Wills v North Sydney Council

[2020] NSWLEC 1119

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wills v North Sydney Council [2020] NSWLEC 1119
Hearing dates:	2 - 3 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) Leave is granted to the applicant to amend the development application to the Trade Out Areas in Plan No ID-210 Revision 5, and the set up areas in Plan No ID-0211 Revision 4. (2) The appeal is upheld. (3) Development consent is granted for the extension of the area of operation of the Greenwood Hotel at 101-103 Miller Street, North Sydney, to parts of an existing courtyard and terraces, identified as the Trade Out Areas in Appendix A, for up to 20 days per annum, subject to the conditions of consent in Annexure A. (4) The exhibits are returned, except for exhibits D, E, F, H, J, K, O and P.
Catchwords:	APPEAL – development application – existing hotel – heritage item – application to extend trading area on 20 occasions each year with associated structures and storage – impact on significance of heritage item – whether sufficient information provided
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979 Liquor Act 2007 North Sydney Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Green Hotel Corporation Pty Limited v North Sydney Council (Land and Environment Court (NSW), Roseth SC and Moore C, 2 June 2003, unrep)
Texts Cited:	North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Nick James Wills (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: J Reid (Applicant) K Gerathy (Solicitor) (Respondent)   Solicitors: Hatzis Cusack Lawyers (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2019/290454
Publication restriction:	No

Judgment

1. COMMISSIONER: The Greenwood Hotel, in North Sydney, is located in the grounds of the former North Sydney Technical High School and is listed on the State Heritage Register. The hotel currently benefits from a development consent that allows it to have live entertainment in the northern courtyard to midnight, and to provide live entertainment in northern courtyard between midnight and 3am on twelve occasions per annum. The hotel is also permitted to trade generally between 8am and 3am the next day, Monday to Saturday, and from 10am until midnight on Sundays. The conditions of consent, inter alia, require that the development be contained wholly within a delineated area and that a clear passageway across the northern side of the forecourt area be provided and available for use by members of the public. On 13 June 2019, Mr Wills lodged a development application with North Sydney Council, seeking to extend the line of delineation to include parts of the existing court yard and terrace areas for 20 occasions each year. The additional area is intended to be used within the already approved trading hours, without any change to the patron capacity or to the trading hours permitted for live entertainment. These proceedings are an appeal by Mr Wills following the expiry of the period after which a development application is deemed to be refused. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. In the course of the hearing, as a result of amendments to the plans and agreement on a number of conditions of consent, the issues between the parties were significantly narrowed. Nevertheless, the Council opposes the grant of development consent on the ground that there is insufficient information to determine the impact of the development on the heritage significance of the building. If development consent is granted, the Council seeks the imposition of a condition that requires specified acoustic criteria to be met for receivers at nearby serviced apartments, and for there to be no storage around the curtilage of the building.

3. For the reasons set out below, I have determined that there is sufficient information to determine that the proposal to extend the area of operation will not cause an unacceptable impact on the significance of the heritage item, and that development consent should be granted subject to a condition preventing storage around the curtilage of the building.

The site and the locality

4. The site comprises part of the land legally described as Lot 1 in Deposited Plan 814292 and known as either 101-103 Miller Street or 36 Blue Street, North Sydney. The site is at the centre of the lot, which fronts Blue Street, Miller Street and the Pacific Highway in North Sydney. The lot has undergone significant development since the site’s use as a school, with the heritage building on the site retained in that development. As a result of that development, the site is now part of a precinct known as the Greenwood Plaza and is surrounded by high rise commercial premises and high rise hotel accommodation, and is part of the commercial core of North Sydney.

5. The site is located on the first floor roof level of the Greenwood Plaza, which comprises three levels of individual shops and restaurants. The plaza also provides pedestrian links to the office building at 101 Miller Street, to the Pacific Highway, to Blue Street and North Sydney Railway Station.

6. The Greenwood Hotel's listing on the State Heritage Register provides the following Statement of Significance:

“The Greenwood Hotel is a rare and unique example of Gothic and Romanesque Revival styles and remains substantially intact from 1908. The earliest wing of the school was built to the design of architect George Mansfield, a prominent architect of the time, and is an exceptional example of his work. The other parts of the building demonstrate the work of another notable 19th century state school Architect William Kemp. The Greenwood Hotel was the first state school erected on the north shore of Port Jackson and was the first technical school on the north shore. The fact that the school was used continuously for educational purposes from 1877 to 1969 is of high significance and has created a strong cultural meaning to people in the area. The sandstone structure is now surrounded by open landscaping and urban development elements and the nearby towers are set away from the Greenwood Hotel. This space has become an important urban precinct for retailers, office workers and locals, and is well utilised as a pedestrian thoroughfare and a place to meet and relax. The two remaining Moreton Bay Fig trees retain the setting of the Greenwood Hotel and the landmark qualities of the area. The sandstone building is a scarcity of architectural type and is relatively intact. The age of the building relates to the predominant fabric of North Sydney and the building fabric itself demonstrates this historical significance. The school and its open setting with fig trees are landmarks of North Sydney and engender a high degree of public esteem in relation to its local and schooling history. (Tropman & Tropman Architects 2008)”

7. The Moreton Bay Fig trees are not located on the site, but there are instead two magnolia trees of significance. Tree 1 is a Magnolia grandiflora (Bull Bay Magnolia) located a garden bed at the northeast corner of the site. It is approximately 8m tall with a crown spread of approximately 10.5m. The tree’s crown is, on average, approximately 2m above the existing grassed garden level. Tree 2 is a Magnolia doltsopa [syn. Michelia doltsopa] (Himalayan Evergreen Magnolia) located in a garden bed on the easternmost part of the site. It is approximately 9m tall with a crown spread of approximately 12m.

