Darlinghurst Road Holdings Pty Ltd v Council of the City of Sydney

Contentions 6The first contention is that council considers the approval would be contrary to the aims, objectives and provisions of the South Sydney LEP 1998 and the particulars include cl 7B and cl 21(1)(h). The Council contends that it does not satisfy these clauses as the extended trading hours for the rooftop bar and smoking area will not enhance or improve the quality of life and wellbeing of the local community or the amenity of the area for residents as a result of additional noise disturbance, antisocial behaviour and alcohol related incidents. 7Contention 2 raised by the Council is that approval would be contrary to the aims, objectives and provisions of the South Sydney DCP 1997 where development is "to ensure it does not cause public nuisance to local residents or pose a risk to the locality." The Council considers the proposal does not comply with the objectives in the DCP, as it will exacerbate existing negative social impacts experienced by residents and the site is in the Kings Cross precinct and will contribute to intoxicated persons in the area. 8Contention 3 raised by the council is that the approval would be contrary to the aims and objectives of the City of Sydney Late Night Trading DCP which seeks to manage the impacts of trading on neighbourhoods and a key requirement is in consideration of high impact premises to which the hotel is one. It is also noted that the late night trading DCP seeks "to ensure premises have minimal adverse impact on the amenity of residential and other sensitive land uses." 9Contention 4 raised by the Council is that the approval would not be in the public interest and the thirty-two submissions were sighted that refer to the cumulative impact of patron behaviour; the concentration of licensed premises; the impact on the residential area; traffic and pedestrian congestion; access to public transport; and the fact the police also raised objection. 10The Court met on site the first morning and a conciliation conference was conducted. At the conciliation conference there was no agreement reached between the parties and it was subsequently terminated and the matter proceeded to a formal hearing. The parties indicated that they raised no objection to me hearing the matter and at the beginning of the hearing it was also noted that the matters heard and seen on site could be taken into consideration in assessment of this development application.

Evidence and Findings 11The Court heard from a number of resident objectors on site who also participated in the conciliation conference. I note that in council's bundle there were some thirty-two submissions received when the proposal was advertised. The notification was to persons within a radius of some 50 m. Further to the Court hearing from a number of residents on site three objectors also gave evidence in Court. 12For the applicant evidence was given to the Court by Ms Helena Miller, consultant town planner, and Mr Stephen Cooper, acoustic consultant. On behalf of the respondent Council Mr Bruce Threlfo, consultant planner, Sergeant Mills from the New South Wales Police Force and Mr Graham Atkins, acoustic consultant, all gave evidence to the Court. 13The Court had the benefit of hearing from Sergeant Mills who is attached to the Kings Cross precinct and he provided evidence on the number of incidents and this includes the number of inspections or 'walk throughs' that the police undertake on their regular patrols. The Sergeant considered that the subject premises are well managed. He referred to the need for the plan of management and the conditions to be consistent and reflect the Council's development control plan provisions. 14The residents expressed concern about the direct line of sight to the roof area of the hotel and in their opinion patrons would be visible from the upper floors of the apartments at numbers 7 and 11 as they are located at a higher level than the rooftop of the subject premises. The residents are concerned about the additional noise and the cumulative impact of noise in the area and referred to instances of backpacker hostels in the area that had created noise problems in the past. They are concerned about the residential amenity of the area that they are seeking to maintain. The objectors also referred to the current liquor freeze legislation whereby numbers of patrons for licensed premises in the Kings Cross precinct are to remain static. 15Residents also referred to the issue of the calculation of the floor space ratio, although I note that this is not a matter contested by the council and indeed the planners agreed that this is not in issue as the proposed acoustic screens surrounding the venue do not give rise to the outdoor seating area being considered to be gross floor area as defined under the South Sydney LEP. The residents referred to the proximity of the heritage apartments and the fact that certain objectors said that there was no ability to air condition these apartments and therefore the need for the windows to be left open. There was concern also raised generally about the intensification of uses in the area. 16The Court in its assessment must have regard to the Council's local planning regime and in this regard the Council has a comprehensive planning regime. The principles and objectives of the South Sydney Local Environmental Plan 1998 are relevant and these include: To ensure a sustainable City of South Sydney and To enhance the quality of life and wellbeing of the local community and also To create an integrated planning framework of land use controls that allow detailed provisions to be made in development control plans. 