw the conclusion that council has inconsistently applied the DCP and that it should be given little weight.

29 Mr Hatzis referred to the approvals that had been granted since the adoption of the DCP where the opening hours had been restricted to before 2am. Mr McEwen submitted that these applications had not applied for hours past 2am and were therefore not indicative of council's application of the DCP with respect to hours.

30 Again the specifics of these approvals are not before the Court but there is nothing to support the proposition that the DCP has not been consistently applied or that it should not be given significant weight.

31 The weight to be given to a development control plan is addressed in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 where Spigleman CJ at [75] raises three important propositions. Firstly, although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

32 Principally, this includes a consideration of whether the objectives of the DCP are met despite the non-compliance with the controls in relation to hours of operation.

33 The objectives of the DCP try to achieve a balance between Manly being a place for entertainment and achieving a safe environment with minimal impact on amenity.

34 The likely social impacts of the proposal are critical to assessing whether these objectives are met.

Social impacts 35 Mr Porter undertook a review of relevant reports and statistics. He concludes that: o there is a direct link between alcohol and adverse social impacts such as violence and crime disturbance. o adverse social impacts result from alcohol related behaviour in Manly. o there is a connection between late opening hotels in Central Manly and alcohol related violence and anti social behaviour. o the Shore Club contributes to these impacts.

36 Mr Lidis accepts that the consumption of alcohol can lead to adverse social impacts and that there are existing issues in Manly, which need to be considered in assessing an additional hour of trade. Further, he accepts that any application increasing the availability of alcohol will, to some extent, increase the potential for adverse impacts. However, he contends that these issues must be considered within the context of Manly and the Shore Club being within a designated late night trading Entertainment Precinct and that the Shore Club is well managed. He considers the increase of trading by one hour would not demonstrably increase the level of impacts currently experienced

37 Mr Askew considers that the incidents of anti social behaviour are over reported in the statistics and that in his observation the number of incidents have decreased.

38 Despite Mr Askew's observations, there is general agreement between the experts that alcohol and late trading hotels are linked to anti social behaviour and, at best, the number of reported incidents is stable within the Manly area.

The Shore Club's contribution to anti social behaviour 39 The key area of disagreement between the experts is the contribution of the Shore Club to the anti social behaviour and whether an increase in trading hours is reasonable.

40 Mr Porter's evidence is that: The great majority of the significant adverse impacts arising from alcohol related behaviours in the Corso/Steyne area, occur in the public domain - that is, after patrons have left licensed venues. It is not always possible to link these behaviours to specific venues, and in a sense all the licensed hotels in the area can be seen as contributing to the problem by providing drinking facilities. Nevertheless, a significant number of reported incidents have occurred inside The Shore Club, including some serious assaults. 41 Mr Porter recognises that there can be inadequacies in the statistics in relation to incidents. He also accepts Mr Askew's evidence that the Shore Club is a well managed hotel and that there is only so much that management can do to control such incidents and that they will occur.

42 However, in Mr Porter's opinion, the inevitability of such incidents occurring is a clear indication of why the hours of the Shore Club should not be extended as it will contribute to the unacceptable social impacts that are already occurring in Manly.

43 Mr Askew undertook 13 surveillance inspections of the Shore Club during the period 13 June 2008 to 16 May 2010 of which eight were covert. During this period he identified non-compliance with conditions of approval such as patron numbers, supervision of guests and security patrols. These were reported to management and in his final report Mr Askew stated: 5. I have observed minimal adverse street activity which could be directly attributable to the Shore Club Hotel. The majority of adverse behaviour appears to have been influenced by the trading of other late trading licensed venues including food outlets in the Manly Precinct. 6. The venues documentation and procedures are above industry standard and my audit of documents confirmed compliance with legislative requirements. 7. It was obvious that there needs to be constant management of the street and queue management and the venue appears to have the infrastructure to ensure ongoing compliance with the Plan of Management and ensure security operatives including bar staff and duty managers tasked with RSA responsibilities meet performance criteria. 44 Mr Askew and Mr Lidis concluded that the exiting operation of the Shore Club did not unreasonably contribute to adverse social impacts.

Impact of extended hours and the lockout 45 Mr Porter notes that a 3am closing would coincide with the closing of other larger nearby hotels, which are recently signatories to the Manly Local Accord Extended Trading Premises (the Accord), which include the Steyne, the New Brighton and the Ivanhoe Hotels. A 3am closing time for the Shore Club would result in more patrons being on the street at one time and thereby increase the potential for anti-social behaviour. Further, he notes the statistics that the peak period for assaults within licensed premises is between midnight and 3am (by which time most venues have ceased trading) while assaults in outdoor areas continue at a high rate for a period after closing.