The existing development consent

8. The original school building that is now known as the Greenwood Hotel was adapted for use as a hotel around 1991. On 2 June 2003, the Land and Environment Court granted consent to DA219/02 to modify the conditions of operation of the Greenwood Hotel, in Green Hotel Corporation Pty Limited v North Sydney Council (Land and Environment Court (NSW), Roseth SC and Moore C, 2 June 2003, unrep).

9. The development consent allowed extended trading hours, as well as live entertainment in the northern courtyard (limited to twelve occasions per annum) subject to the following relevant conditions:

“I1. At any time after 7pm when live entertainment is provided in any room of the Greenwood building, the windows which face the southern courtyard in that room and the adjoining room or rooms shall be closed and locked.

I3. After 12 midnight, live entertainment shall be provided only within the Greenwood building except that on not more than 12 special occasions each year, live entertainment may be provided in the northern courtyard after midnight and up until 3am.

For the purposes of this condition, a 'special occasion' shall be a day such as a public holiday, the day before a public holiday or a day upon which an event of national or international significance takes place, for example, the Soccer World Cup, Bledisloe Cup or the like.

The Licensee shall notify the Council and the Local Patrol Commander of the NSW Police Service at least 6 weeks in advance of his or her intention to designate a day as a 'special occasion'.

For the purpose of this consent, live entertainment includes entertainment provided by persons physically present or the provision of music by a disc jockey. It does not include piped background music or music provided by a juke box or similar device. There shall be no entertainment within the southern courtyard”.

10. Condition I6(1) limits the patrons to 1,500 when the Greenwood Hotel is operating in night club mode, with a limit of 658 within the building. Condition I6(1) also limits the patrons to 1,000 when the Greenwood Hotel is operating in restaurant mode, with a limit of 500 within the building.

11. Condition I21 requires, inter alia, that the approved Plan of Management dated March 2003 (Revision 5.2) prepared by Design Collaborative to updated to require hourly security patrols from 10pm until fifteen minutes after closing time.

12. Further, condition A1 of the consent granted by the Court requires the development to be contained wholly within the areas depicted in Plan 1 attached to the consent, which set out a line of delineation for the operation of the hotel use. The line of delineation is shown at Figure 1.

Background to the proposed development

13. On 9 February 2019, an event was held at the Greenwood Hotel, in which it was observed that activities were being undertaken outside the line of delineation. The Council considered that these activities were undertaken in contravention of condition A1. As a result, on 5 April 2019, the Council issued a Notice of Intention to Issue a Development Control Order pursuant to s 9.34 of the EPA Act. On 8 May 2019, the Greenwood Hotel responded to the Notice of Intention by asserting that the activities were not carried out in breach of the consent, and providing an undertaking to the effect that the areas the subject of the dispute would not be used for a period of 120 days. That period has now expired.

14. The development application was lodged on 13 June 2019, and no further enforcement action has been taken by the Council.

The proposed development

15. The proposed development the subject of this appeal extends the use beyond the line of delineation in condition A1 of the current consent. In particular, it seeks consent for the use to extend to parts of an existing court yard and terrace areas adjacent to land associated with the site. That use is sought for 20 times per year, with set up and storage areas. The areas to be used, which were the subject of slight changes in the course of the hearing, are described as three trade out areas, as follows:

• Trade Out Area 1, which is approximately 16m2 in size, located at the eastern edge of the south courtyard, and intended to be used for what is noted on the plan as “medical services and storage including sunshade, table, chairs and associated medical equipment” with a maximum height of 3.5m.

• Trade Out Area 2, which is approximately 16m2 in size, located adjacent the eastern façade of the building, and intended to be used for what is noted as “hotel storage, including hotel furniture, chairs, tables, umbrellas, barricades and the like” with a maximum height of 3.5m.

• Trade Out Area 3, which is approximately 435m2 in size, and is intended to be used “as an extension of northern courtyard and will include barricades along northern edge, patrons, lighting and music equipment, gantry, umbrellas, marquees, LED screens, fete stalls, snow activation equipment and the like”, with a maximum height of 7m.

16. The areas are shown in Figure 2. They are each outside the line of delineation referred to in condition A1 of the current consent.

