Simmattown Pty Limited v Randwick City Council

Perry Properties Pty Ltd v Ashfield Council (No. 2) [2001] NSWLEC 62 CASES CITED: Kulin Holdings Pty Ltd v Penrith [1999] NSWLEC 157 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

APPLICANT Mr G. Green, solicitor Pike Pike & Fenwick Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10562 of 2008 Simmattown Pty Limited v Randwick City Council

JUDGMENT 1 Commissioner: This is a Class 1 Appeal No.10562 of 2008 between Simmattown Pty Limited and Randwick City Council in regard to the refusal of a s96 application DA 423/2005E to amend Development Consent No.423/2005 for alterations to the Sports Bar, Gaming Room and Bottle Shop that front Coogee Bay Rd. Other alterations are being carried out under DA 36/2004 to the Beach Bar that is on the corner of Arden St and Coogee Bay Rd.

2 The site is the Coogee Bay Hotel, a local landmark opposite the beach. The hotel is currently being renovated under the consents referred to above. This application is to convert existing fixed glazed windows of the Sports Bar to have bi-folding or concertina glass panels so the bar can be open to the footpath.

3 The hotel is a heritage item under the planning statutes, and the windows will have the same fanlight as the existing with the lower panel of the window to be concertinas. The sill of the window will be raised a little to enable the installation of a "dry bar" along the sill line. This is a bar counter that can accommodate stools so people can sit with their drinks at the open windows. Apparently it is a "dry bar" because there is no equipment for beer pulling or liquor sales, it is only for patrons to sit at. 4 The drawings show the windows in aluminium, but the applicant said during the hearing the windows will be in timber to match the existing. The Sports Bar includes a large wide screen TV on the back wall facing the street and some other smaller TV screens to show several sports simultaneously, or, for a major event, the same program on all TV's. The Sports Bar also has pool tables. The Gaming Room is in an adjacent area, but not visible from the street. The Bottle Shop has fixed glazed windows and a set of entry doors all in a matching design for the heritage item requirements of the building. Contentions 1. The proposed modification should be refused as it will have an unacceptable impact on the use by pedestrians of the footpath adjacent to the proposed new bi-fold windows. Particulars (a) It is likely that during daytime trading hours patrons of the hotel will be consuming alcohol in close proximity to the public footpath adjacent to the bi-fold windows which will: 1. encourage the congregation of patrons of the hotel on the footpath outside the hotel and adjacent to the windows, and 2. alienate the usage of the footpath from general public access, and 3. intimidate some sections of the community who utilise the footpath. 2. The proposed development should be refused in so far as it will result in an overdevelopment of the predominate use of the site, being the sale and consumption of alcohol. Particulars (a) The consumption of alcohol in close proximity to the public footpath and congregation of patrons of the hotel on the footpath adjacent to the proposed bi-fold windows (referred to in contention 1) is likely to expand the use of the hotel into the public domain which constitutes an overdevelopment of the site. 3. The proposed development should be refused insofar as it is inconsistent with the objectives for Zone No. 3A (General Business Zone) identified in the Randwick Local Environmental Plan 1998 ("RLEP 1998"). Particulars (a) Having regard to the likely adverse impact on the use by pedestrians of the public footpath adjacent to the proposed bi-fold windows and the overdevelopment of the site, the proposed development is inconsistent with the following objectives in clause 13 of RLEP 199$: 1. Objective 1(a) which is to maintain the viability of existing business centres'; 2. Objective 1(b) which is to facilitate development of land, in places identified by the Council as suitable to be used as business centres, for commercial, retail, residential and community purposes: (iii) by enhancing employment opportunities and servicing the needs of the local and regional community, and (v) by providing and enhancing pedestrian and public open space areas for shoppers and workers, and (vi) by maintaining and improving the environmental and aesthetic qualities of the City of Randwick. 3. Objective 1(c) which is ` to minimise the impact of development on adjoining and nearby residential zones': 4. The proposed development should be refused insofar as it is not in the public interest having regard to the abovementioned issues. The evidence 5 The evidence is that another consent for the Beach Bar has approved similar windows to the Sports Bar on both Arden St and Coogee Bay Rd. On the latter frontage they extend down to near the floor level with concertina style panels.

