Amazonia Hotels Pty Ltd v Council of the City of Sydney

Planning Controls 7The hotel is in the B2 Local Centre zone under the Sydney Local Environmental Plan 2012 (the LEP). The aims of the LEP include in cl 1.2(2) "(c) to promote ecologically sustainable development", and "(h) to enhance the amenity and quality of life of local communities". The aims of the B2 zone include "to provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area". 8The Sydney Development Control Plan 2012 (the DCP) applies. The Locality Statement for the Kings Cross locality states (section 2.4.7): The area is an international destination for tourism and entertainment and its role as a centre is to be strengthened by capitalising on its proximity to public transport, and by providing commercial and retail services for the area. 9The hotel is in a Late Night Management Area which extends along Darlinghurst Road from William Street to Barncleuth Street (Late Night Trading Areas Map, exhibit 1, p 30). The Late Night Management Area Character Statement (Sch 3 to the DCP) includes the following: Key defining elements Late Night Management Areas are places within the City that: (a) have historically been the focal points for varied late night social and recreational activity; or (b) are places with a distinct late night entertainment character; or (c) have an evolving night entertainment character and the Area is considered by the Council to have the capacity for an increase in late night trading premises These places should be vibrant and multifunctional places where people can go out late at night in safety without affecting the amenity of nearby residents. Patrons of late night trading premises should be able to take advantage of a diverse range of cultural and entertainment opportunities in close proximity to each other; without one particular type of late night use dominating which may usurp the diversity and attraction of the area. Late Night Management Areas are often regional 'destinations' that have accessible and frequent public transport at night and usually have their focus on main streets or tourist locations where people shop, meet, work and live. Given the likely higher level of visitation and the possibility of long trading hours, it is important that all premises, especially those high impact premises are well-managed and regulated. ... Issues and management Due to the concentration of late night trading premises in Late Night Management Areas, the cumulative noise levels, generation of pedestrian and vehicle traffic, and activity levels will be an issue, more so than in other late night trading areas. Whilst it is acknowledged that noise and late night activity is a key characteristic of these areas, it is also essential to manage the cumulative impacts of late night trading premises in Late Night Management Areas and to effectively manage each individual late night premises within the area. ... Trading hours Extended hours can allow Late Night Management Areas to reinforce their role as centres of activity which offer entertainment, social and cultural opportunities that attract both locals and international visitors. Early morning trading hours may be acceptable for premises located in Late Night Management Areas where proponents can verify over time that noise, safety and amenity impacts can be managed to a level which is at an acceptable community standard. Up to 24 hour trading may be permissible in Late Night Management Areas; but only in circumstances where applicants have a sustained track record of good management, minimising amenity and safety impacts. 10Part 3.15 of the DCP deals with Late Night Trading Management: The aim of this section is to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and to protect the amenity of existing residential properties. The City's night-time economy is an integral part of its commercial, cultural and social fabric. Late night trading premises are an important part of Sydney social and street life and playing an important role in the City's economic growth. People who live or work in the City as well as tourists are attracted to these places as a result of their diversity and vitality. Late night trading premises can also provide employment and jobs with flexible hours. The following provisions will provide greater certainty to the community and proponents of late night trading premises in respect to appropriate operating hours and location. The provisions do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions. The provisions also identify a constrained range of operating hours for late night trading in areas within a predominantly residential context and allow more flexible extended trading hours for premises located in places where adverse amenity impacts on residential neighbourhoods are likely to be lower and are considered capable of being adequately managed. Late trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods. It is particularly important for proponents of 'high impact' late night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the application stage and throughout the history of the operation of the premises. Late night trading area character statements and guidelines for preparing plans of management and premises management checklists are included in Schedule 5 and should be referred to when preparing your application. Generally, late night trading areas are places within the City of Sydney that already or have historically been characterised by late night trading and related activity, for example Kings Cross. Longer trading hours may be permitted where it is considered that this character can be reinforced or where there is capacity for more late night uses to operate with acceptable amenity impacts resulting from any new late night activity. 11The objectives of the Late Night Trading Management provisions are: Objectives (a) Identify appropriate locations and trading hours for late night trading premises. (b) Ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses. (c) Ensure that a commitment is made by operators of late night trading premises to good management through the monitoring and implementation of robust plans of management. (d) Encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City. (e) Encourage a broad mix of night time uses with broad community appeal that reflect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City. (f) Encourage a diversity of night-time activity in defined areas. (g) Prevent the proliferation of poorly managed high impact late night premises. (h) Ensure that new late night trading premises do not reduce the diversity of retail services in an area. (i) Ensure that applications are accompanied by sufficient information so that proposals for late night trading premises can be fully and appropriately assessed. (j) Provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods. (k) Encourage premises with extended trading hours that are of a type that do not operate exclusively during late night hours and may be patronised both day and night. (l) Ensure that appropriate hours are permitted for outdoor trading; and (m) Ensure a consistent approach to the assessment of applications for premises seeking late night trading hours. 12The hotel is defined as a "Category A - High Impact Premises". Section 3.15.1 General provides: 3.15.1 General (1) These provisions apply to applications made under Part 4 of the Environmental Planning and Assessment Act 1979 which includes development applications and applications to review a determination or modify a consent. (2) These provisions apply to applications for new and existing Category A and Category B premises that: (a) seek approval for trading hours between 10pm and 7am the following day; (b) currently trade between 10pm and 7am the following day, and seek refurbishment, additions or extensions that will result in an intensification of an existing use; (c) seek an extension or renewal of trial trading hours as prescribed in this section of the DCP; or (d) seek approval for outdoor trading beyond 8pm. Note: These provisions are not retrospective and do not derogate from existing consents. 13Relevant matters for consideration are specified in section 3.15.3: 3.15.3 Matters for consideration These matters for consideration provide the basis for a consistent approach to the determination of appropriate trading hours and create greater certainty for the community and proponents of late night trading premises. Once these factors are taken into consideration, late night trading hours may be permitted in appropriate circumstances, particularly in areas within the City that already exhibit a vibrant night-time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage. (1) Appropriate trading hours for late night trading premises will be determined by taking into account a number of 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 night trading premises; (b) the specific nature of the premises, that is a pub, nightclub, restaurant, or other similar premises 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; (e) the impact of the premises on the mix, diversity and possible concentration of late night uses in the locality; (f) the likely operation of the proposal during day time hours; (g) submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain; (h) the diversity of retail services within an area and the impact of a late night trading proposal on this diversity; (i) measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises; and (j) the accessibility and frequency of public transport during late night trading hours. 14Section 3.15.4 provides for trial periods for extended trading hours, and states: Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premise and its impacts on neighbourhood amenity. These trial periods allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management. 15Section 3.15.4 provides for trial periods to extend trading hours beyond the applicable base hours, and under section 3.15.4(7) once the full range of extended trading hours is reached after a series of trial periods an application must be lodged every 5 years to renew trading hours. Table 3.7 provides that for a Category A - High Impact Premises the base hours for indoor areas are 6am to 12am, and extended hours are 24 hours. For outdoor areas the base trading hours are 10am to 10pm and extended hours 10am to 1am. The term "outdoor areas" is defined to be any areas not considered to be an enclosed place within the meaning of the Smoke-free Environment Regulation 2007. 16Section 3.15.5 and section 3.2 of Sch 3 to the DCP contain provisions for plans of management.

