Ashbian Nominees Pty Ltd v Sydney City Council - [2008] NSWLEC 1436

Land and Environment Court

of New South Wales

CITATION: Ashbian Nominees Pty Ltd v Sydney City Council [2008] NSWLEC 1436

PARTIES:
APPLICANT
Ashbian Nominees Pty Ltd
RESPONDENT
Sydney City Council

FILE NUMBER(S): 10395 of 2008

CORAM: Hoffman C

KEY ISSUES: Modification Application :- alterations and additions to the Beresford Hotel, a Revised Security Plan of Management, hours of operation, acoustic standards, landscaping, late night activity and impacts.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
City of Sydney Late Night Trading Premises Development Control Plan 2007
South Sydney Development Control Plan 1997: Urban Design

DATES OF HEARING: 02/09/2008, 03/09/2008 and 13/10/2008

DATE OF JUDGMENT:
30 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr N. Eastman, barrister
Instructed by Gadens Lawyers
RESPONDENT
Mr P. Clay, barrister
Instructed by Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

30 October 2008

10395 of 2008 Ashbian Nominees Pty Ltd v Sydney City Council
JUDGMENT

1 Commissioner: This is an appeal against the refusal of a s96 application to amend Development Consent No.D/2006/664 for alterations and additions to the Beresford Hotel at 354-358 Bourke St and 11-15 Hill St, Surry Hills. The site also fronts Mary’s Place. The modification sought is to extend the hours of operation currently approved for a large rear courtyard and for a 1st floor function facility.

2 Part of this is a Revised Security Plan of Management, and noise limits, plus the provisions of an updated Acoustic Report. Although the extended hours are apposed by the respondent, some other modifications are common ground and agreed by the parties.

The hotel as built

3 The old hotel is a 3-storey Victorian style that is having extensive renovations. Attached to it at the rear and the south side is a new 3-storey extension, and there is a large courtyard across the back, or eastern side of the site between Hill St and Mary’s Place. The courtyard has 4.8m high masonry walls on 3 sides and the new building on the 4th.

4 The courtyard has a capacity for 350 persons or in dining mode 192 at tables and booths as in Exhibit E. The ground floor internal bar and bistro has a capacity for 350 persons.

5 There is a large balcony off the function facility on the east side of level 1 overlooking the courtyard. There is a smaller balcony on the west side of level 1 overlooking Bourke St, it is also accessed from the function room. The balconies are intended to be used for smoking by patrons. The function room has a seated capacity of 180 at tables, or without tables in “Place of Entertainment” mode 400 persons.

6 The third floor is administration offices. There is another small balcony on the west end of the building overlooking Bourke St. It is above the level 1 west balcony, but is not accessible to patrons.

7 There is a large basement area with staff and service facilities and equipment. The refrigeration equipment is in the basement in order to minimise exterior noise. Air ducts bring air in/out from/to the roof. Used bottles are processed for garbage in the basement in sound proof rooms.

8 On the roof, as well as the air intakes/exhausts for the basement and toilets and kitchen, there is a lot of air-conditioning equipment for the public rooms. I was told all the equipment had extensive noise reduction components. I saw the equipment from the adjacent roof and top floor windows of the apartments on the corner of Mary’s Place and Bourke St. I was told there is an acoustic screen wall yet to go around all the roof-top equipment.

9 The construction works for the building were nearing completion and the hotel had resumed trading by the last day of this Hearing.

The site and surrounds

10 Bourke St is the main frontage on the west. Hill St runs from Bourke to Flinders St, and is a narrow lane-like street on the north side of the site. It will have the main entry to the rear outdoor dining courtyard on the ground floor, and the entry lobby of the first floor function facility.

11 Mary’s Place is a lane on the south side of the building and has a staff daytime entry, and a daytime rolladoor access to the courtyard that becomes, at night, a fire exit.

12 Opposite the site on Mary’s Place is a 4-storey block of 1930’s flats, and at the rear of it opposite the hotel courtyard is a 3-storey commercial building. As Mary’s Place passes the site going east it becomes Floods Place that changes name to Clare St when it turns and runs north parallel to the east side of the site. Off Floods Place is the rear access to St Michael’s church and rectory on the corner of Albion and Flinders St. Backing onto the site’s rear courtyard off Clare St are 3 Victorian terrace houses.

13 Where Clare St intersects Hill St there are another 3 terrace houses fronting Hill St in a row that ends at the north-east corner of the site’s courtyard.

14 The hotel is 2 city blocks south of Taylor Square. Opposite is the old St Margaret’s hospital of 10-14 storeys that has been redeveloped as home units having a central public courtyard. The courtyard has walkthroughs from Bourke St past high rise apartments generally opposite the Beresford. Also opposite there is a drive entry to a public carpark in St Margaret’s and a ground floor supermarket. Other retail and commercial outlets and cafes are on the ground floor opposite the Beresford with home units above.

