Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney - [2012] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation: Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179
Hearing dates: 26-28 June 2012
Decision date: 04 July 2012
Jurisdiction: Class 1
Before: O'Neill C
Decision:
Directions for amended plans, Plan of Management and conditions

Catchwords: DEVELOPMENT APPLICATION: rooftop addition to hotel, heritage item, heritage conservation area, impact on heritage significance, height and FSR breaches; acoustic impacts, operating hours.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA
Category: Principal judgment
Parties: Woolloomooloo Nominees Pty Limited (Applicant)
Council of the City of Sydney (Respondent)
Representation: Counsel
Mr Philip Clay SC (Applicant)
Mr Ian Hemmings (Barrister) (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s): 10183 of 2012

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. D/2011/1709 (the application) by the Council of the City of Sydney (the Council) for a rooftop addition to an existing hotel, the Woolloomooloo Bay Hotel (the hotel), at 2 Bourke Street, Woolloomooloo (the site).

Issues

Council's contentions in the matter can be summarised as:

The proposal will have an adverse impact on the heritage significance of the item, heritage items in the vicinity and the heritage conservation area;
The breaches of the height and floor space ratio (FSR) controls for the site result in a proposal that fails to meet the objectives for those controls;
The acoustic shield on the western side of the third floor terrace should be 2 metres high and not 1.4 m high as proposed; and
The proposed operating hours should be consistent with those permitted under the provisions of the City of Sydney Late Night Trading Premises Development Control Plan 2007.

The contentions in relation to the conditions of consent are:

The proposed trading hours and whether a trial period should be imposed on the periods identified by the Council as 'extended hours' (conditions 5 and 6);
Whether security officers should be required to wear fluorescent vests, identifying them as security officers, while they are inside the premises (condition 15);
Whether a noise complaint, substantiated by a council officer, should result in the use of the area concerned ceasing operation until attenuation works are carried out or should be able to continue operating while further acoustical testing is undertaken and any recommendations implemented (condition 24).

The site and its context

The hotel is located at 2 Bourke Street, Woolloomooloo, on the eastern corner of Bourke Street and Cowper Wharf Road and consists of two storeys, with a site area of 720.1m2. The site is bounded by Cowper Wharf Road to the north, Bourke Street to the west and the southern, rear wing of the hotel extends to Bland Street. There is a former laundry on the roof level at the southern end of the rear wing. The hotel was designed in the Inter-War Free Classical style of architecture by the architect E. Lindsay Thompson and constructed in c1922. The existing building operates as a hotel.

There are four terrace houses, 4 - 10 Bourke Street, on the corner of Bourke Street and Bland Street, which share their rear boundary with the hotel and no. 4 Bourke Street also shares its northern, side boundary with the hotel.

On the opposite corner of Bourke Street and Cowper Wharf Road is the Bells Hotel, which together with the Woolloomooloo Bay Hotel frames the intersection of Bourke St and Cowper Wharf Road. The Bells Hotel is a two-storey building, built in the same style as the Woolloomooloo Bay Hotel.

To the east of the site and adjoining the hotel, at 7-41 Cowper Wharf Road, is a contemporary three storey residential flat building with retail on the ground floor, designed by the architectural firm McConnel, Smith and Johnson and constructed during the 1980s.

On the northern side of Cowper Wharf Road, within Woolloomooloo Bay, is the Finger Wharf and flanking the western side of the Bay is 'The Terraces' apartment building.

Background and the proposal

The proposal is to retain the existing building, with some internal alterations to the ground floor and first floor and to construct a second floor addition in lightweight materials, to be used as a lounge bar, setback from the existing parapet of the hotel along the Cowper Wharf Road (north) elevation and Bourke Street (west) elevation to provide an external terrace area and garden bed behind the parapet. The proposed addition includes retaining the former laundry on the roof level and constructing a new second floor level along the length of the rear wing, in masonry. The rear wing extension will house a plant area within the former laundry, an office, storage area, toilets and lift.

The approved maximum capacity of the hotel is 485 people. The approved operating hours of the hotel (excluding the first floor balcony), on a permanent basis, are 9 am until 2 am the following day, Monday to Saturday and 10 am until midnight on Sundays and the outdoor seating areas cease operation at 11 pm on Sundays. The first floor balcony is approved for a maximum capacity of 44 people, 9 am until 10 pm Mondays to Saturdays and 10 am until 10 pm on Sundays on a permanent basis and 10 am until 12 midnight Mondays to Saturdays and 10 am until 11 pm on Sundays on a 12 month trial basis which is currently operative.

