Rifon 2 Pty Ltd v Sydney City Council - [2007] NSWLEC 693

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Rifon 2 Pty Ltd v Sydney City Council [2007] NSWLEC 693

PARTIES:
APPLICANT
Rifon 2 Pty Ltd
RESPONDENT
Sydney City Council

FILE NUMBER(S): 10375 of 2006

CORAM: Hoffman C

KEY ISSUES: Section 96 Application :- deemed refusal, restaurant/cocktail lounge, increase approved occupancy from 280 persons to 450 persons, increase adverse amenity impacts on nearby residents, trial period of 280 persons not yet commenced.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998

DATES OF HEARING: 4-5/09/2007

DATE OF JUDGMENT:
24 October 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. McEwen, SC
instructed by Dr J. Smith
of DLA Phillips Fox
RESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

23 October 2007

10375 of 2006 Rifon 2 Pty Ltd v Sydney City Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 10375 of 2006 between Rifon 2 Pty Ltd and Sydney City Council in regard to a deemed refusal of an application under s 96AA(1) of the EP&A Act 1979 to amend Condition 39 of approval issued on 13 December 2006 by the Court.

The Locality

2 The consent is to permit alterations of a former Hungry Jack’s restaurant to become a licensed restaurant and cocktail lounge at 23-31 Darlinghurst Rd, Kings Cross. The site is on the north-eastern corner of Darlinghurst Rd and Springfield Plaza. The plaza extends through about 50m to the intersection of Springfield Ave and Earl Place. Those two streets meet at an obtuse angle that appears just a bend in the road since the closure of that part of Springfield that creates the plaza.

3 On the north side of the Place and the Avenue are 1920-30’s apartment blocks of between 3 and 8-storeys. On the south side of the Place and the Avenue are commercial and retail premises of 3 to 5-storeys near the site and higher further away.

4 The plaza is about midway between Fitzroy Gardens with the El Alamein Fountain and the landmark “Coca-Cola” intersection of Bayswater, Darlinghurst, Victoria, Williams, Craig End and Kings Cross roads.

5 On the opposite side of the Springfield Plaza is a vacant bank building that has recently been approved for conversion to a hotel holding about 1450 patrons maximum.

6 On the south side of Darlinghurst Road opposite the site is the Empire Hotel on the corner with Roslyn St and just east of that is the Bourbon & Beefsteak, and the Australian Rules Club. The subject site is fairly central within the main entertainment precinct of Kings Cross.

The approved development

7 The subject site has a 3-storey building on it that contains a number of different uses. The proposal occupies most of the ground floor shared with some small shops and backpacker’s foyer. The upper two floors comprise the back-packers accommodation. The building is also on the corner of Darlinghurst Rd and Llankelly Place. The Darlinghurst Rd frontage of the site is its shortest boundary.

8 The subject application has its main entry on its Darlinghurst Rd frontage and is only 6.5 m long. Adjoining the entry to the east along to Llankelly are 3 retail shops each with about a 3m frontage. The foyer of the back-packers is around the corner in Llankelly.

9 The restaurant/cocktail lounge has about a 32m frontage to the plaza with large openable windows and two existing doorways out onto the plaza from the ground floor along the frontage. Towards the Springfield Ave end of the frontage there is a goods lift directly to the public footpath for kegs and other supplies to be taken to the basement. Closer to Springfield Avenue there is a fire exit from the basement, and a fire exit from the upstairs back-packers that includes an exit from the uppermost level of the proposal.

10 The restaurant/cocktail lounge, due to the existing high ceiling of the ground floor, and excavation for the basement has been designed with 4 split-levels. Level 1 being the basement has the kitchen, store-rooms and toilets. Level 2 is a half level up at the rear as a dining room. Level 3 is at the plaza footpath level and has a food servery, a liquor bar, dining areas and the main entry. Level 4 is at the rear and a half level up and provides more dining and the upper fire exit.

11 The restaurant/cocktail lounge is under construction at the time of the hearing with the basement excavated and supporting structures in place for the 2 floors of back-packers above.

12 The approved plans show Level 2 with dining for 80 persons, Level 3 shows dining for 150 persons and Level 4 shows dining for 65 persons (that totals 295 patrons). The total number of persons to be on the premises at any one time, approved in Condition 39 is 280 persons including patrons, entertainers and staff.

13 The approval allows use as a restaurant from 7am to 8pm, and as a restaurant/cocktail lounge 8pm to midnight, with a trial period for the first 12 months to remain open until 3am. After 11pm the openable windows and doors to the plaza must be shut, and all access except for disable persons must be via the Darlinghurst Road entry.