46 Mr Porter also considered that a 3am closing time at the Shore Club would also increase pressure on the limited transport services available, particular given the change over period for taxis. All the experts agreed that transport is a significant factor to reducing impacts in The Corso. While there have been recent improvements in transport including two secure taxi ranks and a shuttle bus, the experts agree there is still room for improvement.

47 Mr Askew observed that around 3am patrons are likely to wait about 30 minutes for a taxi and that the second taxi rank opposite the Manly Pacific Hotel and the shuttle buses are usually under-utilised. In his opinion, there needs to be greater promotion of these services.

48 While both Mr Askew and Mr Lidis recognised the importance of transport and the current limitations they concluded that: given the maximum capacity of The Shore Club of 400 persons that it is unlikely that in the context of the thousands of other people who are already within the Corso that one additional hour of trade would not impact greatly on transport. 49 Further, Mr Askew and Mr Lidis considered that a 3am closing time at the Shore Club would still maintain a staggered dispersal of patrons from the area despite the other hotels stopping serving alcohol at 3am. They stated that the 3am closure at the Shore Club would require all patrons to be off the premises by then and would mean an earlier cessation of serving alcohol. Whereas the other hotels would stop serving alcohol at 3am but patrons would not have to leave the premises. Although, they both agreed that once alcohol is not being served, management would encourage people to leave through measures such as turning off the lights, stopping music etc.

50 Mr Askew observed that the Ivanhoe Hotel ceased serving alcohol at 2.50am and that patrons had left the premises by 3.20am.

51 Mr Porter did not agree that this would achieve sufficient time difference between the Shore Club and other hotels to provide an effective staggered "bump out" and would increase the number of people in The Corso at the same time and therefore the potential for anti-social behaviour, particularly when compared to a 2am closing with a 12.30am lockout.

52 The experts held different opinions in relation to the 12.30am lockout. Mr Askew and Mr Lidis agree that lockouts may be effective in reducing binge drinking and achieving a staged shut down of premises and a reduction in the number of people in the public domain, but only if this is imposed across the board. As no other hotels in Manly have a lockout they state that people prevented entry at the Shore Club will simply go elsewhere and result in "bar hopping". They also consider the lockout contributes to queuing as people try to gain entry before the lockout commences.

53 Mr Porter agrees that the lockout should ideally apply to all hotels in the area and that "bar hopping" is undesirable. He considers that the lockout at the Shore Club will not stop its patrons going to other hotels after it closes but it will stop other patrons seeking access to the Shore Club and will assist in the gradual dispersal of patrons. Further, he considers that it eliminates queuing outside the venue after 12.30am as people cannot gain entry. He recognises that there is queuing before this time but considers that the extended hours for the second floor may address that issue and should be trailed rather than the 12.30am lockout eliminated. Findings 54 Both Mr Hatzis and Mr McEwen referred to the principles in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 as extended in Vinson v Randwick Council [2005] NSWLEC 142 to be applied when assessing an application for increase in trading hours for licensed premises.

55 In answering the questions poised by these judgments, Mr McEwen and Mr Hatzis drew different conclusions. I accept Mr Hatzis submission that the proposal does not meet the principles in these judgments.

56 Mr Hatzis submits that the existing operation of the Shore Club has unacceptable impacts. He submits that based on the police evidence (exhibit 11), also referred to by Mr Porter, there is compelling evidence that the Shore Club, as with other late trading hotels in the area, generates unacceptable impacts. He refers to the Escalated Licensing Operational Response Modal (ELORM), which uses recorded crime and alcohol linking data to identify premises at high risk of requiring police intervention. The Shore Club is ranked sixth worst out of 1,891 licensed venues in the NW Metropolitan Region and second worst of the 121 in Manly.

57 Mr Hatzis also refers to the Computerised Operational Policy System (COPS) reports and the case studies provided in the Police evidence, the residents' evidence and the breaches identified in Mr Askew's surveillance reports as examples of why the hotel's current operations have adverse impacts. He acknowledges Mr Porter's evidence that the hotel may not be to blame for these incidents and that it may be doing its best, however, he submits that there is clear evidence that these unacceptable impacts are linked to late trading hotels, including the Shore Club and that the longer they trade the greater the risk of adverse amenity impacts.

58 Mr McEwen submits that there is largely subjective information as to what occurs in The Corso and the contribution of the Shore Club. He submits that there is no empirical evidence that the Shore Club adds, in an unacceptable way, to adverse social impacts.

59 Mr McEwen submits that the ELORM ranking of the Shore Club is not an accurate reflection of its impacts due to the accepted subjectivity of the data. He referred to the complaint under s 79(1) of the Liquor Act 2007 by Manly Police that included 30 witness statements of which only one referred to the Shore Club. Further, a breakdown of the COPS reports provides a number of incidents where the connection to the Shore Club is doubtful or they are trivial management issues. He submits the matters are not beyond what should be reasonably expected to occur in late trading premises.

