Gordon & Valich v Sydney City Council

[2008] NSWLEC 1192

Land and Environment Court

of New South Wales

CITATION:	Gordon & Valich v Sydney City Council [2008] NSWLEC 1192
PARTIES:	Applicant: Gordon & Valich Pty Ltd Respondent: Council of the City of Sydney
FILE NUMBER(S):	10817 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- planning principle on view loss, lack of on-site parking, noise
CASES CITED:	Tenacity Consulting v Warringah [2004] NSWLEC 140
DATES OF HEARING:	19/05/2008, 20/05/2008 and 21/05/2008
DATE OF JUDGMENT:	23 May 2008
LEGAL REPRESENTATIVES:	Applicant: Mr I Hemmings, barrister instructed by Mr J Hones, solicitor of Hones La Hood Respondent: Mr A Galasso SC, instructed by Ms C Rose, solicitor of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

23 May 2008

10817 of 2007 Gordon & Valich Pty Ltd v Council of the City of Sydney

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by the Council of the City of Sydney (the council) of a development application to alter and extend the Altamont Hotel at 207-211 Darlinghurst Road, Darlinghurst.

The existing hotel

2 The existing Altamont Hotel is on a site of about 700m2, at the corner of Darlinghurst Road and Farrell Avenue. The rear of the site adjoins Kirketon Road. There is a fall of about 3m to the rear. A two-storey “villa” with a hipped roof and a setback of about 9m from the street now occupies the site. A single-storey “pavilion” has been erected in the front setback and a three-storey addition in the rear. The ground floor is used as a restaurant, while the upper floors are used as bedrooms.

3 The site is close to William Street and Kings Cross. Immediately to the south is a four-storey medical centre, to the south of which is 221 Darlinghurst Road, a six-storey apartment building with a swimming pool on the roof, called the Westbury Apartments. To the north, on the northern corner of Darlinghurst Road and Farrell Avenue, is 201-205 Darlinghurst Road, a three-storey commercial and residential building. To the east, on the eastern side of Darlinghurst Road is a 15-storey apartment building, known as “Top of the Town”. On the corner of Kirketon Road and Farrell Avenue is 5-15 Kirketon Road, a ten-storey apartment building, called the Palisades.

The proposed alterations and extensions

4 The applicant proposes to retain the existing glazed pavilion and villa. The building to the rear is to be demolished and a new four-storey building with a covered roof terrace is proposed in its place. The development is to be used as a tourist hotel and restaurant, which is its current use, albeit at a smaller scale.

5 In 2003 the council granted deferred commencement consent for a seven-storey apartment building containing 23 apartments and parking for 38 cars for the site. That application relied on total demolition and rebuilding. The applicant satisfied the deferred commencement conditions in 2005 and was issued with an operational consent, which is still valid. No work has commenced.

6 The applicant lodged the development application, which is the subject of this appeal in May 2007. Following notification, the council received eleven submissions. In August 2007 the applicant lodged an appeal against deemed refusal. The council refused the application in November 2007. The applicant received leave to amend the proposal and the council renotified it in February 2008. The second notification elicited 16 submissions.

Relevant planning instruments and policies

7 The South Sydney Local Environmental Plan 1998 zones this site Mixed Uses 10. Development Control Plan 1997 (Urban Design); Sydney Heritage Development Control Plan 2006; City of Sydney Visitor and Tourist Accommodation Development Control Plan 2006; City of Sydney Access Development Control Plan 2004; and Development Control Plan 11 – Transport Guidelines for Development 1996 (DCP 11) apply to the site. Of these, only DCP 11 is relevant to the matters in contention.

Matters in contention

8 The council submitted its Amended Statement of Contentions dated 6 March 2008 listing eight matters in contention. At the commencement of the hearing, the council’s advocate, Mr Adrian Galasso SC, identified the following four matters that remained in contention:

· Noise disturbance from the roof terrace.

· View loss from the Westbury Apartments.

· Inadequate parking.

· Unsatisfactory disabled access.

9 The last issue was resolved between the experts during the hearing, leaving three issues for debate.

The objectors’ concerns

10 Ms Robyn Hall, who lives at 24 Rosebank Street, said that she was concerned about the proposal’s height, lack of parking and noise. In addition she feared the impact of construction noise and traffic. Ms Bianca Pace, who lives at unit 9, 12-20 Rosebank Street, said that her main concerns were noise and traffic. Noise and congestion were already bad and the extension of the hotel without additional parking would only make them worse. Ms Amanda Hooton, who lives at unit 7, 10-12 Farrell Avenue, said that she agreed with the comments about traffic and parking. Her main concern, however, was with noise coming from the proposed roof terrace. She questioned the conclusions of the applicant’s acoustic report, which concluded that the noise from 32 people using the roof terrace would not disturb residents nearby. She did not trust management plans and preferred physical measures to reduce noise disturbance.

