Land and Environment Court of New South Wales CITATION : Cross Entertainment Pty Ltd v Sydney CC [2006] NSWLEC 488 APPLICANT Cross Entertainment Pty Limited PARTIES : RESPONDENT City of Sydney Council FILE NUMBER(S) : 10174 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Hotel, alteration of conditions concerning noise amenity, heritage detail, public LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 DATES OF HEARING: 07/08/2006 and 08/08/2006 EX TEMPORE JUDGMENT DATE : 08/08/2006 APPLICANT Mr S. Austin, QC SOLICITOR Shanahan Tudhope LEGAL REPRESENTATIVES: RESPONDENT Mr S. Kondilios, solicitor Ms S. Halls, solicitor of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 8 August 2006 10174 of 2006 Cross Entertainment Pty Limited v City of Sydney Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background. 1 This appeal was lodged against council's refusal of a development application for alterations and additions and the change of use of the former Commonwealth bank building at 42 Darlinghurst Rd., Kings Cross to a licensed hotel accommodating approximately 500 persons. Council subsequently granted consent to the proposal, subject to conditions including a 1-year trial. The appeal then is against some of those conditions, which can be summarised as: o noise disamenity arising from the operations of the proposed hotel, o alterations to the existing awning in Darlinghurst Road, o licensing requirements, o public interest considerations. The site. 2 The site is described as Lot 1 in DP 176623 and Lot 1 in DP 183086 and has a total area of 341.2 sq m. It is of an irregular shape with dual frontages to Darlinghurst Road of 11.3m and at the rear, 18.39m to Kellet Way. 3 The land is occupied by the former Commonwealth Bank building, which has undergone several alterations since its decommission as a bank. The building was built in the Inter War period and has an Art Deco tower feature to the Darlinghurst Rd. frontage, which rises to a height of 18 metres. 4 The site is located on the eastern side of Darlinghurst Road, three properties south of the intersection of Darlinghurst Road and Roslyn Street. The area is characterised as a commercial shopping centre with a mixture development comprising retail shops, commercial premises, hotels, adult services, backpacker accommodation and residential apartments. Buildings are typically between 2 and 4 storeys. Planning controls. 5 South Sydney Local Environmental Plan 1998; under which the site is within a Mixed Uses 10 Zone, and o is within a heritage conservation area (Elizabeth Bay Conservation Area 19), and a heritage streetscape (Heritage Streetscape 4 (Darlinghurst Road), and o is within the Kings Cross Urban Village/Entertainment Precinct, which is characterised by bars, nightclubs, seeks industry related premises, cafes, assorted shops and offices, residential apartments and backpacker type accommodation. South Sydney Development Control Plan (Urban Design) 1997. South Sydney (Heritage Conservation) Development Control Plan 1998. City of Sydney Notification of Planning and Development Applications Development Control Plan 2005. City of Sydney Signage and Advertising Structures Development Control plan 2005. South Sydney Development Control Plan No 11, Transport Guidelines for Development for 1996. City of Sydney Access Development Control Plan 2004. The Evidence. 6 Following case management of the appeal, a number of joint expert reports were prepared to address the outstanding issues. These reports comprise: Planning matters; joint report from Mr J Lidis, planning consultant with Design Collaborative and Ms K Lithgow, senior planner with City of Sydney (Exhibit 4). Heritage matters; joint report from Mr P. Lonergan, heritage architect and Ms M Desgrand, senior heritage specialist with City of Sydney (Exhibit 6), Acoustic issues; joint report from Mr M Chung, acoustic consultant and Mr N Narbey, environ mental health officer with City of Sydney (Exhibit 5). 7 In addition to this, a number of written objections were made and these are contained in councils bundle of documents (Exhibit 1). A number of objectors expressed their concerns at the site inspection and these have been considered in conjunction with the evidence presented in the case. 8 With regard to the acoustic issue, the two main concerns relate to noise from the development and its patrons. Also, potential noise disamenity from the mechanical plant to located on the roof of the building. Conferencing between the experts substantially resolved a number of aspects associated with these matters. 9 The conditions of consent, particularly condition 7 restricts noise caused by the approved use including music and other activities to comply with specified, currently accepted criteria for noise control. This involves on-site testing within the first two months of operation to establish appropriate background noise levels, by a properly qualified acoustic consultant, to finalise the controls. 10 In addition to these conditions, there is an overriding control, which provides: 7d) Notwithstanding compliance with (a) and (b) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12 midnight and 7 a.m. 11 Furthermore, the consent is granted on the basis of a 1-year trial, which requires the hotel operator to comply with the designated noise criteria, prior to any final consent being granted. 12 The associated noise concern identified by the neighbours, relates to the antisocial behaviour of patrons who have left the premises during the early morning hours. This problem apparently exists at the present time and the neighbours are concerned that the extension of hotel trading hours will intensify this problem during the early morning hours. 13 In response to this concern, the conditions of consent require the introduction and maintenance of the Plan of Management (PoM), which provides for various security initiatives to minimise any antisocial behaviour from patrons leaving the hotel. This involves CCTV at the entry and exit of the hotel, together with appropriate security personnel supervising patrons leaving, and limited security patrols in Darlinghurst Road and around to the rear Kellet Way. 14 It seems to me that these conditions of consent dealing with the noise control measures and the plan of management, which incorporates security provisions provides a reasonable response to these concerns, which can be monitored during the trial period. 15 The other element of potential noise disamenity concerns mechanical noise to the properties in Kellet Way. This issue was raised in connection with the mechanical plant proposed on the new roof structure. However the issue has been subject to a comprehensive review by Mr Chung, who says that the plant noise will comply with the NSW DEC's Industrial Noise Policy (INP). But Mr Narbey prefers a more restrictive control, which restricts this noise so that it is in audible within residential developments. 