Oscars Hotels Pty Limited v Wollongong City Council

Land and Environment Court (NSW)|2022-03-02

Judgment

COMMISSIONER: These proceedings comprise six separate appeals. The appeals relate to two (2) open decks and a pergola structure that have been constructed without development consent where such consent was required, within an existing outdoor beer garden, which forms part of the Towradgi Beach Hotel (the hotel) owned by the Applicant and being lot 2001 DP 1102607 situated at 170 Pioneer Road, Fairy Meadow (the site) within the Wollongong City Council local government area. The appeals also relate to a claimed non-compliance with a noise condition imposed by an existing consent (DA 2007/133) granted by the Respondent on 27 March 2007 and regulating the operation of the hotel.

The nature of the appeals

The nature of the individual appeals is as follows: 1. Appeal 1: 2021/167725. This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order (DCO), being a Demolish Works Order - Order No. 3 under Pt 1 Sch 5 of the EPA Act, issued by the Respondent to the Applicant, as owner of the subject premises, on 14 May 2021 to demolish a timber pergola (the pergola order) erected in the beer garden on the site without a required planning approval. Section 9.34(3) of the EPA Act provides that a reference in the tables in Sch 5 to a planning approval is a reference to a development consent. 2. Appeal 2: 2021/167740. This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the EPA Act against a DCO, being a Demolish Works Order - Order No. 3 under Pt 1 Sch 5 of the EPA Act, issued by the Respondent to the Applicant, as owner of the subject premises, on 7 June 2021 to demolish two timber decks (the decks order) erected in the beer garden on the site without a required planning approval and also a Compliance Order - Order No. 11 also under Pt 1 Sch 5, issued by the Respondent to the Applicant to comply with planning approval DA 2007/133 dated 27 March 2007 by complying with Condition 11 - Noise Nuisance (the noise order). 3. Both the decks order and the noise order were contained within the one instrument. Each of the DCO appeals was lodged within 28 days after the order was given to the Applicant, as required by s 8.18(3)(b) of the EPA Act. 4. Appeal 3: 2021/313269. This is a Class 1 Miscellaneous Appeal pursuant to s 8.25 of the EPA Act against the decision of the Respondent on 6 May 2021 to refuse to issue a Building Information Certificate (BIC) (BC 2020/134) with respect to the pergola structure lodged with the Respondent on 2 November 2020. 5. Appeal 4: 2021/313270. This is a Class 1 Miscellaneous Appeal pursuant to s 8.25 of the EPA Act against the failure of the Respondent to issue a BIC (BC 2021/58) with respect to the two open decks lodged with the Respondent on 17 June 2021. 6. Each of the BIC appeals was lodged within six months of the refusal/deemed refusal as required by s 8.25(2) of the EPA Act. 7. Appeal 5: 2021/313271. This is a Class 1 Development Appeal pursuant to s 8.7(1) of the EPA Act against the deemed refusal by the Respondent of development application DA 2021/693 for the use of the timber pergola structure lodged with the Respondent on 17 June 2021. 8. Appeal 6: 2021/313272. This is a Class 1 Development Appeal pursuant to s 8.7(1) of the EPA Act which commenced as an appeal against the deemed refusal by the Respondent of development application DA 2021/695 for the use of the two timber decks within the beer garden of the premises. The Respondent subsequently determined that DA by refusal on 30 November 2021.

Source of the power to determine each of the six appeals

In exercising the functions of the consent authority on appeal, the Court has the power to determine the DCO appeals pursuant to s 8.18(4) of the EPA Act. It has the power to determine the BIC appeals pursuant to s 8.25(3) and it has the power to determine the development applications for the use of the decks and pergola pursuant to s 4.16 of the EPA Act.
The development applications did not (and could not) seek development consent for their earlier construction in 2020 because consent for the erection (as opposed to the prospective use) of a building cannot be granted retrospectively: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [39].
So far as is relevant, the evidence in each appeal is evidence in all the appeals.

