Base Backpackers Pty Limited v Sydney City Council - [2014] NSWLEC 1249

Land and Environment Court

New South Wales

Medium Neutral Citation: Base Backpackers Pty Limited v Sydney City Council [2014] NSWLEC 1249
Decision date: 02 December 2014
Jurisdiction: Class 1
Before: Morris C
Decision: Appeal upheld
Catchwords: Modification of consent, trial period for hours of operation of hotel
Legislation Cited: Sydney Local Environmental Plan 2012
Cases Cited: Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124
Texts Cited: Sydney Development Control Plan 2012
Category: Principal judgment
Parties: Base Backpackers Pty Limited (Applicant)
Sydney City Council (Respondent)
Representation: Ms S Duggan SC (Applicant)
Mr P Clay SC (Respondent)
Mr Lloyd Harris
Back Shwartz Vaughan Solicitors (Applicant)
Ms Emma Fleming
Sydney City Council (Respondent)

File Number(s): 10808 of 2014

Judgment

The Scary Canary has operated as a hotel in Kent Street, Sydney since 2007 and originally as a restaurant and bar from 2005. The development consents issued by Sydney City Council (council) have included conditions of consent that limit the core trading hours from 12 noon until midnight seven days per week. Various trial periods have allowed trading until 3am, the most recent being a modification approved by the council that expired on 22 December 2013 however a grace period allowed continued trading. The hotel reverted to midnight closure on 13 October 2014.

An application for a further extension of the opening hours from 12 noon until 3am was lodged in the form of a modification application to the council and seeks an extension to the trial period for five years allowing trading from 12 noon until 3am the following day, seven days per week. The council refused to modify the consent (D2007/308) to allow the extended hours and the applicant is appealing that decision.

The site and its context

The site is known as No 469-477 Kent Street, Sydney and comprises Lot C in DP435519. It is situated on the western side of Kent Street between Druitt Street and Druitt Lane. A right-of-way servicing St Andrews Cathedral Senior School is located to the rear of the site accessed off Druitt Street. A four storey commercial building is contained on the site with a five storey building (plus 2 habitable basement levels) adjoining immediately to the south (No 477-481 Kent St). The combined buildings are currently occupied as backpacker accommodation for 478 persons. The Scary Canary Hotel is located on the ground floor of the northern building and has direct internal access to the backpacker lobby and common area.

Town Hall House is immediately opposite and to the east of the site with the Town Hall Railway Station accessed from within that building.

The locality comprises a range of retail, commercial and educational buildings including St Andrews Cathedral Junior and Senior Schools. The nearest residential building is on the corner of Druitt Lane and Sussex Street, to the south-west of the site.

Background and the proposal

In 2005 the council granted development consent to use what is now the hotel as a restaurant and bar. That consent included limitations on the hours of operation and provided for a 5 year trial period for trading until 3am.

On 17 May, 2007, development consent D/2007/308 was granted to change the use of the ground floor tenancy 'Scary Canary' to a pub with public entertainment and extended hours of operation. The trading hours for the premises are between 12noon and 12 midnight 7 days per week, with an initial 1 year trial period for extended trading until 3am the following day 7 days per week.

The consent includes a condition that limits the number of persons permitted within the premises to 340.

The consent was modified on a number of occasions, in 2008 in relation to the Place of Public Entertainment (POPE) use (Modification A), in 2009 to delete a condition that required patrons to order a meal with alcohol (condition 32) (Mod B) and in 2011 to allow for the continuation of the extended trading hours for a further 2 year trial period and delete the POPE provisions to reflect legislative changes (Mod C).

The applicant lodged an application under s96(2) of the Environmental Planning and Assessment Act 1979 (EP&AAct) on 14 November 2013 seeking to amend Mod C by varying the following conditions of consent:

(a) Condition 3(b) - Hours of Operation

(b) Condition 4 - Plan of Management

(c) Condition 7(a)(iii) and (f) Surveillance Cameras

(d) Condition 8(b), (c), (d), (g) and (h) - Security Personnel.

The council refused the application on 22 September 2014 and the applicant is appealing that decision. The applicant now seeks modification of conditions 3(b) and 4 only.

Condition 3 details the approved hours of operation and reads as follows, having regard to the wording of the consent as per Mod C:

(3) HOURS OF OPERATION

The hours of operation are regulated as follows:

(a) The hours of operation must be restricted to between 12.00 noon and 12.00 midnight, 7 days per week.

(b) Notwithstanding (a) above, the use may operate between 12.00 midnight and 3.00 am, 7 days per week for a trial period expiring on 22 December 2013.

