Land and Environment Court New South Wales Medium Neutral Citation: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53 Hearing dates: 13 and 15 March 2012 Decision date: 26 March 2012 Jurisdiction: Class 1 Before: Preston CJ Decision: Orders as set out at [98] Catchwords: APPEAL - appeal against Council decision to refuse application to modify development consent to change outdoor eating area on two public roads - power of Court on appeal to exercise Council's functions to approve outdoor eating area under Roads Act 1993 - modification of development consent should be approved - different public roads raise different issues - approval under Roads Act of outdoor eating area on one but not the other public road Legislation Cited: Environmental Planning and Assessment Act 1979 ss 80, 96, 96AA, 97AA Land and Environment Court Act 1979 s 39(2) Roads Act 1993 s 125 Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226; (2009) 172 LGERA 1 Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316 Category: Principal judgment Parties: Australian Leisure and Hospitality Group Pty Ltd (Applicant) Manly Council (Respondent) Representation: Mr J E Robson SC (Applicant) Mr A M Pickles (Barrister) (Respondent) Norton Rose (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11219 of 2011 Judgment A hotel's attempts to use footways of public roads for a restaurant 1The Australian Leisure and Hospitality Group Pty Ltd ("ALH") owns and operates the New Brighton Hotel at 71 The Corso, Manly. ALH has been endeavouring to expand and intensify the use of the hotel in various ways over many years. Manly Council ("the Council") has opposed ALH's proposals. ALH has needed to apply to this Court to obtain the statutory approvals needed to implement its proposals. 2One of ALH's proposals has been to use part of the footways of the public roads of The Corso and Sydney Road adjacent to the facades of the hotel as an outdoor eating area for the hotel's restaurant. Both The Corso and Sydney Road are pedestrian malls in the vicinity of the hotel. 3Use of the footways as outdoor eating areas was approved as part of the development consent granted by this Court in 2005: see Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316. The 2005 development consent approved 26 tables and 104 chairs on the footways of The Corso and Sydney Road adjacent to the hotel. 4However, because the approved outdoor eating area would be on public roads, approval was also required under s 125 of the Roads Act 1993 ("Roads Act"). ALH did not seek an approval under s 125 of the Roads Act at the time it sought development consent in 2005. 5Instead, after obtaining development consent from the Court in 2005, ALH applied to the Council, on a number of occasions, for approval under s 125 of the Roads Act to use those parts of the footways on The Corso and Sydney Road for the purpose of a restaurant, in accordance with the 2005 development consent. The Council, as the relevant roads authority, refused each application under s 125 of the Roads Act. ALH was unable to appeal these refusals because there is no statutory right of appeal against a refusal of an application under s 125 of the Roads Act. 6To overcome this problem, ALH sought to find a means of appealing to the Court, and then seeking for the Court to invoke its powers under s 39(2) of the Land and Environment Court Act 1979 ("Court Act") to exercise the Council's functions to grant the needed approval under s 125(1) of the Roads Act. Section 39(2) provides: "In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." 7This provision is clearly facultative - it facilitates the Court hearing and disposing of the appeal before it. But the facilitation is subject to limitations. 8One limitation is that the power applies only where the proceedings in the Court involve an appeal against a decision of a person or body. This limitation posed a problem in the second proceedings brought by ALH after obtaining development consent. ALH had sought for the Court to exercise the power under s 39(2) of the Court Act in proceedings it had commenced under s 96(8) of the Environmental Planning and Assessment Act 1979 ("EPA Act"). ALH's proceedings under s 96(8) of the EPA Act involved a direct application to the Court to modify the 2005 development consent by adding a new condition declaring that approval is granted under s 125 of the Roads Act to use the footways adjacent to the hotel for restaurant purposes for seven years. No modification of the development, the subject of the development consent, was sought. 9After much preceding litigation, I determined that the Court, in hearing and disposing of ALH's proceedings involving a direct application to the Court under s 96(8) of the EPA Act to modify the development consent granted by the Court in 2005, instead of an appeal against a decision of the Council to refuse an application under s 96AA of the EPA Act to modify that development consent, did not have and could not exercise the function of the Council under s 125 of the Roads Act and I therefore dismissed the proceedings: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226; (2009) 172 LGERA 1. 10ALH then changed tactics. It made an application to the Council under s 96AA(1) of the EPA Act to modify conditions 1 and 50 of the 2005 development consent so as to substitute a new plan for the outdoor eating area providing an additional three tables and 12 chairs along the Sydney Road footway, thereby increasing the total numbers to 29 tables and 116 chairs in the outdoor eating area. After waiting for the statutory period for the application to be deemed to be refused, ALH appealed under s 97AA of the EPA Act to the Court against the Council's deemed refusal of ALH's s 96AA application. 11On the hearing of the appeal, ALH applied for and was granted leave to amend its s 96AA application to delete one table and four chairs at the eastern corner of Sydney Road and The Corso, and to translocate two groups of five tables and 20 chairs, one group on each of Sydney Road and The Corso, further away from that corner, so as to reduce interference with pedestrian flow at the intersection of Sydney Road and The Corso and improve visibility to the hotel from those roads. The Council did not oppose these amendments. The amended proposal, therefore, is for 28 tables and 112 chairs spread along the two footways of Sydney Road and The Corso adjacent to and immediately in front of the hotel. 