Land and Environment Court of New South Wales CITATION : Briggs Brindle & Chambers Consulting Pty Limited v Sydney City Council [2010] NSWLEC 1342 APPLICANT Briggs Brindle & Chambers Pty Limited PARTIES : trading as BBC Consulting Planners RESPONDENT Sydney City Council FILE NUMBER(S) : 10812 of 2010 CORAM: Morris C DEVELOPMENT CONSENT :- hotel KEY ISSUES: extended trading hours trial period LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 Ashbian Nominees Pty Ltd v Sydney City Council [2008] NSWLEC1436 Kotis & Ors v Sydney City Council [2008] NSWLEC 1521 CASES CITED: George Thomas Hotels v Council of the City of Sydney [2009] NSWLEC 1080 Australian Leisure and Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1161 Icon Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1186 TEXTS CITED: Building Code of Australia DATES OF HEARING: 1-2 December 2010 DATE OF JUDGMENT: 9 December 2010 APPLICANT MR P Clay, Barrister SOLICITOR JDK Legal LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, Barrister SOLICITOR Ms M Flick, Sydney City Council JUDGMENT: The Land and Environment Court of New South Wales Commissioner Morris 9 December 2010 10812 of 2010 Briggs Brindle & Chambers Consulting Pty Limited v Sydney City Council JUDGMENT 1 Commissioner: This is an appeal against conditions of consent imposed by Sydney City Council (the council) on a development consent, D/2009/2192 (the consent) which authorised alterations and additions to the Newtown Hotel including use of an adjoining building at 178 King Street as part of the hotel; reinstatement of original posted verandah and construction of an outdoor dining area to the rear of the hotel. 2 The application was originally lodged as an appeal against the deemed refusal of an application which sought to modify certain conditions of the consent pursuant to the provisions of s96(6) of the Environmental Planning and Assessment Act 1979 (the Act). The council has subsequently determined that application by partial approval however the applicant remains dissatisfied with all of those conditions that were the subject of the modification application. 3 The matters in the appeal relate to the trial periods imposed in relation to the internal and external areas of the hotel, limitations imposed on patron numbers within the hotel, requirements to provide security, to close windows and doors in the King Street elevation to the hotel and to limit the location of speakers/music/televisions within the hotel. The site and its context 4 The Newtown Hotel, Nos. 174-176 King Street, is located on the south-western corner of King and Watkin Street, Newtown and is opposite O'Connell Street. The consent authorised the expansion of the hotel into adjoining premises, No. 178 King Street. These two lots form the land to which the consent applies (the site). 5 Buckland Lane is to the rear of the site and forms the boundary between the business zone that runs along King Street and a residential area to the south-east. That residential area contains, along Watkin Street, predominantly two-storey terrace houses. A large residential flat building is located to the south of the site on the corner of the lane and Brown Street. 6 Development along King Street comprises primarily two storey development and some three storey buildings with a range of retail and commercial premises and restaurants at the street frontage with commercial and residential uses on the upper floors. 7 The building, of which the site forms part, is a three storey structure that was erected in 1886 and is listed as a heritage item in South Sydney Local Environmental Plan 1998 (the LEP)(such listing recording it as Nos. 174-184 King Street). The site is also within the King Street Heritage Conservation Area. 8 The hotel has been vacant for approximately four years and is in poor condition internally. The consent will facilitate the refurbishment of the building including the rebuilding of the first floor verandah, which, it is estimated, was removed some time around the early 1920s. 9 The approved hours of operation of the hotel, under a previous consent were 11.00am to midnight Monday to Saturday and 11am to 10pm on Sundays. A number of trial periods for extended hours were granted however not formalised on a permanent basis in any consent. 10 The consent restricts the hours of operation as follows: Indoor Base hours - 10am to 10pm Monday to Sunday with a 12 month trial period, from the date of issue of the Occupation Certificate, for the hours from 10pm to 12 midnight seven days a week from the date of issue of the Occupation Certificate (Condition 7). Outdoor Base hours -10am to 8pm Monday to Sunday with a 12 month trial period, from the date of issue of the Occupation Certificate, for the hours from 8pm to 10pm seven days a week (Condition 8). The planning controls 11 The site is within Zone No 3 Business Zone pursuant to the provisions of the LEP. 12 The objectives of Zone No 3 are: (a) to encourage suitable types of mixes of business activities including retail, commercial, professional and entertainment-related land uses that increase employment opportunities and contribute towards the economic and social vitality of