Lacroix 2011 Pty Ltd v Council of the City of Sydney
[2012] NSWLEC 1005
•18 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Lacroix 2011 Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1005 Hearing dates: 7, 9, 16 December 2011 Decision date: 18 January 2012 Jurisdiction: Class 1 Before: Fakes C Decision: The appeal is upheld in part subject to amended conditions
Catchwords: DEVELOPMENT APPLICATION - Appeal against conditions of consent; signage; hours of operation; trial period; provision of food Legislation Cited: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
Liquor Act 2007
Environmental Planning and Assessment Regulation 2000
Standard Instrument (Local Environmental Plans) Order 2006Cases Cited: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308
Zhang v Canterbury City Council [2001] NSWCA 167Category: Principal judgment Parties: Lacroix 2011 Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)Representation: Counsel
Mr F Kalyk, Barrister/Agent (Applicant)
Mr A Hawkes, Solicitor (Respondent)
Solicitors
City of Sydney (Respondent)
File Number(s): 10908 of 2011; 11154 of 2011
Judgment
COMMISSIONER: These are appeals against certain conditions of consent imposed by the Council of the City of Sydney when it granted consent to Development Application D/2011/840 on 2 August 2011 and Development Application D/2011/958 on 5 August 2011. Both consents relate to retail/commercial premises on the ground floor of the Rex Apartments near Fitzroy Gardens Potts Point/ Elizabeth Bay.
The applicant is seeking the deletion of a number of conditions and the rewording of others in both consents on the basis that they are unnecessary, do not apply to the development and/or are not for a planning purpose. The council consents to the deletion of one condition, the rewording of others but presses the imposition of the majority of the conditions because of concerns about impacts on amenity, compliance with council's controls, and the public interest.
Appeal 10908 of 2011 is the primary case and the one to which the majority of this judgment applies. Leave was granted to file appeal 11154 of 2011 on the first day of the hearing. This appeal deals with DA 840 and seeks to normalise the amended conditions sought in the original Class 1 application in matter 11/10908 files on 6 October but left out of the amended Class 1 application filed on 7 December 2011regarding DA 958. As leave was not granted to rely on the amended application, the conditions sought by the applicant in 11/11154 are covered in this judgment on the original application and separate findings are unnecessary.
The issues
DA 840 is for works to shop fronts including signage. The key conditions in dispute relate to window/ glazing treatment and signage. It is noted that the works have been completed and include the elements in dispute. This element of the appeal is dealt with later in this judgment.
DA 958 is for the use of the premises as a retail store/licensed cafe with internal and external seating and external planter boxes. The key conditions and issues in contention relate to:
(a) Hours of operation - internal and external and whether a trial period should be imposed (Conditions 2 and 3);
(b) Provision/ availability of food (Condition 4);
(c) Occupant/ seating capacity - internal and external (Condition 5); and
(d) Outdoor seating (Condition 20);
It is noted that condition 11 - DA 958 - Complaints - is agreed by the parties to be deleted. Similarly conditions 13 and 18 are to reworded as follows:
13 CARE OF BUILDING SURROUNDS
In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building must ensure that the surrounds of the subject tenancy are to be kept clean and free of litter at all times.
18 REMOVAL OF GRAFFITI
The owner/manager of the subject tenancy must be responsible for the removal of all graffiti from the subject tenancy within 48 hours of its application.
The site and its locality
The site is an amalgamation of two shops on the ground floor of the Rex Apartments in Macleay Street Potts Point/Elizabeth Bay. The site has two entrances, the smaller one off Macleay Street (formerly Shop 2) and a larger one off Fitzroy Gardens (formerly Shop 4a). In 2002, the former Rex Hotel was converted to a mixed-use development with retail on the ground floor and apartments above. The council owns part of the building.
A bank and a pet store flank the Macleay Street entrance; the Fitzroy Gardens entrance is between a convenience store and a post office. To the east of this entrance are two restaurants/ bars as well as an entrance to a council-owned community centre. Fitzroy Gardens is a paved and landscaped passive recreation area that includes the El Alamein Fountain. There are residential apartments on the floor above the site.
The Statement of Environmental Effects describes the development as a "unique concept store", the theme being "a European shopping experience offering cafe style lunch with a small selection of wines and coffee with patrons sitting amongst the items for sale". Almost all items are for sale including the chairs and tables.
The approved plans show five internal retail areas. Area 3 is off Macleay Street and includes an espresso bar and internal seating; there is a sandwich counter and seating in retail area 5 off Fitzroy Gardens. Areas 1,2 and 4 are principally retail with occasional use of area 4 for seating. The outdoor seating is confined to the privately owned open space under the colonnade on the Fitzroy Gardens frontage. There is a paved walkway between the colonnade and Fitzroy Gardens.
Planning controls
The site is zoned Zone No 10 - Mixed Uses Zone in South Sydney Local Environmental Plan 1998 (SSLEP). Clause 10 states in part that the Council must not grant consent to development to which the plan applies unless it is of the opinion that the proposal is consistent with the zone objectives. The relevant zone objectives (cl 21(1)) in this matter are:
(a) To allow, in appropriate circumstances, a mixture of compatible land uses such as a residential, retail, commercial, light industrial and industrial development, and
(b) To promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and
(e) To minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and
(f) To ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area.
The site is zoned B4 - Mixed Use in the Draft Sydney Local Environmental Plan 2011. Whist s 79(C)(1)(a)(ii) of the Act requires consideration of proposed instruments, the draft SLEP is not imminent or certain and little weight can be afforded to it.