17The standard provision in the LEP about zone objectives is at cl 10 and the consent authority must be of the opinion the proposal is consistent with the objectives of the zone. The subject site is zoned number 10, the mixed use zone and the objectives include: (a) To allow in appropriate circumstances a mixture of compatible land uses (b) To promote mixed use planning by locating mutually supportive and compatible uses such as residential places of employment, et cetera. (c) To permit appropriate forms of residential development within the zone to mutually support the vitality of nearby commercial and urban village centres and in doing so assist successful urban consolidation. (g) To minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans and (h) To ensure that the nuisance generated by non residential development such as that related to operating hours, noise, loss of privacy, vehicle and pedestrian traffic or other factors is controlled so as to preserve the quality of life for residents in the area. 18I note from the zoning extract map that this mixed use zone extends as far as Orwell Street to the north and then to the west it includes the block that faces Victoria Street and the larger area known traditionally as Kings Cross. It also includes the properties to Macleay Street such that the subject site is in the middle of an area surrounded by the same zoning that is mixed uses. This is important in terms of when one looks at the interface between zones because where a property interfaces with a residential zone there should be additional consideration given to the adjoining zone objectives. 19The Council also provided the Development Control Plan for South Sydney 1997 Urban Design and pointed out a number of provisions within this document that must be taken into consideration, including design for a sustainable healthy environment and for environmental amenity to: "ensure non-residential buildings are designed and specified to reduce their operational impact on adjacent residential areas and that they do not cause public nuisance to local residents and provide adequate separation of noise attenuation measures between land uses and activities to minimise noise transmission." 20The other provisions pointed out by the respondent are in respect of the cumulative impacts where the objective is: to manage cumulative impacts arising from development activity; implement strategies to avoid or minimise these; identify negative social impacts of development proposals; develop avoidance minimisation or mitigation measures to address these to maximise the benefits of development proposals to the local community. 21The performance criteria are that the development takes into account cumulative impacts of past development activity and does not exacerbate existing negative social impacts and that development responds to opportunities to benefit the local community and provides measures to mitigate same. 22The Court also was provided with a copy of the City of Sydney Late Night Trading Premises Development Control Plan 2007 and it is important to read this document in its entirety to understand the proper context and to give meaning to the words within the provisions. The main aim of the DCP is "to assist in the management of impacts of late night trading premises on sites and neighbourhoods in which they are located and in particular to protect the amenity of residential properties... a planning policy document can look to achieve this through controls setting limits on late night trading and promote ongoing good management of such premises subject to ongoing trial periods and the city's night time economy is an integral part of its commercial cultural and social fabric". The DCP further states: "Late night trading premises are an important part of Sydney's social and street life that contribute to Sydney's image as a global city and play an important role in the city's economic growth. People living and working, as well as tourists, are attracted to these places as a result of their diversity and vitality and late night trading premises can provide employment, jobs... The controls in the DCP provide greater certainties for community and proponents of late night trading premises and as a requirement of the DCP high impact trading premises must also demonstrate responsible management over time and ongoing commitment to good management is evident through a series of successful trial periods. Generally late night areas identified in the DCP are places within the city of Sydney that already or have historically been characterised by late night trading and related activities such as Kings Cross and the CBD and longer trading hours may be permitted where it is considered the character can be reinforced and there is a capacity with acceptable amenity impacts resulting from any late night activity". 23The objectives of the DCP include: (a) to identify the appropriate locations for late night trading; (b) to ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses - this was the objective identified by the respondent; (c) ensure that a commitment is made by operators for good management, robust plans of management; (d) encourage late night trading that contributes to vibrancy and vitality as appropriate for a global city; (e) encourage a broad mix of night time uses with broad community appeal for those that work and live in the city as well as people who visit the city; (k) encourage premises with extended hours that are of a type that do not operate exclusively during night hours and may be patronised both day and night; and (m) ensure a consistent approach to the assessment of applications etcetera. 24The matters in this DCP for consideration in my assessment of the application and in the planning framework include: the location and context; operation during day time hours; plans of management; measures to ensure adequate safety and security; and accessibility and frequency of public transport to late night trading venues. 25Within the area a vibrant night time character is exhibited being in the entertainment precinct, as opposed to parts of the city that are predominantly residential in character. 26The DCP details trial periods and plans of management for this precinct and also comprehensive provisions in terms of monitoring and review where following a trial period, council will undertake its own review of the level of compliance with the plan of management and also have regard to inspections by council officers, complaints to police and the management of the premises during the trial period. 