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. Statutory Instruments and Controls 16 The following controls apply to the proposal: a. South Sydney Local Environmental Plan 1998; b. South Sydney Development Control Plan 1997; and c. City of Sydney Late Night Trading Premises Development Control Plan 2007 The Contentions 17 The requirement to apply a second trial period for the extended trading hours of the ground floor courtyard and first floor terrace is consistent with the aims and objectives of the City of Sydney Late Night Trading Premises Development Control Plan (DCP). 1. (a) The DCP was adopted by Council on 10 December 2007 and commenced operation on 1 January 2008. (b) The subject site is identified as a Category A Premises - High Impact as the hotel use has a capacity of more than 120 patrons and is designated as a general bar license. (c) The site is situated within the Local Centre Area of Late Night Trading Areas within the City of Sydney local Government Area as identified in section 3.2, where base trading hours for outdoor areas for Category A premises is between 10:00am and 8.00pm and extended trading hours for outdoor areas is between 10.00am and 10.00pm. (d) The approved extended trading hours of the ground floor courtyard and first floor terrace already exceed the permitted extended trading hours in the DCP. (e) Section 2.7 of the DCP requires trial periods to be imposed on any extended trading hours beyond the 'base' trading hours stipulated in section 3.1 of the DCP. In accordance with Section 3.1(c) of the DCP, extended trading hours of operation are permitted on a trial basis of 1 year followed by a second trial period of 2 years and a third and subsequent trial periods of 5 years. After the full range of extended trading hours are reached, a DA must be lodged every 5 years to renew trading hours. (f) The Hotel has operated under approved extended hours for the ground floor courtyard and first floor terrace for a period just over 1 year. Although no complaints have been received relating to the operations of the Hotel during the extended trading hours, a 1 year trial period is the beginning of a series of trial periods and does not satisfactorily demonstrate a history of good and on-going management of the premises to warrant permanent late night trading hours. 2. The extended trial period is appropriate as the ground floor courtyard and first floor terrace are not enclosed, in close proximity to immediately adjoining residential developments and should be monitored to ensure minimal impacts on the amenity of adjoining residents. (a) A longer subsequent trial period recognises that the first one year trial period was successful, but that the use of the external areas are relatively new (use commenced after 18 October 2007) and therefore the operators of the hotel need to continue to manage the external areas responsibly and without adverse impacts on surrounding properties. (b) Council will be able to monitor the premises under the trial period, to ensure that the operator is committed to responsible on-going management of the premises and minimise impacts on surrounding residential properties. 3. The removal of the 2 year trial period will undermine the Respondent's ability to consistently apply the DCP. (a) The Section 96 Application for the continued hours of operation for the ground floor courtyard and first floor terrace as permitted by conditions 3{b) and 4(b) of Consent was lodged after the commencement of the DCP, and as such must be assessed against the provisions of the DCP. (b) In accordance with section 2.3 the DCP, all development applications for new and existing Category A Premises that seek refurbishment, additions or extensions that will result in an intensification of an existing use and an extension or renewal of trial trading hours are subject to the provisions of the DCP. (c) The Respondent has consistently imposed trial periods for extended trading hours, in accordance with the DCP. The Respondent have been consistent in its application of the DCP and this has also provided residents, licensed premises owners and members of the public with certainty and an expectation, with regard to licensed premises and late trading hours. The Evidence 18 The Application was referred to the Licensing Unit of the Newtown Police Local Area Command who raised no objection to the proposal. 19 The New South Wales Liquor Administration Board (LAB) advised in its letter dated 1 April 2008 that there are no records of recent s 104 complaints lodged against the premises. 20 Evidence was heard on site from local residents from Hordern St, including the medical clinic. They were Dr Falahey, Ms Nixon, Mr Tripp, Mr Doyle, Ms Baird, Ms Jones and Mr Harradence. 