Pp Tike Group Pty Ltd v Council of the City of Sydney - [2012] NSWLEC 1081

Land and Environment Court

New South Wales

Medium Neutral Citation: PP Tike Group Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1081
Hearing dates: 27, 28 February 2012
Decision date: 02 April 2012
Jurisdiction: Class 1
Before: Hussey C
Decision:
(1)The appeal is dismissed.
(2)Development Application No D/2011/963 for the change of use of existing retail space and artist studio, to a new licensed, fine dining restaurant with bar at the lower level and a maximum of 70 patrons at 263 - 265 Riley Street Surry Hills is refused.
(3)The exhibits may be returned except A, 5, 6 and 7.

Catchwords: DEVELOPMENT APPLICATION - Application for licensed fine dining restaurant, hours of trading, residential amenity, parking, amenity
Legislation Cited: Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2011
Cases Cited: Icon Hospitality Management Pty Ltd v City of Sydney Council [2007] NSWLEC 239
Sevenex Pty Ltd v Sydney City Council [2011] NSWLEC 1241
Category: Principal judgment
Parties:
PP Tike Group Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)
Representation:
Counsel
Mr A Galasso SC (Applicant)

Mr I Hemmings (Respondent)
Solicitors
Mr D O'Donnell
Addisons Lawyers (Applicant)
Mr A Hawkes (Respondent)

File Number(s): 10988 of 2011

Judgment

Background

This appeal was lodged against council's deemed refusal of a development application for the use of an approved retail space for a licensed, fine dining restaurant, located at 263 - 265 Riley St, Surry Hills.

The site has been the subject of a number of development consents including that granted on 15 December 2009, for alterations and additions to the existing heritage building and use of the building as an artist's workshop (lower ground floor), retail space and terrace with an artwork dome (ground floor), and a three bedroom apartment (first and second floors, and roof deck). It includes removal of a tree on the western boundary and construction of a three storey dwelling with basement car park at the rear of the heritage building facing Little Riley Street and Reservoir Street

The contentions concern:

The consistency with the objectives of the South Sydney LEP, particularly objective (b) that it is of the scale and nature that does not enhance the quality of life and well-being of the local community.
It is inconsistent with the residential medium density zone objectives due to its scale and resultant amenity impacts.
Excessive hours of operation.
Noise impacts.
Parking amenity.

The site

Number 263 - 265 Riley Street, Surry Hills is a corner allotment and has three street frontages, comprising primary frontages to Riley and Reservoir Streets and a secondary rear frontage to Little Riley Street.

The site has a combined area of 292.3 sq m and is occupied by a building that is a former Hotel (known as 'the Reservoir Hotel', which ceased use as a hotel circa 1910) located on the eastern portion of the site.

The proposal

The proposal forms part of the original development consent for the site wherein approval was granted for an artist's workshop on the lower ground floor and retail space and a terrace at ground level. This proposal now involves:

Change of use and internal fit-out of existing retail space and artist studio for use as a licensed restaurant;
New glass bi-fold doors to ground floor outdoor terrace area at the Reservoir Street elevation;
Internal fit-out to lower ground floor as an area for dining catering for large groups including a bar area;
Proposed trading hours are between 5.00 pm and 10.00 pm Tuesdays to Thursdays, with a 1 year trial consent for extended trading until 11.00 pm, and from 12.00 noon until 10.00 pm on Fridays to Sundays with a 1 year trial consent for extended trading until 12.00 midnight on Fridays and Saturdays;
Maximum patron capacity of 70 patrons.

The Applicant relies on the provisions of a Plan of Management (POM) to ensure that there will be an acceptable amenity outcome for the operation of the restaurant.

