Cross Lakes Pty Limited v Sydney City Council

[2008] NSWLEC 1362

Land and Environment Court

of New South Wales

CITATION:

Cross Lakes Pty Limited v Sydney City Council [2008] NSWLEC 1362

PARTIES:

APPLICANT
Cross Lakes Pty Limited

RESPONDENT
Sydney City Council

FILE NUMBER(S):

11275 of 2007 and 11276 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Conditions, acoustic barrier, smokers areas in licensed premises

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

13/03/2008, 14/03/2008, 31/03/2008 and 26/08/2008

EX TEMPORE JUDGMENT DATE:

26 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister
instructed by Back, Schwartz Vaughan

RESPONDENT
Mrs P. Bruno, solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

26 August 2008

11275 of 2007 Cross Lakes Pty Limited v Sydney City
11276 of 2007 Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 Further to my judgment handed down on 29 May 2008, the parties have now tendered Exhibits 22 and 23 being final draft conditions of the respondent, Exhibits P and Q being updated plans of the applicant and Exhibits R and S being the applicant’s draft conditions. There are some variations between the two sets of conditions.

2 During evidence from the acoustic experts, Messrs Atkins and Cooper, Exhibit Q was hand-annotated to satisfy the respondent on the final form of the uppermost acoustic barrier on the first floor smokers’ terrace. Mr Atkins wanted another barrier-hood over the east wall of the terrace but had not redone calculations in order to dispute the new calculations done by Mr Cooper to show it is unnecessary. Mr Cooper said he was confident Exhibits P and Q would fulfil the findings in my judgment. I accept Mr Cooper’s assurance, knowing the trial period monitoring can require more acoustic barriers if warranted.

3 The parties agreed the updated drawings enabled part deletion of condition 2A in Exhibit S and 23 as annotated and also clarified condition 20 in both appeals. They also agreed to condition 1A, adding drawing 0543-104A dated August 2008 in Exhibits S and 23.

4 In condition 4D in Exhibits R and S, I confirm they are my conclusions as in paras 62 and 67 of the judgment, not that shown in Exhibits 22 and 23.

5 In Exhibit S, condition 20, the updated drawings in Exhibits P and Q, now satisfy my concern for clarity expressed in my judgment.

6 In addition, the council seeks condition 4C in both appeals to prevent pot plants, advertising banners, umbrellas, additional awnings and screens in the smokers’ terraces and courtyards. The applicant seeks to allow pot plants and umbrellas to soften the rather stark appearance of the smokers’ terraces. Whilst I do not specifically provide a condition to that effect, I exclude pot plants and umbrellas from condition 4C in both appeals but retain the rest of those conditions.

7 Therefore the orders of the Court are in appeal 11275 of 2007:

1. The appeal is upheld.
2. Development consent is granted for a smokers’ area as a courtyard on the ground floor of the Courthouse Hotel, 189 Oxford Street, Darlinghurst, as shown on drawings Nos. 0543-12 and –13A by Michael Stuart Architects as amended by and built and operated in accordance with the conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits 22, 23, P, Q, R, S.

8 The orders of the Court in appeal 11276 of 2007 are:

1. The appeal is upheld.
2. Development consent is granted for a smokers terrace at the Courthouse Hotel, 189 Oxford Street, Darlinghurst, as shown on drawings Nos. 0543-14 and -15B and -104A by Michael Stuart Architects as amended by and built and operated in accordance with the Conditions in Annexure ‘A’ hereto.
3. The exhibits are returned to the parties except Exhibits 22, 23, P, Q, R and S.

___________________

K G Hoffman
Commissioner of the Court
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