21 In summary they said: that a previous owner had run the hotel with a backpackers accommodation on the upper floor where the new Lounge/Dining and terrace are located. The noise and activity from that use and the way the bar areas were run caused residential amenity impacts, emanating from inside the hotel, and from patrons coming and going or using the streets around the hotel. The impacts were far in excess of what is acceptable, even in Newtown. 22 All the objectors who spoke on site agreed that they enjoyed the vibrant life and activity of Newtown, some having lived there up to 33 years. 23 Those on-site also said that the new owners of the Coopers Hotel, who had replaced the backpackers with the existing facilities have managed the hotel to a level that is an acceptable balance between residential amenity and reasonable operation of the hotel. 24 The on-site evidence from that point went to the current types of noises or activities that occur from the hotel operation to demonstrate that there are still events that cause nuisance to the residents, and they have accepted them as part of living in Newtown. 25 But they do not want the current nuisances to become worse. They realise the development consents run with the hotel, so the conditions as they stand with the trial periods provide some assurance that the existing owners and any new owners will run the hotel to the current standards. 26 They said to achieve any relief from noise, violence and anti-social behaviour at and near the hotel, it took 5 years of residents having to monitor and diarise and being impacted by the poor management of the previous owners, and having to lodge complaints to the Council and the LAB, and appear in proceedings. Residents should not have to go through those ordeals they said. 27 Under the new owners' management, the range of nuisances the residents have accepted are: · Depending on the wind, whether it is overcast and if sporting events (or other events that cause the patrons to shout) are being broadcast in the hotel, residents along Hordern St have noise that makes uncomfortable the enjoyment of reasonable quiet in the their homes and yards. · Patrons leaving the hotel have been known to use the front yards of the terrace houses as a toilet. · If patrons have arguments it seems to move into the street, and the residents are disturbed by the shouting or other behaviour. · Many patrons still choose to smoke outside in the street instead of in the open courtyard or the terrace. Due to the narrow footpath in Hordern St groups of smokers outside the hotel often block the footpath and residents either have to push through them or cross the street. Cigarette butts often litter the footpath. · There is a small park in Hordern St just west of the hotel. After closing time some hotel patrons congregate in the park and either happy or arguing they have loud voices and disturb residents. · The demographic of Hordern St has changed in recent years with many more children who live in the houses and whose sleep can be disturbed by night time activity related to hotel patrons. · In earlier years some long term residents remember the hotel closed at 9pm and Hordern St became quiet for the residents during the rest of the night. With the advent of later night closing, the "quiet time" does not start until awhile after the hotel shuts at midnight Monday to Saturday night, and after 10pm on Sunday night. · The noise of the roof top mechanical equipment continues for some time after closing and on still nights in particular it can be uncomfortable. 28 In the residents' opinions, the hotel owners and operators have a vested interest in ensuring the current balance of residential amenity and hotel operations is maintained, and this is due to the trial period conditions. They add that the hotel is only asking for the same hours as it has for the trial period, so there is no difference in trading/cashflow. The trial periods should remain. 29 One resident was not able to attend the hearing but her objections were tendered. That is a Ms Cooke who lives in the next-door building above the open roof of the terrace. Her letter lists stronger objections than the Hordern St residents. The amenity impacts she experiences and her objections are, in summary: · Noise from the large number of industrial fans on the roof of the hotel. · Even in normal operation there is a constant drone of conversation coming from the open roof of the terrace. · Drunken noisy patrons engage in yelling, screaming or singing loudly during large group celebrations such as birthdays. · Kitchen and BBQ smells from the exhaust fans. · Cigarette smoke, from patrons who use the courtyard or the terrace, rises up to her apartment. · Her bedroom adjoins the hotel so these impacts effect her repose. · Allowing the hotel to extend the hours of the terrace and the courtyard just extends the time at night when she has to put up with these amenity impacts. · Like the other residents, Ms Cooke enjoys the vibrancy of Newtown but does not see why the residents should suffer increased amenity impacts for the financial benefit of the hotel. · There are many late night venues in Newtown that any patrons of Coopers Hotel can go to if they don't want to stay inside the hotel when the open terrace and courtyard close. · The owners of the hotel do not seem to accept they have a small heritage hotel in the Inner West adjoining residential areas. If they want a bigger hotel with more patrons and longer hours they should go somewhere with enough open space around to prevent unacceptable impacts on residents. 