Planning controls

The following planning controls apply:

Environmental Planning and Assessment Act, 1979;
Environmental Planning and Assessment Regulation, 2000;
South Sydney Local Environmental Plan (LEP), 1998;
Draft City Plan Local Environmental Plan 2011 (Draft City Plan);
South Sydney Development Control Plan (DCP), 1997 - Urban Design (in force on 2 July 1997, as amended);
City of Sydney Heritage Development Control Plan 2006;
City of Sydney Late Night Trading Premises Development Control Plan 2007 (LNTDCP);
Development Control Plan No. 11 - Transport Guidelines for Development 1996 (adopted 6 May 1996);
City of Sydney Access Development Control Plan 2004 (in force 28 June 2004);
City of Sydney Notification of Planning and Development Applications Development Control Plan 2005.

The evidence

Detailed evidence was presented by:

Mr J Mead; Respondent's consulting planner
Mr L Marshall; Respondent's traffic/parking consultant
Dr R Tonin; Respondent's acoustic consultant.
Mr P Strudwick; Applicant's consulting planner
Mr T Rogers; Applicant's traffic/parking consultant
Mr R Haydon; Applicant's acoustic consultant.

A number of residents expressed their objections to the proposal, which have been considered in conjunction with the council issues and are summarised as follows:

The scale of the proposed development is not compatible with the surrounding residential area.
Insufficient parking available
Adequacy of garbage disposal arrangements.
Noise impacts.

Planning controls

The subject land is zoned 2(b) Residential (Medium Density) under the South Sydney LEP 2008, wherein the relevant principal objectives in cl 7 include:

(b) to enhance the quality of life and well - being of the local community, and...

Clause 10 provides:

10 Zone objectives and general development controls

Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located.

The relevant zone objectives are contained in cl 12 and provide:

(a) to enhance the amenity of existing medium density residential areas, and

(b) to nominate those localities which are primarily residential and where future residential development is likely to occur, and

(d) to provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and

(f) to facilitate opportunities for small scale local business activity which is compatible with existing residential areas

Associated development controls are contained in SSDCP 1997 and provide for:

Part 4; Non-residential buildings are to reduce their operational impact on adjacent residential areas.
Part 6; The objectives that apply primarily to non - residential uses are:

To ensure traffic generation, parking demand, noise, air and water discharges, waste storage and removal, working hours, ... will not have a detrimental effect on the environmental amenity.

Other controls are contained in the LNTDCP, which aims to manage the impacts of late night trading premises, particularly to protect the amenity of residential properties. The key points in this strategy include:

To allow for opportunities for late night trading premises in appropriate locations.
The late night trading period covers the hours between 10 pm and 7 am the following day.
Late night trading approvals are subject to a series of ongoing trial periods.
Categorisation of late night trading premises on the basis of:

•Category A Premises - High Impact;
•Category B - Low Impact;

Definition of late night trading areas; The area categories are shown in the maps in Section 3.2 of the DCP and include:

•Late Night Management Areas
•City Living areas, and
•Local Centre Areas
•"Other Areas", not designated for late night trading.

Section 2.6, which lists specified matters for merit consideration and relevantly includes:

a. the location and context of the premises, including proximity to residential and other sensitive land uses;

b. the specific nature of the premises, ie pub, nightclub, restaurant etc and the proposed hours of operation

c. the existing hours of operation of surrounding business uses...

Buffer zones; which are to provide a transition from the higher intensity areas to the lower intensity areas, particularly the residential areas.

Consequently, the application of these controls results in the site not being located within a defined area under the LNTDCP and it is separated from Crown Street, which is a defined Local Centre Area and contains a number of late night trading establishments.

Accordingly, the main issue arising from the consideration of these controls concerns the scale of the proposed restaurant, operating within the existing residential 2(b) zone in terms of noise emissions and the limited on-street parking adverse amenity impacts due to with the potential to cause unreasonable amenity impacts in the residential zone. These matters were addressed by way joint conferencing resulting in the following outcomes.

Acoustic impacts

The acoustic concerns relate to both potential internal and external noise nuisance. Particular concerns were expressed by residents about noise emitted from the restaurant area adjacent to the louvres in Reservoir Street and from patrons congregating/smoking in the street or moving around the vicinity of the restaurant. Consequently the experts agree that appropriate noise criterion is for sleep disturbance after 10 pm is LA90+15.

