O'Hara v Sydney City Council

[2007] NSWLEC 782

Land and Environment Court

of New South Wales

CITATION:

O'Hara v Sydney City Council [2007] NSWLEC 782

PARTIES:

APPLICANT
O'Hara

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10687 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- Hotel, outdoor courtyard-smoking area, noise and neighbour's amenity, conditions of consent.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan

DATES OF HEARING:

8 and 9 November 2007

EX TEMPORE JUDGMENT DATE:

29 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Drury, solicitor
of DLA Phillips Fox

RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 November 2007

10687 of 2007 O'Hara v Sydney City Council

JUDGMENT

Introduction

1 Situated at 162 - 164 St Johns Road, Glebe is the two-storey hotel known as the Nag's Head Hotel ("the hotel"). The hotel mainly comprises the original hotel building at 162 St Johns Road on the corner of Lodge Street and now incorporates the two-storey terrace at 164 St Johns Road, that terrace being within a row of terraces extending to 170 St Johns Road. Both the original hotel and the adjoining terraces are of the Victorian Period within the Glebe Conservation Area. They are also heritage items.

2 The site is bounded by St Johns Road to the north, Lodge Street to the east and a 2.5 m wide right-of-way/lane ("the lane") to the south although use of the lane is not available to the hotel. Opposite the site beyond the lane existing development comprises dwelling houses and of direct relevance to this matter is the dwelling house at 40 Lodge Street on the corner of the lane. Opposite the site across St Johns Road the existing two-storey buildings are variously utilised for retail, commercial and residential purposes. The above-mentioned row of terraces that adjoin the site are also variously utilised for commercial, retail and residential purposes. In particular the immediately adjoining terrace at 166 St Johns Road is utilised for commercial purposes over part of the ground floor and the remainder as a dwelling house.

3 The approved trading hours of the hotel are 5 a.m. to 12 midnight, Mondays to Saturdays and 10 am to 12 midnight on Sundays (with restricted hours of 12 noon to 10 p.m. on Christmas Day and Good Friday). The hotel's existing first floor front corner balcony has approval to open between 9 a.m. and 9 p.m., seven days a week. The hotel has a place of public entertainment licence for up to 145 patrons.

4 On 5 May 2006 the Court upheld an appeal in relation to the conditions of Development Consent No. D/2005/550 that had been previously issued by the Council for the refurbishment and alterations to the hotel, including the incorporation of the adjoining terrace building at 164 St Johns Road.

5 Part 5 - Employment of the Leichhardt Local Environmental Plan 2000 ("LEP 2000") contains provisions relating to the employment zones, including the Business Zone and the Industrial Zone. The hotel is included in the Business Zone and in this zone hotels are permissible with development consent. Part 5 of the LEP contains the following relevant objective:

(d) To ensure that buildings to be used for employment are appropriately located and designed to minimise the generation of noise, traffic, car parking, waste, pollution and other adverse impacts, to maintain the amenity of surrounding land uses, and avoid harm to the environment.

6 In addition, notwithstanding that it is unclear as to whether this particular Business Zone is a business centre, the Part 5 objectives are plainly applicable to the Business Zone hence the following objective is also applicable:

(f) To integrate residential and business development in business centres.

7 Also applicable is Leichhardt Development Control Plan, particularly Section C3.1 that adopts the following principle:

Minimise the impact of noise and vibration by proposed operations and on proposed development of existing and projected future sources of noise and vibration.

8 The rationale for this principle is:

To ensure that the quality of life enjoyed by residents and people engaged in business and community pursuits is not hampered by excessively noisy activities.

9 The associated control is:

All development must comply with the guidelines set down in the NSW EPA Environmental Noise Control Manual as amended from time to time.

10 On 9 May 2007 the applicant in these proceedings lodged with the council a development application for the following:

Provision of 2 outdoor terraces, use of part of first floor as a function room/lounge, new roof over first floor of bar area and other associated works at the Nags Head Hotel.

11 On 27 Aug 2007 the council decided to approve the application (D2007/00793 - "the consent") subject to a number of conditions, but did not approve:

• Use of the rear ground floor area at 164 St Johns Road as an outdoor courtyard/smoking area. (Condition 2(d)).
• Use of the first floor of 164 St Johns Road as a function room lounge. (Condition 2(c)).
• Use of the first floor front balcony at 164 St Johns Road. (Condition 5)

12 The consent has approved a new roof over the first floor bar area and the creation of an adjoining open deck (2.55 m x 4.35 m) for hotel patrons who wish to smoke cigarettes. The approved deck is allowed to be used for a trial period of 12 months between the hours of 9 a.m. and 12 midnight but if that trial is unsuccessful, the area may be used during the (reduced) period of 9 a.m. to 9 p.m.

