Jeyda Pty Limited v Sydney City Council [2005] NSWLEC 650

Land and Environment Court of New South Wales

CITATION : Jeyda Pty Limited v Sydney City Council [2005] NSWLEC 650

APPLICANT Jeyda Pty Limited

PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 11008 of 2005

CORAM: Hussey C

Appeal :- Conditions of Consent on the expansion of the Vegas Hotel - extension of Public Entertainment Licence - signage - hours of operation. KEY ISSUES:

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998

DATES OF HEARING: 04/11/2005 and 11/11/2005 EX TEMPORE JUDGMENT DATE : 11/11/2005

APPLICANT Mr McMahon, solicitor of M.E. McMahon & Associates

LEGAL REPRESENTATIVES:

RESPONDENT Ms P. Witford, solicitor of Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

11 November 2005

11008 of 2005 Jeyda Pty Limited v Sydney City Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT Background 1 This appeal arises out of conditions of consent imposed on the expansion of The Vegas Hotel at 54 Darlinghurst Road, Potts Point. The consent was granted on 26 August 2005 for alterations and additions and use of the premises including: a) expansion of the hotel into the ground floor of 56/56B Darlinghurst Road, the adjoining property that is currently a convenience store; b) extension of Place of Public Entertainment Licence; c) associated sign. 2 The full details of the site and relevant planning controls are contained within the Statement of Basic Facts on which I rely. 3 In summary however, the site is within a mixed uses 10 zone under the South Sydney LEP 1998 and the proposal is permissible with consent. 4 According to the Statement of Basic Facts: The site is located in the commercial/entertainment precinct of Kings Cross, which is characterised by bars, nightclubs, sex industry related premises, cafes and assorted shops and offices, with a small number of residential uses located in the upper floors of some buildings. 5 The initial appeal was against a number of the conditions imposed. However after conferencing, most of these were agreed except for condition 89 which sought to restrict the hours of operation, notwithstanding that the existing hotel hours are for 24 hours/day, 7 days/week. This was the only issue on appeal. 6 But the parties subsequently agreed to consent orders which amended condition 89 to permit the hours of operation for 24 hours/day, 7 days/week, in line with the existing hotel. 7 There were a number of objectors to the original proposal and they were notified of the on-site hearing of 4 November 2005. Whilst their written objectives were tendered, the council indicated that some objectors wanted to give oral evidence and were unavailable on 4 November 2005. 8 Considering the limited time allowed for the objectors to consider the consent orders, the on-site hearing was adjourned until today, 11 November 2005 by agreement, so as to allow a convenient time for the objectors to present their concerns. 9 At the on-site hearing the respective planners were directly to address the written objectives and file a joint expert report. That has been done and become Exhibit C. This report summaries the objections as follows: a) Appropriateness of the use; b) Noise and vibration; c) Operating hours; d) Anti-social behaviour; and e) Traffic and Parking. 10 The objections have subsequently been notified and Ms Hassan has been given the opportunity of expressing her concerns on behalf of the residents of Wintergarden (57 Darlinghurst Road). These concerns are within the category of appropriateness of the expanded use and disamenity to the neighbourhood. 11 However I am satisfied there concerns have been addressed by the expert planners conference and quote relevantly the following in respect of the issues. c) Operating Hours Concern has been raised with the 24 hour operation of the expanded premises with respect to impact on amenity. Both experts agree that the measures incorporated in the recommendations of the acoustic assessment by the Acoustic Group, conditions of consent and plan of management are adequate to deal with the premises operating 24 hours. d) Anti-social behaviour Concern has been raised as to the possibility of an increase in anti-social behaviour as a result of the proposal operating 24 hours. Both experts agree that there are adequate measures in place through the condition of consent and plan of management to adequately deal with the concerns raised. e) Parking and traffic Concern has been raised regarding the impact of the proposal on increasing traffic and reducing on-street parking in the area. Both experts agree that the operation of the premises on a 24 hour basis would not significantly after the existing traffic and parking situation in the area. This is based on the following: i) The site is located within an area (Elizabeth Bay and Potts Point/Kings Cross) with a relatively high population, low car density, low car ownership, it is located close to the existing entertainment precinct of Kings Cross and only 2 kilometres from the central Business District of Sydney. Therefore, it is considered likely that a significant proportion of patrons would walk to the Hotel; ii) The site is in close proximately to good public transport options including taxi stands on nearby Victoria Street and Bayswater Road, approximately 50 m to the south, bus stops on Darlinghurst Road almost directly outside the premises, and trains at Kings Cross Railway Station, 50 m to the south; and iii) Kings Cross parking station is located 50 m to the south-east on Ward Avenue. 12 Both experts agree that the matters dealt with above are a summary of the concerns raised by the respective submissions from 32-32A, 57 and 58 Darlinghurst Road, Kings Cross. They have both read the submissions and considered the location of the objectors and their proximity to the proposed development in reaching the conclusion that there are adequate measures in place so that 24 hour operation of the premises would be effectively mitigated. Conclusion 13 Having considered the evidence, and undertaken a view I am satisfied to rely on the conclusion of the planners in the joint report and grant the consent orders. Consent orders 1. The appeal is upheld. 2. Development consent is granted to Development Application D/2005/00601 for alterations and additions and change of use to the existing Vegas Hotel at 54 Darlinghurst Road and the convenience store at 56 Darlinghurst Road, Potts Point subject to the conditions in the attached Schedule but condition 89 is deleted and is replace by the following condition: 89A. The permitted hours of operation shall be 24 hours per day, seven days a week 3. Apart from this, I note the Respondent's application for costs, which is dismissed.