Fleming S v Sutherland Shire Council
[2007] NSWLEC 462
•26 July 2007
Land and Environment Court
of New South Wales
CITATION: Fleming S v Sutherland Shire Council [2007] NSWLEC 462 PARTIES: APPLICANT:
Stephen Fleming
RESPONDENT:
Sutherland Shire CouncilFILE NUMBER(S): 10157 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Whether the conditions relating to numbers of patrons should be amended;
Alleged anti-social behaviour of patrons in the street near the premises.LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006, (SLEP2006)
Environmental Planning and Assessment Act 1979, ss79C and 96DATES OF HEARING: 26/07/2007 EX TEMPORE JUDGMENT DATE: 26 July 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr D T Miller, barrister, instructed by
Ms I P Ferguson, solicitor
SOLICITORS:
Gadens LawyersRESPONDENT:
Mr J M Reilly, solicitor
SOLICITORS:
Home Wilkinson, Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
26 July 2007
10157 of 2006A - Stephen Fleming v Sutherland Shire Council
JUDGMENT
1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sutherland Shire Council (the council) of a application to modify a consent granted by the Court on 16 November 2006 in respect of the use of the first floor at Lot 261, DP 793641, being Nos 84 - 86 Cronulla Street Cronulla, NSW, as a nightclub. The applicant seeks to amend three of the conditions of consent and to increase the number of patrons permitted within the premises.
2 I visited the ‘Fusion’ nightclub in company with the parties on the morning of the first day of proceedings.
3 I have concluded that the operational capacity of ‘Fusion’ nightclub may be increased to 440 person without the need of a further trial period.
The conditions
4 The applicant seeks to amend:
· Condition 3, as was amended by the Court on 16 November 2006, to read:
- A maximum number of persons who may occupy the nightclub premises at any one time is regulated as follows:
(a) 300
(b) notwithstanding (a) above, a maximum number of 350 person will be permitted for a trial period till 1 May 2007, after which the maximum number will revert to 300 persons.
· Condition 4 that was amended by the Court on 16 November 2006 to read:
- 4. Plan of management
- A. The nightclub shall be operated in accordance with the Plan of Management dated October 2006 approved as part of this consent. The Plan of Management shall be amended to contain reference to this consent and the relevant Place of Public Entertainment Certificate. It shall be the responsibility of the licensee to ensure all relevant employees are aware of the requirements of the Plan of Management and that their duties are discharged accordingly.
B. The Plan of Management can only be amended with the consent of the Council.
C. The Plan of Management is annexed to these conditions as Annexure 1.
· Condition 19 that was amended slightly on 16 November 2006 to read:
- 19. Hours of operation - Licensed premises
To protect the amenity of the surrounding environment the trading hours of the premises shall be restricted to the following hours:
Monday to Saturday 8pm to 3am
Sundays (except for Sundays 8pm to midnight
preceding public holidays)
Public Holidays (excluding Public 8pm to 3am
Holidays on a Sunday, Christmas
Day and Good Friday)
Sundays Preceding Public Holidays 8pm to 3am
Christmas Day and Good Friday 8pm to 10pm
New Years Eve 8pm to 3am
5 By way of comparison the original Condition 3 stated:
- A maximum number of 250 persons shall occupy the nightclub premises at any one time.
6 The original Condition 4 stated:
- The nightclub shall be operated in accordance with the Plan of Management dated July 2005 approved as part of this consent. The Plan of Management shall be amended to contain reference to this consent and the relevant Place of Public Entertainment Certificate. Clause 4.0 of the Plan shall be amended to reflect the maximum number of persons permitted by Condition 3 of this Consent, ie 250 persons and a copy of the amended Plan forwarded to Council. It shall be the responsibility of the licensee to ensure all relevant employees are aware of the requirements of the Plan of Management and that their duties are discharged accordingly.
7 The original Condition 19 stated:
- To protect the amenity of the surrounding environment the trading hours of the premises shall be restricted to the following hours:
- Monday to Saturday 8pm to 3am.
Sundays 8pm to midnight.
Public holidays 8pm to midnight.
Christmas Eve 8pm to 3am.