12On this appeal against the Council's deemed refusal of ALH's s 96AA modification application, ALH seeks for the Court not only to approve ALH's amended s 96AA application to modify the development consent to, in effect, change the number and location of chairs on Sydney Road and The Corso, but also, pursuant to s 39(2) of the Court Act, to exercise the Council's function under s 125 of the Roads Act to approve the use of all of the tables and chairs comprising the outdoor eating area on the footways of Sydney Road and The Corso. 13This raises the question of a second limitation of s 39(2) of the Court Act. The power under s 39(2) to exercise the functions and discretions of the Council whose decision under s 96AA of the EPA Act is the subject of the appeal under s 97AA of the EPA Act is available only "for the purposes of hearing and disposing of an appeal". The width or narrowness of the functions and discretions of the Council, which can be exercised by the Court for the purposes of hearing and disposing of the appeal, will therefore be governed by the nature and subject matter of the appeal. 14The nature of the current appeal is an appeal under s 97AA of the EPA Act against the decision of the Council under s 96AA of the EPA Act to refuse an application to modify a development consent, not an appeal under s 97 of the EPA Act against a decision under s 80 of the EPA Act to refuse a development application, and is therefore more confined. A modification of a consent is not the granting of a consent. The subject matter of the current appeal is confined to an application to modify two conditions of the development consent to substitute reference to an amended plan which changes the number and location of tables and chairs in the outdoor eating area approved by the development consent. 15The consequence is that the Court has under s 39(2) of the Court Act the functions and discretions of the Council, which include those under s 125 of the Roads Act to approve the use of a footway of a public road for restaurant purposes, for the purposes of hearing and disposing of the current appeal against the Council's decision to refuse ALH's application to modify the development consent to change the number and location of the tables and chairs in the outdoor eating area of Sydney Road and The Corso. 16Unlike in the earlier proceedings involving application directly to the Court under s 96(8) of the EPA Act, the Council has not raised any contention contesting the Court's power in this appeal under s 97AA of the EPA Act against the Council's deemed refusal of ALH's application under s 96AA of the EPA Act to exercise the Council's functions to grant approval under s 125 of the Roads Act to use both the footways on Sydney Road and The Corso for the purposes of the restaurant conducted in the hotel. I will proceed on the basis that the Court has the power. The application concerns one coherent outdoor eating area for one restaurant in the hotel and, as a result of the amendments at the hearing, modifications are sought to the number and locations of tables and chairs on both Sydney Road and The Corso. The issues on this appeal 17Notwithstanding that the Council still has not determined the s 96AA application by refusing it, the Council has defended the appeal, contending that the Court should refuse both the s 96AA application for the change in the number of tables and chairs in the outdoor eating area on Sydney Road as well as the application under s 125 of the Roads Act to use both the Sydney Road and The Corso footways for the purposes of a restaurant. The contentions raised by the Council in its Statement of Facts and Contentions, with one exception, fail to differentiate between the different applications under s 96AA of the EPA Act and s 125 of the Roads Act, notwithstanding the two applications' factual differences (including the number and location of the tables and chairs the subject of each application) and the legal differences (including the objects and relevant matters under each statute to be considered in determining each application). Conflation of the different applications led to error last time, as explained in my 2009 judgment. 18The Council's contentions are grouped in six categories although the particulars reveal overlapping concerns: (1)Planning considerations: The Council contends that the proposal is contrary to planning controls in the Manly Local Environmental Plan 1988, Manly Development Control Plan for the Business Zone 1989 (Amendment 7), Manly Town Centre Urban Design Guidelines 2002 and Manly Development Control Plan for The Corso 2005 (Amendment 1) ("The Corso DCP"). These controls seek to preserve vistas along the public roads towards the ocean and the free-flow of pedestrians along the footways underneath awnings, which provide shelter from sun and rain, and reduce clutter to the edge of the public roads. For The Corso, the controls designate an outdoor eating area along the centre-line, in a location at the intersection of Sydney Road and The Corso, near the hotel. The Council contends that the hotel's outdoor eating area on the footways of The Corso and Sydney Road would be inconsistent with these planning controls. (2)Restrictions of pedestrian movements/conflict with crowds: The Council contends the provision of the hotel's outdoor eating area on the footways of The Corso and Sydney Road would unreasonably restrict pedestrian movement along The Corso, which carries heavy volumes of pedestrian traffic particularly on weekends and during public events, and Sydney Road, which is used for weekend open-air markets. (3)Weekend markets and restriction on pedestrian access: The Council contends that the hotel's outdoor eating area on the footway of Sydney Road would reduce pedestrian access and space for the Manly markets held on weekends in Sydney Road. (4)Emergency access: The Council contends the hotel's outdoor eating area has the potential to restrict emergency vehicular access to The Corso and Sydney Road. (5)Duration of licence: The Council contends that any approval under s 125 of the Roads Act should be for no more than two years, with a trial period of six months, in accordance with its policy R70 on outdoor eating areas and road reserves. (6)Environmental impacts: The Council contends that the hotel's outdoor eating area will generate noise, reduce the amenity of the area, increase rubbish and food waste, and cause alcohol related crimes. 