17. Within Area 3, there are three set up areas in which the entertainment stage is proposed to be set up. Those set up areas are shown in Figure 2. Only one set up area is proposed to be used in Area 3 at any one time. Mr Wills has also agreed to a condition of consent that ensures that lighting, music equipment, gantry, umbrellas, marquees, LED screens, fete stalls, snow activation equipment and the like will be located wholly within set-up areas 1, 2 and 3 as shown in Figure 3.

18. The proposed development does not seek any change in the trading hours of the hotel or in the number of patrons. That is, the restrictions on the hours of outside live entertainment (in I1 and I3 described at [9] above) will remain.

19. The Statement of Environmental Effects dated June 2019 and prepared by SJB Planning provides the following description:

“The DA does not include any permanent physical development works or change to the current operations of the site in terms of hours of operation, patron capacity or entertainment and dining arrangements.

It is proposed that the extended area be used to accommodate activities otherwise already allowed for within the existing approval, including for the provision of live entertainment and supporting uses as set out below:

• Temporary storage of hotel furniture during events;

• Structures for music;

• Barriers and fencing to control the location and movement of hotel patrons;

• Umbrellas and marquees, including medic tent and associated services;

• Lighting and music equipment; and

• Gathering and congregation of hotel patrons, including queuing and dancing.

It is envisaged that Area 03 will be used to accommodate a scaffolding style structure during the occasions that the extended area is in operation. The structure will support music and lighting equipment, and DJ tables and the like.

A drawing of the type of structure is attached to the Structural Design Certificate prepared by Event Engineering (refer to Attachment 1). The drawing provides an example and demonstrates the style and type of structure envisaged, and also demonstrates that it will be constructed to the relevant Australian Standards.”

20. The Structural Design Certificate at Attachment 1 contains an example of the type of stage that could be used within one of the set up areas in Trade Out Area 3.

21. The Statement of Environmental Effects also provides, at Attachment 3, examples of the types of events to be held. They are described as including hosting music DJs, hosting family and children’s activities, pop up stalls, yoga classes and the like. Photographic examples are provided within Attachment 3, and include the Snow Festival, sporting events, and health and fitness events.

22. The Plan of Management dated December 2019 provides the following details about the management of the Trade Out Areas and the nature of the barricades:

“29. When in use, the trade out areas are to be delineated with barriers, to provide unobstructed pedestrian access around the Hotel, and to maintain right of way… at all times, including access for mobility impaired people. The barriers are to be placed on the outer most edge of each trade out area in order to clearly define the outer extent of each area.

30. The barriers to be used should be generally consistent with the following:

(a) Manufactured with high grade steel, hot dipped galvanised;

(b) Dimensions: 1m high by 2.5m wide;

(c) Mesh infill: 5mm mesh infill;

(d) Readily transportable and storable; and

(e) Freestanding and have a locking system with flat base feet for stability to minimise trip hazard.”

23. The heritage assessment in support of the development application describes the impact on the heritage item in the following way:

“The proposed extension to the trading areas on twenty (20) occasions per year and associated temporary platforms will have no heritage impact on the Greenwood Hotel. Because the works are temporary, there will be no physical impact on original fabric. During the twenty (20) events access and views towards the Greenwood Hotel will be obscured by the temporary “DJ” platforms. This will have an acceptable heritage impact, as the temporary “DJ” platforms will be erected the day before or day of the event, and dismantled the following day. The materials of the proposed platforms are consistent with platforms of that typology and will be readily identifiable as modern fabric.”

Planning controls

24. The site is zoned B3 – Commercial Core under the North Sydney Environmental Plan 2013 (“NSLEP 2013”). Food and drink premises, which are a type of retail premises, are permissible with consent as falling within the nominated permissible category of "commercial premises" in the B3 Commercial Core zone.

25. The aims of the NSLEP 2013 are as follows:

(a) to promote development that is appropriate to its context and enhances the amenity of the North Sydney community and environment,

(b) in relation to the character of North Sydney’s neighbourhoods—

(i) to ensure that new development is compatible with the desired future character of an area in terms of bulk, scale and appearance, and

(ii) to maintain a diversity of activities while protecting residential accommodation and local amenity, and

(iii) to ensure that new development on foreshore land does not adversely affect the visual qualities of that foreshore land when viewed from Sydney Harbour and its tributaries,

(c) in relation to residential development—

(i) to ensure that new development does not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing, and

(ii) to maintain and provide for an increase in dwelling stock, where appropriate,

(d) in relation to non-residential development—

(i) to maintain a diversity of employment, services, cultural and recreational activities, and

(ii) to ensure that non-residential development does not adversely affect the amenity of residential properties and public places, in terms of visual and acoustic privacy, solar access and view sharing, and

(iii) to maintain waterfront activities and ensure that those activities do not adversely affect local amenity and environmental quality,

(e) in relation to environmental quality—

(i) to maintain and protect natural landscapes, topographic features and existing ground levels, and

(ii) to minimise stormwater run-off and its adverse effects and improve the quality of local waterways,

(f) to identify and protect the natural, archaeological and built heritage of North Sydney and ensure that development does not adversely affect its significance,

(g) to provide for the growth of a permanent resident population and encourage the provision of a full range of housing, including affordable housing.

