Land and Environment Court of New South Wales CITATION : Crosslake Pty Limited -v- Sydney City Council [2008] NSWLEC 1206 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Crosslake Pty Limited PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11275 & 11276 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- Hotel smokers' areas, noise, smoke, amenity of nearby residents, precedent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 DATES OF HEARING: 31/03/2008 DATE OF JUDGMENT: 29 May 2008 APPLICANT Mr P. Clay, barrister Instructed by Mr L. Harris of Back Schwartz Vaughan LEGAL REPRESENTATIVES: RESPONDENT Mr S. Kondilios, solicitor with Mr P. Whitford of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 29 May 2008 11275 of 2007, 11276 of 2007 Crosslake Pty Limited v Sydney City Council JUDGMENT 1 This is two Class 1 Appeals Nos. 11275 and 11276 of 2007 between Crosslake Pty Limited in regard to the deemed refusal of DA2007/1359 and DA2007/1360 respectively for smokers areas at the Courthouse Hotel, 189 Oxford St, Surry Hills. The hotel is on the corner of Bourke St at Taylor Square. Its longest frontage is to Taylor Square as Bourke St is closed between Oxford St and Campbell St, to create the pedestrian square. The site and Locality 2 Although some witnesses said the hotel also had frontage to Little Oxford St, a lane parallel to Oxford St, that is not correct. The hotel being on the corner, has a segmental shaped lot and it terminates at the rear against No 48 Little Oxford and Nos 379-379A Bourke St that do have frontage to Little Oxford. On the west side the hotel also adjoins No. 185 Oxford St that backs onto No. 48. 3 No 48 is a 3-storey old brick building with an approved medical centre on the lowest 2 floors and a flat on the top floor. There was ambiguous evidence on whether the flat has an approval. 4 Nos 379-379A is a restaurant, the kitchen of which has windows and access to Little Oxford that probably were mistaken by some persons as being part of the hotel. 5 The hotel is four storeys. The Ground floor has a bar and a poker machine room, lobby and main stair off Taylor Square, toilets and fire stairs off Oxford St. Part of the poker machine room is under a lightwell that starts on the floor of the second storey. 6 The second storey has a Lounge/Bistro bar and Kitchen/Pantry/Cool room and large Bar Cool Room with the lightwell between the kitchen, the Bar Cool Room, toilets at the back of the Lounge and No 185 Oxford St. 7 The third storey is residential rooms, and a deck on top of the Kitchen and Bar Cool Room and toilets below. Obviously, the lightwell comes through to this level also. The residential hotel rooms are in an L-shaped block that fronts the two streets leaving a rear airspace above the kitchen, cool room, toilets and lightwell. There are residential rooms on these upper two floors with windows into this rear airspace. There is exhaust and air conditioning equipment on a roof space on the third storey between Kitchen and the residential wing at the south of the site adjoining Nos 379-379A. 8 The fourth storey is just more residential rooms in the L-shaped block. 9 The hotel, being at Taylor Square is in the heart of the entertainment district and is in Zone 3 Business under the South Sydney Local Environmental Plan 1998 as are all the properties between Oxford and Little Oxford from Crown St to Bourke St. It is close to other entertainment premises such as Kinselas, Taylor Square Hotel, The Deck Bar and the Oxford Hotel. Another street with several entertainment facilities, Flinders St, also runs into Taylor Square. 10 On the south side of Little Oxford between it and Campbell St is Zone 10 Mixed Uses under the South Sydney Local Environmental Plan 1998 (LEP). Across Campbell St is Zone 2(b) Residential (Medium Density). 11 On the corner of Little Oxford and Campbell is a new seven-storey apartment building with ground floor retail. It is 200 Campbell St and named "Vivere". Units on the upper floors on the north side overlook the rear of the subject site. 12 Across Campbell St in the residential zone is another apartment building No. 85, the "Taylor Grand", and over the tops of trees and between No. 200 and another building, some upper floors units also have an angle of view across the rear of the subject site. The proposals. 13 In Appeal No. 11275, the proposed smokers' area is to be made on the Ground floor by taking out the floor of the lightwell on the second storey, so that the lightwell extends down to the Ground floor. This will take part of the poker machine room, and is to be built as an outdoor space with glass walls and a door into the machine room. The Courtyard would be only 6.4 m2 and will hold up to 6 persons. 