M G Planning Pty Ltd v Sydney City Council

[2006] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION:

M G Planning Pty Ltd v Sydney City Council [2006] NSWLEC 223

PARTIES:

APPLICANT
M G Planning Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

11326 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Alterations and change of use of a commercial property to a hotel, hours of operation, internal uses and number of patrons, noise amenity, public interest

LEGISLATION CITED:

South Sydney Development Control Plan 1997
Sydney (Heritage Conservation) Development Control Plan 1998
City of Sydney, Notification of Planning and Development Applications Development Control Plan 2005
City of Sydney Signage and Advertising Structures Development Control Plan 2005
Local Government Act 1993

DATES OF HEARING:

12-13/04/2006

EX TEMPORE JUDGMENT DATE:

04/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Austin, SC
SOLICITORS
JDK Legal

RESPONDENT
Mr P Clay, barrrister
Instructed by: Ms S Halls
Of: Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 April 2006

11326 of 2005 M G Planning Pty Ltd v Sydney City Council

JUDGMENT

This decision was given extemporaneously

and has been revised and edited prior to publication.

Background

1 This appeal is against conditions imposed on a development consent for alterations and change of use of a commercial property situated in Kings Cross. The council conditionally approved alterations to the former Westpac Bank building at 33-35, Darlinghurst Road, to allow its use as a hotel.

2 The property has an area of 333.5 sq m and is located on the north-western corner of Darlinghurst Road at its intersection with Springfield Plaza. This corner site has frontages to Darlinghurst Road, Springfield Plaza (pedestrian mall) and Earl Place. The neighbouring area to the north contains a mix of residential units.

3 The building it is part3/part4 storey with a basement level.

4 The approved use of the building allows:

• lower ground floor - storage and services;
• ground floor – main bar, kitchen and gaming room;
• first floor - lounge bar;
• second floor - cocktail bar.

5 All entry to the hotel is controlled through 2 doorways onto Darlinghurst Road.

6 A number of the conditions of consent were appealed, but conferencing between the parties reduced the contested matters to:

• hours of operation,
• internal uses and number of patrons;
• noise amenity;
• public interest.
Planning controls

South Sydney Local Environmental Plan 1998

7 The subject land is zoned 10 Mixed Use, and it is within Conservation Area No. 19 and Heritage Streetscape Area No. 4, and the proposal is permissible with consent.

South Sydney Development Control Plan 1997

8 The site is located within the Kings Cross Urban Village/Entertainment Precinct.

City of Sydney, Notification of Planning and Development Applications Development Control Plan 2005

City of Sydney Signage and Advertising Structures Development Control Plan 2005

The evidence

9 Detailed planning evidence on the behalf of council was presented by Ms K Freedman, town planner. For the applicant, Ms H Miller, consulting town planner presented evidence.

10 Other evidence was presented by:

● Sgt Fullilove, Licensing Unit/King's Cross Local Area Command;
● Mr J Duncan, company director and manager of the development;
● A number of neighbours, provided both oral and written objections, as contained in council’s bundle of documents and these have been considered.

11 The main issues raised by the neighbours’ concern disamenity to the neighbouring residential units from noise and anti-social behaviour.

12 The principal contested issue concerns the hours of operation. Condition 3 restricts the proposed operating hours from 10 a.m. to 12 midnight, with a 1 year trial period to 3 am, daily. The applicant accepts the concept of a trial period, but requests its extension to 5 a.m., to be consistent with other entertainment activities in this precinct.

13 Ms Miller supports the extension to 5 am, because she considers there are no identifiable amenity differences over this period and the applicant has agreed to conditions requiring implementation of a Plan of Management (POM), which deals with internal activity including noise control and patrons behaviour leaving the premises. The control measures include:

● uniformed security at main entrance at times entertainment is provided;
● uniformed security to conduct regular patrols around the hotel on Friday and Saturday nights, including residential streets to ensure patrons do not linger or loiter in the area or cause nuisance or annoyance to the neighbourhood;
● installation of surveillance cameras at the access points to the hotel, interior of the hotel and in the immediate facility of the hotel, including Springfield Plaza and Earl Place;
● directions to patrons leaving the premises;
● responsible service of alcohol;
● complaint resolution procedures;
● programmed closing of windows and doors.

14 In further support of the proposal, Ms Miller says there are a number of restaurants and nightclubs in the precinct which close at either 2 or 3 a.m. When this is coupled with patrons arriving at Kings Cross at this time, there is an apparent shortage of taxis because this is also the taxi change over period. Therefore as some patrons may have difficulty getting taxis, so the spreading of the closing hours of will likely reduce neighbourhood disamenity arising out of competition for limited, or inability to obtain taxis or public transport.

15 According to Ms Freedmans evidence, the main reasons for restricting the trial period till 3 a.m. are:

● proximity to residential development;
● saturation of late-night premises in the precinct.

