Hemmes Trading Pty Ltd v Council of the City of Sydney - [2010] NSWLEC 1124

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Hemmes Trading Pty Ltd
RESPONDENT
Council of the City of Sydney

FILE NUMBER(S): 10931 of 2009

CORAM: Brown C

KEY ISSUES: APPEAL :- modification to trading hours of licensed premises - whether trial period should be extended for existing nightclub - whether trial period should be extended for other existing facilites for 1 year or 5 years - whether premises displayed "good management"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96
Sydney Local Environmental Plan 2005
The City of Sydney Late Night Trading Premises Development Control Plan 2007

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 11,12, 13 May 2010

DATE OF JUDGMENT:
28 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr C McEwen SC with Mr P Clay, barrister
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

28 May 2010

10931 of 2009 Hemmes Trading Pty Ltd v Council of the City of Sydney
JUDGMENT

1 COMMISSIONER: This is an appeal against the partial refusal by the Council of the City of Sydney (the council) of application D/01/00437/D under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify the trading hours of an existing licensed premises (Establishment) at 248-252 George Street Sydney (the site).

2 In considering the application to modify the trading hours, the council has agreed to some aspects of the application but not others. The areas of disagreement relate to:

whether the trading hours of the Tank Nightclub should be extended to 10 a.m for a further five-year trial period beyond its existing approved base hours which require closing at 2 a.m., and
whether there should be a trial period for one year or for five years for the continuation of the present approved trading hours for other facilities in Establishment.

3 In general terms, the opposition by the council to any extended trading hours for the Tank Nightclub is based on the premises not being managed in an acceptable manner during the previous five-year trial. The restriction to a one-year trial period for the rest of the premises relies on similar evidence. While not identified in the council's contentions, the council also raised the issue of accessibility of Bridge Lane when used as a queuing area for access to the Tank Nightclub.

Background

4 On 8 February 1999, the council approved DA 0/98/05350 for the re-use of the heritage remains of George Patterson House and the Tank Stream Building and the construction of a new boutique hotel including restaurants, function areas, bars, a nightclub (the Tank Nightclub), 37 hotel guest rooms, 1 guest suite, and the construction of a new 9-storey tower ("the original Hotel consent). The original Hotel consent was subsequently implemented and is known as Establishment.

5 Condition 173(a) of the original Hotel consent, as modified by s 96 application D/98/05350G, approved on 23 October 2000 ("the modified original Hotel consent), approved the trading hours of the various facilities of Establishment as follows:-

Main Bar – 10 am - 1 am,
Street Bar – 7 am - 1 am,
Gaming Lounge – 10 am - 1 am,
Tank Stream Bar – 10 am - 1 am,
Tank Nightclub – 10 am - 2 am,
Restaurant - 7 am - 1 am,
Function rooms – 7 am - 1 am,
Hemmesphere Lounge Bar – 10 am - 1 am, and
Hotel – 24 hours.

6 Notwithstanding the above, Condition 173(b) of the modified original Hotel consent permitted the following extended trading hours for the various facilities of Establishment for a trial period of one year:-

Main Bar – 1 am - 3 am,
Street Bar – 1 am - 3 am,
Gaming Lounge – 1 am - 5 am,
Tank Stream Bar – 1 am - 3 am,
Tank Nightclub – 2 am - 10 am,
Restaurant - 1 am - 2 am,
Function rooms – 1 am - 3 am, and
Hemmesphere Lounge Bar – 1 am - 3 am.

7 Condition 173(d) of the amended original Hotel consent provided that a further application may be lodged to modify the terms of the hours of use of the Hotel before the expiration of the one-year trial period:-

for the Council’s consideration of the continuation of the use between these hours, with such consideration being based, inter alia, on the performance of the hotel operator in relation to compliance with the conditions imposed on this consent, any complaints received and any views expressed by the Police.

8 Pursuant to condition 173(d) of the modified original Hotel consent, a development application (D/01/00437) was lodged in July 2001 to continue, on a permanent basis, the extended hours of the Hotel. D/01/00437 was approved on 21 September 2001 but only for a further 12-month trial period expiring on 20 September 2002 (the 2001 extended trading hours consent).

9 A s 96 application (D/01/00437A) to modify the 2001 extended trading hours consent was subsequently approved on 18 March 2003, thereby extending the extended hours trial period for a further 12 months, expiring on 20 September 2003.

10 In November 2003, a second s 96 application (D/01/00437B) to modify the 2001 extended trading hours consent was lodged, seeking approval to extend the extended hours for a trial period of five years. D/01/00437B was approved in February 2004 and extended the extended hours trial period until 20 September 2008 (the 2004 extended trading hours consent). Pursuant to the 2004 extended trading hours consent, the extended trading hours which were approved are as follows:-

Main Bar – 1 am - 3 am,
Street Bar – 1 am - 3 am,
Gaming Lounge – 1 am - 3 am,
Tank Stream Bar – 1 am - 3 am,
Tank Nightclub – 2 am - 10 am,
Restaurant - 1 am - 2 am,
Function rooms – 1 am - 3 am, and
Hemmesphere Lounge Bar – 1 am - 3 am.

11 A third s 96 application (D/01/00437C) was subsequently lodged but was later withdrawn.

12 On 21 April 2009, Council granted consent to a development application (D/2009/393) for the use of Tank Nightclub as a place of public entertainment (the Tank POPE consent). The Tank POPE consent expires on 21 April 2011 and authorises live music performance, disc jockey, music and dancing functions, and nominates a capacity of 810 persons (400 in the basement and 410 on the lower ground floor).

13 On 7 May 2009, Council granted consent to a development application (D/2008/1467/B) for the use of the Establishment Hotel as a place of public entertainment ("the Establishment POPE consent"). The Establishment POPE consent expires on 8 January 2011 and authorises live music performance, disc jockey, music and dancing functions, and nominates a capacity of 2,600 persons (1,000 persons on the ground floor, 150 persons on ground floor Zone (B), 300 persons on Level 1, 400 persons on Level 2, 400 persons on Level 3 and 350 persons on Level 4).

14 On 29 May 2009, a fourth s 96 application (D/01/004370) to modify the 2001 extended trading hours consent was lodged to retain the extended trading hours approved pursuant to the 2004 extended trading hours consent. The proposal was publicly notified, resulting in 21 objections and one letter of support. Arising from their consideration of the objections, Council officers advised the applicant they would recommend that the council refuse the proposal. The applicant then sought and was granted further time to respond to the matters raised in the objections and further information was submitted to the council on 9 September 2009.

15 On 7 December 2009, D/01/00437/D to modify the 2001 extended trading hours consent was approved, in part, by allowing the continuation of extended operating hours for all the facilities of Establishment til 3.00 am (from 1.00 am) for a one year trial with the exception of the Tank Nightclub which was not granted a further trial period of extended hours and as such the trading hours were restricted to 2.00 am.

The site

16 Establishment is located at 248 - 252 George, Sydney, between Abercrombie Lane and Bridge Street and bounded by George Street to the west, Abercrombie Lane to the south, Tank Stream Way to the east and Bridge Lane to the north.

17 There are five points of access and egress to the public areas of Establishment. The main entrances are on George Street that provides access to the Main Bar, Street Bar, gaming lounge, restaurant, function rooms, the Hemmesphere Lounge Bar and the offices. The entry to Tank Nightclub is in Bridge Lane, as is the entry to the guests' accommodation. The Tank Stream Bar entry is on Tank Stream Lane and this bar is also linked to the reception lobby of the guests' accommodation.

18 The floor area of Establishment is approximately 8000 sq m with a capacity of around 3200 patrons at any one time. The busiest nights are Friday and Saturday nights where there is a patron turnover around 7000 to 9000 patrons. Annually, Establishment caters for around one million patrons. The Tank Nightclub operates principally on Friday and Saturday nights and has a capacity of 810 patrons and has around 104,000 patrons annually.

