JPR Legal v Sutherland Shire Council - [2009] NSWLEC 1228

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: JPR Legal v Sutherland Shire Council [2009] NSWLEC 1228

PARTIES:
APPLICANT
JPR Legal Pty Limited
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10526 of 2008

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- use of part of an existing hotel tor a Place of Public Entertainment - classification of part of building under Building Code of Australia

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007
Building Code of Australia

CASES CITED: Foodbarn Pty Ltd v Solicitor General (1975) 32 LGERA 157

DATES OF HEARING: 26 February 2009, 22 April 2009, 12 June 2009, written submissions 19 June 2009.

DATE OF JUDGMENT:
10 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Hale SC
SOLICITORS
JPR Legal
RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
HWL Ebsworth

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 July 2009

10526 of 2008 JPR Legal Pty Limited v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council (the council) of Development Application DA07/1338 to allow part of the existing Gymea Hotel at 41-45 Gymea Bay Road, Gymea to be used as a Place of Public Entertainment (POPE). The POPE area is within a designated area of the existing hotel and no building work is proposed.

Background

2 The proceedings commenced on site as a s 34 Conciliation Conference on 26 February 2009. The Conciliation Conference was adjourned without termination to allow the applicant to prepare amended plans and documentation and the council to re-advertised the new information. A further s 34 Conciliation Conference was held on 22 April 2009 and was adjourned without termination. A Mention was held on 12 June 2009 where the s 34 Conciliation Conference was terminated as no agreement was reached.

3 The sole remaining issue between the parties was the classification of the POPE area under the Building Code of Australia (BCA).

4 The parties consented to me disposing of the proceedings without a further hearing but following written submissions from both parties on the BCA classification issue. The parties also agreed that I could have regard to the matters raised at the conciliation conference. The written submissions from the parties were filed on 19 June 2009.

The assessment framework

5 The use of a building as a POPE may be carried out only with development consent, except as otherwise provided by State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007 (the SEPP).

6 The relevant parts of the BCA are Definitions under cl A1.1:

A1.1 Definitions

Assembly building means of building where people may assemble for-

(a)…

(b)…

(c) entertainment, recreational or sporting purposes including-

(i) a discotheque, nightclub or a bar area of a hotel or motel providing live entertainment or containing a dance floor;

(ii) a cinema; or

(iii) a sports stadium, sporting or other club; or

7 A Class 6 building under cl A3.2 of the BCA is:

Class 6:

a shop or other building for the sale of goods by retail or the supply of services direct to the public, including-

(a) eating room, cafe, restaurant, milk or soft drink bar; or

(b) a dining room, bar area that is not an

, shop or kiosk part of a hotel or motel; or

(c) a hairdresser’s or barber’s shop, public laundry, or undertakers establishment; or

(d) market or sale room, showroom, or

.

8 A Class 9b building under cl A3.2 of the BCA is:

Class 9:

a building of a public nature-

(a) Class 9a…

(b) Class 9b: an

, including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another Class; or

9 Clause A3.3 states:

A3.3 Multiple classification:

Each part of a building must be classified separately, and-

(a)(i) where parts have different purposes - if not more than 10% of the floor area of a storey, being the major use, is used for a purpose which is a different classification, the classification applying to the major use may apply to the whole story; and

The council’s submissions

10 Mr Reilly, for the council, submits that it is necessary to give full consideration to s 79C of the Environmental Planning and Assessment Act 1979 and particularly s 79C(1)(a)(iv) that relates to any prescribed regulations when considering the application. Clause 93 of the Environmental Planning and Assessment Regulation 2000 (the Regulations) applies to "a development application" for "the use of an existing building as a place of public entertainment, where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building".

11 Clause 93(2) of the Regulations provides that in determining a development application, consideration is to be given as to whether the fire protection and structural capacity of the building will be appropriate for that building’s use. Mr Reilly submits that the focus of the clause must be on the separate uses of the building, in this case, as a place of public entertainment as well as a hotel. The consequence is that the hotel is classified as a Class 6 building and the POPE area is classified as a Class 9b building and that the latter class of building requires additional fire protection measures.