The proposed maximum number of people is 635 (including staff, patrons and performers). The proposed indoor operating hours, on a permanent basis, are 9am until 2am the following day, Mondays to Saturdays and 10am until midnight on Sundays. The proposed outdoor operating hours, on a permanent basis, are 9am until midnight, Mondays to Saturdays and 10am until midnight on Sundays.

The planning framework

The site is within Zone No. 10(a) - Mixed Use "A" Zone pursuant to the provisions of the South Sydney Local Environmental Plan 1998 (LEP 1998). A hotel is a use permitted with consent in this zone.

Clause 10 of LEP 1998 provides that consent must not be granted unless the consent authority is of the opinion that the proposed development is consistent with the objectives of the zone.

The relevant objectives of the Mixed Use Zone, at clause 21 of LEP 1998, are:

(a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and

(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 so as to preserve the quality of life for residents in the area.

The Woolloomooloo Bay Hotel (former Macquarie Hotel) is a local heritage item, included in Schedule 2 of LEP 1998, item no. 117.

Clause 22 of LEP 1998 and its relevant objectives include:

The consent authority must not grant consent to the carrying out of development on the site of a heritage item, or within a heritage conservation area or heritage streetscape area, unless it is of the opinion that the proposal is consistent with the following aims and objectives:

(a) to conserve the environmental heritage of the land to which this plan applies, and

(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and

(f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas

Clause 23 of LEP 1998, Protection of heritage items, includes the following:

(2) Consent must not be granted to a development application required by subclause (1) unless the consent authority has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item.

Clause 24 of LEP 1998, Development in the vicinity of heritage items, heritage conservation areas, heritage streetscape areas, archaeological sites or potential archaeological sites, states the following:

The consent authority must not grant consent to development on land in the vicinity of a heritage item, a heritage conservation area, a heritage streetscape area, an archaeological site or a potential archaeological site unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item, on the heritage significance of buildings within the heritage conservation area, or on the heritage significance of the streetscape within the heritage streetscape area or of the actual or potential archaeological site, as well as the impact of the development on any significant views to or from the heritage item, heritage conservation area or streetscape.

The statement of significance for the Woolloomooloo Bay Hotel, from the Council's updated version of the Heritage Inventory Assessment Report, states:

The former Macquarie Hotel has local historical, aesthetic and social significance. It is a representative example of an Inter-War Free Classical style hotel which dates from the key period of hotel rebuilding in the Federation and Inter - War periods by the major breweries in NSW. It demonstrates the increasing growth of leisure activities associated with nearby maritime operations and is important as part of a group of hotels in the area including The Bells Hotel opposite and the nearby Tilbury Hotel. It has a strong visual relationship with The Bells Hotel on the opposite side of Bourke Street which together define and frame the intersection of Bourke Street and Cowper Wharf Road. It is also part of a cohesive group of 20th century masonry buildings along Cowper Wharf Road which feature simple but well proportioned detailing that define the sweep of Cowper Wharf Road around what was part of the reclaimed foreshore of Woolloomooloo Bay.

The site is within the vicinity of State significant heritage items, listed in the State Heritage Register (SHR) and Schedule 2 of LEP 1998, including:

Woolloomooloo Finger Wharf, Cowper Wharf Road (SHR listing number 01437)
The Gunnery, 43-51 Cowper Wharf Road (SHR listing number 00927)

The site is within the vicinity of local heritage items, listed in Schedule 2 of LEP 1998, including:

Bells Hotel, 1-7 Bourke Street;
Victorian terrace house group, 4-10 Bourke Street;
Victorian terrace house group, 9-11 Bourke Street;
Victorian terrace house group, 12-22 Bourke Street;
Victorian terrace house, 13 Bourke Street; and
Victorian terrace house group, 15-21 Bourke Street.

The site is located within the Woolloomooloo Heritage Conservation Area (HCA), under the provisions of LEP 1998, Schedule 2A, Heritage conservation areas (area no. CA52). The site is identified as being 'contributory' to the HCA.

Relevant Development Control Plans for the site include:

City of Sydney Heritage Development Control Plan 2006 (Heritage DCP)
South Sydney Development Control Plan 1997: Urban Design (Urban Design DCP)
City of Sydney Late Night Trading Premises Development Control Plan 2007 (Late Night Trading DCP)

The underlying principles on which the Heritage DCP is based, at clause 1.3, include:

Change should be based on an understanding of heritage significance; and
The level of change should respect the heritage significance of the item, building site, streetscape and/or area.