14 Any noise that may be created from persons in the smokers area is said to be mitigated by the fact its masonry walls will be nearly 7m high to the parapet adjoining No. 185 Oxford St and acoustic panels will be placed on the walls to further absorb noise. 15 In Appeal No. 11276, the proposed smokers' area is to be made on the second storey by taking out the roof of the Kitchen/Pantry/Cool room, so there is an open terrace where the kitchen was. The area of the terrace would be 33 m2 and accommodate up to 40 persons. 16 The large Bar Cool Room stays in place. There will be space for a new smaller kitchen/pantry/cool room to be built by relocating the exhaust/air equipment up to the roof of the residential block, and dismantling old disused external stairs. A new pantry/cool room will be put in an existing part of the building adjacent. 17 To reduce noise from the terrace, the existing parapet walls adjoining No. 48 and Nos 379-379A are to be raised in masonry to 5 m above the floor. Acoustic panels are to be put on the walls to further absorb noise. An awning will cover part of the terrace to act as a noise baffle and to give some protection in rainy weather. The applicant also volunteered to raise the walls a little further with Perspex panels if the Court is concerned about noise affecting the flat on top of No. 48. The initial proposal would take the masonry walls about one third up the windows of the flat, the Perspex would go up to be level with the tops of its windows. The Perspex would also further reduce noise that might be heard at No. 200 Campbell St. 18 Both applications are sought to be used 24 hours a day, 7 days per week. However the applicant will accept a trial period for the terrace for use between midnight and 7 am. The Respondent wants use only between 10 am and 10 pm with a trial period for use from 10 pm to 1 am. In regard to the both proposals the Respondent wants the consents to expire after one year and fresh applications be required. 19 The two applications are separate such that the plans for the Ground floor smokers' Courtyard show the second storey Kitchen/pantry/cool room as existing. The plans for the second storey terrace show the machine room as is, without the smokers' Courtyard. The Facts and Contentions 20 The hotel is listed as a Heritage Item under the LEP and is in the Ryder Street Conservation Area and the Oxford Street Heritage Streetscape Area. 21 As well as the LEP, the proposal is subject to the provisions of the South Sydney Development Control Plan 1997-Urban Design (DCPUD), and the Sydney Heritage Development Control Plan 2006 (HDCP). 22 Both appeals have identical contentions. Contentions 23 Loss of amenity 1. Council contends that the proposal does not comply with the 'Principle Objectives' of the South Sydney Local Environmental Plan 1996 or the objectives of the Zone 3 - the Business Zone. Particulars (a) The proposal is contrary to Clause 7(b) 'Principal Objectives' of South Sydney Local Environmental Plan 1998 (LEP). The proposed Courtyard at the rear of the premises operating 24 hours a day seven days a week would result in a loss of amenity to residents that live in close proximity to the premises (including noise and disturbance). (b) These impacts also contravene Clause 13(1)(c) of Zoning controls for Zone No 3 - the Business Zone the LEP; and Part B: Urban Design Principles 'Design for a Sustainable, Healthy Environment' (Environmental Amenity), and Section 6 (Operational Controls) and under the South Sydney Development Control Plan 1997 . Community objection to the proposal 2. Council contends that significant community objection has been made to the application and that the objections are justified as they raise a number of valid concerns regarding the proposal. Particulars (a) An increase in noise emissions from the premises. (b) The proximity of the Courtyard to residential apartments at the rear of the site. (c) Smoke drift from the Courtyard to residential apartments at the rear of the site. (d) Licensed venues should be contained on the Oxford Street/Taylor Square frontage of the premises. By locating the Courtyard at the rear of the premises patrons and noise will be moved into the surrounding residential area. (e) The proposed trading hours 24 hour seven days a week will impact on the residential amenity of the residents at the rear of the site. The Evidence 24 The respondent was represented by Mr s Kondilios solicitor, Ms P Whitford solicitor, Mr J Reid town planner, Mr G Atkins acoustic engineer, Mr F Schier objector #71/183 Campbell St, Mr P Abbey objector #309/200 Campbell St, Mr A Kelly objector #307/200 Campbell St, Ms E Papandrea objector #601/200 Campbell St, Mr A Hochroth #602/200 Campbell St. 25 The applicant was represented by Mr P Clay barrister, instructed by Mr L Harris solicitor, Mr J Lidis town planner, Mr S Cooper acoustic engineer. 