Evidence 17The hearing commenced on site with a view, which included a view of the hotel, and the locality. Evidence was given on site by two residents of units in 1A Roslyn Street, opposite the hotel. That evidence raised concerns as to impact on amenity for residents from noise, practical difficulties in enforcing patron behaviour, and a history of breaches and difficulties in having complaints responded to. Agreed notes of that evidence are exhibit 10. Copies of submissions made to the Council by objectors during the Council's assessment of the application are in evidence (exhibit 1, tab 3). In addition to the matters raised by the objectors on site, the written submissions raised concerns as to antisocial behaviour attributable to alcohol use, opposition to extended trading hours, and impact on the streetscape with people present at a prominent corner. An additional submission was provided during the hearing on behalf of the Potts Point and Kings Cross Heritage Conservation Society (exhibit 9). The Council notified the application to NSW Police, and received the response that NSW Police have no objections (exhibit 1, p 286). 18Mr Michael Bray, Group General Manager of Duggan Family Hotels Pty Ltd (a shareholder of Amazonia) provided a Statement of Evidence (exhibit E). Mr Bray states that part of his duties, since August 2013, include the management of the hotel in respect of operational and financial matters. Mr Bray states that Amazonia has been the registered proprietor of the hotel since July 2013. The purpose of the development application is to provide a suitable area that complies with smoking regulations for patrons wishing to smoke and drink. There is a small gaming area at the rear southern part of the ground floor of the hotel where smoking is permitted, however its primary purpose is for use as a gaming area and it is not suitable for use by patrons who wish to consume alcohol and smoke as the 13 machines in that area occupy most of the floor space. Patrons of the hotel who wish to consume alcohol and smoke are not permitted to smoke in the south western terrace after midnight because at that time the bi-fold windows and doors must be closed. The hotel has an older "workman" demographic of clientele who are largely smokers, and the hotel requires the proposed smoking terrace to meet the needs of customers. From his observations patrons leave the hotel shortly after midnight and continue their entertainment at either the Vegas or Crest Hotels which have dedicated smoking terraces on the Darlinghurst Road frontage which are permitted to operate 24 hours a day 7 days a week. With the introduction of the 1.30am "lockout" it is no longer possible for a patron to leave the hotel to smoke after 1.30am because they cannot be permitted re-entry after that time. Closure of the bi-fold doors to the dedicated smoking terrace has severely affected the financial viability of the hotel. Mr Bray provided an analysis of sales figures relating to the bar areas and the gaming room over a six week period in 2013 when the lockout law was not in operation and financial figures over the same six week period in 2014. Annexure A to Mr Bray's Statement of Evidence shows that average takings for the gaming area for the period 7 September 2014 to 12 October 2014 are slightly higher than those for the equivalent period in 2013. Average takings for the bars over the same period are approximately 30% of those for the equivalent period in 2013. Mr Bray was not required for cross examination.

Acoustic evidence 19Expert evidence on acoustic issues was provided on behalf of Amazonia by Mr Nick Koikas and on behalf of the Council by Mr Glenn Leembruggen. Mr Koikas and Mr Leembruggen provided individual Statements of Evidence (exhibits C and 2), and a joint report (exhibit 4), and gave oral evidence. The acoustic experts addressed the likely noise impacts for residential receivers in the vicinity of the hotel. Those residential receivers are identified on Figure 1 of Mr Leembruggen's Statement of Evidence (exhibit 2): 20The approach adopted by each expert differed. Mr Koikas provided an acoustic assessment dated 29 April 2014, and in his Statement of Evidence (exhibit C) provided responses to matters raised in relation to that assessment by the Council. In summary, Mr Koikas' approach was to determine the octave band background noise levels at two unattended sites, one logger 2.5m from the hotel and 1.5m above the solid metal awning fronting Darlinghurst Road and the other 1m from the façade of the hotel and 1.5m above the solid metal awning fronting Roslyn Street. Attended measurements were taken at one site at the rear of the premises, and within the hotel. Mr Koikas converted patron noise levels as sound power levels per person, and used CadnaA computer software modelling to provide noise contours. Noise modelling was undertaken in octave band noise levels. The modelling was based on a maximum of 30 persons occupying the smoking terrace, and considered 15 patrons talking. Mr Koikas stated that his assessment considered the worst case scenario being that the premises operates at maximum capacity after midnight whereby inaudibility is to be achieved and that noise levels do not exceed the background noise levels at the boundary of a residential premise (exhibit C, p 7). In his Statement of Evidence Mr Koikas identified (pp11-12) that there would be a marginal exceedance at two frequency bands (2000 and 4000 Hertz frequency bands) which would be barely audible and unlikely to be perceived as intrusive because there would be other persons talking in the immediate neighbourhood and vehicles passing. In his opinion the Plan of Management prepared by Mr Martin would mean that instances where noise may become audible would be isolated instances. 21In his Statement of Evidence (exhibit 2) Mr Leembruggen stated that he had undertaken attended short-term monitoring at six locations, identified in Figure 4 of his Statement of Evidence: 22The relevant residential receivers were referred to in the experts' evidence by reference to their numbering in Figure 4. R1 is the units at 1A Roslyn Street; R2 is backpackers' accommodation at 34 Darlinghurst Road, on the corner of Roslyn Street; R3 is hotel accommodation ("Lido") adjoining the hotel at 2 Roslyn Street; R4 is residential apartments at 24-30 Llankelly Place; R5 is residential apartments at 11 Springfield Avenue; and R6 is backpackers' accommodation at 34-50 Llankelly Place. 