15 Across Hill St from the site on the corner of Bourke St is a homeless persons shelter with an older 2–storey building on the corner and an 8-storey shelter building just north of that. There is a narrow lane at the back of the shelter, the lane is Short Place and runs parallel to Bourke St from Hill St approximately opposite the hotel’s new function facility lobby. On the corner of Hill St and Short Pl behind the shelter is a 6-storey building under construction that is said to become an international art school. Further east along Hill St past Clare St and on the corner of Flinders St is the Flinders Hotel, another old Victorian style building.

The proposed amendments of consent

16 The subject s96 application is DA No.2006/664H: There have been a number of modifications before this one. The task of assessment is against the original approval, not the current approval as modified previously.

17 The original consent dated 6 October 2006 says inter alia:

(5) HOURS OF OPERATION - HOTEL AND FUNCTION ROOM

The hours of operation of the ground floor hotel and first floor function room are restricted to between 10 am and 1 am Mondays to Sunday.

6) HOURS OF OPERATION- OUTDOOR DINING AREA

The hours of operation of the outdoor dining area must be restricted to between 10 am and 11 pm Monday to Sundays

7) HOURS OF OPERATION FIRST AND SECOND FLOOR BALCONIES

The hours of operation of the level 1 and level 2 balconies must be restricted to between 10am and 11 pm Monday to Sundays:

(8) SECURITY PLAN OF MANAGEMENT

The Security Management Plan prepared by ABC Planning and dated April 2006 must be implemented during operation of the use.

(12) SURVEILLANCE CAMERAS

21) GAMING MACHINES

(23) NOISE - MECHANICAL PLANT

"offensive noise"

Protection of the Environment Operations Act

(28) NEIGHBOURHOOD AMENITY

(29) NOISE ADDITIONAL REQUIREMENTS

(32) TREES

(platanus

hybrida)

(Sapium.sebiferum)

18 The s96 application that was refused had asked for the following changes:

Amend condition 5

Delete condition 6.

Amend condition 7

"the hours

the operation

the western balcony will be restricted to

midnight Monday to Sundays".

Amend condition 12(b

"staircase from level

to ground floor should be covered in its entirety. All other staircases and" .

Delete condition 21

Amend condition 23(a) and (b)

"different occupancy"

"any residence".

Amend condition 28(b)

"must ensure"

"must do all things reasonably necessary",

Amend condition 29

"at no time shall music or entertainment be provided in any

the outdoor area",

On existing line 2, after the words "time" insert "after 12 midnight".
On existing line 3, after the words "egress and" insert "the doors leading to the first floor balconies",
On existing line 6·, delete the words "and that patrons",
On existing line 8, delete the words "and that patrons",
Delete condition 31.
Amend condition 32(d) to delete the words "Chinese Tallow Tree (Sapium Sebiferum)" and insert "Japanese Maple".

19 Prior to this Hearing negotiations had occurred, but no agreement, and the final form of modifications sought by each party are:

Applicant proposed Conditions	Respondent’s proposed Conditions
(5) Hours of Operation – Hotel and Function Room The hours of operation of the hotel are as follows: (a) ground floor hotel between 10am and 1 am the following day Mondays to Sunday. (b) first floor function room between: (i) 10am and 1am the following day Sunday to Thursday; (ii) 10am and 3am the following day Friday, Saturday and the day immediately preceding gazetted public holidays; and (iii) 10am and 3am the following day on not more than 12 special events in a 12 month period, with 3 week's prior written notice of such events to be given to Council.	(5) Hours Of Operation – Hotel And Function Room The hours of operation of the ground floor hotel and first floor function room are restricted to between 10am and 1am Mondays to Sunday. (current condition)
(6) Hours of Operation – Outdoor Dining Area The hours of operation of the outdoor dining area must be restricted to between 10am and 12am Mondays to Sundays, with no new patrons to be admitted after 11pm, and use after this time to be by diners only, restricted to the following numbers: a) 56 patrons in the open air portion of the outdoor dining area; and b) 36 patrons in the undercover portion of the outdoor dining area (being the area underneath the 1st floor eastern balcony)	(6) Hours Of Operation – Outdoor Dining Area The hours of operation of the outdoor dining area must be restricted to between 10am and 11pm Monday to Sundays. (Modification 8 December 2006)
(7) Hours of Operation – First Floor Balconies (a) Western Balcony The hours of operation of the level 1 western balcony must be restricted to between 10am and 12am Monday to Sundays. (b) Eastern Balcony The level 1 eastern balcony may operate after 11pm Sunday to Thursday and after 12am Friday, Saturday and the day immediately preceding gazetted public holidays, as a smoking only area, to be supervised and enforced by a security guard, and restricted to 25 patrons with entry to be from the southern door only, through a sound lock (with the exception of disabled and emergency access permitted through the northern door).	(7) Hours Of Operation –First And Second Floor Balconies The hours of operation of the level 1 and level 2 balconies must be restricted to between 10am and 11pm Monday to Sundays: (current condition)
(7A) Hours of Operation – Second Floor Use of the 2nd floor is restricted to staff and contractors. No patrons are permitted to use the 2nd floor.	Agreed as per applicant’s Condition
(8) Security Plan of Management The Security Management Plan prepared by ABC Planning and dated October 2008 must be implemented during operation of the use.	(8) Security Plan Of Management The Security Management Plan prepared by ABC Planning and dated April 2006 must be implemented during operation of the use. (Current condition)
(22) Noise – Use Noise caused by the approved use including music and other activities must comply with the following criteria: (a) The use must not result in the transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. (b) The L10 noise level emitted from the use must not exceed 5dB above the background (L90) noise level in any Octave Band Centre Frequency (31.5Hz to 8kHz inclusive) between the hours of 7.00am and 12.00am midnight when assessed at the nearest affected residential boundary. The background noise level must be measured in the absence of noise emitted from the use. (c) The L10 noise level emitted from the use must not exceed the background (L90) noise level in any Octave Band Centre Frequency (31.5Hz to 8kHz inclusive) between the hours of 12.00 midnight and 7.00am when assessed at the nearest affected residential boundary. The background noise level must be measured in the absence of noise emitted from the use. (d) Notwithstanding compliance with (b) and (c) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12.00 midnight and 7.00am.	Agreed as per applicant’s Condition
(23) Noise – Mechanical Plant Noise associated with mechanical plant must not give rise to any one or more of the following: (a) Transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any residence or place of different occupancy (when in use). (b) An indoor LAeq sound pressure level contribution in any residence or place of different occupancy (when in use) greater than 3 dB(A) above the L90 background level in any octave band from 31.5 Hz to 8kHz centre frequencies inclusive between the hours of 7am to midnight and 0 dB (A) above the L90 background level in any octave band from 31.5 Hz to 8 kHz centre frequencies inclusive between the hours of midnight to 7am the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this subclause does not apply to any such frequencies.	Agreed as per applicant’s Condition
(24) Acoustic Report All of the recommendations of the Acoustics Report prepared by The Acoustic Group dated 14 August 2008 must be implemented during construction and use of the premises, including: (a) installation of sound locks for entry to first floor western balcony and the southern entry to the first floor eastern balcony; (b) use of RMS limiters on all amplification equipment (refer to condition 27) and setting of all limiters to comply with condition 22.	Agreed as per applicant’s Condition
(25) Additional Noise Conditions for Licensed Premises (c) If the acoustic consultants recommends that additional treatment or works be undertaken under condition (a)(ii) above, those recommendations must be: (i) submitted to Council with the noise measurements as required in (b)(ii) above; and (ii) implemented to Council's satisfaction within 60 days of receipt of the report recommending the works, or other such time as may be agreed to be reasonable by Council, having regard to the nature of the works recommended.	Agreed as per applicant’s Condition
(29) Noise – Additional Requirements (a) The internal doors leading to the first floor function area from the stairwell shall be kept closed at all time after 12 midnight, except where required for direct ingress/egress. These doors shall be fitted with automatic closers and will be acoustically treated. The stairwell leading from this entrance to the first floor function room shall be fitted with acoustic absorption material. (b) The external doors on the ground floor of the hotel (other than the doors on Hill St leading directly to the stairwell for the first floor function room) leading to and from internal areas of the licensed premises should be closed at all times after 10pm, except where required for direct ingress / egress and shall be fitted with automatic closers and be acoustically sealed. (c) The external doors on the first floor of the hotel leading from internal areas to the balconies should be closed at all times except when required for direct ingress/egress and shall be fitted with automatic closers and acoustic seals. (d) At no time shall the number of patrons on the first floor level eastern outdoor balcony exceed forty (40) and patron numbers and use shall be regulated as follows: (i) no more than 36 patrons are permitted prior to 11pm Sunday – Thursday; (ii) no more than 40 patrons are permitted prior to 12 midnight Friday, Saturday and days immediately preceding gazetted public holidays; (iii) no more than 25 patrons are permitted at any time after 11pm Sunday – Thursday or after 12 midnight Friday, Saturday and days immediately preceding gazetted public holidays, with the use past this time being limited to the southern end of the balcony for smoking only, to be supervised and enforced by a security guard, with entry to be via the southern doors through a sound lock with automatic door closers (except for disabled and emergency access, which may occur through the northern door). (e) At no time shall the number of patrons on the first level western outdoor balcony exceed eighteen (18) and use of this balcony is to cease at 12 midnight.	(29) Noise – Additoinal Requirements The external doors leading to and from internal areas of the licensed premises should be closed at all times, except where required for direct ingress / egress and shall be fitted with automatic closers and be acoustically sealed. At no time shall music or entertainment be provided in any of the outdoor areas. At no time shall the number of patrons on the first floor level eastern outdoor balcony exceed forty (40) ~~and that patrons.~~ At no time shall the number of patrons on the first and second level western outdoor balcony exceed ~~forty~~ eighteen (18) ~~and that patrons.~~ (Modification 8 December 2006)
(31) Speakers or Music Outside Any speakers installed and music played in any of the outdoor areas associated with the premises must be appropriately limited to ensure compliance with condition 22. Speakers must not be used, and music must not be played, in the outdoor dining area beyond 12 midnight, or on the first floor western balcony beyond 9pm..	Agreed as per applicant’s Condition”.
(32) Trees (d) The minimum plot size for the tree selection Japanese Maple is 200 litres.	(32) Trees (d) The minimum plot size for the tree selection Chinese Tallow tree ( Sapium sebiferum) is 200 litres. (current consent)

