Cirillo v Council of the City of Sydney

[2018] NSWLEC 1018

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cirillo v Council of the City of Sydney [2018] NSWLEC 1018
Hearing dates:	5, 6 June and 12 October 2017
Date of orders:	25 January 2018
Decision date:	19 January 2018
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	Directions at paragraph [156]
Catchwords:	DEVELOPMENT APPLICATION – actual refusal – restricted premises – change of use of premises from night club to striptease club – social impact of development particularly on LGBTIQ community – attraction of criminal element – characteristics of patrons of striptease clubs – risk of event does not make it likely - Plan of Management – trial period - hours of operation – weight to be given to DCP
Legislation Cited:	Environmental Planning and Assessment Act 1979 Liquor Act 2007 Sydney Development Control Plan 2012 Sydney Local Environmental Plan 2012
Cases Cited:	Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72] New Century Developments Pty Ltd v Baulkham Hills Shire Council 127 LGERA 303 at [62] – [63] Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 at [54] So v Council of the City of Sydney [2017] NSWLEC 128 Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373
Texts Cited:	Erickson and Tewksbury (2000) “The gentlemen in the club: A typology of strip club patrons”, Deviant Behaviour, Vol 21, No 3, pp 271-293 Hanna (2005) “Exotic Dance as Adult Entertainment: A Guide for Planners and Policy Makers”, Journal of Planning Literature 20(2) 116-34. Queensland Crime and Misconduct Commission (2004) Regulating Adult Entertainment: A Review of the Live Adult Entertainment Industry in Queensland
Category:	Principal judgment
Parties:	Giovanni Cirillo (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Mr P Clay SC (days 1 and 2); and Mr M Seymour (day 3) (Respondent)   Solicitors: Sylvester & Browne Lawyers (Applicant) Sydney City Council (Respondent)
File Number(s):	2016/375440
Publication restriction:	No

Judgment

1. This appeal concerns the refusal of DA D/2016/810 for 37 – 41 Oxford Street, Surry Hills (the Site) by the City of Sydney Council (the Council) on 10 November 2016 (the Application). That DA sought approval for the use of the ground, mezzanine and first floor levels of premises currently operating as a restaurant/nightclub as a Restricted Premises for a Strip Club, and associated internal alterations works.

2. The primary issues in dispute between the parties relate to the change in use and its impact on the neighbourhood, particularly the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and the application to operate for a trial period either ending at 2 am (says the Council) or 3 am (seeks the Applicant).

The Site

3. The Site is irregular in shape and 449m² in area, and is located on the south-west side of Oxford Street, between Brisbane Street and Pelican Street. It is occupied by a three storey building with a ground floor café and bar/nightclub on the upper levels known as “Slide Lounge”. Commercial (entertainment, retail, food and drink) and residential land uses surround it.

4. The Site is a local heritage item located within the Oxford Street Heritage conservation area. It is known as the “Former Commonwealth Bank” and is a three storey rendered brick building with bronze windows and doors and granite cladding framing the dominant two storey high entrance. Since 2005, after it received approval from the Court for its use as a cabaret lounge/nightclub, it has been used for that purpose, including installation of a mezzanine floor. It has a 400 person capacity and operates as a restaurant from 10 am until 5 pm and as a nightclub/restaurant from 5 pm until 4 am.

The Application

5. The Application seeks approval for a change of use to a Restricted Premises (strip club) which can accommodate a total of 300 patrons and 20 staff, comprising 248 patrons and 16 staff on the ground floor and 52 patrons and 4 staff on the mezzanine floor. The internal alterations pertain to works proposed to be carried out on the ground floor, mezzanine and first floor. The proposed operating hours are from midday to 3 am daily. The architectural plans the subject of the appeal are contained within Exhibit A.

6. Sex services are not to be provided. This is clear from the application and is reflected in the proposed Conditions of Consent, which state (at condition (3)) that sex services are not to be provided on the premises: Exhibit 9.

7. Under the Sydney Development Control Plan 2012 (Sydney DCP), a striptease club is defined (at 4.4.6) as premises

Providing striptease acts, erotic dancing (including pole dancing), tabletop, or podium performances, private dancing, peepshows, or nude or semi nude bar or waiting staff but where sex services do [not] take place on site.

8. While the definition drawn from the Sydney DCP does not include the word “not” in the last line, I have read the definition as excluding the provision of sex services, to be consistent with other relevant definitions and planning controls.

9. Mr Cirillo, the named Applicant in these proceedings, is the expert town planner engaged by the proposed operator for the purpose of seeking development consent for the proposed strip club. For the purposes of this judgment, to avoid confusion references will be made (where appropriate) to the Proposed Operator when otherwise reference might be made to the Applicant.

10. The Proposed Operator currently operates strip clubs called Pure Platinum (at 252 Pitt Street Sydney, since 1999) and Men’s Gallery (located at 92 Pitt Street Sydney since 1997). The Proposed Operator also operates the Dancers nightclub at Five Dock.

11. The Application was lodged with the Council on 15 June 2016. Following notification, 48 submissions were received, including 30 from the residents of Park Apartments at 18 – 32 Oxford Street to the Site’s north.

12. Following its standard assessment process, the Council refused the Application on 10 November 2016, and this appeal was lodged on 15 December 2016.

Statutory Controls

13. The primary planning instruments relevant to the proposal are the Sydney Local Environmental Plan 2012 (Sydney LEP) and the Sydney DCP. The proposed use is subject to a detailed suite of regulatory controls, which are set out in some detail below.

14. The Site is zoned B4 Mixed Use under the Sydney LEP, and the proposed use is defined as Restricted Premises, a nominated use permissible with consent. The objectives of the zone are:

• To provide a mixture of compatible land uses

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling

• To ensure uses support the viability of centres.

15. Across Oxford Street (where the Park Apartments are located, the home of many objectors) the zoning is B2 – Local Centre (Sydney LEP Land Zoning Map).

16. “Restricted Premises” is defined under the Sydney LEP as to mean

premises that, due to their nature, restrict access to patrons or customers over 18 years of age, and includes sex shops and similar premises, but does not include a pub, hotel or motel accommodation, home occupation (sex services) or sex services premises.

17. For the sake of completeness, “sex services” means sexual acts or sexual services in exchange for payment. “Sex services” is further defined in more detail in the Sydney DCP at 4.4-15. “Sex services premises” means a brothel, but does not include home occupation (sex services).

18. Section 1.1 of the Sydney DCP sets out its purpose as supplementing the Sydney LEP, being made in accordance with s 74C of the Environmental Planning and Assessment Act 1979 (EPA Act). Compliance with the DCP will not necessarily guarantee that consent will be granted, with each application to be assessed having regard to the Sydney LEP, the Sydney DCP and other matters listed in s 79C of the EPA Act. Variation from the DCP “must result in a better outcome and meet all objectives of the DCP… and the variation sought will not adversely impact on the local community”: Sydney DCP s.1.1.