19 The immediate locality is predominantly commercial in nature containing commercial office buildings, retail outlets, hospitality uses and other late night trading premises. There is a 170 room serviced apartment complex to the south of Establishment known as "Mantra", located at the corner of George Street and Bond Street. Apart from Mantra (and the guest accommodation within Establishment), the closest other residential type accommodation to Establishment is "Cliveden" at 4 Bridge Street, around 80 m from the site. Within around a 100 m radius of Establishment there are 4 hotels: the Radisson Plaza to the south-east, the All-Seasons Premier Menzies to the south, Rydges Jamison to the west and Sydney Harbour Marriott to the north-east. The Four Seasons is further to the north.

20 Nearby late trading licensed premises in the vicinity of the site are the Brooklyn Hotel (5 a.m. closing), Jacksons on George (24 hour trading), the Metropolitan Hotel (24 hour trading), Ryan’s Bar (2 a.m. closing), the Grand Hotel (2 a.m. closing Friday night and 1 a.m. closing Saturday night).

21 A McDonalds restaurant is located on the corner of George Street and Bridge Street and operates 24 hours a day.

The relevant planning controls

22 The site is located within the City Centre zone under Sydney Local Environmental Plan 2005 (LEP 2005). Clause 11 provides Aims of the plan. The relevant aims are:

(a) to protect and enhance the diversity and special qualities of the City of Sydney and its surrounding areas, and

(b) to establish the City of Sydney as the best place to live in, work in and visit, and

(c) to foster environmental, economic, social and physical well-being so that the City of Sydney continues to develop as an integrated, balanced, sustainable and prosperous living city of world standing, and

23 Clause 12 provides strategies for achieving aims of the plan. The relevant strategies are:

(a) development of the City of Sydney as a vibrant, culturally diverse, multi-use city centre, and

.

(d) provision of visitor and tourist accommodation, and

(e) enhancement of Central Sydney as Australia's pre-eminent retail centre, and

(f) protection and enhancement of the amenity of residents, workers and visitors, and

(g) protection and enhancement of the quality and amenity of the public domain - the parks, places, streets and lanes, and

24 Part 6 provides provisions for specific uses, including late-night pubs and the like. Clause 28 provides the following relevant objectives:

a) to minimise the impact of certain uses which may degrade the amenity of the City of Sydney, such as amusement centres, brothels, restricted premises, late opening pubs and the like, and

(b) to ensure that such uses are not concentrate together, and that their cumulative impact is assessed, and

(c) to improve the character and attractiveness of the City of Sydney for residential, retail, commercial and cultural activities.

25 Clause 29 provides that consent may be granted to carrying out of late opening pubs and the like only if the consent authority is satisfied that:

(a) the proposal would not have a detrimental impact on the amenity of the locality and the desired character of the locality, as indicated by:

(i) the objectives for the zone in which the land is situated, and

(ii) if the land is in a Special Area, the character statements and specific objectives for the Special Area as set out in Schedule 6,

26 The relevant zone objectives are:

b) to permit a diversity of uses which reinforce the multi-use character of Central Sydney, and

(h) to recognise and enhance the character of Special Areas, and

(j) to protect the fine-grained urban fabric of Central Sydney, especially the existing network of streets and lanes, and to provide for high-quality development that contributes to the existing urban form, and

27 Part 7 provides requirements for Special Areas. Clause 79 provides that the consent authority, in considering a development application for land in a Special Area must have regard, relevantly to:

(c) the character statement and the specific objectives for the Special Area, as set out in Schedule 6,

(e) any plan of management required by the consent authority,

(f) the provisions of any relevant development control plan or policy adopted by the Council.

28 The site falls within Bridge Street/Macquarie Place Special Area in Schedule 6. Clause 7 of Schedule 6 specifies the Character Statement and Objectives. Objective (c) states

(c) to conserve the existing significant laneways in the area and encourage active uses, where compatible with their significance,

(DCP 2007) applies. Clause 2.1 provides aims. The clause states, in part:

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

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

Late trading hours are considered by the City of Sydney Council to be a privilege. Late trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods.

30 Clause 2.2 provides objectives for DCP 2007. The relevant objectives are:

b. ensure that late-night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses;

c. ensure that a commitment is made by operators of late-night trading premises to good management through the implementation of robust plans of management;

.

g. prevent the proliferation of poorly managed high impact late night premises

.

j. provide the possibility of extensions of trading hours for premises where they have demonstrated good management during trial periods;

31 Clause 2.4 categorises late-night trading premises. The site falls within Category A Premises - High Impact. Clause 2.5 identifies a hierarchy of three late-night trading areas within the City of Sydney. The site is located within a Late Night Management Area. Table 1 identifies the base and extended trading hours that apply to the various categories of late-night trading premises and their locations. For the site, the base trading hours are 6 a.m. to midnight and the extended trading hours are 24-hours.

32 Appendix 1 provides Late Night Trading Area Character Strategies. The Key Defining Elements for a Late Night Management Area are described as:

have historically been the focal point for varied late night social and recreational activity; or
are, at least in part, places with a distinct late night entertainment character; or
where this character is evolving and the Area is considered by the Council to have the capacity for an increase in late night trading premises

These places should be vibrant and multifunctional places where people can go out late at night in safety without affecting the amenity of nearby and residents. Patrons of late night trading premises should be able to take advantage of a diverse range of cultural and entertainment opportunities in close proximity to each other; without one particular type of late night use dominating which may usurp the diversity and attraction of the area.

Late Night Management Areas are often regional "destinations" that have accessible and frequent public transport at night and usually have their main focus on main streets or tourist locations where people shop, meet, work and live. Given the likely higher level of visitation and the possibility of long trading hours, it is important that all premises, especially those "high impact" premises are well-managed and regulated.

33 In relation to Issues and Management, Appendix 1 states, in part:

Due to the concentration of late night trading premises in Late Night Management Areas, the cumulative noise levels, generation of human and vehicle traffic, and activity levels will be an issue, more so than in any other late night trading areas. Whilst it is acknowledged that noise and late night activity is a key characteristic of these areas, it is also essential to manage the cumulative impacts of late night trading premises in Late Night Management Areas and to effectively manage each individual late night premises within the area.

34 In relation to Trading Hours, Appendix 1 states, in part:

Extended hours can allow Late Night Management Areas to reinforce their role as centres of activity which offer entertainment, social and cultural opportunities that attract both locals and international visitors. Early morning trading hours may be acceptable for premises located in Late Night Management Areas where proponents can verify over time that noise, safety and amenity impacts can be managed to a level which is at an acceptable community standard. Up to 24 hour trading may be permissible in Late Night Management Areas; but only in circumstances where applicants have a sustained track record of good management, minimising amenity and safety impacts.

35 Clause 2.6 provides matters for consideration in determining appropriate trading hours for late night trading premises. The relevant considerations are:

b. the specific nature of the premises, i.e. pub, nightclub, restaurant etc and the proposed hours of operation;

c. the existing hours of operation of surrounding business uses;

d. the size and patron capacity of the premises;

.

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

.

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

Once these factors are taken into consideration late night trading hours may be permitted in appropriate circumstances, particularly in areas within the City that already exhibit a vibrant night time character, as opposed to parts of the City that are predominantly residential in character where amenity impacts can be the greatest and most difficult to manage.

36 Clause 2.7 provides details on Trial Periods. The clause relevantly states:

Approvals for late night trading premises will be limited in time to enable Council to assess the ongoing management performance of a premises and its impact on neighbourhood amenity.

Any extended hours (i.e. beyond the "base" hours identified in Table 1) will be subject to a trial period. Trial periods also allow Council the flexibility to review the conditions on development consents and respond to such things as changes in the late night character of a neighbourhood and changes in management.

If the council determines that a trial period has been unsatisfactory then trading hours will revert to the base hours. Council will consult with applicant prior to making a determination.

