Solotel Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1177

Land and Environment Court New South Wales

Medium Neutral Citation: Solotel Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1177 Hearing dates: 31 May 2011 Decision date: 01 June 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The parties are to file agreed conditions and a Plan of Management that reflect the findings of this judgment by 15 June 2011 and final orders will be issued in Chambers. Catchwords: APPEAL - application to modify condition of consent for use of first floor of an existing hotel. Extent of trading hours and length of trial period. Consistency with Development Control Plan Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Solotel Pty Ltd (Applicant)

Council of the City of Sydney (Respondent) Representation: Counsel Solicitors Bruce Stewart Dimarco (Applicant)

Council of the City of Sydney (Respondent) File Number(s): 10088 of 2011

Judgment 1This is an appeal against the in-part approval by the Council of the City of Sydney (the council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to amend development consent (D/2010/353) for the Green Park Hotel, 360 Victoria Street, Darlinghurst (the site).

The proposal and Background 2On 8 July 2010, council approved a development application for alterations to the first floor for a bar, lounge areas, internal terrace and use of the balcony. The s 96 application is seeking to modify condition 2 to amend the trading hours of the first floor to be consistent with those of the ground floor. The s 96 application also sought to amend condition 13 to increase the patron numbers of the ground floor consistent with a previous approval (D/2004/616). On 4 January 2011 council, under delegated authority, approved the amendment to condition 13 and refused the amendment to condition 2. 3Condition 2 as approved provides: (2) HOURS OF OPERATION - SENSITIVE USES The hours of operation are regulated as follows: (a) the hours of operation of the first floor internal areas must be restricted to between 10am and 10pm Mondays to Sundays. (b) Notwithstanding (a) above, the use of the first floor internal areas may operate between 10pm and 12 midnight for a trial period of 12 months from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours. (c) the hours of operation of the first floor terrace and balcony must be restricted between 10am and 8pm Mondays to Sundays. (d) Notwithstanding (c) above, the use of the first floor terrace and balcony may operate between 8pm and 10pm for a trial period of 12 months from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours. (e) A further application may be lodged to continue the trading hours outlined in (b) and (d) above before the end of the trial period. Council's consideration of a proposed continuation of the trial period will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police. 4The applicant is seeking to modify condition 2 to enable the use of the first floor until 2am, with a trial period of twenty-four months for the hours between 12 midnight and 2am. Mr Clay, for the applicant, submits that the applicant would prefer that the trial period restrict the maximum capacity of patrons of the hotel rather than the opening hours of the first floor i.e. the maximum number of patrons be 300 from 10pm to 2am, with a two year trial period of 370 patrons between these hours. 5The site, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Statement of Facts and Contentions in Reply filed by the council. 6The principal dispute between the parties is whether the proposal complies with the Late Night Trading Development Control Plan - Amendment No. 2 (the DCP).