The following Development Control Plans and Policies are raised in the council's contentions and are considered in detail in relation to each of the issues:
- City of Sydney Late Night Trading Premises DCP 2007 (LNT DCP)
- City of Sydney Signage and Advertising Structures DCP 2005 (Signage DCP), and
- The City of Sydney Outdoor Café Policy (OCP).
The hearing
The hearing commenced on site. Two local residents made oral submissions. The internal layout and operation of the premises were noted, as were the locations of other nearby restaurants and bars. The applicant indicated examples of signage on premises in the vicinity. The applicant was self-represented and put on no expert evidence. Ms C Elek, council planner, gave evidence on behalf of council.
The concerns of the owners of the apartment above the site include impacts on their amenity from people using the outdoor seating area and smoking, talking and scraping chairs - particularly at 7.00 am, and possible detrimental impacts of the premises being licensed. The need for a trial period was reinforced, as was the importance of compliance with the conditions of consent. It was indicated that the other restaurant and bar to the east of the site do not have residential apartments directly above them.
The other objector spoke on her own behalf and for a nearby residents' association. The concerns go to the cumulative impacts of licensed premises in the Kings Cross area including violence and anti-social behaviour, particularly on weekends. Concerns were raised that a business may start as a café but escalate to use as a bar and that more licensed premises are being permitted in areas with high residential use. Regardless of the good intentions of the business owner, the impacts are cumulative and lead to unanticipated consequences.
During the course of the hearing the applicant filed an Amended Application in respect of DA 958 seeking to normalise the orders sought in the appeal. Leave was not granted to rely on the amended application as to do so would have prejudiced the council's position as the conditions sought were inconsistent with the development application before the council and now before the Court. As stated elsewhere, council advised the applicant to lodge a s 96 modification application; this has been lodged and is now before council for assessment.
Hours of operation - internal and external and whether a trial period should be imposed (Conditions 2 and 3)
Documentation in evidence indicates that the opening hours sought by the applicant have been something of a moveable feast; however, this judgment deals only with the hours sought in the development application to council, the hours imposed by the conditions in dispute, and the alternative hours now sought by the applicant. The situation with the hours is summarised in Table 1 below.
The DA to council did not separate internal and external hours of operation. For completeness, the hours approved for the site's 'on premises liquor licence are noted.
Table 1: Hours of operation
Days
Hours sought in DA 958
Hours approved
(internal)*
Hours approved
(external)*
Hours now sought by applicant***
Liquor licence hours****
Monday to Friday
7am - 9pm
8am - 9pm
7am - 9pm**
10am - 8pm
7 am - 9pm**
7am - 9pm
10am -9pm
Saturday
7am - 7pm
8am - 7pm
7am - 7pm**
10am - 7pm
7am -7pm*
7am - 9pm
10am-7pm
Sunday
8am - 6pm
8am - 6pm
8am - 6pm
8am - 6pm
10am - 6pm
* see conditions of consent below
** extended hours subject to a 12 month trial period
*** these hours are sought by way of an alternative condition; leave was not granted to rely on an amended application to formalise the alternative hours (see [17])
**** the Liquor Licence does not make a distinction between internal and external hours
The council imposed conditions 2 and 3 dealing with internal and external hours of operation respectively. The conditions are based on the Late Night Trading Premises DCP 2007. Conditions 2(a), 2 (b) and 2(c) state that:
(a) The internal hours of operation must be restricted to between 8 am and 9pm Monday to Friday, 8am to 7pm Saturday and 8am to 6pm Sunday.
(b) Notwithstanding (a) above, the internal use may operate between 7am to 9pm Monday to Friday and 7am to 7pm Saturday for a trial period of 12 months from the date of issue of the Occupation Certificate...
(c) A further application may be lodged to continue the internal trading hours outlined in (b)...
Condition 3 for external hours of operation is similar to 2 although the approved hours are slightly different (as noted in table 1).
The applicant's appeal to the Court seeks deletion of Conditions 2 and 3 and their replacement with: "The [internal/ external] hours of operation shall be restricted to 7.00am to 9pm Monday to Saturday and 8am to 6pm Sunday." This version deletes the requirement for a trial period and therefore any requirement to reapply.
Under the LNT DCP the site is classed as Category B Premises - Low Impact (cl 2.4). The area in which the site is located is as a Local Centre Area (cl 2.5). Clause 2.9 refers to Plans of Management. Relevantly, LNT DCP Table 1 (cl 3.1) specifies the base hours and extended hours for indoor and outdoor trading for Category B premises in a Local Centre. Internally, the base hours are 8am to11pm and extended hours are 8am to midnight; externally base hours are 10am to 8pm with extended hours being 10am to 10pm. Clause 3.1 specifies the trial periods for premises seeking extended trading hours.
Therefore, the times to which a trial period may apply and which are therefore in contention are:
- Internal hours from 7am-8am - Monday to Saturday
- External hours from 7am -10am - Monday to Saturday and 8pm to 9pm Monday to Friday/Saturday.
The applicant's position
In oral evidence, Mrs Kalyk the owner/ manager stated that the site generally opens at 7am for early morning service of coffee and closes by about 5pm each day. She discussed the usual staffing arrangements and the service of food.
In general, Mr Kalyk for the applicant, questioned the validity and reasonableness of these and other conditions imposed by the council in the light of s 80 A(1) of the Act and the "Newbury tests". That is, do the conditions have a planning purpose, do they relate to the development, are they reasonable? In this he cites an analysis of the application of the Newbury tests given by Biscoe J in Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 at [37]-[54].