26. Clause 2.3(2) of the NSLEP 2013 requires the Court, in exercising the functions of the consent authority, to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives are:

• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To prohibit further residential development in the core of the North Sydney Centre.

• To minimise the adverse effects of development on residents and occupiers of existing and new development.

27. Clause 5.10 of the NSLEP 2013 makes it clear that development consent is required to erect a building on land on which a heritage item is located, unless the development is exempt development. If it is not exempt development, the Court is required to consider the effect of the proposed development on the heritage significance of the item in accordance with cl 5.10(4), as follows:

(4) Effect of proposed development on heritage significance 

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

28. Clause 1.16(1A) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“SEPP ECDC”) provides that

(1A) Despite subclause (1)(c), if development meets the requirements and standards specified by this Policy and that development—

(a) has been granted an exemption under section 57(2) of the Heritage Act 1977, or

(b) is subject to an exemption under section 57(1A) or (3) of that Act,

the development is exempt development under this Policy.

29. There is a standard exemption under section s 57(2) of the Heritage Act 1977, known as Standard Exemption 11, that allows the erection of temporary structures as follows:

“1. The erection of temporary structures does not require approval under subsection 57(1) of the Act, provided that the Director-General is satisfied that the criteria in (a) and (b) have been met and the person proposing to erect the structure has received a notice advising that the Director-General is satisfied:

(a) the structure will be erected within and used for a maximum period of 4 weeks after which it will be removed within a period of 2 days and not erected again within a period of 6 months; and

(b) the structure is not to be located where it could damage or endanger significant fabric including landscape or archaeological features of its curtilage or obstruct significant views of and from heritage items.

2. A person proposing to erect a structure of the kind described in paragraph 1 must write to the Director-General and set out the nature of the structure, the use for the structure and how long it will remain in place and the next occasion on which it is anticipated that the structure will be erected. If the Director-General is satisfied that the proposed development meets the criteria set out in paragraphs 1(a) and 1(b) the Director-General shall notify the applicant.”

30. Given the number of occasions on which the temporary structures within the set up areas are proposed to be in place, the condition in (1)(a) above would not be met and the standard exemption does not apply.

31. As a result, development consent is required for the erection of the temporary structures, as is an approval by the NSW Heritage Council pursuant to s 57(1) of the Heritage Act. The development application was lodged as integrated development, and as such concurrence of the Heritage Council was required pursuant to s 4.47(2) of the EPA Act. No such concurrence has been forthcoming.

32. Given the restriction imposed by condition 1A of the existing consent, development consent is similarly required to extend the hotel operations into the three Trade Out Areas. A site specific exemption for the site has been given under s 57(2) of the Heritage Act with respect to the use of any part of the site that is recorded on the Heritage Register, which incorporates all of Lot 1 in Deposited Plan 814292 and extends from the Pacific Highway to Blue Street. As such, concurrence of the Heritage Council is required only for the erection of the temporary structures.

33. On appeal, the Court may grant development consent notwithstanding the absence of that concurrence, pursuant to s 39(6)(a) of the Land and Environment Court Act 1979. Further, the Heritage Council has the right to appear in the appeal proceedings, pursuant to s 8.12 of the EPA Act. They have not exercised that right to appear.

34. The North Sydney Development Control Plan 2013 (“NSDCP”) applies to the site. Part B Section 2 concerns commercial and mixed use development, and provides the general objectives for development in 2.1.1. O8 and O12 of those general objectives are:

“The general objectives of this Section of the DCP are to ensure that commercial and mixed use developments:

…

O8 provide an acceptable level of amenity to residents living within and adjoining centres,

…

O12 minimise the acoustic impacts on residents from non-residential activities”

35. Part B Section 2.3 concerns the noise impacts of commercial and mixed use development, with the objective “[t]o ensure reasonable levels of acoustic amenity to nearby residents”. The provisions within Section 2.3 concern limits on noise emission from such development, with the emission to be measured from residential receivers. For example, in P2, the measurement is to be taken from “the property boundary of the nearest residential premises.”

36. The Greenwood Hotel falls within a late night management area under Part B, Section 7 of the NSDCP. The general objectives, at 7.1.1, include the following:

“O2 ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses;

O3 ensure that operators of late night trading premises commit to good management practices through the implementation of robust plans of management;

…

“O7 prevent the proliferation of poorly managed late night trading premises;

…

“O9 ensure that development applications are accompanied by sufficient information so that proposals for night trading premises can be fully and appropriately assessed”

37. However, Section 7 of the NSDCP only applies in certain circumstances, including where there is an intensification of a use in late night trading hours. This is defined as follows:

“For the purposes of (c) above, an intensification of use means any increase in the capacity of the premises to accommodate additional patrons, determined by:

(a) an increase in the amount of licensed floor area (via a liquor licence);

(b) an increase in the amount of floor space accessible to the public (excluding toilets, lifts, stairways, ramps, escalators, corridors, hallways, lobbies and the like);

(c) an increase in patron capacity; or

(d) an increase in the amount of footpath seating areas.”

