Borg Architects Pty Limited v Council of the City of Sydney

[2009] NSWLEC 1305

Land and Environment Court

of New South Wales

CITATION:	Borg Architects Pty Limited v Council of the City of Sydney [2009] NSWLEC 1305
PARTIES:	APPLICANT Borg Architects Pty Limited RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10143 of 2009
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION :- Antisocial street behaviour Increase in patron numbers for nightclub
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997 City of Sydney Late Night Trading Premises Development Control Plan 2007
CASES CITED:	Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408
DATES OF HEARING:	25, 26 and 27 August; 7 September 2009
DATE OF JUDGMENT:	16 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P McEwen SC INSTRUCTED BY DLA Phillips Fox RESPONDENT Mr S Kondilios, solicitor Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

16 September 2009

09/10143 Borg Architects Pty Limited v Council of the City of Sydney

JUDGMENT

1 SENIOR COMMISSIONER: Oxford Square is a public space located at the corner of Burton, Riley and Oxford Streets in Sydney's inner east. The square is a small space set below the footpath level of Oxford Street – its primary frontage. Oxford Square is sufficiently below the level of the Oxford Street footpath as to require metal railings as necessary protective measures along the edge of the footpath. These railings, coupled with the metal balustrades of the two sets of stairs leading from Oxford Street into Oxford Square and the metal balustrades of the two sets of stairways along its Riley Street frontage, effectively enclose Oxford Square and make it a separated element of the public domain.

2 Fronting Oxford Square, on the northern side, is a group of buildings comprising a row of what were, originally, shopfronts erected in the 19th century. There are four of these frontages. Because of the fall of the land to the north, there is an extensive basement area under this group of buildings which basement is served, as well as by internal staircases, by a private laneway at the rear of the building. This laneway is owned by the premises immediately to the north and not only provides access to the basement of the buildings fronting Oxford Square; but also to the building to which its title is attached and to the basement area of a florist’s shop with a frontage to Oxford Street at the point where the western stairs from Oxford Street diverge into Oxford Square.

3 Of the four elements of these buildings fronting Oxford Square, at the ground level, there are, at present, two separate occupancies. For the level above, to which access is effected through a foyer and a staircase at the western end of this building adjacent to the florist’s shop described above, nothing is involved in these proceedings.

4 The occupancy at the Oxford Square level closest to Riley Street is currently used as a nightclub known as The Gaff. The Gaff is permitted to trade until 6 AM in the morning, seven days per week. The Gaff also operates as a restaurant until 10 PM. As part of The Gaff's restaurant trading activities, it has held, for some years, a licence from the Council of the City of Sydney (the council) to use part of the paved area in Oxford Square, 34 m² in total, as an outdoor dining area until 10 PM. A plan of Oxford Square showing its general layout and the licence area appears below.

5 Although this licence expired some months ago, the proprietors of The Gaff have continued to use the delineated portion of Oxford Square and to pay the agreed rent on it to the council.

6 Mr Baldacchino has been a proprietor of the premises since 2003. In 2006, Mr Zammit became his business partner. At that time, they made a conscious decision to change the marketing strategy of the premises. The cover charge was lowered and the target market was specifically identified as being a backpacker target market and the nightclub was renamed The Gaff. An example of promotional material for The Gaff was tendered by the council as an indication of the nature of the backpackers’ activities that are promoted, from time to time. It is reproduced below:

7 The Gaff is marketed by leaflets distributed through backpacker accommodation and the proprietors of The Gaff have a number of arrangements with backpacker accommodation venues to deliver the accommodation venues’ clients to The Gaff by bus.

8 Although Mr Baldacchino gave evidence on these matters, he did not know precisely how many such “bussing in” arrangements existed (as he said that he left those matters to Mr Zammit, who was responsible for marketing). Similarly, although Mr Baldacchino gave evidence that, to his knowledge, some arrangements were made for collection of those bussed in to return them to their accommodation; he similarly lacked detailed knowledge of these matters and, again, deferred to Mr Zammit. Mr Zammit did not give evidence in the proceedings but, in my view, for the reasons that follow, nothing turns on this.

The application

9 The two elements on the ground floor of the building fronting Oxford Square, located to the west of The Gaff had, until recently, operated has a medical centre. The basement area under this space has formed a part of The Gaff for some time, the period being irrelevant for the purpose of these proceedings. The present application seeks to merge this ground floor space to become part of The Gaff.

10 In doing so, the proprietors of The Gaff also seek changes in two specific aspects of the operation of The Gaff. The first is that they seek an increase in the present permitted maximum number of patrons from 447 to 529. Second, as part of the physical alterations to join the two spaces and merge the floor area of the former medical centre into The Gaff, they seek to create, in the space of the two elements of the building that formerly comprised the medical centre, an open area separated from Oxford Square by a glass balustrade with folding doors, so that this area can be used as a smokers’ terrace. This area would be isolated from the main area behind and be accessed by an airlock designed to prevent sounds from the nightclub escaping from the premises through the smokers’ terrace. This smokers’ terrace is proposed to be in the more western part of the Oxford Square frontage of the former medical centre.

11 In addition, the entrance to The Gaff is to be relocated from its present location in the eastern elements of the frontage to Oxford Square to a point in the more eastern of the two former medical centre elements. This entrance will also be constructed with an airlock designed to prevent sound leaving the premises. The present entrance to The Gaff has no such physical constraint on sound being emitted from the premises.

Amendments to the plans

12 The applicant foreshadowed a number of possible amendments to the plans, during the course of the hearing, in response to a number of issues raised by Ms Desgrand, the council's heritage expert. These possible amendments to the plans were, on the advice of the applicant’s heritage consultant, Mr Rappaport, to address matters had that had been raised by Ms Desgrand. If the plans were amended as foreshadowed, Mr Kondilios, solicitor for the council, indicated that the council would still oppose the proposed works as amended.

