Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown v Sydney City Council [2009] NSWLEC 1095

Land and Environment Court of New South Wales

CITATION : Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown v Sydney City Council [2009] NSWLEC 1095

APPLICANT Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 11147 of 2008

CORAM: Hoffman C

KEY ISSUES: SECTION 96 MODIFICATION :- Deletion of trial periods, residential amenity, late night hours

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998; South Sydney Development Control Plan 1997; and City of Sydney Late Night Trading Premises Development Control Plan 2007

DATES OF HEARING: 04/03/2009

DATE OF JUDGMENT: 2 April 2009

APPLICANT Mr M. Baird, barrister Instructed by JPR Legal Pty Ltd

LEGAL REPRESENTATIVES: RESPONDENT Ms P. Burns, solicitor with Ms N. Price, solicitor of Maddocks

JUDGMENT: - 2 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

2 April 2009

11147 of 2008 Puruse Pty Ltd and Joao Pty Ltd trading as Coopers Hotel, Newtown v Sydney City Council

JUDGMENT 1 Commissioner: This is Class 1 Appeal No 11147 of 2008 against conditions of the s96 approval No.D/2006/392/A for No.221 King Street, Newtown. The particular condition required a further trial period of 2 years for parts of the Coopers Hotel. The trial to date from 18 October 2008 to 18 October 2010. The hotel is on the corner of King and Hordern Streets. 2 The trial allows extended hours for use of a 1st floor outdoor terrace and a ground floor smokers' courtyard beyond the usual 8pm closing for outdoor areas in this location. 3 The base conditions in the consent allow the ground floor courtyard to be used from 10am to 10pm Monday to Sunday inclusive, and the first floor terrace to be used 10am to 10pm Monday to Sunday inclusive. 4 The base conditions in the consent allow the hotel to open 7am to midnight Monday to Friday, 9am to midnight on Saturday and 10am to 10pm on Sunday. 5 So the trial is actually for: · 1 extra hour per day between 10pm and 11pm for the ground floor courtyard Monday to Saturday. · 2 extra hours per day between 10pm and midnight for the first floor terrace Monday to Saturday. 6 The applicant says in summary that the extended hours have had a one (1) year trial and have demonstrated that the impacts are minor and acceptable, and therefore the current two (2) year trial is unnecessary. The trial should end and the extended hours made permanent. The Proposal 7 The appeal seeks to modify conditions 3 and 4 of Consent D/2006/392/A to remove the second, 2 year trial period for the extended hours for the ground floor courtyard and first floor terrace, so the extended hours become permanent. 8 The Applicant contends in their Amended Statement of Facts and Contentions filed 18 December 2008 that condition 2 be amended to include 2 new subsections as follows: (2) HOURS OF OPERATION The hours of operation of the hotel are restricted to the existing approved hours, being 10am and 12 Midnight Mondays to Fridays inclusive, 9am and 12 Midnight on Saturdays and 10am and 10pm on Sundays. (a) The hours of operation of the ground floor courtyard shall be 10am to 11 pm Monday to Saturday and 10am to 10pm on Sunday. (b) The hours of operation of the first floor terrace be 10am to 12 midnight Monday to Saturday and 10am to 10pm on Sunday 9 Conditions 3(a), (b) and (c) and 4 (a), (b) and (c) are to be deleted. The Existing Courtyard and Terrace and Neighbours. 10 The ground floor courtyard is quite small about 6m by 5m, and with furniture installed is said to hold a maximum of 10 people according to the council's planner. It is open to the sky but is enclosed on 4 sides by 2-storey high walls. It is adjoining the north-west boundary of the hotel and the neighbour is a medical clinic. The wall of the courtyard is above the back yard of the clinic that is used as a carpark for the medical staff and patients. The backyards beyond the clinic belong to terrace house dwellings in Hordem Street 11 The first floor terrace is larger, about 75 sq m that is partially roofed. The unroofed section is about 45 sq m and can be fully opened to the Lounge/Dining area via a sliding glass wall. The respondent noted that the approved plans did not show the sliding glass wall, they showed a single set of swing doors from the Lounge/Dining to the terrace and windows across the rest of what now can be fully open. 12 The open roof of the terrace directly adjoins the south-west boundary next to a 3-storey building that has residential flats on the upper floors above the roof of the hotel. That building is No.223 King St, Newtown. 13 The open roof of this upstairs terrace is about 17-19 m from the north-western boundary adjacent the medical clinic. At roof level between the terrace and the north-west boundary, air-conditioning or refrigeration plant equipment can be seen from some nearby Hordem Street back yards. According to objectors there are also kitchen exhausts. 14 The neighbours further west in the terrace houses fronting Hordern St have back yards similar to the clinic, but used as private outdoor spaces, not as carparks. 15 The hotel is on the corner of Hordern and King Streets near the middle of the shopping strip along King St. The shopping/commercial strip along King St is mostly one building deep as can be seen from the zoning maps. Beyond the strip it is zoned and used for residential except perhaps for some old existing use properties. Hordern St is mostly residential.