37 Clause 2.9 addresses Plans of Management. For the monitoring and review of a plan of management at the conclusion of a trial period, a new plan of management should be provided that addresses changes in the operation that have occurred during the trial period. The council will undertake its own review of the level of compliance with the plan of management and whether the trial period has been successful including a consideration of complaints to the council, the Liquor Administration Board, inspections by council officers and police complaints.

The evidence

38 The council provided expert evidence from Mr Andrew Rees, a town planner and Constable Natalie Stewart, a Licensing Constable from The Rocks Local Area Command. The applicant provided expert evidence from Mr Robert Chambers, a town planner, Mr John Laycock, a retired Assistant Commissioner of Police in New South Wales, Mr Jonathan Slingo, the General Manager and Licensee of the Establishment Hotel and Mr Brett Sergeant, the General Manager Hospitality for the Merivale group consisting of eight licensed premises, including Establishment. Mr Slingo and Mr Sergeant were not required for cross-examination.

The council evidence

39 Mr Rees states that the proposal to extend the trading hours of the Tank Nightclub does not comply with the aims of the LEP 2005. The extended trading hours are also contrary to the intent of other specific clauses in LEP 2005 related to the appropriate management of late night trading premises. Mr Rees states that his opinion is based on data that directly links serious acts of violence and anti-social behaviour to the Tank Nightclub. The main source being the Computerised Operational Policing System (COPS) data from New South Wales police as well as an internal memos from the councils Licensed Premises Co-ordinator which documents observations of the area immediately outside the Tank Nightclub.

40 Mr Rees states that only a combination of a robust plan of management and a reduction in operating hours of the Tank Nightclub is likely to lead to a reduction in alcohol related instances of anti-social behaviour. One, without the other, does not lead to a satisfactory outcome. In his opinion, the premises has a poor record of management and is unable to curtail anti-social behaviour and alcohol related violence and consistent with DCP 2007, the trading hours of the Tank Nightclub should revert back to the base hours of a 2 a.m. closing.

41 Constable Stewart states that her role as Licensing Constable involves enforcement of the Liquor Act 2007, the Local Government Act 1993, the Summary Offences Act 1998, monitoring noise complaints, other incidents in and around licensed premises, liaising and collaborating regularly with licensees and deterring and detecting alcohol-related crime. She opposes the five-year trial period and relies on the following sources of information:

42 COPS data: this data is based upon incidents of violence reported to police. COPS incidents can be classified as "accepted", "rejected" or "doubtful". The Liquor Act 2007 only allows police to review incidents that have been reported in a COPS record. The council relies on 38 COPS incidents between 19.09.08 and 12.12.09 (Exhibit 4) although the council originally identified 174 COPS events.

s 56 of the Liquor Act 2007 requires that if a licensed premises sells or supplies liquor after midnight, it is a condition of the license that the licensee maintains an incident register. Constable Stewart states that she has read all Incident Log Books from 12 January 2008 to 8 March 2010 and identified where a possible criminal offence has taken place from the notations in the Incident Log Books. She notes that not all incidents need to be reported to police however she notes that the Incident Log Book records certain events that, in her opinion, should have been reported to the police. The incidents total 51 although Constable Stewart concedes that not all of the identified incidents are significant. Constable Stewart identifies 9 specific incidents (Exhibit 7, “NAS-3” Incidents 1 to 9 below). She was particularly concerned over 7 of these incidents and specifically addresses these incidents in her evidence (Incidents 1, 2, 3, 4, 5, 6 and 8 below). Incidents 1 to 9 are described in the Incident Log Book as:

Incident 1 - "1 male removed for attempting to strangle a female" (2.00 am-01.02.08),
Incident 2 - "1 male caught with drugs-evicted & drugs disposed of" (2.48 am-09/02/08),
Incident 3 - "1 x male required first aid after alleging he was struck in the head with a bottle-(name address and phone number of male provided)-Corey sustained a small cut the top of his head-first aid was administered by Manager…. and he was released to the care of his friends shortly after" (2.30 am – 13.07.08),
Incident 4 - "2 x males escorted out after fighting. Around 2300, it was brought to my attention that an AVS guard had assaulted a patron. This was money known to both Keith and Craig. No charges were laid. No police were involved". (11.00 pm – 30.08.08),
Incident 5 - "1 x male received first aid after receiving an alleged "bottle" to the head-(name address and phone number of male provided)- William received first aid to a small open wound to the top of his head-no further treatment required apart from cleaning the area" - (1.30 am -20.12.08),
Incident 6 - "1 x male aggressively pushes a female into a pole- custom styled beard with shaved head-was escorted off the premises wearing white check shirt" - (3.16 am - 03.04.09),
Incident 7 - "2 x males had a altercation - a male in a Black top medium Build and 1 Large solid build - the male with the solid Build started the altercation in Tank top toilets - I called for Back up and … attended - we used to reasonable force to escort the males out - the male in the yellow top was injured - we applied Basic first aid to him - (1.45 am - 19.04.09),

was restrained and front door By …, Bernard for assaulting one of the males involved in the fight. Police were in the lane at the time of the assault and arrested the girl and took security and patrons details. Two males injured and treated at Hospital. Police to collect footage next day. ET"

Incident 8 - "ATL by (touching ladies)" - (2.15 am-31.05.09),
Incident 9 - "4 uniforms, 4 UC police + K9 – 1 hit, neg find. Tank top only. 2 ID’s given to Samsa Lic, not them." - (23.20 am-26.09.09),

44 In her opinion, this represents a practice of failing to call police when incidents occur and results in the risk rating (see paragraph below) being lower than it would be if or when incidents that should have been reported, were reported. Constable Stewart also notes that the name and contact details of many of the victims in the Incident Log Book were not recorded.

45 Bureau of Crime Statistics and Research (BOCSAR) data: BOCSAR data provides a system of levels based on reported incidents of violence at licensed premises for a 12-month period. Any premises that has 19 or more reported incidents of violence is ranked as Level 1 and subject to stringent conditions on their liquor licence until the next review takes place. These conditions include a 2 a.m. lockout, no glass within the premises after midnight, drink restrictions, and the sale of alcohol ceasing 30 minutes prior to closure. The BOCSAR data is based on COPS events although identified COPS incidents can be classified as "accepted", "rejected" or "doubtful" with only incidents classified as "accepted" are included in BOCSAR data. Drug activity is not included in the BOCSAR data.

46 There is currently a dispute over whether the relevant number of incidents is 18 or 19 with the consequence that the BOCSAR ranking will either be Level 1 (for 19 incidents) or Level 2 (for 18 incidents).

47 Escalated Licensing Operations Response Model (ELORM) data: the model is a tool used to measure the impact of a particular licensed premises. It is determined by attaching a numeric weight to each incident, which occurs on the premises and also incidents which may involve patrons who have recently left the premises. The relevant categories are alcohol linking program, under age, violence, malicious damage, stealing, Security Industry Act and criminal intelligence.

48 In autumn 2009, the ELORM rating for the Establishment (and not just the Tank Nightclub) was "extreme" however for the 2009/10 summer period, the ELORM rating was "medium" with a numerical score of 25. A numerical score of 24 would attract a ranking of "low".

The applicant’s evidence

49 Mr Chambers states that the five-year trial extension for the Tank Nightclub is reasonable and appropriate for a number of reasons. The Tank Nightclub has operated with extended trading hours since September 2000 generally without unreasonable impact on the quiet and good order of the neighbourhood because management has been generally successful in managing and mitigating anti-social behaviour through the Security Plan of Management.

50 The Tank Nightclub is suitably located off a laneway, within the Late Night Management Area identified by the council and is relatively remote from residential premises. Mr Chambers states the Tank Nightclub is an important contributor to the cultural life of the Sydney CBD and adds vibrancy, vitality and supports the multi-use character of the city consistent with the aims of LEP 2005.

51 Establishment has already been the subject of four separate one-year trial periods and a five-year trial period. During this time the number of complaints from residents, the Office of Liquor Gaming and Racing and the police was low and not of such substance as to warrant a trial period less than five years.