Mr Kalyk contends that the trial period is unreasonable and unnecessary to preserve amenity. He submits that the only impact could be noise and that the applicant's commitment to a Plan of Management, the restricted hours of operation, as well as a condition imposed on noise levels, should be sufficient to preserve the amenity of nearby areas. He asserts that council's assessment did not have proper regard to the existing cosmopolitan character of the area being a busy pedestrian area, and that council ignored the 'concept store' use and assessed the proposal as a bar. He considers that the conditions imposed by council are more stringent than those imposed by council on the previous retail uses of the site.
In regards to the external hours, Mr Kalyk contends that a nearby restaurant (on a site owned by council and leased to tenants) is permitted to trade later with significantly more tables. Similarly, he contends that the council has not has regard to the noise generated from weekend markets that operate in Fitzroy Gardens and start earlier than the hours proposed by the applicant.
In regards to the public interest and the impacts on amenity, Mr Kalyk cites Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61] - [63]. In that matter, the court considered, in part, that,
61...the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be assessed before a finding can be made of an adverse effect on the amenity of the area....whilst the court is clearly entitled to have regard to the views of residents of the area, the views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.
62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79 C(1) of the EP&A Act...
In support of his argument that the likely impact on resident amenity is low, Mr Kalyk drew the Court's attention to the fact that 833 properties were notified of DA 840 [and presumably the same for DA 958] but only the residents in the unit above made submissions in regards to DA 840. In regards to DA 958 only two submissions were received, these being from the residents who spoke on site. He also presses the point that in the context of the surrounding area the impact of the operation of the retail outlet and the café would be low and there is no evidence to suggest otherwise.
The council's position
Ms Elek, as the council officer who assessed the development applications prepared council's Statement of facts and Contentions in Reply and gave oral evidence in Court.
The relevant parts of the LNT DCP pressed by council are 2.1 Aims which state in part:
The main aim of this DCP is to assist the management of the impacts of late night trading premises on sites and neighbourhoods in which they are located, and in particular, protect the amenity of residential properties.
Late night trading hours are considered by the City of Sydney to be a privilege. Late night trading hours will only be approved in circumstances where an ongoing commitment to good management is evident through a series of successful trial periods.
2.2 Objectives (relevant)
(b) ensure that late night trading premises will have minimal adverse impacts on the amenity of residential or other sensitive land uses;
(m) ensure a consistent approach to the assessment of applications for premises seeking night trading hours.
2.3 What type of development does this development control plan apply to?
...development applications for new and existing Category A and Category B premises that:
(d) seek approval for outdoor trading beyond 8pm.
The council's view is that it has applied the LNT DCP in a consistent and predictable manner. The trial period has been imposed on the internal trading hours of operation before 8am as they are beyond the base hours specified in LNT DCP Table 1, cl 3.1. Similarly, the proposed external trading hours exceed the base hours. While the council is most concerned about noise and other amenity issues that could arise from the service of alcohol, the early morning use as a coffee shop could also generate unacceptable noise. In the circumstances, Council considers a trial period is reasonable and necessary to maintain surrounding amenity.
It is also usual practice for the council to impose conditions requiring a Plan of Management and noise management for licensed premises. In regards to the previous retail uses and the other nearby premises cited by Mr Kalyk, Ms Elek stated they were approved prior to the introduction of the LNT DCP. Similarly, the proposal was assessed as a retail shop/licensed café as applied for and not as a bar. [However, I note that in DA 840 the applicant ticked the 'General Bar hotel license' box but in DA 958 had changed the selection to 'On-premises license' with the word 'restaurant' written below it; so if there had been any element of confusion it was of the applicant's making.] The use of Fitzroy Gardens for a market was clarified; the set-up may not commence before 7.30am.
Mr Hawkes, for the council, submits that council has the power under s 80A(1)(a) to impose these and the other conditions as they relate to a number of matters referred to in s 79C(1) of the Act. In particular, the council has applied the provisions of the LNT DCP and has considered the public interest and likely social impacts in the locality. In support of his contentions regarding the wide ranging extent of a council's power to impose conditions he cites Basten JA at [9], [19] - [20], and Tobias J at [86] - [87] and [90] in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308, that judgment also considers the Newbury tests.
Consideration - Hours of Operation
Conditions generally
The appeal before the Court is made under s 97(2) of the Act, which enables appeals against conditions of consent imposed under s 80A of the Act. The council submits that the power to impose conditions relevantly arises in this case from s 80A(1)(a). It would seem to me that s 80A(10B) is also relevant in regards to a review of extended hours of operation and the number of persons permitted.
Section 80A(1)(a) states:
(1) Conditions - generally A condition of development consent may be imposed if:
(a) it relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent,
Section 80A(10B) states:
(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.
The council's view is that given the fact that the premises are licensed, the conditions squarely relate to the hours set down in the LNT DCP and the requirement in that DCP for a trial period to be applied for any extension of hours beyond the base hours set down in that document. It is the applicant's position that the service of alcohol is ancillary to the cafe component of the operation, which in turn is ancillary to the retail component of the business and therefore is highly unlikely to result in any adverse impact on public amenity sufficient to warrant the imposition of a trial period. In addition the applicant argues that the morning service of coffee is unlikely to generate any more noise than other existing morning activities.