16 She also refers to the fact that the site is within Precinct 3 -- Urban Village Centres, and it forms part of the Kings Cross Entertainment Precinct, where non-residential buildings are to be designed and specified to reduce their operational impact on adjacent residential areas, so as to ensure that development will not cause a public nuisance to local residents, or pose a risk to the locality by way of noise pollution, traffic movement and working hours.

17 Also that Part F, Section 4.1 "Security and Design" of the DCP states:

To ensure commercial development is designed to minimise opportunities for criminal and anti-social behaviour and maximise natural surveillance so that people feel safe at all times of the day and night.

18 In my assessment of these disparate positions, I note as a starting point that the police accept that a reasonable closing hour is 3 a.m., subject to conditions, which have been imposed and accepted. Sergeant Fullilove still does not support the extension to 5 a.m., because any extension is likely to generally prolong the opportunities for anti-social behaviour. However, he did not identify any significant safety or amenity issues to differentiate this extension period from 3 a.m. - 5 a.m.

19 Likewise, Ms Freedman was unable to identify any specific aspects relating to the extension period. She is aware that other entertainment activities, including alcohol service, operate in this precinct on a 24 hour basis. Also, council has a complaints register, but her checking of this register did not reveal any significant complaints in the 3 a.m. – 5 a.m. period.

20 This is generally consistent with the neighbours’ evidence, particularly that of Ms McCoy, who admitted that she had not experienced any difference in disamenity over this later, extension period. But she also agreed that it is possible that security and disturbance will likely be improved by the applicant's security patrols and camera surveillance, particularly of Springfield Plaza.

21 It is apparent from the evidence presented to the Court, that there is a set of planning controls, which provide guidelines for late night premises that are allowed in this entertainment precinct of Kings Cross. The comprehensive controls detail building design aspects for internal and external elements to minimise neighbourhood disamenity, together with associated public domain activity considerations.

22 It seems to me that the proposal has been subject to a comprehensive assessment by council planners according to the assessment report contained in council’s bundle of documents. This assessment has concluded that adequate design measures have been incorporated into the building alterations to allow consent on the basis of operating hours to 12 midnight, with an extension to 3 a.m. for a 12 month trial period.

23 Therefore, I accept that the 2 items identified by Ms Freedman have been satisfied for the 3 a.m. trial. However, as I have stated no substantive reasons were presented, which differentiated this extension period for me to conclude that it would represent an unreasonable risk of disamenity to neighbourhood or safety to persons in this vicinity, during the 12 months trial period. Instead, it seems to me, that security and amenity is likely to improve with the installation of surveillance equipment and introduction of security patrols during the extended period, particularly in Springfield Plaza.

24 I have also considered Mr Austin's submissions that the applicant will implement the Plan of Management, which offers a level of safeguard considering the complaints register mechanism that imposes "good neighbour" responsibilities on the hotel management. Also, further safeguards are provided via s 104 complaints under the Liquor Act 1982, which can respond reasonably quickly to any disamenity complaints that infringe the licensing conditions.

25 For these reasons then, I consider it reasonable in circumstances of this case, to allow the extension of operating hours until 5 a.m., over the approved trial period for 12 months. I understand from the conditions of consent that at the expiry of this period, the operating hours revert back to 12 midnight, unless a further application has been made and consent granted to the appropriate closing time, based on the results of the trial period.

26 The other issue canvassed during the appeal concerned the use of the ground floor and resultant number of patrons. This arose from the conditions of consent (6, 7, 8), which restricted the ground floor level of the premises for use as a Place of Public Entertainment (POPE) and also restricted the maximum number of people to not exceed 250.

27 The applicant objected to these conditions as likely to unreasonably restrict future use of this important ground floor area. However after discussions, the parties agreed to the revision of these conditions, which effectively prohibits live bands on the ground level and limits the volume of any live entertainment. From the evidence presented to the Court, I am satisfied that the revised and agreed condition is a reasonable outcome. In this regard I note that the conditions nevertheless require an application for approval under Section 68 of the Local Government Act 1993 for the use of any part of the premises as a place of public entertainment.

28 Insofar as the development attracted a significant number of objections, I also note that there is also a degree of support for the proposal. On balance, I am satisfied that the comprehensive conditions of consent require construction work to minimize external disamenity and subsequent monitoring and detailed assessment of the noise emissions from the hotel use, together with their fine tuning to achieve acceptable community standards, over the 12 months trial period. This, coupled with the increased security supervision and surveillance of the hotel and surrounding public domain, particularly Springfield Plaza, should result in a reasonable community outcome during the trial period. Final determination of the appropriate operating hours can then be determined.

29 For these reasons then, the Court orders are:

1. The appeal is upheld.

2. Development Application No. D/2005/1304 for alterations and change of use to the former Westpac Bank building at 33-35 Darlinghurst Road, Potts Point, is determined by the granting of development consent subject to the revision of conditions 3(b), 3(d), 6, 7, 8, 18, 20, 29 and 37 as detailed in Annexure ‘A’.

3. The exhibits other than Exhibits 2, 6, 7, B and C are returned.

___________________

R Hussey
Commissioner of the Court
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