Back & Riggs Architects v Sydney City Council [2005] NSWLEC 214

Land and Environment Court of New South Wales

CITATION : Back & Riggs Architects v Sydney City Council [2005] NSWLEC 214

APPLICANT Back & Riggs Architects

PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 11484 of 2004

CORAM: Bly C

KEY ISSUES: Development Consent :- To amend existing development consent -alterations and additions to existing hotel - heritage and streetscape - hours of operation

Environmental Planning and Assessment Act 1979; s 96 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997

DATES OF HEARING: 14 - 15/04/2005 EX TEMPORE JUDGMENT DATE : 04/15/2005

APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

15 April 2005

11484 of 2004 Back & Riggs Architects v Sydney City Council

JUDGMENT

1 On 20 August 2004 the City of Sydney granted deferred commencement consent D2003/765 ("the consent") for alterations and additions to the existing six storey hotel known as the Kings Cross Hotel at 248 William Street, Kings Cross. The consent contains deferred commencement conditions that require significant changes to the proposal. 2 As described in the statement of basic facts the aspect of the development, particularly relevant to this case comprises the demolition of an existing one storey glazed enclosure on the Darlinghurst Road façade and its replacement with a two level addition with a roof terrace. 3 At the ground level the proposed extension comprises a lounge bar. At the first floor level it provides for terrace dining associated with the restaurant, and at the second floor level it comprises a roof terrace associated with a function area. Other alterations include the enclosure of the building's rooftop and the refurbishment of the entire building fabric. Some significant internal fabric is to be reinstated. 4 The renovated building is to be used as a twenty four hour, seven days a week, trading hotel with bar, restaurant, function room and nightclub. 5 The applicant subsequently lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify the consent by the deletion of a number of conditions. At the hearing a number of the conditions sought to be amended or deleted were withdrawn by the applicant. The remaining conditions, the subject of the appeal, are: deferred commencement conditions 1(a) and (b) and 4(a) (b) and (c). 6 Condition 1, in effect, requires that amended plans be submitted to the council providing for the deletion of the two upper levels of the proposed extension to the building and the re-design of the ground floor level. 7 Condition 4 sets the hours of operation for the hotel, to be between 8 am and 11 pm, Mondays to Saturdays and 10 am to 10 pm on Sundays, but provides for a one year trial period for unrestricted hours. 8 The site consists of an irregular shaped lot comprising two titles. It has an area of 354 sq m, and is bounded by Brougham Lane, Darlinghurst Road and William Street. The site is visually prominent as it is located at the intersection of William Street and Darlinghurst Road at the entry point to the Kings Cross Urban Village/Entertainment Precinct. 9 The area in which the hotel is located includes a mix of retail, commercial and residential development. It adjoins an eight storey residential building to the west known as the Broughton Apartments. 10 The site is zoned, Business 3 under South Sydney Local Environmental Plan 1998, ("the LEP") in which zone the proposal is permissible with development consent. 11 According to the council officer's report the use is consistent with the applicable zone objectives. Also applicable is South Sydney Development Control Plan 1997 ("the DCP"). 12 Draft amendment 9 to the LEP ("amendment 9") will insert a significant number of new heritage items into the heritage schedule, insert new heritage conservations areas, and new heritage streetscape areas. Relevant to this proposal amendment 9 will also extend heritage streetscape area HS14 that applies to Victoria Street so as to include the subject site therein. 13 The draft LEP has been notified and is therefore a relevant matter for consideration under s 79(c) of the Act, however, there is no suggestion that its making is certain or imminent. 14 Expert heritage evidence was provided by the Court appointed expert, Mr D Logan. Additional expert evidence was provided on behalf of the respondent by Mr J Poulton, and on behalf of the applicant by Mr P Robinson. Expert town planning evidence was provided on behalf of the respondent by Miss S Foster, a council town planner, and on behalf of the applicant by Mr A Martin. The architect responsible for the proposal, Mr N Back, also provided evidence. 15 As a result of the applicant's withdrawal of its appeal against a number of conditions, the remaining issues in this case are twofold: 1. Whether the removal of the existing extension to the front of the building and its replacement with a new two/three level glassed enclosure would be appropriate in terms of its effect on the existing building and on the streetscape, taking into account the heritage value of the building and the nearby designated streetscape areas, including the change likely to be effected by amendment 9.