20 The respondent’s evidence was heard from:

Mr J Swan town planner
A number of residents from the apartments adjacent the site on the corner of Mary’s Place and Bourke Street and from the St Margaret’s home units opposite the site gave evidence at the commencement of the Hearing on site. About 90 written objections were tendered including from the Strata Plan 72979, The Ivy at St Margaret’s-.417 Bourke St, The Nichols Street Community Group, Mackillop Aged Care 180 Albion St, the Wesley Edward Eager Homeless Accommodation 348 Bourke St and a petition signed by 85 persons
A letter was tendered from Mr R Powell the owner of No.2 Clare St that has a bedroom attic window facing the hotel courtyard. The applicant had offered to soundproof the attic and double glaze the window. The owner said that is not practical as the windows are to catch cooling breezes and need to be open. His tenants in the terrace have a baby, and there is another bedroom window below the attic that also needs to be open for ventilation.

21 The applicant’s evidence was heard from:

Mr A Betros town planner
A letter was tendered from Mr J Herrman representing Nos 1 & 3 and 17 & 21 Clare St. The letter noted the proposed extension of hours and an interest in future redevelopment of their own properties, but mentioned neither support nor objection.
Mr S Cooper acoustic engineer.

22 The objectors’ concerns could be summarised as:

23 Mr Betros and Mr Swan had prepared a joint report about their differences and gave oral evidence. They had agreed inter alia:

If patrons were to drive to the premises, they would be likely to park to the south and west of the premises due to Flinders Street and Oxford Street acting as physical barriers to the east and north respectively.
Central Station is located 1 km walking distance from the hotel (via Bourke St and Foveaux St- the most direct route)
Kings Cross precinct is located 1.2km walking distance from the hotel (via Flinders St and Oxford St and Darlinghurst Road - the most direct route)
a map and table showing hours of operation for premises in the surrounding area. It showed of most relevance on the west side of Bourke St from opposite the site up to Taylor Square there are the Woolworths plus 3 takeaway food and one wine bar in the St Margaret’s courtyard, then on the street 5 small restaurants and a bottle shop that are all closed by midnight..
50m east on Hill St is the Flinders Hotel a 3am license fronting Flinders St, on the opposite side of Flinders St and close to Taylor Square, the Taxi Club and ARQ and then actually on Taylor Square about 250m north of the Beresford, are “T2” and Kinselas, all late night clubs adjacent the Oxford St strip.

24 In regard to the Condition 5 extension of trading hours, they agreed:

The Late Night Trading Premises Development Control Plan 2007 (LNTP DCP) applies to the site, and is a relevant matter for consideration under Section 79C of the (EP & A Act 1979) Environmental Planning and Assessment Act 1979.
The LNTP DCP identifies the site within a Local Centre Area and categorise it as a Category A Premises, because it is a hotel with a greater capacity than 120 patrons.
The Base Indoor Hours identified in the area is 10pm, with opportunity via trial periods to extend till Midnight, and the Base Outdoor Hours identified in the area is 8pm, with opportunity via trials to extend trading till 10pm.
It is agreed that one of the aims of the LNTP DCP is "Late trading hours are considered by the City of Sydney to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods."
The experts agree that there is no change to the approved operating hours for the ground floor of the hotel (internally).
There is no issue in relation to the 2nd floor as this area is restricted to staff and office use only
The proposed extended hours inside and outside are beyond those permitted by the DCP in this zone and for Late Night Management Areas for Category A Premises.
The premises have not operated and as such there is no demonstration of the performance of the premises or the Plan of Management including the Security Plan of Management.
Generally, Fridays and Saturdays are busier in terms of trading hours, pedestrian and vehicular activity, however, the DCP makes no differentiation between these evenings from the remainder of the week.