Clause 1.14 of the Heritage DCP states:

The City maintains a Heritage Inventory database which lists all heritage items, heritage conservation areas and heritage streetscapes within the (LGA). Each listing contains a Heritage Inventory Assessment Report that includes a description of the item or area, a Statement of Heritage Significance and Recommended Management provisions. The Heritage Inventory Assessment Report will be considered by the consent authority as part of its assessment of development applications. The recommendations in the Report should form the basis of all applications for development.

Limited information on the Heritage Inventory does not mean that the item is not significant. Where insufficient detail is available, information provided with the development application may be used to update the database.

Heritage Inventory Assessment Reports are available by contacting the City or online through the NSW Heritage Office at: type="1">
Controls for heritage items, at section 3 of the Heritage DCP, includes in the introductory paragraph, the following statement:
Any proposals for development must achieve a reasonable balance between meeting amenity and contemporary needs and protecting the heritage significance of the item.
Clause 3.2 of the Heritage DCP, includes, at 2(b), that development to a heritage item is to be consistent with the Heritage Inventory Assessment Report.
Controls for heritage conservation areas and heritage streetscapes, at section 4 of the Heritage DCP, includes, at clause 4.1(i) the following relevant objective:
[objectives of these provisions are to ensure that development within heritage conservation areas and heritage streetscapes] takes into consideration the contribution of the building as indicated by the Building Contributions Map.
Clause 4.2 of the Heritage DCP includes, at (1), that development within a heritage conservation area is to be compatible with surrounding built form and pattern of development by responding sympathetically to:
(a) existing form and massing, setbacks, scale and architectural style;
(d) surrounding neighbourhood character and streetscape, including buildings;
Clause 4.2 of the Heritage DCP includes at (3) that alterations and additions are not to dominate or detract from the original building.
Section 6 of the Heritage DCP includes controls for additions to heritage items and buildings within heritage conservation areas. The relevant objectives, at clause 6.1, include:
(iii) respect the scale of existing buildings;
(iv) respect the form and massing of the existing building;
Clause 6.2 of the Heritage DCP, includes, at (3) that additions are to be smaller in height and scale than the existing building.
The Urban Design DCP includes, in the height and FSR maps, controls for the height and floor space ratio (FSR) of the site. The site has a maximum height control of 12 metres and a maximum FSR control of 1.5:1.
The objective of the FSR control, at clause 2.2 of Part E of the Urban Design DCP, states:
To control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area.
Clause 2.2 of Part E of the Urban Design DCP includes performance criteria for FSR, on the basis that the maximum FSR a site can achieve is determined by the environmental constraints of the site, of which the relevant constraints are:
overshadowing and privacy
visual impact and views
Clause 2.3 of Part E of the Urban Design DCP includes performance criteria for the height of new buildings. The relevant criteria for this site includes:
adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours.
The performance criteria for height also includes the following statement:
To reinforce street corners, corner buildings may be higher than adjoining buildings, only where the additional height is not detrimental to the streetscape.
Clause 2.1 of the Late Night Trading DCP, introduces the aims of the plan, which relevantly includes setting limits on late night trading and providing greater certainty to the community and proponents of night trading premises in respect to appropriate operating hours and location of such premises.
The Late Night Trading DCP applies to this proposal as the plan includes, at clause 2.3(b), that the plan applies to proposals that 'seek refurbishment, additions or extension that will result in an intensification of an existing use.'
The Woolloomooloo Bay Hotel is classified as a 'Category A Premises - High Impact', by the provisions of clause 2.4 of the Late Night Trading DCP, as this category includes all hotels. The map in section 3.2 of the Late Night Trading DCP identifies the hotel as being within a Local Centre Area.
Clause 2.6 of the Late Night Trading DCP identifies relevant matters for consideration of a proposal, including the following:
(a) the location and context of the premises, including proximity to residential and other sensitive land uses and other late trading premises;
(b) the specific nature of the premises, ie pub, nightclub, restaurant etc and the proposed hours of operation;
(c) the existing hours of operation of surrounding business uses;
(d) the size and patron capacity of the premises;
Table 1 of clause 3.1 of the Late Night Trading DCP provides the trading hours for each classification of premises. A Category A Premises in a Local Centre Area is permitted the following trading hours:
Indoor trading hours
Outdoor trading hours
Base - 10 am to 10 pm
Extended - 10 am to midnight
Base - 10 am to 8 pm
Extended 10 am to 10 pm
Under the Draft Sydney Local Environment Plan 2011 (draft LEP), the draft height and FSR controls are 9m and 2:1 respectively. The relevant objectives of the height control, at clause 4.3 of the draft LEP, state:
(a) to ensure that the height of development is appropriate to the condition of the site and its context.
(b) to ensure the built form contributes to the physical definition of the street network and public spaces.
Public submissions
The hearing commenced on-site, where evidence was heard from Constable Michael Foot, Licensing Officer, Kings Cross Local Area Command, NSW Police Force and from six local residents.
Constable Foot is concerned that an increase in the patron capacity of the hotel may lead to an increase in offences in the vicinity of the hotel, particularly after midnight, as it is the peak period for offences. According to Constable Foot, the Woolloomooloo Bay Hotel is well run and there is no history of intoxication offences related to the hotel. He agrees that it is a positive change to the proposal to not increase the patron numbers from the existing numbers after midnight.
There were six resident objectors who provided evidence on-site; one is from the terrace house adjacent to the hotel; one is from a terrace house on the opposite side of Bourke Street; three are from the 'Gallery Apartments' on the opposite side of Bourke Street to the south and one is from the 'Terraces Apartments', on the opposite side of Cowper Wharf Road. Their concerns, in summary, are:
Noise from the proposed third floor addition and the external northern and western terraces, particularly noise after midnight;
The impact of the increase in patronage on parking in the area;
That an increase in patronage at the hotel will increase anti-social behaviour in the area;
The impact of the proposal on the heritage building.
Council received 24 submissions during the public exhibition of the development application, of which 17 objected to the proposal and 7 were in support of the proposal. The concerns raised by the resident objectors who gave evidence at the hearing and in the submissions in objection to the proposal are generally covered in the contentions raised by Council and the expert evidence.

