Fleming v Sutherland Shire Council

[2006] NSWLEC 702

Land and Environment Court

of New South Wales

CITATION:	Fleming v Sutherland Shire Council [2006] NSWLEC 702
PARTIES:	APPLICANT Steven Fleming RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10157 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Contested conditions Nightclub Trading hours Security Anti-social behaviour .
CASES CITED:	Vinson v Randwick City Council 141 LGERA 27
DATES OF HEARING:	16 and 17 October 2006
EX TEMPORE JUDGMENT DATE:	10/17/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr D Miller, barrister INSTRUCTED BY Gadens Lawyers RESPONDENT Mr J Reilly, solicitor Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

17 October 2006

06/10157 Steven Fleming v Sutherland Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions 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 and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1989 against a number of conditions imposed by Sutherland Shire Council (the council) as part of its consideration and determination of Development Application 05/0900. The Council granted an approval for the conversion of the nature of the business being conducted at 84 Cronulla Street Cronulla (the premises) from a restaurant to a nightclub in February 2006 – imposing a number of conditions including those which are the subject of this appeal.

2. The granting of that approval had, in fact, effected the regularisation of an operational position that had applied at the premises for some years – the premises operating, and having operated for some considerable period of time, as a nightclub known as Fusion. Although there was some minor conflict in the evidence given by the town planners and by Superintendent Redfern (of the NSW Police Service) as to the nature of the patrons and also some conflict with the evidence given by Ms Johnson, the licensee of the premises, there seemed to broad agreement that the lower end of the age range of patronage was eighteen years and the upper general limit was in the mid thirties.

3. The matters that are in contention in the proceedings relate to the number of patrons to be permitted on the premises and the hours through which the premises should be permitted to trade on a number of evenings.

4. The nature of the dispute, with respect to patrons, arises in a variety of aspects, the first of which is that the technical carrying capacity of the premises based on an assessment of its area and of its access and emergency egress compliance pursuant to the Building Code of Australia would give a carrying capacity of some 440 persons.

5. Historically, until a change in the Place of Public Entertainment Permit (POPE) associated with and arising out of (or at least having its genesis in the present development application) the premises have historically traded with a permitted POPE limit of 300 persons, that being a number derived from calculations from the 1990 Restaurant Liquor Licence that was in evidence.

6. In conjunction with the present consent, the council has reduced that number to 250 as part of the development consent and that has been followed by a new POPE which was issued in the middle of this year which also reduced the number to 250.

7. I had the opportunity of inspecting the premises with the legal advisers to the parties and a number of persons advising the parties. I also, during the course of that view, heard evidence, informally, from a number of residents who live in units fronting Gerrale Street at Cronulla, that being the street to the east of Surf Lane which is the laneway at the rear of the premises. That evidence was given by two residents at a building known as Belgrave Apartments at 31-33 Gerrale Street and also from a resident of another block of units further to the south, being part of a complex on the corner of Gerrale Street, Surf Road and Surf Lane.

8. The concerns that were expressed by the residents, together with a significant number of written objections which are in evidence, relate to two matters:

• noise being emitted as part of the entertainment process being undertaken on the premises, particularly the bass noise described as a rhythmic and perceptible thumping noise that disturbed sleep patterns of residents to the east; and
• concerns about antisocial behaviour in Surf Lane of departing patrons – particularly at or about the vicinity of closing time.

9. A more general range of community concerns were put on behalf of the New South Wales Police Service by Superintendent Redfern, the Commander of the Miranda Local Area Command and by Mr Harris, a town planner, on behalf of the council. I have also had in evidence the records kept by the New South Wales Police Service about incidents, in the broadest interpretation of that word, which the Police computer system notes as having some connection with the premises.

10. The process for assessing whether or not trading hours should be extended or increases allowed in the number of permitted patrons were discussed by me in Vinson v Randwick City Council 141 LGERA 27 at (13). In Vinson, I set out five matters to be considered in determining whether or not some extension or concession should be permitted to an applicant. One of the elements of the matrix within which the present adverse impacts of premises are to be assessed necessarily arises from the present operational conditions of the consent that permits those premises to trade.

