Perry Properties Pty Limited v City of Sydney Council

[2008] NSWLEC 1288

Land and Environment Court

of New South Wales

CITATION:

Perry Properties Pty Limited v City of Sydney Council [2008] NSWLEC 1288

PARTIES:

APPLICANT
Perry Properties Pty Limited

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

10255 of 2008

CORAM:

Murrell C

KEY ISSUES:

Section 96 Modification :- to extend the hours of operation of a rooftop communal recreation area of a back packers from 9pm to midnight 7 days per week; impact on adjoining residential area; noise; lights; privacy; client behaviour; plan of management; common areas.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Council Plan Zone
Leichhardt Development Control Plan 2006

DATES OF HEARING:

23/06/2008 and 24/06/2008

EX TEMPORE JUDGMENT DATE:

26 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Gough, solicitor
of Storey & Gough

RESPONDENT
Mr S. Kondilios, solicitor
with Ms N. Johnston, solicitor
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

24 June 2008

10255 of 2008 Perry Properties Pty Limited v City of Sydney Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 against the City of Sydney Council's refusal of a modification application to amend the consent granted by the Council to extend the hours of operation for the rooftop communal recreation area from 9pm to 12 midnight seven days per week. The relevant condition of consent 10A requires use of the rooftop kitchen and rooftop terrace to be between 7am and 9pm seven days a week.

2 By way of background the approved development on the site is for a backpackers establishment and a motel in the one building. It is noted that there is a split zoning such that the backpackers portion of 21 rooms is contained within what is known as the commercial zone and the motel with is 19 rooms is in the residential zone.

The subject site is on Glebe Point Road an inner city location and it has the vitality that one would expect in such an area. The properties to the east across the road are commercial. The properties to the south are commercial and the properties at the rear and to the north are zoned residential. The Court heard that the applicant is seeking to have the whole of the site covered by the one zoning rather than a split zoning. However, at the end of the day whenever the zone boundary is it still represents an interface with the residential area and the interface must be considered in an assessment of the development application.

3 The Court met on site with the parties and also heard from a number of resident objectors to the proposal. Ms Joanne Kee of 11 Rosebank Street advised the Court that she has been woken up by noise which she considers to be coming from the rooftop terrace between midnight and 2am. She considers that the operator has no intentions to be a good neighbour and the use is disruptive. She also expressed concern about the lights.

4 Ms Adina Bowe of 269 Glebe Point Road, advised the Court that the use has operated in bad faith in the past and an example is the old signs that are currently on the rooftop stating that 10.30 and 12am closure for the rooftop terrace. However, related to a previous use of the subject site as a motel and she considers this an example of trying to wear down the rules and regulations. Be able to see people on the roof was not so much the issue but it was the offensive loud drunken people and cited an example of a party with loud music from 10am to 10pm on one occasion.

5 The Court also heard from Jane Fissinton and Janice Shallon of 160 Glebe Point Road. They are concerned about the noise and that you can see into their house. People stand on top of the wall, talk on mobiles and sit on the brick parapet. They had phoned the owner concerning noise two to three months ago. They were also concerned about the light spillage impact on their backyard from the fluorescent lights. They also expressed concern about the impost on the residential amenity of the area.

6 Ms Christine Newton, 7 Rosebank, said that the noise carries in the area and making the wall higher would not be of a benefit. There is no regulation regarding alcohol and that they do not have the same control as in licensed premises, that is the pubs in the area which co-exist in the residential area.

7 Dr Lyn Fong of 265 Glebe Point Road, cited the example of a party in February from 10am to 10pm one Saturday and the elevated open space area with the amplification of music and the nature of young people is that they wish to enjoy themselves. The 9pm restriction is currently exceeded and she feels that she should not have to feel obliged to stay up until after midnight before ringing the police if the hours are extended. She said that the noise not being able to be enclosed meant that it transmitted into the residential area and the constancy of it 365 days a year was unacceptable.