26 Mr N Cockington objector of #101/200 Campbell St had wanted to attend but commitments prevented. A letter was tendered saying when he lived in his unit noisy drunks in Little Oxford frequently woke him 2-3am when Kinselas closed. Intensifying activity at the rear of Oxford St premises is unacceptable and his tenant being a shift worker would get little sleep. 27 Mr Schier is also the Chairperson of Strata Plan 53787, the apartment tower at 185 Campbell St and tendered 45 signatories in an objection to both proposals mainly residents of No.185 and other addresses nearby. The objection stated fear of noise and smoke, and that smokers' areas should be on the Oxford St side of the building. 28 The Contentions accurately summarise the objectors' major concerns. Other issues arising were: + 24 hour use with alcohol allowed in the smoke areas is unacceptable as people would stay and make loud conversation, including in the early hours. + If approved there should be no drinking in the smoke areas so they have their smoke and go back inside. + The objectors opposed any trial period as they thought, if built, the smoke areas would be permanent. + They understood the LAB criteria for noise is none to be audible from a licensed premises after midnight. The residents closest to the premises, being No.200, could not accept there would be no noise heard. This was based on their experiences hearing people talking in Little Oxford using normal voices during the "quiet" hours. The closest balcony and windows are 16-26m from the 2nd storey terrace wall, and 22-30m from the ground floor Courtyard wall. 29 No. 48 Little Oxford had lodged an objection about noise nuisance to the flat on its top floor. The closest window is a bedroom window about 1.5m from the 2nd floor terrace wall, and about 6m from the ground floor Courtyard wall. I was taken inside the flat and the parties agreed the windows had heavy thick glazing that reduces noise, and the flat is air-conditioned. The acoustic experts did not take that into account in their calculations. 30 Mr P Oldfield objector of 8 Denham St had not written an objection, but came to Court. His street is one of 3 lanes, the others being Taggarts Lane and Ryder St within the city block bounded by Little Oxford, Campbell St and Crown St. The back yard of his terrace house backs onto No. 200 "Vivere" and has access to Little Oxford. 31 He said since commencement of late night trading of the entertainment facilities the nuisance noise has become worse. He and neighbours had to ask the Council to act on noisy air-conditioners/refrigeration equipment of Oxford St premises. The buildings and narrowness of Little Oxford seems to amplify noise he said, and he hears people talking in normal voices in the lane at night. Fights and yelling occur in the lane from time to time, and usually from the Taylor Square end. 32 His occupation is psychotherapist and he said the activity and noise nuisance affecting his house is near the limit of acceptable stress. Additional nuisance that the proposals would create should not be allowed, and the smokers' areas should be on the Oxford St or Taylor Square frontages of the site to keep the noisy activities together. The buildings along Oxford St act as a shield to the residents behind, and these would be the first outdoor spaces for any of the entertainment premises on the residents' side of the shield. 33 He agreed that part of the noise he and others had asked the Council to act on was noise from the kitchen of the restaurant at No. 379-379A Bourke St, not the hotel. He said it took several years to have that problem fixed. 34 The applicant submitted that it had tried to put smokers' areas on the Oxford and Taylor frontages, but they had been refused due to heritage concerns. The respondent said that it may look favourably on removing some windows to Oxford St at ground level and creating smokers' areas screened off from the interior by glass walls or similar as done on the Oxford Hotel opposite the site. 35 The respondent and the objectors' feared an approval of the proposed smokers' areas would be a signal to other entertainment premises on Oxford St to apply for similar things at their Little Oxford frontages. The "noise barrier" effect of the taller buildings along Oxford St would be breached, and they would get more noise in the residential area. 36 The objectors said they lived in this precinct because of its convenience and liveliness, but they know through living here how the amenity cycle changes over each 24-hour period. A change like the proposals is critical when residential amenity is so finely balanced with commercial/entertainment activities. 