(c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial 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.

The modification application seeks to vary condition 3(b) so as to allow the premises to continue to trade at the extended trial hours until 3am for a further 5 year trial period. It also seeks to modify condition 4 to ensure consistency between the development consent by referencing a new Plan of Management (POM).

The planning controls

The site is zoned B8 Metropolitan Centre under Sydney Local Environmental Plan 2012 (LEP). The objectives of that zone are:

To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy.
To provide opportunities for an intensity of land uses commensurate with Sydney's global status.
To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community.
To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.
To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

Sydney Development Control Plan 2012 (DCP) applies to the site and it is within the Sydney Square/Town Hall/St Andrews Special Character Area. Section 3 contains General Provisions and of particular relevance to the application is Section 3.15 - Late Night Trading. The introduction states:

The aim of the section is to assist in the management of the impacts of late night trading premises on the sites and neighbourhoods in which they are located, and to protect the amenity of existing residential properties.......

Late trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods. It is particularly important for proponents of 'high impact' late night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the application stage and throughout the history of the operation of the premises.

The objectives of the controls are to:

(a) Identify appropriate locations and trading hours for late night trading premises.

(b) Ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses.

(c) Ensure that a commitment is made by operators of late night trading premises to good management through the monitoring and implementation of robust plans of management.

(d) Encourage late night trading premises that contribute to vibrancy and vitality, as appropriate for a Global City.

(e) Encourage a broad mix of night time uses with broad community appeal that reﬂect the diverse entertainment and recreational needs of people who work and live in the City of Sydney as well as people who visit the City.

(f) Encourage a diversity of night-time activity in deﬁned areas.

(g) Prevent the proliferation of poorly managed high impact late night premises.

(h) Ensure that new late night trading premises do not reduce the diversity of retail services in an area.

(i) Ensure that applications are accompanied by sufﬁcient information so that proposals for late night trading premises can be fully and appropriately assessed.

(j) Provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods.

(k) Encourage premises with extended trading hours that are of a type that do not operate exclusively during late night hours and may be patronised both day and night.

(l) Ensure that appropriate hours are permitted for outdoor trading; and

(m) Ensure a consistent approach to the assessment of applications for premises seeking late night trading hours.

The premises is a Category A - High Impact Premises as defined in the DCP.

The matters for consideration are listed at s3.15.3 and s3.15.4 applies to trading hours and trial periods. The matters for consideration include:

(a) the location and context of the premises, including proximity to

residential and other sensitive land uses and other late night trading premises;

(b) the speciﬁc nature of the premises, that is a pub, nightclub, restaurant, or other similar premises and the proposed hours of operation;

(c) the existing hours of operation of surrounding business uses;

(d) the size and patron capacity of the premises;

(e) the impact of the premises on the mix, diversity and possible

concentration of late night uses in the locality;

(f) the likely operation of the proposal during day time hours;

(g) submission of a plan of management that demonstrates a strong commitment to good management of the operation of the business, particularly in relation to managing potential impacts on adjoining and surrounding land uses and premises, as well as the public domain;

(h) the diversity of retail services within an area and the impact of a late night trading proposal on this diversity;

(i) measures to be used for ensuring adequate safety, security and crime prevention both on the site of the premises and in the public domain immediately adjacent to, and generally surrounding, the premises; and

(j) the accessibility and frequency of public transport during late night trading hours.

Clause 3.15.4 is in the following form:

Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premise and its impacts on neighbourhood amenity. These trial periods allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management.

(1) Base and extended hours that apply to particular late night trading areas are identified in Table 3.7 Late night trading hours.

(2) Any extended hours that are beyond base hours will be subject to a trial period.

(3) Extended trading hours beyond base hours may be permitted at the initial application stage, but only where the Council has determined that the premises have been or will be well managed, including compliance with a Plan of Management.

(4) At the completion of a trial period a new application must be lodged to either renew existing trial hours or to seek an extension of trading hours.

(5) Premises seeking extended trading hours may be permitted up to two additional operating hours per trial period if a previous trial period is considered by the Council to have been satisfactory.

(6) Trial periods may be permitted up to the following durations:

(a) First trial - 1 year;

(b) Second trial - 2 years;

(c) Third and subsequent trials - 5 years.

(7) Once the full range of extended trading hours is reached an application must be lodged every 5 years to renew trading hours.

(8) Applications for a renewal or extension of trial trading hours should be lodged within 30 days of the expiry period and applicants will be allowed a period of 'grace' from the termination of the trial period until the new application has been determined. During this period, the premises may continue to trade during existing approved trial hours.