8 Mr Martin Evans of 3 Rosebank said that his bedrooms were at the rear of his property and even though he had soundproofed the rooms but he can still hear the music although there was no access to his property.

9 Ms Carol O’Donnell of 10/11 Rosebank, said the noise in the area travels and this would be an undesirable precedent for the rooftop with the kitchen and parties to operate seven days a week until midnight.

10 But Mr Bob Armstrong, the ex-president of the planning committee of the Glebe Society, considers the current development is an overdevelopment and an intensification of the rooftop use is not compatible with residential amenity. Once again, he said that the hotels are highly regulated but this establishment has little regulation and no respect for the community. He considers it is reactive and an impost to wait until the damage is done and he referred to the piecemeal DAs of extensions of hours and other matters pertaining to the development.

11 Ms Christie Lee of 150 Glebe Point Road, represents the owners at 150 and said that the vandalism and the drunken behaviour with items thrown off the roof into the adjoining back yard, (cups and footballs), is a reflection of how the premises are run. She noted that the letters of support that were submitted were from people that lived some 200 metres away who were not impacted. The closest person who supported the application lives 100 metres away. She reported that the conditions are not complied with, an example being the outdated signs that appeared on the roof top.

12 The Court inspected two of the properties to understand the relationship of the development to those properties.

13 As a s 96 modification application, I can be informed and have the benefit of the original approval. I note that the original approval was carried out by the Council's Small Permit Appeals Panel for use of the existing building as part motel and part backpacker and that consent was granted on 2 July 2007. This s 96 application for the extension of the hours of the rooftop use beyond 9am to 12 midnight was refused on 28 September 2007 and this appeal is in respect of this. While not a matter for my consideration in this appeal the applicant advised there is a further application to the council to provide for a communal area/common room. The provision of a communal area was a requirement of the Council’s original development consent for it to be provided within a three (and then amended to a five) month period from the date of the operation of the establishment. The communal area which is on the ground floor to replace some of the car parking spaces is currently being assessed by the council.

14 A Plan of Management was also required as a condition of the development consent and the applicant provided yesterday an updated version of the plan of management. It is noted that there are now amendments proposed that plan to which I will go into later.

15 The council has a development control plan for the assessment of backpackers applications known as the City of Sydney Visitor and Tourist Accommodation Development Control Plan 2006. For the location of backpacker accommodation the objectives are:

to encourage the provision of backpacker accommodation within close proximity to public transport services and facilities, to ensure that backpacker accommodation is appropriately located so as to reduce adverse amenity impact on the neighbourhood; and to ensure that backpacker accommodation development does not result in the loss of low cost long term rental housing stock such as boarding houses.

16 The DCP also contains requirements for facilities and recreational areas, in particular for communal recreational areas “to be provided within the premises at the rate of 0.75 square metres per person and communal recreation areas should be internal to the building... If communal outdoor facilities are proposed, it should not be greater than 20% of the total communal recreational area. The design and location are to reduce noise impacts and details on management of the space including restricted hours of access and noise management are to be addressed. For example, no access later than 10.30pm.”

17 This establishment operates, as I stated as a combined backpacker and motel, although it is managed and operated from the same desk or service area and the difference is I was advised by the applicant that for a motel room up to four persons are known to each other who rent those rooms which are at the same cost as what the backpacker accommodation is, where there are four persons per room but they can be unknown and unrelated persons as such. That is, the development has the potential to accommodate 160 persons and there is no requirement for the motel portion to have communal facilities. However, if did other premises would require an area of approximately 120 square metres for a communal room.

18 The applicant submits that with the discount of the 20% for a rooftop area, a facility or a communal space within the building of some 50.4 squared metres is required. It is noted that the rooftop terrace provides an expansive and extensive area. That is, it represents the total floor plate of the building, there is the rooftop is some 295 square metres and the communal kitchen is on the rooftop.