19. “Sex Industry Premises and Adult Entertainment Premises” are covered by s. 4.4.6 of the Sydney DCP. The definition of “Adult entertainment premises” under the Sydney DCP (at 4.4.6) is premises that (a) provides entertainment involving nude or semi-nude performers, or (b) sells or shows restricted material but at which sex services or sexual activity between people does not occur. This definition is relevant, as the development application proposes nude or semi-nude performers on stage and in private booths, but sex services (sexual acts in exchange for payment) or sexual activity between people does not occur.

20. The objectives within that part of the Sydney DCP include the provision of criteria for the location, design and ongoing management of premises used for the purposes of adult entertainment and sex industry uses to:

1. address the health and safety of visitors and staff;

2. minimise adverse impacts that may be generated by the premises including traffic and noise; and

3. ensure high levels of internal and external amenity.

21. The location of adult entertainment premises is governed by section 4.4.6.1, and includes provisions inter alia preventing their location …directly opposite land developed for residential purposes (4.4.6.1(c)) or within a radius of 75 m of an existing, approved adult entertainment or sex industry premises as measured from the centre of the primary access to the proposed and existing premises: s. (4.4.6.1(d)).

22. The premises (both current and proposed) are a Category A – High Impact Premises as characterised by the Sydney DCP Late Night Trading Management at 3.15. This type of premises includes a premises for which is held an on-premises licence within the meaning of the Liquor Act 2007 where the primary business or activity is that of a nightclub with a capacity of more than 120 patrons.

23. Section 3.15.2 of the Sydney DCP is concerned with late night trading areas, and makes provision for base hours and extended hours. Under the Application, both base and extended hours are to apply. The Proposed Operator is seeking a trial period for extended hours for a year. The second trial period is proposed for two years, with the third for five years. (The Council does not object to the structure of the trial periods sought by the Proposed Operator.)

24. The framework to assist in making a decision when considering appropriate late night trading hours is set out at s. 3.15.3 and contains an inclusive list (which is, necessarily, not exhaustive). Factors to take into account include the location and context of the premises, including:

1. proximity to residential and other sensitive land uses and other late night trading premises;

2. the specific nature of the premises, such as a nightclub and the proposed hours of operation;

3. the size and patron capacity of the premises;

4. the impact of the premises on the mix, diversity and possible concentration of late night uses in the locality; and

5. 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.

25. Extended trading hours beyond base hours may be permitted at the initial application stage (which is sought with this Application), but only where the Council has determined that the premises have been or will be well managed, including compliance with a Plan of Management: s. 3.15.4(3).

26. Under s. 3.15.4, 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. 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: 3.15.4(5).

27. An extract from table 3.7: Late night trading hours, as it relates to the Site, appears below.

Table 3.7 Late night trading hours

Category A – High Impact Premises
Indoor Areas Trading Hours	Outdoor Areas Trading Hours
Late night management areas	Base Hours	6 am to 12 am	10 am to 10 pm
	Extended Hours	24 Hours	10 am to 1 am

Council’s Contentions

Contention 1

28. The subject site is not considered to be suitable for the location of the proposed “Restricted Premises” and the proposal does not comply with the Location of Premises provisions of Section 4.4.6 of the Sydney DCP 2012.

Contention 2

29. The proposed late night trading hours will adversely impact on the amenity of the residents in the locality.

Contention 3

30. The proposal does not provide sufficient safety measures for staff, performers and customers in accordance with the Sydney DCP 2012 section 4.4.6.

Contention 4

31. The proposed Plan of Management is deficient and is not adequately in accordance with section 4.4.6.6 of the Sydney DCP.

Contention 5

32. The proposal will have unacceptable and adverse social impacts on the area.

Contention 6

33. The proposal does not satisfy clause 6.21 of the Sydney LEP 2012 in regards to Design Excellence.

Contention 7

34. The proposal is not in the public interest: Statement of Facts and Contentions, Ex 1 at pp 15-19.

35. In the course of the hearing, contentions 3 and 4 fell away as agreement was reached with respect to the terms of the Plan of Management. This is discussed further below. Contention 6 was not further pursued by the Council and has no further part to play in the proceeding.

Site visit and objector evidence

36. I was assisted by a site visit which occurred on the first day of the hearing. At the site inspection, objector evidence was taken from Mr Sam Christodoulou (who also spoke on behalf of Ms Mary Christodoulou), and Ms Mary Walsh, Chairman of the Strata Committee of the Park Apartments opposite the Site. The Christodoulous own premises in Oxford Street which are tenanted to a clothing shop operator on the ground floor and a dressmaker on the floor above.

37. In company with the parties and their experts, I observed the existing premises, which currently operates as a nightclub. From the windows located on both the first and second floors, I noted the location of Park Apartments opposite the premises, including taking note of the location of the apartment owned by Ms Walsh. I also walked around the block in which the premises is located, bounded by Pelican, Poplar and Brisbane streets. Pelican Street is the location of Paramount Apartments, and Monument Apartments (located on the other side of the street). The location of the restricted premises “Sydney Sauna”, and its geographical location to the premises, was pointed out. I also noted the location of the premises owned by the Christodoulous.

38. Whilst we were standing immediately in front of the premises, there was discussion with respect to the current signage, and what the Proposed Operator proposes to do if consent is granted. The Proposed Operator indicated that the current sign and address would remain above the door, but that there would be no banners (such as are currently on display) and no posters advertising the strip club. There would be no spruiking and no other street presence. These matters are reflected in the draft conditions of consent.

39. Submissions from objectors raised concerns including the following:

• The proposal does not comply with the Sydney DCP in terms of location and design of the premises, including proximity to Sydney Sauna.

• The presence of a strip club, traditionally the precursor of the sex industry, would bring further undesirable consequences to Oxford Street.

• There will be increased noise after midnight, increased public nuisance from patrons, more security concerns and reduction in privacy of residents.

• A strip club is likely to attract a substantially different type of patron and result in a much higher consumption of alcohol by patrons than the current cabaret activities. The nature of the patrons and risk of higher alcohol consumption is likely to lead to an increased risk of violence or harassment on this section of Oxford Street and nearby residential streets.

• The site is located near parks and schools where children and family frequent and is therefore not appropriate. Nearby bus stops and food outlets are also used by school children who attend nearby schools.

40. Several submissions referred to the “gay-friendly” nature of Oxford Street, and how this would be compromised by the approval of a strip club in the proposed location, due to feared anti-social and bad public behaviour; “300 aggressive straight males leading to increased homophobic violence”; and the lack of desirability of the public having to deal with “large crowds of aggressive men leaving and entering the strip club”: Exhibit 2 at ff 252, 337 and 351.