23Mr Leembruggen noted that his assessment of background noise levels differed from that of Mr Koikas, those of Mr Koikas being higher (exhibit 2, p 13). Mr Leembruggen applied the noise criteria used by the Council, including that noise from the use must not be audible within any habitable room in any residential use between the hours of 12.00 midnight and 7.00am regardless of transmission path (exhibit 2, p 15). Mr Leembruggen explained his methodology at pp 17-21 of his Statement of Evidence. Mr Leembruggen applied the "noise begets noise" mechanism identified in research by Rindel (JH Rindel "Acoustical Capacity as a means of noise control in eating establishments", exhibit H), which shows that sound pressure levels increase by 6dB for every doubling of the number of people talking simultaneously in contrast to the usual rule of 3dB increase per doubling of talkers. Mr Leembruggen predicted exceedances of the noise criteria by up to 15dB at location R1 (1A Roslyn Street) and location R2 (34 Darlinghurst Road), and of up to 5 dB at locations R4 (24-30 Llankelly Place) and R6 (34-50 Llankelly Place) (exhibit 2, pp22-23). Mr Leembruggen outlined (at pp 13-14) results of measurements of patron noise taken by himself and his staff after preparation of exhibit 2 at outdoor smoking terraces at two hotels, the Aurora Hotel in Surry Hills (8 patrons) and the Newtown Hotel in King Street Newtown (30 patrons), concluding that his predicted levels were similar to the levels measured at Newtown Hotel and that even though there were fewer people at the Aurora Hotel the intoxication of the talkers resulted in their levels slightly exceeding the level in the Newtown terrace. 24In their joint report (exhibit 4) Mr Koikas and Mr Leembruggen agreed that in applying the inaudibility criteria, a sound is generally inaudible if it is 10dB below the level of background noise, and that if the level of the interfering sound is below the threshold of hearing it will not be heard (p 8). They differed as to whether backpackers' accommodation should be assessed to the inaudibility criterion after midnight. They agreed that sound levels produced by persons smoking and drinking in dedicated smoking terraces are not necessarily similar to those of patrons in restaurants eating and drinking, due to the lower number of patrons and the open façade of such terraces, which reduces the reverberation time in the terrace (p 9). 25The experts were generally agreed as to the background noise levels. The Table at p 8 of the joint report (exhibit 4) records that for a full week, background noise at R1 was 53dB, R2 52; and for weekdays R3 was 50, R4 47, R5 49 and R6 51. Applying the Council inaudibility criteria that a sound is generally inaudible if it is 10dB below the level of background noise sound in the same frequency range and if the level of the interfering sound is below the threshold of hearing it will not be heard, the noise criteria for the six sites is respectively 42, 42, 40, 37, 39, and 41 (exhibit 4, Table, p 9). The experts agreed that noise levels at R1, R2 and R6 is crucial, on the basis that if there is compliance at those locations there would be compliance at all residential receivers. 26In his contribution to the joint report Mr Koikas noted that in the course of providing data to Mr Leembruggen he had noted that the sound power level module used was incorrect and when the correct sound power levels were entered exceeding levels at some sites became apparent. With noise mitigation measures, the calculated resultant noise levels showed that marginal exceeding levels would occur for some frequency bands to the nearest premises. With 30 patrons the exceeding noise levels were significant, and Mr Koikas considered it necessary to reduce the number of patrons to 20 to produce exceeding levels that he considered to be insignificant (exhibit 4, p 22). Mr Koikas undertook further modelling based on 20 patrons, which demonstrated exceedances at R1, R2 and R6. To address those exceeding levels Mr Koikas considered further noise attenuation measures to the underside of the street awning adjacent to the hotel (exhibit 4, p 17, p 22). 27The experts agreed that the installation of sound absorbing ceiling and walls would reduce the general level of patron noise emitted from the hotel (exhibit 4, p 21), and proposed measures are now contained in a draft condition (exhibit G). 28The issues as to differing methodologies, and the significance of a reduction from 30 to 20 patrons after midnight as recommended by Mr Koikas, were pursued in the oral evidence. 29Amazonia was critical of Mr Leembruggen's reliance on the research undertaken by Rindel. The Rindel article (exhibit H) addresses the problem with predicting noise from people speaking in eating establishments and other social gatherings, noting (at 2.3) that there are unknown parameters relating to individual differences and how much people actually want to talk, which may depend on the type of social gathering, how well people know each other, their age, consumption of alcohol, and other social circumstances. The article refers to the Lombard effect, where persons with normal hearing raise their voice when subjected to noise, and notes that applying the prediction model developed in the article, the ambient noise level increases by 6dB for each doubling of a number of individuals present (2.2). Rindel notes that the prediction model was verified by comparison with measured data for a varying number of persons between 50 - 540 in large food courts and in a canteen, and being based on statistical conditions, "should not be applied to small rooms with a capacity less than, say 50 persons" (3.1). In oral evidence Mr Leembruggen was of the opinion that notwithstanding that qualification, the Rindel model that noise begets noise is still relevant; he agreed that while the circumstances are dissimilar to those on which the model was verified, the acoustic modelling is supported by his subsequent monitoring for the Newtown Hotel, and he chose a lower Lombard ratio in his modelling to be conservative. 