the area, and (b) to permit appropriate forms of urban residential development within the zone to mutually support the vitality of the commercial strips and centres, and in doing so, assist successful urban consolidation, and (c) to improve the amenity and accessibility of commercial strips and centres for residents, workers and visitors in those areas, and (d) to incorporate contemporary urban design principles in the design of new buildings and the interpretation of their relationship with the public domain, and (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and (f) to encourage the integration of suitable employment and resident intensive activities into accessible locations so as to maximise public transport patronage and encourage travel by foot and bicycle from surrounding areas. 13 City of Sydney Late Night Trading Premises Development Control Plan 2007(the DCP) applies to the site and the conditions in contention reflect controls in that plan. The site is located within a 'local centre area' pursuant to the provisions of the DCP. That area runs along King Street from its intersection with Carillon Avenue to the north-east of the site to Erskineville Road to the south-west where the area changes to a 'late night management area' in the proximity of Newtown Railway Station. The hotel would be categorised as a Category A Premises – High Impact for the purpose of the DCP. 14 The main aim of the DCP "is to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties". 15 The objectives of this DCP are to: a identify appropriate locations and trading hours for late night trading premises; b ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses; c ensure that a commitment is made by operators of late night trading premises to good management through the implementation of robust plans of management; d encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City; e encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City; f encourage a diversity of night-time activity in defined Areas; g prevent the proliferation of poorly managed high impact late night premises; h ensure that new late night trading premises do not reduce the diversity of retail services in an area; i ensure that development applications are accompanied by sufficient information so that proposals for night trading premises can be fully and appropriately assessed; j provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods; k encourage premises with extended trading hours that are of a type that do not operate exclusively during late night hours and may be patronised both day and night; l ensure that appropriate hours are permitted for outdoor trading; and m ensure a consistent approach to the assessment of applications for premises seeking night trading hours. 16 The DCP applies to development applications for new and existing Category A premises that: a seek approval for trading hours between 10pm and 7am the following day; b currently trade between 10pm and 7am the following day, and seek refurbishment, additions or extensions that will result in an intensification of an existing use; c seek an extension or renewal of trial trading hours as prescribed in this DCP; or d seek approval for outdoor trading beyond 8pm. Clause 2.3 of the DCP includes a note that states: this DCP is not retrospective nor does it derogate from existing consents . 17 Clause 2.6 of the DCP lists the matters for consideration that are to be taken into account when determining appropriate trading hours for night trading premises. These include, but are not limited to: a the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises; b the specific nature of the premises, i.e. pub, nightclub, restaurant etc and the proposed hours of operation; c the existing hours of operation of surrounding business uses; d the size and patron capacity of the premises; e the impact of the premises on the mix, diversity and possible concentration, of late night uses in the locality; f the likely operation of the proposal during day time hours; g submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain; h the diversity of retail services within an area and the impact of a late night proposal on this diversity; i measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises; j the accessibility and frequency of public transport during late night trading hours; 18 Clause 2.7 of the DCP introduces trial periods and states: Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity. Any extended hours (i.e. beyond the "base" hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management. If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base hours. Council will consult with an applicant prior to making such a determination . 19 The base hours, which are the standard range of trading hours that a late night trading premises is entitled to if a development application is approved, for category A premises in a local centre area are 10am to 10pm for indoor areas and 10am to 8pm for outdoor areas. 