Expert Evidence

41. For the Council, evidence was provided by Mr Russell Hand (Town Planner) (Exhibit 3 and Exhibit 11); Dr Judith Stubbs (Social Impact) (Exhibit 4); and Sgt Darrin Thompson (Enforcement) (Exhibit 5). The experts of the Proposed Operator were Mr Giovanni Cirillo (Town Planner) (Exhibit C and Exhibit F); Prof Roberta Ryan (Social Impact) (Exhibit D) and Mr Owen Rogerson (Enforcement) (Exhibit E). The experts participated in joint conferencing processes prior to the hearing which sought to address the issues in contention. As a result of the conferencing processes, they prepared the following joint expert reports: a Joint Town Planning Expert Report (Exhibit 6), Joint Enforcement Expert Reports (Exhibit 7 and Exhibit 10) and Joint Social Planning Expert Report (Exhibit 8).

42. All of these experts save for the town planners provided oral evidence in the hearing.

43. In this case, considerable argument has been put in relation to the role and standard of evidence. At the outset, it is appropriate to observe that there is no formal burden of proof in Class 1 proceedings. That said, there is nonetheless a persuasive burden, such that the Applicant needs to persuade the approval authority to exercise the power to grant the approval.

Enforcement Evidence

Police Intelligence and COPS data

44. In the course of the hearing, Mr Clay SC for the Council explained the operation of certain databases operated by the NSW Police. An entry in the Computerised Operational Policing System, or COPS, is created when police do something in relation to a particular premises, whether it is a business walk through or responding to a report or complaint. There are intelligence reports, known as INTEL reports, which are part of the investigative process that police undertake to accumulate intelligence for the purpose of ultimately taking steps or not (Transcript 5/6/17 at pp 24-25).

45. In the course of the hearing, additional material was provided by Mr Rogerson (the Proposed Operator’s expert) in the form of data from ARCIE (Alcohol Related Crime Information Exchange), contained in a three page document headed “Licensed Premises Summary - Alcohol Related Crime Information Exchange”. This data comprised a Licensed Premises Summary with respect to Men’s Gallery Sydney, and Pure Platinum.

46. The summary information with respect to those premises shows that for the 15 month period of September 2015 – November 2016, the “Total Risk” rating for Men’s Gallery and Pure Platinum is “Low”, with a Criminal Intelligence risk rating of “Low”: Exhibit E.

Evidence from the Experts

47. It is against this background that the evidence of the enforcement experts is considered.

48. Each of the enforcement experts prepared individual expert reports. For the Council, Sgt Darrin Thompson provided a lengthy report which comprised an objection he signed on behalf of the NSW Police Surry Hills Local Area Command, on the basis of likely negative social impacts, unsuitability of the site, the proposal not being in the public interest, and the application not complying with s 471 of the Liquor Act 2007. His report also included copies of two decisions of the Independent Liquor and Gaming Authority: one in respect of Bada Bing Nightspot, and one regarding Dreamgirls, where long-term closure orders were ordered due to ongoing drug supply on the premises: Exhibit 5.

47. For the Proposed Operator, in his statement (at Exhibit E) Mr Owen Rogerson (a former NSW police officer) points to a lack of evidence for the police assertion that the Application will cause significant environmental impact: [12]. He concurs with police comments with respect to Bada Bing Night Spot and Dreamgirls regarding ongoing drug supply [19], but points to successful prosecutions and cancellations of liquor licences of various strip clubs in Kings Cross between 1992 and 1996 [20]. As for the inference that this Application has similar connections to those “illicit” strip clubs, Mr Rogerson says that this inference is both “fictitious and without appropriate evidence”: [21]. Mr Rogerson points to the fact that both Men’s Gallery and Pure Platinum have no previous history or convictions recorded for offences relating to indecent conduct or permitting persons on licensed premises to solicit for the purpose of prostitution [23].

48. In simple terms, the evidence for, firstly, the Council and, then, the Proposed Operator, can be put in the following terms. On the question of impact of the development on the amenity of the residents (contention 2), Sgt Thompson says that strip clubs are “characterised with issues relating [sic] drug use and supply, outlaw motorcycle gangs, indecent conduct/audience participation and organised crime”. Mr Rogerson says “there is no evidence presented to me to suggest that the proposed use will lead to increases of crime and in my opinion it will be less than the current premises operating in the area”: Exhibit 7 at [4].

49. With respect to social impacts on the area (contention 5), Sgt Thompson states that “the proposal will lead to undesirable impacts including crime, drug use, indecent conduct, audience participation, prostitution and/or violence”. Mr Rogerson’s position is that he “does not agree that the proposed use will be a high risk premises in respect to drug use, prostitution, violence or other crime and would have far less impact than other large hotels, or nightclubs in the area”: Exhibit 7 at [7].

50. As far as the public interest is concerned (contention 7), Sgt Thompson reaffirms his position that a licensed strip club is not conducive to the current Oxford Street operating environment, while Mr Rogerson maintains his opinion that no evidence has been produced to him to support the allegation that the application will attract a criminal element that is associated with drug use, indecent conduct, prostitution and violence: Exhibit 7 at [9].

51. The experts also provided detailed commentary with respect to the proposed Plan of Management, which is discussed further below. These matters pertaining to the Plan of Management as initially proposed were ultimately resolved, with concerns being met to the satisfaction of the police.

52. In the course of the hearing, the enforcement experts were asked to provide a further supplementary expert report which became Exhibit 10. That report provided further (limited) information listing premises about which police intelligence is said to be held. I note that I was not provided with this material, which I understand has sensitivity attached to it. To the extent that I can give any weight to it, it is necessarily limited.

53. In that further report, Sgt Thompson states that there are “significant intelligence holdings” relating to the operation of eight strip clubs, including Men’s Gallery and Pure Platinum, and Bada Bing Night Spot and Dreamgirls. Sgt Thompson notes that Slide Lounge is not currently the subject of similar intelligence holdings.

54. In Mr Rogerson’s opinion, intelligence reports “may form the basis for police and liquor inspectors to conduct an investigation. Intelligence reports are not fact, however may provide specific information to an investigation”: Exhibit 10 p.2.

55. Under cross-examination, Sgt Thompson conceded that there has been no prosecution, notices or service of any reprimand in relation to the operator of Men’s Gallery as a consequence of that intelligence: [T 6.6.17 p.38 at l 6] Moreover, Sgt Thompson could not find any event in the COPS material that indicated that there had been any investigation or further action as a result of the intelligence with respect to outlaw motorcycle gang (OMCG) fighting at Dancers, Kings Cross in 2006 [T 6.6.17 p.38 at l 38].