Insofar as both consultants undertook separate noise surveys and Mr Haydon also surveyed noise behaviour at other restaurants, they agree that:

The internal noise levels can be controlled be construction techniques and covered by conditions of consent.
The noise from the bi-fold doors is acceptable at 152 Reservoir Street which is the nearest residential premises outside of the subject site boundary.
Other matters including the transmission of sound through the common walls of neighbouring residential premises, noise transmission to the commercial lot situated above the restaurant, noise from mechanical plant and an acoustic specification for the bi-fold glass doors can be covered by the conditions.
Noise from patrons smoking on the street or leaving the restaurant (including the slamming of car doors) marginally exceeds the sleep disturbance criterion but taken on the whole, the exceedence noted is marginal.

Apart from this, the experts disagree on noise levels on the balcony of the adjacent residential apartment Unit 1 located within the subject site boundary. The differences arise from the methodology used in the calculation and in the impact of noise reflected from the building façade located on the opposite side of the street.

In respect of the POM, Dr Tonin makes the observation that the incidence of patrons speaking loudly or shouting in the street is not something that could be controlled by such plan. However Mr Haydon is of the opinion that noise from patrons outside the premises will be acceptable on the basis of his surveys of five other restaurants on nine occasions

Parking/traffic

This contention concerns the impact on the local road network and particularly the availability for parking within 200 - 250 m of the site. From their investigations, the traffic/parking experts agree that:

On-street parking within 250 metres of the site is generally time restricted (one or two hours with residents exempt) until 10.00 pm.
There is a high demand for on-street parking (over 90% of spaces occupied) in the evening between 6.00 pm and 10 pm with any vacant spaces generally time restricted.
The site is located close to public transport services including bus services along Oxford Street (350 m) and Elizabeth Street (400 m) and is located within 800 m of Central Station.
A large number of vacant taxis travel along Riley Street past the site between 6.00 pm and 12.00 am (midnight). Many patrons will travel by taxi to an upmarket restaurant in the Surry Hills area.
The nearest public car parks are located within the Sebel Hotel on Albion Street (500 m) and Council's Goulburn Street car park (700m).
DCP 11 would allow a maximum of 10 spaces for the proposed restaurant. Although council has a maximum parking provision in order to encourage people to travel by means other than car.
The pedestrian surveys undertaken by Mr Rogers found that Riley Street and Reservoir Street carry high volumes of pedestrian traffic between 6.00 pm and 12.00 am midnight.

Insofar as both Mr Rogers and Mr Marshall agree that some restaurant patrons will drive to the proposed restaurant, they do not agree on the number who will travel by car, where patrons will park and the impact on the surrounding area.

Based upon available census and survey data, Mr Marshall suggests that the proposed restaurant requires 13 parking spaces (3 more than the maximum allowed by DCP II). As no on-site parking is provided and there is limited on street parking available, it is Mr Marshall's view that cars will circulate adjacent streets looking for a parking space and may park illegally. Some car drivers may park in the nearest public car parks and walk to the restaurant. Some staff will drive to work. In the circumstances he does not consider the parking outcome will enhance the amenity of the residential area.

Against this, Mr Rogers says that parking demand will be lower than the maximum suggested in DCP 11, due to the sites inner city location and limited availability of on-street parking. This will discourage patrons driving to the restaurant and patrons will travel by other means. Those patrons that do drive are likely to park in the nearest parking stations in Albion Street and Goulburn Street and walk to the site (possibly after dropping off passengers) and either walking or catching a taxi back to the parking station.

This outcome is likely to be assisted on the basis that the restaurant will provide the following information on how best to travel to the site:

On its web site provide information on how best to travel to the site (available bus services and location to central station, availability of taxis, suggest that patrons who drive park in the Sebel Hotel car park or Goulburn Street car park).
When making a phone booking inform patrons that if driving, no on-site parking is provided and that due to limited on-street parking, suggest that patrons park in the Sebel Hotel car park or Goulburn Street car park.
On departure assist patrons in booking or hailing a taxi.