13 The acceptability or otherwise of the nature of the works is, at least for a significant part, independent of the security and antisocial behaviour issues raised by the council and accepted by me to the extent discussed below as the basis of why the application for an increase in the permitted patron numbers should be refused.

14 For reasons of efficiency, as dealing with the security and behaviour aspects of the case relating to patron numbers was likely to take the full hearing period originally allocated, the question of granting leave to amend was deferred. In part, this was because of my preliminary view, subject to further submissions by Mr McEwen SC, counsel for the applicant, as to why I ought adopt a contrary view, that the proposed amendments were not minor and, as a consequence, if leave were granted to amend the application to reflect the foreshadowed amendments, a costs order was mandatory pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 (the Act).

15 As a consequence, I indicated to the parties that I would stand over the question of amendment to the plans and deal first with the question of whether or not the approved number of patrons should be increased.

16 The applicant indicated that, even if I were to refuse the increase in patron numbers, it was likely that the applicant would still seek approval for the proposed works.

The proposed internal works

17 It is proposed to remove and rearrange the internal spaces of the ground floor of the building. A number of internal partition walls that had been erected for the purposes of operation of the western element of the premises as a medical centre have already been removed but, as the applicant did not undertake this removal, no issue arises with respect to that.

18 The applicant also proposes to remove a wall between the existing ground floor operational area of The Gaff and the former medical centre so that all the ground floor space, subject to the exclusion of smokers to the proposed smoking terrace and the creation of the airlocks for the entrance to the smoking terrace and the relocated primary entrance to the premises, would be available for use by patrons of The Gaff. In the interior of the western portion, it is also proposed to construct a small, enclosed lounge area to which, it is said, patrons will be able to remove themselves if they wished to seek a quiet space.

The site inspection

19 The proceedings commenced with a site inspection that involved in a walk-through of both levels of The Gaff; an inspection of the Oxford Square area and that portion of Oxford Street immediately to the west (to see the position of the florist’s shop mentioned earlier in this decision); a walk along Burton Street to Crown Street; and a walk down Riley Street, to the north, as far as Liverpool Street. The walk-through of the premises included walking along the private rear laneway attached to the adjacent building and entering the basement of The Gaff through doors from this laneway. In addition, at tables and chairs in the former medical centre, I heard informal evidence from a number of the resident objectors (discussed later). I was also shown a video of a fight that had recently taken place in Oxford Square late one evening.

20 Further video material was foreshadowed during this informal evidence and was subsequently tendered. Amongst other things, it depicted somebody apparently walking down the side of The Gaff, into the private laneway and urinating against a wall.

The written objections

21 Part of the material tendered by the council (in three volumes) comprises three types of written objection to the proposal. These comprise objections at the assessment phase of the original development application; objections at the s 82A review stage; and, finally, objections that have been lodged with the council in specific anticipation of these proceedings. I have carefully read all of these objections.

22 In general terms, the vast bulk of them (but not all of them) are not directed specifically to matters of antisocial street behaviour by patrons of and/or noise from The Gaff but deal with general levels of antisocial street behaviour in the neighbourhood.

23 The commentary about antisocial street behaviour is in two distinct strands relevant to my consideration in the proceedings. The first, dominant strand relates to general antisocial street behaviour of littering, fighting, glass smashing, street alcohol consumption, urination, defecation, copulation, vandalism and graffiti. These are complaints that, although many mention The Gaff, do not make specific complaints that can be attributed directly to patrons of The Gaff or, if they do make such complaints, make them with respect to noise and behaviours in the immediate vicinity of The Gaff or Oxford Square.

24 The second strand comprises a much smaller number of complaints, discussed in more detail later, relating to antisocial behaviour by persons specifically identified by the relevant complainant as patrons of The Gaff where the behaviour occurred at locations that are more than 50 m from The Gaff – a distance the importance of which is also discussed later in this decision.

A night view?

25 During the course of the hearing of the matter, but not on the final day when I heard closing submissions, Mr McEwen canvassed the possibility with me of me undertaking a late-night inspection on one of the busy operating nights of The Gaff – these being, as I understood it, Tuesday, Friday and Saturday. I indicated to him, for reasons that were mentioned at the time, although not extensively, that I was not, at that time, attracted to such a proposition. No formal application was made to me that such an inspection take place and, as a consequence, I gave no formal decision concerning such an application.

26 On Monday 7 September, I heard final submissions from the parties and reserved my decision. No mention, let alone any application, was made to me on that occasion of the applicant’s view of the desirability of a late-night inspection of the premises. The closing submissions proceeded in the conventional fashion with Mr McEwen making closing submissions for the applicant; Mr Kondilios, solicitor for the council, making closing submissions on behalf of his client; and with Mr McEwen then having the usual right of reply to matters raised by Mr Kondilios. I reserved my decision at that time.

27 Late on the afternoon of Monday 7 September, after the closing time of the Court’s Registry, solicitors for the applicant faxed a letter to the Court asking that I arrange for a further mention of the matter (with that request of being couched in terms that did not disclose the purpose why this was being sought). That letter came to my attention on Tuesday 8 September and I arranged a mention of the matter for 4 PM that afternoon.

28 At that time, Mr Drury, solicitor for the applicant, indicated it was the applicant’s position that the fact that Mr McEwen had not canvassed, on 7 September, anything to do with a late-night site inspection should not be taken as the applicant having abandoned that request. At that time, no Notice of Motion had been filed by the applicant seeking leave to re-open the proceedings or to make any other pplication to me of any nature. During the course of that mention, I indicated to Mr Drury that, if this was to be pursued, I required the matter to be dealt with by way of a Notice of Motion together with the relevant supporting documents. I also indicated that, prima facie, I considered it appropriate that the applicant pay the council's costs of the Tuesday afternoon attendance before me and the costs of the council attending for the purposes of my hearing and determining any Notice of Motion seeking to have me conduct a further site inspection of the nature foreshadowed on behalf of the applicant.