38. Section 7.2 outlines the matters for consideration, including the following:

“P1 Appropriate trading hours will be determined by taking into account a number of primary issues which include (but are not limited to):

(a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises;”

39. Section 13 of the NSDCP concerns heritage conservation. At 13.1.2, the general objectives include the following:

“O3 ensure that the assessment of applications for works on or in heritage items, heritage conservation areas and in the vicinity of heritage, are based on the identified heritage significance of the heritage item, conservation area, property, location or place;

O4 ensure that supporting documentation is appropriate to the scale of the proposed works and heritage significance of the heritage item, conservation area, property, location or place;

O5 facilitate opportunities to improve the understanding and/or appreciation of the heritage significance of any heritage item, conservation area, property, location or place;”

40. Section 13.5 of the NSDCP concerns heritage items, with one of the objectives as follows:

“O7 Ensure that new uses of heritage items are compatible with the fabric and heritage significance of the item.”

41. Part C of the NSDCP contains character statements for a number of areas, including the North Sydney Planning area. In particular, that statement includes the following:

“New development within the Planning Area should result in:

• a viable and attractive employment centre

• a diverse range of living, employment, recreation and social opportunities being provided that attract both local and regional populations which contribute to the vibrancy of the North Sydney CBD

• a vibrant and engaging Education Precinct with safe pedestrian networks and a range of formal and informal public spaces for students to study, socialise and engage with the local community

• a high level of amenity for residents, workers, students and visitors to enjoy.”

Objector evidence

42. The hearing commenced on site with evidence from Acting Sergeant Duke from the North Sydney Police Station. His evidence was that the proposed development would attract more people to the premises, even though there was no proposed increase in numbers. He acknowledged that by increasing the space available to patrons there is a reduction in risks associated with crowding and congestion, but considers that the hotel has a history of alcohol related incidents. He gave examples of recent incidents in the vicinity of the hotel, including the removal of patrons that are reported to have consumed drugs. His view is that the proposed development, if granted, should be subject to a trial period.

43. Evidence was also heard from a resident who objected to the proposal and a representative of the Lavender Bay Precinct Association. A number of written submissions from resident objectors also formed part of the evidence. The following is a summary of the issues raised concerning the proposed development in the evidence given on site and in the written submissions:

• The proposal will result in adverse acoustic impacts;

• The proposal will result in increased anti-social behaviour of patrons; and

• The proposal will cause a loss of public amenity.

44. Contrary to these concerns, the evidence given by the acoustic experts and crime prevention expert is that, with appropriate conditions of consent, the proposal will not cause any unacceptable acoustic impacts or any additional safety concerns.

Expert evidence

45. Expert opinion evidence on the town planning issues was given in a joint report by Mr Stuart Gordon, a town planner engaged by Mr Wills, and Mr Warren Long, a town planner engaged by the Council.

46. Expert opinion evidence on the impacts of the proposal on the two trees was given in a joint report by Mr George Palmer, an arborist engaged by Mr Wills, and Ms Catriona Mackenzie, an arborist engaged by the Council. As a result of the amendment to the set up area in the course of the hearing, and the agreement of Mr Wills to certain conditions of consent, the parties agree that there is no impact on the two trees.

47. Expert opinion evidence concerning the heritage impacts of the proposal was given by Mr James Phillips, a heritage consultant engaged by Mr Wills, and Mr Graham Brooks, an architect and heritage consultant engaged by the Council.

48. Expert opinion evidence on the acoustic impacts of the proposed development was given in a joint report by Dr Renzo Tonin, an acoustic consultant engaged by the Council, and Mr Steven Cooper, an acoustic consultant engaged by Mr Wills. As a result of their evidence, there is an agreement on the conditions of consent to manage the acoustic impact of the development at an acceptable level. However, a dispute remains as to whether the acoustic criteria should be applied to receivers at serviced apartments. This is considered further below.

49. Expert opinion on the safety and crime risk associated with the proposed development was given in an expert report by Mr Patrick Paroz, a public safety consultant and former member of the NSW Police Force. His evidence is that he saw no risks to public safety, alcohol related crime or anti-social behaviour “arising from the manner in which the hotel was utilising the space now subject of the DA”. Further, he considered that the areas contributed to the very effective management of patrons, and that the increased space within Area 3 increases the space available to patrons, thus reducing the potential for crowding and/or congestion, which reduces the risk associated with a high concentration of people and crowd congestion, which are two factors that can contribute to alcohol related problems in licensed venues.

The risk to public safety

50. There is no evidence that the proposed development will cause an increase in the anti-social or criminal behaviour observed by Acting Sergeant Duke. The extent of his evidence was that there have been occasions of alcohol-related incidents (and one alleged drug-related incident) around the vicinity of the Greenwood Hotel. There is no evidence that such incidents were caused by poor management of the hotel, or that they would likely increase with an increase in the area that patrons will use. Instead, I accept the evidence of Mr Paroz that the increased space within Area 3 increases the space available to patrons, thus reducing the potential for crowding and/or congestion and reducing the risk of alcohol related incidents. Additionally, Mr Wills has agreed to make changes to the Plan of Management, which include amending it to ensure that the Council and the NSW Police are notified at least 4 weeks in advance prior to each proposed use of Trade Out Areas 1, 2 and 3.

