Kotis & Ors v Sydney City Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 City of Sydney Late Night Trading Premises DCP 2007

CASES CITED: Carden v Willoughby Municipal Council SCNSW 17 June, 30 July 1985 Kirby P, Mahoney and McHugh JJA

APPLICANT Mr S. Kondilios, solicitor Instructed by Ms N. Johnston of Maddocks LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Larkin, barrister Instructed by Bruce Woolf

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10793 of 2008 Michael Kotis & Ors v Sydney City Council

JUDGMENT 1 This is a Class 1 Appeal No 10793/08 between Kotis and Sydney City Council in regard to refusal of DA2008/540 for use of the ground floor courtyard and a first floor smoking area at the Excelsior Hotel, 101-105 Bridge Road, Glebe.

2 The hotel is at the apex of a long curve in Bridge Road. It is opposite an intersection with Lyndhurst and Colbourne Streets but those two streets appear to be blocked off from Bridge Road. Bridge Road is a sub arterial route from Pyrmont and the City to Annandale. The lettering on the parapet of the hotel says 1913 so it has been there a long time and has been refurbished by the current owner.

3 According to the evidence some years ago the courtyard on the south side of the building had walls and a roof. The current owner has removed them except for a high masonry wall on the west wide where the courtyard abuts Brougham Lane. A pikestaff fence and planter bed with shrubs have been installed along the curved Bridge Road frontage of the courtyard. Shade-cloths are suspended above and the courtyard has been finished in stone paving. Its only access is via two sets of swing doors to the hotel bar. A gate in the fence is only intended to give access to an electrical panel. 4 The smoking area on the first floor is a small deck adjacent to the restaurant. It is on the north side of the hotel enclosed on three sides between the hotel and an adjoining office building. It is open to the west looking towards a block of units across Brougham Lane. The deck is so small that in a lapsed consent from council, approval was granted for six smokers at a time. Other than the office building on the north side the hotel has terrace houses all around and a three storey block of flats behind. The flats front Gottenham Street the next street to the west.

5 As a matter arising in evidence there is a gap between the flats and the rear of the terrace houses fronting Bridge Road. The gap is across the backyards of the terraces and the side yard of the flats and gives a direct line of sight from the hotel to some houses on Gottenham Street in its section north of Bridge Road.