13 The appeal now before the Court is mainly against conditions 2(c), 2(d) and 5, with the applicant seeking to have them deleted, these conditions essentially reflecting the matters in dispute between the parties. The respondent has now agreed that the main issues now comprise:

• The detrimental impact on the amenity of the neighbourhood as a result of noise from the proposed first floor function room/lounge.
• The detrimental noise impacts associated with the proposed ground floor rear courtyard and the first floor function room/lounge, including its front balcony on the amenity of the adjoining residential properties comprising 40 Lodge Street and 164 St Johns Road.
• The unsatisfactory appearance of the proposed acoustic screen on the first floor level adjacent to the western side boundary that would be inconsistent with the existing built form in the lane.
• The displacement of garbage and recycling storage areas as a result of the creation of the proposed rear courtyard.

14 In addition the applicant seeks amendments to a number of conditions. Several of the sought amendments were agreed to during the hearing but conditions 3(a), (b) and (c) (hours of operation - outdoor areas), 7(e), (f), (i) and (j) (operational controls) and 22 (Building Code of Australia – compliance) remain in dispute.

15 The application was advertised on two occasions and more than 30 objections and 180 letters of support were received. Broadly speaking the matters of concern to the objectors comprise:

• Adverse impacts on the existing residential amenity of the area resulting from increased hotel patronage, such impacts comprising noise from within the premises and antisocial behaviour generally and noise from patrons and their cars departing the hotel environs.
• Progressively increasing hotel patronage has already changed the character of the hotel from a small local pub to one that attracts patronage from afar.
• Additional traffic and car parking demands.
• The serious health issues associated with the smoking of cigarettes that will be facilitated by the provision of smoking areas within the hotel. This involves not only those persons actually smoking but also neighbours who would be affected by the smoke emitted from the open smoking areas.
• The likely unsatisfactory appearance of noise mitigation structures.
• Direct noise impacts on the adjoining or adjacent residential properties at 40 Lodge Street and 164 St Johns Road and the overshadowing of 164 St Johns Road at the rear.
• The hotel has been taken to the Liquor Administration Board because of excessive noise from the hotel including noise from air-conditioning plant

16 The written submissions in support of the application refer to the following matters:

• The good management of the hotel including the encouragement of patrons to move on quietly and correct enforcement of closing times.
• Noise is not really a problem for nearby residents.
• The hotel is an asset to the neighbourhood.
• The provision of on-site smoking areas this will reduce the likelihood of patrons congregating and smoking on the footpath.

17 I also note the support of organisations such as the Salvation Army (Glebe Salvos), Sydney University football clubs, Glebe Basketball Association and the hotel's support for various community organisations.

18 When the hearing began on-site I heard from the following residents who mainly elaborated on their written concerns:

• Ms M Szental 39 Lodge Street Glebe,
• Ms R Annen 25 Forest Street Glebe,
• Mr and Mrs M & B Ienna 166 St Johns Road Glebe,
• Mr J. Lidis consultant town planner on behalf of Mr and Mrs Ienna,
• Mr A Proctor 9/10 Jarocin Avenue, Glebe,
• Mr E. Waterman 35 Lodge Street, Glebe,
• Ms N Beams 8/10 Jamison Street, Glebe.
• Mrs C Hill 7 Forest Street, Glebe,
• Ms T Dear 40 Lodge Street, Glebe,
• Mr G. Velcom 13 Forest Street, Glebe

19 The Court was assisted by the joint conference report and additional oral evidence given on-site by the acoustic experts - Mr D Craig on behalf of the respondent and Mr S. Cooper on behalf of the applicant. In their report (supplemented by oral evidence on-site) they agreed that:

• The appropriate noise emission criteria for residential receivers at the rear of the hotel, based on noise logging in the ground floor courtyard, are: 48 DBA during the daytime; 51 DBA during the evening and 44 DBA at night from 10 p.m. to midnight. With the maximum patron numbers and with the now proposed noise controls (ie increased wall and roof canopy heights) the total noise emission from both smoking areas is likely to conform to the agreed criteria during daytime, evening and at night.
• The total noise emission from both of the proposed smoking areas is likely to conform to the night-time criterion if certain additional controls are implemented. These controls include increased wall heights and an increased roof canopy height. These changes are now detailed in the amended plans (Exhibit E).
• In relation to noise transmission between the proposed first floor lounge/function room and the residence at 166 St Johns Road, taking into account the nature of the existing floor construction and the proposed additional wall construction and acoustic floor coverings there should be no noise issue of concern.
• As for noise emissions from the first-floor balcony that the front of 164 St Johns Road it was agreed that with a maximum of six people on the balcony and subject to it not being used after 9 p.m. there would be no noise issue of concern.
• All mechanical plant will be required to satisfy the council's standard noise criterion for such plant. There was no dispute that this requirement can be met.

