Minus 5 Pty Limited v City of Sydney Council

[2008] NSWLEC 1137

Land and Environment Court

of New South Wales

CITATION:

Minus 5 Pty Limited v City of Sydney Council [2008] NSWLEC 1137

PARTIES:

APPLICANT
Minus 5 Pty Limited

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

11226 of 2007

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- Late night trading hours, noise amenity, public interest, trial period.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2005

DATES OF HEARING:

10/03/2008

 
DATE OF JUDGMENT: 

16 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Dr S. Berveling, barrister
instructed by Mr C. Thompson
of Gwynne Thompson Solicitors

RESPONDENT
Mr S. Kondilios, solicitor
with Ms P. Whitford
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

16 April 2008

11226 of 2007 Minus 5 Pty Limited v City of Sydney Council

JUDGMENT

Background

1 Minus 5 has appealed against council’s deemed refusal of a s 96 application to modify the conditions of consent for the operation of the ground level bistro/bar in the “Benelong Building” at Circular Quay. The modifications mainly relate to the management and hours of operation of part of the outdoor seating area (courtyard) near the Moore Stairs. This ‘courtyard’ has its primary access from the promenade and secondary access from a side entry door. There is also a fire escape door at the rear of the building.

2 The issues identified for the appeal mainly concern the outdoor operations of the ground level ‘courtyard’ as follows:

• Noise amenity impacts on neighbouring premises.
• Hours of operation; particularly an extension of the operating hours for the outdoor area adjacent to the Moore Stairs.
• Management of indoor and outdoor areas.
• Duration of the consent.
• Public interest.

3 This property has been the subject of a number of approvals since the original consent was granted in September 1994. That approval allowed the conditional erection of the “Benelong” involving a part 12/part 15- storey building containing 231 residential units, retail areas, 3 cinemas, an orchestral rehearsal space, 336 car parking over 6 basement levels and 8 loading spaces.

4 The consent also allowed for the creation of a strata plan, including the subject Lot 18 SP 67559, which is on the ground level and has a shop frontage onto the harbour-side promenade. It also has a secondary frontage onto an open pedestrian area, adjacent to the courtyard area that links the promenade to Macquarie Street. This access is via the Moore Stairs.

5 Subsequently in August 1999, a delegate of the Minister of Urban Affairs and Planning granted consent to a development application, under SEPP 56 (Sydney Harbour Foreshore and Tributaries) for a “restaurant fit-out” for Lot 18 of the building. This consent imposed conditions relating to the use, hours of operation and noise arising from the use of this ‘shop’.

6 On 23 December 2004, the Sydney Harbour Foreshore Authority (SHFA) granted consent to Shop 18 for the use of the premises as an ice bar, internal fit-out and refurbishment. Specific conditions were imposed on the operations of the “ice bar”.

7 Separate consents were granted for the outdoor seating areas, including in October 2004 consent for “use of public domain for outdoor seating” for Lot 11, the foreshore promenade outside Shop 18. This consent contained condition A3, which provided that the use of the outdoor seating area was to cease after a period of 2 years, and that a further application could be lodged. It also contained conditions relating to noise arising from the use of the promenade outdoor area.

8 On 30 April 2007, SHFA granted consent for “retention of existing outdoor seating and continue trading”, for the foreshore promenade area. This consent contained conditions A2 and A3, which limited the validity of the consent to 30 April 2008 and the use of the outdoor seating area was to cease after a period of 2 years. It also contained conditions relating to hours of operation, and noise arising from the use of the promenade outdoor area.

9 On 26 March 2007 the Respondent granted consent to a development application “to continue the use of “Minus 5” located on the first floor of the tenancy area known as Shop 18 for bar purposes in conjunction with the approved use of the ground floor level as a bar and bistro (Lenin Bar & Restaurant) and to use the adjoining outdoor area adjacent to Moore Stairs for associated outdoor seating facilities” (“the 2007Continued Use Consent”).

10 The 2007 Continued Use Consent contained condition 2 (a) which restricted the operation of the period of use of the outdoor area to 1 year. It also contained conditions relating to hours of operation, and noise arising from the use of the promenade outdoor area.