29 I directed that any Notice of Motion, supporting affidavit and documentation concerning the applicant's attitude to costs should be filed by the close of business on Wednesday 9 September. Mr Kondilios agreed to accept short service on behalf of the council and I indicated that I would request the Acting Registrar to confirm an order for short service, by consent, with any such Notice of Motion to be made returnable before me at 8:30 AM on Friday 11 September.

30 Early on the afternoon of Wednesday 9 September, I received a letter from Mr Drury indicating that the applicant did not wish to pursue seeking a late-night inspection of the premises and its surrounding area.

31 For completeness, I note that, during the course of the discussion during the mention on 8 September, Mr Kondilios made the concession on behalf of the council, which he indicated he was going to repeat during the course of the hearing on any Notice of Motion, that the council was prepared to have me determine the matter on the basis that, from the date of the commencement of the hearing until the date of my delivery of a reserved decision, the premises were operating and would be operated in an exemplary fashion and on the assumption that there would be no adverse impacts on any of those residing in the area delineated by the council’s witnesses contained in the plan appearing after (62) as indicating the travel paths for and areas immediately influenced by patrons of The Gaff.

32 Although Mr Kondilios made the concession on behalf of the council concerning the basis upon which I should make an assumption, based on his concession, concerning the conduct of the premises and management of patrons of The Gaff, it will be clear from what follows in these reasons that the conclusion I have reached would not have been influenced, in any fashion, by the present management strategies adopted for The Gaff.

33 The disentitling conduct, that I have concluded would be made worse if the increase in numbers were to be permitted, is conduct that is, on the applicant's own security adviser’s evidence, outside its ability to control, mitigate or remedy. As a consequence, on this issue, at least, any nighttime view would have been entirely irrelevant to this conclusion.

34 The Act makes provision for me to consider the social impacts in a locality when undertaking a merit assessment pursuant to s 79C of the Act. The relevant words of the section are:

(1) Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) …
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

35 Obviously, in this context, there is a necessity to consider what comprises the locality for these purposes. This is discussed further later in this decision.

36 Prior to the absorption of South Sydney Council into the City of Sydney, Oxford Square was in the former South Sydney local government area and, as a consequence, the provisions of the South Sydney Local Environmental Plan 1998 (the South Sydney LEP), now administered by the council, continue to apply as do the provisions of the South Sydney Development Control Plan 1997 (the South Sydney DCP).

37 In addition, the council has developed the City of Sydney Late Night Trading Premises Development Control Plan 2007 (the Late Night Trading DCP) specifically for the purposes of regulating late-night trading in designated areas, including the area along Oxford Street and Oxford Square including The Gaff. The Late Night Trading DCP sets out, in cl 2.1, its main aim. It does so in the following terms:

The main aim of this DCP 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 in particular, protect the amenity of residential properties.

38 The relevant objectives of the Late Night Trading DCP, from cl 2.2, are:

(a) …………;
(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 implementation of robust plans of management;

39 Clause 2.4 of the Late Night Trading DCP categorises the premises as Category A premises - High Impact because The Gaff is:

An on-licence within the meaning of the Liquor Act 2007 where the primary business or activity carried out on the premises is that of a night-club with a capacity of more than 120 patrons

40 The Late Night Trading DCP applies, by cl 2.3, inter alia, to development applications for new and existing Category A premises that:

(a) ……..;
(b) currently trade between 10pm and 7am the following day, and seek refurbishment, additions or extensions that will result in an intensification of an existing use;

41 The Late Night Trading DCP, on my reading of it, has a primary focus on the regulation of trading hours for such premises and the assessment and approval process for alterations to such trading hours. The Late Night Trading DCP says:

The provisions of this DCP do not set out to curb or increase potential trading hours in a blanket fashion throughout the City, but allow opportunities for late night trading hours in appropriate locations and with appropriate management actions.

As a requirement of this DCP it is particularly important for proponents of ‘high impact’ night trading premises to demonstrate responsible management over time. This commitment should be demonstrated both at the development application stage and throughout the history of the operation of premises.

42 It is fair to say, however, that the Late Night Trading DCP is also significantly concerned about protecting sensitive land uses, such as residential land uses, from the impact of antisocial behaviour by patrons of such late-night entertainment venues.

43 As to the emphasis I should give to the Late Night Trading DCP and to the South Sydney DCP (discussed later), Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

44 On other hand, if a proposal does not meet the development control plan’s requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act.

45 Mr Chambers, the applicant’s town planner, said, in his expert report, that:

Residents, workers and visitors may each have different expectations for improving the amenity of the Oxford Street commercial strip. None would be likely to deny that the amenity is influenced by the entertainment role which the strip fulfils. For visitors, some workers and even some residents, a better equipped, more spacious and functionally more effective Gaff nightclub may well contribute for them and improved amenity. For those who are concerned that their amenity will be adversely affected, there are comprehensive and effective management mechanisms proposed to minimise potentially negative amenity impacts. It does not necessarily follow that the proposal will worsen what some consider significant amenity impacts. Through the provision of better facilities for patrons in the implementation of more effective management strategies, the applicant's name is to make the situation better, not worse.

Inevitably, some amenity impacts will arise from time to time. The role of the security management plan is to minimise their frequency, duration and extent.

46 As noted below, question of whether or not there will be any additional impact caused by the proposed increase in patron numbers on the present levels of unacceptable antisocial facility in the locality or whether the applicant’s proposed security management plan will prevent such impacts is the fundamental issue at this stage of these proceedings.