27There are 3 stages for trial periods for late night management areas in which the subject site is located. Indoor areas have base opening hours of 6am to midnight that may on trial be extended to 24 hours and for outdoor areas the trading base hours are 10 am to 10 pm that may be extended from 10 am to 1 am. 28As I said, the subject site is within the late night management area of the Kings Cross area and it is important that I consider appendix B, which is the late night trading character. This character statement defines the key elements and in summary it states: "These places should be vibrant and multi-functional where people can go out late at night with safety without affecting the amenity of nearby residents... Late night management areas are often regional destinations that have accessible and frequent public transport, focus on main streets, and given the likely high level of visitation, the possibility of longer trading hours, it is important all premises are well managed and regulated. Late night management areas should be vibrant places both day and night." 29In my assessment, whilst it is acknowledged that late night activity is a key characteristic of these areas it is also essential to manage the cumulative impacts, and for the late night management areas this is to effectively manage each individual late night premises within the area. 30As I stated, the Court must have a holistic reading of the council's local planning regime and in this regard my focus must be the controls and guidelines. The LEP refers to the detailed guidelines of development control plans. The authority of Zhang v Canterbury City Council [2001] NSWCA 167 requires that the DCP must be a primary focus and fundamental element in my assessment. 31The issue "to enhance the quality and wellbeing of the local community", must be considered in its context in terms of the zoning of the subject site and surrounding area, the development control plans and the planning framework. 32I accept the submission made on behalf of the respondent that people have different levels of sensitivity in terms of noise levels, at the same time I also must have regard to the controls and this assessment is not carried out in a vacuum. In this regard, I have the benefit of the DCP and the Industrial Noise Policy (INP) and standards. There are certain principles underpinning the noise criteria in the INP and this states: "The criteria are planning tools, they are not mandatory, and an application for a noise-producing development is not determined purely on the basis of compliance or otherwise. Within the community there is a very large range of human reaction to noise. There are those in the community who are very sensitive. This noise-sensitive sector of the population will react often strongly to intruding noises that are barely audible with the overall noise environment. On the other hand there are those within the community who find living in noisy environments such as near major industry, roads, an acceptable situation. The bulk of the population lies within these two extremes, being unaffected by low levels of noise and being prepared to accept levels of noise that are commensurate with living in an urban industrialised society. The criteria in this document are selected to protect at least ninety per cent of the population living in the vicinity of noise sources at least ninety per cent of the time. Provided the criteria in this document are achieved then it is unlikely that most people would consider the resultant noise levels excessive." 33I realise that the Industrial Noise Policy was not specifically written for an assessment of the subject development application but nonetheless it does provide for some framework and it is a policy that both the noise experts agreed was relevant, although not the only measure, as stated in the preface to that document. In terms of the people's expectations those that reside in the area enjoy living in this vibrant diversified environment and the entertainment precinct is part of what provides for this vibrant locality. People would not have the same expectation of residential amenity as people who reside in suburban residential areas. Nonetheless the residents are conscious to try and seek to maintain their reasonable residential amenity. 34I have the benefit in my assessment of this application of council's comprehensive planning regime. The site is zoned for a mixed use purpose as are the adjoining sites and the provisions of the LEP and the provisions of the DCP, in particular the late night trading development control plan, provide for a framework and context in which to assess the development application. 35In terms of the planning evidence to the Court the planners are generally agreed that on Friday and Saturday evening the rooftop should be allowed to trade until midnight and in terms of the smoking area they agreed that it is appropriate for a smoking facility on the rooftop for the hotel and, both the applicant's and the respondent's, planners raised no objection to this facility being open until 5 am, 7 days a week - the current hours of the hotel. This facility, it was agreed, has the benefit of hotel patrons not having to use the footpath and public domain areas to smoke. 36In terms of the hours of operation from Sunday through Thursday nights, Mr Threlfo was of the view that the base hours to 10pm should apply with no trial period or extension to midnight. He said the extended hours from 10pm to midnight Friday and Saturdays should only be allowed. He considers that given that the existing residential environment is already marginalised, the introduction of an additional external activity does not satisfy provisions of the South Sydney LEP and that the proposed development should not be allowed to trade Sunday through to Thursday evenings until midnight. 37Ms Miller is of the opinion that it is appropriate to allow the rooftop to trade until midnight on a trial basis given the provisions for the rooftop terrace with the acoustic screening and the management. A trial period in her opinion is consistent and in accordance with the council's DCP controls and the proposal is worthy of approval on a trial basis. 