Reserve Hotels Pty Limited v City of Sydney Council

[2007] NSWLEC 761

Land and Environment Court

of New South Wales

CITATION:

Reserve Hotels Pty Limited v City Of Sydney Council [2007] NSWLEC 761

PARTIES:

APPLICANT
Reserve Hotels Pty Limited

RESPONDENT
City Of Sydney Council

FILE NUMBER(S):

10639 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Alterations and refurbishment of an existing commercial building for use as a pub, gamining lounge and bistro.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2005
Liquor Act 1982
Central Sydney Development Control Plan 1996

DATES OF HEARING:

31/10/2007 and 1/11/2007

EX TEMPORE JUDGMENT DATE:

1 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister
Instructed by Mr B Bulford
of Bruce Stewart Di Marco

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

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

1 November 2007

10639 of 2007 Reserve Hotels Pty Limited V City Of Sydney Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 On 28 November 2006, the City of Sydney Council granted Development Consent No. D/2006/660 for significant alterations to and refurbishment of the existing commercial building at 531 George Street, Sydney, for use as a pub, including gaming lounge and bistro. Part of the adjoining Albion Lane is to be utilised as an outdoor seating area. Whilst the premises has a licence that was recently transferred from elsewhere, the approved works have not been completed and trading as a hotel has not yet commenced.

2 The development application was originally refused by the Council but, following amendments to the proposal and a review under s 82A of the Environmental Planning and Assessment Act 1979, conditional development consent was granted. Of particular relevance is condition 5 of the consent that restricts the hours of operation of the pub to between 8am and 12 midnight, Mondays to Saturdays and 8am to 11pm on Sundays.

3 The existing building, known as Taito House, is a heritage item and is described as a four storey, free Gothic style brick building dating from 1881. Notwithstanding its heritage significance, no heritage issue has arisen in relation to the matter now before the Court

4 This appeal relates to modification Development Application No. D/2006/660/B that was made under s 96(2) of the Act and which seeks to modify the development consent by the deletion or variation of conditions 3(a), 3(b), 3(c), 5(a), 6, 10(e), 11(e), 22(a), 27(a), 27(b), 28 and 61.

5 These conditions, variously, relate to the trial period, gaming rooms, signage, the location of automatic teller machines, hours of operation, public entertainment, footway seating and public way obstruction, noise and surveillance cameras and security.

6 According to the Council, many of these proposed changes seek to reverse the amendments that resulted in the Council granting the consent in the first instance. On 10 July 2007 Council determined this modification application by agreeing to some of the changes but not the changes sought for increased hours of operation, particularly those that would have allowed the pub to variously trade until 4am and 6am.

7 The site is situated in the city centre zone under Sydney Local Environmental Plan 2005 and in this zone a pub, being premises specified in a hotelier’s licence, granted under the Liquor Act 1982 is permissible with development consent. The city centre zone applies to most of central Sydney and encourages a wide range of uses.

8 Cl 33 of the LEP requires that the consent authority, before granting consent, must have regard to the objectives of the applicable zone. The variously and most relevant objectives of the city centre zone in cl 36 are:

(a) to encourage central Sydney’s role and growth as one of the Asia Pacific regions principal centres for finance, commercial, retailing, tourism, cultural activities, entertainment and government,
(b) to permit a diversity of uses which reinforce the multiuse character of central Sydney,
(c) to provide increased residential development with appropriate amenity and to ensure the maintenance of a range of housing choices

9 Part 6 of the LEP contains special provisions for certain uses, including late opening pubs. Relevantly, cl 28 contains objectives that require: the minimisation of impacts that may degrade the amenity of the city and, importantly, to ensure that such uses are not concentrated together and that their cumulative impact is assessed.

10 Cl 29 of the LEP requires that the consent authority be satisfied, before granting consent, in relation to a number of matters. The proposal should not have a detrimental impact on the amenity of the locality and its desired character, taking into account the objectives of the zone. It should not result in an inappropriate concentration of that use that could, in turn, result in a detrimental, cumulative impact and would not be detrimental to other uses that are considered to be more consistent with the objectives of the zone.