The parties' approach to the proposed resolution of the appeals

Shortly after the commencement of the hearing, I was informed by the parties' representatives that with respect to the DCO and BIC appeals (appeals 1-4) they proposed consent orders for each of those appeals by which the appeals would be upheld subject to conditions and orders particular to each of the appeals.
With respect to the development appeals for the use of the timber pergola and timber decks (appeals 5 and 6), at the parties' request the hearing was terminated and was converted to a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The parties subsequently informed me that they had reached agreement as to the terms of a decision in each of those proceedings that would be acceptable to the parties. These decisions involved the Court upholding each appeal and granting development consent to each development application subject to conditions.

The Court's role in the determination of the six appeals

In each of appeals 1-4 with respect to which consent orders are proposed, I must be satisfied that it is both lawful and appropriate to make the final consent orders.
In each of the two development appeals (appeals 5 and 6) in which the parties have reached agreement, pursuant to s 34(3) of the LEC Act, I must dispose of those proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Consequent upon the termination of the hearing and the conversion of each of these appeals to a conciliation conference, my role no longer involves a determination of those appeals on their merits.

Outcome of appeals 1-6

For the reasons set out below, I have concluded that each of the appeals 1-4 should be upheld in the terms of the consent orders proposed by the parties.
With respect to appeals 5 and 6, I am of the opinion that, being satisfied that the parties' decisions are decisions that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of those appeals in accordance with the parties' decisions.

The site, the existing hotel and its context

The site is located at 170 Pioneer Road, Fairy Meadow. The site area is 1.734 ha. It incorporates the Towradgi Beach Hotel, which includes the subject beer garden (a pub), Comfort Inn Towradgi Beach (motel), Waves (nightclub) and 228 at-grade carparking spaces. There is a bottle shop located on an adjoining allotment to the north in the same ownership as the site.
Adjacent to the hotel building on its eastern side is the outdoor beer garden, which has an area of approximately 1300 m2 (24 m x 55 m) containing a bar, general seating area, children's playground, two covered semi-outdoor seating areas and the two decks and pergola, the last-mentioned structures being the subject of these proceedings. The area of the beer garden is 1650 m2 if the two semi-outdoor seating areas, which are not the subject of these appeals, are included.
Development consent was first granted for the hotel in 1975. There followed a number of further consents. Of particular relevance is consent DA 2007/133 granted on 27 March 2007. The approved plans incorporated the current beer garden. The approved hours of operation are Monday to Saturday 7 am to 3 am and Sunday 8 am to midnight. There is no limitation on the number of patrons who may occupy the beer garden, but its capacity has been estimated by the acoustic and planning experts at 500 persons.

The structures and the noise condition

The two open decks in question are each of an irregular shape and are of timber construction. The western deck is approximately 112 m2 and is elevated approximately 460 mm above ground level of the beer garden. The eastern deck is approximately 64 m2 and is elevated approximately 200 mm above ground level. The combined area of the decks accounts for approximately 15% of the beer garden area.
The pergola in question is a covered outdoor area enclosed on three sides. It is approximately 105 m2 and has a seating capacity of approximately 40 persons. The pergola accounts for approximately 8% of the beer garden area.
Condition 11 of the 2007 consent, and part of the subject matter of DCO appeal 2, is in the following terms: "11 Noise Nuisance The operation of the licensed premises shall not create nuisance to surrounding residents/property owners by way of noise."

Noise sensitive development in the vicinity of the site

The joint expert report of the acoustic consultants (Exhibit 3 at [13]) identifies noise sensitive development in the vicinity of the site as follows: "● To the north there are one and two storey residences on Edgar Street approximately 115 m from the northern edge of the hotel beer garden. ● To the west is an apartment development (Pioneer Sands Suites - 19 Carter Lane). These apartments appear to have been constructed in approximately 2010. ● To the south is 5 Grand Court, approximately 65 m from the southern edge of the hotel beer garden. These apartments were constructed in approximately 2019. ● To the east is the Wollongong Surf Leisure Resort, with accommodation cabins approximately 105 m from the hotel beer garden, and with operations understood to pre-date the 2007 consent for the hotel."

