Land and Environment Court of New South Wales CITATION : Martin & Spork v City of Sydney (No 2) [2006] NSWLEC 648 APPLICANT Martin & Spork Pty Limited PARTIES : RESPONDENT The Council of the City of Sydney FILE NUMBER(S) : 10587 of 2004 CORAM: Brown C KEY ISSUES: Appeal :- modification of conditions of consent - existing hotel - access - extension of trial period LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Martin & Spork Pty Limited v Sydney City Council [2004] NSWLEC 559 DATES OF HEARING: 25/09/06 DATE OF JUDGMENT: 10/17/2006 APPLICANT Mr S Austin QC SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 17 October 2006 10587 of 2004 Martin & Spork Pty Limited v The Council of the City of Sydney (No. 2) JUDGMENT 1 COMMISSIONER: This is an appeal against the determination by the Council of the City of Sydney (the council) of Application No. D2004/142A (the modification application) to modify conditions attached to Development Application No. D2004/142 (the original application) under s 96(AA) of the Environmental Planning and Assessment Act 1979 for alterations and additions to the Empire Hotel at 32-32A Darlinghurst Rd, corner of Roslyn Street, Potts Point (the site). 2 The alterations and additions in the original application provided for the conversion of three shop tenancies into a TAB Sports Bar that would be internally connected to the rest of the hotel premises and would also have access to Roslyn Street. The three shops formed part of hotel building although they had sole access to Roslyn Street. Background 3 The council refused the original application on 26 June 2002. On appeal, the Court granted approval on 1 September 2004 (Martin & Spork Pty Limited v Sydney City Council [2004] NSWLEC 559), subject to conditions. The relevant conditions are: ROSLYN STREET ENTRANCE (3) The new doorway providing entry to the TAB Sports Bar area from Roslyn Street is to be kept closed and not used as an access point between the hours of 10.00pm and 7.00am daily. A sign to this effect is to be mounted on the Roslyn Street doorway and is to be visible externally and internally. It may only be used during these hours as an emergency egress point. HOURS OF OPERATION (4) The hours of operation for the hotel extension (sports bar area) are regulated as follows: (a) The hours of operation should be restricted to between 8.00 am and 12 midnight Mondays to Sundays inclusive; (b) Notwithstanding (a) above, the use may operate between 12.00 midnight and 8.00 am seven days a week, for a trial period of one year from the date of commencement of these extended hours. The operator shall give the Council seven days notice in writing of the date of the commencement of the extended hours. The appeal 4 The modification application sought to modify the approval granted by the Court to the original application, in part, by allowing the unrestricted continuation of the extended hours of operation in condition (4)(a). Consent was granted on 15 May 2006 by the council to the modification application but not in the form sought by the applicant. The relevant conditions of consent (with the changes sought by the council and opposed by the applicant are shown in bold) are: ROSLYN STREET ENTRANCE (3) The new doorway providing entry to the TAB Sports Bar area and the doorway to the Gaming Room area from Roslyn Street are to be kept closed and not used as an access point between the hours of 10.00pm and 7.00am daily. A sign to this effect is to be mounted on the Roslyn Street doorway and is to be visible externally and internally. It may only be used during these hours as an emergency egress point. HOURS OF OPERATION (4) The hours of operation for the hotel extension (sports bar area) are regulated as follows: (a) The hours of operation should be restricted to between 8.00 am and 12 midnight Mondays to Sundays inclusive; (b) Notwithstanding (a) above, the use may operate between 12.00 midnight and 8.00 am seven days a week, for a trial period of 24 months from the date of this amendment (D224/142A). 5 The council also imposed the following additional condition that was opposed by the applicant: (67) No tour buses are to be allowed or arranged either on behalf of the Empire Hotel transporting patrons to the premises and arriving after midnight on any evening 6 In essence, the modifications imposed by the council and opposed by the applicant seek: 1) the closure of an existing door to Roslyn St, 2) a further 24 month trial period and 3) a new condition prohibiting tour buses. The evidence 7 Mr Mark Solomon, a town planner, provided expert evidence for the council. In addition, local residents Mr Andrew Woodhouse of 3 McDonald St, Mr E Alberts of 9 Ward Ave and Mr D Alexander who resides on the opposite corner above the shops provided evidence on site: 8 Mr Chris Oliver, a town planner, provided expert evidence for the applicant. Mr C Worhurst from the owners of the hotel also provided evidence on site. The closure of an existing door to Roslyn St The evidence 9 The door in question is an existing door that provides access between the Gaming Room and Roslyn St. It supplements the new doors into the hotel provided by the original application. Mr Solomon and Mr Oliver agree that there was a lack of consideration given to this door when dealing with the original application. 10 Mr Solomon and Mr Oliver disagree on whether the condition sought to be imposed by the council fairly and reasonably relates to the modification application. Mr Solomon states that the doorway to the Gaming Room acts as a secondary access point for patrons using both the Sports Bar area and the Bar proper by drawing hotel patrons on to Roslyn Street thereby resulting in a propensity for noise disturbance from this access point. The previous decision of the Court to limit access to Roslyn St. was to provide a level of surveillance and to ensure the level of residential amenity would not be significantly affected. As the closure of the door will achieve this objective then the condition fairly and reasonably relates to the modification application. 11 Mr Oliver comes to the opposite conclusion. He states that the doorway to the Gaming Room is part of the historical hotel operations and not specific to the modification application. The nature of the access, via a landing and stairs, supports the view that it is a secondary access. The access was in use and operated unrestricted as part of the hotel operations prior to the modification application. On this basis, Mr Oliver states that it is difficult to sustain the amendment to the condition when it principally relates to the general hotel operation rather than the conversion of the three shop tenancies. Findings 12 In 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, McClellan CJ relevantly states: 51 Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise. 13 Mr Solomon and Mr Oliver are correct in that there was a lack of consideration given to this door when dealing with the original application. In fact, the use of the doorway to the Gaming Room was not considered as it was not identified as an issue in the proceedings and consequently not addressed by the Court appointed town planning expert Mr Chambers or the Court. I note the door was shown on the plans relied on by Mr Chambers as providing access between the hotel and Roslyn St. The door was marked with the word "Exit". 