Nelmeer Hoteliers Pty Ltd v Burwood Council

CASES CITED: Nelmeer Hoteliers Pty Ltd v Burwood Council, Appeal No.10712 of 1994.

APPLICANT Mr P McEwen, SC Instructed by Mr D Manca, solicitor LEGAL REPRESENTATIVES: of LAS Lawyers & Consultants

RESPONDENT Mr T O'Connor, solicitor of Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10572 of 2006 Nelmeer Hoteliers Pty Ltd v Burwood Council

JUDGMENT 1 This is an appeal against the refusal by Burwood Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to amend Development Consent (DA83/95) for the Royal Sheaf Hotel, 77 Liverpool Road, Enfield (the site).

2 The application seeks to vary Condition 7 of the development consent in relation to the hours of operation.

The hours of operation being confined to between 5 am and 12 midnight Monday to Saturday and 10 am to 10 pm on Sundays without further approval of council and with such hours being subject of a review by council three months after commencement of this development. 4 The proposed amendment seeks operating hours between 10 am to 4 am Monday to Saturday and 10 am to 10 pm on Sunday.

5 The applicant has agreed to an amended condition which permits operating hours between 10 am and 10 pm Monday and Tuesday, 10 am and 3 am Wednesday to Saturday (Sunday morning) and 10 am to 10 pm Sunday. The condition proposes the extended hours be a trial period for one year.

6 Additional conditions are also proposed which require the hotel to operate in accordance with a plan of management, the construction of a sound barrier along the northern boundary, the provision of two security guards, including one to patrol the area surrounding the premises.

7 In response to the evidence during the hearing, the applicant agreed to additional conditions which include landscaping along the northern boundary adjacent to the sound barrier and a limitation on patron numbers using the hotel after 12 midnight.

8 The site, its context the history of the application and the statutory framework are set out in the Statement of Basic Facts and the report to council dated 13 June 2006. This report recommended approval of the application on a trial basis. The site and its context

9 The site is located on the north-western corner of Liverpool Road and Burwood Road. It has an area of about 3,360 sq m and is developed with a two storey hotel building and a single storey building previously used as a drive-through bottle shop and TAB. There is a surface car park to the north of the site which is accessed off both Burwood Road and Liverpool Road. A single storey house adjoins this car park which has windows that face the car park. Further to the north and on the eastern side of Burwood Road is residential development. Adjoining the site to the west is a car yard and residential flat building with commercial and retail shops located further to the west. On the opposite side of Liverpool Road is a church, a primary school and retail shops. History of the application 10 In July 1994 council refused a development application (DA142/94) for an extension of trading hours on the ground floor, rear bar of the main hotel building to 3 am seven days per week. Senior Commissioner Jensen upheld council's decision on 2 May 1995 in Nelmeer Hoteliers Pty Ltd v Burwood Council, Appeal No.10712 of 1994.

11 Council approved a development application (DA 83/95) on 25 October 2005 for a change of use of the southern section of the ground floor of the main hotel building from retail use back to hotel use. This s 96 application seeks to modify this consent. Planning framework

12 The site is zoned Residential 2(c1) and the car park is zoned Residential 2(a) under Burwood Planning Scheme Ordinance. The hotel use is not permissible in either of these zones and gains its permissibility through existing use rights. The provisions of any environmental planning instrument cannot derogate from existing use rights and the application must be assessed under s 97C of the Act.

13 Surrounding land to the north and east is zoned Residential 2(a) and land to the west along Liverpool Road is zoned Residential 2(c1) and Commercial 3(b). The school and church are zoned special uses.

14 Under Burwood Local Environmental Plan 19 the site and surrounding area are within the Burwood Road Heritage Conservation Area.

15 Burwood Consolidated Development Control Plan Part 6 - Notification of Development Applications (DCP Part 6) is also relevant. The s 96 application was notified in accordance with this DCP. The parties agreed that the proposed sound barrier did not require further notification in accordance with the DCP Part 6 as the affected neighbour had been consulted.

16 Burwood Consolidated Development Control Plan Part 3 - Fences on Heritage Listed Properties (DCP Part 3) requires side fences to be a maximum of 1.8 m high. The parties agreed that as the existing side fence was to remain and the sound barrier is set in from the boundary, it is not a fence under DCP Part 3. Nevertheless the impacts of the sound barrier on the heritage conservation area remain a relevant consideration. Issues and Evidence

17 The Statement of Issues before the Court contained five issues. The submission by the applicant of a noise report by Mr S Cooper, a heritage impact assessment by Mr G Brooks and a risk assessment by Mr G Askew satisfied council's concerns in relation to these issues. The only outstanding issue related to whether the proposed extension of hours was appropriate given the residential nature of the area.

18 Council did not provide any expert evidence to support its case, although Constable Stubbs provided a joint statement with Mr Askew which agreed on appropriate security measures for the hotel, including the two security guards on the nights when the hotel is open past midnight.

19 The Court visited the site and heard evidence from the following residents:

· Mr B Ridout, 229 Burwood Road; · Mrs T Woods, 318 Burwood Road; and · Mrs Lawther, 11 Seale Street.

20 The main concern of Mr Ridout was the appearance of the sound barrier from his property and whether it would block daylight and reflect the car park lights which are placed along the common boundary. The applicant has agreed to conditions requiring landscaping in pots along the boundary and to the screen being non-reflective material. Mr Ridout was also concerned about existing patron behaviour, particularly rubbish being thrown into his property and noise.