The zoning of the site

The site is zoned SP 3 - Tourist pursuant to Wollongong Local Environmental Plan 2009 (WLEP 2009). The existing hotel is categorised as a 'pub', which falls within the definition of 'food and drink premises' as defined in WLEP 2009. Development for that purpose (which would include the decks and the pergola) is permitted with development consent in the SP 3 - Tourist zone.

Public notification and submissions

The various applications were notified to the public and a number of written submissions were received by the Respondent and are in evidence (Exhibit 1 tab 17). The objections related to a number of aspects of the operation of the hotel, but the primary concern was noise emanating from the beer garden, particularly at night. This was attributed by the objectors to the use of speakers, the playing of live music and the voices of patrons within the beer garden and when leaving the premises. I have considered each of the written submissions in the determination of appeals 1-4.

The evidence relevant to appeals 1-4

Two residents from Edgar Street to the north and one resident from the Grand Court apartments to the south gave evidence regarding longstanding and current disturbance to their amenity which they attributed to noise emanating chiefly from the hotel beer garden.
Expert evidence in the form of joint reports was given for the Applicant by Mr Lidis (town planner) and for the Respondent by Ms Starr (town planner) (Exhibit 3). Acoustic evidence was given by consulting acoustic engineers for the Applicant by Mr Taylor (Exhibit C) and jointly with Mr Haydon for the Respondent (Exhibit 2). A supplementary report (Exhibit 6) was also prepared by the acoustic engineers wherein they commented upon the terms of the proposed consent orders where relevant to their particular expertise.
The experts were not required to give oral testimony.
Whilst not in agreement on all issues, the acoustic engineers did broadly agree upon a number of fundamental matters which I am of the opinion are most relevant to my consideration of the appropriateness of the proposed consent orders. Those agreed matters are summarised below: 1. The pergola and decks do not increase the maximum capacity of the beer garden. At maximum capacity, the decks and the pergola do not create the opportunity for more noise compared to if they had not been constructed, but the pergola and the decks may make the use of the beer garden more appealing. Any such increase in the beer garden patronage cannot be quantified (Exhibit 2 at [42]-[44]). 2. The Liquor and Gaming NSW standard noise condition is not incorporated in any existing condition of consent relating to the hotel but is a reasonable proxy for the condition 11 requirement that the site not create 'noise nuisance' (Exhibit 2 at [54]-[56] and [92]). 3. Noise emission from the use and operation of the beer garden, when moderately patronised, presently exceeds the Liquor and Gaming NSW standard LA 10 noise condition at nearby receiver locations during daytime, evening and night-time periods even in the absence of music noise emission (Exhibit 2 at [57]). 4. Pending a new development application incorporating amended and improved acoustic design solutions (recommended by all experts), interim measures should be put in place to reduce operational noise impact on nearby residences and their occupants. These interim measures are likely to be ameliorative but are unlikely to bring the hotel into full compliance with the Liquor and Gaming condition if that condition is accepted as a proxy for the objective interpretation of condition 11 (Exhibit 2 at [96]-[102]). 5. The music levels in the beer garden also require restriction and limitation (Exhibit 2 at [119]). 6. Interim restrictions should be placed on the hours of use of the beer garden and children's playground located in the beer garden (Exhibit 2 at [129]-[137]).
In their supplementary report (Exhibit 6) the acoustic consultants considered the proposed consent orders agreed between the parties, and generally were of the opinion that the interim restrictions on the use, hours of operation and the restrictions on music levels within the beer garden were consistent with their joint recommendations made in Exhibit 2, save for the absence of a requirement to acoustically shield the underside of the timber ceiling to the covered outdoor deck areas. Whilst this treatment relates to approved decking, I note that this further requirement has now been incorporated by agreement in condition 6 in Annexure 'A' to the s 34(3)(a) agreement (now Annexure C to this judgment) approving the use of the timber decks in appeal 6: 2021/313272.
In their joint report (Exhibit 3) the planning experts noted the findings and recommendations of the acoustic experts and agreed that immediate interim measures were required to address noise impacts, and that a permanent solution should be implemented by the lodgement and determination of a further development application designed to ensure compliance with condition 11 of the 2007 consent. In that regard, I note the proposed consent orders in appeal 2: 2021/167740 oblige the Applicant to lodge a development application with the Respondent within a period of eight months from the date of the orders in that appeal, proposing the carrying out of building works as acoustic measures with the purpose of meeting the Liquor and Gaming LA 10 acoustic criteria with respect to noise emitted from the beer garden area.