20 In this context it is to be noted that council's Health Department considers that that methodology used in the acoustic report is adequate.

report

21 The report dated 20 August 2007 ("the officer's report") prepared by Mr P. Jamison, Acting Area Planning Manager and Mr G Cirillo Acting Director City Planning) concludes, inter alia, that:

The proposal complies with the objectives of the Business Zone and will not have any adverse impact on the heritage significance of the items or conservation area.
The proposed 10.8 m2 extension of the ground floor gaming room will result in a FSR of 1.19:1 (GFA of 587.8 m2) and a further increase the existing FSR of 1.16:1. The proposal exceeds the FSR control of 1:1. The applicant has lodged a SEPP 1 objection to seek a variation to the floor space development standard which is considered well founded and acceptable.
The application will increase the hotel area available to patrons through the proposed use of the first-floor of No 164 St Johns Road as a lounge/function room. The use of this room will have minimal impact subject to acoustic treatments and restricting the capacity of the room to 36 patrons. The use of the adjoining balcony to the front of number 164 St Johns Road, however, is not supported.
The new outdoor terraces at the rear of the premises are acceptable and will not have any adverse visual or acoustic impact on the amenity of adjoining properties subject to conditions restricting the number of patrons (10 at any one time) and noise control measures. The trading hours for the lounge/function room is recommended for approval to accord with those approved for the hotel (5 a.m. to midnight Monday to Saturday and 10 a.m. to midnight Sunday). The use of the outdoor areas is recommended for approval between 9 a.m. and 9 p.m. Monday to Sunday. The use for an additional three hours (9 p.m. to midnight Monday to Sunday) is recommended for approval for a 12-month trial period.

22 In relation to concerns regarding site intensification the report concludes that this is likely to be minimal and the amended management and security plan can deal with any consequences. The outdoor courtyards will enable hotel patrons to remain within the hotel whilst smoking and thus increase the hotel operator's ability to execute management and security measures so as to minimise disturbances to surrounding properties.

23 As for car parking the report suggests that it is unlikely that there would be a detrimental loss of parking in the surrounding area notwithstanding that a minimum of six parking spaces would be required and no car parking spaces are provided. Parking for hotel patrons is thus accommodated by on street parking and the additional demand for on street parking that arises from the use of the lounge/function room will not be significant.

24 The report also finds that the proposed screen at the rear of the first-floor level adjacent to the site boundary will adequately screen the ground floor terrace from 166 St Johns Road. Concerns as to cigarette smoke drift are dealt with by limiting each courtyard to a maximum of 10 patrons at any one time and taking into account their location and the provision of a 3.1 m dividing wall.

Noise issues

25 As indicated above a number of residents living in the locality are concerned that the amenity of the surrounding residential area will, as a result of the proposed changes to the hotel, be adversely affected by increased noise. Plainly by accommodating additional patrons, some of who will utilise the proposed smoking areas, the hotel will be capable of generating additional noise. More particularly any noise generated by the proposed first floor function room/lounge and the smoking areas could potentially adversely affect the adjoining residential properties comprising 40 Lodge Street and 164 St Johns Road.

26 However the acoustic experts have now agreed that with maximum patron numbers, conformity with the agreed that daytime, evening and night noise criteria can be met by the now amended proposal. Considering the restrictions that are agreed in relation to the proposed lounge/function room (excluding its balcony), the rear courtyard and the approved deck and taking into account the conclusions reached in the officer's report and the plan of management I am satisfied that in terms of noise impacts the amenity of the surrounding area will not be adversely affected by the proposal. In this regard I agree with the officer's recommendation that the trading hours of the lounge/function room should be in accordance with those approved for the hotel. I agree that the use of the rear courtyard and the approved deck should be limited to 10 patrons at any one time and that their use should cease at 9 p.m. I also agree that, for a 12 month trial period, both terraces can be used for an additional three hours until midnight. Also the rear courtyard can, for a 12 month trial period, be limited to 30 patrons at any one time. The trial period can be used to assess the impact of the extended hours and additional patrons on neighbouring dwellings.

27 As for the front balcony off the proposed lounge/function room I note that the applicant has agreed that its use should cease at 9 p.m. when its doors will be locked. In these circumstances the noise experts agreed that, taking into account that there is to be a maximum of 6 people on it at any time they do not believe there would be a noise issue of concern to Mr and Mrs Ienna at 166 St Johns Road.

28 When I inspected the property at 166 St Johns Road, I took particular notice of the balcony off the Ienna's upstairs bedroom and its relationship to the balcony off the proposed lounge/function room. These two adjoining and similar size balconies are separated by a timber wall. Given their proximity and notwithstanding this wall I have no doubt that any noise generated by persons utilising the hotel's balcony would be clearly heard on the Ienna's balcony. I also have no doubt that any such noise would also be heard in the bedroom that relies for its ventilation on doors that open onto the balcony. Also, I expect that for similar reasons the Ienna's would be denied a reasonable level of aural privacy.