52 Mr Laycock states that while there are a number of incidents that can be related to the premises, these need to be balanced against other reports relied upon by the applicants experts (such as the BOCSAR and ELORM data) that are of doubtful value as they have no firm or established links to Establishment or the Tank Nightclub. In Mr Laycock's opinion, it is impossible to isolate patrons from Establishment or the Tank Nightclub from other nearby licensed premises, tourists, local residents and from numerous other persons attending the McDonald's restaurant. Similarly, to attribute all patronage and all incidents to Establishment paints a false picture of the source of anti-social behaviour in the area.

53 Mr Laycock states that a COPS entry is to make a record of reports of crime and the policing operational response. The creation of the data is for policing purposes and the selective use of that data for another purpose, in this case, to determine the performance of the licensed premises, is not always going to produce the correct result. While the report of a crime in most cases is accurate and can be relied upon for its validity, reports of crime by themselves should not always be taken as evidence or indeed an accurate record of what has occurred. It is not uncommon in most categories of crime for persons to make a false report of a crime, embellish circumstances in order to gain some advantage or use such the report as a subterfuge for other activities.

54 As an example, Mr Laycock notes that in October 2009 BOCSAR statistics were provided to the Local Area Commander at The Rocks. Following consultation with representatives of Establishment, the number of incidents was reduced from 20 to 12 thereby changing the BOCSAR ranking from Level 1 to Level 2 (and very close to Level 3).

55 Mr Laycock analyses the 174 COPS entries for the period 20.08.08 to 06.02.10 and provides the following categorisation:

Business inspections - 87
Drug search (nil find) - 33
Drug search (possession) -9
Assault - 18 (5 doubtful)
Sexual assault – 1 (occurred away from premises)
Remove patron - 8
Lost property - 7
Refuse entry - 3
Intoxication - 1
Miscellaneous - 7

56 Based on the COPS entries, Mr Laycock states that some of the assault incidents are "spillover" incidents from the previous review period and at least 5 of the assaults have doubtful linkages to Establishment or Tank Nightclub or have been rejected. Of the 9 drug possessions, the drugs seized were of minor quantities of recreational drugs and several of these incidents have dubious links to the Tank Nightclub. Overall, Mr Laycock maintains that the number of alcohol related incidents is extremely low, even if the unreliable statistical data is used. In his opinion, there is no reason why the five-year trial should not be granted.

57 Mr Slingo states that since September 2009 and during the evenings that he works, he has observed that security guards undertake external patrols approximately once every hour between 7 p.m. until close. He also states that he has undertaken additional external patrols two times each evening. Following a meeting in October 2009, Mr Slingo states that he makes regular weekly phone calls to the police to ensure that no events or assaults occur without immediate investigation. He maintains a log of calls and the last time there was any incident, relevant to the BOCSAR data, was on 20 October 2009.

58 In response to Constable Stewart’s evidence that the police are not appropriately called to the premises when incident occurs, Mr Slingo sets out the company policy for calling police to incidents. He states that where possible all serious incidents will be referred to a manager, who will then call the police. Except in emergency situations, managers make a decision as to whether to call the police. Managers are in constant radio communication with security in order to immediately attend any situation as required and assist in any issues that arise. The decision to contact the police is a subjective one and will depend on the circumstances of each case. Based on his observations security staff had not been required to call police on many occasions. This is due to the amount of business inspections undertaken by police and the amount of time police drive past the venue. In his experience, police attend most regularly during busy periods and by way of example, Mr Slingo states that on 16 and 17 April 2010, there were at least six business inspections by police. Training sessions with security managers and supervisors are conducted approximately every month, with reference to the responsibilities in the Plan of Management.

59 In response to Constable Stewarts evidence that the Incident Log Books are not correctly filled out by security staff, Mr Slingo states that it is his experience that many victims do not want the police contacted. Such victims usually leave the premises soon after an incident occurs. In his understanding, security staff had no power to compel victims to provide personal contact information or compel victims to remain on the premises. As Licensee, Mr Slingo states that he instructs security staff to record all incidents in the Incident Log Book consistent with legislative requirements, irrespective of whether the victim wishes to make a formal complaint or not. Personal details are provided where possible. Of the 7 matters identified by Constable Stewart, Mr Slingo concedes that police should have been called regardless of whether the alleged victim wanted police to be called for Incidents 1 and 2 however he indicates that measures are now in place to ensure that police are called if such an incident occurs in the future. For Incidents 3, 4 and 5, Mr Slingo states that there is insufficient information to allow a decision whether police should have been called. For Incidents 6 and 8, Mr Slingo states that if the female wanted to make a complaint to the police, security should have contacted the police however there is no mention of the female involved being injured, nor is there any record of the female wanting the police called.

60 Mr Slingo identifies the number of business inspections undertaken by the police of the Tank Nightclub between 09.02.08 and 30.01.10 as 100 and at no time during these visits did the police raise any concern similar to those of Constable Stewart about the Incident Log Book. Mr Slingo further states that on no occasion did the police make a record in the Incident Log Book in relation to the quality of reporting nor have any police officer made any comment to himself or any other relevant manager, on the manner in which the Incident Log books have been completed. If concerns were raised at any time, measures would have been put into place to address these issues.

61 In relation to drug use, Mr Slingo states that the police have conducted a large number of searches inside the venue, with extremely limited positive results. Staff are instructed in relation to the enforcement of a policy relating to illegal drugs outlined in the Plan of Management.

62 Mr Slingo states that changes, in conjunction with the police, were made to the security for the Tank Nightclub to address the issue of the outlaw motorcycle gangs. In his understanding, the last occurrence of outlaw motorcycle gangs was on 13 June 2009 and police have not raised any concerns since this time.

63 Mr Sergeant states that he oversees the implementation of the Responsible Service of Alcohol (RSA) at the Tank Nightclub. All staff that sell and serve alcohol, security staff and all RSA marshals hold current RSA Certificates. To the best of his knowledge, Establishment does not have any record of breaches in relation to intoxication or any other matter with the Office of Licensing, Gaming and Revenue.

64 Mr Sergeant rejects the conclusions of Constable Stewart that the number of patrons removed from the premises is an indication that staff are not serving alcohol responsibly but rather that the number of patrons removed from the premises is an indication that staff are actively monitoring the levels of intoxication and the behaviour of patrons consistent with a commitment to RSA.

65 Mr Sergeant also addresses the policy on calling police. The policy has been formally adopted in the Plan of Management and relevantly states:

In the event where there is a requirement for police attendance security operative/s to report such to the Duty Manager who will take the necessary steps to engage a police response. The responding security officer/s must record any such incident, what action was taken and the final outcome in the security incident/occurrence log.

66 Mr Sergeant reiterates the comments of Mr Slingo about the weekly meetings with police and specifically that there have been no issues arising from the weekly contact with The Rocks Local Area Command since 15 October 2009.

Findings
What is the appropriate framework for the consideration of the proposed operating hours?

67 In considering the application to extend the operating hours the Court was asked to rely on LEP 2005, DCP 2007, the COPS incidents, BOCSAR data and the ELORM ratings in its consideration of the proposed application. The question is complicated by the existing approval framework that requires separate approvals under the EPA Act and the Liquor Act 2007 for trading hours for a licensed premises.

68 This application seeks to amend the operating hours under the EPA Act so DCP 2007 is the principle document for considering the application. The weight to be given to a development control plan (DCP) is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373 where Spigelman CJ (at par 75) raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion 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 a 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 it is not in itself determinative.

