Icon Hospitality Management Pty Ltd v City of Sydney

[2007] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:

Icon Hospitality Management Pty Ltd v City of Sydney [2007] NSWLEC 172

PARTIES:

APPLICANT
Icon Hospitality Management Pty Ltd

RESPONDENT
City of Sydney

FILE NUMBER(S):

11124 and 21125 of 2006

CORAM:

Hussey C

KEY ISSUES:

Appeal :- POPE approval & Building Certificate, unauthorised works, BCA upgrading and acoustic impacts.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993

DATES OF HEARING:

29/03/07

EX TEMPORE JUDGMENT DATE:

29 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Austic, QC
Instructed by Gadens Lawyers

RESPONDENT
Mr M. Fozzar, solicitor
of city Prosecutors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

29 March 2007

11124 of 2006 Icon Hospitality Management Pty Ltd
21125 of 2006 v Sydney Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 These proceedings comprise the following 2 appeals associated with a bar/nightclub located at 22 - 28, Darlinghurst Road, Potts Point:

Appeal 21125 of 2006; This is an appeal against council's refusal to issue a Place of Public Entertainment (POPE) authority for the subject premises.

Appeal 11124 of 2006; This is an appeal against council's refusal to issue a Building Certificate for the subject premises.

2 In response to the issues raised for the proceedings, conferencing between the parties resulted in the applicant submitting a number of technical reports providing for the upgrading of the building to achieve acceptable safety and amenity conditions.

3 This conferencing has resulted in the acceptance of the extent and rectification of outstanding building and safety matters, with the parties agreement to enter Consent Orders.

4 The council's notification policies do not require specific notification for these type of applications. However, the Court is informed that interested parties in the subject area were notified of consent orders and also of the details of this hearing. No submissions arose from this procedure.

5 The parties agreed that both matters be heard concurrently.

The site.

6 The site is known as 22-28 Darlinghurst Road, Potts Point and is described as Lot 1 DP 1097710.

7 This site contains a 3-storey building comprising of a basement level bar/nightclub and associated offices; ground floor level bar and gaming; first floor level bar and nightclub and second floor level unoccupied space with the inclusion of the adjoining Aussie Rules Club.

8 The surrounding land use is predominantly residential and commercial premises.

Statutory Controls.

9 POPE; - Local Government Act 1993. S68 provides that:

A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without approval.

Part A, item 3 of the table to Section 69 of the LG Act provides for the approval to:

Use a building or temporary structure as a place of public entertainment or permit its use as a place of public entertainment.

10 Building Certificate; - Environmental Planning & Assessment Act 1979.

The Submissions.

11 As a result of the parties agreeing to the consent orders, no expert reports were presented directly to the Court for assessment. However, the Court was given a summary of the background to of these proceedings.

12 Apparently, when an application was made for the Building Certificate in August 2006, unauthorised works to the basement, ground and first floor elevations were discovered and the application refused. These works included significant fire safety deficiencies and inadequate noise control provisions and the applicant was initially advised that development approval should be obtained for these works.

13 Around the same time, an application was made for a Place of Public Entertainment in accordance with s 76A of the EP&A Act and this application was also refused.

14 The details contained in the Statement of Basic Facts states that a POPE Approval was issued on 30 June 1989, and included a condition, which limited the maximum number of persons permitted in the entertainment area to 362.

15 Based on the layout of the available floor space areas and services, the POPE application was to increase the maximum number of persons permitted to 1050.

16 Consequently, the main issues identified for the appeal concerned:

• Acoustic noise impacts; in terms of whether the approval of the POPE would create unacceptable impacts on the adjoining and surrounding land uses, noise impacts from the use of first floor balconies and adequacy of noise control suppression methods.
• Building Code of Australia (BCA) compliance; in terms of the premises compliance with POPE requirements, operation of internal doors, adequate fire safety controls, including provision of appropriate exits.

17 Detailed technical reports addressing these issues are contained within councils bundle of documents Exhibit C. This includes a comprehensive BCA assessment by Andrew Dean Consulting, which identified some 19 matters for resolution. A separate review of the fire safety provisions was undertaken and Stephen Grubits & Associates issued a conditional Form 10 Compliance Certificate after reviewing the Fire Engineered Solutions Pty Ltd solutions report.

18 I understand from the submissions that the majority of required upgrading work has now being undertaken to councils satisfaction.

19 Apart from this, a detailed acoustic assessment report was undertaken by Bassett. It recommended certain works be undertaken to achieve an acceptable level of acoustic amenity, both internal and external.

20 Consequently, the parties have agreed that the appeals are best resolved by way of approving the POPE application, which allows the maximum population of 1050, subject to detailed conditions requiring the completion of outstanding works, including fire upgradings for safety, finalisation of a security management plan to councils satisfaction and completion of designated acoustic control works. These works to be completed within 90 days.

21 For the associated Building Certificate appeal, the parties agree that this can now be approved for the whole of the premises but excluding all areas occupied by the Aussie Rules Social Club.

22 The conditions attached to the POPE application are to require significant upgrading works to reach current requirements. Therefore, in the absence of any challenge to these conditions or procedures, the Court grants the following consent orders, noting that the Aussie Rules Social Club area is excluded.

23 By consent Court orders are:

A. Appeal 21125/2006;

1 The Appeal in respect of the site at 22-28, Darlinghurst Road, Potts Point, Lot 1 Deposited Plan 1097710 is upheld.
2 The Place of Public Entertainment Application, is approved, subject to the conditions contained in Annexure A.
3 The exhibits be retained.

Note. The Court notes that each party is to pay its own costs.

B. Appeal No 11124/2006

1 The Appeal in respect of the site at 22-28 , Darlinghurst Road, Potts Point, Lot 1 in Deposited Plan 1097710 is upheld.
2 The Building Certificate Application, is approved for the whole premises, excluding all areas occupied by the Aussie Rules Social Club.
3 The exhibits be retained.

Note. The Court notes that each party is to pay its own costs.

___________________

R Hussey
Commissioner of the Court
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