Expert evidence

Expert evidence was provided on behalf of the applicant from Mr Stuart McDonald (planning), Mr Nigel Dickson (urban design), Mr Graham Brooks (heritage) and Mr Steven Cooper (acoustic).

Expert evidence was provided on behalf of the Council from Mr Alexander Scott (planning), Mr Andrea Urzi (urban design), Mr John Poulton (heritage) and Dr Renzo Tonin (acoustic).

Heritage impact

Evidence

The heritage experts agree that the hotel has undergone extensive alterations and additions over recent decades, notwithstanding that the hotel retains its overall form and its Inter-War Free Classical architectural style is clearly evident. The heritage experts agree, that were a roof top addition to be approved, the contemporary expression, form and scale of the proposal would be the most appropriate approach. The experts agree that the proposal will be visible from many vantage points around the Woolloomooloo area.

The heritage experts disagree on the extent to which the proposal would affect the heritage significance of the hotel and the HCA. According to Mr Brooks, the proposal respects the existing building by being setback from the parapet and the setback results in a proposal that does not interrupt the sweep of the masonry street wall along the southern side of Cowper Wharf Road; the proposal does not compete with or dominate the architecture of the original hotel and the proposal respects the overall scale of the hotel. In Mr Brooks' opinion, the relationship between the hotel and the Bells Hotel is diminished by the rendering and painting of the Woolloomooloo Bay Hotel.

Mr Poulson takes a different view. He thinks that the rooftop addition will have a detrimental impact on the identified heritage significance of the hotel because it will disrupt the strong, visual relationship between the hotel and the Bells Hotel; it will interrupt the continuity of the scale in the sweep of masonry structures on the southern side of Cowper Wharf Road; it does not take its cue in terms of height and scale from the heritage items in the vicinity of the hotel and because the original roof form of the hotel should not be altered.

The heritage experts agree, that should the proposal be approved, the following minor amendments to the proposal would reduce the overall impact of the proposal on the original fabric and design intent of the hotel:

The ground floor door opening at the eastern end of the northern elevation should be retained and the existing doors replaced with a pair of timber framed multi-paned glazed doors to match the detailing of the ground floor doors on the northern elevation;
The first floor window at the eastern end of the northern elevation should be retained;
The existing grille on the ground floor eastern end of the northern elevation should be retained in a glazed configuration; and
The proposed lift should be relocated west of the position indicated on the architectural drawings in order to maintain the first floor corridor along the eastern side of the southern wing.

The heritage experts disagree on whether the existing stair in the north-eastern corner of the hotel, connecting the ground floor and the first floor, should be retained. The proposal includes demolishing the existing stair and landing and inserting a new, grand, curved stair connecting the ground, first and proposed second floor.