New Years Eve 8pm to 3am.
8 The premises are situated on the eastern side of Cronulla Street (Cronulla Mall) between Purley Place and Surf Road. The land on which the premises are located has a width of 18.05m and a depth of about 45m, giving an area of some 800m2.
9 Erected on the land is a commercial building and the ‘Fusion’ nightclub occupies the first floor. Public access to the nightclub is off Cronulla Street, however there is service access from Surf Lane at the rear. The ground floor comprises four offices and a storage area.
10 The premises comply with Building Code of Australia (BCA) requirements for services and fire safety for a compliant capacity of 450 persons.
11 The premises are within the Cronulla shopping centre. To the north and south there are shops and commercial premises on the ground floor with commercial premises and offices on the first floor. Opposite on the western side of Cronulla Street there are shops on the ground floor with offices and commercial premises on the first floor. Across the lane at the rear of the land are a residential flat building and a high-rise mixed commercial/ residential building.
Relevant planning controls
Sutherland Shire Local Environmental Plan 2006, (SLEP2006)
12 Under the provisions of the SLEP2006 that commenced operation on 29 November 2006, the land is in Zone 8 - Urban Centre and the proposal as a nightclub is permissible with consent.
13 The objectives of Zone 8 - Urban Centre are as follows:
(a) to identify appropriate land for the provision of a wide range of retail, business and professional activities,
(b) to promote viable businesses through increased economic and employment activity,
(c) to provide for an integrated mix of commercial, office, retail and residential buildings, and
(d) to create attractive, vibrant and safe establishments and facilities as a focus for community spirit.
14 The heads of consideration in cl 53 of SLEP2006 in relation to transport accessibility, traffic impacts and car parking state:
- The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:
Development Control Plans
15 The applicable development control plans are:
· Cronulla Centre Development Control Plan, (CCDCP)
· Car Parking Development Control Plan, (CPDCP).
16 The modification application to amend development consent No 05/0900 was lodged with the Court on 11 April 2007 under s 96 of the Environmental Planning and Assessment Act 1979 to vary conditions of consent in relation to maximum numbers of patrons and noise, that were imposed by the Court when it granted consent on 16 November 2006.
17 The applicant now seeks to increase the maximum number of patrons of the nightclub to 440 persons.
18 When the Court granted consent on 16 November 2006, for the use of the subject property as a nightclub, it allowed an increase in maximum number of patrons to 300 persons, and permitted, for a trial period, an increase to 350 persons. The Court also imposed conditions in relation to noise testing, under Condition 25.
19 The applicant now seeks to delete Condition 3, and replace it with a condition specifying the maximum number of patrons as 440. It also seeks the deletion of Condition 25(b) (acoustic measurements during trial period), Condition 25(c) (consequences for non-compliance with condition 25(b)), revision of Condition 25(d) (annual noise testing), and deletion of Condition 25(e) (independent noise testing during trial period).
20 This chronology of the actions of the council was included in the statement of facts:
· 20 July 2005 - the council received DA 05/0900.
· 2 August 2005 – the council notified nearby property owners and invited written comment on the development proposal. Notification period expired on 16 August 2005.
· 18 August 2005 – the council wrote to the applicant requesting an updated acoustic report to assess the potential impact on nearby residential properties from the proposed increased patronage now sought.
· August 2005 – the council received 23 letters of objection during the neighbour notification period.
· 10 September 2005 – the council received a detailed letter of objection from NSW Police Service - Miranda Local Area Command in relation to the development proposal.
· 10 October 2005 – the council received a letter from Don Fox Planning stating that it is impractical and unreasonable for the applicant to provide independent access to the nightclub in accordance with the requirements of the Building Code of Australia.
· 10 October 2005 – the council received the updated acoustic report from the applicant as requested.
· 10 October 2005 – the council received a letter from Steve Whelan & Associates Pty Limited advising that the stairs and handrails in the premises are structurally adequate and comply with the relevant Australian Loading Codes.
· 22 November 2005 – the council’s Independent Hearing and Assessment Panel considered the development application and concluded that the proposal cannot be supported if more than 250 persons are to be accommodated. Concerns were also raised about the ability of the premises to be noise attenuated.