30Mr Leembruggen addressed the significance of the change in maximum patron numbers from 30 to 20. His initial modelling for his Statement of Evidence and his contribution to the joint report was undertaken on the basis of 30 patrons, and overnight during the hearing he modelled for 20 patrons. Based on 20 patrons together with the addition of absorption measures, and based on groups of 3 with 7 people talking at the same time and a Lombard slope of 0.3, Mr Leembruggen's evidence was that there would be compliance other than for locations R1 and R2, and at those locations the exceedances would be at the 250 and 500 Hertz bands, at 4.4dB (which could be 3dB out either way). Mr Koikas agreed that R1 and R2 are critical; that his figures were in the same ballpark; and that there would be a need to ensure management of the terrace by staff on a regular basis. Mr Koikas agreed that if people were speaking in a loud voice the residents would be disturbed, and considered that the best way to address that would be with the proposed management approach. 31It is not necessary in my view to determine whether Mr Leembruggen's adoption of the Rindel prediction model, or Mr Koikas' modelling based on the CadnaA model, is to be preferred. Mr Leembruggen accepted that the differences between them of 3 dB in the initial modelling for the joint report could be accepted due to different assumptions between the CadnaA model and his model (exhibit 4, p 19). Whichever approach to modelling is adopted, there was ultimately common ground as to the background noise levels, and also that with 20 patrons and the additional absorption measures, there would be an exceedance of the noise criteria for R1 and R2. On Mr Koikas' evidence that exceedance would be between 1 and 2 dB at certain octave bands, and on Mr Leembruggen's evidence it would be 4.4dB (subject to a margin of 3 dB either way). On Mr Koikas' evidence there would also be an exceedance at R6 at two octave bands (exhibit 4, Table, p 17). 32Mr Koikas considered that the noise exceedance levels were marginal and would not be perceived by a person with normal hearing particularly when considered against the average maximum noise levels in the vicinity of Roslyn Street and Darlinghurst Road intersection (exhibit 4 p 17). He considered that the noise exceedances would not constitute offensive noise for the purposes of the Protection of the Environment Operations Act, when considered against the guidance issued by the EPA for Council officers which requires responses to six questions: is the noise loud in an absolute sense, and relative to other noise in the area?; does it include characteristics that make it particularly irritating?; does it occur at times when people expect to enjoy peace and quiet?; is the noise atypical for the area?; does the noise occur often?; and are a number of people affected by the noise? (exhibit 4, pp 23-25). Given the agreement between the experts that the applicable noise criterion is the Council's criterion for inaudibility after midnight (subject to Mr Koikas differing as to whether that should apply to backpackers' accommodation), I prefer the approach of Mr Leembruggen (exhibit 4, p 25) which was that if the noise does not comply with that criterion especially after midnight there are significant risks that residents will find the noise disturbing. On that basis, I agree with Mr Leembruggen that the most important step in mitigating the risk of noise disturbance after midnight is to ensure that the hotel complies with the post-midnight noise criterion of inaudibility, and if it does not comply, then arguments as to whether the noise is offensive can be pursued. 33As noted above, one of the deferred commencement conditions imposed by the Council required preparation of a Plan of Management to align with the operation of the smoking terrace. Amazonia's planning expert, Mr Andrew Martin, provided a revised draft Plan of Management (September 2014) with his individual Statement of Evidence (exhibit D). During the course of the acoustic evidence, further amendments were proposed to that Plan of Management (exhibits F and 11). The proposed management regime for the smoking terrace between 12 midnight and 4.00am as provided in exhibit F includes having a staff member with a current responsible service of alcohol (RSA) certificate patrol the terrace between 12.00 midnight and 4.00am and fill out a compliance sheet every 15 minutes noting patron numbers and whether there is too much noise, and ensure that there are no more than 20 patrons and that they keep the volume to a minimum. The staff member is to rove between the gaming terrace and the south western terrace and be principally stationed in the front/main bar area, and carry out minor duties such as glass collection, table wipe down, bar service and ashtray collection. Exhibit 11 proposes that a staff member conduct a listening test outside the apartments at 1A Roslyn Street, listening for patrons' voices during the lulls in noise from traffic and pedestrians and if voices are continually audible, instruct patrons to reduce their speech level. The proposed management would also require independent testing by an acoustic consultant based on the log recordings to determine the likely times of high patron numbers. 34Mr Koikas and Mr Leembruggen discussed the proposed management regime in their oral evidence. They disagreed as to the desirable frequency of independent acoustic monitoring and the extent to which the acoustic expert would be in contact with neighbouring residents or rely on the log and records of complaints. Those differences were not resolved, with Mr Leembruggen expressing reservations about the proposed frequency of testing and the drafting of the proposed conditions, stating that there would need to be strong management in the interests of residential amenity. 35Mr Leembruggen did not consider that reliance on a Plan of Management would be feasible. If there were no alcohol, 20 people talking quietly would not be a problem, however with alcohol there would be a risk of non-compliance with a Plan of Management, and it would depend on the nature of the patrons and how well they were managed. Mr Koikas agreed that if the Plan of Management failed there would be a problem, however in his opinion the present operators would do their best to comply.