14 The application seeks to amend the condition to say:

“The population of public areas must not exceed 430 patrons, and total numbers of patrons and staff must not exceed 450.”

15 The plans when scrutinised during the hearing also revealed changes in layout compared to the approval.

16 On Level 1, inter alia, the keg cool room and the office and male toilets are changed to a smaller keg room and a liquor store and smaller toilets. The food cool room and freezer and female toilets are made smaller so that the office can be squeezed in between. Staff lockers are placed in the hallway.

17 On Level 2 tables, booths and chairs are shown for 75 persons dining.

18 On Level 3 there is a split-level area that in the original consent had stairs the full width of the room. In the amendment the stairs are reduced in width to provide more seating, and a balustrade introduced at the split-level. An existing set of doors onto the plaza is deleted and although not nominated it appears as though sliding doors replace it. The existing openable windows to the plaza shown on the approved plans are not nominated as such on the amended plans. There are no elevations submitted on the amended drawings to clarify the matter, so the approved elevations remain in force but are in conflict with the amended plans. The amended plans show tables and seats for 130 persons dining and 30 persons standing at the bar. Also the area near the entry doors off Darlinghurst Rd is no longer nominated as Dining/Foyer. It is shown with tables and as Exit.

19 I noted that the tables on Level 3 are shown as 400mm diameter, with about 800mm between tables and 4 persons shown seated at each. That hardly seems enough space for “dining”. The applicant said they are high bar tables and high stools for informal dining.

20 Level 4 in the amended plans shows an extra storage cupboard and service duct plus tables and booths for 60 persons dining.

21 The applicant explained that the changes to the plans reflect the private certifier approved Construction Certificate plans.

22 I was told by the applicant, that the reduced numbers of toilet facilities would still comply with authority’s requirements for the increased number of patrons.

STATEMENT OF ISSUES

Whether the proposal will compromise the amenity of surrounding residents.

(a) The operational impact of the proposed increase in patron numbers will result in a loss of amenity to residents that live in close proximity to the site by way of noise and disturbance.

(b) The proposed development does not satisfy the objectives and provisions as set out in Clause 7 - 'Planning Principles' of the South Sydney Local Environmental Plan 1998, in particular:

Part E Section 6 of the South Sydney DCP 1997 - Operational Controls.

Issue 2 - Not in the Public Interest

Particulars

(i) "to enable assessment of its operations and achievement of a `good neighbour' relationship with nearby residents'

(ii) "during which the noise generation can be regulated to achieve that currently accepted noise standards" [66].

Issue 3 - Issues Raised By Objectors

Particulars

23 The relevant controls are:

The South Sydney Local Environment Plan 1998 (SSLEP);

The South Sydney Development Control Plan 1997: Urban Design (SSDCP);

City of Sydney Access Development Control Plan 2004;

Strategy for a Sustainable City of South Sydney;

Waste Code for New Developments;

24 The respondent’s evidence came from:

Acting Inspector D. J. Whiteway, NSW Police Kings Cross Command.
Acting Sergeant C. Fullilove, NSW Police Kings Cross Command.
Mr M Lenarduzzi, owner operator of the Funkhouse Back-packers above the site.
Ms K Hamilton, objector and resident #14/7 Springfield Ave (Carinthia Apartments).
Ms M Snelling, objector and resident #2/123 Macleay St (backs onto Llankelly Place.
Mr I Kortlang, objector and resident of #17/11 Springfield Ave, and spokesman for the Body Corporate of Carrisbrooke apartments.
Ms A. Burnett objector and resident of #11/13 Springfield Ave (Vanderbilt Apartments).
Ms J Allan objector and resident #10/7 Springfield Ave (Carinthia).
Ms B Davies objector and resident #20/11 Springfield Ave (Carrisbrooke).
Ms D. Talbot objector and resident #21/57-59 Darlinghurst Rd and spokesperson for some other residents of the Wintergarden Apartments.
Mr H. McCullum objector and resident of Carinthia Apartments, and owner of a unit in Sandringham Apartments.
Mr A Woodhouse objector and resident #12/3 McDonald St, Potts Point, a local resident who walks past the site twice a day for work, and around 11pm at night for the newspapers.
Mr J MacMahon operator for 20 years of the Regents Court hotel at 18 Springfield Ave.
Mr A Rees, town planner and area manager for the council.

25 The parties had agreed on a joint acoustic expert, and the Court appointed Mr R Heggie, acoustic consultant.

26 The applicants evidence came from:

Mr S Cooper, acoustic consultant.
Mr S Lidis consultant town planner.

