Wonarla Pty Ltd v Council of the City of Sydney

[2009] NSWLEC 1350

Land and Environment Court

of New South Wales

CITATION:	Wonarla Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1350
PARTIES:	APPLICANT Wonarla Pty Ltd RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10340 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- increased numbers of patrons for the public entertainment areas of the Imperial Hotel - impact on residential amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007
DATES OF HEARING:	6, 7, 8 October 2009
DATE OF JUDGMENT:	21 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr T Robertson SC SOLICITORS Bartier Perry RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 October 2009

10340 of 2009 Wonarla Pty Ltd v Council of the City of Sydney

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application D/2008/1350 by the Council of the City of Sydney (the council) for alterations and increased numbers of patrons for the public entertainment areas of the Imperial Hotel located at 35-37 Erskinville Road, Erskinville (the site).

Background

2 The Imperial Hotel is a heritage listed hotel, dating from the 1930's. To the east of the site, is a row of terraces comprising a mix of residential, commercial and retail uses. A service station is located directly to the west and approval has been granted for five residential terraces on the opposite side of Erskinville Road. Residential terraces are also located across Erskinville Road to the north-west of the hotel and to the west and south in Union Street.

3 Development Application D/2008/1350 sought an increase in the existing capacity of the Place of Public Entertainment (PoPE) areas of the hotel from 442 patrons to 788 patrons, providing for 288 patrons in the ground floor Cabaret Bar and 500 patrons in the basement level Priscilla and Cellar Bars.

4 The development application also included the erection of a new roof ornament in the form of a 2.5 m high stiletto shoe and repainting of the exterior of the building however the council's refusal of these parts of the development application were not pursued by the applicant at the hearing.

5 The hotel has been the subject of a number of development consents over recent years. Relevantly, Development Application D/2008/107 was lodged in January 2008 and sought approval for:

• internal alterations to the basement level to enlarge the Cellar Bar,
• increase the PoPE area at the basement level to include the enlarged Cellar Bar and the Priscilla Bar,
• increase in the PoPE capacity of the Cabaret Bar from 156 to 288 persons, and
• increase in the PoPE capacity of the Cellar Bar and Priscilla Bar from 150 to 500 persons.

6 On 30 June 2008, development consent was granted, in part by the council. The internal alterations and an increase in the PoPE capacity of the Cellar Bar and Priscilla Bar was approved but for a maximum capacity of 442 persons in all PoPE areas and for a trial period of one year. The Cabaret Bar was limited to a maximum capacity of 156 persons.

7 The councils Statement of Facts and Contentions states that the figure of 442 persons was reached by using the ratio established by the Land and Environment Court in the consideration of Development Application U03-00608 on 6 December 2005 when two PoPE areas totalling 316 sq m were approved. In this case, the combined capacity was limited to 306 persons. This represented a ratio of 0.97 persons per square metre of PoPE area. Given the proposed PoPE area of 456 sq m and using a ratio of 0.97 per persons per square metre, this equates to a capacity of 442 persons.

8 In addition to the PoPE areas, the hotel also has a public bar, smoking deck and games room. The approved and proposed capacities of the hotel are:

Approved Capacity	Proposed Capacity
Cellar Bar and Priscilla Bar (PoPE)	442 , minus the 156 capacity of the Cabaret Bar	500
Cabaret Bar (PoPE)	156 max	288
Public Bar (no PoPE)	No limit	No change
Smoking Deck	46	No change
Gaming Room	No limit	No change
TOTAL (PoPE areas only)	442	788

9 The approved hours of operation for the hotel are 24 hours a day, 7 days a week but excluding midnight on Sundays to 5 am on Mondays and specific trading days, Christmas and Easter.

10 The hotel has not operated since 2007 due to the renovations and the trial period for 442 persons required under the June 2008 approval has not been undertaken.

The dispute

11 The council contends that the proposal will result in an intensification of the use, which will have a detrimental impact on the amenity of the neighbourhood. Further, the council contends the proposal will result in noise and anti-social behaviour and as such is not in the public interest.

