Hemmes Trading Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1048

Land and Environment Court New South Wales

Medium Neutral Citation: Hemmes Trading Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1048 Hearing dates: 16, 17 February 2012 Decision date: 17 February 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: Development modification - licensed premises - outdoor smoking area - acoustic impact Legislation Cited: Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2005 Cases Cited: Icon Hospitality Group Pty Limited v Council of the City of Sydney [2010] NSWLEC 1186 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Hemmes Trading Pty Ltd (Applicant)

Council of the City of Sydney (Respondent) Representation: C McEwen SC with M Staunton (Applicant)

P Clay SC (Respondent) City of Sydney (Respondent) File Number(s): 10967 of 2011

EX TEMPORE Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by the respondent Council on 10 October 2011 of a review under s 96AB of the Act of the determination of an application made under s 96(2) of the Act to modify a development consent D/2008/341/A for the Slip Inn hotel. 2The Slip Inn is located at 107-109 Sussex Street, Sydney, on the north-west corner of Sussex and King Streets, and adjoins the Western Distributor. There are three street frontages, Sussex Street, Slip Street and King Street. The area is characterised by a mixture of building types and land uses including residential, serviced apartments, and commercial. The closest residential building is the Metro Serviced Apartment building which is located at 132 Sussex Street on the opposite side of Sussex Street. The building is approved for residential use, and 15 of the 42 units are owner-occupied. 3On the Sussex Street frontage of the hotel is the Slip Bar (otherwise referred to as the Ground Floor Bar), which has consent to trade until 2 am on Monday to Saturday and 10 pm on Sunday. At the basement level which fronts Slip Street is the Chinese Laundry Nightclub. The Chinese Laundry has consent to trade until 4 am on Friday and Saturday, midnight on Monday to Thursday and 10pm on Sunday. On the lower ground floor is the Sand Bar, and a courtyard which is the subject of these proceedings. The Sand Bar has consent to trade until 2 am Monday to Friday, 3 am Saturday and 10 pm Sunday. 4The history of development applications and development consents for the premises is set out in the Council's Statement of Facts and Contentions in Reply (exhibit 1). Development consent D/2008/341 was granted by the Council in 2008. Condition 5 of that consent requires the courtyard to cease operation at midnight Monday to Saturday and 10 pm Sunday. On 23 June 2011 the applicant applied under s 96(2) of the Act to modify the consent to permit the use of the courtyard by smokers from midnight to 2am Monday to Saturday. On 26 July 2011 the Council approved the modification application in part, and new conditions 5A, 5B, 15 and 16 were imposed on the development consent. On 10 August 2011 the applicant applied under s 96AB for review of that determination. On 10 October 2011 the Council determined to delete condition 15, but refused to delete or modify conditions 5A and 5B. 5Condition 5B as approved permits the use of the courtyard between the hours of midnight and 2 am Monday to Saturday on the following terms: 5B Amenity and Patron Numbers - Lower Ground Courtyard The use of the lower ground courtyard between the hours of midnight and 2 am Monday nights through to Saturday nights must be managed as follows: (a) An area extending 2 m from the Lounge Bar & Restaurant on the lower ground floor must be roped off at midnight; (b) This roped off area within the courtyard is to be used for smoking purposes only after midnight and in accordance with the approved hours of operation. After midnight no food or alcohol is to be consumed within this area. (c) This roped off area in the lower ground floor courtyard shall have a maximum of 30 persons using the area at any one time. (d) The doors leading from the bar/restaurant area to the outside roped off courtyard are to be kept closed during this period. (e) No furniture, such as chairs or tables, is to be provided within the roped off smokers area within the courtyard. (f) Music or entertainment must not be played in the roped off area within the lower courtyard. 6In these proceedings the applicant initially sought approval for the removal of the requirement for a roped off area, provision for alcohol to be consumed but not served in the courtyard, use by a maximum of 200 people, provision for furniture, and removal of the requirement that the doors leading from the bar/restaurant area to the courtyard be closed after midnight. 7The issues between the parties as identified in their respective Statements of Facts and Contentions related to the acoustic impacts of the operation of the courtyard after midnight, in particular the impact on the occupants of 132 Sussex Street; the amenity impacts of the use of the courtyard area by up to 200 people to 2 am; non-compliance with the identified hours in the City of Sydney Late Night Trading Premises Development Control Plan 2007 which seeks to manage impacts of late night trading premises on the sites and neighbourhoods in which they are located; patron amenity; and whether the proposed use is in the public interest. 8The proceedings were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 19 December 2011. On that occasion the Strata Manager and the Manager of Metro Inns gave evidence as to their concerns about the application. The parties were unable to reach agreement, and the conciliation conference was terminated. Notes of the evidence given onsite by objectors at the s 34 conference were tendered in the hearing. 9During the hearing the applicant was granted leave to amend the application to provide for use of the courtyard by a maximum of 100 people on Friday and Saturday in a roped off area of 60 square metres underneath the retractable awning; use by a maximum of 30 people on other nights in a smaller roped off area under the retractable awning; provision of some high bar tables and no chairs; a single access point to the area; and additional management protocols to encourage people to return inside after finishing their cigarettes, including an additional security guard on Friday and Saturday nights to patrol within the area.