Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179

Land and Environment Court New South Wales

Medium Neutral Citation: Woolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179 Hearing dates: 26-28 June 2012 Decision date: 04 July 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: Directions for amended plans, Plan of Management and conditions Catchwords: DEVELOPMENT APPLICATION: rooftop addition to hotel, heritage item, heritage conservation area, impact on heritage significance, height and FSR breaches; acoustic impacts, operating hours. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA Category: Principal judgment Parties: Woolloomooloo Nominees Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Mr Philip Clay SC (Applicant) Mr Ian Hemmings (Barrister) (Respondent) Solicitors Gadens Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10183 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. D/2011/1709 (the application) by the Council of the City of Sydney (the Council) for a rooftop addition to an existing hotel, the Woolloomooloo Bay Hotel (the hotel), at 2 Bourke Street, Woolloomooloo (the site).

Issues 2Council's contentions in the matter can be summarised as: * The proposal will have an adverse impact on the heritage significance of the item, heritage items in the vicinity and the heritage conservation area; * The breaches of the height and floor space ratio (FSR) controls for the site result in a proposal that fails to meet the objectives for those controls; * The acoustic shield on the western side of the third floor terrace should be 2 metres high and not 1.4 m high as proposed; and * The proposed operating hours should be consistent with those permitted under the provisions of the City of Sydney Late Night Trading Premises Development Control Plan 2007. 3The contentions in relation to the conditions of consent are: * The proposed trading hours and whether a trial period should be imposed on the periods identified by the Council as 'extended hours' (conditions 5 and 6); * Whether security officers should be required to wear fluorescent vests, identifying them as security officers, while they are inside the premises (condition 15); * Whether a noise complaint, substantiated by a council officer, should result in the use of the area concerned ceasing operation until attenuation works are carried out or should be able to continue operating while further acoustical testing is undertaken and any recommendations implemented (condition 24).