12 The applicant responds to the council's contentions by stating that the protection of residential amenity from impacts of noise and disturbance can be appropriately addressed through operational measures, particularly limiting queuing outside the premises, the progressive shutdown of bars to allow for staggering of departures, a new Plan of Management and increased security.

The assessment framework

13 The site is located within Zone No 10 – the Mixed Uses Zone under South Sydney Local Environmental Plan 1998 (LEP 1998). The relevant objectives are:

(a) to allow, in appropriate circumstances, a mix of compatible land uses such as residential, retail, commercial, light industrial and industrial development, and
(b) to promote mixed-use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel,
(g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and
(h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled state so as to preserve the quality of life for residents in the area.

14 Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone.

15 South Sydney Development Control Plan 1997 (DCP 1997) applies. Section 6 in Part D: Social planning design criterion provides requirements for cumulative impacts and trade-offs. The objectives relate to the management of cumulative impacts arising from development activity and implementing strategies to avoid or minimise these impacts and to maximise the benefits of development proposals to the local community. The performance criteria require development to take into account cumulative impacts and not exacerbate existing negative social impact of issues and to respond to opportunities to benefit the local community and provide measures to mitigate against negative impacts.

16 State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007 (the SEPP) applies. The aims of the SEPP are:

a) to ensure that suitable provision is made for ensuring the safety of persons using temporary structures or places of public entertainment,
(b) to encourage the protection of the environment at the location, and in the vicinity, of places of public entertainment or temporary structures by (among other things) managing noise, parking and traffic impacts and ensuring heritage protection,
(c) to specify the circumstances in which the erection and use of temporary structures are complying development or exempt development,
(d) to promote opportunities for buildings (including temporary structures) to be used as places of public entertainment by specifying the circumstances in which that use is complying development or exempt development,
(e) to promote the creation of jobs in the public entertainment industry,
(f) to increase access for members of the public to public entertainment

17 Clause 14 of the SEPP provides:

Before granting consent to development comprising the use of a building as a place of public entertainment, the consent authority must consider the following matters:
(a) the maximum number of persons who should be permitted to be in the part of the building used as a place of public entertainment at any one time while entertainment is being provided and how that number should be monitored,
(b) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines,
(c) any adverse impact on persons in the vicinity of any noise likely to be emitted as a result of the use of the building as a place of public entertainment and any proposed measures for limiting the impact,
(d) whether the hours during which the building is used as a place of public entertainment should be limited,
(e) any parking or traffic impacts likely to be caused as a result of the use of the building as a place of public entertainment,
(f) whether the use is proposed to be carried out on land that comprises, or on which there is:
(i) an item of environmental heritage that is listed on the State Heritage Register, or that is subject to an interim heritage order, under the Heritage Act 1977, or
(ii) a place, building, work, tree, relic or Aboriginal object that is described as an item of environmental heritage or as a heritage item in another environmental planning instrument, or
(iii) land identified as a heritage conservation area, an archaeological site or a place of Aboriginal heritage significance in another environmental planning instrument.

18 City of Sydney Late Night Trading Premises Development Control Plan 2007 (DCP 2007) applies. The main aim of DCP 2007 is to assist in the management of the impact of late-night trading premises on the sites and the neighbourhoods in which they are located, an in particular, protect the amenity of residential properties (cl 2.1). The hotel is categorised as Category A Premises - High Impact being a hotel that has a capacity of more than 120 patrons and is designated as a general bar licence (cl 2.4b) and is a premises that has a capacity of more than 120 patrons where the primary purpose is the sale or supply of liquor for consumption on the premises (cl 2.4e).

19 Clause 2.7 provides that the approval 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 the neighbourhood amenity. Any extended hours beyond those identified, as the "base" hours in Table 1 in DCP 2007, will be subject to a trial period. Clause 2.9 provides requirements for Plans of Management. Clause 3 provides specific trading hours on trial period for the different categories of premises identified in DCP 2007.