56. Sgt Thompson also agreed with the Proposed Operator’s senior counsel that there had been no proceedings, reprimand or investigation leading to any action in relation to drug use and supply, organised crime or OMCGs at Men’s Gallery or Pure Platinum, save for intelligence data cited which suggests that in 2006, Men’s Gallery and Dancers Cabaret sponsored the “poker run of the Hell’s Angels”: [T 6.6.17 pp.39-40]. Dancers Cabaret was said in 2006 to have had issues with OMCG fighting at the location, and in 1998 sent letters to OMCG “thanking them for their patronage”: Exhibit 10.

57. Sgt Thompson also confirmed that in respect of Men’s Gallery, Pure Platinum and Dancers Cabaret that there has been no enforcement action in relation to indecent conduct, save for an unsuccessful prosecution which Sgt Thompson brought against Men’s Gallery in 2006 for that offence.

58. With respect to the Slide premises, Sgt Thompson’s statement (contained within Exhibit 5) noted several noise complaints, and instances of non-compliance which resulted in penalty notices and several warnings. Sgt Thompson also gave evidence that in his experience, the “limits tend to get pushed” in terms of audience participation at striptease establishments [T 6.6.17 p 48].

59. In the light of the further information contained in the additional report [Ex 10], Mr Rogerson nonetheless did not resile from his opinion that there was nothing in the evidence that supported the allegation that the strip club will attract a criminal element associated with drug use, indecent conduct, prostitution and violence.

60. Sgt Thompson conceded that in the last ten years, Pure Platinum and Men’s Gallery have attracted little police or regulatory interest in terms of warnings or penalty infringement notices.

Finding

63. The enforcement evidence is to be considered within the framework of the Council’s contentions that the proposed use will have unacceptable and adverse social impacts on the area, and specifically that the proposal is “considered to be high risk use which has the potential to lead to undesirable impacts including crime, drug use, indecent conduct, prostitution and/or violence”: Exhibit 1 at [65].

64. To some extent, the material contained in Exhibit 10 could be said to be an effort to fill the evidentiary gap, as it were, with respect to the allegation regarding strip clubs and their propensity to attract a criminal element. I find that it does not achieve this outcome, not least because (notwithstanding it may be for sound reasons) I was unable to view the material referred to. Even if I had, Sgt Thompson’s concessions with respect to the actions taken in connection with strip clubs with which the Proposed Operator is associated reveal an absence of successful enforcement action.

65. The strongest evidence to support the existence of criminal activity is successful enforcement action, including prosecutions. Anything less than that may still be informative but carries less weight, such as evidence of warnings and complaints.

66. The fact of the existence of intelligence holdings in relation to licensed premises in and of itself carries some weight. Sgt Thompson conceded that the majority of licensed premises in New South Wales would have some intelligence holdings in relation to them: [T 6.6.17 p.43]. I concur with Mr Rogerson’s statement that “intelligence reports are not fact”, no matter that they may provide the impetus for further investigation, which investigation could ultimately lead to enforcement action.

67. Ms Duggan SC somewhat provocatively, if effectively, made the point that any allegation, no matter how spurious, may find its way into an intelligence report, when she posited that she could telephone the police to say “I believe that there might be a paedophile ring dealing drugs out of the ladies’ toilets on level 4 of the Land and Environment Court” [T 6.6.17 p.43]. Such a claim would be registered as an intelligence holding, irrespective of its preposterous nature.

68. The strip clubs the subject of much of the police evidence – Dreamgirls and Bada Bing Night Spot – contained a criminal element which included drug dealing. However, it does not follow that because unlawful things have occurred at these striptease clubs, all striptease clubs will experience the same issues.

69. The evidence before the Court regarding links between criminal activity and strip clubs is at best inconclusive. There is no evidence to suggest that the crime statistics are linked to the strip clubs currently operated by the Proposed Operator. The police evidence draws largely on criminal activity which occurred at two notorious premises in Kings Cross. In my view it is insufficient to assert that because illegality has taken place at those premises, it follows that the same is likely to occur at a proposed strip club in Surry Hills.

70. For the reasons set out above, I prefer the evidence of Mr Rogerson over that of Sgt Thompson. As a consequence, I therefore conclude that this element of the Council’s contentions does not stand as an impediment to the granting of development consent.

Social Impact Evidence

71. In turning to the evidence provided by the social planners, it is helpful to consider the manner in which the Council has particularised its objection to the proposal insofar as it is concerned about amenity impacts:

The proposal is considered to be a high risk use which has the potential to lead to undesirable impacts including crime, drug use, indecent conduct, prostitution and/or violence and given the proximity of the premises to residential uses the proposed hours of operation are not acceptable: Statement of Facts and Contentions: Exhibit 1, contention 2, particular 42.

The change from a theatre restaurant used for the purposes of cabaret and other general entertainment to a Restricted Premises (Strip Club) is likely to result in increased crime and safety impacts in the immediate locality due to the difference in patron profile, activities offered, and nature of impacts associated with the proposed use, including for minority groups and those more likely to be sensitive or vulnerable to such impacts: Exhibit 1, contention 2, particular 44.

The change of use is likely to result in more intangible amenity impacts on the atmosphere, experiences and way of life of people living in and visiting the immediate locality, including for residents, and related to the immediate locality’s long-term association with the gay and transgender community: Exhibit 1, contention 2, particular 45.

72. The position of Dr Stubbs (for the Council) can be summarised thus: the users of striptease clubs are overwhelmingly male and heterosexual, and are more likely to be robust in the public sphere. Professor Ryan, the Proposed Operator’s expert, does not accept that there is a particular patron profile, nor that there is a link between strip club patrons and adverse amenity impacts.

73. Drawing upon work of Erickson and Tewksbury (2000) “The gentlemen in the club: A typology of strip club patrons”, Deviant Behaviour, Vol 21, No 3, pp 271-293, Dr Stubbs relies upon studies conducted in the United States to provide “useful insights into the reasons for strip club patronage and how patrons engage with one another and dancers in that environment”: Exhibit 4 at [4.2.4]. Erickson and Tekwsbury had as their goal “to identify and define a typology of strip club patrons and the way in which such men present managed impressions on the “stage” of the strip club environment”: pp 274 – 275. According to the authors, the six types of patrons that frequented strip clubs are: the Lonely; the Socially Impotent; the Bold Lookers; the Detached Lookers; the Players and the Sugar Daddies: Exhibit 4 p.22. Dr Stubbs draws upon the authors’ observations that “when patrons present in groups, or if the club is crowded, it was observed that the environment became more animated with the ‘male-bonding’ bravado evident in the entire audience to varying degrees, and the level of objectification of the dancers appearing to increase”: Exhibit 4, p.22.