37 The applicant said it would accept conditions that the 2nd storey terrace have a trial period of 1 year, and there be no drinking in either smokers' areas between 1am-7am each day. There would be no music, no TV in them, and the terrace would have an air/noise/lock (2 doors) between it and the Lounge/Bistro. The ground floor Courtyard would use the machine room as its noise/lock from the Bar because there is little conversation or noise in the machine room. 38 The respondent wanted no drinking of food in either smokers' areas and no furniture so that they would be solely for smoking and patrons would go back inside afterwards for conversation and drinking. 39 The applicant said the flat at No. 48 had no consent, and therefore it had no obligation to consider it, although it would accept a condition as previously mentioned. In any case the inspection during the Hearing showed it already had noise reduction construction and air-conditioning. In the case of a flat without consent it is that owner's obligation to install more noise reduction measures if needed. 40 Mr Reid said the Council had not found a consent for the flat at No. 48, but it was known to have existed for at least 9 years and the Council had taken no action. He said this locality had previously been in the South Sydney Council area, and many files had not been available for transfer to Sydney City Council. This may have been due to the devastating hailstorm that greatly damaged South Sydney Council building some years ago. 41 In cross examination he agreed that No. 48 had always been in a Business zone and a flat would have always needed consent. But it is a permissible use with consent. He agreed SEPP 4 could not have applied to it in order to allow the flat without consent. 42 Mr Lidis said Mr Reid and the objectors referred to the site as being in a transitional zone, but in fact it is surrounded by the Zone 3 Business. This is due to its having no frontage to Little Oxford The Zone 10 Mixed Uses area across Little Oxford is the transitional zone to the Zone 2(a) across Campbell St. Given the detailed acoustic assessment and the noise attenuation proposed, the applicant's proposals do everything that could reasonably be expected. He was satisfied Mr Cooper's acoustic assessments and recommendations would produce no noise nuisance for the nearby residents. 43 Mr Lidis said there was no evidence on smoke drift from the site to the nearby dwellings, so that is speculative. In any case there are many kitchen and air-conditioning and toilet exhausts and vehicles in the area producing a wide range of odours. The contribution these proposals might make would be insignificant. In any case the applicant is prepared to accept the trial period for the 2nd floor terrace, and a condition that it cease operation at any time in the trial period if it causes a nuisance. 44 The applicant did not want a trial period for the ground floor Courtyard as its 6 person capacity at the bottom of a 7m high lightwell could not possibly cause an unacceptable impact, Mr Lidis said. 45 The acoustic experts gave evidence. Mr Atkins agreed persons in a poker machine room are much quieter than in a bar and it is likely they would be quieter in the ground floor Courtyard than persons going from the 2nd storey Lounge/Bistro onto the 2nd storey terrace. However he said the ground floor bar patrons might go into the machine room smokers' Courtyard. He agreed they may go out onto Taylor Square. 46 For his noise calculations, he had adopted a range of noise levels for persons in a bar situation using sound monitors at the Pontoon Bar in Darling Harbour. He had adopted 87 dB for Loud Voice and 74dB for Raised voice. He said these are averages in a range of 68dB - 93dB. His adopted averages fitted with known research by Lazarus and Harris. 47 Mr Cooper said he did not agree with using Lazarus or Harris as they took measurements to the side of the target groups. It comes out about the same as a measurement with all persons facing the receptor he said. The correct measurement should be by spatial averaging that considers a similar scenario to the smokers' areas where people will be facing in different directions. Mr Cooper said the Lazarus or Harris approach would create over-design. 