The relevant aims of the LNT DCP are set out in [32]. In my opinion, the intent of the provisions of the DCP is clearly to protect the amenity of nearby residents in areas where licensed premises are permitted. Therefore, it could be readily construed that consideration of the public interest is a high priority. The evidence on site from both the residents and the council officer, apart from frequent and widely disseminated media reports, is that alcohol-related anti-social behaviour, particularly late at night on weekends, is a common problem in the Kings Cross area. In this respect, whilst neither party put on formal evidence on the possible social impacts of increasing the number of licensed premises, I find that the applicant's reliance on the cited parts of New Century to be of limited assistance as I consider the council did not 'blindly accept the fears and concerns expressed in the public submissions'.
Therefore, notwithstanding the mixed use of the premises, I find in principal, and following the decision in Botany Bay City Council v Saab, that the imposition of a condition of consent requiring a trial period for licensed premises to be reasonable and relevant in the circumstances of the location of the site and in accordance with the power enabled by s 80A(1)(a) and s 80A(10B) of the Act. I also find that the imposition of the conditions is consistent with ensuring that the zone objectives in SSLEP cl 21(1)(f) and (g) are satisfied.
As summarised in [24], the only times in contention in regards to the imposition of a trial period are internally from 7am-8am Monday to Saturday, and externally from 7am - 10am Monday to Saturday and from 8-9pm Monday to Friday/Saturday.
However, in determining whether the condition should be amended on the merits of the particular circumstances of the use of the premises, I make the following comments and findings.
The applicant asserts that the commitment to abide by its proposed Plan of Management as well as the imposition of a condition on noise levels should be sufficient to ensure adequate protection of the amenity of nearby residents. Mrs Kalyk gave evidence at [25] regarding the usual opening hours being from 7am until 5.00pm. It appears that the actual operational hours are somewhat inconsistent with the hours sought and approved however this may reflect commercial decisions. According to the Plan of Management the early morning access will be from Macleay Street only into retail area 3. Clauses 2.11 and 2.12 of the Management Plan states that:
2.11 The retail spaces beyond [presumably 1,2, 4 and 5] will not be open, nor will access be available to the store from Retail Area 3 or from Fitzroy Gardens, until later in the day. [no time is specified].
2.12 The outdoor seating area will not open until later in the day, generally around 10am, but not before the permissible trading hours.
Internal hours of operation
In regards to the internal use, if the applicant complies with their own Plan of Management and only the Macleay Street entrance is open from 7am, I consider that the service of coffee/ breakfast at that time is unlikely to create any unreasonable impact on the amenity of nearby residents sufficient to warrant the imposition of a trial period. The applicant's liquor licence hours prohibit the service of alcohol before 10am. It would seem that the focus of the LNT DCP is on 'late night trading'. If the premises were licensed for 24 hours or for the period before 8am (being the base internal hours) then a trial period would be reasonable. However, in the circumstances, I consider that it is unnecessary to require a trial period for the internal hours of operation as sought in DA 958.
Apart from deleting the requirement for a trial period, the applicant's alternative orders seek to extend the internal hours of trading on Saturdays from 7am to 7pm, as originally sought and subsequently conditionally approved by council, to 7am to 9pm. In this regard I note that with the exception of special conditions for Good Friday, Christmas Day and New Year's Eve, the applicant's liquor licence only permits the service of alcohol to 7pm on Saturdays. However, on the basis of the evidence before me I can see no reason not to allow trading for cafe and retail purposes until 9pm. Given the likely high level of activity in the vicinity at that time, there is unlikely to be any significant impact on residential amenity by permitting a two hour extension of internal trading. Clearly any service of alcohol after 7pm on Saturdays would be in breach of the applicant's liquor licence.
Therefore on this basis, the applicants version of Condition 2 Hours of Operation - Internal is accepted but is amended as follows:
(2) HOURS OF OPERATION - INTERNAL
The internal hours of operation shall be restricted to 7am to 9pm Monday to Saturday and 8am to 6pm Sunday. Prior to 8am, all access is to be via the Macleay Street entrance only, in accordance with the Plan of Management. The service of alcohol is to be in accordance with the hours specified in Liquor Licence number: LIQO660011464.
External hours of operation
In regards to the external hours of operation, it would seem on the evidence that by agreeing to comply with their own Plan of Management, the applicant has effectively agreed to comply with the permissible morning hours for external use. Therefore I find that the applicant's desire to vary this element of the condition to be confusing and contradictory. The council has given the applicant the option to vary the hours and therefore to enable a more flexible approach to operating the business by permitting extended hours (subject to the trial period).
I accept the council's arguments that the external use of the premises is likely to generate more noise than the internal use, irrespective of the service of alcohol. However, as the service of alcohol is permitted by the applicant's liquor licence until 9pm Monday to Friday and this falls outside the base hours under the LNT DCP, I find it is appropriate to apply the provisions of that DCP and impose a trial period. While the applicant seeks to rely on the hours of operation of other nearby premises and the markets, the evidence from Ms Elek in regards to the markets is clarified in [34]. I also note that there are no residential units directly above the restaurant to the south. In the absence of any compelling evidence supporting the applicant's position I consider the council's original condition 3 should remain unamended as follows:
(3) HOURS OF OPERATION - EXTERNAL
The external hours of operation are regulated as follows:
(a) The external hours of operation must be restricted to between 10am to 8pm Monday to Friday, 10am to 7pm Saturday and 10am to 6pm Sunday.
(b) Notwithstanding (a) above, the external use may operate between 7am to 9pm Monday to Friday, 7am to 7pm Saturday and 10am to 6pm Sunday for a trial period of 12 months from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours.
(c) A further application may be lodged to continue the external trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and or extension of the hours permitted by the trial will be based on, among other things, the performance of the operator in relation to the compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police.