6 Sergeant B Gray with 10 years experience in the liquor licensing division gave oral evidence. He said he had no formal notice of the proposal and had been informed by residents. He is concerned about the proposal as he anticipates a similar situation to the Maroubra Bay Hotel. It has had similar windows installed in a bar adjacent the public footpath. Neither the hotel security, nor the police have been able to prevent under age persons receiving alcohol from persons in the bar who surreptitiously hand it over the "dry bar" or counter when no one is looking.

7 Also under age groups of youth collect outside on the footpath, and gangs have been attracted that cause a nuisance. One aspect frequently complained about is coarse language heard on the footpath from persons in the bar, another is offensive noise coming from the bar. Also there is a constant security problem of persons standing outside on the footpath and leaning on the "dry bar" to drink at the window. The concertina windows at Maroubra are closed at 6pm, so these undesirable activities happen during the day. 8 Ms R Wade also gave evidence. She lives in Beach St at the south end of Coogee. She is the secretary of the Coogee Precinct Committee that receives monthly information from council about new Development Applications and other community affairs and gives feedback as necessary. Ms Wade appeared on behalf of the committee and herself as a local resident.

9 The route to the shopping centre from her home is past the hotel. Not owning a car, she walks and relies on the shopping centre for post office, banking, ATM, doctors, shopping, recreation and restaurants. She passes the hotel at least 4 times per week.

10 Even now she is often brought to a halt by smokers on the footpath ignoring pedestrians and looking through the window at the big TV screen and yelling at the football or other sports events. At least it is only smokers at the moment and the numbers are kept down by their having to go back inside to drink after a smoke. With the windows open, more people may stand on the footpath perhaps in groups, and some will try to drink out there too. 11 The subject windows are about 15m long in total so that stretch of footpath will become an obstacle course for a pedestrian. Ms Wade said this raises problems of pedestrian safety, security, amenity, and increased exposure to smoke because smokers will be able to stay on the footpath and not go back inside.

12 All year, but especially in summer the footpath is heavily trafficked by families, unaccompanied local children and teenagers, and persons going to and from the beach via the traffic lights and crossing on the Arden and Coogee Bay Rd corner. The cafes past the hotel on Coogee Bay Rd are popular with beachgoers and sightseers for ice creams and snacks or lunches, so there is no option but to pass the hotel if you are on the south side of the street. 13 During this Hearing Ms Wade saw a blind person trying to find the way through the 10 or 15 persons involved in this appeal who were standing across the footpath. The difficulty that person had will occur all the time if the windows are open.

14 Even now Ms Wade said she hears some rude language through the open doors as she passes. That offensive language will all be heard in full by passers by if the windows are open. Parents will be concerned for the effect on impressionable kids, and others may choose to avoid the south side of the street. That could divert customers from the retail shops and services that she and other local residents depend on.

15 There was a period not long ago that service shops declined in favour of cafes and local residents had reduced availability of goods and services. There has been some recovery of late and Ms Wade and the precinct committee do not want shops to decline again.

16 Another point on the safety of pedestrians, she said is a recent brawl that had occurred in the hotel just before she passed by. The police were there interviewing persons on the footpath, and there were angry groups of persons standing on the footpath. It seems brawls, or people trying to escape them, try to get out of the hotel and the security people put them out onto the footpath anyway. At least the brawl was inside, but with the concertina windows open, there will be people thrown out of, or scrambling through the windows straight amongst innocent pedestrians. 17 Ms Wade was asked if she was involved in current objections to late night trading of this hotel, the Rugby Club and the Palace Hotel at Coogee beach. She said yes and the objectors wanted 1 am closing to avoid the brawls that seem to start between 2-3am.

18 Mrs Wade was asked if she knew council had approved concertina windows to the Beach Bar. She was not aware as it only came out in this Hearing that they were approved in 2004 and had never been built. The Beach Bar still has fixed windows.

19 Ms M McMahon another local resident had lived in Coogee for 25 years and gave evidence. She said her main use of the shopping centre is for the post office, the banks and the buses at the terminus on Arden St. From her home to get to/from the buses she walks past the hotel at least twice a day. 20 Ms McMahon had read the Ranwick LEP for the Business 3(a) zone of the hotel and it said business premises are to minimise impacts on nearby residential zones. Coogee shops, commercial and retail premises are a local shopping centre for a very large residential area. Many shops have residential flats above. So there are people living in the shopping centre too. There is enough adverse impacts on their amenity now from the Coogee Bay Hotel, and the concertina windows will only make it worse.