(9) If an application is not lodged within 30 days from the expiry of the trial period, then approved trading hours will revert to base trading hours.

(10) A renewal or extension of trading hours that are subject to a trial period may only be permitted if Council is satisfied that a late night trading premises has demonstrated good management performance and compliance with a plan of management, or premises management checklist, following the completion of a satisfactory trial period.

(11) If the Council determines that a trial period has been unsatisfactory then trading hours will revert to the base late night trading hours or whatever hours have been approved as the maximum trading hours prior to the commencement of this DCP. Council will consult with an applicant prior to making such a determination.

In accordance with Table 3.7 the base trading hours for a Category A premises are 7am to 11pm with extended hours to 5am for indoor areas.

Section 3.15.5.2 deals with monitoring and review of premises during trial periods and states:

At the termination of a trial period, applicants should consider changes in the nature of the operation that have occurred during the operation of a premises that have given rise to unforseen impacts on the amenity of the area or have been the basis for a substantiated complaint made to Council or the State licensing authority against the premises.

In reviewing a Plan of Management at the termination of a trial period, it will be necessary for this information. This should be in the form of a new Plan of Management which includes a statement of revisions of the previous Plan of Management, if any are required to accompany an application for a renewal or extension of trading hours so that Council can determine whether adequate steps have been taken to resolve any problems that may have arisen from the operation of the premises during a trial period.

The Council will undertake its own review of the level of compliance with the Plan of Management and whether the current operation has been successful on any application to extend a trial period or on any review. The matters considered by Council will include, but not be limited to:

(i) consideration of complaints to Council and the State licensing authority under the Liquor Act 2007;

(ii) an assessment of inspections by Council Officers during trial periods; and

(iii) consideration of Police complaints.

Since the grant of consent, the site has been included within the area that is subject to the State Government imposed 1.30am lockout. That has the effect of patrons being denied access to any premises after 1.30am where trading is permitted beyond that time. This includes patrons who have previously attended that premises and have left for any purpose, including smoking outside a venue that does not provide a separate smoking area within the bounds of its licensed area.

The issues

The contentions in the case are whether there has been a failure to display good management, there are any unacceptable amenity and safety impacts and whether the extension of the trial period would be in the public interest. It is the council's position that the trial period should not be extended and the hours of operation revert to a 12 midnight closure. The applicant maintains the trial period should be extended for a further 5 years however does accept that a further 12 month trial may be appropriate should the Court determine so as to allow assessment of the new matters included in an updated POM.

The evidence

The council provided expert evidence from Mr Liam Saville, the council's Licensed Premises Co-ordinator, Mr David Smith, its Late Night Compliance Officer, Ms Nadia Elbotaty, Town Planner and Constable Gyde from the Sydney City Local Area Command, Licensing Unit. Mr David Rippingill, a town planner provided expert evidence for the applicant. Mr Rippingill, Mr Saville, Mr Smith and Ms Elbotaty prepared a Joint Report, Exhibit 8. Constable Gyde's evidence included documents sourced from police files and submissions made by the Police to the council in respect to the extended hours sought through the application.

In addition, an affidavit of John Coady, Manager Investigations in the Compliance Branch of the NSW Office of Liquor Gaming and Racing (OLGR) was tendered (Exhibit 2). Attached to that affidavit are documents taken from the government Licensing System (liquor licence), Compliance Branch data base (list of Penalty and Compliance Notices issued to Scary Canary between 22 December 2011 and 22 December 2013) and OLGR file management system (correspondence in relation to matters under s102 of the Liquor Act 2007) in relation to the Scary Canary premises. Mr Coady was not required for cross examination.

An Affidavit of Kirsten Morrin, an employee of Sydney City Council was also tendered (Exhibit 9) and includes copies of incident reports relating to the Scary Canary and her summary of those incidents. Ms Morrin was not required for cross examination.

The NSW Police Service, Sydney City Licensing had opposed the extended hours in two letters to the council which form part of Exhibit 6. The Police seek the hours to revert to midnight closure and provide the following reasons for objection:

The premises is in the immediate vicinity of a place of worship and a school;
Police are of the opinion if the development application was granted it would not be in the public's best interest and would disturb the quiet and good order of the neighbourhood in which the premises are situated.
It would have an adverse effect upon police resources and the amenity of the neighbourhood.

In the event that the application is approved, suggested consent conditions and changes to be incorporated into the POM have been proposed by the Police.