16 Consequently, the applicant has investigated options for erection of acoustic screens to the east and north of the mechanical plant had offered condition requiring this work as part of the consent. I understand from the submissions, that these acoustic screens should reduce noise omissions to below the INP criteria, which is current practice. Therefore on this basis, I consider the requirement for these additional screens reasonable, to adequately assess mechanical plant noise omissions on during the 1 year trial period. 17 The next issue concerns the awning in Darlinghurst Road, due to the required heritage considerations for the proposal which involves alterations to the inter war Art Deco bank building, to which alterations were made in 1978, including erection of the front awning. 18 These heritage considerations in the LEP require an assessment of the style, proportion and position of the openings and doors in any application to alter an existing building. Associated with this, the objectives in DCP 1998 includes: to achieve a balance between the provisions of awnings and the enhancement of the public domain. 19 Following the joint assessment by the heritage experts, differing opinions were expressed. Mr Lonergan said that the proposal did not involve any alterations to the existing awning which was approved with the 1989 modified categories and it is therefore unreasonable to impose conditions requiring the awning removal. 20 Against this Ms Desgrand says that when the original Art Deco bank building was erected, it had no awning. There it is desirable for the awning to be wholly or partially removed because: the existing awning obscures two significant stylistic features of the building: the upper section of the entrance feature of the building, with its detail of curved reveals, (1), moulded recessed rendered linework, and canopy and the vertical 'tower' element with its vertical fins and cornice detail. The removal of the awning over the Interwar section of the building would reveal these important features and re establish the integrity of the entrance opening. 21 Accordingly Ms Desgrand presented a number of options for alteration of the awning. 22 Further conferencing between the respective experts confirmed the desirability of maintaining some form of awning to provide pedestrian convenience and this is consistent with the current policy. On this basis then the heritage experts have agreed that the existing awning should be altered by reducing its height to substantially match the existing adjoining awnings and to resurface the fascia with a flat panel, in an agreed colour scheme. 23 Having considered these details which are presented on the plans in Exhibit B, I am satisfied this represents a reasonable balance. In my assessment, the existing height of the awning, together with its recessed alignment tends to exaggerate the awning. 24 Accordingly the reduced height awning, which transitions with the adjoining awnings, together with its plain panel surface should allow the stylistic features of existing building to be more observable and I therefore accept the heritage experts agent that this represents a reasonable balance. 25 Another issue initially raised concerned the conditions relating to licensing. However, this was not pursued at the appeal and it appears to me this would be outside the scope of this merit appeal. I therefore accept that this condition is to be deleted. Conclusions 26 Having considered the evidence, the objections and undertaken a view, I am satisfied a reasonable case has been made to alter the 3 conditions appealed. Given that the consent granted by council is for a 1-year trial period, then the associated conditions relating to noise control and patron control can be carefully monitored to ensure that an acceptable level of amenity is achieved in the neighbourhood, before any final consent is granted. 27 In this regard, I have considered the residents objections and note that they accept there will be late night activity, but the major concern is with antisocial behaviour of patrons leaving the various venues. It seems to me that the requirements in the conditions of consent, including the plan of management security arrangements and street patrols should address this to a reasonable extent, in terms of the conditions of consent for a development application. 28 Insofar as the objectors have identified a broader anti social behaviour problem, presumably this should be addressed with in the context of the Kings Cross entertainment precinct. 29 The Local Environmental Plan allows a wide range of activities in the 10 Mixed Use Zone, which would undoubtedly impact on residential amenity. Also the Development Control Plan makes the following reference to the Kings Cross entertainment precinct. The entertainment precinct encompasses the area of Kings Cross which runs along a short section of Darlinghurst Road/Macleay Street and is marked in the Mixed Land Use Map. This precinct is part of the Kings Cross Urban Village, however, it contains a strong component of entertainment oriented activities which sets it apart from other urban villages. The planning intent for this precinct is to recognise and encourage entertainment uses in the precinct (particularly at lower levels of buildings) whilst containing these uses to the assigned area to protect the amenity of surrounding residential areas. Whilst activities in the Kings Cross entertainment precinct may be of greater intensity and scale than in other urban villages, they should further Kings Cross true urban village character. 30 The Court was informed that there is a Liquor Accord which involves 2 monthly meetings of the Police, Council and particularly business owners, which discuss various issues, including antisocial behaviour and safety. I understand residents are welcome to participate. It seems to me that with the number of late night operations in this entertainment precinct, then there are opportunities to co-ordinate the various security patrols/activities. So that the amenity of surrounding residential areas is protected to the appropriate level, that is consistent with the greater intensity and scale of other "villages". Court Orders 31 For these reasons then, the Court Orders are: 1. The appeal is upheld. 2. The conditions of consent for DA No. D/2005/02222, principally 33A are amended as follows, together with consequential and operational matters as shown in Attachment 'A'. 2A AWNING DESIGN That the awning be modified in accordance with the sketch plan dated 07/08/06 and signed by Mr Peter Lonergan and Ms Desgrand, SKCP1 heritage consultants to maintain the existing fascia height of the existing awning next door to the north (the Mini Mart awning). 7E(xi) Installation of acoustic screens and barriers 'between plant and sensitive neighbouring premises including in particular screens to the east and to the north of the mechanical plant. 33A Deleted 3. The exhibits may be returned except 4, 5, 6, 8, A, B and C. ___________________ R Hussey 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. 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.