21 At least the fixed existing glass windows form a barrier that gives some protection to the public using the street footpath. Remove the glass and pedestrians are exposed to whatever is going on in or coming out of the pub.

22 15 March 2008 Ms McMahon had relatives staying and they went to the beach with their children late in the afternoon. Passing the hotel they and their kids found themselves unintentionally involved in a big brawl that spilled out of the pub onto the footpath. They are not wowsers, but they found the brawl a potentially dangerous and scary situation especially for their kids. Part of the danger arose because the footpath is not wide, and there is nowhere to escape except onto the road amongst the busy traffic. 23 This hotel has a huge beer garden, why does it need to annex and alienate the public footpath with these concertina windows and doors? The footpath should be kept for the many tourists, residents, shoppers and beachgoers for it is their only path past the hotel to/from the beach on the south side of Coogee bay Road and from homes in south Coogee.

24 Ms A Starkiewicz has lived at the south end of Coogee for 20 years. She has seen the Coogee Bay Hotel increase or improve its facilities and have later trading hours bit by bit, and each time it has been at a cost to the amenity of the public and a reduction of enjoyment of the area near the hotel for those who pass it.

25 In her opinion the concertina windows will just add the public footpath to the area of the Sports Bar. Surely the multiple bars in the hotel and the huge beer garden are enough trading area.

26 Ms Starkiewicz does not have a car, and mostly works from home. She walks to the shops daily past the hotel, but avoids passing the hotel at night. Even by day, however she had nuisance from persons at the hotel, apparently alcohol affected, who say things they would not say normally. With the concertina windows open there will be much more opportunity for offensive remarks to be made by persons in the Sports Bar. In her opinion it is just not acceptable to increase these impacts on innocent passersby. 27 Ms Starkiewicz, said that it is common to see prams, strollers and wheel chairs and people carrying surfboards of various kinds and beach umbrellas etc, amongst the members of the public using the footpath outside the hotel. The promenade at Coogee is flat and level and suits people using wheeled equipment. Extra people on the standard width footpath because of the hotel opening the concertina windows will just add to existing congestion.

28 The vehicle traffic near the hotel can be a risk to pedestrians, she said, because it is often busy, drivers either turning the corner or accelerating through the intersection and most are looking for parking spots. Hotel patrons standing on the footpath possibly in groups, possibly noisy or boisterous will prompt ordinary pedestrians to step onto the roadway or cross the street into the path of the vehicles.

29 Ms D Buchanan has lived to the south of Coogee for 70 years. She uses the shopping centre daily for doctors, post office, banks and goods and services. Her normal route is down the beach promenade to the pedestrian crossing and along the sunny south side of Coogee Bay Rd past the hotel. 30 She had been away and did not know about this application until recently. In walking past the hotel earlier this year she was taken aback by a man with a beer in his hand coming to one of the doors just as she was passing and he yelled friendly abuse at another man on the footpath and invited him to come in for a drink. Ms Buchanan said after the initial shock she quickly realised the words were not for her, but it shows the sort of incident that makes it uncomfortable for someone who just happens to be walking by.

31 It is her understanding that council parking rangers are not allowed to operate near the hotel at night due to safety concerns.

32 Ms Buchanan is a grandmother and often brings her grandchildren down to the shops for icecreams. The concertina windows will create opportunities for them to be exposed to more undesireable incidents, or just undesireable views of people drinking and smoking in the bar. If management thinks it can control behaviour by having guards stationed at the windows when open, she would find seeing guards intimidating but not as bad as the undesireable behaviour of hotel patrons that would inevitably occur. 33 Another thing, Mrs Buchanan has noticed in her walks, is the Palace Hotel that has concertina windows open to the promenade. Dog owners appear to favour a bar open to the street because they can tie their dogs up outside and keep an eye on them by drinking near the concertina windows. The promenade at the Palace is much wider and less busy than the standard width footpath at the Coogee Bay Hotel. If dog owners start to tie their dogs up outside the Sports Bar it will further congest the busy footpath on Coogee Bay Rd, and potentially add another hazard for pedestrians and parents with young children.