25 One matter that arose during the hearing is that although the hotel is in the Late Night Trading DCP area categorised “Local Centre”, the rear courtyard is actually in the “All Other Category A Premises” area. Both areas only allow outdoor facilities to 10pm, and indoor facilities 10pm but with a trial period midnight may be approved.

26 Mr Swan says therefore the courtyard is already allowed to trade to 11pm and the hotel indoors to 1am so neither should be extended any more. The impacts of concern will be in the streets with patrons coming and going and that will be largely out of the hotel’s control. The Plan of Management seeks to control nuisances by patrons coming and going. Until the hotel operates, the success of the management cannot be demonstrated.

27 Mr Betros says that if council approved it originally outside the 10pm and midnight close times without a trial, it must have considered impacts acceptable. The extensions asked for are with a trial and can be tested. He expects any impacts can be made acceptable because:

internally and in the courtyard Mr Cooper’s recommendations are accepted so the hotel itself will not cause impacts.
The function room will only be for pre-sold events or booked functions by invitation only, so there will not be a nightly surge of 400 extra patrons, and
Its limited number of late night events are reasonable.
Patrons in the streets will be controlled by the management plan .
The residential properties are well separated from the premises while entry/exit points are oriented away from residences.
The 1st floor can be effectively managed given its separate entrance and soundproof nature. The patron entry and exit point along Hill Street is well separated from residences while the pre-booked/ticketed nature of the use allows for manageable patron control.
The site is located near other late trading premises being 50m from the Flinders Hotel and within 250m of Taylor Square, ARQ nightclub and The Taxi Club. The site is associated with a former hotel use.
The premises will operate as a primarily dining based hotel and no concern has been raised with the daytime use, and deliveries and pick-ups will be done in daytime business hours.
It is soundproofed internally while external areas are appropriately managed in terms of patron numbers, time limitations and supervision. Patrons exiting the site are directed along primarily non-residential routes to Flinders and Bourke Streets to a designated taxi rank. Such measures are considered to achieve the intent of providing a 'buffer' to surrounding residential areas.
The LNTP DCP, which has more restrictive hours of operation was only a Draft at the time of submission of the modification proposal. Therefore, the draft was not a matter under the heads of consideration under Section 79c of the Environmental Planning and Assessment Act 1979.
It is further considered that the DCP is of limited relevance given that the Council approved the hotel without a trial period significantly beyond the DCP's recommended closing time by 3 hours internally and externally. The application of the DCP is therefore considered to be unreasonable and inappropriate.
Safety, security and crime prevention- the increased pedestrian and vehicular activity as well as licensed security associated with the hotel will significantly improve the existing conditions. The Police have raised no objection to the proposed hotel upgrade nor the 1 am closing.
Convenient location/public transport- the site lies in close proximity to the frequent and reliable bus services which run along Flinders and Oxford Streets while the intended taxi rank along either Flinders or Bourke Streets provides convenient access to public transport.

28 Mr Swan noted that in regard to the extended hours proposed in Condition 5, in the South Sydney LEP 1998 the site is zoned 10 Mixed Use (Appendix E) and Clause 21 sets out the relevant objectives. He says the proposal does not satisfy objective (g) and (h).

29 The proposal is a large premises, that seeks hours of operation beyond the existing character and future character as identified within strategic planning documents, and will have a detrimental impact on residential amenity.

30 Mr Swan also says under South Sydney Urban Design DCP 1997 Part B of the DCP at Section 3 sets out the objectives and performance criteria for ensuring that development respects, improves and enhances urban village character. The site is identified within the Surry Hills Urban Village. Clause 4 - Precinct 2, within Part F of the DCP identifies the site within a Mixed Use Transitional Zone (Appendix F). This category of precinct is usually located to act as a transitional area or buffer between late night trading areas and surrounding residential areas. The stated planning intent includes:

To protect the amenity of adjoining residential areas by providing a buffer.

31 In his view the proposal does not satisfy the Mixed Use Transitional Zone intent because it would allow a late night trading premises that must impact on adjoining residential areas, and therefore does not provide a buffer from those late night trading areas.

32 In regard to the City of Sydney Late Night Trading Premises DCP 2007, Mr Swan says the premises is identified as a Category A Premise (High Impact) within a Local Centre Area. The LNTP DCP which sets a maximum base trading closing time of 10pm with opportunity through trial periods to extend trading till midnight.

33 Therefore the proposal exceeds the applicable control, in that it seeks approval beyond that specified in the DCP, it is also important to note that even if the proposal was within a Late Management Area (eg along Oxford Street), or within a City Living Area (George Street, CBD), specified within the DCP the proposal would not comply.