19I will deal with these contentions for each of the applications under s 96AA of the EPA Act and s 125 of the Roads Act. Section 96AA EPA Act application 20The modification proposed is to delete the eastern most table and four chairs on the corner of Sydney Road and The Corso, translocate the tables and chairs away from that corner, and extend the outdoor eating area westward along the footway of Sydney Road by placing three tables and 12 chairs there. The deletion of the table and four chairs on the corner, and the translocation of tables and chairs from the corner, were not opposed by the Council. These modifications will improve pedestrian flow at the intersection of Sydney Road and The Corso. The addition of the three tables and 12 chairs at the westward end of the outdoor eating area on Sydney Road, was, however, opposed by the Council. 21The Council called evidence from Ms Nancy Sample, a town planner employed by the Council. Ms Sample had drafted the contentions in the Council's Statement of Facts and Contentions and provided a written report explaining those contentions. Ms Sample also provided a joint expert report with ALH's architect and planner, Mr Michael Neustein. Ms Sample also gave oral evidence at the hearing. 22In relation to contention 1, Ms Sample said in her report that the additional tables and chairs would partially obscure views to the ocean along Sydney Road. Mr Neustein disagreed, saying in his report that, in fact, the location of the additional chairs and tables would not obscure views to the ocean. When looking east from the proposed tables and chairs, due to the orientation of Sydney Road, views of the beach are impeded by a commercial business building on the southeastern side of The Corso. The view directly in line over the proposed seats is to the outdoor seating area along the centre-line of The Corso. Furthermore, the lower height of the tables and chairs and seated patrons will not obscure the views of higher pedestrians walking along Sydney Road. 23I accept the evidence of Mr Neustein, which was corroborated by the Court view undertaken on the first day of the hearing. The changes to the number and location of tables and chairs in the outdoor eating area will not adversely affect views or vistas along Sydney Road. 24Ms Sample also said, in relation to contention 1, that the proposed additional seating would impede use of the beneath-awning area used by pedestrians during times of high sun or inclement weather. This is incorrect as the additional three tables and 12 chairs are to be located on a part of the footway of Sydney Road where there is no hotel awning. Hence, the additional tables and chairs will not remove any beneath-awning amenity. 25Although Ms Sample asserted that the proposed modification was not consistent with the planning controls for Sydney Road, this is not borne out by an examination of the applicable controls. The proposed modification is not inconsistent with the aims and objectives of the Manly Local Environmental Plan 1988 (cl 3) or of Zone No 3 Business Zone (cl 10), or with the aims and objectives of the Manly Development Control Plan for the Business Zone 1989 (Section D). The Manly Town Centre Urban Design Guidelines 2002 for Sydney Road (cl 3.2.1.2) are, in fact, consistent with the proposed outdoor eating area along that part of the footway of Sydney Road adjacent to the hotel. The street is to be a very active centre with street frontages occupied by pedestrian generating uses (para (c)), to encourage a balance of mixed uses at street level for a vibrant day and night life (para (d)) and to concentrate furniture, lighting and planting along the footpath alignment (para (h)). 26In relation to contentions 2 and 3, Ms Sample said that the addition of tables and chairs would cause conflict with pedestrians in Sydney Road during market days. Mr Neustein attached to his report an email and plan from the organisers of the Manly Market Place, which established that the market tables in Sydney Road will be located 5 metres from the hotel facade and 3.1 metres from the furthermost point of the outdoor eating area (which is 1.9 metres from the hotel's facade). The width of 3.1 metres is adequate for pedestrian flow along Sydney Road between the outdoor eating area and the market. 27Mr Neustein also attached the development consent the Council granted to itself for the markets. Condition ANS08 of that consent provides: "In the event that any café/bar/restaurant/hotel has Council's approval to use the area outside their business within the licensed market area on a Saturday or Sunday, or on a public holiday, the licensee must ensure that any such areas are not occupied by stalls as part of the markets on those days." 28Manly Market Place's proposal to ensure a 3.1 metre-wide passageway between the hotel's outdoor eating area and the market tables gives effect to this condition. 29This condition was specifically proposed by the Council on the recommendation of the Manly Independent Assessment Panel. The Panel considered and adopted an independent planning consultant's report on the development application for the markets, which expressly noted that the hotel has an approved footpath seating area issued by the Court and the hotel's submission for the need to ensure that the market allows clear pedestrian circulation between the market area and the hotel's approved outdoor eating area. The report recommended that this could be enforced by condition of consent, which became condition ANS08. 30In these circumstances, I do not consider that the addition of three tables and 12 chairs at the western end of the outdoor eating area adjacent to the hotel will cause conflict with pedestrians using Sydney Road during market days. The deletion of one table and four chairs at the eastern end of the hotel on the corner end of Sydney Road and The Corso and the translocation of tables and chairs away from the corner, will improve pedestrian flow at the corner. 31In relation to contention 4, Ms Sample again considered that the additional tables and chairs might restrict emergency vehicular access to Sydney Road. I do not agree. During market days, the 3.1 metre passageway which will be left between the outdoor eating area and market tables in Sydney Road will be adequate for emergency vehicular access while on other days even more room is available for access. 