Solotel Pty Ltd v Council of the City of Sydney
[2011] NSWLEC 1177
•01 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Solotel Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1177 Hearing dates: 31 May 2011 Decision date: 01 June 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The parties are to file agreed conditions and a Plan of Management that reflect the findings of this judgment by 15 June 2011 and final orders will be issued in Chambers.
Catchwords: APPEAL - application to modify condition of consent for use of first floor of an existing hotel. Extent of trading hours and length of trial period. Consistency with Development Control Plan Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Solotel Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)Representation: Counsel
Council of the City of Sydney (Respondent)
Solicitors
Bruce Stewart Dimarco (Applicant)
File Number(s): 10088 of 2011
Judgment
This is an appeal against the in-part approval by the Council of the City of Sydney (the council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to amend development consent (D/2010/353) for the Green Park Hotel, 360 Victoria Street, Darlinghurst (the site).
The proposal and Background
On 8 July 2010, council approved a development application for alterations to the first floor for a bar, lounge areas, internal terrace and use of the balcony. The s 96 application is seeking to modify condition 2 to amend the trading hours of the first floor to be consistent with those of the ground floor. The s 96 application also sought to amend condition 13 to increase the patron numbers of the ground floor consistent with a previous approval (D/2004/616). On 4 January 2011 council, under delegated authority, approved the amendment to condition 13 and refused the amendment to condition 2.
Condition 2 as approved provides:
(2) HOURS OF OPERATION - SENSITIVE USES
The hours of operation are regulated as follows:
(a) the hours of operation of the first floor internal areas must be restricted to between 10am and 10pm Mondays to Sundays.
(b) Notwithstanding (a) above, the use of the first floor internal areas may operate between 10pm and 12 midnight for a trial period of 12 months from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours.
(c) the hours of operation of the first floor terrace and balcony must be restricted between 10am and 8pm Mondays to Sundays.
(d) Notwithstanding (c) above, the use of the first floor terrace and balcony may operate between 8pm and 10pm for a trial period of 12 months from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours.
(e) A further application may be lodged to continue the trading hours outlined in (b) and (d) above before the end of the trial period. Council's consideration of a proposed continuation of the trial period will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police.
The applicant is seeking to modify condition 2 to enable the use of the first floor until 2am, with a trial period of twenty-four months for the hours between 12 midnight and 2am. Mr Clay, for the applicant, submits that the applicant would prefer that the trial period restrict the maximum capacity of patrons of the hotel rather than the opening hours of the first floor i.e. the maximum number of patrons be 300 from 10pm to 2am, with a two year trial period of 370 patrons between these hours.
The site, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Statement of Facts and Contentions in Reply filed by the council.
The principal dispute between the parties is whether the proposal complies with the Late Night Trading Development Control Plan - Amendment No. 2 (the DCP).
Evidence
The Court visited the site and heard evidence from an adjoining resident who supported the imposition of the trial period sought by council. He noted that he generally was satisfied with the current operation of the hotel but considered the trial period enabled the impacts of the changes to be assessed.
Mr S Cooper, acoustic consultant for the applicant, answered questions on site.
The Court heard expert planning evidence from Mr A Scott, for the council, and Mr H Saunders, for the applicant. The points of agreement of the experts include:
- concerns regarding amenity impacts associated with the premises relate to patrons when they leave the premises and disperse, not to any impacts associated with the activities undertaken within the premises;
- the premises are presently well managed;
- When considering the overall and wider effects of the increase of capacity to 270 persons, the relevant datum is the maximum of 300 persons who were allowed in the premises during the four year period when a deck which was built on the adjoining property was approved;
- the first floor terrace should be considered as part of the interior as it has the characteristics of an enclosed area rather than open space.
They further agreed that 220 people is the number that is presently approved for the ground floor and that the pedestrian surveys (by Austraffic NSW) were undertaken with this approved maximum patron capacity. Based on the surveys, they agree that the level of the pedestrian activity around the site declined after midnight. However, they disagree on the implications of this.
The key disagreement between the experts is whether the inconsistency with the provisions of the DCP relating to trial periods is acceptable.
In Mr Scott's opinion the proposal does not comply with the maximum hours of operation for a late night hotel in a Local Centre Area as specified in s 3.1 of the DCP. This control should be given significant weight as it has been applied in a consistent and predictable manner and should be maintained other than in exceptional circumstances. Mr Scott did not consider the circumstances of the hotel operation to be exceptional.
Mr Scott states that compliance with the aims, objectives and controls requiring good management and minimal impact on neighbouring land uses does not justify non-compliance with the extended hours of operation or variation to the twelve month trial period. In Mr Scott's opinion the expansion of the hotel into the first floor and the increase in capacity has the potential to increase impacts of the hotel.
