Hemmes Trading Pty Ltd v Council of the City of Sydney

Land and Environment Court (NSW)|2012-02-17

P Clay SC (Respondent) City of Sydney (Respondent) File Number(s): 10967 of 2011

EX TEMPORE Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by the respondent Council on 10 October 2011 of a review under s 96AB of the Act of the determination of an application made under s 96(2) of the Act to modify a development consent D/2008/341/A for the Slip Inn hotel. 2The Slip Inn is located at 107-109 Sussex Street, Sydney, on the north-west corner of Sussex and King Streets, and adjoins the Western Distributor. There are three street frontages, Sussex Street, Slip Street and King Street. The area is characterised by a mixture of building types and land uses including residential, serviced apartments, and commercial. The closest residential building is the Metro Serviced Apartment building which is located at 132 Sussex Street on the opposite side of Sussex Street. The building is approved for residential use, and 15 of the 42 units are owner-occupied. 3On the Sussex Street frontage of the hotel is the Slip Bar (otherwise referred to as the Ground Floor Bar), which has consent to trade until 2 am on Monday to Saturday and 10 pm on Sunday. At the basement level which fronts Slip Street is the Chinese Laundry Nightclub. The Chinese Laundry has consent to trade until 4 am on Friday and Saturday, midnight on Monday to Thursday and 10pm on Sunday. On the lower ground floor is the Sand Bar, and a courtyard which is the subject of these proceedings. The Sand Bar has consent to trade until 2 am Monday to Friday, 3 am Saturday and 10 pm Sunday. 4The history of development applications and development consents for the premises is set out in the Council's Statement of Facts and Contentions in Reply (exhibit 1). Development consent D/2008/341 was granted by the Council in 2008. Condition 5 of that consent requires the courtyard to cease operation at midnight Monday to Saturday and 10 pm Sunday. On 23 June 2011 the applicant applied under s 96(2) of the Act to modify the consent to permit the use of the courtyard by smokers from midnight to 2am Monday to Saturday. On 26 July 2011 the Council approved the modification application in part, and new conditions 5A, 5B, 15 and 16 were imposed on the development consent. On 10 August 2011 the applicant applied under s 96AB for review of that determination. On 10 October 2011 the Council determined to delete condition 15, but refused to delete or modify conditions 5A and 5B. 5Condition 5B as approved permits the use of the courtyard between the hours of midnight and 2 am Monday to Saturday on the following terms: 5B Amenity and Patron Numbers - Lower Ground Courtyard The use of the lower ground courtyard between the hours of midnight and 2 am Monday nights through to Saturday nights must be managed as follows: (a) An area extending 2 m from the Lounge Bar & Restaurant on the lower ground floor must be roped off at midnight; (b) This roped off area within the courtyard is to be used for smoking purposes only after midnight and in accordance with the approved hours of operation. After midnight no food or alcohol is to be consumed within this area. (c) This roped off area in the lower ground floor courtyard shall have a maximum of 30 persons using the area at any one time. (d) The doors leading from the bar/restaurant area to the outside roped off courtyard are to be kept closed during this period. (e) No furniture, such as chairs or tables, is to be provided within the roped off smokers area within the courtyard. (f) Music or entertainment must not be played in the roped off area within the lower courtyard. 6In these proceedings the applicant initially sought approval for the removal of the requirement for a roped off area, provision for alcohol to be consumed but not served in the courtyard, use by a maximum of 200 people, provision for furniture, and removal of the requirement that the doors leading from the bar/restaurant area to the courtyard be closed after midnight. 7The issues between the parties as identified in their respective Statements of Facts and Contentions related to the acoustic impacts of the operation of the courtyard after midnight, in particular the impact on the occupants of 132 Sussex Street; the amenity impacts of the use of the courtyard area by up to 200 people to 2 am; non-compliance with the identified hours in the City of Sydney Late Night Trading Premises Development Control Plan 2007 which seeks to manage impacts of late night trading premises on the sites and neighbourhoods in which they are located; patron amenity; and whether the proposed use is in the public interest. 8The proceedings were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 19 December 2011. On that occasion the Strata Manager and the Manager of Metro Inns gave evidence as to their concerns about the application. The parties were unable to reach agreement, and the conciliation conference was terminated. Notes of the evidence given onsite by objectors at the s 34 conference were tendered in the hearing. 9During the hearing the applicant was granted leave to amend the application to provide for use of the courtyard by a maximum of 100 people on Friday and Saturday in a roped off area of 60 square metres underneath the retractable awning; use by a maximum of 30 people on other nights in a smaller roped off area under the retractable awning; provision of some high bar tables and no chairs; a single access point to the area; and additional management protocols to encourage people to return inside after finishing their cigarettes, including an additional security guard on Friday and Saturday nights to patrol within the area.

