Jones-Evans v Council of the City of Sydney

[2005] NSWLEC 300

Land and Environment Court

of New South Wales

CITATION:

Jones-Evans v Council of the City of Sydney [2005] NSWLEC 300

PARTIES:

APPLICANT
Lindsay Jones-Evans

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

10168 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Consent :-
Modification
Extension of trading hours of a licensed restaurant
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Liquor Act 1982
South Sydney Local Environmental Plan
South Sydney Development Control Plan
.

CASES CITED:

Zhang v Canterbury Council (2001) 115 LGERA 373;
.

DATES OF HEARING:

13 and 19 May 2005

EX TEMPORE JUDGMENT DATE:

05/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
INSTRUCTED BY
Gadens Lawyers

RESPONDENT
Mr A Pickles, barrister
INSTRUCTED BY
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

19 May 2005

10168 of 2005 Lindsay Jones-Evans v Council of the City of Sydney

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

JUDGMENT

1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 against the refusal by the Council of the City of Sydney (the council) to extend trading hours of a licensed drink and dine restaurant known as the Victoria Room Restaurant at 231-235 Victoria Street, Darlinghurst (the premises). The premises are located on the first and mezzanine floors in a converted automotive service and repair facility.

2 I had the opportunity of inspecting the premises and the locality of the premises in company with the representatives of the parties and to hear informal evidence on the premises from two resident objectors and from Sergeant Whiteway, the local licensing sergeant of New South Wales Police together with evidence from Mr S Cooper, the Court appointed acoustic expert in the proceedings.

3 Mr Cooper had made a number of recommendations concerning amelioration measures for noise which might, potentially, be emitted from the premises and, during the course of the inspection, I was able to observe that those amelioration measures had been undertaken by the applicant.

4 As a consequence, the remaining matter for me to determine is the concern arising from Mr Cooper’s observations of behaviour and noise from patrons outside the premises during the course of his testing regime. Mr Cooper’s comment is cited by the applicant’s planning expert, Mr Moody. Mr Cooper said (and Mr Moody agreed) that it would be possible to address noise measures from the external but related sources only if a proper and effective security management plan which was vigorously enforced were to be adopted and carried out.

5 Two matters remain for to me to determine in considering whether or not the application, as now amended, which is to extend the trading hours until hours that are consistent with those of the licensed premises known as the Green Park Hotel some half a block away to the south, is acceptable.

6 The two matters are:

• whether or not the plan of management would adequately deal with that off-premises activity generated by the premises; and
• put as a prohibition, in effect, by Mr Pickles, barrister for the council, whether the nature of the activities carried out on the premises would change during the hours of the proposed extension so that the activities after midnight would no longer be consistent with the objectives of the Local Environment Plan (LEP) as expanded upon by the Development Control Plan (the DCP). The LEP and DCP in these proceedings are those which were adopted by the former South Sydney Council.

7 The premises are zoned for mixed uses in zone 10 under the LEP. The relevant objective says:

“to ensure that the nuisance generated by non-residential development such as that relating to operating hours, noise, loss of privacy, vehicular or pedestrian traffic or other factors is controlled so as to preserve the quality of life for residents in the area.”

8 The starting point, I observe, is that is that such impacts are to be controlled so as to preserve the quality of life of residents in the area, the objective not requiring their elimination.

9 The DCP which, consistent with the decision of the Court of Appeal in Zhang v Canterbury Council (2001) 115 LGERA 373, I am obliged to use as the starting or focal point in my consideration of these matters, sets, for mixed land uses, an objective to ensure that uses that locate together are environmentally compatible and respect the character and function of the precinct, and, above all, that they respect residential amenity.

10 The applicant puts that the plan of management that it proposes would deal with those matters and would be appropriately enforced.

11 In the course of the proceedings, the plan of management (as originally proposed by the applicant) has undergone a significant metamorphosis. I note that, had it been pressed in its original form, there would have been no question that the application would have been refused on the basis of the inadequacy of the plan of management.