20 Extended hours, which may be approved above base hours on a trial basis are, for the site, 10am to midnight for indoor trading areas and 10am to 10pm for outdoor areas. Clause 3.1 of the DCP states that the first trial period would be one year duration, the second trial for two years and the third and subsequent trial for five years and every five years after that period. The DCP includes a provision that requires reversion to the base trading hours if the council determines that the trial period has been unsatisfactory. The contentions 21 The modification application related to a number of conditions of the consent which deal with the following issues: a. hours of internal and external operation and the introduction of base hours and trials for extended hours beyond those base hours; b. internal and external patron capacity c. security; and d. noise. During the proceedings, the acoustic experts agreed on all issues associated with noise, as did the BCA experts in relation to capacity, so agreed conditions could be developed to ensure compliance with the relevant standards. The conditions regarding hours and security remain in dispute. The council, in its without prejudice conditions of consent tendered as Exhibit 8 in the proceedings, has added further requirements to one of the conditions which relate to the provision of security. 22 The applicant is seeking base hours for the indoor area from 10am to 12 midnight Monday to Saturday and 10am to 10pm Sundays with a 12 month trial period until midnight on Sunday. For the outdoor area, use of the verandah area between 10am and midnight Monday to Saturday and 10am to 10pm Sunday as base hours and a 12 month trial period to midnight on Sunday. The rear outdoor dining area, base hours sought are from 10am to 10pm Monday to Sunday with a 12 month trial period until midnight seven days a week (Conditions 7 and 8). 23 Conditions 9 and 10 of the consent limit capacity of various areas within the hotel. The applicant seeks to increase that capacity based on compliance with the Building Code of Australia in relation to travel paths and egress. 24 Condition 10 also prohibits music, televisions, speakers, gaming machines or other entertainment being provided in the outdoor area. The applicant seeks deletion of this condition. 25 Condition 11(d) requires the closure of all operable windows on all floors and the entry/exit doors on King Street at 8pm to prevent the escape of noise from the premises. Emergency exit doors would remain closed but be available for egress. The applicant is seeking allowance to keep those windows which front King Street open at all times the hotel is operating. 26 Condition 15(a)(iii) stipulates the rate at which security is to be provided on major event days. The applicant is seeking discretion to determine when and at what rate security is provided. 27 Conditions 19, 20 and 22 all relate to noise issues and are sought to be varied in some way, or in the case of condition 22, the applicant seeks its deletion. The evidence 28 The hearing commenced at the site where a view of the premises, in the company of the parties, their experts and residents was conducted. 29 Evidence was heard from Licensing Constable McKenzie of the Newtown Local Area Command. He was the co-signatory to a submission from the NSW Police Force lodged with the council in relation to the application. That submission objected to the application on the basis that the current licence only allows trading from 10am to midnight Monday to Saturday and 10am to 10pm Sunday. The other concerns were in relation to the increased capacity of the hotel, the possible amenity impacts on neighbours and the potential of or increase in the likelihood of alcohol related incidents such as assault. 30 Constable McKenzie spoke of noise issues associated with the prior use of the hotel and this proposal being for a significantly larger capacity hotel than that which is found in the vicinity of the site, those establishments catering for between 250-400 persons. He confirmed that the police are not raising objection to the hours proposed other than those on a Sunday between 10pm and midnight. 31 Evidence was then heard from a resident of O'Connell Street and his property viewed from the first floor windows of the site. That resident spoke of previous noise issues associated with the hotel use and a recent issue associated with tenants of No. 178 King Street utilising the awning and creating noise that was audible from his dwelling. The incidents required the police to be called. He also spoke of noise which he says, is from people leaving the nearby Marlborough Hotel travelling to late night food venues and causing noise that can be heard above the traffic. He is concerned the extended hours proposed by the hotel will cause further disruption to the amenity of the area. 32 Further evidence was heard from residents of Watkin Street including an inspection within one of the resident's dwelling where the layout of the dwelling, described as being typical of the terraces in the street was observed. The front, ground floor room is used as a living room and the front upper room as the main bedroom. The dwelling inspected included an enclosed verandah at first floor level however this feature is not common to the majority of dwellings in the street. The owners of this property advised that, despite having the windows of the verandah closed, the previous use of the site was audible in the dwelling and affected their ability to sleep. 