It is lawful and appropriate to determine appeals 1-4 generally in accordance with the proposed consent orders

With respect to appeals 1 and 2 (the DCO appeals) Div 8.5, s 8.18(4) of the EPA Act invests the Court with the following powers: 8.18 Appeals concerning orders … (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.
I consider, with the exception of an order in relation to costs, that the power to make the proposed consent orders is clearly contained within s 8.18(4), particularly subss (a), (e), and (f).
With respect to costs, the parties propose that in each of appeals 1-4 an order should be made that 'there be no order as to costs'. Such an order is nonetheless an order as to costs. I am not empowered to make such an order. The consent of the parties cannot confer that power where it is otherwise absent. Rule 3.10 of the Land and Environment Court Rules 2007 sets out the functions of the Court which are not exercisable by a Commissioner. These functions include the power to make an order as to costs. The only exception is with respect to an order as to costs pursuant to the requirements of s 8.15(3) of the EPA Act which pertains to costs of the consent authority thrown away as a result of the amendment of a development application where such amendment is not 'minor'. Where otherwise a party wishes to obtain an order for costs in proceedings determined by a Commissioner, this must be done by way of notice of motion and is heard by the Registrar or a Judge of the Court. Accordingly, the orders I will make in appeals 1-4 will therefore be limited to a note that the parties have agreed that there be no order as to costs.
With respect to BIC appeals (appeals 3 and 4) Pt 8, Div 8.6, s 8.25(3) of the EPA Acts invests the Court with the following powers in determining the appeals: 8.25 Appeals with respect to building information certificates … (3) On hearing the appeal, the Court may do any one or more of the following - (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate.
I consider, with the exception of costs, that the power to make the proposed consent orders is amply contained within s 8.25(3)(a) and (c).
In the determination of these four appeals, I have had regard to the expert and resident evidence, the form of the orders proposed and have considered each of the resident written submissions.
Further, I am of the opinion, subject to my comments as to costs above, that it is appropriate to determine each of the appeals in accordance with the proposed consent orders which have been filed and signed by the parties. I have reached this conclusion for the following reasons: in combination, the orders provide appropriate interim measures. They impose a substantial restriction on the current operation of the hotel and the beer garden and are likely to create a strong impetus to lodge a development application within eight months of the making of these orders. The implementation of the conditions of any future development consent will likely bring about the result that the operation of the hotel and the beer garden will be required to be compliant with the Liquor and Gaming LA 10 criteria. This will undoubtedly benefit residents in proximity to the hotel whose amenity, I accept, is currently adversely affected. In the meantime, the interim obligations imposed by the orders will provide a reasonable level of respite to the residents and thereby improve their residential and acoustic amenity. Compliance with the interim restrictions will also provide an opportunity for the residents to experience whether those interim measures bring about appropriate respite and will inform any submissions they might wish to make in response to the required further development application.