47 The zone objectives for Zone 3 – the Business Zone under the South Sydney LEP contain a number of objectives. Two of these are dealt with, in combination, by Mr Chambers in his expert report. These are objectives (a) “ to encourage suitable types of mixes of business activities including retail, commercial, professional and entertainment-related land uses that increase employment opportunities and contribute towards the economic and social vitality of the area” and (c) “ to improve the amenity and accessibility of commercial strips and centres from residents, workers and visitors in those areas”

48 With respect to the interaction of these two objectives, Mr Chambers said:

Objective (a) encourages a mix of business activities including “ entertainment-related land uses ” [my emphasis] that contribute to the “economic and social vitality of the area”. This is not to say that one objective takes precedence over another but rather, that there needs to be a balanced assessment of the proposal against all of the objectives of the Business zone. In the subject case, it boils down to the implementation of an effective Security Management Plan to ensure that this particular entertainment-related land use can be carried out as proposed with minimal impact on the area.

49 However, in the context of activity, as later discussed, where there is not already more than a “minimal impact on the area” from the totality of the entertainment-related land uses in the locality but where there is an unacceptable impact from such activities, in my view the question that arises is not that discussed by Mr Chambers but is whether the proposed activity is going to cause any increase in those already unacceptable levels of antisocial impacts.

50 Also relevant are a number of provisions in Part D of the South Sydney DCP. They reinforce the conclusion set out in the immediately preceding paragraph – of particular relevance is the second of the performance criteria that specifically requires the avoidance of exacerbation of existing negative social impacts. These provisions of this DCP are the following terms:

6. Cumulative Impacts and Trade-Offs

Objectives

• To manage cumulative impacts arising from development activity and implement strategies to avoid or minimise these.
• To identify negative social impacts of development proposals and develop avoidance, minimisation or mitigation measures to address these.
• To maximise the benefits of development proposals to the local community.
Performance criteria
• Development takes into account cumulative impacts of past development activity and does not exacerbate existing negative social impacts or issues.
• Development identifies and responds to opportunities to benefit the local community and provides measures to mitigate against negative impacts.

51 Mr Chambers evidence with respect to the first of these was:

As will be seen from the above objectives, the thrust of Council policies to “manage” impacts and implement strategies to avoid or minimise these. This is precisely what the Applicant seeks to do with the new Security Management Plan.

The Applicant as much as the Council does not want to see negative impacts either perpetuated or compounded. The Applicant sees this as an opportunity for the premises to offer better facilities for patrons, an improved operational environment, and will implement the Security Management Plan to result in a better outcome overall.

52 In my view, Mr Chambers does not adequately reflect the objective of the performance criteria to ensure that the development “does not exacerbate existing negative social impacts” – a matter to which I will return in later analysis.

53 Having set out this material as a background to my analysis of the fundamental issues, it is necessary to consider the extent to which the applicant's Security Management Plan prevents any increase in unacceptable antisocial behaviour in the locality.

Plans of management

54 It has been long accepted, in dealing with applications of this nature, whether through a council development assessment process or through proceedings in the Court, that plans of management have a significant role to play in minimising and attempting to eliminate adverse social impacts in a local community from the activities of licensed premises including late night entertainment related venues such as The Gaff.

55 This is recognised by the provisions of the Late Night Trading DCP that, at 2.9 Plans of Management, deals with the desirability of (and planning necessity for) preparation of proper functional plans of management. It says so in the following terms:

Where the Council is of the opinion that proposals for late night premises have the potential to impact adversely on amenity and neighbourhood safety, applicants are required to prepare Plans of Management that include verifiable data and actions.

Plans of Management are to include information about the operational and contextual aspects of a premises (eg. locality description, security numbers, noise emission, trading hours etc.) as well as details about what actions will be taken to ensure that premises will be responsibly managed (eg. crowd control procedures, noise minimisation, waste management etc.).

This will ensure that proponents of late night trading premises have considered and addressed any potential impacts that may arise from their operation during late night hours, as well enabling the Council to effectively assess any impacts of a proposal. It is the responsibility of the licensee to facilitate a well run and managed premises and display sensitivity about the impact of the premises on the liveability of neighbourhoods.

56 It is pertinent to note, in this context, that these provisions appear primarily drafted to deal with the potentiality of such adverse impacts. In the present context, as analysed later in this decision, there is already a significant and unacceptable level of antisocial behaviour in the locality although this antisocial behaviour is not to be entirely attributed (and probably not dominantly attributable) to patrons of The Gaff.

57 The Gaff currently has a plan of management. Those giving evidence (both for the council and for the applicant) agreed that the current plan is significantly inadequate.

58 The applicant has commissioned Mr Askew, a security management expert, to prepare a new plan of management to be applied to the operations of The Gaff. Mr Baldacchino gave evidence that he has already commenced the implementation of a number of aspects of this plan of management and intended to continue doing so into the future.

59 The new plan of management, it was agreed by the council's witnesses, Sgt Mort, the NSW Police Service’s Licensing Supervisor for the area, and Mr Vincent, the council’s Senior Building Surveyor, Health and Building, was a significant improvement on the present plan of management. It was Sgt Mort’s evidence that he expected the implementation of this plan of management would lead to some improvement in the difficulties that have been experienced by the police and the local community with noise and other aspects of antisocial behaviour. However, it was his evidence that he expected that these benefits would be confined to an area of a 50 m radius from the premises. The extent of the benefit, that is that it would be obtained within a 50 m radius of the premises, was consistent with Mr Askew’s security evidence. It was also Mr Askew’s evidence that the extent of the sphere of influence that The Gaff's security guards would be able to exercise would be confined to a 50 m radius from the premises.