Mr Rippingill had prepared an updated POM that reflects those changes and other issues that had been identified to assist in management of patrons whilst queuing to access the premises, roles for security guards in the vicinity of the premises, the introduction of identity scanners, the introduction of a computerised counter to control the number of patrons within the premises and other associated matters that reflect issues raised by the Police and Council. It is his evidence, that subject to the implementation of those measures, it is appropriate to allow the five year trial. The council required further amendments to the POM should the appeal be upheld and an agreed final version was filed with the Court on 28 November 2014.

Constable Gyde, in the annexure to her Statement of Evidence, Exhibit 6, included information obtained from the NSW Police Computerised Operational Policing System (COPS) in respect of the premise and its management since December 2011 and identified the following issues:

Loitering, Obstruction of Public Place footpath, Move on Directions issued;
Anti-social behaviour and Street Offences;
Assaults

A total of 61 incidents were identified from 31 December 2011 to 2 November 2014, 26 having been recorded within the trial period from 22 December 2011 to 22 December 2013. Those offences include assaults, offensive conduct, move on directions and behaviour relating to fail to quit incidents. There was much debate between the parties as to the seriousness of these incidents and whether the actions taken constitute good management and appropriate responsiveness. Similarly, it was agreed that all incidents would be linked to the Scary Canary due to the fact that the police records associate the incident with the last premises attended and that a significant period of time could elapse since a patron left the premises and the incident occurred.

A schedule of incident reports generated by the applicant was tendered as Exhibit D. That schedule identifies a total of 318 inspections carried out by officers of the council, OLGR or the Police during the period from 2 December 2011 to 2 October 2014 and notes that no issues were raised with management at the time of the "walk through" or other form of inspection.

Constable Gyde stated her concerns that management did not report assaults to police and that at times there were issues with intoxicated persons on the premises however conceded only one of the entries in the Licenced Premises Evidence Matrix dealt with intoxication within the premises. Whilst in her opinion, there were issues in relation to the responsible service of alcohol (RSA) within the premises, she confirmed that no RSA tickets had been issued and, that as a general policy, this does not occur within the City of Sydney, the preferred course of action is to deal with the licensee. There are no records of this having occurred in relation to the site. She estimated that she had attended the site around 40 times in the past three years and also driven past it on around another 20 times and had not issued any infringement notices or any other form of advice to management of the site. One "Fail to Quit" had been issued to a patron of the Scary Canary.

Most incidents that have been recorded result in the removal of persons from the site or have occurred outside the premises. Again, there was disagreement between the experts as to whether this constituted good management practices. Constable Gyde agreed that it was good practice to remove persons causing an incident from the site.

Mr Rippingill conceded that his assessment of the performance of management had been based on the fact that very few Penalty Infringement Notices (PINs) had been issued and this fact led to his conclusion that it was well managed. He agreed that there had been a failure to effectively implement the current POM.

Mr Smith and Mr Saville advised that it was the council's practice to work with management rather than issue PINs. They provided the Court with details of inspections made during the trial period and detailed areas of non-compliance, particularly in relation to queue management and crowd numbers. It is their opinion that the failure to successfully implement the provisions of the POM and comply with the conditions of consent demonstrates that there is an issue at the management level of the premises. Mr Saville says that the council does not have a 'heavy-handed' approach with licensed premises and tend to work with management rather than issue a fine for each and every infringement. The amount of infringements issued on a premises is not reflective of their level of compliance due to the co-operative approach taken by council in trying to get management to address and resolve issues.

All experts agreed that the current system of counting patrons had not worked and Mr Rippingill agreed that there was evidence when no counts had been taken. All agreed that an electronic system as proposed was likely to be more reliable than manually counting persons moving throughout the site.

In relation to the amendments proposed to be made to the POM, all experts agreed that, provided it was properly implemented at all times, the procedures were such that they would address the main issues of concern, those being queuing, patron numbers, role of security, management of footpath areas in the vicinity of the site and provision of additional CCTVs. Mr Smith and Mr Saville had made comments on further amendments that were required to address their concerns.

Ms Elbotaty had reviewed the council's inspection reports and correspondence issued to the applicant by the OLGR and concludes that the response of those who manage the premise has not been adequate in terms of reducing or mitigating the ongoing breaches identified during the trial period nor has it satisfactorily responded to management and operational issues and as such has consistently demonstrated poor management performance throughout the trial and grace periods. For that reason, she says the privilege of extended hours of operation should not be accorded to the premises until such time as the applicant can demonstrate the ability to display good management. Her particular concerns relate to overcrowding, uncontrolled queuing, alcohol related anti-social behaviour and inappropriate promotions.