34 The DCP lists a number of objectives, some of which Mr Swan says are not satisfied by the proposed changes to condition 5. They are:

identify appropriate locations and trading hours for late night trading premises;"

35 It is his view that the DCP went through extensive community consultation over a number of years, resulting in a DCP that has identified locations for late night trading premises. The subject site, which is identified as a Local Centre Area within the DCP should have a base trading closing time of 10pm with opportunity through trial periods to extend trading till midnight as appropriate.

(b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses;

36 It is his view that the subject site has been identified within a Local Centre Area because of its proximity to residential properties. The site is located within a Mixed Use Transitional area within South Sydney Urban Design DCP 1997 (See Part F, Pg 138 of DCP), where the planning intent is to encourage medium density urban housing and a range of compatible vibrant nonresidential uses, which "protect the amenity of adjoining residential areas by providing a buffer".

(m) Ensure a consistent approach to the assessment of applications for premises seeking night trading hours.

37 Mr Swan said a consistent approach has been applied to the assessment of DAs within the locality. If these extended hours are approved this would erode the application of the DCP that went through extensive community consultation. Council would have a flood of applications seeking extension of their DA's including Woolworths across the road, and a number of restaurants across the road in the St Margaret's Precinct.

38 There is only one premise in proximity which trades similar hours to that proposed, which is the Flinders Hotel. However this site is distinguishable because the pub is not located within the Mixed Use Transitional Area, where the planning intent is to encourage medium density urban housing and a range of compatible vibrant non-residential uses, which "protect the amenity of adjoining residential areas by providing a buffer".

39 The Flinders Hotel is a lot smaller than the Bereford and relies on an old liquor license. The Flinders Hotel is not adjacent a significant number of residential properties, is on a busy road (Flinders Street) and has operated over a long period of time prior to any of the relevant strategic planning documents. All other premises within the immediate vicinity comply with the Late Night Trading Premises DCP 2007.

40 Mr Swan says given the size of the Beresford, it has the potential to change the character of the area, if the extended hours are approved. It would have the potential to become a catalyst for further late night trading premises, especially the cluster of restaurants & wine bars across Bouke Street that all close by midnight

41 In regard to Condition 8 changes, Mr Swan says whilst the applicant has prepared a plan of management, it cannot deal with the disamenity the proposal will cause on local residents, with patrons dispersing throughout the area after closing. It is acknowledged that there is public transport available, however there will be a proportion of patrons that will drive, they will need to park in residential streets, which will impact and create a nuisance to these residents.

42 The security management plan, and the plan of management have not been prepared in accordance with the Late Night Trading Premises DCP 2007, which provides guidelines for preparing such a document (Appendix 2 of DCP). The document reflects the amended conditions sought by the applicant, therefore if the appeal is dismissed the condition should not be changed.

43 On Condition 24 Mr Swan is only concerned that it refers to a report that recommends matters the subject of this appeal. Therefore depending on the judgment, there maybe sections of the recommendation that are not approved.

44 On Condition 28, both Mr Betros and Mr Swan say they are satisfied that the existing condition is appropriate and should not be modified,

45 On condition 29 Mr Swan says he objects to it because of the non-compliance with the Late Night Trading Premises DCP for outdoor areas. in the Cooper Report (para 1, Pg 7) in that he says "Condition 29 could only be permitted if it were demonstrated that noise from the restaurant or the function area would satisfy the noise conditions of consent" . In this regard the hotel has not operated yet, therefore the applicant has not demonstrated that the noise from the Hotel would satisfy the noise conditions of consent.

46 Also at Para 2 & 3 (pg8) of Coopers report he identifies a window in an adjoining house, which would need to be acoustically upgraded. However the residence is not the subject of this application, therefore cannot be relied upon to be addressed, which puts doubt on the use of the first floor balcony.

47 Mr Swan objects to changes to condition 31 having read the Cooper report dated 14 August 2008. He agrees with him (para 3, pg 7) on no provision of entertainment in the outdoor areas. He also objects to the provision of speakers playing music beyond that already approved, eg 11 pm, because the hours sought to play music are beyond that recommended by the Late Night Trading Premises DCP. Also he notes that the applicant has removed reference to the public domain, and it should be retained.

48 On Condition 32, Mr Swan says according to the council’s arborist, the Acer is a slower growing and smaller tree species that requires a high quality horticultural environment to thrive. The Acer trees will be vulnerable to damage by the patrons of the hotel, and it is not expected that they will establish into the site as well as the Sapium.

Conclusions

49 Mr Betros agreed in oral evidence that the last orders for the kitchen for people in the courtyard would be 11.30pm. The food would need to be eaten and people depart or move inside by midnight. On a popular night the inside restaurant-trattoria may not have space.