The applicant’s evidence
The expert evidence

20 Mr George Smith, a town planner provided evidence for the applicant. He states that the applicant has operated the hotel for around four years. It has been a very successful venue and widely patronised by the gay and lesbian community. Rather than simply upgrade parts of the hotel, it was decided to bring the hotel into compliance acoustically with the Building Code of Australia (BCA) and address the propensity for overcrowding by enlarging the capacity to meet the perceived demand.

21 In Mr Smith's opinion, it does not necessarily follow that by simply stating that the hotel may, legally, accommodate more patrons that it will do so. Whether or not will depend on the management and promotion of the premises. Before the hotel closed, when its capacity was around 500 patrons and the numbers in attendance at a typical peak trading often reached that level, conditions in the hotel became crowded and uncomfortable for patrons. The applicant anticipates that if the hotel reopened with a maximum capacity of 442 patrons, this situation would be repeated. In his opinion, there is unlikely to be any major change in the total numbers of people attending only that the patrons will have greater comfort. Consequently, there will not be much difference in noise outside the hotel, apart from special events.

22 Mr Smith opposes the council’s position that the trial for the 442 patrons, based on the 30 June 2008 approval, should be conducted prior to any further consideration of increased patronage numbers. He states that the limited increase permitted by this approval will be insufficient to prevent queuing on the street so that the noise from people in the queues could result in disturbance and to the council concluding that the trial period was unsuccessful. Mr Smith provides an amended Plan of Management that in his opinion, will address the increased capacity and provide options for dealing with patrons seeking admission to the hotel.

23 Of the other matters raised by the council, Mr Smith states that the number of patrons proposed by the applicant is not excessive and simply reflects the number permissible under the BCA. In terms of car parking, Mr Smith states that any additional patrons who come to the hotel by car are unlikely to find car parking spaces because of the already limited parking available in the area

The resident and community evidence

24 Eight residents and two community representatives provided evidence in support of the application. The eight residents live in Erskinville Road, Union Street, Rochford Street, Munning Street and Baldwin Street and state that they are not disturbed by the operation of the hotel and most did not notice any difference since the closure of the hotel approximately two years ago.

25 The two community representatives from the Aids Council of NSW and the Luncheon Club Aids Support Group indicated that the hotel is a major supporter of their work and is actively involved in fundraising. It was also stated that the hotel provides a safe social venue for the gay and lesbian community.

The council’s evidence
The expert evidence

26 Ms Kate Wedgewood, a town planner, provided evidence for the council.

She states that the proposed increase in the capacity of the hotel's PoPE areas is not suitable in this location. Although it is recognised that the noise attenuation works will be completed prior to the hotel reopening, the principal concern is the noise generated by patrons leaving the hotel at night. The potential for impact is accentuated by the hotels approved 24 hour trading and its close proximity to both existing and proposed residential development.

27 The hotel has not yet operated with the patron numbers approved at 422 and council has not received a Plan of Management relating to this increase. On this basis it is difficult to determine the impact the previous approval will have on surrounding residents as this will relate closely to the management of the premises. For these reasons the extended patronage numbers should not be supported.

The resident evidence

28 Nine residents from Erskinville Road, Union Street, Rochford Street, Gowry Street and Baldwin Street provided evidence on side opposing the additional PoPE patrons on one or more of the following grounds:

• increased noise from patrons leaving the hotel,
• increased traffic,
• increased anti-social behaviour and violence, and
• increased vandalism.

29 A number of the residents indicated that noise and disturbance had significantly diminished since the hotel had been closed for the past two years. The Court also had the benefit of copies of the public submissions provided to the council when the development application was advertised.

The police evidence

30 Leading Senior Constable Norris from the Newtown Local Area Command provided evidence. He does not support the increased numbers for the PoPE areas as the police have been not been able to assess the impact of the previous approval for 442 patrons. He identifies his principal concerns as:

• the number of people who are found to be affected by drugs, and the supply of drugs in and around the hotel,
• the number of assaults connected to the hotel, and
• rowdy patron behaviour leaving the premises.