· 12 December 2005 – the council resolved to defer consideration of the development application pending a further report on the appropriate capacity of the nightclub.
· 6 February 2006 – the council received a further report regarding capacity of the nightclub and resolved to grant development consent subject to a number of conditions including a limit on the capacity of the premises at 250 persons.
· 16 February 2006 - Development Consent No. 05/0900 is issued.
· 28 February 2006 - Appeal against conditions lodged with the Court.
· 26 April 2006 - Section 82A review lodged with Council.
· 7 August 2006 - Determination of the council in relation to conditions imposed reaffirmed.
· 16-17 October 2006 - Appeal heard before the Land and Environment Court before Commissioner Moore.
· 16 November 2006 - Final orders issued by the Court, granting consent.
Trial period
21 When the Court made its orders on 16 November 2006, the maximum number of persons [patrons] who may occupy the nightclub premises at any one time was set at 300. However, during a trial period that ran from 1 December 2006 to 1 May 2007, a maximum number of 350 persons [patrons] were permitted in Fusion nightclub. After 1 May 2007 the maximum number of patrons reduced to 300.
22 During the trial period the applicant kept records of the activity within the nightclub.
Lock-out
23 Under the heading of ‘safety and security’ in the plan of management, the manager of Fusion is responsible for operating a 2.00am “lock-out” between Monday and Saturday nights. The purpose of this lock-out is stated as being to assist the police to carry out their security patrols in the area.
Notification
24 On 8 May 2007, the council wrote to all previous objectors and the NSW Police Service advising of the s 96-modification application and seeking submissions by 22 May 2007. The only submission received was from the Miranda Local Area Command of the NSW Police. The police were opposed to an increase in the number of patrons to 350, however, in evidence given on-site the police sought to impose an earlier ‘lock-out’.
The hearing
25 The application to modify a Court granted consent was filed on 11 April 2007.
26 At the hearing the court heard evidence on behalf of the respondent council from Mr B Harris, environmental assessment officer - town planner of Sutherland Shire Council; and Senior Constable S J Frost, Miranda Licensing, Miranda Local Area Command, NSW Police.
27 On behalf of the applicant Ms K Price, consultant senior town planner, and Mr S Fleming, owner and applicant, gave evidence.
28 Ms K A Johnson, the licensee of Fusion nightclub, provided written evidence on behalf of the applicant. She gave evidence that there have been no written complaints made by the police to the nightclub asserting that Fusion was not complying with the plan of management. She also stated that she is, [Note: Exhibit E, p 4]
- “…not aware of any complaints having been raised or lodged with respect to Fusion in the Licensing Court in the last 12 months, or of there being any complaints to me or anyone else connected with the Club about noise coming from the Club while operating.
29 Ms D A Pinfold, Authorised Officer of Sutherland Shire Council, prepared the statement of facts and contentions dated 29 May 2006.
The council’s contentions
30 On 29 May 2006 the council filed a statement of contentions.
- IMPACT ON AMENITY
1. The proposed amendment to consent conditions to increase patron numbers from 300 to 440 is unsatisfactory, and should not be supported, as the increase in patron numbers is likely to contribute to adverse impacts experienced by the occupants of nearby development, both residential and commercial, in relation to noise and anti-social behaviour. The increase in patron numbers is likely to result in further occurrences of anti-social behaviour and noise disturbances associated with patrons leaving the premises in the early hours of the morning, particularly given the lack of available transport during those hours.
Particulars:
Sutherland Shire Local Environmental Plan 2006 (‘SSLEP 2006’). “…to preserve and enhance the quality of life of the local community”.
Environmental Planning and Assessment Act 1979, being “…the likely impacts of that development, including... social impacts ... in the locality”.
ASSESSMENT OF APPROPRIATE NUMBERS
2. The trial period set by the Court may not have been a suitable and representative assessment period to determine whether numbers should be increased.
Particulars:
ANY FURTHER TRIAL PERIOD
3. Any increase in numbers (which is not accepted) should not be granted on a final basis, but subject to a further trial period and, accordingly, conditions 25(b), 25(c) and 25(e) should be retained in a suitable form to enable assessment of any further increase to be assessed.