69 Although I accept the COPS incident reports are matters that may be relevant to an assessment under DCP 2007, BOCSAR and ELORM ratings are used generally by the police through their Liquor Act responsibilities and raise different assessment criteria to DCP 2007. The BOCSAR and the ELORM ratings are a mathematical ranking based on specific incidents. It is a quantitative assessment. The emphasis in DCP 2007 is a qualitative assessment largely based on good management (for example, see cll 2.1, 2.2, 2.8, 2.9) through a robust plan of management (cll 2.2(c), 2.6(5)). The amenity of residential properties is also a relevant consideration (cll 2.1, 2.2b, 2.6 and 2.9).

What does DCP 2007 require?

70 In general terms, DCP 2007 provides a range of operating hours for different night trading areas. The suitability of the operating hours is tested through a series of rolling trial periods. More flexible trading hours are permitted in areas where adverse amenity impacts on residential neighbourhoods are likely to be lower and/or considered capable of being managed. The site is located within a Late Night Management Area under DCP 2007 as being suitable for 24-hour operation but subject to acceptable trial periods. This area provides the greatest flexibility in operating hours of the areas designated under DCP 2007.

What is good management?

71 Good management is not defined in DCP 2007 but it would be reasonable to accept that if there was general compliance with the Plan of Management then the premises could be seen to have good management. The Plan of Management represents those matters capable of being addressed by management consistent with their legal obligations. Given the use as a nightclub, the number of people attending the nightclub and the serving of alcohol, it would be unrealistic to expect that there would be no instances of anti-social behaviour. It would also be unrealistic to expect security staff to instantly address any problems given the often spontaneous nature of these events. These events may involve some breaches of the Plan of Management. In my view, the test of good management includes how management responds at the time of the incident and how management responds through ongoing or revised management practices. Conversely, poor management may include a large number of unacceptable incidents or whether there was a consistent pattern of unacceptable incidents.

Has there been good management?

72 The evidence addressed a number of areas and these can be grouped into the following areas:

the Plan of Management,
COPS data,
BOCSAR and ELORM rankings,
the Incident Log Book,
Office of Gaming and Liquor Administration,
council inspections,
council complaints
police inspections, and
outlaw motorcycle gangs.

The Plan of Management

73 The current Plan of Management was considered by Mr Chambers and Mr Rees prior to the hearing and the issue of queuing in Bridge Street (for special events) was amended in line with their discussions. This was further discussed at the hearing and the temporary barricades extended further along Bridge Street for the full frontage of the Burns Philp Buiding rather than approximately half of the frontage. At the hearing, Constable Stewart also requested some amendment to par 38 - Illegal Drugs. This was agreed by the applicant and the Plan of Management amended to reflect Constable Stewart’s suggestions. As I understand, there were no further amendments that were considered necessary or desirable by Mr Rees or Constable Stewart to the Plan of Management.

74 On this basis, the Plan of management could be described as “robust”.

COPS data

75 The original COPS data included 174 entries for the period 20.08.08 to 06.02.10 although the council reasonably accepted that the relevant number of entries was in the order of 38 incidents between 19.09.08 and 12.12.09. Both parties accepted that this was a reasonable timeframe in which to judge the past performance of the management of the Tank Nightclub.

76 Mr McEwen SC, for the applicant, refers to 36 COPS events (although Exhibit 4 provides 38 events) and submits that:

16 events occurred at or after 2 p.m. (putting aside the relevance or lack thereof),
14 events involved violence, where 3 events occurred elsewhere, entirely unrelated to Establishment,
of the remaining 11 events, 1 event is doubtful (E 37271173)
of the remaining 10 events, 4 occurred outside the premises and 6 occurred inside the premises, and
of the remaining 10 events, 5 events occurred before 2 a.m. and 5 events occurred after 2 a.m.

77 Mr McEwen submits that only 4 events relate to the management of the Tank Nightclub. These are:

assault after argument in queue (E 38600419),
person leaving with bottle of alcohol (E 37199026),
person bringing in bottle of alcohol (E 37256550),and
queue disrupting pedestrian traffic (E 37375677).

78 In his submission, Mr McEwen states that these events do not suggest anything but good management given the inevitability and expectations that there will be from time to time incidents of anti-social behaviour by patrons of licensed premises.

79 Mr McEwen further submits that the council's proposition that the Tank Nightclub promotes a "drug culture" and is a further sign of poor management must be disregarded as even on the evidence put forward by the police, the evidence of drug use is miniscule compared to the number of patrons and opportunities the police have taken to check for drug use. There is some doubt whether this is a relevant consideration for the Court, and even if this is the case, council officers have stated in reports to the council that "the enforcement of the law in this respect lies with the NSW Police and not with the Council". Importantly, the fact that there may be some drug use by patrons is not evidence of poor management. There is no power for security personnel to search patrons and if there is covert drug use, it is virtually impossible to detect.

80 Mr Kondilios, for the council, submits that the COPS reports indicate a high level of physical and violent assaults that are attributable to the Tank Nightclub and must be seen as evidence of poor management. The fact that patrons are able to remove alcohol from the premises and bring in alcohol to the premises are a further sign of poor management and the lack of vigilance on behalf of the security staff.

81 Mr Kondilios further submits that the COPS reports reveal that the location is a drug hotspot. He relies on the evidence of Constable Stewart who states that there are numerous alcoves within the laneway where people are able to congregate out of sight and where a significant number of drug incidents occur. Combined with other COPS events, Mr Kondilios submits that this further highlights poor management.

82 In considering the competing evidence and submissions, I accept the submissions of Mr McEwen. As a starting point, the position of Mr Rees that one incident of violence is unacceptable because it offends community standard is clearly impracticable and should not be the basis for assessment. It is not the test imposed by DCP 2007 where the test is "good management". It does not follow that an act of violence or anti-social behaviour necessarily indicates poor management. In practical terms, spontaneous acts of violence can occur notwithstanding a high presence of security personnel. In my view, the test of "good management" depends on how management responds to these incidents.

83 The 38 COPS incidents indicate that approximately half involve assaults, violence or anti-social behaviour. Ideally, there should be no incidents of violence and anti-social behaviour, however I agree with the submissions of Mr McEwen that it is necessary to consider any incidents in the context of a late-night trading establishment located in an area deemed suitable for late-night trading by the council, where alcohol is served and where large numbers of patrons gather. In this context, I am not satisfied that the COPS incident reports indicate that the identified assaults, violence or anti-social behaviour are excessive in number, have been poorly managed or that there was consistent pattern of unacceptably responding to these incidents.

84 Drugs were the second largest category of incident identified in the COPS reports. On this matter, I agree with Mr Laycock. The number of incidents where drugs were detected by persons on the premises was relatively small and was limited to small amounts of recreational drugs. A number of the COPS incidents relating to drugs involved the police detecting drugs in the adjoining streets and lanes. I do not accept that this can be reasonably attributed to the operation of the nightclub beyond simply being a location where young people gather. I am also mindful that the role of security staff is limited, in that they have no power to search patrons for drugs; this being exclusive power of the police. I am also not satisfied that the COPS incident reports indicate that the identified drug events have been poorly managed or that there was consistent pattern of unacceptably responding to these incidents, with the exception of the matter identified in Incident 2.

85 I agree with the oral evidence of Constable Stewart that the existence some of drugs within the premises and in the immediate vicinity does not necessarily reflect poorly on the management of the Tank Nightclub.

BOCSAR and ELORM rankings

86 I have not given any weight to be BOCSAR and ELORM rankings per se, and while some of the evidence focused on whether the Establishment should have a Level 1 or a Level 2 ranking, it is largely irrelevant for the purposes of this application. While the applicant must address the BOCSAR and ELORM rankings, it is an obligation imposed by the Liquor Act 2007 and not by the EPA Act (through DCP 2007). As I have stated, the COPS data is relevant for an assessment through DCP 2007 but must is considered in the context imposed by DCP 2007.

The Incident Log Book

87 The Incident Log Book was the centre of some discussion between the parties. Put simply, the police were concerned that they were not contacted based on the description of a number of incidents recorded in the Incident Log Book whereas management indicated that if they were made aware of the police concerns during the numerous examinations of the Incident Log Book by the police on their inspections then procedures would have been put in place to address their concerns.