32Contention 5 related only to the application of s 125 of the Roads Act and was not relevant to the s 96AA application. 33In relation to contention 6, Ms Sample reported that the Council's Environmental Health Team had indicated concerns about waste management and safety associated with food waste and rubbish discarded from, and glassware used in, the outdoor eating area. Ms Sample also suggested that the proposal was likely to give rise to adverse noise impacts on surrounding properties during evening hours of operation. 34Ms Sample stated that she was concerned that the additional tables and chairs at the end of the outdoor eating area were closer to another licensed venue where alcohol is served along Sydney Road and this could lead to alcohol related assaults. 35Mr Neustein said that there was no evidence that the additional tables and chairs on Sydney Road would lead to any possible conflicts with intoxicated patrons from other venues. Indeed, the hotel had not had any complaints about alcohol related crime incidents either before or after the refurbishment pursuant to the 2005 development consent, or complaints about noise. Mr Neustein said the outdoor seating would provide surveillance of activities in the pedestrian streets and mitigate antisocial behaviour. 36Mr Neustein said a waste management plan has been prepared along with the plan of management required by the development consent and liquor licence, both of which will adequately address the issue of litter waste and disposal. 37Finally, Mr Neustein noted that the additional number of patrons associated with the extra tables is minimal and would generate minimal waste impact. 38I find that the incremental increase in usage, from the net addition of two tables and eight chairs on Sydney Road, will not cause any discernable increase in waste or noise or any decrease in amenity. I accept the evidence of Mr Neustein in this regard. 39Furthermore, the existing development consent contains conditions regulating noise, including from the outdoor eating area (condition 51(iii)), managing patron behaviour in and around the hotel, including in Sydney Road (condition 51(vi)), limiting hours of use of the outdoor eating area to 11.00pm with last orders for food by 10.00pm and requiring the area to be cleared by 11.00pm (condition 51(iii) and (ix)), and requiring operation in accordance with a plan of management (condition 58). 40The liquor licence for the hotel also limits the hours of operation of the outdoor eating area to 11.00pm, with last orders by 10.00pm (condition reference 330), and requires operation in accordance with a plan of management (condition reference 450), control of patron behaviour in and around the hotel, including in Sydney Road (condition reference 500) and clearing the vicinity of the hotel of any garbage emanating from the hotel (condition reference 550). 41The evidence of Superintendent Darcy of Manly Local Area Command of the NSW Police Force, in a letter dated 8 March 2012, was that he was "very supportive" of the hotel's proposal to provide outdoor dining around the hotel's exterior perimeter on Sydney Road and The Corso. He believes such activity would improve the amenity in the immediate area and potentially reduce violence and disorder. However, he considered that there was a need, first, to maintain free pedestrian flow by placing the tables hard up again the walls of the hotel within a width of 1.4 metres and secondly, to cease dining from around 10.00pm on Friday and Saturday nights and remove the tables and chairs at that time. 42An owner of shops on the northern side of Sydney Road opposite the hotel, Mr Miller, was also supportive of the extension of the outdoor seating area along Sydney Road (but not The Corso) as it would activate the street frontage. 43I accept the evidence of Superintendent Darcy and Mr Miller in relation to the benefits to amenity in having the outdoor eating area on Sydney Road. 44For these reasons, I find there will be no appreciable environmental impacts caused by the additional tables and chairs. 45In conclusion, I find that the hotel's proposed modification of the development consent to change the number and location of the tables and chairs along Sydney Road and The Corso is appropriate and ought to be approved. The means proposed by ALH of substituting reference to the modified plan in conditions 1 and 50 of the development consent is appropriate. No other conditions need to be varied or new conditions imposed. Section 125 Roads Act application 46The application under s 125 of the Roads Act, although involving one outdoor eating area to be used for the purposes of the hotel's restaurant, requires consideration of two footways on two public roads, one on Sydney Road and the other on The Corso. The public roads are different and raise different considerations. I will therefore deal with them separately. 47Before I do, however, there are some matters that are common to the application to use both roads for the purposes of a restaurant. 48The person to whom approval may be granted is the person who conducts a restaurant adjacent to the footways on the public roads. In this case, ALH is the appropriate person. Having carried out the development approved by the 2005 development consent, ALH now conducts a restaurant in the hotel which is adjacent to the footways of Sydney Road and The Corso. 49Sydney Road and The Corso are public roads vested in fee simple in the Council. 50The location of the proposed outdoor eating area is on parts of the footways of these public roads. Footway is defined in the Dictionary to the Roads Act to mean "that part of a road as is set aside or formed as a path or way for pedestrian traffic (whether or not it may also be used by bicycle traffic)". Both Sydney Road and The Corso in the vicinity of the hotel had been formed as pedestrian malls. The footway, therefore, extends across the width of each road. ALH's outdoor eating area only extends 1.9 metres from the hotel's facades, only a small part of the extended footways on each road. 51ALH's proposal is to use these parts of the footways for the purposes of the restaurant it conducts in the hotel. 