33 The residents spoke of their concerns regarding noise from the hotel, particularly the outdoor dining and verandah area, the late night trading and the noise associated with people leaving the site. Others were also concerned of the likelihood of anti-social behaviour and the increased demand for the limited on-street parking available within the vicinity of the site. Most supported the council's proposal to close the outdoor areas at 8pm and one resident advocated the closure of the whole of the hotel at 10pm. 34 After hearing from the residents of Watkin Street and observing the locality the parties proceeded to Buckland Lane where further evidence was heard from a resident of the adjacent flat building, which also has frontage to Brown Street. Her concerns were the noise associated with the outdoor dining area and from people leaving the hotel. She spoke of noise associated with a nearby restaurant which utilises an outdoor area adjacent to the lane and how patrons of this area are audible within her unit. As a mother of a young child she considers the outdoor dining area should close at 8pm and doors of the hotel which open onto that area be closed so as not to impact on the amenity of the locality. 35 Expert evidence was heard from Mr Cooper for the applicant and Dr Tonin for the respondent (acoustics) and Mr Chambers for the applicant and Ms Bourke for the respondent (planning). 36 The acoustic experts agreed, subject to the works and controls detailed in paragraph 24 of Dr Tonin's Expert Report, Exhibit 2 in these proceedings, that the noise emanating from the hotel would comply with the relevant standards for licensed premises as adopted by the Office of Liquor Gaming and Racing (OLGR). They also agreed that the capacity of the outdoor area would need to be limited to 72 after 10pm if approval was granted to trade until midnight. A concession was made by the applicant during the proceedings to cease use of that portion of the verandah along Watkin Street by 10pm each night. This involves five tables which each seat two persons and was made on the basis of patrons not being visible to residents rather than providing any acoustic benefit. 37 Agreement was reached during the hearing as to the capacity of various areas within the remainder of the hotel and accordingly, condition 9 could be modified to reflect that agreement. 38 The acoustic experts agree that the appropriate noise standards can be met through appropriate conditions, again as detailed in Dr Tonin's report and also Mr Cooper's report which accompanied the original application to the council so as to allow inclusion of televisions, music, and speakers in the outdoor areas. They also say that there is no acoustic reason why the windows and doors to King Street would need to be closed at 8pm as their modelling shows that the appropriate noise standards would be met with the windows open. The windows along Watkin Street in the vicinity of the café are to close at 8pm in accordance with Mr Cooper's acoustic report submitted with the original development application and are to remain closed if entertainment is provided in the lounge, public bar or the café areas. 39 In regard to condition 19, the experts agree that the amendment sought should be allowed as they consider there is provision in conditions 28 of the consent for a noise complaint to be made to council, investigated by an independent consultant (paid for by the licensee) and any recommendations made by the acoustic consultant to be implemented by the licensee to ensure that the complaint does not re-occur. Accordingly, they are of the opinion that the condition provides sufficient protection for occupants of nearby commercial premises. The applicant has not challenged the requirements of condition 28. 40 Both experts agreed that whilst they consider the noise generated from the premises to be within acceptable levels that this will not mean that the noise from the site will be inaudible from nearby residential properties. They describe the noise as being a 'general babble' without conversations being discernable however also agree that there will be occasions when voices are audible at premises such as the residence in O'Connell Street. 41 Condition 15 of the consent is the only condition that was modified by the council when it determined the s96 application on 15 October 2010. The original condition was modified by way of the deletion of part of section (a) so that security was provided at a minimum ratio of 1 security staff per 100 patrons or part thereof. The original consent required that a minimum of 2 uniformed licensed security personnel be employed on Thursday, Friday and Saturday nights (and Sunday when Monday is a public holiday) after 8pm. That portion of the condition was deleted. 42 The council is now seeking to add additional sections to condition 15 that require the provision of a Plan of Management which makes provision for appropriate security during 'special events hosted by the hotel such as Anzac Day and other popular cultural and sporting events'. Such security is required at the rate of 1 per 100 patrons or part thereof. 