34 Mrs Buchanan said that she will continue to go to the shopping centre because that is where her doctor, the post office and banks are located and the best access to them is past the hotel. Any approval of this application will impact on her convenience and amenity of using the public footpath.

35 Mrs D. McDonald had lived in the area for 44 years and regularly walks to Coogee Bay Rd and the beach promenade past the hotel, sometimes with friends, relatives, or with grandchildren. Just in recent memory, she could recall two events that caused some alarm and could have caused hazard to her. On one of the occasions as she was walking past a hotel door a man came out the door yelling abuse, another man followed and then a woman and the argument continued on the footpath. On the other occasion as she was passing a door of the hotel a big man came out the door using foul language, a chair was thrown out the door after him, and the police arrived and hustled him into a paddy wagon.

36 Mrs McDonald said if the hotel needs more space for people outside, let them use the huge beer garden. If these impacts on the safety and amenity of the public footpath get any worse she would be forced to divert around the hotel at considerable inconvenience.

37 Mr R McDonald had also lived here 44 years and seen, he said, the gradual increase of impacts on public amenity by the hotel increasing their sales of alcohol and opening hours.

38 He observed that intoxicated people lose their inhibitions and become aggressive and sometimes offensive and sometimes belligerent. Opening the concertina windows will only expose the public to that. He said young ladies will be wolf-whistled or be the subject of unwanted and unacceptable remarks.

39 He said he does not object to moderate consumption of alcohol, but the hotel bar and patrons in plain public view and drinking and enthusing about sports events on the TV will just encourage young kids and teenagers to see heavy use of alcohol as OK. Young impressionable people go past the hotel in large numbers every day, many without adult supervision just going to and from the beach. Exposing them to the Sports Bar would just cause social impacts that are undesireable.

40 Mr Sanders the consultant town planner for the applicant said these assumptions by the objectors would be minimised and the impacts made acceptable by the security management plan and by the acoustic expert Mr Tonin's requirement that the concertina windows be closed at 8pm, or whenever there are more than 75 persons in the Sports Bar.

41 The applicant had perused the Maroubra Beach Hotel licence and found it could open its windows until 10pm each day with no restriction on numbers.

42 Mr Sanders said the council has approved 5 other windows in the Beach Bar of this hotel to be concertina type with no requirement to close them at 8pm, so until now, the council did not appear to have a concern.

43 It was put that the events of the past should not be repeated as the current hotel renovations are to re-orient the hotel to be more "community focussed" with the emphasis on food of various types being served in the different bars to cater for different groups such as families, singles, couples, and older and younger adults who have different preferences to each other.

44 Also it was put that the applicant is prepared to have a 12 month trial period, and only open one half of the concertina in each window during the trial.

45 In regard to encouraging business in the shopping centre, Mr Sanders said it is the largest site in the shopping centre so the employment it creates and the patrons it attracts must benefit the other traders.

46 He thought the tough management plan would protect the public amenity of the footpath sufficiently. It was put that the hotel's official "Complaints Register" only had 3 pages of entries since 2006, so it must not cause too much concern to nearby businesses and residents.

47 The respondent said the Complaints Register is a different document to the "Incidents Book". The latter is the record of incidents where the police have been notified. Mrs McMahon had tendered newspaper clips on the incidents at the hotel. The applicant said one of the clips gave the wrong impression about a bashing at Brook St. The hotel had only supplied security video to help the police in their investigations of that matter which is unrelated to the hotel. The video simply showed the victim had walked by the hotel prior to the assault two blocks or so from the hotel.

48 In regard to the hotel being ranked number 2 for violence amongst hotels by the NSW Bureau of Crime Statistics the applicant said the hotel's representative's comments need to be read. In it the points are made that the hotel is an industry leader in applying the rules on responsible service of alcohol. And with more than 480,000 patrons per year it represents only a 0.0085% incident rate.

49 In cross examination Mr Sanders was asked if he accepted the evidence of the local residents of the events they reported and that simlar adverse impacts would occur in the future. He said he did not question their experiences but he did not think those sorts of events would occur any more often with the concertina windows installed.