27 The objectors oral evidence and written submissions from them and others following public notification of the Condition 39 amendment raised the following concerns:

Noise and vibration impacts on the backpackers above
Residential amenity impacts on nearby apartments;
Cumulative impacts of this and other day and night entertainment establishments in the vicinity ;
Social impacts (anti-social behaviour, alcoholism);
Adequacy of noise mitigation measures proposed;
Traffic and parking impacts;
Increased pressure on Police, the Police made submissions on the original application for 280 on the basis of the area is at saturation of licensed premises and police resources have not been increased to control anti-social behaviour;
The bigger the establishment, the more problems it creates.
The trial period of one year intended for 280 patrons has not yet commenced and already the applicant wants 450.
Queuing outside other venues causes opportunities for arguments and street fights. At popular venues, queues often exceed 50m long and block access to other venues causing more friction between operators and patrons.
The footpath outside the main entry of the subject premises is narrow and queuing would restrict or block passage of other pedestrians past the site.
Pedestrians trying to pass, especially if there is a scuffle in the queue or a group of friends waiting together, may step onto the road and be involved in an accident.
It would be preferable to allow queues only inside the premises in the Foyer area shown on the approved drawings, but now deleted in this application.
The queue could easily extend past the 3 adjoining retail outlets that operate at night. If “bent” around into Llankelly Place to relieve congestion in Darlinghurst Rd footpath, the queue would be across the entry to the backpackers. Keeping the numbers to 280 reduces the potential length of the queue.
The conditions prevent queuing in the plaza, so it has to go along into or past Llankelly.
From observation of night spots over the years, residents said queues still form at quiet times because of the delay while patrons show ID, sign to verify signature and still have to wait at the head of the queue while people in front are admitted.
In peak period that usually goes from 11pm until 3am, people at the head of the queue max have to wait a long time until someone leaves to keep the numbers at the allowed maximum. The queue just gets longer during peak periods.
When premises shut at 3am, there is a period of extra noise as hundreds of noisy intoxicated persons leave the area. More numbers will create greater nuisance.
Residents in Springfield Ave and Earl Place get only about 4 hours of quiet time in the streets each night. It is unreasonable to reduce that.
The Franconia apartments in Macleay St back onto Llankelly and will suffer increased nuisance if the queue goes that way.
The proposal increases patronage numbers contrary to the conditions of consent, thereby increasing activity and potential for anti-social behaviour;
Privacy concerns as a result of increased people on the street being able to look up to bedrooms of the nearby apartments and the backpackers above. The majority of bedrooms in the backpackers overlook the plaza.
450 patrons means more people coming and going in the plaza outside, and tarrying to smoke, or coming out to have a break from the crush and noise, all adding to the impacts on amenity already suffered by residents and the backpackers rooms overlooking the plaza.
Additional patrons mean more supplies and garbage collections are needed, and the coming and going of trucks to nearby premises is already a noise nuisance with brakes, engines, and reversing beepers noises. The loading area for the proposal is on the plaza at the closest point of the site to many of the apartments Carinthia, Carrisbrooke, Vanderbilt and Sandringham. The noise will bounce straight up to the apartments.
The site is at the interface of high density residential of Springfield Ave, and the entertainment area of Darlinghurst Rd. It should be a transitional area to preserve some amenity for the residents, not a concentration of night spots. Residents of the area live in Kings Cross because they like the vitality, but sensible controls must apply in mixed use areas so everyone can get along together.
Some residents were given the impression the proposal at 280 patrons was to be a stylish supper club/cocktail lounge that they might go to. It is clear from this application it is seeking to be just another nightclub.
The plaza is a popular spot by day and night already. Unfortunately inebriated people are seen vomiting and urinating, or pausing for a smoke there now. Residents of the apartments can understand conversations of people in the plaza or standing near Darlinghurst Rd now. Increasing the numbers with smokers and others from the proposal, plus the council approval of the hotel for 1450 persons on the other side of the plaza will see unknown changes and increased impacts from activities on the plaza. The trial period is a sensible way to assess the impacts, and the numbers at this proposal should remain at 280 until the trial is done.

28 Mr Rees said the dining table layout and floorspace area meant the proposed amendment was tantamount to nightclub/restaurant, not restaurant/cocktail lounge as approved. It is a change of intensity in the use and the type of use, not just the numbers of patrons. To him a cocktail lounge means people seated in comfortable chairs, the bar stool layout on Level 3 plus the standing room at the bar is not that, and really equates to only a little more than 0.5 sq m per person, which is “standing room only” rate on Level 3.