The adequacy of the information for the heritage assessment

51. The Council contends that insufficient information has been provided to properly assess and determine the impact of the proposed development on the heritage significance of the Greenwood Hotel. It relies on the correspondence from the NSW Heritage Council dated 18 February 2020, which states that the Heritage Council cannot assess the application for the erection of the temporary structures unless further information is provided. The Heritage Council identified a number of items for which information was required. Although some of that information has been provided, the Council asserts that the following information remains to be provided, as described in the contentions:

• “a description of the proposed temporary structures, their dimensions, materials, finishes and their location within the site, and any associated works, including: structures for lighting and music; barriers and fencing; umbrellas and marquees” (Contention B1 1.1(b))

• “a visual assessment of primary views to and from the heritage item” (Contention B1 1.1(d))

• “potential non-compliance issues should be addressed - the area of the octagonal planterbox in the northern courtyard was excluded from the delineation of licensed area in the LEC Consent, and has subsequently been modified without approval by the Heritage Council of NSW and there are no provisions in the Heritage Act 1977 for a retrospective approval” (Contention B1 1.1(e))

• “impact on the context and setting – visual clutter and the cumulative impact of structures within the setting. Noting, the site is already cluttered by a variety of shade structures, some permanent and others temporary, ad hoc signage and removable barriers that combined, obscure the significant views to the heritage item” (Contention B1 1.1(g))

• “exclusion zones” (Contention B1 1.1(i))

52. The Council further contends that there has been no assessment or consideration of the cumulative impacts of the expanded event space with the current activities on the heritage significance of the hotel. The Council relies on the Material Threshold Policy, which is published to assist decision makers to determine if a heritage item is considered to be “materially affected/effected”. The policy states that “The material threshold is reached where an application, if approved, would have a major adverse impact on the state heritage significance of [a State Heritage Register] listed place”, and provides the following guidance with respect to cumulative adverse impacts:

“Cumulative adverse impacts may reach the material threshold

The cumulative impact of incremental minor changes can have as great an impact on the significance of a SHR listed place as a major change.

For example, a marquee erected in front of a SHR listed place has a minor adverse impact because it is small in relation to the facade of the building. However, another marquee is proposed that also independently has a minor adverse impact. Once erected, the two marquees cover enough of the facade to result in a cumulative adverse impact on the aesthetic values of the building (the criteria for listing), reaching the material threshold.”

53. The Council submits that, on such a sensitive site the paucity of information gives rise to an uncertainty of the outcome and its impact on the heritage significance of the site. The Council says that all the Court has is a “volumetric cube” on each plan, with insufficient details of how it will be filled. The Council submits that in circumstances where the Heritage Council was unable to make a full assessment and says that the application lacks essential information, significant weight should be given to their position, particularly given that any development consent will have a pre-determinative effect for their approval under s 60 of the Heritage Act. The Council submits that it is not sufficient simply to say that because it is a temporary use, it will not have an adverse effect on the heritage significance of the site. Further, the Council says that the general objectives of Section 13 of the NSDCP, which are concerned with facilitating “opportunities to improve the understanding and/or appreciation of the heritage significance of any heritage item”, create a positive obligation that must be met by the proposed development, and there is insufficient information to meet that obligation.

54. The Council relies not only on the position of the Heritage Council, but also on the evidence of Mr Brooks, who shares the concern of the Heritage Council in that there is “no specific locations for equipment, sound stage, lighting, graphic displays, advertising etc” for Trade Out Area 3, and that as this location runs across the whole foreground of the Northern Courtyard, that information should be provided. He also opines that the information on the lighting is insufficient to ascertain whether it is “likely to be suitable with regard to the historic significance of the school building”.

55. Further, Mr Brooks opines that the storage of items around the curtilage of the school building creates clutter that is disrespectful to the heritage item. As such, should consent be granted, the Council seeks the imposition of a condition of consent that prevents storage around the curtilage of the building (other than storage in Trade Out Areas 1 and 2 during the 20 occasions per year). Mr Brooks points to the current storage of the barricades along the western side of the building, along Gas Lane, which are the barricades intended to be used to delineate the Trade Out Areas in this development application. Mr Brooks opines that this means that the temporary use sought by this application results in ongoing clutter around the building, which is not acceptable for a heritage item.

The applicant’s response concerning the adequacy of the information

56. In seeking development consent, Mr Wills seeks to have fluidity in what temporary structures are erected within the set up areas. This is because the height and width of the structures will change depending on the type of event that they are used for.

