The applicant, Amazonia Hotels Pty Ltd, appeals pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) the Sydney City Council's deemed refusal of its Development Application (D/2014/10684) for alterations and additions to the Empire Hotel (the Hotel) .
[2]
Background
The Hotel is located on a corner block comprising 32 - 30 2A Darlinghurst Road, Potts Point (the site). It is on the eastern side of the intersection of Darlinghurst Road and Roslyn Street and has a total area of about 435m2.
The Hotel accommodates a three-storey building which has a frontage that wraps around the northern and western elevations. The premises has approval for its internal areas to operate 24 hours Monday to Sunday (inclusive) on a permanent basis. It has an approved maximum capacity of 920 persons.
The site is zoned B2 'Local Centre' under the Sydney Local Environmental Plan 2012.The development is permissible in the zone. It is a Category A 'High Impact' premises as defined by the Sydney Development Control Plan 2012.
The site is not a heritage item, but is a neutral item located within the Potts Point Heritage Conservation Area (C51). The surrounding area contains a mixture of uses. Darlinghurst Road predominantly contains commercial, retail and backpackers accommodation, but also accommodates a limited number of residential uses. Roslyn Street predominantly accommodates residential, commercial and hotel uses. A residential flat building is located directly opposite the Roslyn Street frontage at 1A Roslyn Street and shop top housing is situated on the first floor of 1-3 Roslyn Street.
The site immediately adjoins backpacker accommodation located to the north-east at 30 to 30B Darlinghurst Road, and is located directly opposite backpacker accommodation at 34 - 30 6A Darlinghurst Road, 23 - 31 Darlinghurst Road and 1 - 21 Darlinghurst Road.
In addition to the above residential uses, the immediately adjoining site to the south -east at 2 Roslyn Street is a hotel currently known as Lido Suites. The outdoor terrace also has a line of sight to residential flat buildings at 11 and 13 Springfield Avenue, 24 to 30 Springfield Avenue (fronting Llankelly Place ), and 57 to 59 Darlinghurst Road .
In the last 15 years a number of applications have been submitted relating to the site they are summaries in the evidence. The most recent consent was issued by the Court on 28 November 2014 in Amazonia Hotels Pty Ltd V Council of the City of Sydney [2014] NSWLEC 1247.
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The amended application
This appeal concerns an amended development application and amended plans.
According to the Council's Amended Statement of Facts and Contentions (exhibit 1), the amendments listed below resolve most of the issues raised by the original proposal.
The airlock to the separately approved smoking terrace on the ground floor has been relocated in accordance with Condition 1A of the Development Consent D/2013/1638.
A second terrace and airlock formerly proposed at the rear of the site on level 2 has been deleted.
The airlock and acoustic wall for the Level 2 terrace have been updated and the windows to the Level 1 and 2 terraces are now proposed to be inoperable and fixed shut.
The voids proposed as complying development works have been amended and relocated, resulting in the rooftop opening being amended accordingly.
Acoustic baffles have been included over the voids, and the proposed external 'upturn walls' surrounding the rooftop openings is to be finished to match the existing parapet.
The existing parapet has been extended oh the Darlinghurst Road and Roslyn Street frontages to align with the highest built elements proposed on the rooftop.
Visual screening has been added over the existing roof mounted air conditioning units.
The exit door to Roslyn Street has been amended to open outwards and annotations added to the plans to state that the door is a fire door only.
Twenty four hour trading is no longer sought for the Level 1 and 2 terraces. The proposed hours of operation have been amended to 8am to 1am Monday to Sunday inclusive. Both terraces are proposed to be subject to a 1 year trail period for trading hours after 10pm.
All references to smoking rooms and associated open area calculations have been deleted from the plans and the applicant no longer seeks approval for new smoking areas in the Hotel. The application is for alterations and additions for hotel purposes.