88 I do not accept that there was any evidence to suggest that there was a deliberate attempt to avoid detailing incidents that may eventually end up as COPS data. Mr Slingo conceded that, based on the descriptions in the Incident Log Book, the police should have been called to a number of incidents. Similarly, Constable Stewart conceded that the police could have been more proactive in reviewing the entries in the Incident Log Book during their regular inspections.

89 The Incident Log Book is a statutory requirement but is fundamentally problematic because it relies on security staff or management to identify what incidents should be recorded, how they should be recorded and importantly, whether police should be called. The evidence indicated that there is an agreement between management and the police that police are not required to be called for "push and shove incidents". This is clearly a reasonable approach given the evidence of Constable Stewart about the limited resources of the police and the number of licensed establishments in The Rocks Local Area Command. It does however place an obligation on security staff and management to make certain decisions on reporting, unfortunately in the absence of the specialist training provided to police in this area.

90 For example, there can be little doubt that police should have been called for Incident 2 described as "1 male caught with drugs-evicted & drugs disposed of" whereas the description in Incident 1 "1 male removed for attempting to strangle a female" is far more subjective and most likely would require a more detailed description to determine whether the incident warranted police intervention. I am mindful of the evidence of Mr Laycock experiences that reports of crime by themselves should not always be taken as evidence or indeed an accurate record of what has occurred.

91 The evidence of Constable Stewart that insufficient details were provided in the Incident Log Book can also be problematic when persons refuse to provide such details given the limited powers of security staff compared to police. Similar problems could also occur with security staff seek to detain any persons who seek to leave after an incident. Given the statutory requirement for a Incident Log Book and the concerns raised by the police, it would seem that, at a minimum, there should be some training of security staff in the categorisation of incidents and the types of incidents that require police intervention.

92 The evidence suggests that improvements can be made by both the police and management of the nightclub to the operation of the Incident Log Book. It is a matter that can be readily addressed and in my opinion, is not a matter that would support the refusal of the five year trial period.

Office of Liquor Gaming and Racing

93 The unchallenged evidence of Mr Chambers was that during the operations of Establishment over the last 10 years, two noise complaints were received by the Office of Liquor Gaming and Racing in 2002 and 2003 and were subsequently resolved.

94 There are currently no outstanding breaches recorded with the Office of Liquor Gaming and Racing, including breaches relating to intoxication. Previous charges were of a minor nature and were either withdrawn or no conviction recorded.

Council inspections

95 The council’s Licensed Premises Coordinator inspected the site on two occasions. The first inspection was the result of a request for comments from the council’s Licensed Premises Coordinator from the reporting council officer on the proposed application. The inspection was undertaken on Saturday 22 August 2009 between 1:30 a.m. and 2:30 a.m. while making specific observations about a number of facets of the nightclub, the following summary was made:

As a whole, the Establishment Hotel (and Tank Nightclub) was seen to be professionally managed and had extensive security initiatives in place. The size and nature of the hotel is such that crowd congestion and related anti-social behaviour will consistently occur in the vicinity of the hotel, especially late at night and during early mornings on weekends and public holidays. The close proximity to McDonald's Family Restaurant causes an increased perception of the anti-social behaviour associated with the Establishment Hotel which will be difficult to reduce due to McDonald's also utilising extended/24 hour trading hours and its close proximity to numerous other late trading licensed premises.

96 The second inspection was on Sunday 30 August 2009 between 1:30 a.m. and 2:15 a.m. The following comments are part of the report of inspection:

External observations made re use of roadway outside premises, noting the smoking area to be heavily congested with patrons (approx 100). Majority of laneway blocked due to excessive number of patrons and crowd control barriers in place. Majority of patrons seem to be socialising in this area as opposed to smoking only. Nil attempts seen by management/security to move patrons back inside premises as soon as reasonably possible, thus causing this extreme congestion.

Uniformed police were in attendance at the hotel and seen to remove a group of patrons from the smoking area - this group was later escorted away from the hotel. Sergeant Faith Samsa of Rocks Licensing Unit was spoken to during which he raised concerns in relation to the use/blocking of the laneway outside the premises, especially relating to emergency vehicle access, public liability etc. Sergeant Samsa has frequently written to the City documenting these concerns.

Further observations were made of groups of intoxicated persons again seen congregating in the vicinity of McDonald's Family Restaurant. Extreme traffic congestion also witnessed a corner of George and Bridge Street associated with taxis picking up and dropping off patrons of Establishment Hotel. Interior inspection of premises not conducted on this occasion.

It should be noted that security was proactive in terms of crowd management in the vicinity of Establishment/Tank Nightclub during the inspection (other than failing to regulate the use of the smoking space as mentioned above). The heavily congested use of this outdoor space could be deemed a contributing factor to noise/anti-social behaviour in the area and was an obvious concern for police who were in attendance at the time. Use of the space requires further monitoring and/or imposition of conditions to ensure it is not allowed to become overcrowded on regular basis (possible restriction on patron numbers required).

97 Mr Rees also indicated that he had informally inspected the site on a Saturday at around 11.15 p.m. while in the area but had made no record of his observations.

98 In my reading of the inspection notes, and taking into consideration the complete operation of a nightclub, it could not be said that there was not "good management". The issue of the use of the smoking area and queuing in the lane is a matter that needs to be monitored by security staff, particularly when special events are held, but is not of such significance that it would suggest that the premises were not well-managed.

Council complaints

99 Putting aside the objections made during the exhibition of the proposed development as these are addressed later in the judgment, an extract from the report to the council's Development Assessment Sub-Committee on the 30 November 2009 addresses the previous complaints made to the council and relevantly states:

….four complaints to Council have been made during the operation of the premises relating to noise from inside of the premises, the most recent complaint being made to council on 7 September 2009. Each of these complaints has now been resolved however, and the issue of noise from inside the premises and is not of immediate concern in the consideration of this application.

100 I am satisfied that the level of complaints made to the council during the operation of the premises is relatively small and confirms that the premises are well managed.

Police inspections

101 Constable Stewart stated that the site is inspected on regular occasions by herself and her colleagues and while she is often recognised because of her regular licensing duties, other undercover inspections are undertaken by the police. The evidence was that there have been no significant incidents at the Tank Nightclub since October 2009.

103 Mr Slingo provided a log of his telephone calls to the police that indicates that an incident relevant to BOCSAR data was last recorded against the Establishment on 20 October 2009. Based on his discussions with police officers, no incidents of concern to the police have occurred since this date despite this being the busiest period of the year.

104 While Constable Stewart indicated that she could not be certain that the phone calls took place as the logs did not necessarily identify the contact police officer, the evidence of Mr Sergeant and Mr Slingo was not challenged.

Outlaw motorcycle gangs

105 Constable Stewart saw the frequenting of the Tank Nightclub by members of outlaw motorcycle gangs as being an indication of poor management. Mr Slingo addresses this matter in some detail in his affidavit where he states that he discussed the matter with police and changed the existing security arrangements when he became aware that members of outlaw motorcycle gangs were still being permitted entry to the nightclub. The COPS data reveals that the last occurrence was on 13 June 2009 and police have raised no issues since this time.

106 I am satisfied that the response by management was appropriate and the problem has not reoccurred suggesting that the premises are well-managed.

Conclusions

107 In considering all the above matters, and accepting that there are some areas that require further communication between police and management, I am satisfied that given the type of the establishment, its operating hours and the responsiveness of management to particular issues, it could be reasonably be said that the premises are "well-managed".

Will there be adverse amenity impacts on residential uses?

108 The modification application attracted 22 submissions when it was advertised by the council, with 21 submissions in opposition and 1 submission in support. All but one of the written submissions opposing the development came from persons living within, or with an interest in, the serviced apartments at 2 Bond Street known as "Mantra". The concerns related to noise and disturbance to residential properties, alcohol-related incidents, anti-social behaviour and crime, littering, vomiting, urinating and damage to property.