Mr Scott considered that the character and impacts of the hotel could change through factors such as renovation and use of the first floor, changes in market orientation or ownership of the hotel resulting in increased use or different clientele of the hotel.
Mr Scott's principal concern related to the potential for additional impacts on the public domain such as noise generated by patrons leaving the hotel resulting from an increase in patron numbers. The late night character of the precinct is of considerably lower intensity than the nearby entertainment precincts and they are more susceptible to noise impacts. He noted that the construction of the mixed use building opposite the hotel at 320 Liverpool Street would increase the residential nature and sensitivity of the precinct.
Mr Scott accepted that the design and layout of the first floor with small rooms and the conditions regarding furniture layout and no live entertainment would assist in maintaining the existing character of the hotel and minimising impacts.
Mr Sanders accepts the proposal's non-compliance with the controls for late night trading in s 3.3 of the DCP. However, he considers that the overall aims of the DCP must be considered. In Mr Sanders' opinion permitting the approved first floor area to trade until 2am would not be inconsistent with the main aim of the DCP.
Mr Sanders notes that no adverse amenity impacts had been identified as likely to result from the use of the first floor until 2am or from the two year trial period. Further, the hotel has operated to 2am for a number of years without incident with a maximum capacity of 300 people. The use of the first floor would result in a maximum capacity of 370 people that, in his opinion, is not a significant increase. Mr Sanders thought it is relevant to consider the previous 'good management' of the premises with a maximum capacity of 300 people and that there is no intention to change the operation of the hotel that would result in a change in character or clientele.
Mr Sanders accepts that the level of pedestrian activity in the area decreases after midnight when most of the restaurants close. Nonetheless, the level of pedestrian activity between midnight and 2am is such that the additional patronage of the hotel could occur without any unacceptable increase in impacts. In Mr Sanders' opinion the requirement to close the first floor at midnight may potentially result in greater impacts on the public domain if those patrons exit into Liverpool Street in the event that the ground floor was at capacity.
Findings
The planning framework established by the DCP and its application is set out in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ at [75] raises three important propositions. Firstly, although the Court has wide-ranging discretion, the discretion is not at large or unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element or a focal point in the decision making process, particularly if there are no issues relating to compliance with the local environmental plan. Thirdly, a provision in the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative. The third proposition provides for some flexibility in the enforcement of provisions in the DCP.
The main aim of the DCP is stated in s 2.1 as being:
To assist the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located and, in particular, protect the amenity of residential properties.
Section 2.1 also provides that 'late trading hours are considered to be a privilege'. The DCP includes the following relevant objectives in s 2.2:
(b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses,
....
(j) provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods,
......
(l) ensure that appropriate hours are permitted for outdoor trading, and
(m) ensure a consistent approach to the assessment of applications for premises seeking late night trading."
The premises are identified as Category A - High Impact in s 2.4 of the DCP and it is within a Local Centre Area identified in the maps in s 3.2 of the DCP. Appendix 1 of the DCP includes a character statement for these areas which provides that licensed premises will generally have shorter trading hours than other areas due to the potential to impact on the amenity of surrounding residential neighbourhoods. It states that longer trading hours are acceptable only in 'exceptional circumstances'.
Section 2.6 of the DCP provides matters for consideration in determining appropriate trading hours for late night trading premises, which include:
(a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises,
.....
(c) the existing hours of operation surrounding business uses,
(d) the size and patron capacity of the premises.
Section 2.6 of the DCP also states:
Consideration of all these factors provides the basis for a consistent approach to the termination of appropriate trading hours and creates greater certainty both for the community and proponents of late night trading premises.
Section 2.7 of the DCP requires:
Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity.
Any extended hours (ie beyond the base hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions of development consents and respond to such things as changes in late night character of a neighbourhood and changes in management.
Section 2.8 of the DCP identifies the base and extended trading hours for Category A premises in the Local Centre Area as set out in Table 1.
Table 1 - Trading Hours
| CATEGORY A PREMISES | ||
| Indoor Trading Hours | Outdoor Trading Hours | |
| LOCAL CENTRE | Base - 10am to 10pm Extended - 10am to Midnight | Base - 10am to 8pm Extended - 10am to 10pm |
Section 3.1 of the DCP specifies the following controls for trading hours and trial periods:
a A renewal or extension of trading hours may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a plan of management (or management checklist) following the completion of a satisfactory trial period.
b Category A and B premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory.
c Trial periods may be permitted up to the following durations:
i. First trial - 1 year
ii. Second trial - 2 years
iii. Third and subsequent trials - 5 years
d Once the full range of extended trading hours are reached (as prescribed in Table 1), a DA must be lodged every 5 years to renew trading hours.
e If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base late night trading hours; or whatever hours have been approved as the maximum trading hours prior to the commencement of this DCP).