57. Mr Wills’ position is that, when considering the development application as a whole, including the supporting documentation, there is sufficient information to assess the impact on the significance of the heritage item. Further, any additional detail can be provided to the Heritage Council for the purpose of seeking the approval under ss 57 and 60 of the Heritage Act. Therefore, the Court can exercise its function in determining the development application and set the parameters with respect to the areas to be used and the times that they can be used, and the Heritage Council can then determine the appropriateness of the specific structures under the Heritage Act.

56. It is submitted on Mr Wills’ behalf that it is not clear whether the representative of the Heritage Council had considered the content of all the supporting documentation. Contrary to their position that there was no information provided, Mr Wills says there were plans provided, as well as a heritage assessment and a Plan of Management containing details of the barricades. Further, Mr Wills points out that although the Heritage Council has raised points of insufficient information, it has not exercised its right to appear.

57. Mr Wills also points out that the standard exemption under section s 57(2) of the Heritage Act (referred to at [29]) covers the types of things that are proposed to be used within the proposed set up areas in Areas 1 and 3, but it doesn’t extend so far as to cover 20 events each year.

58. In support of his position that the proposed development does not have an unreasonable impact on the significance of the heritage item, Mr Wills relies on the evidence of Mr Phillips. Mr Phillips opines that the impact is limited and can be readily understood. He points out that there will be no impact on the fabric of the heritage item, and that the visual impact will be limited to a relatively small portion of the north elevation, which will be limited to 20 times per year. He considers that on those 20 days, three of the elevations of the hotel will be unaffected, and only a small portion of the remaining north elevation will be obscured. In light of this, Mr Phillips considers that a visual assessment is unnecessary.

59. With respect to the storage of the barricades on the western side of the building along Gas Lane, Mr Phillips considers that it would be sufficient to cover them in a natural coloured canvas. He opines that such covering, together with the fact that they sit below the height of the fence, would ensure that the storage of the barricades does not obscure the significance of the heritage item.

There is adequate information to assess the impact for the purpose of granting development consent

62. I consider that when the development application is considered as a whole, including the information contained in the Statement of Environmental Effects, the Heritage Impact Statement and the Plan of Management, there is sufficient information to assess the impact on the heritage item.

63. Firstly, it is clear that nothing will be affixed to the fabric of the heritage item. There will therefore be no impact in that respect.

64. Secondly, it is clear that there is a very limited area where views to the heritage item will be obscured by the temporary structures. These areas will be within proposed Trade Out Area 1, Trade Out Area 2 and one of the set-up areas within Trade Out Area 3. Mr Wills has agreed to a condition that only one of the set up areas within Trade Out Area 3 be used at any one time, and that lighting, music equipment, gantry, umbrellas, marquees, LED screens, fete stalls, snow activation equipment and the like will be located wholly within that set-up area. I am not satisfied that Mr Brooks’ evidence established a need for further information to be provided to understand how the views to the heritage item will be obscured. Given the limited obstruction of views to the heritage item, the flexibility sought with the development application, and the examples included in the Statement of Environmental Effects, I accept the evidence of Mr Phillips that the impact can be readily understood and no further visual assessment is required.

65. Thirdly, it is clear that the obstruction of views to the heritage item, in the limited manner described above, will be limited to 20 occasions each year. Mr Wills has agreed to a condition to be imposed on the consent that requires the areas to be packed away by 12noon the following day. As such, I accept Mr Phillips’ evidence that, for the remaining days of the year there is no impact on the ability to view and understand the former school building. Further, I accept that the temporary use of the areas ensures that the cumulative impact of any new structures with existing structures (such as awnings, tables and umbrellas) is acceptable, and does not create an adverse impact on the heritage significance of the hotel.

66. Mr Brooks’ disagreement was largely concerned with the impacts of a “high energy” use. However, there is no change to the use of the hotel, which is approved under the existing consents that apply to the site, with conditions restricting the hours within which live entertainment can be provided outside.

67. Further, the objective in Section 13 to facilitate “opportunities to improve the understanding and/or appreciation of the heritage significance of any heritage item” is an objective for that part of the NSDCP. In the absence of an applicable control to give effect to that objective, nothing about its wording creates an obligation that needs to be met by the present development application over and above the requirements of the applicable controls, contrary to the submission of the Council.

68. For all of the above reasons, I accept that the temporary uses of the proposed Trade-Out Areas as sought in the development application has an acceptable impact on the heritage significance of the heritage item.

69. However, I accept the Council’s position that the temporary use should not create an ongoing impact through the storage of items around the curtilage of the building outside the occasions when the Trade-Out Areas will be utilised. I accept Mr Brooks’ evidence that the storage of items around the curtilage of the building over a lengthy period, such as the storage of the barricades, creates clutter that is disrespectful to the heritage significance of the item, and that covering the barricades will not be sufficient. As such, I accept that a condition of consent should be imposed that prevents storage of items around the curtilage of the building, other than any storage that is approved by the consent.

70. With respect to the octagonal area identified by the Heritage Council, the parties have agreed to a notation to a condition of consent that makes it clear that the development consent does not authorise the paving works on the octagonal planter. Any issue concerning the paving of that area is therefore outside the scope of these proceedings.