74. Dr Stubbs prefers this study, as opposed to others relied on by Professor Ryan, for example, as Dr Stubbs believes the other studies are not relevant, because they are variously studies about brothels, are based in rural areas or are not relevant due to objectives and methodology: Exhibit 8 p.10, note 26.

75. In addition, Dr Stubbs refers to her own site visits to clubs in Sydney, to support the conclusions reached by Erickson and Tewksbury. Dr Stubbs observes (based on three site visits to clubs, including Pure Platinum and Men’s Gallery):

My site observations with regard to club “culture” were also generally in line with those of Erickson and Tewksbury, with the primary focus of the various clubs in the evenings being on the sale of alcohol and highly sexualised activities, the active promotion of the sale of drinks by strippers and bar staff, the much higher levels of patronage on weekend nights and the significant difference in atmosphere compared with week nights, and the macho and male bonding behaviours exhibited by some patrons: Ex 8 at 11-12.

76. In terms of patron profile and propensity to violence, Dr Stubbs refers to research to support her statement that young men are more likely to be the perpetrators and victims of violent crime, including alcohol-related violence. Moreover, the locality of the strip club is within extensive hotspots for a wide range of crimes, and much higher than average crime rates, which Dr Stubbs says “would be expected from [a] major city with a high density of licensed premises”: Exhibit 8 at p.13.

77. Dr Stubbs holds the opinion that there are characteristics of people who do attend strip clubs which are not present in those who do not, drawing largely on the US literature. According to Dr Stubbs, the presence of alcohol is a significant aspect in defining the social impact of a use.

78. Dr Stubbs is not persuaded by the findings embraced by Professor Ryan of the Queensland Crime and Misconduct Commission Report into Adult Entertainment (2004) (the Queensland Report), due to limitations of the methods used, where there is primary reliance on site visits and semi-structured interviews with dancers and owners. There is, she opines, no objective study to support assertions on amenity or safety: Exhibit 8 at p.14.

79. Dr Stubbs points to the levels of violence and harassment of Gay and Transgendered people being experienced at much higher rates than the general community, with ongoing mental health and wellbeing consequences for this community. “Violence and harassment is more often enacted by young men in groups, including as a form of group expression and to boost their masculinity in each other’s eyes”: Exhibit 8 at 15.

80. The offsite impacts potentially arising from the use of the premises as a strip club which Dr Stubbs has identified include increased risk of alcohol-related violence and anti-social behaviour arising from the change of use and the major change of patron profile; increased risk of violence and harassment to vulnerable members of the Gay and Transgender community from groups of young men engaged in behaviour that affirms particular notions of “masculinity”, noting the very high level of concentration of Gay and Transgender men in the locality, and the role of the precinct as the major Sydney attractor of this community; and an increase in criminally-motivated offenders drawn to the neighbourhood: Exhibit 8 at p.20.

81. Professor Ryan has difficulty with the very contentions raised by the Council. In her expert opinion, she has been unable to locate any evidence of current social impacts arising from the operations of the strip clubs operated by the Proposed Operator. There is limited evidence, and none directly relevant, that patrons of strip clubs are more likely to exhibit behaviour which would impact amenity, the experiences of people living in either the immediate locality or the Gay and Transgender community: Exhibit 8 at p.4.

82. International literature provides a paucity of evidence in relation to the types of patrons of strip clubs. She points to literature from Australia which suggests that “clients of the sex industry fit a broad cross-section of the community; in particular, such men do not differ from others on demographic variables such as age, education, marital status or occupation”: Exhibit 8 p.4.

83. Following her review of the literature primarily from the US and based in localities which are not similar to the location of the Site, Professor Ryan concludes that “the literature does not provide a ‘patron profile’ which is more likely to be antisocial or violent”: Exhibit D p.5. As far as criminality and anti-social behaviour is concerned, Professor Ryan relies upon the Queensland Report which found that the risk of drug use and dealing was “deemed to be kept reasonably low because of the regulatory system and/or venue-specific or agency-specific policies”: Exhibit D p. 6.

84. Professor Ryan also challenges the methodology used in the Erickson and Tewksbury study, with the typology

…based on covert participant observations in two “gentlemen’s clubs” in a major Midwestern city in the US. [The] article is useful but it has methodological limitations: the sites are not readily comparable to [the] context of the proposed development and there is a limited sample”: Ex 8 at 5.

85. There are also concerns regarding the geographic basis of the evidence drawn upon by Dr Stubbs, says Professor Ryan. In terms of relying on data from the United States, Professor Ryan says

The physical geographical context of the premises being referred to are significantly different with respect to concentration of disadvantage and other facilities and activities going on in those locations. I think it’s very difficult to rely on that by way of suggesting that there are demonstrable social impacts from strip clubs:[T 12.10.17, p.6 l 2].

86. In addition, the [US] literature has a range of activities occurring at once: stripping, bars, brothels and “a concentration of activity that together can cause amenity impacts”.

87. Professor Ryan has preferred to rely upon research conducted by Hanna, (2005) “Exotic Dance as Adult Entertainment: A Guide for Planners and Policy Makers”, Journal of Planning Literature 20(2): 116-34. That article supported Professor Ryan’s finding that the types of men and women who attend strip clubs, and their reasons for doing so, are nuanced: Exhibit 8 at p. 5.

88. There is an absence of evidence in the literature that strip clubs lead to undesirable impacts (such as drug use, indecent conduct, violence and/or prostitution). The Queensland Report “reveals the risk of drug use and dealing and connections with organised crime figures are relatively low”: Exhibit 8 at 6. Professor Ryan also points to the limited evidence to suggest that there are secondary negative effects from strip clubs, with the literature indicating that the negative impacts of strip clubs are often perceived rather than actual, or else are unsubstantiated: Exhibit 8 at p.6.

89. Relying upon the research conducted by the Queensland Report, Professor Ryan concludes that “from the limited research on patrons in strip clubs, the literature does not indicate that patrons of strip clubs are likely to cause more offsite issues with regard to amenity, noise, nuisance, anti-social behaviour and violence compared with other licensed premises”: Exhibit 8 at 7.

90. Turning specifically to risk facing the Gay and Transgender community, while there is some evidence about violence targeted towards the community, “there is limited evidence of gay bashings of assaults related to strip club patrons”: Exhibit D p. 8. Professor Ryan points out that the majority of sources about anti-gay and lesbian violence are from the 1990s and early 2000s, and there is no evidence of gay bashings or assaults related to strip club patrons: Exhibit 8 at p.8.

86. She adopts a contrary position with respect to amenity impact arising from the proposed strip club: rather than being exacerbated, Professor Ryan says the impact will be lessened, due to a smaller number of patrons (than are currently permitted), which also means less people will be consuming alcohol, and less noise is likely (nightclubs are noisier than strip clubs): Exhibit 8 at p.19.

