C-INC Pty Ltd v Sydney City Council
[2006] NSWLEC 607
•27/09/2006
Land and Environment Court
of New South Wales
CITATION: C-INC Pty Ltd v Sydney City Council [2006] NSWLEC 607
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
C-INC Pty Limited
Sydney City CouncilFILE NUMBER(S): 10122 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Variation of conditions of consent for hotel extended trading hours, 1 year trial period, security arrangements, acoustic impacts. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1997CASES CITED: Back and Riggs Architects v Sydney City Council [2005] NSW LEC 214 DATES OF HEARING: 26/09/2006
DATE OF JUDGMENT:
09/27/2006LEGAL REPRESENTATIVES: APPLICANT
Mr S. Austin, QC
with Mr M. Seymour, barrister
istructed by JDK LegalRESPONDENT
Mr S. Kondilios, solicitor
Ms S. Halls, solicitor
of Maddocks
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
10122 of 2006 C-Inc Pty Limited v Sydney City Council27 September 2006
This decision was given extemporaneously. It has been revised and edited prior to publication.
Background.
JUDGMENT
1 This appeal was lodged against councils deemed refusal of a development application for 24-hour, 7-day trading at the existing Crest Hotel, which is located at 111-139Darlinghurst Road, Potts Point. Council subsequently granted conditional consent to the development and the appeal then was against some of the conditions of consent.
2 The appealed conditions generally relate to noise nuisance controls for the hotel activities and its patrons, the requirement for a trial period, security arrangements, whether the hours of operation should be for 23 or 24 hours daily and public interest considerations.
3 In order to address these issues, the parties agreed to Mr S Cooper being the Court appointed expert for acoustics. He undertook a detailed noise assessment of the hotel and its surrounds and found that noise emanating from the Peppermint Lounge nightclub was unsatisfactory. He recommended alternative conditions of consent to address this disamenity.
4 With regard to planning issues, the parties agreed to Mr R Chambers being the Court appointed expert and his detailed assessment is Exhibit 6.
5 After consideration of these CAE reports, further conferencing between the parties reduced the outstanding issues, including the acoustic issue, to the following matters, which I subsequently deal with.
The Site.
6 The Crest Hotel is located on the northern corner of Darlinghurst Road and Victoria Street. The premise contains a hotel consisting of :
· 3 levels of basement parking,
· ground floor containing the reception area for the hotel, the Goldfish Bowl Bar, Internet Café, Sports Bar, bottle shop, TAB and Gaming Lounge all fronting Darlinghurst Road and the Peppermint Lounge nightclub fronting Victoria Street.
· a Korean Bathhouse is located on the first floor,
· restaurant on the second floor,
· rooms for accommodation from the third to the 15th floors and plant room located on the 16th floor.
The Proposal.
7 The proposed 24/7 hours of operation are in accordance with the previous consent (U99-01472) granted by Council in March 2000 for extended 24 hour trading on the ground floor of Crest hotel, subject to a 1year trial period. That trial period expired in March 2001, although the hotel has continued to trade beyond its otherwise approved hours of 10 a.m. to 3 a.m.
8 In support of the application, the SEE states:
The application seeks to continue the 24 hour trading of the hotel in line with the consent granted under U99-01472. The premises have been operating those hours since consent was granted on 22 Mar 2000. The hours under the Liquor Licence have been amended to reflect the ability to trade 24 hours. There are other hotels in this part of King's Cross, which have consent to operate 24 hours, including the Vegas Hotel and the Empire Hotel.
The applicant wishes to operate the hours sought as the premises contain accommodation, used extensively by international and domestic tourists. In addition the ability to continue to trade 24 hours is sourt in order to remain competitive with other similar premises within the entertainment precinct.
The SEE also states:
The ground floor of the Crest Hotel, currently has development consent to operate from 10 a.m. to 3 a.m. daily. However, it is permitted to trade 24 hours, seven days a week under its liquor license. It is approved as a place of the entertainment, which includes live music in the Golf Fish Bowl and disc jockeys in the Peppermint Lounge.