31 Leading Senior Constable Norris provided copies of the incident reports that formed the basis of his conclusions.

The single experts acoustic evidence

32 Dr Renzo Tonin was the single expert agreed to by the parties to consider the acoustic issues. Dr Tonin identifies two main noise sources, firstly, noise emanating from inside the hotel and including the rooftop smoking area and second, noise from patrons outside the premises. The former source is not a matter in contention given the recent renovations.

33 Dr Tonin states that in respect of noise from patrons outside the hotel, the most important issue was to ensure a reasonable acoustic amenity for residents, particularly in relation to sleep disturbance. To consider this issue he measured existing background noise levels and arrived at appropriate noise criteria for sleep disturbance arising from patrons voices in the street. His analysis concludes that due to the close proximity of residents, noise from patrons in the street can exceed the relevant criterion particularly after midnight. However, there is also significant disturbance created by existing street traffic not associated with the hotel.

34 The increased patronage levels, based on the capacity sought by the applicant, represents a 54% increase in the number of patrons. Dr Tonin describes this as a significant increase however he states that it is not possible to predict the number of exceedances of patron noise based on other similar hotels because every hotel has its own particular circumstances. Also, the effect of the proposed Plan of Management will depend on how the plan is implemented.

35 Given these uncertainties, Dr Tonin concludes there is insufficient data to conclude that noise impacts from the hotel will be acceptable and consequently Dr Tonin suggests that a trial of some form be undertaken to demonstrate that the noise exceedances predicted in his report can be kept to recently low numbers. Further, if the development is approved, he recommends that any queuing for entry should be prohibited and that the Management Plan be upgraded particularly in relation to the number of security personnel stationed outdoors.

Findings

36 The single issue to be determined by the Court is whether the PoPE areas in the hotel should have a maximum number of 442 patrons (the council's position) or 788 patrons (the applicant's position) for a one-year trial period. The main determinant is the likely effect on the residential properties adjoining and nearby the hotel.

37 In balancing the different evidence of the parties, I am satisfied that the one-year trial period should be based on 788 patrons but only on Friday and Saturday nights. Mr Robertson SC, on behalf of the applicant, submitted that a one-year trial period for 788 patrons on Friday, Saturday and Sunday nights was the applicant's secondary position if the Court did not accept their principal position that the one-year trial for 788 patrons should apply to the week. I do not accept that the potential for 788 patrons on the Sunday night is appropriate given the uncertainty of any impacts, particularly considering the proximity of residential dwellings, the absence of any assessment of the likely noise impacts and importantly, the existing operating hours that restrict the use of the hotel on Sunday nights.

38 A one-year trial for 788 patrons is appropriate on Friday and Saturday nights for a number of reasons. First, there was no dispute that the 788 patrons satisfied the appropriate ratio for patrons to floor area in the BCA. While the council raised some concerns that this ratio was based on an absence of tables or chairs in the PoPE areas, the onus remains with the applicant to ensure compliance with the BCA and in the event that tables and chairs or other obstructions are located in the PoPE areas, an appropriate adjustment would need to be made to the patronage numbers.

39 Second, some consideration must be given to the existing approved hours of operation of the hotel and the potential patron numbers. The hotel has 24-hour seven-day week operating times (excluding some restrictions on Sundays and other limited days) although Mr Smith indicated that the hotel does not operate regularly at these times. On Mr Smith's assessment (excluding the use of floor area as PoPE areas) the hotel has a potential capacity of 1500 patrons. Given the available opening times and the fact that there are no limitations on patronage numbers for the public and gaming room areas, beyond their physical capacity to accommodate patrons, the potential for disturbance does not arise solely from the proposed PoPE areas although I accept that provision of entertainment in the PoPE areas is likely to attract additional patronage than if there was no entertainment provided.