It is lawful to dispose of each of the development appeals (appeals 5 and 6) in accordance with the parties' decisions

As explained earlier, appeals 5 and 6 seek development consent for the 'use' of the timber pergola structure and the two timber deck structures.
In combination with the issue of the relevant BIC certificates, the grant of development consent to use the structures will enable them to remain and be so used for their constructed purpose.
Whilst, in each of these appeals, the parties have reached agreement as to the terms of a decision in the proceedings that would be acceptable to them, under s 34(3) of the LEC Act, the Court's exercise of the power to grant consent under s 4.16 of the EPA Act is dependent upon its satisfaction as to certain jurisdictional prerequisites.
In that regard, the parties have identified the jurisdictional prerequisites of relevance in the proceedings in a comprehensive jurisdictional submission which explains how those prerequisites have been satisfied. Based upon the evidence before me, I accept the parties' joint submission as to my jurisdiction in both these appeals. In that regard, I am satisfied in respect of the following matters:

State Environmental Planning Policy (Coastal Management) 2018

This Policy applies to the land. The decks and pergola are located within the coastal wetlands proximity area, coastal environment area and coastal use area as identified by the Policy. The matters for consideration under Part 2 of the Policy are satisfactory.

Wollongong Local Environmental Plan 2009

The site is zoned SP 3 - Tourist and the proposed use of the structures is permissible with consent. That use satisfies the objectives of the SP 3 zone in that it will facilitate a variety of tourist-oriented development and related uses.
The development is compliant with cl 4.3 (height of building) and cl 4.4 (floor space ratio).
The subject site is not a heritage item or located within a heritage conservation area.
The development and the land is compliant with cl 5.21 (flood planning), cl 7.1 (public utility infrastructure), cl 7.2 (natural resource sensitivity - biodiversity) and cl 7.5 (acid sulphate soils).

Wollongong Development Control Plan 2009

The relevant provisions of the Plan are set out in the jurisdictional submission, which I have taken into consideration, and I agree with the parties that the development is generally compliant with those controls. I accept that the use of the pergola and timber decks complies or is capable of complying with, relevant Australian Standards as demonstrated in the expert reports, including the engineers' certificate and BCA Audit (Exhibit E) with the additional work that is prescribed by the conditions set out in the Annexure to each of the s 34(3)(a) agreements between the parties.
Accordingly, I am satisfied that the parties' decision in each 'use' appeal is one that the Court could have made in the exercise of it functions. Accordingly, I am required under s 34(3) of the LEC Act to dispose of each of the proceedings in accordance with the parties' decisions.

2021/167725 (Appeal 1) (the pergola order)

The Court orders, by consent, that: 1. The appeal is upheld. 2. Development Control Order no. 3 - Demolish Works Order dated 14 May 2021 Reference No-2020/376 issued by the Respondent to the Applicant is revoked. 3. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.
The Court notes: 1. The parties' agreement that there be no order as to costs.

2021/167740 (Appeal 2) (the noise order and the decks order)