11. During the course of my inspection of the premises and my consideration of the present conditions of consent that have been imposed by the council, I have concluded that there are a number of deficiencies in those conditions. Indeed I am satisfied, for example, that the fact that there is no automatic intervention with respect to the entertainment system if the rear doors of the premises are to be opened during the course of the evening’s trading is a matter of considerable potential negative impact on the residents at the Belgrave Apartments. It is a matter comparatively easily rectified but one which is not addressed in the present conditions of consent.

12. I am satisfied that:

• sufficient of the noise impacts arise from gaps in the present conditions of consent; and
• there is a public interest for the residents on the vicinity of the premises to require rectification of those deficiencies.

13. However, I am also of the view that it would be inappropriate, although I would technically have jurisdiction to do so in these proceedings, to proceed to impose further restrictions on the applicant if I were, at the same time, minded to refuse all of the alterations to the conditions which the applicant itself seeks.

14. Having stated that as a matter of procedural fairness, I am also satisfied, entirely on the merits of the proceedings, that a number of changes should be permitted arising out of the matters sought by the applicant. The first of those goes to the question of permitted number of patrons.

15. There is no doubt that a consideration of the letter of objection lodged by the New South Wales Police Service to the original application and of the various steps that have followed thereafter that that letter was based on an objection to the conversion from restaurant to nightclub but also an objection to any increase in numbers but critically, apparently from the fourth page of the letter from Senior Constable Pickard to the Council dated 8 September 2005, an objection to the increase in numbers beyond 300 persons.

16. Three hundred persons, as I earlier noted, was the number that had, for a considerable period of time, been the permitted number under the then POPE and I am satisfied, based on that historical trading and on the acknowledgement by Mr Harris that the change in impact would not immediately be able to be distinguished if that were to be regularised, that it is appropriate to permit that historic position to be returned – that is, that the permanent number of patrons to be permitted for the premises should be 300.

17. The question that arises beyond that is whether there is, in the context of what was discussed in Vinson sufficient countervailing potential public benefit in a range of further restrictions being imposed on the applicant to permit some further relaxation of numbers and some change to trading hours.

18. I am satisfied that both of those questions should be answered in the affirmative.

19. Although I expressed a tentative view to the advocates, prior to inviting them to make closing submissions, that I was minded only to permit one element of the change to trading hours, on further reflection I am satisfied that it would be appropriate to permit the changes to trading hours as sought by the applicant – that is, in the revised plan of management that has been put in evidence, the trading hours should be permitted to be increased so that:

• on Sundays preceding public holidays, the applicant should be permitted to trade until 3am; and
• on public holidays, excluding public holidays on a Sunday, Christmas Day or Good Friday, the applicant should be permitted to trade until 3am on the following day; and
• on New Years Eve, no matter what day upon which it falls, the applicant should be permitted to trade until 3am.

20. I have reached that conclusion as I am satisfied that the concerns of the Police arise primarily from the nature of the conduct, rather than the days upon which occurs and that the matters that are to be dealt with arising out of the Plan of Management are appropriate to be dealt with both on a trial basis as to numbers and as to a permanent improvement in the operation of the premises whether or not that trial proves to be successful.

21. I have concluded that it would be appropriate to permit, for a trial period until 1 May 2007, a further increase in patrons from 300 to 350 – the alterations to trading hours and the increase to 300 patrons permanently only to be conditional on the satisfaction by the applicant of a number of matters to which I will refer relating to the operation of the premises.

22. As I address each of the issues, I make it clear that they are all to be implemented prior to the commencement of any of the three concessions that have been obtained by the applicant.

23. The first of those changes arises from what I consider to be the unsatisfactory physical nature of and custody of the security protections for the noise control equipment in the premises.