11 Mr Hamish Bowman, who lives at unit 8, 10-12 Farrell Avenue, said that he was concerned with noise and traffic from the nightclub that he believed was proposed in the basement. The Reverend Stephen Swift, who lives at unit 5, 15 Farrell Avenue (the Palisades) was mainly concerned about the nightclub. Mr Phillip Summerbell, who lives at unit 20 in the same building, said that he was concerned about the roof terrace and the nightclub. (However, the application does not include a nightclub, so the objectors’ concerns with regard to the nightclub are unfounded.)

12 Mr Garry Cameron, who lives at unit 7, 201 Darlinghurst Road, said that he was concerned about noise and lack of parking. Mr Chris Shrosbee, who lives at unit 507, 221 Darlinghurst Road (the Westbury Apartments) said that he was concerned about the lack of parking; however, his main concern was to maintain his present views. Mr Ian Bruce, who lives at unit 4, 2 Farrell Avenue, said that he was concerned about lack of parking, height and the roof terrace.

13 The objectors’ concerns related to noise, loss of view and lack of parking. Since these are also the matters in contention nominated by Mr Galasso, they are discussed below.

Noise from the roof terrace

14 It was common ground (as well as common sense) that the only source of noise disturbance by the proposal would be from the use of the roof terrace.

15 Mr Brian Clarke, the applicant’s acoustic consultant, gave evidence. Mr Clarke had assumed that the maximum number of people on the roof terrace would be 32. (A Noise Management Plan attached to this consent limits the number of people on the roof terrace to 32.) The highest noise level due to people talking on the roof terrace would be heard at 5-15 Farrell Avenue (the Palisades) and would be 50 dBA. Other vulnerable dwellings are at 205-210 Darlinghurst Road, 106-110 Darlinghurst Road, and 24A Kirketon Road; however, these would receive less noise than the Palisades. The background noise, referred to as the Rating Background Level (RBL) at the rear of the site was measured as 62 dBA between 7am and 6pm; and 61 dBA between 6pm and 10pm. The background noise would be higher at the front, being on Darlinghurst Road. Given that in the worst affected dwelling the noise from the roof terrace is predicted to be 11 dBA below the background noise, Mr Clarke concluded that the noise impact would be acceptable.

16 Despite the above findings, the objectors are still concerned about noise from the roof terrace, because they do not trust that the Noise Management Plan will be strictly enforced. To meet this objection, Mr Clarke calculated noise levels on the assumption of a noise barrier surrounding the roof terrace. He found that a noise barrier would reduce the noise level at the Palisades from 50 dBA to 45 dBA. There would be an increase of the noise level from 45 dBA to 47 dBA at 205-210 Darlinghurst; however, the background noise in Darlinghurst Road is likely to be higher than at the rear of the site, so the noise disturbance at 205-210 Darlinghurst Road is still likely to be less than at the Palisades after the addition of a noise barrier.

17 The above evidence leads to three conclusions:

· If the Noise Management Plan is enforced and in the absence of a noise barrier, the noise impact at the most affected nearby dwelling is 11 dBA below RBL.

· The noise barrier reduces the noise level at the most affected nearby dwelling by a further 5 dBA (ie 16 dBA below RBL).

· If the Noise Management Plan is not enforced at all times (for example there are more than 32 people on the roof terrace or they speak more loudly than Mr Clarke had assumed), with a noise barrier the noise level at the most affected nearby dwelling is still likely to be significantly below RBL. The noise barrier thus acts as a shield against lack of supervision and poor behaviour that the objectors fear would occur.

18 I note that the council submitted that the roof terrace should be deleted from the application because it is not essential and is an irritant to people living nearby. It seems to me, however, that in the light of the above acoustic evidence, such a change to the proposal would not be justified. The proposal includes the acoustic barrier, and this should to a large extent allay the fears of the objectors.

View loss from the Westbury Apartments

19 The Court visited three apartments at the Westbury Apartments. The three apartments look north along the side boundary. Mr Shrosbee, who lives in unit 507, has a view to the north and northwest. To the northwest he sees the Harbour Bridge and the Opera House. He will retain these iconic views, though there will be some obstruction of the outlook towards Kings Cross. I consider the impact on his view to be minor.

20 Unit 406 belongs to an objector, Ms Cindy Laing, who did not give oral evidence. That apartment has only limited outlook, which will not be affected by the proposal.

21 The owner or occupant of unit 508 did not object. That apartment obtains a view of the Harbour Bridge and the Opera House. The proposal may affect the view of the Opera House, though not of the Harbour Bridge. The view of the Opera House, though of an icon, is not a truly iconic view, as the sails are seen against a background of buildings and not the sky or water, as they are from unit 508. For this reason I consider the impact moderate rather than severe.

22 There was no objection from unit 509 and the Court had no access to it. In my opinion, this apartment is not likely to have significant views, though without seeing it one cannot be certain.

23 In the council’s submission, the view impact is a second reason for deleting the roof terrace, the roof of which is responsible for the view impact. In supporting his submission, Mr Galasso referred to the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140, where the Court dealt with assessing view impact in four steps.

· The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

· The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

· The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

· The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

24 The planning experts were Mr Neil Ingham, for the applicant, and Mr Aaron Sutherland, for the council. In their joint report they agreed that “the height control is not now exceeded”. I note that while the height control is 18m, there are buildings in the immediate vicinity that are 15-storey, ten-storey and six-storey high. I do not think that a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on views. The view from unit 508 is a side view and therefore difficult to protect. I conclude that the proposal’s view impact is acceptable.