43 The planning experts disagreed as to the need to specify the rate at which security is provided on special event days. The applicant agrees to provide security at the rate of 1 security staff to 100 patrons or part thereof when entertainment is being provided and after 8pm on Friday and Saturday nights (and Sunday when Monday is a public holiday) in accordance with draft condition 15 (a) (i) and (ii). 44 There was also disagreement as to what would constitute a special event. Ms Burke considered occasions such as Anzac Day, St Patrick's Day and New Years Eve were those events contemplated by the council in imposing the condition. Mr Clay, for the applicant, questioned Ms Burke whether she considered the provision of security at the rate of one security person for every 100 patrons would be required if the local P&C mother's group held a luncheon on Melbourne Cup Day. She advised that security may not be required for such an event however, could be required under other circumstances. Mr Chambers considered that there could be occasions when security at the rate suggested by the council was excessive but also, there could be events that would require provision of security at a higher rate. For that reason, he considered that it was more appropriate to leave the provision of security to the discretion of management. Both planners stated that there was no industry standard for the provision of security however the rate of 1 per 100 had become an accepted practice in the hotel industry. 45 In relation to the different hours for indoor and outdoor trading specified in the DCP, Mr Chambers considered that the need to reduce numbers in the outdoor area to 72 after 10pm if trading to midnight was allowed could be managed and he is aware that this has been possible in other licensed premises and requires development of a strategy which is adopted in the hotel's plan of management. Ms Burke spoke of her experience in working in licensed premises and the difficulties associated with asking people to move. She did however admit that the DCP was predicated on having outdoor dining areas close prior to internal trading areas and that it would have to be managed if the DCP provision of different hours for outdoor and indoor areas was applied. 46 The parties disagreed whether the alterations and additions to the hotel constituted an intensification of the use that would trigger the controls of the DCP, particularly clause 2.3. Ms Burke agreed that the note to that clause, which states that the DCP is not retrospective and does not derogate from existing consents, should be given its full meaning and effect. She considers however, that the expansion of the area available for outdoor dining at the rear, ground floor, the addition of the floor space at No. 178 King Street and the addition of the verandah areas constitute an intensification of the use and therefore the provisions of the DCP would apply. She did concede that it would be unreasonable to reduce the hours that apply to the indoor trading areas to less than that allowed under the previous consent. 47 Mr Chambers took the contrary view and stated that the limitations on capacity of the hotel will ensure there is no intensification and therefore, there should be no diminution of the hours of operation of the hotel. The reallocation of space within the building has, in his opinion, not lead to any intensification. 48 Ms Burke is of the opinion that the outdoor dining areas are new and as they did not form part of the original hotel, should be the subject of both the base hour limitations and extended hours only on the basis of a trial period in accordance with the DCP provisions. Whilst she accepts that the acoustic reports show that the standards are met up until midnight at all locations, her concern is that there will still be noise from the premises that will disturb residents in the vicinity of the hotel and that there will still be impacts even if the standards are met. She is also concerned as to whether the works and controls recommended by the acoustic consultants will actually achieve compliance with the standards and says that the trial period will ensure that the acoustic recommendations are capable of being implemented and managed. Without the trial, she says there is no recourse available to the council to reduce the hours. 