50 Also he agreed this application did not change the existing approval to use the courtyard as a beer garden also. As a result on a popular night there could be 192 seated eating and 350-192=158 drinkers as well.

51 The respondent questioned whether it would be possible to reduce numbers to 92 diners as in draft condition 6 on the stroke of 11pm if there are 350 or even 150 to 200 people in the courtyard.

52 Mr Cooper’s calculations working backwards from the noise limits would allow a maximum of 56 persons dining in the courtyard and 36 under the overhang of the eastern 1st floor balcony between 11pm and midnight. He said he had not calculated for drinkers being there too.

53 On the last day of the hearing the applicant amended its condition to be diners only after 11pm.

54 I note from the current consent conditions there is no restriction of numbers in the courtyard and patrons can move to and from the bar and the courtyard. So except for the noise problems it would cause to nearby residents, on a popular night there could be 350 persons in the courtyard until 11pm. So the logistics of moving them all indoors or exiting them to the street remains.

55 Mr Cooper agreed that after midnight, the continuing roof top air-conditioning equipment would be heard by nearby residents in their apartments. His calculation made him confident that the noise insulation would keep it to 3dB over the normal background limit, he thought that would be acceptable. Since the hotel was allowed to trade to 1am, he assumed the same limit would be acceptable until 3am.

56 He agreed that some equipment on the roof cycled from stop to go and at start-up would be 5dB over normal background. It may need more insulation he said.

57 He thought that the air-conditioning equipment closest to the top floor apartments of the Mary’s Place units serve the ground floor bar that would close at 1am. So the equipment running until 3am would be further away.

58 In regard to the balconies and courtyard he was confident that the control on smokers’ numbers and where they stood would make acceptable the use of those areas in the times sought. Although smokers in conversation may be heard by residents, it should be low level and not a nuisance for the residents except for the terrace house at No.2 Clare St with its attic bedroom window.

59 In comparing the existing consent conditions to the modification application, one can see that the nuisance events for local residents should change, on a popular full capacity night,

350 patrons in the courtyard having to leave the premises at 11pm if the inside areas are full.
350 patrons in the inside ground floor areas having to leave the premises at 1am.
400 patrons in the function room upstairs also leaving the premises at 1am.

350 patrons in the courtyard in “beer garden mode only” having to leave the premises at 11pm if the inside areas are full, or,
158 drinkers and 100 diners in the courtyard having to leave the premises at 11pm if the inside areas are full.
92 diners in the courtyard having to leave the premises at midnight if the inside areas are full.
350 patrons in the ground floor areas having to leave the premises at 1am.
400 patrons in the function room upstairs having to leave the premises at 3am.

60 Under the current approval all the nuisance events can occur up to 1am plus dispersing time in the streets, in theory, almost 365 days per year.

61 Under the proposed modification, the nuisance events up to 1am, can occur, in theory, almost 365 days per year; plus the function room which could occur up to 3am plus dispersing time in the streets, up to 124 nights per year.

62 It is reasonable to assume full capacity of the premises will not be achieved almost 365 days per year, and that bookings of the function room even under the current consent are unlikely to exceed the proposed 124 nights per year.

63 I have formed the opinion that allowing the 92 diners to stay in the courtyard until midnight may be acceptable given the acoustic assessment. But moving 400 patrons out into the streets at 3am versus 1am just worsens what could already prove to be an unacceptable impact on nearby residents.

64 The applicant says that on function room nights all staff will remain on duty when the ground floor closes at 1am, in order to control patrons and 2 police officers will be on contract from NSW Police from midnight to 3am. I accept the respondent’s evidence and submissions that the hotel staff cannot control patrons in the street, especially those who are just happy and loudly fare-welling each other, or slamming car doors and starting engines of their own cars or taxis. The police will not be involved in such law abiding behaviour either, they are only there to prevent criminal behaviour.

65 The respondent says the existing conditions of consent allow hours of operation similar to the original Beresford Hotel before the alterations and enlargements. And as the respondent submits, that is a concession by the council when granting consent, without a trial period, in the knowledge that the Late Night DCP was already in process of consideration. Now that the DCP has been adopted and the location designated as transitional buffer area to residential with normal closing at 10pm, the extent of the concession can be perceived as great.

66 Any trading beyond 10pm is now subject to a trial period under the Late Night DCP. It is not appropriate to extend the hours further until the Beresford has operated as approved, and the impacts, if any, have been experienced by the residents and observed by the hotel operators and the council officers.

67 The applicant submits that the Late Night DCP provides that it shall not derogate from existing consents. Maintaining the existing consent has no element of derogation. A modification that extends the hours of operation and the likely impacts on residential amenity does not have to be agreed.

68 The applicant’s expert agreed that for presold ticketed events or invitee functions it is likely most persons would stay until the end. That means up to 400 people exiting around 3am plus whatever time they take to leave the vicinity and for nuisance to residents to subside.