The Court orders, by consent, that: 1. The appeal is upheld. 2. Development Control Order No. 11 - Comply with Planning Approval dated 7 June 2021 Reference No-2021/177 and issued by the Respondent to the Applicant is sufficiently complied with provided the Applicant complies with the following terms: 1. No live music or DJ entertainment is to be played in the beer garden area of the Towradgi Beach Hotel, 170 Pioneer Road Fairy Meadow ('the Hotel') (beer garden area delineated by red dotting on the aerial photograph in Annexure A attached to this Order) at any time, save that on no more than two afternoons each week live music may be played by a soloist, duo or trio provided that performances end no later than 6.00 pm and any amplifying equipment be connected to the Hotel's sound limiters system and calibrated in accordance with an acoustic engineer's recommendation regarding sound power levels, so as to achieve compliance with the NSW Liquor and Gaming Standard Noise Condition and provided that no drums are used during such performances. 2. All background music to the beer garden area is to cease no later than 11.30 pm on Friday nights, Saturday nights and nights preceding a public holiday, and no later than 10.30 pm on all other nights. 3. No patrons are to remain in any part of the beer garden area (delineated by red dotting on Annexure A) from midnight each night, save for: 1. Patrons who are in the course of entering and leaving the venue via the main entry point (marked with a blue arrow on Annexure A); and 2. Patrons who are in the course of leaving the venue and/or are awaiting transport near the entry point to the venue. 1. All doors leading from the internal areas of the Hotel building to the beer garden area (except for two) must be closed from midnight and remain closed until all patrons have left the Hotel. 2. The playground area in the beer garden at the Hotel is to be closed off to patrons and their children from 9.00 pm each night. 1. For the avoidance of doubt, the Respondent remains at liberty to take any enforcement action in its discretion in relation to any breach of the Development Control Order set out at order (2) above. 2. The terms of Development Control Order no. 11 set out at order (2) above and the undertaking noted at para [48(1)] below cease 18 months from the date of these orders or such earlier date as may be consented to by the Respondent. 3. Development Control Order No. 3 - Demolish Works Order dated 7 June 2021 Reference No-2021/177 and issued by the Respondent to the Applicant is revoked. 4. The Applicant lodge a development application with the Respondent within a period of eight months from the date of these orders proposing the carrying out of building works as acoustic measures with the purpose of meeting Office of Liquor and Gaming LA 10 acoustic criteria with respect to noise emitted from the beer garden area. 5. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.
The Court Notes: 1. The Respondent's undertaking to the Applicant not to issue any further development control order pertaining to noise relating to the Hotel, save for any development control order or other enforcement action relating to noise concerning or pertaining to the carpark area of the Hotel, or the nightclub at the Hotel known as 'Waves' whilst the terms of order (2) above remain in force. 2. The parties' agreement that there be no order as to costs.

2021/313269 (Appeal 3) (pergola BIC)

The Court orders, by consent, that: 1. The appeal is upheld. 2. The Applicant is to provide certification to the Respondent that the 'Key compliance matters' set out in the Accredited Building Certifiers Pty Limited NCC Building Code of Australia Report dated 25 August 2021, as those matters pertain to the pergola, have been completed, within ten weeks from the date of these orders (or such extended time as may be agreed between the parties). 3. Within 14 days of the Applicant complying with order (2) above, the Respondent is directed to issue a building information certificate the subject of building information certificate application no. 2020/134. 4. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.
The Court notes: 1. The parties' agreement that there be no order as to costs.

2021/313270 (Appeal 4) (decks BIC)

The Court orders, by consent, that: 1. The appeal is upheld. 2. The Applicant is to provide certification to the Respondent that the 'Key compliance matters' set out in the Accredited Building Certifiers Pty Limited NCC Building Code of Australia Report dated 25 August 2021, as those matters pertain to the two timber decks, have been completed, within ten weeks from the date of these orders (or such extended time as may be agreed between the parties). 3. Within 14 days of the Applicant complying with order (2) above, the Respondent is directed to issue a building information certificate the subject of building information certificate application no. 2021/58. 4. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.
The Court notes: 1. The parties' agreement that there be no order as to costs.

2021/313271 (Appeal 5) (use of pergola)

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA 2021/693 for the use of a wooden pergola erected at 170 Pioneer Road, Fairy Meadow within the beer garden of the Towradgi Beach Hotel, subject to the conditions set out in Annexure B. 3. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.

2021/313272 (Appeal 6) (use of two timber decks)

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA 2021/695 for the use of two timber decks erected at 170 Pioneer Road, Fairy Meadow within the beer garden of the Towradgi Beach Hotel, subject to the conditions set out in Annexure C. 3. Exhibits A, B, C, E, and 7 are retained and Exhibits D and 1-6 are returned.

Acting Commissioner of the Court Annexure A (225405, pdf) Annexure B (193094, pdf) Annexure C (195100, pdf)

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. Decision last updated: 14 April 2022

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (1)