McHugh Holdings Pty Ltd v Sydney City Council

[2007] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:

McHugh Holdings Pty Ltd v Sydney City Council [2007] NSWLEC 194

PARTIES:

APPLICANT
McHugh Holdings Pty Limited

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10807 and 10808 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- hotel modifications, hours of operation, amenity impacts.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998

DATES OF HEARING:

1/03/2007 and 7/03/2007

 
DATE OF JUDGMENT: 

12 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister
instructed by Mr B. Bulford
of Bruce Stuart Dimarco Lawyers

RESPONDENT
Mr S. Konilios, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

12 April 2007

10807 of 2007 McHugh Holdings Pty Limted v Sydney
10808 of 2007 City Council

JUDGMENT

Introduction

1 These two appeals involve the refurbishment of the existing hotel known as "Kinselas" ("the hotel") at 383 - 387 Bourke St. Darlinghurst. The refurbishment is variously for the three levels of the hotel including a proposed nightclub on the second floor.

2 The site of the hotel is zoned Mixed Uses under South Sydney Local Environmental Plan 1998 in which zone hotels are permissible with development consent.

Ground floor refurbishment - consent orders

3 The first appeal (10808 of 2006) relates to Development Application No.D/2006/997, which is for the refurbishment of the ground floor of the hotel including internal and external modifications. This application is now no longer in dispute the parties having entered into consent orders involving the upholding of the appeal and the granting of development consent subject to a number of conditions [Exhibit 1]. Whilst there was some resident opposition to these works, I have not been persuaded that the consent here sought should not be granted.

First and second floor refurbishment - hours of operation

4 The second appeal (10807 of 2006) relates to Development Application No. D/2006/1061, which is for internal modifications to the first and second floor levels of the hotel mainly involving the fitout of the second floor for use as a public entertainment area. The council approved this development application on 23 October 2006 subject to a number of conditions. These conditions include an agreed condition that limits the second floor nightclub to a maximum of 280 patrons. This is in addition to the presently approved capacity of the ground and first floors of 326 patrons, which operate as a Place of Public Entertainment. The conditions also limit the hours of operation of the hotel.

Original consent

5 On 8 December 1999 development consent was granted (DA No. 0907/99) in relation to the operating hours of the hotel’s two upper floors to the effect that it could trade for 24 hours per day on a trial basis for 12 months and that subsequently the hours of operation would revert to 10 a.m. to 3 a.m. Mondays to Saturdays and 10 a.m. to midnight on Sundays.

6 It was submitted on behalf of the applicant that, notwithstanding the trial period, the entire hotel has traded 24 hours per day seven days per week since the granting of development consent in 1999. Conversely the respondent submitted that, based upon observations by some residents the hotel regularly closes at 3 a.m.

7 The applicant acknowledged that whilst the hotel closes from time to time for various requirements including cleaning, trading was effectively continuous and that this continuity of trading can be utilised by the Court to inform the assessment process.

Public submissions

8 The applications were notified in accordance with Council's Notification of Planning and Development Applications Development Control Plan 2005 and more than 30 submissions objecting to the hotel modifications were received. The main areas of concern expressed relate to the additional noise likely to be generated from the nightclub on the second floor. Other concerns involve heritage impacts and the likely increase in antisocial behaviour resulting from the increased number of hotel patrons in the locality generally including queuing for admission to the nightclub, late-night conversations, music from cars etc.

9 When the hearing began on-site the Court heard from nine residents who live in nearby dwellings or who have commercial interests in the area and who elaborated on these concerns. The main concern was the likelihood of increased antisocial behaviour in the nearby residential areas including damage to property and noise resulting in sleep disturbance as a consequence of the significant increase in the hotel's capacity.

Expert evidence

10 The Court was assisted by the expert town planning evidence provided on behalf of the respondent Council by Mr M Solomon and on behalf of the applicant by Mr J. Lidis. Expert acoustic evidence was provided on behalf of the respondent Council by Mr J Hollier and on behalf of the applicant by Mr S. Cooper.

11 According to the applicant's statement of issues the second appeal is against conditions (3), (5), (9), (10), (12), (13), (14) and (33). As a consequence of the further consideration of these conditions in the light of the expert evidence, a number of changes were made resulting in the issues associated with all of these conditions except condition (5) being resolved.

Hours of operation

12 Condition (5), is as follows:

(5) HOURS OF OPERATION - MINOR DEVELOPMENT
The hours of operation of the entire premises are restricted to:
Sundays 10.00 a.m. and 12.00 midnight.
Mondays to Saturdays 10.00 a.m. and 3.00 a.m. the following day.

13 The applicant seeks the deletion of this condition such that the hotel can trade 24 hours per day seven days per week, this being an arrangement available to a number of other hotels and nightclubs in the Taylor Square area. Despite this, the applicant has no objection to a condition imposing these hours subject to there being a one-year trial period for 24 hour trading.

Trial period

14 Whilst Mr Lidis did not think that it was necessary he believed that a trial period would establish that possible impacts associated with the hotel trading on a 24-hour basis would be reasonable in the circumstances. To this end the applicant has proffered an alternate condition (5).

15 This condition provides, in condition (5)(b) that the second floor of the premises can operate from 5 a.m. to 3 p.m. the next day, seven days a week all year. Condition (5)(c) provides that despite condition (5)(b) the second floor of the premises may operate 24 hours a day seven days a week for a one-year trial period. At the end of the trial period operating hours will revert to 3 p.m. enclosure. Prior to the end of the trial period the applicant can apply to the council for the continuation of 24 hour trading.