11 The conditions (still in contention) of the 2007 consent sought to be modified are:

2(a); The period to which the use of the outdoor area is approved to operate is restricted to one year…
4; The hours of operation of the Minus 5 ice bar are regulated as follows:
(a) The hours of operation must be restricted to between 10 a.m. and 12 midnight on Monday to Sunday, inclusive.
(b) Notwithstanding (a) above, the use may operate between 12 midnight and 1 a.m. the following day, on Sundays to Thursdays, inclusive and between 12 midnight and 2 a.m. the following day, on Fridays and Saturdays for a trial period of 5 years from the date of this consent.
(c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council’s consideration of the proposed continuation and/or extension of the hours permitted by the trial will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police.
The hours of operation for the associated outdoor seating area adjacent to more Steers are regulated as follows:
The hours of operation must be restricted to between 10 a.m. and 10 p.m., 7 days per week.
16. Noise – use
Noise caused by the approved use including music and other activities must comply with the following or Criteria:
(a) …
(b) The L10 noise level emitted from the source must not exceed 5dB above the background (L90) noise level in any Octave Band Centre Frequency (31.5Hz to 8kHz inclusive) between the hours of 7 a.m. 12 midnight when assessed at the boundary of the nearest affected property. The background noise level must be measured in the absence of noise emitted from the use.
(c) Notwithstanding compliance (a) and (b) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12 midnight and 7 a.m.
17 Noise – Mechanical Plant
Noise associated with mechanical plan must not give rise to any one or more of the following:
(a) Transmission of “offensive noise” as defined in the Protection of the Environment Operations At 1997 to any place different occupancy.
(b) An indoor Laeq sound pressure level contribution in any place at different occupancy greater than 3dB(A) above the L90 background level in any octave band from 31.5 Hz to 9kHzcentre frequencies inclusive between the hours of 7 a.m. to midnight and 0 dB(A) above the L90 background level in any octave band from 31.5Hz to 9kHz centre frequencies inclusive between the hours of midnight and 7 a.m. the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this subclause does not apply to any such frequencies.
21 Closure of Doors
The set of bi-fold doors space of the Lenin Bar and the outdoor space adjacent to Moore Stairs shall be closed at 10.00pm each night, except where are required for of emergency egress (to limit noise).

12 Sydney Local Environmental Plan 2005; under which the site is within the City Centre zone, where the relevant objectives include:

(b) to permit a diversity of uses which reinforce the multi-use character of Central Sydney, and
(d) to provide for increased residential development with appropriate amenity and to ensure the maintenance of a range of housing choices, and …

City of Sydney Late Night Trading Premises Development Control Plan 2007 ( Late Night Trading DCP)

13 The Late Night Trading DCP recognises the site and ECQ locality as a “ City Living Area”, one that is characterised by its diversity and potential to accommodate a range of lower impact late night trading premises. Concentrations of late night trading premises are not encouraged particularly when they are located in close proximity to residential premises. Furthermore, City Living Areas require a lower scale of late night trading premises in comparison to “Late Night Management Areas” (eg George Street and Kings Cross).

.

14 Detailed evidence was presented by:

• Ms A Leong; Councils specialist planner,
• Mr R Chambers; Consulting town planner for applicant,
• Mr S Cooper; Acoustic consultant for applicant.

15 In addition to this, detailed written and oral objections were made by a number of the neighbouring property owners. These objections related to:

• anti-social behaviour in the vicinity of the Moore Stairs causing disamenity.
• excessive noise arising from late night trading,
• inadequate management control and non-compliance with the conditions of consent,

Amenity

16 The primary concern raised is that the operation of the ground level activities has created adverse amenity for the residents, due to excessive noise from the subject premises. Mr Kalnin owns several apartments, including No 11, which is situated directly above the subject premises. He says that even though the windows are double-glazed, noise causing sleep disturbance regularly occurs from the late night operations of the subject premises. The occupants of this apartment linked the noisy activities to the use of the outdoor area near the Moore Stairs.

17 These concerns were supported by other residents including those from various apartments in the adjoining strata plan “Quay Grand”. Mr Wilde said that he observed the outside furniture was not stacked or removed as required by the consent, resulting in the extended, late night use of the courtyard area. This severely compromises the amenity of his apartment requiring the doors and windows to remain closed and air-conditioning used to deal with the excessive noise disturbance.

18 Mr McCullagh, the general manager of the neighbouring “Quay Grand” building also expressed concerns from his clients who have complained about excessive noise and late night sleep disturbance in the serviced apartments. He acknowledged that a restriction on the use of the courtyard area after 10 p.m. would probably be an appropriate balance.

19 It is apparent to me that the residents have experienced adverse amenity arising out of the past operations. However, it also seems that to some extent this was a result of a lack of understanding or ignorance of the conditions of consent and poor management control. This occurred from not restricting entry/exit from the side door at the designated closing time, mis-use of the fire door, usage of additional and unauthorised space in the courtyard, and failure to stack/store the courtyard furniture to prevent late night usage of this area.