49 Mr Clay asked whether condition 25 of the consent, which requires the submission of a compliance report within 60 days of the issue of an occupation certificate, and the carrying out of any remedial works within 30 days of that work being recommended by a consultant approved by the council, would address Ms Burke's concerns. Ms Burke maintains that irrespective of whether the works are undertaken and are shown to be compliant the external impacts of the hotel will remain. She considers there is a need for balance between the hotel and residents and that limiting the hours of use will assist in maintaining that balance. Mr Chambers says there is no noise-based reason why the outdoor dining areas cannot be used until midnight provided the acoustic impacts/works are met. 50 Ms Burke agreed that the requirement to close windows at 8pm could probably be extended and advised that the provision was not only in relation to noise but also the interaction between patrons and pedestrians that may occur. Mr Chambers considers the condition was imposed to address noise concerns only as there was nothing contained in either the officer's assessment of the original development application or the s96 application which suggests there is a potential interaction issue. He considers, as the acoustic consultant's say closure of the windows is not required to achieve acoustic compliance, that there is no reason the windows in any location should be closed. He is of the opinion having them open would contribute to the busy street appeal of King Street. I note that there is a requirement for the windows to the café to close at 8pm. Conclusions and findings 51 In considering the hours of operation of the site, I have had regard to the DCP, the proximity of the site to residential areas, the comments of the residents in relation to their concerns, particularly in relation to the outdoor areas and the impact of noise from patrons leaving the premises, the views of the police, the extent of alterations and additions proposed, the change in the nature of the use of the hotel and the hours that the hotel was approved to trade prior to this development application. I also had regard to whether there has been a consistent application of the trial periods and I am guided by the following cases which I consider are relevant to this application. Ashbian Nominees Pty Ltd v Sydney City Council [2008] NSWLEC1436, Kotis & Ors v Sydney City Council [2008] NSWLEC 1521, George Thomas Hotels v Council of the City of Sydney [2009] NSWLEC 1080, Australian Leisure and Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1161 and Icon Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1186 address, in part, the issues that must be determined in this application. These also demonstrate that the application of a trial period for extended hours is accepted practice and has been consistently applied by the council and this Court. 52 I consider that Section 2.1 of the DCP is an important consideration. This is the strategy of the plan and the aims are clear. It states "Late night trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods." Whilst I accept that a hotel has been trading on the site for over one hundred years, this application introduces new elements i.e. outdoor dining areas, that have not been part of the hotel in the past. Therefore, the provisions of section 2.3 part d apply to those areas. 53 I consider that the note to clause 2.3 should apply to the internal operations of the hotel as I do not consider the interior portion of the hotel has been intensified in any way. The nature of the use has changed from a hotel that contained primarily bar areas with a night club and restaurant to one that provides considerably more dining areas, function rooms and a café in addition to the bar and lounge areas. The capacity of the hotel will not increase, and, from the evidence provided, is likely to result in less patrons attending than under the previous arrangements. 54 Accordingly, as the evidence available demonstrates that the site can operate in accordance with all relevant noise criteria, the hours of the indoor areas should not change from that which currently applies. It is noted that whilst compliance with standards will be achieved, noise from the hotel will still be audible and there is always the issue associated with patrons leaving the premises. Those hours are 10am to 12 midnight Monday to Saturday and 10am to 10pm on Sunday and the consent allows, subject to a trial period, trading of the indoor areas until 12 midnight, seven days per week. Those hours are consistent with the DCP provisions however exceed that recommended by the police which suggest that the site should close at 10pm on Sunday. This requirement would not be derogation from the original consent but would change the hours approved in the current consent. Accordingly, I consider that it appropriate to allow a 12 month trial period for the hours between 10pm and midnight on Sundays in order that the operation of the hotel and particularly its management can be assessed during that trial period. The applicant accepts this reduction in hours. 55 With regard to the outdoor areas, there are two new areas that are introduced under the consent. These are the rear dining area that was previously an enclosed restaurant area and the verandah area, where seating for 54 persons and an unquantified number standing, is proposed. The acoustic experts agree that the noise from those areas will not exceed 5dB(A) above background noise level when these areas are in use and that this would comply with the noise criteria set by the OLGR. Whilst I accept that this is the appropriate standard in relation to noise, I also accept the views of the residents in relation to the use of these areas and, as the achievement of the acoustic goals is dependant on management of the areas, such as ensuring patrons are evenly distributed over the verandah area and limiting patrons within the outdoor dining area, such controls should be the subject of a trial period. 