6 Also arising in evidence is that Brougham Lane, that runs north/south behind the hotel and the subject courtyard, continues south on the other side of Bridge Road. Terrace houses that front Gottenham Street in this south section have rear boundaries to the lane that rises uphill to the south from Bridge Road. The lane is between high terrace house walls on the corner of the lane and Bridge Road. Some residents from this south section of Gottenham gave evidence in regard to undesirable noise from the courtyard, others gave evidence that they heard nothing from the courtyard. 7 The contentions in dispute are noise disturbance and visual privacy. 1. Council contends that the completed works will impact on the amenity of the surrounding residential properties in terms of noise disturbance and visual privacy. Particulars: (a) The open nature of the beer garden will not prevent noise from escaping from the ground floor outdoor area to the neighbouring residential dwellings at the rear of the premises at 108-109 Bridge Road, 41-47 Gottenham Street and to the south-east of the site 98-102 Bridge Road. (b) Insufficient acoustic and privacy screening has been provided to the ground floor beer garden or the first floor smoking deck. (c) Patrons within the ground floor beer garden and the first floor smoking deck will have a direct line of sight to a number of residential dwellings., 107 Bridge Road and 41 Gottenham Street. (d) The kitchen window on Brougham Lane will need to be fixed and fitted with obscure glazing to prevent staff within the kitchen disturbing neighbouring residential dwellings, 107 Bridge Road and 41 Gottenham Street. (e) The relocated mechanical plant will need to be modified to comply with the Building Code of Australia and council standard noise controls for mechanical plant. Management and hours of operation. 2. Council contends that the proposal in its current form fails to protect the amenity of the neighbouring residential properties as it proposes excessive hours and has not provided a management plan. Particulars: (a) The proposed hours of operation for the beer garden and smokers deck are considered excessive and exceed those recommended by the New South Wales Police Leichhardt Local Area Command. (b) The applicant has failed to make a commitment to good management as a plan of management for the ongoing use of the outdoor areas was not submitted as part of the application. Community objection to the proposal. 3. Council contends that significant community objection has been made to the application and that the objections are justified as they raise a number of valid concerns regarding the proposal. Particulars: (a) Excessive hours of operation of the beer garden. (b) As the beer garden is open local residents can see patrons drinking and smoking. (c) The kitchen window results in loss of privacy. (d) The previously approved beer garden in the lapsed 2005 consent was to be completely enclosed and provide a better acoustic amenity to neighbouring residents. Legitimate expectation of residents regarding management and hours of operation. 4. The residents have a legitimate expectation that the impact of late night trading premises will be controlled to protect their amenity in the housing residential zone as set out in the City of Sydney late night trading premises DCP 2007. Particulars: (a) No plan of management setting out the minimum information suggested in appendix 2 for the DCP was submitted as part of the application. (b) The proposed hours of operation for the beer garden and smokers deck exceed those suggested in the DCP. (c) The proposal in its current form fails to protect the amenity of the neighbouring residential properties in terms of noise, disturbance and visual privacy. 8 The hearing commenced on site and giving evidence for the respondent were: o Ms R Burrows of 107 Bridge Road; o Ms K Thomas of 109 Bridge Road; o Ms R MacMurray of Gottenham Street; o Ms G Stone of 113 Bridge Road; o Mr E Mylecharane of 33 Gottenham Street; and o Ms A Batties of 111 Bridge Road. 9 Giving evidence for the applicant were o Mr J Wheatley of unit 7 41 Gottenham Street; o Mr C Mercieca of 37 Gottenham Street; o Ms J Cureton of 9 Bourton Street, Glebe; o Mr D Law of unit 40 13 Jones Street, Pyrmont; o Ms J Milbank of 77 Bridge Road; o Ms O Walsh of 75 Bridge Road; o Ms R Windeatt of 61 Darling Street, Glebe; o Ms C Hill of 59 Darling Street, Glebe; o Ms F Cameron of 24 Colbourne Avenue; and o Ms L Kyle of 38 St Johns Road, Glebe. 10 The parties joint expert is Mr S Cooper, acoustic engineer. His evidence is in summary: 1. He has conducted noise measurements at critical points around the hotel and for much of the typical day traffic noise on Bridge Road dominates. 2. To use the courtyard patrons and staff have to come in and out of the hotel and if there is entertainment under the existing POPE licence or just recorded music or loud activity in the bar the noise from inside will disturb residents nearby after certain hours in the evening. 3. In regard to noise from the outside courtyard, or via the courtyard from inside, the most affected houses are those closest to the courtyard being number 107 Bridge Road, across Brougham Lane, adjacent to the courtyard, the upper level flats in the block behind the hotel and the houses directly across Bridge Road. 11 Mr Cooper has recommended acoustic mitigation measures and limitation of numbers on the courtyard during certain hours and I note the courtyard is not large and is partly excavated below road level due to the rising topography to the south-west.

12 Whilst on site there were about 30 people at the hearing in the courtyard and it appeared to be comfortably full with all seated. Before going to Mr Cooper's detailed recommendations I summarise the objectors and the supporters evidence.

13 For the objectors: (a) The courtyard has no development consent and is used while ever the pub is open up to midnight at the present time. (b) The courtyard used to be enclosed and those who lived nearby at that time had no complaints about noise from the premises. (c) There has been and still is nuisance from time to time from patrons at the hotel when leaving late at night, loudly talking, possibly extending to anti social behaviour in the streets outside near their houses. (d) Entertainment in the hotel and mechanical equipment noise has caused sleep arousal and nuisance, some of the mechanical equipment goes all night. (e) The courtyard use appears to be the source of some of the nuisance noise. (f) The traffic noise subsides after 8pm most nights and noise from the courtyard becomes audible in the houses nearby. Due to the canyon effect of buildings the noise is heard even as far as Gottenham Street west of the hotel and Gottenham Lane south of Bridge Road. (g) Allowing use of the courtyard will increase impacts on the residential amenity by virtue of verbal harassment of pedestrians outside the courtyard, by persons who are inside, increased vandalism, noise nuisance, smoke from smokers, cooking smells drifting into windows of houses, having to monitor and complain to the LAB or council as they have had to do in the past when the hotel is not managed to minimise nuisance. One resident had diarised various events and put them into evidence. (h) Objectors would prefer 8pm closure of the courtyard but accept a one year trial to 10pm but say to go later in time to midnight when traffic noise has gone is unacceptable.

14 The supporters of the application say in summary: (i) Several had lived nearby for many years although none as close to the hotel as some objectors. (ii) The hotel in the past has been objectionable, during one period it was a base for a bikie gang. The current owner has renovated the building, provided excellent food and a restaurant. It is now a local hub of recreation for residents and an asset to the locality. (iii) Glebe is a dense inner city living area, one cannot expect quiet suburban amenity. It is an active area. (iv) The hotel has been here so long any who bought property near it should have expected some impact from the hotel. (v) The courtyard should be used whenever the hotel is open including to midnight. (vi) The courtyard will largely be for eating and should not cause much nuisance. It will be mainly people talking and relaxing. (vii) The courtyard is needed for smokers who would otherwise be out on the footpath. (viii) The management of the hotel is good. Rowdy patrons are quietened down and alcohol is served responsibly to avoid drunkenness. 15 Returning to Mr Cooper's evidence he said part of the reason for current noise nuisance is that traffic noise forces people to raise their voices above it. He recommends a heavy polycarbonate screen inside the pikestaff fence mainly to reduce traffic noise inside the courtyard and thereby people can converse in lower voices.