109 One submission dated 3 July 2009 from the Stella Hospitality Group and its wholly owned subsidiary, Saville Hotel Group Pty Ltd, the owners of the ground floor commercial tenancies and the building manager on behalf of the Owners Corporation for "Mantra" originally objected to the proposed development. An e-mail to the council on 24 August 2009 reviews this position and relevantly states:

Upon receipt of Council's letter advising of Establishments application for further trading hours, I, and residents at 2 Bond St were extremely concerned that Establishment Hotel was seeking extra trading hours than those hours that have been used in the past 9 years of Establishment trading i.e. we believe that they were seeking longer hours than those traded over previous 9 years. The information from Council's letter seemed to indicate this.

Establishment management contacted us and met with us to discuss our concerns. It was only at this time that we realised that the hours requested in the Application was not to trade beyond its current trading hours but rather, were the same hours as had been used for the past 9 years and that Establishment were merely seeking renewal of existing extended trading. We also sought further clarification from Council to this question. Had this been obvious from the Council's notification letter Mantra would not have objected to the trading hours but merely suggested the below with regard to Establishments Plan of Management.

While Mantra does not object to renewal of Establishments trading hours in relation to D/2001/437/D, the application has provided an impetus for Mantra and Establishment to forge a closer working relationship. As mentioned, I have personally met with a representative of Establishment and we both have agreed to the following points being added to the Establishment revised Plan of Management.

110 No residents or representatives of Mantra provided evidence during the hearing although Mr Kondilios submitted that no significant weight should be given to this fact or that the e-mail of 28 August 2009 should be taken as a withdrawal of all the objections to the application.

111 Objective b in cl 2.2 of DCP 2007 seeks to "ensure that late night trading premises will have minimal adverse impacts on the amenity of residential… uses". Clause 2.6 a requires consideration be given to "the location and context of the premises, including proximity to residential…. premises".

112 In considering the matters in cl 2.6 of DCP 2007 and particularly the location within a defined Late Night Management Area, the small number of complaints during the previous trial periods, the use of Mantra as a serviced apartment development as distinct from a residential development and the contents of the e-mail of 28 August 2009, I am satisfied that the proposed development is consistent with objective b in cl 2.2 of DCP 2007, in that the proposed trading hours premises will have minimal adverse impacts on the amenity of residential uses.

Should the 5-year trial period be granted?

113 Clause 2.8 requires, in considering whether the trial period has been successful, including the level of compliance with the plan of management, requires the council review to include (but not limited to):

a. consideration of complaints to Council and the Liquor Administration Board

b. an assessment of inspections by Council Officers during trial periods; and

c. consideration of Police complaints.

114 Clause 3 1 provides requirements for trading hours and trial periods and states:

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

b Category A and B 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.

c Trial periods may be permitted up to the following durations:

i First trial – 1 year

ii Second trial – 2 years

iii Third and subsequent trials - five years

d Once the full range of extended trading hours are reached (as prescribed in Table 1) a DA must be lodged every 5 years to renew trading hours.

E If the Council determines that a trial period has been unsatisfactory and trading will revert to the-based night trading hours; or whatever hours have been approved as a maximum trading hours prior to the commencement of this DCP.

115 Having found that there was good management, satisfactory compliance with the Plan of Management and four trial periods, cl 3.1 c iii advocates a five-year trial period.

116 While much of the evidence focused on the Tank Nightclub, the application also seeks to extend the trading hours for the other facilities within Establishment for a similar period. Again, there was no evidence to suggest that these facilities were not properly managed or there were any significant breaches of the Plan of Management, so consequently a five-year trial period is also warranted for these facilities.

The lane

117 Part 3 of Central Sydney Development Control Plan 1996 (DCP 1996) addresses Pedestrian Amenity with Pt 3.1 relevantly addressing Lanes. The Strategy states, in part, that:

Lanes contribute significantly to the variety of pedestrian experience in Central Sydney. They can enrich the urban quality of the city as well as being interesting places for a variety of uses, such as restaurants, cafes and other activities that attract people and provide opportunity for social interaction

118 The objectives are:

To retain and develop lanes as useful and interesting pedestrian connections as well as for service access.
To maintain Central Sydney's fine urban grain.

119 As I understand, the concerns of Mr Rees relate to the use of Bridge Lane for queuing and a defined smoking area for the Tank Nightclub and the potential this causes for blocking or restricting normal pedestrian access. In his view, the blocking of the lane would be inconsistent with the objectives in Pt 3.1 of DCP 1996.

120 While I accept that the potential exists for the land to be blocked, I am satisfied that the Plan of Management satisfactorily addresses the requirement to allow pedestrian access along the lane, irrespective of the activities associated with the Tank Nightclub. The narrowest point of the lane is at the intersection with Bridge Street where the width is some 3.1 m. In my view, a width of 3.1 m is adequate to address the formal queuing into the nightclub, consistent with the Plan of Management, while still providing an adequate width for pedestrian traffic particularly considering the hours of operation of the nightclub and more specifically, the extended hours sought in this application.

121 I accept that, subject to compliance with the Plan of Management, the use of the lane for access to the nightclub does not overly impact on general pedestrian traffic that may wish to use the lane, and as such there is no inconsistency with the objectives in Pt 3.1 of DCP 1996.

Conditions

122 There was general agreement on the conditions with the exception of the time for the commencement of the trial period. Mr McEwen submitted that the appropriate time was from the time of the orders of the Court whereas Mr Kondilios submitted that the appropriate time was from the expiration of last trial period.

123 On this matter I agree with Mr McEwen. To adopt the approach of Mr Kondilios would be to provide a trial period less than five years which would be inconsistent with the provisions of cl 3.1 c iii of DCP 2007.

Conclusion

124 Clause 2.1 of DCP 2007 acknowledges that a night-time economy is an integral part of its commercial, cultural and social fabric and an important part of Sydney social and street life that contributes to Sydney's image as a Global City, and plays an important role in the city's economic growth. The night-time economy is seen as an asset for people living and working in the city as well as tourists. The site is located within an area considered most suitable under DCP 2007 for 24 hour trading, subject to appropriate trial periods.

125 The principle test in DCP 2007 is "good management". It is a common thread that runs through most sections of DCP 2007. Contrary to the evidence of Mr Rees, I do not accept that "good management" is simply measured by the number of incidents. This is an approach adopted in the BOCSAR and ELORM ratings used by the police with actions enforced through the separate and distinct requirements under the Liquor Act 2007. In my view, the test of "good management" in DCP 2007 requires a more thorough assessment of the operation of premises and specifically the approach of management to the incidents that are inevitable when licensed premises trades 24 hours per day with relatively high levels of turnover. The assessment revealed some areas for improvement however these areas were not so significant as to find that the premises were not managed in an acceptable manner.

126 In terms of cl 29 of LEP 2005, I am satisfied that the matters identified in cl 29(a)(i) and (ii) are not in conflict with the proposed development. I also satisfied that the proposed development is not in conflict with the objectives identified in cl 28, including the relevant zone objectives in cl 36 and the relevant objectives for the Special Area in cl 79.

Orders

127 The Orders of the Court are:

____________

G T Brown

Commissioner of the Court

Appeal No 10931 of 2009

7

Annexure A

Conditions of Consent

Extended trading hours at Establishment Hotel

248 – 252 George Street, Sydney

(1) APPROVED DEVELOPMENT

Development must be in accordance with Development Application No. D/01/00437 dated 18 July 2001 and Statement of Environmental Effects for Proposed continuation of extended trading hours at Establishment Hotel prepared by Design Collaborative Pty Ltd, dated September 2009 (with the exception of the Plan of Management prepared by Design Collaborative Pty Ltd which is not approved) and as amended by the following conditions:

(2) USE OF PREMISES

The use and occupation of the premises shall be in accordance with the conditions of consent contained within the Notice of Determination D/1998/05350 as amended.