87. Professor Ryan also seeks to cast doubt on the relevance of the police evidence, to the extent that the “attraction of a criminal element” relies upon two venues in Kings Cross, when the proposed use is located in Surry Hills.

Finding

93. There is no literature that looks at the social interplay between a heterosexual strip club and a homosexual community. That much was agreed by the experts, but not a great deal else.

94. Absence of validated local empirical data, an absence acknowledged by both experts, causes me to conclude that it would be risky to rely upon either of their positions derived from studies, or reports, that rely on findings based on what appear to be circumstances which are not applicable to these local conditions. The experts have done their best to help, but I cannot be satisfied that much of what was submitted in support of particular propositions applies in local circumstances.

95. The social impact evidence is dense and seemingly contradictory. As was already evident in their written statements, particularly the Joint Expert Report, it became very plain during cross-examination that there was little common ground between the social impact experts. The degree of difference of view is neatly encapsulated in the Joint Social Planners’ Expert Report itself [Exhibit 8 at p.3] where can be found the considerable number of matters of disagreement as between the experts, including the literature to be relied upon in determining the patron profile, and the relevance of the patron profile for assessing impacts; the nature and risk profile of the patron profile and the extent to which there will be an increase in adverse impacts on vulnerable groups and patrons in the locality.

96. Another challenge arising from the social impact evidence is that each expert challenged the other, in terms of the weight to be given to various sources, given some were peer-reviewed scholarly pieces, and some were not, being “reports” which ought not, says Dr Stubbs, be given the same weight as critiqued material.

97. Notwithstanding my hesitation about accepting findings of either expert for the reasons set out at [94] above, there is nonetheless a suite of conclusions that I am comfortable to accept. I prefer the evidence of Professor Ryan where she states that taking the literature relating to strip clubs and reading that in conjunction with alcohol-related harm and victimisation of more vulnerable groups “unduly conflates a range of literature with limited consensus on the key issues”: Exhibit 8 at p.8. Put another way, my understanding of the state of the literature is that it is difficult to tease out any particular cause from any particular effect. There are potentially many factors at play which would make it difficult (if not impossible, based on the current state of research referred to by the experts) to arrive at the conclusion that allowing a strip club in Oxford Street would result in more intangible amenity impacts particularly for the Gay and Transgender community.

98. Dr Stubbs also alludes to this difficulty, when she says that “it is not possible to determine which of the impacts in the wider locality are related to which licensed premises (for example licensed strip clubs in other parts of the City of Sydney as well as other high impact premises such as hotels and nightclubs in the immediate and wider environment)”: Exhibit 8 at p.17. However, she says that this should not prevent a “precautionary approach” being taken to a change of use.

99. Having carefully reviewed and weighed what each expert has to say, I prefer Professor Ryan’s views when she says that

We don’t have any evidence to suggest at all that men who use strip clubs have any particular profile that’s different from the general population either in terms of their propensity for crime or their propensity to create amenity impacts either inside a premises or outside a premises: T 12.10.17, p 9 at l 17.

100. If there are impacts arising from the use of restricted premises, or activities within entertainment precincts, these impacts may arise from the service of alcohol rather than anything else. However, planning law allows for the sale and consumption of alcohol, subject to a strict regulatory regime.

101. I adopt the language of Professor Ryan, and find that the evidence that people who attend a strip club are more or less likely to create amenity impacts, commit crimes or be unsavoury characters, is simply not there. Accordingly, there is no such ground to warrant refusal of the application.

102. There is no recent, relevant, local data concerning antisocial activities that may reasonably arise, and/or conflicts with LGBTIQ communities in the local area because of the proposed operation of the premises at the Site.

103. Given the state of the evidence, I therefore conclude that there is nothing in these elements of the contentions raised by the Council which would warrant refusal of development consent for the proposed strip club.

Other Town Planning Considerations

Location of the Operation

104. The building is surrounded by a number of residential premises. It is also located within 75 m of an existing, approved adult entertainment sex industry premises, being the Sydney Sauna located at 38 – 46 Oxford Street Surry Hills. This is contrary to the Sydney DCP. Sydney Sauna has a radial distance of about 35-40m from the Site, but walking distance is about 90m.

105. The Council’s position is that having regard to the relevant planning controls, the proposed use is not appropriate in the location. The locational requirements in the Sydney DCP should be applied, which would lead to refusal of the application. A DCP cannot prohibit a development, but significant weight is to be attributed to it in determining the application. There are amenity concerns, submits the Council, particularly for residents living in apartments opposite the Site, as well as users and passers-by on the street.

106. Mr Hand, the Council’s town planner, urges application of the locality control on the basis of adverse impacts from adult entertainment premises on the gay-friendly locality of Oxford Street: Exhibit 6 at [31]. He also suggests numerous alternative locations for the proposed strip club which would satisfy the Sydney DCP, particularly those which do not have surrounding sensitive residential development: Exhibit 11 at [12]. However, the question I am dealing with here is the acceptability of this Application in the present location.

107. For the Proposed Operator, Mr Cirillo’s town planning evidence pointed to the reduction in patrons and activity compared with what is currently occurring on site, and what is sought by the application. In particular, trading would cease at 3 am (currently it is 4 am), and the number of patrons would be 300 (100 less than currently permitted).

108. Further, not only is there a reduction in numbers and time, but the nature of the activity is such that a large number of people will not exit the premises at the same time. The amenity impacts will be similar to those arising from a burlesque show (the current use) but will be reduced. In short, the impacts of the proposed development will be less than the current one.

109. The Proposed Operator argues that while the Council has raised the presence of the Sydney Sauna as providing a difficulty for the location of the proposed club, another way of considering this, in terms of impact on local amenity, is that there are already many adult entertainment, restricted premises and sex services premises in the locality, with the result that the local amenity of Oxford Street already accommodates existing premises of a similar nature. The proposed development is therefore unlikely to significantly impact the local amenity: Exhibit 8, p 9. Mr Hand does not agree, as a strip club is a different use to other uses relied upon by the Applicant, so does not provide this indication: Exhibit 6 at [30].

110. Finally, with respect to the other striptease clubs run by the Proposed Operator, Men’s Gallery (opened in 1997) and Pure Platinum (1999), neither operation has had any management issues that have resulted in any successful complaints or action being taken by the Council, the (then) Office of Liquor or Gaming or the police.

Finding

111. I do not find that the location of the Site, particularly its proximity to residential premises and the adult entertainment premises of Sydney Sauna, found a reason to refuse consent. I make this finding for the following reasons:

• The evidence as to adverse amenity impacts arising from the operation of a strip club is inconclusive, as discussed above.

• The Site is separated from Park Apartments, and Sydney Sauna, by six lanes of traffic.