48 Also Mr Cooper said using measurements at the Pontoon Bar meant the monitor would have to be in a part open, part roofed area, under the Pyrmont Western Distributor overbridges, pedestrians on the promenade etc. There would be reflected noises in his opinion from inspecting the Pontoon bar, and he measured the traffic noise at 60dB, plus background music and he counted about 110 patrons. It is not a comparable scenario to the proposals. 49 He recounted his experience in assessing many other hotels and gave comparables in his opinion of small smokers areas of around 10 persons and others at about 40 persons off gaming rooms and bars. 50 He had looked at and used previous noise levels at the site by Renzo Tonin acoustic engineer in his initial report. He agreed with the Tonin ambient noise levels, but he had recently found maths errors in the predictor calculations for Raised Voice and Loud Voice. He had informed Mr Atkins of the errors. 51 The acoustic experts were asked to confer and agree, if they could, on appropriate voice levels for calculations and measures for noise attenuation in the smokers' areas. They produced Exhibit 17, it had 11 items that showed voice levels and noise attenuation measures. 52 Mssrs Cooper and Atkins agreed in oral evidence to change the Raised Voice and Loud Voice levels on Exhibit 17, the noise attenuation measures did not change as a result of that. Items 1-4 apply if the flat at No.48 is regarded as unapproved. If the flat is regarded as an approved dwelling, then Items 5-8 apply or the alternative attenuation measures in Item 9. Item 10 gives the efficiency of Item 9 regarding the noise reduction goals. Item 11 gives an alternative of reducing numbers on the 2nd floor terrace to 30 persons after midnight. 53 I asked in layman's terms would residents in No.200 Campbell St hear anything after midnight? Mr Cooper said it was necessary to comply with the "no audible noise at any dwelling" requirement of the LAB after midnight and he believed that would be achieved. If Items 5-8 or 9 were applied, then No.48 would hear nothing either. 54 He had agreed in earlier oral evidence that the adopted Voice levels could be exceeded if smokers became boisterous or argumentative. Mr Atkins said in that event residents would hear something and that was part of his reasons to say "no drinking or eating or seating" should apply to both smokers' areas after midnight. It would reduce the potential activity in those spaces. 55 Messrs Lidis and Reid resumed evidence. Mr Reid said in spite of the acoustic evidence he recommended refusal as the proposals would be too close to dwellings. He wanted alternate locations on the Oxford St or Taylor Square frontages. It was put to him that the indented bay type smokers' areas on the Oxford Hotel are too small to hold 40 smokers. He said any additional numbers could go onto Taylor Square directly outside the Courthouse Hotel where there is public seating. 56 Mr Lidis said that alternative is not the application before the Court, and any proposal at the front of the subject hotel would raise heritage issues. The only real issue with putting the smokers' areas at the rear is potential noise nuisance, and the evidence showed no unacceptable impacts. 57 Mr Reid agreed the smokers' areas are wholly within the Zone 3 Business area, not on the zone boundary. He agreed his report exaggerated in saying No. 48 would be 1.1m from 40 persons on the 2nd floor terrace when the reality would be with a masonry wall and noise attenuation measures between them. He agreed that the acoustic evidence showed no problem and a trial period would test that. He agreed he is not an expert on smoke drift from the proposals to the dwellings. 58 Mr Reid maintained his recommended refusal due to the precedent effect of other premises wanting the same thing, and it would lead to a reduction of residential amenity in the Zone 10 area. He did not know if the closed section of Bourke St outside the hotel is Council land or not. If it is not then the Roads Act applies and it could not be leased for smokers, only for a footpath restaurant. He wanted a trial period for both smokers' areas, and no eating or drinking or furniture in them at all. 59 Mr Lidis said each application has to be dealt with on its merits, and disregard precedent. On Mr Reid's proposal for the Oxford St and Taylor Sq frontages he said the open air space requirements for a smokers' area would mean you cannot recess it into the heritage façade as you would have to widen existing window openings and take out the windows all together. Otherwise the smokers' area could only be very small and not practical. He agreed that a rule of "no food or drink or furniture" in the smokers' areas would reduce the time anyone spent in there, and would encourage the smokers to go back inside to their companions. This would lower the potential noise from the proposals. Conclusions 60 In considering the evidence and the submissions, it is the subject proposals before me, not some alternative on the main street frontages. 