60 As a consequence, given this evidence and the further evidence of Sgt Mort that he considered patrolling by security officers employed by The Gaff, if going beyond a 50 m radius from The Gaff, potentially exposed of those security officers to unacceptable dangers (at least if patrolling unaccompanied), leads me to accept, as an agreed proposition, that the implementation of the new plan of management would provide benefits to the local community but that the extent of such benefits would be confined to that 50 m sphere of influence around The Gaff and Oxford Square.

61 As a consequence, The Gaff cannot rely on its proposed improved security plan of management to eliminate any increment in antisocial behaviour by its patrons beyond the area of this sphere of influence.

Influences beyond the 50 m

62 As earlier noted, I heard evidence from a number of residents from the vicinity of The Gaff during the course of the site inspection. They ranged from a number of residents who lived within the 50 m sphere of influence of The Gaff’s security personnel under the new proposed plan of management and those resident significantly beyond that point. A map prepared by Sgt Mort and Mr Quinn, the council’s planner, that set out the areas of pedestrian paths that they considered were the regular travel directions of patrons coming to or going from The Gaff. A copy of that map appears below:

63 Is clear from this map that the locality of the sphere of influence of The Gaff extends, into the streets to the north, north-east and east well beyond the 50 m sphere of influence able to be the subject of The Gaff’s security management personnel.

64 I did not understand that the accuracy and appropriateness of this plan was questioned by the evidence of any of the applicant's witnesses. If I be wrong on this point, I am satisfied that the evidence discussed below factually demonstrates that unacceptable antisocial street behaviour is presently occurring by people who are specifically attracted to attending The Gaff or who are patrons departing from The Gaff and who are doing so through the network of streets set out in this map beyond the immediate locality of Oxford Square and The Gaff.

65 During the course of the on-site evidence taken informally, Mr Kondilios also specifically requested those giving informal oral evidence to confine their comments, to the extent that they were able to do so, to behaviour that they specifically attributed to patrons of or their activities or the noise emanating from The Gaff. Although he made this request, some of that informal evidence was still general in nature.

66 In addition to the resident evidence given during the course of the site inspection, the council has also tendered a large number of written objections from a wider range of people than those who gave oral evidence in the proceedings. These objections generally dealt with antisocial behaviour, of a variety of types, including such behaviours at some distance from The Gaff.

67 Two of the objectors who gave oral evidence during the course of the site inspection, are residents in the vicinity of the mid-block street closure in Riley Street to the north of Liverpool Street. The location of their houses is significantly beyond any 50 m sphere of influence and, in general terms, is likely to be somewhat beyond a 100 m radius from the premises. One of these residents also provided an extract from a diary kept by his wife which diary dealt with the occasions when their sleep had been disturbed as a result of passers by making noises during the night.

68 In the diary, although it there are a number of incidents noted, the only one which can specifically be regarded as arising from a patron of The Gaff occurred on Saturday, 8 August 2009 when the incident is described as being “shouted mobile phone directions to The Gaff”. Although this is not ascribed a specific hour of the evening, I note that the handwritten annotation on this diary extract, and as tendered, is in the following terms:

Excerpts from household diary showing nights of sleep deprivation (14 nights out of 32) attributed to noise made by Gaff clientele

69 As a consequence, whilst I do not have a specific time of the night for this impact, I accept that it occurred at an inappropriate time of the night and also caused an unacceptable impact on the rest of the residents of these premises.

70 The tendered material included summarised notes of the oral evidence from these two residents. That from one of them that may be specifically attributed to patrons of The Gaff is in the following terms:

I hear people from The Gaff. ‘Lots [sic] go to The Gaff. ‘I've been to The Gaff.’
He confronts people outside. I went out 4-5 weeks ago where several young males were urinating and swearing – it was 2.30 in the morning. They say “we can go to The Gaff whenever we want.’ Smashing bottles and urinating

71 The second of these witnesses gave evidence concerning noise outside his premises. The note of this evidence of specifically relevant to The Gaff was:

He hears ‘we've just come from The Gaff’. ‘Where is The Gaff?’ ‘The Gaff is up there.’

72 It was the evidence of this second that he is no longer able to sleep in the main bedroom of his house but has been sleeping upstairs, in a secondary bedroom located behind the masonry parapet of his dwelling in order to cut down the noise at night. He also gave evidence in the following terms:

He has tried to talk to the people but they are tourists and don't care.

He feels intimidated from the patrons.

73 Another resident who lives close to The Gaff gave evidence concerning what she understood to be the alienation of Oxford Square by the use of The Gaff's barriers. She gave evidence that at 1, 2 and 3 AM in the morning people singing loudly and chanting and anthems. She has had her apartment soundproofed and sleeps with earplugs.

74 A resident some distance to the east (but probably within 50 m) of the nightclub says that he has heard patrons of the premises singing and that such singing has come from the courtyard area (that is from Oxford Square), after 10 PM. Although notes show that he did assert that patrons of The Gaff made this noise, I acknowledge that I cannot be certain that those making this noise were such patrons.

75 A further resident who lives in the vicinity of The Gaff, slightly to the north along Riley Street, gave evidence that he hears groups of men singing chants and that, at 3 AM, he gets woken by screams and yelling outside his building. He acknowledged that he could not be certain that those making this noise were patrons of The Gaff.

76 With regard to those objections that are of a general nature and do not, in any individually satisfactory sense, identify behaviour that could be attributed, specifically, to patrons of The Gaff, these merely demonstrate that there is a consistent and widespread level of unacceptable antisocial behaviour in the locality during late evenings and night hours.

77 This background level of such behaviour, however, is relevant as establishing that there is presently an unacceptable level of antisocial street behaviour in this locality. The consequence, as there is already an unacceptable level of such behaviour, is that any increase in the level of such behaviour is also unacceptable.