• Although the radial separation is breached under the Sydney DCP, it is in fact a 90 m walk from the proposed strip club to the Sydney Sauna, which fact itself demonstrates why adherence to the locational aspect of the Sydney DCP is not appropriate in this case.

• Other consents have been issued by the Council for restricted premises, adult entertainment and sex services where there are residential premises within 75m: Exhibit 6 at [18].

• The town planners agree that due to the sex-on-premises nature of the service provided by Sydney Sauna, there is little to no prospect of common clients between that business and the Site: Exhibit 6 at [28].

112. To the extent that the Council has objected based upon impact on residents (as framed in the Sydney DCP), this is discussed below under the general consideration of objector evidence.

Plan of Management

113. Various of the Council’s contentions were concerned with the adequacy of the Plan of Management, and the safety measures proposed for staff, performers and customers.

114. The Plan of Management is required to be adhered to as a condition of consent (condition 7), and is thus able to be enforced.

115. Actions the Plan of Management require to be undertaken include the obligation to liaise with the police and the community (including attending monthly meetings with the Surry Hills Local Area Command); measures to promote the responsible service of alcohol; the creation of a complaint registration and handling process; and the provision of security measures (including CCTV and footpath and entry management).

116. A matter arose with respect to the safety of patrons and staff, particularly in the curtained private booths. Further evidence was provided in this regard by Mr Cirillo. The curtained areas from where private performances are to be given will be partially obscured using sheer and semi-transparent, lightweight curtains: Exhibit F at [21]. There will also be CCTV cameras installed in the curtained areas and operated during the time the premises are in use. There is no possibility of entrapment, unobserved or unrecorded conduct from within these areas: Exhibit F at [24].

117. In the course of the hearing, the Plan was updated to include provision for an additional security guard. Mr Cirillo has confirmed that he has amended the Plan to the satisfaction of the enforcement experts, resulting in the addressing of all management-related contentions to the satisfaction of the NSW Police Force, the Council and the Proposed Operator: Exhibit F at [25]. There is nothing which suggests that further amendment of the Plan of Management is required.

Finding

118. As the relevant stakeholders (each of the parties and the NSW Police, through Sgt Thompson) have indicated that they are satisfied with the updated form of the Plan of Management [Exhibit B], in light of their satisfaction, and my consideration of the Plan of Management, I have no reason to find that it is anything other than adequate for its purpose. There is no contest as to its contents, save for the matter of operating hours, which is dealt with below.

Hours of operation

119. The factors to take into account when deciding upon the appropriate hours of operation are set out at s. 3.15.3 of the DCP, quoted above at [24].

120. The Council’s town planning expert’s position on this firstly is that the land use is not appropriate; but if the Court finds against him on that position, trading to 2 am would be an appropriate outcome. Mr Hand also argues that a closing time of 2 am is considered appropriate where the grant of extended trading hours in practice is conditioned by the Council in two hour increments: Exhibit 11 at [14].

121. With respect to the proposed 2 am closing sought by the Council, it is the Proposed Operator’s position that there is no provision within the Sydney DCP at 3.15-4 requiring the first trial period to be a 2-hour period beyond base trading from midnight to 2 am daily. Rather, the provision allows for extended trading of up to 24 hours, with all operating hours beyond midnight to be on a trial basis.

122. Considerable weight needs to be given to the Plan of Management, says the Proposed Operator. The management regime is sufficient to manage any impact. There will be a lower number of people permitted; patrons will not be leaving at the same time, as it is a constant performance instead of a single show; and the venue has been operating until 4 am for an extended period of time. This is not a case, says the Proposed Operator, where a new late-night use is being introduced into the locality, nor is there a planning basis that would lead to a finding that there is an adverse consequence to a 3 am closing time.

Finding

123. Notwithstanding that there is no provision requiring the first trial period to be only 2 hours beyond the base trading hours, I prefer the Council’s position. I also note the Council’s practice to approach the conditioning of extended trading hours in two hour increments: Exhibit 11 at [14]. Regardless of whether or not there is a mandated two hour period for the first trial period, there is in my view a more compelling and independent reason to find that a 2 am closing time is the appropriate one.

124. While the present operation has consent to operate until 4 am, and while there are some similarities in operation between the current and the proposed use, nonetheless a striptease club is a new use at the premises, and it is appropriate that it earn the right to continue to operate. In my view a 2 am close strikes an appropriate balance between the commercial imperatives of the operator with those of the residents and the broader community during a period of adjustment to this new use. The operating hours will be subject to review at the conclusion of the trial period.

125. Given the contentious nature of the development, it would not be unreasonable for the operator to anticipate close scrutiny from the Council, the police and the community. Whatever might be the outcome of that scrutiny will be a matter for assessment in any application for a further trial period for the strip club.

126. I therefore find that the initial extended trading hours available to the strip club are to be to 2 am.

The Objectors

127. It is clear both from the number and substance of the objections that have been raised to this proposal that there are some genuine concerns, and in some instances, fears, about the potential impacts of the proposed development. This is not entirely unexpected, a fact which is acknowledged by the Proposed Operator’s social impact expert when she points to a study which concludes that despite the paucity of evidence linking crime to strip clubs, some residents (as well as by-passers) might feel uncomfortable, unsafe or insecure when in the vicinity of strip clubs: Exhibit D p. 7.

128. However, it is well-established that fears alone are not sufficient to warrant refusal of a development. In the case of New Century Developments Pty Ltd v Baulkham Hills Shire Council 127 LGERA 303, which considered whether or not there would be a social consequence in introducing a Muslim prayer house to a community unfamiliar with such facilities, Lloyd J held at [62] and [63] that

A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act … It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. 

129. Although I accept that the concerns by the residents are honestly and genuinely held, they are not such as to warrant refusal of the application. I prefer the Applicant’s submissions on this point, in that the planning controls applying to the Site have designated “restricted premises” as a permissible use and the area as a late night management area, with the result that it has been identified as being appropriate not only for this type of use, but this type of late use. There is, therefore, no basis upon which I could conclude that those fears are likely to be realised.

130. I am satisfied that that the management controls that are to be put in place, together with the enforcement opportunities available to the relevant regulators, provide a suitable framework from which the potential impacts of the proposed club can be managed. In addition, my finding regarding the appropriate hours of operation during the trial period should provide an additional layer of comfort to those who have concerns about the operations of the proposed club. I also repeat my findings with respect to a lack of evidence that strip clubs will attract criminal elements, as well as my findings regarding social impact, dealt with above, to support my finding that the objectors’ evidence does not provide a basis for refusal of the Application.

Further Discussion and Findings

131. This is not a Court which makes its findings based upon anyone’s particular or purported moral compass: it is concerned with planning law. Moral objections to a development application are not a relevant consideration. To the extent that any objections to the proposal are moral concerns, no weight can be ascribed to them.