29 The peak trading period for nightclubs is usually 11 pm – 3 am. So the increased numbers from 280 to 450 will most likely occur then, at times when the residents are attempting to rest. The trial period of midnight – 3 am on the subject premises is to test the impacts of 280 persons using the premises not 450. Also an approval of 450 is not limited to the trial period. So even if the midnight – 3 am opening is refused after the 12 months trial, there will still be 450 permitted up until the midnight closure.

30 If the trial of 280 persons shows acceptable impacts on the backpackers accommodation and the residents nearby, that is the time to consider increasing the numbers of patrons permitted on site at any one time.

31 The main reason for the amendment is to bring the numbers allowed under the development consent into line with the numbers of patrons allowed under the Building Code of Australia (BCA). Mr Rees said the BCA does not take into account environmental impacts etc required under the Environmental Planning & Assessment Act 1979 (EPA). In broad terms, the BCA only provides for fire escape, health, safety and construction.

32 Mr Rees said the increased numbers would make the proposal more like a pub especially on Level 3 that is visible from the footpath. The bar stools and high small tables would give that impression. The original approval was put as an up market cocktail lounge in its “after 8pm” mode. The area shown as Foyer on the original plans was said to allow some waiting or queuing inside the premises not on the footpath, although there was an allowance for some queuing on Darlinghurst Rd frontage that is 6.5m long. No queuing in the plaza is to be allowed, and so with the numbers nearly doubled, any queue has to go south past the 3 retail shops in the same building. The people will block access for those shops. The footpath is narrow outside the entry. The potential for anti-social events in queues outside Kings Cross premises is well know to council staff and the police, he said. It is another reason for the 280 persons restriction at all times and for the extended hours trial.

33 Mr Lidis observed there is no definition of a “cocktail lounge” that would justify Mr Rees description. The restaurant/cocktail lounge will operate under a nightclub licence. He sees it as a nightclub, and the amendment of the numbers will not change that. Pre-8pm it means only 30% of patrons can drink without eating. He said his client would probably accept a condition that only 280 people could be on-site pre-8pm provided the 450 could be on-site after 8pm. The applicant also submitted it would accept a condition of any queuing to be inside the premises.

34 Mr Lidis and Mr Rees discussed that there is another application before the council for a footway licence for 40 seats at tables along the plaza frontage of the premises, but it is not yet determined.

35 In regard to noise and vibration from within the proposal, the experts are in agreement that provided the original conditions of consent are complied with, the noise and vibration will be contained within the licensed premises from 11pm on.

36 Mr Lenarduzzi had expressed particular concern about this. The noise and vibration during construction had effected his backpacker clientele. Since amplified music and a disc jockey are proposed, he had doubts that the acoustic treatments could stop the vibrations of heavy music coming up through the floor and keeping his clients awake. Nearly double the number of patrons in the nightclub must increase the noise substantially too, he said.

37 Mr Heggie assured me that he is confident the backpackers and the residents would not hear or feel the music/noise from inside the premises, provided there is no dancing and once the external doors and windows are shut. He said the 450 patrons inside the building would require additional acoustic and vibration insulation to the building. But that was covered by the conditions about no vibration or noise being felt/heard in the backpackers above, or outside the building during the applicable hours.

38 If the acoustic treatments inside are inadequate, the conditions of approval require further upgrading. That is partly what the trial period is for. The approval of the hotel on the opposite side of the plaza also had a one year trial period for similar reasons.

39 Mr Heggie said, he could do little to control noise of nightclub patrons outside queuing or taking a break, or smoking in the plaza outside. He had done a number of calculations of the likely numbers from the subject premises that might be in the plaza at one time, and compared that to the existing background noise in the plaza, that may or may not mask any noise nuisance for the residents nearby.

40 He thought the extra people on the plaza would make only about 2dbA difference at the apartments, although the number of times noises are heard would go up proportionately. He thought compared to the people coming out of the approved hotel on the opposite side of the plaza (not yet open), any extra from the subject premises would hardly be noticed.

41 He said external crowd control, including any noise they make, is more a matter for security staff through the Plan of Management approved for the 280 patrons. He thought the same Plan of Management would cover increased numbers, the principles remained the same. He agreed he did not say that in his report.

42 He had not recalculated 450 persons inside and their effect on the background noise outside before 11pm when all the doors and the large bi-fold windows could be open to the plaza.

43 Mr Cooper checked the background noise in the plaza after 11pm is 52-53 decibels (dB) and is dominated by mechanical plant of all the buildings nearby between 11pm-3am. He had visited the site to verify that 12 times during noise logging. He calculated the noise of persons from the site who might smoke in the plaza would be well below that.