30 The townplanning experts had conferred, Ms Wong for the respondent and Ms Francis consultant. 31 Ms Wong said the maximum number of persons allowed in the ground floor courtyard is 10. The first floor terrace has no limit except the maximum number that applies to the whole of the public areas on that floor. She agreed that the trial to date had been successful. The Plan of Management in Condition 7, the security guard requirement in Condition 8, the control of noise in Hordern St by closing of windows at 8pm and doors at 9.30pm, Condition 13 on mechanical plant noise and conditions 18 & 19 regarding glass removal have reduced impacts to acceptable levels. She agreed that the condition about a bottle shop is superfluous as there is no bottle shop in the Coopers Hotel. 32 Ms Francis agreed the Incident Register appeared to be a combined complaints and police incident record, and so far there had been no official complaints during the trial to Council, the police or the LAB. 33 In regard to the trial period, Ms Wong agreed it is a test of whether activity in the courtyard or the terrace creates unacceptable impacts between 10pm and 11pm and between 10pm and midnight Monday to Saturday, respectively. She agreed that from the street it would be difficult to tell, at those times, if unwanted noise was being generated by the rest of the hotel, or from the courtyard and/or the terrace. 34 She said the only conditions on closing the doors of the courtyard and the terrace were in the Plan of Management. It says the ground floor courtyard doors to be shut whenever Live music is being played in the hotel. There is no requirement on the terrace, but she noted that the approved plans show on the first Floor Plan and on Section 3.3 that the Lounge/Dining and the terrace are to be separated by fixed glass windows and one set of double doors. As seen at the start of the Hearing, there is a sliding glass wall where the windows and door are meant to be. When slid back as seen during the Hearing there is an 8m or 9m wide opening about 3m high instead of the door set 1.4m wide and 2.1m high. 35 I had no other oral evidence about this last fact. In the respondent's bundle there is the acoustic report related to the approved plans. It is not evident from that report whether the acoustic expert realised there are dwellings in No. 223 King St directly above the first floor terrace, or if it took account of the construction as existing. 36 Ms Francis put that there are several other late night closing hotels in the vicinity and Coopers should not be disadvantaged or blamed for night activity that may not be from its patrons. The Marlborough Hotel closes at 3.30am, The Bank Hotel usually closes between 2am-3am, Zanzibar between 5am-6am and Kellys on King between 3am-4am. Kuleto's is approved to midnight including an elevated outside deck. 37 Ms Wong said some of those places are either in a Late Night sector under the DCP or in Marrickville Council area. Others may have consents that pre-date the DCP. Although the original consent for the alterations and additions to the site were before the Late Night Trading DCP, the current s 96 application came after its adoption so the DCP applies. If it was a fresh application the site is in a Local Centre Area and the permitted hours for the outdoor areas is 8pm. So the approved permanent hours that allow both courtyard and terrace to stay open until 10pm is already 2 hours in excess of the current controls. 38 The trial allows them to stay open to 11pm and midnight respectively on most weeknights, so that is a major concession. 39 The way the Late Night Trading DCP is set up there is a sequence of trial periods when licensed premises are seeking extended hours, in this case beyond 8pm for the outdoor areas. Clause 3.1.d applies and in summary it requires 3 trial periods. The first is for 1 year, the second for 2 years and the third for 5 years. Once the third trial is completed successfully, the council will then consider rolling 5 year consents for the extended hours. 40 Ms Francis said that it's a question of fairness. The trials leave the hotel in an uncertain situation. There has been a trial of one year and is acknowledged as successful. In her opinion it is difficult to distinguish any noise/activity of the terrace and courtyard from the noise/activity of the hotel as a whole. 