The particular alterations and additions, which are the subject of this appeal, are coloured green on the amended plans prepared by Nicholas Associates Architects numbered DA2 1.00 - 1.03 (Rev H) and dated 27 March 2015 (exhibit B). They include:
1. the removal of parts of the roof area to create four (4) openings identified on drawings DA21-03 Rev H, as new void 1, new void 2, new void 3 and new void 4. (It is proposed to construct small hobb walls around all of the new void areas which will be below the proposed parapet height and as such not visible from the public domain).
2. amendments to access and egress points on Roslyn Street;
3. provision of a lift;
4. plant room on roof and associated screening;
5. increase of parapet height on Darlinghurst and Roslyn Street frontages.
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What are the issues raised by the amended application?
The Council no longer raises any issue with the physical aspects of the amended development. It accepts that any merits concerns raised by the amended design and those raised objectors are satisfactorily addressed by the draft conditions which the applicant accepts (exhibit 5).
Despite this, the Council maintains its opposition to an approval of the amended application. It contends that the amended plans would not comply with the Smoke Free Environment Regulation 2007 (the Regulation) and, therefore it is not in the public interest for the Court to approve an application which is incapable of approval under the Regulation. The two western smoking terraces shown on Levels 1 and 2 and the gaming lounge on the ground floor are according to the Council public places with a ceiling or roof which are "substantially enclosed". Therefore, those areas cannot be approved under the Regulations for use as a smoking area. The Council's position is explained in detail in its written submissions dated 17 March 2015.
In adopting this position, the Council concedes that the amended application does not seek development consent for any new smoking areas within the Hotel. However, it submits that the Court is obliged in its consideration of the public interest in this appeal under s79C of the EPA Act to have regard to any impacts generated by such a use in the future.
The applicant's response to this submission is that the issue does not arise from the amended application. Approval is only sought for the alterations and additions coloured green on the amended plans. No more and no less.
In short, the Court has no jurisdiction to deal with the matter.
This Court's jurisdiction and powers on appeal are limited to considering the application filed that is whether the proposed alterations are appropriate for the purposes of a Hotel. Section 39(2) of the Land and Environment Court Act 1979 (LEC Act) deals with the powers of the Court and provides:
39 Powers of Court on appeals
(1)In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
Whether patrons are lawfully able to smoke in the proposed spaces, once they are constructed is a matter for consideration, upon application, by NSW Health which administers and regulates the legislation. (AWS p20). The applicant submits that in its consideration of the public interest in this appeal the Court can be satisfied on the evidence that any future application for such a use will dealt with lawfully and appropriately under the Smoke-Free Environment Act 2000 and Regulation by NSW Health. The public interest will be protected.
Moreover, even if I were to find that I had jurisdiction to decide the question of compliance the parties agree that any decision of this Court is not determinative. The jurisdiction of the Court does not extend to administering the provisions of the Smoke-Free Environment Act 2000 and the Regulations.
The regulation of smoking areas by NSW Health was explained in some detail by the applicant's witness Patrick Duggan - who is a shareholder of Amazonia and a licenced Hotelier since 1990 with an interest in the subject site and several other hotel premises. Mr Duggan said that compliance officers from NSW Health do inspect hotel premises for compliance with the smoking Regulations and, other health matters, about 5 to 6 times per year. His recollection was that the Empire Hotel (with two approved smoking areas) was inspected between 11 to 12 times over the last 2 years.
Mr Duggan's evidence about the regulatory function of NSW Health is supported by the correspondence from Karen Thomas, the Principal Solicitor (Prosecution/Litigation) of NSW Health dated 19 March 2015 to the Council (at p321 of the Council's Bundle (exhibit 2)). Ms Thomas's letter states "…As you are aware the Ministry is the regulator for the Act and the Regulation , and to assist in the way you ask compromises the Ministry's position in relation to any future regulatory action the Secretary of Health may wish to undertake".