56 The applicant accepts a trial period for the hours between 10pm and midnight however those hours exceed those which the council has determined through its DCP, to be appropriate for premises in a local centre area. Those are base hours of 10am to 8pm and extended hours on a trial basis from 8pm to 10pm. I consider that those hours are appropriate in the circumstances of the case for the verandah area. The trial period will allow the operators of the site to demonstrate that it can operate without any adverse impacts to the amenity of the area and if that is the case, then there is opportunity under the DCP for further extensions of the trial period and, if the objectives of the DCP, including those which ensure that there are no adverse impacts on the amenity of the residential area further consideration to extended hours could be given. As the hotel has not commenced operating in the form approved under the consent, it is not possible to assess whether its operation can be conducted without impacting on the amenity of the adjacent residential area. As this is the main aim of the DCP, the trial period must apply. 57 In relation to the rear outdoor dining area, I consider that the controls on capacity within this area would be sufficient to ensure that the objectives of the DCP are met. I consider that the area is important as it provides an area for smoking that is not available anywhere on the site and accordingly, the public footpath would be the alternate area available, such use having adverse impacts on the Watkin Street residential area. the area is enclosed by high walls and has an operable roof which, according to the acoustic experts, may further mitigate noise impacts. 58 For those reasons, I consider that the use of the area until midnight, on a trial basis, is appropriate subject to the limitations on capacity that reflect the acoustic expert's requirements and those other requirements referred to in paragraph 36 of this judgment. The means of transitioning patrons from this area and the need to close the roof must be included in the Plan of Management for the site. The base hours of the council's DCP should remain because management practices must be engaged to ensure compliance with the acoustic standards and the success of those practices must be assessed. 59 All conditions relating to the trial periods should include those provisions, described by Mr Clay as a 'grace period' to reflect the requirements of Section 2.7 of the DCP, including clarification that the period includes the time in which any determination by this Court is made. 60 Condition 9 which controls occupancy is to be retained with the following rates applied as agreed between the parties: Ground floor (including outdoor dining area) 440 persons Level 1(including verandah) 200 persons Level 2 (excluding offices) 83 persons 61 Condition 10 can be modified to reflect the recommendations of the acoustic consultants, in particular, those matters listed in paragraph 24 of Dr Tonin's report and supplemented by those requirements of Mr Cooper's report. 62 As the windows to the King Street frontage are a new feature of the hotel, it is appropriate to introduce a trial period during which they can be opened. I agree that this is not only a noise issue and therefore, consider that it is appropriate to allow a trial period whereby they are required to be closed at 10pm as the base hours however, with a trial period to 12 midnight. The windows along Watkin Street to the café area are to close at 8pm in accordance with Mr Cooper's advice. 63 The provision of security is an important element of the management arrangements of the hotel and one that, for major events, should be left to the discretion of those responsible for the safe operation of the hotel. Accordingly, I consider that it is appropriate to leave that aspect to be addressed in the Plan of Management. I note that the requirements of parts i and ii of condition 15 were not contested by the applicant and should remain. 64 I agree with the acoustic experts that condition 19 should be modified to reflect that it applies only when the premises are in use and that the provision of condition 28 is sufficient to address any issues in relation to the commercial premises. The applicant accepts the implications of that condition. 65 The acoustic experts also agree that condition 20 should only relate to spruiking and I agree. 66 Implementation of those recommendations referred to in paragraph 59 of this judgment render the requirements of condition 22 superfluous provided there are no speakers installed on the verandah. Amendment of the condition to prohibit the installation of speakers to the verandah area is appropriate. Directions 67 The parties are to file agreed conditions that reflect the findings of this judgment by 17 December 2010. Those conditions shall be in the form of consolidated conditions of consent. Final orders upholding the appeal in part will then be issued in Chambers. _______________________ Sue Morris 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.