Planning evidence 36Expert evidence on planning issues was provided on behalf of Amazonia by Mr Andrew Martin and on behalf of the Council by Mr Christopher Ashworth. Mr Martin and Mr Ashworth provided a Statement of Evidence (exhibits D and 3), and a joint report (exhibit 5), and gave oral evidence. 37In their joint report (exhibit 5) Mr Martin and Mr Ashworth summarised the existing approvals for outdoor smoking terraces in the vicinity of the hotel:

• Vegas Hotel, 54-56B Darlinghurst Road: (1) ground level terrace fronting Darlinghurst Road, approved to operate 24 hours per day, 7 days a week; condition requiring closure of windows between 12 midnight and 7.00am deleted 2007, before adoption of Late Night Trading Premises DCP 2007, and (2) level one terrace fronting Darlinghurst Road, approved 2008, with bi-fold doors to close at midnight;
• The Sugarmill, 33-35 Darlinghurst Road: rooftop bar approved to operate 10.00am-10.00pm with 10.00pm-12 midnight on a trial basis, and consent for use of part of area as smoking terrace between 12 midnight -5.00am subject to conditions requiring retractable metal acoustic screen, and prohibiting consumption of food and alcohol and placement of furniture;
• Sydney Aussie Rules Social Club, 22-29 Darlinghurst Road: terrace fronting Darlinghurst Road approved to operate 10.00am-4.00am, with windows closed to be become and indoor area between 12 midnight and 8.00am;
• Bourbon Hotel, 22-29 Darlinghurst Road: terrace fronting Darlinghurst Road approved to operate 24 hours, with operable glazed façade to be closed after midnight;
• Karma, 42 Darlinghurst Road: terrace fronting Darlinghurst Road approved but not yet constructed, approved to operate 10.00am-10.00pm, 7 days, with 10.00pm-12 midnight approved on a one year trial basis;
• Goldfish Bar, Crest Hotel, 111-139 Darlinghurst Road: approved (before Late Night Trading DCP) to operate 24 hours 7 days with one year trial period extended (under present DCP) in March 2013 for a further 2 years. 38Mr Martin and Mr Ashworth agreed that there had been substantiated noise complaints at the hotel under previous operators. They agreed that there had been no recorded noise breaches by the current operators since July 2013, and no recorded failure to shut the bi-fold windows by 12 midnight each day, and that Council officers had undertaken 8 formal inspections of the premises since October 2013 finding the premises to be non-compliant on five occasions relating to items being placed on footpath and non-compliance with fire safety and access requirements rather than noise. The planners agreed that the proposal satisfies the aims (b) and (d) of the LEP, and is consistent with the objectives of the B2 zone; that it is not inconsistent with the Kings Cross Locality Statement in the DCP, or the relevant principles stated therein; and that it complies with the objectives of section 3.2.3 of the DCP relating to active frontages. I accept that evidence. 39The central issues raised in the planning evidence, both in the joint report and in oral evidence, concern application of the provisions of the DCP, and operation of a Plan of Management. On the first issue, Mr Ashworth was of the opinion that Council has consistently sought to apply the hours of operation for outdoor areas in line with the controls provided first in the Late Night Trading Premises DCP 2007 which first prescribed Late Night Management Trading Areas and corresponding hours of operation and commenced operation on 1 January 2008, and the subsequent 2012 DCP; applications lodged prior to 1 January 2008 were subject to the former planning controls which prescribed working hours for development containing residential uses or adjoining a residential zone. As a consequence, developments with operating hours beyond those permitted by the current DCP that were approved before 1 January 2008, including the Vegas Hotel and the Goldfish Bar, should be given little weight. The proposal to open the bi-fold doors is inconsistent with the hours specified in the DCP and approval would diminish certainty and transparency in applying the planning controls and damage community confidence in the consultation process carried out before the adoption of the DCP. Mr Ashworth was of the opinion that the one year trial period for extended hours to 1.00am should be upheld to allow Council and NSW Police to monitor the premises and assess the impacts of the intensification of the use. He maintained that allowing the bi-fold doors to remain open until 4.00am would be an intensification of the use because of the increased likelihood of amenity impacts that may be expected as a result of increasing the hours of operation. 40Mr Martin was of the opinion that the application satisfies the late night trading outcomes sought in the DCP. Kings Cross is specifically identified as a late night trading area where longer trading hours can be considered, the hotel already has approval to trade for 24 hours for all indoor areas, and the evidence establishes that it is necessary for the hotel to provide a smoking solution exclusive of the gaming area that provides suitable coverage during the 1.30-5.00am lockout. The DCP was developed before the lockout controls, and can be applied in a flexible manner particularly where a hotel in the lockout zone is confronted with a situation where patrons will avoid the venue altogether or leave early, a circumstance that does not confront hotels and licensed venues outside the freeze zone. Mr Martin did not consider that the proposal represents an intensification of use as it utilises the existing floor area and does not seek to extend floor area, increase patron numbers or hours of trade. 41Mr Martin accepted that compliance with the noise criteria would require strong management. In his opinion it would not be necessary to prohibit consumption of alcohol and limit the use of the terrace to smokers only. He agreed that there is a greater prevalence of residential receivers in the area along Darlinghurst Road north of the hotel in comparison with the south, however he noted that residential properties near the hotel are also in the Late Night Management Area under the DCP. In his opinion, given the management plan and protocols the proposal complies with the provisions of the DCP which requires minimal impact, not that there be no impact. The terrace will be easy to manage and police given the provisions for limits on numbers, staffing, CCTV and RSA requirement. 42Mr Ashworth accepted that if the management regime were properly implemented it would be reasonable to assume that there would be compliance with the noise criteria, however he did not consider there was a sufficient level of certainty. In his opinion it has not yet been demonstrated that the terrace can operate between midnight and 1.00am with compliance. 43Mr Ashworth and Mr Martin disagreed as to whether it should be a staff member, or security, policing the terrace. Mr Martin was of the opinion that a staff member with RSA accreditation could control 20 patrons, and that after 9.00pm security personnel at the hotel entry are in close proximity to the terrace.