Planning considerations - character of the area

In response to the various references requiring consideration of the impacts on the amenity of the area, the planners expressed differing opinions on the areas character and amenity. According to Mr Strudwick, the site is within an area with a mixed-use character and is located on a major access road within the Surry Hills area where the general amenity is affected by high levels of vehicle and pedestrian activity. Whilst he acknowledges some residences (generally terrace housing) exist predominately south of the site, nevertheless, he considers the area as one not distinctly characterised by residential development and associated amenity.

Against this, Mr Mead says that the character of the surrounding area cannot be broadly described but needs to be broken down almost to block-by-block areas. In contrast to Crown Street, Campbell Street, or Albion Street, he considers that the site falls within an area predominated by residential uses and some small scale commercial uses and consequently does not agree with the broader approach taken with the Land Use Survey prepared by Mr Strudwick.

Instead, Mr Mead considers it more appropriate to look at the specific nature of the retail and commercial uses in the area to describe its general character and amenity. This approach shows that there are retail and commercial uses within close proximity to the site, and throughout the 2(b) zone within which the site is located. But they mainly operate within business hours and are of a small scale. Furthermore, he says that there are no late night trading bars or restaurants within this part of the 2(b) zone neighbourhood. This results in relatively low activity levels during the evening, particularly the late evening, within the site surrounds.

From this, Mr Mead says that that the proposal cannot be considered to enhance the quality of life and wellbeing of the community if acoustic impacts and parking impacts are found to be unacceptable. Whilst there may be a potential benefit to the community of having an additional fine dining restaurant in their immediate area, nevertheless those benefits will be enjoyed by only part of the community and at the same time the proposal will detract from everyday amenity for immediate and nearby neighbouring residential properties

With respect to the amenity considerations, Mr Strudwick considers that the term 'amenity' in the context of cl 7 of the LEP and also objective (a) of the zone objectives within the LEP does not equate to a measurement of noise impacts, but rather a broader term incorporating noise impacts. He considers the proposal provides an amenity to the area, being a fine dining restaurant that is unlikely to contribute to unreasonable noise impacts.

Furthermore, he considers the proposal will provide goods, services and employment opportunities to the local area and is located on a site that is accessible and legible within the local area. To this end he says the proposal will enhance the amenity of the local area and that the reuse of the former hotel building for a commercial use also provides a benefit to the local community.

Scale of development

The associated contention concerns the proposed scale of the restaurant in terms of satisfying the zone objectives (a), (d) and (f). Whilst Mr Mead acknowledges that objective (d) encourages certain types of non-residential development, nevertheless this is on a limited opportunity basis, type and scale. In terms of scale as referred to in Objective (f), he considers that the proposal must be compared to other restaurants and uses in the area, as this is a comparative term.

On this basis, Mr Mead does not consider the size of the restaurant is small when compared to the capacity of the nearest food premises (113-115 Riley Street with 25 seats and 249 Riley Street with 20 persons) as well as when compared to restaurants across Surry Hills. According to his survey, a restaurant of 70 persons places it as being larger than 8 of 13 restaurants listed in the Sydney Morning Herald's 'Good Food Guide' for Surry Hills.

In addition to this, Mr Mead says that the scale of the proposal must also take into account the hours of operation. As there are no other late trading dining establishments within the 2(b) zone within which the site sits and 12 midnight trading on Friday and Saturday nights is characteristic of the later trading uses generally concentrated along Crown Street, he considers that the zone objectives encourage less intense non-residential uses similar to those that have been identified in proximity to the site. Therefore the proposal does not satisfy these controls.

Against this, Mr Strudwick says it is inappropriate to measure the adequacy of the scale of the proposal against what are essentially nearby cafes at a singular point in time. Instead, he considers that the existing non-residential purpose of the building and the reuse of that building for a use that has previously be approved and operated on the site, together with the resultant acceptable impacts arising from the scale of the use and also the underlying amenity of the surrounding area are all matters that contribute the acceptability of the scale of the proposal. His conclusion is that the type and scale of the proposal is one that is compatible with the existing residential development in the area.