Ms Elbotaty also considers the fact that the OLGR had issued correspondence under s102 of the Liquor Act 2007 demonstrated poor management as good management would not allow promotions of the type subject to the investigations to occur. She agreed that as soon as management was advised of the views of OLGR, it ceased the promotions and complied with the directions given.

In relation to the length of trial period, Mr Rippingill says that given the issues and the solutions proposed, it is warranted to reduce the length of the trial period from 5 years to 12 months so that the applicant can demonstrate that the proposed procedures will be effective, which he expects they will. Ms Elbotaty disagrees and says that reduced trial periods in the past have not been a significant deterrent to ensure management practices are improved and that such a reduction will not result in improved management and will only confer management's poor compliance culture.

The Council officers state that they have continued to work co-operatively with the premises to address issues of non-compliance, however management has not competently demonstrated good management. For that reason, they consider it would not be in the public interest to approve a further continuation of the trial period for premises that has shown ongoing disregard for their obligations.

Conclusion and findings

Having regard to the evidence, it is clear that the operation of the Scary Canary Hotel has not been without incident. Similarly, there is evidence that there have been breaches of both the conditions of consent, in relation to capacity of the venue and compliance with the POM. Having regard to this evidence with the DCP as a focal point of my consideration, it is necessary to determine whether any extension to the extended hours of operation should be granted. Whilst Brown C in Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124 considered the provisions of the council's 2007 development control plan, similar provisions have been incorporated into the 2012 DCP. In Hemmes the Commissioner considered the requirements of the DCP, what constitutes good management and formed a decision as to whether or not good management has been demonstrated. In addition, he looked at whether there were any adverse impacts, particularly to residential uses.

In assessing what is good management, at [71] he states:

....the test of good management includes how management responds at the time of the incident and how management responds through ongoing or revised management practices. Conversely, poor management may include a large number of unacceptable incidents or whether there was a consistent pattern of unacceptable incidents.

In this case, there are three main issues that have been identified through the evidence. They are the issue of overcrowding, the management of persons awaiting access to the premises and compliance with the POM.

It is apparent that the 340 person capacity of the premises has been breached on occasions however, the extent of that breach is unclear, as is the evidence in relation to the numbers of persons on site at the time of inspections. Similarly, there have been issues associated with the length of queue of persons seeking entry to the site. At other times, the premises were found to be operating in full compliance with the POM and consent conditions.

Based on the evidence, whilst there has been breaches of capacity and consent conditions, there has been a response from management, albeit, on occasions not immediately, for example, the removal of the cash collection booth from the footway. When advice was received from the OLGR regarding promotions, immediate cessation of those events occurred.

The Court notes that no complaints have been made to the Council, Police or OLGR during the trial period, other than one unsubstantiated complaint to the council. The school was notified of the application and did not lodge a submission. A letter of support from the owner of an adjoining convenience store for the extended trading hours and the associated security that provides was tendered as Exhibit B.

I am satisfied that the operation of the premises does not result in any adverse impacts on the amenity of residential or other sensitive land uses. The amenity issues raised by the council are primarily associated with the problems caused from the lack of an orderly queue management system and the difficulties that presents pedestrians attempting to pass the site. The applicant proposes to amend the POM to address this issue and also limit the length of the queue. Council officers agreed with the amendments proposed and advised that, if implemented, it would address their concerns.

In relation to the capacity of the venue being exceeded, the evidence shows that this has occurred on a number of occasions and that at times there was no count undertaken by staff responsible for ensuring compliance with the consent condition. The applicant now seeks to address this issue through the installation of a computerised counting system. The council officers have briefly reviewed documentation provided by the applicant and consider that it would be suitable if it delivers what the applicant says it will. To have a system that is more reliable than manual counting would be desirable and this has been agreed by all parties.

The DCP recognises the need for the POM to be a robust document and, whilst the initiative of management to address the issues identified by the council and police is linked to this application rather than ongoing review, I consider that it is appropriate to allow a 12 month trial period to assess whether it will address the issues of overcrowding and queue management.

Having regard to the evidence and the fact that the premises is a licensed premises that caters for up to 340 persons, I am satisfied that management has responded to issues when raised by the council and OLGR. I acknowledge the response to council's issues has not been consistent or timely on occasions and do not consider that management has been to a high standard, however, based on the evidence before me, I am not satisfied that there are a sufficient number of repeated and serious incidents arising from poor management that would justify not considering a further trial period for extended hours.