According to Mr Brooks, the existing stair was intended to provide discrete access to the first floor accommodation and was not a feature of the original hotel. In his opinion, locating public bar areas on the upper floors has changed the context and the stair proposal represents a better architectural configuration, worthy of sacrificing the original fabric of the stair.

According to Mr Poulton, there is little internal original fabric remaining in the building and the stair should be retained on the basis that it is original and it is possible to retain it.

Findings

Based on the Council's controls, the Court must not grant consent unless:

The proposal is sympathetic to and does not detract from the heritage significance of the hotel, heritage items in the vicinity of the hotel and the HCA (clause 22 LEP 1998);
It has considered the extent to which the proposal will affect the heritage significance of the hotel (clause 23 LEP 1998); and
It has considered an assessment of the impact of the proposal on the heritage significance of the hotel, heritage items in the vicinity and the HCA (clause 24).

Two versions of the Heritage Inventory [Assessment] Report for the Woolloomooloo Bay Hotel were tendered by the parties. The 2005 version, printed from the NSW Heritage Branch (NSW Office of Environment and Heritage) on-line database on 10 April 2012 was tendered as Exhibit N. This was the version relied on by the applicant in the Statement of Heritage Impact submitted as part of the Development Application for the proposal. The 2012 version, which had been altered and added to, when compared to the on-line database 2005 version, was tendered as an attachment to Mr Poulton's Statement of Evidence, Exhibit 4. According to Mr Poulton, the 2012 version of the Heritage Inventory Report for the Woolloomooloo Bay Hotel has been updated, using relevant information taken from a heritage report prepared for a nearby building. The 2012 version does not identify what changes have been made to the report; when they were made or who made them.

The Heritage DCP states, at clause 1.14 'Heritage Inventory Assessment Report';

The City maintains a Heritage Inventory database which lists all heritage items, heritage conservation areas and heritage streetscapes within the (LGA). Each listing contains a Heritage Inventory Assessment Report that includes a description of the item or area, a Statement of Heritage Significance and Recommended Management provisions. The Heritage Inventory Assessment Report will be considered by the consent authority as part of its assessment of development applications. The recommendations in the Report should form the basis of all applications for development.

Limited information on the Heritage Inventory does not mean that the item is not significant. Where insufficient detail is available, information provided with the development application may be used to update the database.