A log book is kept to record all incidents. Patrolling patterns involve manning the main doors to Darlinghurst Road and Victoria Street with routine patrols every 30 minutes through the premises and along frontages of the hotel.Current security arrangements include one (1) licensed security guard patrolling the when it is open to trade seven (7) days a week. Two (2), additional security guards are employed on Friday and Saturday nights. One (1) guard is for, the Goldfish Bowl from 6 p.m. and one (1) for the Peppermint Lounge from 8:30 p.m.
9 The development application includes a Plan of Management (PoM), which details the operations of the hotel, noise control, staff and security arrangements, together with other management aspects.
Planning Controls.
South Sydney Local Environmental Plan 1998 . Under this LEP, the site is in the Mixed Use zone (Zone 10) and the proposal is permissible with consent.
South Sydney Development Control Plan 1997.
South Sydney Development Control Plan No 11 -Transport Guidelines for Development 1996.City of Sydney Notification of Planning and Development Applications Development Control Plan 2005.
The evidence.
10 As I have noted, Council granted conditional consent to the application, on the basis of a 2 year trial period. This is one of conditions challenged.
11 Insofar as Council's usual policy is to require a 1 year trial period for new and extended licensed premises, the applicant contended this was unnecessary and unreasonable because the Crest Hotel has been operating the proposed hours since 2000, which has provided an effective "trial period". During this period, the operations have been found to be substantially satisfactory.
12 On this basis, the applicant referred to as the matter of Back and Riggs Architects v Sydney City Council [2005] NSWLEC214, where Commissioner Bly decided that because that hotel was then presently able to trade 24 hours a day, seven days a week, and that those hours were common in the locality, that arrangement could continue and the requirement for a trial period (which had been required to as a condition of consent), was not warranted.
13 Even though Mr Chambers, initially supported the 2 year trial period, after further negotiations between the parties they came to the agreement that the usual 1 year trial period was acceptable in this case. Taking into account the Crest hotel operating history and the other outstanding issues of noise disamenity and security, I am satisfied that the 1 year period is reasonable to achieve Council's objectives for trial periods for new and extended operating hours of licensed premises.
14 An associated issue then concerns the proposed 24 hour trading cycle. Conditions to restrict the operating hours to a 23 hour cycle were imposed, so that the hotel would be required to close from 6 a.m. to 7 a.m. to enable cleaning of the various parts of the hotel and result in a simultaneous exodus of patrons onto the street, which would potentially reduce antisocial behaviour. This consequential, 23 hour trading cycle is supported by the Police Department, who consider it will assist in disbursing visitors from King's Cross.
15 In assessing the evidence, it is apparent that the main disamenity arises from late hour operation and noise generated from the Peppermint Lounge. The concern is that allowing extended trading hours will exacerbate this disamenity. However I am satisfied that Mr Cooper's acoustic assessment has clearly identified existing unsatisfactory noise generation from the use of the Peppermint Lounge. But the more stringent noise control conditions, which he has recommended, and have been agreed by the parties, should result in noise control being within acceptable community limits and the LAB licensing conditions.
16 On the basis of these conditions, I consider it reasonable to allow the Peppermint Lounge to operate for the extended hours from 3 a.m. to 5 a.m. for the 1 year trial period. If the trial is unsatisfactory, then the Peppermint Lounge hours revert back to the existing 3:00 a.m. closing time, but the new noise mitigation controls and security arrangements will remain. I particularly note that the conditions of consent require that "one set of the entrance/exit doors to the Peppermint Lounge nightclub are closed at all times".
17 This trading cycle aspect has been assessed by Mr Chambers, who has taken into account the general 24 hour operational context of the hotel, and on the basis of the trial period, he supports the 24 hour trading cycle. Taking into account, the evidence of the Crest Hotels satisfactory operating record over the period from 2000, I consider it reasonable to allow the general 24 hour trading for the trial period (except for the Peppermint Lounge), noting that this is consistent with its liquor license.
18 The next objection to the conditions concerns those related to the security arrangements. The council condition requires:
At least two security guards shall be present between 9 p.m. and 8 a.m., and at least one security guard at all other times, seven days a week and shall wear a uniform that clearly identified that they are security persons to ensure accountability.
19 Alternatively the applicant proposes:
At least two security guard shall be present between 9 p.m. and 8 a.m., whilst Peppermint Lounge is trading, and at least one security guard at all other times, seven days a week and shall wear a uniform that clearly identified that they are security person to ensure accountability.
