Stallones Group Pty Limited v The Council of the City of Sydney

[2010] NSWLEC 1260

Land and Environment Court

of New South Wales

CITATION:

Stallones Group Pty Limited v The Council of the City of Sydney [2010] NSWLEC 1260

PARTIES:

APPLICANT
Stallones Group Pty Ltd

RESPONDENT
The Council of the City of Sydney

FILE NUMBER(S):

10132 of 2010

CORAM:

Murrell C

KEY ISSUES:

APPEAL :- s96 modification application for trading hours; amenity of surrounding area.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan

CASES CITED:

Zhang v Canterbury City Council (2001) 115 LGRA 373

DATES OF HEARING:

2 -3 & 12 August 2010

EX TEMPORE JUDGMENT DATE:

12 August 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay (barrister)

RESPONDENT
Ms S Duggan (barrister)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

12 August 2010

10132 of 2010 Stallones Group Pty Limited -v- The Council of the City of Sydney

This determination was given extemporaneously
and has been edited prior to publication


JUDGMENT

1 COMMISSIONER: This is an appeal under s 96(6) of the Environmental Planning and Assessment Act against Sydney Council's refusal of a development application to extend the trading hours of the premises known as 228 Williams Street, Woolloomooloo, referred to as the O'Malley's Hotel.

2 The Court met on site the first morning of the hearing last Tuesday week and heard from resident objectors. The Court also had the opportunity of visiting premises and conducting a site inspection of the surrounding area.

3 The Court heard from a number of concerned residents and owners of units within the vicinity of the subject property. The concerns relate to the increase in opening hours for the hotel, the increase in alcohol and alcohol-related violence and the anti-social behaviour in the vicinity of the apartment buildings with people either sitting, sleeping or urinating in the vicinity of the apartment foyers.

4 The Court also heard that people were concerned about noise when patrons leave the hotel mostly when people are either leaving or smoking outside, because of new the smoking regulations and laws.

5 Tenants of nearby units expressed concern about twenty-four hour operation of the premises because it will attract people from other premises that close earlier. They disputed the fact that the premises currently operate for the period that is being sought by the applicant, because to their knowledge of when the hotel has been open.

6 The objectors also expressed concern about not only the anti-social behaviour but that people continue to drink within a twenty-four hour period. They expressed concern about offensive language within the area when people leave the premises.

7 The Court also heard from other residents that lived down Brougham Street, in particular, a woman that owns a residence there said that this is a residential area and that late night twenty-four hour trading should not be allowed. She had a concern for her daughter and also expressed concern about the behaviour in the street coming and going from the hotel.

8 The Court during the proceedings inquired as to the hours being sought by the applicant and it transpired that the applicant did not require twenty-four hour trading as such and indeed there was an amendment to the trading hours to reflect what is now sought. This amendment has been considered by the council's planner, Ms Penny Wong and Mr Robert Chambers, the applicant's town planner. The additional trading hours sought are, in summary, two hours each day. That is 3 am to 5 am, Monday to Saturday and 12 midnight to 2 am on Sunday.

9 The hours of operation are currently restricted to 10 am to 3 am the following morning, Mondays to Saturdays and to, between 10 am and midnight on Sunday. The current hours of operation of the Las Vegas gaming area is twenty-four hours.

10 The proposed condition is to read:

Notwithstanding the above hours, O'Malley's may operate between 3 am and 5 am Tuesdays to Sundays, 12 midnight on a Sundays to 2 am Mondays and 10 am and 5 am the following day. That is 10 am to 5 am the following day, on any day that is followed by the public holiday for a trial period of one year from the date of this consent.

11 The Court this afternoon had the opportunity of hearing from the council's planner and the issues and contentions initially raised by the council in her opinion are now satisfied by the fact that the applicant no longer seeks a twenty-four hour licence or twenty-four hour trading for the hotel component of the premises and this has been limited to being in accordance with what is referred to as the council's late night trading development control plan.

12 The Late Night Trading Development Control Plan contains a regime of trials whereby additional hours can be sought or an extension of hours can be sought from the base hours of operation on a trial period in the first instance, for one year, the second trial for two years and third and subsequent trials five years.

13 The DCP provides that the management of the establishment can be taken into account in subsequent applications for the extension of the hours.

14 The current zoning and maps of the South Sydney LEP 1998 show the subject site is within what is known as the late night trading area and is zoned business three. The adjoining area in Brougham Street is zoned mixed use and the residential part of Brougham Street commences beyond the mixed use zoned portion of the street. The subject site and adjoining properties are shown in the attached figures.

15 The LEP anticipates or contemplates that the interface with the late night trading and the mixed use development is one that provides for a transition to the residential area. The Court appreciates and has heard the residents' concerns about the subject hotel and its management. In my assessment hotels should operate to minimize adverse impacts on adjoining properties, however, at the same time, one cannot expect the same degree of residential amenity within an inner city area and with close proximity to the Kings Cross late night trading area compared to other residential areas.

16 In these proceedings the applicant is now prepared to enter into a comprehensive, and as described by council's planner a rigorous, management plan as required by the late night DCP. The purpose of this includes to address and manage what could be potential amenity issues that are a result of the interface between residential and late night trading mixed use premises.

17 The Court on the basis of the evidence that has been presented this afternoon, which includes an amended set of conditions providing for a trial period for an extension of the two hours and with the comprehensive management plan now provided which, was absent on the first occasion, there is no reason as to why consent should not be granted for a trial period.

18 Apart from the council's clearly articulated policy in its development control plan for late night trading, this is also consistent with the judgment of the Chief Justice in Zhang v Canterbury City Council (2001) 115 LGRA 373 whereby trial periods are considered an appropriate way to proceed to allow the management or operation of premises to be monitored before a further extension or a permanent extension of trading hours is approved.

19 On the basis of the evidence before me I see no reason that the consent orders should not be made by the Court. The proposal has been amended such that 24 hour trading is no longer sought and a management plan has now been agreed to by the parties. As a consequence the issues initially raised by the council are no longer contested. In this regard today I have the benefit of council’s planner, Ms Wong's who gave evidence and I accept her assessment that a trial period should be granted. In my determination I have also given due consideration to the objectors' concerns, and I am also satisfied that a trial period of extended hours is appropriate on a merits assessment

20 Accordingly, on the basis of my assessment, the formal orders of the Court in this matter, are:

1. The appeal is upheld.
2. The application under s 96 of the Environment Planning and Assessment Act to modify development consent U95/00977/A for O'Malley's Hotel at 228 Williams Street, Woolloomooloo, is approved subject to the modified conditions in annexure A.
3. The Court notes the parties' intentions to approach the registrar for an order by consent that the applicant pay the respondent's costs in the amount of $30,000 in six monthly instalments within six months.
4. The exhibits are returned except 1, 8, 9 and F.

___________________

Jan Murrell
Commissioner of the Court
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