Provision/ availability of food (Condition 4)
The council imposed Condition 4 - Principal Use:
The principal use of the premise must be that of a shop with seated café and food service available at all times of operation.
The council contends that the condition is required to ensure that the premises operate in accordance with the use sought and not as a bar.
The applicant contends that the council has again failed to appreciate the nature of the concept store use. The applicants S of F & C at [32-33] state that " The concept of the store is to attract potential retail customers to a "beautiful space" in which the wares for sale are on display. The customers can have a coffee or light meal amongst the goods on display for sale. They are thus attracted to the store and encouraged to buy. The food component is only a part of the concept store use and the service of alcohol is only a part of that component ." The applicant then goes on to state that such a condition is inconsistent with its operations. The applicant also contends it would require the employment of more chefs.
The applicant also contends that the word 'seated' in the condition limits the ability of patrons to move through the premises with a drink in their hand. Despite this apparently contradictory contention, the applicant's alternative version of the condition is:
(4) PRINCIPAL USE
The principal use of the premises must be that of a shop with seated café and food is to be available at all times when alcohol is served in accordance with the provisions of s 27 of the Liquor Act 2007.
Consideration - Food
A Liquor - on premises licence was granted to Moncur &Wallis Pty Ltd on 19 August 2011 for the premises subject to this appeal. The Manager/Contact Person is Mrs Kalyk. The nominated business type is ' Restaurant '. Permitted trading hours for consumption on the premises are from 10am until 9.00pm Monday to Friday; 10am to 7pm Saturday; and 10am to 6pm Sunday (see Table 1 at [19]).
Section 24(1) of the Liquor Act 2007 states:
(1) An on-premises licence authorises the sale or supply of liquor only if the liquor is sold or supplied for consumption on the licensed premises with, or ancillary to, another product or service that is sold, supplied or provided to people on the licensed premises.
Section 27(1) states that:
(1) Liquor may only be sold or supplied on the licensed premises to which an on-premises licence relates if food of a nature and quantity consistent with the responsible sale, supply and service of alcohol is made available whenever liquor is sold or supplied under the authorisation of the licence.
The information sheet on "On-premises Licence for a restaurant" published by the NSW Office of Liquor, Gaming and Racing is informative. According to the fact sheet, it is possible for liquor to be served to patrons without a meal but this requires a "primary service authorisation" to be approved for the licence. There is no indication on the licence that 'primary service authorisation' applies to the premises. Even if the premises has 'primary service authorisation', cl 19(1)(b) of the Liquor Regulation 2008 requires that:
(b) the other product or service referred to in section 24(1) of the Act must be available on the premises at all times while the authorisation operates to allow liquor to be sold or supplied otherwise than with, or ancillary to, the product or service.
On the basis of the type of liquor licence, that is 'On-premises - Restaurant' and the requirements of the Liquor Act and the Regulations, even with a primary service authorisation, the applicant must have food available at all times that alcohol is permitted to be sold.
As stated above, the council's reasoning is that the condition is required to ensure that the premises operate in accordance with the use sought and not as a bar. In my view, the council's concerns have some legitimacy owing to the applicant ticking the 'General Bar hotel license' in DA 840 - see comment at [34]. It would seem that the 'On-premises liquor licence' mandates the availability of food at all times liquor is available for sale, that is from 10am onwards until the time specified on the licence [55] and that part of the condition may be redundant for that element of the operation. The applicant has stated in clause 7.1.6 of the Management Plan dated 24 June 2011 -
7.1 The operator will comply with all conditions on its licence to be granted permitting the service of alcohol. Without limiting this requirement, the operator: [will]
7.1.6 Ensure that food will be available at all times when liquor is available.
It seems to me that the council's main concern is that food be available when alcohol is served. The applicant would be in breach of the terms of their liquor licence if no food service were available. If the applicant makes a seemingly unusual commercial decision not to have food available with the coffee they say they will be serving from early morning, then this is a matter for the operator and would not appear to be necessary to include in the condition. However, I consider it reasonable to reinforce the requirements of the liquor licence. With regards to Mr Kalyk's arguments as to whether the service should be 'seated', the applicant's own alternative condition retains this word. The issue of seating is further dealt with in the next section of this judgment. Therefore on this basis, I accept the applicant's alternative condition:
(4) PRINCIPAL USE
The principal use of the premises must be that of a shop with seated café and food is to be available at all times when alcohol is served in accordance with the provisions of s 27 of the Liquor Act 2007.
Occupant/seating capacity (Condition 5)
As with the hours of operation, the numbers of patrons applied for has varied. DA 840 states '24' for the question on 'Patron Capacity'; in DA 958, the DA in question, the 'Patron Capacity' is given as '30, 20 internally + 10 externally'. DA 958 also includes the answer to 'Detailed Description (of development proposed):
Application for use of existing retail premises as retail store with a licensed café accommodating 20 patrons internally and 10 patrons externally in proposed outdoor seating area. Application also seeks approval of proposed operational hours.
The council imposed condition 5 - Occupant Capacity which states:
(A) In accordance with Clause 98(D) of the Environmental Planning Assessment Regulation the following sign, in letters not less than 25mm in height must be fixed alongside the Licensee's name at the main entrance to the premises:-
Maximum Number of Persons Permitted
Ground Floor Level
Indoor Café/Shop area (including staff) 24 persons
Outdoor Café area (including staff) 12 persons
(B) The capacities for each of the various areas shall not exceed the number shown above.