24. At the present time, although there is a noise limiter and it is locked, the keys to that lock remain in the custody of the applicant. As a matter of principle, and without making any adverse finding about this applicant personally, it is undesirable that that be the position both for the applicant and for the surrounding residents. The keys should be held by a third party; whether that is the Council or the Police or both is a matter which I am content to have settled by the applicant and the Council after consultation with the New South Wales Police Service.

25. In that regard, however, I notice that the wiring in the vicinity of the disk jockey station was such that it could not be described as tamper proof. I am of the view that that wiring should also be enclosed in a tamper proof enclosure and the locks or seals to that be subject to the same external control and supervision.

26. The next matter, which is a matter which, quite properly and promptly, Mr Miller, counsel for the applicant, conceded, is that no bottles or beverage containers should be removed down the rear stairs at the time of closing of the operation and that that should await the following business day. That has been set in a condition, appropriately in my view.

27. A regime to be modified from the proffered conditions should be established so that there will be two instances of random noise testing undertaken during the trial period at a time selected by the council; by an acoustic consultant selected by the council; at no notice to the applicant; but at cost to the applicant so that that information is available to the council and any other person who is to assess whether or not the trial period should be modified or otherwise extended.

28. There were matters which arose concerning the potential noise impact of the refrigeration and air-conditioning equipment operated by the premises and, as discussed with the advocates, that matter is to be subject to further discussion so that there is no intrusive noise arising out of the operation of that equipment which is not otherwise subsumed as and forming part of the background noise in the vicinity; such restriction, if necessary, to apply from midnight and be referable to any habitable room of a residential dwelling proximate to the premises.

29. Reed switches for noise control are to be affixed to the exit doors which permit emergency exit to Surf Lane at the rear of the premises so that during any time whilst entertainment is being conducted in the premises, if those doors are opened, the entertainment will cease.

30. During the course of the proceedings, I had a deal of evidence concerning external and independent security which is provided through a council and community business partnership operating under an umbrella known, generically in these proceedings, as Cronulla Promotions. It provides security guards which patrol the Cronulla Mall and the general business district in Cronulla until 4am on a variety of occasions – particularly on the potential high impact trading evenings when these premises are trading.

31. A condition is to be incorporated in the conditions of consent that will deal with the remotely possible contingency that Cronulla Promotions would fail and, as a result, the security vacuum that would be occasioned by such failure, with respect to these premises, would be picked up by these premises.

32. A number of matters concerning the detail of the concluding times for the shifts of the security guards arose so that they will be required, after they came on duty, to be on duty until half an hour after closing or the last patron had moved beyond Surf Road or Ocean Road (whichever took place at the later hour) and that has also been accepted by the applicant.

33. During the course of the dialogue which took place, I was taken to a variety of incident reports, provided under subpoena by the New South Wales Police Service, and volumes of which were tendered in evidence coupled with a most helpful summary prepared by the applicant.

34. I have cross checked a sufficient sample of the raw documents with that summary so as to be satisfied that, by and large, it is a representative and accurate description of what is contained therein. It is further summarised, as to at least a specific period, in the evidence of Ms Price, town planner on behalf of the applicant, at p 17 of her October Statement of Evidence, where she has indicated that, in her assessment, there were twenty-three legitimate incidents associated with the premises recorded during the relevant period of time.

35. I have considered both her summary and the summary provided by the applicant on the more general basis and had recourse to a number but not all of the individual Police incident reports. I am satisfied that I can accept the summary provided by Ms Price as being sufficiently accurate as to be one upon which I can found conclusions in these proceedings.

36. There were twenty-three legitimate incidents associated with the premises in her assessment. Two of those related to security officers alerting the Police as to false identification being offered to support application for entry to the premises; five were fights within the premises; nine related to aggression by patrons towards the premises’ security officers (when patrons were asked to leave because they were intoxicated); six related to aggression by patrons outside in a queuing process or when being refused entry; and one related to an alleged assault where there was some concern as to whether or not the assault took place.