The police have asked to be called more regularly than occurs at the present time and the amended POM provides for this. I accept that it is Constable Gyde's view that the trial should not be extended however I consider that the changes that would be made through the amended POM have considerable merit and are worthy of a shorter trial period. Management of the 1.30am lockout is also a factor that needs to be considered during the trial period.

In the event that the changes proposed to the POM do not address the concerns of the council and police, or are not fully implemented by management, there would be no reason to provide a further extension of the trial period and the hours should revert to the base hours.

It is incumbent on management to continue to address issues associated with the POM and work with the council to address any issues that may arise. It needs to ensure that the POM is a robust document that addresses change. It is not appropriate to review the document at the end of a trial period and address concerns at that stage, rather, management should take the lead from the council officers who attempt to work with operators rather than go down the path of penalties. If something is not working then it needs to be discussed and to do so would demonstrate a commitment to good management.

The DCP also requires that one of the matters to be considered is that the premises do not operate exclusively during late night hours. I am satisfied that the premises provide facilities for workers during the day and attract a different clientele at night. To do so is consistent with the DCP. So too is the fact that the site is located in close proximity to Town Hall Railway Station and the Nightrider Bus Service.

For the reasons outlined above, I am not satisfied that management has demonstrated sufficient responsiveness to justify the 5 year extension sought however, I do see that there is merit in the changes that are proposed through to amendments made to the POM.

The council has reviewed that document with the final version filed with the Court on 28 November 2014. Accordingly, it is appropriate to allow a 12 month extension to the extended hour trial period. That trial should not commence until such time as the computerised counter and identity scanners are installed and the CCTV system is upgraded as described to the Court by Mr Rippingill. The applicant should advise the council when that work has been completed and the trial period would start when the council is satisfied that it is operational.

The Orders of the Court are:

(1) The appeal is upheld;

(2) Modification Application No D/2007/308/D to modify Development Consent No D/2007/308/C for the purposes of extending the hours of operation and amending the approved plan of management at 469 - 475 Kent Street, Sydney is determined by approving the modifications as set out in Annexure A;

(3) As a consequence of order (2), Development Consent No D/2007/308D is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and

(4) The exhibits are returned.

___________________

Sue Morris

Commissioner of the Court

Annexure A

CONDITIONS MODIFIED

(2) PLACE OF PUBLIC ENTERTAINMENT MAXIMUM CAPACITY

(a) The provision of entertainment within the premises is subject to a trial period expiring on 15 November 2011. A further application may be lodged before the expiration of the trial period for Council’s consideration.

(b) Where a licensed premises holds, or obtains, a Place of Public Entertainment approval, each specific area to which the approval refers must display, in a prominent position, a sign which states the number of persons approved under the POPE licence in letters a minimum 25mm in height on a contrasting background.

(a) The maximum capacity of the premises is 340 persons, including staff. The premises must not exceed this maximum capacity at any time.

(cb) The following sign, in letters not less than 25mm in height must be fixed alongside the Licensee’s name at the main entrance to the premises:-

Maximum Number of Persons Permitted
Ground Floor 340 persons

(d) All conditions of this consent, including specified works shall be complied with to the satisfaction of Council within a period not exceeding six months from the date of determination of this development consent.

If the terms of this condition are not complied with all public entertainment within the premise is to cease immediately and shall only recommence after the Place of Public Entertainment Consent has been issued (in accordance with Section 80A of the Environmental Planning and Assessment Act) by the Council of the City of Sydney.

(e) The applicant shall notify Council, in writing, prior to the commencement of the public entertainment use approved under this development consent. A Place of Public Entertainment Consent will then be issued (in accordance with Section 80A of the Environmental Planning and Assessment Act) by the Council of the City of Sydney after an inspection is conducted by Council officers to confirm compliance with the conditions of this consent.

(f) The period during which the use is approved to operate expires on 15 November 2011. The use must cease after that time. A further Section 96 application to extend the period of consent may be lodged, before the expiration date, for Council’s consideration of the continuation of the use.

NOTE: Council’s consideration of this further application will take into account the compliance of the use in terms of conditions of consent, number and nature of substantiated complaints regarding the operation of the premises and any views expressed by the NSW Police Service.

~~(g) Entertainment must not be conducted on the premises until:-~~

~~An inspection by Council officers confirms that each condition listed in your Development Consent has been completed satisfactorily.~~
~~The owner/applicant has complied with the requirements of condition 2. (e), of this consent and a “Place of Public Entertainment Consent” has been issued, identifying the relevant conditions.~~
~~This Place of Public Entertainment Consent must be displayed in a conspicuous position within the approved entertainment area at all times.~~

(h) The provisions of Schedule 3A for Places of Public Entertainment under Environmental Planning and Assessment (Temporary Structures and Places of Public Entertainment) Regulation 2007, attached to the Place of Public Entertainment Consent, shall be complied with at all times.