The applicant's position
By way of this appeal, the applicant considers the condition unreasonably limits the maximum number of persons able to occupy the spaces as well as imposing an unreasonable condition requiring additional signage. The S of F&C and the appeal to the Court propose deleting condition 5 and replacing it with the following:
The seating capacities of the various areas shall not exceed:
Indoor cafe/shop 50 persons
Outdoor cafe 12 persons
The applicant contends that the limitation imposed by the council is unreasonable and ignorant of the permitted use; the area is large and can comfortably fit well beyond the number of patrons the condition imposes; customers are encouraged to move between areas; the condition is not necessary for the health or welfare of patrons or for the amenity of the adjoining owners; and there are generally eight employees on the site at any one time.
The applicant rejected the council's alternative proposal described below on the basis that it was too restrictive and failed to recognise the nature of the concept store use.
The council's position
In reply, the council contends that the condition reflects the number of patrons sought in the development application and that the proposed alternative condition is not consistent with the development application details. To that end, council notes that a s 96 application with full supporting documentation needs to be made to assess any amendment.
During the hearing, the council suggested alternative wording to limit the maximum number of persons permitted to the 'Indoor Café/ Retail Areas 3 and 5 combined total' (including staff) to 24. In addition, the number of tables and chairs to be used to be set out on the plans; patrons may only eat or drink while seated and the Plan of Management shall be amended accordingly including demonstrating how the operator will manage and control the premises to prevent eating and or drinking in retail areas 1,2 and 4.
Consideration - Capacity
The council has imposed the condition requiring signage on the basis of cl 98D of the Environmental Planning and Assessment Regulation 2000 (the Regulations). This clause states:
98D Condition relating to maximum capacity signage
(1) For the purposes of section 80A (11) of the Act , the requirement set out in subclause (2) is prescribed as a condition of development consent (including an existing development consent) for the following uses of a building, if the development consent for the use contains a condition specifying the maximum number of persons permitted in the building:
(a) entertainment venue,
(b) function centre,
(c) pub,
(d) registered club,
(e) restaurant.
(2) From 26 January 2010, a sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in the development consent, that are permitted in the building.
(3) Words and expressions used in this clause have the same meanings as they have in the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006 .
Whilst the applicant maintains that the use of the premises is a "unique concept store", part of the use is as a licensed cafe. The liquor licence lists the business type as 'restaurant'. Clause 98D(3) refers to the Standard Instrument (Local Environmental Plans) Order 2006. The dictionary in this instrument gives 'restaurant' and 'cafe' the same meaning.
It would seem to me that the applicant is complaining about a condition imposed by council that simply specifies what the applicant asked for but allows for staffing levels, something omitted by the applicant in their DA. In my view, the council has applied the relevant regulation. While I accept that the current condition limits the number of people in the retail area, the problem is of the applicant's making as shown in the application made to council at [60]. The numbers now sought are a significant departure from the original application and have not been adequately considered by the council. It is not the function of the Court to facilitate unsubstantiated changes to development applications seemingly made on the run. In the spirit of conciliation, the council has proposed an alternative condition that I consider to be an appropriate compromise. The applicant objected to the part of the condition requiring patrons to be seated while eating or drinking as somehow it would impinge on the retail experience. However, it seems to me that the applicant's position is that as eating and drinking are ancillary to the retail concept, the limitation imposed by the new condition should not unduly restrict that activity. In addition, this is contradictory to the wording of the applicant's alternative condition 4 dealt with in the previous section of this judgment. I have made a slight change to the final paragraph of condition 5(C) to make it slightly less prescriptive. The site view showed that the internal retail sections of the premises are quite visible from both internal cafe sections. The amendment does not limit the number of patrons in the central retail section of the premises; this would seem to be of significant benefit to the applicant. As with any cafe, once the available seats are occupied, capacity is reached.
Therefore condition 5, it is to be amended as follows:
(5) OCCUPANT CAPACITY
(A) In accordance with Clause 98D of the Environmental Planning and Assessment Regulation 2000 the following sign, in letters not less than 25mm in height must be fixed alongside the Licensee's name at the main entrance to the premises:-
Maximum Number of Persons Permitted
Indoor Café/ Retail Areas 3 and 5 combined total (including staff) 24 persons
Outdoor Care area (including staff) 12 persons
(B) The capacities for each of the various areas shall not exceed the number shown above.
(C) The number of tables and chairs used in conjunction with the café component shall be as set out on drawing number DA.11[A] prepared by Burley Katon Halliday Pty Ltd dated 24.06.2011.
Patrons may only eat or drink while seated at one of the café tables and chairs shown on drawing number DA.11[A] and the Plan of Management shall be amended accordingly including attaching a copy of drawing number DA.11[A].
The amended Plan of Management shall show how the operator will manage and control the premises in accordance with this condition.
Plan of Management (Condition 6)
As a consequence of the Late Night Trading DCP, the council contends that a Plan of Management is required. Appendix 2 of the LNT DCP sets out the requirements. Whilst the applicant's Statement of Environmental Effects states that the DCP does not apply, it states in section 3.0 that:
The applicant intends to become a member of the City of Sydney Council Accord with Licensed Premises to ensure that the premises will be operated in an appropriate way. The applicant has prepared a management Plan which has been attached to this application.
Condition 6 states that 'the use must always be operated/ managed in accordance with the Plan of Management dated 24 June 2011.
Given the changes to condition 5(C) above, the Plan of Management will need to be amended to reflect that change. Similarly it must be checked for consistency with all of the findings in this judgment.
The council prepared an amended condition, I have considered this and have made minor changes to reflect the findings in this judgment and to provide the applicant with sufficient time to make the necessary minor changes. The amended condition is as follows:
(6) PLAN OF MANAGEMENT
(a) A Plan of Management must be prepared to address all operational and management procedures to be employed in the operation of all aspects of the approved retail store/ licensed café.