19 It is noted in the original assessment report for the development application that was originally recommended for refusal that the proposal is in excess of the council's guidelines for such development. This is 1:1 FSR and 7.2 metre wall height.. It is an existing building and it was approved as such.

20 The character of the area as I stated is that of an inner city location and there is an expectation that there is more activity and a more vibrant society and associated noise in such an area. Against this background the issue is a level of residential amenity that does not unreasonably interfere with residential properties in close proximity of the subject development.

21 The condition of consent allows for the standard noise compliance criteria of 5 dBA above background noise and the operation has the benefit of this area having a higher background noise level than many quieter purely residential areas. Where establishments such as this have an interface with residential areas then an assessment of the impact must be considered. Just because a property is zoned commercial does not provide the right to unduly interfere with the residential amenity of adjoining neighbouring properties.

22 It was submitted on behalf of the applicant that there could be a deferred commencement so that the rooftop operating hours are not extended to midnight until after the communal room currently before council is operational.

23 There have been a number of acoustic reports prepared in September 2006, April 2007 and more recently in May 2008. Mr Koikas also provided oral evidence to the Court. Mr Koikas is of the opinion that from his sound level tests that the development with a maximum number of 65 persons on the rooftop between 9pm to 12 midnight could be accommodated and result in compliance with noise on the condition of a supervisor being on duty and on the basis of his recommendations for flashing lights to warn when the noise is exceeded.

24 Mr Koikas provided background noise testing in the area on more than one occasion and the more recent report states that his testing involved 59 persons and the incremental difference to 65 patrons is 0.4dB. He states: this is an insignificant increase in the noise.

“I accept that there may be some nights when noise generated by patrons on the rooftop could in fact be louder but conversely it is also inaudible.”

25 He further states that:

“Notwithstanding, there can be no guarantee that patron noise will always be inaudible to all surrounding residential premises. After all, the noise in question is not that of a machine which is normally characterised as being constant in level whilst it is in operation. Human speech consists of temporal and spectral dynamic which will result in being audible to residents sitting or standing outside their premises. This level is however generally significantly less compared to that of a passing bus, a truck, a vehicle fitted with a sports exhaust system or that of the tyre road interaction of a conventional car traversing along Bridge Road with the receiver point being that of a person standing along the front façade of say 2 Rosebank Street...
This is what I have observed on more than one night of monitoring. I have also observed that there are periods when patrons noise is inaudible during and after lulls in traffic.”

26 He states that he had observed noise emanating from the rooftop lodge:

“Although just audible would not be considered by a reasonable person as being offensive. The noise was just audible during lulls in traffic but would not be termed offensive. The noise from these outdoor activities was not constant and as such a measure of the equivalent continuous noise level for such a short period in time is almost impossible to determine on account of other extraneous noise sources that frequently occurred such as the traffic emanating along Bridge Street”.

27 He goes on to say in that same report:

“In order to limit noise, it is not necessarily dependent on the number of patrons. The control of noise from those patrons irrespective of whether there are two patrons or 100 is what makes the difference. Naturally noise barriers can provide some noise relief but the best method of controlling noise from patrons would be to provide proper supervision and sometimes it is necessary to remind patrons to keep their voices down. This can also be achieved with the use of the noise monitor that could be activated to flash lights located next to signs requesting patrons to refrain from excessive noise disturbance.”

28 He also recommends in summary that:

“Additional measures that could be considered is the use of a noise monitor to activate lights to flash adjacent to signs that would remind patrons to keep quiet. Personnel could also be used to supervise patrons from making excessive noise and ensure that music is not to be played after a nominated period. Once these additional methods have been faithfully implemented, it is my opinion that the current complying noise emissions would be further reduced.”

29 When asked Mr Koikas could not give an example of where such a method has been used on a rooftop terrace to control such noise.