52Accordingly, the matters required for the exercise of power under s 125 of the Roads Act are satisfied. I now turn to the Council's contentions in relation to the use of each of the footways for the purpose of a restaurant. Use of the Sydney Road footway 53In relation to contention 1, as I have noted earlier, the outdoor eating area proposed on part of the footway of Sydney Road adjacent to the hotel is consistent with the planning considerations in the Manly Local Environmental Plan 1988, Manly Development Control Plan for the Business Zone 1989 and the Manly Town Centre Urban Design Guidelines 2002, which apply to Sydney Road. The Urban Design Guidelines specifically require furniture to be concentrated along the footway alignment of Sydney Road. 54The Council has also adopted policies intended to inform the exercise of the Council's discretionary power under s 125 of the Roads Act to approve outdoor eating areas. Policy O6 Outdoor Dining Area, adopted 19 March 2007, provides that: "1.All future outdoor eating area licences in The Corso and elsewhere in the Municipality, unless decided otherwise by resolution of Council in the individual case, will be confined to an area immediately in front on the premises concerned". 55Policy R70 Road Reserves - Outdoor Eating Areas provides: "1.That the approved area be adjacent to the licensee's restaurant premises and located so as not to obstruct the free-flow of pedestrian traffic". 56Policy R70 was amended on 19 March 2007 to repeat, at the end of the policy, the same statement as item 1 in Policy O6. 57The location of ALH's proposed outdoor eating area on the footpath immediately in front of, and adjacent to, the hotel accords with these two general policies on outdoor eating areas. 58For the reasons I have given when dealing with the s 96AA application, I do not accept that any of the planning considerations raised in contention 1 speak against the grant of approval under s 125 of the Roads Act to use part of the footway of Sydney Road for the purposes of a restaurant. The tables and chairs, and the use of them by patrons, will not impede views along Sydney Road. There would be some reduction in the width of the beneath-awning footpath for part of the length of the outdoor eating area along Sydney Road. However, this is an inevitable consequence of the application of the Council's Urban Design Guidelines for Sydney Road and its general outdoor eating area policies, which both require furniture for outdoor eating areas to be immediately in front of the restaurant along the footpath alignment. 59In relation to contentions 2 and 3, for the reasons I have given earlier when addressing the s 96AA application, I find that the proposed outdoor eating area will cause minimal conflict with pedestrians using Sydney Road, including on market days. 60In relation to contention 4, ALH's outdoor eating area will not restrict emergency vehicular access along Sydney Road. 61In relation to contention 6, ALH's outdoor eating area will not cause unacceptable noise, litter or waste problems or alcohol related crimes, for the reasons I have given earlier. 62I therefore consider it is appropriate to grant approval under s 125 of the Roads Act to use that part of ALH's eating area along part of the area of Sydney Road for the purposes of a restaurant. 63In relation to contention 5, I consider that the period of any approval under s 125 of the Roads Act for the outdoor eating area on Sydney Road should correspond with the term for such use under the 2005 development consent, namely 12 months. The Court determined in 2005 that the risk that the outdoor eating area might cause unacceptable impacts, including on pedestrian movements along the footway, could be monitored and evaluated during a trial period of 12 months: see [43]-[46] of the judgment in Australian Leisure and Hospitality Pty Limited v Manly Council [2005] NSWLEC 316. Accordingly, the Court imposed condition 50(ii) providing that: "The use of the public areas referred to in condition 50(i) [for outdoor seating and dining] shall be limited to a trial period of 12 months from the date of the commencement of the use. To continue the use after the trial period, a further development application must be made within the trial period". 64As a consequence, the outdoor eating area could not lawfully be used for the purposes of a restaurant after 12 months under the 2005 development consent and a new development consent would need to be obtained to continue the use. 65Section 125(5) of the Roads Act provides that any approval under that section automatically lapses if use of part of the footway the subject of the approval for the purposes of a restaurant ceases. The combination of condition 50(ii) of the 2005 development consent and s 125(5) of the Roads Act means that any approval that might be granted for the outdoor eating area would lapse at the end of the 12 month trial period. There is no utility, therefore, in granting an approval under s 125 of the Roads Act for a period longer than 12 months. 66Furthermore, it is more orderly and efficient for the two approvals to be coterminous so that ALH would apply for a renewal of both approvals at the same time. Use of The Corso footway 67In relation to contention 1, the planning considerations applying to The Corso are different to those applying to Sydney Road. As I will explain, the Council's planning and urban design for The Corso, its actual redevelopment of The Corso, and its determinations of other applications under s 125 of the Roads Act, have been consistent in maintaining free-flow of pedestrians along the footpath alignments underneath the awnings, and relocating furniture and outdoor eating areas and other obstacles to the centre-line of The Corso. This approach stands in contrast to the Council's approach to Sydney Road. The hotel's proposed outdoor eating area beneath the awning on the footway of The Corso adjacent to the hotel conflicts with this approach for The Corso. 68Manly Town Centre Urban Design Guidelines 2002 for The Corso (s 3.1.1.1) require the location of furniture and planting along the centre-line of the street to keep views open where people walk (para (b)), public open space areas not to be encroached upon by exclusive use activities (para (c)), a balance of mixed uses at street level for a vibrant day and night life (para (d)) and furniture, lighting and planting to be concentrated along the central axis of The Corso (para (g)). 