37. By and large, I am satisfied that, to a sufficiently significantly extent as to be relevant, although the incidents occurred, they also demonstrate the efficacy of the security staff employed by the applicant in responding to them.

38. Whilst it is undoubtedly the position that there will be, from time to time, in conjunction with any licensed premises trading until the hours of the morning that these premises trade, security incidents, both within and without those premises, I am satisfied that, although there have been incidents, there have been, by and large, appropriate responses by the operators.

39. The question was raised of the fact that there have been a number of breaches by both the applicant and the licensee, for a variety of matters over the years. In the context of the recent breaches by the licensee as to permitted numbers, that was explained by her by either the absence of an accurate counting system because it had not been employed, or by the technical malfunctioning of that system.

40. I accept Mr Miller’s calculation (which was not contested by any of the witnesses) that there have been of the order of 24,000 patrons through the premises in the past three to four months. That is a considerable degree of patronage and, although there have been a number of incidents over that period of time, the number of incidents has not been so remarkable as to be absolutely unreasonable and unacceptable in the context of that number of patrons.

41. That, in my view, is a sufficient answer in totality to concerns as to whether, in the general, there is an appropriate response by the applicant and the licensee on the relevant issues.

42. I am also satisfied that it would be appropriate to require one minor improvement to the security.

43. I had indicated to Mr Miller that I was contemplating requiring an additional security guard to be posted in Surf Lane during the later hours of the trading periods of the premises.

44. In his closing submissions, he put that there might be industrial issues arising from such a requirement.

45. Against that possible risk, I am satisfied that it would be appropriate to impose a requirement in slightly different form but one which will still have benefit to the residents to the east of the premises.

46. The requirement therefore will be that on any night, when the premises trade after midnight, from midnight on that night until half an hour after the cessation of trading or the last patron had moved beyond Surf Road or Ocean Road, one additional security guard shall be employed and that there be a requirement that security personnel associated with the premises are to undertake a continuous foot patrol of the area which comprises Cronulla Street from the front of the premises to the south to Surf Road; into Surf Road; into Surf Lane; into Ocean Grove; and into Cronulla Street returning to the front of the premises.

47. That foot patrol is to be on a continuous basis from midnight until half an hour after the cessation of trading or the last patron had moved beyond Surf Road or Ocean Road.

48. If it becomes a matter of concern for the security company or the management or, indeed, the security staff themselves, as to whether that patrol should be one or two persons, that will be a matter that is capable of being dealt with at the discretion of the management in negotiations with the security staff. However, continuous patrolling during that period of time should occur and that would mean, on my assessment – absent the intervention of incidents, there will be a patrol through Surf Lane every fifteen minutes or so which should provide a degree of comfort to the residents.

49. I am satisfied, in the context of those improvements, that there is a suitable basis upon which the permanent alteration to 300 patrons; the permanent alterations to the hours of trading; and the trial period for the increase of patron numbers permitted from 300 to 350 can be granted. On that basis, the appeal will be upheld and the conditions of consent modified to reflect the terms I have just outlined, together with the settlement by the parties between themselves the matter relating to noise generated by the refrigeration and air-conditioning equipment associated with the premises. The exhibits, other than Exhibit P, will be retained.

50. I therefore give the following directions:

1. The applicant is to file and serve a revised plan of management reflecting the matters set out in this decision and settled with the respondent by the close of business on 20 October. Such document is to be filed electronically in accordance with Practice Direction 2 of 2005 and a separate e-mail notification to the Court is to be sent of that filing.
2. The respondent is to file and serve revised settled conditions of consent by the close of business on 27 October. Those conditions are also to be filed electronically in accordance with Practice Direction 2 of 2005 and a separate e-mail notification to be sent of their filing.
3. The matter is set down for callover before the Registrar on 31 October.
4. Liberty to re-list the matter before me, on two days notice, if any difficulties arise in settling either of the documents to which I have referred; and
5. If directions 1 and 2 are carried out, I will make orders in chambers and vacate the callover.

Commissioner of the Court