Humphrey & Edwards Architects v Waverley Municipal Council [2014] NSWLEC 1043

Land and Environment Court New South Wales

Medium Neutral Citation: Humphrey & Edwards Architects v Waverley Municipal Council [2014] NSWLEC 1043 Hearing dates: 18, 19 February 2014 Decision date: 07 March 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraphs [37]-[38] Catchwords: DEVELOPMENT APPLICATION - Alterations to hotel - Trading hours - Trial period - Lockout Legislation Cited: Environmental Planning and Assessment Act 1979 Liquor Act 2007 Waverley Local Environmental Plan 1996 Waverley Local Environmental Plan 2012 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Humphrey & Edwards Architects (Applicant) Waverley Municipal Council (Respondent) Representation: Mr P Clay SC with Mr A Isaacs (Applicant) Mr M Staunton (Respondent) Whittens & McKeough (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10449 of 2013

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the conditions imposed by the respondent Council on a development consent granted on 15 April 2013 for alterations and conversion of the first floor of the Robin Hood Hotel, 203-209 Bronte Road Waverley (the Hotel). 2The Hotel is located at the Charing Cross intersection of Bronte Road, Carrington Road, and Victoria Street. The Hotel is a two storey structure with frontages to Bronte Road and Carrington Road. The ground floor is used as restaurant/public bars and gaming area. The existing first floor lounge has an approved capacity of 32 persons. The trading hours of the Hotel are 10am to 3am the following day Monday to Saturday, and 10am to 10pm Sunday. 3The surrounding area is retail/commercial, with residential terrace buildings along Carrington Road, and some residential units above ground floor retail/commercial premises on Bronte Road. Adjoining the site to the south is the Eastern Suburbs Legion Club, which trades to 10pm-midnight. The Charing Cross Hotel is located on the opposite side of Carrington Road at the intersection of Victoria Road, and trades to midnight. 4Development Application DA-6/2012 was lodged on 10 January 2012, and was described as being for "Alterations to an existing hotel including conversion of first floor to restaurant/public bar area for an additional 150 patrons". The proposed works include the relocation of the kitchen from the ground floor to the first floor; provision of a new bar on the first floor; conversion of the previous first floor accommodation to internal and external dining and seating rooms; provision of an outdoor function room and additional toilet facilities on the first floor; and provision of new stairs and internal lift. The proposed development includes provision of a retractable roof within the new rooftop opening over the proposed outdoor lounge and dining area and outdoor function room, with two components of fixed glass. The Statement of Environmental Effects (SEE) states that the capacity of the first floor is proposed to be increased from 32 patrons to 150 patrons which will result in an overall hotel patron capacity of 461 patrons; the existing ground floor capacity of 311 persons is not proposed to be altered. 5The Council granted development consent on 15 April 2013 subject to conditions. The conditions included deferred commencement conditions which require preparation and approval of a Conservation Management Plan; an archival standard photographic record of first floor areas; and provision of an updated Plan of Management. The conditions to apply once the applicant has satisfied the Council as to the deferred commencement conditions include Condition 3, which provides hours of operation, being for the first floor 10.00am-11.00pm Monday - Saturday, 10.00am-10.00pm Sunday (3(b)(i)); closure of the retractable roofs by 11.00pm Monday-Saturday and 10.00pm Sunday (3(c)(i)); and kitchen facilities to cease operation at 10.30pm with final food orders by 10.00pm (3(c)(ii)). Condition 4 provides extended trading hours to 12.00 midnight Monday-Saturday, subject to review not less than one year after the issue of the consent. Condition 5 imposes a 12.00 midnight lockout Monday-Saturday for the Hotel. Condition 7 specifies the maximum number of patrons as 311 on the ground floor, and 150 on the first floor. 6The applicant appealed, seeking amendment of condition 3(b) to permit trading hours for the first floor to midnight Monday-Wednesday and 2am Thursday-Saturday; and the deletion of conditions 3(c), 4, and 5. During the course of the hearing the parties reached agreement on amended conditions. Agreed condition 3(b) would permit the first floor to operate 10.00am-12.00 midnight Monday - Saturday, and 10.00am-10.00pm Sunday; condition 3(c) provides extended hours for a trial period of one year after the issue of an occupation certificate to 2.00am on Thursday, Friday and Saturday; and the parties agreed that the conditions specifying closing of retracting roofs and ceasing of kitchen facilities and food service could be deleted. The parties agreed that a revised Plan of Management should be prepared and finalised so as to be included in the development consent, rather than being subject to a deferred commencement condition. The parties also agreed on conditions addressing acoustic issues, including condition 7 specifying patron numbers, including condition 7(c) that before midnight there be no more than 40 patrons in total across the three outdoor lounge/dining areas on level 1 and 8 patrons on the northern balcony, and after midnight no more than 30 patrons in total across the three outdoor lounge/dining areas on level 1 and no patrons on the northern balcony; and condition 7B providing for acoustic compliance testing. 7The issue remaining in dispute between the parties is whether there should be a lockout imposed for the Hotel. Condition 5 as proposed by the Council provides a lockout, with no patron to be admitted or re-admitted after 12.00 midnight. The Council's position is that in the absence of a lockout, it is not appropriate for condition 3(c) to permit a trial period of extended trading for the first floor to 2.00am on Thursday-Saturday. The applicant opposes the imposition of condition 5.