Planning controls 10The site is zoned City Centre under the Sydney Local Environmental Plan 2005 (the LEP). Clauses 28 and 29 apply to the use as a "late opening pub" and cl 29 provides criteria that must be satisfied before consent can be granted. The objectives of the City Centre zone are set out in cl 36. 11Part 9 of the Central Sydney Development Control Plan provides special controls for certain uses including late opening pubs. The provisions in cl 9.1 include a requirement to consider the likely impact on the amenity and desired future character of the street. 12The Slip Inn is located in the City Living Area under the City of Sydney Late Night Trading Premises Development Control Plan 2007 (the LNTDCP) and is a Category A premises. The base indoor trading hours are to 11pm, which can be extended to 5 am the following day on a succession of trial periods. The base outdoor trading hours under the LNTDCP are until 8 pm, which can be extended to midnight on a succession of trial periods.

Acoustic evidence 13Evidence was provided on behalf of the Council by Dr Renzo Tonin and on behalf of the applicant by Mr Stephen Cooper. 14After the conciliation conference the Court ordered that the applicant could operate the courtyard between 12.01 am to 12.45 am on 24 December 2011, with a maximum patron capacity of 200 people, to enable Mr Cooper to undertake acoustic testing. Mr Cooper and Dr Tonin attended the hotel and the Metro Apartments on that evening, and conducted testing including on the roof and at unit 501 of the Metro Apartments. In their joint report provided after that testing Dr Tonin and Mr Cooper disagreed as to the final L10 noise level contribution from the courtyard for unit 501, based on their differing measurements and analysis, and on the L90 noise level values used for the purposes of comparison with the L10 contribution levels. A test was made of the effect of retracting the awning over part of the courtyard and neither expert was able to discern any acoustic benefit in unit 501 from use of the retractable awning at the Metro Apartments. Mr Cooper was able to discern a difference from the rooftop. 15Mr Cooper and Dr Tonin considered the amended application for 30 people in a roped off area under the retractable awning on Monday to Thursday, and 100 people in a roped off area under the retractable awning on Friday and Saturday. They provided a supplementary joint report in which they agreed that under those conditions where the courtyard was used for smoking and drinking Dr Tonin had remodelled the noise emission from the premises. Mr Cooper and Dr Tonin confirmed that the noise levels at the Metro Apartments would comply with the Council's noise conditions in development consent D/2008/341, condition 8 of which requires that noise from the use be inaudible within any habitable room in any residential property between midnight and 7 am. 16Dr Tonin and Mr Cooper agreed that if the courtyard is used for smoking only without drinking the noise levels emitted from the courtyard would be less than the noise levels modelled. Mr Cooper was of the opinion that they would be significantly less.

Planning evidence 17Expert planning evidence was given on behalf of the applicant by Mr Robert Chambers and on behalf of the Council by Ms Bridget McNamara. In their joint report they agreed that it is preferable to locate smokers on the premises rather than on a public street; that smokers on a public street cannot consume alcohol; that the primary amenity impact is noise; and that the premises are generally well managed. On patron amenity, they agreed that tables are acceptable but disagreed as to whether chairs are acceptable. 18In their joint report the planners disagreed as to whether the proposed use was as a genuine outdoor smoking area or as an outdoor area for consumption of alcohol, and how the LNTDCP applied. They agreed that the LNTDCP does not specifically refer to outdoor smoking areas. Ms McNamara was of the opinion that if patrons could take drinks into the courtyard, the courtyard would effectively be a beer garden open to 2 am rather than a smokers courtyard, which could encourage patrons to linger longer than necessary. That would not be consistent with the objectives of the LNTDCP, and would be an extension of the existing use rather than an ancillary smokers terrace. Mr Chambers was of the opinion that unless provision is made for smokers as part of the licensed premises patrons will need to leave the premises and smoke outside irrespective of the hours stipulated in the LNTDCP. It is preferable to accommodate smokers on the premises rather than on the street: they can be better managed; immediate surveillance is improved; there is no risk of damage to property or littering of the public domain; there is less risk of antisocial behaviour and potential for conflict with people leaving and re-entering; and pedestrians are not obstructed by smokers occupying the footpath. 19The planners considered the amended application now before the Court. Ms McNamara's oral evidence was that with the management protocols proposed by the applicant, there would be no encouragement for patrons to linger in the courtyard, and she would not regard it as being a beer garden. Ms McNamara was of the opinion that with carefully drafted conditions she would not regard the application as unacceptable for a trial period. The planners provided a supplementary joint report in which they agreed that having regard to the Courtyard Smoking Area Plan of Management, the management protocols referred to therein, and the draft conditions, that the operation of the lower ground level courtyard in strict accordance with the Courtyard Smoking Area Plan of Management, the management protocols and draft conditions within the hours midnight to 2am on Monday to Saturday is unlikely to give rise to any adverse impact on residential amenity; is consistent with principles of good management; and satisfies the aims and objectives of the LNTDCP.