Consideration 44Based on the acoustic evidence as discussed above, I am satisfied that with the 20 patrons now proposed as the maximum number for the smoking terrace, and the additional absorption measures, the noise criterion of inaudibility, being 10dB below background noise levels after midnight, would be exceeded for the residential receivers at 1A Roslyn Street and 34 Darlinghurst Road. The premises at 34 Darlinghurst Road are used as backpackers' accommodation, which is a form of residential use, and the material before me does not establish that it is inappropriate to apply the same inaudibility criterion to those premises. The exceedance at those two residential receivers would be between 1 and 2 dB at certain octave bands (on Mr Koikas' evidence), to 4.4dB (on Mr Leembruggen's evidence, subject to a margin of 3 dB either way). While Mr Koikas considered that the exceedances were marginal, they were modelled and, if replicated in the actual operation of the smoking terrace would be measurable, and would not comply with the noise criterion. Amazonia proposes to manage the operation of the smoking terrace to avoid noise impacts with a revised Plan of Management. 45The central elements of the approach to managing potential noise from the operation of the smoking terrace as proposed by Amazonia to be incorporated in the Plan of Management are:

• A staff member with RSA certification to be stationed at the smoking terrace between 12 midnight and 4.00am, tasked with ensuring that no more than 20 patrons are on the terrace at any one time, and recording patron numbers and observations as to noise every 10 minutes;
• That staff member to go outside once patron numbers reach 5 (or 10) and listen for noise outside 1A Roslyn Street during lulls in other noise;
• The staff member to ask patrons to reduce noise if required;
• External compliance testing by an independent acoustic consultant on 4 occasions during a 12 month trial period, one at the end of the first month of operation, another 3 months later, and at 7 months, and the final test at the end of 12 months; with the consultant having access to the logs of patron numbers to determine the most appropriate day and time for testing;
• Compliance to be measured against the noise criteria specified in the Council's proposed conditions 5, 6, and 7. 46Amazonia submits that the acoustic evidence is that with the strong management proposed for the terrace its operation to 4.00am is likely to comply with the relevant noise requirements, and the amenity of the residents will be protected. The fact that a Plan of Management is needed to ensure compliance is not a reason to refuse the application, and the proposal does not assume that people are being asked to behave unnaturally or that the Plan of Management is contrived. The Plan of Management proposes simple steps that are all achievable, including stationing an RSA accredited employee at the terrace after midnight, with security close by, and that employee also to go across the road to listen. With no more than 20 patrons and a full time staff member the operation of the terrace would be observable whether in compliance or in breach. In addition to the workable controls in the Plan of Management, the testing regime for 4 tests at a cost to management by an independent expert is an achievable outcome. Amazonia has a reputation for good management and there is an absence of noise complaints in the last 12 months and not evidence of noise breaches with surveillance by Police and the Council, and a lack of objection by the Police. 47Amazonia submits that the independent noise monitoring should be one test after one month of operation; another 3 months later; another at 7 months; and a final test at the end of 12 months. Amazonia would accept a requirement for the staff member to listen outside 1A Roslyn Street either once 5 patrons are on the terrace as recommended by Mr Leembruggen or at 10 as recommended by Mr Koikas. Amazonia presses for the full time person to be a staff member and not security personnel; that there not be direct negotiation between the consultant and the residents; that there not be a requirement for tests to be re-done if patron numbers are low, as having access to the logs for patron numbers at 10 minute intervals would ensure testing at appropriate times; and that testing to ensure compliance should be in accordance with the proposed conditions in exhibit 8. 48Amazonia accepts that the proposal departs from the provision of the DCP that limits extended hours to 1.00am, and submits that s 79C(3A) of the Act requires flexibility if the objective of the standard is achieved, which is achieved in the circumstances of this case with the Plan of Management. Amazonia accepts that commercial viability of the hotel is not sufficient to justify a departure if the application is not otherwise meritorious. Applying s 79C(3A)(c), there is no consideration of precedent. Amazonia submits that s 79C(3A)(b) goes further than Zhang v Canterbury Council (2000) 115 LGERA 373, for three reasons: it is intended to remedy a concern that too much weight has been given to DCP controls; it mandates flexibility; and it goes further to deal with the position of precedent in s 79C(3A)(c). The hotel has demonstrated that it is capable of operating to 4.00am without causing impacts. Relying on the evidence of Mr Bray, Amazonia submits that while the impact of the lockout on business is not of itself a reason to approve the proposal, if the evidence otherwise is that there is not an impact on amenity approval would be consistent with the outcome envisaged by the DCP. The hotel is already allowed to trade for 24 hours, and the issue is how it is to trade. The hotel has had extended trading hours beyond the base hours between 10.00pm and midnight since 2002 and to that extent has already been on trial. 49The Council submits that the fundamental element for this proposal is its dependence on strong management. On the acoustic evidence, strong management and the additional acoustic treatment would not mean that there would never be breakouts of noise, but would require that management be strong and persistent to achieve inaudibility. Amazonia is seeking flexibility in both the hours of operation, and in an extension beyond the hours anticipated by the DCP without previous demonstration of good management. The Plan of Management is untested. Amazonia has not demonstrated compliance with the objectives of section 3.15 of the DCP and so there is no basis for flexibility. The Council presses for monthly compliance testing after the terrace is operational, and for requiring the acoustic consultant to liaise with residents. 50Both parties referred to the planning principle expressed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 as an appropriate approach in the circumstances of this appeal. In Renaldo, Commissioner Brown expressed the issue raised in those proceedings, and the planning principle, in the following terms: 52 In considering the range of evidence on the suitability of the loading dock, the general consensus of the experts was that if the loading dock were operated in accordance with the Operation Management Plan, it would operate in an acceptable manner. This raises the important question of whether the Operation Management Plan can be relied upon to provide some certainty in its operations and consequently provide a reasonable level of amenity and safety for adjoining residents and other people using the Mulga Rd shops. 53 Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law (Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused. 54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6. Is the Management Plan to be enforced as a condition of consent?