16 Acoustic absorption panels are to be installed and a high masonry wall to Brougham Lane to be raised a little. Also the doors into the hotel from the courtyard are to be acoustically treated and mechanical plant noise to be insulated.

17 In terms of numbers he says up until 8pm the courtyard, as is, can operate with 36 persons and the smokers deck with eight persons. After 8pm due to traffic noise having lulled the acoustic treatment must be in place and the numbers in the courtyard reduced to 30. The smokers deck can remain with eight provided its acoustic screens are in place.

18 After 10pm to midnight Mr Cooper says that his measurements show that is when the traffic noise subsides to a large extent. But with his acoustic measures in place and restrictions the courtyard should still meets both LAB and council noise criteria.

19 He does not guarantee inaudibility in nearby houses nor do the LAB or council criteria require that until after midnight. The hotel shuts at midnight. 20 Mr Cooper said that it is true traffic noise produces a background hum that residents can get used to, so it is the voices in the courtyard that can cause nuisance, especially a high pitched voice or group spontaneous laughter that carries to the nearby houses. However, he regards the frequency of such incidents as well within the allowable criteria.

21 The applicant therefore opposes the time limit of 10pm on the courtyard and seeks use until midnight without a trial period. The applicant relies on existing use provisions of the Environmental Planning and Assessment Act under s 108(3) that prevent derogation of the existing use rights. The applicant also relies on Carden v Willoughby Municipal Council SCNSW 17 June, 30 July 1985 Kirby P, Mahoney and McHugh JJA.

22 The respondent puts, and I agree, that given the evidence of impact on residential amenity it is appropriate planning practice to have a trial period. In this case I cannot give such weight to the council development control plan on late night trading premises that the limit for the trial should be 10pm. Mr Cooper is confident that with his measures in place the use of the courtyard and smokers area should have acceptable low impacts on residential amenity up until midnight and it is reasonable that his expectations be trialled. 23 I notice also in the draft conditions that he has suggested that once the measures are installed they be checked whilst in use and if any additional measures are required that the use of both courtyard and the smokers area cease after 8pm until after those remedial matters are carried out.

24 I repeat also that Mr Cooper says the courtyard can operate to 8pm, as is, without the acoustic works provided persons in the courtyard are limited to 36.

25 The argument over the draft conditions largely revolves around these matters as shown by exhibit 8, the respondent's draft conditions, and exhibit F, the applicant's. I have formed the opinion that the acoustic evidence balanced against the residents' objectors' evidence justifies the trial period of one year but to midnight, and that would not derogate from the existing use rights of the hotel. Further, that since the expert acoustic evidence largely is corroborated by the neighbours that there is no real problem with use of the courtyard to 8pm as is, then the conditions should allow for that use. However, I agree that the respondents condition 10 should remain as in exhibit 8 to ensure a responsible plan of management is put in place for the whole premises because use of the courtyard is impacted by the interior activity and of patrons going in and out of the courtyard and patrons leaving late at night. It seems to me also that the acoustic treatment of the doors between the courtyard and the bar should be carried out prior to use of the courtyard after 8pm. 26 Going into more detail with the draft conditions as a result of the above I have decided conditions 2, 8, 9, 12, 13, 20, 13 should be as in exhibit F. Conditions 32 and 34 should be as in exhibit F but with the added words of "of the date of this consent" inserted after the words "within two months" in 32 B, F and N and in 34. Condition 5 shall be as in exhibit 8 except condition 5 B shall have the matter "10pm" changed to read "midnight" and 5 C shall have the words "and/or extend" deleted from the condition. 27 The parties are directed to provide an electronic copy to the Court of these conditions so amended within 24 hours of 17 December 2008. Therefore the orders of the court are: 1. The appeal is upheld. 2. Development consent is granted for use of the ground floor courtyard and first floor smokers deck at the Excelsior Hotel, number 101-105 Bridge Road, Glebe up until 8pm at night and for a trial period of one year up until midnight all as shown in the plans in exhibit E as amended by and built and operated in accordance with the conditions in annexure A hereto. 3. The exhibits are returned to the parties except exhibits E, F, 4 and 8.

      K G Hoffman
      Commissioner of the Court
      ljr

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