69The Corso DCP expressly deals with the location of specific activities in The Corso, including outdoor eating areas (chapter 5.20). The Corso DCP refers to the Master Plan at Map 1 of The Corso DCP as identifying the location of outdoor dining areas. It requires the location of outdoor dining areas proposed or associated with a development proposal to consider the Master Plan. Map 1 shows only one outdoor eating area in the centre of The Corso across from the hotel and near the intersection of Sydney Road and The Corso. Restaurants in premises either side of The Corso can apply to establish outdoor eating areas in this designated area. 70The evidence establishes that the Council has carried out a redevelopment of The Corso consistent with its Urban Design Guidelines and Master Plan, including removing furniture and outdoor eating areas from the footpath alignments underneath awnings and establishing an outdoor eating area in the location identified on the Master Plan in Map 1. The Council's urban design and planning policies have therefore been implemented in practice. 71The Council also tendered a folder of correspondence concerning, and determinations of applications under s 125 of the Roads Act for, outdoor eating areas in The Corso, which reveals a consistent approach by the Council to uphold its urban design and planning policies to ensure the free-flow of pedestrian movement on footways underneath awnings by not re-issuing, and by refusing, approvals for outdoor eating areas on these footways. 72Nevertheless, the Council's general policies on outdoor eating areas in the municipality, policies O6 and R70, to which I have earlier referred, do provide that outdoor eating areas should be adjacent to the licensee's premises and immediately in front of the premises concerned. These general policies are inconsistent with the Council's specific approach to The Corso where outdoor eating areas are to be concentrated along the centre-line of The Corso and not on footpath alignments underneath awnings. 73I consider that the Council's specific urban design and planning approach for The Corso should prevail over its general policies for the outdoor eating areas applying to the municipality, to the extent of any inconsistencies. 74I consider that approval should not be granted to use the beneath-awning footway of The Corso adjacent to the hotel for ALH's outdoor eating area, as to do so would be inconsistent with the Council's planned and implemented approach to the use of The Corso. 75The Council has designated, and constructed, an area along the centre-line of The Corso for outdoor eating, which area can be used with approval by premises on either side of The Corso conducting restaurants. This outdoor eating area is proximate to the New Brighton Hotel and could be used by the hotel as its outdoor eating area in The Corso. The centralisation of various premises' outdoor eating along the centre-line of The Corso rather than having individualised eating areas on the footways immediately in front of the premises, achieves the Council's urban design and planning goals of maintaining free-flow of pedestrians on footways underneath awnings, reduction of clutter, and a coherent and orderly approach to locating specific activities, including outdoor eating, in The Corso. 76ALH has not provided sufficient reason for the Court to depart from the Council's planned and implemented approach to the use of The Corso. 77Mr Neustein properly acknowledges that the hotel's proposed outdoor eating area on the beneath-awning footway of The Corso is inconsistent with the Council's Urban Design Guidelines and planning for The Corso, which require furniture and outdoor eating areas to be concentrated along the centre-line of The Corso and not on beneath-awning footways in front of premises. 78Nevertheless, Mr Neustein suggested that the hotel's proposed outdoor eating area on the footway under the awning of the hotel on The Corso would still be acceptable. First, he says that the outdoor eating area will contribute greatly and positively to the level of activity within the pedestrian area and will enhance the quality of the public domain. He speaks of the strong social effect of outdoor eating. Mr Neustein said that although the Council's design and redevelopment of The Corso has a friendly human aspect due to the centrally located seating, there is a bare and hostile environment under the awning on either side of the pedestrian mall. The hotel's proposed outdoor seating in front of the hotel will assist in greatly softening the starkness of the very wide paving of the pedestrian mall. 79Superintendent Darcy also spoke of the positive benefits outdoor eating can bring to the area. 80Outdoor eating may well achieve these benefits, but the question is not whether outdoor eating should be provided in The Corso at all but rather the location of the area for outdoor eating. The Council, as the responsible planning and roads authority for The Corso, has designated and constructed an outdoor eating area in The Corso along the centre-line and not on the footways either side. There were good urban design and planning reasons for the Council's approach. The designated outdoor eating area extends from the corner of Sydney Road and The Corso to about half way along The Corso frontage of the hotel. To date, not all of the designated outdoor eating area has been occupied by tables and chairs. There is, therefore, available capacity for the hotel to have its outdoor eating area in the designated outdoor eating area in the centre of The Corso. 81The benefits of outdoor eating about which Mr Neustein and Superintendent Darcy spoke could be enjoyed from use of the designated outdoor eating area in the centre of The Corso across from the hotel as much as from use of the hotel's proposed outdoor eating area on the beneath-awning footway in front of the hotel. Hence, it is not necessary, in order to be able to derive these benefits of outdoor eating, to approve the hotel's proposal. 82Secondly, Mr Neustein relied on the Council's standard policy (R70) for outdoor seating, noting that the hotel's proposal is consistent with that policy. This is true. However, the Council has adopted and implemented a specific policy for outdoor eating areas in The Corso in its urban design guidelines and The Corso DCP and Master Plan which should prevail over the standard policy that applies throughout the municipality. The hotel's proposal is not consistent with the specific policy for The Corso. 