38The acoustic engineers provided extensive evidence to the Court and they also provided a joint report to assist the Court in its assessment of the application. It is agreed that the rooftop terrace complies with the background plus 3dB on Friday and Saturday evenings. The difference of opinion between the experts arises for the most sensitive receptors, which it is agreed are the upper apartments at Nos 7 and 11. Mr Atkins is of the opinion that the proposed development will not comply and that the operating hours on Sunday through Thursday should not extend to 12 midnight. 39There was a great deal of discussion about the various readings, and in the published version of this judgment I will provide tables. The Court was taken to what is known as the inside measurement and the external measurement outside the windows of the apartments in 7 and 11. The inside measurement was taken at 1 m and the INP provides for a measurement for the centre of the room. That is, 2.5 m inside the room. 40Mr Atkins' readings in his table show an increase in the noise reading 1 m inside the apartment compared to the outside level and the inside measurement does not comply with the noise criteria. However, the centre of room reading does comply. Mr Atkins explained or gave the reason that for the increase from outside to inside may occur from time to time, it is certainly not commonplace, but it may occur because of the noise generated from lighting in the room. If I take his reasoning or explanation I find it difficult to accept and I prefer the evidence of Mr Cooper in respect of the inside noise reduction at 1 m and then a further reduction at 2.5 m. I say this because the centre of room measurement of Mr Atkins was clearly one that also must have regard to the same environment, whether that be lights which explained the increase from the outside to the 1 m internal measurement. I find it difficult to accept this non-compliant reading at 1 m (greater than outside) and compliant for the centre of room reading. 41I also note in Mr Atkins other tables he makes an allowance for an attenuation factor. I therefore accept Mr Cooper's explanation that there must be an attenuation provided from outside to inside even though the level of the attenuation may differ. Mr Atkins' non-compliance was in respect of certain frequencies and I prefer Mr Cooper's evidence in terms of his explanation to that of Mr Atkins. Furthermore if I am wrong the trial period will provide for the opportunity to more rigorously assess the operation of the rooftop terrace given the follow-up monitoring. 42I do not accept that there should be a different regime considered for Sunday to Thursday evening, as opposed to Friday and Saturday nights. I say this having regard to the overall emphasis of the development control plan in terms of this being a 'late night trading area' and whilst impacts must be managed and minimised at the same time it is not envisaged that the City or Kings Cross close down earlier between Sunday and Thursday nights. 43Also, I make this statement in the context of the ambient background noise levels which were undertaken by Tonin and which were also carried out by Mr Cooper in July 2010. There is only a relatively minor variation in the ambient level, Sunday 52.2, Monday 52.4, Tuesday 51.7, Wednesday 52.3, Thursday 52.9, Friday 54.7, Saturday 55.6. As such, the location of the late night trading area must be considered in its context and these subject premises are part of that late night trading area where background ambient noise levels do not vary greatly. 44In suburban residential areas the noise levels may be lower from Sunday through to Thursday, but I must have regard to the evidence before me, which clearly demonstrates that there is in fact not a great difference. Furthermore, the proposed development complies with the noise criteria and I also recognise that council's conditions provide for a plus three dB as opposed to the more liberal five dB of the Liquor Act or Liquor Licensing Board and the applicant is prepared to accept a condition which provides for plus 3 dB and in the circumstances of this case, having a holistic consideration of the controls, I am of the opinion that the proposed development to operate until twelve midnight, seven days a week, is appropriate on a trial basis. 45Whilst there was some discussion about continued operation and implementation of the late night trading DCP and trial periods and while I have assessed the application against the DCP, importantly the conditions provide for long term or ongoing monitoring In the first instance, a follow-up independent noise testing for the establishment once it is operational within 60 days and the approval is limited to 12 months. Furthermore, the trial period also provides for a plan of management of the premises in order that it minimises the impact on adjoining premises. As I stated, people that live and have the advantage of these areas will not expect the same level of residential amenity as people in more isolated suburban locations. 46The Court in its assessment has considered the tables of the consultants on the noise assessment and in Mr Cooper's tables these show the noise at number seven and at number eleven have factored in a microphone at a closer range than 1 m inside the window at 100 millimetres, and these readings also indicate a lower reading, although not as low as at the 1 m point, and clearly the centre room reading is significantly lower. The INP provides for a 10 dB reduction at the centre of the room. It does not provide for zero or an increase inside the window as referred to in Mr Atkins' statement. 47The conditions are now generally as agreed to between the parties . The Court has had the benefit this morning of understanding the relationship of number 37 to the subject premises at 33 to 35, and this is important because it also has regard to concerns of local residents in terms of cumulative impacts. The Court is conscious that there should not be a free flow of patrons from one premise to the other, and I now understand the differences in floor levels and access doors that this will not occur. There is also a provision in the existing plan of management for the subject premises for patrons to be counted at the various levels. Clearly this needs to be rigorously implemented, in particular I make this comment in respect of the closure of the rooftop terrace of the adjoining property at number 37 at 10 pm. This will be a matter that needs to be addressed in the plan of management to be provided for council's approval prior to the occupation of the rooftop terrace for the subject premises. 