12 Mr Reilly rejects the submission that the BCA is associated with planning law characterisation of land but rather the BCA is associated with what is actually built or proposed to be built.

13 The additional building work required to satisfy the requirements of a Class 9b building for the area of public entertainment relates to:

dimension of exits (BCA D1.6(NSW)(f)(h)),
treads and risers (BCA D2.13(NSW)(a)(ix)),
operation of latches (BCA D2.21(NSW)(c)),
smoke hazard (BCA E2.2b(NSW)), and
separation of store rooms (BCA H101.16(NSW)).

The applicant’s submissions

14 Mr Hale SC, for the applicant, submits that the conditions proposed by the council that relate to the Class 9b classification are not necessary or relevant. The purpose for which the hotel has been designed, constructed and used is as a hotel. The grant of development consent for part of the hotel for a POPE does not change this fact.

15 Mr Hale submits that the BCA clauses relating to classification direct attention to "purpose" and "use". These words are importantly addressed in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGERA 157 (at 161) where it states:

…where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used

16 The question is what is the "purpose" which inspires the "use". In this case, the "purpose" which inspires the use of the hotel, including the area in which the entertainment is to take place, is the purpose of a hotel. The entertainment is for the patrons of the hotel. The dominant purpose will be that of a hotel and the part of the premises used for entertainment is used for a purpose, which is subordinate to the hotel. The fact that in part of the hotel there will be entertainment for the patrons does not transform that part of the hotel into an "assembly building".

17 Mr Hale further submits that the purpose of the SEPP was to overcome the need for complex and costly development applications where a hotel merely seeks to introduce some live entertainment as an ancillary adjunct to its main purpose of trading as a hotel. Put simply, provided the POPE complies with the SEPP criteria (which it does), it is assumed that the BCA requirements have been otherwise satisfied during the construction phase of the hotel.

Findings

18 In balancing the competing submissions, I agree with the conclusions of Mr Reilly. The subordinate and dominant argument in Foodbarn is a well established and a widely used approach for addressing development applications where there may be two different land uses involved, one of which may be a prohibited use. The consideration of the subordinate and dominant argument depends on the particular characteristics of the uses involved. It is a question of fact and degree.

19 This is not the case with the building classification in the BCA. Clause A3.3 specifically addresses the issue of multiple classification of a building. The clause requires that each part of a building must (my emphasis) be classified separately. Clause A3.3(a)(i) provides a concession to the general requirement that each part of the building must be classified separately but places a specific limit of 10% of the floor area of a storey that is used for a purpose that is a different classification. The effect is that minor use will have the same classification applying to the major use that applies to the whole storey. There was agreement that the proposed application does not gain the benefit of cl A3.3(a)(i) because it does not satisfy the 10% criterion.

20 On this basis, the area of the POPE is classified as a Class 9b building and requires the appropriate fire protection measures identified by the council.

21 While it must be accepted that the SEPP allows premises to be used as a POPE in a less complex manner than existed prior to the SEPP, there is still a significant emphasis on safety of patrons (see cl 3(a) - Aims of Policy). Part 4 - Exempt and complying development provides a number of opportunities for the carrying out of a POPE without the need for development consent however an existing building (Class 1b and Class 2 - 9) is not exempt development without a current fire safety certificate or fire safety statement (cl 15(4)). For the reasons mentioned in the previous paragraph, I do not accept the applicant’s submission that provided the POPE complies with the SEPP criteria, it can be assumed that the BCA requirements have been otherwise satisfied during the construction phase of the hotel.

Orders

22 The Orders of the Court are:

_____________

G T Brown

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

JPR Legal Pty Limited v Sutherland Shire Council

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

1. Approved Plans and Documents

a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA.

b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.