Heritage Inventory Assessment Reports are available by contacting the City or online through the NSW Heritage Office at type="1">
This final sentence in this clause makes no distinction between the two versions, nor does it suggest that the Council's version may be an updated version when compared to the Heritage Branch on-line database version. Clause 1.14 of the Heritage DCP allows for the information provided with the development application to be used to update the Heritage Inventory Assessment Report and I note that this may well have been the case in this matter, that the issues highlighted by the proposal may have been used to augment the statement of significance in the updated version of the Heritage Inventory Assessment Report.
I have taken the updated 2012 version of the Heritage Inventory Assessment Report to be the relevant version for my consideration, pursuant to s 39(3) of the Land and Environment Court Act 1979 and because both heritage experts have relied on the updated version in their statements of evidence and their joint statement.
I agree with Mr Brooks and Mr McDonald that the proposal maintains the sweep of the street wall on the southern side of Cowper Wharf Road, by being setback from the masonry parapet of the hotel and by being a contemporary and distinct element, which has successfully responded to the constraints presented by the original form of the hotel building.
Previous alterations to the hotel, including the rendering and painting of the façade, the removal of the gable ends within the parapet, the alterations and additions to the first floor balcony and the extensive internal gutting of the building have significantly diminished its integrity. Notwithstanding these changes, the hotel remains an important and contributory element in the Cowper Wharf Road sweep of masonry facades. Its intricate masonry and joinery detailing and the repetition of the masonry elements in the northern and western façades and parapet edge are important elements in the composition of the design and allow it to continue to be read as an Inter-War Free Classical style building, making it worthy of its heritage listing. In my view, this is a building that can successfully accommodate a new and contemporary layer, without compromising its presence within the urban fabric. I agree with the heritage experts that the proposal is well designed and an appropriate form and style of addition for this building. I find the heritage impact of the proposed roof top addition to be acceptable.
I agree with the heritage experts that the proposal should be amended to retain the northern elevation ground floor door opening with new doors to match existing; the grille should be retained and the northern elevation first floor window to the stairwell should be retained and the lift should be repositioned to retain the first floor eastern corridor to the southern wing; as these amendments will reduce the overall impact of the proposal on the heritage significance of the hotel. I agree with Mr Poulson there is little internal original fabric remaining in the building and the original stair should be retained, if possible, on the basis that it is part of the original layout and aids in interpreting what little is left of the original internal configuration of the hotel. The retention of the original stair will require an amendment to the design of the section of stair between the first and second floors and possibly the configuration of the external wall on the second floor, adjacent to the stairwell.
In my view, the proposal satisfies the relevant requirements in clauses 22, 23 and 24 of LEP 1998. The proposal's impact on the heritage significance of the hotel, heritage items in the vicinity of the hotel and the HCA is acceptable and therefore not a reason for refusal.
Height and FSR
Evidence
The planning and urban design experts agree that the northern section of the proposed roof breaches the DCP 12m height control for the site by 0.8m. The urban design experts and Mr McDonald agree that the height of the proposal adopts the predominant height and scale of adjoining building and has a similar bulk and mass to the neighbouring buildings and that the height of the proposal therefore meets the objectives and performance criteria of the height control (clause 2.3 Urban Design DCP).
The planning and urban design experts agree that the proposal breaches the 1.5:1 FSR control by 216 sq m, resulting in a FSR of 1.8:1.
The planning experts agree that the proposal is acceptable in terms of overshadowing impacts and that potential privacy impacts are mitigated by minor amendments to the proposal via the conditions of consent.
The urban design experts agree that the proposal is acceptable in terms of urban design considerations, including bulk and scale; height and FSR objectives; streetscape compatibility, both the existing and desired character of the area and overshadowing. The urban design experts agree that the proposal is acceptable in terms of its impact on the visual relationship between the hotel and the Bells Hotel.
The planning experts disagree on the impact of the proposal on the street wall along the southern side of Cowper Wharf Road. According to Mr Scott, the street wall reduces in height towards the western end of Cowper Wharf Road and the proposal will increase the bulk and height of the building, which will interrupt the gradual reduction in height of the buildings at the western end of the street. According to Mr McDonald, the proposal is not changing the streetscape or the height of the masonry facades along the sweep of Cowper Wharf Road as the proposal is a recessive element, due to its setback and use of lightweight materials. The planning experts agree that this is fundamentally a heritage issue in terms of the impact of the proposal on the heritage significance of the HCA and if the heritage impact of the proposal is found to be acceptable, then the bulk and scale of the proposal will be acceptable.
Findings
I am satisfied that the proposal is sufficiently distinguished from the existing building in terms of setbacks from the parapet, form and materials to respect and reflect the overall built form of the area and that it is consistent with the built form along the southern side of Cowper Wharf Road and does not detrimentally affect the amenity of the area. In my view, the proposal satisfies the objectives and performance criteria for the height and FSR controls.
Draft LEP
Evidence