61 On No. 48 Little Oxford St, it seems to me that the dwelling has been known to Sydney Council for a least 9 years, and possibly to South Sydney Council before that. Whether formally approved or not, it is likely to remain. In those circumstances it is in the applicant's interest to install the maximum noise attenuation measures to protect itself from complaints to both the Council and the LAB regarding noise after midnight. 62 The acoustic evidence, with the additional provision of Mr Atkins that there be no food, drink or seating in the smokers' areas after midnight, is agreed by those two experts. Any likely noise will not cause nuisance to dwellings, and given some supervision by hotel management of boisterous or argumentative behaviour of patrons in the smokers' areas, the nearby residents should hear nothing. 63 In Exhibit C, Mr Cooper's Report 38.4626.R5.ZSC he indicated the additional noise reduction could be achieved with translucent plexiglass, polycarbonate, or glass blocks extensions of the smokers' areas walls. Exhibit 17 changed that and the changes include absorption panels in the walls of both areas. Draft Condition 20 of both appeals requires construction as in acoustic reports that Exhibit 17 supercedes. Condition 20 was never updated to reflect Exhibit 17. 64 In regard to smoke drift, there was no expert evidence called, and I can make no determinative decision on that factor alone. It seems to me that No. 48 has air-conditioning, and the heavy glass in its windows would indicate they are not opened, otherwise the existing noise reduction qualities would have no effect. No. 200 has its nearest windows 16 metres away from the closest point of the 2nd storey terrace. Combined with all the other odours from exhaust equipment in the hotel and other premises adjoining and nearby, there must be difficulty in detecting cigarette smoke from the subject sources. 65 In any case the applicant is prepared to accept a trial period for the 2nd storey terrace, and risk any trial approval not being extended. I agree with the respondent that the whole consent for the terrace should be on trial not just the midnight to 7 am period. The terrace trial is appropriate due to its proximity to the flat in No. 48 and the number of persons (40) it is intended to hold. The ground floor Courtyard being for a maximum of 6 persons must have so little impact, I agree that it does not need a trial period. 66 The planners were asked to consider the draft conditions in Exhibits O and N and forward them to the Court, hopefully agreed. They agreed except for Condition 4(d) on no seating in the terrace; and on Condition 18 noise standards and periods and Condition 20 in regard to the attenuation measures. 67 In respect of them I conclude it is appropriate to impose no seating in either the terrace, and none in the Courtyard between midnight and 7 am and no food or drink at any time. Also I feel that the appropriate noise emission criteria is the applicants draft Condition 18 - Noise Licensed Premises that minimizes noise between midnight and 7 am versus the respondents period of 10 pm to 7 am. In regard to Condition 20, I defer issuing orders until the parties confer on a suitable rewording to reflect Exhibit 17 items 5-9. 68 With these amendments to the conditions, I see no reason sufficient to refuse either application. Since they have been filed as separate applications, I shall issue separate Orders and Conditions in chambers when new Condition 20 is received. 69 Directions: 1. The parties are to confer on draft Condition 20 in both Appeal 11275 of 2007 and Appeal 11276 of 2007 and reword it to reflect Exhibit 17 items 5-9. 2. The new wording to be filed at Court within 7 days hereof. 3. Leave is granted to restore to the List on 2 days notice. 4. The exhibits are returned to the parties except Exhibits 1, 2, 12, 17, 20, 21, D, E, F, L, O & N. K. G. Hoffman Commissioner of the Court 17/06/2008 - Title Coversheet plus formatting errors - Paragraph(s) Paras 1-69 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.