30 The management plan requires that there be a complaints register. The Court has not sighted such a register which should have been operational from the time of the consent of the backpacker motel establishment. The Court is not saying that there is not such a register but clearly such a register is important because it is the operator’s/owner’s responsibility and there should not be an over-reliance or dependence upon the council to have to monitor complaints received in respect of establishments which is why a community liaison committee meeting with the management/operator of the subject premises should be in place.

31 It is noted in the amended Plan of Management submitted by the applicant that the monthly meetings has been deleted from the revised Plan of Management tendered. I am not aware and I did not in fact inquire as to whether there had been such a liaison meeting between residents and management of the establishment but clearly that would be a way forward in ensuring that the establishment can co-exist harmoniously given the juxtaposition with the adjoining residential area.

32 The applicant submitted that with the mechanisms of management to have the flashing lights and a supervisor on the rooftop that this will be an improvement over the current operation of the facility.

33 The role of the Court in these proceedings is not to determine whether in fact the establishment has operated in accordance with the previous consent. However, in considering the extension of hours, I can have regard to complaints. From the officer’s report on the s 96 application, it would appear that there have been four complaints related to noise disturbances between 8 October 2007 and 14 January 2008.

34 I also note that the complaints that were included in the bundle, many of them were from 2006 and there were not the current or the more recent complaints provided within the bundle. That is not to say that they do not exist. It is also noted that there were comments that on the investigation of some of the complaints that persons remained anonymous and some complaints were considered to be not substantiated.

35 At the end of the day the establishment must, co-exist harmoniously within this mixed use/residential area. That is not to say that people from time to time will not hear noise but it is whether that noise impact is unreasonable and in particular noise impact in terms of sleep arousal. People do not expect to be woken up late at night by yelling and screaming or anti-social behaviour as such. That is not to say that the establishment could not operate in such a way that the impacts are minimized to a reasonable extent but the operator should show good faith that it ca do so under the current consent.

36 I am not satisfied that the establishment to date has shown that it can harmoniously co-exist in a co-operative way and that the mechanisms of a liaison committee with the nearby residents and the management owner/operator of the establishment would assist in trying to understand the concerns of the local residents. At the same time, the local residents cannot expect the same peace and quiet as in suburban residential area where there are no mixed uses.

37 I am not satisfied the extension of the hours on a seven day basis is appropriate given the relationship of the subject rooftop with the adjoining area. That is not to say that a further application may not be considered or submitted that seeks the hours of operation for say Friday and Saturday night being until midnight but seven days a week to midnight I do not consider is reasonable even with Mr Koikas’ controls, the competing conversations with up to 65 people on the roof terrace every night of the week may not provide the level of residential amenity expected even in an inner city location.

38 Furthermore I consider that it is premature to consider the application for the extension of the hours to midnight 7 days a week at this point in time before the applicant clearly demonstrates that it can harmoniously co-exist the adjoining residential area by its management practices. Even a deferred commencement, I do not consider would be appropriate. The communal area has been proposed and it is a matter for council to determine for the establishment. And then for a communal areas common room(s) be satisfactorily operating before consideration should be given to extending the hours of the rooftop.

39 Clearly the approved use of the building was an intensification of the existing building. It is not a matter for me to question the council's determination in terms of approving the application for the back packer/motel use but without a communal facilities of a reasonable size and standard for the numbers of people within the building the amenity of the adjoining area could be impacted given the use the conversion of a certain number of rooms to provide common room on each level would also be an option.

40 I raised at the end of the proceedings the question of a trial period but I am not persuaded even that a trial period should be allowed at this stage, especially as it is seven days a week until midnight. There must be a recognition that this building has an interface with a residential area.

41 I agree with the applicant’s planner the late night trading development control plan, is not a relevant document and I also agree with the applicant’s planner said that, nonetheless the amenity impacts must be considered under s 79(c) of the Act. In terms of s 79(c) I do not consider the proposed extended hours are appropriate for the location without a demonstration that this use can be a good neighbour and there should be a commitment liase with the community and to be the first point of contact for complaints on behalf of the owner operator to the requirement for monthly meetings should remain in the management plan. I did not have any explanation as to why it was deleted and the implementation of the management plan was a requirement of the approval granted by the Small Permits Committee.