12 With respect to the plan of management ,as presently pressed, it is, as I understand the position, the attitude adopted by the council, (save and except with respect to the issue of queuing on the footpath), that the plan of management as a document provides an adequate regime, but that I could have no certainty as to its enforcement. As a consequence, says the council, no matter how adequate the document, I cannot have confidence that it would in fact achieve that which it is intended to achieve.

13 Against that position, I have the uncontradicted evidence of Mr Moody that he has had extensive experience with plans of management and their operational impact. It was his evidence that when the plan of management is adequate and is implemented according to its terms, the plan of management will act as an adequate protection for the residential amenity of those in the vicinity of the premises being regulated by that plan.

14 In addition, there is the presumption in favour of an applicant, in proceedings in this Court and generally, that a person who is given the benefit of a consent will abide by and implement the terms of that consent. I accept Mr Moody’s uncontradicted evidence that plans of management when effectively implemented, if the plan is adequate, will achieve the objectives of that plan.

15 In the present proceedings, I am therefore satisfied that subject to two matters with which I propose to deal as minor matters arising out of the plan, that:

• the plan itself is adequate;
• there is a presumption that it will be strictly and adequately applied by the management; and
• if that occurs, as Mr Moody has indicated in his evidence, that will effectively deal with those issues of impact consistent with the objective of the LEP to which I have averted.

16 Two matters of detail are in contention in the plan of management.

17 One was raised by me arising out of Sergeant Whiteway’s evidence as to the desirability of security staff wearing fluorescent identifying jackets. I raised with Mr Clay, counsel for the applicant, the question of whether or not those jackets should be worn within the premises whilst the premises are being controlled internally. Mr Clay submitted that that would be contrary to the ambience of the premises and that there is no evidence from the police reports that behavioural control within the premises is required. I accept that submission and the plan of management should require security guards to wear such jackets at all times when they are at or outside the door of the premises.

18 The second matter which is in contention relates to whether or not queuing should be permitted outside the premises, and if so, whether it should be regulated in some fashion.

19 There is a desire by the council that I should adopt the proposition that queuing ought not occur and that those who arrive at the premises at any time whether before or after midnight when the premises are at capacity should be told to go away for a period and subsequently return.

20 The proposition put on the other hand by the applicant is that some form of regulated crowd control outside the premises should be appropriate.

21 If I were to accept the applicant’s proposition in that regard there is a difference between the council and the applicant as to the appropriate number of persons who might be the maximum permitted to queue outside the premises. Varying models were discussed in the course of the proceedings.

22 Sergeant Whiteway indicated that the observation of the New South Wales Police was that queuing in fact occurred outside the premises and that it was his opinion that some form of control of that would be desirable.

23 I accept Sergeant Whiteway’s uncontradicted evidence that queuing presently occurs during the operating hours up until midnight and sometimes from as early as 9.30pm or 10pm in the evening. I also accept his professional opinion that it would be desirable under such circumstances for queuing to be regulated. I am not satisfied that it would be possible for the licensee of the premises effectively to turn away all those who might arrive at the premises and seek entry. That being the case, it is desirable that queuing be regulated.

24 As a consequence of reaching that conclusion, I turn my attention to the proposed numbers which might be permitted outside the premises.

25 Mr Clay proposed that the general regime should be performance based subject to a maximum number and I accept that that would be a desirable position. There is no reason why the terms of that could not be settled between the parties in light of the dimensions available for such queuing outside the premises. However, I do consider that a maximum number of 35 proposed by the applicant would be too high and that the number proposed by the council of a maximum of 20 (queued two abreast) would be more appropriate.

26 I turn, finally, to the more fundamental argument put by Mr Pickles which was that I should conclude that what might be described as the Cinderella progression of the premises should be concluded to be probable to occur. That is that the nature of the consumption of alcohol on the premises would change substantially between midnight and an extended trading hour until 2am in the morning.

27 Mr Pickles invited me to conclude that such change of consumption pattern would inevitably take place and that it could in fact take place consistent with the provisions of the Liquor Act 1982 to which he took me. He submitted that, if it took place as he hypothesised, it would be contrary to the second of the land use criteria set out on page 139 of the DCP in Precinct 3 Urban Village Centres where it is noted there that restaurants, cafes and takeaway shops should serve primarily the local resident and work population. Mr Pickles invited me to conclude that the nature of the premises would undergo such metamorphosis after midnight.