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Finding - the relevant issues
After a consideration of the evidence and submission of the parties I am satisfied that the public interest in this case is appropriately addressed by the provisions of Smoke Free Environment Act 2000 and its Regulation which are administered by the NSW Ministry of Health. I must assume that any future application for new smoking areas at the Empire Hotel made under the legislation will be dealt with lawfully and this will ensure that the public interest is appropriately safeguarded. In any event, the applicant has made it clear to the Court that if NSW Health were to refuse any future application for smoking areas within the Hotel the spaces created by the works the subject of this amended application will be used by patrons for hotel purposes.
In those circumstances it is appropriate that I now deal with the merits of the amended application under s79C of the EPA Act.
[6]
Expert acoustic and planning evidence
The parties have relied on evidence from acoustic experts and town planners.
I will deal firstly with the acoustic evidence. Stephen Cooper appeared on behalf of the applicant and Glenn Leembruggen gave evidence on behalf of the Council. Their joint report in respect of the amended application is (exhibit 3) and their recommended acoustic conditions are incorporated in the draft conditions (exhibit 5).
Subject to the imposition of their agreed acoustic conditions Mr Cooper and Mr Leembruggen are of the opinion that the development will not generate unacceptable acoustic impacts for its patrons or neighbours.
The acoustic conditions are extensive. They include a 12 month trial period for the use of the terraces to enable a review of the environmental impacts before any final consent to the use and that all noise from the mechanical plant and noises associated with entertainment and patrons are compliant with the EPA Industrial Noise Policy.
Notwithstanding the conditions, the consent also requires that noise must not be audible within any habitable room in any residential use between the hours of 12midnight and 7.00am (condition 5(d) of Exhibit 5). To that end, all sound amplification equipment must comply with the settings of the noise limiters as installed and tested by a suitable qualified Acoustic consultant in accordance with the performance parameters, requirements and engineering and assumptions and recommendations contained in the Acoustic report which is to be prepared (condition (6) of exhibit 5).
Furthermore, the conditions require that ceiling and floor surface materials will be acoustically absorptive material and that an absorptive ceiling for the underside of the street awning will be installed as specified (condition (7) of exhibit 5).The whole surface of non -glazed walls will be finished with an acoustically absorptive material and a sound lock (40mm solid core or 10.76 mm laminated glass) and, acoustic seals, are to be incorporated between the lounge area and terrace/outdoor areas. Self-closing /automatic door closing mechanisms are to be applied to the doors (condition (7) (b)). The conditions also require 10.76mm laminated glazing to be installed to the sound lock and walls separating internal areas from the terrace /balcony area, all windows will be fixed to a closed position. The sound pressure levels from the second floor nightclub is conditioned and required to be inspected by an acoustic consultant and monitored in accord with condition (7B). The terms of the draft plan of management in exhibit 5 reinforces compliance with the noise conditions (conditions (16), (17), (18), (20) and (21)).
Andrew Martin gave town planning evidence on behalf of the applicant and Chris Ashworth appeared on behalf of the Council. Their joint report is (exhibit 4). Subject to the imposition of the conditions of consent in (exhibit 5) the planners raise no issue with the design of the development. Furthermore, they accept that the amended proposal and conditions address the concerns expressed by the objectors to the application.
For the reasons outlined above I am satisfied that the amended development is acceptable on its merits subject to the imposition of the conditions in exhibit 5. I note that the final version of the conditions will include the following:
1. Condition (1) (a) of schedule 1A of (exhibit 5) is to be amended to refer to "…the alterations and additions coloured green on the following drawings: …
2. Condition (12) of exhibit B which deals with the Condition of Operation Signage is to be amended to require signage displaying the approved hours of operation and maximum number of persons permitted on the premises at any one time on each level of the building in addition to the entry of the premises.
Accordingly, the parties are directed to file an electronic version of the conditions of consent in accord with my reasons for judgment within seven days. Subject to the conditions being agreed and otherwise being satisfactory I will make final orders in Chambers.
Commissioner Dixon
10796 of 2014 Dixon (s34O) (342 KB, pdf)
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Decision last updated: 07 July 2015