Acoustic conditions

71. The parties have agreed to the following condition of consent that limits the noise level emitted from the premises:

“C1 The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz – 8kHz inclusive) by more than 5dB between 7:00am and 12:00 midnight at the boundary of any affected residence.

The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz – 8kHz inclusive) between 12:00 midnight and 7:00am at the boundary of any affected residence.

Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 7:00am.”

72. The Council contends that this condition of consent should also apply to any habitable room of a serviced apartment or other short stay accommodation. The Council considers that this is appropriate in circumstances where one of the aims of the NSLEP 2013 is to minimise the adverse effects of development on “occupiers of existing and new development”. The Council relies on Section 1.5 of the NSDCP, which states that “strict compliance with the provisions of this DCP does not guarantee that development consent will be granted”. The Council also relies on Section 7 of the NSDCP, which concerns late night trading hours, and the objective to ensure that “late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses”. The Council submits that Section 7 applies to the proposed development as it results in an increase in the floor space accessible to the public, and that the performance criteria in Section 7.2 P1(a) applies, requiring that appropriate trading hours be determined having regard to “the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises”. The Council submits that, based on the evidence of Dr Tonin, the serviced apartments are a sensitive land use and therefore the acoustic impact on the occupiers ought to be managed by the imposition of an appropriate condition of consent.

73. This is supported by the evidence of Dr Tonin, who considers that the owner of a serviced apartment may lodge a complaint under s 97(3)(d) of the Liquor Act 2007 if they consider that “the quiet and good order of the neighbourhood of licensed premises are being unduly disturbed” because of the “manner in which the business of the licensed premises is being constructed”. Dr Tonin asserts that to achieve consistency with the Liquor Act, the condition of consent with respect to acoustic impact should also apply to the serviced apartments. Dr Tonin relies on two decisions of the Director Compliance and Enforcement, Office of Liquor, Gaming and Racing to support this proposition. In each of those decisions (The Westin Sydney v Ivy (27 October 2015); Northies Cronulla Hotel (4 May 2015)), the Director applied the LA10 noise criteria to the hotel accommodation.

74. I do not accept the Council’s contention that the LA10 noise criteria should be applied to the serviced apartments. I reach this position for three reasons. Firstly, there is no requirement in the NSDCP for the acoustic criteria to be applied to serviced apartments. The NSDCP requirements are that the noise criteria apply to residential receivers, such that measurements are taken from the boundary of the nearest residential premises (see P2 in Section 2.3.2). This has the objective of ensuring that there are “reasonable levels of acoustic amenity to nearby residents”. I consider that extending the acoustic requirements beyond the types of premises specified in the NSDCP would be in clear contravention of s 4.15(3A) of the EPA Act, which clearly precludes more onerous standards being imposed where these controls are met. It provides that, concerning a DCP:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development.

75. The terms of the NSDCP in Section 1.5, that a development may be refused even if the provisions of the NSDCP are met, which is relied upon by the Council, does not override the operation of s 4.15(3A) of the EPA Act. Instead, I interpret Section 1.5 as also requiring compliance with the remaining considerations in s 4.15(1).

76. Secondly, there is no evidence of any actual unacceptable adverse impact on any serviced apartments in the vicinity of the site. I do not accept that Dr Tonin’s evidence sufficiently outlines the nature of the adverse impact. This is distinct from the two decisions of the Director of Compliance and Enforcement, Office of Liquor, Gaming and Racing, where there was an actual complaint concerning the impacts of the licensed premises.

77. Thirdly, there is no such condition that is imposed on the current development consent.

78. Fourthly, I do not accept that the Liquor Act itself requires that the LA10 noise condition apply to serviced apartments. There is nothing in the Liquor Act that requires it to do so, and the decisions of the Director of Compliance and Enforcement apply to the specific licences considered therein, and do not have a broader application.

79. For all of the above reasons, I have determined that the condition referred to at [71] above need not apply to a habitable room of a serviced apartment.

Outcome of the appeal

80. As the Council has raised no other contention on the grounds of which development consent should be refused, there is no basis to refuse the development application and it is granted accordingly subject to conditions of consent that reflect my findings above, with the remainder of the conditions as agreed between the parties. Those conditions of consent are now found at Annexure A to the orders.

81. The Court orders that:

1. Leave is granted to the applicant to amend the development application to the Trade Out Areas in Plan No ID-210 Revision 5, and the set up areas in Plan No ID-0211 Revision 4.

2. The appeal is upheld.

3. Development consent is granted for the extension of the area of operation of the Greenwood Hotel at 101-103 Miller Street, North Sydney, to parts of an existing courtyard and terraces, identified as the Trade Out Areas in Appendix A, for up to 20 days per annum, subject to the conditions of consent in Annexure A.

4. The exhibits are returned, except for exhibits D, E, F, H, J, K, O and P.

………………………

J Gray

Commissioner of the Court

Annexure A (58.3 KB)

Appendix A (199 KB)

Appendix B (166 KB)

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Decision last updated: 13 March 2020