21 Mrs T Wood shared these concerns and provided information on disturbances that had occurred and measures she had undertaken to minimise impacts on her property. She acknowledged that the problems appeared to have been reduced since a security guard had been employed on the premises.

22 Mrs Lawther was concerned that the proposal would result in her street being used for parking and would have similar adverse impacts to when the hotel was previously used for late night trading. She noted that the current operation of the hotel had not had any significant impact on her amenity.

23 The key issue in this case is whether the proposed extension of hours is appropriate given the residential nature of the surrounding area. The main potential impacts are those of noise to the adjoining property at 229 Burwood Road, the appearance of the acoustic screen and the impact on the surrounding area of patrons leaving the premises.

24 In relation to the first issue, Mr Cooper's assessment was that the current operation of the car park did not meet the Environment Protection Authority (EPA) sleep arousal criteria after 10pm. He stated that this criteria could be met both before and after 12midnight by the construction of the acoustic barrier. Mr Cooper also found that the impact of noise on 2 Seale Street was acceptable due its distance from the site.

25 Council undertook an independent assessment of this evidence and did not press this as an issue.

26 The provision of the acoustic barrier also raises the issue of whether this has an acceptable impact on the heritage significance of the conservation area and the adjoining property at 229 Burwood Road. Mr Brooks' assessment concluded that the acoustic barrier was acceptable as it did not extend further forward than the front wall of the existing house.

27 The applicant has accepted a condition which would require planter boxes between the screen and the existing boundary fence. This area is currently paved as a footpath area but no longer serves this purpose. While this would assist in mitigating the impact of the proposed fence from the adjoining property, I consider that its appearance from the hotel and Burwood Road should be addressed by further landscaping.

28 The car park is within a 2(a) zone between contributory items within a conservation area. The car park immediately abuts residential development and, while I accept that the noise impacts are made acceptable by the provision of the screen, the appearance of the screen and that of the car park are uncharacteristic of a residential area. The car park is large and it would appear that there is adequate room to provide the 48 car spaces required by condition 3, (I note that only 40 are currently provided) as well as the required aisle widths and an appropriate landscaped buffer between the hotel use of the car park and the adjoining residential use. This would assist in mitigating the impacts that currently occur, such as bottles being thrown into the adjoining property, as well as screening the acoustic fence and integrating it into the landscape treatment.

29 I, therefore, propose that an amended plan be provided that requires landscaping between the proposed acoustic fence and the existing boundary fence as well as landscaping along the southern side of the acoustic screen and the car park. This landscape screen should extend to the west along the common boundary.

30 The evidence suggests that the existing operation does not meet the EPA noise criteria and therefore the acoustic screen would be required regardless of whether the extended hours would continue following the completion of the trial period. I, therefore, consider the amendment to be reasonable. The amended plan should also demonstrate that the 48 car parking spaces required by the existing condition can be provided.

31 In relation to the impact on the surrounding area, the applicant's evidence is that the main purpose of the extension of hours is for the gaming room rather than the service of alcohol. The hotel has 30 gaming machines and the proposal is not likely to generate a significant number of patrons. A condition has been proposed which limits the maximum number of patrons to 90 after 12 midnight. There is currently no limit on the number of patrons.

32 The current approval does not permit the hotel to be used as a place of public entertainment. The evidence before the Court is that the earlier operation of the hotel which impacted on the amenity of the area resulted from the hotel being used for live music with an outdoor beer garden.

33 The current operation of the hotel has not resulted in any complaints to the Liquor Administration Board or the Licensing Court. The current approval has no noise criteria for the whole premises, sound barrier, plan of management, security guard, CCTV or limitation on numbers. The proposed extension of hours will impose these requirements as conditions of approval. This, in addition to the proposed landscaping and the likely clientele during the extended hours, is unlikely to result in an adverse impact on the amenity of the surrounding residential area and is an improvement over the current consent.

34 The requirement that the extended hours be subject to a trial period and the noise impact be monitored provides a mechanism to enable the anticipated impacts outlined in the evidence to be monitored. The trial period and the current operation of the hotel distinguish this appeal from the decision of Senior Commissioner Jensen and are consistent with the principles in Vinson v Randwick Council [2005] NSWLEC 142.

35 The final orders of the Court will be issued in chambers upon receipt of amendments and conditions as follows: (1) Condition 8 should refer to Condition 6; (2) Confirmation from Constable Stubbs and Mr Askew that the security guards are only required on those days where the hotel trades beyond midnight as set out in Condition 18 and in the management plan; (3) Amendment to require landscaping along the northern boundary as outlined in this judgment; (4) The car park layout to accommodate 48 car parking spaces as required by Condition 3 Directions: 1. Applicant to file and serve by 7 November 2006: i) amended plan which show: · acoustic screen · landscaping between the acoustic screen and the existing boundary fence and to the south of the acoustic screen adjoining the car park. The landscaping is to extend to the west along the boundary with 229 Burwood Road · Car parking layout to accommodate 48 spaces required by Condition 3

ii) Confirmation by Constable Stubbs and Mr Askew that no security guards are required on the days that the hotel is not open past 12 midnight or an agreed amendment to Condition 18 and the Plan of Management. 2. Council to provide any comments and to file and serve agreed draft conditions by 14 November 2006. 3. Unless otherwise advised by e-Court on or before 14 November 2006, the final orders will be issued in Chambers once Directions 1 and 2 have been complied with.

      Annelise Tuor
      Commissioner of the Court
      rjs

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