The primary concern of Mr Scott is not that the use of the first floor until 2am may result in additional impacts but rather that the increased patron numbers and potential change in operation or character of the hotel may adversely impact on the amenity of the surrounding area, particularly after midnight when less people are using the street. He gives considerable weight to compliance with the requirements for trial periods in s 3.1 of the DCP.
Mr Sanders' position relies on the fact that the hotel has already operated for a number of years until 2am with a capacity of 300 people and that an additional capacity of 70 people is unlikely to have an adverse impact. In his opinion, the proposal achieves the objectives of the DCP.
The objectives and provisions of the DCP must be given weight. The structure of the DCP establishes a system of trial periods for trading hours beyond the base hours. For Local Areas the base is 10pm for internal areas and 8pm for external areas. Extended trading hours are permitted through an incremental process of trial periods, which continue through the life of the development. Extended hours beyond the base are not permanently approved. The rationale for this approach is to enable council to review conditions and respond to changes such as in the character of the neighbourhood and the management of the hotel. In determining the appropriate trading hours and trial period the factors in s 2.6 of the DCP must be considered.
The hotel is located in a Local Centre Area. Late trading of high intensity uses is not envisaged by the DCP in such areas. The hotel is also close to an existing residential flat building (former Camelot Inn) and a residential flat building is under construction at 320 Liverpool Street, with other residential development above commercial buildings nearby. The area is also characterised by restaurants, which generally trade until midnight and a nearby licensed premise (The Victoria Room), which trades until 2am.
The ground floor of the hotel also trades until 2am and has done so without complaint for a number of years. The hotel has also traded for a number of years on a trial basis with a maximum patron capacity for 300 people, although the evidence indicates that this number of people would not be the norm, particularly after midnight.
The previous operation, trading hours and number of patrons are factors to consider in determining whether the proposal should be permitted to trade beyond the base hours in the DCP. However, the DCP is clear that hours beyond the base should only be permitted if there is likely to be no adverse impacts on residential amenity and only on a trial basis. The DCP does not envisage trading hours beyond the base on a permanent basis to enable flexibility for conditions to adapt to change in context and management.
The previous good management of the hotel indicates that the use of the first floor and the increase in patron numbers is not likely to have adverse impacts. It is therefore appropriate that extended trading hours be granted. The question is whether the extended trading hours be limited to midnight or 2am and the length of the trial period.
The existing operation of the ground floor without complaint until 2am and the potential difficulty of managing different closing hours for the ground and first floor indicates that extended trading hours for the first floor should be permitted until 2am on a trial basis rather than to midnight.
The maximum capacity of the hotel has to date not exceeded 300. This number was approved on a trial basis under development application an earlier application (D2004/616 in Appeal No: 11449 of 2004). The approval permitted 220 people on the first floor and 80 people on a deck adjoining the site. The use of the deck has now ceased and the land is being redeveloped. The current development approval permits a maximum of 220 people on the ground floor and 150 on the first floor. The trial period for the trading hours of the first floor will therefore effectively result in a trial period for the increase in the patron numbers. This addresses the principal concerns raised by council that the increase in intensity of use may change the character of the hotel and result in adverse amenity impacts on the area by patrons leaving between midnight and 2am.
Although I recognise that there has been a couple of trial periods for the use of the hotel with a capacity of 300 people until 2am, there has not been a trial period for 370 people to 2am, which is not an insignificant increase. The extent of any amenity impact is dependent upon the number and attitude of patrons rather than hotel management. I therefore accept that the trial period should be for twelve months rather than twenty-four months. If there is an adverse impact associated with the extended trading hours of the first floor and increased capacity, it is appropriate that this be addressed quickly rather than after a two year period and not be reliant upon enforcement action resulting from complaints. Twelve months is sufficient time to identify potential impacts during different seasons and also for the new residential building opposite to be constructed.
The parties disagreed on the opening hours of the first floor balcony. Given the small size of the balcony, that it faces Victoria Street, is partly enclosed and that no adverse amenity impacts such as noise have been identified, I therefore accept that the balcony may operate the base hours until 10pm with extended hours to midnight, as sought by the applicant.
The parties have agreed that final orders should not be issued to enable the Plan of Management and conditions to be finalised.
DIRECTIONS
1. The parties are to file agreed conditions and a Plan of Management that reflect the findings of this judgment by 15 June 2011 and final orders will be issued in Chambers.
Annelise Tuor
Commissioner of the Court
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Decision last updated: 04 July 2011
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