(b) The plan must include but not be limited to the minimum requirements outlined in Appendix 2 - City of Sydney Late Night Trading Development Control Plan; compliance with all other operational conditions of this consent; hours of operation; and handling of complaints.
(c) The plan is to be submitted to council by close of business 2 March 2012 with council to advise of any inconsistencies within 10 days of the receipt of the plan. In the interim, the premises are to be operated/ managed in accordance with the Plan of Management dated 24 June 2011.
(d) The premises are to be operated/ managed in accordance with the final agreed Plan of Management.
Outdoor seating (Condition 20)
There are a number of parts of Condition 20 - Outdoor seating in contention. These are:
(a) The use of the subject area for outdoor seating is only allowed in conjunction with the provision of simultaneous food service from the associated approved retail and licensed cafe use.
(h) No furniture or other structure is to be fixed to the pavement, without the consent of the Council.
It was agreed that the following parts of Condition 20 be reworded as follows:
(c) In addition to Council's daily street sweeping and cleansing operations, the operator must ensure that the subject tenancy is kept clean and free of litter at all times.
(f) All outdoor furniture and planting must be maintained at all times in a physically sound condition and kept clean and tidy.
It was agreed that condition 20(i) be deleted. All other sub-clauses of the condition are accepted.
The applicant's position
The applicant contends that the City of Sydney Outdoor Cafe Policy does not apply as the map in cl 1.2 of the policy - Area to which the policy applies, excludes the site. In addition, Mr Kalyk asserts that the policy would not apply in any event because the outdoor seating is on privately owned land.
The applicant seeks the deletion of condition 20(a) presumably because it is considered redundant given the approved use of the premises and the restrictions of the liquor licence. The objection to 20(h) is that the outdoor seating is on privately owned land and the council has not specified the process by which consent would have to be obtained if furniture or any other structure were to be fixed. Essentially, the applicant's position is that this condition is unreasonable and unnecessary and should be deleted.
The council's position
The council relies in part on the City of Sydney Outdoor Cafe Policy (the policy). It accepts that the map in cl 1.2 excludes the site as the policy predates the council's amalgamation with the former South Sydney Council. Notwithstanding this fact Ms Elek states that in practice, planning staff use the policy to guide their assessments of any development applications of outdoor seating areas where food and beverages are served. Clause 2.1 states that the policy applies to open spaces in both public and private ownership.
The reason for condition 20(a) is to reinforce the use of the outdoor space as a component of the approved internal use. Condition 20(h) is imposed because of the site's proximity to a public open space and council's concerns about safety and other issues related to potential anti-social activities and late night use of the immediate area.
Consideration - outdoor seating
McClellan CJ in Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472 at [88] - [92] considered the weight to be given to a council policy which is not a development control plan. While the City of Sydney Outdoor Cafe Policy predates the amalgamation with the former South Sydney Council, the policy was developed by the City of Sydney Council in order " to provide simple procedures and urban design guidelines to encourage the establishment of outdoor cafes wherever feasible and appropriate throughout the City of Sydney ". The policy provides examples of layouts, examples of furniture styles, and the range of management issues to be considered. Safety of patrons and pedestrians is a key focus. I consider that some weight should be given to the policy where the conditions imposed reflect the intent of the policy.
To that end, I am not satisfied that the imposition of condition 20(a) is necessary or relevant. The content of condition 20(a) is beyond the scope of the policy. It would seem to me to be unnecessary to apply a specific condition relating to the use of the outdoor area when the substance of condition 20(a) is covered in conditions 4 and 5 and supplemented by condition 3. The requirements of the liquor licence also impose a requirement for food to be available whenever alcohol is served.
On this basis, I accept the applicant's position and Condition 20(a) is to be deleted.
With respect to condition 20(h) I agree with council that, notwithstanding the seating is on private property, given the location of the outdoor seating area and its proximity to an area of open space subject to large numbers of people on weekend nights, that the fixing of any structures or furniture should be subject to further consideration by council, presumably on the basis of safety and risk. To this end, I consider the council to be applying an aspect of the Outdoor Seating Policy. I note that the applicant's objection seems to be more in principle than a specific requirement to affix furniture or any unspecified structures. I also note that the applicant has accepted condition 20(b) - All outdoor furniture must be removed from the outdoor area and stored within the premises once outdoor trading ceases.
Therefore on the basis of the forgoing, council's version of condition 20(h) remains - that is:
20 OUTDOOR SEATING
(h) No furniture or other structure is to be fixed to the pavement, without the consent of the Council.
DA 840
The physical works to which DA 840 applies, have been carried out by the applicant. The works include the use of graphics on the windows and the installation of signs on both the Fitzroy Gardens and Macleay Street facades. The applicant seeks the deletion of conditions of consent relating to the glazing of the shopfront and signage.
Glazing
The applicant seeks to delete conditions 2(b) and 3(a).
(2) DESIGN MODIFICATIONS
(b) There is no treatment approved to any shopfront glazing as part of this consent.
(3) SHOP FRONTS
(a) All shop front glazing must be clear and untinted and must not be obscured by blinds, curtains or the like.
The applicant contends that the window treatment is not obtrusive, is aesthetically appealing and adds to the amenity of the site. Further, the applicant contends that the council erred in assessing the window treatment as signage rather than assessing it on its merits.