7. Does the Management Plan contain complaint management procedures?
8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 51Amazonia submits that the proposed development satisfies these questions; in particular that on the acoustic evidence the Plan of Management does not require people to act in an unreasonable or unlikely manner; that the Plan of Management does not require absolute compliance because the evidence is not that one or two people raising their voices is likely to result in an acceptable outcome; and that while there is no procedure for updating, the Plan of Management is for a trial period and it would be open to the Council to require an updated Plan as a condition of further extended hours. 52The Council disagrees, submitting that the Plan of Management imposes levels of restrictions on the publican and patrons that are not reasonable, and that the experts agreed that even with strong management there would be some non-compliances, for example a person speaking loudly. The Council submits, relying on PGH Environmental Planning v Wollongong City Council [2009] NSWLEC 1385, that there would be a significant financial burden placed on Amazonia by the onerous requirements devised by the acoustic experts which need dedicated staff to supervise the terrace between midnight and 4.00am who would not be available to generate income, and the cost of acoustic testing in the order of $1200 to $1500 per test, which together with the onerous restrictions on the patrons not to make too much noise, is such a prescriptive control that while it might be capable of compliance for a short period, would be difficult for a whole year. That level of prescription and management would not be a reasonable outcome. 53In considering whether it is appropriate to rely on the management approach proposed by Amazonia, on the evidence before me questions 1, 3, 5, 6 and 7 in Renaldo are met, and, as submitted by Amazonia, at the end of the trial period there would be the opportunity to revise the Plan of Management so that question 8 is met. The critical issues in this appeal are whether the proposed Plan of Management would require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case, and whether it would require absolute compliance to achieve an acceptable outcome. 54On the first issue, the proposed management regime would require dedication of a staff member full time between the hours of 12 midnight and 4.00am to be either at the smoking terrace or outside 1A Roslyn Street. There was some suggestion in the proposed provision in exhibit 11 that the staff member would carry out other minor duties "such as glass collection, table wipe down, bar service and ashtray collection". Even if that were restricted to the ground floor it is difficult to see how more than minimal undertaking of those activities normally required of hotel staff could be compatible with a presence at and supervision of the smoking terrace. Even on Mr Koikas' evidence, without direct intervention from hotel staff to request patrons to reduce noise, it is likely that the presence of 20 patrons on the smoking terrace would exceed the noise criteria as applicable at 1A Roslyn Street and 34 Darlinghurst Road. I agree with the Council that the Plan of Management would require additional measures both from the hotel operator in diverting staff resources, and from patrons, in being required to modify their behaviour to reduce noise levels as directed by hotel staff. While not disputing Mr Koikas' assurance that the present operators of the hotel would do their best to comply, the extent of responses required from both the hotel and its patrons would demand a high level of vigilance. 55On the second issue, in Renaldo, Brown C commented (at [62]) that for a management plan to be effective, a single breach or small number of breaches should not create a situation where there is unacceptable impact. On the acoustic evidence before the Court, it is likely that the noise criteria would be exceeded with even one or two people speaking loudly, which would not necessarily require the smoking terrace to be at capacity, and which might occur at any time when the allocated staff member is in another part of the bar or outside 1A Roslyn Street. Mr Leembruggen's monitoring of the Aurora Hotel and the Newtown Hotel confirms that a smaller number of patrons (8) who are intoxicated and speaking loudly can result in noise exceeding levels generated by a larger number of patrons (30) who are not (joint report, exhibit 4, p 14). Any exceedance after 12 midnight would have the potential of disturbing sleep for the residents of 1A Roslyn Street or 34 Darlinghurst Road. Absolute compliance with the Plan of Management would be required to achieve an acceptable outcome of inaudibility at the residential receivers after midnight; whether that level of compliance and that outcome are possible has not yet been demonstrated. 56These findings suggest that reliance on the Plan of Management may not provide a reasonable level of amenity for the nearby residents. I accept that the evidence before me establishes that there have been no recorded noise breaches by the current operators since they acquired the hotel in July 2013, and that there has been no recorded failure to shut the bi-fold windows by 12 midnight each day. Mr Koikas was confident that the current operators would do their best to comply, and there was no evidence to cast doubt on that proposition. However, any consent granted would remain operative regardless of the identity of the operator should that change in the future. 57The hotel is in a Late Night Management Area under section 3.15 of the DCP, as are all of the premises identified at paragraph [37] above (exhibit 1, p 30). Based on the agreed evidence of the planners, the approvals for the Vegas and Goldfish Bar which allow operation of a smoking terrace after midnight were granted before the introduction of the Late Night Trading Premises DCP 2007 (with provisions now incorporated in the DCP). The other premises referred to in their evidence are required to close the windows that permit use as outdoor smoking areas by midnight, or, in the case of the Sugarmill, permit the use of the outdoor terrace after midnight only subject to conditions not proposed for these premises, including use of an acoustic screen, with no alcohol or food consumed or furniture in the rooftop terrace. Based on this pattern of approvals, I accept that in the vicinity of the hotel the provisions of the DCP, and its predecessor, have been consistently applied. I agree with Mr Ashworth that approvals granted before the DCP and its predecessor came into effect should be given little weight. 58There was some disagreement between the planners as to whether the proposal represents an "intensification" of use for the purposes of section 3.15.1(2)(b) of the DCP. The matter was argued on the basis that the provisions of section 3.15 apply, subject to s 79C(3A) of the Act, to this application. There is no change to the overall hours of operation, floor area of the hotel or the total number of patrons permitted in the hotel, however the present proposal is for an outdoor area at which alcohol can be consumed at an open terrace located at street level until 4.00am across the road from sensitive residential use, and in my view the present circumstances are distinguishable from those in George Thomas Hotels v Council of the City of Sydney [2009] NSWLEC 1080, and section 3.15.1(2)(b) applies. In any event, an application to extend the hours for trading in part of the hotel as an outdoor area from 12 midnight to 4.00am, I would regard the present proposal as falling within section 3.15.1(2)(d). Sections 3.15.3 and 3.15.4 apply. 59Section 3.15.4 provides for base hours for an outdoor area to 10.00pm, with extension to 1.00am. The emphasis of the DCP provisions is on operators demonstrating good management, through a succession of trial periods, to obtain later trading hours. 60There is no dispute that the hotel is located in an area of the city that, in the terms used in the Key Defining Elements for a Late Night Management Area, has historically been the focus for "varied late night social and recreational activity". The residential premises at 1A Roslyn Street and 34 Darlinghurst Road are also in the Late Night Management Area as indicated on the Late night trading areas map, while other areas further to the east away from Darlinghurst Road are in a Local Centre Area (exhibit 1, p 30). The Key Defining Elements for a Late Night Management Area acknowledge that such places "should be vibrant and multifunctional places where people can go out late at night", however that is to be "without affecting the amenity of nearby residents". Management of cumulative impacts and impacts from individual premises, from noise and late night activity is acknowledged as an issue (DCP Sch 3, section 3.1.1). 61The relevant matters for consideration in determining appropriate trading hours include (a) "the location and context of the premises, including proximity to residential and other sensitive land uses and other late night trading premises". The location and context of these premises can to some extent be distinguished from that of the Vegas and Goldfish premises, which are further to the south along Darlinghurst Road, in a part of Kings Cross acknowledged by Mr Martin to be busier than that further north where there are more residential receivers located. While the Sugarmill is close to the residential receivers at 1A Roslyn Street and 34 Darlinghurst Road, and has approval to operate its rooftop outdoor smoking terrace after midnight, that is subject to there being no alcohol or food consumption and with an acoustic screen. 