42 Whilst it has not been determinative, in my decision the evidence to the Court in an issue of the Easyrider latest magazine 23 to 29 June 2008 has a double page ad for the Rooftop Travellers Lodge, the subject premises and it states that:

“The Rooftop Travellers Lodge, we cater for groups of four travellers that want their own personal space with all the comforts you need whilst you are living and working in Sydney. The building has 40 bachelor units, hence we house 160 travellers. You get the following...
(the dot points include):
rooftop entertainment with seating for 150 people with immaculate views overlooking the City of Sydney.”

43 Also signage on the rooftop, the outdated signage should be changed and there should be compliance with the current conditions before any consideration be given to a further extension of the hours of operation for the use of this rooftop terrace. The owner operator must show good faith and good intentions in the operation of the current facility before there allowance is given to an extension of hours.

44 In particular, I think it would be inappropriate for this to be seven days a week and that is one reason why I would not allow a trial basis either. The applicant does not need a trial to show good faith that the necessary amenity can be afforded to the neighbourhood.

45 Whilst the applicant did say that it would be an improvement over the current operation, on the other hand the applicant does not require an approval to be proactive in improving the current operations. I say this on the basis that the residents should also expect living in such a location that there will be noise from time to time. The issue is the reasonableness and the time of that noise.

46 Mr Koikas did say that the noise emanating from the rooftop would very much be dependent on controlling behaviour which is why he recommended a supervisor. It may well be this could assist or in fact it would be necessary if there was to be any extension of the hours in the future. In my assessment the installation of flashing lights would do little to control the noise level from the rooftop terrace unless it was supervised constantly and in fact the flashing light system would only be of use to the supervisor in trying to control patron behaviour.

47 With respect to the limiting of numbers of people, I agree with the council officer that it would be difficult in terms of the management of how the proposed security guard will control the behaviour for 65 but more particularly I agree it is how the 65 person limit could be enforced. At the end of the day, controlling the level of noise could be more difficult with a greater number of people gathered on the rooftop, because of the potential for increasing the frequency or occasion for outbursts of loud noise.

48 The applicant submitted that the Plan of Management with a live-in caretaker would provide for an appropriate operational regime together with the acoustic 1.8 metre walls and also submitted that the application had 45 letters of support demonstrating an acceptance of the proposal. I do not accept that the 45 letters of support which are not the people immediately affected demonstrates an acceptance of the proposal.

49 As I stated earlier, at the end of the day, even if the subject premises were to be contained within a commercial zone it will continue to have an interface with the residential area. Under the LEP backpacker accommodation with consent but there is a requirement to prevent the reduction of residential amenity associated and the encroachment of backpacker hostels into nearby residential area needs to be considered.

50 There is a condition in the current consent which states that there is a maximum stay of 28 days. The nature of backpackers and motel users is that they are transient visitors. It was submitted on behalf of the applicant that it is likely that people will be on the rooftop more than once so that they will know the rules. The probability of the turnover of backpackers in such an establishment of this size is there will always be occasions when people are on the rooftop for the first time and would not be aware of the rules unless clearly articulated and notified in terms of signage. Furthermore, I do not accept that motel and backpacker customers are similar to residents that are of a more permanent nature. Clearly when people are on holidays there is an expectation of enjoyment.

51 Accordingly, on the basis of my assessment above the Orders of the Court are:

1. The appeal in respect of the property known as No. 184-186 Glebe Point Road, Glebe is dismissed.

2. The s 96 modification application submitted to City of Sydney Council to extend the hours of the roof top terrace from 9 pm to 12 midnight 7 days per week is determined by the refusal of consent.

3. The exhibits are returned.

___________________

J S Murrell
Commissioner of the Court
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