2. Licensed Premises Noise Control - Amplified Music, Plant and Equipment (Condition 71 from DA03/0661)

3. Upgrading of premises

a) Prior to any entertainment being provided on the premises, the premises shall be upgraded in accordance with the Building Code of Australia requirements for a Class 9b Building. Details of how it is intended to comply with these requirements shall be submitted to Council prior to approval of a Construction Certificate for such work.

b) Prior to the premises being used as a Place of Public Entertainment a Final Occupation Certificate shall be issued for the Building.

c) Prior to the premises being used as a Place of Public Entertainment or within 90 days of this determination which ever occurs first, ‘As Built’ plans of the premises shall be submitted to Council.

4. Acoustic testing

a) The applicant is to advise Council in writing a minimum of 14 days prior to commencement of the use of the premises as a Place of Public Entertainment of the anticipated date of commencement of the use and to advise of the expected days of entertainment during the first 6 months of operation.

b) Noise compliance testing shall be undertaken on three occasions within the first six months of operation of the Place of Public Entertainment. Such testing shall verify that the premises are operating in accordance with Condition (2) above.

c) Such testing must be carried out by a suitably qualified and independent Acoustic Engineer without prior knowledge of the time and date of the testing being given to the licensee or management of the premises.

d) Selection of the Acoustic Engineer shall be agreed between Council and the Applicant, acting reasonably. All costs of such compliance testing shall be borne by the Applicant. If any matters of non compliance with Condition (2) above are identified the applicant shall comply with the Recommendations of the Independent Acoustic Consultant so as to bring the premises in to compliance with Condition (2). Following implementation of such recommendations (if applicable) a further test shall be carried out at the applicants cost and at a time chosen by Council to ensure the premises comply with Condition (2). If following such an additional test the premises still fail to comply with Condition (2) further testing and implementation of attenuation measures shall take place to achieve compliance with Condition (2).

e) The Recommendations of the Independent Acoustic Engineer shall be complied with at all times the premises operate as a Place of Public Entertainment.

5. External areas

No speakers are to be located or live music performed outside the confines of the building: in particular not within the rear courtyard or car park areas.

6. Plan of Management

The operation of the premises shall comply with the revised Plan of Management dated 11 June 2009.

7. POPE Capacity/ Area

(a) The Place of Public Entertainment capacity of the premises shall be restricted to 260 persons in the area designated as Option A with the total capacity of the building being 800 persons.

(b) The area authorised for use as a Place of Public Entertainment shall be restricted to the areas shown as Option A on plan attached to Day Design Pty Ltd Environmental Noise Report dated 7 April 2009.

8. Prescribed Conditions

The following are prescribed conditions of development consent pursuant to s.80A (11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

B. Details to be Provided to Council with the Notice of Commencement.

9. Monitoring of patron numbers

When the premises are operating as a Place of Public Entertainment a method for monitoring of patron numbers shall be used involving ticketing, door counts or the like to ensure that the number of patrons within the premises does not exceed the approved capacity. Details of the method to be used is to be provided to Council prior to the commencement of the use of the premises as a Place of Public Entertainment. Details are also to be submitted on how patrons refused entry will be encouraged to quietly and quickly disperse.

PRE-COMMENCEMENT CONDITIONS

10. Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:

a) A Construction Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council,

b) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment, and

c) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.

11. Signs to be Erected on Building Sites

(a) show the name, address and telephone number of the principal certifying authority for the work, and

(b) show the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(c) state that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work is being carried out, but must be removed when the work has been completed.

CONSTRUCTION CONDITIONS

12. Permitted hours for building work

To minimise the noise impact on the surrounding environment all building work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

13. Noise control during construction

To minimise the impact on the surrounding environment:

a) For construction periods of 4 weeks or less the LAeq noise level, measured over a period of 15 minutes when the construction site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measured at the nearest affected premises.

b) For construction periods greater than 4 weeks the LAeq noise level, measured over a period of 15 minutes when the construction site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.