In terms of objective (f), which refers to opportunities for small scale local business activity which is compatible with the existing residential area, both planners agree that whilst it would be essential to provide services to the local area to be consistent with this objective, the provision of such services would not be required to be exclusive to the local area.

Accordingly, Mr Mead considers that the importance of this objective is in assessing the types of impacts associated with business that have different customer catchments. In the subject case the fact that the restaurant will rely on several patrons from outside the local area to be viable will likely lead to greater car use and parking impacts. Consequently, he says that the combination of the proposal not being classified as small scale and drawing patrons from outside the local area results in incompatibility with the existing residential area and, therefore conflicts with the objective.

Notwithstanding that the customer catchment will extend outside the immediate residential neighbourhood, Mr Strudwick maintains that the fact the proposed restaurant draws upon trade from a broader area (not just the local area) does not constitute a use that is inconsistent with this zoning objective.

In considering the scale of the proposal, Mr Strudwick says that due regard should be given to the fact that the building was originally constructed as a non-residential building (specifically a hotel) and therefore its physical scale (i.e. potential patron capacity) has already long been determined. The proposal simply seeks to occupy this space for another non-residential use, it being noted the space has previously been approved and used as licensed restaurant for approximately 100 patrons.

Therefore, having regard to the original intention and scale of the building for a non-residential use, the anticipated peak trading time at approximately 8.30pm, and also the relatively high level of pedestrian and vehicle activity on the immediately adjacent streets, Mr Strudwick considers the scale and intensity of the proposal is one that is acceptable for the area in which it is located.

Plan of Management (POM)

Contention 6 concerns the ability to manage external impacts arising mainly from patron's activities near the restaurant. This includes noise from patrons congregating and smoking in the street, waiting for taxis and patrons returning to their vehicles. In response to these concerns, Mr Strudwick identified in his statement a raft of management measures that can be included in the POM to adequately manage them.

Such measures include:

The strict enforcement of the maximum capacity of the premises to 70 seated patrons.
The appointment of appropriately trained staff, particularly in the responsible service of alcohol, and the issue to all staff of the House Policy clearly stating expectations of them in carrying out their role
The encouragement of customers to make bookings, and this being published in various marketing material
The encouragement of customers who arrive without a booking (and for capacity reasons cannot be seated) to be asked to return rather than wait outside
The prohibition of staff spending their scheduled breaks on the adjoining public streets during the late evening period or following closing time
The practice of all waiter staff to offer to call customers a cab on their behalf prior to leaving the premises and (through the manager/host) coordinating the pick-up of customers directly adjoining the premises
The placement of appropriate signage within the premises (and external to the premises) requesting customers leave the area in a quiet and orderly manner respecting residential neighbours
The placement of a Manager/host near the entrance to the restaurant responsible for monitoring activities within the street frontage of the property to ensure customers enter and leave the premises in an orderly manner
The placement of CCTV camera surveillance capturing the area outside the Reservoir Street entrance allowing monitoring of activity and necessary refinements to management practices, if required
The closure of the bi-fold doors within the terrace area at 10 pm sharp
The punctual closure of the premises at the nominated times
Any significant noise disturbances and misbehaviour (including complaints from nearby residents) to be logged by Restaurant Management and actioned/recorded appropriately.

Conclusion

In determining this matter, I have undertaken a view and carefully considered the competing evidence and submissions. From this it is apparent that there is a comprehensive set of planning controls that apply in this residential 2(b) area where the principal objective is "to enhance the quality of life and well - being of the local community...".

Relevantly, the hierarchy of controls provide for:

A set of zones in the LEP that permits various uses to facilitate a transition from the more intense late night trading areas in mixed use zones to those in the residential zones, resulting in different amenity outcomes.
Late night trading areas; which cater for varied social and recreational activities with identified base and extended trading hours for Category A (high Impact) and Category B (Low Impact) premises. The DCP provides for the late night trading areas to be 'buffered' from the less intensive 'City Living Areas', 'Local Centres' and the residential areas.
Development controls, which prescribe parking requirements.