Under the provisions of the draft LEP, the proposal breaches the 9m height control by 3.8 m and complies with the 2:1 FSR control.
The experts disagree as to the weight the Court should give the calculation of FSR under the draft LEP, on the basis of whether the draft LEP is certain and imminent or not. Mr Hemmings submits that the draft LEP is certain, however he does not suggest it is imminent and he suggests that the Court should rely principally on the relevant current controls, whilst noting that the future regime will ensure the existing height of the hotel and the Bells Hotel are maintained.
Findings
Pursuant to s 79C(1)(a) of the EPA Act, the following must be considered in terms of the draft LEP:
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved)
The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. Relevantly, Spigelman CJ states, at par 5 of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the following:
Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.
The question of whether or not the draft LEP is certain and imminent is not fundamental to the proposal before the Court, as it will remain permissible, with consent, under the provisions of the new LEP. I accept the submission of the Council that the draft LEP has a high level of certainty and that the question of its imminence is less important, in this case.
For reasons dealt with elsewhere in the judgment, I am satisfied that the proposal is appropriate to the condition of the site and its context and does not interfere with the contribution the existing masonry façade makes to the physical definition of the street wall and public spaces. In my view, the proposal satisfies the objectives for the height control in the draft LEP.
Acoustic
Evidence
The acoustic experts agree that an acoustic barrier is required on the rooftop terrace to shield the noise of patrons' voices on the external northern and western terraces. They agree that an acoustic screen, approximately 1m behind the external face of the parapet, would be adequate. They agree that the screen should be 1.4 m above the finished floor level of the terrace on the northern side. They disagree on the height the screen should be on the western side. In Mr Cooper's opinion, the screen should be 1.4 m high and in Dr Tonin's opinion, the screen should be 2 m high.
The acoustic experts agree that the impact of noise on the nearby 'Gallery Apartments' complex and roof garden will be shielded by the ridgeline of the apartment building and that the dominant noise source experienced at the apartments is from the nearby expressway. The acoustic experts agree that the acoustic issues of concern relate primarily to the residential properties fronting in Bourke Street.
The acoustic experts disagree on the predicted noise levels of the proposal, because they disagree with the method used by the other expert to estimate the noise levels. Mr Cooper used theoretical values for patron noise and Dr Tonin used measured values from a nearby hotel to estimate the noise levels. In addition, the experts disagree on the correct location of the noise logger to establish background noise levels.
Dr Tonin states in his Statement of Acoustic Evidence (Exhibit 5) that the screen should be higher than the proposed 1.4 m on the western side of the terrace, because 'it is possible for patrons standing close to the barrier to be directly exposed to the residential receivers and the barrier would not then fulfil its intended purpose.'
Findings
The acoustic experts' rejection of each other's method of predicting future noise levels is unhelpful and it would be of far greater assistance to the Court if the experts confined their disagreement to interpreting data resulting from a mutually agreed methodology.
During the hearing, an acoustic screen detail was tendered (Exhibit M). The design of the acoustic screen detail was based on the constraints identified by the heritage, urban design and acoustic experts during a discussion on site, on the first day of the hearing. The planter bed and acoustic screen detail locates the 1.4 m high screen in the approximate centre of the planter bed, on the inside of the parapet, 1 m behind the external face of the brick parapet (based on the advice of the acoustic experts). There is 0.6 m distance between the acoustic screen and the terrace, due to the depth of the planter bed, so that plants can be located on both sides of the acoustic screen, combined with the depth of the timber clad retaining wall of the planter bed. Patrons will therefore not be able to stand close to the screen, as they will be at least 0.6 m away. Dr Tonin had explained in his Statement of Acoustic Evidence that the reason he required a higher acoustic screen on the western side of the terrace was because patrons standing close to the barrier may be directly exposed to the residential receivers. The location of the acoustic screen in the centre of the planter bed has addressed this issue and, based on the evidence of Mr Cooper, I am satisfied that the proposed 1.4 m high transparent acoustic screen, wrapping around the northern and western elevations of the second floor terrace will effectively fulfil its intended purpose of ameliorating the noise of patrons voices.
I note that the Plan of Management, clause 7.8, requires acoustic testing during the first 30 days of trading on the second floor and any recommendations made by the acoustic consultant, following the testing, are to be implemented, in accordance with the Plan of Management and with Council's knowledge.
Hours of Operation
Evidence
The applicant's proposed indoor operating hours, on a permanent basis, are to be the same as the approved operating hours of the hotel (excluding the first floor balcony), which are 9 am until 2 am the following day, Monday to Saturday and 10 am until 12 midnight on Sundays. The proposed operating hours, for the external terrace area, on a permanent basis are 10 am until midnight on Mondays to Sundays. The external northern terrace is to be used as a smoking area only, between midnight and 2 am the following day.
At the commencement of the hearing, the applicant nominated to close the first floor bar at midnight, on the basis that trading would continue in the second floor bar until 2 am. The purpose of this amendment is to maintain the existing patron capacity of the hotel after midnight.
The current operating hours do not conform to the Late Night Trading DCP, as the approval for the existing operating hours was granted prior to the commencement of the DCP.