48The condition number 8 for security, requires there is to be a dedicated floor manager at all times prior to midnight when the rooftop level is operating. The manager shall be linked by two-way radio. The manager's duties will include patron management. The applicant has also agreed to a licensed security officer to be employed and located on the rooftop level when there are more than one hundred patrons between eight and twelve midnight. This is an appropriate course of action because clearly the use of the rooftop terrace will be more attractive during the summer months, and at 8 pm it is generally still light, and it is appropriate that there be a security guard from dark because one manager would find it difficult to provide the necessary monitoring for one hundred patrons. 49The conditions proposed by the Council, to which the applicant agrees, include the noise monitoring conditions and mechanical plant. The issue of mechanical plant was raised during the proceedings and Mr Atkins is of the opinion that it is audible from a number of locations. The subject development application before the Court does not propose any external additional mechanical plant on the rooftop. There will be facilities associated with a bar such as fridges, but no other mechanical plant on the rooftop as such. 50Mr Cooper gave evidence that this, in his opinion, complied with the subject requirements, and I also note that the development application consent for the hotel premises itself has a provision that mechanical plant noise be maintained at a certain level. In the circumstances of this case, I accept Mr Cooper's evidence, and I also note that for development application it is not a relevant matter. I understand that cumulative impacts must be assessed, but in terms of the plant room there has been no evidence provided to the Court that the mechanical plant operates at a level above that provided for in the conditions, and there is appropriate recourse if in fact it does not comply. 51An condition important to note is that during a 60 day use of the rooftop the following acoustic measures must be undertaken and the acoustic consultant is to verify the noise from the rooftop level and make recommendations if necessary for compliance and it also provides for the council to be advised of the results of such monitoring. 52If an acoustic consultant recommends additional treatment or works be undertaken these must be submitted to the Council and if the acoustic consultant's recommendations are not implemented the rooftop level must not be used until such times as the recommendations are implemented and verified. 53With the suite of controls in terms of the conditions of consent and the follow-up monitoring I see no reason as to why a 12 month trial period should not be allowed for the subject premises. In terms of the smoking room I accept the evidence of the experts that the smoking room until 5 am, or whatever time the hotel premises are trading, should be allowed. There are clear advantages of a smoking room or level on the top of the building as opposed to smokers having to resort to the street as such. In the circumstances the smokers room is allowed and there is no trial required for the smokers room. 54I find that the proposal is consistent with the development control plan and there are no provisions in the development control plan which would make the smoking room require a trial period. I accept that it is an ancillary purpose to the hotel itself and it provides for a smokers room to therefore not impact on the adjoining environment of the public domain. 55In respect of the issue of Sunday to Thursday 10 pm to midnight I accept Mr Cooper's evidence that if the proposal complies with the noise constraints that the mere fact that some people may perceive Sunday through to Thursday as a different environment is not a reason to refuse the trial based on the evidence of background noise levels. 56In terms of absolute numbers for noise whilst one does not just focus on the levels of noise, I must also have regard to whether there are other likely adverse impacts on the environment, in particular the residential area. I am satisfied the provisions of council's planning regime with the plan of management as proposed that the impacts of the 2 hours difference in trading can be managed to co-exist with the residential properties at the rear that are also in the mixed use zone. 57The Court also in its assessment, cannot substitute arbitrary matters. In this regard, whilst not directly on point, I refer to the judgment of his Honour the Chief Judge of this Court in Telstra Corporation v Hornsby [2006] NSWLEC 133 where he states it is not appropriate for a court to set aside or disregard standards. While this judgment is about radiofrequency, electromagnetic energy emissions, and I realise this is a totally different situation but nonetheless, in terms of substituting or arbitrarily making provisions that do not reflect the standards or guidelines of council would be inappropriate for the Court. At 199 his Honour states: "There is a broader policy reason for the Court making its determination on the basis of reason and substantiated evidence. As Gallaghan notes: A basic aspect of rational action is that on which decisions are found and should be supported by good evidence... unless there is a substratum of objective evidence for the reasons and policies acted on discretionary decisions are liable to the charge of arbitrariness ." 58Accordingly on the basis of my assessment above the formal orders of the Court are:

1. The appeal in respect of the property known as 33-35 Darlinghurst Road, Kings Cross is upheld;
2. The development application submitted to the Sydney City Council and as amended for a rooftop terrace with a maximum of 120 patrons and a rooftop smoking area is determined by the granting of consent subject to the conditions in annexure A; and
3. The exhibits are returned to the parties with the exception of 6, D, and L. J S Murrell 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: 07 March 2011