(i c) The approved signage indicating the capacity of the entertainment area(s) shall be maintained at all times.

(j d) The essential fire safety measures shall be maintained in accordance with clause 182 of the Environmental Planning and Assessment Regulation 2000.

(Amended 11 December 2008 – amendment A)

(Amended 22 December 2011 – Amendment C)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

COPIES OF APPROVALS AND MANAGEMENT PLANS

A full and current copy of the development consent for the operation of the licensed premises, and the Plan of Management ~~and the Place of Public Entertainment Consent~~ must be kept on-site and made available to Police or Council Officers immediately upon request.

(amended 11 December 2008 – amendment A)

(Amended 22 December 2011 – Amendment C)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

SURVEILLANCE CAMERAS

NOTE: Prior to compliance with the following CCTV conditions, the applicant must obtain written confirmation from the Local Area Command Police that they are satisfied with the following measures.

(a) CCTV surveillance cameras shall be strategically installed, operated and maintained throughout the premises with particular coverage to:

(i) principal entrance/s and exits

the all areas within the premise occupied by the public (excluding toilets)
the area within a 50m radius external to the public entrance(s) to the premise

(b) Suitable and clearly visible signage shall be displayed at the principal entrances to the premise, in lettering not less than 50mm in height with the words “Closed Circuit Television in use on these premises”. The same signage shall be attached in a prominent position on the bulkhead on each respective level of the premises.

(c) All CCTV recording equipment and cameras shall be of high grade digital quality capable of establishing the population and identification of patrons, offenders and incidents within the depth of field view of the cameras. In this respect each surveillance camera shall be capable of recording a minimum rate of 10 frames per second and at high resolution.

(d) CCTV recording discs or hard drive recordings shall be retained for 30 days before being re-used, destroyed or deleted. Time and date shall be auto recorded on the disc or hard drive. The CCTV recording equipment shall be capable of reproducing a CD copy of recorded footage on demand of Council or Police Officers either immediately or within 12 hours of the request being made. Copy discs must be handed to Council, Police Officer or Special Inspectors as required.

(e) All CCTV recording devices and cameras shall be operated 24 hours per day and 7 days per week or all trading hours and for at least 30 minutes after the closing time of the premises if it does not trade 24 hours per day.

(f) The CCTV recording device shall be secured within the premises and only be accessible to senior management

(g) All CCTV recording devices and cameras shall be checked daily to ensure the equipment is operating correctly. The Licensee shall record this daily checking activity in the security/incident register book. If it is discovered at any time that the equipment is not in full operating order all reasonable steps must be taken to repair the system as soon as practicable. Where the system will not be functioning in full operating order for a period of longer than 24 hours the manager/licensee is to notify the relevant Local Area Commander of the NSW Police.

(Amended 11 December 2008 – amendment A)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

SECURITY PERSONNEL

(a) The method of checking the number of persons ~~permitted in the public entertainment area~~ on the approved premises is by a ~~doorman~~ security officer employed specifically ~~at each level~~ to control entry and regulate the numbers to be in accordance with the licensed capacity and supplemented by a head count conducted by the Licensee. All additional measures for patron capacity management outlined in the plan of management are to be implemented at all times.

(b) Two uniformed licensed security officers to be employed at the main entrance/exit of the premises after 8.00pm every day ~~at all times when the premise is used as a Place of Public Entertainment.~~

(c) These security officers (referred to in (b)) are to remain at that entry/exit point until 30 minutes after closing even when the last patron has left the licensed premises and shall assist in the quiet and good order of the patrons leaving.

(d) In addition to the officers referred to in (a) and (b) above, licensed security officers ~~Licensing security personnel~~ are to be employed to patrol the licensed area and the immediate vicinity from 8.00 pm until 30 minutes after closing time or until the last patron has left the premises ~~on any night that entertainment is being provided~~. Security personnel are to be deployed at a minimum ratio of not less than 1 security per 100 patrons or part thereof.

(e) Whilst the security officer is deployed, all patrons entering the premises may be subject to a search by a hand held metal detector.

(f) All patrons waiting outside to enter the premise shall queue along the immediate frontage of the building and shall be maintained in a quiet and orderly manner by security officers. The queue shall not obstruct any fire exit or entrance to adjoining premises ~~and shall be a maximum length of 20 persons on the footway~~.