14 1643 Pittwater Road provides that consideration of any matter that is either directly or indirectly related to the matter the subject of the modification application is a matter that can arise for consideration. In this case, I am not satisfied that the use of the door directly or indirectly relates to the matter the subject of the modification application. 15 While the modification application raised concern over the impact of access to Roslyn St on nearby residential properties; the question to be answered in this case is whether the impact of the conversion of three shop tenancies into a TAB Sports Bar creates additional impacts and not whether the general operation of the hotel, operating under different approvals, creates unacceptable impacts. Importantly, the door is not within the area the subject of the original modification application i.e., the conversion of three shop tenancies into a TAB Sports Bar. I note that a significant part of the overall hotel operation was not addressed during the hearing on the original application, presumably as it had no valid link to the modification application. I am also mindful that there was no evidence provided to suggest that the door could not be used for access between the hotel and Roslyn St. 16 For these reasons, I accept the applicant's evidence that the use of the door does not directly or indirectly relate to the matter the subject of the modification application. Consequently, the reference to the closure of the doorway to the Gaming Room area should be deleted from condition 3. 24 month trial period The evidence 17 Mr Solomon and Mr Oliver agree that the current use of subject area has not contributed to an increase in the impacts already experienced as a result of the day operations of the hotel. 18 They disagree on whether the trial period should be extended. Mr Solomon states that the imposition of a continuing trial period is an appropriate planning control that allows council to periodically assess the ongoing performance of the business in general. 19 Mr Oliver states that it is inappropriate to extended the trial period continuously, when the condition has achieved its original objective i.e., the assessment of potential impacts of the proposal on the neighbourhood. 20 In my view adequate time has been made available to determine whether there has been unacceptable amenity impacts. In most instances, a 12 month trial period would be sufficient to assess any potential impacts. I am not aware of any reason, nor did the council point out any reason why this is not appropriate in this case. While I accept that a trial period can be an effective planning tool, there can be no proper planning basis for an indefinite or ongoing trial period. The purpose of a trial period is to gather evidence so that a final decision can be made. 21 The evidence from local residents expressed concerned over the extended trading hours and the impact this would have on the amenity of nearby residential uses. Mr Woodhouse identified a number of instances of unacceptable behaviour when he visited the premises late at night. He also observed the doors being used contrary to the trial period requirement that the doors be closed between 12.00 midnight and 8.00 am. Part of his evidence was disputed by Mr Worhurst who was that a site at the same time. Other residents identified unacceptable levels of noise. 22 The report of the council officer on the modification application contains the following relevant comments: During the extended hour trial period, anecdotal evidence from the Council Rangers suggests that the complaints made to the 24 hour hotline and which are investigated immediately are generally unsubstantiated. 23 The report further states that: Seven (7) objections have been submitted in response to the application, which raise concerns about negative impacts of the proposal on residential amenity. Whilst valid, it is regarded that the use of the Sports Bar with the extended hours of operation does not contribute to or increase impacts already experienced as a result of the day-to-day operations of the hotel, a sentiment shared by the Kings Cross local Area Police Command. 24 I accept that the conclusions reached in the council officers report should be preferred over the concerns expressed on site by local residents. The site falls within the Kings Cross Entertainment Precinct and this precinct encourages levels of patronage at hours that would normally be seen as unacceptable in other areas. In my view, the modification sought by the applicant will not unacceptably impact on the existing environment of the area. For reasons in the preceding paragraphs on the inappropriateness of a further trial period, condition (4) can be amended to delete references to a further trial period. Bus tours 25 The council imposed the condition as organised bus tours to the hotel dropped patrons at the corner of Roslyn St and Ward Place. This location being close to the predominantly residential area to the east. The movement of patrons from this location to the hotel also created unreasonable disturbance to residents nearby. In response the applicant proposed an alternate condition that stated: (67) No tour buses arranged either for or on behalf of the Empire Hotel transporting patrons to the premises are to utilise Roslyn St at any time. 26 As I understand, this matter has been the subject of discussion between the operators of the hotel and Police and this has resulted in an alternate drop off point in Macleay Street where it was unlikely that residential properties would be disturbed. I accept that the alternate condition offered by the applicant adequately addresses the issue of unreasonable disturbance around Roslyn St and Ward Place. Orders 27 The orders of the Court are: 1) The appeal is upheld. 2) The application to modify conditions attached to Development Application No. D2004/142A for alterations and additions to the Empire Hotel at 32-32A Darlinghurst Rd, corner of Roslyn Street, Potts Point is approved by: a) the deletion of the words "and the doorway to the Gaming Room area" from condition 3. b) the deletion of conditions 4(b) and 4(c) and c) the addition of condition 67 that states: (67) No tour buses arranged either or on behalf of the Empire Hotel transporting patrons to the premises are to utilise Roslyn St at any time. 3) The exhibits are returned. ____________ G T Brown Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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