83In relation to contention 2, Ms Sample said that the beneath-awning area is heavily utilised by pedestrians during times of high sun or inclement weather, and that the hotel's outdoor eating area would impede this use and reduce amenity. Mr Neustein disagreed, saying that the hotel's outdoor eating area would not cause a material disruption of pedestrian traffic and amenity for pedestrians using the beneath-awning footway. Mr Neustein said that the awning is around 3 metres in width, the outdoor eating area is 1.9 metres from the hotel facade, thereby leaving 1.1 metres for pedestrians underneath the awning. Mr Neustein obtained and analysed CCTV video footage from the hotel showing pedestrian traffic on two summer weekends of an event that attracted large crowds, the Manly International Open Surf Competition. He observed the number of persons under the awning was generally between one and 14 at any one time, including smokers outside the hotel. Mr Neustein opined that this number of pedestrians could easily be accommodated under the awning in inclement weather. I assume Mr Neustein means by this that this number of pedestrians would be able to walk, probably single file, past the outdoor eating area beneath the remaining 1.1 metres of the awning. 84I do not accept that the impact of the alienation of at least two thirds of the beneath-awning footway outside the hotel on The Corso is acceptable. First, it needs to be noted at the outset that the hotel's proposal will cause a reduction, indeed of about two thirds, in the beneath-awning footway available to pedestrians. Any reduction in the width and availability for use by pedestrians of beneath-awning footways is contrary to the Council's adopted and implemented urban design and planning for The Corso. The beneath-awning footways are intended, and have been constructed, to be free of furniture and obstacles so as to allow free-flow of pedestrians sheltered from high sun and inclement weather. 85Secondly, the reduction in the available width of beneath-awning footways caused by the hotel's proposal is likely to be even greater than Mr Neustein's arithmetic suggests. The hotel's proposal does not include barriers designating the outer limit of the outdoor eating area. Hence, patrons may move their chairs further away from the hotel facade and may leave personal bags, beach equipment, bikes or strollers outside of the approved 1.9 metre limit. In practice, therefore, the outdoor eating area may encroach in part further than 1.9 metres from the hotel's facade. Furthermore, pedestrians passing by the outdoor eating area may feel inhibited in walking too close to patrons and their gear and give a wider berth. Hence, in reality the beneath-awning area actually available or used by pedestrians may be less than the mathematically derived 1.1 metres. Both of these effects would impact detrimentally on the number, and the rate of flow, of pedestrians underneath the awning. 86Mr Neustein suggested that in times of rain the tables and chairs could be pushed closer to the hotel facade, thereby increasing the width of the beneath-awning footway available for pedestrians. I consider this would be impractical and unenforceable. As Ms Sample observes, the spontaneous nature of inclement weather would make it difficult to accommodate both pedestrian movement and outdoor seating. Only unoccupied tables and chairs could be moved in. If there are occupied tables and chairs, they would not be able to be moved and hence the whole outdoor eating area could not be contracted. 87Thirdly, the presence of the hotel's outdoor eating area on the beneath-awning footway may inhibit shoppers continuing along The Corso to shops further north, including on Sydney Road. Mr Miller, an owner of shops in Sydney Road, gave evidence that for a retail strip shopping area like The Corso to operate efficiently and fairly, it is crucial that an unbroken "retail line" outside all premises be maintained. If a particular business has outdoor tables and chairs on the footway, it stops shoppers walking past. Shoppers may turn around before reaching the tables and chairs, or cross to the other side of the road. Either way, the retail line is broken. I consider that there is some force in Mr Miller's concerns. This provides a further reason for not locating outdoor eating areas on the footways, but rather concentrating them along the centre-line of The Corso in the area designated and constructed by the Council. 88For completeness, I should note that contention 3 is not applicable to The Corso but only Sydney Road and that, in relation to contentions 4 and 6, I do not consider that the hotel's outdoor eating area would restrict emergency vehicular access to The Corso or would result in unacceptable noise, littering and waste management impacts, or increase alcohol related crime. These are not reasons for refusing the outdoor eating area on The Corso. 89ALH submits that even if the Court were to find that the hotel's proposed outdoor eating area on The Corso's footway is contrary to the public interest, by being inconsistent with the Council's urban design and planning for the use of The Corso, nevertheless there is a countervailing public interest in approving the hotel's proposal. The hotel was the beneficiary of the 2005 development consent granted by the Court, which approved the outdoor eating area on The Corso, as well as on Sydney Road. ALH has spent, it submitted, around $15 M carrying out development in accordance with that consent. 90I do not consider that this factor outweighs the considerations I have found persuasive to refuse the hotel's proposed outdoor eating area on the beneath-awning footway of The Corso. First, the Court, in hearing and determining the appeal so as to grant development consent in 2005, was not required to and did not consider an application under s 125 of the Roads Act for an outdoor eating area on The Corso or Sydney Road. The considerations under the EPA Act and the Roads Act are different, although there is some overlap. Hence, the Court's determination to grant development consent in 2005 did not in law or in fact involve consideration of the merits of the granting of approval under s 125 of the Roads Act. 91Secondly, the circumstances have changed since the Court granted development consent in 2005. The urban design and planning for The Corso has progressed since then. The Corso DCP and Master Plan have been adopted. These were not considered by the Court in 2005. The Council has redeveloped The Corso so as to implement its urban design and planning for The Corso. The Corso today is materially different to that which existed in 2005. The beneath-awning footways have been cleared of furniture and obstacles and the outdoor eating area in the centre of The Corso has been constructed. Furthermore, the Council has acted consistently since 2005 to implement its urban design and planning for The Corso, including not reissuing and refusing approvals for outdoor eating areas for other premises along the beneath-awning footways of The Corso. Again, none of these actions and events were considered by the Court when it granted consent in 2005. In contrast, in determining this appeal, I am obliged to consider the facts and law that apply at the time of the appeal, which include these facts concerning the Council's adopted and implemented urban design and planning for The Corso. 