187 Kent Pty Ltd v Council of the City of Sydney

187 Kent Pty Ltd v Council of the City of Sydney - [2007] NSWLEC 382 - NSWLEC 2007 case summary — Zoe

[19]

10 Mr Crane gave further evidence during the hearing. He answered a question put by the Council's representative, which led to an exchange with the Commissioner as follows: Q. Okay, go back a step. You heard in my opening that I said to Commissioner that we don't need to crystal ball gaze at what may ensue in this application because here we have an applicant who has unlawfully, with a small "u", making use of units contrary to a condition for serviced apartments and he's endeavouring to regularise that use through a consent now, correct? A. Yes, in levels 1 to 8? Q. Yes? A. Yes. Q. So what we are supposing might follow by way of the amenity impacts, Mr Crane, was in fact heard this morning by those residents complaining about what they've suffered to date as a result of short-term stayers, correct? A. Some were general suppositions and others were - I didn't really get the feeling that there was actual events, specific events, it was more of a concern and supposition. Q. … … COMMISSIONER Q. Mr Crane, it seems to me that the issue that I have to deal with is not necessarily whether the units in question are more suitable for residential use or serviced apartments, that decision was made and they're obviously suitable for serviced apartments because they were designed for that purpose, the real question is whether the potential mix of permanent residents and people using serviced apartments is appropriate. The DCPCs know you say you've seen no evidence to say that people living in serviced apartments are likely to create any more amenity impacts then those living in residential accommodation. Is that a fair description of what you've said? A. It is, Commissioner. I mean I myself live in a residential flat building where people have lived opposite us in a rental situation and we've had a concierge and that sort of thing and there couldn't be nicer tenants of that unit. … COMMISSIONER: . Q. Are they permanent, they're long-term tenants? A. They were just over 6 months and they were here as IT specialists working for Channel 7. Q. How would the management plan deal with short-term serviced apartments on a regular basis if say, had to catch the 6 o'clock plane to London? I mean are they banging down the corridors at 3 o'clock in the morning. I mean the concierge isn't going to probably be running around all night, won't be standing in the corridor while they leave. I mean it's these spontaneous acts of noise that are the problem. And that's one of the problems with management plans, is that you require a fair degree of oversight to make sure these things happen and simply by their nature they can't manage every potential impact or every potential noise impact. I suppose it goes down to the propensity of the people to make noises and it goes back again to that question of whether people who use serviced apartments are likely to create more amenity impacts or noise or disturbances than long term tenants. I've heard your evidence, it just seems to me that that's really the thrust of the issue that I have to decide. A. Commissioner, I've travelled a lot as I'm sure you have and I've been in many hotels where that sort of situation where somebody might get up early in the morning and leave but that hasn't disturbed me so it's on the individual. Q. Yes. I suppose the question is, if you're in a residential situation or a long-term residential situation and you are disturbed on a more regular basis by people who are short stay tenants, is that a reasonable situation? Should you create the situation that generates that potential conflict? That seems to me the question that I have to deal with. A. In my opinion, the sort of situation that you're referring to would be infrequent and possibly not as dramatic as being suggested. 11 The applicant's representative then questioned Mr Crane. Mr Crane gave the following evidence: Q. The noise getting from the corridor, to use the learned Commissioner's example, the person leaving for the airport early in the morning, the noise would have to be transferred from the corridor into a unit in order to disturb a person living in any of the units? A. Well I presume so. It would be a matter of the closer on the door or whether or not it would allow the door to slam versus somebody, you know, being less, I suppose, considerate. Q. But I understood what the Commissioner was saying was a concern, perhaps the person leaving the unit on a floor could disturb other people on the same floor if they were leaving early, for example, to get an early flight? A. Yeah, when background noise is very low, for example. Q. But the council has imposed conditions of noise conditions on the application and presumably the building was constructed to meet the needs of that type of use when it was originally built? A. I presume it was but I haven't done any inspection to be able to verify that. Q. So if there was a concern that noise might transfer from the hallway areas into units, that could be addressed by what, an acoustic report? A. If it was a concern an acoustic report would no doubt be of assistance to whether or not the standard of construction overcomes that issue or whether something else needs to be done to ensure that that occurs. Q. And the levels are also supervised 24 hours a day, 7 days a week by management? A. Well they are but I take the Commissioner's point, the concierge can't be on every floor supervising what happens. Q. And those spontaneous noise events could occur whether it be a person who had been residing there for 2 weeks or a person who had been residing there for 6 months? A. Yes, except for the frequency of it happening every 2 weeks versus somebody that was there, you know, for 6 months, might be more for the short stay.

