Randall Pty Ltd v Leichhardt Council

Land and Environment Court (NSW)|2004-05-31|Before: Mr P, Mrs J

Introduction 1 This an appeal against the refusal by Leichhardt Council (the council) of a development application to extend an exiting hotel, known as the Monkey Bar, at 255 Darling Street, Balmain, into the adjoining shop 1, 251- 253 Darling Street, Balmain.

The site and it context 2 The existing hotel (c1872) is located on the corner of Darling Street, Ford St and Hoffmans Lane, Balmain. The hotel has a ground floor bar, gaming room and restaurant with a courtyard and a two-storey manager's residence at the rear. There is a function room on the first-floor. Shop 1, 251-253 Darling Street is currently under construction and is part of a two-storey retail and residential development. 3 The hotel and shop are in the eastern end of the Darling Street shopping centre, which contains a mix of retail and commercial uses. Development in the surrounding streets is predominantly residential.

5 The development application was lodged on 4 June 2003 and was notified to adjoining residents. Four objections were received. Council's consultant recommended approval of the application but Council refused it on 17 February 2004. 6 On 15 March 2003, I gave preliminary findings that the impact of the existing hotel had not been adequately assessed and that there was insufficient evidence before the Court to assess the claims of the residents. 7 In response, the applicant provided further evidence and amended plans. These plans resolved the issue of fire egress and compliance with the Building Code of Australia (BCA). The plans also provided details of the internal arrangement of the hotel, including the layout of the new gaming and pool room and the lounge area. The amended plans were re-notified to adjoining residents. Three objections were received, including two from people who previously objected. Statutory framework 8 Under Leichhardt Local Environmental Plan 2000 (LEP 2000) the site is within a business zone and a conservation area. Leichhardt Development Control Plan 2000 is also relevant. 9 The Gaming Machines Act 2001 and its regulations control the design and location of gaming room within hotels. The proposal complies with these requirements.

Issues 10 The Statement of Issues filed by the council contained 6 issues. As a result of the amended plans and joint conferencing between the experts, these issues were resolved between the council and the applicant, with the exception of the issue relating to resident objections. This remaining issue can be summarised as whether the proposed development will have an adverse impact, particularly noise, on the amenity of nearby residents. 11 The Court had the advantage of a site inspection and heard evidence from following residents:

· Ms L Painter, 9 Hoffmans Lane, Balmain · Mr Cacciotti, 61 Curtis Street, Balmain · Mr D Freeman-Robinson, 10 Ford Street, Balmain · Mrs Oats, 8 Ford Street, Balmain · Mrs J Curtis, 12 Ford Street, Balmain · Mr & Mrs Sullivan, 6 Ford Street, Balmain 12 The main concerns were that the existing operation of the hotel caused problems, which would be increased by an extension or intensification of the hotel use. Concerns were also expressed about the proposed gaming and pool room fronting Darling Street. 13 The residents stated that the conditions of approval for the hotel were not complied with. In particular, they said that security guards did not patrol the area, patrons were allowed in after hours and the manager's residence was used for functions. This impacted on the residents' amenity particularly the noise of patrons leaving the hotel through the residential streets. While they accepted the existing hotel use they did not consider its expansion to be reasonable as the cumulative impact of uses along Darling Street resulted in unacceptable impacts on residential amenity. 14 The residents also stated that an increase in floor area would result in an increase in impact. They did not accept that conditions would limit this impact as effectively as physical constraints such as the overall size of the hotel. In summary their opinion was that the existing hotel caused problems that would be exacerbated by an increase in size. 15 In relation to the manager's residence, which was constructed in 2000, the evidence of Ms K Laforest, the licensee of the hotel, was that the manager did not live in the residence but that it was used for management of the hotel and for staff purposes, including training. Council and the applicant disagreed on whether the approval permitted the manager's residence to be used for these other purposes. Ms Laforest stated that there had been one recent occasion when the manager's residence and restaurant courtyard had been used for a function without her knowledge. The Bar in the manager's residence was there for staff training purposes and not to serve the public. This bar had now been removed. The parties agreed that a development application to clarify the use of the manager's residence should be submitted. This requirement has been included in the proposed conditions of consent. 16 In relation to the other concerns of the residents, Ms Laforest stated that the operation of the hotel complied with its conditions of approval including hours of operation, patron numbers and security guards patrolling the area. 17 The Statement of Evidence of Mr W. Mallard, private investigator, stated that the number of people leaving or entering the hotel were well below the permitted numbers after 12 midnight. The security guards were diligent in vetting those attempting to enter for proof of age as well restricting entry after midnight. The noise being generated by the musical entertainment was such that it could not be heard on the majority of occasions in Ford Street or in the vicinity of the residences behind the Monkey Bar. The noise being generated by the pedestrian traffic flow along Darling Street, and not necessarily by the patrons of the Monkey Bar, was also minimal. 18 Mr Mallard concluded that the hotel establishment was run and operated with tight control of both patrons and staff behaviour, access in accordance with DA and with a duty of care to all concerned including the residents and businesses around the vicinity of the Monkey Bar. 19 A letter from the NSW Police Service dated 30 March 2004 stated that Licensing Police have conducted a search of their records and can report that they have not received a noise complaint in relation to the Balmain Monkey Bar since 2002. 20 Ms Laforest had also sent a letter to residents confirming that security guards patrol the area and requesting residents to inform the hotel if they wished the security guards to make their presence known to residents during the course of their shifts. One response had been received to this letter. 21 In relation to the increase in floor area, Ms Laforest stated that the existing gaming and pool room would be used as a lounge area. The purpose was to provide a quieter area with more space as an alternative to the main bar and to encourage people to stay longer. The new gaming and pool room would be accessible only through the existing hotel or from its entrance off Darling Street. The gaming machines would not be visible from Darling Street. 22 Mr Chambers, town planner for the applicant, stated that the additional floor area would not result in an intensification of use for the following reasons: i) there is presently no limits on the number of patrons who may occupy the hotel component of the Monkey Bar at any time prior to midnight (excluding patrons of the restaurant and function room); ii) the applicant accepts condition 27…… which limits that number to 180; iii) the limits of 180 will apply to the existing hotel and shop 1 therefore the proposal will not result in an intensification of hotel use before midnight; iv) after midnight the existing Monkey Bar is restricted to no more than 150 patrons including any patrons previously using the function room and restaurant; v) the applicant accepts condition 27, which repeats the existing limitation (ie 150 patrons maximum) after midnight notwithstanding that the hotel activities extend into shop 1. 23 Ms K Gordon, councils planning consultant, held the similar opinion that subject to conditions limiting patrons of the hotel prior to midnight to 180 patrons (plus 40 for the restaurant and 70 for the function centre) and 150 patrons in total after midnight, it is considered unlikely the expanded hotel will result in any discernible additional noise impact due to patrons leaving. 24 Both Mr Chambers and Ms Gordon, considered that the gaming room off Darling Street was acceptable, provided the shop front was obscure glass. They also considered that the proposal would not generate an increase in traffic and, although a concern of the residents, was not raised as an issue by council. Planning Principle 25 Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are:

· First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact.

· Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable?

26 In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact. A hotel could be approved without limits on patron numbers or hours of operation and, while its operation complies with this approval, may not achieve an acceptable impact. Moreover, the surrounding area may change and the attitudes of the community as to what is acceptable may also change. An extension or intensification of use may provide opportunities to reduce the impact of the existing operation through limiting numbers or hours of operation. The overall impact of the development may then be neutral or result in a lesser impact. 27 In this case, the evidence of the residents was that the existing operation of the hotel has an unacceptable impact. Neither the council report nor the initial statement of evidence of Mr Chambers commented on the impact of the current operation of the hotel. However, from the further evidence, particularly the report of Mr Mallard, I am satisfied that the existing operation of the hotel (except the manager's residence, where the parties disagreed) is in accordance with its approval and has an acceptable impact on residential amenity. While there are occasions where the amenity of the residents is disturbed this is not necessarily as a result of the Monkey Bar and is consistent with what can reasonably be expected in an area where different uses with different impacts, such as hotels and houses, coexist in close proximity. 28 In answering the second question, I am satisfied that while there will be an increase in the floor area, the use of the former gaming and pool room as a lounge area and the arrangement of the new gaming room will physically limit the increase in the number of people. In addition the condition that limits the number of people using the hotel after 12pm to 150 maintains the current arrangement despite an increase in floor area. The limit on the number of people using the hotel to 180 before 12pm provides a constraint that does not currently exist. 29 The operation of the restaurant and function room will remain the same. Live entertainment is limited to the main bar area and is not permitted in the new lounge area or gaming and pool room, which reflects the status quo and will therefore not result in an increase in impact. 30 While there is an inherent conflict between the activity and hours of operation of uses along Darling Street and the surrounding residential areas, these uses have historically coexisted. The use of Darling Street is to be encouraged while the amenity of residents is to be protected. This can only be achieved through careful management of activities, which are likely to impact on the adjoining residential area. A hotel use, particularly one that attracts large numbers of people and has late trading hours has the potential to disturb the area unless it is carefully managed. I am satisfied that the measures proposed in this application will not result in an increase in intensity of use or additional impact. On this basis, the application is approved.

The development application for internal alterations to the existing hotel (Monkey Bar) at 255 Darling Street, Balmain, and to use Shop 1, 251-253 Darling Street, Balmain, for hotel purposes, including a fit out and a new shop front, is determined by the grant of development consent subject to the conditions in Annexure "A": 3. The exhibits are returned, except Exhibits L, M, 3 and 9.

                                                      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.

CITATION : Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 APPLICANT Randall Pty Ltd PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11265 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Extend hotel to relocate gaming room Planning principle - extension or intensification of use which may impact on residential amenity LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Gaming Machines Act 2001 CASES CITED: DATES OF HEARING: 20/02/2004, 02/04/2004, 10/05/2004 and 28/05/2004 EX TEMPORE 05/31/2004 JUDGMENT DATE :

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