14. Stockpiling of materials during construction

Topsoil, excavated material, construction & landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property. For further information, refer to Part 4 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

15. Construction materials and machinery must be kept within the site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Part 4 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

OPERATIONAL CONDITIONS

16. Hours of Operation

To minimise the impact of the development on the surrounding environment, the use of the premises shall be restricted to between the hours of 5.00 am and 12.00 pm Mondays to Saturdays and 10.00 am and 10.00 pm on Sundays.

17. Hours of Entertainment

No entertainment shall be provided after 11.00 pm on Mondays to Saturdays or after 9.00 pm on Sundays. No entertainment shall be provided before 6.00 pm on Mondays to Fridays or before 12 noon on Saturdays or Sundays.

18. Car park availability

The availability and location of the car park and the hotels proximity to the railway station shall be clearly indicated on any flyers, newspaper advertisements or the like advertising the entertainment to be provided at the premises and shall also be clearly indicated on any website advertising the hotel or the entertainment to be provided at the hotel.

19. Surveillance cameras

20. Incident register

An incident register is to be kept on the premises and any incident involving any staff member and the physical contact, physical restraint or ejection of any member of the public from the premises must be recorded in the register and must include the names of staff involved. This register is to be made available to Police upon request fro inspection without delay.

21. Ejection of patrons

No patron is to be ejected / escorted from the premises except via the front entrance onto Gymea Bay Road.

22. Security Personnel Identification

All licensed security personnel are to display their Security licence. The name of security personnel is to be entered into a book by the licensee/ manager at the start of their shifts. This book is to be made available to Police upon request for inspection without delay.

23. No glass containers in car park area

No drink (alcoholic or otherwise) shall be allowed in the car park area in a glass or breakable plastic container during times entertainment is provided in accordance with this consent.

24. Licensed Premises - Security Personnel

(a) On Thursday, Friday and Saturday nights, to protect the amenity of the surrounding residents a minimum of two (2) uniformed security personnel licensed under the Securities Industry Act, 1975 (NSW) shall be engaged by the licensee on all nights between the hours of 6.00 pm until the last patron has left the area. Security personnel shall patrol continuously both sides of Gymea Bay Road between South Street and Warburton Street Gymea to ensure that patrons of the licensed premises do not loiter or linger in the area nor cause any nuisance or annoyance to the quiet and good order of the neighbourhood. They also shall at least half hourly patrol the community centre / car park land to the north of the hotel site.

(b) On Thursday, Friday, Saturday and Sunday nights when entertainment is provided a minimum of three (3) uniformed security officers for the first 100 patrons of the premises (as a whole) and one per 100 patrons thereafter (inclusive of the two (2) in part (a) above) shall be engaged by the licensee / manager.

25. Loading of Band Equipment - Licensed Premises

To protect the amenity the adjoining residents, there shall be no loading or unloading of band equipment except between 7.00 am and midnight Mondays to Saturdays and 8.00 am and 10.00 pm Sundays. All loading and unloading shall be carried out wholly within the confines of the site either within the loading dock or within 5 metres of the building.

________________________

ljr

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Citations

JPR Legal v Sutherland Shire Council [2009] NSWLEC 1228

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CITATION:	JPR Legal v Sutherland Shire Council [2009] NSWLEC 1228
PARTIES:	APPLICANT JPR Legal Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10526 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- use of part of an existing hotel tor a Place of Public Entertainment - classification of part of building under Building Code of Australia
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007 Building Code of Australia
CASES CITED:	Foodbarn Pty Ltd v Solicitor General (1975) 32 LGERA 157
DATES OF HEARING:	26 February 2009, 22 April 2009, 12 June 2009, written submissions 19 June 2009.
DATE OF JUDGMENT:	10 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale SC SOLICITORS JPR Legal RESPONDENT Mr J Reilly, solicitor SOLICITORS HWL Ebsworth