11 Also applicable is the Central Sydney Development Control Plan 1996. Of particular relevance to this application is s 9 that contains special controls for certain uses, including late opening pubs, and seeks to ensure that uses such as this are located, designed and operated such that the use does not impact detrimentally on the general amenity and safety of the city. The associated strategy acknowledges the mixture of uses in the city centre zone and seeks to discourage the concentration of uses such as amusement arcades, brothels, restricted premises and late opening pubs. The associated objectives seek to ensure that the design, operation, location and cumulative impact of such uses on the surrounding area are taken into account.

12 In August 2001 the Council adopted a policy on trading hours for new and existing premises. That policy sets standard hours for licensed premises as 8am to midnight, seven days a week, plus a one year trial period comprising hours of 8am to 2am, seven days a week. It also provides for the extension or review of trial periods and the manner in which any such application would be considered.

13 The Council now proposes to replace the provisions of the DCP that deal with late night pubs with a new development control plan and, to this end, the Council’s Draft Late Night Trading Premises Development Control Plan 2007 was prepared and placed on public exhibition. That exhibition period recently concluded and the council has not yet had an opportunity to decide its future.

14 It is, nevertheless, indicative of the fact that the Council wishes to make changes to the provisions of the DCP, particularly in relation to late opening pubs. It was not in dispute that upon adoption by the council that the draft DCP would apply to the subject site.

15 The aims of the draft DCP are contained in s 2.1; the main aim being to assist in the management of impacts of late night trading premises (Category A Premises High Impact - a hotel within the meaning of the Liquor Act 1982) on sites and neighbourhoods in which they are located and, in particular, to protect the amenity of residential properties, noting possible amenity impacts such as noise and alcohol related anti-social behaviour.

16 Section 2.1 also identifies, as being of particular importance, the need for high impact night trading premises to demonstrate responsible management over time. Late trading hours are said to be a privilege and will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods. Such hours may be permitted in areas characterised by late night trading where the character can be reinforced or where there is a capacity for more late night uses to operate with acceptable amenity impacts.

17 Section 2.5 of the DCP contains matters for consideration, including the location and context of the premises, including proximity to residential and other sensitive land uses and to other late trading premises, the specific nature of the premises by a pub, nightclub, restaurant et cetera, and the proposed hours of operation, the existing hours of operation of surrounding business uses, the impact of the premises on the mix, diversity and possible concentration of late night uses in the locality, measures to be used for ensuring adequate safety, security and crime prevention, both on the site of the premises and in the public domain, immediately adjacent to and generally surrounding the premises, the accessibility and frequency of public transport during late night trading hours

18 Section 2.5 also provides that:

“Once these factors are taken into consideration, 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 and character where amenity impacts can be the greatest and most difficult to manage.”

19 Section 2.6 of the draft DCP deals with trial periods for extended trading hours provided that approvals for such premises will be limited in time to enable council to assess the ongoing management performance of the premises and its impact on neighbourhood amenity. More particularly, any extended hours beyond the base hours identified will be subject to a trial period. The associated Table 2 identifies indoor base hours for Category A premises as 10am to midnight and indoor extended hours up to 24 hours. The table also indicates that the duration of the trial period is to be one year, renewed yearly and that trial period, where applicable, is to be up to two additional hours.

20 I take this to mean that in the first instance of a trial period for extended hours, those extended hours would be for two hours beyond midnight. I here acknowledge that this approach is very similar to that contained in the council’s trading hours policy.

21 The hearing began on site when I had the opportunity of inspecting the building and its environs. I there heard from two resident objectors, Ms C Strohmeyer of 13/533 Kent Street and Mr R Byrne of 30/533 Kent Street. Mr Byrne also gave evidence on behalf of the owners of Strata Plan 22481, the building known as The Meriton, in which he and Ms Strohmeyer reside. These objectors’ properties have an outlook along Albion Lane and their concerns were mainly that increased use of the lane, together with resulting various kinds of anti-social behaviour, would adversely affect their amenity. Also their early morning use of the Lane would, in terms of their personal safety, be compromised.