78 Finally, concerning the written objections, I have taken two further steps in my consideration of them. First I have ignored, in their entirety, those few submissions that were anonymous as I have no way of ensuring that they are not duplications of other submissions that were made attributably. Second, I have endeavoured to ensure, as best I am able, that those objections related specifically to behaviours of patrons of The Gaff at locations outside a distance of 50 m from The Gaff were not duplicated submissions. That is, when the same person had made the same or similar objection at more than one stage of the objection gathering process undertaken, quite properly, by the council for the three steps of the consideration process noted earlier, I have considered that as a single identifiable objection from that person rather than as multiple instances of objection.

Acceptability of the increase in numbers

79 There is no doubt that the activities of The Gaff are permissible at its location under the planning controls of the council. Those planning controls, as discussed earlier, are designed, inter alia, to recognise that, not only at the location on Oxford Street where The Gaff is located at Oxford Square, but more generally along the Oxford Street strip, there is an entertainment precinct the activities of which run throughout the night. However, the council's planning controls, contained in its Late Night Trading DCP, also acknowledge that there are sensitive residential land uses in the vicinity and seek to import assessment considerations that takes account of and seeks to protect the amenity of the nearby residents. The South Sydney DCP also makes it clear that increases in already unacceptable impacts are not to be approved.

80 It is in that context that both the operation of The Gaff and the behavioural impacts of its patrons’ antisocial behaviour (to the extent that such behaviour can be segregated and specifically identified within the more general pattern of antisocial patron behaviour emanating from the Oxford Street strip) is to be analysed in my assessment of the impact of any increase in patron numbers permitted for The Gaff. As a consequence, I need to determine whether or not there would, in fact, be such an impact, its nature and its spread.

81 In addition, as a potential counterpoint to this, within the framework of the planning controls, I must also consider the extent to which management practices of the proprietors of The Gaff can ameliorate or eliminate those impacts, if they arise, on the occupants of the nearby residential area.

82 It is also, in this context, reasonable to consider at what distance I might regard behaviours of identified the patrons of The Gaff as being conduct for which the proprietors of The Gaff should be held responsible.

83 I do not consider, for example, that the proprietors of The Gaff should be responsible for the behaviour of backpackers whilst embarking on buses conveying them to The Gaff; during their trips to and from The Gaff on such buses; nor, on any return journey, at their point of disembarkation. However, to the extent that there is identifiable behaviour of patrons of The Gaff in the streets immediately in the vicinity of The Gaff, as identified on the map reproduced earlier, I do consider that The Gaff can be appropriately regarded as responsible, in a causal sense, for such behaviour whether it be on the way to or the way from the premises.

84 On the way to The Gaff, some of the putative patrons proclaim the fact that they are going there and do so with a loudness and eagerness that causes those who do not need to be aware of this fact to be made so aware in no uncertain and rest disturbing terms.

85 On the way from The Gaff, some of the no longer putative but actual patrons, at the very least, behave in a loud and rest disturbing fashion.

86 I also have one uncontradicted instance in evidence of street urination by such putative or (more likely) actual patron [at (70) above].

87 Set out below is a table containing the folio references to the written objections that I am satisfied relate specifically to intending patrons or departing patrons of The Gaff. I have not given names or addresses for each of these people, as it is not necessary to do so because this information is available from the evidence available to the parties to the proceedings.

88 However, as earlier noted, some of these comments came from the same person in more than one objection. Whilst the comments are repeated and enable a better understanding of that person's objections, the table makes it clear, by compartmentalising the evidence by witness number and giving source references to a folio number in the council's tender bundle or to the page of the notes of oral testimony given to the cause of the site inspection. A letter N precedes references to a page of the notes of the oral testimony and a letter F precedes references to a page of the tender bundle.

Witness	Reference
W1	N7, F527
W2	F534, F578, F596
W3	N5

89 In addition, there is other evidence in the letters of objection in the council’s tender bundle of the nature of singing anthems and football songs for their favourite club as evidence of behaviours by patrons of The Gaff both within the premises and departing from the premises.

90 Although there are only three witnesses who have given, through written and/or oral evidence that I accept as incontrovertible, evidence of antisocial behaviour that can specifically be attributed to patrons of The Gaff, I also consider that it is reasonable, given the very high level of uncontradicted evidence about unacceptable antisocial behaviour in the locality that an unquantifiable amount of that, in addition to the specifics earlier cited, must inevitably come from patrons of the Gaff.

Use of Oxford Square as an extension of The Gaff

91 Mr Baldacchino, during the course of his evidence, indicated that, although the licence to use Oxford Square (to the extent of the plan reproduced earlier) expired some months ago, he had continued to use Oxford Square, within the dimensions space permitted by the former licence, as an adjunct to the restaurant activities associated with The Gaff. He indicated that he had continued to pay rent to the council for this period since the expiry of the licence and that the council had not refused the rent nor had required him to cease operation in this area of Oxford Square for restaurant activities prior to 10 o'clock.

92 However, also, during the course of his evidence, he described the late night/early morning hours use by The Gaff of portions of Oxford Square, barricaded off by The Gaff’s security barriers used to delineate the formerly licensed restaurant use area, for smokers coming from The Gaff and seeking to return to it. He indicated that this activity was undertaken at the request of the police in order that The Gaff’s security could exercise some control over the patrons of The Gaff outside the premises. Sgt Mort was not asked about any such request on my recollection.