29 Notwithstanding that only six people will be permitted to use this balcony up until 9 p.m I agree with the recommendation in the officer's report that this balcony should not be able to be used for hotel patrons at all so as to ensure that an appropriate level of amenity is provided for the Ienna's bedroom.

The Acoustic Screen

30 It was submitted on behalf of the council that the appearance of the proposed acoustic screen on the first floor level adjacent to the western side boundary of the site would be unsatisfactory because it would be inconsistent with the existing built form in the lane. The provision of screens in this position (for acoustic purposes) was not a matter of concern in the council officer' s report.

31 The proposed screen is to be about 1 m x 2.4 m high, with its top edge pitched in alignment with the roof of the structure to which it is attached. I considered the impact of this screen whilst on site and accept that to the extent that it will be able to be seen from the neighbouring properties at 166 St Johns Road and 40 Lodge St. and from the lane this does not attract any significance sufficient to warrant its removal from the proposal.

Garbage and recycling storage

32 As for the displacement of the garbage and recycling storage areas as a result of the creation of the proposed rear courtyard, the applicant has now accepted proposed condition 2(b) that requires the provision of a dedicated area for the storage of garbage and recyclables. In this regard I note that there is sufficient available floor space within the building. (For example the existing excessively large cool room could be reconfigured).

33 Consistent with the above findings (and by reference to the approved conditions of consent and the applicant's final amended conditions in response):

• Condition 1(a) (plans) is amended so as to refer to the relevant plans.
• Conditions 2(c) and (d) (design modifications) are deleted and a new condition 2(c) is to be included to prevent the use of the first-floor balcony associated with the lounge/function room. The applicant's proposed condition 2 (e) should, consistent with the noise evidence be imposed.
• Conditions 3(a), (b) and (c) (hours of operation) are retained unchanged.
• Condition 5 (first-floor balcony at 164 St Johns Road) is retained unchanged.
• Condition 7 (e) (operational controls) is retained unchanged but provisions allowing a 12 month trial period for the use of the rear outdoor courtyard for up to 30 patrons are to be added. Conditions 7 (f), (h) (i), (j) and (m) dealing with the deck and the courtyard, as proposed by the applicant should be included but condition 7 (g) should be retained in its present form.

• Conditions 14 and 15 (noise and noise limiters) should, consistent with the evidence of the noise experts, be amended as proposed by the applicant.
• Condition 22 (Building Code of Australia – compliance) has been further amended by the applicant so as to require compliance with the deemed to satisfy provisions of the BCA and should be imposed in its amended form.
• Condition 31 (loading and unloading-construction) is amended by the deletion of (a) and (e), taking into account the difficulty of carrying out all loading and unloading on the site.

General

34 In relation to the matters of floor space ratio and heritage there was no evidence to refute the conclusions in relation to these matters in the officer's report and I accept them. Whilst the resident objectors were concerned about car parking, traffic and patron behaviour in the vicinity of the site resulting from greater use of the site for hotel purposes I again accept the conclusions reached in the officer's report on the basis of the reasoning therein.

35 It was submitted on behalf of the council that there was no real need for the rear courtyard in addition to the approved deck. Whilst this may be correct this is a matter for the applicant, particularly as I have decided that subject to appropriate conditions there will be no unreasonable amenity impacts on the neighbours.

36 There is no longer any real dispute about the adverse health impacts associated with cigarette smoking, however given that smoking is not an unlawful activity in non enclosed spaces within licenced premises it is not for me to deny this applicant the opportunity of providing such spaces. I could however refuse this application if I were persuaded that secondary cigarette smoke emitted from the premises was to be sufficient to adversely affect the health of neighbours or the amenity nearby residential properties. There was no expert evidence to this effect and taking into account the restrictions on the use of the outdoor terrace at the rear and the internal balcony this is not a reason to refuse the application.

37 Finally, I can understand the residents concerns that the hotel's character has changed and it is no longer a small local pub. However this has already happened and the hotel now attracts some patronage from beyond the immediate locality. I nevertheless understand that the hotel continues to attract local patronage and whilst the proposed changes will attract additional non-local patronage I do not accept that this change will attract determinative any significance for this application.

38 I have therefore decided to uphold the appeal, although some aspects of the application as discussed above are not approved. In order for me to prepare final orders the parties are directed to consult and prepare final conditions (including the management plan) by 5 December 2007. With the exception of Exhibits 8 and E, the exhibits are returned.

________________________
TA Bly
Commissioner of the Court
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