Other evidence 20The New South Wales Police did not object to the application to continue the use of the courtyard between 12 and 2 am, stating that police had not received any community complaints nor had the specific area attracted adverse police attention, and police believed that allowing the area to trade longer would keep patrons off the roadway and out of harm's way. 21Mr Daniel Cadwallader, licensee and manager of the Slip Inn, gave evidence that the courtyard had been used by patrons between midnight and 2 am since 2001 until April 2011 when a Council compliance officer attended the premises and advised that patrons were not permitted in the courtyard after midnight. The use ceased, and he observed that after that time there was a significant increase in the number of patrons on the three street frontages who were either smoking or accompanying a person who was smoking. He estimated on Friday and Saturday nights the number to be around 100 to 150. After the Council approved use of the smoking area for 30 patrons with no consumption of alcohol, he trialled the roped off area on three occasions, and there was difficulty in managing the nonconsumption of alcohol. In oral evidence Mr Cadwallader stated that patrons do not want to leave their drinks unattended. In his opinion permitting patrons to take their drinks into the courtyard would provide an incentive for them to stay on the premises rather than going outside on the footpath to smoke. 22The Council's evidence included written objections made in response to notification of the application. That evidence and the evidence given at the s 34 conciliation conference related generally to concerns about patron noise.

Consideration 23The amended application includes amendments to conditions 5A and 5B, a Courtyard Smoking Area plan, and a Courtyard Smoking Area Plan of Management dated 16 February 2012. I am satisfied, based on the agreed acoustic evidence, that use of the courtyard as proposed in the amended application in accordance with the conditions and the amendments to the Plan of Management will mean that noise from the use will be inaudible within any habitable room in any residential property after midnight, and will comply with condition 8 of the development consent. 24I am satisfied, based on the agreed planning evidence, for the reasons identified by Mr Chambers, that it is in the public interest to locate smokers on the premises rather than on the public street. That position is supported by New South Wales Police in the interests of safety of patrons of the premises. I accept the evidence of Mr Cadwallader that permitting patrons to take their drinks with them when using the courtyard will provide an incentive for them to remain on the premises rather than leaving the premises to smoke on the street. Compliance with the provisions in condition 5B and the Courtyard Smoking Area Plan of Management for restricted and controlled access to the relevant roped off area, provision of some tables but no chairs, employment of security staff to encourage patrons to return inside once they have finished smoking, and provision of signs, will meet the concerns expressed by Ms McNamara as to the possibility of patrons lingering in the area. I accept the evidence of Mr Cadwallader that these provisions can be implemented. 25In considering the planning controls, I am satisfied that the proposal as amended is consistent with the objectives of cl 28 of the LEP, in particular in minimising the impact of use of the late opening pub, and that it will not have a detrimental impact on the amenity of the locality and desired future character of the locality as required by cl 29 of the LEP. 26In considering the provisions of the LNTDCP as required by s 79C(1)(a)(iii) of the Act, the starting point is that the relevant provisions, while not determinative, are a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. 27The premises are located in the City Living Area and are Category A-High Impact. The primary objective of the LNTDCP is to preserve late night residential amenity. In relation to the trading hours of the premises, cl 2.6 is relevant and the relevant controls in cl 3 including Table 1 have been identified at [12] above. The LNTDCP is silent on the use of outdoor areas for smoking outside the hours specified in that Table, and also on the issue of whether smokers may consume drinks in smoking areas. The Council permits the use of outdoor smoking areas beyond the extended "trading" hours in appropriate circumstances. The planning experts agree that the use of the courtyard as proposed will not amount to continuation of the use of the courtyard as a beer garden, but will be more limited and will be subject to conditions that are designed to ensure that the principal use will be as an outdoor area to be used for smoking. 28I am satisfied that in the circumstances of this case the underlying objective of the LNTDCP controls is met by providing a managed and acoustically compliant area for people to smoke, and an encouragement for them not to smoke on the street. The approved extended trading hours for the relevant parts of the premises are consistent with the provisions of the LNTDCP, and there was agreement that the premises are well managed. I accept the evidence of Mr Cadwallader that the courtyard was used during the hours proposed for an extended period, and the evidence of New South Wales Police was that there was no complaint during that time. I am satisfied that the objectives of the LNTDCP are met, in particular objectives (b) ensuring that late night trading premises have minimal adverse impacts on the amenity of residential or other sensitive land uses, (l) ensuring that appropriate hours are permitted for outdoor trading, and (m) ensuring a consistent approach to assessment of applications. 29The circumstances of this case are similar to those considered by Brown C in Icon Hospitality Group Pty Limited v Council of the City of Sydney [2010] NSWLEC 1186 . I agree with the applicant that to the extent that the proposal constitutes an extension of trading hours for that part of the premises it is appropriate to depart from the provisions of the LNTDCP. I am satisfied that the objectives of the LNTDCP are met, and that on the evidence before me the proposal is likely to provide a net benefit in terms of residential amenity. The proposal is for a 12 month trial period for use of the courtyard, and it is appropriate that the operation of the courtyard be reviewed after that time.

Orders 30The orders of the Court are: 1.The appeal is upheld. 2. The application to modify Development Consent D/2008/341/A is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, 1 and J. 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: 05 March 2012

(2001) 115 LGERA 373

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