20 The Police letter of 1 March 2006 refers to an incident on 25 February 2006, when they attended the Minus 5 at 9.40p.m. and observed a noisy crowd in the courtyard area, including an argument between patrons. The Police noted the continuing use of the rear fire doors after the advertised “No exit after 9pm” and lack of effective security. The Police consequently requested the LAB to impose several temporary conditions.

21 The correspondence from the Police of 14 November 2007 contains an objection to the extension of hours until 11p.m. because of the consistent complaints about incidents of non-compliance with the conditions of consent.

22 However, in a Certificate of Evidence (7 March 2008), the Licensing Court advised that:

“Apart from a Section 104 complaint 251788.00 filed on 24 January 2006, there is no complaint or summons matters have been dealt with or are currently before the Licensing Court in respect to the licence premises or licensee.”

23 On the 7 March 2008 the LAB advised that it recently reviewed the complaint, following the installation of umbrellas in the courtyard area to mitigate noise transmission. In finalising the complaint, the LAB stated:

“In doing so, and having regard to the terms of the City of Sydney Councils Development Consent No 94/00279 for the Bennelong Apartments, which specifically address noise attenuation for the apartments, the Board is giving consideration to amending its noise condition on the Hotel licence by adding a provision to the effect that in respect of the building known as the Bennelong Apartments/Opera Quays, at 2 Macquarie St Sydney, the condition will apply in any habitable room of any residential lot with doors and windows to the residence closed and mechanical ventilation as required by conditions 119 and 120 of Development Consent 94/00279 operating, and background noise level measured in the absence of noise emitted from the use.”

Noise assessment

24 However, this noise issue was further assessed by Mr Cooper. By way of background, he noted the apparent conflict with the council’s preference for all noise sources to be considered in evaluating a site and that the designated noise control be achieved outside the building.

25 Accordingly, he addressed the Circular Quay context, which contains residential dwellings in a relatively busy and noisy environment. Consequently, he says there is an inevitable conflict between the residential amenity and the anticipated public usage of the major transport interface and entertainment/tourist facilities, particularly in the late night period of the area.

26 Nevertheless, Mr Cooper says this potential conflict was recognised prior to the approval of the apartment building and appropriate conditions imposed on the following basis:

“The acoustic environment at Circular Quay prior to the erection of the Bennelong Apartments and predicted after the erection of the apartments was deemed to be high. Measurements have confirmed since the erection of those apartments (under World Health Organisation standards) an unacceptable acoustic environment. The Leq noise level measured in July 2006 on the balcony of 13/3 Macquarie Street and the balcony of 24/5 Macquarie Street are all above the recommended external level of 50 – 55 dB(A). In fact, the Leq level over seven nights of monitoring was found to be 56.8dB(A) and 58.2dB(A) for the two apartments respectively, with the Leq level during the evening periods being higher than the night and daytime noise levels being higher than the evening.
Conditions of Consent for the Bennelong required noise control measures to be incorporated into the construction of the building so as to achieve a satisfactory acoustic environment. Condition 70 of the Building Consent required the L10(20 minute) noise level in the units with windows and external facade doors closed to be less than 45dB(A) during the period of 6.00p.m. to 10.00p.m. From the ambient measurements conducted at Circular Quay with respect to the subject complaint ( ie Mr Kalnin ), it is impossible the Council criteria to be obtained with doors and windows open. As a result of the external noise level, the glazing required for the building is significant in terms of that normally encountered in domestic situations. The windows associated with the apartments are double glazed, as are some of the sliding doors, although the majority of the extra sliding doors provided in the apartment are single glazed but of very heavy glazing.

27 Mr Cooper undertook specific noise assessment at Apartment 11 and said;

“From the various attended measurements that have been carried out in apartment 11/7 Macquarie Street, the use of the area adjacent Moore Steps complies with the application of the LAB conditions if applied inside the apartment in accordance with the conditions sought. The application of the LAB criteria to a central position of the balcony overlooking Circular Quay can comply with the LAB but Mr Kalnin directed measurements be conducted at the southeastern corner of the balcony, directly overlooking the patrons seated adjacent Moore steps, where there was a clear line of sight to those patrons. Without any noise control measures, the standard LAB Conditions of Consent that applied at a residential boundary, could not be met…”

28 Mr Cooper’s conclusion is that due recognition must be given to the sites location within the relatively busy and noisy acoustic Circular Quay environment. Accordingly, the background noise from many different sources results in a level of noise disamenity for many of the apartment occupiers. However the original consent recognised this and required additional soundproofing for the apartments, to ensure the noise environment within the apartments was acceptable, with the windows and doors closed and air-conditioning operating as required. As the proposed modification achieves this, Mr Cooper supports this application.

Conclusions

29 Having considered the evidence, the submissions and undertaken a view, I consider the proposed modifications generally merit consent.