The Council contends that the trading hours of the proposed bar should be consistent with the Late Night Trading DCP provisions for Category A Premises in a Local Centre Area, which are base hours of 10 am until 10 pm and extended hours 10 am until 12 midnight for indoor areas and base hours of 10 am to 8 pm and extended hours of 10 am until 10 pm for outdoor areas.

Mr Hemmings submits that late night trading is a privilege that should be earned by good management, including compliance with the Plan of Management and conditions of consent. He submits that trading hours should be consistent with the Late Night Trading DCP in order to provide certainty to the community and proponents.

Findings

The proposed second floor lounge bar and outdoor terrace areas are distinct in character and construction from the more inwardly focused public bar areas within the existing hotel. The proposed roof top addition is lightweight construction, including sliding retractable glass doors for the full length of the northern and western facades and this arrangement potentially has a greater impact on the amenity of residents in the vicinity of the hotel, when compared to the existing areas within the hotel. I agree with Council that the trading hours for the proposal should be consistent with the Late Night Trading DCP so that the lounge bar ceases operating at midnight, in order to minimise impacts, particularly acoustic impacts, on surrounding residents.

I agree with the Council that it is appropriate to require a 12 month trial period for extended trading hours, in order to provide an incentive for the operator to comply with the Plan of Management and conditions and to enable adjustment to be made to the Plan of Management and acoustic amelioration measures if required; on the basis that limiting potential adverse impacts from the use of the proposed lounge bar and outdoor terrace areas, particularly acoustic impacts, depends to a significant extend on the operator complying with the Plan of Management and conditions.

For these reasons, the Council's proposed operating hours, including a 12 month trial period for the extended hours, are appropriate.

Conditions of consent

Submissions

Condition 5 deals with the proposed hours of operation. Condition 6 deals with the use of the northern terrace as a smoking area between midnight and 2 am the following day.

Condition 15 requires security officers to wear fluorescent vests at all times with the word "SECURITY" clearly identifiable in bold print at least 100 mm high on the front and back of the vest. The applicant submits that the fluorescent vests should only be worn outside, as they are not in keeping with the ambience of the interior of the premises.

Condition 24 requires a noise complaint, substantiated by a council officer, to result in the use of the area concerned ceasing operation until attenuation works are carried out. The applicant offers an alternative condition that on substantiation of a noise complaint by a council officer, then further acoustical testing is to be undertaken and any recommendations implemented.

Findings

The proposed operating hours and whether a trial period should be imposed on the periods identified by the Council as extended hours have been dealt with elsewhere in the judgment. Condition 5 is to be amended so that the operating hours are consistent with the Late Night Trading DCP. As the proposed lounge bar is to cease operating at midnight, there is no longer a requirement for a smoking area on the second floor after midnight, so condition 6 is to be deleted.

In my view, the benefit of the security officers being easily identified both inside and outside the premises outweighs the concern that their attire may clash with the interior decor. It is impractical to expect the security officers to remove or put on their vests as they move in and out of the premises. The wording of the final sentence of the condition regarding security officers is to remain the Council's version, as follows:

All licensed security officers whilst employed at the premises are to wear fluorescent vests at all times with the word "SECURITY" clearly identifiable in bold print at least 100mm on the front and back of the vest.

I prefer the applicant's condition regarding a noise complaint as it provides a more scientific basis for overcoming any potential non-compliance with noise conditions and appropriately allows the applicant to be involved in determining whether the complaint is valid, and if so, how it can be rectified. The condition regarding a noise complaint is to be amended accordingly.

Interim findings - directions

I am satisfied that the proposal can be approved, however the judgment identifies a number of matters that require further consideration by the applicant, which should be included in amended architectural plans, Plan of Management and conditions of consent, as follows:

The retention of the original stair between the ground and first floors and the reconfiguration of the proposed stair between the first and second floors. This may require the glazing and timber screen on the second floor northern elevation around the stair to be reconfigured;
The ground floor door opening at the eastern end of the northern elevation is to be retained and the existing doors replaced with a pair of timber framed multi-paned glazed doors to match the detailing of the ground floor doors on the northern elevation;
The first floor window at the eastern end of the northern elevation is to be retained;
The existing grille on the ground floor eastern end of the northern elevation is to be retained in a glazed configuration;
The proposed lift is to be relocated west of the position indicated on the architectural drawings in order to maintain the first floor corridor along the eastern side of the southern, rear wing;
Condition 5 is to be amended so that the operating hours are consistent with the Late Night Trading DCP, as dealt with in the judgment par 90-92. The Plan of Management is to be amended to be consistent with Condition 5;
Condition 6 is to be deleted and the Plan of Management amended accordingly; and
Condition 24 is to be amended, as dealt with in the judgment par 98.

An appropriate timetable will be discussed with the parties when interim findings are handed down.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 04 July 2012

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Citations

Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179

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Medium Neutral Citation:	Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179
Hearing dates:	26-28 June 2012
Decision date:	04 July 2012
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	Directions for amended plans, Plan of Management and conditions
Catchwords:	DEVELOPMENT APPLICATION: rooftop addition to hotel, heritage item, heritage conservation area, impact on heritage significance, height and FSR breaches; acoustic impacts, operating hours.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA
Category:	Principal judgment
Parties:	Woolloomooloo Nominees Pty Limited (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel Mr Philip Clay SC (Applicant) Mr Ian Hemmings (Barrister) (Respondent) Solicitors Gadens Lawyers (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10183 of 2012