Parking

25 The existing Altamont Hotel provides three parking spaces, of which one is used as a loading dock. No change is proposed to this despite the fact that the number of rooms is increased threefold from 14 to 42. The council’s Traffic Unit concluded that two parking spaces were acceptable. Despite this, Mr Sutherland told the Court that he saw no justification for the lack of on-site parking. The majority of objectors were also concerned about this.

26 Mr Graham Pindar, a traffic engineer who gave evidence in the applicant’s case, considered the lack of additional on-site parking acceptable. Since he based his opinion on DCP 11, it is worthwhile to turn to that document. DCP 11 contains “guideline rates” for parking rather than the more usual “minimum standards”. The guideline rate for tourist hotels is one parking space for four hotel rooms. Under cl 3.2 the DCP contains some advice on departures from the guideline rates, which suggests that under-provision of parking is more favoured than over-provision. For this reason, some people consider the guideline rates as a maximum requirement; however, a strict reading of the text does not support this interpretation.

27 Clause 3.2.1 contains the criteria that support a reduction in on-site parking. There are eleven criteria, not all of which are relevant to this application. The availability of public transport is one criterion on which the site scores highly, given the proximity of Kings Cross Station and numerous bus stops. The DCP includes the provision of credits for existing developments without parking, where the developments are extended rather than replaced. Finally, the DCP allows for car parking to be provided by leasing permanent spaces in nearby parking stations.

28 In Mr Pindar’s opinion, DCP 11 justifies his conclusion that the existing provision of two car spaces is acceptable despite the increase in the number of bedrooms in the proposal. I note that the DCP has an emphasis on public as against private transport. Moreover, I see no possible harm to the public interest if no additional on-site parking is provided. The interest of the objectors, who all live nearby, is best served by the proposal having no additional parking. This is because on-site parking would bring additional traffic to the site. Access to it would have to be from Farrell Avenue or Kirketon Road, both of which are narrow and already congested. On the other hand, if there were no parking, the hotel guests would have to arrive by taxi or other forms of public transport via Darlinghurst Road. Visitors to Sydney who want to drive to their accommodation would choose some other hotel, possibly further out from the CBD.

29 I do not think that the above argument holds in areas where there is unrestricted parking in the surrounding streets and hotel guests could take it up at the expense of residents. In this case, however, all the streets have time-limited parking, mostly up to a maximum of one hour. Only residents with parking stickers are exempt from the time limits. The odd driving guest that would want to stay in this hotel could not compete with the residents for the available parking and would have to park at the nearest parking station.

30 I note that the council suggested a condition requiring the applicant to lease two permanent spaces at the nearest parking station for hotel guests. The applicant submitted that this is not necessary. I have not imposed the condition because it seems to me a waste of resources. In the event that a guest does need a parking space, that guest can lease the space in the parking station directly. For those periods when there are no guests requiring parking (likely to be the majority of times), the spaces can be used by others.

31 I am strengthened in the above conclusion by the evidence of the Altamont Hotel’s manager, Mr Paul Fischmann. Mr Fischmann told the Court that the hotel does not now provide parking and is frequently at 100% occupancy. Guests arrive from the airport by taxi, shuttle bus or train. In cross examination he agreed that he had not surveyed the hotel’s guests on their parking needs. I do not think that this weakens his evidence. If neither the surrounding streets nor the hotel offers any parking, it is unlikely that the hotel guests would have a car. If they did and were unhappy about lack of parking, Mr Fischmann would soon hear about it. None of the above suggests that people staying in hotels do not have cars. However, self-selection ensures that those who have cars make an enquiry before booking and stay at hotels that have parking spaces.

32 For the above reasons, I accept Mr Pindar’s evidence that the lack of additional on-site parking in this proposal is acceptable. As noted above, this is also the opinion of the council’s Traffic Unit.

Conclusions

33 The council’s three reasons for opposing the application were noise, view loss and lack of parking. With the addition of a noise barrier around the roof terrace, there is unlikely to be any noise disturbance of nearby residents. The proposal complies with the height limit and has only a moderate impact on the view from one apartment obtained through a side boundary. The lack of on-site parking will discourage driving guests from staying at this hotel, will not add to the existing congestion in the surrounding narrow side streets and will not affect the availability of on-street parking in the vicinity. The appeal is therefore upheld.

Condition 11 - Noise

34 The applicant objected to part of this condition because it referred to L90 noise level rather than LAeq(15 minute), which Mr Clarke’s report used. I have not amended the condition for two reasons. First, the condition is a standard formulation by the council and a different formulation just for this proposal would make policing more difficult. Second, the acoustic evidence suggests that the applicant will have no problem complying with the condition as it is.

Or d ers

1. The appeal is upheld.

2. Development application to alter and extend the Altamont Hotel at 207-211 Darlinghurst Road, Darlinghurst is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 6, A and M.

____________________
Dr John Roseth
Senior Commissioner