62The consent granted by the Council authorises operation of the smoking terrace to 1.00am for a trial period. That is consistent with the provisions of Table 3.7 in section 3.15 which would permit extended hours to 1.00am for outdoor areas. In submitting that it is appropriate to permit operation beyond that time to 4.00am, Amazonia relies on s 79C(3A) of the Act which provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (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, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 63Amazonia accepts that operation past 1.00am would be a departure from the DCP provisions, and submits that s 79C(3A) mandates flexibility in the circumstances of the case. Those circumstances include that this is a Late Night Management area and High Impact premises in the same area as other premises including the Crest and Vegas, and the residential receivers are themselves in the same area; while there have been issues with noise and other amenity impacts in the past, as demonstrated in the material provided by the objectors, the NSW Police have no objection to this proposal; the hotel has demonstrated that it is capable of operating to 4.00am without impacts and is in an area of substantial noise; there is a need to provide a smoking solution for the hotel to enable it to operate after the lockout; and the proposal is consistent with the outcome envisaged by the DCP. 64Accepting for present purposes that the trading hours provided in Table 3.7 of section 3.15 of the DCP are "standards" with respect to an aspect of the development (with which the development either complies or does not) for the purposes of s 79C(3A), and that 79C(3A)(b) and (c) are intended to represent a departure from Zhang in the manner submitted on behalf of Amazonia, I am not satisfied that it is appropriate to depart from the provisions of the DCP and authorise operation of the terrace until 4.00am even with a trial period. 65The operation of the terrace in a manner that could achieve inaudibility depends entirely on compliance with the management regime proposed for the Plan of Management at all times, with the potential for even a single breach to impact on the amenity of the residential receivers, and which would demand additional measures both from the hotel operators and patrons. The Plan of Management has not been tested so as to demonstrate that absolute compliance is in fact achievable. 66I am not satisfied that the proposal achieves the objectives of the late night trading provisions in section 3.15, in particular objective (b) "ensure that late night trading premises will have minimal impacts on the amenity of residential or other sensitive land uses". While I accept that the hotel is located in an area where there are other sources of late night noise, including from other premises, persons walking or congregating on the street, or other sources such as street sweepers, the addition of noise after midnight from these premises would not achieve the minimal adverse impacts on the amenity of the nearby residential uses sought by that objective. There is accordingly no basis for s 79C(3A)(b) to operate to require flexibility in application of those provisions so as to permit trading beyond the extended trading hours specified in Table 3.7 without there having been a trial for the period from midnight to 1.00am. The same conclusion would also be reached applying Zhang: the provisions of the DCP limiting extension of trading hours must be taken into consideration as a fundamental element in, or a focal point of the decision making process, and being directly pertinent to this application are entitled to significant weight in the decision making process, without being determinative (Zhang at [75]), and the objectives which the relevant provisions are intended to serve are relevant in undertaking the consideration required by s 79C(1)(a)(iii) of the Act: Zhang at [70]. 67The proposed operation of the smoking terrace to 4.00am is not consistent with the requirements of the DCP, and would not be consistent with cl 1.2(2)(h) of the LEP, which is to "enhance the amenity and quality of life for local communities".

Conclusion 68For the reasons above, I am not satisfied that it is appropriate to permit operation of the smoking terrace from midnight to 4.00am as sought by Amazonia. The resident objectors expressed opposition to the Council's decision to permit operation to 1.00am with a trial period; however in this appeal the Council did not retreat from the terms of conditions 2(b)-(d). Operation of the smoking terrace to 1.00am on a trial basis for one year would permit assessment of ongoing management performance and any impacts on neighbourhood amenity, consistent with section 3.15.4 of the DCP. Any adverse impacts experienced during the additional hour would be for a limited period: Zhang at [84]. Any application at the end of that trial period to extend trading hours beyond those specified in Table 3.7 would have to be assessed in accordance with section 3.15 and its requirement that there be an ongoing commitment to good management demonstrated during the trial period. 69Operation of the smoking terrace past midnight, even on a trial basis, in a way that could avoid adverse impacts on the amenity of the nearby residents would depend on strong management and absolute compliance with the management regime proposed during the course of the evidence in this appeal. Given the significance of absolute compliance with the terms of the Plan of Management, those terms need to be certain, and settled, before consent is granted so as to ensure that they in fact adopt an effective management regime. The terms should not in my view be deferred for later confirmation in the form of a deferred commencement condition. Proposed condition 4A (exhibit 8) requires that the hotel be operated/managed in accordance with the Plan of Management. In the interests of certainty, and accessibility for those members of the public most directly affected by its provisions, the Plan of Management should be included in the conditions of consent. 70There remained at the conclusion of the hearing some aspects of the proposed Plan of Management that required resolution. Two of those matters are whether the person present at and supervising the operation of the smoking terrace after midnight should be a security person, and whether the independent acoustic consultant should have direct contact with residents. Given the reduction in the maximum patron numbers, and the close proximity of the terrace to the Darlinghurst Road entry where a security person is stationed after 9.00pm, I am not persuaded that an experienced staff member with RSA certification could not control that operation. It is in the interests of Amazonia to ensure that that person has appropriate experience to manage patron behaviour as required. The draft Plan of Management (exhibit F, section 4.3) provides for recording of complaints. In my view, consistent with concerns expressed by the residents, those provisions should be enhanced to provide a clear mechanism for residents to complain directly to hotel management, including by telephone, and for any such complaints to be both responded to and recorded in sufficient detail to be useful for the independent acoustic consultant. If that occurs, in my view it would be sufficient for the consultant to have access to those complaints records and the ability to contact residents, in an appropriate manner, to clarify details if needed. Further details are required to specify in the Plan of Management when, how, and for how long, the staff member is to listen outside 1A Roslyn Street, and to confirm the most appropriate timing of independent acoustic monitoring after the smoking terrace commences operation. 71I propose to make directions, in consultation with the parties, for the Plan of Management to be finalised and provided to the Court with revised conditions of consent, which include operative condition 2 as imposed in the development consent D/2013/1638, and incorporating the agreement as to acoustic treatment, the limitation of patron numbers at 20 after midnight, and the proposed airlock.

Planning principle 72In Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 at [30], the Senior Commissioner noted that the Commissioners of the Court had undertaken a review of the published list of planning principles in late 2013, in order to determine which planning principles remain relevant in their original form; which, if any, might warrant revision or replacement; and which, if any, were no longer relevant and should be disregarded in the future. The Commissioners decided that the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 should be retained, and revised to require that where a Plan of Management is appropriate it should be incorporated in the conditions of consent. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public. The sixth question in Renaldo should be re-worded to read: Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? Linda Pearson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2014