Consequently, in the subject matter, the site is located within the 2(b) Residential (Medium Density) zone and in my assessment the area surrounding the site is predominantly residential with interspersed low-scale, commercial uses, as described by Mr Mead.

Insofar as the associated late night trading controls classify this proposal as a Category B (low impact) premises because there will be less than 120 patrons, nevertheless I consider an associated and important consideration that the subject site is not located within a 'late night trading area'. Instead it is shown on the map in section 3.2 of the DCP as a non-designated "Other Area". Significantly, the DCP does not specifically provide for base or extended trading hours for Category B premises in these 'other areas'.

Notwithstanding this, s 2.6 of the DCP does list a number of matters for consideration and I have considered the applicant's response to these. I also note the applicant's further concessions to reduce the operating times of the basement level so as to close at 10 pm. Also, that careful management of the premises would enable regular review of its impacts during the ongoing trial periods.

In acknowledging some of the planning limitations on the site, Mr Galasso submits that due consideration should be given the primary intent of the application that it is for a "fine dining restaurant" operated by an established operator - Claudes Restaurant. Consequently, in the circumstances of this case, attention should be given to the provisions of the LNTDCP, which allows consideration of operational matters to "other similar premises within the company's portfolio". The submission is that effective "fine dining restaurants" are likely to have lesser impacts on the area than other high turnover lower end restaurants or hotels.

In this regard, it is apparent to me from the evidence that there are significant difficulties in accurately defining the "fine dining restaurant" use, so as to maintain this use and avoid different amenity impacts should the use revert to a 'normal restaurant'. Whilst reference was made to Mr Strudwick's limited surveys of patron behaviour at other similarly described restaurants, I do not consider the relativity was established to a point where any acceptable draft conditions were presented, which would effectively ensure only "fine dining" use.

With regard to the scale of the proposal, I am satisfied to rely on Mr Mead's approach, which has involved a detailed survey of the surrounding land uses in the residential 2(b) area. As the one of the purposes of the planning controls is to give some certainty as to where the residential development is primarily located and non-residential development is to be limited in type and scale, I think that the proposed 70-seat restaurant is not consistent with the 'small' scale of the existing commercial developments, as evidenced by the survey.

Therefore, I also consider significant weight should be given to the circumstances that there are no other late night trading premises near the subject premises. This situation establishes a level of amenity that would be changed by the approval of the comparatively 'large scale' 70 seat restaurant.

Consequently, I rely on Mr Mead's opinion that in the context of the hierarchy of zones under LEP 1998, that the potential amenity impacts of non-residential uses must be more carefully considered for a residential zone than if the site was within a mixed use zone. Whereas the mixed-use zone requires compatibility between non-residential and residential uses, the 2(b) zone is more specific in relation to limiting scale of development and encouraging development that "enhances" the amenity of the residential area. Whilst the 2(b) zone allows for non-residential uses its emphasis is on specifically protecting residential uses and amenity and this contrasts with the mixed-use zones where the residential amenity may be more compromised to some extent.

In this case the identified amenity issues concern parking and acoustic matters. I accept that there is limited on-street parking available and that there is competition for the limited spaces. The residents who are able to utilise the residents parking scheme confirmed this.

Whilst it has been submitted for the applicant that some patrons will be deterred by the lack of convenient parking and not drive to the restaurant because there is ready access to passing taxis and parking stations, this was not quantified. The traffic experts could not estimate the number of patrons travelling by car and their parking preferences. Notwithstanding this, I note their agreement that the current on-street parking situation represents a poor level of service, which is unlikely to significantly change as a result of patrons circling the area for parking.

However, I do have some concerns about the patrons' preferences in driving to the restaurant based on Mr Strudwick's survey results. As previously acknowledged the surveys results were somewhat inconclusive. But one conclusion that could be drawn from the 'patron egress survey' is that use of taxis is minimal. If this outcome is repeated in the subject proposal, then I do not consider the additional traffic and parking demand would 'enhance the amenity of this existing residential area, as required by the zone objectives.