69 The applicant says that I should assess this proposal on a merits basis without considering the existing consent that requires trading at 3 hours less than the consent and 5 hours less than its historical liquor licence prior to the renovations/additions.

70 The respondent reminds me that the Beresford Hotel of the past was much smaller and the major additions occurred because of the purchase and demolition of a number of terrace houses where the courtyard and part of the extensions now stand.

71 It seems to me the new Beresford is a much larger and more intensive recreation/entertainment facility than previously and in terms of its impact on residential amenity the original Beresford has little relevance. This is accentuated by the redevelopment of the St Margaret’s hospital and other sites for residential units that has added, I am told, about 250 dwellings to the immediate locality of the hotel. The control of other new commercial businesses in the same locality to close at midnight must have a bearing on the evidence of the environs of the hotel being quieter than Taylor Square after 11pm.

72 On a merits basis it seems obvious to me that the Beresford reopening with potentially 1100 patrons capacity and the potential for 350 of them to leave around 11pm from the courtyard and another 750 to leave at 1 am under the approved conditions must have some impact on residential amenity in its environs. Typically the hotel will not have those numbers except on specially popular events/occasions. But, even half those numbers coming and going on several nights per week up to 1am plus however long it takes for them to disperse in the streets will at least be noticeable to the residents compared to now.

73 Moving part of those impacts to 3am and later in the morning is a significant increase in impacts during the valued sleeping hours of residents. The residents agree they like the vitality of the area, but expect some reasonable limit on premises that generate the vitality so there is a balance between activity and quiet for businesses and residents to co-exist within acceptable parameters.

74 The extension of hours for the function room means (via calculation) a possible :

124

75 Such an increase in hours of operation must cause a significant increase in impacts on residential amenity, and should not be approved. The increase in use of the outdoor courtyard, and the increased use of the balconies for smokers may be demonstrated as feasible if the operation of the hotel under the current conditions of consent reveals no unacceptable impacts. I am not prepared to approve those modifications at this time.

76 At the end of the Hearing the parties were asked to advise which conditions are agreed even in the event of the extension of hours of operation being refused. Confirmation of this was received by e-Court document D08-016570 that said 7A, 22, 23, 24, 25 and 31 are agreed to be modified as per the applicant’s final text. Conditions 5, 6, 7, 8 and 29 and 32 are not.

77 In turning to the conditions, I have looked at conditions 24 and 31 and I agree with Mr Swan that they involve matters related to the extension of hours. In Condition 31 the use of speakers or the playing of music in the courtyard should cease at 11pm.

78 Because the respondent has agreed in Condition 31 to speakers and music in the courtyard up to 11pm, then that part of the respondent’s Condition 29 should change to match. In considering the applicant’s Condition 29, I see its function is to allow external doors to remain open at certain hours, and to allow the balconies to be used for smokers whilst the hotel is open……..that is until 1am and 3 am. It ignores potential impacts on No.2 Clare St. I have concluded the respondent’s Condition 29 should remain with the minor amendment of deleting the words “music or” so that is matches Condition 31.

79 In condition 24 the Acoustic Group report of 14 August 2008 does refer to matters that can apply to existing conditions and the proposed extension of hours. It would be unclear to simply adopt the agreed condition 24 and let the parties sort out what parts of the report apply and which do not, given the refusal of the extension of hours. The condition requires “all the recommendations of the Acoustics Group report………including: (a)…….sound locks……(b)……RMS limiters……”. For the condition to be self-executing, all the applicable recommendations need to be listed. Therefore I will defer issue of modified Conditions until the parties have forwarded a rewording of condition 24 to list the recommendations to be included.

80 In regard to condition 32, the applicant offered no substantial evidence to contradict Mr Swan’s advice from council’s arborist that the Chinese Tallow is a better tree for the practicalities of its location in the courtyard, than a Japanese Maple. I retain the existing condition.

81 Therefore the Orders of the Court are:

_______________________

K G Hoffman

Commissioner of the Court

CITATION:	Ashbian Nominees Pty Ltd v Sydney City Council [2008] NSWLEC 1436
PARTIES:	APPLICANT Ashbian Nominees Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10395 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Modification Application :- alterations and additions to the Beresford Hotel, a Revised Security Plan of Management, hours of operation, acoustic standards, landscaping, late night activity and impacts.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 City of Sydney Late Night Trading Premises Development Control Plan 2007 South Sydney Development Control Plan 1997: Urban Design
DATES OF HEARING:	02/09/2008, 03/09/2008 and 13/10/2008
DATE OF JUDGMENT:	30 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr N. Eastman, barrister Instructed by Gadens Lawyers RESPONDENT Mr P. Clay, barrister Instructed by Maddocks Lawyers