93 This use is clearly not permitted by any past or present permission, of any form, from the council, as there has been, on the evidence, no permission for any use by patrons of The Gaff of any of the area in Oxford Square after 10 PM. Indeed, there is a specific condition in the present relevant development consent that requires the security staff of The Gaff to move people on in Oxford Square in order to prevent congregation and unacceptable behaviour by those gathering in Oxford Square – whether they are patrons of The Gaff or not. Indeed, it is, as I understand it, accepted that those gathering in Oxford Square are not exclusively and may not, dominantly, be patrons of The Gaff but The Gaff’s security has a responsibility to maintain passage across the face of the building.

94 During the course of his evidence, Mr Baldacchino made it clear that he intended to continue using Oxford Square, at least in some fashion, during the early hours of the morning by using the portable barricades generally marking the dining area used earlier in the evening. He intended to continue this use, as I understood it, for the purposes of segregating patrons of The Gaff who went outside whether for the purposes of smoking or merely obtaining some fresh air. This segregation was to give The Gaff's security staff some management of those patrons and to separate them from other persons who were simply congregating in Oxford Square.

95 The total effect of his evidence, that of Sgt Mort and of the local residents about the consumption of alcohol in containers such as bottles and cans (which, I accept, are no longer sold by The Gaff to its patrons) together with the nature of the space at Oxford Square is that it provides an attractive late night/early morning hours area so that people congregate there, being attracted there as Sgt Mort described it – “like bees to a honeypot”.

96 During the course the hearing, I drew Mr McEwen's attention to a passage from the decision of Preston CJ in City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763. Although a different type of proceeding – it being an application for an order to prevent the particular operation of a brothel rather than dealing with issues of development consent – I asked Mr McEwen to consider the approach taken by Preston CJ to the brothel in paras (75) and (76) of the decision and to address the question of whether, with relevant changes, they were equally applicable in the present circumstances concerning the impact of The Gaff. The relevant paragraphs of this decision are in the following terms:

75 Fifthly, the characteristics of the brothel operated by De Cue in this location have caused and are inherently likely to cause incidents that disturb the neighbourhood and interfere with the amenity of the neighbourhood. These characteristics include the type of brothel operated by De Cue, its established client base with its propensity for group activities and track record of engaging in incidents revealing a complete disregard for the rules and mores of a civilized and considerate society, the numbers of clients and the absence of any off-street parking. The neighbourhood in which the brothel is operated is one characterised by proximate and sensitive residential and school land uses. This combination of a brothel with characteristics likely to cause a nuisance and a sensitive neighbourhood is inherently likely to cause on-going disturbances in and interferences with the amenity of the neighbourhood.

76 Having regard to these matters, there is no likelihood that the plan of management will be any more effective in the future in controlling the incidents that cause disturbance in and interference with the amenity of the neighbourhood.

Conduct of the operators of The Gaff

97 It is long settled that I am obliged to assume that a person given the benefit of a development consent will abide by any conditions that attach to it. This is because a development consent is not in personam, it is in rem – that is it runs with the land.

98 However, as discussed by Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408, I am entitled to have regard to past conduct for limited purposes. Those purposes are confined to the question of whether or not the terms of a development consent will actually operate, effectively, to control behaviour that is otherwise unacceptable. In this instance, I am able to reach a conclusion as to whether or not the new plan of management would have the effect of improving the behaviour of the patrons of The Gaff in the vicinity of Oxford Square (that is within the 50 m sphere of influence discussed by the witnesses). I consider it likely that that behaviour would be improved although whether or not it would be acceptable is, in my view, not necessary to be determined at this stage given the conclusion that I have reached concerning the unacceptability of behaviour by patrons of The Gaff outside this sphere of influence.

99 Had the question of behaviour within the sphere of influence been the only issue, it is possible that some trial at an increased numerical level would have been considered. However, I have not turned my mind to whether or not such a position would be appropriate because I am satisfied that the behaviour of patrons of The Gaff outside that sphere of influence is unacceptable and would be made worse if patron numbers were increased.

Behaviour outside the 50 m sphere of influence

100 The unacceptable behaviours outside of the sphere of security influence of The Gaff is as discussed earlier and, it is reasonable to assume includes singing and/or chanting, loud conversations, coupled with various inappropriate and antisocial physical acts in public places or in people's front setbacks.

101 If this level of antisocial behaviour in the locality is, at present, unacceptable (as I accept it is – whether caused by patrons of the Gaff or more generally), it is, in my view, inevitable that that behaviour will not be diminished if there is an increase of some 25% in the number of permitted patrons for The Gaff. Indeed, logic dictates that it is inherently probable - indeed inevitable – that such an increase will also lead to some increase in such behaviour (of no matter what dimension).

102 It is not necessary that I quantify the extent of the increase – merely that there is sufficient probability that there will be an increase of some unquantified nature and that this will also be an increase of some unqualified (but inevitably unacceptable) nature thus rendering it inappropriate to permit any increase in patron numbers. Such a position is on all fours with the approach of the two DCPs discussed earlier.

103 It is clear from the evidence that there is already an existing range of unacceptable antisocial behaviour, well outside any possible sphere of influence of any plan of management for The Gaff, inflicted on residents in the locality. It is also clear, from the evidence, that not all (nor, indeed, a majority) of that conduct can be directly attributable to putative or actual patrons of The Gaff.

104 However, equally, there is no possible basis for denial of the uncontradicted and unchallenged evidence of the residents that there is already an existing level of unacceptable behaviour caused by persons who are putative or actual patrons of The Gaff and who, in their conduct, identified themselves specifically as such. This limited but identifiable antisocial behaviour, although not specifically across the full range of such antisocial behaviours, is clearly by persons who specifically identify themselves as going to be or having been patrons of The Gaff. This small group, in itself, provides evidence of antisocial behaviour causing a level of impact on the amenity of surrounding residents – which conduct is unacceptable.

