SJB Planning (NSW) Pty Limited v Waverley Council [2007] NSWLEC 515

Land and Environment Court of New South Wales

CITATION : SJB Planning (NSW) Pty Limited v Waverley Council [2007] NSWLEC 515

APPLICANT SJB Planning (NSW) Pty Limited PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11162 of 2006

CORAM: Tuor C

Development Application :- alterations and additions to a hotel KEY ISSUES: impact of outdoor terrace used for smoking on adjoining properties noise impacts visual impact of signage

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Smoke Free Environment Act 2000 Waverley and Woollahra Joint LEP 1991

DATES OF HEARING: 07/03/07 and 08/03/07

EX TEMPORE JUDGMENT DATE : 9 March 2007

APPLICANT Mr S. B. Austin, QC Instructed by Ms B. Dwyer, solicitor of Back, Schwartz, Vaughan LEGAL REPRESENTATIVES:

RESPONDENT Mr C. McEwen, SC Instructed by Mr M. Staunton, solicitor of Staunton and Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

9 March 2007

11162 of 2006 SJB Planning (NSW) Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (the council) of a development application (302/06) for alterations and additions to the Grand Hotel, 89 Ebley Street, Bondi Junction (the site). The site and its context 2 The site is on the southern side of Ebley Street, between Brisbane Street and Mackenzie Street. It is L-shaped with a primary frontage to Ebley Street to the north of 43.24 metres, and a secondary frontage to Brisbane Street of 35.58 metres with a total site area of 1,664 square metres. 3 The site is developed with a 3 storey hotel with a later single storey addition. The public areas of the hotel are located at ground and basement level and include the Cock and Bull Bar, Siobhans Bar, Cellar Bar and a gaming lounge. 4 Opposite the site to the north is a 17 storey mixed residential/commercial development known as Genoa, (80 Ebley Street and 33 Bronte Road). Other development to the north is predominately mixed use commercial development. To the east is an 8 storey residential/commercial building (75 Bronte Road). West of the site is a pair of single storey semi-detached cottages, on the corner of Ebley Street and Mackenzie Street. Mackenzie Street and to the south of the site, is predominately one and two storey residential terraces. Planning framework 5 The site is located within a Business Special (Low Intensity) 3(a4) zone under Waverley and Woollahra Joint Local Environmental Plan 1991 (LEP 1991). The use of the premises as a hotel is prohibited in the zoning, but the current operation enjoys existing use rights under ss 106 to 108 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The hotel is thought to have operated since 1886. 6 Land to the north is zoned Business Secondary 3(a2), which marks the edge of the Bondi Junction Commercial Centre. Land to the south is a Residential 2b zone. 7 The Smoke-Free Environment Act 2000 (the Act) and the Smoke-Free Environment Regulation (the Regulations) specify the requirements for a smoke-free environment and apply to the hotel. The Proposal 8 The development application was lodged on 8 June 2006. The application was notified to nearby properties and council received 6 submissions, including a letter with 23 signatures, objecting to the proposal. 9 The council's Development and Building Unit and Independent Hearing and Assessment Panel recommended approval of the application. Council twice deferred determination of the application for a site inspection and then for further information. Council refused the application on 23 January 2007. 10 The application is described in the Statement of Environmental Effects as being for: · alterations and additions, to create an open terrace area suitable for smoking patrons within the Ebley Street frontage of the Cock and Bull bar. · Internal alterations and fit-out work to the Cock and Bull bar, · building works associated with fire safety upgrade, including the installation of a sprinkler system, · installation of new signage, · amended place of public entertainment (POPE) licence. 11 The application also included a proposal to lengthen by 400 mm the bi-fold windows on the Ebley Street façade. These windows were approved under Development Application 7/2003 and are currently under construction. Council opposed this change and during the hearing the applicant withdrew this aspect of the proposal. The issues 12 The Statement of Issues contained seven issues, some of these were resolved through conditions and the amended Plan of Management. The remaining issues can be summarised as: 1. Whether the proposed outdoor terrace or smokers' room, has an acceptable impact on residential amenity, particularly in relation to noise. 2. Whether the proposed signage is acceptable. The evidence 13 The Court heard evidence on site from a number of residents and other interested persons. Their main concerns can be summarised as being that the current operation of the hotel adversely impacts on residential amenity through noise emanating from the hotel and unacceptable behaviour of patrons leaving the hotel. They considered the proposal will exacerbate these impacts, in particular the removal of the roof will increase noise impacts which are already considered to be unacceptable.