41 It was put that the permanent hours sought are the same as the trial hours, so in terms of the trading time/potential income of the hotel, there is no difference. Clause 3.1.a states the trial periods are meant to demonstrate good management performance and compliance with the plan of management in order to warrant a renewal or extension of trading hours. It doesn't say its for establishment of permanent extended hours. 42 Ms Francis said the conditions of consent are there to do that work. If there is non-compliance, the council takes action. 43 It was put to her that the council can only act after the nuisance or disturbance has occurred. That means the residents, or someone else has suffered the impact, be it on amenity or otherwise, until such time as a legal remedy is applied. The trial is an incentive to the hotel owner/operator to be constantly attentive to compliance and prevent or minimise impacts occurring. 44 Ms Wong added that the first 1 year trial has been completed and the hotel is in the 2 year trial period. Coopers Hotel had many more dwellings close to it than most other late night venues. The site is in a sensitive location as can be understood from the objections of the neighbour in No.223 King St, and the acceptance of a compromise on amenity by the Hordern St residents. 45 She was asked if council is subject to slavish interpretations of the Late Night Trading DCP. She thought not as that would have meant the imposition of the DCP's maximum 2 hours for extended trading after 8pm. It would have meant a 10pm close of the outdoor areas during the trials, instead of 11pm and midnight. Conclusions 46 The late Night Trading DCP has been through the process of research, draft formulation, public exhibition and presumably final draft and then adoption by the council. 47 Extracts from cl 2.1 Aims of the strategy are: The main aim…….is to assist in the management of impacts of late night trading premises……on neighborhoods in which they are located, and in particular protect the amenity of residential properties. Late night trading premises are an important part of the Sydney social and street life……….people living and working in the city……..are attracted to these places as a result of their diversity and vitality………this DCP does not set out to curb or increase potential trading hours in a blanket fashion….but allows opportunities for late night trading in appropriate locations….it is particularly important for proponents of "high impact" night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the development application stage and throughout the history of the operation of premises. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods. 48 In cl 2.2 Objectives some extracts are: B ensure late night trading premises will have minimal adverse effects on the amenity of residential or other sensitive land uses. J provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods. L ensure that appropriate hours are permitted for outdoor trading 49 These set the framework for the more detailed controls in the Contentions of this Hearing. Those controls clearly provide for a series of trial periods for extended hours beyond those set for each precinct designated as "Late Night Management", or "City Living" or "Local Centre" or "All other Category A Premises". 50 Coopers Hotel is a Category A – High Impact premises, which means it has the potential to cause a nuisance because of its being a hotel with a capacity over 120 persons. 51 Under cl 3.1 extended hours consents are subject to trials of 1, 2 and 5 years and after completing them successfully, the extended hours are subject to time limited consents of 5 years. Thereafter a fresh approval has to be obtained every 5 years for the extended hours. 52 This is obviously a change to the past practices of consents with trial periods, but there is no reason a local authority cannot introduce new controls, having determined there is a need and having gone through the proper processes of preparing a development control plan. 53 In this case, as has been mentioned several times in the Hearing, the extended hours allowed in trials are significantly later than the DCP envisages, and coincide fairly closely to the opening hours of the hotel. The first floor terrace has the same hours as the hotel 6 nights of the week. And the permanent hours sought are the same as allowed by the trial. 54 The evidence in this case shows that the amenity impacts of the hotel on adjoining and nearby dwellings are in a fine balance. The current trial is only in its second year. The DCP requires demonstration of long term success in hotel management maintaining that balance. 55 There is no reason from the evidence I have heard that convinces me to curtail the provisions of the Late Night Trading Premises DCP 2007, as applied in the existing conditions of development consent. 56 There fore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties. _______________________ K G Hoffman 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.