The council contends that the applicant submitted insufficient and contradictory information regarding the proposed treatment of the windows for each facade. On the material provided by the applicant, the council concluded it was a form of signage that would result in visual clutter and which contravened cl 3.7.2 of the City of Sydney Signage and Advertising Structures Development Control Plan (S&AS DCP). And imposed the condition on that basis. The relevant clause states:
3.7.2 Other signs at ground level are generally not permitted including signs on window glass, whether internal or external. A wall plaque may be located next to the entrance door.
During the course of the hearing, the council agreed to delete condition 2 and to amend 3(a) as follows:
(3) SHOP FRONTS
(a) The current shop front glazing must not be changed without prior approval of Council. All shop front glazing must not be obscured by blinds, curtains or the like.
The applicant presses the deletion of this condition.
Consideration - glazing
After reviewing the plans and documentation submitted for DA 840 and the subsequent correspondence between the council and the applicant, I understand and accept the council's concerns and the reasons for the imposition of the condition of consent. For example, an email sent by Mrs Kalyk on 4 July 2011 to Ms Elek shows a mock up of the windows showing the glazing of both entrances covered in random words with the images given the caption "Signage:...". I reject the applicant's contention that the council erroneously assessed the treatment as a sign when the image provided identified the treatment as "signage".
However, with the benefit of the site inspection, the actual window treatment is much more subtle than indicated in the documentation. This is reflected in the council's amended condition. In my view the glazing treatment does not offend the intent of the S&AS DCP however, I agree with council's position that any changes must be approved by council. Therefore condition 3(a) is to be amended as written in [91].
Signage
The applicant seeks the deletion of condition 2(c) and 2(d) on the grounds that council's planner made an unqualified and subjective assessment as to the appearance of the signs and, effectively, the conditions are not for a planning purpose. Further, the applicant seeks that any references to those conditions be deleted from the approved plans. The conditions state:
(2) DESIGN MODIFICATIONS
The building must be modified as follows:
(c) The two steel signage plates to the Fitzroy Gardens elevation are each to be reduced in size to maximum dimensions of 500mm x 500mm.
(d) Only one steel signage plate is approved to the Macleay Street elevation reduced to a maximum size of 500mm x 500mm.
The council argues that cll 3.7.1 (iii) and (iv) of the S&AS DCP apply. These clauses state:
3.7.1 Non-projecting wall signs on the ground level (usually known as hamper signs) are to:
(iii) be limited to one sign per frontage of the shop/premises;
(iv) be not more than 0.6 metres high, 1 m 2 in area and relate to the proportion of any shopfront window and door framing;
Apart from these clauses, the council presses one of the main themes of the S&AS DCP which is to avoid visual clutter and to consider the cumulative impact of signage.
Mr Kalyk made lengthy submissions on the design quality of the signs. He tendered photographs of examples of signs on many nearby shop and business frontages that are larger and, he says, much more visually intrusive than the signs for the premises. He contends that council has been inconsistent in its approach to signage, including other provisions of the S&AS DCP. In this regard he cites the objectives of the S&AS DCP in cl 2.2 which includes:
To ensure that all advertising achieves a high level of design quality in terms of its design and its relationship to the architectural design of buildings and the character of streetscapes.
With respect to the numerical controls, Mr Kalyk says the signs would comply if they were turned 90 and therefore the control is pointless. He also states that, in his view, the signs meet the criteria in cl 2.4.1 and 2.4.2 regarding the general location and design of signs.
Consideration - signs
The signs in question are 1800mm high x 500mm wide of steel construction in what might be described as 'gun metal grey' with the word 'Lacroix' in the lower third portion of the sign and the date '2011' in much smaller lettering below. The letters and numbers are orange in colour and in a simple font. They are fixed to the brick wall on either side of the double glass doors on the Macleay Street frontage; on the Fitzroy Gardens side they are fixed to the painted masonry columns that flank the entrance.
I accept the applicant's arguments that the signs are discrete, appear more as architectural elements, and in my opinion, do not result in visual clutter. In the context of the nearby signs, the signs in contention are far less visually intrusive.
I accept the principal that a DCP must be a focal point of a consideration ( Zhang v Canterbury City Council [2001] NSWCA 167). In this matter, I find that the only elements of non-compliance are those given in [96]. Of those, I agree with Mr Kalyk that cl 3.7.1 (iv) of the S&AS DCP is not helpful. With respect to the number of signs, the signs are placed in such a way as to frame the entrances, which in my view, enhances rather than detracts from the visual impact. Overall, I find that the signs are well designed and their design has considered and implemented the criteria for the general location and design of signs in cl 2.4 of the S&AS DCP. In my opinion, the signs meet the relevant objectives in cl 2.2 of the S&AS DCP.
On this basis, I agree with the applicant and conditions 2(c) and 2(d) are to be deleted and any references to those conditions are to be omitted from the approved plans.
Orders
On the basis of the forgoing, the Orders of the Court are:
(1) Appeals no 10908 of 2011 and 11154 of 2011 are upheld in part.
(2) Development application D/2011/840 for works to a shopfront at 60 Macleay Street Elizabeth Bay is approved subject to conditions of consent as amended by this judgment.
(3) Development application D/2011/958 for the use of shops 2 and 4b, 60 Macleay Street Elizabeth Bay as a retail store/ licensed café with internal and external seating and external planter boxes is approved subject to conditions of consent as amended by this judgment.
(4) The exhibits are returned.
(5) The parties are to file an agreed set of consolidated conditions in accordance with the findings in this judgment by close of business 30 January 2012 for inclusion with the final orders.
J Fakes
Commissioner of the Court
Decision last updated: 19 January 2012
0
5
5