Adams v Warringah Council [2008] NSWLEC 1193

Land and Environment Court of New South Wales

CITATION : Adams v Warringah Council [2008] NSWLEC 1193

APPLICANT Brian William Adams PARTIES : Respondent Warringah Council

FILE NUMBER(S) : 11134 of 2007

CORAM: Tuor C

KEY ISSUES: Development Consent :- modify a development consent for an existing hotel, impact on residential amenity, patron numbers, noise, antisocial behaviour, trial period.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000

CASES CITED: Randall Pty Limited v Leichhardt Council [2004] NSWLEC 277 Vinson v Randwick Council [2005] NSWLEC 142

DATES OF HEARING: 12 and 13/03/2008, conditions filed 01/04/08

DATE OF JUDGMENT: 23 May 2008

APPLICANT Mr J. Robson, SC with Mr C. Ireland, barrister Instructed by Mr P. O'Sullivan LEGAL REPRESENTATIVES: of Sullivan Saddington

RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb Staunton Beattie Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

23 May 2008

11134 of 2007 Adams v Warringah Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (DA 212/2002) for an existing hotel at lots 21, 22 and 23 DP 218990, known as the Surf Rock Hotel 1060, 1062 and 1064 Pittwater Road, Collaroy (the site). The sites and surrounding area 2 The site is situated on the eastern side of Pittwater Road, approximately 20 metres to the north of its Intersection with Collaroy Street in the retail and business area of Collaroy Beach. The Surf Rock Hotel (1060 –1066 Pittwater Road) is part of a group of terraces built during 1901 – 1925 known as the 'Arlington Amusement Hall' (1056-1066 Pittwater Road), which includes other uses that are compatible with the hotel including restaurants and a club. 3 The four lots that comprise the Surf Rock Hotel have a combined area of 1034 sqm. The site (3 lots) has an area of 720sqm. 4 The site adjoins Collaroy Beach to the east and to the north a public parking area. To the south and the east the Collaroy Beach Club and another public parking area adjoin the site. Directly across Pittwater Road are a number of buildings containing shops and commercial premises, such as offices or mixed use buildings containing ground floor shops and offices with residential apartments above. Background 5 Council approved DA 1990/441 by notice of determination (91/81) dated 18 March 199 for the conversion of a restaurant into a hotel at lot 21 DP 218990 (1064 Pittwater Road). The approval limited patron numbers to 150 (1991 consent). 6 On 5 June 2003, council approved DA 212/2002 (2003 consent) subject to conditions. The conditions as originally granted which are relevant to this appeal are: 20. The hours of operation of the premises are to be restricted as follows: 7 am to 3 am Monday through to Saturday 7 am to midnight Sunday. All patrons are required to leave the premises by 3.15 am after Monday through to Saturday trading and by 12.15 am after Sunday trading. 21. Any live music or live entertainment including DJ's are to finish a minimum of half an hour before closing times referred to in Condition 20. 22. The maximum patronage of the hotel between the hours of 7.00 am and 11.00 am is to be limited to 150 persons exclusive of staff. Between 11.00 pm and closing time the maximum patronage shall be restricted to 250 persons exclusive to staff. 35. No new patrons are to be given entry to the premises from (1) hour before closing time on nights when live entertainment is scheduled, other than patrons of the premises seeking to re-enter the premises from earlier that night. 7 The consent was modified on 3 August 2005 (first modification) and was subject to a trail period of 12 months. Conditions 20, 22 and 35 were modified to read as follows: