Solotel Pty Ltd v City of Sydney Council

[2007] NSWLEC 230

Land and Environment Court

of New South Wales

CITATION:

Solotel Pty Ltd v City of Sydney Council [2007] NSWLEC 230

PARTIES:

APPLICANT
Solotel Pty Ltd

RESPONDENT
City of Sydney Council

FILE NUMBER(S):

11040 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- alterations to existing hotel, heritage, amenity impacts, equitable access

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Occupational Health and Safety Act 2000
Protection of the Environment Operations Act 1997
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997- Urban Design
City of Sydney Heritage Development Control Plan 2006
South Sydney access Development Control Plan 2004.

DATES OF HEARING:

06/03/2007, 07/03/2007 and 13/03/2007

 
DATE OF JUDGMENT: 

27 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay barrister
instructed by Kemp Strang

RESPONDENT
Mr S. Kondilios solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

27 April 2007

11040 of 2006 Solotel Pty Ltd v City of Sydney Council

JUDGMENT

Introduction

1 This appeal relates to the refusal by the Sydney City Council of Development Application D/2006/01009, which is for the carrying out of alterations to the existing "Clock Hotel" ("the hotel" and "the proposal") at 470 - 474 Crown Street, Surrey Hills.

2 The existing building has frontages to Crown Street, Collins Street and Collins Lane. It extends over three levels with the ground floor opening onto Crown Street and taking into account the fall in Collins Street the basement level is at ground level. The hotel contains a function room at the basement level and various bars, games and gaming rooms and other facilities at other levels. There is an awning level balcony that wraps around the building in Crown Street extending along about two-thirds of the building in Collins Street. The existing hours of operation of the hotel are 10 am to midnight seven nights a week and the function room operates until 1 a.m.

3 The alterations mainly comprise:

• The demolition of part of the existing roof and the first floor structure at the northeast corner (the rear extension) of the building,
• The reconfiguration of the basement level (including the removal of the function room) to form an open Courtyard with a pitched open roof structure to replace the existing roof above the second floor,
• The installation of various noise attenuation devices mainly associated with the Courtyard,
• New bar/lounge areas in the original building at ground floor level,
• Alterations to the Collins Street facade including removal of the function room entry and the hotel entry,
• Various other internal alterations including rearrangement of toilets, stairs and access, bars and the gaming room.

4 The site is located in an area of Surrey Hills, which is characterised by commercial uses including hotels, restaurants shops and car sales along Crown Street and older style attached housing at the rear. Reflecting the existing zoning, the hotel adjoins commercial development to the south and residential development to the east across the narrow Collins Lane. Shannon Park is located to the north on the opposite side of Collins Street.

Planning controls

5 The site is included in the Mixed Use Zone No 10 ("the mixed use zone") under the South Sydney Local Environmental Plan 1998 ("the LEP") and in this zone hotels are permissible with development consent. Properties to the northeast and to the east beyond Collins Lane are included in Zone No. 2 (b)-Residential (Medium Density).

6 The hotel is listed as a Schedule 2 Heritage Item (Inventory Number 2.51) and is in the Burke Street South Conservation Area and the Crown Street Heritage Streetscape Area.

7 Clause 10 of the LEP relevantly requires that consent must not be granted unless the consent authority is of the opinion that the proposal is consistent with the objectives of the mixed use zone. Clause 21 contains a number of objectives providing for a mixture of compatible land uses and the minimisation of adverse impacts on residential amenity. Nuisance generated by non-residential development that might result from operating hours, noise, loss of privacy, vehicular pedestrian traffic or other factors is to be controlled so as to preserve the quality of life for residents in the area.

8 Clause 23 deals with the protection of heritage items and subcl (2) requires that consideration be given to the proposed works and the extent to which these would affect the heritage significance of the item. A statement of heritage impact is required.

9 Also applicable to the site is the South Sydney Development Control Plan 1997 - Urban Design ("the Urban Design DCP"), the City of Sydney Heritage Development Control Plan 2006 ("the Heritage DCP")and the South Sydney Access Development Control Plan 2004 ("the Access DCP").

10 The Urban Design DCP inter alia seeks to ensure that new development respects, improves and enhances the urban village character, this site being included in the Surrey Hills Urban Village. Amenity is to be improved and cumulative impacts minimised, including the protection of acoustic privacy.

11 The application was lodged with the council on 22 June 2006 and advertised on 29 June 2006. Twenty-seven submissions were received including a petition containing 16 signatures all of which objected to the proposal. Matters of concern raised in these submissions include:

• Adverse impacts on the health of neighbours and hotel workers as a result of tobacco smoke.
• Increased traffic movements with resultant noise impacts especially late at night.
• Noisy antisocial behaviour of hotel patrons and adversely affecting residential amenity.
• Likely noise generated from within the hotel again and adversely affecting residential amenity.
• Increased demand for car parking in surrounding streets resulting in less parking for residents.
• Disregard for the heritage significance of the hotel

12 On 25 Aug 2006 the application was refused for the following reasons:

• The proposal is likely to have an adverse impact on residential amenity in terms of noise and environmental tobacco smoke emissions. In this regard it fails to minimise adverse impact on residential amenity and impacts on public health.

• The location of the proposed Courtyard is unacceptable and is likely to impact on the amenity of nearby residential premises particularly with regard to noise and environmental tobacco smoke. In this regard it fails to ensure that nuisance generated by non-residential development such as noise is controlled to preserve the quality of life for residents.

The evidence

13 The Court was assisted by the expert evidence in the form of a joint report of Ms A M Bunting, a council town planner and Mr H Sanders the applicant's consultant town planner. Expert acoustic evidence was provided by the Court-appointed expert Mr M. Harrison. Expert heritage advice was provided on behalf of the applicant by Mr J. Phillips a heritage architect. Mr J Swan a council town planner also gave evidence when Ms Bunting became unavailable.

14 The respondent's amended statement of issues in essence raises the following issues:

• Failure to comply with the heritage requirements of the applicable planning controls.
• Failure to comply with the objectives of the mixed use zone in relation to amenity impacts on neighbouring residential properties.
• Failure to provide equitable access and accessible facilities to the proposed Courtyard.

15 Other issues raised by the residents that warrant some comment involve traffic, antisocial behaviour and cigarette smoke.

Heritage

16 As indicated above the hotel is listed as a Heritage Item and is situated in the Burke Street South Conservation Area and the Crown Street Heritage Streetscape Area. According to the Heritage Assessment and Statement of Heritage Impact prepared by Ms S. O'Neill a heritage architect and consultant the original building was constructed in about 1862 and in 1864 became a hotel. It has been variously altered since that time including the installation of an awning and the first floor balcony. In 1956 alterations and additions to the hotel were carried out including the incorporation of the adjoining garage at 37 Collins Street ("the former garage").

17 The application was referred to Mr I Kirk, council's heritage specialist (as he then was) who advised that there was no heritage objection to the proposed works subject to a number of conditions. These conditions largely relate to the manner in which the works are to be carried out. Similarly Mr N Horiatopoulos, council's urban design coordinator raised no objections to the proposal notwithstanding that in his opinion it would be preferable for more of the main structural elements of the existing roof behind the gable be retained, nevertheless deferring this to the heritage assessment.

18 In his report Mr Phillips addresses the heritage impact of the proposal in the light of the hotel being a heritage item and being located in a conservation area. He notes that the proposed works are principally confined to the former garage building that has little heritage significance. Other works that will affect the hotel are to be carried out where there is little remaining fabric of any significance. The external upper floor elevation and parapet of the building are unaffected by the proposal. Hence the objectives of the Heritage DCP regarding the retention of significant fabric and building elements whilst providing for ongoing use as a hotel are met. Also the external appearance of the elevation to Collins Street will have only minor changes including removal of an intrusive side entry. This will have a beneficial effect on the conservation area.

19 Mr Phillips acknowledged that some of the skeletal structure of the roof would be able to be seen but this is part of the innovative use of this building, which has seen significant changes over time. It would not detract from the streetscape. He concludes that the impact on the heritage significance of the heritage item will be minimal.

20 Mr Swan acknowledged that certain obtrusive elements of the building were to be removed but was concerned that the alterations would not be contributory being neutral at best and possibly even detracting from the significance of the heritage item. In his opinion the roof over the Courtyard should be retained. He thus did not accept that the requirements of the Heritage DCP would be met.

21 In relation to the heritage issue I have been persuaded by the expert heritage evidence of Mr Phillips also recognising the advice of Mr Kirk. I am satisfied that the essential requirements of the Heritage DCP and the LEP have been achieved because the original hotel building that attracts the overwhelming heritage significance will be little affected by the proposed works. Indeed the removal of certain unsympathetic works will be beneficial. I also do not accept that the removal of the roof and the retention of a skeletal roof form whilst being different would be unsympathetic to the heritage item.

Amenity impacts

22 As indicated above the relevant objectives of the planning controls seek the protection of residential amenity and to control nuisance impacts that might result from operating hours, noise and loss of privacy, vehicular and pedestrian traffic. Being located adjacent to residential development in a residential zone any changes to the use of the premises as a hotel that affect the amenity of this residential development must be taken into consideration. This does not mean that such residential development can expect to be totally free from impacts that might result from reasonable development in the mixed use zone. It is a question of balance.

23 No issue is raised by the respondent in relation to amenity impacts such as loss of privacy or solar access, the principal concern involving negative impacts resulting from the more intensive utilisation of the eastern part of the building, especially the open courtyard.

24 Ms Bunting explained that this intensification will result in adverse impacts on the close by residential areas especially in relation to noise. Mr Sanders disagreed explaining that the revised plan of management which includes acoustic management measures and the provision of security staff will ensure that there is no unreasonable impact.

25 Notwithstanding that the proposal is to delete that part of the hotel that presently trades until 1 a.m. on an occasional basis, it is plain that the eastern end of the hotel will be utilised more intensely although only until midnight. By itself this is not a matter of concern instead one needs to consider the consequences of this change.