Noise conditions

16 Agreed conditions (9), (10) and (12) detail various aspects of noise control and noise verification for the hotel. They are designed to protect nearby residential amenity and importantly include a requirement that there be no transmission of offensive noise in accordance with the Protection of the Environment Operations Act 1997. Any noise from the hotel must not be audible within any habitable room of any residential property between the hours of 12 midnight and 7 a.m. Verification of acoustic compliance is also required.

Plan of management

17 Agreed condition (3) requires the preparation of a plan of management to address all of the hotel's operational and management procedures and submission to the council for approval. This plan is required to ensure the premises can operate without disturbance to the surrounding locality. It is to deal with footpath queuing management, hours of operation, noise, security management, and dealing with complaints.

Noise from the hotel

18 Regarding the residents' concerns about noise generated from within the hotel itself (including mechanical plant), there is no issue between the acoustic experts in relation to the proposed noise mitigation conditions, which are designed to protect nearby residential amenity. These conditions require that there be no transmission of offensive noise to nearby residential properties and that there be no audible noise within any habitable room of any residential property between the hours of 12 midnight and 7 a.m. Verification of acoustic compliance is required. Despite this, should any noise concerns for residents arise, the provisions of the proposed plan of management will also be available for the resolution of such concerns.

19 In these circumstances and taking into account that the council is no longer concerned about noise, I am satisfied that the anticipated compliance with the noise control conditions should ensure no unreasonable amenity impacts associated with noise generated from within the hotel should arise.

Antisocial behaviour

20 As indicated above a number of resident objectors have serious concerns about existing late-night antisocial behaviour in the vicinity of the hotel although some residents conceded that that the present operations of the hotel are not really a problem. I understand the resident's concerns and I accept that there is a possibility that with additional hotel patrons departing the premises, this could be worsened. Queuing for entry into the nightclub could also be problematical.

21 However, as is recorded in the council report dated 28 June 2006, although there are incidences of antisocial behaviour in the environs, there are no recorded complaints against the hotel itself relating to noise or patron behaviour in the last 12 months. In addition the NSW Police (Licensing) have recorded no adverse issues that raise any significant concern in relation to the hotel and raise no objection to the renewal of the Place of Public Entertainment Licence.

22 Despite this, Mr Solomon supported council's contention that the additional 280 patrons indicated a need for the hotel to close at 3 a.m. so as to give the residents living nearby some respite. Mr Lidis disagreed, explaining that the nearby residential developments would be disadvantaged by a 3 a.m. closure because this does not facilitate the staggering of departures, as would be the case for 24-hour opening. In other words, patrons can and will leave the hotel when they feel like it. This is to be contrasted with a likely significant departure of patrons, some of whom would leave begrudgingly at around 3 a.m. thus having a potentially greater impact on residential amenity.

23 The Taylor Square locality in which Kinselas is located is and has been for some time known locally and indeed internationally as an "open all hours" entertainment and recreation destination. Establishments of the kind now proposed at Kinselas, operate here 24 hours per day seven days per week, there being six other such hotels and/or nightclubs nearby. According to Mr Lidis some of these also have a residential interface. Taking these matters into account I agree with him that the close-by residential areas cannot expect to have the same level of amenity that would otherwise be the case.

24 I am satisfied that the hotel has, in recent times been reasonably well managed and I see no reason why the present operating hours for the ground and first floor, notwithstanding that there is some doubt as to their legitimacy, should not continue. On a similar basis I accept that, taking into account the entertainment and recreation character of this locality, the impacts associated with the proposed nightclub are likely to be within reason. In reaching these conclusions I have given significant weight to the reasoning of Mr Lidis, especially in relation to the progressive dispersal of hotel patrons and the proposed plan of management. I have nevertheless decided that, so as to ensure that the impacts will be within reason, there should be a one-year trial period for the operating hours beyond the otherwise applicable 3 a.m. closure.

Orders and conditions

25 Having considered all of the evidence I have decided that both appeals should be upheld. In relation to the second appeal and particularly in the light of the expert acoustic evidence and the submissions made on behalf of the applicant I have made a number of changes to the conditions as indicated in Exhibit 4. I have also incorporated the applicant’s version of condition (5) into the consent.

26 The orders of the Court in relation to appeal 10808 of 2006 are, by consent:

1. The appeal is upheld.
2. Development Application No. D/2006/997 for ground level internal and external modifications and refurbishment to the hotel at 383-387 Bourke Street, Darlinghurst being new carpet, terrazzo tiles, the replacement of the existing bar, modification to the curved fixed glazing at the corner of Bourke and Campbell Streets, replacement of the bi-fold doors on the Bourke Street elevation with bi-fold windows and new ceramic tiles to the external walls below existing and proposed window sill height along the Bourke/Campbell Street facades is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit 1 is retained.

27 The orders of the Court in relation to appeal 10807 of 2006 are:

1. The appeal is upheld.
2. Development Application No. D/2006/1061 for internal modifications to the first and second floor levels of the hotel at 383-387 Bourke Street, Darlinghurst is determined by the granting of development consent subject to the conditions in Annexure A hereto.

___________________

T A Bly
Commissioner of the Court
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