31 The salient issues were the numbers of patrons; and alleged anti-social behaviour.
The evidence and submissions
32 The council’s case was that if the patron numbers were to increase from 300 to 440 there would be likely adverse impacts experienced in nearby residential and commercial properties as a result of noise and alleged anti-social behaviour of patrons leaving the premises in the early hours of the morning. This, the council considered, would be exacerbated by the lack of available transport in the early hours.
33 The council being concerned for the “…quality of life of the local community” and the “…the likely impacts of that development, including... social impacts ... in the locality”, sought to impose a further trial period if the Court were minded to approve the increase in the number of patrons.
34 Mr Harris, town planner, supported the council’s case and stated, [Note: Exhibit 2, p13]:
- In my opinion, any increase in numbers permitted within the subject development, will coincide with proportional number of incidents of anti-social behaviour and adverse impacts on the amenity of residents within the Cronulla Town Centre and therefore should not be allowed.
35 His reasons for concluding this were based on anecdotal information and his ‘gut feeling’ despite his agreeing with Ms Price that, [Note: Exhibit 4, p2]:
- …the critical issue at the core of the current LEC proceedings relates to patron management and whether the staff and management of Fusion nightclub demonstrated during the trial period that they are able to implement effective patron management measures to minimise occurrences of anti-social behaviour and noise disturbance.
…even though patron numbers increased during the trial period (December 2006 – May 2007), the number of occurrences of anti-social behaviour declined when compared with the period January 2006 – June 2006
…the results of the trial period indicate that the more rigorous patron management measures implemented by the management and staff of Fusion nightclub and the noise attenuation measures installed at the premises (in accordance with the conditions of the development consent and plan of management) were successful in reducing occurrences of anti-social behaviour and noise disturbance during the trial period.
36 So successful have been the noise control and management measures that not one resident objection was lodged against the modification application when it was advertised. The only objection to an increase in the patron numbers was from the police.
37 Senior Constable Frost gave evidence that he did not object to the internal operation of the nightclub and that he was only concerned for the activity on the street. He indicated that most anti-social activity in the street is associated with people milling around outside the venue, and near the queue of people waiting to get in and involves the interaction of people on the street in the vicinity of Fusion. To this end he suggested an earlier lock-out time if the Court were minded to allow an increase in the number of patrons. He suggested that the present lock-out time of 2.00am be amended to 1.00am or earlier. He stated that he considered that any potential loss of patronage likely to flow from the earlier lock-out would be more than compensated by the increase in the number of patrons to 440.
38 Mr Reilly, as the council’s representative, submitted that there is a lack of evidence and uncertainty, surrounding the modification application, that this is a ‘fundamental problem’ and why there is need for a trial period. He submitted that a further trial period for the increased numbers of patrons would be consistent with the decision of Moore C in November 2006. He submitted that if the applicant seeks now to inject a further 140 people into the nightclub, then there would be uncertainty as to what will result.
39 He submitted that with increased numbers of patrons it might be that the nightclub being operated in accordance with the plan of management and security guards, might be successful and would effectively control noise and anti-social behaviour on the street. If it works here, it could be replicated in other places around NSW, he said. However, if the Court were to allow an increase to 440 patrons, and it failed, that consent would “…set in stone” that increased number of patrons and that would be “…allowed in perpetuity”.
40 Mr Reilly submitted that Fusion attracts people after dark and to impose on the community 440 patrons without a trial period might work and it might not. He said, “Let’s assess it”. He submitted, “[i]t might be a useful by-product of increasing [the numbers of patrons] to 440 [in that it] allows the queue to be reduced.” However, he submitted, that if the demand is flat and with little elasticity, as the applicant says, there would be expected to be fewer people in the queue. If elastic, the queues would be likely to be longer. He submitted that the applicant “Can’t say this would reduce the number of incidents.” He submitted that there is a need of a trial period.