(g) Security officers shall move-on any intoxicated persons and persons drinking or behaving inappropriately, loitering or congregating in front of the premises on the footway or any adjoining area within 50 metres of the entrance to the premise, so as to maintain unobstructed pedestrian access and the social amenity of the area.

(h) All licensed security officers whilst employed at the premises are to wear fluorescent vests at all time with the word “SECURITY” clearly identifiable in bold print at least 100mm high, on the front and back of the vest. Security officers will wear identifying numbers that are at least 10cm square and located in a prominent position on their uniform so as to be easily visible to persons and on CCTV footage.

Management/security shall prevent patrons removing glasses, open cans, bottles or alcohol from the premises.

(j) A daily register is to be maintained containing the details of all security performing duties at the premises, including the name, licence number, start time, finish time, location at start of shift and identifying number for that date. The register is to be signed by each guard at the commencement and completion of their shift. The Register is to be made available for inspection by NSW Police, licensing inspector or Council officer immediately upon request.

(Amended 11 December 2008 – amendment A)

(Amended 22 December 2011 – Amendment C)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

**********

(3) HOURS OF OPERATION

The hours of operation are regulated as follows:

(a) The hours of operation must be restricted to between 12.00 noon and 12.00 midnight, 7 days per week.

(b) Notwithstanding (a) above, the use may operate between 12.00 midnight and 3.00 am, 7 days per week for a trial period expiring on 15 November 2011 22 December 2013 12 months from the date the council is satisfied that a computerised counting system, additional CCTVs and identity scanner are installed and operational.

(c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial 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.

(Amended 22 December 2011 - Amendment C)

(Amended Matter No. 10808 of 2014 - [2 December 2014)

PLAN OF MANAGEMENT

(a) The use must always be operated / managed in accordance with the ~~Draft Plan of Management, dated February 2007, Ref. 058392.POM 1~~ Plan of Management ~~(ref 068682.23P) (ref 068682.38P)~~ dated ~~December 2011~~ date November 2014, prepared by Design Collaborative and filed with the Land and Environment Court on 28 November 2014.

COPIES OF APPROVALS AND MANAGEMENT PLANS

A full and current copy of the development consent for the operation of the licensed premises, and the Plan of Management ~~and the Place of Public Entertainment Consent~~ must be kept on-site and made available to Police or Council Officers immediately upon request.

(amended 11 December 2008 – amendment A)

(Amended 22 December 2011 – Amendment C)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

SURVEILLANCE CAMERAS

NOTE: Prior to compliance with the following CCTV conditions, the applicant must obtain written confirmation from the Local Area Command Police that they are satisfied with the following measures.

(a) CCTV surveillance cameras shall be strategically installed, operated and maintained throughout the premises with particular coverage to:

(i) principal entrance/s and exits

the all areas within the premise occupied by the public (excluding toilets)
the area within a 50m radius external to the public entrance(s) to the premise

(b) Suitable and clearly visible signage shall be displayed at the principal entrances to the premise, in lettering not less than 50mm in height with the words “Closed Circuit Television in use on these premises”. The same signage shall be attached in a prominent position on the bulkhead on each respective level of the premises.

(c) All CCTV recording equipment and cameras shall be of high grade digital quality capable of establishing the population and identification of patrons, offenders and incidents within the depth of field view of the cameras. In this respect each surveillance camera shall be capable of recording a minimum rate of 10 frames per second and at high resolution.

(d) CCTV recording discs or hard drive recordings shall be retained for 30 days before being re-used, destroyed or deleted. Time and date shall be auto recorded on the disc or hard drive. The CCTV recording equipment shall be capable of reproducing a CD copy of recorded footage on demand of Council or Police Officers either immediately or within 12 hours of the request being made. Copy discs must be handed to Council, Police Officer or Special Inspectors as required.

(e) All CCTV recording devices and cameras shall be operated 24 hours per day and 7 days per week or all trading hours and for at least 30 minutes after the closing time of the premises if it does not trade 24 hours per day.

(f) The CCTV recording device shall be secured within the premises and only be accessible to senior management

(g) All CCTV recording devices and cameras shall be checked daily to ensure the equipment is operating correctly. The Licensee shall record this daily checking activity in the security/incident register book. If it is discovered at any time that the equipment is not in full operating order all reasonable steps must be taken to repair the system as soon as practicable. Where the system will not be functioning in full operating order for a period of longer than 24 hours the manager/licensee is to notify the relevant Local Area Commander of the NSW Police.

(Amended 11 December 2008 – amendment A)

(Amended Matter No. 10808 of 2014 – [2 December 2014)

SECURITY PERSONNEL