28 There are two items of what might be described as social review of the premises prayed in aid by Mr Pickles in this regard.

29 The first is an article by Ms Kate Duffy appearing in the Good Living section of the Sydney Morning Herald on 2 December 2003. I have carefully read that and there is no description in that that would enable me to conclude the nature of the patronage of the premises at the time particularly with respect to their geographic origin. I do note, however, although the fourth last paragraph describes the premises as providing a totally new Sydney bar experience, the third last paragraph describes Ms Duffy and her companions taking a table, ordering wine and then moving on to eating material from the menu of the restaurant.

30 The restaurant menus are in evidence and certainly demonstrate that the food which is provided, although cooked off the premises and transported to the premises, is of what appears to be more than a substantial finger food nature and certainly conforms with what might be regarded as a restaurant-style menu.

31 The second set of material that Mr Pickles invites me to draw this conclusion from relates to an extract from the Internet taken at 13 May 2005 from De Groots Best Restaurants of Australia.

32 It contains a number of descriptions of the premises including extracts from reviews from a number of Australian and overseas publications. Of relevance to me in these proceedings is what is described on page 2 of 5 under the general heading of “Short Description” where, in the fourth full paragraph of that, the extract states that:

“In the short time since opening the Victoria room has attracted glowing reviews from both the restaurant and entertainment literati and patrons alike, pop icons, glamorous entrepreneurs, fashionistas and the occasional suited politician blend in well with chilled out locals all enjoying the lounge atmosphere and relaxed fine dining”.

33 To the extent that there is any conclusion I could validly draw from those descriptions it is that there is a significant clientele of the restaurant regarded as being locally derived (at least by that reviewer).

34 I am not satisfied (nor do I see that there is any evidentiary basis upon which I could be satisfied) to conclude that the Cinderella-like transition at midnight that Mr Pickles presses on me is, in fact, likely to occur. I am obliged to presume not only that the applicant will abide by the conditions of consent granted by the council but also that it will abide by the provisions of the Liquor Act and the terms of its licence.

35 Mr Pickles has invited me to assume that the transition may already be commencing prior to midnight. If that be the case, that is a matter (if it were to result in a breach of the provisions of the licence) appropriate to be pursued in either another jurisdiction or another class of proceedings in this Court (if such breach also resulted in a breach of the conditions of consent). I am obliged, as I have noted earlier, to assume that compliance will take place.

36 I am satisfied from the review material that has been provided to me that, to the extent which I have any evidence on the point, I do have some limited evidence to demonstrate that the restaurant caters, at least to some significant extent, to a local clientele.

37 As a consequence, I have concluded that the appeal should be upheld and that the extension of hours should be permitted subject to a revision of the plan of management to incorporate the matters agreed to by the applicant in the hearing and to reflect the determinations I have made with respect to the dress of security guards and the nature of the queuing regime.

38 I should observe that I in addition propose to grant that the amended application on the basis of the further amendment for a twelve month trial period. I am not persuaded that any period beyond twelve months would be appropriate and in that regard I note the strength of the language of Mr Moody contained in pages 16 and 17 of his report in which he quite strongly endorses a twelve month period.

39 I propose to set the matter down for call over before the Registrar at a future time to enable further revisions to the plan of management to be undertaken and consolidated into a settled document between the parties in light of my reasons for decision together with the filing of consolidated conditions of consent so that a single document can be available to those who are on the premises who need to understand the terms and conditions of consent.

40 I would propose to set the matter down for call over before the Registrar on a date in the week commencing Monday 6 June. I would do so on this basis that if revised consolidated conditions and a revised plan of management are filed electronically prior to that date I would make orders in chambers and vacate the call over and I would also, as I habitually do, grant the parties liberty to re-list the matter before me on two days notice at 9 am if there were any matters that remained in contention during those discussions.

41 I set the matter down for call over on Thursday 9 June.

Commissioner of the Court