26 In support of the development application the applicant's acoustic experts, Challis Consulting provided an acoustic assessment of the proposal including details of unattended noise monitoring. These measurements were subsequently verified and supplemented by Mr Harrison (or others employed by him) by the use of a handheld sound meter (sound level analyser) and by personal observation, particularly in Collins Street and Collins Lane where the ambient noise level was lower. These measurements were the subject of some criticism in terms of when and where they were taken. He was nevertheless of the opinion that any impacts on the nearest residential properties including that at 39 Collins Street would be reasonable.

27 Mr Harrison was questioned in relation to the open roofed nature of the Courtyard and the bifold doors between the lounge areas and the Courtyard as to whether, when considered together, the noise generated by both areas would be problematical. He explained that this had already been taken into account in his “worst case” analysis, which shows comfortable compliance with the applicable criteria across the relevant octave bands. Despite this he expressed some concern that it may be possible that the noise criteria could be exceeded if people in the Courtyard are watching and cheering sports events displayed on television screens. Hence the placement of such screens or the projection of images should not be allowed on the eastern wall of the Courtyard. He also noted that noises from other sources such as patrons leaving the hotel will need to be continually well managed although additional traffic noise generation will not be of concern as this will be trivial.

28 Whilst the evidence of Mr Harrison was the subject of some criticism by the respondent it was largely uncontroverted and in my opinion logical and persuasive. I have thus decided that the amenity of the adjoining residential area would not be so affected by noise as to warrant refusal of the application. In this same context it is not necessary to require that the Courtyard be closed any earlier than the otherwise applicable closing time or to impose a patron numbers limit less than that considered by Mr Harrison.

29 Despite this there seems little dispute that Mr Swan is correct when he says that there will be some impact on the nearby existing residential development even if there is compliance with the proposed conditions of consent and the Liquor Administration Board requirements. This coupled with Mr Harrison's concern regarding the use of television screens and the like leads me to agree with the respondent that a condition preventing the use of such devices in the Courtyard should be imposed.

30 As for noise from mechanical plant this is dealt with by a condition of consent that requires that there should be no transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy.

Accessibility

31 In his report, Mr Relf deals with the disabled access issue involving the provision of equitable access and accessible facilities to the basement level Courtyard. In it he takes into account the performance requirements of the Building Code of Australia and the Access DCP and concludes that the proposed works to upgrade access generally throughout the building will provide significant improvements for people with disabilities. Despite this whilst the proposal does not completely comply with these requirements, the solution is nevertheless reasonable.

32 Ms Bunting however was concerned that the Courtyard will not be accessible and that as a consequence the access DCP is not complied with. Mr Sanders understood that the proposal is able to comply with the BCA requirements and that this matter can be addressed through conditions.

33 I agree with Ms Bunting that there is no reason why access to the Courtyard should not be provided. I have thus decided that a condition of consent should be imposed requiring that alterations be made to the Courtyard stair to enable access to it for people with disabilities.

Other issues

34 One of the purposes of the open Courtyard is to provide an area where hotel patrons can smoke cigarettes. This Courtyard and the adjoining balconies will have a capacity in excess of 100 people although it would be unreasonable to assume that this capacity would always be achieved or that most of the people therein would be smoking. It is nevertheless plain that cigarette smoke will emerge from within the Courtyard area via the open roof structure, notwithstanding its two-storey walled enclosure.

35 The father of young Hugo Andreas explained how his son's health condition makes him vulnerable to cigarette smoke. His doctor wrote a letter explaining that such smoke poses a very real problem and a significant risk and that all means need to be employed to prevent such exposure. The Andreas home is located close by in Collins Lane.

36 The respondent did not at any stage raise this as an issue, simply bringing the objection to the Court's attention. The applicant recognised the boy's condition but submitted that individual unusual circumstances such as this cannot be determinative. Whilst not diminishing the concern is it is beyond the Court's responsibility and beyond the scope of its assessment.

37 Whilst I recognise the boy's vulnerability to cigarette smoke I agree with the applicant that his particular and unusual circumstances cannot be determinative of the application. Whilst I can understand the possibility that cigarette smoke could, in certain climatic circumstances, reach the Andreas home, importantly there is no evidentiary foundation that this would occur in a relevantly significant manner.

38 As for a residents' concerns as to the health of hotel workers where they might be at effected by cigarette smoke this is a matter that his controlled by the Occupational Health and Safety Act 2000 and I can assume that its requirements will be complied with.

39 As regards to traffic, whilst the hotel is being upgraded its capacity will remain largely unchanged and as a consequence, traffic generation is likely to be little different. Similarly, I do not expect that patron numbers will increase significantly hence impacts on the amenity of the neighborhood should be little different and should benefit from the applicant's management plan especially taking into account the provision of security guards who are to be positioned inside and outside the hotel.

40 In all of the circumstances I am satisfied that the proposed alterations and additions to the hotel are consistent with the objectives of the Mixed Use Zone and thus warrant approval. The orders of the Court are therefore:

1. The appeal is upheld
2. Development application D/2006/01009 for alterations to the existing "Clock Hotel" at 470 - 474 Crown Street, Surrey Hills is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit B is retained

___________________

T A Bly
Commissioner of the Court
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