20 Mr Chambers assessed this issue and relied to a large extent on the provisions of the PoM, wherein it states that:
15. (a) A member of staff who is also a licensed security agent shall be on duty at all times the business is trading.
(b) In addition, there shall be, at least, two uniform security personnel stationed at the premises on Friday and Saturday night from 9 p.m. until 30 minutes after the business closes and all patrons have left the premises. Those personnel shall carry out the security procedures in accordance with clause 19 hereunder. Standard security hours Friday and Saturday is a one guard, extra guard 9 p.m. to 8 a.m.. Sunday till Thursday one guard 5 p.m. till 8 a.m., extra guard 9 p.m. till 8 a.m. if required.
21 From the evidence, the main concerns are that the Peppermint Lounge activities are subject to security at all times of its operations. It appears that the operation of the various bars fronting Darlinghurst Road have been of less concern, but Mr Chambers says that each of the Gold Fish Bowl and Sports Bar should be fully supervised during their operating times.
22 Mr Austin submits that the requirement for individual security guards on each of these Darlinghurst Road bars is unreasonable, particularly on the less busy nights, when there is an overall security supervisor together with another roving security person. In support of the submissions, he refers to the existing security rosters, which are contained in Exhibit A (Tab 10) that demonstrate the managements responsible attitude to employment of sufficient security guards as required. This approach has avoided any significant complaints against the hotel, including those brought under s104 of the Liquor Act.
23 Having considered these competing positions, it seems to me that Mr Chambers approach is very conservative and limits the evaluation of the cost effectiveness of the proposed security arrangements during the one year trial period. I am satisfied that the during the operations of the Peppermint Lounge and for a reasonable period after its closure, it should have security guard presence. The other Darlinghurst Road bars should then be covered the internal security supervisor and at least one additional security guard on the less busy nights, except when there are special events. Then on Thursday Friday and Saturdays two security guards should be provided for this area.
24 As I noted previously, the acoustic issues were addressed by Mr Cooper and his recommended conditions agreed by the parties. On this basis I accept that his revised conditions are appropriate for replacement of the original conditions imposed by Council. In summary, these conditions require limitations on the noise generated from the Peppermint Lounge and for this to be subject to detailed on-site testing by a qualified acoustic expert. Then performance based restrictions are to be maintained in accordance with the agreed noise criteria and the Liquor Licensing Board noise exposure requirements.
25 The main public interest considerations concerns the objections from nearby residents about noise disamenity from the Peppermint Lounge and antisocial behaviour from some patrons of the hotel and other licensed establishments in the area. It seems to me that the more stringent noise control conditions recommended by Mr Cooper should address these objections. Furthermore, the requirement for one set of doors to the Peppermint Lounge to be kept closed at all times together with its constant supervision should be satisfactory to evaluate the performance of the hotel during the one year trial period.
Conclusions.
26 Having carefully considered the evidence, the submissions and undertaken a view I am satisfied that it is reasonable to allow the appealed conditions of councils development consent to be varied, so as to enable a reasonable evaluation of the performance of the Crest Hotel during its 12 months trial period. Otherwise the hotel reverts back to its existing consent and operating conditions.
27 Insofar as suggestions were made that licensed premises should now operate on the basis of a 23 hour cycle so that there is a closed down period, no substantive evidence was presented to the Court which analyses relative benefits and disbenefits of such a policy and which incorporates relevant public participation input. Notwithstanding this, such a policy may have benefits in terms of the control of antisocial behaviour identified by the residents and police, however the making of such a policy is outside the court's responsibility, in my opinion.
28 In summary then, I am satisfied that the appeal should be upheld and the conditions for the trial period, 24 hour operating cycle, security guard arrangements and noise control varied and intend to make the following orders.
Court Orders
- 1 The appeal is upheld.
2 Development Application No/2005/2206 is determined by the granting of development consent subject to the revision of conditions 2, 3, 4(a), 4(d), 5(a1), 5(e), 9, 17, 18, and 20 detailed in Annexure A.
3 Exhibits except exhibits 4, 6 and B be returned.
___________________
- R Hussey
Commissioner of the Court
ljr
13/10/2006 - Amendment to the Applicants Representatives - Paragraph(s) cover sheet
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