60 In Snell where McClellan CJ considered the original application for the Shore Club, His Honour noted at [59]: 59. Although considerable evidence of behavioural problems arising from the conjunction of many young people in the area and the abuse of alcohol and 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 pat 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 polices need to be put in place to define acceptable uses and the appropriate intensity of development. 61 Further at [81-83] His Honour stated: 81 In Stockland Development Pty Ltd v Manly Council [2004/ NSWLEC 472; (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. 62 Since the decision in Snell, the council through a process of extensive community consultation has adopted a DCP for late night trading venues.

63 Mr Lidis considers the DCP to be a "blunt" instrument, which does not have a strategy for dealing with the inevitable conflicts that will arise between a late night entertainment area and safety and amenity issues other than to not permit trading beyond certain hours.

64 While this may be correct, it is the policy framework in which the application must be assessed. It is not an unreasonable response to an area with a number of hotels which already trade beyond 3am and where there are clearly already social impacts as a result of the activity of the existing hotels and their role as an attractor to Manly.

65 The DCP identifies part of Manly as an Entertainment Precinct and permits late trading. However, this should not be confused as permitting 24 hour trading. The DCP defines late trading as venues that operate after 10pm and seeks to limit their operation to 2am.

66 Mr McEwen submits that the proposed extended trading hours at the Shore Club should be approved to establish parity with other venues in Manly and that planning control must be applied equally. While planning controls must be equitably, I do not agree that approval of these extended hours is required to establish parity or equity. There are other late trading hotels, which operate past 2am but these, other than the Ivanhoe Hotel, were approved prior to the DCP and as discussed, the Ivanhoe Hotel already traded past 2am. Other hotels in the area, which have been approved under the DCP cease trading before 2am, generally by 1am. The Shore Club's trading hours are therefore not inequitable within the context of Manly, particularly given that there are sound social planning reasons for having hotels in the area closing at different times to facilitate the dispersal of patrons and the allocation of police and council resources.

67 The same conclusion can be drawn for the 12.30am lockout. While this applies only to the Shore Club it is clearly a measure that assists in the dispersal of patrons. It is something that the experts supported, albeit only if it applied across the board. While I accept that it will not stop patrons of the Shore Club going to other venues after closure, it does prevent patrons of other hotels going to the Shore Club.

68 Further, I do not accept that the proposed 3am closure of the Shore Club and the cessation of drinking at 3am at other venues provides a sufficient time lag to ensure that patrons have dispersed. Nor do I accept that the potential for up to 400 patrons exiting the Shore Club at 3am is insignificant in the context of the thousands of other people who are already in The Corso

69 I accept Mr Porters evidence that: In the context that there would be additional impacts not only on transport but also on crime, violence and anti-social behaviour as a result of the one additional hour of trade, and that this would probably be in proportion to the number of patrons using the hotel during this time. He noted that the proposal to trade until 3am would mean that patrons would be departing at the same time as those of other larger hotels in Manly, further adding to crowds in the area at that time and increasing the pressure on limited transport services. He also considers that an increment of one hour would send an inappropriate message, in the context where community expectations appear to favour a reduction in late night trading and where a range of initiatives are being considered, several of which involve curtailing late night trading. 70 The evidence of all the experts is that alcohol and late night trading venues contribute to anti-social behaviour. I do not accept Mr McEwen's submission that the statistical or anecdotal evidence should be dismissed to the extent that one can conclude that the level of alcohol related anti-social behaviour in Manly is acceptable or that the Shore Club proportionally does not contribute to this, even if it is well run.

71 Mr McEwen submits that there are deficiencies in the approved Plan of Management, which has now been amended. However, the changes to the Plan of Management, which was found to be adequate by McClellan CJ, do not change the substance of the plan and do not result in a significant change in management practices, nor has it been identified that such measures are required.

72 I do not dismiss the ELORM ranking, the COPS reports, Mr Askew's surveillance and the residents' evidence to the extent that I can conclude that the management of the Shore Club achieves best practice. There are issues such as non-compliance with crowd number, the extent of queuing, the lack of security supervision, and compliance with RSA. While these issues are being addressed and may not be unreasonable in a late trading venue, they are indicative that the Shore Club contributes to anti-social behaviour as well as places pressure on scarce police resources. I therefore do not consider it appropriate to vary the DCP controls to permit the Shore Club to trade until 3am or to remove the 12.30am lockout.

Extended use of Level 2 73 The applicant seeks to amend conditions that require level 2 to not be used after 12 midnight and to permit it to trade until closing time.