30 A primary basis for determining the competing positions in the appeal concerns the sites location in Circular Quay, which is within the City Centre zone. The location contains a diversity of uses, including major tourist attractions and is a transport hub. Nevertheless, the development controls provide for an appropriate balance for the residential amenity of the area. This level of amenity is influenced by provisions of the Late Night Trading DCP, whose objectives include:

b. ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses,
j. provide the possibility of trading hours for premises where they have demonstrated good management during trial periods,
l. ensure that appropriate hours are permitted for outdoor trading,

31 The development controls allow for trial periods for late night trading uses, where the extended hours are beyond the “base” hours identified in Table 1. The extended trading hours in the City Living zone, for outdoor areas are:

Base – 10am to 8pm,
Extended – 10am to midnight.

32 In determining this appeal, I consider it relevant that the s96 modification primarily deals with the outdoor ‘courtyard’ usage adjacent to the Moore Steps, which is to extend its usage by 1 hour until 11pm, over the accepted closing time for this area of 10pm. Apart from this, the associated bar/bistro can conditionally operate until 2am on the basis of a trial period. Therefore, the incremental change from 10pm to 11pm in closing this section of the courtyard is what requires initial assessment.

33 With regard to the noise emissions, I consider Mr Coopers approach is reasonable. The relatively noisy acoustic environment at the ECQ was anticipated when the apartment building was approved and additional sound-proofing required. This was on the basis that an acceptable acoustic environment would be achieved inside the units, with windows and doors closed and air-conditioning as required.

34 Mr Cooper says that with the courtyard area operating until 11pm and with, the afore-mentioned controls, then the original internal noise environment will be satisfied. However, it is impossible to achieve a satisfactory noise environment with the doors and windows open, or at the perimeter of the balcony.

35 In these circumstances, I am satisfied that the incremental noise contribution from the courtyard area operating until 11pm would be marginal, if at all discernible, providing there is satisfactory management and control of this area. Therefore, I accept Mr Cooper’s evidence and suggested conditions as being realistic in these circumstances and do not consider council’s preference for noise controls outside the building at all reasonable, particularly as they are impossible to achieve in this environment. The updated conditions and effective Plan of Management (PoM) should satisfactorily cover this incremental noise concern.

36 In reaching this conclusion, I note this is consistent with the recent LAB determination, that a reasonable noise assessment in the subject environment is internal, not external, as originally approved for this development.

37 As I consider the noise emissions should be managed appropriately, I am then satisfied that the ‘courtyard’ can be used until 11pm, for a trial period of 1 year, following which its performance in the neighbourhood can be monitored. Such monitoring should include random noise assessment over the trial period.

38 It seems to me that the success of the trial period for this area is dependent on appropriate management control, which appears to have been lacking in the past. However, I understand there is a new operator who is willing to implement appropriate control measures to ensure the use of these premises is on ‘a good neighbour basis’ with the nearby residential uses. The use of this site in this manner should then be consistent with the late night entertainment uses and attractions contemplated in the planning controls for this iconic tourist location.

39 Another aspect of the s 96 application concerns the duration of the consent. Considering the complaints from previous operations, I consider it appropriate and reasonable that the overall consent for this property be for 5 years.

40 Subject then to the finalisation of appropriate conditions, the Court intends to make orders to uphold the appeal. The final conditions should specifically deal with:

• The outdoor ‘courtyard’ area having extended hours of operation between 10am and 11pm, Fridays and Saturdays, evenings before a public holiday and public holidays, for a 1 year trial period.
• Where further extension of late night trading to 2am to accord with the Minus 5 closing is sought, the specific occasions are to be identified.
• The overall hours of operation for the Minus 5 ice bar, extending to 2am Fridays and Saturdays is for a 5 year trial period.
• The conditions of consent and or the PoM effectively identify the essential patron control measures, including:
  o Delineation of the outside ‘courtyard’ area.
  o Effective restriction/control of side and rear fire doors.
  o Effective arrangements for cordoning the bi-fold doors and security supervision after 10pm.
  o An effective procedure to ensure the appropriate (7) umbrellas is placed in the courtyard to mitigate transmission of noise from this area.
  o An effective procedure for stacking and storing the removal furniture from the courtyard to prevent its use after 11pm.
  o Arrangements for an independent acoustic monitoring assessment over the trial period to assess the noise contribution from the courtyard.
  o Proposed security arrangements.
  

41 The final orders to be made upholding the appeal and granting consent are then subject to the satisfactory resolution of these conditional matters, together with those other matters stated in my findings.

___________________

R. Hussey
Commissioner of the Court
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