Land and Environment Court New South Wales Medium Neutral Citation: Australian Leisure & Hospitality Group Pty Ltd v Manly Council [2012] NSWLEC 1068 Hearing dates: 1 March 2012 Decision date: 20 March 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld, in part. 2. The application to modify Development Consent 387/03, under s 96AA of the Environmental Planning and Assessment Act 1979 for an existing hotel (New Brighton Hotel) on the corner of The Corso and Sydney Road, Manly is approved and the operation of the hotel is subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and A. Catchwords: MODIFICATION: modify the hours of operation of the first floor balcony and rooftop terrace and outdoor seating area of existing hotel - provide live music and other types of musical entertainment - modify acoustic requirements - modify security requirements Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Australian Leisure & Hospitality Group Pty Ltd (Applicant) Manly Council (Respondent) Representation: Counsel Mr J Robson SC (Applicant) Mr M Staunton, barrister (Respondent) Solicitors Norton Rose Australia (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11011 of 2011 Judgment 1ACTING SENIOR COMMISSIONER : This is an appeal against the refusal by Manly Council of an application to modify Development Consent 387/03, under s 96AA of the Environmental Planning and Assessment Act 1979, that provided for extensive internal and external alterations to an existing hotel (New Brighton Hotel) on the corner of The Corso and Sydney Road, Manly. The proposed modification application also includes amendments to the modifications to Development Consent 387/03 granted on 19 May 2010. 2The modification application affects a number of conditions of development consent (part condition 51 and conditions 58, 69, 71, 74 and 75) however the application can be generally described as: * modification of the hours of operation of the first floor balcony and rooftop terrace and outdoor seating area from 11 pm to midnight, * extension of the hours that windows may be open from 11 pm to midnight, * inclusion of live music and other types of musical entertainment to the ground floor and first level and "bar music" to the second floor and ambient music to the rooftop terrace, * modification of other acoustic requirements in restriction, * modification of two conditions regarding security measures, and * modification of one condition to reference an updated plan of management. 3The hearing commenced on-site with a number of local residents providing evidence. Their concerns related to the likely increase in noise associated with the extended trading hours on the first-floor balcony and rooftop terrace areas to their residential flat buildings to the north and south of the hotel. While accepting that noise impacts had not been so significant since the hotel reopened in November 2011, noise was still seen as a problem and any attempt to extend trading hours would create further unacceptable amenity impacts. 4The owner of the adjoining serviced apartments and backpacker establishment in The Corso also provided evidence. The close proximity of the first floor balcony to the adjoining accommodation was already a problem with occupants of these rooms, and would be increased with the additional trading hours envisaged for the first-floor balcony. 5Superintendent Darcy, the Commanding Officer of the Manly Local Area Command also provided evidence. He stated that in the Manly area, the use of outdoor areas is limited to 10 p.m. He envisaged potential conflict between patrons on the upper levels of the hotel and passers-by on ground level if the trading hours were extended beyond 10 pm given that the area is a well-defined area of violent crime on Thursday, Friday and Saturday nights. 6Superintendent Darcy supported the proposed changes for entertainment given that the recent modifications to the hotel provide good sound attenuation. Positive benefits were also seen in that there was less need for patrons to travel between floors for entertainment when it is provided on all floors. Since the hotel reopened, Superintendent Darcy stated that there had been no noise complaints. 7Expert evidence was provided from both parties on town planning and acoustic issues although the principal contention related to acoustic issues. Mr Atkins, for the council and Mr Stevens, for the applicant, provided acoustic reports and oral evidence however after further discussions, agreement was reached on appropriate conditions of consent. In general terms of these conditions provided for: 8New condition 51 - this condition addresses a range of matters and includes: * independent noise assessments and reporting when live entertainment is occurring (condition 51(i)), * removal of outdoor seating and patrons from The Corso and Sydney Road by 11 pm each evening and last food orders being taken by 10 pm (condition 51(iii)), * the installation of closed-circuit television cameras on the rooftop level and provision of security personnel from 9 pm daily until close (condition 51(v)), * the management of behaviour of patrons within an agreed radius of the hotel, to be determined in consultation with the Manly Licensing Police (condition 51(vi)), * the provision of noise goals for each building level and the use of a noise limiter for the sound system (condition 51(vii)), * the closing of doors and windows 15 minutes prior to the commencement of any live entertainment (condition 51(viii)), * all outdoor areas above ground level, including all balconies, are to be cleared and remain clear of all patrons by 11 pm each evening except the first-floor balcony to Sydney Road where patrons are to be cleared and remain clear of all patrons by 10 pm each evening (condition 51(ix)), and * all external doors and windows, except the entrance, to be securely closed by 11 pm each evening and remain closed until close of trading (condition 51(x)). 9New condition 52 - this condition replaces the existing noise goals with noise goals consistent with the license from the Office of Liquor Gaming and Racing. 10New condition 69A -this condition addresses the required for licensed uniformed security personnel on Thursday, Friday and Saturday nights where from 9 pm until half an hour after the premises close, at least two licensed uniformed security personnel are to regularly patrol an area in the vicinity of the premises. The area is to be determined in consultation with the Manly Police Commander. 11New condition 69B - this condition supplements condition 69A and requires on Thursday, Friday in Saturday nights from 9 pm that uniformed security shall be provided at the ratio of one security guard per 100 patrons and part thereof. Security will commence from the earlier time of 9 pm or half an hour before live entertainment commences, whichever is the earlier, and security shall must remain on the premises until half an hour after the premises close. 12New condition 69C - this condition provides that the number of security personnel required on Thursday evening may be reduced with the consent of the council and the Commander of Manly Police. 13New condition 75 - this condition provides the maximum number of patrons on each level of the hotel and effectively replaces the requirements provided in a previous, and subsequently repealed, Place of Public Entertainment Licence for the hotel. The specified number of patrons is based on the requirements of the Building Code of Australia . 14New condition 58A - this condition provides that prior to the commencement of live entertainment, the plan of management referred to in condition 58 is to be updated and approved by the council. 15New condition 58B - this condition provides that upon approval of the updated management plan in accordance with condition 58A, the premises will be operated and managed in accordance with that updated plan of management. 16In considering the agreed conditions and the comments from local residents and Superintendent Darcy, I am satisfied that the agreed conditions are an acceptable response to the modifications originally sought by the applicant. Importantly, condition 51(ix) requires all outdoor areas above ground level, including all balconies, to be cleared and remain clear of all patrons by 11 pm each evening except the first-floor balcony to Sydney Road where patrons are to be cleared and remain clear of all patrons by 10 pm each evening, overcomes the significant concerns raised by the residents regarding extended trading hours for these areas. 17Other conditions relating to the requirement for independent noise assessments and reporting when live entertainment is occurring, consistency in noise goals, maximum patron levels and revised security arrangements, in conjunction with the Commander of Manly Police, are positive aspects of the agreement between the experts. 18The orders of the Court are; 1. The appeal is upheld, in part. 2. The application to modify Development Consent 387/03, under s 96AA of the Environmental Planning and Assessment Act 1979 for existing hotel (New Brighton Hotel) on the corner of The Corso and Sydney Road, Manly is approved and the operation of the hotel is subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and A. G T Brown Acting Senior Commissioner ANNEXURE A 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