74 The purpose of the amendment is stated as being to provide a smoking area and thereby limit people using the footpath to smoke.

75 The experts did not oppose the change provided there are no adverse acoustics impacts resulting from the use of the second floor.

76 Mr Atkins and Mr Cooper reviewed the change and agreed that it would meet the relevant noise criteria. They recommended that the patron numbers should be limited to 75, the retractable roof be closed totally on the western side and to one metre on the eastern side at 12 midnight and that no amplified music be played.

77 Mr Atkins and Mr Cooper agreed that mechanical plants dominate the background noise and that it drops off only slightly in the early hours of the morning. The contribution of the Shore Club is well below background noise levels. They stated that the noise of mechanical plant is controlled by the individual development consent conditions.

78 The closure of the second level at 12 midnight appears to have contributed to the exceedence in patron numbers on the ground and first floors as those patrons removed from the second floor do not necessarily leave the venue. Further, it appears to contribute to queuing after 12 midnight as patrons are refused entry to the venue as it is at capacity and they queue to gain entry prior to the 12.30am lockout.

79 I acknowledge the concerns of the residents in relation to the potential noise impacts from the second floor and their different opinion in relation to background noise after midnight and the contribution of mechanical plant. However, the agreed position of the acoustic experts is that the use of the second floor will meet the relevant criteria. Further the use of the second floor past 12midnight is to be for a trial period of 12 months during which time noise testing and compliance monitoring will be undertaken.

80 Permitting the second floor to remain open for the same hours of the remainder of the hotel also has benefits in the management of numbers in the premises, queuing and providing a smoking area.

81 I therefore accept the evidence of all the experts that the change to the condition to extend the use of the second floor until the 2am closing time, for a trial period, is appropriate and meets the objectives of the DCP.

Security 82 The experts agreed to amended security arrangements which establish that security guards be employed at the rate of 1 per 100 patrons rather than specifying a fixed number and that the security patrol should be extended to The Corso and Wentworth Avenue. They agreed to the amended wording of the condition 61 (Appeal No 10790 of 2010), which is set out in their Joint Report. The experts agreed that this condition should be further refined to include the requirement that on Friday nights (Saturday morning) and Saturday nights (Sunday morning) at least one security guard is located on each level until close. On the basis of this agreement, the council did not press its objection to the changes to condition 61.

Plan of Management 83 The experts agreed that the amended Plan of Management (exhibit N), subject to the changes made by Mr Porter, was adequate. The Plan of Management will need to be further amended to reflect this decision.

Conditions 84 A number of amendments to conditions were agreed between the experts, which are summarised in their Joint Report. The conditions in dispute and the different versions of the parties and the experts are in Exhibit J (Appeal No 10979, Exhibit K (Appeal No 10980) and Exhibit L (Appeal No 10981). For the reasons I have given above, the conditions are to be amended as follows.

Appeal No 10979 Condition 41 - council's version, which retains the 2am closing and 12.30am restricted entry. Condition 42 and 42 A - as agreed by the experts and amended during the hearing to permit level 2 to trade until closing for a 12 month trial period in accordance with the recommendations of the acoustic experts and noise monitoring. Condition 60 - as agreed by the experts Condition 61 - as agreed by the experts and amended during the hearing Condition 65 - deleted. The condition duplicates the requirements of the Liquor Act 2007 and it is unreasonable to require substantial meals at all times during trading hours. Condition 66 - deleted. The condition is unnecessary as liquor can be sold during the opening hours in Condition 41. The regulation of the hours for sale and supply of alcohol is under the Liquor Act 2007. Condition 67 - deleted. The lock out requirement at 12.30 has been incorporated into Condition 41. Condition 69 - as agreed by the experts Condition 71 - the applicant's version with reference to the Plan of Management which is to be amended to include the comments of Mr Porter and to be consistent with the approved conditions. Condition 74 - as agreed between the parties Condition 83 - is not required as the changes sought by the applicant to condition 41have not been adopted

Appeal No 10980 of 2009 85 The conditions are to be amended to be consistent with Appeal No 10790 of 2010.

Appeal 10981 of 2009 86 The s96 application seeks to delete all the conditions as the works required by this consent have been carried out. Mr McEwen did not press the deletion of the construction conditions only the amendment of Condition ANS01 to ensure consistency with the other consents. Directions 87 The parties are to file (electronically) agreed Short Minutes of Order and an Amended Plan of Management which reflect this decision by 13 August 2010. Final Orders will then be issued in Chambers

      Annelise Tuor
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2001) 115 LGERA 373

(2004) 136 LGERA 254

At a glance

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Judgment (84 paragraphs)

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Cases Cited (7)