Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247

Land and Environment Court New South Wales

Medium Neutral Citation: Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Hearing dates: 29, 30 October 2014 Decision date: 28 November 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [68]-[71] Catchwords: DEVELOPMENT APPEAL - Conditions - Hotel - Smoking terrace - Hours of operation - Acoustic impacts - Plan of Management Legislation Cited: Environmental Planning and Assessment Act 1979 Smoke Free Environment Act 2000 Sydney Local Environmental Plan 2012 Cases Cited: George Thomas Hotels v Council of the City of Sydney [2009] NSWLEC 1080 PGH Environmental Planning v Wollongong City Council [2009] NSWLEC 1385 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 Zhang v Canterbury Council (2000) 115 LGERA 373 Category: Principal judgment Parties: Amazonia Hotels Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Mr C McEwen SC (Applicant) Mr A Pickles (Respondent) Mr P Jackson, Pikes and Verekers Lawyers (Applicant) Ms K Morrin, City of Sydney (Respondent) File Number(s): 10567 of 2014

Judgment 1Amazonia Hotels Pty Ltd (Amazonia) appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against conditions imposed on a development consent D/2013/1638 granted by the respondent Council on 2 July 2014 for alterations to the Empire Hotel, 32-32A Darlinghurst Road Potts Point, to create a smoking terrace. 2The Empire Hotel (the hotel) is located on the north eastern corner of the intersection of Darlinghurst Road and Roslyn Street, Potts Point. The building addresses both streets with the front elevation curving to correspond with the shape of the street corner. The ground level has a partly open dry bar/terrace at the corner with a tiled wall and bi-fold windows above. The hotel has approval to operate 24 hours, 7 days a week on a permanent basis and has a maximum capacity of 920 patrons. Under prior development consents, detailed in Amazonia's Statement of Facts and Contentions (exhibit B), the existing bi-fold windows must be closed between midnight and 8.00am each day. Since February 2014 the hotel is subject to the Liquor Act liquor freeze which requires that there is no entry to the premises between 1.30am-5.00am each day and no alcohol is served on the premises between 3.00am-5.00am. 3The development application sought approval for the demolition of the existing bi-fold windows and dry bar, and the creation of a smoking area (the South Western Terrace) with new bi-fold doors and balustrade along the front façade at the corner, designed to comply with the Smoke Free Environment Act 2000. The development application sought approval to operate the terrace 7 days per week between 8.00am and 4.00am, with a maximum of 30 patrons permitted. 4The development consent was granted subject to two deferred commencement conditions in Sch 1, one requiring preparation of a Plan of Management to align with the approved restricted hours of operation of the terrace and the other relating to the provision of an air lock. The operative conditions in Sch 1A included condition 2: (2) Hours of Operation - Sensitive Uses The hours of operation are regulated as follows: (a)The indoor hours of operation of the new terrace is 24 hours, Mondays to Sundays inclusive, subject to the following: (b)The bi-fold doors of the new smoking terrace along the Darlinghurst Road frontage and Roslyn Street frontages may be open between 8.00am and 12.00 midnight, Monday to Sunday inclusive. All of the bi-fold doors of the smoking terrace must be closed shut between 12.00 midnight and 8.00am, Mondays to Sundays inclusive. (c)Notwithstanding (b) above the bi-fold doors may be open between 12.00 midnight and 1.00am, Monday to Sunday inclusive for a trial period of 1 year from the date of the deferred commencement conditions of this consent have been satisfied by Council. (d)A further application may be lodged to continue the hours outlined in (c) above before the end of the trial period. Council's consideration of the proposed continuation and/or extension of the hours permitted by the trial will be based upon, amongst 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. 5In this appeal Amazonia seeks to have condition 2(b)-(d) deleted. Amazonia contends (exhibit B) that the conditions are unreasonable in the circumstances of the case, based on a number of factors including that an acoustic report demonstrates compliance with the relevant criteria prescribed by the Protection of the Environment Operations Act 1997, the EPA Noise Guide for Local Government, and the Office of Liquor Gaming and Racing Liquor Administration Board's requirements; NSW Police have raised no objection; management is not aware of any breaches of noise controls confirmed by Council or NSW Police since taking ownership of the premises in 2013; the development application provides an opportunity to adopt a more detailed and prescriptive Plan of Management than that currently applicable, and to provide a controlled environment with CCTV coverage; and that the proposal satisfies the objectives and standards imposed by the applicable planning controls. 6The central issue in this appeal is the potential acoustic impacts of operation of the smoking terrace after midnight. Amazonia is seeking approval to operate the smoking terrace until 4.00am, and would accept a trial period of one year. The Council contends that the opening of the bi-fold doors after 1.00am is likely to have an adverse impact on the amenity of the residents in the neighbourhood, and that the proposal is not consistent with aims (c) and (h) of cl 1.2 of the Sydney Local Environmental Plan 2012 or the Late Night Trading Management requirements of the Sydney Development Control Plan 2012.