(2A) NOISE (LICENSED PREMISES)

(a) The L _A10 noise level emitted from the use must not exceed the background noise level (L _A90 ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 5dB between the hours of 7.00am and 12.00 midnight when assessed at the boundary of any affected residence.

(b) The L _A10 noise level emitted from the use must not exceed the background noise level (L _A90 ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) between the hours of 12.00 midnight and 7.00am when assessed at the boundary of any affected residence.

(c) Notwithstanding compliance with (a) and (b) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12.00 midnight and 7.00am.

(d) The L ₁₀ noise level emitted from the use must not exceed the background noise level (L ₉₀ ) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 3dB when assessed indoors at any affected commercial premises when in use .

(e) The use of the premise shall be controlled so that any emitted noise is at a level so as not to create an “offensive noise” as defined in the Protection of the Environment Operations Act 1997 to any affected receiver.

(3) HOURS OF OPERATION

(4) HOTEL MANAGEMENT

George Street Building:

(a) Basement Level:

*

(b) Lower Ground Level:

(c) Ground Level:

*

(d) Level 1:

(e) Level 2:

(f) Level 3:

(g) Level 4:

Note:

(h) Lower Ground Level:

(4A) CLOSED CIRCUIT TELEVISION

(5) NOISE FROM GLASS REMOVAL

The removal of bottles and glasses from the premises shall only occur between 7.00am and 8.00pm weekdays and 9.00am and 5.00pm weekends and public holidays, to avoid noise disruption to the neighbourhood.

(6) DOORS TO BE KEPT SHUT

The doors to all street frontages and lanes shall be kept shut at all times after 10.00pm and prior to 7.00am all week, except where required for direct ingress/egress (to limit noise) or unless compliance with Condition No.3 can be demonstrated.

(7) NO SPRUIKING OR AMPLIFIED NOISE

No person (such as those commonly known as spruikers) or recordings or other devices which have effect if spruiking are to be located on Council owned property. Furthermore, the sound level of any spruiking or amplified noise generated within the privately owned land must not be audible on Council’s footpath adjoining the subject premises and within 3 metres of the premises.

(8) CARE OF BUILDING SURROUNDS

In addition to Council’s daily street sweeping and cleansing operations, the surrounds of the building , including the footpath and gutters, are kept clean and free from litter at all times to the satisfaction of Council.

(9) REMOVAL OF GLASS

Patrons shall be prevented from removing glasses and opened cans or bottles from the premises.

(10) CONTROL OF PATRON NUMBERS

Suitable measures are to be put in place to control the number of patrons entering the Hotel (as specified in Condition No.4) and to ensure that people entering or waiting for access to the building do not obstruct the public way.

(11) PLAN OF MANAGEMENT

The premises shall always be operated/managed in accordance with the approved Plan of Management for the premises, being the plan of management filed in Court on 17 May 2010.

(12) NO SPEAKERS OR MUSIC OUTSIDE

Speakers or amplified music are not to be placed on the footpath or in any external openings of the hotel (i.e. doors & windows).

(13) PATRON BEHAVIOUR

The Management/Licensee shall ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood. In this regard, the management shall be responsible for the control of noise, loitering and litter generated by patrons of the premises and that people leave the premises and immediate vicinity in an orderly manner.
In addition, the Management/Licensee is to ensure that the control of noise, loitering and litter generated by the patrons is undertaken on an ~~a half~~ hourly basis between 10.00pm and 7.00am each day or for half an hour after the premises closes, whichever is the earlier, within the city block radius of the premises.

(14) SECURITY STAFF

Provision is to be made for not less than two licensed uniformed security guards on duty at the hotel from 6pm Thursday to Saturday until 6.00am and/or until 30 minutes after the hotel has closed, whichever is the earlier. On all other days when the hotel is trading between midnight and 6.00am, there shall be at least one licensed uniformed security guard on duty at the hotel. The security guard(s) shall ensure that patrons leave the premises in an orderly and quiet manner so as not to cause disturbance to the amenity of the neighbourhood.

(a) In addition to the above, the security guard(s) shall at all times carry a two-way radio so he/she can be contacted by the hotel staff if necessary.
(b) A security officer is to be employed on each level of the licensed premises after 6pm on Thursday, Friday and Saturday evenings and is to remain on each level of the licensed premises until cease of trading.
(c) Security Officers are to continually patrol inside the toilet areas in all parts of the licensed premises until trading has ceased.
(d) Security are to continually patrol George Street (eastern side) and the various Laneways bounding the site, between Bridge Street and Bond Street between 8pm and until 30 minutes after cease of trading on Thursday, Friday and Saturday evenings. These security officers are to be clearly identifiable and assist in the quiet and good order of persons in the area and the movement of pedestrian traffic in and around the hotel area.
(e) During ‘special events’ only (i.e. when popular domestic and international acts and celebrities are performing/present at Tank) queuing may occur along Bridge Street outside of the Burns Philp building. When this occurs, such queuing shall be restricted to the area depicted within the revised Plan of Management. At least one (1) security guard shall be present at all times to monitor and control patrons and ensure no patrons associated with the Establishment Hotel/Tank nightclub impedes the flow of pedestrians along Bridge Street or cause any undue disturbance or anti-social behaviour.

(15) DISPLAY OF APPROVED TRADING HOURS

The hotel shall display trading hours in conspicuous positions, so as to be readily seen by patrons.

(16) SIGNAGE
A minimum of one sign shall be placed in or near all exits (internally not external signs) to the effect that patrons are requested to refrain from any behaviour which will cause disturbance to residents of the neighbourhood.

(17) SIGNS – SEPARATE DA REQUIRED

A separate development application for any proposed signs which are either externally fitted or applied in relation to the extended hours of operation must be submitted for the approval of Council prior to the erection of any such signs.

(18) REMOVAL OF GRAFFITI

Any graffiti shall be removed from the building within 48 hours of the graffiti appearing.

(19) USE OF FOOTWAY

The hotel patrons must not drink or congregate beyond the boundaries of the hotel premises or on the footway except as permitted by Council.

(20) NO FURNITURE/PLANTER BOXES

No furniture, planter boxes or the like is permitted to be placed on the public way without the separate approval of Council.

(21) NEIGHBOURHOOD COMMITTEE

A Neighbourhood Committee shall be established, consisting of the Management Committee (or nominated representative(s)) of the Saville Apartments (No. 2 Bond Street) and representatives of the owner(s) and manager(s) of The Establishment Hotel to enable ongoing acoustic monitoring to be undertaken and a line of communication be established between the two parties relevant to noise and amenity issues.

The Committee shall meet monthly, or at such lesser intervals as required, be furnished with a copy of the latest report as required by Condition 15 and shall provide a written copy of minutes to Council.

SCHEDULE 2
Prescribed Conditions
The prescribed conditions in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 apply where there is building work:

1.

Building Code of Australia

Environmental Planning and Assessment Regulation 2000

2. In the case of residential building work for which the Home Building Act 1989 requires that there be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force

30/06/2010 - typographical errors - Paragraph(s) Condition 3(a)(v), 3(b)(v) and Condition 11

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Citations

Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124

Most Recent Citation

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

Cases Cited

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Statutory Material Cited

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Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Hemmes Trading Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1124 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Hemmes Trading Pty Ltd RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10931 of 2009
CORAM:	Brown C
KEY ISSUES:	APPEAL :- modification to trading hours of licensed premises - whether trial period should be extended for existing nightclub - whether trial period should be extended for other existing facilites for 1 year or 5 years - whether premises displayed "good management"
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96 Sydney Local Environmental Plan 2005 The City of Sydney Late Night Trading Premises Development Control Plan 2007
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	11,12, 13 May 2010
DATE OF JUDGMENT:	28 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC with Mr P Clay, barrister SOLICITORS Mallesons Stephen Jaques RESPONDENT Mr S Kondilios, solicitor SOLICITORS Maddocks