132. What does arise is the ability of the Proposed Operator to manage the operation effectively, which is where the adequacy of the Plan of Management comes into play. I am mindful of the Council’s submission that the case concerns an assessment of proposed land use and not an assessment of the character of the person proposing to run the operation. Consideration of whether or not a person is “fit and proper” to hold a liquor licence, for example, is dealt with elsewhere in the regulatory process.

133. The Proposed Operator’s position is that it is not for the Proposed Operator to demonstrate that certain things about which the Council has raised objections are not going to happen, but for the Council to prove that they are. Based on the expert evidence of the Proposed Operator, which I have accepted, there is no “patron assumption” that someone who goes to a striptease club is more inclined to be criminal or someone who will assault people, or behave in such a way as to make an LGBTIQ person uncomfortable.

134. I accept the correctness of the Proposed Operator’s characterisation when it submits that the Court would need to be satisfied that there is something inherent in the nature of the use for a striptease club that would mean that there will be an unacceptable social impact whenever or wherever that activity takes place: T 5.6.17 p.16, l 30. This is a significant case for the Council to make out. Based upon the evidence before me, it has not done so.

135. The Council’s submission (helpfully) reminded the Court that the appropriate level of certainty in this task of environmental assessment is not scientific certainty, but whether impacts are likely, a lower threshold. Mr Seymour went on to submit that when it comes to a strip club, there is a way of inferring the type and intended type of user, and from that point, draw inferences about the types of impact that could occur, and how those impacts might be mitigated.

131. In my view, Mr Seymour’s submission taken to its end point does not withstand analysis. The social impact experts agreed that likely users of a strip club were largely men of a disparate age (between 18 and 70). Mr Seymour invited the Court to make the inference that men would attend in groups. Professor Ryan declined to accept that proposition.

132. Even if I did so, I have difficulty in taking the next step I am invited to through Mr Seymour’s submission: that when men leave the strip club, there is a risk that they will engage in anti-social behaviour, and that risk is enough to lead to the refusal of this Application.

133. While neither of the parties put submissions to me in relation to risk and risk ratings, I cannot find that the fact that there is a risk of something occurring equates to something being likely to occur. The calculator of likelihood in an unremarkable risk matrix rates risk as being on a scale ranging from rare, to unlikely, then possible, moving to likely and almost certain. In other words, there can be a risk of an event occurring which is no more than “rare”.

134. The Council has sought to found its opposition to this application substantially on the basis of adverse amenity impact for residents, as well as the LGTBIQ community, who frequent and inhabit the area in significant numbers. The Council pleaded its case with a degree of particularity. Having provided those particulars, it then has the task of making good on them. The evidence is not available to support this contention.

135. With respect to its objection on the basis of the proposed club’s location, the Council cited the decision of Moore J in So v Council of the City of Sydney [2017] NSWLEC 128 to support its submission that if there is to be a variation sought to a control of the DCP, there ought to be a better outcome as a result of that variation. In So v Council of the City of Sydney Moore J found that there was no basis to conclude that there would be a better outcome if the DCP were not complied with.

136. However, unlike the So case, this Application does not concern clustering of sex services premises. The facts of the two cases are in my view sufficiently different for me to find that the decision of Moore J does not prevent my approving this application.

137. As to the emphasis that should be given to the Sydney DCP, Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 deals with, inter alia, the issue of consideration of relevant provisions of a DCP in determining whether or not to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. Firstly, 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 DCP directly pertinent to the application is entitled to significant weight in the decision-making process but is not in itself determinative.

138. On one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that development consent will be granted. However, on the other hand, if a proposal does not meet the DCP’s requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the EPA Act.

139. For the reasons set out in detail in this judgment, it is my view that there is nothing in the Sydney DCP which would cause me to refuse the Application.

140. It is also well-established that in determining this application, I am to assume that the holder of the consent will operate in accordance with its conditions. This I have done in deciding to uphold the appeal and grant development consent for this Application.

141. Having found that the other contentions raised by the Council do not provide a bar to the granting of approval, I find that the contention that the Application is contrary to the public interest is not made out.

Conditions of Consent

147. The conditions of consent contain inter alia limitations on noise, a prohibition on speakers or music outside the premises, prohibition against spruikers and requirements regarding the installation of CCTV cameras. The Proposed Operator submits that, together with the Plan of Management, the premises can operate in a way which is satisfactory both internally and externally. I accept the Proposed Operator’s submission.

148. The Proposed Operator has indicated that it does not object to the proposed Conditions of Consent filed in this proceeding, save for the provisions dealing with operating hours, discussed in this judgment above. For the reasons set out above, my decision with respect to these conditions is that the late night trading hours be limited to 2 am.

149. I require a further change to the Conditions of Consent, such that the Plan of Management is to be incorporated into the Conditions of Consent as an annexure.

150. The court has published two planning principles dealing, in general terms, with the roles that plans of management play in the granting of development consents. The first planning principle was set out by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and was in the following terms (at [54]):

54)   In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1.   Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2.   Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3.   Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4.   Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5.   Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6.   Is the Management Plan to be enforced as a condition of consent?

7.   Does the Management Plan contain complaint management procedures?

8.   Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

151. This planning principle was subsequently revised in a decision given by Pearson C in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72], a decision which modified the decision in Renaldo Plus 3 as follows:

…. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public. The sixth question in Renaldo should be re-worded to read:

Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent?

152. Those propositions are applicable in circumstances such as these where there is a proposed Plan of Management which will govern the operation of the proposed strip club premises.

153. Accordingly, the Conditions of Consent are to be updated to reflect my decision with respect to late night trading; the reference to the Plan of Management of 11 February 2017 is to be amended to be a reference to the Plan of Management of 5 June 2017; and the Plan of Management is to be annexed to and form part of those conditions. Upon the receipt of that updated document I will make Orders in chambers allowing the appeal and granting development consent.

Directions

154. The Applicant is directed to file updated Conditions of Consent in terms set out at [153] above by 23 January 2018, after which final Orders will be made in chambers.

Addendum made on 25 January 2018

155. In accordance with the terms of directions in paragraph 154 of my judgment of 19 January 2018 the parties provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows:

Orders

156. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA D/2016/810 for approval for the use of the ground, mezzanine and first floor levels of premises currently operating as a restaurant/nightclub as a Restricted Premises for a Strip Club, and associated internal alterations works, is determined by approval subject to the conditions at Appendix A.

3. The Exhibits, save for 1 and 10, are returned. 

**********

_______________________

Senior Commissioner Martin

Annexure A (C) (462 KB, pdf)

Plan of Management (2.02 MB, pdf)

Amendments

30 January 2018 - Addendum made on 25 January 2018

Decision last updated: 30 January 2018