92Thirdly, the two approvals are under two different statutory regimes. There is no presumption that the obtaining of an approval under one statutory regime (development consent under the EPA Act) should ineluctably lead to approval under another statutory regime (approval under s 125 of the Roads Act). Indeed, such thinking led the Court to error in earlier proceedings, as I explained in my 2009 judgment. Each application for approval needs to be considered on its merits, having regard to the facts and law applicable at the time. 93Fourthly, the money ALH has expended to date relates to all aspects of the development approved by the 2005 development consent other than the outdoor eating area on the footways off the public roads. Condition 50(ii) of the development consent authorised use of the outdoor eating area for a trial period of 12 months from the date of commencement of use. ALH is not lawfully able to commence use of the outdoor eating area unless and until it obtains approval under s 125 of the Roads Act. ALH has not been able to obtain such approval and hence has not commenced the use of the outdoor eating area. Accordingly, ALH has not spent any money in relation to the outdoor eating area. 94ALH also submitted that the granting of approval under s 125 of the Roads Act for the hotel's outdoor eating area for a trial period of 12 months, as was done by the Court in the 2005 development consent, would allow an evaluation of whether the Council's concerns about the outdoor eating area's impacts on the beneath-awning footway of The Corso would in fact be realised. The reasons I have found persuasive for refusing approval under s 125 of the Roads Act to use the beneath-awning footway of The Corso concern matters which are fundamental to the urban design and planning for the use of The Corso and are not readily able to be monitored and evaluated in a trial period. They concern how The Corso as a public road is to be used. I do not consider that the roads authority (the Council or on appropriate appeal, the Court exercising the Council's functions) will be in any better position or be better informed after a 12 month trial period than it would be today. Conclusion and conditions of s 125 Roads Act approval 95I consider that approval under s 125 of the Roads Act should be granted for that part of the hotel's outdoor eating area on the footway of Sydney Road but not for the part on the footway of The Corso. The terms of the draft approval need to be amended accordingly. 96In relation to contested conditions, I find: (a)condition 2.2: the hours of operation should be consistent with the 2005 development consent and liquor licence. This means that the outdoor eating area can open at 8.00am on Monday to Saturday and 9.00am on Sunday and close at 11.00pm, with the last food orders taken at 10.00pm; (b)condition 3.3.2: the restriction on litter-generating paper napkins and sachets for salt, pepper and sugar should remain. Although condition 3.5 of the approval and other conditions of the development consent and liquor licence deal generally with waste generation and collection of garbage in the vicinity, these conditions would be unlikely to address litter caused by paper napkins and sachets which would have a propensity to be blown along Sydney Road with gusts of wind; (c)condition 3.3.3: the condition specifies the numbers of tables and chairs able to be used in the outdoor eating area and should remain. The numbers specified in the schedule should be adjusted to take into account that only Sydney Road and not The Corso will be used for the outdoor eating area; (d)condition 3.3.4: a qualification needs to be added excluding the approved tables and chairs from the prohibition on other furniture; (e)condition 3.6: the condition prohibiting smoking in the approved outdoor eating area should remain, as it regulates use of the footway of a public road; (f)condition 3.16: the condition requiring compliance with undefined Council policies for outdoor eating areas should be deleted; (g)condition 4.3: this condition specifies the period of the approval and the events which cause the approval to lapse. As to the period, I find it should be 12 months for the reasons I have given earlier. The events causing lapsing are generally appropriate having regard to the fact that an approval under s 125 of the Roads Act is personal to the applicant, unlike a development consent. However, the wording could be made clearer; and (h)item 6 of schedule: the annual fee needs to be fixed and cannot be at the Council's absolute discretion. This is addressed in the reworded condition. 97I have made some minor changes to the wording of the conditions to correct cross-references. Orders 98The Court makes the following orders: (1)The appeal is upheld. (2)Development consent 387/2003 granted by the Court is modified to amend: (a)condition 1 by deleting the words "and SK01" and inserting at the end of the condition the words "and amended plan drawing No DA05 Revision Issue H dated 13 March 2012, Project No 869.08 prepared by Altis Architecture"; and (b)condition 50(i) by deleting the words "SK01" and inserting instead the words "amended plan drawing No DA05 Revision Issue H dated 13 March 2012, Project no 869.08 prepared by Altis Architecture". (3)Approval is granted under s 125 of the Roads Act 1993 to use part of the footway of Sydney Road, Manly for the purpose of a restaurant in accordance with the conditions of approval in Annexure A. (4)The exhibits may be returned to the parties. ********** Annexure A (PDF) "A" (PDF) 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. Decision last updated: 27 March 2012