41 Mr Miller, for the applicant, submitted that the council’s case reminded him of the concerns of people during the era of ‘Reds are under the beds’, and the fear engendered in the community by sayings such as “…we can’t see them, but we know they are there”. He submitted that the council was asking us to be ‘alert and alarmed’. He submitted that the council is taking a positive case against the applicant, allegedly, in the public interest, and came before the Court supported partly on the evidence of its town planner, based on nothing more than innuendo and anecdote.
42 He submitted that if there were any empirical evidence it would have been proffered. Police empirical argument in Exhibit 5 comprised a bar chart and graph prepared by others, using data dating back to 2003, and without any meaningful analysis. This evidence, he submitted, was based on records and COPS reports that are only as good as the information that went into them. Some incidents related to a person who before something happened kilometres away, had taken his last drink at Fusion. He referred the Court to specific incidents that fell, on his submission, into this doubtful category.
43 He submitted that the Court would take some comfort from the fact that the local area police following their charter did not say anything to the contrary of the claims of the nightclub. He submitted that Senior Constable Frost considered the internal operation of the nightclub to be satisfactory and that he (Frost) only took exception to the activity external to the venue in the street nearby. The police had not requested any additional security guards and their only response was for the lock-out to be altered from 2.00am as at present to midnight or 1am.
44 Mr Miller submitted that despite the fact that the statistics show that since the coming into operation of the plan of management there has been a lessening of anti-social behaviour and an improvement overall in the running of the nightclub the council sought no increase in the number of patrons.
45 Mr Miller submitted that the data suggests a marked improvement and there is nothing to suggest that 440 patrons would not lead to the maintenance of the status quo outside or at least for conditions not significantly worse than presently. Referring to the evidence of Mr Fleming, he submitted that the main problem is the end of the line of people waiting to gain entry to the nightclub. If the numbers inside were to increase, he submitted, there would be a likelihood that there would be fewer frustrated people to deal with and with tempers calm there might be a likelihood of less anti-social behaviour. He submitted that the noise issues had been addressed and the fact there were no resident objections on this occasion, tends to bear this out.
46 Mr Miller submitted that he couldn’t conceive of any reason for trial period and the police and the council have the ability to take action under s 104 of the Liquor Act or under a planning consent should there be any residual concerns for the operation of the nightclub.
Findings
47 The Court in this jurisdiction is often called upon to make decisions concerning applications in prospect. This is not normally justification to test the water with a trial period. Here, the trial period has been undertaken and it has been found to be successful in reducing occurrences of anti-social behaviour and noise disturbance.
48 Even if the anti-social behaviour in the street, were to increase proportionately as suggested by Mr Harris, it would be unlikely to reach those levels observed before the coming into operation of the plan of management of October 2006. The levels antisocial activity has decreased markedly and on some analyses by half. It is in the interests of the applicant to control the activity on the street and to this end it was Mr Fleming’s evidence that if more patrons were permitted inside the venue there would be fewer frustrated people waiting on the street. This must be of benefit in reducing anti-social behaviour.
49 Apart from the council’s fears that anti-social activity is likely to increase if the number of patrons were to increase to 440, there is no empirical data to support that fear. In fact the evidence might suggest otherwise.
50 At the hearing, the police indicated that if the Court were to permit the patron numbers to increase the lock-out should be earlier. Mr Fleming considered this would severely disadvantage his operation. This is a modification application and the council did not support the earlier lock-out. Thus, even if the Court were to consider it appropriate, and there is no evidence to support this conclusion, and it could not be imposed as a condition of consent.
51 For the above reasons, the appeal is upheld.
Conditions
52 The original conditions of consent are modified as outlined in Exhibit B. The plan of management is also amended to reflect the amended number of patrons.
Orders
53 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development Application 05/0900 for use of the first floor at Lot 261, DP 793641, being Nos 84 – 86 Cronulla Street, Cronulla, as a nightclub accommodating 440 persons is determined by the modifying of the development consent granted by the Court on 16 November 2006, subject to the Conditions 1 to 28 in Annexure A.
The exhibits except for Exhibits B and 1 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions and plan of management. These conditions and plan of management are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders, the conditions and plan of management may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders, conditions and plan of management are available on the Court’s web site at
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