44 He agreed with Mr Heggie that the Liquor Administration Board (LAB) controls only apply to the licensed area inside licensed premises and that excludes noise controls on external equipment such as air-conditioning plant, refrigeration plant etc. The only control on external noise is s 104 of the Liquor Act 1982 that addresses the “good order and quiet of the neighbourhood”.

45 The applicant handed up Commissioner Hussey’s judgment in granting the original approval. The Commissioner looked at evidence of the cumulative, or compounding effect of the existing and recent approvals for entertainment facilities in the Kings Cross strip along Darlinghurst Rd and nearby streets. The council and the police felt the area is at “saturation” and any future consents or further concentrations must be carefully assessed. The Ealing Town Centre-Case Study (England) had dealt with such matters and provides a proto-type methodology, he said, for assessment, however the base information for such an assessment was not available in the evidence before him.

46 Apparently the council is in the process of a draft development control plan on such matters, but it is not before me in this s.96 application. Commissioner Hussey took the precautionary approach of the trial period.

47 The proposal is in a Mixed Use Zone 10 that allows a wide range of uses that could be said historically to have given Kings Cross its special character. The objectors mostly said one of the reasons they live there is a liking for the cosmopolitan character, but the increasing intensity of entertainment facilities is giving rise to an imbalance in residential amenity versus entertainment activity.

48 The council tendered a chronological survey of the vicinity of the site from 1950’s to the present day showing the numbers of licensed premises. In brief it shows a total of 5 premises existing in the 1950’s, 13 premises existing in the 1960’s, 17 premises existing in the 1970’s, 32 premises existing in the 1980’s, 57 premises existing in the 1990’s and 66 existing premises so far in the 2000’s.

49 Objectives (1)(g) and (h) of Zone 10 give some guidance:

(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and;

50 Both the site and the apartments across Springfield Ave are in Zone 10.

51 In the development control plan referred to, the site including the strip of buildings each side of Darlinghurst Rd are Urban Village Centre precinct and the apartments are in Mixed Use Transitional precinct.

52 It seems to me that the site is at the interface with the transitional precinct of the zone where statutory objectives (g) and (h) come into play. Some caution is justified in sensitive locations such as this. The trial period for the midnight to 3am opening and the restriction at all times of 280 persons on-site are fundamental to the existing consent.

53 It is noted that the actions that can be taken under The Liquor Act 1982 may not necessarily involve the reduction of permitted numbers of persons on the premises, when as the respondent puts, the usual limit for LAB purposes is set by the BCA. In this case the approval under the EPA has taken into account a limit of 280 persons on-site as part of the permanent consent for 7am-midnight opening. The 280 persons are also part of the 12 month trial of midnight-3am opening, and of course, that part of the consent is temporary.

54 A boost now to 450, before the inaugural opening of the restaurant/cocktail lounge, leaves no flexibility to reduce the numbers back to 280 or some figure in between for the 7am-midnight opening period each day. Much of the evidence in this appeal focused on the midnight-3am trial period. The midnight-3am opening can be eliminated, if the trial reveals unacceptable impacts.

55 I bear in mind that it is the whole opening period that will be effected by almost doubling the patron capacity of the restaurant/nightclub, a factor that never arose during the original Hearing and approval process before Commissioner Hussey.

56 This amendment sought to that consent must be refused so that the amenity impacts either acceptable or not can be assessed during the trial period and a further decision taken by the council in the light of those events.

57 The Orders of the Court are:

1. Section 96 Application refused and the appeal dismissed.

2. Exhibits are returned to the parties except Exhibits 4, 5, 9, C and D.

K G Hoffman

Commissioner of the Court

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Rifon 2 Pty Ltd v Sydney City Council [2007] NSWLEC 693

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CITATION:	Rifon 2 Pty Ltd v Sydney City Council [2007] NSWLEC 693
PARTIES:	APPLICANT Rifon 2 Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10375 of 2006
CORAM:	Hoffman C
KEY ISSUES:	Section 96 Application :- deemed refusal, restaurant/cocktail lounge, increase approved occupancy from 280 persons to 450 persons, increase adverse amenity impacts on nearby residents, trial period of 280 persons not yet commenced.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998
DATES OF HEARING:	4-5/09/2007
DATE OF JUDGMENT:	24 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr P. McEwen, SC instructed by Dr J. Smith of DLA Phillips Fox RESPONDENT Mr S. Kondilios, solicitor of Maddocks Lawyers