In any case the council parking code would allow up to ten (10) on-site spaces and Mr Marshall preferred the provision of thirteen (13) spaces to achieve a reasonable balance. Whilst this is not possible, I do not accept the applicant's response that council controls discourage the use of vehicles should be given significant weight in these circumstances because I consider this is not the type or scale of development encouraged in the residential area.

An associated concern is that if patrons do otherwise choose to use taxis, there is not a designated area for safe pick up/drop off at the Riley Reservoir Street intersection. It is of concern that it is apparently proposed to construct a pedestrian crossing at this intersection, which would further limit both temporary and permanent parking near the site. I do not consider that there were any comprehensive management arrangements for patrons pick -up presented to cover the exit period at closing time, which would enhance the amenity.

A concern in this regard is that some patrons may cause noise disturbances whilst waiting in the street or walking to their vehicles. This concern also arises from patrons going outside to smoke or make telephone calls, which the acoustic experts agree, could marginally exceed the sleep disturbance criterion. Whilst this marginal non-compliance may be acceptable in some circumstances i.e. in the mixed-use zone, I consider it is a negative aspect of the proposal because the Residential 2(b) objectives do not encourage this 'larger scale' type restaurant, which would likely detract rather than enhance the amenity of the area.

I have also considered Mr Hemmings' submissions regarding this Court's findings in Icon Hospitality Management Pty Ltd v City of Sydney Council [2007] NSWLEC 239 which dealt with extended trading hours for a hotel in the Zone No 10 - Mixed Use. In that matter, I concluded that:

37 Having considered the evidence, the submissions and undertaken a view, it is apparent that the planning controls identify a hierarchy of late-night trading areas. At one end of the spectrum is the late-night trading entertainment precinct at Darlinghurst Road, Kings Cross where a considerable number of licensed premises trade until 3 a.m., or on a 24 hour basis. Then there are the other late-night trading areas of Oxford Street and Cleveland streets, where a considerable number of premises trade until 3 a.m., some later.

38 The next type of area is the mixed use transitional zone, which I understand and accept is to provide a buffer from the late night trading areas to the other predominantly residential areas. This hierarchy recognises that a different level of residential amenity is likely within the various precincts. Presumably there is more late-night activity and associated noise anticipated in entertainment precinct than in the predominantly residential precincts and the controls seek to maintain this distinction by the incorporation of 'buffers' to prevent the deterioration of amenity.

39 On this basis, I find Ms Oxbys detailed assessment particularly relevant and helpful. This assessment is based on the identification of the 'study area' for the designated Precinct 2 - Mixed-Use Transitional, where the planning intent is to encourage medium density housing and a range of compatible non-residential uses, which "protect the amenity of adjoining residential areas by providing a buffer.

Reference was also made to Sevenex Pty Ltd v Sydney City Council [2011] NSWLEC 1241, which dealt with the use of part of a commercial building situated in the Zone No 10 - Mixed Use. In determining this matter, Commissioner Morris said:

32The LEP and DCP1997 provide a range of controls which go to ensuring the amenity of the area is considered in determining the application. In particular, one of the principal objectives of the LEP is to enhance the quality of life and well-being of the community and the objectives of Zone 10 - Mixed Uses are to allow, in appropriate circumstances a mixture of compatible land uses......to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.

33These considerations are further reinforced in DCP1997 which requires an account of differences amongst South Sydney's mixed use areas to ensure only compatible land uses locate together and the objectives of ensuring uses that locate together are environmentally compatible and respect the character and function of the precinct and above all that they respect the amenity of residential uses. The planning intent of the transitional precinct is to protect the amenity of adjoining residential areas by providing a buffer.

34Similar considerations are included in DCP2007 which states that late night trading hours may be permitted in appropriate circumstances, particularly in areas within the City that already exhibit a vibrant night-time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be greatest and most difficult to manage.