22 In dealing with this application, the Court was assisted by the expert evidence of Mr S Cooper, the parties’ single acoustic expert, whose recommendations were incorporated into the conditions of consent and, as a result, there was no issue between the parties in relation to noise.

23 I was also assisted by the evidence of Sergeant A Armstrong of the New South Wales Police Licensing Branch who explained his concerns regarding anti-social behaviour in this locality, resulting from excessive use of alcohol. He was not only concerned as to the impacts on the public at large but also on the police service.

24 Expert planning evidence was provided by Mr P Orr, on behalf of the Council, and Mr J Lidis, on behalf of the applicant, in the form of separate reports and a joint report. Following constructive discussions between the parties, a number of matters that had been in dispute, particularly in relation to conditions of consent, were resolved. And, having considered those, I see no reason why the consent should not be amended accordingly.

25 This left in dispute the principal issue of the hours of operation, particularly the hours beyond midnight. Following a number of questions to and answers from the two town planning experts in relation to how the draft DCP might be applied and taking into account if it were adopted its relationship to the LEP, the applicant agreed to amend its application so as to incorporate a one year trial period with the pub closing at 2am. On this basis the council no longer pressed its objection to the modification of the application.

26 Whilst the draft DCP has not yet been finalised or adopted by the Council there was little, if any, dispute that it is in substance at least, a well founded plan that should be taken into account as a circumstance of the case under s 79C of the Act. Of course, it should be considered in the context of the otherwise applicable LEP. This results in less weight being given to the DCP and the trading hours policy, particularly where there is an inconsistency between them. I wholly endorse this approach and agree that significant weight can thus be given to the draft DCP.

27 By allowing a one year trial period, extending the hours of operation from 12 midnight to 2am, I am satisfied that the objectives of the city centre zone would not be infringed, especially as these objectives will be required to be considered and taken into account when and if the applicant seeks to have the extended hours of operation confirmed.

28 Similarly, the objective in cl 28 of the LEP to ensure that late opening pubs are not concentrated together, taking into account their cumulative impact, is a matter that can be considered and taken into account after the trial period has concluded. In the context of the concentrating together of late opening pubs, I accept that the answer to the question of when a limit might be reached would emerge out of a consideration of cumulative impacts. At this time I have not been persuaded that the limit has been reached but I nevertheless, expect that the trial period should assist in providing an answer to this question.

29 As mentioned above, cl 29 of the LEP requires the consent authority to be satisfied before granting consent in relation to whether there would be a detrimental impact on the amenity of the locality and whether there would be an inappropriate concentration of late night trading premises that could, in turn, result in a detrimental, cumulative impact that would affect the locality of other nearby land users.

30 Similarly, s 2.5 of the draft DCP contains matters for consideration dealing with proximity to residential land uses, existing hours of operation of surrounding businesses, the mix, diversity and concentration of other late night users in the locality, safety, security and crime prevention and public transport. In this context, I accept the evidence of Mr Lidis that the extended hours of operation most likely would have no significant adverse affect on the amenity of George Street and Albion Place and nearby residential development. Again, the trial period should assist in reaching a more definitive conclusion with regard to these matters.

31 As for the concerns of the residents, it is possible, even probable, that as a result of the proposed use of the lane by the pub, together with the introduction of security cameras and security personnel, that there could be an improvement in the amenity of the lane.

32 Taking all of these matters into account, including that the amended proposal is now, in my view, essentially consistent with the approach to extended hours in the draft DCP, I have decided that the appeal should be upheld and the development consent amended in the manner agreed between the parties and as essentially reflected in Exhibit F that will be retained on the court’s file.

___________________

T A Bly
Commissioner of the Court

Cc/ljr