[22]

13 The Commissioner decided to refuse consent (187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88). In a section of his reasons delivered on 2 March 2007 headed "Impact on the amenity of future residents" the Commissioner summarised the evidence of Mr Crane ([20] to [22]) and the residents ([23] to [25]). In a section headed "Findings" the Commissioner framed the principal issue in the appeal as "the wider issue of compatibility between the residential and serviced apartment uses" (at [27]). His reasons continue as follows: Are the uses compatible? 28 Mr Crane finds the uses are compatible whereas the council comes to the opposite conclusion. The council officer's report (Tab 9, Exhibit 1) makes the following comments: There is a difference in the living and activity patterns and the behaviour of short and long-term residents, and the responsibility to resolve and control any conflict between the uses and occupants falls entirely upon the serviced apartment managing agency. Short term residents have no long-term interest in the maintenance of the amenity within the building or the surrounding area. While it appears that the dual use has been occurring on the site for a number of years, the reliance on the managing agency to maintain acceptable levels of residential amenity leaves open the potential for considerable adverse impact should changes to management occur in the future. 29 I accept the council's position on compatibility between residential accommodation and serviced apartments. While both are residential in nature, the fact that they are separately defined in LEP 2005 would suggest that they have different characteristics. I agree that there is likely to be a difference in behaviour, living and activity patterns between short-term and long-term occupants. A conclusion that short-term occupants are likely to have less concern about maintaining of the amenity of the building than long-term occupants is a finding that can be reasonably made, in my opinion. That is not to say that all short-term occupants are likely to have less concern about maintaining the amenity of the building than long-term occupants but only that there is likely to be a greater proportion who use the building differently through their behaviour and activities in and around the building. 30 The greater frequency of short-term occupants in and out of the building is potentially disruptive for long-term occupants, particularly at times such as early in the morning or late at night. These movements may not always create excessive noise but may occur at a time when long-term occupants reasonably expect not to be disturbed. These disturbances could relate to matters such as doors closing, noise from adjoining apartments and general conversation in common areas. While there may be measures, such as door closers to minimise potential noise impact, it would be unlikely that all sources of noise could be removed. 31 In general terms, long-term occupants would generally have a greater expectation and promote a more quiet and peaceful amenity than short-term occupants, as they would regard their apartment as a home compared to a temporary place to reside for short-term occupants. Long-term occupants are also likely to be less tolerant of disturbances and likely to be more concerned with activities that may potentially cause damage to the building, as they would have a greater feeling of ownership and ultimately be responsible through the Owners Corporation for repairs. While Mr Crane states that there is no evidence to support such a finding, I am satisfied that by simply adopting a common sense approach, the council's conclusion of incompatibility between the two uses can be supported. 32 For these reasons I find that there is an fundamental incompatibility between a mix of residential and serviced apartments that share the same floor and access points. 14 The Commissioner then assessed the management plan under the heading "Can any measures be taken to address amenity impacts?" He concluded, in part, as follows at [34]: On the first question, I am not satisfied that a management plan can deal with spontaneous events of noise that may disturb the existing residents. Again, the noise events may not necessarily relate to unacceptable behaviour but to the normal comings and goings of short-term tenants. The existence of full-time staff is a positive aspect of the proposed development and would be effective in managing most situations around the foyer area however it could not be reasonably expected that staff would be in a position to address spontaneous events of noise elsewhere in the building. 15 For this and other reasons the Commissioner was not satisfied that the management plan would provide an "effective means of addressing potential amenity impacts that may occur on the site" (at [36]). Accordingly, the Commissioner dismissed the appeal and refused the development application.

[23]

16 The applicant contended that it was denied procedural fairness by not being permitted to call evidence from an acoustical engineer in relation to "noise amenity impacts". It submitted that the following circumstances obliged the Commissioner to give the applicant that opportunity. (1) Issue 1 in the statement of issues referred to noise but the Commissioner in his exchange with Mr Crane first raised the concept of "spontaneous noise" caused by occupants of serviced apartments. This was a different concept from "noise", which took the applicant by surprise. (2) The Court appointed expert gave evidence favourable to the development. Hence, the applicant did not think there was a need to obtain any other evidence, which was reasonable. (3) The Council did not call any acoustical evidence. (4) "Spontaneous noise" was a technical issue specifically amenable to expert acoustical evidence. (5) Mr Crane had indicated that an acoustical report would be of assistance to the Court in relation to this issue. (6) The applicant observed in its submissions that if "spontaneous noise" were a serious issue of concern the applicant should be permitted to obtain an acoustical report. (7) The Commissioner remained silent when the applicant made this submission. (8) The issue of "spontaneous noise" was critical to the Commissioner's decision to refuse the application. 17 The relevant principles about procedural fairness are well known. However, the authorities emphasise that the application of these principles depends on the statute under which the power is being exercised and the circumstances of the exercise of the power in the particular case. Hence, it is clear that: · Whether the Commissioner's decision was sound or unsound is beside the point. The relevant question concerns the process, not the decision ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 231 ALR 592 at [25]). · The right to be heard usually includes the "opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material" ( Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, referred to with approval in SZBEL at [32]). · Procedural fairness does not require the decision-maker to give parties a "running commentary upon what it thinks about the evidence that is given" ( SZBEL at [48] referring to the observations of Lord Diplock in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369. See also Alphaone at 592).

At a glance

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Judgment (39 paragraphs)

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Cases Cited (9)

Cited By (2)