Following these determinations it is apparent that considerable weight is given to the type of developments in the various zones. On this basis the subject land is in the residential zone where suitable non-residential may be allowed if it enhances the amenity. In my assessment, this is a more restrictive zone for non-residential developments and I do not consider the scale of the subject proposal is consistent with the zone objectives. This finding is consistent with Mr Mead's assessment that it may be more appropriate in the 'mixed use transition' zone.

Insofar as section 2.6 of the LNTDCP identifies a number of discretionary factors for consideration, it provides that having considered these, then late night trading may be permitted particularly:

"in areas within the City that already exhibit a vibrant night -time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage."

I do not consider there was any substantive evidence to demonstrate the area around the subject site exhibits a vibrant night-time character. At best, Mr Strudwick acknowledged that there would be a few pedestrians moving along the street in this later period. In my assessment of the evidence, I am not satisfied that the application adequately responds to the s 2.6 factors to allow consent. Insofar as reference was made to the approvals for late night trading at "The Winery" in Crown Street, I do not consider it sets a precedent for the subject application because it is in a different "Mixed-Use" zone and appears to more appropriately fit the "vibrant night-time character".

I note that there is the Draft Sydney LEP 2011 that was placed on exhibition in February 2011. Under it the site is within the R1 General Residential zone (which is subject to revision), where food and drink premises are permissible with consent. However as there was no substantive evidence regarding its imminence and certainty and the planners made little reference to it, I give it little weight.

In summary then, I am not satisfied that this proposal represents the type of small-scale non-residential use envisaged by the residential 2(b) zone objectives. I rely on Mr Mead's surveys and opinion that this 70-seat restaurant is not of small scale in the subject context and therefore not compatible with the existing residential development. I think there are significant difficulties with the POM provisions in effectively managing the entry/exit and congregating arrangements whereby there is a real likelihood that the approval of the application will not enhance the amenity of this residential area as required by cl 10 of the LEP.

In reaching this conclusion, I have considered the submissions regarding the type and scale of the uses already approved in the redevelopment of the site and accept that their amenity impacts would likely be considerably less and therefore acceptable. Apparently an art gallery or commercial use would only require parking in the order of two (2) spaces and the hours of operation would unlikely extend past 10 pm and according to the submissions for council, is the type and scale of non - residential development preferred in the residential area.

Court orders.

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No D/2011/963 for the change of use of existing retail space and artist studio, to a new licensed, fine dining restaurant with bar at the lower level and a maximum of 70 patrons at 263 - 265 Riley Street Surry Hills is refused.

(3) The exhibits may be returned except A, 5, 6 and 7.

R Hussey

Commissioner of the Court

Decision last updated: 05 April 2012

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PP Tike Group Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1081

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Cases Cited

2

Statutory Material Cited

2

Icon Hospitality Management Pty Ltd v City of Sydney Council [2007] NSWLEC 239

Sevenex Pty Ltd v Sydney City Council [2011] NSWLEC 1241

Medium Neutral Citation:	PP Tike Group Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1081
Hearing dates:	27, 28 February 2012
Decision date:	02 April 2012
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	(1)The appeal is dismissed. (2)Development Application No D/2011/963 for the change of use of existing retail space and artist studio, to a new licensed, fine dining restaurant with bar at the lower level and a maximum of 70 patrons at 263 - 265 Riley Street Surry Hills is refused. (3)The exhibits may be returned except A, 5, 6 and 7.
Catchwords:	DEVELOPMENT APPLICATION - Application for licensed fine dining restaurant, hours of trading, residential amenity, parking, amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2011
Cases Cited:	Icon Hospitality Management Pty Ltd v City of Sydney Council [2007] NSWLEC 239 Sevenex Pty Ltd v Sydney City Council [2011] NSWLEC 1241
Category:	Principal judgment
Parties:	PP Tike Group Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel Mr A Galasso SC (Applicant) Mr I Hemmings (Respondent) Solicitors Mr D O'Donnell Addisons Lawyers (Applicant) Mr A Hawkes (Respondent)
File Number(s):	10988 of 2011