50 He said the statements that the concertina windows might force them to divert around the hotel at some inconvenience to existing amenity is an apprehension on their parts.

51 Mr Sanders report said that the concerns about congestion on the footpath outside the sports Bar should be no more than caused by the tables and chairs outside cafes further west on the street, and pedestrians stopping to chat with people eating at the tables. 52 Hotel patrons would not be able to drink alcohol on the footpath, he said. Also he felt that the council's policy of allowing footpath dining and trading development control plan had accepted that in appropriate places the public footpath could have private use.

53 Mr Sanders could see nothing in conflict with the objectives of the Zone 3(a) Business objectives in the Randwick Local Environmental Plan 1998.

54 He was asked if he had observed the existing hotel patrons behaviour. He said only during daytime and currently the windows are fixed glass. He agreed the concertina windows of the Sports Bar are not critical to the viability of the hotel, they would assist its viability. He based his opinions on 25 years experience in planning matters related to licensed premises.

55 Mr Cleary is the hotel manager appointed for the last 6 months. He agreed that since the commencement of the refurbishment of the hotel there have been more people smoking on the public footpath outside the hotel because the outdoor spaces within the premises have been restricted.

56 He is at the hotel Monday to Thursday 7am-8pm and 7am-3am the next day on Friday and Saturday. He patrols the hotel at least once every 2 hours, other wise he is in the office or with the head of security. He had not noticed people outside the Sports Bar watching the TV through the window. He thought most people who want to smoke or be outside used the Arden St beer garden that has a large TV screen also. The same programs are run on the Sports Bar and the beer garden TV's.

57 He said the Sports Bar is busiest on Friday and Saturday nights or when there is a Rugby Union event on. The capacity of the bar is 320 persons. So with the concertina windows having to be closed at 8pm, or when there are more than 75 persons in the bar, he estimated the windows would be shut usually by 6pm on a Friday or Saturday night.

58 In coming to a conclusion on this matter, it seems to me the local residents have given unrefuted evidence of actual anti-social or uncomfortable (for the passing public) events that are relatively common outside the Coogee Bay Hotel. The licensing sergeant has the practical experience of other premises where he has found security management cannot stop liquor being passed to minors through windows that are directly accessible from the public footpath. Also he has seen persons and groups attracted to stand on the footpath outside concertina windows. 59 The applicant and its experts have only put to me that it will not get any worse, given the Management Plan.

60 The respondent put that the real experiences and reasonable concerns of the objectors should be taken into account, Perry Properties Pty Ltd v Ashfield Council (No. 2) [2001] NSWLEC 62, Kulin Holdings Pty Ltd v Penrith [1999] NSWLEC 157 and Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133.

61 The hotel, even if it is only due to its popularity and 480,000 patrons per year, will have more events or incidents than most other hotels in NSW.

62 The objectors said that they were not aware until recently of the council's previous approval of concertina doors and windows to the Beach Bar. This is probably due to the consent being given in 2004 and never having been built. Those concertina doors and windows have no restriction on opening hours or numbers in the Beach Bar. The applicant seeks to use this previous approval as a justification for this amendment application to another consent. 63 Those windows and doors are right on the corner of Arden St and Coogee Bay Rd where the pedestrian traffic is probably the busiest given the traffic lights and pedestrian crossings to the beach promenade and the north side of Coogee Bay Rd and along Arden Street. They will be the best test of whether the Management Plan and the re-orientation of the hotel to be more "community focussed" will work.

64 I have reached the conclusion that the real experiences and reasonable concerns of the local residents and the licensing police should not be ignored, particularly when the original consent that this appeal seeks to modify did not have concertina windows to the Sports Bar.

65 Mr Sanders has only had limited observation of the existing patron behaviour of the hotel while the objectors see it daily. If the objectors concerns are realised when the Beach Bar concertinas are installed and in use, then this proposal should not occur. 66 It seems to me a further matter is the ability to both see and hear the sports events on the public footpath outside the Sports Bar will attract the attention of the passer-by, and create the opportunity to stop singly or in groups to watch on a more frequent basis than persons seeing acquaintances either in the Beach Bar or at café tables on the footpath further up the street.

67 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A and 2.

      K G Hoffman
      Commissioner of the Court
      ljr

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