40 Third, the evidence of Dr Tonin was clear in that he could not form an opinion on the likely impacts without site specific noise monitoring. His evidence indicated that based on the likely movements of patrons as set out in Mr Smith's evidence (and which I understand he did not disagree), the additional noise levels would be in the order of 3dB(A). Dr Tonin described this as a "marginal increase in noise". Given compliance with the BCA requirements, it would seem appropriate that the site specific noise monitoring should address the maximum capacity of the PoPE areas. Any impacts are likely to be more tolerable to local residents on a Friday and Saturday night only rather than spread over seven days.

41 Fourth, the evidence of Leading Senior Constable Norris did not, in my view, establish a regular or consistent number of people who were found to be affected by drugs, who supply drugs in and around the hotel or that there was an excessive number of assaults connected to the hotel. The computerised incident reporting system used by the police was analysed in some details by Mr Robertson. I agree with his conclusions that while there were some instances of disturbances and some poor management practices, a large percentage of those matters relied on by Leading Senior Constable Norris could not be directly associated with the management and practices of the hotel even though the person in question may have visited the hotel some time prior to the incident been reported. Many of the assaults identified were on patrons having left the hotel of the hotel rather than by patrons of the hotel on other patrons.

42 Fifth, the proposed Plan of Management proposed by Mr Smith was seen as an improved management response to potential problems of increased patronage. The measures include:

• progressive shutting down of bars to provide for a staggered departures,
• discouraging large groups leaving the hotel one time,
• having security direct patrons to the taxi stand and bus pickup point, with security guards at each of these points,
• a reduction in queuing, and consequent reduction in potential noise impacts, through the ability to have patrons on the premises rather than the footpath.

43 I did not understand there to be any dispute that the Plan of Management proposed by Mr Smith provided greater opportunities to minimise the impact of patrons leaving the hotel on the residential areas although I would acknowledge that it was not accepted by the council's witnesses and a number of local residents that it would fully address their concerns. In any event, I am satisfied that the Plan of Management should be part of the one-year trial to determine its effectiveness or whether further modifications are required. The implementation of the proposed Plan of Management also provides the opportunity to manage patrons of the hotel that are not necessarily using the PoPE areas to the betterment of the local residents.

44 Sixth, and based on the evidence provided at the hearing there was no consensus that the operation of the hotel created unacceptable amenity impacts on the immediate area. Some residents indicated a noticeable improvement in the night-time amenity when the hotel has been closed however other residents indicated no noticeable difference over the same time period. While the council's bundle of documents contained a large number of written submissions opposing the PoPE areas, the difference in opinion further supports the use of a trial period for the higher number of patrons at 778.

45 For these reasons, I am satisfied that a one-year trial period for 788 patrons in the PoPE areas on Friday night and Saturday night is appropriate. I am satisfied that there are no provisions in LEP 1998, DCP 1997, the SEPP and DCP 2007 that would deny the one year trial period for 788 patrons in the PoPE areas on Friday and Saturday nights, given the approach adopted by the council on trial periods and the existing approved operating hours of the hotel.

Directions

46 The findings in the judgment require the preparation of additional conditions and the amendment to the council's draft conditions of approval. The parties also agreed that there were other conditions that required further discussion and these discussions could take place after the Court had determined the findings on the merits.

47 Specific directions regarding the filing of conditions that reflect the judgement will be made after discussion with the parties. Liberty will also be granted to the parties to approach the Court on 24 hours notice if there is any disagreement on the preparation of the amended conditions or some clarification is required.

48 Following the filing of the conditions, based on this judgment, Final Orders will be issued in chambers and will take the following form:

1. The appeal is upheld.
2. Development Application D/2008/1350 for alterations and increased numbers of patrons for the public entertainment areas for the Imperial Hotel located at 35-37 Erskinville Road, Erskinville is approved subject to the conditions in Annexure A.
3. The exhibits are returned.
______________
G T Brown
Commissioner of the Court