105 Further, I am satisfied on the nature of the evidence about chanting and singing behaviour of patrons of The Gaff that it is reasonable to assume that some, if not all, of those who indulge in such noisy antisocial behaviour in the early hours of the morning outside the sphere of influence of the security personnel of The Gaff are persons who have been patrons of The Gaff. Whilst there is no basis upon which it would be reasonable to conclude that all or even any dominant element of such behaviour was caused by such patrons of The Gaff, it would seem to me to defy belief to assume that none of them were such patrons. However, whether or not there is any addition to the level of antisocial behaviour from such imputed patrons, there can be no doubt that there is, already, an unacceptable impact on residents outside any rational sphere of influence provided by security personnel from The Gaff (whether operating under the old plan of management and/or the new plan of management – a plan that is universally accepted, on the evidence, to be an improvement on the old).

106 If there is already an unacceptable impact on the amenity of residents in the locality outside any rational area of influence of the management of The Gaff, it would require a decision maker of considerable gullibility or incredulity to be prepared to accept that a 25% increase in the number of permitted patrons would not lead, inevitably and irresistibly, to the conclusion that there would be at least some increase, no matter how small it might be, in the level of antisocial behaviour that would be visited on those already unacceptably impacted by such behaviour. It therefore follows that, to plagiarise and adapt the words of Preston CJ earlier quoted in this decision in a different context:

The characteristics of the nightclub operated as The Gaff in this location have caused and are inherently likely to cause incidents that disturb the neighbourhood and interfere with the amenity of the neighbourhood. These characteristics include the type of nightclub operated as The Gaff , its established client base with its propensity for group activities and track record of engaging in incidents revealing a complete disregard for the rules and mores of a civilized and considerate society, the numbers of clients [ irrelevant - and the absence of any off-street parking ]. The neighbourhood in which The Gaff is operated is one characterised by proximate and sensitive residential [ irrelevant - and school ] land uses. This combination of The Gaff with characteristics likely to cause a nuisance and a sensitive neighbourhood is inherently likely to cause on-going disturbances in and interferences with the amenity of the neighbourhood.

Having regard to these matters, there is no likelihood that the plan of management will be any more effective in the future in controlling the incidents that cause disturbance in and interference with the amenity of the neighbourhood beyond 50 m from The Gaff .

107 As a consequence that element of the application for an increase in patron numbers must be refused.

Conclusion

108 As a consequence of what I have set out above, I have concluded that the element of the application that seeks an increase in the permitted number of patrons for The Gaff could not be granted.

109 However, having so concluded, that conclusion that does not inevitably lead to a subsequent conclusion that the other elements of the application relating to works to the premises must fail.

110 Although my rejection of any increase of patron numbers is based on the inevitability of antisocial behaviour outside the sphere of influence of management of The Gaff, that does not include any benefits of improved management within the sphere of influence of The Gaff being a relevant matter for consideration in my assessment of the building works element in the application.

111 The question of whether or not enabling the expansion of The Gaff into the adjacent space formerly occupied by the medical centre should be allowed is a matter that requires further consideration in light of both heritage issues and patron management issues in the context of the proposed new plan of management (including having regard to what has been described by the witnesses as the likely improvements in patron management within the immediate sphere of influence of The Gaff).

112 Indeed, in my assessment of that element of the application, I would be prepared to hear the parties, afresh, should the applicant wish to make a proper application for a night-time inspection. I do not, however, in making that comment, express any pre-judgement on how I would determine such application (as that would depend on matters put to me and my discussion with the representatives of the parties at the time of any such application).

Future conduct of the proceedings

113 The parties are, therefore, directed to approach the Acting Registrar, prior to the close of business on Tuesday 22 September, to seek a date for a further one-day hearing before me - not later than the end of October. If the applicant wishes to make application for a late-night viewing of the premises as part of my assessment of the residual issues in these proceedings, a Notice of Motion to seek such an inspection should be filed by the close of business on Tuesday 22 September. I will arrange for the Acting Registrar to shorten the period for service and have the matter set down for a hearing before me at 9.00 AM on Thursday 24 September.

114 I also indicate that, should such a Notice of Motion be filed, I would not require any undertaking as to costs to be given with respect to it as it would relate, in my view, to matters legitimately alive in the second phase of these proceedings. Whether or not the council would wish to make some application for costs, elsewhere, obviously, would be a matter for the council itself to consider.

115 In the meantime, as the exhibits may remain relevant for the next stage of the proceedings, they will be retained.

116 To ensure that the Court retains proper control of the proceedings, the listing before me at 9.00 AM on Thursday 24 September (by which time I would expect parties to have obtained a hearing date for the second phase of the proceedings) will also deal with any necessary procedural matters leading up to the further hearing.

117 Although Mr McEwen's instructions during the course of the hearing were that the applicant did wish to proceed with that element of the proposal that involves expansion of the premises even if the application for increased patron numbers were to be unsuccessful, it is appropriate that I afford to the applicant the opportunity to consider that matter further in light of this decision. To permit this to occur, I propose to give the applicant a week to consider the matter. If, within that period of time, the applicant does not approach the Acting Registrar, as directed, seeking a further one-day for hearing of heritage evidence and making submissions concerning the proposed alterations, the hearing on Thursday 24 September will be vacated and the orders of the Court will be:

1. The appeal is dismissed;
2. Development Application No: D/2008/00057 for an increase in patron numbers at the nightclub known as The Gaff together with the expansion of the operational premises of The Gaff into the adjacent premises to the west (accompanied by alterations and additions to those premises and to the present premises) at Oxford Square, Surry Hills is determined by the refusal of development consent; and
3. The exhibits are returned.

118 However, if a further hearing date for hearing of heritage evidence and making submissions concerning the premises’ expansion element is obtained, no orders will be made until after that aspect of the application has been heard and determined.

Tim Moore
Senior Commissioner